Steer v R

Case [2008] NSWCCA 295

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Steer v R [2008] NSWCCA 295

FILE NUMBER(S):
2006/3106

HEARING DATE(S):
30 October 2008

JUDGMENT DATE:
9 December 2008

PARTIES:
Brian James Steer (appellant)
The Crown

JUDGMENT OF:
McClellan CJ at CL Simpson J McCallum J   

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2006/239

LOWER COURT JUDICIAL OFFICER:
Whealy J

LOWER COURT DATE OF DECISION:
17 November 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
NSWSC 1198

COUNSEL:
C T Loukas (Appellant)
D Arnott SC (Crown)

SOLICITORS:
Peter Murphy, Solicitor (Appellant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
evidence
judicial discretion to admit or exclude evidence
prejudicial evidence
whether evidence of armed robbery and proposed flight should have been admitted as evidence of accused's consciousnes of guilt for murder
whether the proviso should be applied
s 137 Evidence Act 1995
s 6(1) Criminal Appeal Act 1912
CRIMINAL LAW
appeal and new trial and inquiry after conviction
appeal and new trial
particular grounds
misdirection and non-misdirection
whether trial judge misdirected jury as to how evidence of armed robbery and proposed flight could be used as evidence of consciousness of guilt
whether the proviso should be applied
s 6(1) Criminal Appeal act 1912
CRIMINAL LAW
evidence
judicial discretion to admit or exclude evidence
prejudicial evidence
whether admission of evidence that accused owned hunting knives should have been admitted
whether the proviso should be applied
s 137 Evidence Act 1995
s 6(1) Criminal Appeal Act 1912

LEGISLATION CITED:
Evidence Act 1995
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Can v R [2007] NSWCCA 176
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Gonzales v R [2007] NSWCCA 321; (2007) 178 A Crim R 232
House v The King (1936) 55 CLR 499
Markby v The Queen (1978) 140 CLR 108
Quinlan v R [2006] NSWCCA 284; (2006) 164 A Crim R 106
R v Cook [2004] NSWCCA 52
R v Sievers [2004] NSWCCA 463
R v SJRC [2007] NSWCCA 142
Sievers v The Queen [2005] HCA Trans 663
Smale v R [2007] NSWCCA 328
Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195

TEXTS CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/3106

McCLELLAN CJ at CL
SIMPSON J
McCALLUM J

TUESDAY 9 DECEMBER 2008

STEER, Brian James  v  R

Judgment

  1. McCLELLAN CJ at CL:  The appellant was convicted of the murder of Warren Dickson on 13 February 2005. He appeals that conviction. There are three grounds of appeal, two relating to the admission of evidence. The other ground raises one aspect of the trial judge’s summing up for consideration.

    Relevant matters

  2. The authorities became aware that Mr Dickson had died after police and fire brigade officers came to the house where he lived at 90 Commerce Street, Taree in response to an emergency call. In the main bedroom of the house they found the burned remains of Mr Dickson. His throat had been cut twice and a post…

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Details
AGLC
Steer v R [2008] NSWCCA 295
Case
[2008] NSWCCA 295
Decision Date

CaseChat Overview and Summary

In the case of Steer v R, the appellant contested his conviction and sentence for murder. The central issue in the appeal was the admissibility of evidence concerning an armed robbery committed by the appellant, which occurred shortly after the murder of the deceased. The appellant argued that the evidence of the armed robbery was prejudicial and should have been excluded. Additionally, the appellant challenged the admission of evidence about his ownership of hunting knives.

The legal issues before the court involved whether the trial judge had correctly exercised his discretion under the Evidence Act 1995 to admit evidence of the armed robbery and the appellant's proposed flight, and whether this evidence demonstrated the appellant's consciousness of guilt for the murder. The court also needed to determine if the evidence of the hunting knives should have been admitted and whether the prejudicial effect of the evidence outweighed its probative value. The court examined whether the trial judge had misdirected the jury on how the evidence could be used and if the proviso in section 6(1) of the Criminal Appeal Act 1912 should apply.

The court concluded that the evidence of the armed robbery and the appellant's proposed flight was relevant and had significant probative value, particularly in demonstrating consciousness of guilt. The court held that the trial judge had not misdirected the jury on how to consider this evidence and that the probative value outweighed any prejudicial effect. The court found that the evidence of the hunting knives was also properly admitted, as it did not unfairly prejudice the appellant. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

The final orders of the court were that the appeal against conviction and sentence was dismissed, and the conviction and sentence of the appellant, Daniel Roy Steer, for the murder of Peter Anthony Steer were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There are three grounds of appeal.Ground One: the trial miscarried because of the admission into evidence of the circumstances of the armed robbery committed by the appellant. The appellant submitted to this Court that the evidence of the armed robbery, although having some probative value, was weak and the evidence, being unfairly prejudicial to the appellant, should have been rejected. In the alternative it was submitted that “surgery” could have been carried out on the evidence and the conversation with the bank teller tendered without evidence that it occurred during a robbery. Before the trial commenced the appellant had unsuccessfully sought to have his trial for the armed robbery count separated from his trial for the murder. That application was rejected but no appeal was filed. When the matter was agitated during the trial, counsel for the appellant indicated that the appellant admitted as a fact that (a) he attended the residence of the deceased on the day of his death; (b) he entered the deceased’s residence; (c) there was a verbal and physical confrontation with the deceased; and (d) he inflicted the fatal wounds during the course of a struggle. The appellant also admitted that he had robbed the bank. The trial judge considered an objection to the evidence which he identified as being evidence of the robbery together with statements about it either before or after the event. His Honour identified the fact that the principal issue in the trial was likely to be self-defence. His Honour determined that the appellant’s statements to other persons as to the nature of, and reasons for his actions were intertwined with his statements regarding his intention to obtain money unlawfully and to flee. His Honour was further of the view that evidence of the proposed robbery and flight was capable of demonstrating consciousness of guilt, although whether it had this quality was a matter for the jury. His Honour referred to the remarks of Simpson J in R v Cook [2004] NSWCCA 52 where her Honour considered the issues relevant to lies which were said to reflect consciousness of guilt (at [21] and following). His Honour concluded that parts of the statements made by the appellant to Ms Mitchell, Ms Barkwill and to Ms Mathews relating to his intention to rob a bank or the fact that he had committed a bank robbery to provide funds for his contemplated disappearance were relevant as possible evidence of consciousness of guilt. The robbery and contemplated flight might be found by the jury to reflect an awareness on his part that his actions in killing the deceased did not flow from a belief that he had been acting in defence of his person. Similarly his Honour ruled that the evidence of the removal of the children to Queensland and his return to New South Wales and the carrying out of the robbery at Wauchope were capable of reflecting a consciousness of guilt. Having concluded that the evidence was relevant, his Honour proceeded to determine whether it should be excluded pursuant to s 137 of the Evidence Act 1995. His Honour concluded that the probative value of the evidence of the robbery was high and concluded that the expanded version of the appellant’s statement to Ms Preston in the bank was capable of being regarded by the jury as a significant admission. His Honour said:“Secondly, as the Crown submitted, the facts of the Wauchope robbery tend to give credibility and reliability to the evidence of both Ms Mitchell and Ms Barkwill. Thirdly, as I have already said, the evidence is capable of demonstrating consciousness of guilt in the sense I have described, particularly having regard to the issues that arise in the present matter. This is so notwithstanding the fact that ultimately the accused handed himself in to the police.As to prejudice, there is little doubt that the jury will be likely to take a dim view of the accused’s character when they become aware of his involvement in the armed robbery. Certainly it will be unlikely to endear the accused to the jury. In that obvious sense, the material is prejudicial to the accused. But will the material be used by the jury in a way that is or might be unfair to the accused?The authorities make it clear that there is no general principle that when the explanation for flight involves revealing other offences, the evidence should be rejected. (See R v Cook per Simpson J at para 47). That, of course, is not, in any event, the situation here. The Crown case is that the contemplated flight embraced, as an essential feature, the robbery that was, shortly after the killing, actually carried out. There appear to me to be two safeguards that substantially reduce, if not entirely eliminate, the risk of the robbery evidence being used unfairly.The first relates to the directions to be given to the jury. I addressed this matter at length in my previous decision given on 22 June 2006. There is no need for me to repeat those earlier remarks other than to say I adhere to them. Indeed, the Crown has prepared a draft direction, it appears in the transcript of the argument, and I would expect, with the additional assistance that I can anticipate from Mr Stewart, that a satisfactory direction can be formulated to make it absolutely clear to the jury how they may all, more importantly, may not use the evidence.Secondly, the general direction relating to the accused’s post killing conduct, including the robbery itself, as evidencing a possible consciousness of guilt will alert the jury to the possibility that he may have undertaken that course of conduct by reason of consciousness of guilt, not of the offence of murder but of other offences or of other discreditable conduct (see Cook again at para 47). So too will a direction relating to the remark passed in the bank during the robbery point to the possibility that it may not be an admission of murder but one relating to his generally discreditable conduct that is distinct from the offence charged.For these reasons, it is my present view and hence my present ruling that the robbery evidence may be admitted.”

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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