Citation: Regina v Walker [2000] NSWCCA 130
Court: New South Wales Court of Criminal Appeal
Date: 23 March 2000
Judge(s): Spigelman CJ, Ireland J, Simpson J
Background
The appellant was convicted by a jury of the murder of a taxi driver, shot on 4 May 1995. The appellant had hailed the taxi at Manly and, during the journey through the Dee Why area, fired one shot from a revolver he was carrying wrapped in a towel. The shot passed through the rear of the driver's seat and fatally wounded the driver. These basic facts were not in dispute.
The sole issue at trial was whether the shooting was deliberate (with intent to kill or cause grievous bodily harm) or accidental. The jury was also invited to consider a verdict of manslaughter by an unlawful and dangerous act, but returned a verdict of murder. The appellant was sentenced to a minimum term of fourteen years penal servitude with an additional term of five years.
The appeal to the Court of Criminal Appeal raised two grounds: first, that evidence given by a fellow prisoner (an informer) should have been excluded; and second, that the murder verdict was unsafe and unsatisfactory.
Legal Issues
- Whether the trial judge erred in admitting the prison informer's evidence of conversations with the appellant, having regard to the unfairness discretion under s 90 and the impropriety discretion under s 138 of the Evidence Act 1995
- Whether the appellate court's review of that discretionary ruling was constrained by well-established limitations on appellate intervention
- Whether the jury's verdict of guilty of murder was "unsafe and unsatisfactory" (or "unreasonable") within the meaning of s 6(1) of the Criminal Appeal Act 1912, having regard to the evidence of accident, the drug-taking evidence, and the attack on the reliability of the informer's testimony
Decision
Ground 1: Admissibility of prison informer evidence
The trial judge had conducted an extensive voir dire (a hearing within the trial to assess admissibility) before ruling the informer's evidence admissible. The Court of Criminal Appeal noted that appellate review of a trial judge's exercise of the s 90 and s 138 discretions is significantly restricted. The appellant had not relied on the unfair prejudice discretion in s 137. The Court found no error in the trial judge's approach and rejected this ground.
The informer gave evidence of three conversations with the appellant while they were both in custody. These included statements by the appellant suggesting the shooting was deliberate, details of an alleged insurance fraud scheme (supported by a document found on the appellant at the time of the killing), and remarks the informer described as cold and callous. The trial judge had not accepted the informer's initial claim of altruistic motivation for coming forward, but nonetheless found the evidence sufficiently reliable to admit. No challenge was raised to the trial judge's direction to the jury on how to approach informer evidence.
Ground 2: Unsafe and unsatisfactory verdict
The appellant contended that, given the defence of accidental discharge and the extensive evidence of drug-taking at the time of the shooting, the verdict was unreasonable. The Court observed that the jury had available to it a video recording made within forty minutes of the incident, which was directly relevant to assessing the expert pharmacological evidence. Both the treating doctor and an independent expert, when shown the recording, agreed they could not detect signs of confusion in the appellant. The jury itself was able to observe this recording.
Spigelman CJ concluded that the question of whether drug-taking affected the appellant's capacity to act deliberately or form the requisite intent was quintessentially a matter for the jury. There was sufficient evidence before the jury, including the informer's account, to support the verdict. The second ground was also rejected.
Orders Made
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that appellate review of a trial judge's exercise of the unfairness and impropriety discretions under ss 90 and 138 of the Evidence Act 1995 is subject to significant restrictions, and will not be disturbed absent demonstrated error.
- In dismissing the appeal, the Court treated the reliability of a prison informer's evidence as a matter properly assessed by the trial judge at voir dire, particularly where the judge had already rejected the informer's claimed motivations and still found the evidence admissible.
- Where expert evidence about drug effects is theoretical in nature, the jury's own assessment of directly observed material (such as a video recording of the accused shortly after an incident) is a legitimate and significant basis for evaluating that expert opinion.
- Whether drug-taking at the time of an offence was sufficient to negate deliberate intent or the capacity to act voluntarily is characterised as quintessentially a jury question, not one for an appellate court to re-determine.
- A conviction will not be set aside as unsafe and unsatisfactory under s 6(1) of the Criminal Appeal Act 1912 where there was sufficient evidence before the jury to support its verdict, even where that evidence was the subject of credibility attack at trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 90, 137, 138
- Criminal Appeal Act 1912 (NSW), s 6, s 6(1)
- Listening Devices Act 1984 (NSW)
Cases:
- Fleming v The Queen [1998] HCA 68; (1998) 73 ALJR 1
- Giam v R [1999] NSWCCA 53; (1999) 104 A Crim R 416
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159
- R v Bailey & Smith (1993) 97 Cr App R 365
- R v Brownlee [1999] NSWCCA 57; (1999) 105 A Crim R 214
- R v Johnston (1998) 45 NSWLR 362
- R v Pfennig (No 1) (1992) 57 SASR 507
- R v Lowe [1997] 2 VR 465