Citation: GAR v R (No 2) [2010] NSWCCA 164
Court: New South Wales Court of Criminal Appeal
Date: 5 August 2010
Judge(s): Tobias JA, Johnson J, Rothman J
Background
The appellant was convicted in the District Court in 2003 of armed robbery, three counts of detain for advantage, and stealing a motor vehicle, all arising from a robbery of a Leagues Club in Queanbeyan in July 1988. He was originally charged shortly after the robbery in 1988, but the Director of Public Prosecutions directed no further proceedings in 1992. Following the appellant's divorce in early 2002, his former wife made a statement to police implicating him in the robbery, and he was recharged and stood trial before Hock DCJ and a jury in June 2003.
The jury convicted the appellant on all counts, and he was sentenced to an aggregate term of 14 years' imprisonment with an 11-year non-parole period. The appellant did not challenge his sentence. His appeal to the Court of Criminal Appeal was confined to conviction.
This appeal was one of three heard concurrently, all involving the same appellant. The other two appeals concerned convictions arising from separate incidents, including a sexual assault conviction where the key Crown witness was the same former wife. Initials were used throughout all three judgments to prevent identification of the complainant in the sexual assault proceedings.
Legal Issues
- Whether the trial judge erred in refusing to discharge the jury during the evidence of the former wife and again during the summing up
- Whether the trial judge erred in failing to give adequate directions under s 165 of the Evidence Act 1995 concerning the reliability of the former wife's evidence
- Whether the trial judge erred in failing to give a Longman warning about the dangers of conviction arising from the lengthy delay between the alleged offences (1988) and the trial (2003)
- Whether fresh evidence, said to show the former wife gave false or fabricated evidence, warranted a new trial
- Whether the jury's verdicts were unreasonable or unsupported by the evidence
Decision
The Court dismissed each ground of appeal. On the refusal to discharge the jury, the Court found no error in the trial judge's decisions to allow the trial to continue, both during the former wife's evidence and at the summing-up stage. The circumstances did not warrant discharging the jury, and the judge's handling of the relevant events was within the proper exercise of her discretion.
On the directions grounds, the Court found that the trial judge's directions under s 165 of the Evidence Act 1995 were adequate in the circumstances. The Court also rejected the argument that a Longman warning (a specific warning about the risk of convicting on evidence affected by delay in prosecution) was required, finding that the nature of the evidence and the particular circumstances of the delay did not attract that obligation on the facts of this case.
On the fresh evidence ground, the Court found that the proposed fresh evidence did not meet the threshold required to justify a new trial. The evidence was said to demonstrate that the former wife had fabricated her evidence and had also procured a family member to give false evidence in related proceedings. The Court was not persuaded that this material had the requisite character or cogency to warrant overturning the conviction.
On the unreasonable verdict ground, the Court found the Crown case was strong and, if anything, strengthened by the defence case at trial, including the appellant's own evidence. The appellant's account of his presence near the robbery scene was found to strain credibility, and it was clearly open to the jury to be satisfied of guilt beyond reasonable doubt on each charge.
Orders Made
- Leave to appeal granted
- Appeal against conviction dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a refusal to discharge a jury is a matter within the trial judge's discretion, and appellate intervention requires demonstration of error in that exercise.
- A Longman warning about the dangers of convicting on delayed evidence is not automatically required in every case involving historical offences; the obligation depends on the nature of the evidence and the circumstances of the delay.
- Fresh evidence tendered on appeal must meet a sufficiently cogent threshold before it will justify setting aside a conviction; allegations that a key Crown witness fabricated evidence did not satisfy that threshold here.
- Where a defendant's own trial evidence strains credibility and reinforces rather than undermines the Crown case, this is a legitimate factor in assessing whether a verdict was reasonably open to the jury.
- Sufficient evidence existed to support all five convictions, and no significant possibility of an innocent person having been convicted was established.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 90A, 97(1), 154A, 578A
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules
Cases:
- GAR v R (No 1) [2010] NSWCCA 163
- GAR v R (No 3) [2010] NSWCCA 165
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- Rasic v R [2009] NSWCCA 202
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
- Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
- Doggett v The Queen [2001] HCA 46; 208 CLR 343
- Sieders v R [2008] NSWCCA 187; (2008) 72 NSWLR 417
- Clark v R [2010] NSWCCA 94
- R v Johnston (1998) 45 NSWLR 362
- Kanaan v R [2006] NSWCCA 109
- Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108
- Toalepai v R [2009] NSWCCA 270
- Maric v The Queen (1978) 52 ALJR 631