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Court of Criminal Appeal 13 November 2003

R v Lewis

[2003] NSWCCA 332

Also reported as 142 A Crim R 254
Theft & property
CRIMINAL LAW AND PROCEDURE JUDGE'S SUMMING UP NO REQUEST MADE FOR DIRECTIONS AT TRIAL WHETHER RULE 4 SHOULD APPLY

Citation: Lewis v R [2003] NSWCCA 332
Court: New South Wales Court of Criminal Appeal
Date: 13 November 2003
Judge(s): Hodgson JA, Grove J, Howie J

Background

The appellant was convicted by a jury in the District Court of breaking and entering the Condobolin RSL Club on 21 September 1997 and stealing approximately $27,598. This was his second trial, the first conviction having been quashed by the Court of Criminal Appeal. He was sentenced to three years' imprisonment with a non-parole period of fourteen months, and did not seek leave to appeal against sentence.

The Crown case was circumstantial, centring on the appellant's former role as Secretary-Manager of the Club and his alleged knowledge of a staff PIN number used to deactivate the security alarm on the night of the theft. The appellant's defence was alibi: he claimed he was staying at a motel in Forbes at the time and had received a large sum of cash from his mother, explaining the $25,336.75 found in his possession the following day.

The trial ran for fifteen days and involved extensive evidence about the Club's security arrangements, the movements of both the appellant and another employee named as the alternative suspect, and the provenance of the cash found in the appellant's vehicle.

  • Whether the trial judge's directions to the jury regarding the appellant's mother's evidence were unbalanced and unfair, such that the trial miscarried.
  • Whether the trial judge erred by failing to direct the jury on the appellant's alibi defence, specifically on the absence of any onus on the appellant to prove it, the effect of finding it reasonably possible, and the fact that rejecting the alibi did not automatically establish guilt.
  • Whether rule 4 of the Criminal Appeal Rules applied to bar the appellant from raising these grounds, given no request for directions had been made at trial.
  • Whether leave should have been granted to argue the grounds notwithstanding the operation of rule 4.

Decision

Howie J (with whom Hodgson JA and Grove J agreed) dismissed the appeal. The court found that both grounds of appeal were subject to rule 4 of the Criminal Appeal Rules because no request had been made to the trial judge for the directions now complained of. Under rule 4, grounds not raised at trial cannot be argued on appeal without leave, and leave requires the appellant to demonstrate that a miscarriage of justice actually occurred.

On the first ground, the court found the trial judge's treatment of the mother's evidence was not unbalanced. The judge had appropriately directed the jury on how to approach the evidence and on the mother's unavailability for cross-examination, and the directions did not undermine the appellant's case.

On the second ground concerning alibi directions, the court acknowledged that alibi directions are commonly given and serve an important protective function. However, the court found no miscarriage of justice on the facts. The jury was properly directed that the Crown bore the burden of proof throughout, and there was no realistic risk the jury misunderstood the position. The case was not one where the absence of specific alibi directions could have caused the jury to reason incorrectly.

The court added pointed criticism of both the preparation of the appeal and the grant of legal aid. Three large transcript folders had been prepared at public expense, yet almost none of the material was referred to during the hearing. Howie J expressed concern that legal aid had been granted for an appeal with no realistic prospect of clearing the rule 4 hurdle, and noted that a large number of appeals to the Court fail on that basis. The court observed that those advising the Legal Aid Commission on prospects of appeal should properly account for rule 4 and the onus it places on appellants.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • Rule 4 of the Criminal Appeal Rules operates as a significant threshold obstacle: where grounds of alleged misdirection are not raised with the trial judge at the conclusion of the summing up, leave is required on appeal, and that leave will only be granted upon a demonstrated miscarriage of justice.
  • A failure to give alibi directions will not automatically constitute a miscarriage of justice where the broader directions on the burden of proof adequately protected the accused's position and no corrective request was made at trial.
  • The Court of Criminal Appeal reaffirmed that trial counsel's failure to seek further directions from a judge who expressly invited such requests weighs heavily against the grant of leave under rule 4.
  • Concerns about the disproportionate use of public resources were explicitly recorded: the court criticised the reproduction of fifteen days of transcript for an appeal raising issues untethered to most of that evidence.
  • In dismissing the appeal, the court signalled that those advising the Legal Aid Commission bear responsibility for properly assessing rule 4 obstacles before recommending that public funds be committed to an appeal with negligible prospects.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules, rule 4

Cases:
- R v Lewis [2001] NSWCCA 345
- R v Johnson (1998) 45 NSWLR 362
- R v King [2000] NSWCCA 507
- R v GJH [2001] NSWCCA 128
- R v Ita [2003] NSWCCA 174
- R v Fowler [2003] NSWCCA 321
- R v Moussa [2001] NSWCCA 427