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Court of Criminal Appeal 16 December 1999

R v HUDD

[1999] NSWCCA 382

Public order & justice offences
CRIMINAL LAW APPEAL FRESH EVIDENCE

Citation: R v Hudd [1999] NSWCCA 382
Court: NSW Court of Criminal Appeal
Date: 16 December 1999
Judge(s): Sheller JA, Barr J, Bell J

Background

The appellant was convicted by a District Court jury of conspiring to pervert the course of justice. The conviction arose from his attempts to recruit false witnesses and manufacture supporting documents to undermine a drug supply prosecution against him. His original appeal against conviction was dismissed in December 1994, though his sentence was reduced.

In 1999, the appellant applied under the Crimes Act for an inquiry into his conviction. The proceedings were referred to the Court of Criminal Appeal to be dealt with as a fresh appeal. The sole ground was that a miscarriage of justice had occurred because evidence of the dishonesty of a Crown witness, Sergeant Nomchong, had been unavailable at trial.

Sergeant Nomchong had provided letters attributed to the appellant, which a handwriting expert used as comparison material to link the appellant to the conspiratorial documents. The appellant argued that two subsequent matters, a 1996 conviction of Sergeant Nomchong for attempting to pervert the course of justice, and Royal Commission evidence that he had received a share of a bribe before May 1989, would have undermined his credibility before the jury.

  • Whether fresh evidence of a Crown witness's later dishonesty was capable of establishing that the witness had been dishonest at the time of the relevant trial events in 1989
  • Whether the unavailability of that fresh evidence at trial gave rise to a reasonable possibility that a jury would have acquitted the appellant
  • Whether the fresh evidence would have materially affected the jury's assessment of the Crown case as a whole

Decision

Barr J (with whom Sheller JA and Bell J agreed) assessed the importance of Sergeant Nomchong's evidence to the Crown case. The handwriting comparison relied on two sets of documents as examples of the appellant's writing. Even setting aside the letters identified by Sergeant Nomchong, the Crown had independent evidence linking the appellant to the conspiratorial documents, including the appellant's own admissions to police about entries in a notebook, identification evidence from co-conspirator Darren Worthington, and a broad body of documentary evidence examined by the handwriting expert.

On the credibility question, Barr J found that Sergeant Nomchong's 1994 offence, committed approximately five years after the relevant trial events in 1989, could not reasonably found an inference that he had been dishonest in 1989. The Court noted that Sergeant Nomchong had been a police officer for some thirty years, that his service had been described as outstanding and meritorious with only minor exception, and that senior officers had given unchallenged character evidence at his sentencing. Drawing an inference of earlier dishonesty from a later isolated act against that background was not, in the Court's view, an available reasoning path for a jury.

Regarding the Royal Commission evidence from Trevor Haken about an alleged bribe before May 1989, counsel for the appellant conceded the allegations had little substance on their own. Barr J agreed, and further observed that such evidence would go only to credit, not to any issue at trial, and that the evidentiary obstacles to its admission were not worth resolving given its minimal weight.

The Court concluded that there was no reasonable possibility that a jury, having the benefit of the fresh evidence, might have acquitted the appellant, and dismissed the appeal.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that later misconduct by a Crown witness does not automatically support an inference of dishonesty at an earlier time, particularly where the intervening period is lengthy and the witness's general character was otherwise sound.
  • A reasonable possibility of acquittal is the test applied when fresh evidence is said to have rendered a conviction a miscarriage of justice, drawing on Gallagher v The Queen (1986) 160 CLR 392 and Mickelberg v The Queen (1989) 167 CLR 259.
  • Where a Crown case rests on multiple independent strands of evidence, fresh evidence attacking one witness's credibility may carry insufficient weight to satisfy the reasonable possibility of acquittal test.
  • Evidence going only to a witness's credit, rather than to any issue at trial, faces significant admissibility hurdles, and a court may decline to resolve those hurdles where the evidence's probative weight is minimal.
  • The Court affirmed the approach taken in R v Robinson [1999] NSWCCA 186 and R v Johns [1999] NSWCCA 206, noting the particular difficulty juries face when asked to infer dishonesty at one time by reference to subsequent events.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 474D, 474E(1)(b)

Cases:
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259
- R v Robinson [1999] NSWCCA 186
- R v Johns [1999] NSWCCA 206