Citation: Regina v David William Telfer [2004] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 26 February 2004
Judge(s): Grove J, Sully J, Bell J (Bell J delivered the lead judgment; Grove and Sully JJ agreed)
Background
The appellant was convicted in the District Court of detaining a woman (the complainant) with intent to hold her for the advantage of a third party, Graeme Hartland, contrary to s 90A of the Crimes Act 1900. The offence occurred on 7 November 1998 in Bathurst. Hartland had previously pleaded guilty to his own role in the same detention.
The Crown's case was that the appellant drove the complainant, under the pretence of helping her buy drugs, while Hartland concealed himself in the boot. Once underway, Hartland emerged and confronted the complainant about money stolen from his wallet. The appellant drove the group to an isolated location, where violence was used to extract information about the missing cash. The appellant denied any prior agreement with Hartland and maintained he was unaware Hartland had hidden in the vehicle.
The central factual issue at trial was whether the appellant was a party to a joint criminal enterprise with Hartland to detain the complainant. He was convicted on that count and sentenced to four years' imprisonment with a non-parole period of one year and ten months. He appealed on a single ground: that the trial judge misdirected the jury on the evidence of his good character.
Legal Issues
- Whether the trial judge's directions to the jury about the appellant's good character evidence (specifically, the absence of prior convictions for a serious offence) were adequate or constituted a misdirection.
- Whether any inadequacy in those directions, if established, was sufficient to warrant the conviction being set aside.
Decision
At trial, the appellant sought to lead evidence that as at the date of the offence he had no prior convictions for a serious offence. He tendered this as bearing on the probability of his having committed the offence, not on his credibility as a witness. The trial judge gave directions requiring the jury to take this character evidence into account when assessing whether the Crown had proved guilt beyond reasonable doubt.
On appeal, the appellant argued that the directions were inadequate because they may have conveyed to the jury that, if satisfied of guilt on all the evidence, they should convict regardless of the character evidence. Bell J considered the directions carefully, including a final sentence that referred to character evidence not being capable of "prevailing over" a finding of guilt. Her Honour acknowledged that preferable formulations had been articulated in earlier authority, including the language suggested by King CJ in Trimboli v R (1979).
However, Bell J concluded that the directions, read as a whole, were adequate. On three separate occasions the judge had instructed the jury to take the character evidence into account when considering whether the Crown had proved guilt. The final sentence was expressed in the context of "your consideration of all of the evidence," and it would have been strained to read the directions as excluding character evidence from that overall consideration.
The appeal was dismissed by unanimous agreement of the three-judge bench.
Orders Made
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that a direction on good character evidence is adequate where, read as a whole, it clearly instructs the jury to take that evidence into account in assessing whether guilt has been proved beyond reasonable doubt.
- Where a defendant leads evidence of good character in a particular respect (here, absence of prior serious convictions), the purpose of that evidence is to bear on the probability of guilt, not merely on credibility, and directions should reflect that distinction.
- A technically imperfect formulation in a jury direction does not constitute a ground for setting aside a conviction where the directions, taken as a whole, conveyed the correct legal position to the jury.
- Under Part 3.8 of the Evidence Act 1995, once a defendant leads good character evidence in a particular respect, the Crown's right of rebuttal is confined to that same respect, a limitation the court noted was not fully addressed by reference to the Act during the trial.
- In dismissing the appeal, the court reinforced that jury directions must be assessed in their entirety rather than by isolating individual sentences that might, in isolation, be open to a different construction.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 90A
- Evidence Act 1995 (NSW), Part 3.8 (ss 110, 112)
Cases:
- Melbourne v The Queen [1999] HCA 32; 198 CLR 1
- TKWJ v The Queen [2002] HCA 46; 76 ALJR 1579
- Trimboli v R (1979) 1 A Crim R 73
- R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
- R v Gillard (unreported), NSWCCA, 15 July 1991
- R v Robinson [1999] NSWCCA 172