McGavin v R [2014] NSWCCA 171

McGavin v R [2014] NSWCCA 171

Leave to appeal was granted because both grounds were arguable, but the appeal was dismissed. The trial judge warned the jury that Steven Welland's evidence may be unreliable and that he had received a 25% sentence discount for assistance. There was no unfairness in not identifying the actual reduction in time because neither party led evidence or provided the trial judge with the sentence information. The judge was not required to give the further warning about possible resentencing because no such warning was requested, the issue was not explored with Steven Welland in evidence, and the absence of a testimonial basis provided good reason not to give the direction now proposed on appeal....

Jurisdiction
Australia
Judgment Date
25 August 2014
Procedural Posture
Criminal Appeal Against Convictions for Five Counts of Break, Enter and Steal in Circumstances of Aggravation, Namely Being in Company / Application for Leave to Appeal in the Court of Criminal Appeal; Leave Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['jury Directions' 'unreliable Evidence Warning' 'co Offender Evidence' 'sentence Discount for Assistance to Law Enforcement Authorities' 'resentencing for Failure to Fulfil Undertaking' 'break, Enter and Steal in Company']
['criminal Law' 'evidence' 'criminal Procedure'] ['jury Directions' 'unreliable Evidence Warning' 'co Offender Evidence' 'sentence Discount for Assistance to Law Enforcement Authorities' 'resentencing for Failure to Fulfil Undertaking' 'break, Enter and Steal in Company']

Case Brief

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Procedural Posture

Criminal Appeal Against Convictions for Five Counts of Break, Enter and Steal in Circumstances of Aggravation, Namely Being in Company / Application for Leave to Appeal in the Court of Criminal Appeal; Leave Granted and Appeal Dismissed

Legal Issues

  1. 1 ["Whether the trial judge's warning about the unreliability of co-offender evidence was insufficient because it referred only to the 25% discount and not the actual reduction in time to be served." 'Whether the trial judge should have told the jury that Steven Welland could be resentenced if he failed to give evidence in accordance with his undertaking.' "Whether the absence of a request for a further warning under s 165 of the Evidence Act 1995 (NSW) affected the applicant's ability to establish a miscarriage of justice."]

Ratio Decidendi

Leave to appeal was granted because both grounds were arguable, but the appeal was dismissed. The trial judge warned the jury that Steven Welland's evidence may be unreliable and that he had received a 25% sentence discount for assistance. There was no unfairness in not identifying the actual reduction in time because neither party led evidence or provided the trial judge with the sentence information. The judge was not required to give the further warning about possible resentencing because no such warning was requested, the issue was not explored with Steven Welland in evidence, and the absence of a testimonial basis provided good reason not to give the direction now proposed on appeal....

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']