AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 15 March 2019

Williams v R; R v Williams

[2019] NSWCCA 53

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION EVIDENCE APPEAL AGAINST CONVICTION GRANT OF LEAVE NOT A FORMALITY

Citation: Williams v R; R v Williams [2019] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 15 March 2019
Judge(s): Gleeson JA, Schmidt J, Button J

Background

The appellant was a 20-year-old man convicted after a 17-day jury trial in the District Court of two offences arising from shooting incidents on 2 July 2016 at Tirriki Close, Buff Point on the NSW Central Coast. The offences were firing a firearm in or near a public place (s 93G(1) of the Crimes Act 1900) and discharging a firearm with intent to cause grievous bodily harm (s 33A(1) of the Crimes Act 1900). He was acquitted of a third count involving a separate drive-by shooting at Emu Drive, San Remo, earlier the same evening.

The convictions arose from a sequence of escalating confrontations. An altercation in the early hours of 2 July 2016 at a McDonald's restaurant led to a series of aggressive Facebook messages, a visit to the victim's street, and ultimately two shootings. The central issue at trial was the identity of the shooter at Tirriki Close. The appellant did not deny involvement in earlier events that day, but contested that he was the person who discharged the firearm at the relevant time.

The principal evidence identifying the appellant as the shooter came from his next-door neighbour, Ms Kent, who said she witnessed the shooting from outside her home. The Crown also relied on recognition evidence from Matthew Cooper, who had looked at the appellant's Facebook photographs before the Tirriki Close incident. The appellant had a co-accused, Brandan Randall, whose presence was also established by the evidence.

  • Whether the convictions on counts 2 and 3 were unreasonable or not supported by the evidence, applying the test from M v The Queen (1994) 181 CLR 487
  • Whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt that the appellant was the person who discharged the firearm at Tirriki Close
  • Whether the identification and recognition evidence, particularly that of Ms Kent, was sufficiently reliable to sustain the verdicts
  • Whether leave to appeal was required and, if so, whether it should be granted (leave not being a formality where no question of law alone is raised)

Decision

The Court of Criminal Appeal allowed the appeal against conviction on counts 2 and 3 and directed verdicts of acquittal. All three judges, by separate reasoning, concluded that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was the shooter at Tirriki Close.

The court applied the M v The Queen test, asking whether, having examined the evidence as a whole, it was open to the jury to be satisfied beyond reasonable doubt of guilt. The critical issue was whether Ms Kent's identification evidence could bear the weight placed upon it. The court identified a series of concerning features: Ms Kent had been the appellant's next-door neighbour for years and yet gave a description of the shooter that was more consistent with Brandan Randall than with the appellant. Her physical description, including references to height, build, and hair, aligned more closely with Randall.

Schmidt J conducted a detailed analysis of the witness's description and the circumstances of her observation. Her Honour found that Ms Kent appeared to be an honest and sincere witness, but concluded that sincerity does not guard against mistaken identification. The risk of confusion between the appellant and Randall, who were both present, could not be excluded to the required standard. Gleeson JA also expressed doubt, noting that the jury was not taken through the full transcript in the same analytical way that an appellate court could be. Button J reached the same conclusion, observing that even the most convinced and convincing identification witness may simply be wrong.

The Crown's sentence appeal was also before the court, though the acquittals on counts 2 and 3 rendered much of that ground moot. The court's primary orders addressed the conviction appeal.

Orders Made

  • Appeal against conviction on counts 2 and 3 allowed
  • Convictions on counts 2 and 3 quashed
  • Pursuant to Rule 50C of the Criminal Appeal Rules (NSW), a judgment and verdict of acquittal entered for the appellant on counts 2 and 3

Key Takeaways

  • The Court of Criminal Appeal confirmed that an appellate court must conduct an independent review of the whole of the evidence when a conviction is challenged as unreasonable under the M v The Queen test, rather than simply asking whether the jury could have been satisfied.
  • Identification and recognition evidence, even from a long-term neighbour with no apparent motive to mislead, can be insufficient to sustain a conviction where the physical description given by the witness is more consistent with another person present at the scene.
  • A sincere, unbiased, and convincing identification witness remains capable of being mistaken; the court stressed that demeanour in the witness box provides little protection against this kind of error.
  • Where two individuals are both present at a scene and share some physical similarities, the risk of misidentification between them is a matter the jury must be able to exclude beyond reasonable doubt before a conviction can stand.
  • Leave to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) is not granted as a formality where the appeal does not involve a question of law alone; the court reiterated that the threshold for leave is a substantive one.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33A(1)(a), 93G(1)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Evidence Act 1995 (NSW), s 116

Cases
- M v The Queen (1994) 181 CLR 487 (the primary test for unreasonable verdicts)
- SKA v The Queen (2011) 243 CLR 400
- MFA v The Queen (2002) 213 CLR 606
- R v Baden-Clay (2016) 258 CLR 308
- R v Turnbull [1977] QB 224 (identification warning principles)
- Morris v The Queen (1987) 163 CLR 454
- Davies v The King (1937) 57 CLR 170
- Palmer v R [2018] NSWCCA 205
- Rasic v R [2009] NSWCCA 202
- R v Trudgett (2007) 70 NSWLR 696
- Atai v R [2014] NSWCCA 210
- Cottrell v R [2012] NSWCCA 117
- Kuehne v R; Humphries M v R; Humphries A v R [2010] NSWCCA 270
- Mills v Western Australia (2008) 189 A Crim 411