Citation: R v Reardon; R v Michaels; R v Taylor [2002] NSWCCA 203
Court: NSW Court of Criminal Appeal (on appeal from District Court)
Date: 4 June 2002
Judges: Hodgson JA, Simpson J, Barr J
Background
Three appellants were convicted in the District Court following a trial before Ainslie-Wallace DCJ of conspiring to import a commercial quantity of cocaine from Chile. The prosecution alleged that the appellants organised the concealment of 50 kilograms of cocaine in a container load of wine, with arrangements made in Australia and South America across late 1997.
A key Crown witness was a co-conspirator who had previously pleaded guilty to the same conspiracy and received a sentence discount in exchange for giving evidence. His trial testimony became contentious when, after cross-examination by defence counsel, the Crown applied mid-trial for leave to cross-examine him on inconsistencies with prior statements he had made.
Each appellant appealed against both conviction and sentence. The conviction appeals raised issues about the discharge of a juror, the grant of leave to cross-examine a Crown witness under s 38 of the Evidence Act 1995, and the adequacy of judicial warnings. The sentence appeals each raised the question of whether the non-parole periods, and in one case the head sentence, fell outside the permissible range of sentencing discretion.
Legal Issues
- Whether the discharge of a juror in the jury's absence, and the continuation of the trial with eleven jurors, was lawful and whether the trial judge's discretion miscarried
- Whether the trial judge erred in granting the Crown leave under s 38 of the Evidence Act 1995 to cross-examine its own witness on prior inconsistent statements
- Whether s 192 of the Evidence Act 1995 required the trial judge to engage in express, on-the-record consideration of specific factors before granting leave under s 38
- Whether adequate warnings were given to the jury about the unreliability of the Crown witness's evidence and the risk of prejudice from certain evidence
- Whether the non-parole periods imposed on each appellant, and the head sentence imposed on one appellant, were outside the sentencing judge's proper discretion
Decision
The Court dismissed all three conviction appeals. On the juror discharge ground, the Court found no error in the trial judge's approach to discharging the juror outside the jury's presence and proceeding with eleven jurors. No miscarriage of discretion was established.
On the s 38 leave question, the trial judge had granted leave on the basis that the co-conspirator witness had given evidence unfavourable to the Crown, had given evidence on matters within his knowledge, and had made prior inconsistent statements. Hodgson JA addressed the argument that the trial judge was required to expressly work through the considerations listed in s 192 of the Evidence Act before granting leave. The Court rejected the proposition that a failure to articulate each s 192 factor on the record was necessarily fatal to a leave grant, provided the decision was otherwise sound. The grant of leave was upheld.
On the warnings ground, the Court was satisfied that the trial judge had given the jury appropriate directions about the dangers of acting on the co-conspirator's evidence and about the potential prejudicial impact of certain material. No inadequacy was found sufficient to vitiate the convictions.
The sentence appeals, however, all succeeded. The Court found that the non-parole periods fixed for two of the appellants were outside the sentencing judge's range of discretion: in one case because the resulting parole availability period was too short to fulfil the purposes of parole, and in another because insufficient reasons were given for an exceptionally long non-parole period relative to the head sentence. For the third appellant, both the head sentence and non-parole period were quashed, with the Court finding that the head sentence was disproportionate when compared to the sentence imposed on the co-conspirator witness and when the appellant's role was properly weighed.
Orders Made
- Conviction appeals by all three appellants dismissed
- Leave granted to Reardon to appeal sentence; appeal allowed; non-parole period quashed and replaced with a non-parole period of twelve years, expiring 22 April 2011
- Leave granted to Michaels to appeal sentence; appeal allowed; sentence quashed and replaced with eighteen years' imprisonment commencing 21 November 1997 and expiring 20 November 2015, with a non-parole period of thirteen years expiring 20 November 2010
- Leave granted to Taylor to appeal sentence; appeal allowed; non-parole period quashed and replaced with a non-parole period of eight years, expiring 20 November 2005
Key Takeaways
- The Court of Criminal Appeal confirmed that a trial judge granting leave under s 38 of the Evidence Act 1995 to cross-examine a Crown witness is not required to recite each s 192 factor expressly on the record, provided the decision is otherwise properly founded on the statutory criteria.
- A witness who has pleaded guilty and received a sentence discount for agreeing to give evidence may nonetheless give evidence partly favourable to accused persons in cross-examination, thereby enlivening the Crown's right to apply for s 38 leave.
- In dismissing the conviction appeals, the Court found that neither the juror discharge procedure nor the adequacy of jury warnings gave rise to a ground capable of disturbing the verdicts.
- Where a non-parole period produces a residual parole period so short that it cannot serve the recognised purposes of parole, that non-parole period may fall outside the sentencing court's range of permissible discretion.
- Sentencing courts are expected to provide reasons where the ratio of the non-parole period to the head sentence is unusually high; an absence of such reasoning may itself support appellate intervention.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38, 39, 192
- Jury Act 1977 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Customs Act 1901 (Cth)
- Listening Devices Act 1984 (NSW)
- Freedom of Information Act 1982 (Cth)
- Legal Aid Commission Act 1979 (NSW)
Cases:
- Grey v The Queen [2001] HCA 65
- Mickelberg v R (1989) 167 CLR 259
- Stanoevski v The Queen [2001] HCA 4; 75 ALJR 454
- Wu v R [1999] HCA 52; 199 CLR 99
- The Queen v Hoar (1981) 148 CLR 32
- R v Dellapatrona and Duffield (1993) 31 NSWLR 123
- R v Edwards (1997) 90 ACrimR 516
- R v Esho [2001] NSWCA 415
- R v Ferrer-Esis (1991) 55 ACrimR 231
- R v Irusta [2000] NSWCCA 391
- R v Kalpaxis [2001] NSWCCA 119
- R v Paull (1999) NSWLR 427
- R v Radju [2001] NSWCCA 103
- R v Savvas (No 2) (1991) 58 ACrimR 174
- R v Tack Lee Pang (1999) 105 ACrimR 474
- R v Taouk (1992) 65 ACrimR 387