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Court of Criminal Appeal 18 July 2014

Dunks v R

[2014] NSWCCA 134

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION TEXT MESSAGE USED TO RE UNMERITORIOUS "ARMCHAIR" APPEAL

Citation: Dunks v R [2014] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 18 July 2014
Judge(s): Gleeson JA; R A Hulme J; Campbell J

Background

The appellant was convicted by a jury in the District Court at Goulburn of break, enter and steal in circumstances of aggravation (being in company), contrary to s 112(2) of the Crimes Act 1900 (NSW). The Crown case was that the appellant and an accomplice, Mr Carrie, forced entry into a home in Hilltop and assaulted the occupant, stealing her medications, money, and phone. The appellant had earlier attended a medical centre seeking a prescription for Oxycontin, which he was refused.

Mr Carrie pleaded guilty shortly before trial and gave evidence for the Crown as an accomplice witness. During his arrest, he sent a text message to a teenage girl connected to the appellant's partner. That message became the focus of the appeal.

The appellant was sentenced to six years' imprisonment with a four-year non-parole period. He did not seek leave to appeal against sentence, confining his challenge to conviction.

  • Whether the trial judge erred in treating a text message sent by the accomplice witness as a "prior consistent statement" admissible under s 108(3)(b) of the Evidence Act 1995 (NSW) to re-establish his credit after cross-examination
  • Whether the trial judge erred by failing to consider the mandatory statutory factors in s 192 of the Evidence Act 1995 (NSW) before granting the Crown leave to re-examine the accomplice witness

Decision

On the first ground, the Court held that the trial judge did not err in admitting the text message as a prior consistent statement under s 108(3)(b). Defence counsel had cross-examined Mr Carrie in a manner that implied he had fabricated his account to minimise his own culpability and secure a sentencing discount. The text message, sent while being conveyed to the police station immediately after arrest, contained language suggesting he had been drawn into the offending by the appellant. The Court found this was squarely capable of re-establishing his credit in response to the suggestion of fabrication.

On the second ground, the Court rejected the argument that the trial judge was required to specifically and expressly work through each of the considerations listed in s 192 of the Evidence Act before granting leave. The section requires those matters to be taken into account, but does not demand that a judge articulate each factor on the record. In the circumstances of this case, none of the s 192 factors had any material bearing on admissibility, so there was no error in the judge's failure to refer to them expressly.

The Court also noted that the arguments advanced on appeal were substantially more elaborate than the brief objection raised at trial. R A Hulme J described the appeal as a textbook "armchair appeal," where counsel not involved at trial scrutinised the record searching for arguments that experienced trial counsel had never raised, for good reason. The Court observed that leave under r 4 of the Criminal Appeal Rules is required to argue a matter on appeal on a basis different from the objection taken at trial, and indicated that, had the point been pressed, leave would likely have been refused.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • Under s 108(3)(b) of the Evidence Act 1995 (NSW), a prior consistent statement is admissible to re-establish a witness's credit where cross-examination has implied fabrication; the statement need not have been made in the presence of the accused to qualify.
  • A trial judge is not required to expressly articulate each factor listed in s 192 of the Evidence Act 1995 (NSW) before granting leave, provided those considerations have no material bearing on the question of admissibility.
  • The Court of Criminal Appeal reaffirmed the concept of the "armchair appeal": where points not raised at trial are advanced on appeal by counsel who had no involvement in the proceedings below, the Court may decline to entertain them, and leave under r 4 of the Criminal Appeal Rules is required to argue on a different basis from the original objection.
  • No error was established merely because a trial judge did not engage in a detailed recitation of statutory criteria where the relevant factors had no practical bearing on the outcome.
  • In dismissing the appeal, the Court observed that the text message was, in any event, of marginal significance in what it characterised as an otherwise compelling Crown case.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 108(3)(b), 192
- Crimes Act 1900 (NSW), s 112(2)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Rules, r 4

Cases:
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
- Graham v The Queen [1998] HCA 61; 195 CLR 606
- Poniris v R [2014] NSWCCA 100
- R v Esho; R v Sako [2001] NSWCCA 415
- R v RTB [2002] NSWCCA 104
- R v Reardon [2002] NSWCCA 203; 186 FLR 1
- R v Selsby [2004] NSWCCA 381