Citation: Ton v Regina [2002] NSWCCA 337
Court: NSW Court of Criminal Appeal
Date: 19 August 2002
Judges: Mason P, Dowd J, Smart AJ
Background
The appellant was one of three inmates at Parklea Prison convicted of maliciously wounding two other inmates, Haines and Whitton, with intent to cause them grievous bodily harm. The attack occurred on 16 September 1999, when the three offenders allegedly entered the victims' cell armed with improvised weapons and stabbed both men. Both victims required hospitalisation; Haines was left with significant scarring.
The context was a racially charged confrontation that had begun the previous day, escalating from an argument on the prison oval through a further altercation in the pod area, and culminating in the stabbing the following afternoon. A homemade glass-bladed knife and a modified pen weapon were later recovered from the prison compound and common room refrigerator.
The appellant was already serving a 22-year sentence for murder at the time these convictions were recorded. He received an additional ten-year sentence for the woundings, commencing after the murder sentence. On appeal, he challenged the admission of certain evidence and the directions given to the jury by the trial judge.
Legal Issues
- Whether certain evidence was incorrectly admitted at trial, and if so, whether that error warranted a new trial
- Whether the trial judge erred in directing the jury to scrutinise the evidence of the accused with care, on the basis that the accused were persons of bad character
- Whether the trial judge failed to give adequate or correct directions under section 165 of the Evidence Act 1995 regarding potentially unreliable evidence
- Whether grounds not raised at trial could be relied upon on appeal
Decision
Improperly admitted evidence: The Court accepted that some evidence of little relevance had been incorrectly admitted at trial. However, because no objection had been taken at the time, and because the evidence was of no real moment to the outcome, the Court declined to treat this as a basis for disturbing the convictions.
Jury directions on bad character and scrutiny: The trial judge had directed the jury to scrutinise the evidence of the accused with care, referring to their bad character. The Court of Criminal Appeal found this direction was technically incorrect. However, the Court reasoned that the accused's bad character was obvious to the jury from the circumstances, and the jury would naturally have approached the accused's evidence with appropriate reserve. The judge had also given other balancing directions that ameliorated the effect of the flawed instruction. No objection had been raised to these directions at trial, which further weighed against granting relief on appeal.
Section 165 directions: A direction under section 165 of the Evidence Act 1995 had been sought during the trial regarding the reliability of Haines' evidence and several specific factual gaps. The Court found the judge did in fact address all of the concerns raised, including the absence of blood under the bunk, the non-use of the cell's emergency button, and the lack of any official record of the earlier fight. The victims were not prison informers within the meaning of the relevant provision. After all directions were given, no legal representative sought any further direction. Leave to argue this ground was refused.
Reliance on new grounds: The Court noted that the defence at trial had strategically focused on a single factual question: whether the appellant and his co-accused had entered the cell at all. Several grounds pressed on appeal had not been raised at trial. The Court observed that there had been sound tactical reasons for this approach, and declined to permit the appellant to resile from the way the case had been conducted below.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence refused (not pressed; no submissions made)
Key Takeaways
- A direction to the jury to scrutinise the evidence of accused persons "with care" because of their bad character is technically incorrect, but where that bad character was obvious from the circumstances and balancing directions were given, the error may not be sufficient to vitiate the convictions.
- No objection to jury directions or to the admission of evidence at trial is a significant factor weighing against a ground of appeal succeeding in the Court of Criminal Appeal.
- Under section 165 of the Evidence Act 1995, a warning about potentially unreliable evidence will not be required where victims who knew the accused by sight from prison proximity do not fall within the categories of witnesses, such as informers, to which the section applies.
- In dismissing the appeal, the Court of Criminal Appeal reinforced that an appellant cannot readily reframe the emphasis of a case on appeal when the trial was deliberately conducted on a different basis for sound tactical reasons.
- Incorrectly admitted evidence that is of little moment to the outcome will not, without more, justify appellate intervention, particularly where no objection was raised at the time of admission.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), particularly section 165
- Crimes Act 1900 (NSW)
Cases
- Pollitt v The Queen (1991-1992) 174 CLR 558
- Robinson v The Queen 180 CLR 531
- McAuliffe v The Queen (1995) 183 CLR 108
- R v Tangye (1997) 92 A Crim R 545