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Court of Criminal Appeal 20 December 2004

Regina v David John Elms [2004] NSWCCA 467 revised - 21

[2004] NSWCCA 467

Also reported as 61 NSWLR 703
Theft & propertyFirearms & weapons

Citation: Regina v David John Elms [2004] NSWCCA 467; (2004) 61 NSWLR 703
Court: NSW Court of Criminal Appeal
Date: 20 December 2004
Judge(s): McClellan AJA, Adams J, Smart AJ

Background

The appellant was convicted in the District Court following a jury trial of breaking and entering premises and stealing in circumstances of aggravation, contrary to sections 105A and 112(2) of the Crimes Act 1900. The aggravating circumstance was that the appellant was alleged to have been armed with a knife during the offence. He was sentenced to five years and four months imprisonment with a non-parole period of four years.

The Crown case rested almost entirely on the evidence of the occupant of the premises, who testified that he returned home to find the appellant inside, armed with a knife. A second person who had accompanied the occupant to the premises, Mr Ralph, was a central figure in the events but was not called as a Crown witness at trial. A COPS (police database) statement recorded information attributed to Mr Ralph about those events.

The appellant sought to tender Mr Ralph's prior representation to police as evidence. The trial judge rejected that tender. The appellant appealed against both conviction and sentence, arguing that the rejection of Mr Ralph's prior statement was a material error and that the offence as charged was not made out.

  • Whether Mr Ralph's prior representation to police was admissible under section 65(8) of the Evidence Act 1995, given that Mr Ralph was a missing witness unavailable to give evidence.
  • Whether that prior representation was inconsistent with, or capable of being inconsistent with, the Crown's principal witness's evidence such that its wrongful exclusion could have affected the verdict.
  • Whether section 105A of the Crimes Act 1900 requires the circumstances of aggravation (being armed) to be present at every element of the offence, or whether it is sufficient that the offender was armed at some point in the course of committing the offence.

Decision

The majority (McClellan AJA and Adams J) allowed the appeal and ordered a new trial. They held that the trial judge erred in rejecting the tender of Mr Ralph's prior statement to police. Section 65(8) of the Evidence Act 1995 provides that where a person is not available to give evidence, a previous representation made by that person may be admitted upon tender by the accused. Mr Ralph could not be located and was therefore a missing witness for the purposes of that provision.

The majority found that Mr Ralph's COPS statement was either inconsistent with, or at least capable of being inconsistent with, aspects of the Crown witness's oral testimony. The Crown case depended substantially on the credibility of the occupant, and the prior statement bore on that credibility. Because the wrongful exclusion of the statement could have affected the outcome of the trial, the conviction could not stand.

On the question of the proper construction of section 105A, the court held that it is not necessary for the circumstances of aggravation to accompany every individual element of the offence. It is sufficient that, in the course of committing the offence, the offender was armed. The aggravating circumstance need not be present throughout each discrete act constituting the offence.

Smart AJ dissented on the admissibility ground. His Honour took the view that, on an objective analysis, the COPS statement was not truly inconsistent with the Crown witness's evidence and that its admission would not reasonably have caused a jury to entertain a reasonable doubt. Because the majority ordered a new trial, Smart AJ did not address the fresh evidence issue that had been foreshadowed.

Orders Made

  • Appeal allowed.
  • Conviction quashed.
  • New trial ordered.

Key Takeaways

  • Under section 65(8) of the Evidence Act 1995, a prior representation by a missing (unavailable) witness can be admitted on the tender of the accused, and wrongful rejection of such evidence will warrant a new trial where the representation was inconsistent with, or capable of being inconsistent with, the evidence of a key Crown witness.
  • A previous representation need not be directly and plainly contradictory to meet the inconsistency threshold under section 65(8); it is sufficient that it is capable of being inconsistent with testimony on which the Crown case substantially depends.
  • The correct construction of section 105A of the Crimes Act 1900 does not require the circumstances of aggravation to accompany each element of the offence. It is sufficient that an offender was armed at some point during the course of committing the offence.
  • Where a Crown case depends almost entirely on the credibility of a single witness, evidence bearing on that credibility carries particular significance for the safety of a conviction.
  • The majority and dissenting judgments illustrate that courts may reach different conclusions when assessing whether excluded evidence was genuinely capable of raising a reasonable doubt, particularly where the prior statement covers substantially the same ground as the witness's evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 105A, 112(2)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), s 65(8)

Cases:
- Browne v Dunne (1894) 6 R 67
- R v Ambrosoli (2002) 55 NSWLR 603
- Wilde v The Queen (1987-1988) 164 CLR 354
- Williams v R (2000) 119 A Crim R 490