Regina v Pera [2000] NSWCCA 109

New South Wales Court of Criminal Appeal

CITATION : Regina v Pera [2000] NSWCCA 109 FILE NUMBER(S) : CCA 60503/99 HEARING DATE(S) : Friday 17 March 2000 JUDGMENT DATE : 17 March 2000

PARTIES : Regina v Benjamin Pera JUDGMENT OF : Spigelman CJ at 14; Grove J at 1; Hidden J at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0502 LOWER COURT JUDICIAL Keleman DCJ OFFICER :

COUNSEL : M. Grogan (Crown/Appellant) J.C. Nicholson SC & E.H. Baskerville (Respondent) SOLICITORS : S.E. O'Connor (Crown/Appellant) T.A. Murphy (Respondent) CATCHWORDS : Criminal Law and Procedure - Pre-Trial Ruling in District Court - Exclusion of Some Identification Evidence - Other Evidence Available to Crown - Whether Appeal Against Interlocutory Ruling Lies LEGISLATION CITED : Criminal Appeal Act 1912 Evidence Act 1995 R v Steffan 1993 30 NSWLR 633 CASES CITED: R v Bozatsis 1997 97 A Crim R 296 R v Lissoff Unreported CCA 22 November 1999 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60503/99

SPIGELMAN CJ GROVE J HIDDEN J

Friday 17 March 2000

REGINA v BENJAMIN PERA

JUDGMENT 1 GROVE J: This is an appeal by the Crown pursuant to s5F of the Criminal Appeal Act challenging rulings made before trial by Keleman DCJ. In substance, those rulings indicated the intended rejection of evidence of visual identification of the Respondent by a witness named Kazal, and secondly, evidence of a subsequent identification of the Respondent by the same witness from a photographic display shown to him by police about four and a half months later. A preliminary point has been taken as to whether the jurisdiction of this Court pursuant to s5F can be enlivened. 2 The events out of which the Respondent was charged took place shortly after 3am on Sunday morning, 6 April 1997. It suffices for present purposes to give but a brief outline of those facts. 3 What can be described as a brawl took place in the vicinity of the Criterion Hotel in Park Street, City. Participants were said to include a number of men of Pacific Islander appearance. It can be accepted that the Respondent is a person of that appearance. A number of bystanders attempted to intervene and the group of men of islander appearance moved on into the Hyde Park area. They were apparently joined by further men of similar appearance. They were accosted by, amongst others, a security guard and the man Mr Kazal, whom I have mentioned. The security guard was attacked and rendered unconscious and Mr Kazal was engaged in fisticuffs with one of the men. 4 Police came into the vicinity and, at about 4am, four men including the Respondent were seen to emerge from streets in the vicinity of William Street, which is, in effect, an extension of Park Street. These men were stopped by police and required to place their hands on the police vehicle. They were searched and then directed to stand nearby with their hands against a shop window. In the meantime, Mr Kazal had been collected in another police vehicle and, no doubt as a result of radio contact, he was brought to the scene. He looked at the four men and in response to an enquiry as to whether any of those were involved in what he had seen earlier, he indicated all four by saying, "Him, him, him and him", adding a remark about lack of courage. 5 The ruling by Keleman DCJ involved application of s114 of the Evidence Act, and in particular reference to s114(2) which provided that evidence would be excluded unless there was reasonable ground for not holding an identification parade. It was not suggested before Keleman DCJ nor before this Court, that what occurred in William Street was an identification parade. As I have indicated, his Honour ruled that he would exclude that evidence. He also ruled that he would exclude the evidence of the subsequent photographic identification in the exercise of his discretion. 6 The argument before the District Court proceeded upon a basis identified by his Honour in the course of his judgment in these terms: "Although the Crown changed its position during the course of the voir dire, it now contends that there is sufficient evidence to establish the guilt of the accused in respect of the offences charged, even if the evidence of identification was excluded." 7 Before this Court the appeal was sought to be sustained by inviting this Court to examine the available evidence, other than the identification evidence, and proceed upon the basis that his Honour's acceptance of the Crown concession was wrong. For my part, I have some difficulty in approaching the matter on that basis, but even assuming that it can be, as I am of a view that the Crown appeal cannot succeed, I will continue. 8 The jurisdiction vested in this Court pursuant to s5F was considered in R v Steffan (1993) 30 NSWLR 633, where it was held that a ruling on evidence made in advance of trial in the District Court was not an interlocutory judgment or order within the meaning of the Criminal Appeal Act. Nevertheless, it was recognised in that judgment that there may be, what was described as a rare case, where a ruling on evidence, because it forms the basis of a stay of proceedings, could be the principal legal issue to be determined on a s5F appeal. 9 The matter was progressed by a further judgment in this Court in R v Bozatsis (1997) 97 A Crim R 296. In that case Gleeson CJ, speaking for the Court and dealing with the question of what could be comprehended by the words "judgment" or "order", noted that "Rulings also decide questions" raised for decision in particular proceedings but he added, significantly in my view, "It is the character of the question, and the effect of the decision, that makes the difference". 10 The next relevant reference in this Court can be found in R v Lissoff unreported 22 November 1999. In essence, that case held that an appeal under s5F would lie where a ruling in a real and practical sense destroyed any prospect of the Crown presenting the substance of its case. As I understand it, it is that prospect which is relied upon by the Crown in this appeal. Nevertheless, it must be observed that in Lissoff itself, the Court observed that, had it been clear that the Crown case had been weakened but not effectively destroyed by the ruling in the District Court, then "the approach" in Steffan would have been applied. The approach in Steffan would result in holding that the Crown appeal did not lie. 11 Despite my reservations, I have looked at the evidence available to the Crown as was presented in the voir dire hearing before Keleman DCJ. There is evidence of the clothing worn by the Respondent, being a blue collared shirt and black jeans. There was injury to his hands and, observed by police, an injury to his head. I regard it as not insignificant, given the circumstances which I have sketched, that when first approached by police and asked whether he would speak to them in relation to some incidents which had just occurred in Park Street, he is said to have replied, "I don't know what you're talking about. I don't know any of these fellas except for James. What happened?" 12 Later, at an interview, the Respondent adopted the position that he had indeed been present at the events outside the Criterion Hotel in Park Street but that he had not been a participant. 13 Given those matters, it is readily perceptible that the source of the concession made before Keleman DCJ by the Crown was well-founded. In my view, it cannot be said that although the identification evidence would no doubt be valuable evidence to the Crown, the Crown has no case in substance without it. The character of the question determined is no more than a discrete ruling on evidence made before trial by a judge of the District Court. In those circumstances, in my view, s5F is not available to the Crown and I propose the appeal be dismissed. 14 SPIGELMAN CJ: I agree. 15 HIDDEN J: I agree. 16 SPIGELMAN CJ: The order of the Court is the appeal is dismissed. **********