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Court of Criminal Appeal 22 November 2004

R v Livingstone

[2004] NSWCCA 407

Also reported as (2004) 150 A Crim R 117
DrugsPublic order & justice offences
APPEAL AGAINST CONVICTION PERJURY PROSECUTION'S DUTY OF DISCLOSURE DIRECTIONS CONCERNING CROSS EXAMINATION OF PROSECUTION WITNESSES

Citation: R v Livingstone [2004] NSWCCA 407
Court: NSW Court of Criminal Appeal
Date: 22 November 2004
Judge(s): Simpson J (with Kirby J and Bell J agreeing)

Background

The appellant was an accountant who, in October 1986, assisted in transferring funds to facilitate the importation of 354 kilograms of cannabis from Thailand into Australia. He deposited $165,000 in cash into a former employer's bank account and arranged for the money to be transferred overseas as payment for the drugs. He was convicted in the District Court in March 1999 on two counts: being knowingly concerned in the importation of a commercial quantity of cannabis under the Customs Act 1901, and giving false evidence before the NSW Crime Commission in 1994.

The perjury charge arose because, when questioned by the NSW Crime Commission about that large cash deposit, the appellant fabricated a story attributing the funds to a deceased client, supported by forged documents. Several key prosecution witnesses, including the primary drug importer (McPhee), gave evidence against the appellant at trial and had each received undertakings protecting them from prosecution based on their testimony.

The appellant appealed against both convictions, raising grounds relating to the Crown's failure to disclose documents, the adequacy of jury directions, and the treatment of unreliable witness evidence. He did not seek leave to appeal against his sentences.

  • Whether the Crown's failure to provide the appellant with copies of a Crime Commission interview record constituted a breach of its disclosure obligations and caused a miscarriage of justice
  • Whether the trial judge was required to give a direction under s 165 of the Evidence Act 1995 in respect of evidence given by prosecution witnesses who had immunity undertakings or prior convictions for dishonesty
  • Whether the trial judge's summing up was deficient for failing to direct the jury specifically to the cross-examination of prosecution witnesses
  • Whether the cumulative effect of any individual errors amounted to a miscarriage of justice

Decision

On the disclosure ground, the Court found that, although the Crown had not provided the appellant with a copy of the relevant Crime Commission interview record, the appellant's legal team had been given access to inspect the document. The Court held that access to inspect was sufficient in the circumstances and that no actual prejudice was demonstrated. The failure to produce a copy did not give rise to a miscarriage of justice.

On the s 165 direction, the Court examined whether the trial judge was obliged to warn the jury about the reliability of evidence given by witnesses who had received immunity undertakings or who had prior records for dishonesty. The Court concluded that, while such directions may have been appropriate, the absence of them did not cause a miscarriage of justice, particularly given that senior counsel for the appellant had forcefully addressed the jury on the relevant weaknesses of those witnesses.

Regarding the summing up, the Court acknowledged that a preferable approach (as discussed in R v Zorad) would have been for the trial judge to sum up by reference to factual issues, incorporating the cross-examination of Crown witnesses. However, the Court noted that the jury had access to an indexed copy of the trial transcript, that the judge had referred to cross-examination points in his summary of counsel's addresses, and that defence witnesses were treated consistently. No miscarriage of justice arose from the approach taken.

Because no substance was found in the individual grounds, the compendium ground (asserting cumulative error) also failed.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • A failure by the Crown to provide copies of documents does not necessarily breach its disclosure obligations where the defence has been afforded a reasonable opportunity to inspect those documents and no actual prejudice results.
  • The absence of a s 165 unreliable evidence direction under the Evidence Act 1995 will not automatically constitute a miscarriage of justice where defence counsel has thoroughly addressed the jury on the relevant reliability concerns during the trial.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge's summing up need not reproduce or specifically revisit every point made in cross-examination, provided the jury has access to the transcript and counsel has adequately addressed those matters.
  • Undertakings protecting prosecution witnesses from prosecution for their testimony are a relevant matter for the jury to consider, but their existence alone does not require a formal unreliable evidence direction in every case.
  • No miscarriage of justice was established where each individual ground of appeal failed on its merits, leaving no cumulative basis on which to disturb the convictions.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(d)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crime Commission Act 1985 (NSW), s 20
- Evidence Act 1995 (NSW), ss 164, 165

Cases:
- Grey v The Queen [2001] HCA 65; 75 ALJR 1708
- Mickelberg v The Queen (1989) 167 CLR 259
- R v AGJ, unreported, NSWCCA, 30 October 1997
- R v Brown (Winston) [1998] AC 367
- R v Chen & Ors [2002] NSWCCA 174
- R v Kerrie Anne Clarke (1997) 97 A Crim R 414
- R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
- R v Keane [1994] 2 All ER 478
- R v Reardon [2004] NSWCCA 32
- R v Sneza Suteski [2002] NSWCCA 509
- R v Laverne Terrence Williams (1990) 50 A Crim R 213
- R v Zorad (1990) 19 NSWLR 91
- The Queen v Pollitt (1992) 174 CLR 554