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Court of Criminal Appeal 13 July 2007

Klein v Regina

[2007] NSWCCA 206

Also reported as 172 A Crim R 290
Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION R 4 CRIMINAL APPEAL RULES EVIDENCE HEARSAY EVIDENCE

Citation: Klein v Regina [2007] NSWCCA 206
Court: New South Wales Court of Criminal Appeal
Date: 13 July 2007
Judge(s): Beazley JA; Grove J; Simpson J

Background

The appellant was convicted by a jury of murder following the fatal shooting of the owner of a mobile phone retail outlet in Gladesville in February 2001. The appellant was sentenced to 24 years' imprisonment with an 18-year non-parole period. The Crown case relied partly on circumstantial evidence and partly on an alleged confession the appellant had made to a friend, Jacob Compagnon.

Compagnon had given a statement to the NSW Crime Commission in August 2001 in which he said the appellant confessed to the killing. At trial, however, Compagnon resiled from that account, saying the statement was a lie. The Crown then cross-examined him as a hostile witness under section 38 of the Evidence Act 1995 (NSW), putting his earlier statements and committal evidence to him.

All parties and the trial judge agreed that the prior inconsistent statements could only be used to assess Compagnon's credibility, not as evidence of the truth of the alleged confession. Despite that agreement, the trial judge's directions to the jury departed from this limit in a significant way.

  • Whether the trial judge misdirected the jury on the use it could make of Compagnon's prior inconsistent statements regarding the alleged confession
  • Whether leave to appeal should be granted under rule 4 of the Criminal Appeal Rules, given that trial counsel had not sought a redirection at the time
  • Whether, even if error was established, the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW) applied so that no substantial miscarriage of justice had occurred

Decision

Beazley JA, with Grove and Simpson JJ agreeing, held that prior inconsistent statements are admissible only on the question of a witness's credit. Where a witness's prior inconsistent statements concern an accused's alleged confession, those statements cannot be used as evidence of the truth of that confession. If such statements are admitted, the trial judge must give the jury clear and unambiguous directions about their limited use.

The trial judge's summing up contained some correct statements about the limited use of the prior inconsistent statements. However, the overall directions were erroneous. The judge directed the jury that if they were satisfied beyond reasonable doubt that Compagnon's account of the confession was truthful, and that the confession itself was the truth, they would be obliged to convict. That direction treated the prior inconsistent statements as capable of proving the truth of the confession, which was wrong.

On the question of leave to appeal, the Court confirmed that rule 4 of the Criminal Appeal Rules requires an appellant to demonstrate at least an arguable case of error, and that the error resulted in a miscarriage of justice. A miscarriage of justice arises where the error deprived the accused of a chance of acquittal that was fairly open. The Court found that standard was clearly met here.

The Crown submitted that the proviso should apply because the circumstantial evidence was strong. The Court rejected that submission. The circumstantial case was not so overwhelming that the Court could be satisfied a jury would necessarily have convicted on it alone. A substantial miscarriage of justice had therefore occurred.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Prior inconsistent statements admitted under section 38 of the Evidence Act 1995 (NSW) go only to a witness's credibility; where those statements concern an accused's alleged confession, they cannot be used as proof that the confession was made or was true.
  • A trial judge who admits such statements must give the jury clear, limited-use directions; directions in the standard form appropriate for a direct confession case are not suitable where the confession evidence arises only through prior inconsistent statements.
  • To obtain leave to appeal on a ground not raised at trial under rule 4 of the Criminal Appeal Rules, an appellant must establish an arguable error and show that it produced a miscarriage of justice, meaning the accused may have lost a real chance of acquittal.
  • The proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW) will not save a conviction where the court cannot be satisfied that the jury would necessarily have convicted on the remaining evidence alone.
  • Grove J noted that neither counsel alerted the trial judge to the inappropriate direction despite having ample opportunity to do so, and observed that both counsel bore some responsibility for an outcome requiring a potential third trial.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), s 38

Cases
- Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
- R v Moussa [2001] NSWCCA 427; 125 A Crim R 505
- South v Regina [2007] NSWCCA 117
- Tekely v R; Nagle v R [2007] NSWCCA 75