DECISION: Appeal against conviction is dismissed. Application for leave to appeal against sentence is granted but the appeal is dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60523/00
SPIGELMAN CJ HULME J HOWIE J
WEDNESDAY 5 SEPTEMBER 2001
REGINA v MALCOLM JAMES STEWART
HEADNOTE
CRIMINAL LAW: The appellant was convicted of a charge of aggravated break, enter and steal from a dwelling house contrary to s 112(2) of the Crimes Act 1900. The Crown case was that the appellant and a co-offender, Braddick, armed with offensive weapons, entered a dwelling house and stole property from those premises. Braddick pleaded guilty to the charge and gave an undertaking to give evidence against the appellant and as a result his sentence was reduced to take into account the offer of assistance. In accordance with that undertaking he gave evidence implicating the appellant.
On appeal it was asserted that the warnings given by the trial judge under s 165(2) of the Evidence Act 1995 in respect of the evidence of Braddick were inadequate.
HELD
Per Hulme and Howie JJ, Spigelman CJ, dissenting: The appeal should be dismissed.
Per Hulme J: Although the judge failed to comply with s 165(2)(b) of the Evidence Act, rule 4 of the Criminal Appeal Rules should be applied as there was no possibility of a miscarriage of justice.
Per Howie J: There was no breach of s 165(2) of the Evidence Act and the warnings were not otherwise inadequate in the circumstances of the case, and in any case rule 4 of the Criminal Appeal Rules should be applied.
Per Spigelman CJ (dissenting): The trial judge failed to comply with s 165(2)(b) of the Evidence Act and a miscarriage of justice occurred.
Per Spigelman CJ and Hulme J: The trial judge was required to warn the jury in respect of the discount of sentence granted to Braddick and the consequences of the failure to comply with the undertaking, per Spigelman CJ: because Braddick came with s 165(1)(d) of the Evidence Act;per Hulme J: because of the scheme by which sentencing discounts are subject to…
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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AGLC
R v Stewart [2001] NSWCCA 260
Case
[2001] NSWCCA 260
Decision Date
CaseChat Overview and Summary
In the case of R v Stewart, the defendant appealed against his conviction, arguing that the trial judge failed to adequately warn the jury about the dangers of relying on evidence that may be unreliable. The appeal was heard in the New South Wales Court of Criminal Appeal. The central legal issue was whether the trial judge properly applied section 165 of the Evidence Act 1995 when summing up to the jury, specifically concerning the warning about evidence that may be unreliable. The court had to determine whether the trial judge's approach to issuing such warnings conformed to the statutory requirements of the Act or if it should align with the pre-existing common law.
Howie J, in delivering the judgment, closely examined the language and legislative intent behind section 165 of the Evidence Act 1995. The court found that the Act intended to overhaul the previous common law concerning warnings to juries about unreliable evidence. By referencing the High Court's decision in Papakosmas v The Queen, the court reinforced the notion that statutory language, not the common law, now governs the treatment of such evidence. The critical sections of the Act were designed to simplify and make the law more flexible, moving away from rigid and technical rules. Consequently, the court held that the trial judge's approach must align with the statutory language and objectives, rather than adhering to the pre-existing common law principles.
The court ultimately determined that the trial judge's summing up did not adequately reflect the requirements of section 165. The decision was influenced by the need for a warning that appropriately focused on the reliability of the evidence in question, as intended by the statute. The court emphasised that the statutory framework mandates a more flexible and case-specific approach, rather than relying on technicalities. Therefore, the appeal was allowed, and the conviction was quashed. The court's decision underscored the importance of adhering to the statutory provisions when addressing warnings about unreliable evidence in jury trials.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Howie J approaches the construction of s165 of the Evidence Act1995 against the background of the pre-existing common law position. A similar issue arose with respect to other provisions of the Evidence Act in Papakosmas v The Queen (1999) 196 CLR 297. The approach adopted by the High Court with respect to provisions there under consideration, is in my opinion, applicable to s165. Gleeson CJ and Hayne J said at [10]:“It is clear from the language of the Act, and from its legislative history, that it was intended to make and that it has made, substantial changes to the law of evidence in New South Wales…. the sections of the Act relevant to this case undoubtedly make express provision different from the common law. It is language of a statute which now determines the manner in which evidence of the kind presently in question is to be treated. The appellant argues that the meaning and effect of that language, properly understood, is to be determined in the light of, and in a manner that conforms to, the pre-existing common law. For reasons that will appear, that argument must be rejected.” Gaudron and Kirby JJ said at [46]:“The Act specifies new rules of evidence in place of those developed by the common law.” McHugh said at [88]:“The Act has made substantial changes to the law of evidence. Notwithstanding s9, reference to pre-existing common law concepts will often be unhelpful.” Section 165 must be construed together with s164. The whole of s165 and the relevant part of s164 are set out by Howie J. The two sections constitute reform of the law of a fundamental kind. The origins of these provisions are found in the report of the Australian Law Reform Commission. In its Interim Report (The Law Reform Commission, Report No 26, Evidence, vol 1, Canberra, 1985) the Commission said:“1015 Warnings The present law is too rigid and technical. There is a strong case for saying that it does not adequately serve the rationale of minimising the risk of wrongful convictions. Warnings can be required when not necessary and avoided when they should be given in the circumstances of the particular case. In addition, warnings, in their present form, distract attention from the issue of reliability of the evidence in question. Finally, the directions to be given are so complex that they are likely to be ignored. There is also a strong case for arguing that the law does not provide an appropriate guide for and control of the judge. Attention is focused on technicalities instead of the needs and merits of each particular case. The law, in its complexity, creates problems that can exceed the help it may give. What is required is a simpler regime, under which the trial judge must consider whether a direction appropriate to the circumstances should be given. It must also be flexible.…1016 It is proposed that the existing requirements of law and practice be abolished. This will have the consequential effect of removing the obligation to direct juries about what is corroboration, what evidence may amount to corroboration and that, notwithstanding the absence of corroboration, the jury may still convict if satisfied beyond reasonable doubt of the accused’s guilt. In the case of ‘accomplice evidence’ it will remove the obligations to direct juries about who is an accomplice and that it is for the jury to determine whether the witness is or is not an accomplice.”