Citation: Regina v Maklouf [1999] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 23 June 1999
Judge(s): Wood CJ at CL; Hidden J; Smart AJ
Background
The appellant was convicted in the District Court of assaulting a taxi driver with intent to rob him, contrary to s 97(1) of the Crimes Act 1900 (NSW). The Crown case was that in the early hours of 22 November 1996, the appellant and another man entered the taxi in Sydney's CBD and directed the driver to Petersham, where the driver was threatened with what appeared to be a gun and told to hand over money.
A critical plank of the Crown case was photographic identification evidence. The taxi driver attended Petersham police station in February 1997 and was shown a bundle of 26 photographs. He identified the appellant in two photographs, both taken outside the Downing Centre court complex. The appellant had declined to participate in an identification parade.
The appellant appealed his conviction on four grounds, all centred on the conduct of the trial below: the admission of the photographs, the absence of a jury warning about picture identification, an alleged misstatement of evidence in the summing-up, and an unsafe and unsatisfactory verdict.
Legal Issues
- Whether the trial judge wrongly exercised the discretion to admit photographs of the appellant that showed the Downing Centre court precinct in the background
- Whether the trial judge was required, without any request from the defence, to give a jury warning about picture identification evidence under s 115(7) of the Evidence Act 1995 (NSW)
- Whether the trial judge misstated the evidence when summing up to the jury
- Whether the verdict was unsafe and unsatisfactory, requiring the Court of Criminal Appeal to conduct an independent review of the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW)
Decision
Admission of the photographs. The Court held that the trial judge's discretion did not miscarry. The photographs were not suggestive of a café associated with a court building, and it was improbable that the jury would have reasoned from the background that the appellant had any prior involvement with the criminal law. The Court also found no appreciable risk of unfairness from the bundle containing two photographs of the appellant: other individuals also appeared more than once, and showing both a full-face and a profile shot of the appellant carried a specific identification advantage. Hidden J noted, however, that it is generally undesirable for a photographic array to include the suspect alongside an alleged co-offender, or to include more than one photograph of the suspect, and that every effort should be made to avoid photographs appearing to have been taken in court precincts.
The identification warning. Leave to argue the absence of a s 115(7) warning was refused, because no such warning was sought at trial. The Court explained that s 115 of the Evidence Act is specifically directed at problems associated with "mug shots." The obligation in s 115(7) to give a warning is triggered by a request from the accused; without such a request, the discretions in ss 137 and 165 to exclude evidence or give warnings provide sufficient protection. The Court further observed that giving a warning in this case would likely have backfired on the appellant, as it would have risked inviting the jury to suspect the very things the warning was meant to dispel.
Misstatement of evidence. Leave to argue this ground was also refused, as no point had been taken at trial. The Court noted that the evidence was consistent with the way the trial judge had summarised it, and in any event was fresh in the jury's minds, having been given the day before the summing-up.
Unsafe and unsatisfactory verdict. After an independent review of the evidence, the Court was not persuaded that the jury ought to have entertained a reasonable doubt. The identification evidence was positive and unshaken, the jury received strong and comprehensive warnings, and the appellant called no evidence. The Court afforded full respect to the jury's advantage in seeing and hearing the taxi driver give evidence, applying the principles from Chidiac, M, and Jones.
Orders Made
- Appeal dismissed
- Conviction and sentence confirmed
Key Takeaways
- Under s 115(7) of the Evidence Act 1995 (NSW), a trial judge is not obliged to give a jury warning about picture identification evidence in the absence of a request from the accused; the protective discretions in ss 137 and 165 are available to fill any gap.
- A conviction will not be set aside on the ground of an alleged misdirection where no objection was taken at trial and leave to argue the ground on appeal is required; the Court of Criminal Appeal may refuse leave where no real unfairness arises.
- In dismissing the unsafe-verdict ground, the Court affirmed that where identification evidence is positive and unshaken and the jury has received strong warnings, the appellate court should give full weight to the jury's advantage in assessing the witness.
- Admission of photographs taken near court precincts did not automatically render a trial unfair, but Hidden J flagged as undesirable the inclusion of more than one image of a suspect, or an image showing the suspect alongside an alleged co-offender, in a photographic array.
- Declining to participate in an identification parade does not prevent the Crown from using photographic identification evidence; however, the manner in which photographs are compiled and presented remains subject to scrutiny under the court's exclusionary discretions.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Evidence Act 1995 (NSW), ss 115(7), 137, 165
- Criminal Appeal Act 1912 (NSW), s 6(1)
Cases
- M (1994) 181 CLR 207
- Jones (1997) 72 ALJR 78
- Chidiac (1991) 17 CLR 432