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15
Court of Criminal Appeal 20 May 2016

Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R

[2016] NSWCCA 89

Also reported as (2016) 92 NSWLR 161
Homicide
CRIMINAL LAW APPEAL CONVICTION MISCARRIAGE OF JUSTICE ACCUSED ACCUSED

Citation: Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89
Court: Court of Criminal Appeal, NSW
Date: 20 May 2016
Judges: Bathurst CJ; Hoeben CJ at CL; Bellew J

Background

Three men, referred to here as the first, second and third appellants (brothers Anthony and Andrew Perish, and Matthew Lawton), were jointly tried for conspiracy to murder a man named Terrence Falconer. The Crown alleged that the appellants planned and coordinated the abduction of Falconer, who was on work release from Silverwater prison, in the belief that he had murdered their grandparents. The first and third appellants were also jointly charged with Falconer's murder.

The abduction was carried out by men dressed as police officers using a car fitted with altered wheels to resemble a detective's vehicle. Falconer was handcuffed, subdued, placed in a metal box and transported to the first appellant's residence. His body was later dismembered and the remains disposed of in the Hastings River.

The first appellant pleaded not guilty to both charges but offered a guilty plea to manslaughter, which the Crown rejected. The second and third appellants pleaded not guilty to all charges. All three were convicted at trial and appealed against conviction. The first appellant also appealed against sentence.

  • Whether the admission of hearsay evidence, particularly statements made by key witnesses to police, caused a miscarriage of justice
  • Whether the trial judge misdirected the jury as to the permissible use of hearsay evidence
  • Whether the joint trial of the co-accused resulted in a miscarriage of justice
  • Whether the trial judge erred in directing the jury about the first appellant's offer to plead guilty to manslaughter and the effect of that direction on the third appellant
  • Whether the trial judge erred in directing the jury on matters it could take into account regarding the third appellant's participation in the conspiracy
  • Whether the admission of Exhibit AA (an edited transcript of a recorded police interview with a key witness) was procedurally improper
  • Whether the verdicts against each appellant were unreasonable or unsupported by the evidence
  • Whether the first appellant's sentence was manifestly excessive

Decision

Hearsay and evidentiary grounds. The court examined the admission of statements by key Crown witnesses, including a recorded interview with a witness referred to as Witness E, who at trial claimed to have no memory of many key events. After Witness E was declared an unfavourable Crown witness, an edited transcript of his recorded police interview was admitted into evidence. The court found no reversible error in how the trial judge handled this evidence or directed the jury regarding its use.

Manslaughter plea direction. The trial judge informed the jury that the first appellant had offered to plead guilty to manslaughter. The third appellant argued this caused a miscarriage of justice because it was inadmissible against him and risked inviting the jury to reason from it adversely. The Court of Criminal Appeal found that the trial judge's directions adequately addressed this risk and that no miscarriage resulted.

Unreasonable verdict grounds. Each appellant argued the verdicts were unreasonable given the nature of the evidence, which included testimony from witnesses whose credibility was contested and who had given inconsistent accounts. The trial judge had warned the jury about the potentially unreliable nature of the evidence from Witnesses A and E. The court rejected the unreasonable verdict grounds, finding the evidence, properly assessed, was capable of supporting the convictions.

Third appellant's specific grounds. Arguments were advanced that the trial judge erred in directing the jury that it could use evidence entirely unconnected to the third appellant to establish his participation in the conspiracy. The court rejected this, finding that the trial judge had directed the jury with precision as to the evidence specifically relevant to the third appellant's participation and had instructed the jury to consider each appellant's case separately. No miscarriage was established on any of the third appellant's grounds.

Orders Made

  • First appellant (Anthony Perish): leave to appeal against conviction on Grounds 1 and 2 granted, but appeal dismissed; leave to appeal against sentence on Ground 4 granted, but appeal dismissed.
  • Third appellant (Matthew Lawton): appeal against conviction on Ground 1 dismissed; leave to appeal refused on Grounds 2, 3 and 4.
  • (The orders section provided does not include separate final orders for the second appellant's appeal; those orders are not fully reproduced in the text provided.)

Key Takeaways

  • In dismissing each conviction appeal, the Court of Criminal Appeal confirmed that a trial judge's careful and targeted directions to a jury can cure potential prejudice arising from the admission of a co-accused's plea offer and from hearsay evidence, provided the directions clearly delineate the permissible and impermissible uses of that material.
  • Where a Crown witness is declared unfavourable and a prior recorded statement is admitted under the Evidence Act 1995, the procedural pathway for admission requires close attention to whether the preconditions of the relevant provision have been satisfied; the court examined those preconditions here but found no error warranting a miscarriage finding.
  • Unreasonable verdict grounds are assessed against the whole of the evidence, including credibility warnings given to the jury; the existence of contested or inconsistent witness testimony does not of itself render a verdict unreasonable.
  • The Court of Criminal Appeal confirmed that in a joint trial, directions to the jury to consider the case against each accused separately, combined with precise identification of the evidence relevant to each accused, are capable of preventing an accused from being convicted on the basis of evidence unconnected to that accused's own conduct.
  • No error was established in the sentencing of the first appellant, with leave to appeal on sentence granted but the appeal dismissed following application of the established principles from House v The King governing appellate interference with sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 424A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Criminal Procedure Act 1986 (NSW), s 21
- Evidence Act 1995 (NSW), ss 38, 59, 102, 103, 106, 118, 137, 165(1)(a), 190

Key Cases:
- House v The King (1936) 55 CLR 499
- Lee v The Queen (1998) 195 CLR 524
- M v The Queen (1994) 184 CLR 487
- Markarian v The Queen (2005) 228 CLR 357
- Carroll v The Queen [2009] HCA 13; 254 CLR 259
- James v The Queen (2014) 253 CLR 475
- MacKenzie v The Queen (1996) 190 CLR 348
- Gilbert v The Queen (2000) 201 CLR 414
- Dhanhoa v The Queen (2003) 217 CLR 1
- MFA v The Queen (2002) 213 CLR 606
- Pemble v The Queen (1971) 124 CLR 107
- Burrell v The Queen [2009] NSWCCA 193
- Gilham v The Queen [2012] NSWCCA 131; 224 A Crim R 22
- R v FDP (2009) 74 NSWLR 645
- ARS v The Queen [2011] NSWCCA 266
- Gonzales v The Queen (2007) 178 A Crim R 232
- Poniris v The Queen [2014] NSWCCA 100
- Atai v The Queen [2014] NSWCCA 210