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7
Court of Criminal Appeal 25 September 2002

R v Coe

[2002] NSWCCA 385

Assault & violenceTheft & property
CRIMINAL LAW IDENTIFICATION NOMINATES OFFENDER TO POLICE SUBSEQUENT PHOTOGRAPHIC ARRAY WHETHER ADMISSABLE SUMMING

Citation: R v Coe [2002] NSWCCA 385
Court: New South Wales Court of Criminal Appeal
Date: 25 September 2002
Judges: Giles JA, Dunford J, Greg James J

Background

The appellant was convicted by a jury in the District Court of robbery with violence under s 96 of the Crimes Act 1900, arising from an attack on a man in King Street, Newtown, in which the victim's scooter was stolen and his jaw broken. The appellant was sentenced to four years and six months imprisonment with a non-parole period of two years and three months. He also pleaded guilty to a separate drug supply charge.

The Crown's case rested primarily on the evidence of a witness who, shortly after the incident, attended Newtown Police Station and nominated the appellant by name as the offender, saying he recognised him as a prior acquaintance. That same witness later identified the appellant from a photographic array. However, when giving evidence at trial, the witness expressed uncertainty about his identification and said he had not clearly seen the offender's face.

The appellant denied the offence and raised an alibi, giving evidence that he was elsewhere that evening, supported by several witnesses including his mother and a friend.

  • Whether a photographic array conducted after the witness had already nominated the appellant by name was admissible in evidence.
  • Whether the trial judge's directions on identification evidence were adequate.
  • Whether cross-examination of the appellant about his failure to raise his alibi when first arrested infringed his right to silence under s 89 of the Evidence Act 1995.
  • Whether the prior statements of the identification witness, declared unfavourable under s 38 of the Evidence Act 1995, were admissible as evidence of the facts asserted in those statements.
  • Whether questioning by the trial judge during the Crown's cross-examination of the unfavourable witness constituted a miscarriage of justice.
  • Whether the trial judge's failure to correct a legally unavailable Crown submission on the right to silence, when summarising it to the jury, amounted to a miscarriage of justice.
  • Whether the verdict was unreasonable or unsupported by the evidence.

Decision

Identification and the photographic array. The Court found that the photographic array was properly admitted. The prior nomination by the witness was the foundation of the Crown case, and the subsequent array served to confirm rather than replace that identification. The Court was satisfied the directions given on identification evidence, including the orthodox warnings about the dangers of identification evidence, were adequate in the circumstances.

Right to silence and alibi. The Court acknowledged that s 89 of the Evidence Act 1995 prohibits drawing adverse inferences from an accused's silence when questioned by police. However, the Court found that whilst some aspects of the Crown's cross-examination and submissions touched close to impermissible territory, the trial judge had given appropriate directions, and no substantial miscarriage of justice resulted. The jury was not directed that it could draw an adverse inference from the appellant's silence; they were entitled only to consider the conduct of alibi witnesses, such as the failure of the appellant's friend to contact police to confirm the alibi.

Unfavourable witness and prior statements. After the identification witness retreated at trial from his earlier certainty, the Crown successfully applied under s 38 to have him declared unfavourable. The Court confirmed that his prior statements, once admitted through that process, were admissible not merely as prior inconsistent statements going to credit, but as evidence of the facts asserted in them. Both the Crown prosecutor and the trial judge questioned the witness about those earlier statements, and the Court found no miscarriage of justice arose from the judge's participation in that questioning.

The Crown's impermissible submission. The trial judge, in summarising the Crown's address to the jury, repeated a submission that the jury could use the appellant's silence when arrested as evidence against him. That submission was not available in law under s 89. The Court found this was an error; however, having regard to the overall strength of the Crown case and the correctness of other directions, the Court concluded the error did not give rise to a substantial miscarriage of justice. On the unreasonable verdict ground, the Court held it was plainly open to the jury to convict on the evidence before them, including the witness's original nomination and photographic identification.

Orders Made

  • Leave to appeal out of time granted.
  • Appeal dismissed.
  • Conviction confirmed.

Key Takeaways

  • A witness who nominates an offender to police by name, based on prior acquaintance, may subsequently be shown a photographic array, and both the nomination and the array result can be admissible; the array does not become tainted merely because the witness had already identified the accused.
  • Where a witness is declared unfavourable under s 38 of the Evidence Act 1995, their prior statements become admissible as evidence of the facts asserted in those statements, not merely as material going to the witness's credibility.
  • Section 89 of the Evidence Act 1995 prohibits drawing adverse inferences from an accused's silence when questioned by police; a jury direction that strays beyond this boundary is an error, but will not necessarily produce a substantial miscarriage of justice where the overall charge is otherwise sound and the Crown case is strong.
  • A trial judge's active questioning of an unfavourable witness during Crown cross-examination does not automatically constitute a miscarriage of justice; the question is whether the conduct of the trial as a whole was unfair to the accused.
  • In dismissing the appeal, the Court of Criminal Appeal applied the principles in M v The Queen (1994) 181 CLR 487 and R v Markuleski [2001] NSWCCA 290 in assessing whether the verdict was unreasonable, confirming that an appellate court will not substitute its own view where it was open to the jury to convict on the evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 96
- Evidence Act 1995 (NSW), ss 38, 89, 116, 137, 165

Cases
- R v Blick [2000] NSWCCA 61
- Festa v The Queen [2001] HCA 72, 76 ALJR 291
- R v Nguyen [2002] NSWCCA 342
- Petty v The Queen (1991) 173 CLR 95
- R v Anderson [2002] NSWCCA 141
- R v Barbaro [2000] NSWCCA 192
- R v Gee [2000] NSWCCA 198
- Gilbert Adam v The Queen [2001] HCA 57, 123 A Crim R 280
- Domican v The Queen (1992) 173 CLR 555
- R v KA Clarke (1997) 97 A Crim R 414
- R v Eldridge [2002] NSWCCA 205
- R v Zammit [1999] NSWCCA 65
- R v Cook (CCA, unreported, 24 August 1998)
- R v Esposito (1998) 45 NSWLR 442
- M v The Queen (1994) 181 CLR 487
- R v Markuleski [2001] NSWCCA 290