Citation: R v RIX [2005] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 18 February 2005
Judge(s): Hulme J, Barr J, Buddin J
Background
In August 1988, the appellant was convicted of armed robbery arising from an incident at a Zetland bank branch in June 1986. He was sentenced to 10 years' imprisonment with a non-parole period of seven years. A 1989 appeal to the Court of Criminal Appeal was dismissed.
Years after his conviction, the appellant sought referral of his case to the Court of Criminal Appeal under section 474E of the Crimes Act. Hulme J, sitting at first instance on the referral, concluded that the circumstances raised a doubt or question as to part of the evidence and referred the matter to the full Court to be dealt with as an appeal under the Criminal Appeal Act 1912.
The case turned critically on subsequent admissions made by two of the key prosecution witnesses, Detectives Peattie and Nimmo, to the Police Integrity Commission. Both officers acknowledged, in separate Commission proceedings, that they had engaged in the fabrication of evidence, including "verballing" suspects (creating false records of admissions that suspects never actually made) during the period in which the appellant's case arose.
Legal Issues
- Whether the confession evidence, given by officers who later admitted to the Police Integrity Commission that they fabricated evidence during the relevant period, retained sufficient credibility to support the conviction
- Whether, with the confession evidence set aside, the remaining evidence (including bank security photographs, eyewitness descriptions, the appellant's possession of a white utility, and similar footwear) was capable of proving guilt beyond reasonable doubt
- Whether a verdict of acquittal should be entered, or some other order made
Decision
The primary issue was whether any evidence remained capable of sustaining the conviction once the confessions were excluded from consideration. Hulme J surveyed the prosecution case in detail. Eyewitness descriptions were consistent with the appellant's appearance but equally consistent with many other people, and no witness claimed to identify him. The white utility and the joggers were of limited probative value. The confession evidence, given by Detectives Peattie and Nimmo, was fatally undermined by their own subsequent admissions to the Police Integrity Commission that they had fabricated interview records and given false evidence during precisely the period in which this case arose.
The remaining live question was whether the bank security camera photographs, compared with photographs of the appellant taken at the time of arrest and his appearance in court during the appeal, could independently establish guilt. Hulme J undertook a detailed review of all photographs, both during the hearing and subsequently. He concluded that most of the security photographs were not very clear, that the robber's face was substantially obscured by a cap, coat, and large sunglasses, and that it was not possible from a comparison of those photographs with the photographs of the appellant to conclude that he was the offender.
Barr J noted that the parties had proceeded on a joint understanding that the confession evidence would be set aside, and that the appeal would therefore turn entirely on the photographic evidence. He agreed with Hulme J that the photographs were not capable of proving guilt beyond reasonable doubt. Buddin J agreed with both Hulme J and the additional observations of Barr J.
With no evidence remaining on which a jury could reasonably be satisfied beyond reasonable doubt of the appellant's guilt, the Court held that a verdict of acquittal was the appropriate order.
Orders Made
- The appeal is allowed
- The verdict entered and sentence imposed on 25 August 1988 are quashed
- A verdict of acquittal is entered in respect of the charge
Key Takeaways
- Where key prosecution witnesses have subsequently admitted to the Police Integrity Commission that they fabricated evidence and records of interview during the relevant period, their evidence of confession cannot provide a credible basis for a conviction.
- A conviction cannot stand on photographic comparison evidence alone where the security camera images are indistinct, the offender's face is substantially obscured, and the photographs are not capable of proving identity beyond reasonable doubt.
- Section 474E of the Crimes Act provides a mechanism for referring convictions to the Court of Criminal Appeal where new material raises a doubt or question about part of the evidence, allowing the matter to be dealt with as a fresh appeal.
- In dismissing the value of circumstantial evidence such as eyewitness descriptions, possession of a similar vehicle, and comparable footwear, the Court confirmed that evidence consistent with both the accused and a wide range of other persons carries limited weight.
- Subsequent admissions made by police officers to oversight bodies such as the Police Integrity Commission can, years after the event, provide the foundation for a successful referral and quashing of a conviction under the Crimes Act referral provisions.
Legislation and Cases Referenced
Legislation:
- Section 474E, Crimes Act (NSW) (referral of conviction to Court of Criminal Appeal)
- Criminal Appeal Act 1912 (NSW)
Cases:
- No specific cases were cited in the portions of the judgment provided.