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Court of Criminal Appeal 11 April 2003

R. v. Sullivan

[2003] NSWCCA 100

Theft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL LIABILIY OF THAT PERSON TO BE RE SENTENCED WHETHER EXTENT OF DISCOUNT ADMISSIBLE WHETHER DISCOUNT AND LIABILITY TO BE RE

Citation: R v Sullivan [2003] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 11 April 2003
Judge(s): Hodgson JA; Buddin J; Smart AJ

Background

The appellant was convicted in the District Court at Gosford on six counts of armed robbery and one count of break and enter following a jury trial before Coleman DCJ. He had separately pleaded guilty to a further armed robbery charge. The overall sentence imposed was 14 years' imprisonment with a non-parole period of 10 years.

The prosecution case depended heavily on the evidence of Jason Evans, a co-offender who had pleaded guilty to many of the same offences and received a discounted sentence in exchange for agreeing to give evidence against the appellant. Evans admitted during the trial that he had lied repeatedly to police and had falsely implicated the appellant's entirely innocent son in the robberies.

The appellant challenged his convictions on appeal, arguing principally that the jury had not been given adequate information about the extent of Evans's sentence discount, or about the risk that Evans could be re-sentenced if he failed to honour his undertaking to give evidence. The appellant also challenged comments made by the Crown prosecutor and repeated by the trial judge, suggesting Evans had an interest in giving evidence favourable to the Crown.

  • Whether the full extent of the sentence discount given to Evans was admissible and should have been led by the Crown in its case in chief.
  • Whether Evans's ongoing liability to be re-sentenced, if he did not give the evidence he had promised, should also have been disclosed to the jury.
  • Whether the warning given under s 165 of the Evidence Act 1995 about the dangers of relying on accomplice evidence was sufficient in the circumstances.
  • Whether the Crown prosecutor's comment (echoed by the trial judge) that Evans had an interest in giving certain evidence constituted a miscarriage of justice, notwithstanding that no objection was taken at trial to either remark.
  • Whether these failures, individually or collectively, resulted in a miscarriage of justice warranting a new trial.

Decision

The Court allowed the appeal and ordered a new trial. The central difficulty was that the jury heard only a partial and incomplete picture of Evans's incentive to give evidence favourable to the Crown. Cross-examination established that Evans had received "a substantial reduction" in his sentence, but the precise discount was not placed before the jury. The objection taken at trial had resulted in the question being withdrawn, leaving the jury without figures.

The Court held that the full extent of the discount, including any liability Evans faced to lose that discount and serve a longer sentence if he reneged on his undertaking, was directly relevant to the jury's assessment of his reliability as a witness. Withholding that detail stripped the jury of context that would have brought home the real nature and magnitude of Evans's incentive to maintain his account, whether true or false.

The Court distinguished its earlier decision in R v Privett, where non-custodial sentences in an unusual deal had been found insufficiently relevant to require detailed disclosure. The Court clarified that Privett had no application where an accomplice had received a substantial reduction in a custodial sentence. In that situation, the difference between the discounted and undiscounted terms, and the risk of losing the discount, is precisely the kind of concrete detail a jury needs to evaluate the witness's credibility.

On the s 165 warning, the Court found it inadequate given the depth of the deficiencies in the information before the jury. The combination of an insufficient warning, incomplete disclosure of the discount, and the Crown prosecutor's comment (reiterated by the trial judge) that Evans had an interest in giving certain evidence produced a cumulative miscarriage of justice. Although no objection had been taken at trial to these matters, the Court was satisfied that the failures were sufficiently serious to warrant intervention on appeal.

Orders Made

  • Appeal against conviction allowed.
  • New trial ordered in respect of count 1 and counts 3 to 7.

Key Takeaways

  • Where an accomplice or cooperating witness has received a discounted custodial sentence in exchange for giving evidence, the full extent of that discount and any risk of losing it must be placed before the jury, not merely a general acknowledgment that a reduction was obtained.
  • A generic warning under s 165 of the Evidence Act 1995 may be insufficient where the jury has been denied material details about a key witness's incentive structure; the adequacy of the warning must be assessed against the actual state of the evidence.
  • Distinguishing R v Privett, the Court of Criminal Appeal confirmed that the Privett principle (which permitted withholding fine sentencing details in a case involving only non-custodial penalties in an unusual deal) does not extend to cases where a significant reduction in actual imprisonment is at stake.
  • Failure to object at trial does not automatically foreclose a miscarriage of justice argument on appeal; where the deficiencies are serious enough, the appellate court retains the power to intervene.
  • Prosecutorial and judicial comments suggesting that a witness "had an interest" in giving particular evidence can compound other trial irregularities, and their cumulative effect may tip the balance toward a finding of miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 165

Cases Cited
- R v Privett [2001] NSWCCA 518
- R v Stewart (2001) 52 NSWLR 301
- R v Yammine [2002] NSWCCA 289
- R v Chen [2002] NSWCCA 174
- Domican v The Queen (1992) 173 CLR 555
- Robinson v The Queen (1991) 180 CLR 531
- Whitehorn v The Queen (1983) 152 CLR 657
- Davies v Director of Public Prosecutions [1954] AC 378
- Grey v The Queen (2001) 184 ALR 593
- TKWJ v The Queen [2002] HCA 46
- Conway & Anor v The Queen (2000) 98 FCR 204
- Stafford v The Queen (1993) 67 ALJR 510
- Ramey v The Queen (1994) 68 ALJR 917
- R v Chai (1992) 27 NSWLR 153
- R v Checconi (1988) 34 ACrimR 160
- R v Booth [1982] 2 NSWLR 847
- Booth (1983) 8 ACrimR 81
- Ellem [No 2] (1994) 75 ACrimR 370
- Asquith (1994) 72 ACrimR 250
- Robinson (1995) 80 ACrimR 358
- Gonzales-Betes [2001] NSWCCA 226
- R v Button [1991] 1 QdR 552
- R v Booty NSWCCA 19/12/94