AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
17
Court of Criminal Appeal 22 June 2006

Robinson v R

[2006] NSWCCA 192

Also reported as (2006) 162 A Crim R 88
Homicide
APPEAL AND NEW TRIAL GAOL MURDER

Citation: Robinson v R [2006] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 22 June 2006
Judge(s): Spigelman CJ, Simpson J, Johnson J

Background

The appellant was convicted of murdering a fellow prisoner in a gaol setting. The prosecution called several prisoner witnesses who gave evidence of observations and alleged admissions by the appellant. The matter had a substantial procedural history, including prior Supreme Court and Court of Criminal Appeal decisions before the trial resulting in this appeal.

At trial, the Crown advanced a particular factual basis for the conviction. However, in summing up, the trial judge left the jury with a factual theory that the Crown itself had not relied upon, creating the central issue on appeal.

The appellant challenged the conviction on multiple grounds, including that the summing-up introduced an unargued factual basis for guilt, that the directions about prisoner witness evidence were inadequate, that the verdict was unreasonable, and that a "dangerous to convict" warning should have been given.

  • Whether the trial judge erred by leaving to the jury a factual basis for conviction that the Crown had not advanced, and whether this caused a miscarriage of justice
  • Whether adequate directions were given regarding the reliability of evidence given by prisoner witnesses called by the Crown
  • Whether a "dangerous to convict" direction was required in relation to prison informer evidence under the Evidence Act 1995 (NSW) and the principles in R v Clough
  • Whether the jury's guilty verdict was unreasonable having regard to the whole of the evidence

Decision

The Court allowed the appeal on the first ground, finding that the trial judge had left a factual basis for conviction to the jury that the Crown had not advanced at trial. This gave rise to unfairness to the appellant and constituted a miscarriage of justice. Because the appellant had not been given an opportunity to meet that alternative theory, the conviction could not stand.

On the question of whether a "dangerous to convict" direction was required, Spigelman CJ examined the intersection of the common law corroboration rules and the Evidence Act 1995 (NSW). His Honour noted that ss 164 and 165 of the Act have fundamentally altered this area of the law. Section 164 abolished any rule of law requiring a "dangerous to convict" warning, while s 165 replaced the old regime with a regime under which, upon request by a party, the judge must warn the jury that certain categories of evidence (including prison informer evidence) may be unreliable, explain why, and direct caution about its weight.

The Court confirmed that the old common law categories of corroboration warning, including the specific "dangerous to convict" formula from R v Clough, have been displaced by the s 165 framework. The judge retains a residual discretion under s 165(5) to give additional warnings, but there is no longer a strict legal requirement to use the "dangerous to convict" formula.

On the unreasonable verdict ground, the Court was not persuaded that no reasonable jury could have returned a guilty verdict on the evidence presented, including the direct evidence and alleged admissions from prosecution witnesses. That ground was rejected. The conviction was nonetheless quashed and a new trial ordered on the basis of the first ground alone.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • A trial judge's decision to leave a factual basis for conviction to the jury that the Crown itself had not advanced can constitute a miscarriage of justice, because the appellant has had no opportunity to address or answer that theory.
  • Sections 164 and 165 of the Evidence Act 1995 (NSW) have fundamentally altered the common law corroboration regime. The old "dangerous to convict" formula previously required in relation to prison informer evidence no longer represents a rule of law.
  • Under s 165, where a party requests it, the trial judge must warn the jury that prison informer evidence may be unreliable, identify the reasons for that potential unreliability, and direct caution about accepting it or giving it weight. The judge need not follow any prescribed form of words.
  • The Court of Criminal Appeal confirmed that cases decided at common law about corroboration warnings must be treated with considerable caution in light of the Evidence Act 1995 (NSW) regime.
  • An unreasonable verdict ground is not established merely because the Crown's case relied on prisoner witnesses; the question remains whether a reasonable jury could have been satisfied of guilt on the combined effect of the evidence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 164, 165
- Criminal Procedure Act 1986 (NSW)

Key Cases
- R v Clough (1992) 28 NSWLR 396
- Davies v Director of Public Prosecutions [1954] AC 378
- Tripodi v The Queen (1961) 104 CLR 1
- Jenkins v The Queen [2004] HCA 57; 211 ALR 116
- Papakosmas v The Queen (1999) 196 CLR 297
- Conway v The Queen (2002) 209 CLR 203
- Longman v The Queen (1989) 168 CLR 79
- Domican v The Queen (1992) 173 CLR 555
- McKinney v The Queen (1991) 171 CLR 468
- MFA v The Queen (2002) 213 CLR 606
- Weiss v The Queen (2005) 80 ALJR 444
- Kanaan v R [2006] NSWCCA 109
- R v Robinson [2004] NSWSC 465 (the trial decision under appeal)