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Court of Criminal Appeal 3 November 2006

Em v Regina

[2006] NSWCCA 336

Assault & violenceHomicideTheft & propertyFirearms & weapons
EVIDENCE DIRECTIONS SENTENCING WHETHER SENTENCES MANIFESTLY EXCESSIVE OR IN DEGREE OF CUMULATION OF SENTENCES OR FLAWED ON PARITY GROUNDS

Citation: Em v Regina [2006] NSWCCA 336
Court: New South Wales Court of Criminal Appeal
Date: 3 November 2006
Judges: Giles JA; Grove J; Hidden J

Background

The appellant was charged with offences arising from two separate home invasions in January 2002. The first, at Cecil Hills, resulted in the death of a resident after a firearm was discharged during a confrontation. The second, at West Hoxton, involved the aggravated robbery of five people. The appellant faced three charges relating to the first invasion, including murder, and pleaded guilty to five charges arising from the second.

Central to the conviction appeal was a conversation the appellant had with police on 15 May 2002. The appellant was aware he was not obliged to speak to police, but believed that any conversation would be inadmissible against him if it was not recorded. In fact, the conversation was being recorded without his knowledge. Following a voir dire hearing (a hearing held to determine whether evidence is admissible), the trial judge ruled that part of the conversation, up to page 25 of the transcript, was admissible.

The appellant was convicted of the Logozzo murder and related offences following a jury trial before James J. He was sentenced to a total effective imprisonment including 25 years for murder, with a non-parole period of 16 years, running cumulatively with sentences for the other offences. He appealed against both conviction and sentence.

  • Whether the trial judge erred in admitting the appellant's recorded admissions under section 90 of the Evidence Act 1995, which permits exclusion of admissions where it would be unfair to use them
  • Whether the trial judge was required to warn the jury that the admissions may have been unreliable because the appellant believed they could not be used against him
  • Whether the sentences imposed for the Kress offences were manifestly excessive
  • Whether the sentencing judge erred in failing to find "special circumstances" (a finding under NSW sentencing law that can adjust the ratio of non-parole period to head sentence)
  • Whether the degree of cumulation of the Logozzo sentences was excessive
  • Whether the sentences gave rise to a justifiable sense of grievance based on disparity with the sentence imposed on a co-offender, Vann

Decision

Admissibility of the recorded admissions: The Court rejected the argument that using the admissions was unfair under section 90 of the Evidence Act 1995. The appellant's belief that an unrecorded conversation could not be used against him was his own erroneous assumption. The police had not induced or confirmed that belief before the relevant portion of the conversation. Even accepting that police may have been aware of the appellant's mistaken belief and took advantage of it by continuing a conversation they knew was recorded, the Court held this did not rise to the level of unfairness that would warrant exclusion. Hidden J noted there might be cases where such police conduct could produce relevant unfairness, but this was not one of them.

Jury warning on reliability: The Court found no error in the trial judge's failure to give a specific warning that the admissions might be unreliable. The defence had squarely raised at trial the argument that the appellant's belief about the conversation being unrecorded affected the reliability of what he said. Because this issue was already directly before the jury through the conduct of the defence case, no additional judicial warning was required.

Sentence grounds: The Court dismissed all four sentence appeal grounds. The sentences for the Kress offences were not manifestly excessive given the objective seriousness of five home invasion robberies. No error was established in the refusal to find special circumstances. The degree of cumulation applied to the Logozzo sentences was not shown to be excessive. On parity, the Court accepted the principle that a co-offender's sentence resulting from a Crown appeal still forms a valid baseline for comparison, but found the appellant's position was materially different from Vann's: the appellant was sentenced for five offences (compared to Vann's one with others on a Form 1), and he had participated in the Kress robberies with knowledge that a person had already been killed during the earlier Logozzo invasion.

Orders Made

  • Conviction appeal dismissed.
  • Leave granted to appeal against sentence, but sentence appeal dismissed.

Key Takeaways

  • Under section 90 of the Evidence Act 1995, a defendant's erroneous and self-generated belief that an unrecorded police conversation cannot be used against them does not, without more, render it unfair to admit admissions made during that conversation.
  • Even where police may have been aware of a defendant's mistaken belief about recording, the Court of Criminal Appeal confirmed that awareness alone does not automatically make use of the resulting admissions unfair, though it acknowledged that different facts might produce a different outcome.
  • Where the defence case at trial squarely places before the jury the question of whether admissions were reliable, a separate judicial warning on the same point is not necessarily required.
  • Parity arguments based on a co-offender's sentence remain available even where that co-offender's sentence resulted from a successful Crown appeal, but material differences in the nature and number of offences will defeat such a ground.
  • No error was found in refusing to identify special circumstances or in the cumulation structure where the sentencing judge had regard to the totality of the appellant's offending across two serious home invasions.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 85, 90, 138
- Criminal Appeal Act 1912 (NSW), s 5F

Cases cited (selected):
- R v Sophear Em [2003] NSWCCA 374
- The Queen v Swaffield (1997) 192 CLR 159
- Bromley v The Queen (1986) 161 CLR 315
- Carr v The Queen (1988) 165 CLR 312
- Postiglione v The Queen (1997) 189 CLR 297
- Veen v The Queen (No 2) (1988) 164 CLR 465
- House v The King (1936) 55 CLR 499
- R v Vann [2006] NSWCCA 260
- R v Sharpe [2002] NSWCCA 96
- R v Christie [2000] NSWCCA 354
- Crofts v The Queen (1996) 186 CLR 427
- Lowe v The Queen (1984) 154 CLR 606