McGavin v R [2014] NSWCCA 171

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McGavin v R [2014] NSWCCA 171 Hearing dates: 10 July 2014 Decision date: 25 August 2014 Before: Basten JA at [1]; Price J at [49]; Fullerton J at [50] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW - direction to jury - multiple break and enters in company - co-offender received reduced sentence on undertaking to provide evidence against applicant - neither prosecution or defence proffered information as to effect of percentage of discount received by co-offender - co-offender not cross-examined as to whether motivated by possible resentencing for failure to fulfil undertaking - no warning sought that evidence of co-offender may be unreliable - judge warned about unreliability of co-offender's evidence with reference to percentage of discount afforded - whether warning on unreliability by the trial judge sufficient - whether the trial judge should have referred to the reduction of time the discount reflected - whether the trial judge should have warned the jury that co-offender would lose benefit of reduced sentence if he failed to fulfil undertaking - Criminal Appeal Rules (NSW), r 4 - Evidence Act 1995 (NSW), s 165

EVIDENCE - warning as to unreliability - witness gave statement to police - discount on sentence for assistance to law enforcement authorities - witness faced resentencing if he departed from undertaking to give evidence implicating his father - whether warning need to quantify effect of discount at risk - whether warning needed to explain liability to be resentenced if he departed from undertaking - Evidence Act 1995 (NSW), s 165 Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 Criminal Appeal Act 1912 (NSW), ss 5, 5DA, 20(4) Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), s 165 Cases Cited: Conway v The Queen [2000] FCA 461; 98 FCR 204 Domican v The Queen [1992] HCA 13; 173 CLR 555 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 R v Privett [2001] NSWCCA 518 R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 R v Sullivan [2003] NSWCCA 100 R v Yammine & Chami [2002] NSWCCA 289; 132 A Crim R 44 Category: Principal judgment Parties: Anthony Edward McGavin (Applicant) Regina (Respondent) Representation: Counsel: