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Court of Criminal Appeal 23 July 2002

R v Yammine & Chami

[2002] NSWCCA 289

Also reported as (2002) 132 A Crim R 44
Assault & violenceDrugsPublic order & justice offences
CRIMINAL LAW TRIAL BY JURY TESTIMONY OF CROWN WITNESS ISSUE OF CREDIBILITY NECESSITY FOR WARNING WHETHER WARNING GIVEN SUFFICIENT

Citation: Yammine & Chami v R [2002] NSWCCA 289
Court: Court of Criminal Appeal, New South Wales
Date: 23 July 2002
Judge(s): Hodgson JA, Studdert J, Bell J

Background

Two appellants were convicted in the District Court on all counts of an indictment that included supplying heroin and cocaine, detaining a person with intent to hold for advantage, using an offensive weapon with intent to commit an indictable offence, and assault occasioning actual bodily harm. The charges arose from events in March 1999 and centred on allegations that the appellants used a drug-indebted man to sell heroin from a Sydney apartment, then subjected him to a violent confrontation when he fell short on his accounting.

The Crown's case rested heavily on the evidence of the complainant, a heroin user who acknowledged his own criminal involvement in the drug supply. He claimed the appellants had coerced him into selling drugs under threat of violence, and described being taken to two locations where he was beaten, threatened at gunpoint, and stabbed in the toe.

Both appellants were convicted by jury and sentenced to terms of imprisonment. They appealed both conviction and sentence severity.

  • Whether the trial judge's warning to the jury about the unreliability of the principal Crown witness (under s 165 of the Evidence Act) was adequate in its content and emphasis
  • Whether the Crown Prosecutor's introduction of a credibility assessment of that witness, attributed to a judge who had earlier sentenced him, constituted a miscarriage of justice
  • Whether the verdicts on each count were unsafe and unsatisfactory
  • Whether leave was properly granted for the Crown to re-examine the witness on a prior consistent statement, having regard to s 192 of the Evidence Act

Decision

Adequacy of the unreliability warning. The trial judge gave a warning about the principal witness acknowledging three reasons for caution: his criminal involvement, his mental state at the relevant time, and the potential motive arising from a promise to give evidence when sentenced. The Court of Criminal Appeal found the warning was insufficient. The instruction failed to adequately direct the jury on how to approach the evidence in a way that reflected the particular dangers the witness's circumstances created. The Court held that the deficiencies in the content and emphasis of the warning, taken alone, may have grounded a successful appeal.

The Crown Prosecutor's attribution of credibility to another judge. During the trial, the Crown Prosecutor introduced before the jury an assessment of the witness's credibility that was attributed to a judge who had sentenced the witness in earlier proceedings. The Court found this conduct was seriously irregular. Placing before a jury the apparent endorsement of a witness's credibility by a judicial officer risks fundamentally undermining the jury's role as the independent assessor of that credibility, and the Court found it resulted in a miscarriage of justice.

Unsafe and unsatisfactory verdicts. The Court went on to consider whether the verdicts were themselves unsafe and unsatisfactory, given the extent of reliance on the principal witness and the frailties in his evidence. Having regard to all the evidence, the Court concluded the verdicts could not stand.

Re-examination on prior consistent statement. The appellants challenged the grant of leave to re-examine the witness on a prior consistent statement, arguing the requirements of s 192 of the Evidence Act had not been addressed. The Court found that a judge's failure to expressly articulate consideration of s 192 does not necessarily indicate the provision was ignored, consistent with earlier authority. This ground failed.

Orders Made

  • Each appeal allowed
  • Convictions of each appellant and sentences imposed on each appellant quashed
  • New trials of each appellant ordered

Key Takeaways

  • A warning about Crown witness unreliability under s 165 of the Evidence Act must be adequate not only in form but in the substance of its content, with sufficient direction on the specific dangers arising from the particular witness's circumstances.
  • Introducing before a jury a credibility assessment of a Crown witness attributed to another judicial officer is a serious irregularity. The Court of Criminal Appeal found it capable of distorting the jury's independent function and constituting a miscarriage of justice.
  • Where multiple grounds of appeal each carry significant weight, the Court assessed them cumulatively in reaching its conclusion that the convictions could not stand.
  • A trial judge's failure to expressly recite consideration of s 192(2) of the Evidence Act before granting leave for re-examination does not, without more, establish error. The Court confirmed the approach taken in R v Reardon that judges are assumed to continually have regard to such matters.
  • Convictions that rest heavily on a single witness whose credibility is substantially impeached will face close appellate scrutiny on the unsafe and unsatisfactory ground.

Legislation and Cases Referenced

Legislation
- Evidence Act (NSW), ss 165, 192
- Criminal Appeal Rules, r 4

Cases
- R v Stewart (2000-2001) 52 NSWLR 301
- R v Vo [2001] NSWCCA 67
- R v Clout (1995) 41 NSWLR 312
- Domican v The Queen (1992) 173 CLR 555
- Pitkin v The Queen (1995) 130 ALR 35
- R v Siebel & Anor (1991) 59 A Crim R 105
- R v McDonald (1984) 1 NSWLR 428
- R v Fedler (1989) 42 A Crim R 5
- R v Stevens [2001] NSWCCA 330
- R v Reardon & Ors [2002] NSWCCA 203