Citation: R v Morgan [2000] NSWCCA 7
Court: New South Wales Court of Criminal Appeal
Date: 25 February 2000
Judge(s): Stein JA; Hulme J; Greg James J
Background
The appellant was charged under s 95 of the Crimes Act with robbing a St George Bank branch at Ramsgate on 5 December 1997, using corporal violence against a bank employee. Two offenders carried out the robbery, and the Crown case rested primarily on identification evidence: photographs taken by an in-bank security camera, police officers who identified the appellant from those photographs, and one eyewitness who picked the appellant from a video identification procedure.
The sole live issue at trial was whether the appellant was in fact one of the robbers. He did not give evidence himself, but called a photogrammetry expert, Mr Donnelly, who calculated the offender's height from the security camera photographs and concluded the offender was considerably shorter than the appellant.
A jury in the District Court convicted the appellant on 24 November 1998, and Judge Flannery sentenced him to penal servitude with a minimum term of two and a half years. The appellant had already been in custody from the date of his arrest, 12 December 1997, so he had served approximately 22 and a half months by the time the appeal was heard.
Legal Issues
- Whether the conviction was unreasonable or unsupported by the evidence, particularly in light of the photogrammetry evidence challenging the identification
- Whether the Crown's failure to disclose that a key Crown witness had been charged with attempting to pervert the course of justice caused a miscarriage of justice
- Whether fresh evidence not available at trial might have led to an acquittal
- Whether the trial judge erred in admitting identification-by-photograph evidence from multiple police witnesses
- Whether the Crown's cross-examination of the defence expert breached s 44 of the Evidence Act by introducing the conclusions of another expert (Dr Lowe) whose report was not in evidence
- Whether the Crown cross-examined the expert on matters not otherwise in evidence
- Whether the trial judge erred in granting the Crown a two-day adjournment to prepare cross-examination of the expert
Decision
The Court of Criminal Appeal allowed the appeal on ground 5: that the Crown's cross-examination of Mr Donnelly breached s 44 of the Evidence Act. During cross-examination, the Crown put to Mr Donnelly that another expert, Dr Lowe, had reached different conclusions in a separate case. Section 44 restricts cross-examination about prior inconsistent statements of a witness and requires particular procedures before their content can be placed before the jury. By breaching s 44, the Crown effectively informed the jury that a named expert held a contrary view, lending that view an authority it had not been properly given through admissible evidence.
The Court found this breach carried real consequence. Mr Donnelly's evidence was the centrepiece of the defence: the only evidence capable of directly undermining the identification case. The jury's awareness of Dr Lowe's contrary conclusions, obtained improperly, may well have led them to discount Mr Donnelly's evidence significantly. The Crown thus derived a material advantage from the evidentiary breach.
On ground 1, the Court considered whether the conviction was itself unreasonable. It examined the photogrammetry evidence closely, concluding that common experience supported the jury's entitlement to find no necessary inconsistency between the offender's apparent height in the photographs (taken while he was moving hurriedly) and the appellant's actual measured height. The expert had not analysed gait and had measured the appellant while stationary. The Court concluded the jury was entitled to discount this evidence, and ground 1 was not made out.
Because ground 1 failed, a verdict of acquittal was not available. The success on ground 5 nonetheless required the conviction to be quashed and a new trial ordered. Grounds 2, 3, 6 and 7 were not determined, as they concerned matters that may not arise at any retrial. The Court noted, pointedly, that the appellant had already served nearly the full minimum term of his sentence, and that a further conviction was by no means assured given the quality of the identification evidence.
Orders Made
- Appeal upheld
- Conviction quashed
- New trial ordered
- Appellant discharged from custody
Key Takeaways
- Cross-examining a defence expert by reference to the contrary conclusions of another expert whose report is not in evidence can breach s 44 of the Evidence Act, and where that breach materially advantages the Crown, it will constitute a ground for quashing the conviction.
- A conviction may be quashed on evidentiary grounds even where the conviction itself cannot be characterised as unreasonable on the totality of the evidence; the two grounds operate independently.
- Photogrammetry evidence measuring an offender's apparent height from security camera photographs has inherent limitations where the offender is moving or hurrying rather than standing still, and a jury is entitled to weigh those limitations using common experience.
- The Court of Criminal Appeal observed that a retrial decision rests ultimately with the Director of Public Prosecutions, and it is not inappropriate for the appellate court to note practical considerations such as time already served and the strength of the remaining evidence.
- Where an accused has been held on remand for a period approaching or equalling the minimum custodial term ultimately imposed, the Court may express disquiet about that outcome, even if it lacks sufficient information to determine whether the pre-trial detention was avoidable.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 95 (robbery with corporal violence, maximum penalty 20 years penal servitude)
- Evidence Act (NSW), s 44 (restrictions on cross-examination about prior statements of a witness)
Cases cited: No specific cases were cited in the portions of the judgment provided.