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Court of Criminal Appeal 5 August 2010

GAR v R (No 3)

[2010] NSWCCA 165

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL ALLEGATION OF UNREASONABLE VERDICT ANALYSIS OF EVIDENCE ROLE OF FRESH EVIDENCE APPEAL DISMISSED

Citation: GAR v R (No 3) [2010] NSWCCA 165
Court: Court of Criminal Appeal, New South Wales
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 with wounding, arising from a robbery at a Sydney hotel in the early hours of 15 May 2000. Two intruders entered the premises, assaulted the licensee with a baton, bound and gagged him, and stole over $200,000 in cash along with other valuables including a laptop computer. The appellant denied any involvement and ran an alibi case.

This appeal was one of three concurrent appeals by the same appellant, all heard together by the Court of Criminal Appeal in April 2010. The judgments were delivered simultaneously and are intended to be read together. Issues concerning fresh evidence were dealt with in detail in the companion judgment, GAR v R (No 1) [2010] NSWCCA 163.

The appellant's name is referred to by initials only throughout the judgment, owing to suppression obligations arising from a related sexual assault proceeding involving his former wife as complainant.

  • Whether the trial judge erred by refusing to give a warning under s 165 of the Evidence Act 1995 in relation to the evidence of a child witness (AR, the appellant's son)
  • Whether the jury's verdict of guilty was unreasonable or could not be supported by the evidence, rendering the conviction unsafe and unsatisfactory
  • Whether fresh evidence (concerning the credibility of the key prosecution witness, the appellant's former wife ER) warranted the conviction being overturned

Decision

Section 165 warning (Ground 2): Section 165 of the Evidence Act 1995 allows a trial judge to warn a jury about categories of evidence that may be unreliable. The Court found that a warning under s 165 generally requires an application by a party at trial. Because no such application had been made in the appropriate form at trial, the ground was not established. The Court also found it would not have been necessary to warn the jury about child witness bias in the circumstances of this case.

Unreasonable verdict (Ground 3): The Court reviewed the totality of the evidence and found it compelling, even setting aside the evidence of ER (the former wife). The circumstantial case against the appellant included: his presence near the hotel at the relevant time, his unexplained absence from his temporary home during the robbery, a height and general description matching one of the intruders, possession of a baton consistent with the weapon used, a sudden ability to spend significant sums of cash after the robbery, possession of cash bundled in the precise manner described by the robbery victim, and the appellant having given his son a laptop that matched the stolen item. When the direct evidence of ER and AR was added to this, the Court described the case against the appellant as overwhelming and rejected the unreasonable verdict ground.

Fresh evidence (Ground 4): The fresh evidence ground centred on allegations that ER had given false evidence against the appellant, and had previously procured her daughter to give fabricated evidence in other proceedings. This issue was dealt with in full in GAR v R (No 1). The Court's conclusions in that companion judgment were adopted here, and the ground was rejected.

Orders Made

  • Leave to appeal granted
  • The appeal is dismissed

Key Takeaways

  • Under s 165 of the Evidence Act 1995, a warning about potentially unreliable evidence generally requires a party to make an application at trial; the absence of such an application at trial is a significant obstacle to raising the issue on appeal.
  • A warning about child witness bias is not necessarily required in every case involving child evidence; the Court found such a warning would have been unnecessary on the facts here.
  • Sufficient circumstantial evidence existed independently of the key witness's direct testimony to sustain a guilty verdict, with the Court finding the remaining evidence alone was "significant" and, combined with witness evidence, "overwhelming."
  • In dismissing the appeal, the Court reinforced that an unreasonable verdict ground requires the appellate court to examine the whole body of evidence, not merely challenge individual witnesses or elements in isolation.
  • Fresh evidence going to a witness's credibility does not automatically undermine a conviction where other independent evidence strongly supports the jury's findings; the Court's analysis across the trilogy of appeals treated the fresh evidence question as a single exercise examined in the companion judgment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Evidence Act 1995 (NSW), s 165

Cases:
- GAR v R (No 1) [2010] NSWCCA 163
- GAR v R (No 2) [2010] NSWCCA 164
- Rasic v R [2009] NSWCCA 202
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
- Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
- R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506
- R v Clout (1995) 41 NSWLR 312
- R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301