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Court of Criminal Appeal 3 October 2002

Regina v Troy Terrence Gibson

[2002] NSWCCA 401

Assault & violence
CRIMINAL LAW PROCEDURE AT TRIAL CRIMINAL LAW CRIMINAL LAW PROCEDURE AT TRIAL DISCUSSION OF RELEVANT PRINCIPLES.

Citation: Regina v Troy Terrence Gibson [2002] NSWCCA 401
Court: NSW Court of Criminal Appeal
Date: 3 October 2002
Judge(s): Wood CJ at CL, Sully J, Howie J

Background

The appellant was convicted by jury in the District Court on two counts: maliciously inflicting grievous bodily harm on one victim (contrary to s 35(b) of the Crimes Act 1900) and assaulting a second victim occasioning actual bodily harm (contrary to s 59). Both offences arose from a violent incident in the early hours of 1 August 1998 at a hotel in Jindabyne, in which the primary victim suffered serious brain damage. The appellant's co-accused, who faced the same charges, was acquitted on all counts.

The Crown case was that the appellant instigated and led a group attack outside the hotel on two victims, having been involved in an altercation inside the hotel earlier that evening. The appellant gave evidence admitting he had punched the primary victim inside the hotel but denied being the aggressor. The sentencing judge imposed a head sentence of four years and six months for the grievous bodily harm count, with a non-parole period of three years, and a fixed term of twelve months for the assault count, partially accumulated.

The appellant challenged both his convictions and his sentences on appeal. The central conviction ground concerned the Crown Prosecutor's decision not to call an eyewitness, Guy Stephens, as part of the Crown case.

  • Whether the Crown Prosecutor's decision not to call Guy Stephens as a witness in the Crown case occasioned a miscarriage of justice, applying the principles in R v Kneebone (1999) 47 NSWLR 450.
  • What principles govern a Crown Prosecutor's duty when deciding whether to call a particular witness.
  • Whether the trial judge erred in admitting photographs depicting the serious physical injuries sustained by the primary victim.
  • Whether the sentences imposed were excessive, including whether the sentencing judge erred in imposing a custodial sentence for the assault on the second victim and in partially accumulating the sentences.

Decision

On the question of the uncalled witness, Sully J undertook a detailed analysis of Guy Stephens' electronically recorded police interview from 24 August 1998 and the circumstances leading to the Crown Prosecutor's decision not to call him at trial. The judgment discussed the applicable duty of a Crown Prosecutor in this context, drawing on authority including R v Kneebone and The Queen v Apostilides. The Court ultimately found that no miscarriage of justice had resulted from the Crown's decision not to call the witness.

On the admission of photographs depicting the victim's injuries, the Court considered the relevant principles governing the admission of potentially prejudicial but probative photographic evidence in cases involving serious physical assault. No error was established in the trial judge's decision to admit those photographs.

On sentence, the Court rejected the submission that imposing any custodial sentence for the assault on the second victim was an error of law. Sully J reasoned that to accept that proposition would signal that a concerted attack on two separate victims attracts no greater punishment than an attack on one, which was plainly unsustainable both legally and as a matter of common sense. The partial accumulation of sentences was also upheld as a fair and sensible approach that balanced the need to punish two distinct offences against the principle of totality. The head sentence of four years and six months was not found to be excessive given the severity of the harm inflicted and a statutory maximum of seven years.

Orders Made

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

Key Takeaways

  • A Crown Prosecutor's decision not to call an available eyewitness does not automatically occasion a miscarriage of justice; the court must examine the specific circumstances, the nature of the witness's evidence, and whether the decision was consistent with the prosecutor's duty, applying principles from Apostilides and Kneebone.
  • Where a miscarriage of justice is alleged on the basis of an uncalled witness, the appellate court will scrutinise the content of that witness's available statements and the history of the prosecutor's engagement with that witness before determining whether any unfairness resulted.
  • Upholding the partial accumulation of sentences, the Court of Criminal Appeal confirmed that concurrent sentences are not automatically required simply because two separate offences arose from the same incident; distinct attacks on distinct victims may warrant at least partial accumulation, subject to the totality principle.
  • In dismissing the sentence appeal, the Court affirmed that serious, lasting consequences to a victim, including permanent brain damage and loss of independent function, are directly relevant to the assessment of whether a custodial sentence is excessive.
  • The admission of photographs depicting a victim's injuries in a serious assault trial is governed by established principles weighing probative value against potential prejudice; no error in admitting such photographs was established on the facts of this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(b), 59
- Evidence Act 1995 (NSW)

Cases:
- The Queen v Apostilides (1984) CLR 563
- R v Kneebone (1999) 47 NSWLR 450
- Randall v The Queen [2002] 1 WLR 2237
- Wilde v The Queen (1988) 164 CLR
- Festa v The Queen [2001] HCA 72 (13 December 2001)