Brown v R

Citation: Brown v R [2008] NSWCCA 306
Court: NSW Court of Criminal Appeal
Date: 17 December 2008
Judge(s): McClellan CJ at CL; Hall J; Harrison J

Background

The appellant was tried and convicted in the District Court alongside a co-accused on a charge of shooting at a man with intent to murder him, contrary to s 29 of the Crimes Act 1900. The three men involved had known each other for years as members of the same motorcycle club. The Crown alleged the appellant drove the co-accused to the victim's location on the night of the shooting, and the victim's wife identified the appellant as the driver of the car that dropped off the co-accused shortly before the shooting occurred.

The central identification issue arose from the victim's wife being the only witness to place the appellant at the scene. The appellant denied being present and gave evidence that he was at home with his partner at the relevant time. The victim himself did not see the appellant at the scene when the co-accused alighted from the truck.

On appeal, the appellant sought leave to challenge his conviction on three grounds, none of which had been raised at trial.

Legal Issues

• Whether the trial judge failed to adequately direct the jury in relation to identification evidence, including whether a warning under s 116 of the Evidence Act 1995 was required
• Whether a separate or additional warning was required concerning the recognition evidence given by the victim's wife, given her prior inconsistency about the type of vehicle involved
• Whether a miscarriage of justice occurred because the Crown Prosecutor invited the jury to consider the question "why would the victim lie?", and whether that approach effectively reversed the onus of proof

Decision

Identification warning grounds: The Court considered whether the trial judge's directions on identification evidence were adequate. The victim had identified the appellant at the driver's window of a vehicle immediately after being shot. The Court found the trial judge had given a general warning concerning the reliability of identification evidence, and that the circumstances of the victim's observation of the appellant were sufficiently distinct from a classic identification case. The Court was not satisfied that a more elaborate or specific Domican-style warning (requiring detailed attention to the dangers of mistaken identification) was mandated on the facts, and found no substantial miscarriage of justice had resulted from the directions given.

Recognition evidence and prior inconsistency: The appellant also argued that the victim's wife, who was familiar with the appellant, gave recognition evidence that was undermined by her initial description of a different vehicle type. The Court acknowledged the inconsistency but found the trial judge's directions were adequate in the overall context of the trial. The failure to raise these matters at trial, and the absence of any apparent tactical reason for not doing so, weighed against granting leave.

The "why would the victim lie?" submission: The Court drew a careful distinction between two types of Crown submission. An impermissible question asks the jury to accept prosecution evidence simply because no motive to lie has been identified, which risks reversing the onus of proof by requiring the defence to explain away the witness's credibility. However, the Court found the Crown Prosecutor here had not asked that question. Rather, the Prosecutor had pointed to a positive reason why the victim was unlikely to have lied: the practical consequence that a false identification would leave the real shooter free to harm the victim again. The Court held this was a submission about the inherent improbability of a deliberate misidentification, not a speculative challenge to the defence to explain a motive for lying.

Orders Made

• Leave to appeal refused and appeal dismissed.

Key Takeaways

• A meaningful distinction exists between a Crown submission that a witness had good reason not to lie, and a submission that invites the jury to accept evidence merely because no motive to lie has been identified. The Court of Criminal Appeal confirmed only the latter risks reversing the onus of proof.
• In dismissing the appeal, the Court reinforced that the "why would the victim lie?" question is impermissible where it implicitly requires the defence to establish a motive for a witness to fabricate evidence, but not every reference to a witness's lack of motive crosses that line.
• No error was established in the trial judge's identification directions where the witness was familiar with the accused and the circumstances of the recognition differed meaningfully from a classic stranger-identification scenario.
• Failure to raise grounds at trial carries real weight on appeal. Where no tactical reason for the omission was apparent, the Court treated trial counsel's silence as consistent with a genuine assessment that no error had occurred.
• Under s 116 of the Evidence Act 1995, the adequacy of any identification warning is assessed in context. A general warning may suffice where the recognition evidence does not raise the specific dangers associated with a fleeting or stranger identification.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 29
- Evidence Act 1995 (NSW), s 116
- Criminal Appeal Act 1912 (NSW)

Cases:
- Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
- Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
- Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346
- R v Clarke (1997) 97 A Crim R 414
- R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505
- Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R
- South v Regina [2007] NSWCCA 117
- Trudgett v R [2008] NSWCCA 62
- R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340
- R v Demiroz [2003] NSWCCA 146
- Zammit v R [1999] NSWCCA 65; (1999) 107 A Crim R 489
- R v Villa [2005] NSWCCA 4
- R v Hodge [2002] NSWCCA 10
- R v Coe [2002] NSWCCA 385