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Court of Criminal Appeal 7 May 2010

Rees v Regina

[2010] NSWCCA 84

Also reported as 200 A Crim R 83
Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW ARMED ROBBERY WITH OFFENSIVE WEAPON CIRCUMSTANTIAL EVIDENCE SHEPHERD DIRECTION SHEPHERD DIRECTION NOT REQUIRED CRIMINAL LAW

Citation: Rees v Regina [2010] NSWCCA 84
Court: New South Wales Court of Criminal Appeal
Date: 7 May 2010
Judge(s): Beazley JA; Hulme J; Latham J

Background

The appellant was convicted by a jury in the District Court of two counts of armed robbery with an offensive weapon and one count of aggravated break, enter and steal, all arising from a violent incident at a Camden flat in the early hours of 25 November 2006. The Crown's case was entirely circumstantial: no witness identified the appellant as one of the assailants. The prosecution relied on his association with two co-offenders in the hours before the attack, his presence in a car registered to one of them, and items connected to the offences found in the bedroom he was occupying at a nearby property.

The offences involved a group of men arriving at the flat, assaulting guests in the common area with a pole or baseball bat, stealing a wallet and a mobile phone, and then forcing entry into the flat itself. Several witnesses heard one attacker call out the name "Ray", and one witness who knew a co-offender recognised his voice. The maximum penalty for each offence was 20 years imprisonment.

The appellant challenged his conviction on four grounds, centring on the admission of evidence, the trial judge's criticism of defence counsel's jury address, the judge's refusal to recuse herself, and the absence of a particular jury direction.

  • Whether the trial judge erred in admitting the evidence of a prosecution witness (Trudy Plackett)
  • Whether the trial miscarried when the trial judge criticised defence counsel's jury address without first giving counsel an opportunity to be heard
  • Whether the trial judge should have recused herself and discharged the jury following that criticism, on the basis of apprehended bias
  • Whether the trial judge was required to give a Shepherd direction (that is, a direction requiring the jury to be satisfied beyond reasonable doubt of each intermediate fact in a circumstantial case) in relation to the finding of a stolen wallet in the appellant's bedroom

Decision

The Court dismissed each ground of appeal. On the admission of Plackett's evidence, the Court found the evidence was properly admitted. It formed part of the circumstantial case linking the appellant to his co-offenders in the hours before the offences and was relevant to placing him in their company travelling towards Camden.

On the question of the trial judge's criticism of counsel's submission, the Court found no miscarriage of justice. Defence counsel had put to the jury a proposition about circumstantial evidence that stated the wrong legal principle. The trial judge was entitled, and indeed obliged, to correct that misdirection before the jury retired for the weekend. Counsel had been given prior opportunities to indicate what directions he sought and had not fully used them. The Court accepted that the timing and manner of correction were a matter for the trial judge, not a matter for counsel's election.

The apprehended bias ground was rejected decisively. The Court applied the principle that a fair-minded observer must be taken to know all the relevant circumstances, not merely the isolated remark or the episode of refusing to hear counsel at a moment of his choosing. Taking all the circumstances into account, including the judge's invitation to counsel to seek further directions at the next sitting, no reasonable apprehension of bias arose.

On the Shepherd direction, the Court held that no such direction was required. The finding of the wallet in the appellant's bedroom was not an "intermediate fact" that the jury needed to find beyond reasonable doubt before using it as part of the circumstantial chain. A Shepherd direction is required only where a specific intermediate fact is indispensable to the conclusion of guilt; the wallet evidence here did not occupy that role in the structure of the Crown's case.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • A Shepherd direction (requiring the jury to be satisfied beyond reasonable doubt of each intermediate fact) is not automatically required whenever a case rests on circumstantial evidence. It is only necessary where a specific intermediate fact is indispensable to the conclusion of guilt.
  • Where defence counsel puts a legally incorrect proposition to the jury during closing address, the trial judge is entitled to correct that misdirection promptly, including in the course of summing-up, without being required to give counsel an opportunity to argue against the correction at a time of counsel's own choosing.
  • In dismissing the apprehended bias ground, the Court of Criminal Appeal confirmed that a fair-minded observer must assess all relevant circumstances in context, not focus on an isolated episode. A judge's refusal to hear counsel at a particular moment, taken in full context, did not support a reasonable apprehension of bias.
  • No denial of procedural fairness arose where counsel had earlier opportunities to flag the directions sought, had not fully exercised those opportunities, and was subsequently invited to seek further directions at the next sitting.
  • Circumstantial evidence linking an accused to co-offenders in the hours before an offence, including presence together in a vehicle and overheard statements of intent, can properly ground a conviction where no direct identification evidence is available.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 112(2)
- Evidence Act 1995 (NSW)

Cases:
- Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
- Regina v Merritt [1999] NSWCCA 29
- Antoun v R [2006] HCA 2; (2006) 224 ALR 51
- Burrell v Regina [2009] NSWCCA 163
- Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 557
- Davidson v R [2009] NSWCCA 150
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
- Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
- Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
- Minniti v R [2006] NSWCCA 30; 159 A Crim R 394
- R v Hillier [2007] HCA 13; (2007) 228 CLR 618
- R v Keenan [2009] HCA 1; (2009) 83 ALJR 243
- R v Zaiter [2004] NSWCCA 35; 196 FLR 431
- Velevski v The Queen [2002] HCA 4; (2004) 76 ALJR 402
- Vakauta v Kelly (1988) 13 NSWLR 502
- R v Taylor (Court of Criminal Appeal, 18 April 1995, unreported)