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Court of Criminal Appeal 1 December 2011

Raymond George MORGAN v R

[2011] NSWCCA 257

Also reported as (2011) 215 A Crim R 33
Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION VERDICT OF GUILTY OF RECEIVING ARMED ROBBERY (2) INADMISSIBLE AS EXPERT EVIDENCE

Citation: [2011] NSWCCA 257
Court: NSW Court of Criminal Appeal
Date: 1 December 2011
Judge(s): Beazley JA, Hidden J, Harrison J

Background

The appellant was convicted on multiple counts arising from two armed robberies at hotels in Willoughby and Drummoyne in the early hours of 17 January 2008, as well as counts relating to a stolen red Audi motor vehicle. The Crown alleged the appellant was one of two robbers who used the stolen Audi as a getaway vehicle and carried out both robberies in the same evening.

A key piece of Crown evidence was testimony from an anatomist, Professor Henneberg, who compared CCTV footage of the robbery with photographs of the appellant. The appellant was also found, on arrest three months later, to be in possession of an Audi key, substantial cash, lock-picking instruments, black gloves bearing his DNA profile, a police scanner, and a crowbar matching the type used in one robbery. Despite this, he had not been in full-time employment for over three years.

On appeal, the appellant challenged the admissibility of the anatomical comparison evidence, the reasonableness of the receiving conviction relating to the Audi, and the reasonableness of the robbery convictions absent that expert evidence.

  • Whether the evidence of the anatomist (Professor Henneberg) comparing CCTV footage to photographs of the appellant was admissible as expert evidence in the context of body mapping
  • Whether the conviction for receiving the stolen Audi was unreasonable, given the evidence was equally consistent with the appellant having stolen it
  • Whether the robbery convictions were unreasonable or unsupported by the evidence once the anatomist's evidence was excluded
  • What orders were appropriate where the robbery convictions were set aside: acquittal or retrial

Decision

Body mapping evidence: The court upheld the appellant's challenge to Professor Henneberg's evidence. The anatomist had identified similarities between the physical features of a person in the CCTV footage and photographs of the appellant. The court found this evidence was inadmissible as expert evidence, following the reasoning in R v Tang [2006] NSWCCA 167. Body mapping of this kind does not satisfy the requirements for admissible expert opinion under the Evidence Act 1995.

Receiving the Audi: The court quashed the conviction for receiving the stolen Audi. The evidence, including possession of an Audi key and items consistent with car theft, was equally consistent with the appellant having stolen the vehicle as with having received it. Under established authority, where the evidence is as consistent with one offence as another, a conviction for the more specific offence cannot stand.

Robbery convictions: On this issue the court divided. Hidden J held that, with Professor Henneberg's evidence removed from consideration, the remaining circumstantial case did not rise above significant suspicion and did not prove guilt to the requisite standard. Eyewitness height estimates of the sledgehammer-wielding robber were considerably shorter than the appellant's actual height, and the remaining physical evidence was circumstantially suggestive but not conclusive. Beazley JA and Harrison J, by contrast, considered the residual circumstantial case was sufficient to support the convictions. The majority (Beazley JA and Harrison J) concluded a new trial, rather than an acquittal, was the appropriate remedy.

Orders Made

  • Conviction for receiving the stolen Audi: quashed
  • Convictions on the robbery counts (counts 3 and 4): quashed by majority, with a new trial ordered (Beazley JA and Harrison J); Hidden J would have entered verdicts of acquittal on those counts
  • The appellant was not entitled to immediate release as a sentence on a separate count (possessing proceeds of crime, count 6) remained on foot

Key Takeaways

  • The Court of Criminal Appeal confirmed that anatomical comparison evidence (body mapping), where an expert identifies physical similarities between a person in CCTV footage and photographs of the accused, is inadmissible as expert evidence in NSW criminal proceedings, following R v Tang.
  • A conviction for receiving stolen property cannot stand where the evidence is equally consistent with the accused having been the thief: the jury cannot choose between two equally open inferences to convict.
  • Where a conviction is set aside because inadmissible evidence was admitted at trial, a new trial is the appropriate remedy when the remaining admissible evidence is capable of supporting a conviction, rather than an acquittal by the appellate court.
  • The court's division on ground 5 illustrates the fine line between evidence that raises "significant suspicion" and evidence that proves guilt beyond reasonable doubt in circumstantial cases: Hidden J found the former; Beazley JA and Harrison J found the latter.
  • Applying M v The Queen (1994) 181 CLR 487, Hidden J reasoned that where an appellate court, assessing uncontested evidence and disputed expert evidence, experiences a reasonable doubt, that doubt is one the jury ought also to have experienced.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- MFA v R [2002] HCA 53; 213 CLR 606
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- R v McCarthy and Ryan (1993) 71 A Crim R 395
- R v Tang [2006] NSWCCA 167; 65 NSWLR 681
- Murdoch v The Queen [2007] NTCCA 1; 167 A Crim R 329
- Smith v The Queen [2001] HCA 50; 206 CLR 650