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Court of Criminal Appeal 20 June 2001

Wood v Regina

[2001] NSWCCA 228

Theft & property
EVIDENCE POSSIBLY UNRELIABLE ACCOMPLICE INFORMAL ADMISSION IDENTIFICATION POINTS NOT TAKEN AT TRIAL NO MISCARRIAGE OF JUSTICE

Citation: Wood v Regina [2001] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 20 June 2001
Judge(s): Smart AJ, Newman AJ, Badgery-Parker AJ

Background

The appellant was convicted in the District Court at Goulburn of larceny under section 117 of the Crimes Act 1900, arising from a staged robbery at a Goulburn service station in June 1997. The Crown alleged that a service station employee proposed the scheme to the appellant and a third man: one of them would enter the store, the other would keep watch outside, and the employee would disable the security camera beforehand. The proceeds were to be divided equally among the three.

The Crown case rested on several witnesses. The employee accomplice gave evidence of the planning meeting and the theft itself. Two other witnesses gave evidence of conversations in which the appellant allegedly spoke about the robbery and the purchase of a car shortly after. The appellant denied involvement, claiming money used to buy a car in Canberra after the theft came from a debt repayment by a co-accused.

Judge Twigg QC sentenced the appellant to three years' imprisonment with a twelve-month non-parole period. The appellant appealed against both his conviction and his sentence.

  • Whether the trial judge erred by failing to warn the jury about the dangers of relying on potentially unreliable evidence, including accomplice testimony and informal admissions
  • Whether the identification evidence was adequately addressed in directions to the jury
  • Whether the evidence was sufficient to support the conviction
  • Whether the failure to raise these directions at trial precluded the grounds on appeal, and if any miscarriage of justice resulted
  • Whether the sentence was disproportionate compared to those received by co-offenders, giving rise to a parity argument

Decision

Conviction appeal: The Court dismissed the appeal against conviction. On the question of jury warnings, counsel for the appellant had not requested a direction under section 165(2) of the Evidence Act 1995 at trial. That section obliges a judge to warn the jury about potentially unreliable evidence only upon request. The Court acknowledged arguments that certain warnings may remain available even without such a request, but found that any deficiency in direction did not produce a miscarriage of justice on the facts. The evidence as a whole was sufficient to support the jury's verdict.

Adequacy of directions generally: Although several grounds challenged the adequacy of directions relating to accomplice evidence, informal admissions, and identification, the Court found no error warranting intervention. The points had not been taken at trial, and the Court was satisfied that no substantial wrong or miscarriage had occurred. The conviction was therefore upheld.

Sentence appeal: The Court granted leave to appeal against sentence and upheld the appeal on parity grounds. The co-offender who had devised the plan (the employee accomplice) received a significantly lighter sentence despite being charged with more serious offences and being the architect of the scheme. Even accounting for his guilty plea and cooperation with the Crown, the disparity was so pronounced that it would give rise to a justifiable sense of grievance in the appellant. The Court noted the trial sentencing judge referred to the co-offenders' sentences but did not expressly address the parity principle.

Resentencing: The Court found that special circumstances existed justifying a longer than usual ratio of parole to non-parole period. The head sentence was reduced from three years to two years, and the non-parole period was reduced from twelve months to eight months.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted; appeal upheld; original sentence quashed.
  • In lieu thereof, the appellant sentenced to two years' imprisonment commencing 16 November 2000 and expiring 15 November 2002, with a non-parole period of eight months expiring 15 July 2001, with release on parole on that date.

Key Takeaways

  • Under section 165(2) of the Evidence Act 1995, a trial judge is only obliged to warn the jury about potentially unreliable evidence upon request; failing to seek such a direction at trial will ordinarily weigh against raising the point on appeal.
  • A failure to take a point at trial does not automatically bar an appeal ground, but the appellant must establish that the omission produced a miscarriage of justice, a threshold the Court found was not met here.
  • Sufficient evidence existed to sustain the conviction even where individual witnesses had credibility issues, including a witness who had experienced marijuana-induced psychosis and an accomplice who stood to benefit from cooperation with the Crown.
  • The parity principle in sentencing requires that co-offenders receive sentences that are not so disparate as to produce a justifiable sense of grievance; a sentencing judge should address parity expressly where co-offenders have been sentenced on different occasions.
  • In applying parity, the Court of Criminal Appeal assessed relative culpability carefully, noting that the co-offender who conceived and organised the scheme could not credibly be treated as significantly less culpable than the appellant simply because he pleaded guilty and cooperated with the Crown.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 117 (larceny)
- Evidence Act 1995 (NSW), s 165 (unreliable evidence directions)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- M v The Queen (1994) 64 ALJR 83
- Postiglione v The Queen (1997) 71 ALJR 875 (parity of sentences)
- R v Williams (1999) 104 A Crim R 260 (jury warnings on reliability)