Citation: Puchalski v Regina [2007] NSWCCA 220
Court: New South Wales Court of Criminal Appeal
Date: 23 July 2007
Judges: McClellan CJ at CL, Hislop J, Smart AJ
Background
The appellant was convicted in the District Court of two offences under the Crimes Act: maliciously shooting at a person with intent to cause grievous bodily harm, and maliciously discharging a loaded firearm with the same intent. Both charges arose from a road rage incident on 21 February 2004, during which the victim was followed and shot at on the Princes Highway at Arncliffe after a dispute at traffic lights.
The central question at trial was identification: no witness directly saw the appellant fire the shots. The Crown relied on a combination of circumstances to establish that the appellant was the driver of the RAV 4 used in the shooting. A key piece of Crown evidence came from a witness, Albaghi, who had given evidence at committal proceedings but travelled overseas without notice shortly before the trial began.
The appellant appealed his convictions on several grounds, including that the verdict was unreasonable, that a particular jury direction (a "Shepherd direction") was required but not given, that the committal deposition of the absent witness was wrongly admitted, and that the trial judge erred in refusing an adjournment to allow that witness to be cross-examined in person.
Legal Issues
- Whether the verdicts were unreasonable, given the case rested entirely on circumstantial evidence of identity
- Whether the trial judge was required to give a "Shepherd direction" (a direction that the jury must be satisfied of each intermediate fact beyond reasonable doubt before drawing an inference of guilt)
- Whether the committal deposition of Albaghi was properly admitted under s 65 of the Evidence Act on the basis that he was "not available to give evidence"
- Whether "all reasonable steps" had been taken to secure Albaghi's attendance, as required by the relevant provisions of the Evidence Act dictionary
- Whether the trial judge's refusal to adjourn the trial to pursue Albaghi's attendance was an error in the exercise of discretion
Decision
Unreasonable verdict. The Court of Criminal Appeal conducted a careful review of the evidence and concluded that a jury acting reasonably was entitled to be satisfied beyond reasonable doubt that the appellant was the shooter. The circumstantial case, while not supported by a direct eyewitness to the firing, was sufficient when the combined evidence was assessed as a whole.
Shepherd direction. The Court found no necessity for a Shepherd direction on the facts of this case. A Shepherd direction is required where a jury must find specific intermediate facts before it can reason toward guilt; here, the structure of the circumstantial case did not require the jury to pass through discrete intermediate facts in that way.
Admissibility of Albaghi's committal deposition under s 65 of the Evidence Act. Albaghi had been subpoenaed to give evidence at trial but departed overseas very shortly beforehand without notifying the Crown or police. The Court held that he was "not available to give evidence" within the meaning of s 65(1) of the Evidence Act and that all reasonable steps had been taken to secure his attendance under clause 4(1)(e) of Part 2 of the Dictionary to that Act. His committal evidence was therefore correctly admitted under s 65(3). The Court confirmed that a witness who deliberately absents himself to avoid giving evidence can properly be found "not available" for these purposes.
Adjournment refusal. The trial judge refused the adjournment sought by the appellant after ruling the committal deposition admissible. The Court of Criminal Appeal held the refusal was correct in result, though not entirely for all the reasons given. The critical finding was that Albaghi had deliberately absented himself to avoid giving evidence, making it unlikely, or at best highly doubtful, that he would attend even if an adjournment were granted. An indefinite adjournment on the mere hope that cross-examination might yield favourable evidence was untenable, and the interests of finality, fading memories, and the community's interest in prompt resolution of serious criminal charges all weighed against it.
Orders Made
- Appeal against convictions dismissed.
Key Takeaways
- A conviction based entirely on circumstantial evidence of identity is not unreasonable merely because no witness directly observed the accused committing the offence; the jury is entitled to draw inferences from the combination of circumstances proved.
- A Shepherd direction is only required where the jury must affirmatively find particular intermediate facts as stepping stones to a finding of guilt; not every circumstantial case demands one.
- Under s 65 of the Evidence Act, a witness who deliberately travels overseas shortly before trial without notifying the Crown or police, in order to avoid giving evidence, can satisfy the "not available to give evidence" threshold, provided all reasonable steps to secure attendance have been taken.
- In exercising discretion under s 192 of the Evidence Act on whether to admit prior testimony, and when considering an adjournment application, the deliberate evasion of a witness is a weighty factor; an indefinite adjournment premised on a tenuous hope of securing that witness is unlikely to be granted.
- Refusing an adjournment may be correct in result even where some of the reasons given by the trial judge are not sustained on appeal, provided the outcome is supportable on the remaining grounds.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65(1), 65(3), 192; Part 2, Dictionary, cl 4(1)(e)
- Crimes Act 1900 (NSW), ss 33, 33A
- Criminal Procedure Act 1986 (NSW), s 285
Cases
- Barca v The Queen (1975) 133 CLR 82
- House v The King (1936) 55 CLR 499
- Knight v The Queen (1992) 66 ALJR 860
- M v The Queen (1994) 181 CLR 487
- Martin v Osborne (1936) 55 CLR 367
- Plomp v The Queen (1963) 110 CLR 234
- R v Teasdale [2004] NSWCCA 91
- Shepherd v The Queen (1990) 170 CLR 573
- The Queen v Hillier (2007) HCA 13