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11
Court of Criminal Appeal 7 November 2003

Regina v Michael TAYLOR

[2003] NSWCCA 194

Homicide
EVIDENCE UNFAVOURABLE WITNESS DEFENCE AMENDMENT ACT 2001. WHETHER RE

Citation: Regina v Michael Taylor [2003] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 7 November 2003
Judge(s): Spigelman CJ, Bell J, Miles AJ

Background

The appellant was convicted by jury of the murder of a man shot inside a residential premises at Prospect in the early hours of 25 July 2000. The victim had recently begun seeing the appellant's former partner, and the appellant believed she had ended their relationship to be with him. The appellant had attended the premises uninvited late that night and was present when the deceased was shot.

The key witness at trial was the appellant's former partner. Her recollection at trial was poor, and the Crown sought leave to question her as an unfavourable witness on the basis of statements she had made to police shortly after the shooting. Those statements were far more detailed and incriminating than her trial evidence.

The appellant was sentenced to 18 years' imprisonment with a non-parole period of 14 years, backdated to reflect pre-sentence custody. He appealed against both conviction and sentence.

  • Whether the trial judge correctly granted the Crown leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine the former partner as an unfavourable witness, given she claimed not to recall the circumstances of making her police statement
  • Whether a solicitor's file note recording client instructions was admissible as a business record under s 69(2) of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in exercising the s 135 discretion to exclude evidence tendered on behalf of the accused
  • When proceedings for an offence are "instituted" for the purposes of the Crimes Amendment Self-Defence Act 2001 (NSW), affecting which version of the self-defence law applied at trial
  • Whether re-arraignment on an indictment in all material respects the same as an earlier indictment amounted to a substitution of the indictment under s 20 of the Criminal Procedure Act 1986 (NSW)
  • Whether the verdict was unreasonable and unsupported by the evidence
  • Whether the sentence imposed was excessive

Decision

Unfavourable witness leave under s 38
The Court upheld the trial judge's grant of leave to the Crown to question the former partner as though cross-examining her. A witness who gives evidence inconsistent with a prior statement, or who cannot recall the circumstances of making that statement, may qualify as unfavourable within the meaning of s 38. The witness's claim of poor memory did not preclude the grant of leave.

Business records and the s 135 exclusionary discretion
The Court considered the admissibility of a solicitor's file note recording client instructions as a business record under s 69(2). The judgment also addressed the trial judge's exercise of the s 135 discretion. Under s 135, a court may refuse to admit evidence if its probative value is substantially outweighed by the danger of unfair prejudice or misleading the jury. The Court examined whether that discretion was properly applied to evidence tendered by the defence, confirming that the discretion is available in relation to defence evidence in criminal proceedings, not only prosecution evidence.

Self-defence transition provisions and re-arraignment
The Court addressed when proceedings are "instituted" for the purposes of the Crimes Amendment Self-Defence Act 2001, which altered the law of self-defence. It also considered whether re-arraignment on a materially identical indictment constitutes a substitution of the indictment under s 20 of the Criminal Procedure Act 1986. These questions were relevant to determining which version of the self-defence law governed the trial.

Reasonableness of verdict and sentence
The Court found no basis to set aside the conviction as unreasonable. On sentence, the trial judge had found the appellant to be a young man of good character with no relevant criminal history, but noted limited remorse and an absence of evidence that he had taken responsibility for the killing. The Court found no error in the imposition of an 18-year head sentence with a 14-year non-parole period, including the modest uplift above the statutory proportional non-parole period.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but the sentence appeal dismissed

Key Takeaways

  • Section 38 of the Evidence Act 1995 (NSW) may support a grant of leave to cross-examine a witness as unfavourable where that witness claims not to recall the circumstances of making an earlier statement to police, not only where the witness gives directly contradictory evidence.
  • A solicitor's file note recording client instructions may be capable of admission as a business record under s 69(2) of the Evidence Act 1995 (NSW), subject to the satisfaction of the relevant conditions.
  • The s 135 discretion to exclude evidence on grounds of unfair prejudice applies to evidence tendered by an accused in criminal proceedings, not solely to prosecution evidence.
  • In dismissing both appeals, the Court of Criminal Appeal confirmed that a modest uplift above the non-parole period produced by the statutory proportion under s 44(2) of the Sentencing Procedure Act is open to a sentencing judge where the nature of the crime warrants it.
  • The question of when proceedings are "instituted" for the purposes of transitional self-defence legislation, and whether re-arraignment on a materially identical indictment amounts to substitution under s 20 of the Criminal Procedure Act 1986, are matters of significance in determining which version of the applicable law governs a trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 38, 69(2), 135
- Crimes Amendment Self-Defence Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW), s 20
- Crimes Act 1900 (NSW)
- Criminal Appeal Rules 1952
- Criminal Legislation Amendment (Sentencing) Act 1999 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)

Cases
- Adam v The Queen (2001) 207 CLR 96
- M v The Queen (1984) 181 CLR 487
- Mackay v The Queen (1977) 136 CLR 465
- Papakosmas v The Queen (1999) 196 CLR 297
- Power v The Queen (1973) 131 CLR 623
- Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
- Regina v Esposito (1998) 45 NSWLR 442
- Regina v Glasby (2000) 115 A Crim R 465
- Regina v Kneebone [1999] 47 NSWLR 450
- Regina v Simpson [2001] NSWCCA 534
- Regina v Souleyman (1996) 40 NSWLR 712
- R v Sepulveda [2003] NSWCCA 131
- R v Howard (1992) 29 NSWLR 242
- R v Lockyer (1996) 89 A Crim R 547
- Regina v Fowler [2000] NSWCCA 142
- Regina v Lozano (unreported, NSWCCA, 10 June 1997)
- Regina v Yates [2002] NSWCCA 520