Citation: R v Harriden [2000] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 22 March 2000
Judge(s): Powell JA, Hulme J, Dowd J
Background
The appellant was convicted by a jury in the District Court of maliciously wounding a police officer at Queanbeyan in the early hours of 1 March 1997. Senior Constable Hanrahan had been struggling with an arrested person on the roadway when his baton was taken from his belt and used to strike him twice over the head, causing wounds requiring stitching.
Two doormen from the Riverside Tavern, stationed roughly three metres above street level on a raised platform, gave evidence that they saw the appellant remove the baton and strike the officer. They said they kept continuous watch on him until they apprehended him still carrying the baton. The appellant admitted picking up the baton but denied removing it from the officer's belt or striking him, and called several witnesses to support his account.
Following conviction, the appellant was sentenced to 400 hours of community service. He appealed to the Court of Criminal Appeal on the sole ground that the jury's verdict was unreasonable.
Legal Issues
- Whether the jury's verdict was unreasonable or could not be supported having regard to the evidence, in particular the identification evidence of the two doormen
- Whether a comment by the Crown Prosecutor in closing address, referring to the absence of the appellant's brother as a witness, caused unfairness warranting intervention by the appellate court
Decision
The Court of Criminal Appeal unanimously dismissed the appeal. Hulme J, with whom Powell JA and Dowd J agreed, examined each basis on which the doormen's credibility had been attacked and found none sufficient to render the jury's verdict unreasonable.
On the visibility argument, the Court reasoned that the doormen's elevated position of approximately three metres above the roadway provided a plausible explanation for their ability to observe the attack clearly, even though witnesses at street level had been obscured by the surrounding crowd. The fact that observers from one direction could not see the attacker said nothing about what observers from a different direction and elevation could see. The distance of approximately 55 metres was not considered great enough to undermine the identification.
On the argument that the doormen could not have maintained continuous observation while descending the ramp or stairs to apprehend the appellant, the Court acknowledged the argument had some force but held the jury could reasonably have concluded that any necessary glance downward was too brief to break meaningful visual continuity. The Court also noted that, although the sentencing judge appeared less impressed with the Crown witnesses than the jury was, the trial judge's findings at sentencing were arguably inconsistent with the jury's verdict rather than supportive of the appeal. The jury, having seen all witnesses, was entitled to prefer the evidence of the two doormen.
Regarding the Crown Prosecutor's remark about the appellant's brother not being called, the trial judge gave a clear and specific direction to the jury that no adverse inference should be drawn from the failure to call Justin Harriden, noting that the brother had been arrested that same morning and could have been called by either party. The Court of Criminal Appeal found the direction adequately addressed the issue and that the comment did not advance the appellant's case on appeal.
Orders Made
- Appeal dismissed
- Sentence confirmed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the number of witnesses supporting one side does not compel a jury to prefer that side's account; the jury's assessment of credibility, made with the benefit of seeing witnesses give evidence, carries significant weight on appeal.
- A jury verdict will not be set aside as unreasonable simply because other witnesses contradicted the Crown's principal witnesses, provided the jury could rationally have accepted the Crown evidence.
- The physical circumstances of identification evidence, including the height, distance, and line of sight of eyewitnesses, are relevant to whether a jury's acceptance of that evidence was open to it, rather than simply whether a greater or lesser number of witnesses corroborated the account.
- Where a trial judge gives a prompt, clear direction that no adverse inference should be drawn from the failure to call a particular witness, a Crown Prosecutor's comment on that absence does not automatically infect the verdict.
- No inconsistency between the sentencing judge's apparent reservations about Crown witnesses and the jury's verdict provided independent grounds for appellate interference with the conviction.
Legislation and Cases Referenced
No legislation or cases were cited in the provided text of the judgment.