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Court of Criminal Appeal 6 September 2002

REGINA v. VINCENT

[2002] NSWCCA 369

Also reported as (2002) 133 A Crim R 206
Assault & violenceTheft & property
CRIMINAL LAW EVIDENCE HEARSAY WHETHER ADMISSIBLE WHETHER UNRELIABILITY WARNING REQUIRED LIES

Citation: [2002] NSWCCA 369; (2002) 133 A Crim R 206
Court: NSW Court of Criminal Appeal
Date: 6 September 2002
Judge(s): Hodgson JA; Simpson J; Smart AJ

Background

The appellant was convicted in the District Court of robbery with corporal violence following a trial before Dodd DCJ and a jury. The offence involved a robbery at a chemist shop in Bellevue Hill in May 2001, during which two men stole over $500 and used violence. The sole issue at trial was identification: whether the appellant was one of the two men involved.

A key piece of identification evidence came from an unidentified woman who approached the robbery victim outside the shop shortly after the offence, told him she had seen a red car and provided its registration number. That woman was never identified or located. Police later stopped a red Holden Commodore bearing that registration number, and the appellant was arrested as its driver.

The appellant gave evidence denying involvement, claiming he had not left home until around noon and had taken the car with a friend intending to strip its interior. He was convicted and sentenced to six years' imprisonment with a three-year non-parole period, to be served following a concurrent sentence for attempting to dispose of stolen property.

  • Whether the hearsay evidence of the unidentified woman's statement about the car registration was admissible under the Evidence Act 1995 (ss 59, 62, 65)
  • Whether the trial judge was required to warn the jury about the potential unreliability of that hearsay evidence under s 165 of the Evidence Act
  • Whether the trial judge's directions to the jury on the appellant's lies were adequate
  • Whether the conviction was unreasonable or unsupported by the evidence
  • Whether the sentences imposed were excessive

Decision

Admissibility of hearsay. The Court considered ss 59, 62 and 65 of the Evidence Act 1995. The unidentified woman's statement was a previous representation made by a person unavailable to give evidence. The Court found the statement was admissible under s 65(2)(b): it was made shortly after the robbery occurred and in circumstances making fabrication unlikely. Hodgson JA concluded the trial judge did not err in admitting it.

Unreliability warning. The appellant argued the trial judge was required under s 165 to warn the jury that the hearsay evidence might be unreliable. The Court rejected this ground, finding no error in the trial judge's approach to the evidence and the directions given to the jury about it.

Lies directions. The appellant challenged the adequacy of the trial judge's directions concerning the jury's use of the appellant's lies. The Court found no material error in those directions sufficient to warrant overturning the conviction.

Unreasonable verdict and sentence. The Court found the conviction was supported by the evidence and was not unreasonable. On sentence, the Court rejected the submission that the trial judge had penalised the appellant for pleading not guilty, finding instead that the judge had simply noted the appellant could not claim the leniency available to those who plead guilty and show remorse. The Court also found the trial judge had not improperly equated the appellant's brain injury with drug use, and had taken it into account appropriately. No error was established in the sentencing exercise, and the sentences were within the proper range of discretion.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence refused.

Key Takeaways

  • A previous representation by an unidentified person unavailable to give evidence may be admissible under s 65(2)(b) of the Evidence Act 1995 where it was made shortly after the relevant events in circumstances making fabrication unlikely.
  • The Court of Criminal Appeal confirmed that failing to give a s 165 unreliability warning does not automatically constitute reversible error; the adequacy of the directions must be assessed in context.
  • Where a trial judge notes the absence of a guilty plea and remorse without increasing the sentence on that basis, no error arises from that observation in the sentencing remarks.
  • Physical or mental disability, including brain injury, can be a mitigating factor in sentencing as it may explain vulnerability to offending and render imprisonment more onerous, but it does not excuse the commission of offences.
  • No error was established in the trial judge's lies direction, confirming that challenges to such directions require demonstration of real, material misdirection rather than mere imperfection in form.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 59, 62, 65, 165

Cases:
- Bromley v The Queen (1986) 161 CLR 315
- Champion (1992) 64 A Crim R 244
- Edwards v The Queen (1997) 178 CLR 193
- House v The King (1936) 55 CLR 499
- M v The Queen (1993) 181 CLR 487
- Osland v The Queen (1998) 197 CLR 316
- R v Baartman [2000] NSWCCA 298
- R v Fahda [1999] NSWCCA 267
- R v Henry (1999) 49 NSWLR 346
- R v Hodge [2002] NSWCCA 10
- R v Nemeth [2002] NSWCCA 281
- R v Oveido-Portela NSWCCA 17/12/93
- R v Smith (1987) 44 SASR 587
- R v Stewart (2001) 52 NSWLR 301
- R v TJF (2001) 120 A Crim R 209
- Zoneff v The Queen (2000) 200 CLR 234