Regina v Nelson [1999] NSWCCA 221

New South Wales Court of Criminal Appeal CITATION : Regina v Nelson [1999] NSWCCA 221 FILE NUMBER(S) : CCA 60062/99 HEARING DATE(S) : 2 August 1999 JUDGMENT DATE : 10 August 1999

PARTIES : Regina v Robert Lloyd Nelson JUDGMENT OF : Newman J at 1; Sperling J at 2; Greg James J at 31

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0065; 97/21/0692 LOWER COURT JUDICIAL OFFICER : Grogan DCJ

COUNSEL : J I Doris (Appellant) P G Berman (Crown) SOLICITORS : Neil J O'Connor & Associates (Appellant) S E O'Connor (Crown)l CATCHWORDS : CRIMINAL LAW - picture identification evidence, whether error in not excluding - whether verdict unsafe and unsatisfactory. ACTS CITED : Evidence Act 1995, ss 115(7), 137 CASES CITED: Cook (1998) 126 NTR 17, Gipp (1998) 194 CLR 106, Jones (1997) 191 CLR 439, M (1994) 181 CLR 487, Richards (CCA (NSW), 27 November 1995, unreported) DECISION : Appeal against conviction dismissed; Application for leave to appeal against sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL 60062/99

NEWMAN J SPERLING J GREG JAMES J

Tuesday 10 August 1999 REGINA v Robert Lloyd NELSON JUDGMENT

1 NEWMAN J: I have had the advantage of reading in draft the reasons for judgment of Justice Sperling and I agree with the reasons he gives and the orders he proposes. **********

IN THE COURT OF CRIMINAL APPEAL 60062/99

NEWMAN J SPERLING J GREG JAMES J

Tuesday 10 August 1999 REGINA v Robert Lloyd NELSON JUDGMENT

2 SPERLING J: On 16 October 1998, the appellant was convicted of the following offences in a trial before Grogan DCJ and a jury: first, that on 24 June 1996 at Holsworthy he stole motor vehicle registration no. TXM 901; secondly, that on 29 June 1996 at Birrong, being armed, he assaulted Lynne Williams with intent to rob her; thirdly, that on 29 June 1996 at Birrong, being armed, he robbed John Waterson; and, fourthly, that on 29 June 1996, being armed, he robbed Marie Nicolaou. 3 So far as concerns the events of 29 June 1996, the Crown case was as follows. The accused entered the Tuckerbag Supermarket at Birrong. He held a sawn-off shotgun against Ms Williams, an employee, demanding money from a cash register. She noticed a green coloured tattoo on the back of one of the appellant's hands. The cash register failed to open. 4 Another employee, Mr Waterson, was then accosted by the appellant. Money was again demanded and was given to the appellant from one of the cash registers. 5 Another employee, Ms Nicolaou handed over further money on demand. She also noticed a green coloured tattoo on the back of one of the offender's hands. The appellant had tattoos on his hands similar to those described by the witnesses. 6 On 30 June 1996, Mr Waterson made a picture identification of the appellant from eleven photographs shown to him by the police. 7 Many months later, Ms Williams, Ms Nicolaou and another employee who was in the store at the time, Ms Pignat, each, separately, failed to make a positive identification from a video of still photographs, although Ms Nicolaou selected two of the pictures as being similar to the robber, one of which was a picture of the appellant taken on 7 August 1996 after his arrest. 8 The appellant has appealed against the convictions relating to the offences alleged to have occurred on 29 June 1996. The grounds of appeal are as follows.