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Court of Criminal Appeal 21 June 2002

Regina v Ahmad

[2002] NSWCCA 265

Assault & violenceTheft & property
CRIMINAL LAW ROBBERY UNSAFE AND UNSATISFACTORY IDENTIFICATION CIRCUMSTANTIAL EVIDENCE

Citation: Regina v Ahmad [2002] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 21 June 2002
Judges: Spigelman CJ, Simpson J, Blanch AJ

Background

The appellant was convicted in the Campbelltown District Court on 5 April 2001 of armed robbery at a McDonald's restaurant at Casula on 11 June 2000, and of stealing a motor vehicle at Liverpool on the same date.

The Crown's case rested on two witnesses who had attempted photo identification of the appellant, together with circumstantial evidence including clothing items seized from the appellant's family home and bottles of aftershave found at his Surry Hills residence that resembled items reported stolen from the car.

The appellant appealed to the Court of Criminal Appeal on the ground that the verdicts were unsafe and unsatisfactory, arguing that the identification evidence and the circumstantial evidence, taken together, could not support conviction beyond reasonable doubt.

  • Whether the verdicts were unsafe and unsatisfactory, requiring the Court to conduct its own independent assessment of the evidence
  • Whether the identification evidence from two witnesses who made only tentative photo identifications was capable of establishing the appellant's guilt
  • Whether the circumstantial evidence, when combined with the identification evidence, was sufficient to support conviction beyond reasonable doubt

Decision

The Court undertook its own independent assessment of the evidence, as required where an unsafe and unsatisfactory ground is raised. The applicable test, drawn from Chidiac v The Queen, is whether a jury acting reasonably must have entertained a reasonable doubt as to the appellant's guilt, or equivalently, whether it was open to a jury to be satisfied beyond reasonable doubt.

The identification evidence from both witnesses was plainly weak. The first witness ultimately selected the appellant's photograph from a group of 14 only as the one that "looked more like" the person he had seen, while acknowledging he expected the robber to be among the photographs. The second witness said the photograph reminded her "a bit" of the robber and assessed it as only a 50 per cent match. Citing Pitkin v The Queen, the Court held that evidence that an accused "looks like" the perpetrator is, by itself, insufficient to sustain a conviction. The identification evidence raised no more than a possibility that the appellant was the robber.

The circumstantial evidence added only marginally to the prosecution case. The clothing items seized from the family home were similar to those seen in a poor-quality video of the robbery, but no positive identification of those items as the ones worn by the robber was possible. The appellant's mother attributed the items to another family member. The aftershave bottles found at the appellant's home resembled those reportedly stolen from the car, but the owner acknowledged there was less aftershave in the bottles than there had been, and the bottles were common commercial products.

Applying the principle from Chamberlain v The Queen that circumstantial evidence must exclude any reasonable hypothesis consistent with innocence, the Court found that even the cumulative effect of all the evidence did no more than raise a suspicion. It did not reach the threshold at which a reasonable jury could be satisfied of guilt beyond reasonable doubt on either count.

Orders Made

  • Appeal allowed
  • Convictions and sentences on both counts quashed
  • Verdicts of acquittal entered on both counts

Key Takeaways

  • An appellate court reviewing a verdict as unsafe and unsatisfactory must conduct its own independent assessment of the evidence, not merely ask whether the jury's verdict was open to it.
  • Evidence that a photograph "looks like" or is "similar to" a perpetrator is, by itself, incapable of sustaining a conviction; such evidence raises only a possibility of guilt.
  • Where a Crown case relies on circumstantial evidence, the combined effect of all the circumstances must exclude any reasonable hypothesis consistent with innocence. Accumulating individually weak pieces of evidence does not necessarily satisfy this standard.
  • Photo identification procedures carry inherent limitations, including the risk that witnesses expect the offender to be among the photographs shown to them, which can inflate apparent confidence in a selection.
  • The Court of Criminal Appeal confirmed that admissibility of weak identification evidence is a separate question from whether that evidence, alone or in combination with other evidence, is sufficient to support a conviction.

Legislation and Cases Referenced

Cases cited:
- Chidiac v The Queen (1991) 171 CLR 432
- Alexander v The Queen (1980–1981) 145 CLR 395
- Pitkin v The Queen (1995) 69 ALJR 612; (1995) 130 ALR 35
- Festa v The Queen [2001] HCA 72
- Chamberlain v The Queen (1983) 153 CLR 521
- Shepherd v The Queen (1990) 170 CLR 573

Legislation: No specific legislation was cited in the judgment.