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Court of Criminal Appeal 5 November 2009

Bianca Shandell SANTO v R

[2009] NSWCCA 269

Theft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION ROBBERY IN COMPANY OFFENDER AS A WITNESS CALLED AS WITNESS IN DEFENCE CASE

Citation: Bianca Shandell Santo v R [2009] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 5 November 2009
Judges: Young JA, Hidden J, Latham J

Background

The appellant was convicted in the District Court of robbery in company following an incident at a Paddington unit where she was staying. The complainant, a man who had engaged her services as a sex worker, alleged that she removed approximately $430 from his jacket pocket while her cousin, Luke Seiden, assaulted him. The appellant denied any theft or pre-arranged plan to rob the complainant.

Mr Seiden was not tried alongside the appellant. He had already pleaded guilty in the Local Court to assault occasioning actual bodily harm and was placed on a good behaviour bond. At the appellant's trial, the Crown declined to call him as a witness, and he ultimately gave evidence for the defence, saying he did not see the appellant take any money and denied any agreement to rob the complainant.

The appellant appealed her conviction on four grounds, three concerning specific trial irregularities and a fourth asserting that the combination of those matters produced an overall miscarriage of justice.

  • Whether the Crown's refusal to call Mr Seiden as a witness gave rise to a miscarriage of justice
  • Whether evidence of the specific offence to which Mr Seiden pleaded guilty (assault occasioning actual bodily harm, rather than robbery in company) was admissible when he gave evidence in the defence case
  • Whether the trial judge should have discharged the jury after the appellant inadvertently revealed she had previously been in custody for a matter unrelated to the offence charged
  • Whether the cumulative effect of those three complaints established that the trial had miscarried

Decision

Crown's refusal to call Mr Seiden. The Court confirmed that the Crown retains a discretion in deciding which witnesses to call, but that discretion is not unfettered. Here, the Crown had secured Mr Seiden's attendance and the prosecutor gave reasons for not calling him, principally that his evidence would support the defence rather than the prosecution. Because the defence was then able to call Mr Seiden and did so, the Court found no miscarriage of justice arose from the Crown's decision.

Admissibility of Mr Seiden's specific plea. Defence counsel sought to ask Mr Seiden what offence he had pleaded guilty to, in order to prevent the jury from assuming he had pleaded to the same charge as the appellant (robbery in company). The trial judge rejected that question. The Court of Criminal Appeal upheld that ruling, applying the Privy Council decision in Hui Chi-Ming v The Queen and the NSW Court of Appeal decision in R v Howard, both of which establish that an accomplice's conviction or plea to a different charge is generally inadmissible on relevance grounds. Young JA acknowledged that without the answer the jury might possibly have assumed Mr Seiden pleaded to the same charge, but concluded that this potential for misunderstanding did not meet the threshold of an "exceptional feature" that would render the evidence relevant.

Unguarded disclosure of prior custody. During her evidence, the appellant spontaneously revealed that she had been in custody for approximately 12 months prior to the incident, evidently in connection with some other matter. Defence counsel applied for the jury to be discharged, but the trial judge declined and instead gave the jury a strong direction to put the matter entirely from their minds. The Court held that the direction was adequate. It also noted that whether to discharge a jury is a matter squarely within the trial judge's discretion, one that an appellate court will not lightly disturb.

Cumulative miscarriage. Having rejected each of the three specific grounds individually, the Court found that no basis remained for the fourth ground asserting overall miscarriage, and dismissed the appeal.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Crown's discretion not to call a witness does not automatically produce a miscarriage of justice, particularly where the defence is able to call and does call that witness itself.
  • Under the principle in Hui Chi-Ming v The Queen and R v Howard, evidence of the specific offence to which a co-offender pleaded guilty is generally inadmissible in a co-accused's trial on relevance grounds, absent some exceptional feature making it relevant.
  • An accused's unguarded disclosure of prior, unrelated custody does not necessarily require discharge of the jury; a sufficiently clear and prompt direction to the jury can, in appropriate circumstances, cure the prejudice.
  • In dismissing the appeal, the Court reaffirmed that discharge of a jury is a discretionary decision for the trial judge, informed by the judge's direct experience of the trial's progress and atmosphere, and is not lightly overturned on appeal.
  • No miscarriage of justice arose from the combination of the three grounds where each individual complaint was assessed and found insufficient to affect the verdict.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Hui Chi-Ming v The Queen [1992] 1 AC 34 (Privy Council)
- R v Howard & Ors (1992) 29 NSWLR 242
- The Queen v Apostilides (1984) 154 CLR 563
- Richardson v The Queen (1974) 131 CLR 116
- R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450
- Kanaan & Ors v R [2006] NSWCCA 109
- R v Booth [1982] 2 NSWLR 847
- R v Marsland (NSWCCA, unreported, 17 July 1991)
- Qing An v R [2007] NSWCCA 53