AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 12 December 2014

Amos v R

[2014] NSWCCA 302

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION MURDER JOINT TRIAL APPLICATION FOR SEPARATE TRIAL NOT MADE WHETHER MISCARRIAGE OF JUSTICE

Citation: Amos v R [2014] NSWCCA 302
Court: Court of Criminal Appeal
Date: 12 December 2014
Judge(s): Leeming JA (with whom Adams J and Bellew J agreed)

Background

The appellant was convicted of murder following the shooting death of a cannabis dealer in February 2009. The Crown's case was that the appellant shot the deceased eight times with a rifle, in the context of a debt dispute facilitated by a third party, Peter Rafter, who pleaded guilty to the same murder and gave evidence for the Crown at trial. The appellant was sentenced to 28 years imprisonment with a non-parole period of 21 years.

The appellant was tried jointly with a co-accused, Christopher Wiggins, who was acquitted of all charges. The co-accused had given a recorded interview to police (an ERISP) that implicated the appellant but was exculpatory of Wiggins himself. That interview was admitted into evidence, though only in relation to Wiggins' case.

On appeal, the appellant raised two grounds. The first was that the joint trial with Wiggins caused a miscarriage of justice. The second was that cross-examination by Wiggins' counsel had wrongly put to the jury that the appellant had a criminal history, when in fact he had none.

  • Whether the joint trial with the co-accused occasioned a substantial miscarriage of justice, particularly given the co-accused's ERISP heavily implicated the appellant
  • Whether trial counsel's failure to apply for a separate trial, and the consequent need for leave to raise the point on appeal, affected the outcome
  • Whether cross-examination by co-accused counsel that falsely suggested the appellant had a criminal record, and was conducted without leave under the Evidence Act 1995 (NSW), gave rise to a miscarriage of justice

Decision

Ground One: Joint Trial

The Court refused leave on the first ground. The starting presumption in NSW is that co-offenders alleged to have participated in a joint criminal enterprise should be tried together. The primary judge had given clear, careful directions to the jury that Wiggins' ERISP was evidence only in Wiggins' case and could not be used to make factual findings against the appellant. No complaint was made about those directions on appeal.

The Court applied the well-established principle that appellate courts may assume jurors approach their task conscientiously and follow judicial directions. The appellant could not demonstrate that the joint trial turned a potential acquittal into a conviction, particularly given the strength of other evidence including Rafter's direct testimony. Leave to appeal on this ground was refused.

Ground Two: Improper Cross-Examination

Leave was granted on the second ground, but the appeal was dismissed. Counsel for Wiggins had cross-examined the appellant on the basis that he had a criminal record and was known to local police. This was factually wrong, and counsel had not obtained leave under s 104 of the Evidence Act 1995 (NSW) to cross-examine the appellant about character. When the error was identified, counsel for Wiggins withdrew the questions and propositions in the jury's presence, and the trial judge reinforced the correction.

The Court found the error was momentary, accidental, and promptly and clearly corrected in front of the jury. Following established authority, the Court held that jurors are presumed to understand and act upon directions and corrections by the trial judge. The incident did not give rise to a risk of substantial miscarriage of justice.

Orders Made

  • Ground one: Application for leave to appeal refused
  • Ground two: Leave to appeal granted, but appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed the presumption in favour of joint trials for co-offenders alleged to have participated in a joint criminal enterprise, and that this presumption can be displaced only where a joint trial creates a real risk of substantial miscarriage of justice.
  • Where a co-accused's recorded police interview implicates another accused, clear judicial directions to the jury restricting the use of that evidence can be sufficient to address the prejudice, particularly absent any complaint about the quality of those directions.
  • Failure by trial counsel to apply for a separate trial requires leave to raise the issue on appeal, and the absence of that application is a relevant consideration against granting leave.
  • Cross-examination of an accused about character without leave under s 104 of the Evidence Act 1995 (NSW) constitutes an irregularity, but does not automatically produce a miscarriage of justice where the error is promptly corrected in the jury's presence with the support of the trial judge.
  • In dismissing the appeal, the Court reaffirmed that appellate courts must assess whether, but for the inadmissible material or improper questioning, a conviction was inevitable, and that an error quickly and clearly corrected at trial will generally not meet that threshold.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 38, 104, 112

Cases
- Crofts v R (1996) 186 CLR 427
- Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
- Dia v R [2014] NSWCCA 9
- Dupas v The Queen [2010] HCA 20; 241 CLR 237
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- Madbuko v R [2011] A Crim R 249
- R v Button; R v Griffen [2002] NSWCCA 159; 129 A Crim R 342
- R v Fernando [1999] NSWCCA 66
- R v ITA [2003] NSWCCA
- R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported)
- R v Pham [2004] NSWCCA 190
- Webb & Hay v The Queen (1994) 181 CLR 41