Citation: R v Waldo Inamata [2003] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 14 February 2003
Judge(s): Handley JA, Sully J, Buddin J
Background
The appellant was convicted in the District Court of armed robbery and stealing a motor vehicle, arising from an incident on 24 August 1999 at a St George Bank branch in Wetherill Park. The Crown alleged that the appellant and a co-offender, Daniel Shanks, entered the bank, threatened staff with a pistol (wielded by Shanks), and removed approximately $57,217 from tellers' cash drawers before fleeing in a stolen BMW.
The appellant stood trial alone, Shanks having pleaded guilty separately. The central issue at trial was identification: whether the Crown could prove to the requisite standard that the appellant was one of the two men involved. The appellant did not give or call evidence.
The Crown case rested substantially on eyewitness descriptions from bank staff and bystanders, security camera photographs, and a photo identification process conducted at a police station approximately six to seven weeks after the robbery. Five bank staff witnesses identified the appellant from a ten-photo video array, several describing high levels of certainty. The appellant was sentenced to an overall effective term of 10 years with a non-parole period of 6.5 years.
Legal Issues
- Whether the trial judge's directions to the jury on identification evidence were adequate, particularly in light of the High Court's requirements in Domican v The Queen (1992) 173 CLR 555
- Whether the summing-up lacked balance in presenting the defence case to the jury
- Whether the sentences imposed were excessive, having regard to parity with the co-offender Shanks
- Whether the sentencing judge properly applied the totality principle when fixing the overall period in custody
Decision
Identification directions: The appellant argued, on a no-leave basis (no objection having been raised at trial), that the trial judge failed to give adequate Domican-compliant warnings about the dangers of convicting on disputed identification evidence. The Court examined the summing-up and acknowledged concerns about its balance, noting that a trial judge carries an obligation to present the case fairly to the jury, including the defence case.
Notwithstanding those concerns, the Court was not persuaded that the directions gave rise to a miscarriage of justice warranting intervention. The identification evidence was substantial: five witnesses identified the appellant with significant degrees of certainty from a properly conducted photo array, their descriptions were broadly consistent with the appellant's appearance, and the jury had the benefit of security camera photographs. The appeal against conviction was dismissed.
Parity: The appellant submitted that the sentence should have been more favourable than that imposed on Shanks to reflect his lesser role in the offence. The Court rejected this argument. Shanks had received a discount for pleading guilty and had been sentenced cumulatively for an additional unrelated offence. The appellant, by contrast, was an escapee serving a sentence for an almost identical offence at the time of the robbery and had prior convictions for similar offending. Applying Lowe v The Queen (1984) 154 CLR 606, the Court found the appellant could entertain no justifiable sense of grievance.
Totality: The appellant contended that the sentencing judge failed to address totality when fixing the overall non-parole period of 8.5 years. The Court declined to draw that inference. The sentencing judge had expressly reduced individual sentences with totality in mind and had made a finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 s 44(2) because the sentences were cumulative on those already being served. No error was established on either sentencing ground.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted, but the appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that Domican requires identification directions to be cogent, effective, and tailored to the circumstances of the particular case, and that this obligation exists regardless of how the defence was conducted at trial.
- A summing-up that lacks balance in presenting the defence case may attract appellate scrutiny, but will not automatically result in a conviction being set aside if the overall evidence was strong and no miscarriage of justice is demonstrated.
- Where a co-offender's more favourable sentence is explained by a guilty plea, an additional cumulative sentence for unrelated offending, and significantly different personal circumstances, a parity argument will not succeed merely because the appellant played a lesser role.
- Upholding the sentence, the Court found no basis to conclude the totality principle had been overlooked where the sentencing judge had expressly reduced individual sentences on that ground and made a special circumstances finding.
- Failing to raise a ground of appeal at trial requires leave to argue it on appeal, and that procedural hurdle shapes the threshold the appellant must meet.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act
Cases:
- Domican v The Queen (1992) 173 CLR 555
- Lowe v The Queen (1984) 154 CLR 606
- R v Ali (1981) 6 A Crim R 161
- R v Ali (2001) 122 A Crim R 498
- R v Chai (2002) 187 ALR 436
- R v Clarke (1997) 97 A Crim R 414
- R v Coe [2002] NSWCCA 385
- R v Courtney-Smith (1990) 48 A Crim R 49
- R v Eldridge [2002] NSWCCA 205
- Festa v The Queen [2001] 185 ALR 394
- Holland v R (1993) 117 ALR 193
- R v Moussa [2001] NSWCCA 427
- R v Nguyen [2002] NSWCCA 342
- R v Roberts [2001] NSWCCA 163
- R v Rose [2002] NSWCCA 455
- R v Taliai CCA, unreported, 11 April 1997
- R v Yates & Ors [2002] NSWCCA 520
- R v Zorad (1990) 19 NSWLR 91