AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 26 July 2002

R v BURLING

[2002] NSWCCA 298

Also reported as (2002) 132 A Crim R 92
Theft & propertyPublic order & justice offences
CRIMINAL LAW JURY VERDICT UNREASONABLE COULD NOT BE SUPPORTED BY THE EVIDENCE IDENTIFICATION

Citation: R v Burling [2002] NSWCCA 298
Court: NSW Court of Criminal Appeal
Date: 26 July 2002
Judge(s): Heydon JA, Levine J, Greg James J

Background

The appellant was convicted in the District Court at Gosford of armed robbery. The charge arose from an incident on 13 August 1999 at Gorokan High School, where a person armed with a screwdriver robbed a school employee of his wallet. The appellant was sentenced to 2 years and 10 months imprisonment, with a 12-month non-parole period served by way of periodic detention.

The case had a notable procedural history. An earlier trial in March 2001 on two counts arising from the same events resulted in an acquittal on the first count (entering with intent to commit a felony) and a hung jury on the armed robbery count. The present conviction followed a retrial before Judge English in the District Court.

Identification was the central issue throughout. Two witnesses, including the robbery victim, picked the appellant from a 14-person line-up, but each expressed some uncertainty. Significant defence evidence pointed to another individual, a person referred to as Bennett, as the possible offender.

  • Whether the jury's guilty verdict was unreasonable or could not be supported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487
  • Whether the weaknesses in the Crown's identification evidence, combined with cogent evidence pointing to another person as the possible offender, gave rise to a reasonable doubt as to the appellant's guilt

Decision

The Court of Criminal Appeal allowed the appeal on the single ground that the jury's verdict was unreasonable and could not be supported by the evidence. The Court applied the M v The Queen standard, under which an appellate court will intervene where, having reviewed the evidence, it concludes there was a reasonable doubt as to guilt that the jury should also have entertained.

The identification evidence from both witnesses was found to be fragile. The victim, Van Stappen, observed the offender from approximately 12 feet away, the offender's face was partially covered by a beanie for most of the encounter, Van Stappen's description of the clothing changed between his original police statement and his trial evidence, and he noted pimples on the appellant at the line-up that he had not previously mentioned. The other witness, O'Connor, saw only part of the offender's face while the beanie was being adjusted, was affected by the appellant's hair at the line-up, and acknowledged she had expected the offender to be present in the parade.

The defence case presented evidence pointing to another person, Bennett, as the possible offender. Bennett matched witness descriptions of the offender's clothing and appearance. A fingerprint found at the school could not be excluded as Bennett's, but was positively excluded as the appellant's. A witness placed the appellant near the school earlier that morning wearing clothing consistent with what Bennett was known to customarily wear.

The Crown itself conceded that nothing in the defence evidence added to the Crown's case on identification. Taking the weakness of the identification evidence together with what the Court described as cogent evidence of the possibility of Bennett's involvement, the Court found a reasonable doubt existed as to the appellant's guilt and made orders accordingly.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • Verdict of acquittal entered

Key Takeaways

  • A conviction cannot stand where the identification evidence is fragile and there is cogent evidence pointing to another person as the possible offender, even where two witnesses have selected the accused from a formal line-up.
  • Under the M v The Queen test, an appellate court may quash a conviction and enter an acquittal if, upon reviewing all the evidence, it forms a reasonable doubt as to guilt that the jury ought to have entertained.
  • Witness uncertainty at identification parades (including hedged remarks and reactions to features not observed at the crime scene) can contribute to a finding that the overall identification evidence is too weak to support a conviction.
  • Fingerprint evidence excluding the accused and incapable of excluding another person constitutes the type of cogent alternative-offender evidence that can undermine the Crown case on identification.
  • The Court of Criminal Appeal noted, without deciding, that trial counsel might also have sought to have the identification evidence withdrawn from the jury entirely, citing the approach discussed in R v R (1989) 18 NSWLR 74.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)

Cases
- M v The Queen (1994) 181 CLR 487
- Regina v Kneebone [1999] NSWCCA 279
- Regina v Prasad (1979) 23 SASR 161
- R v R (1989) 18 NSWLR 74