COUNSEL: A: D Dalton SC; A Goodridge R: D Arnott SC; N Noman
SOLICITORS: A: J N Legal R: S Kavanagh (Solicitor for Public Prosecutions)
CATCHWORDS: CRIMINAL LAW appeal against conviction armed robbery detain for advantage steal motor vehicle fresh evidence refusal to discharge jury s.165 Evidence Act 1995 whether "a dangerous to convict" direction should have been given directions concerning delay whether verdicts unreasonable and not supported by evidence appeal dismissed
DECISION: 1. Leave to appeal granted. 2. Appeal against conviction dismissed.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2004/5957
TOBIAS JA JOHNSON J ROTHMAN J
5 August 2010
GAR v R (No 2)
Judgment
THE COURT: The Appellant, GAR, seeks leave to appeal against conviction following trial in the District Court in 2003 at which he was convicted by a jury of armed robbery, detain for advantage (three counts) and stealing a motor vehicle, all committed in the context of an armed robbery of the Queanbeyan Leagues Club in 1988.
Use of Initials in Judgment
The present appeal was heard concurrently by the Court between 28 and 30 April 2010 with two other appeals against conviction involving the same Appellant. Judgment in the other appeals is being handed down at the same time as judgment is being given in the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading GAR v R (No 2)
Sign in free to access the full text
Details
AGLC
GAR v R (No 2) [2010] NSWCCA 164
Case
[2010] NSWCCA 164
Decision Date
CaseChat Overview and Summary
The case of GAR v R (No 2) involved the Appellant who was convicted of armed robbery and other related charges. The case was heard in the Court of Criminal Appeal of New South Wales, where the Appellant appealed against his conviction. The key issues in the appeal were whether the trial judge should have given a "danger to convict" direction, whether the directions concerning delay were appropriate, and whether the verdicts were unreasonable and unsupported by evidence. The Court also considered whether fresh evidence should have been admitted and if the jury should have been discharged.
The Court examined the fresh evidence presented by the Appellant, which included an alleged conversation with a key witness that occurred after the trial. The Court concluded that the fresh evidence did not raise any legitimate concerns about the credibility and reliability of the witness's evidence. The Court also found that the trial judge's decision not to discharge the jury was within her discretion and did not result in a substantial miscarriage of justice. The Court of Criminal Appeal found that the trial judge's approach to the application based upon the reference by the witness to the "particular matter" was clearly open to her Honour and did not result in an error in the exercise of that discretion.
The Court of Criminal Appeal dismissed the appeal against conviction. The Court found that the evidence presented at the trial was sufficient to support the Appellant's conviction for armed robbery and other related charges. The Court also found that the trial judge's directions concerning delay were appropriate and that the verdicts were reasonable and supported by evidence. The Court concluded that the fresh evidence presented by the Appellant did not warrant a new trial and that the refusal to discharge the jury did not result in a substantial miscarriage of justice. The Court of Criminal Appeal upheld the Appellant's conviction and dismissed the appeal.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The Appellant claimed that he drove the blue car a few streets away and wiped it down to remove fingerprints. He said that he had no idea that he had left the car behind the Queanbeyan Leagues Club where the robbery had occurred.Ground 6 - The Fresh Evidence Ground It is convenient to deal firstly with Ground 6, the fresh evidence ground. The issues giving rise to this ground are addressed in the Court’s judgment in GAR v R (No. 1), and that judgment should be read in conjunction with the present judgment. It is clear that ER was a significant Crown witness in the 2003 trial concerning the Queanbeyan Leagues Club offences. The Crown had no billed the charges upon the basis of evidence available as at 1992, but recharged the Appellant after ER came forward in 2002, thereby becoming a Crown witness against the Appellant. In her remarks on sentence of 4 December 2003, Hock DCJ described ER as the “principal witness for the prosecution” in both the Queanbeyan Leagues Club and Criterion Hotel trials (ROS6). We note her Honour’s observation that ER “was extensively cross-examined but in my view she remained unshaken” (ROS6). Hock DCJ observed that the Appellant also gave evidence at both trials and that, having observed him twice giving evidence and being cross-examined, her Honour assessed him to be “an intelligent, shrewd and manipulative man” (ROS8). The Sexual Assault Appeal In GAR v R (No. 1), the Court rejected a ground of appeal based upon fresh evidence and dismissed the appeal against conviction on the sexual assault matter. In that judgment, the Court examined the evidence of ER and E, together with other evidence and material admitted at the hearing which was said to bear upon the credibility and reliability of the evidence of ER and E at trial and on appeal. E gave evidence at the sexual assault trial only and was not a witness in the armed robbery trials. It is sufficient to express the conclusion that no aspect of the evidence under challenge in the sexual assault appeal gives rise to legitimate concern about the credibility and reliability of ER’s evidence at the Queanbeyan Leagues Club trial. Further, no provision of the Evidence Act 1995 would permit the criticisms of ER raised in the context of the sexual assault appeal to be ventilated permissibly at any retrial for the present charges, if such a trial was to take place.The Queanbeyan Leagues Club Trial There is one area of evidence adduced at the hearing of the appeals which bears directly upon the Queanbeyan Leagues Club trial. In an affidavit sworn 13 October 2006, the Appellant stated that a conversation had taken place on 26 March 2006 between ER and himself during a contact visit at the Goulburn Correctional Centre. We accept that this evidence constitutes fresh evidence in accordance with the principles summarised by Kirby J (Mason P and Levine J agreeing) in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at 427-428 [63]. This evidence involves an alleged conversation between the Appellant and ER on 26 March 2006, some three years after the trial. It was not available to the Appellant at the time of the trial, actually or constructively. Of course, the next issue is whether the Appellant’s evidence with respect to this conversation is credible or at least capable of belief or is plausible, an issue to which we now turn.
Decision
Reasons for decision
With respect to the second discharge application, the Crown submitted that the answers complained of occurred towards the end of a lengthy cross-examination which had become repetitive. It was submitted that the jury would have understood from the evidence of ER at this point that she had contact with Mr Francis or some other police officer about this matter prior to 18 or 19 January 2002. The Crown submitted that the exception taken by the defence trial solicitor to the use of the word “incident” by ER was properly rejected. Decision This ground of appeal challenges the trial Judge’s discretionary refusal to discharge the jury. The Appellant did not submit that her Honour had erred in principle in these rulings. Rather, challenge is made to her Honour’s decision that the jury ought not be discharged. The failure to discharge a jury is not a ground of appeal in itself. The appeal is against conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question on appeal is whether there was such a high degree of necessity for the discharge of the jury that the failure to order such a discharge has resulted in a mistrial. Much leeway must be allowed for the trial Judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the Judge will usually have a better appreciation of the significance of the events complained of, seen in context, than can be discerned from reading a transcript: Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 440-441. Nevertheless, the duty of the Court of Criminal Appeal, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. This Court must decide for itself whether in the circumstances, the result of the refusal to discharge the jury occasioned a risk of a substantial miscarriage of justice: Crofts v The Queen at 441; Qoro v R [2008] NSWCCA 220 at [29]. In El Hassan v R [2007] NSWCCA 148, Hunt AJA (Latham J and myself agreeing) said at [15]:“The decision as to whether a jury should be discharged is a discretionary one. The trial judge is usually in a superior position to that of this Court in determining what should be done when material alleged to be prejudicial is brought to the knowledge of the jury. The trial judge is alive to the temper and the atmosphere of the trial, and this Court must make due allowance for that fact in determining - in accordance with House v The King (1936) 55 CLR 499 at 504-505 - whether there has been an error in the exercise of that discretion; see Kanaan & Ors v Regina [[2006] NSWCCA 109] at [50], where this Court followed Regina v Ngo [2003] NSWCCA 82 at [49] (reported on other matters at (2003) 57 NSWLR 55) in adopting what had been said by Brereton J in Regina v Ball (1960) 61 SR 37 at 41-42.” In our view, the trial Judge’s approach to the application based upon the reference by ER to the “particular matter” was clearly open to her Honour. This is not a case where express reference was made by the witness or anyone else in the presence of the jury to some other offence or alleged offence which the Appellant is said to have committed. Rather, the argument is based upon a possible impression which the jury may have formed as to the commission of some other offence involving Mr Russo which, in turn, also involved the Appellant as a criminal participant. There is force in the Crown submission that the Crown Prosecutor and defence trial solicitor may have been overly sensitive to possible impressions given their complete knowledge of the Appellant’s criminal history, and the apparent extent of criminal activity of the Appellant which ER raised with police in early 2002 following her complaint that the Appellant had sexually assaulted her.