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Court of Criminal Appeal 4 June 2012

Cottrell v R

[2012] NSWCCA 117

Public order & justice offences
CRIMINAL LAW CONVICTION APPEAL JURY VERDICT QUINTESSENTIALLY JURY QUESTIONS NO MISCARRIAGE OF JUSTICE.

Citation: Cottrell v R [2012] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 4 June 2012
Judge(s): McClellan CJ at CL, Blanch J, Hislop J

Background

The applicant was a chief transit officer employed by Railcorp NSW who supervised a team of uniformed transit officers at Central Railway Station. In September 2004, he and a colleague responded to a dispute involving a member of the public and that person's companions at the station's ticket barriers. The encounter became physical, and the member of the public was brought to the ground and handcuffed before being released.

Following the incident, the member of the public lodged a formal complaint and an assault charge was subsequently brought against the applicant. The Crown alleged that, in anticipation of that complaint, the applicant prevailed upon three colleagues to make written statements or notebook entries containing false accounts of the incident. It was further alleged he persuaded two of those colleagues to give false evidence on his behalf in Local Court proceedings brought against him.

A District Court jury found the applicant guilty on all five counts: three counts of causing a person to make a written statement containing a false description of events with intent to pervert the course of justice, and two counts of persuading a person to commit perjury. He received an overall sentence of 12 months imprisonment and was subsequently released to parole. The appeal was against conviction only.

  • Whether the jury's verdicts of guilty were unreasonable or could not be supported having regard to the evidence, within the meaning of s 5(1)(b) of the Criminal Appeal Act 1912
  • Whether the Court of Criminal Appeal, on its own independent assessment of the evidence, could conclude it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt

Decision

The sole ground of appeal was that the verdicts were unreasonable or unsupported by the evidence. The Court applied the test from SKA v R (2011) 243 CLR 400: whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The Court confirmed that this task requires an independent assessment of both the sufficiency and quality of the evidence.

Hislop J, with whom McClellan CJ at CL and Blanch J agreed, concluded that on the whole of the evidence it was open to the jury to find the applicant guilty as charged. He emphasised that assessing witness demeanour and credibility is primarily the jury's function, and the jury had been appropriately directed on the relevant issues.

The applicant's challenges to the Crown evidence went to matters that were quintessentially for the jury to resolve. The jury's verdicts indicated it accepted the Crown case and rejected the applicant's evidence as unreliable. No miscarriage of justice was established.

Blanch J added that, having reviewed the evidence of the three key Crown witnesses, he found it compelling. Although those witnesses could be criticised for earlier untruths, he was satisfied their evidence proved guilt beyond reasonable doubt.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the test for an unreasonable verdict requires the appellate court to assess independently whether it was open to the jury, on the whole of the evidence, to be satisfied of guilt beyond reasonable doubt (following SKA v R).
  • In conducting that assessment, the Court must not discount the jury's primary role in determining guilt or innocence, nor the advantage the jury held in seeing and hearing witnesses give their evidence.
  • Credibility and reliability of witnesses are quintessentially jury questions, and a verdict will not be set aside merely because a witness could be criticised for prior inconsistent conduct or earlier untruths.
  • No weight was attached to comments made by the trial judge during sentencing, consistent with the approach confirmed in SKA v R.
  • In dismissing the appeal, the Court left intact the principle that appellate intervention on an unreasonable verdict ground requires more than identifying areas where the evidence was contested or witnesses were imperfect.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Crimes Act 1900 (NSW), ss 319, 333(1)
- Evidence Act 1995 (NSW)

Cases:
- SKA v R [2011] HCA 13; (2011) 243 CLR 400
- M v R (1994) 181 CLR 487
- Rasic v R [2009] NSWCCA 28