Citation: Regina v Saltan [2002] NSWCCA 423
Court: NSW Court of Criminal Appeal
Date: 30 September 2002
Judge(s): Spigelman CJ, Howie J, Smart AJ
Background
The appellant was convicted in the District Court of larceny of a motor vehicle and robbery with corporal violence and wounding, following a 1997 armed robbery at a pawnbroking shop in Leichhardt. Three men entered the shop and the fourth, the appellant, waited in a stolen car outside. During the robbery, one of the men used a knife to wound both shop owners, one severely.
The Crown's case was that the appellant organised the robbery, selected the target, supplied the knife, and drove the getaway car. The appellant maintained he was an innocent passenger who had no prior knowledge of any planned robbery.
Two co-participants had each given police statements incriminating the appellant. When called as Crown witnesses at trial, however, both resiled from those statements and gave evidence that exculpated the appellant. The trial judge declared them hostile witnesses, granted leave to cross-examine them under s 38 of the Evidence Act 1995, and admitted their original police statements.
Legal Issues
- Whether the trial judge erred in directing the jury on unreliable evidence under s 165 of the Evidence Act 1995, specifically by repeatedly referring to the two witnesses as "accomplices" and by framing the jury's task as a choice between the witnesses' prior statements and their sworn trial evidence.
- Whether the resulting verdict was unsafe and unsatisfactory and could not be supported having regard to the evidence.
Decision
On the first ground, the Court acknowledged that the term "accomplice" was once common currency in jury directions but noted that such matters are now subsumed within the general unreliable evidence framework under s 165 of the Evidence Act. The appellant argued that using accomplice language was misleading here because the central question was precisely whether the appellant was himself an accomplice. The Court found that, assessed in full context, the summing up was not erroneous. The jury was not confined to a binary choice between the prior statements and the in-court evidence but was directed to assess the whole of the evidence.
The Court also found that the trial judge was not required to direct the jury that the witnesses' police statements were equally unreliable as their sworn testimony. The statements had been properly tendered and, once the jury rejected the witnesses' denials, those statements were entitled to substantial weight.
On the unsafe and unsatisfactory verdict ground, the Court rejected the submission that the prior statements deserved only minimal weight because the witnesses had later denied them. Assessing the credibility of recanting witnesses is quintessentially a jury function. The Court also noted that significant circumstantial evidence independently supported conviction: an independent witness placed the appellant in the driver's seat; the car was driven away at speed through a red light; and the appellant was found on the same bus as the co-offenders, with one of them having purchased all four tickets.
The Court found no miscarriage of justice and described the case against the appellant as a strong one.
Orders Made
- The appeal was dismissed.
Key Takeaways
- Under s 165 of the Evidence Act 1995, the trial judge's use of the word "accomplice" in jury directions is not automatically erroneous, provided the summing up as a whole correctly identifies the unreliability issues and directs the jury to assess all the evidence.
- Where witnesses who participated in a crime resile from prior statements inculpating an accused, their recantation does not entitle those original statements to only minimal weight. If the jury rejects the denials, the prior statements can carry substantial evidentiary weight.
- Resolving conflicts between a witness's prior inconsistent statements and sworn trial evidence is a question for the jury and does not, of itself, render a verdict unsafe or unsatisfactory.
- In dismissing the appeal, the Court confirmed that strong circumstantial evidence independent of the recanting witnesses can reinforce a conviction and may, on its own, have been sufficient to support the verdict.
- No error was established in the trial judge's handling of hostile witnesses who had been cross-examined on their prior statements after resiling from them at trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38, 165
- Crimes Act 1900 (NSW), ss 96, 117, 154A(1)(b)
Cases:
- R v Stewart (2001) 52 NSWLR 301