Citation: Donnelly v R [2001] NSWCCA 394
Court: Court of Criminal Appeal, New South Wales
Date: 5 October 2001
Judge(s): Giles JA; Wood CJ at CL; Simpson J
Background
The appellant was convicted in the District Court of robbery with wounding following an incident in Coffs Harbour in the early hours of 4 February 1999. The victim was approached and struck with a wooden club by a co-offender, then robbed of his wallet, money, and watch. The appellant was alleged to have participated in the robbery by standing behind the victim, urging him to comply, and distracting him while the offence was carried out.
The co-offender entered a guilty plea at the commencement of the trial, and the appellant was tried before the same jury. The jury returned a verdict of guilty on 14 October 1999. The appellant was sentenced to a minimum term of five and a half years' imprisonment, with an additional term of two and a half years.
The appellant appealed against both conviction and sentence, raising multiple grounds that expanded significantly from the original notice of appeal. These included fresh evidence, inappropriate cross-examination, deficient jury directions on joint criminal enterprise and lies, and an unreasonable verdict ground.
Legal Issues
- Whether the co-offender's post-trial exculpatory evidence qualified as "fresh evidence" warranting a new trial
- Whether cross-examination of the appellant about the absence from court of alibi witnesses constituted a miscarriage of justice
- Whether the trial judge's directions on joint criminal enterprise were sufficient, particularly regarding the appellant's presence and the requirement for preconcert
- Whether the directions on lies as evidence of consciousness of guilt were adequate, including identification of the relevant lies and exclusion of innocent explanations
- Whether the verdict was unreasonable and unsupported by the evidence
Decision
Fresh evidence: The appellant sought to rely on a letter and evidence from the co-offender, who by then claimed the appellant had been uninvolved. The Court held this did not qualify as fresh evidence under any conventional test. The decision not to call the co-offender at trial had been a deliberate, practical one: the solicitor's affidavit recorded that the co-offender was not called because counsel and the solicitor considered, on instructions, that he would not be a truthful witness. Evidence that was available at trial but consciously not led cannot ordinarily be treated as fresh evidence on appeal.
Inappropriate cross-examination: The appellant was asked during cross-examination whether people he claimed to have been drinking with before the robbery were present in court. The Court held this line of questioning should not have been pursued, citing the discussion in R v Kirby. However, the Court found that, in the circumstances of the case, this cross-examination alone had not occasioned any miscarriage of justice.
Joint criminal enterprise and lies directions: By majority, the jury directions on both joint criminal enterprise and lies were held to be sufficient. On the lies directions, the Court had raised the adequacy of those directions of its own motion after reserving judgment, inviting further submissions. The majority nonetheless concluded the directions met the required standard, including on the need to identify the relevant lies and to exclude innocent explanations before treating them as evidence of consciousness of guilt.
Unreasonable verdict: The Court found it was open to the jury, acting reasonably on the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt. This ground was rejected. The appeal against conviction was dismissed by majority, and the appeal against sentence was also dismissed by the majority on the basis that no error was established.
Orders Made
- Leave granted, to the extent necessary, to enlarge the grounds of appeal against conviction
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Evidence is not "fresh" for appeal purposes where it was available at trial but was deliberately not led, even if the reason was tactical uncertainty about a witness's reliability.
- Cross-examining an accused about the absence of their anticipated witnesses is an inappropriate and dangerous practice, but does not automatically result in a miscarriage of justice; the court assessed its effect in the context of the entire trial.
- In dismissing the conviction appeal by majority, the Court of Criminal Appeal confirmed that jury directions on joint criminal enterprise are assessed for sufficiency in the context of the directions as a whole, not in isolation.
- Directions on lies as evidence of consciousness of guilt must identify the relevant lies and exclude other reasonable hypotheses for telling them; the majority found the directions here met that standard, though the issue was significant enough that the Court raised it of its own motion.
- Sufficient evidence existed on the Crown case for the jury to be satisfied beyond reasonable doubt of the appellant's guilt, applying the test in M v The Queen (1994) 181 CLR 487.
Legislation and Cases Referenced
Cases cited:
- Azzopardi v The Queen (2000) 75 ALJR 931
- Edwards v The Queen (1993) 178 CLR 193
- Gallagher v The Queen (1986) 160 CLR 392
- M v The Queen (1994) 181 CLR 487
- Michelberg v The Queen (1989) 167 CLR 259
- Osland v R (1998) 197 CLR 316
- RPS v The Queen (2000) 199 CLR 620
- Zoneff v The Queen (2000) 200 CLR 234
- R v Ali [2001] NSWCCA 218
- R v Clarkson [1971] 1 WLR 1402
- R v Coney (1882) 8 QBD 534
- R v Dellapatrona (1993) 31 NSWLR 123
- R v Heyde (1990) 20 NSWLR 234
- R v Kirby [2000] NSWCCA 330
- R v Kupferberg (1918) 13 Crim App R 166
- R v Sanford (1994) 72 A Crim R 160
- R v Stackelroth (CCA, 3 April 1996, unreported)
- R v Tangye (1997) 92 A Crim R 545
- R v Vastag (CCA, 20 June 1997, unreported)
- Wilcox v Jeffrey [1951] 1 All ER 464
Legislation: No specific legislation was cited in the material provided.