Stojcevski v R [2012] NSWCCA 27 | Case summary

Court of Criminal Appeal (NSW)|2012-02-01|Before: Whealy JA, Hulme J, Hidden J

Judgment 1WHEALY JA : The appellant faced trial by jury on an indictment that charged that: "On 11 March 2010 at Coniston in the State of New South Wales, [he], being armed with an offensive weapon, namely a piece of timber and a knife, robbed Geoffrey Lennox of cash consisting of notes and coins the property of Geoffrey Lennox." 2The trial was held in Wollongong before his Honour Judge Conlon SC (the Trial Judge) and a jury of twelve. There was no issue at trial that Mr Lennox, who was a newsagent at Coniston, had been set upon in the early hours of the morning by an intruder wearing a balaclava, threatened, struck on the head with a piece of wood or a bat and robbed of about $80. The sole issue at trial was whether the appellant was the intruder and assailant. 3On 2 September 2010, the jury returned with a verdict of guilty. The appellant was sentenced on 12 November 2010 to a non-parole period of two years and six months, with an additional term of two years to expire on 11 September 2014. The sentencing was backdated to commence at the time the appellant was arrested and charged on 12 March 2010. The appellant has not sought leave to appeal against the sentence imposed on him but has brought an appeal against his conviction. 4There is a single ground of appeal, as follows: "The Trial Judge erred in his approach to the application for a direction under s 165 of the Evidence Act , that the evidence of Craig Ceely may be unreliable, in that the Trial Judge: a) failed to give adequate reasons for his refusal to give such a direction; and b) failed to give the direction to the jury."

Argument 37The arguments advanced by Mr G.A. Brady of Counsel, for the appellant, may be briefly stated. First, he argued, no doubt correctly, that s 165 of the Evidence Act 1995 (NSW) ordinarily requires, where a request is properly made, that a trial judge make findings of fact determining whether evidence is of a kind that may be unreliable. This required, in a case such as the present, that the trial judge was obliged to make a finding of fact whether, pursuant to s 165(1)(d), Mr Ceely was a witness who "might reasonably be supposed to be criminally concerned in the events giving rise to the proceeding". 38Secondly, counsel characterised the situation in the present trial as one where there was evidence that could persuade a jury that Mr Ceely was a person who might reasonably be supposed to be criminally concerned in the robbery. 39Mr Brady placed particular emphasis on the Crown's closing address. This had postulated three possibilities. First, Ceely may have been the robber. Secondly, he may have been covering for someone else. The third possibility was that the appellant was the culprit. Counsel argued that the thrust of this closing submission by the Crown recognised that there was evidence that might satisfy the test in s 165 Evidence Act . (In his written submissions, Mr Brady had advanced a further basis on which Ceely might have reasonably answered the statutory description, namely, that he was an accessory after the fact. However, this argument was not pressed during oral submissions and was, in fact, abandoned.) 40Thirdly, Mr Brady argued that the Judge's reasons for rejecting trial counsel's request for a s 165 warning were inadequate. Fourthly, he submitted that the trial judge had peremptorily "cut off" the appellant's submissions before they could be adequately developed. 41Finally, Counsel argued that, in the circumstances, the failure of the trial judge to warn the jury that the evidence might be unreliable, and his failure as a consequence to add the imprimatur of his authority to the submissions made by trial counsel, led to the appellant losing a real prospect of acquittal. 42The Crown took issue with each of these submissions.

Resolution 43I have come to the conclusion that there is no substance in any of the arguments advanced on behalf of the appellant, and that they must be rejected. It follows that the appeal must be dismissed. 44At the outset, I would make the obvious point that what was really in issue in this trial was Mr Ceely's credibility. It was put directly to him by trial counsel that he was not telling the truth about the admissions that he said were made to him by the appellant on the morning of 11 March 2010. Mr Ceely insisted he was telling the truth. It was a matter for the jury to determine whether they accepted his evidence or not, and the Judge was not required to give any warning in relation to this very obvious and focused credibility issue. It is unnecessary to give a warning to a jury about the honesty of a witness, unless a witness falls into one of the categories mentioned in the section because, as a general rule, the trial judge has no advantage over a jury when it comes to the assessment of a witness' credibility based upon vagueness, inconsistency, motives to lie or demeanour: R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321. 45There is no doubt, however, that trial counsel did make an application for a direction under s 165(1)(d). The application was made somewhat tentatively and briefly. It is clear, however, that the only basis on which the application was made was that Mr Ceely himself may have been the intruder who threatened, assaulted and robbed Mr Lennox. If there were evidence in the trial that was capable of satisfying the jury that Mr Ceely was a person who might reasonably be supposed to be the assailant, the trial judge would have been obliged, all things being equal, to point out to the jury that the witness fell into the category of a witness who may be unreliable. It would have been necessary for the judge to point out that a person who himself may have been the culprit was likely to diminish his own culpability and point the finger at somebody else. 46However, it is clear that the trial judge rejected trial counsel's submission. His Honour, admittedly briefly, explained why he took the view that there was no evidence that pointed to Mr Ceely as the person who might reasonably be supposed "to be a suspect". As his Honour pointed out, there was no possibility that the description given by Mr Lennox fitted Mr Ceely. The issues of the build of the assailant and the accent with which he spoke simply put Mr Ceely out of the picture. 47In my opinion, no error has been demonstrated in relation to his Honour's rejection of the application. Equally, although his Honour dealt with the matter in brief terms, his reasons were, in my view, adequate. 48It is to be noted that the trial judge gave counsel the opportunity to consider his position overnight and, if he wished to do so, to develop his submissions ("put a stronger argument") on the next day. His Honour dealt with the issue politely and, in my opinion, in no way disadvantaged trial counsel from advancing any further submission that he wished to make on the subject. The fact is that no further submissions were made on the following day or thereafter. 49It is true that the trial advocate postulated a number of "possibilities" in the closing address to the jury. However, when these are read fairly, it can be seen that this was no more than a rhetorical flourish suggesting that, in theory, there were other possibilities but that in fact there was only one realistic and practical possibility, namely, that the culprit was the appellant. The trial advocate was not suggesting that there was any evidence in the trial that might reasonably lead the jury to conclude that Mr Ceely was the culprit, or that he was protecting a third party. Rather, the submission was entirely to the contrary. 50That this is so can be seen from the cross examination of Mr Ceely and the closing submissions by trial counsel. What was being put was that the jury should not accept Mr Ceely because he had been motivated to fabricate evidence against the appellant because he feared, subjectively, that he might otherwise be regarded as a suspect. This was a very different proposition than that he was in fact the culprit. Nowhere in the closing submissions from trial counsel for the defence was there any suggestion that Mr Ceely was the culprit. Counsel said in his closing remarks: "Now you'll ultimately make of Mr Ceely's evidence what you will, members of the jury, but you might think it's only natural for a person who knew in their own mind that they were also a suspect of an offence, you might think it's only natural for such a person to want to shift the focus away from them, get the attention off him, whether he had any involvement in it or not." 51In my opinion, the Crown correctly submitted before this Court that there is a significant difference between the situation where a witness is said to be fabricating evidence because he thinks the police might suspect that he is the culprit, and a situation where the evidence reasonably establishes that he could be, in fact, the culprit. It needs also be said that there was simply no evidence that could establish that Mr Ceely may have been covering up or endeavouring to protect a third person, and for that reason his evidence may have been unreliable. Indeed, the evidence made no suggestion that more than one person was involved in the robbery. Mr Lennox himself referred to one assailant only. There were, however, two lay witnesses who were out in the street and who witnessed the incident including the flight of the attacker. 52There is no possibility on the evidence that both the appellant and Mr Ceely were present at the scene of the offence so as to make Mr Ceely an accomplice. There was no suggestion that any other person was involved in the attack, beyond the intruder seen by Mr Lennox and the other lay witnesses. 53Mr Brady pointed to a number of matters which he suggested might allow for the possibility that Mr Ceely was the culprit. There is no need to detail each of these arguments. They included, for example, the proposition that there was no evidence before the jury that Mr Ceely may have been of a different build at the time of the attack on Mr Lennox. He was described by the trial advocate before the jury as "a big fellow, big across the shoulders, big across the belly ... not someone who could be mistaken for a thin type of build". The trial was held only a matter of months after the robbery and it is quite unrealistic to suggest that Mr Ceely may have answered the physical description of the robber at the time of the robbery, even though he was plainly markedly different in build at the time of the trial. 54Another matter raised by Mr Brady was the fact that the description given by Mr Lennox in his statement to the police differed in its emphasis upon the foreign accent when compared to the description he gave at trial. In my opinion, this difference was insignificant and was adequately explained by the witness at trial. He insisted that he had always maintained that the intruder had a European accent. In any event, there was no suggestion that Mr Ceely had such an accent, or anything like it. 55As I say, there is no need to go through each and every proposition advanced by Mr Brady. I think it is simply sufficient to say that his Honour's rejection of the application was warranted, and that his brief reasons were adequate. 56The case against the appellant was a strong one. Not only were there admissions made to Mr Ceely, there were the SMS messages. The appellant's responses to Mr Ceely's first and second messages were powerful items of circumstantial evidence. In addition, there was the conversation he had with Mr Colin Gilmour at the Coniston Hotel on the afternoon of the day of the robbery. The appellant's knowledge of the details of the offence was powerful evidence of a circumstantial nature pointing to his guilt. There were other matters, of course, including the fact that the police dog tracked to his door, and that the bottom half of his trousers were quite wet, consistent with his having run through wet grass immediately after the robbery. 57Even if any error had been shown on the part of the trial judge - and I do not believe there was any error - I am satisfied that no substantial miscarriage of justice has actually occurred: s 6(1) Criminal Appeal Act 1912 (NSW). Having reviewed the evidence, and acknowledging the jury's verdict, I am satisfied beyond reasonable doubt that the appellant was properly convicted. 58I propose that the appeal be dismissed. 59R.S. HULME J : I agree with the orders proposed by Whealy JA and with his Honour's reasons. 60HIDDEN J : I agree with Whealy JA.

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Stojcevski v R

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