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Court of Criminal Appeal 2 September 2002

R v King

[2002] NSWCCA 365

Assault & violenceTheft & propertyFirearms & weapons
IDENTIFICATION EVIDENCE

Citation: King v R [2002] NSWCCA 365
Court: Court of Criminal Appeal, New South Wales
Date: 2 September 2002
Judge(s): Hodgson JA, Simpson J, Smart AJ

Background

The appellant was convicted in the District Court of robbery whilst armed with an offensive weapon, following an incident at a seafood restaurant at Umina Beach on the evening of 30 April 2001. The complainant, a restaurant owner, was accosted in her car by a man who threatened her with what she believed to be a gun, forced her back into the restaurant, and stole the day's takings.

The Crown's case was entirely circumstantial. The complainant did not formally identify the appellant through a police lineup or similar procedure. Instead, she gave evidence that she recognised the offender as a man she had encountered in a nearby car park on 26 April, and again on 1 May, on both occasions observing him with a red van bearing the number plates UMG 887. She identified him based on voice, height, body, face, and distinctive manner of speech.

Other circumstantial evidence tied the appellant to those number plates. On the night of the robbery, the appellant checked into a local caravan park in his own name, travelling with a woman and young child matching the complainant's earlier descriptions, and driving a yellow Torana. The registration number he recorded on the check-in form was UMG 887, the same number the complainant had noted on the red van. Those plates had been stolen from a vehicle at a bowling club five days earlier.

  • Whether the trial judge's directions on identification evidence were adequate, particularly having regard to section 165 of the Evidence Act 1995
  • Whether the complainant's evidence constituted "identification evidence" within the meaning of the Dictionary to the Evidence Act 1995
  • Whether the verdict was unreasonable or unsupported by the evidence

Decision

Simpson J, with whom Hodgson JA agreed, dismissed the appeal. On the question of identification directions, her Honour found that the trial judge's directions were adequate and discharged any obligation to give a specific caution. The directions given were sufficient to alert the jury to the need for care with the circumstantial identification evidence.

Simpson J also examined whether the complainant's evidence technically constituted "identification evidence" under the Evidence Act 1995 Dictionary. The Dictionary defines that term as an assertion that a defendant was, or resembled, a person present at the scene of the offence or a connected act. Her Honour expressed doubt that the complainant's evidence met this definition strictly, because it made no direct assertion about the appellant at all. Rather, it linked three separate sightings of the same man, and it was other evidence that connected the appellant to that person.

Hodgson JA added that even if there had been a deficiency in the directions, leave to rely on that deficiency would not have been granted under rule 4 of the Criminal Appeal Rules, because no objection was raised at trial. His Honour also noted that the appellant's false denial of having the number plates constituted powerful corroboration of the complainant's identification, and that no miscarriage of justice had occurred.

Smart AJ agreed with Simpson J's orders and reasons, but reserved for future consideration the question of whether the complainant's evidence fell within the definition of identification evidence under the Evidence Act 1995. His Honour described the Crown case as strong and the conviction as inevitable.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identification directions under section 165 of the Evidence Act 1995 are not necessarily required where the complainant's evidence does not constitute a direct assertion that the accused was present at the scene, but rather links a series of sightings from which identity is inferred through other evidence.
  • A false denial by an accused that connects them to key circumstantial evidence can constitute powerful corroboration of identification, and a court assessing whether a miscarriage of justice has occurred may take that into account.
  • Under rule 4 of the Criminal Appeal Rules, an appellate court retains discretion to refuse leave to rely on a trial direction shortcoming where no objection was taken at trial.
  • The definition of "identification evidence" in the Dictionary to the Evidence Act 1995 was left open on one point: two judges expressed reservations about whether evidence that links multiple sightings of the same person, without directly asserting the accused's presence, falls within the statutory definition, though Smart AJ expressly reserved that question for future consideration.
  • Sufficient circumstantial evidence existed, including stolen number plates, the check-in registration form, and corroborating descriptions of associates, to support the jury's conclusion that the appellant was the offender beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), including section 165 and the Dictionary definition of "identification evidence"
- Criminal Appeal Rules, rule 4

Cases:
No cases were cited in the portions of the judgment provided.