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Court of Criminal Appeal 15 November 2012

ME v R

[2012] NSWCCA 237

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION IDENTIFICATION EVIDENCE

Citation: ME v R [2012] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 15 November 2012
Judge(s): McClellan CJ at CL, Rothman J, Adamson J

Background

The appellant was convicted in the District Court of robbery in company occasioning grievous bodily harm, contrary to s 98 of the Crimes Act 1900. The offence occurred at Chester Hill railway station in May 2010. Two men approached the victim on the platform, asked him for cigarettes and cannabis, and then attacked him shortly after he left the station, fracturing his eye socket and stealing his wallet and mobile phone.

The sole issue at trial was whether the appellant was one of the two men who attacked the victim. The Crown's case rested substantially on CCTV footage placing the appellant at the station and on the victim's evidence that he recognised his attackers as the same two men who had spoken with him on the platform moments earlier.

The appellant sought leave to appeal against his conviction on the basis that the jury's verdict was unreasonable or could not be supported by the evidence.

  • Whether the jury's guilty verdict was unreasonable or unsupported by the evidence, applying the test in M v The Queen and SKA v The Queen
  • Whether the victim's recognition evidence was of sufficient quality and reliability to support the conviction, given several apparent weaknesses

Decision

The Court of Criminal Appeal set out the applicable standard: it was required to make an independent assessment of all the evidence, both as to its sufficiency and its quality, and to determine whether it had a reasonable doubt as to the appellant's guilt. The court was also required to give proper weight to the jury's advantages in having seen and heard the witnesses, and to intervene only where there was a significant possibility that an innocent person had been convicted.

The appellant raised four matters said to undermine the victim's evidence: his failure to select the appellant from a photo array four days after the assault; his reference to drawstrings on the attacker's jumper when no drawstrings were visible on the relevant garment; the absence of the stolen mobile phone at the appellant's residence; and the absence of blood on the appellant's jumper when it was examined four days later.

Adamson J, with whom McClellan CJ at CL and Rothman J agreed, found that none of these matters impugned the victim's recognition evidence. The victim was not making an identification of a stranger; he was recognising men he had spoken with for several minutes immediately before being attacked. The court drew a distinction between recognition of someone already observed and the more forensically fragile identification of a stranger. Failures of peripheral memory, including the drawstring detail and the unsuccessful photo array, were consistent with trauma and the passage of time rather than with unreliable recognition.

The court also found that the CCTV footage effectively excluded the other people visible at the station in light-coloured hooded jumpers, because none of them was accompanied by a person in a red jumper, as the appellant was. The physical evidence, including the absence of blood and the mobile phone, was characterised as neutral rather than exculpatory. All three judges expressed no reasonable doubt as to the appellant's guilt.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A critical distinction exists between recognition evidence (where a witness identifies someone they have recently observed in close proximity) and stranger-identification evidence; the former carries greater inherent reliability.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that errors of peripheral detail, such as misremembering a clothing feature or failing to select the correct person from a photo array, do not necessarily undermine a witness's evidence of contemporaneous recognition.
  • The court reaffirmed the M v The Queen and SKA v The Queen standard: an appellate court conducting an unreasonable verdict inquiry must make its own independent factual assessment of the evidence's sufficiency and quality, while still according proper weight to the jury's advantages.
  • Absence of physical corroboration, such as no blood found on a garment examined four days after an assault, was treated as neutral rather than affirmatively exculpatory.
  • Sufficient evidence existed on the CCTV footage and victim's recognition to support the jury's verdict beyond reasonable doubt, having regard to the totality of the Crown case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 98
- Criminal Appeal Act 1912 (NSW), s 5(1)(b), s 6(1)

Cases
- M v The Queen [1994] HCA 63; 181 CLR 487
- SKA v The Queen [2011] HCA 13; 243 CLR 400