Citation: [2002] NSWCCA 466
Court: New South Wales Court of Criminal Appeal
Date: 27 November 2002
Judge(s): Simpson J, Carruthers AJ, Mathews AJ (judgment delivered by Mathews AJ)
Background
Two appellants were convicted by a jury in the District Court of robbery in company following the armed hold-up of a real estate agency in Cooma in July 1999. Both received sentences of six years imprisonment. One robber had produced a knife and demanded money; the other had taken a petty cash box. The victims recovered the box later that day, emptied of approximately $2,650 in cash.
The Crown case was largely circumstantial. It rested on identification evidence from multiple witnesses who had seen two men, matching the appellants' descriptions and wearing distinctive matching light grey Adidas hooded jackets, travelling between the flat where the appellants lived and the agency around the time of the robbery. One direct witness also gave evidence implicating the appellants, though his credibility was contested.
Both appellants appealed their convictions to the Court of Criminal Appeal.
Legal Issues
- Whether the jury's verdict was unreasonable having regard to the evidence, particularly given the circumstantial and identification-based nature of the Crown case.
- Whether the Crown's failure to call two potential witnesses, and the trial judge's failure to direct the jury on that absence, caused a miscarriage of justice.
Decision
On the first ground, the Court found no basis to disturb the jury's verdict. Although the case was largely circumstantial and the one direct witness faced credibility challenges, the Court assessed the cumulative weight of the evidence from nine witnesses who described two men matching the appellants' physical descriptions wearing identical jackets moving along the route between their flat and the agency. Several witnesses made specific identifications connecting the younger man to the flat and to the appellant Gleeson. That body of evidence, taken together, provided ample support for the jury's conclusion.
On the second ground, the Court examined what had occurred regarding two potential witnesses, Jay Grant and Jodie Watson. Mr Grant had refused to cooperate with police. Ms Watson, when later spoken to, was unable to recall any relevant conversation. Defence counsel had been unaware at trial of the extent of the police inquiries into these witnesses.
The Court accepted that the issue had not been properly ventilated during the trial, but concluded that this caused no injustice. The two individuals were regarded as so peripheral that neither the Crown, defence counsel, nor the trial judge had returned to the matter during proceedings. Given that neither witness would likely have advanced the case in any meaningful direction, the Court was satisfied there had been no adverse effect on the appellants and no miscarriage of justice.
The Court also noted that the appeal had been filed before the High Court delivered its judgment in Dyers v the Queen, which raised questions about whether a Jones v Dunkel direction (a direction to the jury that an unexplained failure to call a witness may support an inference unfavourable to the party who could have called them) could in any event be given against the Crown other than in rare circumstances.
Orders Made
- Both appeals dismissed.
Key Takeaways
- Circumstantial identification evidence, assessed cumulatively from multiple independent witnesses, can provide an ample basis for a jury's verdict even where direct evidence comes from a witness with credibility issues.
- A trial does not miscarry simply because two potential witnesses were not called and no jury direction was given on their absence, where those witnesses were peripheral to the case and would almost certainly have been unable to assist either party.
- The Jones v Dunkel principle, under which a jury may draw inferences from a party's unexplained failure to call a witness, had its application against the Crown placed in doubt by the High Court's decision in Dyers v the Queen, decided shortly before this appeal was heard.
- In dismissing the second ground, the Court of Criminal Appeal confirmed that an appellant must demonstrate actual adverse effect from a procedural irregularity, not merely point to the irregularity itself, before a miscarriage of justice will be established.
- Sufficient evidence to sustain a robbery in company conviction can rest substantially on witness accounts of distinctive clothing and movements, particularly where those accounts consistently describe features matching the accused.
Legislation and Cases Referenced
Cases:
- Dyers v the Queen (HCA 45, 9 October 2002)
- Jones v Dunkel (1959) 101 CLR 298
Legislation: No specific legislation was cited in the judgment text.