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Court of Criminal Appeal 18 October 2006

Vikramdeep SINGH v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

[2006] NSWCCA 333

Also reported as (2006) 164 A Crim R 284
Assault & violenceTheft & propertyPublic order & justice offences
UNFAIR TRIAL CONDUCT OF CO ACCUSED APPELLANT AND CO ACCUSED TRIED TOGETHER WHETHER CONDUCT BY CO

Citation: Vikramdeep Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333
Court: Court of Criminal Appeal, New South Wales
Date: 18 October 2006
Judge(s): Basten JA; Whealy J; Latham J

Background

The appellant was tried jointly with a co-accused in the District Court arising from a violent incident involving two victims. The appellant was convicted of maliciously inflicting grievous bodily harm whilst in company, stealing, assault with intent to rob, and malicious damage to property. He was sentenced to 9 years and 4 months imprisonment with a non-parole period of 7 years and 6 months.

At trial, the co-accused ran a case that positioned himself as a "peacemaker" in the altercation. The appellant contended this strategy unfairly cast him as the primary aggressor, or "villain," and that various errors by the trial judge compounded that prejudice.

The appellant appealed both conviction and sentence to the Court of Criminal Appeal, raising multiple grounds going to the fairness of the joint trial and the structure of the sentence imposed.

  • Whether the conduct of the co-accused's counsel at trial was so inflammatory toward the appellant as to be improper or unfair
  • Whether the trial judge erred in refusing to allow cross-examination of the co-accused on matters of credit, specifically his immigration status as an unlawful non-citizen
  • Whether the trial judge erred in failing to warn the jury about the unreliability of co-accused evidence, in the absence of any request for a direction under s 165 of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in failing to give specific directions about evidence of flight as consciousness of guilt
  • Whether the trial judge erred in finding no "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to justify a balance of sentence exceeding one-third of the non-parole period

Decision

Co-accused's conduct at trial: The Court of Criminal Appeal found that, assessed in full context, the co-accused's evidence did not portray the appellant as a villain, even if it cast the co-accused favourably. The cross-examination conducted by the co-accused's counsel was found to be proper, and the closing address, read as a whole, was not inflammatory to the degree required to establish unfairness or impropriety toward the appellant.

Refusal to allow cross-examination on credit: The proposed cross-examination concerned the co-accused's status as an unlawful non-citizen. Because the offences involved violence rather than dishonesty, the Court held this evidence went only to credibility and not to a fact in issue. Under ss 103 and 135 of the Evidence Act 1995, the evidence lacked substantial probative value and its prejudicial effect would have overwhelmed whatever probative weight it carried. The trial judge's refusal to admit it was upheld.

Absence of a reliability warning about co-accused evidence: The Court confirmed that the obligation under s 165(2) of the Evidence Act to warn the jury is triggered only when a party requests such a direction. No one had made that request at trial. Accordingly, no statutory obligation arose and no breach occurred. The appellant required leave under r 4 of the Criminal Appeal Rules to raise the issue on appeal, and such leave should only be granted where the circumstances indicate a miscarriage of justice. On the facts, the co-accused's evidence did not meaningfully incriminate the appellant beyond what the appellant himself had admitted, and in one respect it positively supported the appellant. No miscarriage of justice was made out.

Flight directions and sentencing: The Court found that the evidence overwhelmingly indicated the appellant had fled the scene and had offered an explanation the jury was entitled to reject. The absence of a specific flight direction did not give rise to a miscarriage of justice in those circumstances. On the sentencing ground, the Court confirmed that s 44 of the Crimes (Sentencing Procedure) Act does not impose a statutory norm for the ratio between non-parole period and balance of sentence. It instead limits the court's power to expand the balance beyond one-third of the non-parole period unless special circumstances exist. The trial judge had considered all potentially relevant matters, and no error of the kind that would justify appellate interference with the exercise of sentencing discretion was demonstrated.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 165 of the Evidence Act 1995 (NSW), the obligation to warn the jury about unreliable evidence, including evidence given by a co-accused, is only engaged when a party requests that direction at trial. No request means no statutory breach.
  • Where no direction was sought at trial, an appellant must obtain leave under r 4 of the Criminal Appeal Rules to challenge the omission on appeal. The Court of Criminal Appeal confirmed that such leave should be granted only where the circumstances indicate an actual miscarriage of justice.
  • Evidence going only to a witness's credibility, and not to a fact in issue, is inadmissible under ss 103 and 135 of the Evidence Act where its probative value is not substantial and would be overwhelmed by prejudice, even where the witness is a co-accused giving evidence against the appellant.
  • Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 does not establish a norm or default ratio between non-parole period and balance of sentence. It operates as a constraint on the sentencing court's power to extend the balance beyond one-third of the non-parole period, subject to special circumstances.
  • In a joint trial, the fact that co-accused counsel runs a defence favourable to their own client, including positioning that client as a lesser participant, does not by itself constitute conduct that is improper or unfair to the other accused. The question is whether the conduct, assessed as a whole, crosses the line into inflammatory or impermissible territory.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35, 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54D
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW), ss 9, 102, 103, 112, 135, 138, 164, 165

Cases:
- Conway v The Queen (2002) 209 CLR 203
- Jenkins v The Queen (2004) 79 ALJR 252; [2004] HCA 57
- Kanaan v R [2006] NSWCCA 109
- Longman v The Queen (1989) 168 CLR 79
- Melbourne v The Queen (1999) 198 CLR 1
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Hampton (1998) 44 NSWLR 729
- R v ITA (2003) 139 A Crim R 340
- R v Moffitt (1990) 20 NSWLR 114
- R v Stewart (2001) 52 NSWLR 301
- Stanoevski v The Queen (2001) 202 CLR 115
- Zoneff v The Queen (2000) 200 CLR 234