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Court of Criminal Appeal 5 March 2012

Stojcevski v R

[2012] NSWCCA 27

Theft & property
CRIMINAL LAW APPEAL CONVICTION RELIABILITY OF WITNESSES S 165 EVIDENCE ACT 1995

Citation: Stojcevski v R [2012] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 05 March 2012
Judges: Whealy JA; R.S. Hulme J; Hidden J

Background

The appellant was convicted by a jury in the District Court at Wollongong of armed robbery. The victim, the owner of a newsagency at Coniston, was attacked early one morning by a balaclava-wearing intruder armed with a piece of timber and a knife, and robbed of approximately $80. There was no dispute that the robbery occurred. The sole question at trial was whether the appellant was the perpetrator.

The prosecution case rested substantially on the evidence of Craig Ceely, a man who shared accommodation with the appellant at a local boarding house. Ceely testified that the appellant had returned home after the robbery and confessed to him that he had robbed "the bloke at the newsagency." A series of SMS text messages exchanged between Ceely and the appellant later that morning also formed part of the Crown's evidence, along with the results of a police dog tracking exercise that led directly to the appellant's door.

Trial counsel for the appellant applied to the trial judge for a direction under s 165 of the Evidence Act 1995 (NSW) that Ceely's evidence might be unreliable. The trial judge refused the application, giving brief reasons. The appellant challenged that refusal on appeal.

  • Whether the trial judge erred in refusing to give a jury direction under s 165 of the Evidence Act 1995 (NSW) that Craig Ceely's evidence might be unreliable.
  • Whether the trial judge gave adequate reasons for rejecting the application for that direction.

Decision

Whealy JA (with whom Hulme J and Hidden J agreed) dismissed both grounds of appeal. On the question of adequacy of reasons, his Honour accepted that a trial judge must provide reasons for refusing a s 165 application, but concluded that the trial judge's brief reasons in this case were sufficient in the circumstances of the trial.

On the substantive question, Whealy JA examined the arguments advanced in support of the unreliability direction. These included Ceely's admitted interest in giving evidence against the appellant, inconsistencies in his account, and the suggestion that he might himself have been the perpetrator. His Honour rejected each of these propositions. In particular, the physical description of the robber given by the victim (slim, approximately six feet tall) was inconsistent with Ceely's appearance at the time of trial, making the substitution theory highly unrealistic. The trial had been held only months after the robbery.

Whealy JA was satisfied that the trial judge's refusal to give the s 165 direction was warranted. Even if some error had been established, his Honour was satisfied under s 6(1) of the Criminal Appeal Act 1912 (NSW) that no substantial miscarriage of justice had occurred. The overall case against the appellant was strong, resting not only on Ceely's oral evidence but also on the SMS messages, the police dog tracking evidence, the appellant's wet trousers on the morning of the robbery, and his demonstrated knowledge of details of the offence.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A trial judge is required to give reasons when refusing an application for a s 165 unreliability warning, but the Court of Criminal Appeal confirmed those reasons need not be lengthy, provided they are adequate in the context of the trial.
  • Under s 165 of the Evidence Act 1995 (NSW), a party seeking an unreliability warning must establish a proper basis for the direction; a bare assertion that a witness may have a motive to lie is not automatically sufficient.
  • In dismissing the appeal, the Court found that physical inconsistencies between a proposed alternative suspect and the victim's description of the offender provided a compelling basis for rejecting that theory at trial.
  • Where a trial judge's refusal of a s 165 direction is challenged on appeal, the appellate court will assess whether the refusal was warranted on the evidence, not merely whether a more detailed ruling could have been given.
  • Even where appellate error might be identified, s 6(1) of the Criminal Appeal Act 1912 (NSW) permits the Court to dismiss an appeal if it is satisfied beyond reasonable doubt that no substantial miscarriage of justice has actually occurred.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321