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Court of Criminal Appeal 20 September 2004

Regina v Attalah

[2004] NSWCCA 318

Assault & violence
CRIMINAL EVIDENCE EVIDENCE GIVEN FOR THE CROWN BY CO OFFENDER OFFENDER HAD PLEADED GUILTY

Citation: Regina v Attalah [2004] NSWCCA 318
Court: NSW Court of Criminal Appeal
Date: 20 September 2004
Judges: Handley JA, James J, Howie J

Background

The appellant was convicted in the District Court on two charges of aggravated armed robbery in company. The Crown's case rested almost entirely on the evidence of a co-offender who had participated in the robberies and was present in the car when police made arrests.

That co-offender had originally been sentenced to imprisonment in the Children's Court. He lodged a severity appeal, and during that process agreed to give evidence for the Crown against the appellant and a co-accused. As a result, his appeal was allowed and he was placed on a bond, the conditions of which required him to give evidence in the proceedings against the accused.

At trial, the co-offender initially indicated he did not wish to give evidence. The Crown was granted leave to cross-examine him under the Evidence Act, and he ultimately gave evidence largely consistent with what he had said at committal. The defence challenged his credibility, pointing to earlier lies told to police and his personal interest in complying with the bond.

  • Whether the trial judge was required, under s 165(2) of the Evidence Act 1995, to direct the jury not only that the co-offender's evidence may be unreliable, but also specifically that the witness risked having his bond cancelled and being returned to prison if he failed to give evidence for the Crown.
  • Whether the trial judge's failure to give a direction in accordance with R v Stewart (2001) 52 NSWLR 301 constituted a miscarriage of justice warranting the quashing of the convictions.
  • Whether, given that the appellant had already served the non-parole period of his sentence, a retrial should be ordered or judgments of acquittal entered.

Decision

The Court found that the trial judge's directions under s 165(2) of the Evidence Act were deficient in one critical respect. The judge warned the jury that the co-offender's evidence may be unreliable, but did not explain the consequences the witness would have faced had he failed to comply with his bond. The jury could not be expected to know, without being told, that the co-offender risked losing his bond and being sent to prison if his evidence was unfavourable to the Crown.

The Court drew on R v Stewart to confirm the distinction between telling a jury that a witness received a benefit for agreeing to give evidence, and telling them that the witness also stood to lose that benefit if the evidence given was unhelpful to the prosecution. The second aspect is the more important one, and its omission left the jury without information they were required by law to consider.

The trial judge had been specifically asked by defence counsel to give a further direction in accordance with R v Stewart and declined to do so. The Court held this was an error. Although the Crown prosecutor had addressed the point in closing submissions, that did not discharge the judge's statutory obligation under s 165(2)(b), particularly since the judge's own summing-up effectively undermined the Crown's remarks on the point.

The Court concluded there had been a miscarriage of justice. The co-offender's evidence was the foundation of the Crown case, and the misdirection meant the appellant lost a real chance of acquittal. The Court declined to apply the proviso that would have allowed it to dismiss the appeal despite the error. Because the appellant had already served the non-parole period of his sentence, the Court entered verdicts of acquittal rather than ordering a retrial.

Orders Made

  • Appeal allowed.
  • Convictions quashed.
  • No new trial ordered, as the appellant had already served the non-parole portion of his sentence.
  • Judgments of acquittal entered.

Key Takeaways

  • Under s 165(2)(b) of the Evidence Act 1995, a trial judge must inform the jury of the specific matters that may render a witness's evidence unreliable, and a general warning of potential unreliability is not sufficient on its own.
  • Where a co-offender witness gives evidence for the Crown pursuant to a bond, the jury must be told both that the witness received a benefit for agreeing to give evidence and that the witness risked losing that benefit if the evidence given was not favourable to the Crown.
  • The Court of Criminal Appeal confirmed that R v Stewart (2001) 52 NSWLR 301 requires this two-part direction, and that a judge who is specifically asked to give it cannot decline to do so without creating a ground of appeal.
  • Remarks made by Crown counsel in closing address do not substitute for a proper judicial direction under s 165(2), particularly where the judge's summing-up cuts across those remarks.
  • A conviction will be quashed for misdirection on accomplice witness warnings where the error deprived the accused of a real chance of acquittal, and where the accused has already served the non-parole period, the Court may enter verdicts of acquittal rather than order a retrial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2) (aggravated armed robbery in company)
- Evidence Act 1995 (NSW), ss 38, 165(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- R v Stewart (2001) 52 NSWLR 301