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Court of Criminal Appeal 19 December 2014

Kidd v R

[2014] NSWCCA 319

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AND NEW TRIAL PARTICULAR GROUNDS OF APPEAL FRESH EVIDENCE GENERAL PRINCIPLES APPEAL AGAINST CONVICTION

Citation: Kidd v R [2014] NSWCCA 319
Court: NSW Court of Criminal Appeal
Date: 19 December 2014
Judges: Ward JA (primary reasons); Fullerton J and Hamill J (agreeing)

Background

The appellant was convicted in March 2004 following a jury trial in the District Court on a count of aggravated armed robbery arising from a violent 1997 home invasion at a property in Burraneer. The Crown case relied substantially on the evidence of a co-offender who had received an indemnity from prosecution, and on the evidence of the appellant's former de facto wife, who testified that the appellant had given her jewellery stolen during the robbery.

The appellant sought an extension of time to appeal, more than ten years after his conviction. He argued that evidence not available to him at trial had since come to light and that this fresh evidence was capable of raising a reasonable doubt about his guilt.

The fresh evidence came from a prison inmate (referred to by the pseudonym GAR) who claimed that the appellant's former de facto wife had told him, during a brief relationship in late 1999 and early 2000, that the stolen jewellery had actually been given to her by a co-offender rather than by the appellant. GAR also claimed she had expressed a desire for the appellant to remain in prison for financial reasons, which the appellant argued disclosed a motive to lie at trial.

  • Whether the court should grant an extension of time to appeal where the prosecution did not oppose the extension, but the appeal lacked apparent merit
  • Whether the proposed fresh evidence was "fresh" in the relevant legal sense (that is, not actually or constructively available at trial)
  • Whether the fresh evidence was apparently credible
  • Whether the fresh evidence, if accepted, would have been likely to cause a jury to entertain a reasonable doubt about the appellant's guilt

Decision

Ward JA identified the applicable test for fresh evidence appeals: the evidence must be fresh (not available at trial through the exercise of reasonable diligence), apparently credible, and such that it would have been likely to cause a jury to entertain a reasonable doubt. The court noted that even where the prosecution does not oppose an extension of time, the prospects of success on appeal remain a relevant consideration in the exercise of the discretion to extend time.

On the question of freshness, the court accepted that there was no constructive availability issue: the appellant had no reason to know that GAR would have relevant evidence, and GAR had not come forward until years after the conviction.

The court's analysis turned decisively on credibility. The circumstances in which GAR came to give evidence were found to give rise to a strong suspicion of concoction, though no formal finding of fabrication was made. GAR's account of the conversation with the former de facto wife about the provenance of the jewellery was found not to be credible, and the circumstances in which he came to disclose that conversation were equally unconvincing. Both GAR and the former de facto wife were described as singularly unimpressive witnesses when examined in the present application.

Ward JA found it unnecessary to resolve the third limb of the test (whether the evidence would have caused a jury to entertain reasonable doubt) given the failure at the credibility stage. The court noted, however, that even had the evidence been credible, the prospect of it causing a jury to doubt the co-offender's evidence appeared only a slender one, given that the co-offender's account remained unshaken and there was no plausible explanation for the alleged gift of jewellery from him to the former de facto wife. The extension of time was refused, and the court stated that the appeal would have been dismissed in any event had leave been granted.

Orders Made

• Leave to extend time for appeal refused
• Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the prospects of success on appeal are relevant to the exercise of the discretion to extend time, even when the prosecution does not oppose the extension.
  • Fresh evidence on appeal must satisfy three cumulative requirements: it must be fresh (not actually or constructively available at trial), apparently credible, and likely to have caused the jury to entertain a reasonable doubt.
  • Where fresh evidence fails the credibility threshold, it is unnecessary to determine whether the evidence would have produced a different verdict at trial.
  • A strong suspicion of concoction can inform the credibility assessment of fresh evidence without requiring a formal finding of fabrication.
  • In dismissing the appeal, the court reinforced that the mere absence of prosecutorial opposition to procedural leave does not compel the court to extend time where the underlying appeal lacks merit.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Criminal Appeal Act 1912 (NSW), s 10(1)(b)

Cases
- Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
- GAR v R (No 1) [2010] NSWCCA 163
- GAR v R (No 2) [2010] NSWCCA 164
- GAR v R (No 3) [2010] NSWCCA 165
- Kidd v R [2009] NSWCCA 229
- Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- R v Young [1999] NSWCCA 275
- Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510