Citation: Yasser Ahmad v Regina [2004] NSWCCA 460
Court: NSW Court of Criminal Appeal
Date: 17 December 2004
Judge(s): Dunford J, Hoeben J, Smart AJ
Background
The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm with intent, arising from an assault at a Sydney nightclub in the early hours of 14 April 2002. The complainant had rejected a lewd sexual comment from a man near the long bar, who then threatened to "ruin her face." After she turned to walk away, she was struck in the face with a glass, suffering injuries requiring a five-hour operation and leaving seven facial scars.
The sole issue at trial was identity: whether the appellant was the man who struck the complainant. The Crown relied on the sequence of events immediately preceding the assault as circumstantially pointing to the appellant as the assailant, supported by photographic identification evidence.
The appellant sought to appeal his conviction on several grounds and initially sought leave to appeal a sentence of ten years imprisonment with a non-parole period of seven and a half years, though the sentence appeal was not pressed at the hearing.
Legal Issues
- Whether the discharge of a juror who feared for her safety (due to proximity to the appellant and his family) caused a miscarriage of justice, particularly where that fear was not communicated to the remaining jurors.
- Whether photographic identification evidence was properly admitted, given the appellant could not be located promptly for a physical line-up.
- Whether the array of photographs used was satisfactory.
- Whether comments made by the complainant during the photo identification process created a problematic "displacement effect" on her identification.
- Whether the trial judge's directions and warnings on identification evidence were adequate.
- Whether the summing-up was balanced and unobjectionable.
- Whether the verdict was unreasonable or unsupported by the evidence, applying the test in M v The Queen.
Decision
The Court of Criminal Appeal dismissed the appeal against conviction on all grounds, with Dunford J and Hoeben J agreeing with Smart AJ's reasons.
On the juror discharge, the court found no miscarriage of justice. The juror's safety fears arose from her proximity to the appellant's family in the community, not from anything that occurred in the courtroom or that could have infected the remaining jury members. Because the fear was never communicated to other jurors, there was no basis to conclude the remaining jury was compromised, and the trial properly continued with eleven jurors.
On identification, the court accepted that photographic identification was permissible because the appellant could not be located promptly for a physical parade. The array of twenty photographs was found to be satisfactory. The court also rejected the "displacement effect" argument, which posited that the complainant's comments during the photo viewing process may have distorted or replaced her original memory of the assailant. The court found that argument was not a real consideration in the circumstances of this case.
The trial judge's comprehensive directions and warnings on the dangers of identification evidence were assessed as adequate, and the summing-up was found to be balanced and unobjectionable. Applying the test from M v The Queen (as confirmed in MFA v The Queen), the court concluded it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the assailant, having regard to the whole of the evidence, including the compelling sequence of events leading up to the assault.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence refused.
Key Takeaways
- Photographic identification is permissible where an accused cannot be located promptly for a physical identification parade, provided the array of photographs is satisfactory.
- A juror's discharge for safety concerns arising from community proximity to an accused does not produce a miscarriage of justice where the fear is not communicated to the remaining jurors and the trial proceeds with an untainted jury.
- The "displacement effect" in identification evidence (the concern that a witness's original memory may be distorted by subsequent events) will not necessarily vitiate an identification; it depends on the specific circumstances of the case.
- Comprehensive judicial directions and warnings on the dangers of identification evidence can satisfy the requirements for a fair trial, even where identification conditions at the time of the offence were difficult.
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the applicable test for an unreasonable verdict, drawn from M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606, requires the appellate court to assess whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(1)
Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606