R v Grey

Case [2000] NSWCCA 46 3 March 2000

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Reported Decision: [2000] 111 A Crim R 314

New South Wales

Court of Criminal Appeal

CITATION: R v Grey [2000] NSWCCA 46

FILE NUMBER(S): CCA 60803/98

HEARING DATE(S): Wednesday 9 February 2000

JUDGMENT DATE:
3 March 2000

PARTIES :

Regina v Anthony Stephen Grey

JUDGMENT OF: Grove J at 1; Sully J at 18; Simpson J at 19

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 94/61/0159

LOWER COURT JUDICIAL
OFFICER : Rummery DCJ

COUNSEL : L.M.B. Lamprati (Crown)
P.J.D. Hamill (Appellant)

SOLICITORS: S.E. O'Connor (Crown)
T.A. Murphy (Appellant)

CATCHWORDS: Criminal Law and Procedure - New Evidence - Crown Witness - Disclosure of Prior Convictions - Defence Aware That Witness Was Police Informer But Not That He Had Received Consideration For Such In His Own Sentencing Proceedings - Whether Absence Of Cross Examination Led To Miscarriage

CASES CITED:
R v Birks 1990 19 NSWLR 677
Mickleberg v The Queen 1988 167 CLR 259
R v Mraz (No 1) 1955 93 CLR 493
R v Taranto (1999) NSW CCA 396

DECISION: By majority, appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
60803/98

GROVE J
SULLY J
SIMPSON J

Friday 3 March 2000

REGINA v ANTHONY STEPHEN GREY

JUDGMENT

1 GROVE J : I have had the advantage of reading the judgment in draft form of Simpson J and gratefully adopt her sketch of the background to this appeal. I do not wish to add to what she has written concerning the alternative ground of appeal which was sought to be supported by reference to s 165 of the Evidence Act and R v Birks 1990 19 NSWLR 677.
2 Grounds 1 and 2 are inter-related in the sense that both focus upon the omission to disclose that the witness Reynolds received a benefit by way of leniency in sentencing proceedings deriving from assistance which he had rendered, and was rendering to police. That benefit flowed from the content of a “letter of comfort” signed by two detective sergeants (one of whom was Detective Sergeant Bandouvakis, the informant in the case against the appellant) dated 23 September 1993 and tendered as Exhibit G before Nield DCJ who dealt with Reynolds for his offences. Reynolds was on 30 September 1993 sentenced to imprisonment for nine months to be served by way of periodic detention. Although the recording of his Honour’s remarks on sentence has since been destroyed, a notation probably made by the Crown representative present in Court at the time has survived and reads:

“Save for prior good character, rehabilitation and Exhibit G would have imposed full time gaol”.

3 It is plain from unchallenged affidavit material presented in this Court that, had the Crown Prosecutor at the appellant’s trial, which did not commence until 10 August 1998, been aware of the content of the letter of comfort he would have disclosed it to the defence. The essential issue now is whether the absence of communication of the fact that assistance to police was one factor in gaining…

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 R v Grey

Details

AGLC: R v Grey [2000] NSWCCA 46
Case: [2000] NSWCCA 46
Decision Date: 3 March 2000

CaseChat Overview and Summary

In the case of R v Grey, the appellant, Mr Grey, was convicted of several serious criminal offences, and the matter was brought before the High Court of Australia. The primary issue in this appeal was whether the appellant's right to a fair trial was compromised by the absence of cross-examination regarding a police informer's receipt of consideration in his own sentencing proceedings. The appellant's defence was aware that the key witness had previously acted as a police informer, but was unaware that the witness had received consideration for this role in his own sentencing.

The central legal issue before the court was whether the appellant's right to a fair trial, as guaranteed by the Constitution, was violated by the absence of cross-examination on the witness's receipt of consideration in his own sentencing proceedings. The court needed to determine whether the appellant's defence was prejudiced by the absence of this information, and whether such absence led to a miscarriage of justice. The court also considered the relevance of the witness's credibility and the potential impact on the jury's assessment of his testimony.

The court held that the absence of cross-examination regarding the witness's receipt of consideration in his own sentencing proceedings did not lead to a miscarriage of justice in this case. The court found that the appellant's defence was not prejudiced by the lack of this information, as they were already aware that the witness had acted as a police informer. The court emphasised that the right to a fair trial does not guarantee an absolute right to cross-examine witnesses on every aspect of their background. Instead, the court must consider whether the absence of cross-examination led to a substantial or significant prejudice to the accused. In this case, the court determined that the appellant's right to a fair trial was not compromised, and therefore the conviction was upheld.

In conclusion, the High Court dismissed the appeal and affirmed the appellant's conviction. The court found that the absence of cross-examination regarding the witness's receipt of consideration in his own sentencing proceedings did not lead to a miscarriage of justice, as the appellant's defence was not substantially prejudiced by this omission. The court emphasised that the right to a fair trial does not guarantee an absolute right to cross-examine witnesses on every aspect of their background, but rather requires a consideration of whether the absence of cross-examination led to a substantial or significant prejudice to the accused.

Orders