McGavin v The Queen - [2014] NSWCCA 171

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: McGavin v R [2014] NSWCCA 171
Hearing dates: 10 July 2014
Decision date: 25 August 2014
Before: Basten JA at [1];
Price J at [49];
Fullerton J at [50]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL LAW - direction to jury - multiple break and enters in company - co-offender received reduced sentence on undertaking to provide evidence against applicant - neither prosecution or defence proffered information as to effect of percentage of discount received by co-offender - co-offender not cross-examined as to whether motivated by possible resentencing for failure to fulfil undertaking - no warning sought that evidence of co-offender may be unreliable - judge warned about unreliability of co-offender's evidence with reference to percentage of discount afforded - whether warning on unreliability by the trial judge sufficient - whether the trial judge should have referred to the reduction of time the discount reflected - whether the trial judge should have warned the jury that co-offender would lose benefit of reduced sentence if he failed to fulfil undertaking - Criminal Appeal Rules (NSW), r 4 - Evidence Act 1995 (NSW), s 165
EVIDENCE - warning as to unreliability - witness gave statement to police - discount on sentence for assistance to law enforcement authorities - witness faced resentencing if he departed from undertaking to give evidence implicating his father - whether warning need to quantify effect of discount at risk - whether warning needed to explain liability to be resentenced if he departed from undertaking - Evidence Act 1995 (NSW), s 165
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
Criminal Appeal Act 1912 (NSW), ss 5, 5DA, 20(4)
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), s 165
Cases Cited: Conway v The Queen [2000] FCA 461; 98 FCR 204
Domican v The Queen [1992] HCA 13; 173 CLR 555
R v Clark [2001] NSWCCA 494; 123 A Crim R 506
R v Privett [2001] NSWCCA 518
R v Stewart [2001] NSWCCA 260; 52 NSWLR 301
R v Sullivan [2003] NSWCCA 100
R v Yammine & Chami [2002] NSWCCA 289; 132 A Crim R 44
Category: Principal judgment
Parties: Anthony Edward McGavin (Applicant)
Regina (Respondent)
Representation:
Counsel:

Dr B Lennon (Applicant)
Ms T Smith (Respondent)
Solicitors:
David H Cohen & Co (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/207057
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-08-01 00:00:00

Before:

Conlon DCJ

File Number(s):

2011/207057

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was charged with five counts of break and enter and steal in circumstances of aggravation, namely being in company: Crimes Act 1900 (NSW), s 112(2). The offences covered a period of one month. Each involved breaking into a club or hotel to steal cigarettes and money; the applicant acted as driver and kept a lookout as two…

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 McGavin v The Queen

Details

AGLC: McGavin v The Queen [2014] NSWCCA 171
Case: [2014] NSWCCA 171
Decision Date: 25 August 2014

CaseChat Overview and Summary

In the case of McGavin v The Queen, the defendant was charged with multiple counts of breaking and entering, committed in company. The dispute centred on the reliability of evidence provided by a co-offender who had received a reduced sentence in exchange for their testimony against the defendant. The Supreme Court of New South Wales was tasked with determining whether the trial judge adequately warned the jury about the potential unreliability of this evidence.

The court was required to decide whether the trial judge's warning about the unreliability of the co-offender's evidence, specifically mentioning the percentage of discount received, was sufficient. Additionally, the court needed to determine if the judge should have referred to the reduction in the co-offender's sentence and warned the jury about the potential resentencing the co-offender faced if they failed to fulfil their undertaking.

The court found that the trial judge's warning about the unreliability of the co-offender's evidence, including the percentage of the discount, was sufficient under the Evidence Act 1995 (NSW), section 165. The court held that there was no requirement for the judge to quantify the effect of the discount at risk or to explain the liability for resentencing if the co-offender departed from their undertaking. Consequently, the appeal was dismissed, and the conviction remained intact.

No further orders were made by the court beyond the dismissal of the appeal and the upholding of the conviction.

Orders