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Court of Criminal Appeal 18 August 2003

Regina v Robinson [2003] NSWCCA 188 revised - 11

[2003] NSWCCA 188

Homicide
CRIMINAL LAW CONVICTION APPEAL

Citation: Regina v Robinson [2003] NSWCCA 188 revised – 11/02/2004
Court: NSW Court of Criminal Appeal
Date: 18 August 2003
Judges: Beazley JA, Hidden J, Carruthers AJ

Background

The appellant, a prisoner at Junee Correctional Centre, was convicted of the murder of a fellow inmate in April 2000. The victim, who was known among inmates to have been convicted of sexual offences against children, was found fatally bashed in his cell on 17 September 1998. The Crown alleged the appellant punched the victim and repeatedly stomped on his head.

The Crown's case rested heavily on the testimony of five fellow prisoners, DNA evidence linking the appellant's shoe sole to the deceased, and alleged admissions made to a corrections officer and a police prosecutor at a bail hearing. The defence contended that another inmate, referred to as Johnson, may have been responsible.

The jury convicted after a retrial (an earlier trial had ended with the jury being discharged). The appellant was sentenced to 22 years' imprisonment with a non-parole period of 15 years. He appealed on multiple grounds.

The Court of Criminal Appeal was asked to determine:

  • Whether the trial judge's directions on the assessment of prisoner informer evidence were adequate
  • Whether directions on accomplice evidence were adequate
  • Whether the trial judge erred in extending the prison informer unreliability warning to evidence favourable to the accused given by those same witnesses
  • Whether the trial judge erred in admitting alleged admissions made to a police prosecutor at a bail hearing, including whether those admissions were made during "official questioning" and whether their admission was unfair
  • Whether the trial judge erred in allowing evidence from a witness declared unfavourable under the Evidence Act 1995 to go to the jury
  • Whether the directions on DNA evidence contained the error known as "the prosecutor's fallacy" (treating a match probability as equivalent to the probability of guilt)
  • Whether adequate directions were given on the defence case that another inmate, Johnson, may have been the killer
  • Whether the guilty verdict was unreasonable having regard to the evidence

Decision

Prison informer directions. The Court found the directions given to the jury about the evidence of prisoner informers were inadequate. Multiple grounds relating to the treatment of this category of evidence were upheld. The trial judge also erred in applying the unreliability warning to parts of the prisoner witnesses' evidence that were favourable to the accused, which risked undermining exculpatory material in a way not warranted by the relevant principles.

Admissions at the bail hearing. The Court upheld the ground relating to the alleged admissions made to the police prosecutor, Senior Constable Barron. The appellant had not been given an opportunity to adopt or deny the statements attributed to him, and the admission of this evidence was found to be unfair. That evidence should have been excluded.

DNA direction and the prosecutor's fallacy. The Court found that the directions given in relation to the DNA evidence involved the prosecutor's fallacy. This error occurs when a jury is effectively invited to equate the statistical probability of a DNA match with the probability that the accused is guilty, without proper instruction that those are distinct inquiries.

Alternative perpetrator direction. The Court held that, where the possibility of Johnson as the perpetrator was genuinely live and apparently accepted by both parties as a trial issue, the judge was required to direct the jury that the appellant must be acquitted unless that possibility was excluded beyond reasonable doubt. No such direction was given. The Court also emphasised that the appellant bore no burden of establishing that Johnson was the killer. While defence counsel had not specifically requested the direction, the Court considered the omission sufficiently significant to uphold the ground regardless.

The Court rejected the ground that the verdict was unreasonable. Setting aside the inadmissible evidence of the police prosecutor, and acknowledging the limited weight of certain other evidence, the combined effect of the remaining prisoner testimony and the DNA evidence meant a properly directed jury could still return a guilty verdict. The Court concluded, however, that the multiple errors viewed together meant the trial had miscarried, and a new trial was required.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Where a defence of alternative perpetration is a live issue at trial, the jury must be directed that the accused is entitled to an acquittal unless the possibility of that alternative is excluded beyond reasonable doubt, and that the accused bears no onus of establishing someone else's guilt.

  • The prosecutor's fallacy in DNA directions (conflating the probability of a DNA match with the probability of guilt) constitutes a misdirection capable of vitiating a conviction.

  • Applying the statutory unreliability warning for prison informers to evidence those witnesses gave that was favourable to the accused may distort the jury's assessment and constitutes error.

  • Alleged admissions made at a bail hearing may be inadmissible where the accused was not given an opportunity to adopt or deny them, and where their admission would be unfair in the circumstances.

  • Cumulative trial errors, none of which might individually require a retrial, can together satisfy an appellate court that the trial has miscarried and that a new trial is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1960, s 424A (now repealed)
- Criminal Procedure Act 1986, s 108 (now s 281)
- Evidence Act 1995, ss 38, 128, 135, 136, 137, 165

Cases:
- Domican v The Queen (1991–1992) 173 CLR 555
- Driscoll v The Queen (1977) 137 CLR 517
- McKinney v The Queen (1990–1991) 171 CLR 476
- Pollitt v The Queen (1991–1992) 174 CLR 558
- Pavic v The Queen (1998) 192 CLR 159
- Stephens v The Queen (1985) 156 CLR 664
- Van der Meer v The Queen (1988) 62 ALJR 656
- House v The King (1936) 55 CLR 505
- R v Clough (1992) 28 NSWLR 396
- R v Clout (1996–1997) 41 NSWLR 312
- R v GK (2001) 53 NSWLR 317
- R v Sullivan [2003] NSWCCA 100
- Brooks (1999) 103 A Crim R 234
- Horton (1998–1999) 104 A Crim R 306
- Moffatt (2000) 112 A Crim R 201
- Marlow & Kelly (2001–2002) 129 A Crim R 51
- JCG (2001) 127 A Crim R 493
- Keir (2002) 127 A Crim R 198
- Jamieson, Elliott and Blessingdon (1992) 60 A Crim R 68
- Julin [2000] TASSC 50