R v Morgan [2000] NSWCCA 7

New South Wales Court of Criminal Appeal

CITATION : R v Morgan [2000] NSWCCA 7 FILE NUMBER(S) : CCA 60757/98 HEARING DATE(S) : 29/10/99 JUDGMENT DATE : 25 February 2000

PARTIES : Regina Raymond George MORGAN JUDGMENT OF : Stein JA; Hulme J; Greg James J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Flannery DCJ OFFICER :

COUNSEL : Crown: R A Hulme Appellant: J S Stratton SOLICITORS : Crown: S E O'Connor Appellant: Brenda Duchen

DECISION : Appeal upheld; Conviction quashed; New trial ordered

- 23 - IN THE COURT OF CRIMINAL APPEAL No: 60757/98

STEIN JA HULME J GREG JAMES J

Friday, 25 February 2000 REGINA -v Raymond George MORGAN JUDGMENT

1 THE COURT: On 16 November 1998 the Appellant was indicted on a charge:- For that he on 5 December 1997 at Ramsgate... did rob Jane Lisa Wickham and others of certain property; namely about $16,750 in cash, the property of the St George Bank Limited and at the time of the said robbery did use corporal violence on the said Jane Lisa Wickham." 2 The charge was laid under Section 95 of the Crimes Act which provides for a maximum penalty of 20 years penal servitude. 3 Of the essential ingredients of the charge, the only significant issue in dispute was whether the Appellant was one of the persons who had committed the offence. On 24 November 1998 a jury found the Appellant guilty. On 3 February 1999 Judge Flannery sentenced the Appellant to penal servitude for a minimum term of 2½ years commencing on 12 December 1997, the day of the Appellant's arrest, and an additional term of a further 2½ years. At the direction of His Honour the jury had earlier found a verdict of not guilty on a second charge which may be summarised as being carried in a conveyance known to have been stolen. 4 On 2 December 1998, prior to being sentenced, the Appellant lodged a Notice of Appeal, which noted that the grounds of appeal would be advised. This occurred on 30 April 1999. On 29 October 1999 the appeal came on for hearing and was upheld, a new trial ordered and the Appellant discharged from custody. The Court indicated that its Reasons would be published later. These are they. 5 In outline the circumstances leading to the Appellant being charged were as follows. A robbery of a branch of the St George Bank was carried out by two persons. These persons were seen by a number of persons who were either bank employees, customers in the bank at the time or persons who were near the bank either immediately before or immediately after the robbery. An accomplice was seen in the car to which reference has been made In addition, photographs of the two offenders were taken by a security camera within the bank. 6 The photographs taken by the security camera were later developed and a number of police officers gave evidence of having been shown those photographs and of identifying the Appellant from them. A video tape which contained photographs of a number of persons including the Appellant was shown to the eye witnesses. Only one, Lisa Wickham, identified the Appellant as one of the offenders. The Appellant did not give evidence but there was called on his behalf a Mr Donnelly, an expert in the field of photogrammetry - a science of taking measurements from photographs. Mr Donnelly's conclusion was that, if his calculations of the offender's height were correct, the offender was not the Appellant. 7 The grounds of appeal are:- 1. The conviction is unreasonable and cannot be supported having regard to the evidence. 2. The trial miscarried because the Crown failed to inform the appellant and his legal advisers that an important Crown witness, Gregory James Schott, had been charged with attempting to pervert the course of justice. 3. There has been a miscarriage of justice because there is a reasonable possibility that had fresh evidence not available to the appellant at his trial been available it would have led to the acquittal of the appellant. 4. His Honour erred in admitting evidence of identification by photographs by the witnesses Carrick, Schott, Schoobridge, Hewins and Lynn. 5. His Honour erred in permitting cross-examination of the witness Donnelly about different conclusions reached by another witness in another case. 6. The trial miscarried by reason of the Crown cross-examining the witness Donnelly about matters not in evidence. 7. His Honour erred in allowing the Crown's application for an adjournment of 2 days to prepare the cross-examination of the witness Donnelly. 8 It was ground 5 which the Court, at the hearing of the appeal, thought had been made out. The Appellant's success on this ground does not however entitle him to a verdict of acquittal. If made out ground 1 would, and it is accordingly necessary to consider it. Grounds 2, 3, 6 and 7 are concerned with matters which arose at the trial before Judge Flannery and may not arise at any subsequent trial. It is accordingly unnecessary that anything be said about them.