Citation: R v Johnston [2004] NSWCCA 58
Court: New South Wales Court of Criminal Appeal
Date: 18 March 2004
Judge(s): Santow JA, James J, Whealy J
Background
The applicant was convicted of murder in 1996 following a joint trial before Simpson J and a jury. The Crown's case was that the applicant had stabbed the deceased, Raymond Leonard Howlett, nineteen times at a rural property near Gulgong on the evening of 17 August 1994. Three co-accused faced related charges, with verdicts varying across the group.
Following conviction, the applicant lodged notices of appeal against both conviction and sentence. After several adjournments and a senior Public Defender's advice that no ground of appeal had reasonable prospects of success, the applicant signed a notice of abandonment in November 1997. The appeal was deemed dismissed at that point.
No further formal step was taken until 2002, when the applicant sought leave to appeal against sentence. By 2003, he sought to revive his appeal against conviction, leading to the present application for leave to withdraw the notice of abandonment.
Legal Issues
The court was asked to resolve the following questions arising from the applicant's proposed grounds of appeal:
- Whether leave should be granted to withdraw the notice of abandonment filed in 1997, given the time elapsed and the strength of the evidence at trial
- Whether the trial judge had erred in her directions on the Evidence Act s 165(1)(d), which concerns warnings about evidence given by persons who may reasonably be supposed to have been criminally concerned in the events
- Whether the trial judge erred in admitting prior consistent statements by a co-accused under Evidence Act s 108(3)
- Whether evidence of admissions made by the applicant while in custody at the Cairns Watch House was properly admitted, including an imperfect transcript of a lost tape recording
- Whether the applicant's right to silence was impermissibly infringed
- Whether the trial judge should have directed the jury that a verdict of manslaughter was available as an alternative to murder
- Whether a prisoner informer's evidence was improperly admitted or inadequately warned upon under Evidence Act s 165(1)(a), which relates to hearsay evidence
- Whether the applicant was improperly cross-examined
Decision
James J (with whom Santow JA and Whealy J agreed) examined each proposed ground of appeal in detail. On the s 165(1)(d) warning issue, the court found that while the trial judge's direction had some deficiencies, the applicant suffered no real prejudice given the overwhelming strength of the evidence against him.
On the admissibility of custodial admissions, the court considered both the Watch House conversation and the electronically recorded interview conducted by Sydney detectives. The applicant had told police he had "bashed" Mr Howlett and, when confronted with the suggestion that he had stabbed the deceased, answered "I may have." Even accounting for any irregularities in how those admissions were received, the court found no basis for concluding a substantial miscarriage of justice had occurred.
The court also rejected the ground that a manslaughter direction should have been given, finding that the evidence did not support such a verdict being left to the jury. Other proposed grounds, including those concerning the prisoner informer's evidence, cross-examination, and the right to silence, were examined and rejected.
Turning to the threshold question of whether leave to withdraw the abandonment should be granted, the court applied established principles. The applicant offered no reason for having abandoned the appeal other than unfavourable advice from a senior Public Defender. Significant years had elapsed since abandonment. The proposed grounds were all directed at trial irregularities rather than grounds that would ordinarily result in an outright acquittal. Taken together, these considerations pointed firmly against granting leave.
Orders Made
- Leave to withdraw the abandonment of the appeal against conviction refused.
Key Takeaways
- Withdrawing a notice of abandonment of a criminal appeal is not a step the Court of Criminal Appeal takes lightly: the applicant must offer a satisfactory explanation for the abandonment, and the strength of the underlying grounds is carefully weighed.
- Where the sole reason for an original abandonment was unfavourable advice from experienced counsel, that fact weighs against granting leave to re-agitate the appeal years later.
- A direction on the alternative verdict of manslaughter is only required where the evidence at trial actually supports such a verdict being available; it is not enough that the accused was charged with murder.
- Under s 165(1)(d) of the Evidence Act, a warning about the evidence of persons who may be supposed to have been criminally concerned is required in appropriate cases, but errors in the precise form of that warning will not automatically vitiate a conviction where the overall case against the accused was overwhelming.
- No substantial miscarriage of justice was established on any of the proposed grounds, reinforcing that appellate intervention requires more than identifying technical irregularities in trial management.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Evidence Act (NSW), ss 108(3), 165(1)(a), 165(1)(d)
- Criminal Appeal Rules, r 27
Cases:
- Doney v The Queen (1990) 171 CLR 207
- McKinney v The Queen (1990-1991) 171 CLR 468
- Pemble v The Queen (1971) 124 CLR 107
- Pollitt v The Queen (1991-1992) 174 CLR 558
- R v Baartman [2000] NSWCCA 298
- R v Clark [2003] NSWCCA 308
- R v Clough (1992) 28 NSWLR 396
- R v Fernando [1999] NSWCCA 66
- R v Henning (unreported, CCA, 11 May 1990)
- R v Middis (unreported, 27 March 1991)
- R v Ngo [2003] NSWCCA 82
- R v Patsalis and Spathis (1997) 107 A Crim R 432
- R v Symss [2003] NSWCCA 77
- R v Stewart [2001] NSWCCA 260
- Stanoevski v The Queen (2001) 202 CLR 115
- Webb and Hay v The Queen (1994) 181 CLR 41