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Court of Criminal Appeal 13 March 2024

Cunneen v R

[2024] NSWCCA 38

Public order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT WHERE CROWN CASE WHOLLY CIRCUMSTANTIAL ADMISSIONS

Citation: Cunneen v R [2024] NSWCCA 38
Court: Court of Criminal Appeal, New South Wales
Date: 13 March 2024
Judges: Ward P; Davies J; Fagan J

Background

The appellant was tried and convicted by a jury in the District Court of New South Wales in July 2022 as an accessory after the fact to murder. The victim was a woman who was last seen in Muswellbrook in September 2014. Her skeletal remains were discovered in bushland near Scone in August 2016. The principal offender, a man named Newson, had been separately tried and convicted of her murder.

The Crown alleged that the appellant assisted Newson following the murder in several ways: helping dispose of the body, providing a false alibi, supporting Newson's public search efforts, deleting digital data that might have revealed their whereabouts, directing suspicion toward the victim's former partner, and keeping Newson informed of the progress of the police investigation. The Crown's case was wholly circumstantial. In November 2022, the appellant was sentenced to seven years and six months imprisonment with a non-parole period of four years.

The appellant appealed against his conviction on nine grounds, including challenges to the admission of evidence, the adequacy of jury directions, and the reasonableness of the verdict.

  • Whether the trial judge erred by admitting into evidence a certificate of Newson's conviction in a separate trial, as proof that Newson had murdered the victim (Ground 1)
  • Whether the jury was inadequately directed on the elements of the offence of being an accessory after the fact to murder (Ground 2)
  • Whether the trial judge's response to a jury question about the appellant's knowledge of Newson's intent to kill was adequate (Ground 3)
  • Whether the trial judge erred in admitting transcripts of police interviews with Newson (Grounds 4 and 5)
  • Whether the jury was misdirected on how it could use Newson's interview statements against the appellant (Ground 6)
  • Whether the trial judge erred in admitting evidence of sexual interactions between Newson and another woman (Ground 7)
  • Whether the trial judge erred in admitting a text message sent by the appellant as an admission (Ground 8)
  • Whether the verdict was unreasonable on the evidence properly admissible against the appellant (Ground 9)

Decision

Ground 1 (Certificate of conviction): Appeal allowed. The Court of Criminal Appeal held that s 91(1) of the Evidence Act 1995 (NSW) precluded the admission of Newson's certificate of conviction in the appellant's separate trial. Section 91(1) provides that evidence of a decision in one proceeding is not admissible to prove a contested fact in another proceeding. Newson's conviction was evidence of the decision in his murder trial, and whether Newson had committed the murder was equally a central contested fact in the appellant's trial. The Court rejected the argument that the pre-existing common law rule in R v Dawson [1961] VR 773, which had permitted such certificates to be admitted, survived the Evidence Act by force of s 9(1). The statutory exceptions under ss 92 and 93 were found not to apply. The Crown properly conceded the error.

The Court then considered whether the error was saved by the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW), which permits a conviction to stand despite an error if no substantial miscarriage of justice actually occurred. The Court declined to apply the proviso, characterising the admission of the certificate as a serious breach of the presuppositions of a fair trial. The jury had been permitted to take into account, on the critical issue in the case, material that the law required them never to be told about (or to disregard). The Court held it could not be satisfied that no substantial miscarriage of justice occurred, and ordered a new trial.

Grounds 2, 4, 5, 6, 7 and 8 (leave refused). On each of these grounds, the Court noted that no objection had been raised at trial, which required the appellant to obtain leave to argue them on appeal. Across the grounds, the Court identified rational forensic justifications for defence counsel's conduct at trial, including tactical decisions and the appellant's own interest in particular evidence being before the jury. The Court found no miscarriage of justice sufficient to warrant granting leave on any of these grounds.

Grounds 3 and 9 (leave granted, grounds dismissed). The Court granted leave to argue grounds 3 and 9 but dismissed them on their merits. On ground 3, the jury's question about the appellant's knowledge of Newson's intent showed the jury was applying the elements correctly, not misunderstanding them, and no additional direction was required. On ground 9, the Court conducted an independent review of the evidence admissible against the appellant and concluded that the verdict was not unreasonable: a properly instructed jury could have been satisfied beyond reasonable doubt of the appellant's guilt on that evidence.

Orders Made

  • Leave to appeal granted on Grounds 3 and 9
  • Leave to appeal refused on Grounds 2, 4, 5, 6, 7 and 8
  • Ground 1 upheld; appeal allowed
  • Conviction quashed; new trial ordered

Key Takeaways

  • Section 91(1) of the Evidence Act 1995 (NSW) renders a certificate of conviction from a co-offender's separate trial inadmissible in a subsequent trial to prove the existence of a fact contested in that earlier proceeding. The Court of Criminal Appeal confirmed this provision abrogates the common law rule formerly recognised in R v Dawson.

  • Where the admission of prohibited evidence strikes at the critical issue in a case and carries potentially significant influence over the jury's reasoning, the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) will not operate to preserve the conviction. In such circumstances, a court cannot be satisfied that no substantial miscarriage of justice actually occurred.

  • Failing to object to evidence at trial ordinarily requires a party to seek leave to raise that matter on appeal. Where the absence of an objection reflects a discernible forensic decision by counsel rather than incompetence or oversight, the Court of Criminal Appeal will generally decline to grant leave.

  • A jury question demonstrating that jurors are endeavouring to apply the correct legal test to the evidence does not, of itself, reveal any misunderstanding requiring additional judicial direction.

  • An unreasonable verdict ground requires the appellate court to conduct an independent review of the whole of the admissible evidence. Here, the Court of Criminal Appeal found the evidence was capable of supporting the jury's conclusions, notwithstanding the entirely circumstantial nature of the Crown's case.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 9, 66A, 87, 91, 92, 93, 136, 178

Cases
- Ahern v The Queen (1988) 165 CLR 87
- AK v Western Australia (2008) 232 CLR 438
- De Silva v The Queen (2019) 268 CLR 57
- Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531
- Hofer v The Queen (2021) 274 CLR 351
- Lane v The Queen (2018) 265 CLR 196
- Latu v R [2023] NSWCCA 19
- Libke v R (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen (2020) 268 CLR 123
- Quinn v R [2023] NSWCCA 229
- R v Carter & Savage [1990] 2 Qd R 371
- R v Cunneen (No 1) [2022] NSWDC 585
- R v Dawson [1961] VR 773
- R v Dolding (2018) 100 NSWLR 314
- R v Kirkby [2000] 2 Qd R 257
- R v Newson; R v Cunneen (No 2) [2020] NSWSC 462
- R v Simpson [2008]