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Court of Criminal Appeal 17 December 2020

Glynn v R

[2020] NSWCCA 347

Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER PROVISO SHOULD BE APPLIED POWERFUL PROSECUTION CASE CREDIBILITY OF WITNESSES WAS CRUCIAL NEW TRIAL ORDERED

Citation: Glynn v R [2020] NSWCCA 347
Court: NSW Court of Criminal Appeal
Date: 17 December 2020
Judges: Hoeben CJ at CL; Price J; Fagan J

Background

The appellant was charged with causing grievous bodily harm to an elderly neighbour during an altercation in a residential street in Earlwood on 20 June 2015. The complainant, aged 81 at the time, alleged the appellant punched him repeatedly and then struck him with a tree branch. The complainant died before the trial, from unrelated causes, and his account was placed before the jury through a statement recorded by attending police.

The appellant, his wife (Mrs Glynn), and his daughter (Ms Glynn) gave evidence supporting a self-defence narrative, with Ms Glynn claiming the complainant had been the aggressor. Ms Glynn also said she had shown police photographs of injuries to her fingers at the scene. The jury acquitted the appellant of the more serious intentional harm count but returned a guilty verdict on the alternative count of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW).

A significant complication at trial was that the appellant's counsel withdrew on day one and his solicitor on day two, leaving the appellant to represent himself for most of the proceedings. A video recording existed in which Constable Hubbard could be heard acknowledging the injured fingers, but because of the appellant's self-representation the video was not tendered during Ms Glynn's evidence and was later refused admission by the trial judge.

  • Whether the trial judge erred in granting the prosecution leave to cross-examine Ms Glynn under s 38 of the Evidence Act 1995 (NSW) without considering s 192 of that Act
  • Whether the trial judge erred in refusing to admit the video recording into evidence
  • Whether, notwithstanding that error, the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied on the basis that no substantial miscarriage of justice occurred
  • Whether the jury ought to have been directed under s 165(2) of the Evidence Act that the complainant's evidence may be unreliable, given it was not tested by cross-examination

Decision

The Crown conceded that the trial judge had erred in refusing to admit the video, and the Court of Criminal Appeal accepted that concession as properly made. The trial judge had excluded the video on the basis that the prosecution had not challenged Ms Glynn's finger injuries, but the Crown's own conduct at trial told a different story: Constable Connor gave evidence that he had no recollection of being shown injuries and that he would have photographed them if he had been, and the Crown Prosecutor pressed that point forcefully in his closing address. The Court held that in those circumstances the existence of the injuries was plainly a fact in issue, and the relevant police officers should have been recalled or called so that the video's contents could be put to them.

The central question then became whether the proviso applied, that is, whether no substantial miscarriage of justice had actually occurred despite the error. The Crown argued the Court should conclude, independently of the jury's verdict, that the testimony of the appellant, Mrs Glynn, and Ms Glynn was obviously false. The Court rejected that argument. It was not persuaded the evidence of those witnesses was obviously false, and it could not exclude the possibility that the video, had it been admitted, would have shored up Ms Glynn's credibility and undermined the avenue the Crown used to attack her evidence.

Credibility was at the heart of the trial. Constable Connor's evidence had real capacity to damage Ms Glynn's account, and the video had real capacity to rehabilitate it. Because the Crown bore the onus of excluding self-defence, and because the video may have influenced the jury's verdict on that issue, the Court found the appellant had been denied a fair chance of acquittal. A substantial miscarriage of justice had occurred, making it unnecessary to determine whether the case fell into the category of "extreme" cases where the proviso would never apply.

Because a new trial was ordered, the Court declined to resolve the remaining grounds of appeal. It noted that the question of a reliability direction under s 165(2) of the Evidence Act concerning the complainant's untested evidence would be a matter for the judge at the new trial to determine if asked.

Orders Made

  • Appeal upheld
  • The appellant's conviction and sentence are quashed
  • Case listed for mention at the District Court at Sydney on 22 January 2021 at 9:30 am

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's error in excluding evidence will not automatically attract the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW); the Crown must satisfy the court that no substantial miscarriage of justice actually occurred.
  • Where witness credibility is central to the trial and excluded evidence had the capacity to support a defence witness's account, the court may be unable to conclude the error was harmless, even against a strong prosecution case.
  • A conviction for recklessly causing grievous bodily harm cannot safely stand where the excluded evidence may have affected the jury's assessment of self-defence, given that the Crown bears the onus of eliminating that issue beyond reasonable doubt.
  • Applying the "obviously false" test requires more than pointing to a powerful Crown case; the court must be affirmatively satisfied that the defence witnesses' testimony was obviously false before the proviso can operate on that basis.
  • Under s 165(2) of the Evidence Act 1995 (NSW), a party may request a direction that untested evidence of a deceased witness may be unreliable; whether to give such a direction remains a matter for the trial judge's discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 38, 165(2), 192

Cases
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hofer v R [2019] NSWCCA 244
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81