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Court of Criminal Appeal 30 July 2002

Regina v Heatley [2002] NSWCCA 297 revised - 04

[2002] NSWCCA 297

Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW WHETHER THERE SHOULD BE A NEW TRIAL.

Citation: Regina v Heatley [2002] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 30 July 2002
Judge(s): Levine J, Simpson J, Carruthers AJ

Background

The appellant was convicted in the Central Criminal Court in October 1997 on two counts of murder and one count of malicious wounding, arising from an attempted armed robbery at a factory complex in Asquith on 1 October 1994. The Crown case was that the appellant and his brother Paul Heatley carried out the robbery together. During the incident, the factory owner was shot and killed, Paul Heatley also died, and a third person sustained serious injuries to his arm.

The appellant pleaded not guilty to all counts and raised an alibi defence, supported by evidence from TAB staff who placed him at betting venues at the relevant time. A co-accused, tried on a charge of concealing a serious offence, was acquitted by the same jury.

On sentencing, the appellant received life imprisonment for the first murder count, and fixed terms of twenty and fifteen years respectively for the remaining counts. He appealed against all three convictions.

  • Whether the probative value of witnesses' prior statements to police, admitted following the prosecutor's application to treat them as unfavourable witnesses under s 38 of the Evidence Act 1995, was sufficient to support the convictions
  • Whether, under s 60 of the Evidence Act 1995, those prior statements were properly used as substantive evidence of their truth, rather than solely to impeach credibility
  • Whether the verdicts were unreasonable or could not be supported having regard to the evidence, such that the court should enter acquittals under s 6(1) of the Criminal Appeal Act 1912
  • Whether, if acquittals were not warranted, a new trial on all counts should be ordered

Decision

The central issue on appeal concerned the treatment of prosecution witnesses who gave evidence at trial inconsistent with earlier statements they had made to police. The Crown obtained leave to cross-examine them as unfavourable witnesses under s 38 of the Evidence Act 1995, thereby putting their prior statements before the jury. The question was whether those statements carried genuine probative weight as substantive evidence of the truth of their contents under s 60, or whether their use to support the convictions was problematic.

The Court of Criminal Appeal concluded that errors had occurred in connection with how this evidence was handled, and that the convictions could not stand. The Court examined the reliability and cogency of the evidence carefully, including forensic matters raised on behalf of the appellant. Those matters included whether the evidence truly established the appellant was the masked gunman, and whether the forensic evidence was consistent with the Crown's account of the shooting.

Despite those evidentiary concerns, the Court was not satisfied that the verdicts were so unreasonable, or so incapable of being supported on the totality of the admissible evidence, as to warrant the entry of acquittals. Under s 6(1) of the Criminal Appeal Act 1912, the threshold for directing acquittals was not met.

Because the convictions could not stand but acquittals were not appropriate, the Court allowed the appeal, quashed the convictions, and ordered a new trial on all three counts. The interests of justice and the public interest both required that the matter proceed to fresh determination.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • New trial ordered on all counts

Key Takeaways

  • The Court of Criminal Appeal confirmed that prior inconsistent statements admitted under s 38 of the Evidence Act 1995 after leave to cross-examine an unfavourable witness can, through s 60, constitute substantive evidence of the truth of their contents, but their probative value remains a matter for careful scrutiny.
  • Where convictions are founded significantly on such prior statements, the strength and reliability of that evidence is critical to whether the verdicts can be sustained on appeal.
  • A finding that convictions cannot stand does not automatically lead to acquittals. Under s 6(1) of the Criminal Appeal Act 1912, acquittals are only directed where the verdicts were unreasonable or could not be supported by the evidence.
  • In dismissing the argument for acquittals, the Court found the evidentiary issues, though sufficient to undermine the convictions, did not reach the threshold of rendering the verdicts wholly unsupportable.
  • When an appeal is allowed on grounds short of directing acquittals, the proper course is a new trial rather than a permanent end to the prosecution.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 33, 316(1)
- Criminal Appeal Act 1912 (NSW), ss 6, 6(1), 8
- Evidence Act 1995 (NSW), ss 32, 38, 60
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 39

Cases:
- Driscoll v The Queen (1977) 137 CLR 517
- Festa v The Queen (2001) 176 ALJR 291
- Lee v The Queen (1998) 195 CLR 594
- R v Benecke [1999] NSWCCA 163