Citation: Perish v R; Perish v R; Lawton v R [2014] NSWCCA 233
Court: New South Wales Court of Criminal Appeal
Date: 27 October 2014
Judge(s): Hoeben CJ at CL, Hulme J, Adamson J
Background
Three appellants, convicted in 2011 of murder and conspiracy to murder following a 36-day trial before Price J, each filed appeals against their convictions. Anthony Perish and Matthew Lawton were convicted of both murder and conspiracy to murder; Andrew Perish was convicted of conspiracy to murder. Their sentences ranged from 12 to 24 years imprisonment.
The appeals raised two significant grounds. The first concerned fresh evidence: a statement sworn in January 2014 by a key Crown witness, referred to as [E], who recanted his earlier evidence and claimed the appellants were not involved in the killing. [E] had previously given consistent and detailed inculpatory evidence at police interview, at sentencing, and at committal proceedings, but at trial had claimed not to remember the relevant events. He died of terminal cancer on 18 March 2014. The second ground concerned alleged non-disclosure by the prosecution of information relevant to whether Crown witnesses were eligible for, or intended to claim, reward money from the State.
The Crown filed a Notice of Motion on 16 October 2014 seeking to vacate the hearing date of 31 October 2014, on the basis that further investigations into both grounds were needed. Anthony and Andrew Perish did not oppose the adjournment; Matthew Lawton, through counsel, opposed it.
Legal Issues
- Whether the hearing date should be vacated to allow the Crown to conduct further investigations into the fresh evidence ground and the non-disclosure ground.
- Whether the Crown's unexplained delay of approximately six months in conducting those investigations was a sufficient basis to refuse the adjournment.
- How the interests of a continuing-incarcerated appellant are to be weighed against the broader interests of justice in serious criminal proceedings.
Decision
The Court acknowledged that Matthew Lawton's complaint about delay was valid. There was no explanation for the Crown's inaction during the six months between service of the January 2014 statement and the hearing of the motion. The Court accepted that, in many cases, such inaction would itself be fatal to an adjournment application.
However, the Court declined to treat the delay as decisive in these particular circumstances. The convictions related to very serious crimes, and the January 2014 statement contained sufficient anomalies when viewed against [E]'s prior consistent evidence to raise real questions about its reliability. The Court held it was firmly in the interests of justice for the circumstances surrounding the creation of that statement to be fully investigated before the appeals were heard.
The Court also noted that criminal proceedings of this nature are not purely adversarial. The community holds an interest and an expectation that serious criminal matters be fully investigated so that the Court has all relevant information to correctly resolve the issues raised on appeal. That consideration weighed in favour of granting the adjournment despite the Crown's delay.
Orders Made
- The hearing date of 31 October 2014 was vacated.
- The matters were returned to the Registrar's list for the fixing of a new hearing date and new timetables for the filing of submissions and evidence.
Key Takeaways
- Unexplained prosecutorial delay in preparing for an appeal is a significant matter that courts will scrutinise, but it will not automatically defeat an adjournment application where the interests of justice demand further investigation.
- Where a key Crown witness has made a late recantation containing significant anomalies when measured against extensive prior consistent evidence, a court may require that recantation to be fully investigated before the appeals proceed.
- Criminal appeals arising from very serious offending engage not only the interests of the parties but also a broader community interest in thorough investigation and correct resolution.
- In dismissing the strict adversarial framing, the Court of Criminal Appeal treated the public interest in sound criminal justice outcomes as a distinct and weighty consideration capable of overriding procedural objections grounded in delay.
- A continuing-incarcerated appellant's interest in the timely hearing of an appeal is a legitimate concern, but it does not override the court's obligation to ensure it has all relevant material before determining grounds of appeal involving potential miscarriages of justice.
Legislation and Cases Referenced
Cases:
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
No specific legislation was cited in the provided text of this decision.