AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 10 June 2011

Joshua Maher v Regina

[2011] NSWCCA 97

Assault & violenceTheft & property
CRIMINAL LAW LEAVE TO APPEAL AGAINST CONVICTION SET ASIDE JURY VERDICT UNSATISFACTORY DEMEANOUR OF THE WITNESS OBVIOUS UNWILLINGNESS OF WITNESS

Citation: Joshua Maher v Regina [2011] NSWCCA 97
Court: Court of Criminal Appeal, New South Wales
Date: 10 June 2011
Judges: McClellan CJ at CL; Davies J; Grove AJ

Background

Following a jury trial in the Parramatta District Court before Hughes DCJ, the appellant was convicted of aggravated breaking and entering and committing a serious indictable offence, specifically assault occasioning actual bodily harm upon the nominated victim. He had been acquitted by direction on a second, similar count. After conviction in February 2010, he was sentenced in August 2010 to one year's imprisonment, suspended on good behaviour conditions.

The alleged offence took place in the early hours of 15 November 2008 at a house in St Marys. A group of intruders entered the premises and attacked two men watching a film. The appellant denied being among the intruders. The Crown case depended on the testimony of witnesses who had been present that night.

The appellant appealed to the Court of Criminal Appeal on the ground that the jury's verdict was unreasonable and could not be supported by the evidence.

  • Whether the verdict was unreasonable or could not be supported having regard to the whole of the evidence, applying the test in M v The Queen (1994) 181 CLR 487
  • Whether the identification evidence of the Crown witnesses was sufficient to establish beyond reasonable doubt that the appellant was present and participated in the offence

Decision

Grove AJ (with whom McClellan CJ at CL and Davies J agreed) allowed the appeal. The court applied the established principle from M v The Queen that the relevant question is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The court acknowledged the obligation of restraint before disturbing a jury verdict, as confirmed in MFA v The Queen, but concluded that obligation could not be maintained in the circumstances of this case.

The nominated victim himself provided no inculpating evidence against the appellant. He had not identified the appellant in his original police statement, and when he did purport to identify the appellant at an earlier (aborted) trial, he subsequently retracted that identification and described it as an honest mistake. His evidence was therefore entirely neutral on the question of the appellant's presence.

The evidence of the first witness, KT, was equivocal at best. Her account shifted repeatedly between events at different times during the night. At various points she said she was not sure whether a person she saw was the appellant, described him only as someone who "looked just like him," and could provide no clothing description. Her answers about whether she was sure of the identification were internally inconsistent throughout her examination.

The evidence of the second witness, TP, was similarly unreliable. Her account was marked by contradictions, uncertainty, and what Grove AJ characterised as obvious unwillingness to engage seriously with the task of giving evidence. Her statement had been prepared from memory only days before trial, more than a year after the events, and her recollections were those of a very young person who had consumed alcohol and had been asleep at the relevant time. The court held it would be dangerous to rely on her identification of the appellant. Even noting weaknesses in the defence case, including the appellant's admission that he had lied to police and contradictions in the alibi evidence, those matters could not remedy the fundamental deficiency in the Crown's positive identification of the appellant as one of the intruders.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • Verdict and judgment of acquittal entered on the remaining count on the indictment

Key Takeaways

  • A conviction will be set aside as unreasonable where the Crown identification evidence is so unreliable, contradictory, and equivocal that no jury acting on the whole of the evidence could properly be satisfied of guilt beyond reasonable doubt.
  • The Court of Criminal Appeal confirmed that the obligation of restraint before disturbing a jury verdict, recognised in MFA v The Queen, does not prevent intervention where the identification evidence is fundamentally deficient.
  • Where the nominated victim himself disavows any identification of the accused, and the remaining witnesses give inconsistent and uncertain accounts, the cumulative deficiency in the Crown case cannot be remedied by weaknesses in the defence case.
  • Unreliable demeanour, internally inconsistent answers, a capacity for recall that was genuinely doubtful, and obvious reluctance to engage with questioning were all factors the court treated as rendering identification evidence unsafe.
  • Evidence that an accused lied to police or that alibi evidence was contradicted does not, of itself, supply the positive identification evidence the Crown is required to establish.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606