AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 16 December 1999

R v Taranto; R v Freeman

[1999] NSWCCA 396

Assault & violence
CRIMINAL LAW EVIDENCE WHETHER DIRECTION TO JURY REQUIRED EVIDENCE ACT S165

Citation: R v Taranto; R v Freeman [1999] NSWCCA 396
Court: New South Wales Court of Criminal Appeal
Date: 16 December 1999
Judge(s): Spigelman CJ, Dunford J, Hidden J

Background

Two appellants were tried in the District Court on charges of wounding with intent to murder and, in the alternative, malicious wounding with intent to cause grievous bodily harm. The first appellant was convicted of the alternative charge and sentenced to fourteen years penal servitude. The second appellant was convicted of malicious wounding and sentenced to three and a half years penal servitude.

A central Crown witness was a man named Johnson. During the trial, counsel for one of the appellants submitted that this witness might reasonably be supposed to have been criminally involved in the events giving rise to the charges, and sought a direction to the jury under s 165 of the Evidence Act 1995. The trial judge declined to give that direction.

Both appellants challenged their convictions on the ground that the trial judge's refusal to give the warning was legally erroneous and resulted in a miscarriage of justice.

  • Whether the Crown witness might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, within the meaning of s 165(1)(d) of the Evidence Act 1995.
  • Whether the trial judge was required to give a warning and information to the jury under s 165(2) in relation to that witness's evidence.
  • Whether the trial judge's failure to give reasons for refusing the requested direction constituted an error of law or a miscarriage of justice sufficient to warrant intervention by the Court of Criminal Appeal.

Decision

The Court of Criminal Appeal unanimously found that there was evidence from which it could reasonably be inferred that the Crown witness, Johnson, was criminally involved in the events. The trial judge was therefore required under s 165(2) to give a jury warning about that witness's evidence, unless there were good reasons under s 165(3) not to do so.

The trial judge's entire response to the defence submission consisted of the rhetorical question: "Well I don't reasonably suppose that Mr Johnson was concerned in the events, do you?" The Court held this was a wholly inadequate statement of reasons. Spigelman CJ found that the peremptory dismissal of the submission, given the importance of Johnson's evidence to the Crown case against both appellants, was not appropriate.

Spigelman CJ identified two separate bases for intervention. A finding that there was simply no evidence from which criminal involvement could reasonably be inferred would involve a question of law, reviewable on appeal. Separately, and more clearly applicable here, the inadequacy of the reasons given by the trial judge itself constituted a miscarriage of justice. The Chief Justice noted that, while elaborate reasons are not required, sufficient reasons must be given so that a fair-minded independent observer would accept that the accused had received a fair trial according to law.

Dunford J agreed, adding that a trial judge who refuses a request for a s 165 warning must state reasons for that refusal, whether the basis is that the statutory threshold has not been met or that discretionary grounds under s 165(3) apply. Hidden J's judgment set out the underlying factual analysis, concluding that the forensic and other evidence was such that Johnson's possible criminal involvement was a live issue that should have been placed before the jury by way of appropriate warning.

Orders Made

  • Both appeals allowed.
  • Convictions quashed.
  • New trial ordered.

Key Takeaways

  • Under s 165(1)(d) of the Evidence Act 1995, once there is evidence from which it can reasonably be inferred that a Crown witness was criminally concerned in the events giving rise to the proceeding, the trial judge is required to give a jury warning under s 165(2) unless good reasons exist under s 165(3) to decline.
  • A trial judge who refuses a request to give a s 165 warning must provide adequate reasons for that refusal, whether the basis is that the statutory threshold was not met or that the discretion under s 165(3) was exercised.
  • A dismissive, conclusory statement that merely repeats the statutory language does not constitute adequate reasons, particularly where the witness's evidence was central to the Crown case.
  • The Court of Criminal Appeal confirmed that its jurisdiction to intervene is limited: a wrong finding of fact alone does not constitute an error of law, and the Court will not simply substitute its own view on whether the statutory threshold was satisfied.
  • Where the inadequacy of reasons is itself of sufficient gravity, it can constitute both an error in law and a miscarriage of justice, providing independent grounds for intervention under the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- R v Beattie (1996) 40 NSWLR 155
- R v Flood [1999] NSWCCA 198
- Waterford v The Commonwealth (1986-87) 163 CLR 54
- The Queen v Bridgman (1980) 24 SASR 278
- The Queen v Hartwick (Court of Appeal, Victoria, unreported, 20 December 1995)
- R v Melrose (1987) 30 ACrim R 332