Citation: LE v R [2002] NSWCCA 193
Court: NSW Court of Criminal Appeal
Date: 24 May 2002
Judge(s): Sheller JA, Levine J, Simpson J
Background
The appellant was convicted by a jury of manslaughter following a street fight in Cabramatta in February 2000, during which the deceased was stabbed. The appellant did not dispute that he was present at the fight, that he had picked up a knife during the altercation, or that he fled the scene afterwards. The central question at trial was whether he was the person who had actually stabbed the deceased.
The prosecution's case rested on two categories of evidence. First, written statements made by the deceased's brother, who left Australia before trial and could not give oral evidence; his statements were read to the jury under s 116 of the Criminal Procedure Act 1986. Second, one of the eleven Crown witnesses identified the appellant as the knife-carrier, but this identification arose only during cross-examination conducted by the appellant's own counsel, and was therefore a "dock identification" rather than identification given in evidence-in-chief.
The remaining Crown witnesses gave evidence that was frequently inconsistent or incompatible with each other. The appellant's defence at trial was self-defence, and counsel had permitted the brother's statements to be admitted because they were expected to support that defence, by showing that the deceased's side had carried weapons.
Legal Issues
- Whether the jury's verdict of manslaughter was unreasonable in all the circumstances, within the meaning of s 6(1) of the Criminal Appeal Act 1912.
- Whether the trial judge dealt appropriately with the dock identification evidence, or whether that evidence should have been rejected or the jury discharged.
- Whether the trial judge dealt appropriately with the untested statements of the deceased's brother, or whether those statements should have been withdrawn from the jury's consideration or the jury discharged.
Decision
The Court applied the test set out by the High Court in M v The Queen (1994) 181 CLR 487, confirmed in Jones v The Queen (1997) 191 CLR 439, for determining whether an appeal against conviction should succeed on the ground that the verdict was unreasonable. Sheller JA (with Levine and Simpson JJ agreeing) concluded that the conviction was unreasonable and constituted a miscarriage of justice.
On the dock identification, the Court accepted that where identification evidence is elicited by defence counsel rather than led by the Crown, the accused is not automatically entitled to have the jury discharged or the answer withdrawn. However, the Court confirmed that a dock or court identification carries little probative value when made by a witness who had no prior knowledge of the accused. The trial judge's directions warning the jury of the limited weight to attach to that identification were found to be appropriate.
On the statements of the deceased's brother, the Court held that their probative value was significantly reduced by the brother's unavailability for cross-examination, drawing on Papakosmas v The Queen (1999) 196 CLR 297. The trial judge had appropriately warned the jury that it would be dangerous to convict on those statements if they stood alone and uncorroborated. Those directions were also found to be adequate.
Despite finding no error in the trial judge's directions, the Court concluded that the overall body of identifying evidence was too weak to support the conviction. The only direct evidence linking the appellant to the stabbing was a low-weight dock identification and the untested, uncorroborated statements of an absent witness. That combination was insufficient to make the verdict a reasonable one, and the appeal was upheld.
Orders Made
- Appeal upheld.
- Verdict of 15 March 2001 quashed.
- Judgment and verdict of acquittal entered.
Key Takeaways
- A conviction will be set aside under s 6(1) of the Criminal Appeal Act 1912 where the appellate court finds the jury's verdict was unreasonable in all the circumstances, applying the test in M v The Queen.
- Dock identification (where a witness identifies an accused for the first time in court, without any prior recognition) carries little probative weight, particularly when the witness had no prior knowledge of the accused.
- Where an unexpected dock identification arises during cross-examination conducted by defence counsel rather than through Crown evidence, the accused is not automatically entitled to have the jury discharged or the answer withdrawn from consideration.
- Written statements of an absent witness admitted under s 116 of the Criminal Procedure Act 1986 have significantly reduced probative value because the witness is unavailable for cross-examination; a warning to the jury about that limitation is required.
- Even where a trial judge's directions on identification and deposition evidence are found to be appropriate, the cumulative weakness of the prosecution's identifying evidence may still render the resulting conviction unreasonable and unsafe.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 116
- Evidence Act 1995 (NSW)
- Crimes Act 1900 (NSW)
Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Papakosmas v The Queen (1999) 196 CLR 297
- Davies & Cody v The King (1937) 57 CLR 170
- R v Saxon (1998) 1 VR 503
- Doney v The Queen (1990) 171 CLR 207
- R v Mendham & Foster (1993) 71 A Crim R 382
- Alexander v The Queen (1981) 145 CLR 395
- Gipp v The Queen (1998) 194 CLR 106
- R v R (1989) 18 NSWLR 74
- Carusi v R (1997) 92 A Crim R 52
- R v BD (1997) 94 A Crim R 131
- R v Prasad (1979) 23 SASR 161
- Commonwealth of Australia v McLean (1996) 41 NSWLR 389