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Court of Criminal Appeal 27 May 2015

Logan v R

[2015] NSWCCA 116

Assault & violence
APPEAL CONVICTION AGGRAVATED ASSAULT WITH INTENT TO ROB IDENTIFICATION EVIDENCE APPEAL DISMISSED

Citation: Logan v R [2015] NSWCCA 116
Court: Court of Criminal Appeal, NSW
Date: 27 May 2015
Judges: Meagher JA; Simpson J (principal judgment); Schmidt J

Background

The appellant was tried in the District Court on two counts arising from events in the Redfern and Waterloo area on the evening of 26 November 2011. The first count alleged robbery in company against one complainant; the second alleged aggravated assault with intent to rob, using corporal violence, against a second complainant attacked near a film school in Cope Street about an hour and a half later. The jury acquitted on the first count and convicted on the second. The appellant was sentenced to imprisonment for one year and nine months with a non-parole period of nine months.

The sole issue at trial was identification. The appellant did not give or call evidence. It was agreed that the offences occurred; the question was whether the prosecution evidence was sufficient to establish, beyond reasonable doubt, that the appellant was among those who attacked the second complainant.

The appellant sought leave to appeal against the conviction on one ground only: that the guilty verdict was unreasonable or unable to be supported having regard to the evidence.

  • Whether the verdict of guilty on the second count was unreasonable or unable to be supported by the evidence, within the meaning of section 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
  • Whether the CCTV footage and associated agreed facts were sufficient to identify the appellant as a participant in the assault on the second complainant beyond reasonable doubt
  • Whether the jury's acquittal on the first count was inconsistent with, or undermined, the conviction on the second count

Decision

Simpson J (with Meagher JA and Schmidt J agreeing) granted leave to appeal but dismissed the appeal. The agreed facts, placed before the jury under section 191 of the Evidence Act 1995 (NSW), confirmed that the appellant appeared on CCTV footage wearing a distinctive full-length black and white horizontally striped skirt, a white short-sleeved top, and thongs, and that she was correctly identified in the laminated stills from that footage.

The critical evidence was the CCTV footage of the Cope Street attack itself. The court carefully examined sequential footage from multiple cameras. At 10.21 pm, a group of seven women, including the appellant in her distinctive clothing, exited Redfern Railway Station. The only other woman previously seen wearing a near-identical black and white horizontally striped skirt did not appear in that footage and did not reappear thereafter. The attack footage clearly showed an attacker wearing a black and white horizontally striped skirt. A final sequence showed the appellant among a group entering a building in Pitt Street at 10.33 pm, with no other woman in that group wearing a similarly striped skirt.

From those facts, the court found it was a reasonable inference that the person in the striped skirt during the attack was the appellant. That inference was strengthened by her presence in the post-attack footage. The court was satisfied, after careful review, that the evidence established beyond reasonable doubt that the appellant actively participated in the assault on the second complainant.

On the argument based on the acquittal, Simpson J declined to draw any inference from it. The acquittal on the first count may have resulted from difficulties with the first complainant's identification evidence (she described the attacker as "African", while the appellant is Australian Aboriginal), or from other reasons entirely. The court found it inappropriate to attempt to unravel the jury's verdicts, and noted that counsel who appeared at the hearing conceded that the written submission on this point overstated the position.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed the test from M v The Queen (1994): where a verdict is challenged as unreasonable, the appellate court must ask whether it was open to the jury, on the whole of the evidence, to be satisfied of guilt beyond reasonable doubt.
  • A jury's acquittal on one count does not necessarily undermine a conviction on a related count; appellate courts will not attempt to unravel apparently inconsistent verdicts to infer that the jury's reasoning was flawed.
  • Agreed facts tendered under section 191 of the Evidence Act 1995 (NSW) can form a central plank of identification evidence where no direct witness identification is available.
  • In dismissing the appeal, the court relied substantially on its own careful examination of CCTV footage, applying the principle from SKA v The Queen (2011) that the jury holds primary responsibility for determining guilt, while the appellate court independently assesses whether conviction was open on the evidence.
  • Circumstantial identification evidence, including distinctive clothing visible across multiple CCTV sequences and the absence of any other similarly dressed person at the scene, can be sufficient to support a conviction beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW), s 191

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