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Court of Criminal Appeal 4 May 2016

Casey v R

[2016] NSWCCA 77

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION JUDGE ALONE TRIAL ROBBERY WITH WOUNDING ALONE TRIAL

Citation: Casey v R [2016] NSWCCA 77
Court: Court of Criminal Appeal, New South Wales
Date: 4 May 2016
Judges: Johnson J (principal judgment), Schmidt J, Wilson J

Background

The applicant stood convicted of robbery with wounding under s 96 of the Crimes Act 1900, following a judge-alone trial in the Wagga Wagga District Court. The Crown alleged that on 16 June 2008, the applicant, together with his brother and a third male, robbed and seriously assaulted a pedestrian in Griffith. The victim was punched, knocked unconscious, kicked, and had his wallet stolen.

The Crown case rested almost entirely on the evidence of the applicant's brother, who had separately pleaded guilty to the same offence and, in earlier police interviews and an induced statement, had named the applicant as a co-offender. By the time of the applicant's trial, however, the brother had recanted. He told the court that the applicant had not been involved. The Crown was granted leave to cross-examine its own witness under s 38 of the Evidence Act 1995, treating him as unfavourable.

The trial judge accepted the brother's earlier police accounts as truthful and rejected his trial recantation as implausible. The applicant was convicted and sentenced to imprisonment with a non-parole period of two years and three months. He sought leave to appeal against conviction only.

  • Whether the verdict was unreasonable or not supported by the evidence, given that the sole oral Crown witness recanted his inculpatory statements at trial.
  • Whether the trial judge misapplied the law by failing to distinguish properly between the credibility and the reliability of the Crown witness.
  • Whether the trial judge made findings adverse to the Crown witness based on matters that had not been put to him during cross-examination, raising procedural fairness concerns (connected to the rule in Browne v Dunn).

Decision

Ground 1: Unreasonable verdict. The Court of Criminal Appeal confirmed the standard of review applicable to a conviction appeal from a judge-alone trial: the appellate court examines whether the verdict was open on the evidence, not whether it would itself have reached the same conclusion. The trial judge's finding that the brother's initial police accounts were truthful, and that his reasons for changing his story were implausible, was well open on the evidence. No error was demonstrated in the trial judge's reasoning on this point.

Ground 2: Credibility versus reliability. The applicant argued that the trial judge conflated credibility (whether a witness is trying to tell the truth) with reliability (whether the witness's account is accurate). The Court rejected this ground. The trial judge's reasons, read as a whole, demonstrated an adequate engagement with both concepts. The Court found nothing in the judgment that indicated a misapplication of the relevant principles.

Ground 3: Procedural fairness and matters not put to the witness. The applicant contended that certain findings adverse to the brother were based on propositions never put to him, denying him an opportunity to respond. The Court acknowledged the importance of the rule in Browne v Dunn, but rejected the ground on the facts. The findings in question were properly supported by the cross-examination that did occur and by the evidence as a whole. No unfairness was established.

The Court granted leave to appeal but dismissed the appeal. All three judges were in agreement. Schmidt J added that, having independently reviewed the evidence, the trial judge's conclusions were open and his Honour was not bound to have entertained a doubt as to the applicant's guilt.

Orders Made

  • Leave to appeal granted.
  • Appeal against conviction dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where a judge-alone trial turns on the credibility of prior inconsistent statements made by a recanting Crown witness, a guilty verdict will stand on appeal if the trial judge's acceptance of those prior statements was reasonably open on the evidence.
  • Under s 38 of the Evidence Act 1995, a party granted leave to cross-examine its own unfavourable witness may use the prior inconsistent statements to establish a truer picture of events, and a fact-finder may ultimately prefer those earlier accounts over the witness's trial evidence.
  • No error of the kind described in Browne v Dunn arises merely because a trial judge draws inferences adverse to a witness's credibility, provided those inferences are supported by the cross-examination and evidence already before the court.
  • The applicable standard on a conviction appeal from a judge-alone trial requires the appellate court to determine whether the verdict was reasonably open, not whether the appellate court would have reached the same conclusion on the same facts.
  • Sufficient evidence existed to support the conviction even though the Crown's only oral witness gave evidence at trial that contradicted his earlier police accounts, because the trial judge found those earlier accounts credible and the recantation implausible.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 96 (robbery with wounding)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), ss 132(1), (2)
- Evidence Act 1995 (NSW), s 38

Cases
- Browne v Dunn (1894) 6 R 67
- Cawthray v R [2013] NSWCCA 105
- Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
- Filippou v The Queen [2015] HCA 29; 89 ALJR 776
- Khamis v R [2010] NSWCCA 179; 203 A Crim R 121
- Murray v The Queen [2002] HCA 26; 211 CLR 193
- R v Le [2002] NSWCCA 186; 54 NSWLR 474
- R v Murray (1987) 11 NSWLR 12
- R v Parkes [2003] NSWCCA 12; 147 A Crim R 450
- RP v R [2015] NSWCCA 215
- RWB v R [2010] NSWCCA 147; 202 A Crim R 209