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9
Court of Criminal Appeal 23 March 2001

Regina v Pedrana

[2001] NSWCCA 66

Also reported as (2001) 123 A Crim R 1
Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CONVICTION FOR ARMED ROBBERY FRESH EVIDENCE WHETHER CONVICTION SHOULD BE QUASHED MISCARRIAGE OF JUSTICE ENTITLEMENT TO ACQUITTAL AS OF RIGHT

Citation: Regina v Pedrana [2001] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 23 March 2001
Judge(s): Ipp AJA; Wood CJ at CL; Simpson J

Background

The appellant was convicted of armed robbery in May 1990 following a trial in the District Court before Urquhart DCJ. He was sentenced to a minimum term of five years' imprisonment. A subsequent appeal against conviction was dismissed in 1992.

In April 2000, the appellant applied under s 474D of the Crimes Act 1900 for a formal inquiry into his conviction. James J ordered that inquiry, which was conducted by Graham DCJ. After completing it, Graham DCJ referred the matter to the Court of Criminal Appeal under s 474H(2)(a) to consider whether the conviction should be quashed.

The sole ground before the Court was that fresh evidence, not available at the original trial, demonstrated the conviction involved a miscarriage of justice. The Crown did not dispute that the evidence qualified as fresh evidence, so the case turned entirely on what consequences should follow from it.

  • Whether the fresh evidence raised a reasonable doubt as to the appellant's guilt, entitling him to an acquittal as of right.
  • Whether, if not entitled to an acquittal as of right, the fresh evidence was capable of belief and likely to be believed by a jury such that a guilty verdict would not have been returned.
  • Whether, even if a new trial would otherwise be appropriate, the court should exercise its discretion to enter a verdict of acquittal rather than order a retrial.
  • How the consecutive sentence imposed for unrelated armed robberies should be adjusted if the underlying conviction were quashed.

Decision

The Court applied the principles from Ratten v The Queen (1974) 131 CLR 510, which distinguish between two situations: where an appellant claims an outright acquittal, and where an appellant seeks only a new trial. In the first situation, the court considers whether a reasonable jury, having regard to the fresh evidence, would entertain a reasonable doubt as to guilt. Where such doubt exists, the appellant is entitled to acquittal as of right.

Ipp AJA found that the fresh evidence did give rise to a reasonable doubt, and that this entitled the appellant to have his conviction quashed. Even setting that aside, the evidence met the lower threshold applicable to a new trial application: it was capable of belief, likely to be believed by a jury, and sufficient that a guilty verdict would not have been returned.

The Court then turned to the sentencing consequences. Because the sentence for the quashed conviction had been the base from which a subsequent, unrelated eight-year sentence commenced, quashing the conviction and adjusting the commencement date of the subsequent sentence would mean the appellant had already served approximately 14 months beyond the full term of that later sentence. He had also lost the opportunity for much earlier parole eligibility. Ipp AJA concluded that any sentence that would notionally follow a retrial and fresh conviction would not involve further imprisonment, given the time already served.

In those circumstances, Ipp AJA declined to order a new trial as a matter of discretion and directed that a verdict of acquittal be entered. Wood CJ at CL agreed with both the reasoning and the proposed orders. Simpson J agreed that the conviction must be quashed and, while expressing a general preference (consistent with her earlier remarks in R v Hasenkamp) for new trial orders over acquittals in fresh evidence cases, accepted that the sentencing complications in this case made a verdict of acquittal the appropriate outcome.

Orders Made

  • Appeal upheld.
  • Conviction quashed.
  • Verdict of acquittal entered.

Key Takeaways

  • Where fresh evidence raises a reasonable doubt as to guilt, the Court of Criminal Appeal confirmed that an appellant is entitled to an acquittal as of right, without any need to exercise a general discretion: the conviction must be quashed and an acquittal entered.
  • A lower threshold applies where an appellant seeks only a new trial: the fresh evidence must be capable of belief, likely to be believed by a jury, and such that a guilty verdict would probably not have been returned when considered alongside the original trial evidence.
  • Even where a new trial would otherwise be available, the court retains a discretion to enter a verdict of acquittal if it would be unjust to require the appellant to stand trial again, provided the public interest in the administration of justice is also weighed.
  • Sentencing arithmetic matters when a quashed conviction formed the base of a cascade of consecutive sentences: the Court of Criminal Appeal considered the appellant's overall time served and lost parole opportunities as part of its discretionary assessment.
  • Simpson J reaffirmed her view that, in the ordinary course, a new trial is preferable to an acquittal in fresh evidence cases, but recognised that this general position must yield to the particular facts, especially where sentencing adjustments would render further imprisonment disproportionate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97, 474D, 474E, 474G, 474H
- Criminal Appeal Act 1912 (NSW)

Cases
- R v Pedrana (unreported, CCA NSW, 11 June 1992)
- Ratten v The Queen (1974) 131 CLR 510
- Whitehorn v R (1983) 152 CLR 657
- Mickelberg v The Queen (1989) 167 CLR 259
- M v The Queen (1994) 181 CLR 487
- King v The Queen (1986) 161 CLR 423
- Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
- Spies v The Queen (2000) 74 ALJR 1263
- Gallagher v The Queen (1986) 160 CLR 392
- Gerakiteys v The Queen (1984) 153 CLR 317
- R v Honeysett (1987) 10 NSWLR 638
- R v Hasenkamp (unreported, CCA NSW, 24 February 1998)
- R v Richards (unreported, CCA NSW, 3 April 1998)
- R v Vastag (unreported, CCA NSW, 20 June 1997)
- R v Bruno (unreported, CCA NSW, 7 July 1997)
- R v Gilbert (unreported, CCA NSW, 10 December 1998)
- R v Robinson [1999] NSWCCA 721