Citation: Collins v R [2006] NSWCCA 162
Court: New South Wales Court of Criminal Appeal
Date: 22 May 2006
Judge(s): Spigelman CJ, Simpson J, Johnson J
Background
The appellant was convicted in the District Court of robbery with wounding in circumstances of aggravation under s 96 of the Crimes Act 1900, following a jury trial before Nield DCJ. The offence involved an attack on a woman outside a Liverpool church in January 2003, during which the victim was threatened with a knife, cut on her hand and arm, and had her handbag stolen. The central issue at trial was not whether the offence occurred, but whether the appellant was the perpetrator.
The identification of the appellant rested heavily on the evidence of the victim, who named her assailant at the scene and in subsequent statements to police. The victim and the appellant had a prior personal connection: the appellant had been involved in an extra-marital relationship with the victim's husband, who was later identified as the driver of the vehicle used in the offence and who pleaded guilty to being an accessory after the fact. The complainant gave conflicting accounts at various points, and the Crown was granted leave to cross-examine her as an unfavourable witness.
After conviction, the sentencing judge imposed eight years' imprisonment with a non-parole period of five years, commencing from the date of conviction on 16 February 2005. The sentence made no allowance for the period the appellant had spent in pre-trial custody, which had begun on 8 October 2004.
Legal Issues
- Whether the trial judge's directions to the jury on identification evidence were adequate, including whether a formal unreliable evidence warning under s 165 of the Evidence Act 1995 was required
- Whether the verdict of guilty was unreasonable or unsupported by the evidence
- Whether the sentencing judge erred by finding the appellant knew of the victim's vulnerability arising from a spinal injury
- Whether the sentence improperly failed to account for the pre-trial period in custody
Decision
Conviction appeal: jury directions on identification
The Court found no error in the trial judge's directions to the jury regarding identification evidence. The Court noted that a warning under s 165 of the Evidence Act 1995 was not required in the circumstances, though it was not prohibited. The directions given were held to be adequate to alert the jury to the potential unreliability of the identification evidence, including the complainant's inconsistent out-of-court accounts.
Conviction appeal: unreasonable verdict
The Court rejected the argument that the verdict was unreasonable or unsupported by the evidence. Having regard to the whole of the evidence, including the complainant's identification of the appellant, the prior relationship between the parties, and the circumstantial evidence, the Court was not persuaded that no reasonable jury could have returned a guilty verdict.
Sentence appeal: victim vulnerability
The appellant challenged the sentencing judge's finding that she knew the victim was disabled by a spinal injury, arguing this was an overstatement. The Court acknowledged the characterisation may have gone somewhat further than the evidence strictly warranted, but held the finding that the victim was vulnerable and that this was known to the appellant was not incorrect. The appellant could observe that the victim used a crutch, and the relationship between the appellant and the victim's husband permitted further inference.
Sentence appeal: pre-trial custody
The Court upheld this ground. The sentencing judge had commenced the sentence from the date of conviction rather than adjusting it to reflect the period of pre-trial custody from 8 October 2004. The Court confirmed that sentences should either be reduced by the pre-trial custody period or made retrospective to incorporate it. Neither had occurred, and the omission was corrected by making the sentence retrospective.
Orders Made
- Appeal against conviction dismissed
- Leave granted to appeal against sentence
- Appeal against sentence allowed in part: the original sentence of eight years with a non-parole period of five years commencing 16 February 2005 was set aside
- Appellant re-sentenced to eight years' imprisonment commencing 8 October 2004 and expiring 7 October 2012, with a non-parole period of five years expiring 7 October 2009
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that an unreliable evidence warning under s 165 of the Evidence Act 1995 was not mandatory in respect of identification evidence in these circumstances, though the provision does not prohibit such a warning being given.
- Where a complainant gives conflicting out-of-court accounts that differ from trial identification evidence, adequate jury directions addressing potential unreliability may satisfy the requirements without a formal statutory warning.
- A sentencing finding that a victim was "vulnerable" and that the offender knew this did not require proof of precise knowledge of the medical cause of the disability; observable use of a mobility aid was sufficient to ground the finding.
- Pre-trial custody must be reflected in a sentence, either by reducing the total term or by backdating the commencement date; a failure to account for that period constitutes a sentencing error.
- Sufficient evidence existed, notwithstanding the complainant's inconsistencies, to support the jury's verdict where the identification was made promptly, the parties were known to each other, and the complainant maintained her identification in evidence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 96 (robbery with wounding in circumstances of aggravation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 21A
- Evidence Act 1995 (NSW), ss 38 (leave to cross-examine own witness), 116, 165 (unreliable evidence warning)
Cases
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Rose [2002] NSWCCA 455; 55 NSWLR 701