R v Privett

[2001] NSWCCA 518

CITATION:	Regina v Privett [2001] NSWCCA 518
FILE NUMBER(S):	CCA 60698/99
HEARING DATE(S):	3 December 2001
JUDGMENT DATE:	13 December 2001
PARTIES :	Regina Dean Anthony Privett
JUDGMENT OF:	Mason P at 1; Sully J at 2; Levine J at 75

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70081/98
LOWER COURT JUDICIAL OFFICER :	Badgery-Parker AJ

COUNSEL :	R. A. Hulme - Crown M. C. Ramage QC - Appellant
SOLICITORS:	S. E. O'Connor- Crown Legal Aid Commission - Appellant
LEGISLATION CITED:	Criminal Appeal Act 1912 (NSW) Jury Act 1977 (NSW) Evidence Act 1995 (NSW)
CASES CITED:	House v The King (1936) 55 CLR 499 Maric v The Queen (1978) 52 ALJR 631 Driscoll v The Queen (1977) 137 CLR 517 Wilde v The Queen (1988) 164 CLR 365 Wu v The Queen (1999) 199 CLR 99 R v Baker [1999] NSWCCA 277
DECISION:	Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal against sentence allowed, that the sentence passed at first instance be quashed, and that in lieu thereof the appellant sentenced to imprisonment for 17 years and 9 months, deemed to have commenced on 22 October 1998 and expiring on 21 July 2016, with a non-parole period of 13 years and 4 months, deemed to have commenced on 22 October 1998 and expiring on 21 February 2012.

60698/99
MASON P
SULLY J
LEVINE J


Thursday 13 December 2001

REGINA v DEAN ANTHONY PRIVETT

JUDGMENT

1 MASON P:

I agree with Sully J.

2 SULLY J:: On 15 July 1999 the present appellant, Mr. Dean Privett, was presented jointly with his brother, Mr. Michael Privett, before Badgery-Parker AJ of this Court, sitting in Goulburn. The appellant and his brother were jointly indicted and charged with having murdered Dr. Peter Browne Rowland on 25 June 1996 at Gundaroo in this State. The appellant and his brother both pleaded not guilty to that charge; and they were put thereupon on trial jointly, and by Badgery-Parker AJ and a jury. On 3 August 1999 the jury found the appellant and his brother guilty as charged. On 22 October 1999 the appellant was sentenced to penal servitude for a term of 17 years and 9 months, divided between a minimum term of 14 years and 6 months and an additional term of 3 years and 3 months. The appellant challenges his conviction and applies for leave to appeal against the severity of his sentence.

3 The essential structure of the Crown case against the appellant is summarised conveniently as follows in the written trial summary filed by the Crown in connection with the present appeal:--

“On 21.6.96 Byron Spencer and Michael Privett travelled from Albury to Yass to attend the birthday party of Wendy Woodland. The appellant was living in Yass. On the evening of 25.6.96, the appellant enlisted the aid of Gary Teale to drive himself, Michael Privett and Byron Spencer to a property outside Yass, where they broke into a shed and stole a quantity of tools. On their return, the tools were stored at the appellant’s house.
The appellant then suggested that he also needed a generator and directed Teale to drive them to a property near Gundaroo. The appellant sat in the front passenger seat, holding a twelve-gauge shotgun. Dr. Peter Rowland was staying in a shed on the property, a short distance away from the construction site of his new home.
The appellant directed Teale to stop the car near the access road to the property. A light could be seen in the shed in which Dr. Rowland was staying. The appellant, Michael Privett and Spencer climbed a fence and commenced to walk down the access road. The appellant was carrying the shotgun. Spencer entered the first shed which was in darkness and unoccupied. He spent some time unsuccessfully searching the shed for a generator.
The appellant and Michael Privett continued down the road and burst in the door of the shed occupied by Dr. Rowland. The appellant shot Dr. Rowland in the face at close range. The doctor’s Great Dane dog was also shot.
Attracted by the noise, Spencer approached the door of the doctor’s shed and saw what had happened. The appellant searched and collected the spent cartridges and stole money from the doctor’s wallet. Outside the shed, Spencer shone his torch on the gun whilst the appellant was checking the gun’s chamber. All three returned to the car. Teale was told that a dog had been shot. They drove back to Yass with the appellant disposing of rubber gloves out of the window of the vehicle. Dr. Rowland’s body was found the next morning.
When spoken to by police, Michael Privett initially took the blame for the shooting. In a subsequent interview, he told the police the ‘real’ story, that it was in fact the appellant who did the shooting. Apart from a short conversation with police, the appellant declined to be interviewed. Byron Spencer told police in his interview that he had assisted the Privetts in the taking of tools from the first property and that he agreed to go with them in search of a generator at the second property.
It was the primary Crown case against the appellant that it was he who fired the shotgun at Dr. Rowland and that he did so with intent to kill the doctor or to inflict grievous bodily harm upon him. The Crown case was also put on an alternative basis of felony murder.”

4 The appellant gave evidence at his trial. In the course of doing so, he gave a detailed version of what he alleged to have been his movements at relevant times on that day. The appellant admitted that he had taken part in the breaking and entering of the shed on the property outside Yass, and that he had taken part in the taking and carrying away of a quantity of tools from those premises. His case was, however, that he had returned to his own home immediately thereafter and had watched videos. He claimed that he had not left his home again that evening. He denied any implication of any kind whatsoever in the killing of Dr. Rowland. He denied that he had ever been present on Dr. Rowland’s property on 25 June 1996. The appellant admitted that he had worked for some three days on Dr. Rowland’s property at Gundaroo; but he claimed that on those days he had gained access to the property at a point distant from the sheds on the property. He claimed that he had never been introduced to Dr. Rowland and that he had never spoken with him.

5 By a notice dated 11 September 2000, the following nine grounds of appeal were notified:

“1. His Honour erred in not granting the appellant a trial separate from Michael Privett and accordingly the trial was a miscarriage of justice.
2. The appellant did not receive a trial according to law.
3. His Honour erred in:
(i) discharging a juror;
(ii) failing to discharge the juror in the presence of the remainder of the jury;
(iii) failing to discharge the whole jury;
(iv) failing to order that the remaining eleven members of the juror were a properly constituted jury;
(v) continuing the trial with an improperly constituted jury.
4. His Honour erred in:
(i) rejecting the question directed to the Crown witness Teale by the appellant’s counsel seeking the precise penalty that he received pursuant to his undertaking to give evidence against the appellant; and
(ii) directing the jury that they did not need to know the precise penalty received by Teale pursuant to his undertaking to give evidence against the appellant.
5. His Honour erred when directing the jury regarding the discount in sentence given to informers for giving truthful evidence.
6. His Honour erred in permitting Michael Privett, a co-accused, to give evidence that the appellant had offered another inmate money to assault him.
7. His Honour erred in permitting cross-examination of the appellant as to each of the witnesses Teale, Spencer and Michael Privett falsely inculpating him in the commission of the offence.
8. His Honour erred in the structure of the sentence imposed upon the applicant.
9. The sentence was in all the circumstances unduly harsh and severe.”

Ground 1

6 On 7 July 1999 a pre-trial application was made by counsel then appearing for the appellant for an order separating the trials of the appellant and of his brother. The application was opposed by the Crown; and on 8 July Badger-Parker AJ refused the application, indicating that he would give reasons at a later date. This his Honour did in the form of written reasons published on 3 August 1999.

7 Two submissions are put in support of the present ground: first, that the trial Judge placed too great an emphasis on attempting to weigh against each other the respective proposed Crown cases against the appellant and his co-accused; whereas his Honour ought to have focused on the question whether the appellant, if required to stand trial jointly with his brother, ran in a real sense a risk of impermissible prejudice depriving him of his basic right to a fair trial; and secondly, that the trial Judge did not appreciate either sufficiently or at all, that part of the Crown case against the appellant’s brother contemplated the tender against that co-accused of a particular video and of particular photographs “……………….. which would become in effect a silent witness against the appellant”.

8 The following propositions are, in my opinion, relevant to this ground of appeal:

[1] When Badgery-Parker AJ refused the appellant’s application for a separate trial, his Honour thereby exercised a judicial discretion reposing in him as the trial Judge. It is trite that the exercise of such a discretion will not be disturbed lightly on appeal. The relevant legal principles in that respect are so well-established that it is unnecessary to set them out at length. The principles are still stated, as a general rule, by reference to the relevant passages at pages 504 and 505 of the report of the decision of the High Court of Australia in House v The King (1936) 55 CLR 499.

[2] A separate trial application is an interlocutory application. A judgment refusing the application is an interlocutory judgment. If an applicant for a separate trial considers that his application has been wrongly refused, then he is entitled to apply to the Court of Criminal Appeal for leave to appeal against the adverse interlocutory judgment. Alternatively, the aggrieved applicant is able to appeal as of right to the Court of Criminal Appeal in the event that he is able to obtain from the Judge at first instance a certificate that it is appropriate for the interlocutory judgment to be reviewed by the Court of Criminal Appeal. These rights to approach the Court of Criminal Appeal derive from the Criminal Appeal Act 1912 (NSW) , s5F. It is well settled law that such interlocutory appeals ought not to be instituted lightly; and that they will not be upheld lightly. The rights are, nevertheless, substantive statutory rights; and in a proper case they can be invoked both appropriately and successfully. The principles governing whether leave so to appeal, if required, should be granted; and whether an appeal, if properly brought before the Court of Criminal Appeal, ought to be upheld, remain the basic principles articulated in House . If an interlocutory application for a separate trial is refused; if the refusal is unreversed upon an interlocutory appeal to the Court of Criminal Appeal; and if the joint trial thereafter proceeds and results in the conviction of the unsuccessful applicant for a separate trial; then an appeal to the Court of Criminal Appeal against that conviction puts in issue, not whether the refusal of the separate trial application was correct, but whether the conviction itself should be allowed to stand: see Maric v The Queen (1978) 52 ALJR 631 per Gibbs ACJ at 634, 635; Driscoll v The Queen (1977) 137 CLR 517 per Barwick CJ at 524 et seq.

[3] It does not at all follow that a refusal of an application for a separate trial must lead inevitably and in all circumstances to the setting aside of a supervening conviction after trial. It is entirely possible that at the end of the day it can be seen that the discretion to grant or refuse a separate trial miscarried; but that, nevertheless, the trial itself was so conducted that, in the events that actually happened, there was no true miscarriage of justice entailed in the ultimate conviction after trial: see Maric (supra) and Driscoll (supra).

[4] The proposition that there has been a miscarriage of justice at trial so that the resulting conviction cannot properly be allowed to stand is a proposition that cannot itself be upheld in a particular case unless the fact is properly demonstrated. For that to happen, either or both of two things must be established, namely:

(i) That “…………………. (T)he proceedings before the primary court have so far miscarried as hardly to be a trial at all.” There must be demonstrated that there has occurred at trial “………………..an irregularity …………………which is such a departure from the essential requirements of the law that it goes to the root of the proceedings.” Wilde v The Queen (1988) 164 CLR 365 per Brennan, Dawson and Toohey JJ at 373;

(ii) That it cannot be said “………………….. that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, ……………………….”. It is sufficient that “………….. the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed” . ibid at 372

9 I have read the judgment published by Badgery-Parker AJ on 3 August 1999. The relevant principles of law are, in my respectful opinion, clearly and correctly stated. His Honour’s analysis of the materials put before him in connection with the application for a separate trial was, in my respectful opinion, careful, thorough, practical and fair. I do not see any error in the way in which Badgery-Parker AJ applied the relevant principles of law to the facts and circumstances that had been placed before him in connection with the application. In my opinion, it has not been demonstrated that Badgery-Parker AJ erred in refusing to order a separate trial of the appellant.

10 Had I been of the contrary opinion, I would nevertheless not have upheld Ground 1; because I would have taken the view that to establish that Badgery-Parker AJ did err in refusing the separate trial application could not of itself establish that there must have been, without more, a miscarriage of justice at the trial proper, such as could not justify allowing the appellant’s conviction to stand.

11 For the whole of the foregoing reasons I would not uphold Ground 1.

Ground 2

12 This ground was not pressed by the appellant.

Ground 3

13 On the morning of Monday 19 July 1999, the third day of the joint trial, Badgery-Parker AJ raised with counsel the contents of a note which he had received from a member of the jury. The note was in the following terms:

“I was at the Workers’ Club Goulburn talking to someone, and two men came in and the person I was talking to said something to the effect that they were involved in some way with the death of a man. I sat down at the table and the two men came over, and I was introduced to them. A short time later someone in the management escorted a couple of people out of the club who were standing just behind us. I understood they were reporters.”

14 The trial Judge told counsel that it seemed to him, but subject to anything that counsel might wish to put to the contrary, that the note was intended to convey an apprehension on the part of the juror that the two men who had sat at his table at the Workers’ Club were the two accused then before the Court. The Judge indicated that he was proposing to bring that juror into Court and ask some questions intended to clarify further the matter raised by the juror’s note. His Honour expressed a tentative view that, provided always that there was no reason to think that the juror had discussed the matter with other members of the jury, then “there is probably no reason to discharge the whole of the jury, and we should continue with eleven. I will invite counsel to speak about those matters after we have heard from the juror”.

15 The individual juror was then brought, alone, into the Court Room and briefly questioned by the Judge. It became clear that the juror was not prepared to say dogmatically that the two men to whom he referred in the note had been, to his then certain recollection, the two accused; but that they might have been. The juror told his Honour that there had been no conversation “about the death of a man”.

16 At that point, his Honour is recorded as having said to counsel: “Well gentlemen, I don’t know that there is a problem”. His Honour thereupon addressed some further questions to the juror. The answers to those questions established that the juror had not spoken to any other member of the jury about the particular occasion; and that he had no idea at all of when the incident had occurred except to say that it had not been recent. Further questions, including three questions put by the Crown Prosecutor, and one question put by his Honour at the instance of counsel then appearing for the present appellant, established that the juror could not date the particular incident by reference to having read in a newspaper, or seen on the television, anything about Dr. Rowland’s death; or about the committal proceedings that were subsequently conducted in the Local Court at Goulburn. The only other matter established by these additional questions was that the juror believed that it had been the fact of reporters being escorted out of the club that had triggered off the brief reference to something to do with a murder; and that “there may have been photographs taken as well that brought it up”.

17 His Honour then sought the assistance of all three counsel.

18 The Crown Prosecutor led off. His position, eventually, was that he thought it “probably better that he be discharged in any event and we continue on with the other eleven jurors”.

19 Queen’s Counsel then appearing for the appellant’s brother, followed. He told the Judge that he had been instructed that his client “has never been to the Goulburn Workers’ Club. He doesn’t believe he has ever seen the man before, and he is content to continue with twelve”. After some further brief exchanges between his Honour and counsel, senior counsel for the appellant’s co-accused reiterated that, according to his instructions, the co-accused “is content to go on with the twelve”.

20 Counsel then appearing for the present appellant then put his final position which was: “I have got serious reservations about continuing with this jury your Honour”.

21 Badgery-Parker AJ then expressed briefly and as follows the conclusion to which he had come:

“I think the safest course is to discharge the single juror. If it were possible to empanel a new jury today, I would even have thought of discharging the whole lot so that we have the full twelve in case of a further accident during the trial, but that is not feasible. I will discharge the one juror and go on with eleven.”

22 The particular juror, who had been sent out of Court after his questioning had concluded, and during the exchanges between the Judge and counsel, was called thereupon back into Court; given a brief explanation of what was going to happen and its consequences so far as he, the individual juror, was concerned; and formally discharged.

23 The remaining members of the jury were then called back into Court. His Honour addressed them as follows:

“Ladies and gentlemen, you will notice that whereas we had on Friday a jury of twelve, we now have a jury of eleven. Something has occurred, and one of the jurors has spoken to me. We have discussed the situation and I have excused him from any further participation in the trial. It is of no concern to you, or to anybody else as to why he is no longer with us. The trial will continue with a jury of eleven members only, and I think we are ready to go on now.”

24 The trial then proceeded to finality with a jury of eleven.

25 The submissions now put for the appellant are based upon the terms of, in particular, sections 19 and 22 of the Jury Act 1977 (NSW). Those sections provide, relevantly:

“19. The jury in any criminal proceedings in the Supreme Court …………………… is to consist of 12 persons returned and selected in accordance with this Act
…………………………………………………………
22. Where in the course of any trial ……………… any member of the jury dies or is discharged by the court ……………………whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial …………………….. properly constituted if
(a) in the case of criminal proceedings, the number of its members:
(i) is not reduced below 10, ……………………..
and if the court ………………… so orders.”

26 These provisions of the Jury Act have received recent consideration in the High Court: Wu v The Queen (1999) 199 CLR 99. The submissions of the appellant place stress upon the views expressed, in particular, by Kirby J; but his Honour delivered a dissenting judgment.

27 Gleeson CJ and Hayne J say in their joint judgment:

“It is plainly desirable that a judge exercising the power to discharge a juror and the power to proceed with a jury of less than twelve members does so in unmistakable terms. Ordinarily that will be done by the trial judge making two separate orders: an order discharging the juror and an order that the trial proceed before the jury constituted by the remaining jurors. It might fairly be said that, in the present case, the judge’s orders discharging the juror and directing continuation of the trial before the remaining jurors were not expressed but are to be inferred from what he said and the course that the trial took thereafter.
The decision to discharge a juror may require consideration of difficult questions of fact and degree. …………………..” 199 CLR, 103 [8] and [9]

28 Their Honours later expressed the view that “the central question” which has to be determined whenever the possible discharge of a juror arises, is “……………… how best the trial of the appellant should proceed. That required attention to the fair and lawful trial of the appellant by a properly constituted jury and it also required attention to how best that trial might be conducted promptly and without delay” 199 CLR , 106 [18]

29 Later still, their Honours said:

“It may be accepted that a criminal trial by jury in New South Wales must begin before a jury of twelve. At common law if a juror died or was taken ill a fresh jury had to be sworn, although it seems that sometimes the eleven remaining jurors were re-empanelled and a fresh juror sworn in the place of the disabled juror. But the whole purpose of s.22 is to provide that a trial can proceed before a jury despite the discharge of one or more of its members. That is, there can be a fair and lawful trial of an accused despite the discharge of a juror in the course of the proceedings.” 199 CLR 106[21]

30 Callinan J makes the following observations:

“It is appropriate that a trial judge, confronted with a situation in which he or she has to make a decision about a reduction in the number of jurors not do so hastily, without as full an inquiry as it practicable and reasonable, and without making explicit orders as s.22 requires, as to the reduction in number and the continuation of the trial with the reduced number. Adherence to such a procedure (which the Act demands) has the effect not only of ensuring an unambiguous record of what has taken place but also of focusing the trial judge’s attention upon the necessity to weigh up whether a juror’s or jurors’ absence should require the trial to be aborted or whether it should continue with the reduced number. Here I take what ……………………..(the particular judge) said ………….. and ruled to involve at least implicitly consideration of, and orders covering, these matters.” 199 CLR, 134 [103]

31 It is, no doubt, easy enough to criticise Badgery-Parker AJ for not having proceeded, especially in the matter of articulating final orders, with that last refinement of precision which the submissions now made for the appellant put forward as, in effect, mandatory minimum requirements of statute law.

32 It would be, perhaps, both more useful and more fair to take as a starting point a consideration of the position in which his Honour was left by counsel then appearing before him. The Crown Prosecutor made it clear that he felt, albeit not without some seeming hesitation, that the individual juror should be discharged. The Crown Prosecutor gave the Judge, so far as I can tell from the available transcript, no indication whatsoever as to the Crown’s position as to what should thereupon happen in connection with the further progress of the trial. Learned senior counsel then appearing for the appellant’s co-accused told the Judge with complete clarity that the co-accused was content to continue with the full complement of twelve jurors and did not require the discharge of the individual juror. Counsel did not say, however, what stance his client proposed to take in the event that the Judge came to the conclusion that the better course was in fact to discharge the individual juror. Learned counsel then appearing for the present appellant gave the Judge no other assistance than to indicate that he had what he described to the Judge as “serious reservations about continuing with this jury”. It is impossible to tell from the available transcript quite what this statement was intended to convey to the Judge; or, for that matter, quite what the Judge understood the statement to be conveying. Not one of the three counsel seems to me to have assisted the Judge by putting at any stage a clear and unequivocal application respecting either the discharge of the individual juror; or the propriety of proceeding, should the individual juror be discharged in fact, with the remaining eleven jurors.

33 Given that pattern of non-assistance from counsel at trial, the submissions now put for the appellant are, in my opinion, unattractive in their unfairness to the trial Judge. I would not uphold those submissions in the absence of a clear demonstration of some error or errors of substance rather than of form, leading to some clearly demonstrated miscarriage of substance in the further conduct of the trial with a jury reduced to eleven members.

34 As it happens, I am comfortably satisfied that a fair application to the facts of the present case of the principles established by the decision in Wu does not warrant the upholding of the present ground of appeal. In my opinion, the trial Judge was entitled to discharge the juror. His Honour obviously felt some invincible discomfort about allowing the juror to continue as a participant in the trial when there was a real risk that he might have had some untoward, or potentially untoward, brush with either or both of the accused. I do not consider that the Judge was obliged to discharge the juror in the presence of the remainder of the jury. Once the Judge had decided that the juror ought to be discharged; and had satisfied himself that the remainder of the jury had not been tainted by the difficulties that had been perceived as justifying the discharge of the individual juror; then it seems to me that there was a great deal to be said, from a practical and sensible point of view, in minimising any continuing contact of that juror and the remainder of his co-jurors; and by minimising any unsettling, by the formalities of the discharge of the juror, of the remaining jurors. I do not consider that the trial Judge erred in failing to discharge the whole jury. Of three experienced counsel, not one thought it necessary to put a submission to the contrary.

35 As to the proposition that the trial Judge did not properly order that the remaining eleven jurors were to constitute a jury for the purpose of the continuation of the trial, I think that the short answer lies in his Honour’s statement: “The trial will continue with a jury of eleven members only, and I think we are ready to go on now”. I would myself have thought that his Honour’s statement was an explicit order; but, even if the correct view be that it was not more than an implicit order in the sense discussed in Wu, then such an implicit order was, on the authority of Wu, sufficient.

36 I would not uphold Ground 3.

Ground 4

37 The following extract from the trial transcript will sufficiently set the scene for a consideration of this ground. The passage is taken from the cross-examination of Det. Inspector Graham O’Neill, the police officer in overall charge of the investigation into the shooting of Dr. Rowland. The cross-examiner is counsel appearing at trial for the present appellant.

“Q. And what followed then was that the fellow called Gary Teale, who had initially been arrested, as I have indicated, right at the outset, pleaded guilty with two particular charges in front of a District Court judge at Wollongong?
A. That’s true.
Q. And is it the case that he had been originally charged with an offence relating to murder, to your recollection?
A. Relating to the murder of Dr. Rowland?
Q. Yes.
A. Yes.
Q. And is it the case that when he was dealt with, he entered pleas of guilty to a break enter and a steal type offence at the two properties in question, that is the first one on the night where Mr. Walker owned all the gear that was taken out of the shed?
A. Yes.
Q. And also a type of break enter steal in circumstances of aggravation, which relates to the gun, at the Gundaroo property of Peter Rowland?
A. Yes that’s true.
Q. And the charge relating to his involvement in the alleged murder was withdrawn against him. Was that your understanding?
A. That’s my understanding.
Q. I may be mistaken, that he was actually charged originally with an accessory to murder?
A. I thought he was charged with being an accessory. I stand corrected. It’s my understanding.
Q. He was charged as an accessory to murder, not as a principal, is that right?
A. That’s right.
Q. And that was the charge that I am referring to that was not proceeded with by the Crown?
A. It was withdrawn.
Q. On the basis, among other things, that he would give an undertaking to give evidence in these proceedings, is that the situation?
A. Absolutely.
Q. Your understanding is that he is ready, willing and able outside this court room to do just that?
A. Most certainly.
Q. [STRIKE OUT BEGINS] And as a result of those negotiations, and those various court appearances, is it your understanding that Mr. Teale was sentenced to five hundred hours [STRIKE OUT ENDS] -
OBJECTION (CROWN PROSECUTOR) RELEVANCE
(Discussion ensued as to the admissibility of evidence.)
QUESTION REJECTED AND STRUCK OUT AT HIS HONOUR’S DIRECTION”

38 It is submitted for the appellant that the trial Judge erred in rejecting as irrelevant questions designed not only to establish before the jury that Mr. Teale had been dealt with very leniently in consideration of his agreement to give evidence in the Crown case; but also to establish in precise detail the nature and extent of the leniency that had been extended to him on that account. It is submitted that in the absence of such precise detail, “the jury could not possibly appreciate the huge incentive that Teale ……………had to not only co-operate but stick to any allegations he ………….made against the appellant”.

39 It is submitted, further, in connection with Ground 4 that the trial Judge did not correctly and sufficiently charge the jury in connection with the arrangement that had been reached between, relevantly, Mr. Teale and the relevant authorities. It is submitted that his Honour correctly gave the jury a warning of the kind contemplated by section 165 of the Evidence Act 1995 (NSW), but that the terms of that warning did not sufficiently accommodate the particular circumstances of the case.

40 Section 55 of the Evidence Act provides, relevantly:

“55(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; ………….”

41 The evidence said to have been wrongly excluded at trial was not admissible unless it satisfied this statutory test. It can be accepted readily, in my opinion, that the section 55 concept of relevance is a very wide one. It is not, however, limitless. In the present case it was, in my opinion, relevant in the statutory sense for the jury to know that Mr. Teale, whose evidence was extremely damaging to the appellant, was giving that damaging evidence in conformity with an agreement struck between him and the prosecuting authorities for their mutual benefit. It was, in my opinion, relevant in the statutory sense for the jury to know that the essence of that agreement, from Mr. Teale’s point of view, lay in the fact that the arrangement enabled him to avoid being charged, even as an accessory, let alone as a principal, in the murder of Dr. Rowland; and left him with the additional advantage of avoiding a prison sentence in connection with the greatly reduced charges as to which the prosecuting authorities accepted his agreed pleas of guilty. In my opinion, it was not relevant to go into the kind of detail contemplated by the question which was rejected at trial. To have done so would have entailed raising with the jury unfamiliar and difficult concepts as to the range of possible non-custodial penalties; as to the nature of a community service order; as to the comparative severity of such an order when compared and contrasted with other possible non-custodial penalties; and questions of like kind. It was not, in my opinion, relevant for the jury to be invited, in effect, to become embroiled in the fine detail of Mr. Teale’s sentencing proceedings. What was relevant for the jury to understand clearly was that Mr. Teale, and those representing him, had successfully brokered a deal with the prosecution authorities, thereby, put simply, keeping Mr. Teale out of gaol entirely, notwithstanding the admissions, contained in his evidence at trial, of his own connection to the events surrounding the shooting of Dr. Rowland.

42 In my view, therefore, the particular question was rightly excluded at trial.

43 Even had I come to the contrary conclusion, I would not have been satisfied that any substantial miscarriage of justice had thereby been occasioned to the appellant. I would have had in mind particularly in that connection the following evidence that was elicited from Mr. Teale in his cross-examination by learned Queen’s Counsel then appearing for the co-accused:

“Q. Is this a fair summary, that in the weeks and months leading up to September ’98, you had received advice from your lawyers about the possible benefits of giving evidence?
A. Yes.
Q. And included in the possible benefits were negotiations about what charges you might be convicted of, or plead guilty to?
A. Yes.
Q. And it became your understanding – I don’t want to know what you said between your lawyers and yourself – but if you pleaded guilty to the break and enter charges, and promised to give evidence, that the murder charge against you would be dropped?
A. Yes.
Q. And that is eventually what happened?
A. Yes.
Q. Was it also your understanding that for the break and enter offences you would not get a gaol sentence
A. Yes.
Q. Before you pleaded guilty?
A. Yes.
Q. And that deal was all tied up as far as you were aware, before you pleaded guilty?
A. Yes.”

44 The learned trial Judge gave extensive and careful directions to the jury concerning the risks inherent in their accepting the evidence of, relevantly, Mr. Teale. The directions extend from page 42 through page 46 of the summing-up. It is, obviously, not practicable to repeat the entirety of that material. In my opinion a fair reading of the entirety of that material justifies a conclusion that the jury could not have been in any doubt at the conclusion of the particular portion of the summing-up, that there were many and weighty reasons why the evidence of Mr. Teale, (and also of Mr. Spencer, another such witness as Mr. Teale), need to be scrutinised with the greatest care and caution before that evidence was accepted as reliable and as being such evidence as might be relied upon safely. I am unpersuaded that there was any error in the directions and warnings thus given by the trial Judge to the jury. I am strengthened in that view by the fact that neither of the two very experienced counsel appearing at trial for the appellant and his brother saw any need to ask for a re-direction.

45 I would not uphold Ground 4.

Ground 5

46 It is submitted for the appellant that the directions to which Ground 5 refers erred in two respects: first, in that the directions “inferred that Teale and Spencer had been given prison sentences”; and secondly, that the directions would have been understood by the jury “as giving the court’s imprimatur and that of the Crown Prosecutor on the truthfulness and reliability of the witnesses’ evidence in a case where the acceptance or rejection of their evidence was vital to both Crown and the appellant”.

47 I do not think that a fair reading of the relevant remarks can possibly support inferences of this character. As has been earlier noted, the cross-examination of Mr. Teale elicited clear and precise evidence that the arrangements that had been brokered on his behalf with the prosecuting authorities had contemplated that he would not receive a gaol sentence. I would not uphold Ground 5.

Ground 6

48 At the trial, the appellant’s co-accused and brother was in an obvious quandary deriving from the incontestable fact that he had given two wholly inconsistent versions to the investigating police. In the former version he clearly exculpated himself in connection with the killing of Dr. Rowland. In the later version he just as clearly inculpated himself and sought to shift the responsibility for the killing onto the present appellant. From the point of view of the appellant’s brother, it was essential to persuade the jury that there was an acceptable and credible explanation for his having made such a sea-change in his second version. It was this aspect of the co-accused’s case that gave rise to the leading from him of the material that is the subject of the complaint made in Ground 6.

49 When the proposal to lead this evidence was first raised, the trial Judge held a voir dire hearing in order to test in the absence of the jury the admissibility of the proposed material.

50 At the conclusion of that exercise, counsel then appearing for the appellant made this submission:

“The fact that this person, who is alleged to have received this money from my client, isn’t being called, the fact there was no bashing that actually occurred, I would submit, would make the value of this evidence minimal, but highly prejudicial. I would ask your Honour to exclude it.”

51 His Honour responded:

“The value of it has nothing to do with whether some other witness confirms it, the value of it is, if this witness is to be believed, that these were circumstances operating on his mind to cause him to change his story. Now, that is of very significant probative value, surely. Isn’t any prejudice which you might suffer outweighed by a direction to the jury that the evidence cannot be used to prove the truth of what was told to this witness, but only to prove, if the jury believes him, that that was operating on his mind?”

52 Counsel responded:

“If such a direction is given then.”

53 Both the Crown Prosecutor, and senior counsel appearing for the co-accused, expressed their concurrence in the trial Judge’s proposal.

54 Thereafter, and immediately upon the return of the jury to the Court, the relevant material was led briefly and his Honour thereupon addressed the jury as follows:

“Members of the jury, that evidence is allowed only to prove, if you accept the evidence, that certain information came to Mr. Privett and had operated on his mind. It is not tendered in an attempt to prove the truth of what he was told and, therefore, you must not take it in any way as being adverse to the accused Dean Privett that such a thing was said to this man. You are not concerned and you have no way of knowing whether or not what was said to him is true. There is nothing to suggest it was. You are not concerned with whether it is true because the only reason it is tendered is so that you know what was operating on this witness’ mind, according to this witness.”

55 No application was made by any counsel for any re-direction

56 In my opinion the particular evidence was clearly admissible in the case of the co-accused. It was, as clearly, inadmissible in the case of the present appellant. The evidence was admissible, if accepted in fact, in order to bolster the credit of the co-accused. It was not admissible in order to damage the credit of the present appellant. It was not admissible, even if believed in fact, so as to damage the credit of the present appellant; or so as to give rise to any other inference adverse to the appellant.

57 Those considerations required a prompt and careful direction from the trial Judge. In my opinion the direction noted above, given as it was as promptly as was practicable, was sufficient both in form and in substance. I am strengthened in that view by the failure of experienced counsel to put any submission to the contrary.

58 I would not uphold Ground 6.

Ground 7

59 The cross-examination at which Ground 7 is directed comprises a brief passage of four questions and answers occurring during the cross-examination of the present appellant by learned senior counsel for the co-accused. The material is as follows:

“Q. Did you ever give Michael any indication that there were generators or you expected there might be generators out at the Gundaroo property?
A. No.
Q. So each of Teale, Spencer and Michael are falsely dragging you into this, is that right?
A. What was the question?
Q. Each of Teale, Spencer, and Michael are falsely dragging you into this, is that right?
A. Yes.
Q. So each of Spencer and Michael are falsely accusing you of being the shooter?
A. Yes.”

60 Objection was taken at this point by counsel then appearing for the appellant; but the particular question, that is to say the last in sequence of the quoted questions, was allowed.

61 A convenient summary and discussion of the relevant principles will be found in the judgment of Adams J in R v Baker [1999] NSWCCA 277: see paragraphs [16]-[37] inclusive. It is neither practicable nor useful to set out here the detail of the canvass made by Adams J.

62 In my opinion, the clear balance of the authorities collected and analysed by Adams J favours a conclusion that the last three of the four quoted questions ought not to have been asked; and that the objection taken to the last in sequence of the quoted questions ought to have been upheld.

63 That leaves for consideration the following question, the form of which I gratefully adopt from paragraph [32] of the judgment of Adams J.:

“Did the impermissible questioning have a real or perceptible tendency to deflect the jury from properly considering the issues in the trial, having due regard to the onus and standard of proof and, in particular, fairly evaluating the evidence of and the case made by the appellant?”

64 In my opinion, the reasonable and sensible answer to that question, when applied to the given facts of the present case, must be: no. The three objectionable questions were an insignificant part of a lengthy and searching cross-examination. They were, in truth, mere forensic flourishes that added nothing of substance, propounded nothing of substance, and insinuated nothing of substance, that was not already crystal clear from the way in which the trial had been conducted up to that point.

65 I would not uphold Ground 7.

Grounds 8 and 9

66 It is appropriate to deal with both of these grounds together.

67 A convenient starting point is the following passage appearing at paragraph [24] of Badgery-Parker AJ’s remarks on sentence:

“So far as objective criminality is concerned, I conclude that the case is of a most serious nature, though falling short of such a case as would attract a maximum penalty. As between the two prisoners, I regard the criminality of Dean Privett as the greater in that he was, as I find, the instigator of the whole criminal enterprise, and was the one who saw fit to bring the weapon, to load it and, eventually, tragically to fire it.”

68 In my opinion, those findings were amply open to his Honour.

69 There were, of course, subjective matters of substance to the proper benefit of which the appellant was undoubtedly entitled. In my opinion, it has not been shown that Badgery-Parker AJ did not correctly identify those subjective matters and bring them properly to account in the overall sentencing exercise carried out by his Honour.

70 It is to be noted that his Honour, in sentencing the appellant for the murder of Dr. Rowland, took into account, at the request of the appellant, the offence of break, enter and steal, the offence preceding the appellant’s going to the Gundaroo property of Dr. Rowland.

71 The head sentence passed by his Honour upon the appellant, that is to say a sentence of penal servitude for 17 years and 9 months, was undoubtedly a severe sentence; but in my opinion it was a properly severe sentence. The murder of Dr. Rowland was a shot-gun killing at point blank range of a victim who was, at the time of the killing, alone, innocent, unsuspecting and essentially defenceless. The giving of proper weight to the criminal culpability of such an act amply justified, in my opinion, the head sentence upon which his Honour ultimately settled.

72 In connection with the setting of a minimum term, his Honour made, relevantly, this observation:

“It does not appear to me that there is anything in the circumstances of his case which requires the adjustment of the length of the additional term of his sentence to provide for a longer than usual period on parole.”

73 I take his Honour to have been conveying a view that the minimum term should be three-quarters of the head sentence. His Honour in fact nominated a minimum term of 14 years and 6 months, which exceeds three-quarters of the head sentence. Three-quarters of the head sentence, rounding up the fraction resulting from a precise calculation, is 13 years and 4 months. I apprehend that his Honour’s calculation of 14 years and 6 months was a slip; and it would be, in my opinion, appropriate to correct it.

Orders

74 For the whole of the foregoing reasons, I would favour the making of the following orders:

[1] That the appeal against conviction be dismissed.

[2] That leave to appeal against sentence be granted.

[3] That the appeal against sentence be allowed; that the sentence passed at first instance be quashed; and that in lieu thereof the appellant be sentenced to imprisonment for a term of 17 years and 9 months deemed to have commenced on 22 October 1998 and expiring on 21 July 2016, with a non-parole period of 13 years and 4 months deemed to have commenced on 22 October 1998 and expiring on 21 February 2012.

I agree with Sully J.

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