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Court of Criminal Appeal 13 September 2004

Regina v Campbell

[2004] NSWCCA 314

Theft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SPECIAL VERDICT OF LARCENY OR RECEIVING JURY UNANIMITY REQUIRED

Citation: Regina v Campbell [2004] NSWCCA 314
Court: NSW Court of Criminal Appeal
Date: 13 September 2004
Judges: Grove J (with Simpson J and Shaw J agreeing)

Background

The appellant was tried in the District Court on ten counts relating to the theft or receiving of five motor vehicles, including three Holden sedans, a white Porsche, and a black Porsche. Key prosecution witnesses were three co-offenders (the Walters brothers and Jared Scott) who had themselves pleaded guilty to numerous vehicle theft and receiving offences. Each had received substantially reduced sentences in exchange for their cooperation in prosecuting the appellant.

The appellant pleaded not guilty to counts one through nine at arraignment, but offered a guilty plea to count ten (receiving the black Porsche). The Crown declined to accept that plea in satisfaction of the indictment, and the trial proceeded before the jury on all counts.

The jury returned verdicts of not guilty on all counts of the indictment, including count ten despite the appellant's guilty plea. However, the jury also returned special verdicts of "guilty of larceny or receiving" on two vehicles under a statutory provision permitting such verdicts where the jury is satisfied the accused committed one of the two offences but cannot determine which.

  • Whether the trial judge erred in limiting cross-examination of the co-offender witnesses about the detail of their own crimes and the sentencing benefits they received for cooperating with the Crown
  • Whether the jury was correctly directed that it must be unanimous in finding that the accused was guilty of either stealing or receiving a particular vehicle before returning a special verdict
  • Whether the acquittals on the indicted counts could be set aside following the special verdicts
  • Whether a new trial could be ordered given that the statutory special verdict provision creates a possible verdict rather than a chargeable offence

Decision

On the first ground, the Court of Criminal Appeal held that the trial judge had wrongly restricted cross-examination of the co-offender witnesses. The appellant was entitled to expose the full extent of those witnesses' own criminal conduct and the magnitude of the sentencing benefits they received. That information was directly relevant to the witnesses' credibility and their motive to implicate the appellant, and restricting it was a material error.

On the second ground, the Court held that the jury directions were inadequate. Before returning a special verdict of "larceny or receiving," the jury must be unanimous in concluding that the accused committed one or the other offence, even if unable to determine which. The directions as given left open the possibility that the verdict was reached by compromise, with some jurors satisfied of stealing and others satisfied only of receiving, without the required unanimity as to either.

The Court confirmed that the acquittals entered on the indicted counts could not be disturbed. Verdicts of not guilty are not merely precursors to a special verdict; they vest in the accused an entitlement to acquittal on the relevant charges and cannot be set aside. The statutory special verdict provision creates a possible verdict rather than a standalone chargeable offence, which meant no new trial could be ordered on those matters.

The Court noted the apparent anomaly that the appellant was acquitted on count ten despite having offered a guilty plea to it. The jury's own written note supported the inference that the special verdict on counts nine and ten reflected a compromise among jurors rather than a unanimous finding.

Orders Made

  • Appeal allowed
  • Special verdicts set aside
  • Sentences imposed in respect of the special verdicts quashed

Key Takeaways

  • Co-offender witnesses who have received sentence reductions for cooperating with the Crown may be cross-examined on the full detail of their crimes and the benefits they received; a trial judge's restriction of that cross-examination can constitute reversible error.
  • A special verdict of "larceny or receiving" under the relevant statutory provision requires the jury to be unanimous in finding that the accused committed one of the two offences, even where they cannot determine which one, consistent with the principles in R v Nguyen (NSWCCA, unreported, 20 February 1997).
  • Verdicts of not guilty entered on indicted counts are not vulnerable to being set aside simply because a special verdict has also been returned; acquittals vest immediately in the accused as an entitlement.
  • The statutory special verdict of "larceny or receiving" creates a possible jury verdict rather than a chargeable offence, which forecloses the making of a new trial order once the special verdict is set aside.
  • Apparent jury compromise, evidenced by a jury note and inconsistent verdicts, can support the inference that a special verdict was not returned by the required unanimous process.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Act (NSW), s 7(3)

Cases
- R v Nguyen (NSWCCA, unreported, 20 February 1997)
- R v Holton [2004] NSWCCA 214
- R v Sullivan [2003] NSWCCA 100
- R v Gonzalez-Betes [2001] NSWCCA 226
- R v Carrion (2002) 128 A Crim R 29
- R v Saleam (1989) 41 A Crim R 48
- R v Cassidy (1919) 19 SR (NSW) 48
- Tzaidis v Child & Ors [2003] NSWSC 667
- Cassell & Co v Broome (1972) 1 ALR 801