Citation: Regina v Nicholas [1999] NSWCCA 433
Court: NSW Court of Criminal Appeal
Date: 8 December 1999
Judge(s): Meagher JA, Newman J, Greg James J
Background
The appellant was convicted by a jury in the District Court before Latham DCJ of robbery in company under s 97(1) of the Crimes Act, arising from a bank robbery at Caringbah on 26 June 1997. Four men entered the National Australia Bank, with one vaulting the counter and using a firearm to control staff while others removed cash. The group fled in a stolen vehicle.
The Crown's identification evidence rested primarily on a constable who had known the appellant personally and identified him from still images taken from the bank's security camera. No witness from the bank itself could identify any of the offenders from those images. The appellant did not give evidence or call witnesses at trial.
Following conviction, the appellant appealed against conviction and sought leave to appeal against sentence. The leave application was adjourned pending the outcome of a related judgment involving a co-accused.
Legal Issues
- Whether the jury was wrongly permitted to use the appellant's appearance in the dock as evidence of identity (ultimately abandoned)
- Whether the conviction was unreasonable or unsupported by the evidence, given the quality of the photographs used in the police identification
Decision
The first ground of appeal, concerning the use of the appellant's dock appearance as identification evidence, was abandoned by counsel after considering the High Court's treatment of that issue in Bulejcik v The Queen (1994-95) 185 CLR 375. No further analysis was required on that ground.
On the remaining ground, the appellant argued that the quality of the security camera photographs was insufficient to support a reliable identification, and therefore the jury's verdict was unreasonable. The Court examined the photographs itself, including images taken of the appellant at the time of his arrest.
Critically, the challenge at trial was not to the accuracy of the constable's identification but to his honesty. No suggestion was made that the constable lacked the familiarity with the appellant necessary to make a reliable identification. The jury, properly directed by Latham DCJ on the care to be taken with identification evidence, was entitled to accept the constable's evidence as both honest and accurate.
Having examined the photographs and compared them with the appellant in the dock, Newman J was satisfied it was open to the jury to reach the verdict it did. The trial judge's directions on identification were accepted as adequate. The appeal against conviction was dismissed, and the sentence application was adjourned.
Orders Made
- Appeal against conviction dismissed
- Application for leave to appeal against sentence adjourned to the Registrar's call-over on 13 December 1999
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a jury's verdict based on police identification evidence will stand where the identifying officer had genuine prior familiarity with the accused and the trial judge gave adequate directions on the dangers of identification evidence.
- A challenge to a witness's veracity, as distinct from the accuracy of their identification, does not in itself undermine the evidential sufficiency of that witness's testimony. The jury remained entitled to accept the constable's identification as both honest and accurate.
- Where the quality of identification photographs is in issue, the appellate court may examine those photographs itself to assess whether the jury's conclusion was reasonably open.
- Abandonment of a ground of appeal in light of binding High Court authority, as occurred here with the dock identification ground following Bulejcik v The Queen, reflects the practical effect that High Court decisions can have on the viability of appeal grounds in criminal proceedings.
- Procedural flexibility is available where a co-accused's appeal judgment, potentially relevant to a related sentence appeal, has not yet been delivered. The Court adjourned the sentence application rather than proceeding in the absence of that material.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 97(1) (robbery in company)
Cases:
- Bulejcik v The Queen (1994-95) 185 CLR 375 (High Court)