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Court of Criminal Appeal 15 October 2014

Hasapis v R

[2014] NSWCCA 216

Assault & violenceTheft & property
CRIMINAL LAW CONVICTION APPEAL ROBBERY IN COMPANY

Citation: Hasapis v R [2014] NSWCCA 216
Court: Court of Criminal Appeal (NSW)
Date: 15 October 2014
Judges: Macfarlan JA, Fullerton J, Hamill J

Background

The appellant was convicted after a three-day trial of robbery in company under s 97(1) of the Crimes Act 1900 (NSW). The robbery occurred at a bus shelter in Ermington in the late evening of 1 July 2011. The complainant was approached by a group of three people, comprising the appellant, his stepbrother, and a 13-year-old associate (BW), and was assaulted and robbed of his mobile telephone.

The complainant did not see the person who grabbed him from behind during the robbery. He deduced the identity of that person by process of elimination: the child was too short to reach around his neck, and the other adult was standing in front of him delivering punches. On that reasoning, the complainant attributed the restraint to the appellant.

The appellant was sentenced to 18 months imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). He appealed against conviction on the sole ground that the verdict was unreasonable having regard to the nature and quality of the evidence.

  • Whether the verdict of guilty was unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW), applying the principles in M v The Queen (1994) 181 CLR 487 and related High Court authority.
  • Specifically, whether the Crown failed to exclude the reasonable possibility that BW (the child), rather than the appellant, was the person who grabbed the complainant from behind.

Decision

The Court of Criminal Appeal dismissed the appeal. All three judges conducted independent assessments of the trial evidence, consistent with the obligation imposed by M v The Queen and confirmed in SKA v The Queen, and each concluded that the jury's verdict was well open.

Fullerton J, who delivered the leading judgment, reviewed the complainant's evidence carefully. The complainant had consistently maintained that the person who restrained him from behind was not the child, because the child was too short to reach his neck. He had given this account both in his evidence-in-chief and in his earlier police statement, made within hours of the robbery. The Court was also provided with CCTV footage from earlier that evening showing all three participants, which Hamill J described as "particularly telling" because of the "vast difference in height and stature" between the group.

The key issue at trial was whether BW, not the appellant, might have been the person who restrained the complainant. Fullerton J was satisfied that it was well open to the jury to conclude there was no reasonable possibility that BW had performed that role, given the consistent and reasoned basis for the complainant's identification by elimination.

Although there were some inconsistencies in the complainant's descriptions of the assailants, and the jury had received a Murray direction to exercise caution when assessing the complainant's evidence, neither Fullerton J nor Hamill J found those matters sufficient to create a reasonable doubt about the appellant's guilt. The advantage the jury had in seeing and hearing the complainant give evidence was also properly weighed.

Orders Made

  • The appeal against conviction is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, under the M v The Queen framework, an appellate court conducts an independent assessment of the whole of the evidence but does not conduct its own trial. A verdict will only be disturbed where it would be dangerous to allow it to stand.
  • Where identification of an offender rests on circumstantial reasoning by elimination, a jury may properly accept that reasoning if it is logically grounded and the complainant's account is otherwise accepted as reliable.
  • CCTV footage capturing physical characteristics of participants, even if recorded before the offence, can be relevant corroborating material when identity is in dispute.
  • A Murray direction cautioning the jury about a complainant's evidence does not of itself render a subsequent guilty verdict unreasonable. The verdict is assessed in light of all evidence, viewed in its totality.
  • In dismissing the appeal, the Court treated the jury's firsthand observation of the complainant's demeanour as a relevant factor, particularly where the complainant maintained his account under significant cross-examination.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Kurdi v R [2011] NSWCCA 179
- R v Murray (1987) 11 NSWLR 12