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Court of Criminal Appeal 8 November 2019

Brown v R

[2019] NSWCCA 269

Assault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION IDENTIFICATION EVIDENCE WARNINGS UNREASONABLE VERDICT

Citation: Brown v R [2019] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 8 November 2019
Judge(s): Payne JA (primary reasons); Davies J (agreeing); Hidden AJ (agreeing)

Background

The appellant was convicted by jury in the District Court of multiple offences arising from a violent altercation near Ward Avenue and Bayswater Road, Potts Point, shortly after 3am on 19 July 2015. The offences included common assault on three individuals, assault occasioning actual bodily harm on a fourth victim, and affray. The trial judge sentenced the appellant to an aggregate term of three years' imprisonment with a non-parole period of 18 months.

The Crown's case rested substantially on eyewitness identification. Two key witnesses described the main aggressor as the only Caucasian male involved in the fracas. At the time police arrived, the appellant was found nearby with a co-accused and was described as agitated, breathing heavily, and with clenched fists. The co-accused, Mr Idris, was acquitted by the jury.

The appellant challenged both the adequacy of the trial judge's identification warning and the reasonableness of the verdicts. The co-accused's acquittal and confusing identification evidence about him formed part of the backdrop to the appeal arguments.

  • Whether the trial judge's direction to the jury on identification evidence satisfied the requirements established in Domican v The Queen (1992) 173 CLR 555, particularly given the warning must be given both prominently and at a point in the summing-up where it will be effective
  • Whether the verdicts of guilty were unreasonable or unable to be supported by the evidence, having regard to discrepancies in the eyewitness accounts and the co-accused's acquittal

Decision

Ground 1: Adequacy of the identification warning. The Court of Criminal Appeal refused leave to appeal on this ground under Rule 4 of the Criminal Appeal Rules. Payne JA found the trial judge delivered a strong and prominent identification warning consistent with the Domican requirements. The warning was given at an appropriate point in the summing-up and adequately directed the jury to the dangers of acting on eyewitness identification evidence.

Ground 2: Unreasonable verdict. Leave to appeal was granted on this ground, but the ground was dismissed. The Court applied the standard from M v The Queen (1994) 181 CLR 487, asking whether, having regard to all the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. The Court found the critical and consistent feature of the evidence was that there was only one Caucasian male acting as an aggressor throughout the entire incident. The appellant was identified as that person, was found nearby immediately afterwards in an agitated state, and his clothing matched descriptions given by multiple witnesses.

Payne JA considered the discrepancies within and between the eyewitness accounts but concluded these were consistent with witnesses observing a sudden outbreak of violence in chaotic circumstances late at night. All discrepancies were put to the jury through defence counsel's closing address and the trial judge's directions. The Court also rejected the argument that the appellant's brief telephone call to his girlfriend around the time of the incident precluded his involvement. Sufficient time existed between the call and police arrival for the offending to have occurred.

The Court further found no error in the jury separately considering the cases against each accused. The jury's verdict of acquittal for the co-accused, alongside conviction of the appellant, reflected a proper independent assessment rather than any impermissible comparison.

Orders Made

  • Application for leave to appeal on ground 1 refused under Rule 4 of the Criminal Appeal Rules
  • Leave to appeal granted on ground 2
  • Ground 2 dismissed
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a Domican warning on identification evidence must be given both prominently and at an effective point in the summing-up, but found no departure from those requirements on the facts of this case.
  • Discrepancies between eyewitness accounts in a fast-moving, late-night altercation do not automatically undermine the reasonableness of a guilty verdict, particularly where those discrepancies are fully ventilated before the jury.
  • In applying the unreasonable verdict test from M v The Queen, the court examined whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt. The consistent identification of a single Caucasian male aggressor throughout multiple eyewitness accounts was treated as a central and reliable feature.
  • A co-accused's acquittal does not, of itself, render a guilty verdict against another accused unreasonable. The Court found the jury had properly considered each case separately and reached independent conclusions.
  • Circumstantial post-incident conduct, including an agitated demeanour, heavy breathing, clenched fists, and immediate denials upon arrest, formed part of the evidence the jury was entitled to weigh alongside eyewitness identification.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(1), 59(1), 59(2), 61, 93C(1)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158(1)
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW), ss 116, 165

Cases:
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- R v Nguyen (2010) 242 CLR 491; [2010] HCA 38
- ARS v R [2011] NSWCCA 266
- Greenhalgh v R [2017] NSWCCA 94