Citation: R v Burgess [2001] NSWCCA 42
Court: NSW Court of Criminal Appeal
Date: 28 February 2001
Judge(s): Priestley JA, Barr J, Kirby J
Background
The appellant was convicted by a jury in the District Court of one count of stealing and one count of assault, arising from an incident at a retail shop at Wyoming in the early morning of 23 September 1998. The prosecution alleged that the appellant entered the shop while the owner was momentarily out front, threatened her with a syringe while holding it to warn she would "get AIDS," and fled with approximately $85 from the till.
The appellant was also sentenced for five other offences to which he had previously pleaded guilty in the Local Court, including four counts of breaking, entering and stealing, and one count of larceny. The sentencing judge in the District Court, Nield DCJ, imposed a total effective sentence of six years imprisonment, with a minimum term of four and a half years and an additional term of eighteen months.
The appellant, who was unrepresented in the appeal, challenged both his convictions and his sentence before the Court of Criminal Appeal.
Legal Issues
- Whether the jury verdicts for stealing and assault were unreasonable or could not be supported by the evidence, or whether a miscarriage of justice otherwise occurred (under s 6 of the Criminal Appeal Act)
- Whether the eyewitness identification evidence, particularly that of Mrs Madden, was sufficiently reliable to support the convictions
- Whether the sentences imposed were excessive or otherwise attended by appellable error
Decision
Conviction appeal. Barr J (with whom Priestley JA and Kirby J agreed) treated the single ground of appeal, that the verdicts were "unsafe and unsatisfactory," as a contention that the verdicts were unreasonable or could not be supported on the evidence. The court closely examined the eyewitness identification evidence and found it to be consistent and reliable. Mrs Madden had seen the man she identified as the appellant on multiple prior occasions in the area, watched him before and after entering the shop, and identified him from a video array of fourteen faces. The court found that inconsistencies raised by the appellant either misread the evidence or were matters the jury had considered and resolved.
The court also assessed the corroborating evidence from Mrs Whinnem, whose signed police statement (put to her under s 38 of the Evidence Act after she proved reluctant at trial) described the appellant asking for a balaclava and gloves, leaving her home in the relevant time window, and returning out of breath with a $50 note. The court concluded that the jury was entitled to act on this evidence and that the verdicts were well supported. The appeal against conviction was dismissed.
Sentence appeal. The court granted leave to appeal against sentence but found no error in the sentences imposed. Barr J noted the appellant's significant prior criminal history, including numerous offences of a similar kind, and found the sentencing judge had properly considered all relevant factors. Progress the appellant reported making in custody could not be taken into account on a sentence appeal. The sentence appeal was dismissed.
Rehabilitation. Barr J acknowledged the appellant's request for assistance in re-entering the William Booth Institute drug rehabilitation programme. The court noted some factual contention about the circumstances of the appellant's departure from that programme, and observed that rehabilitation in custody was a matter for the Department of Corrective Services rather than the Court.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A ground of appeal that convictions are "unsafe and unsatisfactory" is properly construed, under s 6 of the Criminal Appeal Act, as a challenge to whether the verdicts were unreasonable, unsupported by the evidence, or resulted from a wrong decision on law or a miscarriage of justice.
- Eyewitness identification evidence can support a conviction where the witness had prior familiarity with the accused, maintained a sustained observation, and made a positive identification from a formal video array, provided the jury was entitled to find the evidence reliable.
- Prior consistent conduct evidence from a reluctant witness, introduced under s 38 of the Evidence Act through a signed police statement, was available to corroborate identification evidence at trial.
- Rehabilitation progress made by an appellant during custody, while noted with encouragement, is not a matter the Court of Criminal Appeal can weigh in reducing a sentence on appeal.
- Responsibility for arranging participation in drug and other rehabilitation programmes for sentenced prisoners rests with the Department of Corrective Services, not the appellate court.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act (NSW), s 6
- Evidence Act (NSW), s 38
Cases
- R v Birks (1990) 19 NSWLR 677
- Rondel v Worsley [1969] 1 AC 191