Citation: Clint Joseph Brilley v R [2008] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 9 September 2008
Judge(s): McClellan CJ at CL, Grove J, Blanch J (Blanch J delivered the leading judgment; the others agreed)
Background
The appellant was convicted in the District Court of robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900. The robbery took place in the early hours of 28 November 2002 at a logistics warehouse in Alexandria, Sydney, where three disguised and armed men stole pallets of Samsung mobile phones using a stolen forklift and truck.
Police attended nearby premises at 58 Moore Street, Leichhardt later that morning. There they found a broken baseball bat, two handguns, walkie-talkies, and a garbage bag containing disguise items matching those worn by the robbers. A DNA sample from one of the dust masks in that bag matched the appellant. The appellant arrived at those premises with his co-accused approximately four hours after the robbery and was arrested.
The appellant's co-accused, Coffen, had been tried alongside the appellant but the jury could not reach a verdict against him. Coffen subsequently pleaded guilty to being an accessory before the fact. The appellant was sentenced to a non-parole period of five years and a total term of seven years and six months. He appealed against conviction only, and also sought an extension of time to bring the appeal.
Legal Issues
- Whether the verdict was unreasonable or could not be supported by the evidence, having regard to the quality and reliability of the identification and resemblance evidence
- Whether the trial judge erred in failing to give an adequate Domican warning (a direction cautioning the jury about the dangers of identification evidence)
- Whether the trial judge erred in admitting the eyewitness's evidence of a distinctive physical feature of the robber (a red spot in the eye) that had not been mentioned in the witness's original police statement
- Whether the trial judge erred in refusing to exclude evidence obtained during the police search of the Moore Street premises
Decision
The Court of Criminal Appeal dismissed the appeal and affirmed the conviction. Blanch J (with whom McClellan CJ at CL and Grove J agreed) considered the evidence as a whole and was satisfied the verdict was not unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912.
On the identification issue, the Court acknowledged that the witness, Matthew Marlow, had been in proximity to the robber during the loading of the truck, giving him an opportunity to observe the man at close range. Marlow later identified the appellant from a photograph as resembling the robber and noted a distinctive red spot in the robber's eye. The Court found it was reasonable that Marlow was reminded of this feature upon seeing the photograph, and the jury was entitled to assess Marlow as a credible and reliable witness.
On the Domican warning, the Court examined the directions given by the trial judge in detail and was satisfied they adequately conveyed to the jury the dangers of acting on identification evidence. The directions referred specifically to the circumstances of the observation, the conditions in which it was made, and the caution required before accepting such evidence.
The Court also found no error in the admission of the eye-spot evidence or in the handling of the search evidence. The DNA evidence connecting the appellant to the dust mask found at the Moore Street premises, his mother's car being present near those premises at the relevant time, and his arrival back at the premises after the robbery together provided a substantial circumstantial case supporting the jury's verdict.
Orders Made
- Extension of time to appeal granted
- Appeal against conviction dismissed
Key Takeaways
- Resemblance evidence, where a witness identifies an accused as resembling a disguised offender, can be probative when the witness had a genuine opportunity to observe the offender at close quarters, even where the observation occurred under stressful circumstances.
- A witness's failure to mention a distinctive physical feature in an initial police statement does not automatically render later evidence about that feature unreliable; the jury may assess the circumstances in which the witness recalled the detail.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a Domican warning need not follow any fixed formula, provided the jury is clearly directed about the specific dangers of identification evidence and the conditions affecting the quality of the observation.
- Circumstantial evidence, including DNA on items found at a staging location, a vehicle connected to the accused parked nearby at the relevant time, and the accused's unexplained presence at that location after the offence, can together support a conviction even where no witness directly identified the accused as a participant during the offence.
- Under s 6(1) of the Criminal Appeal Act 1912, a conviction will not be set aside as unreasonable where the jury, having observed the witnesses and the accused, could reasonably have been satisfied of guilt beyond reasonable doubt on the totality of the evidence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2) (armed robbery)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 116, 137, 138
Cases
- Festa v The Queen (2001) 208 CLR 593
- R v Yuill (1993) ACrimR 450
- R v Demirok (1977) 137 CLR 20
- Domican v The Queen (1991-1992) 173 CLR 554
- M v The Queen (1994) 181 CLR 487
- Hargan v The Queen (1919) 27 CLR 13
- Ratten v The Queen (1974) 131 CLR 516
- Whitehorn v The Queen (1983) 152 CLR 657
- Weiss v The Queen (2005) 224 CLR 300