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Supreme Court 23 June 2003

R v Diez-Orozco and Lawrence

[2003] NSWSC 1050

Drugs
CRIMINAL LAW AND PROCEDURE JUDGE'S SUMMING UP ACCUSED.

Citation: R v Diez-Orozco and Lawrence [2003] NSWSC 1050 revised – 19/08/2004
Court: NSW Supreme Court, Common Law Division
Date: 23 June 2003
Judge: Howie J

Background

This matter arose during a joint criminal trial involving multiple accused charged in connection with a cocaine importation. Four of the accused gave evidence in their own defence during the proceedings. One accused, Cornwell, gave evidence that described the roles played by co-accused Diez and Lawrence in the distribution of cocaine, which arose in connection with the charge on the indictment.

Counsel for Diez and Lawrence applied for a warning to be given to the jury under s 165 of the Evidence Act 1995 (NSW) in respect of Cornwell's evidence. Cornwell's counsel opposed the giving of any such direction, relying on s 165(3) of the Act, which permits a court to decline to give a warning where there are good reasons not to do so.

The core tension was whether the standard unreliability warning applicable to certain categories of evidence should be extended to evidence given by a co-accused in a joint trial, particularly where that evidence could be used by the jury to support the Crown case against another accused.

  • Whether a co-accused who gives evidence as a witness in a joint trial falls within s 165(1)(d) of the Evidence Act 1995, triggering a potential warning obligation.
  • Whether there were good reasons under s 165(3) to decline to give the warning, as submitted by Cornwell's counsel.
  • What form any warning should take, and whether a more specific caution was required in relation to Cornwell's evidence as distinct from the evidence of co-accused generally.

Decision

Howie J held that Cornwell, as a witness, fell within s 165(1)(d) of the Evidence Act 1995, notwithstanding that he was also an accused in the same trial. His Honour drew on the judgments of Deane J and Toohey J in Webb v R (181 CLR 41), which indicated that a trial judge may, and in some cases must, warn a jury where a co-accused gives evidence that implicates another co-accused in the offence charged.

His Honour rejected the submission by Cornwell's counsel that the jury would find it too difficult to treat Cornwell's evidence differently depending on the purpose for which it was being used. Howie J considered that understanding the distinction between using an accused's evidence to assist that accused's own defence and using it to support the Crown case against another accused was, in this case, among the easier tasks confronting the jury.

His Honour identified a broader concern applicable to co-accused evidence generally: a co-accused who gives evidence may, even unintentionally, downplay their own role in criminal activity and thereby increase the apparent role of others. For Cornwell's evidence in particular, Howie J concluded that a more targeted warning was warranted, directing the jury to consider whether Cornwell may have had a personal motivation to minimise his own involvement at the expense of Diez and Lawrence.

The court was careful to confine the scope of the warning. It was not to suggest that any accused's evidence was generally unreliable, but only that caution was appropriate where the jury were considering using co-accused evidence affirmatively in support of the Crown case.

Orders Made

  • Howie J indicated his intention to give the jury a warning under s 165 of the Evidence Act 1995 in respect of the use of co-accused evidence generally, and a further specific warning regarding Cornwell's evidence in particular.

Key Takeaways

  • A co-accused who gives evidence in a joint trial may fall within s 165(1)(d) of the Evidence Act 1995 as a witness whose evidence may be unreliable, depending on the circumstances.
  • Under the reasoning in Webb v R, where a co-accused's evidence in a joint trial implicates another accused, a trial judge may be required to give a warning directing the jury to exercise caution before using that evidence to support the Crown case.
  • The mere fact that a warning might reflect poorly on a co-accused who gave evidence is not, of itself, a sufficient basis to invoke s 165(3) and decline to give the direction.
  • Where a co-accused may have had a personal interest in downplaying their own role and thereby increasing the apparent culpability of others, a tailored and specific warning goes beyond a general direction about co-accused evidence.
  • The scope of the warning was deliberately narrow: the court made clear that it was not inviting general doubt about any accused's credibility, but signalling caution only where the evidence was being deployed in support of the prosecution case.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 165 (including s 165(1)(d) and s 165(3))

Cases
- Webb v R (1994) 181 CLR 41 (High Court of Australia, judgments of Deane J, Toohey J, and Brennan J considered)