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District Court 2 May 2014

R v Imo SAGOA

[2014] NSWDC 44

Public order & justice offences
POWER TO STAY PROCEEDINGS APPEAL AGAINST CONVICTION CONCEAL SERIOUS OFFENCE HINDER INVESTIGATION LAWFUL EXCUSE EVIDENTIAL ONUS

Citation: R v Imo Sagoa [2014] NSWDC 44
Court: District Court of New South Wales
Date: 2 May 2014
Judge: Judge A Haesler SC

Background

A young man was fatally stabbed at a party in Dee Why on 23 May 2010. Police identified Anthony Jones as the likely perpetrator and arrested and convicted him of murder. In the course of that investigation, police focused on the appellant as a person of interest due to his presence at the party and phone records linking him to Jones.

The appellant made a formal statement to police in which he claimed to have left the party before any violence, having been heavily intoxicated. He repeated this account in a recorded witness interview. Police found his account unconvincing, noting it was contradicted by other witnesses and mobile phone records.

The appellant was later charged with concealing a serious offence (s 316 Crimes Act 1900), hindering a police investigation (s 315 Crimes Act 1900), and making false and misleading statements to police (s 307B Crimes Act 1900). He was convicted by a magistrate on the s 315 and s 316 charges and sentenced to two years imprisonment on each count, to be served concurrently. He appealed both his convictions and the severity of his sentences.

  • Whether the District Court had implied power to stay criminal proceedings on appeal from a Local Court conviction.
  • Whether, on a rehearing of the evidence, the appellant's convictions for concealing a serious offence and hindering a police investigation were established beyond reasonable doubt.
  • Whether a "lawful excuse" defence under s 316, or an analogous basis under s 315, arose on the evidence, particularly given the possibility that the appellant's conduct was directed at concealing his own involvement rather than Jones' offending.
  • Whether fresh evidence should be admitted on appeal.

Decision

Stay application: Judge Haesler found that the District Court does not possess an express power to stay a conviction on appeal, and the question was whether such a power is necessarily implied by the conferral of criminal appellate jurisdiction. The Court concluded that any such power would be confined to exceptional circumstances, and that, in any event, the better course was to resolve the appeal on its merits.

Fresh evidence: An application to tender the sentencing remarks from Jones' trial and a Crown prosecutor's opening statement was refused. The judge held it was not in the interests of justice to admit this material, noting the substantive content was already in evidence and that findings of fact in earlier proceedings are generally inadmissible to prove facts in issue in later proceedings, under s 91 of the Evidence Act 1995.

Rehearing of the convictions: On a full rehearing based on the transcript and exhibits, the judge accepted that the prosecution evidence strongly suggested the appellant was present with Jones before, during, and after the murder. However, the court identified a reasonable hypothesis arising from that same evidence: if the appellant was himself involved in the violence or had his own criminal exposure, his lies to police and failure to disclose Jones' offending could be explained by a desire to avoid self-incrimination, rather than an intent to conceal Jones' crime or to hinder the investigation of Jones specifically. That hypothesis had not been excluded by the prosecution evidence.

Section 316 provides a lawful excuse where disclosure would tend to incriminate the accused. Section 315 requires a positive act directed at hindering an investigation of another person. The judge found that, on the evidence available, it was reasonably possible the appellant was impeding an investigation into himself, not Jones. Because neither hypothesis had been excluded, the appellant was entitled to the benefit of the doubt on both charges, and was acquitted.

Orders Made

  • The conviction appeal is upheld.
  • The convictions and all other orders of the Local Court are set aside.

Key Takeaways

  • A "lawful excuse" under s 316 of the Crimes Act 1900 (concealing a serious offence) may arise where the evidence supports a reasonable inference that the accused withheld information to avoid self-incrimination, not merely to protect another person.
  • Under s 315 (hindering investigation), the offence requires a positive act directed at impeding the investigation of a specific other person. Where the evidence raises a reasonable possibility that the accused was acting to hinder an investigation into his own conduct, that element may not be established.
  • The District Court's appellate jurisdiction under the Crimes (Appeal and Review) Act 2001 involves a rehearing on the record; the judge resolves the ultimate issues afresh and is not confined to arguments as presented in the Local Court.
  • Findings of fact from earlier proceedings are generally inadmissible in subsequent proceedings to prove facts in issue, by operation of s 91 of the Evidence Act 1995.
  • Where a defence or exculpatory hypothesis is reasonably available on the evidence, the prosecution bears the burden of excluding it. The accused is entitled to the benefit of any reasonable doubt that remains.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 315, 316, 307B
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18, 20
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), s 91

Cases:
- Bellchambers v R [2008] NSWCCA 235
- Charara v The Queen (2006) 164 A Crim R 39
- Cornwall v The Queen (2007) 231 CLR 260
- CTM v The Queen (2008) 236 CLR 440
- DPP v Burns [2010] NSWCCA 265
- DPP v Emanuel [2009] NSWCCA 42
- El-Zayat v R [2002] NSWCCA 138
- Em v The Queen (2007) 232 CLR 67
- Fox v Percy (2003) 214 CLR 118
- Gianoutsos v Glykis [2006] NSWCCA 137
- Grassby v The Queen (1989) 168 CLR 1
- Grey v The Queen [2001] HCA 65
- He Kaw Teh (1985) 157 CLR 523
- Jago v District Court of NSW (1989) 168 CLR 23
- John Fairfax and Another v District Court of NSW [2004] NSWCCA 324
- Jones v R [2005] NSWCCA 443
- Kirk v Industrial Court of NSW (2010) 239 CLR 531
- Petty & Maiden v The Queen [1991] HCA 34
- R v Bikic [2001] NSWCCA 537
- R v Kneebone (1999) 47 NSWLR 450