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Court of Criminal Appeal 29 July 2003

R v Collisson

[2003] NSWCCA 212

Also reported as (2003) 139 A Crim R 389
Homicide
CRIMINAL LAW APPEAL ON CONVICTION NON REPORTABLE NON DISTRIBUTABLE

Citation: R v Collisson [2003] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 29 July 2003
Judge(s): Tobias JA, James J, Howie J

Background

The appellant was convicted by a jury of murder following a fatal shooting at Greenwich Peninsula in October 2000. The Crown case was that he was the taller of two men who accosted a couple, demanded the victim's wallet, and shot him twice. The appellant and his alleged accomplice, Bradley, were found by police in a nearby reserve approximately two hours after the shooting. Critical physical evidence, including the weapon used, was located in a sports bag linked to both men.

Identity was the central issue at trial. The appellant's defence pointed to Bradley as the actual shooter, relying in part on gunshot residue evidence that returned a positive result for Bradley and only a possible result for the appellant.

Bradley had been charged with concealing a serious crime and had refused to make a statement to either the Crown or the defence. Neither party knew what evidence he might give. The Crown and the appellant jointly applied during trial for Bradley to be required to give evidence under section 128(5) of the Evidence Act 1995 (NSW), which allows a court to compel a witness to answer self-incriminating questions in exchange for a certificate protecting that evidence from later use against the witness. The trial judge, Whealy J, refused the application.

  • Whether the trial judge erred in refusing to make an order under section 128(5) of the Evidence Act requiring Bradley to give evidence on the voir dire (an examination conducted in the jury's absence to test proposed evidence)
  • Whether the trial judge incorrectly applied the "inherently suspect" principle when assessing whether the interests of justice required Bradley to give evidence, given that neither party knew what his evidence would be
  • Whether the trial judge's refusal to adjourn the trial to await resolution of the charges against Bradley constituted an error or resulted in a substantial miscarriage of justice

Decision

The trial judge refused the section 128(5) application on two bases: first, that Bradley's evidence would be inherently unreliable given his status as a co-accused with outstanding charges; and second, that compelling Bradley to give evidence while those charges remained unresolved would cause him unacceptable prejudice. The appellant challenged whether it was appropriate to characterise the evidence as inherently unreliable when no one yet knew what Bradley would say.

The Court of Criminal Appeal accepted, at least implicitly, that there was some force in the appellant's argument that the "inherently suspect" label was premature in the absence of any knowledge of what Bradley's evidence would actually be. However, the Court found it was not necessary to resolve this question conclusively, because the appeal failed on other grounds.

Even setting aside the reliability concern, the Court found that any error in the trial judge's reasoning did not result in a substantial miscarriage of justice. The critical question was whether the appellant would have been better off had the trial been adjourned to allow Bradley's charges to be resolved first. The Court concluded it was not possible to be so satisfied. No one could say what Bradley would have testified to, and the only scenario counsel for the appellant could advance, that Bradley might provide an alibi placing both men away from the scene, was described as entirely speculative and entirely unbelievable.

The Court held that, absent any acceptable basis for concluding the appellant had lost a genuine chance of acquittal, the conviction stood. All three judges agreed the appeal should be dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Under section 128(5) of the Evidence Act 1995 (NSW), a court may compel a witness to give self-incriminating evidence where the interests of justice require it, with the consequence that such evidence cannot later be used against the witness in Australian proceedings.
  • The Court of Criminal Appeal left open whether characterising a prospective witness's untested evidence as "inherently suspect" is a proper basis for refusing a section 128(5) order when neither party has any knowledge of what that evidence would be.
  • In dismissing the appeal, the Court applied the principle that a conviction should only be set aside for a substantial miscarriage of justice where the appellant has lost a chance of acquittal that was fairly open to him.
  • Speculation about what a witness might have said, without any factual foundation, is insufficient to establish that a refusal to adjourn a trial caused prejudice to the accused.
  • Where outstanding charges against a potential witness remain unresolved, the court retains a discretion to consider the prejudice to that witness when deciding whether the interests of justice require them to give evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), sections 128(5), 128(6), 128(7), 165

Cases:
- R v Booth (1982) NSWLR 847
- Jones v Dunkel (1959) 101 CLR 298