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Court of Criminal Appeal 9 December 2016

Walford v R

[2016] NSWCCA 288

Assault & violenceTheft & property
CRIMINAL LAW APPEAL APPLICATION FOR EXTENSION OF TIME NO ERROR ESTABLISHED CRIMINAL LAW APPEAL APPLICATION FOR EXTENSION OF TIME

Citation: Walford v R [2016] NSWCCA 288
Court: Court of Criminal Appeal, NSW
Date: 9 December 2016
Judges: Hoeben CJ at CL, Bellew J, Hidden AJ

Background

The applicant was convicted in 2013 of robbery in company causing wounding and especially aggravated detaining without consent, following an incident in October 2009 at the victim's home in Heckenberg. The victim, a disabled man who had sustained permanent brain damage in a motor vehicle accident in 2000, alleged that four people attacked him, struck him on the head with beer bottles, stole his cash and jewellery, and left him hog-tied in his lounge room. His father found him the following day.

The central issue at trial was the victim's identification of the applicant as one of the assailants. The applicant denied being present at the premises. A co-offender and a third man, Steven Mackie, were also charged arising from the same incident. Mackie pleaded guilty and gave evidence at trial, but his evidence implicated the co-offender rather than the applicant. The Crown cross-examined Mackie as an unfavourable witness under section 38 of the Evidence Act 1995 (NSW).

The applicant was convicted and sentenced to a non-parole period of three years with an additional term of three years and six months. She brought this application seeking an extension of time in which to appeal against conviction, substantially outside the applicable time limit.

  • Whether the trial judge's directions adequately warned the jury about the need for caution in assessing the victim's evidence, given his brain damage, as required under section 165 of the Evidence Act 1995 (NSW)
  • Whether the verdicts of guilty were unsafe and unsatisfactory in circumstances where the principal witness had permanent brain damage and his evidence contained inconsistencies
  • Whether an extension of time to appeal should be granted, having regard to the prospect of success of the proposed grounds of appeal

Decision

On the first ground, the Court of Criminal Appeal found no error in the trial judge's directions. The judge had discussed the proposed directions with counsel on two separate occasions before delivering them to the jury, and trial counsel raised no objection when the directions were given. The trial judge repeatedly warned the jury about the need for caution in assessing the victim's evidence, addressing both the effects of his brain damage and the reliability of his identification of the applicant.

On the second ground, the Court rejected the contention that the verdicts were unsafe and unsatisfactory. Bellew J identified several features of the evidence that provided a clear basis for the jury's findings: the victim had known the applicant by name prior to the incident; he identified her from a photograph; his evidence that she was present at his premises before the attack was inconsistent with any suggestion that all assailants were wearing balaclavas; and the evidence of the victim's sister formed part of a broader Crown case. The inconsistencies in the victim's evidence were matters for the jury to resolve, guided by the trial judge's comprehensive directions.

Hidden AJ agreed, observing that, in light of the factors identified by the Crown in submissions, it could not be said the jury must have entertained a reasonable doubt about the applicant's guilt. Because neither ground of appeal was made out, the Court held it was not in the interests of justice to grant an extension of time.

Orders Made

  • The application for an extension of time was refused.

Key Takeaways

  • Under section 165 of the Evidence Act 1995 (NSW), a trial judge must adequately direct the jury to exercise caution in assessing evidence with a recognised unreliability risk; the Court of Criminal Appeal confirmed that repeated, specific warnings addressing both the witness's brain damage and his identification evidence were sufficient to discharge that obligation.
  • No error was established where directions had been settled with counsel on two occasions before delivery and trial counsel raised no objection at the time the directions were given.
  • In assessing whether a verdict is unsafe and unsatisfactory, the relevant question is whether the jury, acting on the whole of the evidence and proper directions, must have entertained a reasonable doubt; the existence of inconsistencies in a witness's evidence does not, of itself, preclude a guilty verdict.
  • The prospect of success on the proposed grounds of appeal is a relevant consideration when determining whether the interests of justice favour granting an extension of time to appeal against conviction, following Kentwell v The Queen (2014) 252 CLR 601.
  • Assessing the credibility and reliability of a witness, including a cognitively impaired complainant, remains a matter for the jury, provided the trial judge has given adequate cautionary directions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(3), 98
- Evidence Act 1995 (NSW), ss 38, 165
- Criminal Appeal Rules

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- ARS v R [2011] NSWCCA 266
- Atai v R [2014] NSWCCA 210
- Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- M v R (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v R (1996) 190 CLR 348; [1996] HCA 35
- MFA v R (2002) 213 CLR 606; [2002] HCA 53
- Parkinson v R [2016] NSWCCA 49
- R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462
- R v LAH [2005] NSWCCA 400
- R v Nguyen (2010) 242 CLR 491; [2010] HCA 38
- SKA v R (2011) 243 CLR 400; [2011] HCA 13