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Court of Criminal Appeal 4 May 2011

Kuehne v R

[2011] NSWCCA 101

Theft & property
CRIMINAL LAW CONVICTION APPEAL S 137 EVIDENCE ACT 1995 NO ERROR IN ADMITTING EVIDENCE SENTENCE APPEAL NO VARIATION OF STATUTORY PROPORTION

Citation: Kuehne v R [2011] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 4 May 2011
Judges: McColl JA, RS Hulme J, Hislop J

Background

The appellant was convicted by jury of breaking and entering a bakery in Blackett at approximately 3.50 am on 15 November 2007, in company with two other persons, and stealing a cash register. The offence was charged under s 112(2) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years.

The prosecution's key evidence included finger and palm prints found on a Colorbond fence at the rear of the bakery, which were matched to the appellant. During his police interview, the appellant was asked whether he could explain how his prints came to be on the fence, to which he replied "Not really."

The appellant was sentenced to a non-parole period of five years, commencing 3 December 2008, with a balance of term of one year and eight months. He appealed against both conviction and sentence.

  • Whether the trial judge erred in admitting questions and answers 145 to 156 of the police record of interview under s 137 of the Evidence Act 1995, given the risk that the jury would infer the appellant had a prior criminal history because police already held his fingerprints
  • Whether the trial judge should have discharged the jury following the admission of that evidence, together with related police officer testimony
  • Whether the sentencing judge erred by failing to apply the totality principle, and by failing to treat institutionalisation and the appellant's protective custody status as special circumstances justifying a departure from the statutory non-parole proportion

Decision

On the conviction appeal, Hislop J (with whom McColl JA and RS Hulme J agreed) found no error in the trial judge's decision to admit questions 145 to 156 of the police interview. The trial judge had accepted that the questions were fundamental to the Crown case and concluded that the jury was unlikely to misuse them in the way the appellant feared. Before the evidence went to the jury, the portions most likely to suggest a prior criminal record (question 154 and part of question 155) were excised with the Crown's consent, reducing the risk of prejudicial inference.

The appellant also challenged certain statements made by police witnesses that could implicate a similar risk of prior-record inference. The Court found that the trial judge had properly considered these concerns and that no error was established in declining to discharge the jury. The Crown had neither relied upon nor drawn attention to the possibility of prior police contact, and appropriate directions were available to address any residual issue.

On the sentence appeal, the Court found that the sentencing judge had been fully aware of the submissions on totality, institutionalisation, and protective custody. Her Honour expressly considered all three matters and concluded they gave no good reason to depart from the standard non-parole period or to find special circumstances. The Court of Criminal Appeal noted its role as a court of error, and held that no error had been demonstrated and that no less severe sentence was warranted in law.

Orders Made

  • Conviction appeal dismissed
  • Application for leave to appeal against sentence granted
  • Sentence appeal dismissed

Key Takeaways

  • In dismissing the conviction appeal, the Court confirmed that a trial judge's s 137 balancing exercise involves weighing the probative value of evidence against the danger of unfair prejudice, and that excising the most prejudicial portions of an interview can be a sufficient and appropriate remedy short of wholesale exclusion.
  • Where the probative value of an accused's response in a police interview is significant to the Crown case, a trial judge may decline to exclude surrounding questions even where they carry some risk of implying prior police contact, provided that risk is managed by careful editing and available directions.
  • A sentencing court is not required to find special circumstances merely because totality, institutionalisation, or protective custody are raised as submissions; it is sufficient that the court demonstrates it has considered those matters and found them unpersuasive.
  • The Court of Criminal Appeal reiterated the principle from R v Simpson that it will interfere with a sentence only if error is established and the court forms a positive opinion that a less severe sentence is warranted in law and should have been passed.
  • No error was established across either the conviction or sentence grounds, resulting in both appeals being dismissed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Evidence Act 1995 (NSW), s 137
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704
- R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168
- R v MAK [2006] NSWCCA 381, (2006) 167 A Crim R 159
- R v Mostyn [2004] NSWCCA 97, (2004) 145 A Crim R 305
- R v Lumsden [2003] NSWCCA 83
- R v Totten [2003] NSWCCA 207
- R v Durocher-Yvon [2003] NSWCCA 299, (2003) 58 NSWLR 581
- R v Fidow [2004] NSWCCA 172
- Gilmour v EPA; Tableland Topdressing v EPA [2002] NSWCCA 399, (2002) 55 NSWLR 593