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Court of Criminal Appeal 9 September 1999

REGINA v BAKER

[1999] NSWCCA 277

Assault & violenceTheft & property
APPEAL CROSS LYING RELEVANCE OF ISSUES AT TRIAL NO MISCARRIAGE

Citation: Regina v Baker [1999] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 9 September 1999
Judge(s): Spigelman CJ, Studdert J, Adams J

Background

The appellant was convicted in the District Court of armed robbery with wounding under s 98 of the Crimes Act 1900, following an incident at Blacktown in August 1996. The Crown's case was that she stabbed the complainant in the buttock during a robbery of methadone bottles, while her co-accused demanded the items. The co-accused was acquitted at the same trial.

The appellant was unrepresented on appeal. She filed a notice of appeal and later supplementary written submissions, and delivered oral argument at the hearing. The Court granted leave to treat her expanded oral submissions as properly before it, as the Crown raised no objection to this approach.

The appeal challenged both the conviction and the sentence. A range of grounds were pressed, including complaints about unresponsive witness answers that introduced bad character material, the prosecutor's cross-examination of defence witnesses, and a claim that a health condition had affected the appellant's fitness to stand trial.

  • Whether unresponsive answers by the complainant, which introduced allegations of the appellant's prior bad character and use of weapons, caused a miscarriage of justice
  • Whether the prosecutor's cross-examination of defence witnesses about their motives for lying was improper
  • Whether the trial judge adequately addressed the jury on the use of prejudicial material arising from those unresponsive answers
  • Whether there was any basis to challenge the sentence imposed, including the ratio of minimum term to additional term
  • Whether a health condition affecting the appellant rendered her unfit to stand trial or otherwise warranted intervention

Decision

The Court, in a judgment delivered by Adams J (with Spigelman CJ and Studdert J agreeing), dismissed the appeal against conviction and refused leave to appeal against sentence.

On the unresponsive answers, the Court acknowledged that several of the complainant's answers went beyond what the questions called for and introduced material suggesting the appellant had previously produced weapons against him. However, the Court found that the trial judge had intervened, directed the witness to answer questions as asked, and later directed the jury to disregard the irrelevant material. The Court was satisfied these steps were sufficient to prevent any miscarriage.

On the prosecutor's cross-examination of defence witnesses about whether they were lying to protect the appellant, the Court considered this to be a legitimate, if blunt, line of questioning directed at credibility, which was squarely relevant to the issues at trial. No error warranting intervention was established on this ground.

Regarding sentence, the Court found that the ratio of the minimum term to the additional term complied with the requirements of s 5(2) of the Sentencing Act, which calculates the additional term as one third of the minimum term, not two thirds of the total term as the appellant had argued. The Court also noted the sentence was towards the lower end of the appropriate range for an offence of this seriousness, reflecting considerable leniency. On the fitness ground, the Court examined the appellant's trial evidence and found nothing to suggest she had difficulty understanding the case against her or giving responsive answers.

Orders Made

  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence refused

Key Takeaways

  • Unresponsive witness answers introducing bad character material do not automatically produce a miscarriage of justice where the trial judge intervenes promptly and gives the jury appropriate directions to disregard that material.
  • A prosecutor's cross-examination of defence witnesses about whether they are lying to protect a defendant can be permissible where credibility is a live issue at trial and the questioning is directed at matters genuinely in dispute.
  • Under s 5(2) of the Sentencing Act, the additional term is calculated as one third of the minimum term, not as a proportion of the total head sentence; the Court of Criminal Appeal confirmed this distinction in rejecting the appellant's sentencing challenge.
  • No error was established merely because unresponsive answers created some prejudice, provided the trial judge took corrective steps during the trial.
  • In dismissing the fitness ground, the Court of Criminal Appeal noted that no application had been made at trial to delay proceedings on medical grounds, and the appellant's conduct during the trial itself showed no relevant incapacity.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98
- Criminal Appeal Rules 1952 (NSW)
- Jury Act 1977 (NSW)
- Sentencing Act (NSW), s 5(2)

Cases:
- Wentworth v Rogers (No 10) (1987) 8 NSWLR 399
- R v Leak [1969] SASR 172
- R v Praturlon (unreported, NSWCCA, 29 November 1985)
- R v Rich (1988) 102 ACrimR 165
- Palmer (1988) 193 CLR 1; 96 ACrimR 213
- R v Gilbert (unreported, NSWCCA, 10 December 1998)
- R v Dennis (unreported, NSWCCA, 23 and 25 February 1999)
- R v Uhrig (unreported, NSWCCA, 24 October 1996)
- Regina v F (1995) 83 ACrimR 502
- Regina v E (1996) 39 NSWLR 450
- Piazza (1997) 94 ACrimR 459
- Domican (1992) 173 CLR 555; 60 ACrimR 169
- R v Hampton (1998) 44 NSWLR 729