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Court of Criminal Appeal 21 March 2003

R v White

[2003] NSWCCA 64

Also reported as 140 A Crim R 63
Assault & violenceTheft & propertyFirearms & weapons

Citation: R v White [2003] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 21 March 2003
Judge(s): Giles JA, Dunford J, Smart AJ

Background

The appellant was convicted by a jury in the District Court of armed robbery with a dangerous weapon (a firearm), allegedly committed in company with two others at a St George Bank branch in Lismore. The prosecution alleged he was one of two men who entered the bank, while a third man waited outside as the getaway driver. The appellant was sentenced to six years and six months' imprisonment with a non-parole period of three years and three months.

The Crown's case rested significantly on the evidence of Nathan Kain, the principal armed robber, who gave evidence that the appellant entered the bank with him. The Crown also relied on DNA evidence linking the appellant to a garment worn by the second robber, along with a wider circumstantial case.

After conviction, fresh evidence emerged suggesting the appellant had in fact been the getaway driver, not one of the men who entered the bank. This formed the basis for his appeal, alongside a complaint that the trial judge had mishandled the grant of leave under s 38 of the Evidence Act 1995 to cross-examine Kain as an unfavourable witness.

  • Whether fresh evidence, indicating the appellant was the getaway driver rather than a bank entrant, gave rise to a reasonable possibility of acquittal sufficient to warrant a new trial
  • Whether the trial judge erred in granting leave to examine Kain under s 38 of the Evidence Act 1995 without first properly inquiring into and considering the specific matters on which the Crown wished to cross-examine him
  • Whether the Crown's examination of Kain under s 38 exceeded permissible limits

Decision

On the fresh evidence ground, the Court of Criminal Appeal found that the new evidence, to the effect that the appellant was the getaway driver rather than a participant inside the bank, gave rise to a reasonable possibility that he would have been acquitted. There was no dispute that the evidence was fresh. The sole question was whether it had sufficient weight to justify a new trial, and the Court held it did.

On the s 38 ground, the Court accepted the appellant's contention that the trial judge should have first inquired into and considered the specific matters on which the Crown sought to cross-examine Kain before granting leave. This represented an error in the exercise of the judge's discretion. The correct process under s 38 requires the trial judge to engage with the proposed content of the cross-examination before granting leave, not to grant leave in advance of that inquiry.

However, the Court found that the actual examination which followed did not produce a miscarriage of justice. The questioning was found, on review, to have been permissible and was the kind of questioning that should unarguably have been permitted had the discretion been properly exercised. As a result, the second ground of appeal was not upheld on its own.

Because the fresh evidence ground succeeded, the appellant was entitled to a new trial.

Orders Made

  • Appeal upheld
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Fresh evidence emerging after a criminal conviction will support a new trial where it gives rise to a reasonable possibility that the accused would have been acquitted, even where the evidence does not conclusively establish innocence.
  • Under s 38 of the Evidence Act 1995, a trial judge must inquire into and consider the specific matters on which a party seeks to cross-examine its own witness before granting leave to do so; granting leave without that prior inquiry is an error in the exercise of the discretion.
  • A procedural error in the grant of s 38 leave will not automatically result in a successful appeal. Where the examination that followed was permissible and caused no miscarriage of justice, the error does not warrant quashing the conviction on that ground alone.
  • An appeal may succeed on one ground while failing on others: here, the s 38 procedural complaint was dismissed, but the fresh evidence ground was upheld and alone justified the remedy of a new trial.
  • Where a Crown witness is both the principal perpetrator and a key Crown witness, the procedural steps governing unfavourable witness examination carry particular significance, given the weight the jury is likely to attach to that evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 38, 137, 192

Cases:
- Mickelberg v The Queen (1989) 167 CLR 259
- R v Le (2002) 54 NSWLR 474