The High Court has allowed an appeal against a decision of the New South Wales Court of Criminal Appeal on the unreasonableness of a conviction for armed robbery with wounding in light of that conviction’s inconsistency with an acquittal for murder, and on the use of a convicted criminal’s statements to police in convicting an accomplice. At trial, the appellant was acquitted of murder, but convicted of one count of armed robbery with wounding for his role in the robbery of a brothel by his co-offender, who stabbed and killed an employee of the brothel. The co-offender had made a statement to police that alleged the appellant had driven and encouraged him to commit the robbery, but did not testify at the defendant’s trial. The NSWCCA held that the jury was allowed to use an electronic recording of the interviews to convict the defendant under s 65 of the Evidence Act 1995 (NSW) on the basis that the interviews were the words of an eyewitness unavailable to testify, made against the witness’s own interests, and in circumstances likely to make those words reliable.

A unanimous High Court (French CJ, Bell, Gageler, Keane and Gordon JJ) allowed the appeal. First, the Crown conceded the appellants’ argument that the trial judge’s directions on the armed robbery with wounding charge were erroneous because they did not include an instruction on the need for proof of foresight on the part of the appellant of the use of knife by the accomplice to wound the victim; the NSWCCA’s failure to correct that misdirection meant the appeal must be allowed and that conviction quashed (see [36]–[37]). Secondly, on the issue of whether the conviction for armed robbery with wounding was unreasonable because it was inconsistent with the appellant’s acquittal for murder, the Court accepted the appellant’s argument that it could not be a ‘merciful verdict’ (an inconsistent verdict where the jury can be seen as ignoring the directions of a trial judge) because in light of the (erroneous) directions given there was no inconsistency in the verdicts returned (see [40]–[41]).

While the Court noted it had the power to substitute the conviction for armed robbery in place of the conviction for armed robbery with wounding (see at [44]), it declined to do so because it could not be satisfied that the jury would have convicted the appellant of armed robbery (without wounding) due to the NSWCCA’s errors in its treatment of the conditions in s 65 on the admissibility of the accomplice’s evidence. Specifically, the NSWCCA erred in taking a ‘compendious’ approach to s 65: it considered the issue of the likely reliability of the accomplice’s statement that the appellant gave him the knife by examining the ‘overall impression’ gained from his evidence as a whole (at [52]ff). Properly understood, however, section 65 requires that the court identify each material fact that would be proved by a hearsay statement tendered in reliance on the section, and that the section be applied to that statement (see at [55]–[57], and at [61]), which in turn requires that the circumstances of the making of statement suggest that the representation is likely to be reliable and the facts asserted true (see [63]). Examining the circumstances in which the accomplice asserted that the appellant gave him the knife, the Court noted that it was unlikely his recollection was incorrect, and while the totality of the accomplice’s statements to police were against his own interests, the specific statement that the appellant gave him the knife and put him up to the robbery were ‘plainly apt to minimise his culpability by maximising that [of the appellant] (see at [65]–[68]). Consequently, the trial judge erred in being satisfied of the likely reliability of the accomplice’s assertion and admitting the evidence and the NSWCCA erred in failing to conclude that the trial judge had erred (at [73]).

The Court concluded that while it could not order a retrial on the charge of armed robbery with wounding because that would traverse the clear, explicable verdict of acquittal on the murder charge, the appropriate remedy for the miscarriage of justice in this instance would be a new trial for armed robbery (see [75]–[82]).