Citation: Bourke v R [2013] NSWCCA 293
Court: NSW Court of Criminal Appeal
Date: 26 November 2013
Judge(s): Hoeben CJ at CL, Blanch J, R A Hulme J
Background
The appellant was convicted on all four counts following a jury trial in July 2012. The charges arose from an armed robbery on 15 February 2011, in which two men, one carrying a baseball bat, attempted to rob a bank at Lane Cove and instead robbed two employees of personal items. The appellant was also convicted of knowingly travelling in the stolen getaway vehicle. He was sentenced to a total term of seven and a half years imprisonment with a non-parole period of four years and three months.
The Crown's case was entirely circumstantial. The prosecution relied on several categories of physical evidence connecting the appellant to the robbery, including DNA-matched sunglasses found in the getaway car, clothing items similar in style to those worn by the robbers, and a tentative photographic resemblance identification by one of the victims.
The appellant denied involvement, contending that the sunglasses found in the getaway vehicle had been lost by him during casual work in 2010. He appealed his convictions on ten grounds, including unreasonable verdict, evidentiary errors, inadequate jury directions, incompetent representation, and fresh evidence.
Legal Issues
- Whether the verdict was unreasonable or could not be supported having regard to the evidence
- Whether the trial judge erred in admitting the photographic resemblance evidence of one victim
- Whether the trial judge erred in admitting evidence of fingerless gloves and a fluoro work shirt found at the appellant's premises
- Whether the trial judge failed to carry out the required balancing exercise under s 137 of the Evidence Act 1995 when assessing probative value against unfair prejudice
- Whether the trial judge's directions on resemblance evidence and circumstantial items were adequate
- Whether the appellant received incompetent legal representation at trial
- Whether fresh evidence warranted the appeal being allowed
Decision
The Court dismissed the appeal on all grounds. On the question of the photographic resemblance evidence, Blanch J found that the trial judge had properly conducted a balancing exercise and had not erred in admitting the evidence. The victim's evidence was never tendered as a positive identification. The trial judge had explicitly directed the jury that it amounted only to resemblance, not identification, and gave detailed warnings about the unreliability of such evidence and the circumstances in which the observations were made.
On the clothing items, the Court held that the fingerless gloves and fluoro work shirt were admitted for a very limited purpose: to demonstrate that the appellant was the type of person who used such items. The evidence was not presented as establishing that the specific items were worn during the robbery. No error was established in their admission.
On the unreasonable verdict ground, Hulme J acknowledged that some individual items in the circumstantial case were not particularly compelling in isolation. However, his Honour emphasised the established principle that circumstantial cases require an assessment of the overall force of all evidence, rather than a piecemeal evaluation of each item. Having conducted that overall assessment, the Court was satisfied the evidence established guilt beyond reasonable doubt. The DNA evidence linking the appellant to the sunglasses found in the getaway vehicle, combined with the other circumstantial matters, provided a sufficient evidentiary foundation for the jury's verdict.
On the incompetent representation and fresh evidence grounds, the Court rejected both. Hulme J was notably critical of what he characterised as an "armchair appeal," observing that the grounds were devoid of merit and unrealistically ignored the real issues at trial. His Honour deprecated the making of baseless incompetence claims as a device to sidestep procedural rules governing the raising of new grounds on appeal.
Orders Made
• The appeal is dismissed.
Key Takeaways
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In a circumstantial case, the overall force of all the evidence must be assessed together rather than evaluating each piece of evidence in isolation, consistent with the principles articulated in Shepherd v The Queen (1990) 170 CLR 573.
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Evidence admitted for a strictly limited purpose, such as demonstrating that an accused person possessed items of a particular type, does not become inadmissible merely because it is not capable of proving guilt on its own.
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Resemblance evidence, as distinct from positive identification evidence, is admissible but requires clear judicial directions warning the jury of its potential unreliability and the circumstances affecting the witness's opportunity to observe.
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The Court of Criminal Appeal confirmed that a claim of incompetent trial representation, raised primarily to avoid the operation of Rule 4 of the Criminal Appeal Rules, will be firmly deprecated where it lacks a proper foundation.
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No miscarriage of justice arose simply because some items in a circumstantial case were inconclusive; where other evidence, including highly probative DNA evidence, strongly supported the verdict, the conviction was properly upheld.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules, Rule 4
Cases:
- Dupas v The Queen [2012] VSCA 320
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- Shepherd v The Queen (1990) 170 CLR 573
- M v The Queen [1994] 181 CLR 487
- MFA v The Queen [2002] 213 CLR 606
- SKA v The Queen [2011] 85 ALJR 571
- The Queen v Hillier [2007] 228 CLR 618
- Morris v The Queen [1987] 163 CLR 454
- The Queen v Keenan [2009] 236 CLR 397
- Mickelberg v The Queen (1989) 167 CLR 259
- Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326
- Rasic v R [2009] NSWCCA 202
- The Queen v Nguyen [2010] HCA 38