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Court of Criminal Appeal 25 March 2009

GORDON v R

[2009] NSWCCA 72

Public order & justice offences
CRIMINAL LAW PARTICULAR OFFENCES INTERFERENCE WITH WITNESSES OR JURORS

Citation: GORDON v R [2009] NSWCCA 72
Court: Court of Criminal Appeal, New South Wales
Date: 25 March 2009
Judge(s): Grove J, Blanch J, Price J

Background

The appellant was convicted in the District Court of threatening to cause injury or detriment to a person with intent to influence a witness, contrary to s 322(a) of the Crimes Act 1900. The offence arose during the appellant's own trial at Campbelltown District Court on a charge of armed robbery.

The prosecution alleged that while a Crown witness, Savuth Nuth, was giving evidence during that robbery trial on 27 February 2007, the appellant made a series of deliberate gestures toward him. Nuth interpreted these gestures as a threat to cut his head off. The associate to the presiding judge also witnessed the gestures and described them as threatening. Nuth subsequently said the conduct affected his willingness to answer questions, and the robbery trial aborted.

The appellant was sentenced to a non-parole period of 3 years commencing 2 February 2009, with a balance of term of 1 year. He appealed both the conviction and the sentence.

  • Whether trial counsel's failure to cross-examine the Crown witnesses about how Nuth came to report the alleged threat amounted to a miscarriage of justice
  • Whether the trial judge erred in directing the jury to disregard, as unsupported by evidence, defence counsel's submission that police had planted the idea of a threat in Nuth's mind
  • Whether opinion evidence given by the court associate (Ms Johnson) about the threatening nature of the gestures was admissible
  • Whether the sentence imposed was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no miscarriage of justice arising from trial counsel's approach to cross-examination. Defence counsel had in fact addressed the jury on the theory that police had suggested the threat to Nuth, but there was simply no evidentiary foundation for that proposition. The trial judge's direction to the jury that no such evidence existed was accurate and appropriate, not a misdirection.

On the admissibility of the associate's opinion evidence, the Court accepted that Ms Johnson's statement that she found the gestures "quite threatening" was technically opinion evidence going to a fact in issue. However, applying the proviso under s 6(1) of the Criminal Appeal Act 1912, the Court was satisfied that no substantial miscarriage of justice had occurred. The evidence from Nuth himself about his own reaction, together with the other evidence in the trial, made the conviction inevitable regardless of the associate's characterisation.

On sentence, the Court noted that the non-parole period for the witness intimidation offence was structured so that it ran concurrently with existing sentences and, in practical terms, added only two days to the appellant's overall head sentence. The Court found that offences against the administration of justice warrant deterrent sentences. Given the appellant's prior criminal history and the deliberate nature of his conduct in attempting to silence a reluctant witness during his own trial, the sentence was not excessive.

Orders Made

  • Appeal against conviction dismissed
  • Appeal against sentence dismissed

Key Takeaways

  • A conviction for threatening a witness under s 322(a) of the Crimes Act 1900 can be supported where evidence establishes deliberate gestural conduct, interpreted by the witness as a threat, that affected the witness's willingness to give evidence.
  • Where defence counsel advances a theory to the jury that lacks any evidentiary foundation, a trial judge's direction correcting that submission does not constitute a misdirection.
  • The Court of Criminal Appeal confirmed that admitting technically inadmissible opinion evidence does not automatically warrant a new trial; the proviso under s 6(1) of the Criminal Appeal Act 1912 applies where the remaining evidence renders conviction inevitable.
  • Offences against the administration of justice have consistently attracted deterrent sentences, particularly where the offender has a prior criminal history and the conduct was designed to frustrate ongoing proceedings.
  • In assessing whether a sentence is manifestly excessive, the Court examined the structure of the total sentence package, noting that real practical effect on total time in custody is a relevant consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 322(a), 323(a)
- Evidence Act 1995 (NSW), ss 50(3), 76, 76(1), 77
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- M v The Queen (1994) 181 CLR 487
- Hargan v The Queen (1919) 27 CLR 13
- Ratten v The Queen (1974) 131 CLR 510
- Whitehorn v The Queen (1983) 152 CLR 657
- Weiss v The Queen (2005) 224 CLR 300