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Court of Criminal Appeal 11 April 2013

Montgomery v R

[2013] NSWCCA 73

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION EXTENSION OF TIME

Citation: Montgomery v R [2013] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 11 April 2013
Judge(s): McClellan CJ at CL, Simpson J, Fullerton J

Background

The appellant was convicted following an 87-day trial of conspiracy to import a commercial quantity of cocaine. The prosecution case rested substantially on the evidence of three accomplice witnesses, surveillance observations, and intercepted pager messages. Those materials collectively implicated the appellant as an organiser and financier of the importation.

A central factual contest at trial concerned whether the appellant had been sighted by a surveillance officer in The Rocks area on the evening of 1 June 2003, the night the relevant ship was due to dock nearby. The appellant and a defence witness, referred to here as the alibi witness, gave evidence that the two men had attended a football match and then spent the evening at a licensed club in Kingsford, placing the appellant well away from The Rocks at the relevant time. Club records tendered in evidence did not record the appellant's or the alibi witness's attendance that evening.

The appeal was filed out of time, requiring an extension. Two grounds were pursued: first, that the trial miscarried because of the Crown prosecutor's conduct in cross-examining the alibi witness; second, a separate ground relating to other aspects of the trial. The Court of Criminal Appeal granted the extension but dismissed the appeal on both grounds.

  • Whether the Crown prosecutor's cross-examination of the defence alibi witness on his prior criminal history, including a serious charge of which he had been acquitted on appeal, constituted a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912
  • Whether, if the cross-examination was improper, it was sufficient to render the trial unfair in its totality, or whether the proviso applied because no substantial miscarriage of justice had actually occurred
  • Whether the evidence, properly admitted, proved the appellant's guilt beyond reasonable doubt notwithstanding the impugned conduct

Decision

The Court was unanimous that the Crown prosecutor's cross-examination of the alibi witness was seriously improper. The cross-examination went only to the witness's credit by reference to his prior criminal history, including convictions from at least 50 years earlier and a rape charge of which he had been acquitted on appeal. Under s 103 of the Evidence Act 1995, credit-based cross-examination is only permissible where the evidence has substantial probative value. The antiquity of the convictions and their relatively minor nature meant that threshold could not have been met. No ruling was sought under s 103, and no prior notice was given to defence counsel, depriving them of the opportunity to obtain a ruling that, on the evidence, would almost certainly have prohibited the questioning.

Simpson J described the failure to give notice as "a serious departure from proper standards of conduct required of a Crown prosecutor." The cross-examination was cut short by the trial judge, but not before impermissible material had been placed before the jury.

Despite that finding of impropriety, all three judges concluded that the cross-examination did not produce a miscarriage of justice. An unfair trial, even where the outcome may not have been affected, can constitute a miscarriage of justice because an accused is entitled to a trial according to law. However, not every departure from proper standards converts an otherwise fair trial into an unfair one. The Court examined the impugned conduct closely in the context of the trial as a whole, particularly the strength of the prosecution case.

Fullerton J, with whom McClellan CJ at CL agreed on this ground, applied the proviso in s 6(1) of the Criminal Appeal Act 1912. The appellant's own counsel conceded on appeal that the Crown case was strong. Three co-conspirators had given direct evidence implicating the appellant, and that evidence was corroborated by surveillance material and pager messages. The alibi issue related to only one part of the prosecution's case. Even setting aside doubts about whether the appellant was in The Rocks on 1 June 2003, the Court was satisfied that his participation in the conspiracy was proved beyond reasonable doubt on the properly admitted evidence, and that no substantial miscarriage of justice had occurred.

Orders Made

  • Leave granted to extend time for filing the notice of appeal
  • Appeal against conviction dismissed

Key Takeaways

  • A Crown prosecutor's failure to give advance notice of an intention to cross-examine a defence witness on prior convictions, and to seek a ruling under s 103 of the Evidence Act 1995, was characterised by the Court of Criminal Appeal as a serious departure from proper prosecutorial standards.
  • Cross-examination of a witness on credit, using convictions from more than 50 years earlier and a charge resulting in acquittal on appeal, could not satisfy the "substantial probative value" threshold required by s 103(1).
  • Not every departure from the proper standards of a trial according to law amounts to a miscarriage of justice within s 6(1) of the Criminal Appeal Act 1912. The Court assessed the impugned conduct in the full context of a lengthy, multi-accused trial.
  • In dismissing the appeal, the Court confirmed that the proviso applies where an appellate court is persuaded, on the evidence properly admitted, that guilt was proved beyond reasonable doubt. An appellant's own concession that the Crown case was strong will be a relevant consideration in that assessment.
  • Where a prosecution rests on multiple, mutually corroborating strands of evidence, improper cross-examination directed at one discrete factual issue may not be sufficient to render the trial as a whole unfair or to require a retrial.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Code Act 1995 (Cth)
- Customs Act 1901 (Cth)
- Evidence Act 1995 (NSW), ss 103, 165

Cases:
- Cooper v R [2012] HCA 50
- Gonzales v R [2007] NSWCCA 321
- Libke v R [2007] HCA 30
- Mraz v The Queen [1955] HCA 59
- R v Beattie [2000] NSWCCA 201
- R v Edwards [2009] NSWCCA 199
- R v El-Azzi [2004] NSWCCA 455
- R v Gregory [2002] NSWCCA 199
- R v Lumsden [2003] NSWCCA 83
- R v Young [1999] NSWCCA 275
- TKWJ v R [2002] HCA 46
- Weiss v R [2005] HCA 81
- Wood v R [2012] NSWCCA 21