R v Collisson [2003] NSWCCA 212 | Case summary

Tuesday 29 July 2003 R v DAVID LEONARD COLLISSON Judgment 1 TOBIAS JA: On 26 February 2002 David Leonard Collisson (the appellant) was found guilty by a jury of the murder of Shahab Kargarian on 8 October 2000 at Greenwich in the State of New South Wales. On 26 March 2002 the appellant was sentenced by Whealy J to imprisonment for 24 years to commence on 8 October 2000 and to expire on 7 October 2024 with a non-parole period of 18 years to expire on 7 October 2018. 2 The appellant appeals to this Court only against his conviction. Five grounds of appeal were originally advanced when the Notice of Appeal was filed on 26 March 2002. The appeal was later refined to three grounds and, ultimately, to one, namely, that the trial judge was in error when he failed to grant an application by the Crown in which the appellant joined that a Mr Simon Bradley be examined on the voir dire with the intention that he give evidence in the trial. At the hearing before us this ground was further refined in accordance with the appellant's oral submissions to which I refer below. 3 The Crown case was that at or around 12.45 am on 8 October 2000 the deceased and his girlfriend, Shabnam Faiz, parked at Greenwich Peninsula to watch the city lights. They were standing in front of the deceased's Toyota and eating when a man demanding the deceased's wallet accosted them. Another, shorter, man was present but not in the immediate area. The deceased said he did not have a wallet at which point the taller of the two men shot him twice and then both men absconded. The police responded quickly and shut down Greenwich Point. At 2.45 am the appellant and a Simon Bradley (Bradley) were found by police in a reserve not far from the crime scene. Later that morning various items were found linking the appellant to the shooting including a sports bag which the appellant and, later, the other man, had been seen carrying which contained the weapon which, so the evidence established, was used in the shooting. 4 Ms Faiz gave evidence to the effect that, after about 10-20 minutes when she and the deceased were standing near their car, eating and watching the city lights, she saw two men approaching diagonally from her left hand side. Whilst the taller man came over to the couple and demanded that the deceased give him his wallet, the shorter of the two men retreated to the other side of the road. After the shooting other witnesses observed the two men running off. 5 The critical issue in the case was the question of identity. After the Crown had opened to the jury counsel for the appellant also opened in which he confirmed that the pivotal issue in the case was one of identification. The evidence proposed to be called by the Crown was that the shooter was the taller of the two men who was the appellant, the shorter man being Bradley. There was no issue but that the appellant was taller than Bradley. 6 At the conclusion of his short opening to the jury, counsel for the appellant said this:' "You'll hear evidence, as the Crown indicated, not just regarding Mr Collisson the accused, but also Mr Bradley. You'll hear evidence about that and my friend has already told you about one piece of evidence already. That is, that gunshot residue which is a maybe for Mr Collisson but a positive for Mr Bradley. Bear that in mind as you listen to all the evidence." 7 It was a reasonable inference from this statement of counsel for the appellant that the latter's defence was that it was not he who was the shooter but Bradley. This became more apparent as the trial proceeded. 8 Representatives of both the Crown and the appellant had attempted to interview Bradley without success. The police had interviewed him but he had refused to make a statement, as was his right. By the time of the trial Bradley, who with the appellant was arrested in October 2000, had been charged with the commission of a criminal offence, namely, the offence of concealing a serious crime which carried, as a possible consequence, a term of imprisonment if he was convicted. He had pleaded not guilty to that charge and, at the time of the trial of the appellant, no date for hearing of that charge had been set. 9 It would appear that from the commencement of the trial the Crown had indicated to counsel for the appellant and the latter had agreed that Bradley would at some point of time during the Crown case be called as a witness in what is referred to as a Basha inquiry. The intention was that Bradley would be called to give evidence on the voir dire in the absence of the jury in order to enable the parties to ascertain the evidence that he was able to give. This was necessary as Bradley had refused to make a statement and to be interviewed by either representatives of the Crown or the appellant with the consequence that neither party was aware of the evidence that might be elicited from him. In particular, no one knew as to whether such evidence, if and when given, would favour the Crown or the appellant. 10 It would also seem that Bradley was at all material times represented by counsel who advised the legal representatives of both the Crown and the appellant that her client, if called, would refuse to answer any questions on the ground that such evidence may tend to prove that he had committed an offence against or arising under an Australian law. On 18 February 2002, being the eleventh day of the trial, the Crown Prosecutor informed his Honour that it was proposed to call Bradley in the absence of the jury; that it was anticipated that when asked to give particular evidence he would refuse to give that evidence on the ground referred to and that the Crown and the appellant would apply to his Honour pursuant to s 128(5) of the Evidence Act 1995 (NSW) (the Act) to exercise his discretion under that provision to require Bradley to give the evidence sought upon the basis that the witness would be given a certificate under s 128(6) in respect of that evidence. The consequence of such a certificate would be that Bradley's evidence could not be used against him in an Australian court: see s 128(7). At the time it was foreshadowed by counsel for Bradley that such a course would be opposed upon the basis that it would not be in the interests of justice to require Bradley to give such evidence given that there were outstanding charges against him which had not been finally resolved. 11 Bradley was then called and sworn and the following exchange took place: "Crown Prosecutor: Q. Would you state your full name please? A. Simon Mark Bradley Q. Mr Bradley, are you able to tell the Court if you were on 8 October in the year 2000 shortly after 9.30 pm present on the Rooty Hill Railway Station along with Mr Collisson? A. Possibly, I couldn't tell you if it was that time. Q. Do you have a recollection of being in the presence of Mr Collisson on that evening? FRANCIS: At this stage the witness is seeking to take the objection." 12 His Honour then informed Bradley of the effect of s 128 and, in particular, s 128(5). The following further exchange then took place: "HIS HONOUR: Are you wishing to object to the particular question that has been asked, Mr Bradley, or not? WITNESS: Yeah. HIS HONOUR: Is that on the basis that you say the evidence may tend to prove that you have committed an offence under Australian law? WITNESS: Not only that, It may or may not incriminate me with or without the certificate. HIS HONOUR: Miss Francis, do you wish to put a submission to me about this matter? FRANCIS: The objection is taken in accordance with s 128(1) of the Evidence Act." 13 The issue which was then debated between the Crown Prosecutor and counsel for the appellant on the one hand and counsel for Bradley on the other was whether the Court could be satisfied, within the meaning of s 128(5)(c) of the Act, that the interests of justice required Bradley to give the evidence sought. At the end of the argument his Honour delivered judgment in which he concluded that he should not make an order under s 128(5). He identified the critical issue as being whether he was satisfied that the interests of justice required that Bradley give the evidence sought. Having noted that the subject provision did not compel the making of an order thereunder and that the making of an order requiring a person facing unresolved charges to give evidence would result in a situation where incriminating evidence must be provided, his Honour determined that Bradley should not be required to give the evidence in question. 14 His Honour's reasons for refusing the order were set out in the following paragraphs of his judgment: "13. First, it is well-established that the evidence of an accomplice is "inherently suspect". 14. Secondly, this is even more so where the accomplice, although charged, has not finally been dealt with. 15. In R v Booth (1982) NSWLR 847 at 850, Street CJ said that is well-recognised in practice that accomplices should normally be finally dealt with before being called to give evidence in support of the Crown. " It will rarely arise ", his Honour said, " in practice that an accomplice who has not been finally dealt with, or who perhaps may not have received a pardon or otherwise has had his position finalised will be called to give evidence. " 16. In the same case, Lee J, at page 851, said this: " In this State, the practice is, when the Crown intends to call an accomplice, for the Judge to sentence the accomplice if he is charged and to do that before he is called and I would say that that practice is one which should be followed in all cases, unless there are the most cogent reasons for not so doing. " 17. These principles are not directly applicable in the present case since it cannot be said the evidence of Mr Bradley is to be called in support of the Crown. 18. Nevertheless, the reasons underlying this practice, including notions related to the instability and the unreliability of such evidence, especially in the context of the present trial, are compelling considerations for not making an order under sub-s 5. This is precisely because the Crown has no idea what the witness will say, nor, as I have been told, does the accused. For example, in purely hypothetical terms, the witness might volunteer that he saw the accused shoot the deceased: such a statement might be virtually worthless since he is an accomplice awaiting trial. On the other hand, he might suggest that neither he nor the accused were, at the relevant time, anywhere near the crime scene. In theory, he might say he was the shooter and the accused was entirely innocent: or he might say he has no recollection whatsoever of the events of the evening. Again for varying reasons these statements, were they to be made, would be virtually worthless. 19. Fourthly, there is the broader consideration of the position of the witness himself. As I have said, he is implicated and charged in relation to the very criminal act with which the accused is charged. It would only be, in my view, in the most compelling of circumstances that the should be required prior to the resolution of the charge against him to give evidence of his involvement, if any, in that act, notwithstanding the apparent protection afforded by the certificate." 15 Having referred to the desire of the Crown to avoid a Jones v Dunkel direction if it did not call Bradley as well as its desire to dispel any suggestion that it had acted in any way improperly by not calling a witness who could give evidence about a relevant matter at the trial, his Honour continued: "20. ….it is my assumption that the accused wishes to cross-examine his companion on the night to bolster his own position, perhaps at the expense of Mr Bradley. If I am wrong in this assumption, it is at least true to say that the elements of the defence approach to date have been designed to target Mr Bradley as the shooter…" 16 His Honour concluded his reasons in the following terms: "22. It seems clear to me that where neither party has any idea what evidence will be given by a potential witness such as Mr Bradley, and the witness refuses to give information in an interview, it is quite inappropriate to speculate whether he should be called by either party in criminal proceedings. In the absence of his evidence, the jury would be directed not to speculate about his evidence and to decide the issues on the evidence before them ( Newland at p 462). It is equally unclear whether Mr Bradley would give any useful or reliable evidence. I do not disagree that a Basha type preliminary inquiry may be held in an appropriate case to determine what it is that a witness might say, and to allow the defence to test his evidence; But if that can only occur by calling in aid sub-s 5 of s 128, especially in circumstances where the witness is charged and implicated in the principal crime, then I consider that it is positively not in the interests of justice that he or she be required to give potentially incriminating evidence. Mr Bradley's position regarding the serious charge against him remains completely unresolved at this time. 23. This conclusion is re-enforced by the fact that whatever he might say would be inherently unreliable and inherently suspect. What would be the true value of such evidence? Whatever be his evidence, it would require the jury to be warned in that regard in accordance with the provisions of s 165 of the Evidence Act . For all those reasons, I have come to the conclusion that I should not make an order under sub-s 5 of s 128." 17 On the day following his Honour's refusal to exercise his power under s 128(5) of the Act, counsel for the appellant applied for the discharge of the jury and the ordering of a new trial to be held after all charges against Bradley had been finalised so that at least the major reason for it not being in the interests of justice that Bradley be required to give evidence would have disappeared. It was submitted that this course was necessary to ensure that the appellant received a fair trial. 18 In the course of his judgment refusing this application his Honour distinguished the facts in Booth to which he had referred in his judgment the previous day and, in the course of so doing, repeated his finding that there was no basis for supposing that were Bradley called in the Crown case his evidence would be reliable and that, as an accomplice in circumstances where there was no suggestion that he would give evidence in support of the Crown case, there was every reason to believe that his evidence would in fact be unreliable. His Honour considered that that likelihood would be increased by the fact that the charge against Bradley had not been finalised. 19 Counsel for the appellant made two submissions to his Honour which, he contended, arose as a consequence of his decision the day before not to require Bradley to give evidence and which would result, if the matter continued, in the appellant not receiving a fair trial. The first was that there was an obligation on the Crown to ensure that Bradley's charge was brought to finality before the appellant's trial, an obligation that it had not fulfilled. The second was that it would be difficult for the appellant to call Bradley in his own case without placing the witness in a position where he may not wish to give evidence. As his Honour noted, this argument presupposed that the Crown had reason to believe that Bradley had the capacity and the ability to give evidence in support of the Crown's case. 20 His Honour then considered these two submissions. Having rejected the first, he noted with respect to the second that he had no reason to suppose that Bradley's evidence would be any more reliable were he to be called for the defence than if he was called by the Crown. He observed that counsel for the appellant had had a recent conference with Bradley although he had not been made aware of the witnesses' attitude to the giving of evidence for the defence. He therefore considered that there was no reason why he could not be called in the appellant's case. His Honour ultimately determined that he was not satisfied that there was any danger of the appellant not receiving a fair trial in light of the ruling he had made the previous day and that he did not consider that the appellant's position would be prejudiced because the hearing of the charges against Bradley had not been concluded. He accordingly declined in his discretion to abort the trial. 21 I have already referred to the opening to the jury of counsel for the appellant and to the implicit suggestion that it was Bradley who was the shooter and not the appellant. The subsequent conduct of the case by counsel for the appellant apparently caused his Honour, in his judgment on 18 February 2002, to observe that it was: "…at least true to say that elements of the defence approach to date have been designed to target Mr Bradley as the shooter." 22 Nevertheless, immediately following his Honour's refusal of the adjournment application and before any further evidence was called, counsel for the appellant indicated to his Honour that: "We (the defence) wanted to call him (Bradley) and we intend at some stage to call him." 23 On 20 February 2002 counsel for the appellant, immediately after the close of the Crown case, again advised his Honour that, after calling a fingerprint expert, he "would seek to call Mr Bradley". However, he closed the defence case without doing so. 24 Having not called Bradley for whatever reason, it is unsurprising that in his closing address to the jury counsel for the appellant advanced the argument that there was a real possibility that Bradley was the shooter and that possibility was certainly sufficient to raise a reasonable doubt as to whether it was the appellant. As his Honour observed to the jury in his summing up: "He (counsel for the appellant) put it plainly enough to you that it is quite possible that Mr Bradley was the shooter, not the accused." 25 The thrust of the appellant's argument before this Court was that his Honour's discretion to require Bradley to give evidence pursuant to s 128(5) of the Act miscarried when his Honour, in his consideration of whether he was satisfied that the interests of justice required the witness to give the evidence, gave as one of his reasons for not being so satisfied that it was "well-established that the evidence of an accomplice is 'inherently suspect'." It is pertinent to record that it was not suggested that his Honour's second stated reason, namely, that it would not be in the interests of justice that Bradley be required to give potentially incriminating evidence where there was a serious charge against him which remained unresolved, disclosed error. 26 Accordingly, the appellant's argument was, as I understood it, confined to the following:

(d) although that reason was a valid and justifiable reason for his Honour not to be satisfied that it was in the interests of justice that Bradley be required to give evidence, it followed that he should have aborted the trial to enable the charge or charges against Bradley to be finalised when a new trial of the appellant could be had at which Bradley could be required to give the evidence which he had so far refused to give but in circumstances where the charges against him having been finalised, his Honour could be satisfied that the interests of justice required Bradley to give that evidence. 27 I should observe that counsel for the appellant properly accepted that if his challenge to the first reason advanced by his Honour in support of his lack of satisfaction that it was in the interests of justice that Bradley be required to give evidence failed, then it would follow that his Honour's decision to refuse to exercise his power pursuant to s 128(5) of the Act to require Bradley to give evidence was error free and, further, that in those circumstances there could be no proper challenge to the exercise of his Honour's discretion the following day to refuse the appellant's adjournment application. 28 Accordingly, the outcome of this appeal centres on whether his Honour was entitled, when determining that he was not satisfied that the interests of justice required Bradley to give the evidence, to apply to Bradley the well-established principle of the common law that the evidence of an accomplice was "inherently suspect". In this respect, the nub of the appellant's argument was that his Honour had erred in finding that Bradley was an unreliable witness simply because he fell within the class or category of witnesses referred to in s 165(1)(d) of the Act whose evidence "may be unreliable". It was submitted that his Honour could not opine that the evidence of Bradley would in fact be unreliable without first ascertaining the nature of the evidence that he was prepared to give. It was contended that it was necessary to ascertain and then assess that evidence before his Honour could determine that it would be so unreliable that, in the interests of justice, Bradley should not be required to repeat that evidence, one assumes, before the jury. 29 In my opinion, the appellant's submission should be rejected. It is, of course, essentially circular. It makes no sense to suggest, as does the submission, that although it would be in the interests of justice to require Bradley to give incriminating evidence in the absence of the jury notwithstanding that the charges against him have not been finalised, it would (or, at least, may) not be in the interests of justice to then require him to give the same evidence in the presence of the jury. 30 As I have observed, it was not contested that his Honour was correct in stating the "well-established principle" that the evidence of an accomplice is "inherently suspect". Equally, it was not contested that Bradley was a witness who fell within the class or category of witnesses referred to in s 165(1)(d) of the Act whose evidence may be unreliable and in respect of which a warning to the jury, if requested, may be necessary pursuant to s 165(2). Accordingly, I do not understand why his Honour was not entitled to describe any evidence that Bradley might relevantly give as inherently unreliable. It seems to me that it was not necessary for his Honour to know the exact details of the evidence which Bradley would give before he could come to that conclusion. 31 In [18] of his judgment of 18 February 2002 his Honour postulated three hypothetical examples of the type of evidence which Bradley might give. As he then concluded, all three theoretical statements, were they to be made, would be virtually worthless. If his evidence favoured the Crown case and implicated the appellant (the first example), then there could be no doubt that counsel for the appellant would have requested his Honour to warn the jury that that evidence may be unreliable in terms of s 165(2)(a) of the Act. On the other hand, counsel for the appellant conceded that it would be unlikely in the extreme that Bradley would have given evidence that he, and not the appellant, was the shooter (the second example). 32 In fact, it was the third theoretical example postulated by his Honour in the passage referred to that the appellant relied upon before this Court, namely, that Bradley might give evidence that neither he nor the accused were, at the relevant time, anywhere near the crime scene. It was suggested that if such evidence was given the nature of the defence may have been different. Needless to say such a suggestion is highly speculative especially as from the very outset of the trial the appellant's case was that Bradley rather than he, was the shooter. 33 In any event, in the light of the other independent and objective evidence that had been given, one would not need to be too prescient to conclude that any such evidence would simply have been unbelievable and, therefore, disbelieved. In these circumstances, I can see no error in his Honour's first reason as to why he could not be satisfied that the interests of justice required Bradley to give evidence, namely, that that evidence would be unreliable. 34 That really disposes of the appeal. However, even if that first reason had not been a proper basis for his Honour's lack of satisfaction that the interests of justice required Bradley to give evidence, nonetheless I do not consider that his Honour's discretion to refuse an adjournment miscarried even if one assumes that his sole or primary reason for not being so satisfied was that to require Bradley to give evidence before charges against him were disposed of would subject him to unacceptable prejudice. In my opinion, his Honour's exercise of discretion to refuse an adjournment could only have miscarried if he was or ought to have been satisfied that, if the trial was adjourned to enable the charges against Bradley to be resolved, the appellant would have been better off than would have been the case had the trial proceeded. 35 In my opinion, it is just not possible to be satisfied that the appellant would have been better off had his trial been adjourned. No one knew what evidence Bradley would give. Given the nature of the then known charge against him, it would be unlikely, even if the proceedings involving that charge were resolved, that Bradley would then have given evidence to exculpate the appellant by admitting that he was the shooter. Again, the only evidence that counsel for the appellant could suggest might place the appellant in a more advantageous position if the trial was adjourned was that Bradley might give evidence that neither he nor the appellant were, at the relevant time, anywhere near the crime scene. However, as I have already observed, not only is this entirely speculative but also entirely unbelievable. 36 Absent any acceptable basis upon which it could properly be suggested that the appellant would have been better off had he had the benefit of Bradley's evidence, it is clear that his Honour's discretion to refuse an adjournment did not miscarry. Further, even if that direction had miscarried, in my opinion no substantial miscarriage of justice has, in the circumstances, actually occurred in the required sense that the appellant has not lost "a chance which was fairly open to him of being acquitted". 37 For the foregoing reasons I am of the opinion that the appeal should be dismissed. 38 JAMES J: I agree with Tobias JA. 39 HOWIE J: I agree with Tobias JA. **********

R v Collisson

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