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Court of Criminal Appeal 17 August 2000

R v Gover

[2000] NSWCCA 303

Also reported as [2000] 118 A Crim R 8
Fraud & dishonesty
CRIMINAL LAW DISHONESTY OFFENCES APPEAL AGAINST CONVICTION CRIMINAL LAW & PROCEDURE NO APPLICATION FOR DISCHARGE OF JURY WHETHER DIRECTION OVERCAME PREJUDICE

Citation: R v Gover [2000] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 17 August 2000
Judge(s): Stein JA, Dunford J, Simpson J

Background

The appellant was convicted in the District Court at Sydney on five counts of dishonesty offences arising from the fraudulent use of another person's American Express card in 1995. The Crown alleged he used the card to purchase an oil drip tray and, more significantly, a Jeep Cherokee valued at approximately $52,000, by impersonating the card's owner.

The card's owner made two statements to police in June and August 1995 denying any authorisation of the purchases and identifying forged documents. He died in 1997 before the trial. His statements were admitted into evidence under a provision of the Crimes Act 1900 (since repealed and re-enacted in the Criminal Procedure Act 1986).

The appellant's defence was that he had assisted the card owner with the purchase at the owner's request, and that the owner had voluntarily handed him the keys to the vehicle on the evening police found him with it. The jury rejected this account and returned guilty verdicts on all five remaining counts.

  • Whether the deceased card owner's written statements were admissible at trial, given the form of the committal proceedings (a "paper committal") and the circumstances surrounding notice and the appellant's non-appearance at committal
  • Whether an inadvertent and potentially prejudicial event during the trial required the discharge of the jury, or whether the trial judge's direction adequately overcame any prejudice
  • Whether the trial judge's direction on circumstantial evidence and alternative hypotheses consistent with innocence contained a legal error, particularly in light of the Court of Criminal Appeal's earlier decision in R v McIntyre

Decision

Admissibility of the deceased witness's statements: The Court examined the paper committal procedure under the Justices Act 1902 and the relevant provisions of the Criminal Procedure Act 1986 and Evidence Act 1995. The central question was whether the procedural conditions for admissibility had been satisfied, given the appellant's non-appearance at the committal. The Court found that the statements were properly admitted at trial.

Prejudicial event and jury direction: An inadvertent event occurred during the trial that carried potential prejudice for the appellant. No application was made at the time for the jury to be discharged. The Court found that the trial judge's direction to the jury was adequate to overcome any prejudice created by the event, and the failure to seek a discharge was a relevant consideration in assessing this ground.

Circumstantial evidence direction: The appellant argued the trial judge's direction on alternative hypotheses misdirected the jury, relying on R v McIntyre. The Court distinguished McIntyre on its facts, finding that the trial judge's direction did not require the jury to find direct evidence of an alternative innocent explanation. Rather, the direction properly instructed the jury to consider whether the evidence was consistent with any reasonable hypothesis of innocence, without speculating on matters inconsistent with the accepted evidence. No objection had been taken to the direction at trial, engaging the applicable procedural rule, though the Court noted defence counsel had been unavailable on the day and a solicitor had appeared in their place.

All three grounds of appeal were rejected. The Court was unanimous in dismissing the appeal and affirming the convictions.

Orders Made

  • Appeal dismissed
  • Convictions affirmed

Key Takeaways

  • Under the paper committal provisions in force under the Justices Act 1902, written statements of a witness who subsequently dies may be admissible at trial where the relevant procedural conditions for the committal process were satisfied, even where the accused did not appear at the committal.
  • Where an inadvertent and potentially prejudicial event arises at trial but no application is made for the jury to be discharged, the adequacy of a curative direction becomes the focus of any appellate challenge to the conviction.
  • A circumstantial evidence direction does not misstate the law merely because it instructs the jury to look to the evidence for any reasonable hypothesis consistent with innocence. The direction need not require direct evidence of an alternative hypothesis, provided it does not invite speculation inconsistent with evidence the jury accepts.
  • In distinguishing R v McIntyre, the Court of Criminal Appeal confirmed that the relevant question is whether the jury could have been misled by the direction read as a whole, assessed in the context of the full charge.
  • Failure to object to a jury direction at trial engages procedural rules that bear on the weight of a later appellate challenge, even where counsel's absence on the relevant day provided a mitigating explanation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 65, 67, 409(7) (repealed)
- Criminal Procedure Act 1986 (NSW), ss 112-116
- Justices Act 1902 (NSW), ss 48-48I
- Evidence Act 1995 (NSW), ss 8, 65, 67, 137

Cases:
- R v Adamiczka (1993) 33 NSWLR 68
- R v Stackelroth (1996) 86 A Crim R 438
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Abrahams (1895) 21 VLR 343
- R v Jones (No.2) [1972] 1 WLR 887; 56 Cr App R 413
- R v Sullivan (CCA, 22 August 1995)
- R v McIntyre [2000] NSWCCA 6