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Court of Criminal Appeal 28 February 2018

Odisho v R

[2018] NSWCCA 19

Also reported as (2018) 271 A Crim R 325
Assault & violenceFirearms & weapons
CRIMINAL LAW APPEAL EVIDENCE UNFAVOURABLE WITNESS CROSS EXAMINATION

Citation: Odisho v R [2018] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 28 February 2018
Judges: Price J, Bellew J, Hamill J

Background

The appellant was convicted by a jury in the District Court of wounding with intent to cause grievous bodily harm and of unauthorised use of a pistol, arising from a shooting at Bass Hill in February 2013. The victim attended hospital in the early hours of the morning with three gunshot wounds to the lower body. The Crown's case was that the appellant and a co-accused (referred to as Witness X) were parties to a joint criminal enterprise to punish the victim over an unpaid cocaine debt.

Witness X received an indemnity in exchange for giving evidence against the appellant. The victim, however, gave evidence at trial that contradicted his earlier statements to police. He claimed the references in those statements to the appellant's presence at the shooting had been inserted by police, and that he had not seen the appellant that night.

The appellant was sentenced to a non-parole period of five years and eight months imprisonment on the wounding count, with a concurrent fixed term of three years on the firearms count. He appealed his conviction on four grounds (a fifth ground was abandoned).

  • Whether the Crown's cross-examination of the victim as an unfavourable witness exceeded the scope of leave granted under s 38 of the Evidence Act 1995 (NSW), specifically whether further leave was required under s 38(3) for questions going only to credibility
  • Whether the trial judge's summing-up failed to adequately balance the Crown's case against the defence case
  • Whether the guilty verdict on the wounding with intent count was unreasonable and unsupported by the evidence
  • Whether the trial judge's directions to the jury on the question of intention were adequate

Decision

Ground 1: Unfavourable witness and s 38 leave

The Court was divided in its reasoning on this ground, though unanimous in the outcome. The central question was whether the Crown's cross-examination of the victim about his possible motives to depart from his prior police statements required separate leave under s 38(3) of the Evidence Act, which applies where questioning is relevant only to a witness's credibility. Price J and Hamill J concluded that leave under s 38(3) was not required because the questioning was not relevant only to credibility. Because the victim was the central witness on the key factual issue (whether the appellant was present at the shooting), his possible reasons for changing his account were indirectly relevant to the facts in issue, not merely to his credit. Bellew J took a different path, finding that some questions were impermissibly wide-ranging, but agreed that no miscarriage of justice resulted because leave could not have been refused had it been sought.

Ground 2: Adequacy of the summing-up

The Court found no error in the structure of the trial judge's summing-up. There is no requirement that a trial judge "compartmentalise" a summing-up by separately and expressly setting out the defence case as a discrete section. The ultimate question is whether the trial judge put the defence case in a way that allowed the jury to properly consider the issues raised on the accused's behalf. The Court was satisfied the trial judge repeatedly reminded the jury of the defence case throughout the summing-up and that it was adequately balanced.

Ground 3: Unreasonable verdict

The Court rejected the argument that the verdict was unreasonable or unsupported by the evidence. A combination of circumstances relied upon by the Crown provided a sound basis for the jury to infer that the appellant held the requisite intention to cause grievous bodily harm. The Court noted that the issue of intention had not been explored in the evidence by trial counsel, which was unsurprising given the overall conduct of the defence.

Ground 4: Directions on intention

Leave to appeal on this ground was refused. The Court found no basis to conclude that the trial judge had conflated distinct issues in the directions on intention. Trial counsel had raised no objection to those directions at the time, and the Court found nothing surprising or improper in that position.

Orders Made

  • Leave in respect of ground 4 is refused.
  • The appeal is dismissed.

Key Takeaways

  • Under s 38(3) of the Evidence Act 1995 (NSW), leave is required only where the proposed cross-examination is relevant solely to a witness's credibility. Where questioning of an unfavourable witness also bears indirectly on the facts in issue, the leave requirement in s 38(3) is not engaged.
  • Questioning an unfavourable witness about the possible reasons for departing from prior inconsistent statements can go to the facts in issue, not merely credit, particularly where the witness's account directly bears on a contested element the Crown must prove beyond reasonable doubt.
  • No requirement exists for a trial judge to compartmentalise a summing-up by presenting the defence case as a discrete, separately identified segment. The operative question is whether the summing-up, taken as a whole, enabled the jury to properly consider the defence.
  • Sufficient circumstances can ground an inference of specific intent even where intent is not expressly explored in the evidence, provided the combination of facts forms a sound basis for the jury's conclusion.
  • In dismissing the appeal, the Court confirmed that even where error in evidentiary rulings is established, a miscarriage of justice will not automatically follow. Where leave could not have been refused had it been sought, no operative miscarriage arises.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 38, 55
- Crimes Act 1990 (NSW)
- Criminal Appeal Rules (NSW)

Cases
- Adam v R (2001) 207 CLR 96; [2001] HCA 57
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Castle v R; Bucca v R (2016) 259 CLR 449; [2016] HCA 46
- Filippou v R (2015) 256 CLR 47; [2015] HCA 29
- M v R (1994) 181 CLR 487; [1994] HCA 63
- Palmer v R (1998) 193 CLR 1; [1998] HCA 2
- Peacock v R (2008) 190 A Crim R 454; [2008] NSWCCA 264
- Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533; [1940] HCA 2
- R v Abusafiah (1991) 24 NSWLR 531
- R v Ayoub [2004] NSWCCA 209
- R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186
- Abdel-Hady v R [2011] NSWCCA 196
- McKell v R [2017] NSWCCA 291
- Greenhalgh v R [2017] NSWCCA 94
- Casey v R [2016] NSWCCA 77