(3) Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person's undertaking to co-operate with law enforcement agencies, the court hearing the appeal:
(a) If it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking - must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and
(b) If it is satisfied that the person has failed in part to co-operate in accordance with the undertaking - may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate.
77 In R v Chen & Others [2002] NSWCCA 174, the appellant was one of a number of persons convicted of being knowingly concerned in the importation of a large quantity of heroin into Australia. The Crown called in its case a co-offender who had been dealt with in accordance with the provisions of s 21E. The Crown led evidence that the witness had signed a written undertaking to co-operate with law enforcement authorities. The jury was also made aware that the Crown could appeal against the inadequacy of the sentence if he failed to co-operate. It was accepted by the appellant that the evidence that the witness was complicit in the offence, had pleaded guilty to it and had received a discount for giving evidence against his co-offender, was admissible. It was submitted however, notwithstanding the absence of any complaint at trial, that the evidence relating to the written undertaking was not admissible. It was contended that the evidence was relevant only to the witness' credibility and thus contravened s 102 of the Evidence Act.
78 The court in rejecting the argument said that "[t]here is authority of long standing in this Court for the proposition that the true status of such a witness as the witness Chan in the present case is relevant in a sense that extends beyond credibility alone." (at 16) The Court then cited with approval the passages in the judgment of Lee J in Booth, to which reference was made earlier.
79 The Court went on to say that "[t]he evidence is not tendered as evidence relevant only to a witness' credibility because it is tendered pursuant to the Crown's duty of fairness to the accused to lay out before the jury the status of the witness without that status being dragged out in cross-examination in a manner which may not be favourable to the interests of the accused" (at 17). The Court then said:
Even had we been persuaded to the contrary view, we would have held that there had been, in substance, no miscarriage of justice. First , it seems to us that counsel at trial for the appellant could not have been denied the opportunity of cross-examining Chan about the matters of which we have earlier spoken: see section 103 of the Evidence Act . Secondly , had the Crown not led the particular evidence from Chan, and had that evidence thereafter been elicited in cross-examination, the practical position at trial would have been, in our opinion, substantially the same as the practical position achieved in fact. Thirdly , had the relevant material about the witness Chan been led neither in-chief nor in cross-examination, then the jury would have been called upon to consider Chan's reliability upon an incomplete and misleading basis. It is sometimes not possible to avoid such a result, because of some countervailing, or other, legal requirement. But such a misleading presentation of a witness such as Chan is, obviously we would have thought, to be avoided if that can possibly be done. In the present matter it could be done; and was, in our opinion, properly and correctly done. Fourthly , counsel appearing for Chen at the trial did not object to the tender of the written undertaking. The transcript for 18 October 2000 records that it was admitted without objection. This attracts the operation of rule 4 of the Criminal Appeal Rules, requiring leave for the moment to be taken. There is no reason whatever why leave should be given. (at 18)
80 The Court in Chen also referred to this Court's decision in R v Gonzeles-Betes [2001] NSWCCA 226, in which precisely the same point had been raised and rejected. Greg James J, with whom the other members of the Court agreed, said that:
[s]ince well prior to the Evidence Act 1995 , indeed since R v Booth (1983 8 A Crim R 81, it has been incumbent upon the Crown when utilising the evidence of an indemnified accomplice, or a person to whom some benefit has or might be extended by dint of that witness' testimony, to reveal that fact in evidence and the true status of the witness, not for the purpose of increasing the witness' credibility but to enable the jury properly to consider those matters on the question of whether the witness' credibility is thereby diminished.
I do not understand there to be any provision of the Evidence Act 1995 the effect of which might be that that practice or rule of law should be changed. It would be most unfair to an accused not to put those matters into evidence . (at paras 47-8). (emphasis added)
81 Legislation in similar but not identical terms now exists in respect of State offences. Section 23 of the Crimes (Sentencing Procedure) Act 1999 enables a court to impose a lesser penalty than it would otherwise impose to take account of assistance provided by an offender to the authorities. Section 5DA(1) of the Criminal Appeal Act 1912 enables the Attorney-General or the Director of Public Prosecutions to appeal to the Court of Criminal Appeal against "any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking". The Court may, pursuant to ss (2), vary the sentence thus imposed "if it is satisfied that the person has failed wholly or partly to fulfil the undertaking". The Court may, in those circumstances, "impose such sentence as it thinks fit".
82 In Conway and Anor v The Queen (2000) 98 FCR 204 the appellants (S. & W.) engaged two other persons to murder Conway's wife. S. & W. were each sentenced to 18 years' imprisonment with an associated non-parole period of 12 years. The sentencing judge indicated that, but for the co-operation provided and promised to the authorities, the sentence in each case would have been 27 years' imprisonment with a non-parole period of 18 years. S. & W. had each promised to, and did in fact give evidence against the appellants.
83 At the trial of the appellants,
[the trial judge]…told the jury that the sentences imposed upon Steer and Williams had been discounted significantly because of their willingness to cooperate in the prosecution of both Conway and McFie. He summarised the effect of the legislation which obliged a sentencing judge in the Australian Capital Territory to take into account the degree to which an accomplice had cooperated, or undertaken to cooperate, with law enforcement agencies. He also reminded the jury of the promise of cooperation on the part of each of Steer and Williams contained in a written undertaking to provide assistance. He told the jury that the relevant legislation provided that where a sentence had been reduced because of the person's promised cooperation, the Court was required, in relation to the sentence, to specify the reason for the reduction of sentence, and the sentence that would have been imposed but for that promised cooperation. Finally, he told the jury that where a person does not cooperate in accordance with his undertaking, an appeal can be brought by the Director of Public Prosecutions, and the whole question of his sentence revisited. (at 250)
84 The trial judge also:
…used the expression "Sword of Damocles" when referring to the threat of a Crown appeal against the sentences imposed upon Steer and Williams if they did not adhere to their statements implicating Conway and McFie. The concept of the "Sword of Damocles" was canvassed thoroughly in cross-examination of the accomplices. It was dealt with also in counsel's addresses. The jury could hardly have failed to understand the danger that an accomplice might adhere to a story implicating others because of the threat of a Crown appeal against sentence. They would readily have appreciated that the fact that the accomplice had already been convicted, and sentenced, did not necessarily diminish this danger. (at 254)
85 In R v Privett [2001] NSWCCA 518 it was argued that the trial judge had erred in rejecting a question designed to elicit from a police officer the precise penalty (namely an order to serve 500 hours community service) which had been imposed upon a witness who had entered into an agreement to give evidence for the Crown. Sully J, with whom the other members of the Court agreed, rejected the argument. His Honour said:
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. (at para 41) (emphasis added)
86 It is to be observed that evidence was elicited from the witness Teale himself that as a result of negotiations with the authorities, the murder charge against him had been dropped and that he would not receive a gaol sentence if he pleaded guilty to charges of break and enter.
87 It was in those circumstances that Sully J concluded that the trial judge had not erred in holding that the jury did not need to know the precise details of the penalty imposed upon the witness pursuant to the undertaking to give evidence against the appellant.
88 In R v Stewart (2001) 52 NSWLR 301 this Court considered the scope of the warning which is to be given by a trial judge pursuant to s 165 of the Evidence Act in circumstances in which the chief Crown witness was giving evidence pursuant to an undertaking to do so. Evidence was led from the witness that he had pleaded guilty to participating in an aggravated break enter and steal offence with the appellant. Evidence was also led from him that his sentence had been discounted because of the undertaking into which he had entered to give evidence against the appellant. The details of the sentence which was actually imposed upon him were before the jury. Spigelman CJ said:
His Honour did inform the jury that Mr Braddick's undertaking to give evidence in the trial of the appellant was taken into account on sentence. There was no reference, however, to the fact that Mr Braddick could lose the benefit of that reduction in sentence if he failed to give evidence of the character that he did eventually give. This is not a matter which would necessarily be known to the jury. In my opinion it constituted a failure to satisfy the requirements of s 165(2)(b).