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Court of Criminal Appeal 27 June 2007

Can v R

[2007] NSWCCA 176

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW IDENTIFICATION EVIDENCE PHOTOGRAPHIC IDENTIFICATION COM FIT PHOTOS VERDICT NOT UNREASONABLE

Citation: Can v R [2007] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 27 June 2007
Judge(s): Giles JA, James J, Harrison J

Background

The appellant was convicted after trial in the District Court of robbery in company with wounding, an offence under s 98 of the Crimes Act. The Crown alleged that on 4 June 2002 the appellant and a co-offender robbed a wholesale diamond merchant's office in Sydney's CBD, stealing approximately one million dollars worth of diamonds. The victim, a diamond grader, was assaulted, tied up, wounded, and threatened with a firearm during the robbery.

The appellant was identified as the offender who carried the handgun and directed the robbery. His co-offender had already pleaded guilty before the appellant was tried. The appellant's trial before Judge Sorby did not take place until late 2005, more than three years after the offence.

The appellant was self-represented on appeal. He had been sentenced to eight and a half years' imprisonment with a non-parole period of five and a half years, commencing in December 2007 (to follow a sentence he was already serving for an unrelated offence). He appealed both conviction and sentence.

  • Whether the trial judge erred in admitting evidence of a photographic array identification
  • Whether the trial judge erred in admitting a com-fit (computer-generated facial composite) photograph of the offender
  • Whether telephone records relating to a SIM card allegedly used under an alias were wrongly admitted as irrelevant
  • Whether the trial judge erred in admitting hearsay evidence given by a detective on behalf of a telecommunications company
  • Whether the verdict of guilty was unsafe and unsatisfactory
  • Whether the trial judge's directions to the jury were erroneous
  • Whether the sentence was manifestly excessive or otherwise affected by appellable error

Decision

The Court dismissed the appeal against conviction on all grounds. James J (with whom Giles JA and Harrison J agreed) examined each ground in turn and found no appellable error in the conduct of the trial.

On the identification evidence grounds, the Court found no error in the admission of the photographic array or the com-fit image. The Crown's identification case rested on the victim's identification of a computer image of the appellant, the resemblance between the appellant and the com-fit prepared from the victim's description, and evidence that one of the stolen mobile phones was used after the robbery with a SIM card registered in the name of Mustafa Sasi, which the Crown alleged was an alias of the appellant. The Court found the admission of those matters was proper.

The telephone records evidence was similarly upheld. The Court found the records were relevant to connecting the appellant to the stolen property, and that any hearsay issues in the detective's evidence about those records did not constitute reversible error.

On the unsafe and unsatisfactory verdict ground, the Court was satisfied the verdict was not unreasonable. Applying the established test (from M v The Queen), the Court found that a jury acting on proper instructions could reasonably have been satisfied of guilt beyond reasonable doubt on the evidence adduced.

On sentence, the Court noted a minor technical error in how Judge Sorby expressed the sentence structure (referring to the wrong legislative provisions), but found the error did not affect the validity of the sentence. The Court regarded the offence as objectively serious: it was planned, committed with weapons including a firearm, the victim was wounded and tied up, and approximately one million dollars worth of diamonds was stolen and never recovered. The appellant was found to have been the leader of the two offenders. Leave to appeal against sentence was granted but the sentence appeal was dismissed.

Orders Made

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

Key Takeaways

  • A technical error in the form of a sentence (citing the wrong provision of the Crimes (Sentencing Procedure) Act when describing a non-parole period) did not invalidate the sentence where the substantive term imposed was correct and within the proper exercise of discretion.
  • In dismissing the unsafe verdict ground, the Court applied the principle from M v The Queen, requiring the appellate court to ask whether a jury acting on proper instructions could reasonably have been satisfied of guilt beyond reasonable doubt.
  • Identification evidence based on a photographic array and a com-fit image prepared from a witness's description can be admissible at trial; the weight of such evidence is a matter for the jury.
  • Where a defendant was found to be the leader of a two-person criminal enterprise, a higher sentence than that received by the co-offender was a proper exercise of the sentencing court's discretion.
  • An objectively serious armed robbery involving planning, weapons, wounding, substantial financial loss, and no recovery of stolen property will attract a sentence considerably above the range identified in R v Henry for a typical robbery offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 98 (robbery in company with wounding)
- Crimes (Sentencing Procedure) Act (NSW), s 44
- Criminal Appeal Act (NSW)
- Evidence Act (NSW)

Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Fleming v The Queen (1998) 197 CLR 250
- Jones v The Queen (1997) 191 CLR 434
- Longman v The Queen (1989) 168 CLR 79
- House v The King (1936) 55 CLR 499
- R v Henry [1999] 46 NSWLR 346
- R v Blick (2000) 111 A Crim R 326