Citation: Dunks v R; Miller v R [2010] NSWCCA 312
Court: New South Wales Court of Criminal Appeal
Date: 16 December 2010
Judge(s): Simpson J, Hall J, Garling J (Garling J delivered the leading judgment; Simpson and Hall JJ agreed)
Background
In the early hours of 19 March 2009, a man was robbed of his Rolex watch and cash by three men at Springfield Plaza in Kings Cross. He reported the robbery immediately to police and joined officers in a patrol car driving around the area. About 50 minutes later, he identified three men walking along William Street as his attackers.
Those three men included a co-accused who was wearing the victim's watch and who later pleaded guilty to robbery in company. The other two, the appellants, denied any involvement in the robbery. After a three-day trial in the District Court, a jury convicted both appellants of robbery in company.
The appellants appealed to the Court of Criminal Appeal, arguing that the jury's verdicts were unreasonable and could not be supported by the evidence.
Legal Issues
- Whether the jury's verdicts of guilty were unreasonable or could not be supported having regard to the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912
- Whether the identification evidence of the victim was sufficiently persuasive to sustain conviction beyond reasonable doubt
Decision
The court applied the test from M v The Queen (1994) 181 CLR 487: the central question is whether it was open to the jury, acting reasonably on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellants' guilt. The court must make its own independent assessment of the evidence while giving due allowance for the advantages the jury had in seeing and hearing witnesses.
The Crown case rested substantially on the victim's identification of the two appellants at William Street. However, the court found that identification deeply unpersuasive. The victim had described his attackers as wearing dark clothing. When police found the appellants, both were wearing light-coloured clothing, which did not match that description. This was the central and, in effect, single distinguishing feature of the identification.
Other circumstantial evidence offered no meaningful support. CCTV footage placed the appellants near the robbery location with the co-accused at 2:30 am, but there was no established time for the robbery itself, so no reliable inference of contemporaneous involvement could be drawn. Similarly, the presence of small-denomination notes on one appellant was not sufficiently distinctive to have probative value. The court also noted that approximately $400 in fifty-dollar notes said to have been taken in the robbery was never accounted for, and the Crown offered no cogent explanation for its absence.
Garling J concluded that it was not open to the jury to be satisfied beyond reasonable doubt of the appellants' guilt. All three judges agreed that a substantial miscarriage of justice had occurred, and the convictions were quashed.
Orders Made
- Leave to appeal granted to each appellant.
- Convictions of guilty for each appellant on the charge of robbery in company quashed.
- Verdict of acquittal entered in favour of each appellant on the charge of robbery in company.
Key Takeaways
- A conviction will be set aside as unreasonable where the appellate court concludes, on the whole of the evidence, that there is a significant possibility an innocent person has been convicted, even after full allowance is made for the jury's advantages.
- Where the Crown case rests largely on identification evidence, a material discrepancy between the victim's prior description of the offenders and the physical appearance of the accused at the time of identification can fatally undermine the reliability of that evidence.
- Circumstantial evidence, such as association with a co-offender or proximity to a crime scene, carries little probative weight where the timing of the offence is not established and the association has an innocent explanation consistent with the accused's denial.
- The Court of Criminal Appeal confirmed the M v The Queen test: the court must independently assess the record and ask whether it was open to a reasonable jury to convict beyond reasonable doubt, not merely whether some evidence existed upon which a conviction could theoretically rest.
- An unexplained gap in the Crown's account of stolen property, such as the absence of a significant sum of money from any of the accused, is a factor that must be addressed; failure to exclude a competing hypothesis can contribute to a finding that a verdict is unreasonable.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- TKWJ v The Queen (2002) 212 CLR 124
- Weiss v The Queen (2005) 224 CLR 300
- Regina v Habib [2005] NSWCCA 22