Citation: Dent v R [2017] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 17 July 2017
Judge(s): Hoeben CJ at CL; Bellew J; Fagan J
Background
The appellant was convicted in the Supreme Court of New South Wales of murder and robbery in company inflicting grievous bodily harm, following the death of a victim who was lured to a park under false pretences and subjected to a planned robbery. The Crown case was that the appellant struck the victim to the head, causing a fatal subdural haematoma, and that the victim was then hog-tied and gagged, left face-down on the ground overnight. The victim's body was discovered the following morning.
At trial, the appellant admitted punching the victim but denied responsibility for the grievous bodily harm that caused death, attributing the fatal injuries to a co-offender (RC) who he claimed had kicked the victim in the head. The appellant was convicted on both counts and sentenced to a total effective term of 42 years' imprisonment with a non-parole period of 32 years.
On appeal, the appellant challenged the conviction on two grounds: first, that Crown cross-examination raised impermissible tendency reasoning about RC, causing a miscarriage of justice; and second, that the trial judge failed to direct the jury that no adverse inference could be drawn from the appellant's refusal to be interviewed by police.
Legal Issues
- Whether Crown cross-examination suggesting that RC was "not a violent man" constituted impermissible tendency evidence under s 97 of the Evidence Act 1995 (NSW), and if so, whether a miscarriage of justice resulted
- Whether the trial judge was required to direct the jury that no adverse inference could be drawn from the appellant's exercise of his right to silence by refusing a police interview
- Whether leave should be granted under r 4 of the Criminal Appeal Rules (NSW) to raise Ground 2, which had not been the subject of a direction request at trial
Decision
Ground 1: Tendency evidence and miscarriage of justice
The Court considered whether the Crown's cross-examination and submissions to the effect that RC was "not a violent man" raised tendency reasoning in breach of s 97 of the Evidence Act 1995 (NSW). Section 97 requires that tendency evidence only be admitted if it has significant probative value that substantially outweighs any prejudicial effect. The Court accepted that, to the extent such questions and submissions implied a conclusion about RC's character, they could be characterised as raising tendency issues without compliance with the requirements of s 97.
However, the Court found that no miscarriage of justice resulted. The overwhelming weight of the evidence, including DNA evidence and the testimony of co-offenders, supported the jury's conclusion that the appellant was responsible for the fatal injuries. Against that backdrop, any tendency-related irregularity could not have affected the verdict. Ground 1 was dismissed.
Ground 2: Failure to direct on right to silence
This ground was raised for the first time on appeal, meaning the appellant required leave under r 4 of the Criminal Appeal Rules to rely on it. The Court applied the principles from Petty v The Queen and subsequent authorities, which confirm that an accused's exercise of the right to silence cannot be used against them, and that a direction to the jury may be appropriate in some circumstances. However, the Court found that the issue had simply not arisen at trial: neither counsel nor the judge had raised the appellant's refusal to be interviewed, and the jury heard directly from the appellant through his evidence.
The Court declined to accept that any inadvertence by trial counsel in failing to seek the direction should excuse the omission, noting that the evidence strongly suggested the direction was not sought because it served no useful purpose in the trial's particular context. With no realistic prospect that the jury drew an adverse inference from the appellant's exercise of his right to silence, the Court refused leave to rely on Ground 2.
Orders Made
- Ground of Appeal 1 dismissed
- Leave to rely on Ground of Appeal 2 pursuant to r 4 of the Criminal Appeal Rules (NSW) refused
Key Takeaways
- A miscarriage of justice will not be established merely because tendency evidence was arguably raised without compliance with s 97 of the Evidence Act 1995 (NSW); the court will assess whether the irregularity materially affected the verdict, having regard to the totality of the evidence.
- Where an accused gives evidence at trial and the question of their police interview refusal was not raised by either party, the risk that the jury drew an adverse inference from the exercise of the right to silence may be too speculative to ground a successful appeal.
- Grounds of appeal not raised at trial require leave under r 4 of the Criminal Appeal Rules (NSW), and the Court of Criminal Appeal confirmed that leave is unlikely to be granted where the omission appears to have been a deliberate forensic choice by experienced trial counsel rather than inadvertent error.
- Tendering fresh affidavit evidence from trial counsel for the first time during the hearing of an appeal will not be looked upon favourably by the Court of Criminal Appeal.
- In dismissing both grounds, the Court reaffirmed that constructive murder (felony murder) is available where death occurs in the course of committing a serious violent offence such as robbery in company inflicting grievous bodily harm.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 97 (tendency evidence)
- Criminal Appeal Rules (NSW), r 4
Cases
- Petty v The Queen; Maiden v The Queen [1991] HCA 34; 173 CLR 95
- Harriman v The Queen [1989] HCA 50; 167 CLR 590
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
- Glennon v The Queen [1994] HCA 7; 179 CLR 1
- Germakian v R [2007] NSWCCA 373; 70 NSWLR 467
- Greenhalgh v R [2017] NSWCCA 94
- Picken v Regina; Regina v Picken [2007] NSWCCA 319
- Regina v ITA [2003] NSWCCA 174; 139 A Crim R 340
- Regina v Quach [2002] NSWCCA 519; 137 A Crim R 345