Adam PEACOCK v R & Brendan PEACOCK v R

(2008) 190 A Crim R 454; [2008] NSWCCA 264

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Failure by Crown to call witness
5. › Whether Crown obliged to call material witness
6. › Whether failure caused miscarriage of justice
1. Evidence
2. › Credibility rule
3. › Collateral evidence rule
4. › Whether evidence relevant only to witness's credibility
5. › Distinction between credibility of witness and reliability of evidence
6. › Evidence Act 1995 (NSW), ss 102, 106
1. Criminal Law
2. › Appeal against conviction
3. › Proviso
4. › Whether Crown case overwhelming
5. › Whether absence of evidence could realistically have affected verdict
6. › Criminal Appeal Act 1912 (NSW), s 6

Quick Take

The court divided on whether evidence contradicting a detail of a Crown witness's account (the identity of a co-offender in a burglary relevant to motive) is excluded by s 102 of the Evidence Act 1995 as going only to credibility, or is admissible as going to the reliability of the witness's account and thus to a fact in issue. Simpson J's analysis distinguishing 'credibility of a witness' from 'credibility of the evidence given by that witness' may influence future admissibility rulings. Even where potentially admissible evidence is wrongly omitted, the proviso applies where the Crown case is overwhelming.