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Court of Criminal Appeal 19 May 1999

REGINA v. STEWART

[1999] NSWCCA 119

Theft & property
CRIMINAL APPEAL S.6(1) & (2) ROLE OF JURY

Citation: Regina v Stewart [1999] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 19 May 1999
Judges: Dunford J, Greg James J, Smart AJ

Background

The appellant, Kevin John Stewart, was convicted in the District Court by a jury on two counts of aggravated break and enter. The first count alleged break and enter with intent to commit a felony; the second alleged break and enter coupled with actual stealing. The offences arose from two entries into a store in the early hours of 21 October 1996, during which the victim was threatened with a knife, his pockets were searched, and property was taken. The appellant was sentenced to a minimum term of 12 months penal servitude on each count, together with an additional term of three years.

The central factual dispute at trial concerned identification. Several witnesses, including people who had been present on the night, gave evidence that a person known by the nickname "John-Boy" committed the offences. However, some of those witnesses denied that "John-Boy" was the appellant, and one witness whose identification directly linked the appellant to the events was heavily intoxicated at the time. The appellant appealed his conviction on the sole ground that the jury's verdicts were unreasonable and unsupported by the evidence.

  • Whether the jury's guilty verdicts were unreasonable or could not be supported having regard to the evidence, within the meaning of s 6(1) and (2) of the Criminal Appeal Act 1912
  • Whether the appellate court, applying the test in M v The Queen (1994) 181 CLR 487, experienced a doubt that a reasonable jury ought also to have experienced, such that there was a significant possibility that an innocent person had been convicted

Decision

Greg James J, with whom Dunford J and Smart AJ agreed, applied the well-established test from M v The Queen: an appellate court must make full allowance for the advantages a jury enjoys in seeing and hearing witnesses, particularly on questions of credibility. The court may only intervene where the evidence, as recorded, contains such discrepancies, inadequacies, or other frailties that a significant possibility arises that an innocent person has been convicted.

The court acknowledged that the evidence was contested. Some witnesses denied that the appellant was "John-Boy" or was present on the night. The key identification witness, Stephen Rayner, conceded under cross-examination that his heavy intoxication meant he could not be entirely certain that "John-Boy" had entered the premises. However, the court noted that Rayner had known the appellant for approximately 15 years and identified him in court, making a mistake of identity unlikely in that specific respect.

Critically, the appellant himself had admitted to police that his name was Kevin John Stewart and that he was known by the nickname "John-Boy." He also confirmed acquaintance with associates who featured in the Crown's account of the night. Greg James J found that this admission, combined with the evidence identifying "John-Boy" as the person who entered the premises on both occasions, meant the overall body of evidence did not give rise to a significant possibility that an innocent person had been convicted.

The court was not persuaded that any doubt it might experience was one a reasonable jury ought also to have experienced. The jury was properly directed that it could accept or reject portions of witness evidence as it saw fit, and was not required to infer the contrary of any statement it rejected. It was open to the jury, on the whole of the evidence, to find the verdicts it did.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed the test from M v The Queen: appellate intervention is warranted only where the evidence, even allowing fully for the jury's advantages, reveals a significant possibility that an innocent person was convicted.
  • Full allowance must be made for the jury's position in assessing witness credibility, particularly where identification depends on the manner in which oral evidence was given before a fact-finder.
  • An appellant's own admissions to police carry significant weight in assessing whether a conviction is supported by the evidence, and can buttress otherwise contested identification.
  • In dismissing the appeal, the court treated a long-standing personal acquaintance between the identifying witness and the accused as diminishing the risk of mistaken identity, notwithstanding that witness's admitted intoxication at the time of the events.
  • Sufficient evidence existed for the jury to reject witness denials that the appellant was "John-Boy," particularly in light of his own concession of that nickname to police.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1) and (2)

Cases:
- Regina v Giam [1999] NSWCCA 53
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Fleming v The Queen [1998] HCA 68
- Gipp v The Queen (1998) 72 ALJR 1012