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Court of Criminal Appeal 5 September 2001

Regina v Stewart [2001] NSWCCA 260 revised - 10

[2001] NSWCCA 260

Also reported as (2001) 52 NSWLR 301
Theft & propertyPublic order & justice offences
CRIMINAL LAW SUMMING UP

Citation: Regina v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301; 124 A Crim R 371
Court: New South Wales Court of Criminal Appeal
Date: 5 September 2001
Judges: Spigelman CJ; Hulme J; Howie J

Background

The appellant was convicted in the District Court of aggravated break, enter and steal from a dwelling house, contrary to s 112(2) of the Crimes Act 1900. The Crown case was that the appellant and a co-offender, referred to here as Braddick, entered a dwelling house armed with offensive weapons and stole property. A child inside the premises was threatened during the offence.

Braddick had pleaded guilty to the same charge and gave an undertaking to give evidence against the appellant in exchange for a reduced sentence. At trial, Braddick gave evidence implicating the appellant. The sentencing discount Braddick received was subject to appeal under s 5DA of the Criminal Appeal Act 1912 if he failed to honour his undertaking.

On appeal, the appellant challenged the adequacy of the trial judge's warnings to the jury under s 165(2) of the Evidence Act 1995 concerning Braddick's evidence, arguing the jury had not been adequately directed about the circumstances affecting his reliability as a witness.

  • Whether the trial judge's warnings under s 165(2) of the Evidence Act 1995 regarding Braddick's evidence were adequate.
  • Whether Braddick's evidence fell within the category of evidence "of a kind that may be unreliable" under s 165(1) of the Evidence Act, and if so, what warnings were required.
  • Whether the trial judge was required to warn the jury specifically about the sentencing discount Braddick received and the consequences to him of failing to comply with his undertaking to give evidence against the appellant.
  • Whether any failure to comply with s 165(2) resulted in a miscarriage of justice warranting a new trial.
  • Whether the sentence imposed on the appellant was manifestly excessive.

Decision

The Court dismissed the appeal against conviction by majority, with Spigelman CJ dissenting. The majority (Hulme and Howie JJ) agreed that the appeal should be dismissed, though they differed on whether a technical breach of s 165(2)(b) had occurred.

On the central question of what "evidence of a kind that may be unreliable" means in s 165, Hulme and Howie JJ (with Spigelman CJ not deciding the point) held that this phrase generally refers to evidence whose unreliability may not be apparent to the jury, or where the court has some special appreciation of the likelihood of unreliability, or where for some other reason the jury may be misled in evaluating the evidence's reliability. The provision is not directed at all evidence that could theoretically be unreliable, but rather at situations where the jury needs judicial guidance to properly assess it.

Spigelman CJ and Hulme J agreed that the trial judge was required to warn the jury about the sentencing discount given to Braddick and the consequences he would face if he failed to comply with his undertaking. They reached that conclusion by different routes: Spigelman CJ reasoned that Braddick's evidence fell within s 165(1)(d) of the Evidence Act; Hulme J relied on the statutory scheme under s 5DA of the Criminal Appeal Act, which gave Braddick a personal interest in giving evidence favourable to the Crown. Howie J, however, found no breach of s 165(2) at all, and concluded the warnings were adequate in the circumstances.

On the sentence appeal, all judges found the sentence was not manifestly excessive. The appellant and his co-offender had armed themselves with weapons capable of causing serious harm, evidently contemplating that someone might be home and being prepared to use threats of violence. While the offence was not the most serious of its type, the appellant's more significant criminal record and the circumstances of the offending justified the sentence imposed, which was in appropriate proportion to the sentence given to Braddick, accounting for Braddick's plea and cooperation.

Orders Made

  • Appeal against conviction dismissed.
  • Application for leave to appeal against sentence granted, but the appeal dismissed.

Key Takeaways

  • The phrase "evidence of a kind that may be unreliable" in s 165 of the Evidence Act 1995 is not a catch-all for any potentially fallible evidence. Per the majority, it targets evidence whose unreliability may not be apparent to the jury, or where there is some special judicial appreciation of the risk of unreliability, or where the jury may otherwise be misled in its assessment.

  • A trial judge may be required to warn the jury about sentencing discounts granted to accomplice witnesses and the legal consequences to those witnesses of failing to honour their undertakings to give evidence, though Spigelman CJ and Hulme J grounded this requirement in different provisions.

  • Section 165 of the Evidence Act represents a substantial departure from the pre-existing common law on warnings. Spigelman CJ emphasised, drawing on Papakosmas v The Queen, that the Act's language governs and that pre-existing common law concepts will often be of limited assistance in construing its provisions.

  • Where a breach of s 165(2)(b) occurs but there is no realistic possibility of a miscarriage of justice, the Court of Criminal Appeal can apply the proviso under rule 4 of the Criminal Appeal Rules and decline to intervene.

  • In dismissing the sentence appeal, the Court of Criminal Appeal reaffirmed its expectation that courts will take a serious approach to home invasion offences, particularly where offenders arm themselves with weapons and are prepared to threaten any occupants they encounter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Evidence Act 1995 (NSW), ss 38, 66, 108(3), 116(1), 164, 165
- Criminal Procedure Act 1986 (NSW), s 108
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Key Cases:
- Papakosmas v The Queen (1999) 196 CLR 297
- Black v The Queen (1993) 179 CLR 44
- Longman v The Queen (1989) 168 CLR 79
- McKinney and Judge v The Queen (1991) 173 CLR 468
- Domican v The Queen (1992) 173 CLR 555
- Carr v The Queen (1988) 165 CLR 314
- Driscoll v The Queen (1977) 137 CLR 517
- Crampton v The Queen (2000) 75 ALJR 133
- R v Blackman and Walters [2001] NSWCCA 121
- R v Speeding [2001] NSWCCA 105
- R v Johnson (1998) 45 NSWLR 362
- R v King [2000] NSWCCA 507
- R v Kirby [2000] NSWCCA 330
- R v PLV [2001] NSWCCA 282
- Reg v Spencer [1986] AC 128