MARK ANTHONY MUNRO v THE QUEEN [2014] ACTCA 11 (24 April 2014)
APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether trial judge erred in admitting statement by cleaner – where statement details system of work employed by cleaner relevant to when DNA may have been deposited at scene – whether statement made in circumstances that make it highly probably that the statement is reliable: s 65(2)(c) Evidence Act 2011 (ACT) – where related to system regularly repeated and therefore likely to be remembered, where no personal interest in trial, where desire to maintain reputation likely outweighed by inclination to avoid criminal prosecution – s 65(2)(c) does not apply to a statement simply because it was made to a police officer
APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether trial judge erred in admitting statement by cleaner – whether trial judge erred in ruling probative value not outweighed by danger of prejudice: s 137 Evidence Act 2011 (ACT) – where author deceased and therefore unavailable for cross-examination – whether jury would assign undue weight to statement in absence of cross-examination – where statement admitted for limited purpose – where judicial directions and counsel’s address to jury available
APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to unreliability of witness – where witness involved in offence charged – where witness had lied in earlier proceedings – s 165 Evidence Act 2011 (ACT) does not require trial judge to form a view as to unreliability of evidence before directing jury – where trial judge gave further directions at request of appellant, and no further request, indicating adequacy of directions
APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to circumstantial evidence – whether evidence in circumstantial case need to be proved beyond a reasonable doubt – evidence in “strands in the cable” case not necessary to prove individual strands beyond a reasonable doubt, nor necessary that individual strands support guilt – misdescription of case as both direct evidence and circumstantial not misleading – where no request for redirection
APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to statement by cleaner – where misdirection that statement was not hearsay immaterial – where author deceased and therefore unavailable for cross-examination – whether jury should have been warned of unreliability – where warning at discretion of judge – where no basis for unreliability beyond unavailability – where no request for redirection
APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether verdict unsafe and unsatisfactory – where evidence of unreliable witness supported by other evidence in trial – where jury adequately directed – where the evidence was not so lacking in cogency, did not contain such discrepancies or inadequacies,…
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.
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Details
AGLC
Munro v The Queen [2014] ACTCA 11
Case
[2014] ACTCA 11
Decision Date
CaseChat Overview and Summary
The appeal concerned a conviction for aggravated robbery and intentionally inflicting grievous bodily harm. The appellant, Munro, appealed against both his convictions and his sentence. The primary grounds of appeal related to the admission of evidence, specifically a statement made by a cleaner, and alleged misdirections by the trial judge to the jury concerning witness unreliability, circumstantial evidence, and the hearsay nature of the cleaner's statement. Munro also argued that the verdict was unsafe and unsatisfactory. The appeal was heard by the Court of Appeal.
The Court of Appeal was required to determine whether the trial judge erred in admitting the cleaner's statement under section 65(2)(c) of the *Evidence Act 2011* (ACT), considering its reliability and whether its probative value was outweighed by the danger of prejudice under section 137 of the same Act. Further issues included whether the trial judge adequately directed the jury regarding the unreliability of a witness involved in the offence, the nature of circumstantial evidence, and the hearsay statement. The Court also had to consider whether the verdict was unsafe and unsatisfactory, and whether the sentence imposed was manifestly excessive or based on an aggravating feature not proven beyond reasonable doubt.
Regarding the cleaner's statement, the Court found that its admission under section 65(2)(c) was justified as it related to a system of work regularly repeated, making it likely to be remembered, and the cleaner had no personal interest in the trial that would outweigh the inclination to avoid criminal prosecution. The Court also held that the trial judge did not err in ruling that the probative value of the statement was not outweighed by prejudice, noting that the author was deceased and therefore unavailable for cross-examination, but that the jury had been given judicial directions and counsel's addresses to mitigate this. The Court found no misdirection in the jury instructions concerning witness unreliability, circumstantial evidence, or the cleaner's statement, noting that warnings about unreliability were discretionary and no request for redirection was made. The verdict was deemed safe and satisfactory, as the evidence of the unreliable witness was supported by other evidence, and the jury had been adequately directed. The appeal against convictions was dismissed. However, the appeal against sentence was upheld, with the Court re-sentencing Munro to a total of 15 years imprisonment for robbery and intentionally inflicting grievous bodily harm, with a non-parole period of 10 years.
Orders
Orders of the court
1. The appeal against convictions is dismissed.
2. The appeal against the sentence is upheld.
3. The appellant is re-sentenced as follows:
a) for robbery to imprisonment for 10 years;
b) for intentionally inflicting grievous bodily harm to imprisonment for 9 years;
c) the grievous body harm sentence is to be accumulated on the robbery sentence as to 5 years accumulated, giving a total sentence of 15 years imprisonment;
d) a non parole period of 10 years is set;
e) the sentence is backdated to 19 December 2012;
f) the non-parole period is backdated to 19 December 2012 and expires on 18 December 2022.