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Court of Criminal Appeal 25 August 2014

McGavin v R

[2014] NSWCCA 171

Assault & violenceTheft & property
CRIMINAL LAW DIRECTION TO JURY MULTIPLE BREAK AND ENTERS IN COMPANY OFFENDER OFFENDER NOT CROSS NO WARNING SOUGHT THAT EVIDENCE OF CO

Citation: McGavin v R [2014] NSWCCA 171
Court: Court of Criminal Appeal, New South Wales
Date: 25 August 2014
Judges: Basten JA (with Price J and Fullerton J agreeing)

Background

The applicant was convicted of five counts of break, enter and steal in circumstances of aggravation (being in company), arising from a series of overnight burglaries at clubs and hotels in the Illawarra region between February and March 2011. The applicant acted as driver and lookout while his sons and nephew carried out the actual break-ins. One son, who was involved in four of the five offences, gave evidence for the prosecution at trial.

That son had received a 25% sentencing discount in exchange for his undertaking to give evidence against the applicant. Under s 5DA of the Criminal Appeal Act 1912 (NSW), failure to fulfil that undertaking would have exposed him to resentencing. At trial, defence counsel challenged the reliability of the son's evidence by pointing to the discount, but did not cross-examine him about whether he feared resentencing if he departed from his undertaking. Neither the prosecution nor the defence placed before the court any information quantifying the actual reduction in time the 25% discount represented.

The trial judge gave the jury a warning about the potential unreliability of the son's evidence and referenced the percentage discount. The judge did not, however, specify the actual time reduction the discount reflected, nor warn the jury that the son could be resentenced if he failed to honour his undertaking. No further warning under s 165 of the Evidence Act 1995 (NSW) was requested by defence counsel. The applicant appealed, arguing the unreliability warning was insufficient.

  • Whether the trial judge's unreliability warning was inadequate for failing to specify the actual reduction in time that the 25% sentencing discount represented.
  • Whether the trial judge should also have warned the jury that the son risked resentencing if he failed to give evidence consistent with his undertaking.

Decision

On the first issue, the Court held there was no unfairness to the applicant simply because the warning did not quantify the discount in terms of actual time. Neither party had adduced evidence, or even provided the trial judge with the information, needed to make that calculation. It would be anomalous to require a judge to give a more detailed warning than the parties themselves had sought or enabled.

On the second issue, the Court emphasised that the son was never asked at trial whether he feared being resentenced if he failed to give evidence against his father. Because this possibility had not been raised with the witness and explored in the evidence, there was no testimonial foundation upon which a jury direction on resentencing risk could properly have been based. Basten JA acknowledged that failing to warn a jury about the resentencing risk may well constitute a significant error in circumstances where the issue has been raised in evidence, but that was not the situation in this case.

The Court drew a contrast with earlier decisions such as R v Sullivan [2003] NSWCCA 100, where evidence of potential resentencing had in fact emerged during the witness's re-examination, providing a basis for a direction. In the present case, the matter was simply never put to the witness. Basten JA also noted that cases such as R v Yammine & Chami [2002] NSWCCA 289, which had upheld similar challenges, did not address the requirement for a testimonial foundation and did not contradict the conclusion reached here.

Leave to appeal was granted because both grounds were arguable, but the appeal was dismissed unanimously.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A trial judge's unreliability warning under s 165 of the Evidence Act 1995 (NSW) is not rendered insufficient merely because it states the percentage discount received by a co-offender witness without translating that into actual time served, particularly where neither party placed the relevant sentencing information before the court.
  • Where a co-offender witness has not been cross-examined about whether the prospect of resentencing influenced their evidence, there is no testimonial foundation for a jury direction on that risk. The Court of Criminal Appeal held the absence of such a direction was not an error in those circumstances.
  • The principle that a resentencing warning may be required does not operate in a vacuum. Its application depends on the evidence actually led at trial.
  • In dismissing the appeal, the Court confirmed that the failure of trial counsel to seek a more detailed unreliability warning is a relevant consideration when assessing whether the trial miscarried.
  • No miscarriage of justice arose where the applicant's counsel did not request the directions now sought on appeal and did not lay the evidential groundwork at trial to support them.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Act 1912 (NSW), ss 5, 5DA, 20(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
- Criminal Appeal Rules (NSW), r 4

Cases
- Conway v The Queen [2000] FCA 461; 98 FCR 204
- Domican v The Queen [1992] HCA 13; 173 CLR 555
- R v Clark [2001] NSWCCA 494; 123 A Crim R 506
- R v Privett [2001] NSWCCA 518
- R v Stewart [2001] NSWCCA 260; 52 NSWLR 301
- R v Sullivan [2003] NSWCCA 100
- R v Yammine & Chami [2002] NSWCCA 289; 132 A Crim R 44