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Court of Criminal Appeal 18 August 2022

Blair v R

[2022] NSWCCA 176

Assault & violenceDrugsTheft & propertyPublic order & justice offences

Citation: Blair v R [2022] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 18 August 2022
Judges: Beech-Jones CJ at CL, Fagan J, Yehia J

Background

Following a judge-alone trial in the District Court, the appellant was convicted of three offences: robbery in company, specially aggravated kidnapping in company, and larceny. The convictions arose from events on the night of 28-29 May 2019, during which the complainant alleged he was assaulted, held against his will, driven to his home, and had money, drugs, and his car taken from him.

The complainant had attended a motel intending to sell methylamphetamine (ice), and his evidence contained acknowledged inconsistencies, including a significant discrepancy between his claimed arrival time at the motel and what CCTV footage showed. The trial judge accepted that the complainant was not an accurate witness and had exaggerated parts of his account, but found that significant weight should nonetheless be given to his complaint evidence, particularly given corroboration from CCTV footage and text messages.

The appellant did not challenge the convictions for robbery in company or larceny. The appeal concerned only the specially aggravated kidnapping conviction (Count 2), raising two grounds: an alleged failure to give a statutory warning about the complainant's evidence, and an unreasonable verdict.

  • Whether the trial judge was required to warn himself under ss 165(1)(a) and/or 165(1)(d) of the Evidence Act 1995 (NSW) in respect of the complainant's evidence, given the complainant's involvement in drug-related criminal activity
  • Whether the failure to give such a warning (absent any request from trial counsel) amounted to a miscarriage of justice
  • Whether the guilty verdict on Count 2 (specially aggravated kidnapping) was unreasonable or unsupported by the evidence

Decision

On the first ground, the Court held that s 165(1)(d) was not engaged. That provision applies to a witness "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding." The events giving rise to the proceedings were the robbery, kidnapping, and larceny. The complainant was the victim of those offences, not a participant. His involvement in drug supply on the night in question did not make him criminally concerned in the offences charged. The Court also observed that the complainant's immediate complaint to police could not reasonably be characterised as an attempt to deflect investigators from his own criminal conduct.

Beech-Jones CJ at CL added that the proper starting point for construing s 165(1)(d) is the statute itself, not the antecedent common law on accomplices. Relevant Australian Law Reform Commission reports (Nos 26 and 38) indicated that the provision was intended to relax the technical rules around accomplice corroboration, but its reach extended to persons concerned in the offence the subject of the proceedings, not to any offence merely connected to those proceedings. Even setting aside the statutory argument, no request for the s 165 warning had been made by trial counsel, which was itself a further obstacle to the ground succeeding.

The Court separately noted that the complainant's drug-related activity was relevant to his credibility and reliability, and that the trial judge had in fact directed himself to carefully scrutinise the evidence before accepting it beyond reasonable doubt. That direction was sufficient in the circumstances; no additional formal warning under s 165(1)(d) was required.

On the second ground, the Court applied the principles from Pell v The Queen (2020) 268 CLR 123 and M v The Queen (1994) 181 CLR 487, conducting an independent assessment of the sufficiency and quality of the evidence. While acknowledging the complainant's unreliability in some respects, the Court found that his account was substantially corroborated by CCTV footage, text messages, the immediate complaint to police, and the circumstances of the property theft (which was unchallenged). It was open to the trial judge to be satisfied beyond reasonable doubt of the appellant's guilt on Count 2, and the verdict was not unreasonable.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal dismissed

Key Takeaways

  • Section 165(1)(d) of the Evidence Act 1995 (NSW) applies only to witnesses criminally concerned in the offence the subject of the proceedings, not to witnesses who committed separate criminal acts that are merely connected to or contemporaneous with those proceedings.
  • A complainant who was the victim of the charged offences does not become a witness "criminally concerned in the events giving rise to the proceeding" simply because they were engaged in unrelated criminal activity (such as drug supply) at the time of those events.
  • Absence of a request by trial counsel for a s 165 warning is a significant obstacle to establishing, on appeal, that failure to give the warning constituted a miscarriage of justice.
  • Where a complainant's general criminal activity is nonetheless relevant to credibility and reliability, a trial judge's direction to carefully scrutinise the evidence before acting on it may be sufficient, even without a formal s 165 warning.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that corroboration from CCTV footage, text messages, and an immediate complaint to police can support a conviction even where a complainant's evidence is acknowledged to be unreliable or exaggerated in some respects.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(3), 97(1), 117
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 165(1)(a), 165(1)(d)

Cases
- Davies v Director of Public Prosecutions [1954] AC 378
- Downey (1997) 97 A Crim R 41
- Kanaan and Ors v Regina [2006] NSWCCA 109
- Khan v R [2022] NSWCCA 157
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- Peacock v The King (1911) 13 CLR 619
- Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
- R v Baartman [2000] NSWCCA 298
- R v Booth [1982] 2 NSWLR 847
- R v Clarke [2001] NSWCCA 494
- R v Kendrick [1997] 2 VR 699
- R v McLachlan [1999] 2 VR 553
- R v Ncanana 1948 (4) SA 399
- R v Sneesby [1951] St R Qd 26
- R v Taranto [1999] NSWCCA 396
- R v TJF (2001) 120 A Crim R 209
- Regina v Stewart [2001] NSWCCA 260