Casey v R

1. [1]

   JOHNSON J: The Applicant, Terrence Trevor Casey, seeks leave to appeal against his conviction on 20 February 2014, following a Judge-alone trial before Mahony SC DCJ at Wagga Wagga District Court, upon a charge of robbery with wounding under s.96 Crimes Act 1900.

2. [2]

   His Honour sentenced the Applicant on 15 August 2014 to a term of imprisonment comprising a non-parole period of two years and three months commencing 26 October 2013 and expiring 25 January 2016, with a balance of term of two years and three months commencing on 26 January 2016 and expiring on 25 April 2018.

3. [3]

   The Applicant seeks to challenge his conviction only. No application for leave to appeal is brought with respect to sentence.

Grounds of Appeal

1. [4]

   In Grounds of Appeal filed on 17 September 2015, the Applicant identified the following grounds of appeal:

2. [5]

   As the grounds extend beyond grounds which involve a question of law alone, leave to appeal against conviction is required: s.5(1)(b) Criminal Appeal Act 1912.

The Trial

1. [6]

   The indictment alleged that the Applicant, on 16 June 2008 at Griffith, did rob Zahid Bashir of a jacket, a wallet and cash, the property of Mr Bashir, and that immediately before the robbery, he used corporal violence upon Mr Bashir thereby wounding him.

2. [7]

   The Applicant applied to be tried by a Judge alone, a course to which the Crown consented: ss.132(1) and (2) Criminal Procedure Act 1986.

3. [8]

   It was the Crown case that on 16 June 2008, the Applicant, in company with his brother, Chad Casey, and another male, robbed and wounded Mr Bashir.

4. [9]

   The Crown case at trial was largely a documentary one. The only witness called by the Crown to give oral evidence was the Applicant’s brother, Chad Casey. The Applicant did not give evidence at the trial.

5. [10]

   The Crown case against the Applicant was based upon the evidence of Chad Casey who gave an account to police, implicating the Applicant in the commission of the crime. Chad Casey later recanted this version and stated that the Applicant was not involved in the crime.

6. [11]

   The Crown said that Chad Casey’s initial account to the police was the truth. It was the Applicant’s case that Chad Casey had lied to the police when he implicated the Applicant.

The Reasons of the Trial Judge

1. [12]

   Given the grounds of appeal, it is appropriate to set out parts of the trial Judge’s reasons for convicting the Applicant.

2. [13]

   His Honour set out the terms of the charge and adverted to the fact that both the Applicant and the Crown consented to the trial proceeding as a Judge-alone trial. Thereafter, his Honour set out the elements of the offence and directed himself concerning onus and standard of proof.

3. [14]

   The trial Judge recited the unchallenged account of Mr Bashir (trial judgment, 20 February 2014 at [6]-[9]):

4. [15]

   His Honour turned to other documentary evidence adduced in the Crown case and then referred to the evidence of the principal Crown witness, Chad Casey (trial judgment, 20 February 2014 at [13]-[30]):

5. [16]

   His Honour summarised the submissions on behalf of the Crown (at [31]-[32]) and the Applicant (at [33]-[38]).

6. [17]

   The trial Judge then outlined a number of directions and warnings for the purpose of s.133(2) and (3) Criminal Procedure Act 1986. These directions and warnings included:

7. [18]

   In moving to the Court’s decision, his Honour expressed satisfaction to the criminal standard with respect to the elements of the offences and the account of Mr Bashir concerning the commission of the offence (at [47]-[48]).

8. [19]

   The trial Judge then turned to the question as to whether the Crown had proved beyond reasonable doubt that the Applicant was one of the three offenders. As this reasoning is under challenge on the appeal, it is appropriate to set it out in full (trial judgment, 20 February 2014 at [49]-[54]):

Approach to Appeal Against Conviction from Trial by Judge Alone

1. [20]

   Before moving to consider the grounds of appeal, it is appropriate to make some observations concerning the nature of a conviction appeal from a Judge-alone trial.

2. [21]

   The grounds of appeal assert errors on the part of the trial Judge in aspects of his reasoning process (Grounds 2 and 3) and a contention that the verdict of guilty was unreasonable or cannot be supported having regard to the evidence (Ground 1).

3. [22]

   The nature of a conviction appeal under ss.5 and 6 Criminal Appeal Act 1912 from a verdict at a Judge-alone trial has been considered recently by the High Court of Australia in Filippou v The Queen [2015] HCA 29; 89 ALJR 776 and in the subsequent decision of this Court in RP v R [2015] NSWCCA 215. In Filippou v The Queen, French CJ. Bell, Keane and Nettle JJ referred (at 781[8]) to the three limbs in s.6(1) Criminal Appeal Act 1912:

4. [23]

   With respect to the first limb under s.6(1), the plurality said in Filippou v The Queen at 781 [11]-[12]:

5. [24]

   The second limb of s.6(1) was addressed by their Honours at 781-782 [13]:

6. [25]

   Their Honours said with respect to the third limb at 782 [14]:

7. [26]

   The plurality returned to the task of this Court under s.5 Criminal Appeal Act 1912 at 787 [48]:

8. [27]

   Their Honours addressed the topic of warnings and directions in a Judge-alone trial at 788 [52]:

9. [28]

   In RP v R, Davies J said (with the concurrence of myself), in the context of a conviction appeal from a Judge-alone trial (at [48]):

10. [29]

    Davies J observed in RP v R at [52]:

Ground 2 - Suggested Failure in Assessing Reliability of Crown Witness

1. [30]

   It is appropriate to consider firstly the second ground of appeal which challenges part of the reasoning process of the trial Judge.

2. [31]

   Mr Ozen, counsel for the Applicant, submitted that the trial Judge had erred in concentrating upon the credibility of Chad Casey and not reliability. It was submitted further that the trial Judge had erred in posing what were described as “binary choices” (at [51], [52](7) of the trial judgment (see [19] above) in identifying the need for a choice between the two parts of Chad Casey’s evidence which “were diametrically opposed”.

3. [32]

   The Applicant submitted that the concentration upon issues of credibility of the witness did not comply with the requirements of the law to assess issues of reliability as well: Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at 1096 [46]-[48]; Cawthray v R at [53]-[55]; Murray v The Queen [2002] HCA 26; 211 CLR 193 at 201-202 [23], 212-213 [57].

4. [33]

   The Crown submitted that the trial Judge had acknowledged the need to consider the questions of credibility and reliability with respect to the evidence of Chad Casey and that his Honour did consider both aspects in his reasons. The Crown submitted that there was no dispute that there had been a robbery committed upon Mr Bashir in this case, nor was there any dispute that Chad Casey was one of the robbers. Neither Mr Bashir’s account, nor the account of Chad Casey to the police, asserted the presence of more than three persons at the scene of the crime. Accordingly, the Crown submitted there was little opportunity for Chad Casey to confuse whether the Applicant (his own brother) had been involved or the role that he had played.

5. [34]

   The Crown submitted that what had been said in Douglass v The Queen and Cawthray v R related to the importance of an assessment of the reliability (as well as credibility) of a young child witness in a sexual assault case and that the circumstances of those cases were far removed from the present case.

6. [35]

   The Crown submitted that this was, in truth, a trial where the credibility of Chad Casey was the principal consideration as to the two different accounts he had given to police. It was submitted that the trial Judge had addressed the real issue which concerned the honesty of the account of Chad Casey.

7. [36]

   The trial Judge was well aware of the need to consider both the credibility and reliability of Chad Casey and the accounts which he had given. In identifying the differing accounts of Chad Casey, his Honour did not erroneously set up “binary choices” as asserted by the Applicant.

8. [37]

   There was no issue at this trial that Mr Bashir had been robbed by three men. Chad Casey admitted that he was one of the assailants. The real issue in contention was whether Chad Casey was truthful in asserting in two interviews with the police that one of the other assailants was his brother, the Applicant.

9. [38]

   His Honour directed himself that it was necessary for the Court to be satisfied that the incriminating version of Chad Casey was both honest and reliable (trial judgment, 20 February 2014 at [43] at [17](c) above). The focus of his Honour’s reasons was the honesty or credibility of Chad Casey’s accounts to the police, which placed the Applicant as one of the offenders against Mr Bashir. There was no scope here for mistaken identity, or confusion or mistake on any other identifiable basis. It could hardly be suggested that he would mistakenly place his own brother as a person involved criminally in this offence.

10. [39]

    There is no controversy with respect to the statements of principle contained in cases such as Murray v The Queen, Douglass v The Queen and Cawthray v R. However, what was said in those cases, in a very different context, has limited application to the resolution of the real issue in dispute in this trial.

11. [40]

    No error has been demonstrated by the Applicant in this regard. I would reject the second ground of appeal.

Ground 3 - Complaint About Suggested Failures to Put Propositions to the Witness, Chad Casey

1. [41]

   It was submitted for the Applicant that the trial Judge’s reasoning (trial judgment, 20 February 2014 at [52](9)-(10)) (at [19] above) involved components which should have been put to Chad Casey in questioning by the Crown at trial, but which were not. In particular, it was submitted that it should have been put to Chad Casey that he was lying because of the nature of the ongoing relationship with his brother which, if put, would have given the witness an opportunity to discuss the nature of the ongoing relationship. Further it was submitted that it should have been put to Chad Casey that he was lying because of his concern about the possible consequences if he adhered to his versions in the record of interview. It was said that Chad Casey should also have been challenged concerning his “ex-girlfriend” explanation, so that he could respond to a contrary proposition on that topic. It was submitted that these matters should not have formed part of his Honour’s judgment as they had not been put to the witness.

2. [42]

   The Crown submitted that no error had occurred on the part of the trial Judge in this respect. There had been cross-examination by the Crown of Chad Casey concerning the relationship he had with the Applicant at the time of the trial. Likewise, it was submitted that there was cross-examination as to the truthfulness of the account given by Chad Casey in his recorded interview with police. It was submitted that no error had been demonstrated.

3. [43]

   By way of the third ground of appeal, the Applicant asserts that there has been unfairness in the trial arising from an alleged breach of the rule in Browne v Dunn (1894) 6 R 67. It is commonly accepted that this rule of practice is based upon the goal of achieving fairness in the conduct of litigation: RWB v R [2010] NSWCCA 147; 202 A Crim R 209 at 223 [93]. The nature of the rule, and its application to criminal as well as civil proceedings, were considered by this Court in Khamis v R [2010] NSWCCA 179; 203 A Crim R 121 at 128-130 [29]-[35].

4. [44]

   In considering whether any unfairness has occurred in the context of this trial, it is appropriate to have regard to the course of evidence of Chad Casey. As noted by the trial Judge (at [23] of the trial judgment set out at [15] above), the examination-in-chief of Chad Casey reached the point where the Crown was granted leave to cross-examine him under s.38 Evidence Act 1995. It was put clearly to Chad Casey by the Crown that his first and second accounts given to police were truthful, where he said that the Applicant was one of the three persons involved in the commission of the offence against Mr Bashir (transcript, 13 February 2014, page 22; AB248).

5. [45]

   It must be kept in mind that the matter referred to by the trial Judge (at [52](9) at [19] above) related to Chad Casey’s account, given under cross-examination by counsel for the Applicant, as to why he (the witness) had changed his story from one implicating his brother to one which exculpated him. It was open to the trial Judge to find that the account given by Chad Casey in this respect was implausible and inherently unlikely. It was not necessary for a question to be put to Chad Casey along those lines before the trial Judge could make a finding which clearly arose from the Crown case that these aspects of his evidence were untrue. The rule in Browne v Dunn does not require formulaic propositions to be put.

6. [46]

   With respect to the matters raised by the trial Judge (at [52](10) at [19] above) as to reasons why Chad Casey may wish to exculpate his brother from the charge before the Court, there was cross-examination by the Crown concerning contact between the two brothers prior to the trial (transcript, 13 February 2014, pages 10-12; AB236-238).

7. [47]

   After cross-examination by counsel for the Applicant, the Crown re-examined Chad Casey on aspects concerning the ex-girlfriend issue (transcript, 13 February 2014, pages 31-32; AB257-258).

8. [48]

   In the circumstances of this trial, there could have been no doubt concerning the parts of Chad Casey’s evidence which the Crown submitted were truthful and those which were not. The explanations advanced by Chad Casey as to why his account changed from one which inculpated his brother to one which exculpated him, were matters for the trial Judge to assess in making findings of fact and reaching a verdict at the trial.

9. [49]

   The Applicant has not demonstrated that any unfairness occurred in this case, let alone circumstances which were productive of a miscarriage of justice. I would reject the third ground of appeal.

Ground 1 - The Unreasonable Verdict Ground

1. [50]

   It was submitted for the Applicant that the verdict of guilty was unreasonable and was not supported by the evidence.

2. [51]

   Counsel submitted that there was inconsistency in the accounts given by Chad Casey such that it was not open to the trial Judge to find the Applicant guilty.

3. [52]

   Counsel for the Applicant submitted that the verdict of guilty in this case was unreasonable and not supported by the evidence. He submitted that it was not open to the trial Judge, on the whole of the evidence, to be satisfied beyond reasonable doubt that the Applicant was one of the assailants in the offence committed against Mr Bashir.

4. [53]

   It was submitted for the Applicant that it was not open to the trial Judge to be satisfied beyond reasonable doubt that the first account given by Chad Casey to police was reliable and credible so as to support the verdict. Counsel for the Applicant relied upon submissions made in support of the first ground of appeal.

5. [54]

   The Crown submitted that it was open to the trial Judge to be satisfied beyond reasonable doubt of the guilt of the Applicant. His Honour saw Chad Casey give evidence and had regard to all the evidence in reaching the level of satisfaction beyond reasonable doubt disclosed in the trial judgment.

6. [55]

   The Crown submitted that it was open to the trial Judge to convict the Applicant. The trial Judge had regard to all of the evidence, which included the police interviews with Chad Casey (including a video-recorded interview) which implicated the Applicant. Chad Casey was cross-examined by the Crown under s.38 Evidence Act 1995 which allowed his account to be tested. It was open to the trial Judge to accept the truth of what he said in the first and second interviews with police.

7. [56]

   The Crown repeated submissions made in the context of the first ground of appeal. It was submitted that this case, in reality, was one where the credibility of Chad Casey was in question. He had nominated his brother as one of the three offenders in his initial interviews with police and there was no role for mistake which may bear upon reliability in this case.

8. [57]

   The Crown submitted that the verdict of guilty was not unreasonable and was supported by the evidence.

9. [58]

   I have had regard to the entirety of the evidence for the purpose of considering this ground of appeal. I bear in mind, as well, that the trial Judge has the advantage over this Court in that he had an opportunity to observe Chad Casey give evidence. That said, the trial Judge appropriately kept in mind that the role of demeanour in fact finding should be kept in proper perspective (see [17](e) above).

10. [59]

    His Honour had the advantage, as well, of seeing the video-recorded interview of Chad Casey on the occasion when he gave answers implicating the Applicant.

11. [60]

    The reasoning of the trial Judge is not attended by error. The question then arising for consideration is whether the verdict of guilty was not open to the trial Judge in the sense explained in Filippou v The Queen and RP v R (see [22]-[23], [28]-[29] above).

12. [61]

    The role of the s.38 cross-examination of Chad Casey was important in this trial. What occurred here constitutes an illustration of what Heydon JA (Dunford and Buddin JJ agreeing) described in R v Le [2002] NSWCCA 186; 54 NSWLR 474 at 486 [66]:

13. [62]

    As Ipp JA (Bell J agreeing) observed in R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 at 464 [83], the use of s.38 permits a truer picture of the situation to emerge, and that is the very purpose underlying the section.

14. [63]

    In the present trial, his Honour was satisfied that Chad Casey’s first and second accounts to police were true. Further, his Honour considered that Chad Casey’s proffered reasons for changing his account were implausible, a finding which was open on all the evidence.

15. [64]

    Having considered all the evidence, the Applicant has failed to demonstrate that the verdict of guilty was not open to the trial Judge. This was a case where Chad Casey’s first and second accounts implicated both himself and his brother in a credible fashion. The features of Chad Casey’s evidence which strained credulity were those where he sought to explain away why he had given the early accounts which implicated both himself and his brother. The findings of the trial Judge with respect to the implausibility of Chad Casey’s evidence in this respect were well open on the evidence.

16. [65]

    It has not been demonstrated that the verdict of guilty was unreasonable or not supported by the evidence. I would reject the first ground of appeal.

Conclusion

1. [66]

   I would grant leave to appeal, but dismiss the appeal against conviction.

2. [67]

   I propose the following orders:

3. [68]

   SCHMIDT J: I agree with Johnson J’s conclusions as to each of the three grounds of appeal advanced by the Applicant. I also add that having myself considered the evidence, I consider that the trial Judge's conclusions were open and that his Honour was not bound to have entertained a doubt about the Applicant’s guilt of the offence charged.

4. [69]

   WILSON J: I agree with the analysis and conclusions of Johnson J, and with the orders his Honour proposes.