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Court of Criminal Appeal 19 July 2010

KUTSCHERA v R

[2010] NSWCCA 150

Homicide

Citation: Kutschera v R [2010] NSWCCA 150
Court: New South Wales Court of Criminal Appeal
Date: 19 July 2010
Judge(s): McClellan CJ at CL, RS Hulme J, Johnson J

Background

The appellant was convicted by jury on 24 September 2008 of murdering Lucas Gleeson on 21 July 2007. Fullerton J sentenced him to 26 years and 8 months imprisonment, with a non-parole period of 20 years, both periods commencing on the date of the offence.

The Crown's case relied in part on the evidence of a witness, Adam Newbold, who had been present at the scene on the night of the murder. Newbold had originally been charged with murder but that charge was dropped, partly on the basis of his record of interview in which he minimised his own role and implicated the appellant. He subsequently gave evidence for the Crown under an undertaking, which was taken into account at his sentencing for other offences committed on the same night.

The appellant challenged only his conviction, on a single ground: that the trial judge's directions to the jury regarding Newbold's evidence were inadequate under s 165 of the Evidence Act 1995 (NSW).

  • Whether the trial judge's warning to the jury about the potential unreliability of Newbold's evidence complied with the obligations imposed by s 165 of the Evidence Act 1995 (NSW).
  • Whether the warning failed to address Newbold's possible criminal involvement in the murder itself, his dropped murder charge, and his motive to fabricate or minimise his role.
  • Whether any deficiency in the warning constituted a miscarriage of justice warranting the quashing of the conviction.

Decision

The Court examined the terms of the warning Fullerton J gave the jury about Newbold's evidence. The trial judge had warned the jury that witnesses in Newbold's position may give unreliable evidence, may construct false stories to downplay their own involvement, and may feel locked into a version that implicates others. She also directed the jury to look to the broader evidence when assessing any concerns about Newbold's reliability.

The appellant argued the warning was materially deficient in several respects. These included the failure to tell the jury that Newbold may himself have been criminally involved in the murder, that he had been charged with murder before that charge was dropped, that he had strong self-protective motives to implicate the appellant, and that his presence at the scene gave him the opportunity to weave plausible but false detail into his account. The appellant also contended that the warning was effectively undermined by the judge's statement that Newbold's sentence was not actually reduced.

RS Hulme J, with whom McClellan CJ at CL and Johnson J agreed, accepted that the warning could have been more extensive and addressed the possibility of Newbold's involvement in the murder more directly. However, the Court applied the proviso and concluded that no miscarriage of justice had occurred. The independent evidence against the appellant was substantial: multiple witnesses placed him or his vehicles at the relevant locations, there were unexplained wet marks on his car when police arrived around 5am, and the alternative hypothesis, that one or more persons deceptively similar to the appellant in appearance were involved in the key incidents and then used his car and entered his house, was considered so improbable as to be untenable.

The Court concluded that even if a stronger warning about Newbold's evidence ought to have been given, the verdict was not unsafe given the strength and independence of the remaining evidence.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that s 165 of the Evidence Act 1995 (NSW) requires a trial judge, on request, to warn the jury that evidence from a witness who might reasonably be supposed to have been criminally concerned in the relevant events may be unreliable, and to identify the matters that may affect reliability.
  • Where a witness has been charged with a serious offence arising from the same events and that charge has been dropped in circumstances connected to their cooperation, those matters are relevant to the scope of the s 165 warning and should ordinarily be addressed.
  • A deficiency in a s 165 warning does not automatically warrant a new trial; the Court applied the proviso under s 6 of the Criminal Appeal Act 1912 (NSW) and dismissed the appeal because no miscarriage of justice resulted from the inadequacy.
  • In assessing whether a miscarriage occurred, the Court considered the totality of the independent evidence against the appellant, and found the case against him remained overwhelming even when Newbold's evidence was set aside.
  • No error was established sufficient to disturb the conviction where the remaining, unchallenged evidence was so cogent that the jury must inevitably have reached the same verdict.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Act 1912 (NSW), s 6 (proviso)
- Criminal Appeal Rules, r 4

Cases:
- Jenkins v The Queen (2004) 79 ALJR 252; [2004] HCA 57
- Kanaan v The Queen [2006] NSWCCA 109