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14
Court of Criminal Appeal 5 June 2014

Poniris v R

[2014] NSWCCA 100

Assault & violenceDrugsFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION LEAVE UNDER R 4 REFUSED

Citation: Poniris v R [2014] NSWCCA 100
Court: Court of Criminal Appeal, New South Wales
Date: 5 June 2014
Judges: Macfarlan JA (principal judgment); Adamson J and Bellew J (agreeing)

Background

The appellant was convicted in the District Court of seven serious offences arising from a scheme to destroy his associate's brother. The Crown alleged that the appellant, together with others, planted prohibited drugs and firearms at the home of a businessman to falsely implicate him in criminal activity, and later arranged for him to be shot. The jury convicted the appellant on one count of shooting with intent to murder, two counts of supplying not less than a commercial quantity of prohibited drugs, two counts of possession of a firearm with defaced identification, and two counts of acting with intent to pervert the course of justice. He received an overall sentence of 18 years imprisonment with a non-parole period of 13 years and 6 months.

The defence case was that three prosecution witnesses, including the associate who had pleaded guilty and received a suspended sentence in exchange for his testimony, had fabricated the appellant's involvement to deflect attention from their own crimes. The appellant did not give evidence and called no oral witnesses of his own.

On appeal, the appellant challenged both the admission of certain evidence found at his residence in 2007 and the adequacy of the trial judge's directions to the jury.

  • Whether the trial judge erred in admitting items found at the appellant's home in 2007 (Exhibits W, X, Y, and AA) on relevance grounds
  • Whether the trial judge was obliged to consider the exclusionary discretion under s 137 of the Evidence Act 1995 (NSW), even though defence counsel at trial had not raised that provision
  • Whether leave was required under r 4 of the Criminal Appeal Rules to run the s 137 argument on appeal, given that the objection at trial was framed only on relevance
  • Whether the trial judge failed to adequately direct the jury on the limitations of the 2007 evidence and on the question of motive to lie

Decision

Ground 1: Admissibility of the 2007 exhibits. The trial judge admitted the items found at the appellant's residence, including a NSW Police internal envelope addressed to the appellant at an AFP address, a confidential police firearms manual, and documents bearing the signature of an individual identified in evidence as a false police contact. The trial judge found these items relevant to whether the appellant had represented himself as connected with law enforcement during the relevant period, which corroborated the accounts of key prosecution witnesses. The Court of Criminal Appeal found no error in that ruling.

Ground 1(b): Section 137 argument. The appellant argued on appeal that the trial judge should have considered, on the court's own motion, whether the probative value of the exhibits was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act. The Court refused leave under r 4 of the Criminal Appeal Rules to run this argument. Defence counsel at trial had objected solely on relevance grounds, and the s 137 point had not been raised, even implicitly. The Court confirmed that a trial judge is not ordinarily obliged to conduct a s 137 analysis in the absence of any application or submission to that effect from counsel.

Ground 2: Jury directions on use of the evidence. The appellant argued the trial judge gave insufficient directions limiting the jury's use of the 2007 evidence and failed to provide adequate directions on the onus of proof regarding motive to lie. The Court rejected both arguments. The trial judge had clearly directed the jury that the accused bore no burden to prove that prosecution witnesses had a motive to lie, and at no point invited the jury to reason that rejection of an asserted motive led to the conclusion that those witnesses were truthful. This distinguished the circumstances from the line of cases, including Doe v The Queen, which concerned sexual assault proceedings where impermissible reasoning from absence of motive had reversed the onus of proof.

Orders Made

  • Leave refused to the appellant to rely on any of the four grounds of appeal
  • Appeal dismissed

Key Takeaways

  • A trial judge is not ordinarily required to undertake a s 137 Evidence Act analysis on the court's own motion where defence counsel raised no such argument at trial, even implicitly; leave under r 4 of the Criminal Appeal Rules will generally be refused to run such an argument for the first time on appeal.
  • Where an objection to evidence is taken at trial on one basis (here, relevance), a different basis (here, s 137 discretionary exclusion) cannot ordinarily be raised as of right on appeal without leave.
  • The principle from Doe v The Queen concerning motive-to-lie directions applies most directly in sexual assault proceedings where there is a risk that the jury will be invited to reason impermissibly from the complainant's apparent lack of motive to lie; it does not automatically require a specific direction in every case where credibility of prosecution witnesses is in issue.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that adequate jury directions on onus and standard of proof, combined with a clear statement that the accused need not prove a witness's motive to lie, can satisfy the requirements identified in Doe without any further specific motive-to-lie direction.
  • Corroborating evidence found years after the events charged may nonetheless be relevant and admissible if it is temporally connected to the charged conduct or capable of supporting a contested factual issue at trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137
- Criminal Appeal Rules (NSW), r 4
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)
- Migration Act 1958 (Cth)

Cases
- Doe v The Queen [2008] NSWCCA 203; 187 A Crim R 328
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- Aytugrul v The Queen [2012] HCA 15; 247 CLR 170
- James v R [2014] HCA 6; 88 ALJR 427
- Pemble v R [1971] HCA 20; 124 CLR 107
- Papakosmas v R [1999] HCA 37; 196 CLR 297
- Festa v The Queen [2001] HCA 72; 208 CLR 593
- Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
- ARS v R [2011] NSWCCA 266
- FDP v R [2008] NSWCCA 317; 74 NSWLR 645
- Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
- Flanagan v R [2013] NSWCCA 320
- Penza and Di Maria v R [2013] NSWCCA 21
- Potts v R [2012] NSWCCA 229; 227 A Crim R 217
- Bin Sulaeman v R [2013] NSWCCA 283
- Chand v R [2011] NSWCCA 53
- Kuehne v R [2011] NSWCCA 101
- Shepherd v R [2011] NSWCCA 245
- R v BD (1997) 94 A Crim R 131
- Gilmour v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 593