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Court of Criminal Appeal 30 April 2007

DERBAS v R RUSTOM v R

[2007] NSWCCA 118

Assault & violenceHomicide
CRIMINAL LAW APPEAL AGAINST CONVICTION MURDER AND ASSAULT ATTACK BY INMATES RELIABILITY OF EVIDENCE UNOFFICIAL QUESTIONING

Citation: DERBAS v R; RUSTOM v R [2007] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 30 April 2007
Judge(s): McClellan CJ at CL; Simpson J; Hidden J

Background

Two inmates were convicted in the Supreme Court of murder and assault following an attack on fellow prisoners at Parklea Prison. Both appealed their convictions on multiple grounds.

The appeals raised issues concerning the admissibility and reliability of evidence given by a prison drug and alcohol counsellor, the conduct of video link evidence, directions given to the jury on accessorial liability (that is, liability for assisting or participating in a crime committed by others), and an incident in which a juror was approached by a person outside the courtroom who attempted to discuss the trial.

The matter was heard at first instance by Dunford J in the Supreme Court, with the trial concluding in April 2005.

  • Whether the trial judge was required to give the jury a warning under s 165(1)(f) of the Evidence Act about the reliability of a prison counsellor's account of admissions made by one appellant
  • Whether technical imperfections in video link evidence, including a delay between image and audio, caused a miscarriage of justice
  • Whether the oral and written directions on accessorial liability, including joint criminal enterprise and aiding and abetting, were sufficient and accurate
  • Whether an approach made to a juror by an outside party, attempting to discuss the trial, resulted in a miscarriage of justice

Decision

Section 165 warning (prison counsellor's evidence): The trial judge declined to give a reliability warning under s 165(1)(f) of the Evidence Act because the counsellor, Roy Butler, had not been engaged in official questioning of the appellant Rustom. He was conducting a general survey of inmate facilities when Rustom made statements in his presence. The Court of Criminal Appeal agreed that the section did not apply in those circumstances. The cross-examination at trial had focused on the precision of Butler's recollection rather than whether the conversation took place at all, and the absence of corroboration from the psychologist who was present was largely irrelevant given that she had no independent recall either way.

Video link evidence: The Court rejected the argument that technical transmission imperfections in the video link evidence caused a miscarriage of justice. No substantial unfairness was established from the delay between the visual image and the spoken words.

Directions on accessorial liability: The Court found a deficiency in one of the written directions given to the jury on accessorial liability. However, it held that a correct oral direction given earlier in the proceedings was sufficient to overcome the deficiency, and no miscarriage of justice resulted. Hidden J added that the directions on this topic were a reminder of how difficult these concepts are even for lawyers, let alone jurors, and that only so much of the law as is strictly necessary should be conveyed to the jury in plain language. His Honour also questioned whether it had been necessary for the Crown to rely on both joint criminal enterprise and aiding and abetting, noting that either basis would have been sufficient on the facts.

Juror interference: The affected juror, when approached by an outside party seeking to discuss the trial, responded with complete propriety. She told the caller she did not wish to hear what was being said, affirmed she would make her own decision, and declined further contact despite persistent attempts. She did not disclose the approaches to other jurors until after the verdicts were delivered, a fact corroborated by the foreperson. The Court was satisfied the juror discharged her obligations without being influenced by the contact, and no miscarriage of justice arose.

Orders Made

  • Both appeals dismissed.

Key Takeaways

  • Section 165(1)(f) of the Evidence Act, which requires a reliability warning for certain admissions made during official questioning, does not apply where a person makes statements spontaneously to a prison counsellor conducting a general survey rather than in response to any formal or official inquiry.
  • A deficiency in a written jury direction on accessorial liability does not necessarily result in a miscarriage of justice where an earlier, correct oral direction adequately conveyed the relevant legal principles.
  • The Court of Criminal Appeal confirmed that directions on joint criminal enterprise and aiding and abetting should be limited to what is strictly necessary for the case, expressed in plain language, and that relying on both bases of liability simultaneously risks unnecessarily complicating the jury's task.
  • Where a juror is approached by an outside party attempting to influence or discuss a trial, the absence of any actual influence on the juror's deliberations, demonstrated through consistent and principled conduct, can be sufficient to defeat a ground of appeal based on juror interference.
  • Technical imperfections in video link evidence do not automatically constitute a miscarriage of justice; the court examines whether the transmission difficulties caused real unfairness to the accused in the circumstances of the particular trial.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW), s 165(1)(f)
- Evidence and Procedure (New Zealand) Act 1994 (Cth)

Cases:
- Brown, Barwick, Brown v R [2006] NSWCCA 69
- Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
- R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166
- R v Stokes & Difford (1990) 51 A Crim R 25