Citation: REGINA v. STONES [2000] NSWCCA 341
Court: Court of Criminal Appeal, New South Wales
Date: 29 August 2000
Judge(s): Foster AJA, Dunford J, Greg James J
Background
The appellant was convicted in the Sydney District Court on two counts: armed robbery of a jewellery store at Turramurra on 29 April 1998, and allowing himself to be carried in a motor vehicle knowing it had been taken without the owner's consent. The robbery involved a knife and resulted in the theft of jewellery and cash from the store owner. The appellant was sentenced to a minimum term of four and a half years and an additional term of two and a half years for the armed robbery, with a concurrent fixed term of one year for the vehicle offence.
The case against the appellant rested substantially on identification evidence. Two witnesses, including the robbery victim (Mr Thearle) and a bystander (Mr Herbert), each identified the appellant from photographic identification procedures. The stolen vehicle, later located near the scene, contained a knife consistent with the one used in the robbery, and a newspaper bearing the appellant's thumbprint.
On appeal, the appellant challenged both the conviction and the sentence, contending that the jury's verdicts were unsafe and that the sentence for armed robbery was manifestly excessive.
Legal Issues
- Whether the jury's verdicts were unreasonable or could not be supported by the evidence, such that the appellant ought to have been acquitted on the ground of reasonable doubt
- Whether the identification evidence was sufficiently reliable to sustain the convictions
- Whether the sentence imposed for armed robbery was manifestly excessive in light of the appellant's age, limited prior criminal history, and drug addiction
Decision
The Court applied the standard from section 6(1) of the Criminal Appeal Act 1912, which requires an appellate court to ask whether, having regard to all the evidence and making full allowance for the advantages of the jury at trial, there is a significant possibility that an innocent person has been convicted. Greg James J, with whom Foster AJA and Dunford J agreed, found no basis for such a doubt.
The identification evidence was the central issue. Mr Herbert had observed the appellant at close quarters, noted his distinctive clothing, and recorded the vehicle's registration number. He later identified the appellant from a photographic identification video shown to the jury. Mr Thearle similarly identified the appellant, having observed him closely both before and during the robbery. The Court noted that the jury had the benefit of watching both the identification video and footage of the witness making his identification.
The appellant's counsel raised the possibility of confusion arising from another man, Paul Edgar, who bore some resemblance to the appellant and had been active in the same area around the same dates. The Court rejected this as a basis for doubt, noting that the independent identification of the appellant by two witnesses, combined with his thumbprint on a newspaper found in the stolen vehicle, together provided cogent and mutually reinforcing evidence.
On sentence, the Court found no error in the sentencing judge's approach. Her Honour had applied the guideline judgment in Regina v Henry and identified aggravating features, including the absence of a guilty plea, the substantial value of property taken, the commission of the offence while on a recognizance, and the concurrent sentencing for other offences. The Court considered the sentence to be plainly within the appropriate range.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Sentence appeal dismissed
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the "unsafe and unsatisfactory" formula is best avoided, with appellants instead required to identify the particular ground of miscarriage under section 6(1) of the Criminal Appeal Act 1912 with specificity.
- The appellate test requires the court to consider, after making full allowance for the jury's advantages at trial, whether there is a significant possibility that an innocent person has been convicted; a mere theoretical alternative explanation does not satisfy that threshold.
- Convergent identification evidence from two independent witnesses, each having observed the accused at close range, supported by physical evidence linking the accused to the scene, was found sufficient to sustain conviction beyond reasonable doubt.
- The existence of another person bearing some resemblance to the accused did not generate a reasonable doubt where the primary identification witnesses had adequate opportunity to observe and had independently and consistently identified the appellant.
- Under the guideline in Regina v Henry, the absence of a guilty plea, the value of property taken, offending on a recognizance, and concurrent sentencing for related offences were treated as aggravating factors justifying a sentence above the guideline range for armed robbery.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
- Crimes Act 1900 (NSW), s 154A
Cases:
- Fleming v The Queen (1998) 158 ALR 379
- The Queen v Giam (1999) 104 A Crim R 416
- Regina v M (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Regina v Henry (1999) 46 NSWLR 346