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Court of Criminal Appeal 24 May 2013

R v Shoesmith

[2013] NSWCCA 127

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL ARMED ROBBERY TRIAL DIRECTIONS ALIBI VOICE RECOGNITION

Citation: R v Shoesmith [2013] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 24 May 2013
Judge(s): Price J (at [1]), Davies J (at [68]), Barr AJ (at [69])

Background

The appellant was convicted in the District Court of armed robbery and threatening injury with intent to hinder lawful apprehension, following a robbery at a newsagency on Australia Day 2011. The offender wore a balaclava, carried a gun, took $70 from the till, and fled to a waiting vehicle. No witness could identify the offender's face.

The Crown's case rested heavily on identification evidence from an 11-year-old boy, CP, who lived nearby. CP did not see the offender's face but claimed to recognise the offender's voice as that of the appellant, a family friend he had known since childhood. CP also said the offender's shoes matched a pair he had seen the appellant wearing the weekend before.

The appellant ran an alibi defence, calling three witnesses who testified he was with them in Sussex Inlet on Australia Day. He also pointed to the absence of any witness observation of gloves on the robber, despite the appellant having visible tattoos across the backs of his hands.

  • Whether the trial judge's directions to the jury on alibi evidence contained legal error
  • Whether the verdicts of guilty were unreasonable and could not be supported by the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912

Decision

The Court of Criminal Appeal upheld the appeal on the ground of unreasonable verdict, making it unnecessary to determine the alibi directions ground conclusively.

On the voice identification issue, Price J noted that identification of a voice is notoriously prone to error, which is why juries receive specific directions to exercise special caution before accepting such evidence. CP had limited familiarity with the appellant, having encountered him only a handful of times at shops, at the appellant's house, and at family gatherings. The offender was running away from CP when he yelled, and the recognition turned on the appellant's distinctive use of the word "car" and his general manner of expression.

The shoe identification was also problematic. CP described the offender as wearing gold Asics runners identical to a pair he had seen the appellant wearing the previous weekend. However, Mrs Kirmaier, who was approximately half a metre from the running offender, described dirty white old joggers. At the time of arrest, the appellant was wearing black and silver Asics and denied ever owning a gold pair. The shoe evidence did not sit comfortably with the other trial evidence.

Weighing the fragility of the voice recognition, the inconsistency in the shoe evidence, and the alibi evidence from three witnesses who were adamant the appellant was on a boat in Sussex Inlet that day, Price J concluded there was a reasonable possibility CP was mistaken. A jury acting reasonably must have entertained a reasonable doubt as to guilt. Davies J and Barr AJ agreed.

Orders Made

  • Appeal upheld and conviction quashed
  • Verdict of acquittal entered

Key Takeaways

  • Voice recognition evidence carries an acknowledged risk of error, and a conviction resting substantially on such evidence will not stand where a careful review of the evidence discloses a reasonable possibility of mistaken identification.
  • Under s 6(1) of the Criminal Appeal Act 1912, an appellate court may set aside a verdict as unreasonable where, having examined the evidence, it concludes that a jury acting reasonably must have entertained a reasonable doubt as to guilt.
  • Inconsistencies between a key witness's identification evidence and the observations of other eyewitnesses on the same point can undermine the reliability of that identification, even where the witness is otherwise sincere.
  • The Court of Criminal Appeal did not merely identify weaknesses in individual pieces of evidence in isolation; it assessed the cumulative effect of fragile voice recognition, conflicting shoe descriptions, and a consistent alibi case when reaching its conclusion.
  • Where an appellate court upholds a verdict-unreasonableness ground, it enters a verdict of acquittal rather than ordering a retrial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(b), 97(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
- R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527
- R v Small (1994) 33 NSWLR 575
- Rasic v R [2009] NSWCCA 202
- Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326
- SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
- The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618
- The Queen v Keenan [2009] HCA 1; (2009) 236 CLR 397
- The Queen v Nguyen [2010] HCA 38; (2010) 85 ALJR 8