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Court of Criminal Appeal 6 August 2004

R v Shorten

[2004] NSWCCA 266

Assault & violenceTheft & propertyFirearms & weapons
CONVICTION APPEAL ARMED ROBBERY COMPETENCE OF COUNSEL ASSERTIONS THAT CONVICTION UNREASONABLE

Citation: R v Shorten [2004] NSWCCA 266
Court: New South Wales Court of Criminal Appeal
Date: 6 August 2004
Judge(s): Grove J, Dowd J, Sperling J

Background

The appellant was convicted in the District Court of armed robbery contrary to s 97(1) of the Crimes Act 1900, following an incident at a Sydney pharmacy on Oxford Street on 4 April 2001. A person entered the pharmacy, engaged a shop assistant in a transaction involving packets of condoms, then produced a knife and demanded money from the cash register before fleeing.

The appellant was linked to the offence primarily through fingerprint evidence. A fingerprint expert gave evidence that a print matching the appellant's left thumbprint was found on a condom packet from the pharmacy, and that the print was no more than one to two weeks old. Closed-circuit television footage from the pharmacy was also admitted, along with descriptions of the offender given by a taxi driver and a bystander who noted the getaway taxi's licence plate.

The appellant was sentenced to eight years' imprisonment with a non-parole period of five years. He appealed against conviction only, appearing in person without legal representation.

The Court of Criminal Appeal was asked to consider:

  • Whether trial counsel was incompetent in failing to seek jury directions on identification and circumstantial evidence, in admitting a witness statement without the appellant's consent, and in failing to call parole officers as witnesses
  • Whether the trial judge erred by not giving appropriate directions on identification evidence and circumstantial evidence
  • Whether the trial judge erred in not directing the jury that the appellant had agreed to and was entitled to an identification line-up
  • Whether the trial judge erred in not withdrawing the case from the jury at the close of the Crown's case
  • Whether the conviction was unsafe and unsatisfactory given the state of the evidence

Decision

Counsel competence: The Court examined each allegation of incompetent representation. On the admission of the absent bystander's statement, the Court noted that counsel has the authority to make tactical decisions about evidentiary matters, and that the admission of the statement was a matter within counsel's proper discretion. The fingerprint evidence provided a separate and strong basis for conviction, meaning the impugned statement was not determinative.

Jury directions: The Court assessed the trial judge's directions and found no error warranting intervention. The directions given on the evidence were adequate in the circumstances of the trial. The Court found no basis to conclude that the jury was misdirected or left without sufficient guidance.

Identification line-up: The Court considered the complaint that the jury was not told the appellant had agreed to participate in an identification line-up. The Court found this did not give rise to a ground of appeal capable of disturbing the conviction, particularly given the fingerprint evidence.

Unsafe and unsatisfactory verdict: Applying the test in M v R (1994) 181 CLR 487, the Court assessed whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The Court concluded that the evidence, including the fingerprint matching the appellant's thumbprint found on a condom packet at the scene, was sufficient for the jury to reach that conclusion. No significant possibility of an innocent person having been convicted was established.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A conviction can rest on circumstantial evidence, including fingerprint evidence, where that evidence is sufficient for a jury to be satisfied beyond reasonable doubt, even in the absence of direct eyewitness identification of the accused as the offender.
  • Decisions about the admission of evidence and tactical choices made by trial counsel fall within the proper authority of counsel, and not every departure from a client's preferred approach constitutes incompetence warranting appellate intervention.
  • Under the test in M v R, the Court of Criminal Appeal will only set aside a verdict as unreasonable if, making full allowance for the jury's advantages, there is a significant possibility that an innocent person has been convicted. No such possibility was found on these facts.
  • No error was established in the trial judge's directions to the jury on identification evidence where the directions given were adequate in the context of the whole trial.
  • In dismissing all grounds of appeal, the Court affirmed that it is not a substitute for the jury and will not intervene simply because an alternative view of the evidence was available to the jury.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Criminal Appeal Rules
- Evidence Act 1995 (NSW)

Cases:
- Chamberlain v The Queen [No 2] (1984) 153 CLR 521
- Chidiac v The Queen (1991) 171 CLR 432
- Ignjatic v R (1993) 68 A Crim R 333
- Papakosmas v R (1999) 196 CLR 297
- M v R (1994) 181 CLR 487
- R v Birks (1990) 19 NSWLR 677
- R v Bryant, NSWCCA, unreported, 27 June 1994
- R v Hines (1991) 24 NSWLR 737
- R v Leonard, NSWCCA, unreported, 4 August 1993
- R v Moussa [2001] NSWCCA 427