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Court of Criminal Appeal 19 March 2004

RAZZAK v R

[2004] NSWCCA 62

Assault & violence
RESEMBLANCE EVIDENCE IDENTIFICATION OTHER CIRCUMSTANTIAL EVIDENCE VIDEO OF ACCUSED SAID TO BE "RE ENACTMENT" OF OFFENCE

Citation: R v Razzak [2004] NSWCCA 62
Court: Court of Criminal Appeal, New South Wales
Date: 19 March 2004
Judge(s): Levine J, O'Keefe J, Bell J

Background

The appellant was convicted in the District Court of maliciously wounding a man with intent to cause grievous bodily harm following a stabbing on Pirrama Road, Darling Harbour, in the early hours of 20 January 2001. The victim had been attending a festival with friends when a confrontation erupted after a member of his group was shoulder-charged by someone in an approaching group. The appellant then allegedly stepped forward and stabbed the victim in the right abdomen.

The victim and witnesses gave varying descriptions of the assailant's clothing, hair, and appearance, and the victim's identification of the appellant from a photographic array was qualified. He noted similarities in facial features but acknowledged differences in hair. A detective encountered the appellant at a nearby casino around 2 hours after the stabbing, wearing clothing consistent with some witness descriptions.

The prosecution also relied on a video said to depict the appellant re-enacting the stabbing. The appellant was found guilty after a trial before Judge Hock and a jury in September 2002. He was sentenced to 7 years imprisonment with a 4-year non-parole period for the wounding offence, partly concurrent with a separate 2.5-year sentence for a firearms offence. He appealed both conviction and sentence.

  • Whether the trial judge erred in admitting or handling resemblance evidence and photographic identification material under the Evidence Act 1995 (NSW), including sections 113 to 116 and section 137
  • Whether the jury's verdict was unreasonable or unsupported by the evidence, given the qualified nature of the identification evidence and the varying witness accounts
  • Whether the video said to be a re-enactment of the offence was properly admitted and characterised
  • Whether the sentences imposed were manifestly excessive or otherwise affected by error

Decision

The Court of Criminal Appeal dismissed the appeal against conviction. The Court considered the identification evidence, including the victim's qualified photo array identification, the circumstantial evidence placing the appellant near the scene shortly after the stabbing in similar clothing, and the video footage. The Court found no basis to conclude the jury's verdict was unreasonable.

The sentencing judge had described the video as depicting the appellant boasting and "gloating" over what appeared to be a re-enactment of the stabbing, calling it "chilling to watch." The Court of Criminal Appeal found no error in the sentencing judge's treatment of this material or in her broader sentencing approach.

On sentence, the appellant contended that the sentencing judge had failed to state the appropriate sentences before applying the concurrency regime required by the High Court's decision in Pearce. The Court of Criminal Appeal rejected this argument as entirely without merit, finding that the judge had complied with the Pearce requirements by the conclusion of her remarks on sentence.

The Court found that while the ultimate sentence might appear severe, it was not manifestly excessive. No error was identified that would warrant the Court's intervention. Leave to appeal against sentence was granted, but the appeal was dismissed.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Qualified photographic identification evidence, when corroborated by other circumstantial evidence such as the accused's proximity to the scene and clothing consistent with witness descriptions, can be sufficient to support a conviction.
  • Video footage characterised as a re-enactment of an offence may be admitted and relied upon by a sentencing court in assessing an offender's attitude to the offence, including as evidence relevant to remorse and deterrence.
  • A sentence is not manifestly excessive merely because it could be considered severe; the Court of Criminal Appeal confirmed it will only intervene where error is demonstrated or the sentence plainly exceeds what the circumstances warrant.
  • Under the regime confirmed in Pearce, a sentencing judge must address the interaction of concurrent and consecutive sentences, but the Court of Criminal Appeal found that compliance with Pearce does not require a separate explicit statement of each individual sentence before the final figures are reached, provided the reasons as a whole disclose the approach taken.
  • In dismissing the conviction appeal, the Court confirmed that discrepancies between witnesses regarding clothing and hair do not necessarily render a verdict unreasonable where other evidence provides a sufficiently reliable identification basis.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 113 to 116, s 137

Cases:
- Alexander v The Queen (1980-1981) 145 CLR 395
- Azzopardi v The Queen (2001) 205 CLR 50
- Domican v The Queen (1991-1992) 173 CLR 555
- Festa v The Queen (2001) 208 CLR 593
- Mundarra Doolan Smith v The Queen (2001) 206 CLR 650
- Pearce v The Queen (1998) 194 CLR 610
- Pitkin v The Queen (1995) 69 ALJR 612
- R v Coxon [2002] SASC 165