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14
Court of Criminal Appeal 3 August 2015

Miller v R

[2015] NSWCCA 206

Also reported as (2015) 252 A Crim R 486
Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPEAL CRIMINAL APPEAL ACT 1912 (NSW) S 6(1) WHETHER MISCARRIAGE OF JUSTICE EVIDENCE CHALLENGES TO ADMISSIBILITY

Citation: Miller v R [2015] NSWCCA 206
Court: Court of Criminal Appeal, New South Wales
Date: 3 August 2015
Judges: Beazley P; Fullerton J; Hamill J

Background

The appellant was convicted by a jury on one count of dishonestly obtaining a financial advantage by deception and twenty counts of using a false instrument. The offences related to an elaborate scheme in which he impersonated a solicitor and used forged documents to raise a mortgage over an office block he neither owned nor had authority to deal with, attempting to obtain approximately $14.38 million. The trial judge described the scheme as "an audacious one, marked by meticulous planning and careful execution."

The appellant's defence at trial was a pure identity case: he argued the Crown had not proved beyond reasonable doubt that he was the person who carried out the fraud. The Crown relied on three categories of identification evidence: voice identification (from witnesses who participated in a voice parade), visual identification (from witnesses who identified the appellant in CCTV footage), and expert and lay handwriting comparison evidence.

Following conviction, the trial judge sentenced the appellant to 10 years imprisonment with a non-parole period of 6 years. The appellant challenged both the conviction and the sentence before the Court of Criminal Appeal.

  • Whether the trial judge erred in admitting voice identification evidence, including evidence obtained in circumstances where sound quality varied across recordings
  • Whether the trial judge erred in admitting visual identification evidence from witnesses who recognised the appellant in CCTV footage
  • Whether the trial judge erred in admitting expert handwriting evidence, including where the comparator samples were linked to the appellant only by circumstantial evidence
  • Whether a miscarriage of justice resulted from the jury's brief exposure to prejudicial material (Exhibit BA) that was not objected to at trial
  • Whether the jury's verdict was unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the non-parole period was manifestly excessive, and whether the sentencing judge placed excessive weight on specific deterrence

Decision

Voice identification evidence. The Court confirmed that the only precondition for admitting voice identification evidence is relevance. Once relevant, the question becomes whether the evidence ought to be excluded under s 137 of the Evidence Act 1995 (NSW), which requires exclusion where the danger of unfair prejudice substantially outweighs probative value. The Court found no such unfair prejudice arising from the recording conditions or the identification parade procedure. Weaknesses in the evidence, including variations in sound quality, were matters of weight for the jury rather than grounds for exclusion.

Visual identification evidence. The Court upheld the admission of evidence from witnesses who knew the appellant personally and were therefore better placed than the jury to identify him from CCTV footage. The footage itself and still images derived from it were also found to be relevant and admissible.

Handwriting and prejudicial material. The Court held that the handwriting evidence, including comparator samples linked to the appellant only circumstantially, was properly admitted. It was for the jury to assess whether those samples were written by the appellant and, assisted by expert opinion, whether the same person wrote the forged documents. On the question of the prejudicial exhibit, the Court was satisfied that the jury's exposure was brief, occurring within a lengthy trial, and that the unfair prejudice was limited. The trial judge committed no error in declining to discharge the jury.

Verdict and sentence. On the totality of the identification evidence, the Court found it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, and s 6(1) of the Criminal Appeal Act was not engaged. On sentence, the Court found no error in the sentencing judge's emphasis on specific deterrence given the appellant's substantial history of fraud offences, and no error in the calculation of the non-parole period.

Orders Made

  • Application for leave to appeal against sentence refused
  • Appeal against conviction dismissed

Key Takeaways

  • Under the Evidence Act 1995 (NSW), voice identification evidence is admissible provided it is relevant; an application to exclude it under s 137 must account for all circumstances including recording conditions and the identification procedure used, but weaknesses in quality go to weight rather than admissibility.
  • Visual identification evidence from witnesses who already knew the accused is admissible and may carry significant probative force, as such witnesses are better positioned than jurors to make the identification from CCTV material.
  • Handwriting comparison evidence is not rendered inadmissible simply because the comparator samples are linked to the accused only by circumstantial evidence; the question of whether to accept those samples as the accused's writing is one for the jury.
  • Brief jury exposure to prejudicial material that was not objected to at trial will not necessarily warrant discharge; the Court of Criminal Appeal assessed whether the exposure was sufficiently limited and contained that it could not have affected the verdict.
  • A sentencing court's decision to place significant weight on specific deterrence is within its discretion, particularly where the offender has a substantial history of analogous offending, and the Court of Criminal Appeal will not intervene absent demonstrated error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA(1), 300(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), ss 55, 137
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Alexander v The Queen [1981] HCA 17; 145 CLR 395
- Crofts v R [1996] HCA 22; 186 CLR 427
- Fleming v The Queen [1998] HCA 68; 197 CLR 250
- Khazaal v R [2010] NSWCC 129
- M v The Queen [1994] HCA 63; 181 CLR 487
- Maric v R (1978) 52 ALJR 631
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Adler [2000] NSWCCA 357; 116 A Crim R 38
- R v Blick [2000] NSWCCA 61; 111 A Crim R 326
- R v Brownlowe (1987) 7 NSWLR 461
- R v John [1975] Crim LR 456
- R v Riscuta [2003] NSWCCA 6
- R v Shamouil [2006] NSWCCA 112
- R v Smith (1987) 7 NSWLR 444
- R v Smith [2001] HCA 50; 206 CLR 650
- R v XY [2013] NSWCCA 12
- SKA v The Queen [2011] HCA 13; 243 CLR 400