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Court of Criminal Appeal 21 October 1999

R v Morris

[1999] NSWCCA 326

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW AND PROCEDURE EVIDENCE CONTENT OF COUNSEL'S ADDRESS

Citation: Morris v R [1999] NSWCCA 326
Court: NSW Court of Criminal Appeal
Date: 21 October 1999
Judge(s): Sheller JA, Grove J, Hidden J

Background

The appellant was convicted by a jury in the Sydney District Court of robbery in company following an armed robbery at a Commonwealth Bank branch in Newtown in December 1997. Three men entered the branch, with the appellant alleged to have vaulted the counter with a screwdriver and opened a door to admit his co-offenders. Over $4,000 was taken before the group fled by car.

The prosecution relied heavily on identification evidence. Bank security cameras captured the robbery, and developed photographs were shown to several police officers who were acquainted with the appellant, as well as to a youth worker who had known him from a residential facility. All identified the appellant from the photographs.

The appellant was sentenced to six years and six months penal servitude and appealed against conviction on six grounds, challenging the identification evidence, rulings made during trial, jury directions, and the overall reasonableness of the verdict.

  • Whether recognition evidence from police officers and a youth worker who viewed security camera photographs was admissible, or whether it was inadmissible opinion evidence
  • Whether the trial judge erred in ruling that defence counsel could not address the jury on the subject of experienced or practised police witnesses
  • Whether the trial judge failed to give appropriate directions to the jury in line with the principles in McKinney v The Queen concerning police witness evidence
  • Whether the trial judge misdirected the jury on how to use the appellant's police interview
  • Whether the trial judge misdirected the jury on the appellant's decision not to give evidence
  • Whether the convictions were unreasonable and unsupported by the evidence

Decision

Ground 1: Admissibility of recognition evidence. This ground was argued jointly with two related appeals heard concurrently. The Court of Criminal Appeal, adopting the reasoning of Sheller JA in the companion matter of Mundarra Smith, held that recognition evidence from persons who viewed security camera photographs was admissible. Ground 1 was not sustained.

Ground 2: Counsel's address on practised witnesses. Defence counsel had indicated an intention to invite the jury to consider that police witnesses, having given evidence many times before, might present with an air of confidence and apparent reliability derived from practice rather than truthfulness. The trial judge ruled this to be "highly offensive and improper." Grove J found that ruling to be erroneous. Inviting a jury to consider that superficial impressiveness may flow from practice rather than integrity is a legitimate and commonplace forensic submission. The Crown on appeal conceded the point. However, the Court found no substantial miscarriage of justice resulted, as the trial judge's charge to the jury contained an adequate direction on assessing witnesses, including a warning about experienced or practised witnesses.

Grounds 3 to 5: Jury directions. The McKinney warning, the Court confirmed, was directed at cases where guilt rested substantially on a confession obtained in police custody, not at identification cases of this kind. No error arose from the absence of a full McKinney direction. On the police interview, the trial judge's direction was held to accord with the guidance in Weissensteiner v The Queen, which permits a direction that uncontradicted sworn evidence is generally easier to accept. The judge explicitly avoided any suggestion that the appellant's silence was an implied admission, and the direction was not erroneous.

Ground 6: Reasonableness of the verdict. Having found that the recognition evidence was admissible, the Court noted that the jury had the direct benefit of viewing the witnesses, the photographs, and the appellant himself. The Court was not persuaded the convictions were unreasonable and found ample evidence to support them.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • Recognition evidence from witnesses who viewed security camera photographs and knew the accused from prior acquaintance was held to be admissible, not inadmissible opinion evidence.
  • Inviting a jury to consider that a police witness may present confidently and credibly as a result of practice rather than truthfulness is a legitimate forensic submission; a trial judge's ruling prohibiting such an address was found to be erroneous.
  • The McKinney v The Queen warning about the credibility of police witnesses applies specifically where guilt rests substantially on a confessional statement made in police custody, and does not extend to general identification trials.
  • Where a trial judge directs a jury that it is "usually easier to accept evidence which is uncontradicted," this does not constitute a direction that silence implies guilt, provided the judge makes the distinction clear.
  • No substantial miscarriage of justice was established on any ground, and the Court of Criminal Appeal dismissed the appeal in its entirety.

Legislation and Cases Referenced

Cases:
- McKinney v The Queen (1991) 171 CLR 468
- Carr v The Queen (1988) 165 CLR 314
- Weissensteiner v The Queen (1993) 178 CLR 217

Legislation: No specific legislation was cited in the text of the judgment.