Kutschera v R [2010] NSWCCA 150 (19 July 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/150.html

2 RS HULME J: On 24 September 2008 the above named Appellant was convicted of murdering Lucas Gleeson on 21 July 2007. On 28 November 2008 Justice Fullerton sentenced the Appellant to imprisonment for a period of 26 years and 8 months including a non-parole period of 20 years both such periods commencing on 21 July 2007.

3 The Appellant appeals against only his conviction and upon one ground only, viz:-
The trial judge erred in respect of the directions given to the jury regarding Adam Newbold.

4 Reliance was placed on s165 of the Evidence Act which, so far as is presently relevant, provides:-
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence
(a) …
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
(e) evidence given in a criminal proceeding by a witness who is a prison informer;
(f) …
(2) If there is a jury and a party so requests, the judge is to:
(a) Warn the jury that the evidence may be unreliable; and
(b) Inform the jury of matters that may cause it to be unreliable; and
(c) Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

5 The warning that her Honour gave to the jury in respect of Mr Newbold was in the following terms (as transcribed):-
“I need now to give you some directions as to how you should approach an assessment of Mr Newbold’s evidence in those circumstances. That is where he has agreed to give evidence against Mr Kutschera when the offending for which he was sentenced occurred on that same night that Mr Kutschera is charged with having murdered the deceased. It is a bit like the warning or caution that I gave you in the context of identification evidence. The direction that I am now going to give you is given in all cases where a person has, because they have agreed to give evidence, had that taken into account when sentenced. …
The warning that I give you is this. A person who gives evidence in Mr Newbold’s position may be giving unreliable evidence. May be giving unreliable evidence, not always, does a person in Mr Newbold’s position give unreliable evidence. Experience has shown that witnesses in Mr Newbold’s position may construct untruthful stories tending to downplay the involvement that they had in the events they are giving evidence about and to play up the role of others. People in Mr Newbold’s position or witnesses generally in that position may make false claims out of hostility or revenge. People in Mr Newbold’s position may feel locked into a version, inculpating, that is saying the other person is guilty, even if that version contains inaccuracies or even untruths. So you should approach his evidence with some caution. In taking that direction into account as you must, you are entitled to look at all the evidence to see whether the other evidence in the case resolves any concern you may have about Mr Newbold giving evidence in this case on his undertaking to give that evidence when that matter was to be taken into account on sentence. I need to tell you this. Mr Newbold was not in fact sentenced to any period of imprisonment. His sentence then was not reduced because he agreed to give evidence, because he was not sentenced as such.
He was however told that if he did not give truthful evidence, that he could be brought back before the judge who sentenced him as the law provides, that is the judge who made a decision about what sort of punishment he should be given for what he did that night and to have the question of his punishment revisited if he did not give truthful evidence.”

6 On behalf of the Appellant it is contended that this direction was inadequate in that:-
(a) It does not refer to the circumstance that, on the version of events given by Tony Matthews, Mr Newbold might well be regarded as having been criminally involved in the murder.
(b) It does not refer to the circumstance that the police, no doubt on the basis of what they had been told by Matthews, charged Mr Newbold with murder.
(c) It focuses exclusively on the circumstance that the appellant had agreed to give evidence against the Appellant when being sentenced for relatively minor matters which had nothing to do with possible involvement in the murder.
(d) The significance of the agreement to give evidence against the Appellant was effectively negated by telling the jury that he did not in fact have his sentence reduced and that he was told his sentence might be revisited “if he did not give truthful evidence”.
(e) No reference was made to the fact that Mr Newbold, having been present at the scene of the murder, had the opportunity to weave the details of what happened into his account to make it appear plausible.

7 It was further submitted that matters that might cause the evidence of Mr Newbold to be unreliable and about which her Honour did not inform the jury were:-
(f) On the version of events given by Tony Matthews, Mr Newbold might well be regarded as having been criminally involved in the murder. If he was criminally involved in the murder, he would have a powerful motive to give any unreliable account which exculpated himself or minimised his part. He would also have a motive to fabricate the role of the Appellant. As was stated in Jenkins v The Queen (2004) 79 ALJR 252; [2004] HCA 57 at [30], “accomplices are regarded by the law as a notoriously unreliable class of witness, having a special lack of objectivity”. Mr Newbold was arrested very soon after the murder and told that he would be charged with murder, so that his motive to give an unreliable account existed prior to him giving his version of events to police.
(g) The charge of murder had been dropped against Mr Newbold, partly as a result of his record of interview, in which he had minimised his part and implicated the Appellant. He would necessarily feel bound to repeat the version given to the police when he gave evidence as am matter of self-protection, in order to avoid prosecution for involvement in the murder (cf Kanaan v The Queen [2006] NSWCCA 109] at [166]).

8 Additional criticisms were:-
(h) The jury were not warned that the much more serious consequences of criminal involvement in a murder, compared with commission of the offences in respect of which Mr Newbold pleaded guilty required a correspondingly greater need for caution in respect of his evidence, and that need for caution was not removed by the fact that the murder charge against Mr Newbold had been dropped, since it could be prosecuted later.
(i) Although the jury were told that they were “entitled to look at all the evidence to see whether the other evidence in the case resolves any concern you may have about Mr Newbold giving evidence in this case…” no reference was made to the fact that Mr Newbold, having been present at the scene of the murder, had the opportunity to weave the details of what happened into his account to make it appear plausible.
(j) The jury were not told of the strongest possibility that potentially undermined Mr Newbold’s reliability, namely that he himself had been criminally involved in the murder.
(k) Her Honour, in deciding the ambit of the warning she should give, took into account evidence that was not before the jury.

9 In response, the Crown submitted that no further warning than that given was requested, that her Honour was entitled to take the view that Mr Newbold was not, in the words of s165, “a witness who might reasonably be supposed to have been criminally concerned in the events”, and that the trial judge had good reasons for not giving a warning more extensive than she did. The Crown also relied on r4 of the Criminal Appeal Rules and, in the last resort, on the proviso to s6 of the Criminal Appeal Act.