Citation: Regina v Guider [2000] NSWCCA 355
Court: New South Wales Court of Criminal Appeal
Date: 13 September 2000
Judge(s): Fitzgerald JA; Newman J; Greg James J
Background
The appellant was convicted by a District Court jury on two counts: conspiracy to commit armed robbery, and being armed with an imitation pistol with intent to commit an indictable offence. The charges arose from a planned bank robbery at Warriewood Square in November 1997, which was never carried out after an associate, Solomon Redibaum, informed police and cooperated with investigators.
Redibaum's evidence was central to the Crown case. He gave detailed accounts of accompanying the appellant on reconnaissance trips, witnessing the transfer of a pistol, and receiving operational instructions about the planned robbery. At trial, the case effectively came down to a credibility contest between Redibaum's evidence implicating the appellant and the appellant's evidence implicating Redibaum.
The appellant was sentenced to a head sentence of ten years (minimum term of seven years and six months, additional term of two years and six months) on the conspiracy count, with a concurrent fixed term of three years on the second count. He appealed both conviction and sentence, representing himself before the Court of Criminal Appeal.
Legal Issues
- Whether the conviction was unsafe due to the incompetence of trial counsel and solicitor, particularly in failing to challenge Redibaum's reliability as a witness
- Whether trial lawyers acted appropriately in not adducing expert evidence about the effects of Redibaum's brain injury on his credibility, and in not cross-examining him about his tendency to lie
- Whether the sentencing judge erred in applying the relevant sentencing principles, having regard to the appellant's extensive prior criminal history
Decision
The Court dismissed both the conviction appeal and the sentence appeal, though it granted leave to appeal on sentence. Newman J delivered the principal reasons, with which Fitzgerald JA and Greg James J agreed.
On the competence of trial lawyers, the Court acknowledged genuine concerns. Fitzgerald JA noted that the trial solicitor's file notes contained "inappropriate flippant comments" about the appellant's evidence, reflecting an unprofessional approach. More significantly, neither the barrister nor the solicitor made any attempt to explain their conduct of the defence after the appellant waived privilege, which the Court described as unsatisfactory.
Despite those criticisms, the Court concluded that the tactical decisions made at trial could not be characterised as incompetent. The decision not to challenge Redibaum's reliability through his criminal history was explicable: doing so risked opening the door to evidence of the appellant's own extensive criminal record. Similarly, the decision not to call expert evidence about Redibaum's brain injury was understandable, since that evidence would have revealed Redibaum's criminal conduct as a consequence of the injury. One theoretical alternative, cross-examining Redibaum about his tendency to lie without mentioning specific offences, carried its own significant risks and could not be stigmatised as incompetent. The Court found no miscarriage of justice, describing the prosecution case as very strong.
On sentence, the Court found no error. The appellant had sixteen prior robbery convictions, eight of which were armed robberies. The planned offending involved considerable preparation, was intended to be carried out in company, and would have involved terrorising bank staff with what they would reasonably believe was a real firearm. The Court accepted that bank robberies stand high in the criminal calendar and that the appellant's history left little scope for leniency.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but appeal against sentence dismissed
Key Takeaways
- A tactical decision by trial counsel not to challenge a witness's credibility through prior criminal conduct can be justified where doing so would risk exposing the accused's own criminal history, even if alternative approaches existed in theory.
- Incompetence of counsel will not ground a miscarriage of justice finding unless the conduct actually caused a substantial wrong; here, the strength of the prosecution case made that conclusion unavailable.
- Fitzgerald JA confirmed that trial lawyers whose client waives privilege bear an obligation, at minimum, to explain their tactical decisions to an appellate court, and that a failure to do so is professionally unsatisfactory.
- In dismissing the sentence appeal, the Court affirmed that for common law conspiracy offences, the maximum penalty prescribed for the substantive offence is an appropriate reference point in sentencing.
- An extensive history of like offending, here sixteen robbery convictions spanning decades, is a significant aggravating factor that substantially reduces any expectation of leniency.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Sentencing Act (NSW)
- Evidence Act 1995 (NSW)
Cases:
- R v Farrell (1998) 194 CLR 286
- R v Birks (1990) 19 NSWLR 677
- R v Ignjatic (1993) 68 A Crim R 333
- R v Zorad (1990) NSWLR 91
- R v Cann, unreported, Court of Criminal Appeal, 12 October 1994