Citation: Adam Peacock v R & Brendan Peacock v R [2008] NSWCCA 264
Court: New South Wales Court of Criminal Appeal
Date: 14 November 2008
Judge(s): McClellan CJ at CL, Nettle AJA, Simpson J
Background
Two brothers were convicted in the District Court of serious offences arising from an incident in the Royal National Park in April 2005. The Crown alleged that the brothers took two men into the bush under the pretext of harvesting cannabis, then bound, stabbed, and shot one of them (the victim survived), believing he had burgled their home. They were convicted of wounding with intent to murder, detaining a person for advantage with actual bodily harm, and detaining a second person for advantage. Each received a total sentence of 12 years' imprisonment with an eight-year non-parole period.
Shortly before trial, the victim admitted to the Crown prosecutor that he had in fact burgled the brothers' home, and named a companion in that burglary as "Dale Biddle." This information was disclosed to the defence, and Biddle's identity was explored at a pre-trial inquiry. No party took steps to locate Biddle or call him as a witness. At trial, the victim maintained that, despite having committed the burglary, he had denied it to his attackers out of fear.
The brothers applied for leave to appeal out of time against their convictions. Their sole ground was that the Crown's failure to call Biddle had caused a miscarriage of justice. This argument was founded on a statement Biddle had made after the trial, in which he denied involvement in the burglary.
Legal Issues
- Whether the Crown's failure to call Dale Biddle as a witness at trial constituted a miscarriage of justice.
- Whether Biddle's evidence would have gone to a fact in issue, or merely to the credibility of the victim (and thus attracted the collateral evidence rule, which generally bars contradicting a witness on a collateral matter).
- Whether, even if admissible, Biddle's evidence could have affected the outcome of the trial.
- Whether any failure to call Biddle was fairly attributable to the Crown, given that the defence also took no steps to locate or call him.
Decision
The Court dismissed both appeals. Simpson J (with whom McClellan CJ at CL and Nettle AJA agreed) held that the case against the Crown for failing to call Biddle was not made out on several independent bases.
The first difficulty was admissibility. The victim's admission that he had burgled the brothers' home was relevant to the Crown's case on motive, and the court accepted that the fact of the burglary itself was a fact in issue at trial. However, the identity of who accompanied the victim on the burglary was a different matter. That question went only to the credibility of the victim's account rather than to any fact in issue in the proceedings. Under the collateral evidence rule, a party generally cannot call extrinsic evidence to contradict a witness on a matter that is merely collateral. Biddle's denial of involvement would have been collateral and therefore likely inadmissible.
Second, even setting admissibility aside, the Court found no basis to criticise the Crown for not calling Biddle. At the time of trial, nobody, including the defence, appeared to have considered that Biddle could give relevant evidence. The defence made no request for Biddle to be called or made available. The Court observed that the defence's own legal representatives could equally have taken steps to locate Biddle, noting that a legal clerk had done so with apparent ease for the purposes of the appeal itself.
Third, even if Biddle had given evidence and it had been admitted, the Court concluded it was not reasonably open to find that his evidence would have affected the verdict. The Crown case rested on direct identification evidence from two witnesses, strong forensic material, and a body of circumstantial evidence. Biddle's denial of involvement in the burglary would not have undermined that case in any material way.
Orders Made
- Both appeals dismissed.
Key Takeaways
- The collateral evidence rule remains a significant constraint in criminal trials: extrinsic evidence contradicting a witness on a matter that goes only to credibility, rather than to a fact in issue, will generally be inadmissible.
- In dismissing the appeals, the Court of Criminal Appeal confirmed that the Crown's duty to call witnesses is not unlimited; a failure to call a witness does not constitute a miscarriage of justice unless the witness could have given relevant and admissible evidence that may have affected the outcome.
- Where the defence at trial was equally well-placed to locate a potential witness and chose not to, that fact weighs against a finding that the Crown's failure to call that witness was a miscarriage of justice.
- No miscarriage of justice arises simply because a witness makes a post-trial statement that might have assisted the defence, particularly where the statement would only have addressed a collateral matter.
- The Court drew a clear distinction between "the police" and "the prosecution" as separate entities: attributing knowledge or capacity to one does not automatically establish a failing on the part of the other.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 27, 86(2)(a), 86(3)
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases:
- Whitehorn v The Queen (1983) 152 CLR 657
- R v Apostilides (1984) 154 CLR 563
- R v Kneebone (1999) 47 NSWLR 450
- AG v Hitchcock (1847) 1 Ex 91
- R v Harrington [1998] 3 VR 531
- Nicholls v The Queen (2005) 219 CLR 196
- Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; 63 CLR 533
- Nudd v The Queen (2006) 225 ALR 161
- AK v Western Australia (2008) 232 CLR 438
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
- R v Basha (1989) 39 A Crim R 337
- R v Nicoletti & Tolone [2006] VSCA 175
- Palmer v The Queen [1998] HCA 2; 193 CLR 1
- R v Funderburk [1990] 1 WLR 587
- Adam v The Queen [2001] HCA 57; 207 CLR 96
- R v Chen [2002] NSWCCA 174