Citation: CARR, Peter John v. R. [2005] NSWCCA 439
Court: Court of Criminal Appeal, New South Wales
Date: 12 December 2005
Judge(s): Hodgson JA; McClellan CJ at CL; Barr J
Background
The appellant was convicted in the Sydney District Court of armed robbery with wounding under s 98 of the Crimes Act. The offence occurred at a convenience store in Lewisham in May 2003, during which the store owner was stabbed with scissors after refusing a demand for money. The appellant was apprehended two days later whilst driving the red Holden Commodore linked to the offence.
The Crown's case rested primarily on the identification evidence of a nearby resident, Dr Sammut, who had observed the occupants of the parked vehicle at close range before and after the attack. Dr Sammut selected the appellant's photograph from an array of fifteen photographs at the police station five days after the incident. The store owner's identification evidence was of limited value, as he had initially selected two photographs from the array that did not depict the appellant.
The appellant was sentenced to a total of eight years' imprisonment, with a non-parole period of five years. He appealed on the single ground that the trial judge's directions to the jury concerning the identification evidence were inadequate and unbalanced.
Legal Issues
- Whether the trial judge's directions regarding the photograph identification evidence of Dr Sammut were adequate and balanced
- Whether the trial judge erred by failing to direct the jury specifically about the fact that Dr Sammut was told by police that he had selected the correct person, and only then expressed greater confidence in his identification
- Whether the directions concerning the store owner's retreat from his initial photo identification required further comment by the trial judge
- Whether the directions regarding the various witnesses' estimates of the appellant's height were adequate
- Whether the trial judge improperly allowed the jury to use the appellant's association with the vehicle to compensate for any deficiency in the identification evidence
Decision
The Court of Criminal Appeal dismissed the appeal, finding no inadequacy or error in the trial judge's directions to the jury. Hodgson JA, with whom McClellan CJ at CL and Barr J agreed, examined each of the appellant's specific complaints in turn and rejected them.
On the central complaint that the summing up amounted to advocacy in favour of Dr Sammut's identification evidence, the Court found that the trial judge had accurately and fairly drawn attention to both the strengths and weaknesses of that evidence. The judge had referred the jury to the videotape and transcript of Dr Sammut's identification process, and had appropriately acknowledged factors relevant to the reliability of identification evidence generally.
Regarding the failure to direct the jury that Dr Sammut was told he had selected the right person before he became more confident, the Court noted that defence counsel had not requested such a direction. In circumstances where the videotape and transcript of the identification process had been placed before the jury, the absence of a specific direction on this point did not constitute error.
On the question of the appellant's association with the red Commodore, the Court was satisfied that the trial judge had not suggested the jury could use that association to shore up an unsatisfactory identification. The summing up properly treated the identification evidence of Dr Sammut as the necessary foundation for the conviction, without inviting the jury to substitute the vehicle connection for a finding of reliable identification.
Orders Made
- The appeal is dismissed.
Key Takeaways
- A trial judge is not required to give every possible direction concerning identification evidence in the absence of a request from defence counsel, particularly where the jury has been directed to the primary materials such as videotaped identification processes and transcripts.
- In dismissing the appeal, the Court confirmed that a summing up is not rendered unbalanced simply because it accurately describes the relative strengths and weaknesses of competing pieces of identification evidence.
- No error arose from the judge's treatment of the complainant's retreat in the witness box from his initial photo identification, given the jury had access to the video recording and transcript of that process.
- Where a conviction depends on eyewitness identification, the trial court must direct the jury that the identification evidence must be found satisfactory and compelling; other circumstantial evidence, such as an accused's association with a vehicle, cannot compensate for a deficiency in that identification.
- Absence of DNA linking an accused to the scene does not automatically undermine a conviction based on eyewitness identification, provided that identification evidence is properly assessed and the jury is adequately directed.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 98 (armed robbery with wounding)
Cases: No cases were cited in the portions of the judgment provided.