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District Court 30 September 2015

Warren Brent Landsman v R

[2015] NSWDC 223

Assault & violence
CONVICTION APPEAL CIRCUMSTANTIAL CASE IDENTIFICATION EVIDENCE

Citation: Landsman v R [2015] NSWDC 223
Court: District Court of New South Wales
Date: 30 September 2015
Judge: Mahony SC DCJ

Background

The appellant was convicted in the Local Court on 7 December 2012 of two counts of assault occasioning actual bodily harm under s 59 of the Crimes Act 1900 (NSW). The offences arose from a street incident on Victoria Street, Potts Point, in which two men walking in one direction bumped into, and then attacked, two men walking the other way. The victims, Mr O'Connor and Mr Dryburgh, were punched, with Mr Dryburgh being knocked unconscious and Mr O'Connor rendered unaware of what had happened to him.

The appellant challenged his conviction on the sole ground that the identification evidence was insufficient to prove, beyond reasonable doubt, that he was the offender. There was no dispute that the assaults themselves occurred, nor was there any appeal against the sentence imposed.

The District Court heard the appeal by way of re-hearing based on the Local Court transcript. Consistent with the principles applicable to such appeals, the judge formed an independent view of the facts while acknowledging the advantage the Magistrate had in seeing and hearing the witnesses directly.

  • Whether the totality of the identification evidence was sufficient to establish beyond reasonable doubt that the appellant was the offender who committed the assaults.
  • Whether the circumstantial evidence, including CCTV footage, photographs taken earlier in the evening, witness descriptions, and telephone intercepts, could support the Magistrate's identification finding.
  • Whether inconsistencies in the witnesses' descriptions of the offender undermined the reliability of the identification evidence to a fatal degree.

Decision

The central question before the District Court was identification. The victims' direct descriptions of the offender were limited. Mr O'Connor described a male of approximately five feet eleven to six feet, around 88 to 93 kilograms, with brown surfy hair, wearing what appeared to be school uniform (white collared shirt and grey pants), and of white Australian ethnicity, aged between 20 and 24. Mr Dryburgh's description was far less detailed, noting only that the men had dark hair and one appeared stockier than himself.

The Crown's case was largely circumstantial. CCTV footage captured an associate of the appellant, Mr Abrams, walking along Victoria Street at the relevant time alongside a person partially visible and wearing what appeared to be school uniform. The Crown relied on photographs taken of the appellant earlier that evening, including group photographs at a hotel and at a club, to argue inferentially that the person shown in the CCTV footage alongside Mr Abrams was the appellant. An independent witness, Mr Salem, also gave identification evidence, though with some inaccuracies: he described the appellant as wearing an earring rather than an eyebrow piercing, and as clean-shaven when photographs showed some stubble.

The court found that those inconsistencies, while noted, were not determinative when weighed against the entirety of the evidence and the circumstances of the observation, namely a violent, brief incident at night. The court rejected the appellant's submission that the direction of travel of the persons in the CCTV footage was inconsistent with the Crown's case, and also rejected the argument that the decision in R v Phan (which concerned misdirection on common enterprise in a murder trial) assisted the appellant here.

Having regard to all the evidence together, the court was satisfied beyond reasonable doubt that the appellant was the offender and that no other reasonable conclusion was consistent with the established facts. The appeal was dismissed and the conviction confirmed on both charges.

Orders Made

  • The appeal is dismissed.
  • The conviction of the appellant on both charges is confirmed, along with the orders made by the learned Magistrate.

Key Takeaways

  • In a conviction appeal conducted by re-hearing on the transcript, the appellate court forms its own view of the facts but must account for the natural limitations of not having seen the witnesses give evidence in person.
  • A circumstantial identification case can be sufficient to prove guilt beyond reasonable doubt, even where direct eyewitness identification is limited or qualified, provided the totality of the evidence leads to no other reasonable conclusion.
  • Inconsistencies in a witness's description of an offender, such as confusing an eyebrow piercing with an earring or misremembering whether a person was clean-shaven, do not automatically undermine the identification finding; they fall to be weighed against all other evidence in context.
  • The District Court confirmed that CCTV footage and photographic evidence taken before and during an evening, when combined with witness descriptions, can form part of a proper circumstantial case as to identity.
  • Where the only live issue is identification of the offender, and all other elements of the offences are conceded, the court's entire analysis is directed to whether that single element is proved beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 59 (assault occasioning actual bodily harm)
- Criminal Procedure Act 1986 (NSW) s 133
- Evidence Act 1995 (NSW) ss 38 and 165

Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Charara v The Queen [2006] NSWCCA 244
- Mohan v R [1967] 2 AC 187
- R v Clough (1992) 28 NSWLR 396
- R v Hillier (2007) 228 CLR 618
- R v Phan (2001) 53 NSWLR 480