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District Court 29 November 2019

Francisco v R

[2019] NSWDC 720

Theft & property
CRIME APPEAL AND REVIEW BY PERSON CONVICTED AGAINST CONVICTION DISTRICT COURT’S POWERS ON REHEARING APPLICATION OF PRINCIPLE IDENTIFICATION EVIDENCE

Citation: Francisco v R [2019] NSWDC 720
Court: District Court of New South Wales
Date: 29 November 2019
Judge: Haesler SC DCJ

Background

The appellant was convicted in the Wollongong Local Court on 16 July 2019 of two offences: intentionally or recklessly damaging property (s 195(1)(a) Crimes Act 1900) and intentionally damaging property by fire (s 195(1)(b) Crimes Act 1900). Both offences arose from an incident in the early hours of 7 May 2018, when someone punctured the tyres of a utility vehicle belonging to the appellant's former partner's father and then set the vehicle alight.

The prosecution relied primarily on identification evidence from the former partner, who said she was woken by sounds outside, looked out from her home, and recognised the appellant by his stature, movements, nose, beard, and a direct face-to-face sighting in the light of the fire. The prosecution also pointed to circumstantial evidence of motive. The appellant denied the offences and raised an alibi, stating he had spent the evening at his brother's home.

The appellant appealed to the District Court under s 18 of the Crimes (Appeal and Review) Act 2001, confining his challenge to the two property damage convictions.

  • What is the correct scope of the District Court's powers and function on a rehearing of a conviction appeal from the Local Court?
  • Whether the identification evidence was sufficiently reliable to support conviction, given the conditions of the observation and the witness's relationship with the appellant.
  • Whether the absence of forensic evidence was fatal to the prosecution case.
  • Whether the Magistrate erred in rejecting the appellant's alibi.

Decision

The District Court considered the competing authorities on the scope of its rehearing power. More recent Court of Appeal decisions require an appellant to demonstrate legal, factual, or discretionary error before the District Court may substitute its own decision. However, Haesler SC DCJ noted this controversy did not need to be resolved here because the appellant had specifically identified alleged errors. The Judge reviewed the Local Court transcript and exhibits, including the DVEC recording of the principal Crown witness and the CCTV footage.

On the identification evidence, the court carefully considered the limitations of the witness's observation: she had been woken from sleep, the area was dark, and she had a prior history of conflict with the appellant that could have predisposed her to an assumption. The court also noted that the CCTV footage, while indistinct, was consistent with her account. The Judge found her evidence reliable overall, noting the exception of her time estimate of ten seconds for the face-to-face sighting, which the CCTV suggested was shorter. That discrepancy was not treated as critical.

The court expressly applied standard identification evidence cautions: that honest and familiar witnesses can still err, that recognition of items associated with a person (a jacket, a screwdriver, a vehicle) can lead to unwarranted conclusions, and that the absence of forensic evidence was a matter to weigh in determining whether reasonable doubt existed. After applying those cautions, the court was not persuaded any error had been made by the Magistrate.

The court independently assessed the whole of the evidence and, on its own analysis, was satisfied beyond reasonable doubt that the appellant committed both offences. The appeals were dismissed and the Magistrate's orders confirmed.

Orders Made

  • Both appeals dismissed.
  • Orders of the Magistrate confirmed.

Key Takeaways

  • In dismissing the appeal, the District Court applied the approach from Dyason v Butterworth and Engelbrecht v DPP that an appellant must demonstrate legal, factual, or discretionary error before the District Court substitutes its own decision, though the court noted this principle remains contested at intermediate appellate level.
  • Where fresh evidence is not called on a s 18 rehearing, the District Court reviews the transcript and exhibits from the Local Court, draws its own inferences, and is entitled to reach conclusions differing from those of the Magistrate.
  • A witness's familiarity with the identified person does not automatically elevate the reliability of identification evidence; the court applied cautions that even familiar witnesses may err, particularly where associated objects or features create a risk of assumption rather than genuine recognition.
  • The absence of forensic evidence linking an accused to an offence is a relevant factor when assessing whether guilt has been proved beyond reasonable doubt, though its weight depends on what further investigation could reasonably have been expected to produce.
  • No error was established in the Magistrate's treatment of the alibi or her assessment of the identification evidence, and the District Court's independent review produced the same conclusion of guilt to the criminal standard.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 20
- Crimes Act 1900 (NSW), s 195(1)(a) and (b)
- District Court Act 1973 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Charara v The Queen (2006) 164 A Crim R 39
- Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218
- Dyason v Butterworth [2015] NSWCA 52
- Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
- Fox v Percy (2003) 214 CLR 118
- Gianoutis v Glykis (2006) 65 NSWLR 539