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11
Court of Criminal Appeal 25 August 1999

Regina v Reid

[1999] NSWCCA 258

Assault & violence
CRIMINAL LAW

Citation: Regina v Reid [1999] NSWCCA 258
Court: New South Wales Court of Criminal Appeal
Date: 25 August 1999
Judge(s): Spigelman CJ, Greg James J, Smart AJ

Background

The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm with intent. The alleged offence arose from an incident at Manly in January 1996, in which the appellant struck the victim several times with a golf club, causing serious injuries. The appellant's case was that the victim had behaved aggressively and threatened him, and that he had used no more force than was reasonably necessary in self-defence.

A witness named Fagan provided substantial support for the appellant's account. The Crown had intended to call Fagan as its own witness, but on the morning of trial it informed the accused for the first time that it had been unable to locate him and would proceed without him. The trial judge refused the appellant's request for an adjournment to allow time to find Fagan.

During the trial, the Crown also led evidence of oral statements the appellant had made to investigating police before any electronically recorded interview (ERISP) took place. Those statements included what the Crown characterised as lies on material matters, which it relied upon as evidence of a consciousness of guilt. The appellant's trial counsel did not object to this evidence, having overlooked section 424A of the Crimes Act 1900.

  • Whether the trial judge erred in refusing an adjournment so the appellant could attempt to locate the missing witness Fagan.
  • Whether the oral admissions made to police before the ERISP were admissible under section 424A of the Crimes Act 1900.
  • Whether the words "not admissible" in section 424A(2) operate literally (barring admission of the evidence regardless of objection) or only prohibit admission over objection.
  • Whether the appropriate remedy was a directed verdict of acquittal or a new trial.

Decision

The Court unanimously held that the trial judge had erroneously exercised his discretion in refusing the adjournment and had applied the wrong test. Fagan was a witness of considerable importance: the Crown itself had intended to call him, and his evidence substantially supported the appellant's self-defence claim. Denying the appellant any opportunity to locate him was a material error that could not be left to stand.

On the admissibility issue, the Court confirmed, applying R v Horton (1998) 45 NSWLR 426, that the lies alleged to have been told to police constituted admissions within the meaning of section 424A. The Crown's use of those admissions in the summing-up, to undermine the appellant's general credibility, was therefore squarely caught by the section.

The Court rejected the argument that section 424A operates literally so as to exclude unrecorded admissions regardless of whether an objection is raised at trial. Spigelman CJ held that the phrase "not admissible" in section 424A(2) should be read as "not admissible over objection." Parliament enacted the provision against the background of an adversarial trial system in which objection to evidence is the ordinary mechanism for exclusion, and a strict literal reading was not appropriate in that context. Because trial counsel had overlooked the section, leave was granted to raise the point on appeal, given its significance.

The Court declined to direct a verdict of acquittal. The Crown's evidence, particularly that of a witness named Ms Hess, was described as cogent. The time already served by the appellant (around seven and a half months of a five-year sentence) was not so substantial as to warrant that course, and a new trial was ordered instead.

Orders Made

  • Appeal allowed.
  • Conviction quashed.
  • New trial ordered.

Key Takeaways

  • A trial judge's refusal of an adjournment will constitute error where a missing witness is sufficiently important to the accused's case and the accused has had no proper opportunity to locate that witness.
  • Oral statements made by an accused to police before an ERISP, including statements characterised as lies, are capable of constituting admissions for the purposes of section 424A of the Crimes Act 1900.
  • Under section 424A(2), the words "not admissible" mean "not admissible over objection": the provision does not automatically exclude unrecorded admissions where no objection was taken at trial.
  • Where trial counsel overlooks section 424A and no objection is taken, leave to raise the issue on appeal may still be granted if the evidence was sufficiently significant to the outcome.
  • Smart AJ emphasised that police should, wherever possible, record admissions by audio at the scene or put alleged admissions to the accused in a fully recorded interview at the earliest opportunity, and that attempts to circumvent section 424A will not be tolerated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 424A
- Evidence Act 1995 (NSW)
- Evidence (Consequential and Other Provisions) Act 1995 (NSW)
- Criminal Appeal Act (NSW), s 8
- Criminal Appeal Rules, r 4

Cases:
- R v Horton, CCA (unreported, 2 November 1998); also reported at (1998) 45 NSWLR 426
- R v Birks (1990) 19 NSWLR 677