Citation: Regina v Ali [2001] NSWCCA 218
Court: New South Wales Court of Criminal Appeal
Date: 15 May 2001
Judge(s): Giles JA, Greg James J, Badgery-Parker AJ
Background
The appellant was convicted in the District Court of armed robbery and discharging a firearm in a dangerous manner, following an incident at a shopping complex adjacent to the Novotel Hotel at Brighton-le-Sands. Two hotel employees were confronted by two men as they walked toward a bank. One perpetrator produced a firearm, demanded the bag they were carrying, and discharged the weapon. The other struck one of the employees. The co-accused was acquitted at the same trial.
The prosecution case rested entirely on identification evidence. One victim picked out the appellant's photograph. A second victim expressed more certainty about a different photograph but could not definitively identify the gunman. A pseudonymous witness said he recognised the appellant running from the scene based on seeing him socially over several years. Notably, an off-duty police officer who observed a robber fleeing selected a photograph of someone who was neither accused.
On appeal, the appellant sought to rely on fresh evidence from a witness who had not been available at trial. That witness, a retail manager whose store was located directly adjacent to the bank, was present during the robbery and claimed to have had clear, extended sight of the perpetrators, and to be certain the appellant was not among them.
Legal Issues
- Whether fresh evidence from a new witness, not available at trial, should be admitted on appeal
- Whether that fresh evidence was of sufficient quality and cogency to justify quashing the conviction and ordering a new trial
- Whether the trial judge's directions to the jury on identification evidence were adequate (considered but not determined)
Decision
The Court of Criminal Appeal admitted the fresh evidence after finding it was not available at trial and could not have been obtained with reasonable diligence. The witness, a general manager of fashion retail stores, had been present in the shopping complex at the time of the robbery. His evidence was that he observed the two perpetrators intermittently over approximately an hour before the robbery occurred. He stated with certainty that the appellant was not one of them.
The Court applied the principles from the High Court's joint judgment in Mickelberg v The Queen, which ask whether fresh evidence might have led a jury to reach a different verdict. Badgery-Parker AJ noted a potential distinction between two formulations of that test: whether a jury would be "likely" to have acquitted, and whether there was a "significant possibility" that it would have done so. The latter is the less stringent standard, as applied in R v Stackelroth. The Court found it unnecessary to resolve which test applied, as the fresh evidence satisfied even the more demanding standard.
The Court was satisfied that the fresh evidence was credible, that it could be accepted by a jury, and that when considered alongside the trial identification evidence, a properly instructed jury would likely have entertained reasonable doubt. The cross-examination of the witness by the Crown did not destroy his credibility, though the Court acknowledged the jury would have material to weigh.
On the adequacy of the trial judge's directions, the Court declined to rule definitively. Badgery-Parker AJ observed in passing that the judge might have done more to direct the jury that multiple identification witnesses can each be mistaken for similar reasons, particularly where the Crown had submitted that the presence of two identifying witnesses reduced the risk of error. This observation was obiter and not determinative of the appeal.
Orders Made
- Convictions quashed
- New trial ordered
Key Takeaways
- Fresh evidence admitted on a criminal appeal must not have been available at trial and must not have been obtainable with reasonable diligence; those conditions were satisfied here.
- A conviction may be set aside on fresh evidence grounds where there is a significant possibility, or on the more stringent formulation, a likelihood, that the jury would have acquitted had the evidence been before it. The Court of Criminal Appeal applied the more demanding test and found it met.
- Identification evidence, even where cogent and multi-source, carries an inherent risk of miscarriage of justice that both the common law and the Evidence Act 1995 recognise through mandatory jury warnings.
- Where a trial judge emphasises the Crown's submission that multiple identifying witnesses reduce the risk of error, the Court indicated it may be necessary to explicitly counter that with a direction that each of multiple witnesses can be mistaken for the same underlying reason.
- A witness who cannot identify perpetrators but can positively exclude a known accused from those he observed may provide highly significant evidence, even without affirmative identification of the true offenders.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
Cases:
- Mickelberg v The Queen (1988-89) 167 CLR 259
- R v Stackelroth (NSW Court of Criminal Appeal, unreported, 3 April 1996)