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Court of Criminal Appeal 26 February 2004

Regina v Ambrosi

[2004] NSWCCA 23

Also reported as 144 A Crim R 67
Assault & violenceTheft & propertyPublic order & justice offences
ACCOMPLICES WHEN THEY SHOULD GIVE EVIDENCE ACCOMPLICES WARNING SCOPE OF RE EXAMINATION

Citation: Regina v Ambrosi [2004] NSWCCA 23
Court: New South Wales Court of Criminal Appeal
Date: 26 February 2004
Judge(s): Levine J, O'Keefe J, Whealy J

Background

The appellant was convicted in the District Court of assault with intent to rob while armed with a knife, an offence carrying a maximum penalty of 20 years imprisonment. The incident occurred at a convenience store in Smithfield in August 2001, where the appellant and a co-offender, Joanne Punzo, entered the shop and he demanded money while holding a knife.

The pair fled when the store owner's husband confronted them. They were stopped later that afternoon in a vehicle, at which point the appellant gave police a false name and provided a false alibi that was subsequently disproven at trial. The co-offender, Ms Punzo, eventually cooperated with police, pleaded guilty at an early stage, and gave evidence for the Crown at the appellant's trial.

The appellant was sentenced to six years and six months imprisonment with a non-parole period of four years. He appealed against both his conviction and the severity of his sentence. Ms Punzo, by contrast, received a two-year sentence, wholly suspended, after her cooperation and early guilty plea were taken into account.

  • Whether the trial judge erred in admitting the accomplice's evidence before she had been sentenced for her own involvement in the offence
  • Whether the accomplice warning given to the jury was adequate
  • Whether the scope of re-examination of the accomplice witness was properly limited
  • Whether prior consistent statements were improperly admitted
  • Whether the trial judge's directions on lies as evidence of consciousness of guilt (the so-called Edwards direction) were adequate
  • Whether the Henry guideline judgment was correctly applied in sentencing
  • Whether the principle of sentencing parity required the appellant's sentence to be reduced to reflect the much more lenient sentence received by Ms Punzo

Decision

Accomplice giving evidence before sentencing: The Court acknowledged the well-established practice, rooted in authorities including R v Booth, that accomplices should ordinarily be sentenced before being called to give evidence. The rationale is that an unsentenced accomplice retains a personal interest in giving testimony favourable to the prosecution. However, the Court found that any departure from this practice in the circumstances of this case did not constitute reversible error. The trial judge had given the jury an appropriate accomplice warning, directing them to scrutinise Ms Punzo's evidence with particular care given her personal interest in the outcome.

Accomplice warning, re-examination, and prior consistent statements: The Court considered whether the accomplice warning was sufficient and whether the trial judge had erred in the conduct of Ms Punzo's re-examination and in the admission of prior consistent statements. The Court was satisfied that no error warranting intervention had been established on these grounds.

Lies as consciousness of guilt: The Court examined the directions given in relation to the appellant's false alibi and the false name he provided to police. Applying the principles from Edwards v The Queen, the Court found that the directions adequately explained to the jury how they could, and could not, use those lies as evidence going to consciousness of guilt. No error was established.

Sentencing parity: The Court accepted that the sentences imposed on the appellant and Ms Punzo were markedly different, with Ms Punzo's sentence described as very lenient and the appellant's as severe. However, the Court held that the differences between their circumstances were so significant, including Ms Punzo's early guilty plea, cooperation with police, and other subjective factors, that the disparity did not give rise to a legitimate sense of grievance on the appellant's part. Applying the reasoning in Postiglione v The Queen and R v Rutter, the Court held that equal justice requires like cases to be treated alike but permits different sentences where the offenders' circumstances and culpability genuinely differ.

Orders Made

  • The appeal against conviction is dismissed.
  • Leave to appeal against sentence is granted.
  • The appeal against sentence is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that while it is well-recognised practice for accomplices to be sentenced before they give evidence for the Crown, a departure from that practice does not automatically result in reversible error, provided the jury is properly warned about the accomplice's potential interest in the outcome.
  • A proper accomplice warning, directing the jury to approach the accomplice's evidence with particular scrutiny, remains central to ensuring the fairness of trials where co-offenders give Crown evidence.
  • Under the principles established in Edwards v The Queen, directions on lies as consciousness of guilt must carefully explain both the permissible use and the limitations of such reasoning; the Court found no error in the directions given here.
  • Sentencing parity does not require identical sentences for co-offenders where there are substantial differences in culpability, cooperation, plea, and personal circumstances. As Gaudron and Dawson JJ stated in Postiglione, equal justice permits different sentences where relevant differences exist.
  • In dismissing the sentence appeal, the Court applied the principle from R v Rutter that a co-offender should not receive unmerited leniency merely because another offender was dealt with leniently for reasons entirely personal to that other offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- R v Booth (1982) 2 NSWLR 847
- R v Sullivan [2003] NSWCCA 100
- R v Stewart (2001) 52 NSWLR 301
- R v Yammine and Chami [2002] NSWCCA 289
- R v Esposito (1998) 45 NSWLR 442
- Edwards v The Queen (1993) 178 CLR 193
- R v Dellapratona (1993) 31 NSWLR 123
- R v Henry & Ors (1999) 46 NSWLR 346
- R v Zamagias [2002] NSWCCA 17
- R v Rutter [2003] NSWCCA 306
- Postiglione v The Queen (1996) 189 CLR 295
- The Queen v Lucas [1981] QB 720