Citation: R v Leroy and R v Graham [2000] NSWCCA 302 revised – 22/08/2000
Court: NSW Court of Criminal Appeal
Date: 17 August 2000
Judge(s): Stein JA, Dunford J, Simpson J
Background
The two appellants were members of a rugby league football team from Cambridge Park who had travelled to Forster for a weekend competition in February 1997. Following games on Saturday 22 February, a group of players attended the Forster-Tuncurry Memorial Services Club. In the early hours of Sunday morning, a violent fracas erupted in the club foyer as the group was leaving, during which a club employee named Warren Woods was punched and repeatedly kicked while on the ground. He lost an eye, suffered multiple fractures, and sustained 25% brain damage to memory retention. Other staff members who intervened were also allegedly assaulted.
A key feature of the investigation was the manner in which identification evidence was gathered. No formal identification parade was conducted. Instead, a club employee attended the football competition the following day and covertly photographed members of the Cambridge Park team, purportedly for a local newspaper. Witnesses subsequently identified the appellants from those photographs.
Both appellants were tried in the District Court at Taree before Howie DCJ. Leroy was convicted of affray, maliciously inflicting grievous bodily harm on Woods, and assaulting the club manager. Graham was convicted of affray and maliciously inflicting grievous bodily harm on Woods. Both appealed against their convictions, and Graham also sought leave to appeal against his sentences.
Legal Issues
- Whether the photographic identification evidence was properly admitted at trial, given no formal identification parade had been held
- Whether the trial judge erred in refusing to limit use of a police statement under s 136 of the Evidence Act 1995, and in directing the jury that the statement could be used as evidence of the fact of kicking
- Whether the jury verdicts were unreasonable or could not be supported by the evidence
- Whether Graham's sentences were manifestly excessive
- Whether the sentencing judge erred in finding special circumstances under s 5(2) of the Sentencing Act 1989 but then failing to adjust the additional term accordingly
- Whether it was appropriate to impose cumulative (consecutive) sentences for the affray and grievous bodily harm offences, rather than concurrent sentences
Decision
Admission of photographic identification evidence: The Court upheld the trial judge's decision to admit the photographic identification evidence. Under s 114 of the Evidence Act 1995, identification evidence obtained other than by a parade is admissible where a parade was not reasonably practicable or where the defendant unreasonably refused to participate. The Court was satisfied that the admission was appropriate on the facts. More fundamentally, the Court found that the highly probative value of the identification evidence outweighed any prejudicial effect, satisfying the requirements of s 137. The absence of a formal parade went to weight, not admissibility.
Miscarriage of justice and unreasonable verdicts: The Court rejected the argument that the identification process was so flawed as to have caused a miscarriage of justice or rendered the verdicts unreasonable. The jury had been properly directed on the limitations of photographic identification evidence. In the case of Graham, the Court also found no error in the trial judge's direction concerning the use of a prior police statement; the statement was properly available to the jury as evidence of the fact in question.
Graham's sentence appeal: The Court granted leave to appeal against sentence but dismissed the appeal. The cumulative structure of the sentences was held to be appropriate, consistent with the High Court's approach in Pearce v The Queen. Making the sentences concurrent would have effectively resulted in no penalty for the affray. The severity of the grievous bodily harm, namely the kicking of a man already on the ground by multiple assailants with catastrophic consequences, justified the sentences imposed. The Court declined to adjust the balance between the minimum and additional terms, describing such an adjustment as "merely fiddling with the sentence."
Orders Made
- Appeals against conviction by both Leroy and Graham dismissed
- Leave to appeal against sentence granted to Graham; appeal against sentence dismissed
Key Takeaways
- Photographic identification evidence obtained without a formal parade can be admissible under the Evidence Act 1995, provided the probative value outweighs any prejudicial effect; the absence of a parade affects weight rather than admissibility.
- Where making sentences concurrent would result in no effective penalty for one of multiple offences arising from separate conduct, cumulative sentencing is consistent with Pearce v The Queen and the totality principle.
- A finding of special circumstances under s 5(2) of the Sentencing Act 1989 does not compel a court of appeal to intervene and redraw the balance between minimum and additional terms unless the overall sentence falls outside the proper range of sentencing discretion.
- In dismissing the unreasonable verdict ground, the Court confirmed that properly directed juries are entitled to act on identification evidence, including photographic identification, even where the identification process was irregular.
- The gravity of group violence causing permanent and severe injury, such as kicking a victim on the ground in concert with others, is a significant aggravating factor that can sustain substantial minimum terms even for offenders with otherwise good character.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 114, 136, 137
- Sentencing Act 1989 (NSW), s 5(2)
Cases:
- Pearce v The Queen [1998] HCA 57
- R v Blick [2000] NSWCCA 61
- R v Clout (1995) 41 NSWLR 312
- R v (Kerrie) Clarke (1997) 97 A Crim R 414
- R v Moody (CCA, 1 April 1997)
- R v Adam [1999] 47 NSWLR 267
- R v GAC (CCA, 1 April 1997)