Citation: Regina v Covill [2000] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 21 June 2000
Judge(s): Giles JA; Grove J; Greg James J
Background
The appellant faced charges arising from two separate stabbing incidents on consecutive days in June 1997. The first involved the stabbing of a man at a Haymarket McDonald's restaurant; the second involved the stabbing of another man the following day, along with a kidnapping charge and a firearm possession charge. Both trials were heard consecutively in August 1998 before Coleman DCJ in the District Court.
In the first trial, the appellant was acquitted of wounding with intent to murder but convicted of malicious wounding with intent to cause grievous bodily harm. In the second trial, he was acquitted of kidnapping and wounding with intent to murder but convicted of malicious wounding with intent to cause grievous bodily harm, and pleaded guilty to firearm possession. He was sentenced across all matters, including two armed robbery offences, with sentences running concurrently from June 1997.
The appellant challenged both convictions and sought to appeal his sentences. The Crown conceded a critical error in the first trial, which resolved that appeal. The second conviction appeal raised multiple grounds and was contested.
Legal Issues
- Whether the trial judge's directions to the jury concerning the appellant's election not to give evidence constituted a misdirection warranting a new trial (first trial)
- Whether the trial judge erred in declining to give a direction under s 165 of the Evidence Act about the unreliability of a particular witness's evidence (second trial)
- Whether the trial judge erred in declining to direct the jury on self-defence as an alternative case (second trial)
- Whether the appellant suffered a miscarriage of justice because he was asked in cross-examination whether he believed a Crown witness was motivated to lie (second trial)
- Whether the jury's verdict in the second trial was unreasonable or unsupportable on the evidence
Decision
First trial: The Crown conceded that the trial judge misdirected the jury in relation to the appellant's election not to give evidence, consistent with the High Court's guidance in RPS v The Queen (2000) HCA 3. Because both parties agreed the appropriate remedy was a new trial rather than acquittal, and because the other grounds (if upheld) would not have resulted in acquittal, the Court allowed the appeal, set aside the conviction, and ordered a new trial without examining the remaining grounds.
Second trial, unreliability direction: The Court found no error in the trial judge's refusal to give a direction under s 165 of the Evidence Act about the unreliability of a particular witness. The Court drew on R v Lewis and R v Flood in reaching this conclusion and found the judge had adequately directed the jury on assessing witness reliability generally.
Second trial, self-defence: The Court rejected the argument that the trial judge was obliged to direct the jury on self-defence as an alternative case. The evidence in the second trial did not support such a direction, and no error was established in declining to give it.
Second trial, cross-examination question: The appellant was asked in cross-examination whether he believed a Crown witness was motivated to lie. The Court accepted the question should not have been asked, consistent with authorities including Palmer v The Queen and R v Javanovic. However, the Court found no miscarriage of justice resulted in the circumstances of this case. The verdict was also found to be neither unreasonable nor unsupportable on the evidence, and the jury's acquittal on the kidnapping charge did not undermine its guilty verdict on the wounding charge.
Sentence: Because a new trial was ordered on the first offence, and because the original sentencing had been conducted on a totality basis across all matters, resentencing on all remaining offences was required. The Court also noted an additional error in how one of the armed robbery matters had been dealt with at sentence, which the resentencing would need to correct.
Orders Made
As to the first trial:
- Appeal allowed on the Crown's concession
- Conviction set aside and sentence quashed
- New trial ordered
As to the second trial:
- Appeal against conviction dismissed
- Leave to appeal against sentence granted (including sentences on the additional indictment)
- All sentences quashed
- Sentencing of the appellant remitted to the District Court of New South Wales
Key Takeaways
- A misdirection concerning an accused's election not to give evidence is a serious error capable of warranting a new trial, consistent with RPS v The Queen (2000) HCA 3.
- Where the Crown concedes a ground of conviction appeal and the parties agree on the appropriate remedy, the Court of Criminal Appeal need not examine remaining grounds that would not independently produce an acquittal.
- No error arises from declining to give a s 165 Evidence Act unreliability direction where the trial judge has adequately directed the jury on the assessment of witness credibility generally.
- Asking a defendant in cross-examination whether a Crown witness was motivated to lie is improper, but does not automatically result in a miscarriage of justice; the Court examines the circumstances of the particular case.
- Where a sentencing judge adopts a totality approach across multiple offences and one conviction is set aside for retrial, all sentences imposed in that exercise must be quashed and remitted for resentencing.
Legislation and Cases Referenced
Legislation:
- Evidence Act (NSW), s 165
Cases:
- RPS v The Queen (2000) HCA 3
- R v Lewis (NSW CCA, 8 September 1998)
- R v Flood [1999] NSWCCA 198
- R v Uhrig (NSW CCA, 24 October 1996)
- Palmer v The Queen (1998) 193 CLR 1
- R v Javanovic (1997) 42 NSWLR 520
- R v AH (NSW CCA, 27 November 1997)
- R v GET (NSW CCA, 15 June 1998)
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Fleming v R (1998) 158 ALR 379
- R v McKnoulty (1995) 77 A Crim R 333
- Jones v The Queen (1989) 63 ALJR 312