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Court of Criminal Appeal 25 February 2003

Regina v Bradley Scott Burns

[2003] NSWCCA 30

Also reported as 137 A Crim R 557
Assault & violenceTheft & propertyPublic order & justice offences

Citation: Regina v Bradley Scott Burns [2003] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 25 February 2003
Judges: Hodgson JA; Sully J; Buddin J

Background

The appellant was convicted of armed robbery with an offensive weapon (a knife) following a trial in the District Court at Bathurst before Judge Nield and a jury. The offence arose from a robbery at a small corner store in Orange in November 2000, in which the appellant was alleged to have threatened the store owner at knifepoint and taken between $100 and $150 from the till. He was sentenced to seven years' imprisonment with a non-parole period of four and a half years.

The Crown case rested on two main bodies of evidence. First, there was description evidence from witnesses at the scene, which the court characterised as weak. Second, and crucially, two witnesses named Borton and Knox gave evidence that the appellant had returned to a shared residence shortly after the robbery and made admissions about having "done a shop over." Borton's evidence was accepted by all parties on appeal as essential to the Crown case.

The appellant challenged his conviction on eight grounds, and also sought leave to appeal against sentence. Central to the successful ground of appeal was the trial judge's refusal to allow defence counsel to cross-examine Borton about his prior convictions for dishonesty offences.

  • Whether the trial judge erred in failing to adequately sum up the appellant's case and the defence arguments to the jury
  • Whether adequate warnings were given about the dangers of relying on evidence of admissions
  • Whether the identification evidence direction was properly confined
  • Whether a statement the appellant made to a co-offender was properly left to the jury as an admission
  • Whether the trial judge's direction on the appellant's silence and decision not to give evidence was adequate
  • Whether defence counsel's failure to cross-examine Borton on an expectation of more favourable treatment constituted a miscarriage of justice
  • Whether defence counsel's failure to cross-examine Knox on her criminal record constituted a miscarriage of justice
  • Whether the trial judge erred in refusing to allow cross-examination of Borton on his prior convictions for dishonesty, contrary to sections 102 and 103 of the Evidence Act 1995 (NSW)

Decision

Grounds 1 through 7 were unanimously dismissed. The Court found no reversible error in the trial judge's directions on admissions, identification, the appellant's silence, or the appellant's case theory. The grounds relating to counsel's conduct in failing to cross-examine Knox and Borton about certain matters were also rejected.

Ground 8, however, divided the bench. Sully J, in a substantial judgment, concluded that the trial judge had not erred in ruling against cross-examination of Borton on his dishonesty convictions, reasoning that those convictions would not have added substantially to the discredit already established through other cross-examination. Buddin J and Hodgson JA disagreed.

Buddin J, with Hodgson JA in agreement, found that Borton's evidence was crucial to the Crown case and that his credibility was squarely in issue. Cross-examination about convictions for dishonesty offences was capable of affecting the jury's assessment of that credibility in a material way. Applying the test under section 103 of the Evidence Act, evidence relevant only to credibility is admissible in cross-examination if it has "substantial probative value." The court found that threshold was met, particularly in circumstances where Borton was a drug user who had allegedly been pressured into making a statement against the appellant, and the jury had no knowledge of his dishonesty convictions.

Buddin J concluded that, as a matter of reasonable possibility, the jury may have assessed Borton's evidence differently had that material been before them. This represented a miscarriage of justice within the meaning of the principle in Mraz v The Queen, in that the appellant may have lost a fairly open chance of acquittal. There was no basis for applying the proviso in section 6(1) of the Criminal Appeal Act 1912 to save the conviction.

Orders Made

The orders proposed by Buddin J (and agreed to by Hodgson JA) were:

  • Appeal against conviction allowed
  • Conviction and sentence quashed
  • New trial ordered

Note: Sully J's proposed orders (dismissing the conviction appeal, granting leave on sentence but dismissing that appeal also) did not carry a majority and were not the final orders of the Court.

Key Takeaways

  • Under sections 102 and 103 of the Evidence Act 1995 (NSW), evidence relevant only to a witness's credibility is ordinarily inadmissible, but this rule does not apply to cross-examination where the evidence has "substantial probative value." The word "substantial" requires genuine weight, but does not demand that the evidence be decisive.
  • Where a key Crown witness's credibility is the central issue, prior convictions for dishonesty can carry substantial probative value even if some discrediting material has already emerged in cross-examination. The existence of earlier impeachment does not automatically render further impeachment insufficiently probative.
  • A trial judge's refusal to permit such cross-examination can constitute a miscarriage of justice where there is a reasonable possibility that the jury would have reached a different verdict with that evidence available.
  • The Court of Criminal Appeal confirmed the test from Mraz v The Queen: a miscarriage of justice arises where an appellant "may thereby have lost a chance which was fairly open to him of being acquitted." This formulation does not require certainty that the outcome would have differed.
  • Even where an evidentiary issue is raised belatedly and diffidently at trial, a properly arguable ruling by the trial judge remains reviewable on appeal, and the manner in which the point was taken below does not preclude the appellant from relying on it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Evidence Act 1995 (NSW), ss 55(2), 102, 103 (credibility rule and cross-examination exception)
- Criminal Appeal Act 1912 (NSW), s 6(1) (proviso)

Cases
- Mraz v The Queen (1955) 93 CLR 493
- R v Beattie (1996) 40 NSWLR 155
- Azzopardi v The Queen (2001) 205 CLR 50
- Stanoevski v The Queen (2001) 202 CLR 115
- Palmer v The Queen (1998) 193 CLR 1
- Reg. v Zorad (1990) 19 NSWLR 91
- V (1998) 100 A Crim R 448
- Fernando (1992) 72 A Crim R 58; Fernando (2002) NSWCCA 28
- R v Hasenkamp, CCA unreported, 24 February 1998
- R v McGoldrick, CCA unreported, 28 April 1998
- R v RPS, CCA unreported, 13 August 1997