Citation: R v Garland [2005] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 9 May 2005
Judge(s): Hulme J (principal judgment), Barr J, Buddin J (both agreeing)
Background
The appellant, Wayne Lee Garland, was convicted by jury in the District Court of two counts of armed robbery following an incident on 29 December 2002 at a cake shop in Emu Plains. Two offenders entered the premises, threatened the owners and employees with metal tools, and stole cash and personal property before fleeing.
Police later spotted a Toyota Tarago van on the M4 Motorway and activated their lights and siren. The van failed to stop, and a pursuit followed involving erratic driving, running red lights, and collisions. During the chase, an object later identified as a wrench or ratchet spanner was thrown from the vehicle. The van eventually stopped, the occupants fled, and Garland was arrested shortly after. Police found a bundle of cash in his bum-bag.
At trial, there was no dispute that the robbery occurred, that the passenger (Mr House) was one of the robbers, or that Garland was driving the van. The sole issue was whether Garland was the second robber. Garland gave evidence that his passenger had told him to drive when police activated their lights because the passenger was wanted, and that Garland had panicked.
Legal Issues
- Whether the trial judge erred by failing to give a standard circumstantial evidence direction to the jury.
- Whether the trial judge erred by failing to direct the jury that, before using evidence of flight as evidence of guilt (known as a "consciousness of guilt" direction), the Crown had to exclude all other hypotheses consistent with innocence.
- Whether leave should be granted under Rule 4 of the Criminal Appeal Rules to raise grounds of appeal that were not raised at trial.
Decision
Both grounds of appeal concerned alleged deficiencies in the judge's directions to the jury. Hulme J noted at the outset that neither ground had been raised at trial and no request for additional directions had been made. This made it necessary for the appellant to obtain leave under Rule 4 before those grounds could be argued.
On the substance of the directions, Hulme J found the issues before the jury were straightforward: the central question was simply whether the appellant was the second robber. The trial judge repeatedly emphasised the need for the Crown to prove its case beyond reasonable doubt, and in several directions went further than required, effectively instructing the jury not to use anything against the appellant unless it was proven to that standard.
Hulme J was satisfied that there had been no miscarriage of justice and that the absence of any complaint at trial reinforced that leave under Rule 4 was not warranted. Barr J and Buddin J agreed with that conclusion.
Orders Made
- Leave under Rule 4 to rely on the grounds of appeal was refused.
- The application for leave to appeal was dismissed.
Key Takeaways
- Grounds of appeal relating to jury directions that were not raised at trial, and for which no further directions were sought, require leave under Rule 4 of the Criminal Appeal Rules before they can be argued on appeal.
- A failure to give a formal circumstantial evidence direction does not automatically constitute appealable error, particularly where the factual issue for the jury was narrow and the trial judge consistently emphasised proof beyond reasonable doubt.
- Refusing leave under Rule 4, the Court of Criminal Appeal confirmed that repeated and strong directions on reasonable doubt can adequately convey the standard of proof even where specific formulaic directions are absent.
- No miscarriage of justice was found where directions were, if anything, more favourable to the accused than strictly required.
- The absence of any objection or request for further directions at trial remains a relevant factor weighing against the grant of leave to raise those matters on appeal.
Legislation and Cases Referenced
Legislation:
- Rule 4, Criminal Appeal Rules (NSW) (governing the requirement for leave to raise new grounds on appeal)
Cases:
- No cases were cited in the judgment text provided.