Citation: Evans v Regina [2006] NSWCCA 277
Court: New South Wales Court of Criminal Appeal
Date: 7 September 2006
Judge(s): James J, Hidden J, Hoeben J
Background
The appellant was convicted in the District Court on two counts of armed robbery and one count of assault with intent to rob, all arising from an incident on 28 February 2002 at the Strathfield Municipal Council chambers. A masked offender wearing overalls and a balaclava entered the chambers and robbed staff and members of the public. The sole question at trial was whether the appellant was the offender.
The Crown's case rested significantly on DNA evidence. A baseball cap found on the floor of the chambers after the robbery was later linked by DNA analysis to the appellant, with the matching profile occurring in fewer than one in ten billion people. Police also seized a balaclava and a pair of overalls from the appellant's home during an unrelated arrest, which the Crown said were similar to those worn by the robber.
The appellant denied involvement and sought to rely on alibi evidence, including evidence from his brother and father. The trial judge refused to allow that evidence because no alibi notice had been given.
Legal Issues
- Whether items of clothing found at the appellant's home were properly admitted as similar-fact or identification evidence
- Whether the prosecutor was permitted to show clothing to witnesses and ask them to comment on it
- Whether it was permissible for the Crown prosecutor to ask the appellant to put on seized clothing, and to put on the prosecutor's own sunglasses, and repeat words spoken by the robber
- Whether the trial judge erred in rejecting alibi evidence from the appellant's brother and father due to the absence of alibi notice
- Whether the trial judge gave adequate reasons for rulings made during the trial
- Whether, if any errors were established, the proviso under section 6(3) of the Criminal Appeal Act should be applied so that the conviction stood regardless
Decision
The Court found several aspects of the trial's conduct to be problematic. James J held that it was impermissible for the Crown prosecutor to have the appellant put on the prosecutor's own sunglasses during cross-examination, as those sunglasses belonged to the prosecutor rather than being seized items connected to the offence. The Court also found the trial judge erred in refusing leave to call the appellant's brother and father in support of the alibi, given that the appellant himself had already given alibi evidence and that the absence of formal notice did not automatically preclude the evidence.
On the question of the clothing evidence more broadly, the Court accepted that items similar to those worn by the robber, found at the appellant's home, were admissible. Witnesses were permitted to comment on those items, and the appellant was lawfully required to put on the seized balaclava and overalls for the jury's comparison, though the step involving the prosecutor's own sunglasses crossed a permissible line.
Despite identifying two flaws in the trial, the Court applied the proviso under the Criminal Appeal Act. James J, after conducting an independent assessment of the whole record, was satisfied that the properly admitted evidence proved the appellant's guilt beyond reasonable doubt. The DNA evidence linking the appellant to the cap dropped at the scene was described as powerful, and the alibi witnesses could only have spoken to a general practice rather than the appellant's specific whereabouts on the day in question, offering little that was not already before the jury.
All three judges agreed the appeal should be dismissed. Hidden J noted the defects were troubling but agreed the proviso was appropriately applied.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that clothing found at an accused's home, similar to that worn during an offence, can be admissible identification evidence, and witnesses may be asked to comment on such items.
- Requiring an accused to put on seized items of clothing during cross-examination for purposes of identification comparison is permissible, but having an accused don the prosecutor's own personal items during that exercise was found to go beyond what is permissible.
- Under the proviso in section 6(3) of the Criminal Appeal Act, a conviction can be upheld despite identified trial errors where an appellate court independently assesses the whole record and is satisfied the properly admitted evidence proved guilt beyond reasonable doubt.
- Absent alibi notice does not automatically bar alibi evidence entirely, and the trial judge erred in refusing to allow the appellant's relatives to give evidence in circumstances where the appellant had already testified as to his alibi.
- Where alibi witnesses could only have attested to a general pattern of behaviour rather than the accused's specific location on the relevant day, and where primary DNA evidence was overwhelming, identified errors in excluding that evidence may not be sufficient to displace the proviso.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Criminal Procedure Act (NSW)
- Criminal Appeal Act (NSW), s 6(3)
Cases:
- Weiss v The Queen (2005) 80 ALJR 444
- Bulejcik v The Queen (1994-1995) 185 CLR 375
- Fleming v The Queen (1998) 197 CLR 250
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Scott v Numurkah Corporation (1954) 91 CLR 300
- R v Kirby [2000] NSWCCA 330
- R v Milat (NSWSC, Hunt CJ at CL, 12 April 1996)
- FD v Regina [2006] NSWCCA 31
- KNP v Regina [2006] NSWCCA 213
- Skondin v Regina [2005] NSWCCA 417
- Harris v Regina [2005] NSWCCA 432
- Niass v Regina [2005] NSWCCA 120