New South Wales Court of Criminal Appeal CITATION : R v Morris [1999] NSWCCA 326 FILE NUMBER(S) : CCA 60532/98 HEARING DATE(S) : Thursday 16 September 1999 JUDGMENT DATE : 21 October 1999 PARTIES : Regina v Jason Bradley Morris JUDGMENT OF : Sheller JA at 1; Grove J at 2; Hidden J at 25 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/03556 LOWER COURT JUDICIAL OFFICER : Naughton DCJ COUNSEL : M.M. Cunneen (Crown) M. Austin (Applicant) SOLICITORS : S.E. O'Connor (Crown) Sydney Regional Aboriginal Corporation Legal Service (Applicant) CATCHWORDS : Criminal Law And Procedure - Evidence - Recognition By View Of Security Camera Photographs - Content Of Counsel's Address - Legitimate Criticism Of Practised Witnesses - Directions To Jury Concerning Interview With Police And Failure Of Accused To Give Evidence McKinney v The Queen 1991 171 CLR 468 CASES CITED: Carr v The Queen 1988 165 CLR 314 @ 323 Weissensteiner v The Queen 1993 178 CLR 217 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60532/98 SHELLER JA GROVE J HIDDEN J Thursday, 21 October 1999 REGINA v Jason Bradley MORRIS JUDGMENT 1 SHELLER JA: I agree with Grove J. IN THE COURT OF CRIMINAL APPEAL 60532/98 SHELLER JA GROVE J HIDDEN J Thursday 21 October 1999 REGINA v JASON BRADLEY MORRIS JUDGMENT 2 GROVE J : The appellant was convicted after a trial before Naughton DCJ and a jury at Sydney District Court on an indictment for robbery in company. On 9 December 1997 three males entered the Commonwealth Bank branch in King Street Newtown. An offender alleged to be the appellant jumped over the counter carrying a screwdriver and then opened a staff door enabling the other two to enter the non-public area of the bank. Cash totalling just over $4,000 was taken from various sections of the premises and the three men fled to a nearby carpark where they entered a car and departed from the area. 3 Bank security cameras had been activated. The developed photographs were later shown to police officers, several of whom gave evidence that they recognized the appellant as a person in the photographs. Those police were, in various circumstances, acquainted with the appellant. The photographs were also shown to Linda Castles, a youth worker at a residence where the appellant had stayed for various periods. She also recognized the appellant. 4 The appellant was sentenced to a total of six years and six months penal servitude divided into minimum and additional terms of three years and six months and three years respectively. The appeal has been pursued against conviction only. 5 The grounds of appeal were expressed as follows: " Ground One: The identification evidence from the police officers and Linda Castles should have been excluded. This was opinion evidence of a kind which the jury should not have taken into consideration in criminal proceedings. Ground Two: His Honour was in error when he ruled that counsel for the appellant was not to mention the nature of police evidence in his address to the jury. This was the appellant's counsel was not to refer to matters of the type raised by the High Court in McKinney v the Queen . Ground Three: His Honour failed to direct the jury in accordance with the directions set out in McKinney v the Queen . If the opinion evidence of the police officers was to be admitted in this case these directions were called for. Ground Four: His Honour misdirected the jury in relation to the use that could be made of the accused's interview with the police. Ground Five: His Honour misdirected the jury in relation to the accused's failure to give evidence. Ground Six: The convictions are unreasonable and cannot be supported having regard to the evidence." 6 The argument in support of ground 1 was presented in common with appeals in matters of Mundarra Smith and Lee West. All three appeals involved argument asserting the inadmissibility of evidence of recognition by persons viewing photographs which were the product of security cameras. The concurrent hearing took place at the request of and with the consent of all parties. The approval of the Court was readily given to that sensible and practical procedure. All the appellants were present during the hearing of argument. 7 For the reasons given by Sheller JA in the matter of Mundarra Smith in which judgment I have concurred, I am of the opinion that ground 1 cannot be sustained. 8 The further grounds in the present appeal are not in common with the other two and, as their terms reveal, relate in the case of grounds 2-5 to rulings and directions by Naughton DCJ. Ground 6 is intimately interwoven with the other grounds. 9 Ground 2 as expressed does not clearly focus upon the complaint that is sought to be made. The reference to McKinney v The Queen (1991 171 CLR 468) serves to obscure the point rather than illuminate it. After the close of the Crown case there was some discussion between the learned trial judge and counsel in which it was indicated that the appellant did not intend to give evidence and matters germane to further conduct of the trial including the content of his Honour's proposed charge to the jury were canvassed. There was an overnight adjournment. Counsel then appearing for the appellant (who did not appear in the appeal) contended that transcript notations from the previous day in summary form were not accurate. What was said in the morning appears to have been taken down verbatim and it is inferred that there was then an adjournment because the transcript next records: "UPON RESUMPTION (Mr Jauncey indicated in relation to the issue of his raising the status of a police officer being professional or experienced his intention is to not do that in direct relation to the police but merely to say to the jury that in assessing the witnesses they are quite entitled to take into account their of demeanour and also to take into account such experience as they have had in the past in giving evidence and to leave it at that. Discussion ensued). HIS HONOUR: I reject it. I think it is highly offensive and improper." 10 It is plain ("Discussion ensued") that the transcript does not purport to record the entirety of what occurred. No affidavit has been tendered to seek to fill the gap. 11 The focus of complaint in this court has been upon the asserted inhibition upon counsel's address. Insofar as counsel was foreshadowing an intention to invite the jury to take into account the demeanour and past experience of policemen in giving evidence when assessing them, his intention was unexceptionable. It could not possibly be offensive or improper to invite a jury as fact finders to consider, in effect, that those who have undergone the experience of giving evidence on multiple previous occasions may well present with a demeanour of confidence and apparent dependability, and to ask the jury to contemplate that such impressions might be the result of practice rather than integrity of the evidence. Juries are frequently invited to consider whether a superficially impressive witness who has the benefit of practice is necessarily a witness of truth. Colourful address in attack upon reliability of police evidence such as that of which an extract appears in Carr v The Queen 1988 165 CLR 314 @ 323 was described as forceful and did not provoke rebuke: Per Wilson & Dawson JJ @ 322; Brennan J (as he then was) described the particular address as a "powerful and proper attack" @ 329. In contrast, the stated intention of counsel in this instance was mild and could not be categorized as offensive or improper. 12 This Court does not have the benefit of any information as what was said when "discussion ensued" was recorded. It is possible that his Honour's remarks related to something then said rather than what has been summarized by the court reporter, however the intention of counsel as summarized was treated as an inhibitive ruling and such a ruling was erroneous. Unsurprisingly, counsel for the Crown in the appeal (who did not prosecute at trial) was misled by the terms of ground 2 and the reference in it to McKinney v The Queen. The references both at trial and in the expression of the ground were, I would presume, derived from the joint judgment (@ p 476) where the words "police witnesses are often practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth" appear. Trial counsel seems at that stage to have ignored that those words were used expressly within the context of a warning held to be requisite where the substantial basis for a finding of guilt is a confessional statement alleged to have been made whilst an accused was in police custody. 13 Upon the focus of the ground being disclosed in the appeal the Crown Prosecutor fairly conceded that counsel "should have been entitled to make that submission to the jury and it is unfortunate that he felt constrained not to by something that his Honour said". Nevertheless it was submitted that the error related to a matter that was so subordinate in the context of the trial that the Court should apply the proviso to s 6 of the Criminal Appeal Act. That proviso can be applied if the Court is satisfied that, despite the error, no substantial miscarriage of justice has actually occurred. 14 What was inhibited was one submission concerning a matter to be weighed in the assessment by the jury of several witnesses. The police officers who testified that they recognized the appellant in the photographs were asked questions concerning their experience. The nature of the challenge was made plain, for example Detective Crampton was asked whether part of courses which he had done included training in the giving of evidence in court and he responded that he had received some but very limited training. 15 Given the exploration of matters in cross examination, although I have concluded that it was erroneous to prevent counsel from making the particular submission, I have reached the conclusion that having regard to what was really the sole central question for the jury (whether the appellant had been proved to be one of the robbers) had the matter which counsel wished to canvass been addressed, no different result would have followed. My conclusion is fortified by observing that the testimony of Linda Castles concerning her recognition of the appellant in the security camera photographs was independent of the police witnesses and the inhibited submission could not have been relevant to that evidence. There has been no miscarriage and I would apply the proviso. 16 Ground three contends that McKinney v The Queen is authority for the proposition that if the "opinion" (that is to say, recognition) evidence of police officers was to be admitted, a direction should be given warning the jury of the danger of convicting on the basis of that evidence. At the conclusion of the summing up and in response to the conventional invitation counsel submitted: "In relation to the point which I raised yesterday where I described in my notes to your Honour as professional witness in relation to the police and I said that should be more in terms of being experienced witnesses. I draw your attention again to that. I refer your Honour to the decision of McKinney and the Queen 171 CLR 468 which specifically deals - although in that context is where the contested evidence of police was oral admissions, the general warning - with all due respect your Honour a warning which is given generally in these courts as to police. Your Honour was talking about the demeanour of the witnesses. Counter-balancing that to take into account the fact that some persons, particularly police officers, are experienced in giving evidence." 17 McKinney is not authority for such a proposition. That case had to do with the perceived special position of vulnerability of an accused to fabrication of a confession said to have been made whilst held in the police detention. In Carr v The Queen 1988 165 CLR 314 some general considerations of occasions for warning were canvassed, some with particular reference to police evidence. In my assessment, it appears that trial counsel was somewhat elliptically adverting to the remarks in McKinney concerning the difficulty in determining the truthfulness of practised witnesses and contending that there was a need in the circumstances of the case for a warning by application of an approach such as suggested in the majority judgments in Carr. 18 The present case was not one in which police witnesses were corroborating each other about some matter and the jury were being invited simply to accept their evidence on the basis of their combined credibility. There were resources available other than the content of the evidence and the demeanour of the witnesses who gave it. The recognition evidence was able to be assessed by the jury in the context of two important circumstances: first, they were able to examine the photographs for themselves and, second, the accused was before them in person. This ground should be rejected. 19 I turn to ground four. Although the appellant elected not to give evidence, a denial that he was the person depicted in the security camera photographs was made when he was interviewed by police. The content of the relevant interview was before the jury. His Honour gave this direction: "The accused had a choice whether or not to be interviewed by the police. He chose to be interviewed by them. If he had not chosen to be interviewed by the police no adverse inference could have been drawn against him because of that choice. The accused does not have to prove anything. It is for the Crown to prove its case and the accused is presumed to be innocent until such time as he is found to be guilty. The accused was interviewed by Detective Lanyon on 18 December 1997. The interview was electronically recorded. You have seen a video of the edited interview and heard an audio tape of what was said in that edited interview. You have been provided with copies of a typed transcript of the edited interview. That is Exhibit "H". That material is evidence before you which you are entitled to take into account. It is not evidence on oath and it was not subject to cross-examination by counsel for the Crown when the interview took place. It has not been possible for the Crown to cross-examine the accused on it in court because the accused has exercised his legal right not to give evidence on oath in court. It is a matter for you what you make of the accused's answers to questions from Detective Lanyon in the police interview. In that interview the accused denied having any knowledge of anything to do with the robbery. He denied that he was in any of the five photographs shown to him by Detective Lanyon, Exhibit "K", the prints from Exhibit "A". In the interview the accused declined an invitation to participate in a police identification parade as I have already mentioned, and questions and answers 101 and 102 refer to that. I have already told you that he had no duty to accept the invitation and that no adverse inference can be drawn against him on that account. You are entitled to give the accused's answers to the questions put to him by the police on 18 December 1997 such weight as you think fit bearing in mind that they were not given on oath in court after the prosecution witnesses had given evidence in court on oath, and the answers to the police questions were not subject to testing by cross-examination by Madam Crown. I remind you, however, that the accused has no obligation to contradict the evidence on oath by the Crown witnesses. He is not obliged to prove his innocence and you cannot conclude that he has anything to hide by not contradicting it." 20 In my view the directions given by his Honour were untainted by error. Complaint is made that his Honour did not instruct the jury as to how they might use the evidence but this is to ignore the content. The content was a denial by the appellant of the only real issue in the case, namely a denial that he was one of the robbers who invaded the bank. I would reject this ground. 21 The fifth ground relates to the failure of the appellant to give evidence. His Honour gave this direction: "I want to say something now briefly about the election of the accused not to give evidence on oath in court. The accused had a choice whether or not to give evidence on oath in the witness box. He chose, as was his legal right, not to do so. If he had given evidence on oath in the witness box he would have been open to cross-examination by Madam Crown, just as the witnesses called by the Crown were open to cross-examination by Mr Jauncey on behalf of the accused. No adverse inference can be drawn against the accused because he chose not to give evidence on oath in the witness box. The accused does not have to prove anything. He is presumed to be innocent until such time as the Crown proves beyond reasonable doubt that he is guilty. On the other hand, ladies and gentlemen, the accused has not on oath in court denied or sought to explain any particular piece of evidence in the prosecution case. The accused is entitled to argue, as Mr Jauncey has done on his behalf, that you could not be satisfied beyond reasonable doubt that the accused is guilty on a consideration of the whole of the evidence put before you in the Crown case, and taking into account the accused's denials in the record of interview which, as I say, was not on oath. However, ladies and gentlemen, it is proper to bear in mind that it is usually easier to accept evidence given on oath which is not contradicted on oath than it is in respect of evidence which is actively disputed by evidence on oath. Whether that is so in this case is a matter for you to consider. You must decide the case on the evidence which has been given, affording it such weight as you think it should have." 22 The submission is made that the direction in those terms amounted to telling the jury that they would be "more comfortable with a finding of guilt". The direction was in accord with the guidance available in Weissensteiner v The Queen 1993 178 CLR 217. The submission by the appellant included an assertion that his Honour was not entitled to suggest that a failure to deny the allegations on oath was of itself a matter which reflected on the issue of guilt or innocence. I agree. As the above extract shows his Honour said no such thing. It is clear that his Honour avoided any suggestion that the jury might regard the failure to give evidence as an implied admission of guilt. It is undeniably correct that it is usually easier to accept evidence which is uncontradicted and it bespeaks no error on the part of a trial judge to draw that to the attention of a jury. 23 The sixth ground effectively sought to draw support from the preceding grounds in combination. On the basis that the evidence of recognition of the appellant from viewing the security camera photographs was admissible, this is a case in which the remaining issue is the adequacy of that evidence. I have already mentioned the circumstance that the jury were advantaged by direct observation of three things: the witnesses who claimed that they recognized the appellant; the photographs taken by the security cameras and the appellant himself. I am unpersuaded that the convictions were unreasonable and I am of opinion that there was ample evidence in support of them. 24 I propose that the appeal against conviction be dismissed. IN THE COURT OF CRIMINAL APPEAL 60532/98 SHELLER JA GROVE J HIDDEN J Thursday, 21 October 1999 Regina v JASON BRADLEY MORRIS JUDGMENT 25 HIDDEN J : I agree with Grove J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.