Citation: Regina v Hennessy [2001] NSWCCA 36
Court: New South Wales Court of Criminal Appeal
Date: 27 February 2001
Judge(s): Spigelman CJ, O'Keefe J, Barr J
Background
The appellant was convicted in the District Court on four charges arising from two separate armed robberies committed within a fortnight of each other in October 1997. The first involved a hold-up at a bank in Wetherill Park, where multiple witnesses identified the appellant as the offender. The second involved a robbery at a building society branch in Unanderra, during which the offender discharged a pistol and seriously wounded a staff member.
In each robbery the offender fled in a stolen motor vehicle driven by an accomplice, giving rise to two additional charges of larceny of a motor vehicle. The appellant was sentenced to 12 years imprisonment with an additional term of four years.
The appellant challenged both his conviction and the sentence on nine grounds, including the refusal of separate trials, the admissibility of security camera footage and photographs, directions given to the jury, the sufficiency of the verdicts, and the weight given to his prior criminal history in sentencing.
Legal Issues
- Whether the trial judge erred in refusing to order separate trials for each pair of counts
- Whether the trial judge erred in directing the jury on similar fact (tendency) evidence connecting the two robberies
- Whether security camera photographs taken at the scene of the second robbery were admissible, and whether they engaged the special rules for "picture identification evidence" under ss 115 and 116 of the Evidence Act 1995
- Whether adequate directions were given to the jury regarding the dangers of identification evidence
- Whether the directions on possession of an offensive weapon, circumstantial evidence, and the elements of motor vehicle larceny were sufficient
- Whether the verdicts were unsafe and unsatisfactory
- Whether the sentence was excessive, having regard to the appellant's criminal history, the absence of a finding of special circumstances, and the prospect of maximum-security classification
Decision
Separate trials and similar fact evidence (Grounds 1 and 2)
The trial judge identified ten points of similarity between the two robberies, including the use of a stolen getaway vehicle driven by an accomplice and the manner in which the offences were carried out. The Court of Criminal Appeal found these similarities were sufficient to justify a joint trial. The court also found that the directions given on similar fact evidence were adequate and that no relevant error in the judge's directions under the principles from Sutton v The Queen had been established.
Security camera photographs and the Evidence Act (Grounds 3 and 4)
The court held that ss 115 and 116 of the Evidence Act 1995, which govern "picture identification evidence," had no application to the security camera photographs. Spigelman CJ reasoned that the photographs constituted real evidence of the robbery itself: no witness gave identification evidence based on them, and no identification process involving pictures had occurred. The sections govern the tender of "picture identification evidence," not pictures generally. The trial judge also gave the jury a strong direction about the dangers of using photographic material for identification purposes, and the court found no cause for complaint in that respect.
Remaining conviction grounds (Grounds 5 to 8)
The court dismissed the remaining grounds relating to directions on weapon possession, circumstantial evidence, the elements of motor vehicle larceny, and the safety of the verdicts. No sufficient error was identified in the trial judge's handling of any of these matters.
Sentence (Ground 9)
The Court of Criminal Appeal upheld the sentence. Drawing on Veen v The Queen (No 2), the court affirmed that an offender's antecedent criminal history is a legitimate sentencing consideration to the extent it illuminates moral culpability, reveals a dangerous propensity, or demonstrates a continuing attitude of disobedience of the law, provided the penalty remains proportionate to the instant offences. The court noted the offences were planned, were committed less than a month after the appellant's release from prison for like offences, and showed complete disregard for those terrorised and for the victim who was shot. The sentence was found to be appropriate.
Orders Made
- Appeal against conviction dismissed
- Appeal against sentence dismissed
Key Takeaways
- Sections 115 and 116 of the Evidence Act 1995 apply to "picture identification evidence," meaning evidence of an identification made by a person examining pictures. Security camera footage capturing the commission of an offence is real evidence of that event, not identification evidence, and those provisions do not govern its admissibility.
- Where ten points of similarity existed between two robberies, including method of escape and use of accomplices, the Court of Criminal Appeal confirmed that a joint trial was appropriate and that the similar fact directions required no departure from established principle.
- Antecedent criminal history is a relevant sentencing factor under Veen v The Queen (No 2) to the extent it shows a continuing attitude of disobedience, dangerous propensity, or the need for deterrence, but it cannot produce a penalty disproportionate to the gravity of the instant offences.
- Reoffending within weeks of release from prison for equivalent offences is a factor that strengthens the sentencing objectives of retribution, deterrence, and protection of society.
- No error was established in the trial judge's directions on circumstantial evidence, possession of an offensive weapon, or the elements of motor vehicle larceny, and the verdicts were not found to be unsafe or unsatisfactory.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 115, 116 and Dictionary
Cases
- Hoch v The Queen (1998) 165 CLR 292
- Martin v Osborne (1936) 55 CLR 367
- Pfennig v The Queen (1995) 182 CLR 461
- R v Malcolm John McDonald (NSW CCA, 12 October 1998, unreported)
- Sutton v The Queen (1984) 152 CLR 528
- Veen v The Queen (No 2) (1988) 164 CLR 465