R v King [2002] NSWCCA 365

New South Wales Court of Criminal Appeal

CITATION : R v King [2002] NSWCCA 365 FILE NUMBER(S) : CCA 60929/01 HEARING DATE(S) : 23 August 2002 JUDGMENT DATE : 2 September 2002

PARTIES : Crown - Respondent Mathew James King - Appellant JUDGMENT OF : Hodgson JA at 1; Simpson J at 6; Smart AJ at 36

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0173 LOWER COURT JUDICIAL English DCJ OFFICER :

COUNSEL : GIO Rowling - Crown DN Stewart - Appellant SOLICITORS : SE O'Connor - Crown Ross Hill & Associates - Appellant CATCHWORDS : robbery whilst armed with an offensive weapon - identification evidence LEGISLATION CITED : Evidence Act 1995 DECISION : Appeal against conviction dismissed.

IN THE COURT OF CRIMINAL APPEAL 60929/01

HODGSON JA SIMPSON J SMART AJ

2 September 2002 REGINA v Mathew James KING Judgment 1 HODGSON JA: I agree with the order proposed by Simpson J, and with her reasons. 2 I also take the view that, even if there had been some shortcoming in the directions, leave should not be granted under r.4 of the Criminal Appeal Rules to rely on such shortcoming, no objection having been taken at the trial. 3 It is plain that the jury found beyond reasonable doubt, as it was entitled to do, that the appellant had possession of the number plates UMG 887 on 30 April 2001, when he booked into Ettalong Beach Village, those plates having been stolen on 25 April. It is plain that, having rejected the appellant's denial that he had such possession on 30 April, the jury inferred beyond reasonable doubt, as it was entitled to do, that the appellant was the person seen by Ms. Lynn to be in possession of those plates (albeit placed on a different vehicle) on 26 April and 31 April. Thus, the jury rejected the appellant's denial that he was that person. 4 The jury was not invited to reason by way of consciousness of guilt, and no directions were given on that matter. Nevertheless, in my opinion this Court, in deciding whether a miscarriage of justice has occurred because the jury was given allegedly inadequate directions on identification, can have regard to what to my mind is extremely powerful corroboration of the identification by Ms. Lynn of her assailant with the person she saw on 26 April and 1 May, namely the appellant's untrue denial that he was the person she saw on 26 April and 1 May. 5 Having regard inter alia to that consideration, even if there had been a shortcoming in the directions concerning identification, I would not have considered any miscarriage of justice had occurred and would not have granted leave under r.4. 6 SIMPSON J: On 26 November 2001 the appellant was indicted in the District Court on a charge of robbery whilst armed with a dangerous weapon, and, alternatively, robbery whilst armed with an offensive weapon. He was acquitted by the jury of the primary charge but convicted on the alternative. On 7 February 2002 he was sentenced to imprisonment for seven years with a non-parole period of five years and three months. He now appeals against the conviction.