Citation: Bianca Shandell SANTO v R [2009] NSWCCA 269
Court: Court of Criminal Appeal (NSW)
Date: 5 November 2009
Judge(s): Young JA, Hidden J, Latham J
Background
The appellant was convicted in the District Court of robbery in company, arising from an incident at a Paddington unit in March 2007. The complainant, a man who had engaged the appellant's services as a sex worker, attended the unit where the appellant was staying. He alleged that, while her cousin assaulted him, the appellant reached into his jacket pocket and removed approximately $430 in cash.
The Crown case was that the appellant and her cousin, Luke Seiden, had planned the robbery in advance, luring the complainant to the unit for that purpose. Mr Seiden had already been dealt with before the trial: he pleaded guilty in the Local Court to assault occasioning actual bodily harm and was placed on a good behaviour bond. The appellant denied stealing any money and denied any pre-arranged plan with Mr Seiden.
The appellant was convicted and sentenced to imprisonment. She appealed against her conviction on four grounds, three of which raised specific complaints about the conduct of the trial.
Legal Issues
- Whether the Crown's refusal to call Mr Seiden as a witness, without first conferring with him, gave rise to a miscarriage of justice
- Whether the trial judge erred in excluding evidence of the specific offence to which Mr Seiden had pleaded guilty, particularly after he volunteered during cross-examination that he had "pleaded guilty" and been sentenced
- Whether the trial judge should have discharged the jury after the appellant revealed during cross-examination that she had been in custody for a matter unrelated to the charge
- Whether the combination of those three matters, taken together, caused a miscarriage of justice
Decision
Ground 1: Crown's refusal to call Mr Seiden
The court applied the principles from The Queen v Apostilides (1984) 154 CLR 563 and R v Kneebone [1999] NSWCCA 279, which require a prosecutor who declines to call a material witness to be able to point to identifiable factors justifying that decision. The prosecutor here had not conferred with Mr Seiden and had not taken a statement from him. However, the court found that the appellant suffered no miscarriage of justice because Mr Seiden did give evidence, and his evidence was of limited value regardless of which party called him. He appeared clearly aligned with the defence and demonstrated a selective memory, and the court noted that had he been called in the Crown case, the prosecutor would likely still have been permitted to cross-examine him under s 38 of the Evidence Act 1995.
Ground 3: Excluding the nature of Mr Seiden's conviction
The appellant argued that Mr Seiden's unguarded reference to having "pleaded guilty" risked the jury assuming he had admitted guilt to the same charge of robbery in company, thereby undermining his evidence that there had been no joint criminal enterprise. Hidden J, with Young JA and Latham J agreeing, held that revealing the nature of his conviction would itself have been misleading. Telling the jury he was convicted only of assault occasioning actual bodily harm would likely have prompted speculation about why he had not been dealt with for robbery. The court followed R v Howard (1992) 29 NSWLR 242 and Hui Chi-Ming v The Queen [1992] 1 AC 34, confirming that the outcome of proceedings against a co-offender is generally irrelevant at a separate trial, unless some exceptional feature makes it relevant. No such exceptional feature existed here. The trial judge's direction to the jury, that the charge against Mr Seiden and how it was dealt with were immaterial, was adequate.
Ground 2: The appellant's reference to being in custody
The appellant inadvertently disclosed during cross-examination that she had been in custody for approximately 12 months prior to the incident. Defence counsel applied to discharge the jury, arguing the prejudice was irremediable given the jury was already aware the appellant was a sex worker and drug user. The trial judge declined to discharge the jury and instead gave a curative direction, telling jurors they did not know the circumstances of that custody, that she may have later been acquitted of whatever matter it related to, and that they should not speculate. The court held that this direction was adequate. Discharge of a jury is a matter within the trial judge's discretion, and the Court of Criminal Appeal found no basis to interfere with the exercise of that discretion here.
Ground 4: Combined effect
Because none of the individual grounds was established, the ground asserting that their combined effect caused a miscarriage of justice also failed.
Orders Made
- Appeal dismissed.
Key Takeaways
- A prosecutor's refusal to call a material witness will not automatically constitute a miscarriage of justice. Under Apostilides, the central question is whether, viewed against the whole of the trial, the verdict is unsafe or unsatisfactory, not whether the prosecutor's conduct was improper.
- Where a co-offender is called as a witness in the defence case rather than the Crown case, the absence of a prior interview by the prosecutor does not, of itself, require the conviction to be set aside if the witness gives evidence and the defence is able to test it.
- Evidence of the outcome of proceedings against a co-offender at a separate trial is generally inadmissible and irrelevant. Hui Chi-Ming v The Queen and R v Howard both confirm that some exceptional feature must be present before such evidence becomes relevant, and the Court of Criminal Appeal declined to find any such feature on these facts.
- Revealing the lesser charge to which a co-offender pleaded guilty can itself generate misleading and prejudicial jury speculation, a consideration that weighs against disclosure even where a co-offender's answer at trial has created ambiguity.
- An unguarded disclosure by an accused that she had been in custody on an unrelated matter does not necessarily require discharge of the jury. A carefully framed curative direction, instructing the jury not to speculate and explaining the potentially innocent explanations for prior custody, can be sufficient to address the prejudice.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated