Friend v Regina

Case [2007] NSWCCA 41

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Friend v Regina [2007]  NSWCCA 41

FILE NUMBER(S):
2006/1727

HEARING DATE(S):               3 November 2006

JUDGMENT DATE: 22 February 2007

PARTIES:
Catherine Margaret Friend
Regina

JUDGMENT OF:       Spigelman CJ Sully J Hislop J   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          2003/58

LOWER COURT JUDICIAL OFFICER:     Adams J

LOWER COURT DATE OF DECISION:    26 August 2005

COUNSEL:
D. Arnott SC - Crown
J. Stratton SC/D. Yehia - Appellant

SOLICITORS:
S. Kavanagh - Crown
Walker Smith - Appellant

CATCHWORDS:

LEGISLATION CITED:
Evidence Act 1995 (NSW)

CASES CITED:
R v Micallef (2002) 136 A Crim R 127
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
de Gruchy v The Queen (2002) 211 CLR 85
DBG (2002) 133 A Crim R 227
Minniti v The Queen (2006) 159 A Crim R 394
Regina v Middis (NSWSC, unreported, 17 March 1991

DECISION:
Appeal against conviction dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

SPIGELMAN CJ
SULLY J
HISLOP J

2006/1727

22 February 2007

Catherine Margaret FRIEND  v  REGINA

Judgment

  1. SPIGELMAN CJ:               I agree with Sully J.

  2. SULLY J:             

    Introduction

  3. The appellant, Mrs. Friend, was formerly the de facto wife of one Jason Friend. In the very early hours of Friday 18 January 2002, and at some time between midnight and 12.30 a.m. or thereabouts, Mr. Friend, (hereinafter “the deceased”), was shot to death. He had been sleeping alone in the bed which he normally shared with the appellant. Forensic investigations established that a single gun-shot had been fired into the back of the deceased’s head, and at point blank range, killing him instantly. It was similarly established that the murder weapon was probably a 12-gauge shotgun; but the actual murder weapon has never been found.

  4. In due course the Crown brought to trial jointly, before Adams J and a jury, the appellant and one Philip Grubb. The Crown case against Mr. Grubb was that he had fired the shot that killed the deceased. The Crown case against the appellant was that she had been, at the time of the killing, present in the premises within which the killing took place; and that she had been there aiding and abetting Mr. Grubb.

  5. The joint trial commenced on 11 May 2005 and concluded on 30 June 2005. The jury found the appellant guilty of murder; but could not agree upon a verdict in respect of Mr. Grubb. He was subsequently re-tried; but, for a second time, the jury could not agree upon a verdict.

  6. The appellant, having been found guilty of murder, was formally convicted of that crime and was sentenced to a substantial term of imprisonment. The appellant now appeals against her conviction; but she does not apply for leave to appeal against her sentence and nothing more need now be said on that latter topic.

  7. The following grounds of appeal were notified and argued:

    “1.The jury’s verdict was unreasonable and inconsistent with the evidence.

    2.His Honour erred in…

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AGLC
Friend v Regina [2007] NSWCCA 41
Case
[2007] NSWCCA 41
Decision Date

CaseChat Overview and Summary

The case of Friend v Regina involved the appellant's appeal against his conviction. The appeal was based on several grounds, one of which was the trial judge's decision to admit certain statements made by a witness, Mr. Dupon, into evidence. The appellant argued that the admission of these statements was erroneous and prejudicial. The legal issues that the court had to decide included whether the statements made by Mr. Dupon were properly admitted as evidence under the Evidence Act 1995 (NSW) and if the admission of these statements was in line with the provisions of the Act.

The court examined sections 45 and 108 of the Evidence Act to determine the admissibility of the statements in question. Section 45 of the Act allows for the production of documents that a party intends to rely on during cross-examination of a witness, while section 108 deals with the credibility rule and the admissibility of prior consistent statements. The court concluded that the statements were prior inconsistent statements and that their admission was permissible under the Act. The court found that the appellant's counsel had properly cross-examined Mr. Dupon about the inconsistency between his trial evidence and the 2002 statements. Additionally, the court held that the admission of the statements satisfied the requirements of section 108(3)(a) and (b) of the Act, as they were relevant to the case and the course of cross-examination suggested that Mr. Dupon had reconstructed his recollection of the conversation mistakenly.

The court rejected the appellant's argument that the admission of the statements was erroneous and prejudicial. The court held that the trial judge had correctly admitted the statements into evidence, as it was important for the jury to assess the overall cast of each statement and the circumstances in which they were obtained. The court concluded that the appeal against conviction should be dismissed, as none of the grounds of appeal had been sustained.

Final orders: The appeal against conviction is dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Against the whole of the foregoing background, it is necessary to attend, next, to sections 45 and 108 of the Evidence Act. Section 45 provides, relevantly:“(1)This section applies if a party is cross-examining or has cross-examined a witness about:(a)a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; ………(2)If the court so orders or if another party so requires, the party must produce:(a) the document; or(b)such evidence of the contents of the document as is available to the party to the court or to that other party.(3)The court may:(a)examine a document or evidence that has been so produced; and(b) give directions as to its use; and(c)admit it even if it has not been tendered by a party.(4)Sub-section (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.(5)The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.” Section 108 provides relevantly:“………….. (3)The credibility rule does not apply to evidence of a prior consistent statement of a witness if:(a)evidence of a prior inconsistent statement of the witness has been admitted; or(b)it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement.” The two statements made by Mr. Dupon in 2002 were, in my opinion, prior inconsistent statements in the sense that they did not record, at times immediately proximate to the date of the shooting, the post-shooting murmured conversation that Mr. Dupon subsequently said, both in subsequent statements and in his evidence at trial, he had heard in the court-yard of the appellant’s home. There can be no disputing that the appellant’s counsel at trial cross-examined Mr. Dupon, properly and closely, about the manifest inconsistency between what he was saying in his evidence about that conversation, and the complete absence of any reference to the conversation in either of those two contemporaneous 2002 statements. It was, in my opinion, correct for the trial Judge to admit those two statements into evidence. The admission of the statements was not proscribed by any of the relevant provisions of Chapter 3. It was fair to admit the statements because it was important for the jury to be in a position to see for themselves, and to assess for themselves, the overall cast of each of the statements: that is to say, both the whole of the contents of the statements and the circumstances in which the statements had been, on the one hand obtained by the investigating police, and on the other hand supplied by Mr. Dupon. It was, in my opinion, correct for the trial Judge to admit the two subsequent 2004 statements and, as well, the relevant portions of the pre-trial prosecution conference notes. The admission of the two 2002 statements satisfied the requirements of section 108(3)(a). The course of cross-examination of Mr. Dupon by the appellant’s counsel at trial was, in my opinion, such as to bring the case within section 108(3)(b), not because of any suggestion of fabrication; but because the suggestion was clearly made that Mr. Dupon was mistaken in his recollection of the particular conversation; and the course of the cross-examination to that effect suggested, in my opinion, at least by implication, that the mistake manifested a reconstruction by Mr. Dupon of a fleeting and fragmentary instant of conversation which Mr. Dupon honestly believed he had overheard, and which he has reconstructed, honestly but mistakenly, from memory.

Decision

Reasons for decision

SPIGELMAN CJ SULLY J
I would not uphold Ground 5.Conclusions and Order For the whole of the foregoing reasons I have come to the conclusion that no one of the five Grounds of Appeal against conviction has been sustained. In my opinion the Court should order that the appeal against conviction be dismissed. HISLOP J: I agree with Sully J.

Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ SULLY J

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