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Court of Criminal Appeal 26 April 2012

Ith v R

[2012] NSWCCA 70

Assault & violenceTheft & property
CRIMINAL LAW APPEAL CONVICTION DIRECTIONS ON IDENTIFICATION EVIDENCE DIRECTIONS ON EVIDENCE OF AN ACCOMPLICE LEAVE TO APPEAL OUT OF TIME DENIED

Citation: Ith v R [2012] NSWCCA 70
Court: Court of Criminal Appeal, New South Wales
Date: 26 April 2012
Judges: McClellan CJ at CL (principal judgment); Adams J and Hoeben J (agreeing)

Background

The applicant was convicted of aggravated robbery in company at Cabramatta on 1 February 2007. The offence involved following the complainant from a hotel after he was seen collecting poker machine winnings, then attacking him in the street, stealing his cash, and inflicting grievous bodily harm. The applicant was sentenced to nine years' imprisonment with a non-parole period of six years.

An accomplice, Sena Aji Dharma, was also implicated and had pleaded guilty. His evidence, along with extensive CCTV footage from the hotel and the complainant's identification evidence, formed the basis of the Crown case.

The applicant filed a Notice of Intention to Appeal in March 2009, shortly after sentencing. However, the appeal was not progressed due to the failure of his original solicitor to act expeditiously. By July 2011, the applicant sought an extension of time to file a Notice of Application for Leave to Appeal, more than two years after the original notice had lapsed.

  • Whether the trial judge's directions on identification evidence were adequate in the circumstances
  • Whether the directions regarding the accomplice's evidence were erroneous or inadequate
  • Whether the trial judge adequately directed the jury on how to use the accomplice's guilty plea
  • Whether the Crown prosecutor erred by adducing evidence of the accomplice's guilty plea and by making a submission in closing address without proper foundation
  • Whether, taken together, the circumstances amounted to a miscarriage of justice
  • Whether leave to appeal out of time should be granted

Decision

Extension of time. McClellan CJ at CL accepted that the delay in prosecuting the appeal was attributable to the applicant's former solicitor rather than to the applicant himself. Had the appeal raised an arguable case, leave to appeal out of time would have been granted. However, because the Court found the appeal to be without merit on every ground, leave was refused.

Identification directions. The trial judge directed the jury in accordance with the principles in Domican v The Queen, cautioning them about the dangers of acting on identification evidence and drawing attention to the circumstances of the complainant's identification. The Court found that the directions did not need to follow the precise terms of the bench book and that no error was established. The CCTV footage, the recovery of distinctive clothing from the applicant on arrest, and the broader circumstantial evidence significantly reinforced the identification.

Accomplice evidence directions. The trial judge gave a warning regarding Dharma's evidence as an accomplice, directing the jury about the dangers of convicting on that evidence without corroboration. The Court held the direction was adequate and that no specific formula was required, provided the substance of the warning was conveyed. The direction on the use of the guilty plea was similarly found to be sufficient in context.

Crown prosecutor's conduct. The Court considered whether the adducing of evidence about the accomplice's plea and a particular submission in closing were improper. No miscarriage of justice was found to have resulted. Reviewing all the evidence, including the CCTV footage, the clothing evidence, the accomplice's account, and the complainant's description, the Court was satisfied the conviction was sound and that no ground of appeal had merit.

Orders Made

  • Application for leave to appeal out of time refused.

Key Takeaways

  • In dismissing the application, the Court of Criminal Appeal confirmed that jury directions on identification evidence do not need to track the exact language of the bench book, provided the substance of the required warning is conveyed to the jury.
  • A failure by a solicitor to prosecute an appeal does not automatically bar an extension of time, but an extension will still be refused if the underlying appeal discloses no arguable ground.
  • Where an accomplice direction is given and its substance adequately warns the jury of the dangers of convicting on uncorroborated accomplice evidence, a departure from prescribed wording does not constitute error.
  • Strong circumstantial evidence, including CCTV footage placing the applicant at the scene and the recovery of distinctive clothing on arrest, can underpin a conviction even where direct identification evidence is qualified or uncertain.
  • No miscarriage of justice arises merely because a Crown prosecutor adduces evidence of an accomplice's guilty plea or makes a submission in closing, where the overall conduct of the trial does not produce an unfair result.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules (NSW)

Cases
- Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
- Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
- Hong v The Queen [2009] NSWCCA 242
- R v Adams [2004] NSWCCA 279
- R v Chen & Others [2002] NSWCCA 174; (2002) 130 A Crim R 300
- R v Esho; R v Sako [2001] NSWCCA 415
- R v Gonzalez-Betes [2001] NSWCCA 226
- R v Nale [2002] NSWCCA 31
- R v Sullivan [2003] NSWCCA 100
- Santo v The Queen [2009] NSWCCA 269
- Stanley v The Queen [2004] NSWCCA 278