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Court of Criminal Appeal 28 May 1999

R v ZAMMIT

[1999] NSWCCA 65

Also reported as 107 A Crim R 489
Assault & violenceHomicideTheft & property
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION MURDER AND ARMED ROBBERY. CRIMINAL LAW DIRECTIONS TO JURY

Citation: ZAMMIT v R [1999] NSWCCA 65
Court: New South Wales Court of Criminal Appeal
Date: 28 May 1999
Judge(s): Wood CJ at CL; Ireland J; Kirby J

Background

The appellant was convicted in October 1997 of murder and armed robbery following a trial in the Supreme Court before Grove J. He was sentenced to a minimum term of 18 years penal servitude and an additional term of six years for murder, with a concurrent fixed term of 10 years for armed robbery.

Identification was the central issue at trial. Two witnesses made positive identifications of the appellant, while a number of others gave descriptions broadly consistent with those identifications. The appellant denied involvement and raised an alibi, though the jury evidently rejected it.

On appeal, the appellant challenged the adequacy of the trial judge's directions on a range of matters, primarily concerning identification evidence. He also challenged the admission of photographs of the victim's wounds and argued the verdicts were unreasonable.

  • Whether the trial judge's directions on identification evidence were accurate, sufficiently detailed, and adequately flagged the weaknesses and dangers inherent in such evidence
  • Whether the judge's comments on the appellant's refusal to participate in an identification parade were appropriate
  • Whether a direction concerning the appellant's unsworn statement (in which he mentioned having been in prison) risked unfairly prejudicing the jury
  • Whether a witness's answer that implied the appellant was known to police was adequately addressed by the judge's direction
  • Whether photographs of the victim's wounds were properly admitted into evidence
  • Whether the verdicts were unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW)

Decision

Identification directions (Grounds 1 to 3): The court confirmed that directions on identification evidence must include a warning of the special need for caution, an explanation of the reasons for that caution, and an application of the warning to the facts. The court found the trial judge's summing-up on this issue was balanced, fair, and comprehensive. The criticisms advanced by the appellant could not be sustained when the directions were read fairly and in context.

The court also noted that the trial judge appropriately isolated the evidence of the two witnesses who made positive identifications, as their evidence alone qualified as direct identification. This approach was consistent with authority. The court further observed that trial counsel bear a positive obligation to raise potential errors at trial, and that grounds not raised below face the threshold requirement of leave under Rule 4 of the Criminal Appeal Rules.

Other direction grounds (Grounds 4 to 8): Leave was refused on several grounds that had not been raised at trial. On the refusal to participate in the identification parade, the court found the directions made clear that no adverse inference could be drawn from that refusal. The direction concerning the appellant's mention of imprisonment was characterised as proper and preventive, heading off any impermissible inference rather than planting the idea of bad character. The response to the witness's potentially prejudicial remark about police knowledge was found sufficient on the facts.

Photographs and unreasonable verdict (Grounds 11 to 12): The court held that the photographs of the victim's wounds had genuine probative value, relevant both to the gunman's state of mind and to the proximity of the gunman's face to an identifying witness. That value exceeded any prejudicial effect. On the unreasonable verdict ground, the court applied the test from M (1994) 181 CLR 487, asking whether the jury ought to have entertained a reasonable doubt. After independently assessing the evidence, including the two positive identifications, the core consistency of witness descriptions, and other supporting evidence, the court was not persuaded that a reasonable doubt should have arisen.

Orders Made

  • Appeal dismissed
  • Conviction and sentence confirmed

Key Takeaways

  • Identification directions must include three elements: a specific warning of the special need for caution, an explanation of why that caution is required, and an application of the warning to the facts of the case. This obligation exists at both common law and under ss 116 and 165(1) of the Evidence Act 1995 (NSW).

  • A trial judge does not err by isolating the evidence of only those witnesses who made positive identifications when directing the jury on the dangers of identification evidence. That approach appropriately focuses the special caution where it is most needed.

  • Grounds of appeal not raised at trial require leave under Rule 4 of the Criminal Appeal Rules. The Court of Criminal Appeal confirmed that leave will not readily be granted absent error going to the root of the proceedings or a real risk of miscarriage of justice.

  • Photographs of a victim's injuries are not automatically inadmissible in a trial involving violent death. Where such photographs carry genuine probative value (here, going to the gunman's state of mind and proximity to a witness), their admission may be appropriate provided any prejudice does not outweigh that value.

  • On an unreasonable verdict application under s 6(1) of the Criminal Appeal Act 1912 (NSW), the court must conduct its own independent assessment of the evidence while respecting the jury's advantage in seeing and hearing witnesses. The test is whether the jury ought to have entertained a reasonable doubt about guilt.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 116, 165(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules, r 4

Cases:
- Alexander (1981) 145 CLR 395
- Domican (1992) 173 CLR 555
- M (1994) 181 CLR 487
- Jones (1997) 191 CLR 439
- Chidiac (1991) 171 CLR 432
- Pitkin (1995) 69 ALJR 612
- Green (1939) 61 CLR 167
- Sharman v Evans (1976-7) 138 CLR 563
- HG [1999] HCA 2
- Tripodina (1988) 35 A Crim R 183
- Checconi (1988) 34 A Crim R 160
- Vaitas (1981) 4 A Crim R 238
- O'Sullivan and Mackie (1975) 13 SASR 68
- Knape (1965) VR 469
- Jeffrey (1967) VR 467
- Ames (1964-5) NSWR 1489
- Bruno (NSWCCA, 7 July 1997)
- Clarke (NSWCCA, 31 October 1997)
- Bollen (NSWCCA, 25 March 1998)
- PAH (NSWCCA, 18 December 1998)
- Nelson (NSWCCA, 23 May 1996)
- Cooke (NSWCCA, 24 August 1998)