Reported Decision : (2002) 132 A Crim R 92 New South Wales Court of Criminal Appeal CITATION : R v BURLING [2002] NSWCCA 298 FILE NUMBER(S) : CCA 60763 OF 2001 HEARING DATE(S) : 22 July 2002 JUDGMENT DATE : 26 July 2002 REGINA PARTIES : v DAVID GREGORY BURLING JUDGMENT OF : Heydon JA; Levine J; Greg James J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0049 LOWER COURT JUDICIAL ENGLISH DCJ OFFICER : PM Strickland (Appellant) COUNSEL : WG Dawe (QC) (Crown) DJ Humphreys (Appellant) SOLICITORS : SE O'Connor (Crown) CATCHWORDS : Criminal law - jury verdict - unreasonable - could not be supported by the evidence - identification - cogent evidence of the possibility of another as offender LEGISLATION CITED : Crimes Act 1900 M v The Queen (1994) 181 CLR 487 CASES CITED: Regina v Kneebone [1999] NSWCCA 279 Regina v Prasad (1979) 23 SASR 161 R v R (1989) 18 NSWLR 74 DECISION : Appeal allowed, conviciton quashed. Verdict of acquittal entered. - 5 -IN THE COURT OF CRIMINAL APPEAL 60763 of 2001 HEYDON JA LEVINE J GREG JAMES J 26 JULY 2002 REGINA v DAVID GREGORY BURLING Judgment 1 THE COURT: On Monday 22 July 2002 the Court made orders allowing the appeal, quashing the conviction and entering a verdict of acquittal. 2 The appellant appealed against his conviction of the offence of armed robbery. He was indicted for that on 13 August 1999 at Gorokan he did rob Brian Van Stappen of his wallet, whilst being armed with an offensive implement, namely, a screwdriver: s97(1) Crimes Act 1900 (maximum penalty 20 years). Upon the jury's finding of guilt in the District Court at Gosford on 9 August 2001, her Honour Judge English sentenced the appellant to imprisonment for 2 years and 10 months fixing a non-parole period of 12 months. The sentence was ordered to be served by way of periodic detention. On 6 February 2002 the appellant was granted bail by the Supreme Court pending the hearing of his appeal. 3 At the outset it is to be noted, from her Honour's remarks on sentence, that the appellant had previously stood for trial in March 2001 on two counts arising from the same events: the first was of entering the Gorokan High School with intent to commit a felony; the second was the present armed robbery count. At his first trial the appellant was found not guilty of the first count and the jury failed to agree on the second. 4 One ground of appeal was notified: that the verdict of the jury was not reasonable and cannot be supported by the evidence, that ground being founded in the decision of the High Court in M v The Queen (1994) 181 CLR 487 at 494. 5 The issue in the trial was the identification of the offender. Two witnesses, Mrs O'Connor and Mr Van Stappen (and it is to be noted that the latter only was said to be the victim of any criminal offence by the appellant) each gave evidence of the ocurrence and a description of the offender. Each chose the appellant from a line up. 6 Sandra O'Connor said that she was walking down a hallway near the school's keytell room when she heard a scream. The offender ran past her, stopped and came back to her. He was at arm's length from her and said: "Where's your money?" He had a black beanie over his head, which was pulled right down. When the offender spoke to her, he was trying to pull the beanie up and keep it over his face. She saw "this part of his face", and indicated from above the eyebrows to the chin. He was looking straight at her at the time and was holding a screwdriver in his hand, which was raised above his head. He again asked her if she had any money and she said: "There's no money here. There's no money here". Van Stappen, who had come upon the scene, threw his wallet on the floor. The offender picked it up and ran out. 7 She described the offender as wearing a black jacket, black tracksuit pants, black sports shoes and a backpack. He was about 18 to 20 years old. He had a "thinnish" build. He had a "whitish face" and was clean-shaven. O'Connor estimated that the offender was about 5 foot 4 inches to 5 foot 6 inches tall. She said that when he was standing up, his face, which she would never forget, was right opposite hers. Her Honour estimated Mrs O'Connor's height at about 5 foot 4 inches. 8 The appellant was arrested on 19 August 1999. On that day, O'Connor attended The Entrance police station where she took part in an identification parade of 14 young males including the appellant whom she "identified". She told the police: "Number 2 but the hair's thrown me". She said that she did not see any of the offender's hair on 13 August. She admitted that when she went to the police station on 19 August she expected that the offender would be in the line up. She admitted that after the line up Inspector Rice had asked her: "Where have you seen this person?" O'Connor replied: "I think at Gorokan high school. The face is very familiar, but the long hair's got me". 9 Brian Van Stappen gave evidence that whilst he was unlocking the cleaner's cupboard, the offender jumped out screaming and ran down to the end of the hallway. O'Connor was in the hallway between him and the offender. Van Stappen saw the offender holding a long bladed screwdriver in his hand. He was holding the screwdriver at a 90-degree angle and said: "Give us your money". When the offender said that, he pulled his beanie down over his face and held the screwdriver up to his ear. Van Stappen then threw his wallet on the floor. He was about 12 feet away from the offender. The offender then "turned his threats" towards O'Connor and said: "Give us your money". O'Connor then broke down and was screaming "I haven't got any money". Van Stappen said to the offender: "We got no more money. Take this wallet. Go. Leave us alone". The offender then ran past him and straight out the front of the premises. About 15-20 seconds after Van Stappen threw his wallet on the floor, the offender turned left, then left again past where the library block was. He and O'Connor followed the offender out of the building. Van Stappen described the robbery as "life threatening". Van Stappen did not see the offender's face until he and the offender were in the hall. He described the beanie as a "fairly lengthy one". It was rolled up on the sides and he could see it curled up on the offender's head. It covered most of the offender's hair, but Van Stappen saw some hanging down underneath the beanie. He described the offender's hair colour as "dirty blonde". Van Stappen said that the offender pulled his beanie down to his chin so that it covered his face for about one second, but then the offender pushed the beanie up from the bottom and pulled it over his face so Van Stappen could see his face again. The beanie did not fall down again after he pushed it up. Van Stappen estimated the offender to be at least 5 feet 11 inches tall. He was wearing a black sloppy joe, which had white writing on it with an emblem like a shield, black tracksuit pants and black shoes. Van Stappen conceded that when he gave his statement to police on 13 August 1999 and that when he gave evidence about this case on a previous occasion, he made no mention of the offender wearing a sloppy joe. On a previous occasion, he had said that the offender was wearing a "matching tracksuit". Van Stappen said that he had observed the offender in the school block for a total of about 30 seconds. He described the lighting as being "as good as what I can see you here now". Van Stappen gave evidence of the keys that were kept in the Keytell room and said that the locker that held those keys had been sprung open. On 19 August 1999, Van Stappen selected the appellant in an identification parade of 14 young men at The Entrance police station. He picked out "number 2". He was asked: "Where have you seen that person before?" he said: "I have seen that person at Gorokan High". At the line up, Van Stappen saw that the appellant had a couple of pimples. He had not told the police previously that the offender had pimples. 10 Other evidence called in the Crown case included that of Mr George Horvath who operated an Ampol service station close to the high school. He said that he saw a young man enter his service station at about 2.30am on the morning of the robbery. He had seen the young man in his store on many occasions. He knew his mother's name as "Marilyn". (The appellant admitted that he went to the service station that morning.) The witness had a brief chat to the appellant who left the service station and walked along Googaburra Road towards the Gorokan high school. He described the appellant as wearing a black beanie, a black lycra or nylon top and dark tracksuit pants. The beanie was a short one. He could see the appellant's hair at the back of the beanie. It was long blonde hair. 11 The appellant's mother, Marilyn Grieve, gave evidence that in August 1999, her son, the appellant, did not live with her, but came to sleep over at her house about three or four nights a week. Shortly before the police arrested the appellant on 19 August 1999, Mrs Grieve heard a rustling noise in her house at about 2.00am – 3.00am. The next morning (which was 18 August), as soon as she woke up, she saw a plastic bag which was not normally in the spare room. The bag contained about 40 keys and coloured tags, which were labelled "toilets" "storeroom" etc. These were clearly the keys from the Gorokan high school. Mrs Grieve put the keys underneath her clothes. When Mrs Grieve came home from work that day, she and the appellant had an argument about his failure to do the housework. She told the appellant he could find somewhere else to live and put his clothes outside the door. The appellant left the house and returned before dark and said: "Give me the bag". She said: "What bag?" He said: "The bag". She said: "I've got something on you" or "I've got something against you, David". After that conversation, she left the house with her other son, Cole. When she returned the next morning, the keys and the bag had gone. 12 The inadequacies of the identification evidence were expounded as follows in the submissions for the appellant. The description of the offender given by O'Connor and Van Stappen more closely fitted another person, Daniel Bennett, than the appellant. In relation to height, O'Connor estimated that the offender was about 5 foot 4 to 5 foot 6 inches. She said that his face was right opposite her face. Her Honour estimated that Ms O'Connor was about 5 foot 4 inches. Van Stappen estimated that the offender was at least 5 foot 11 inches. Detective McIlveen, the officer in charge of the case, estimated the appellant to be about 6 foot 3 inches. The photograph tendered of Bennett (exhibit M) describes Bennett as being 185cm tall (which is a little less than 6 foot 1 inch). The appellant described himself as being a bit taller than Bennett. Bennett's height is closer to the estimate given by both eyewitnesses. 13 Of even greater significance is the evidence about hair length. O'Connor told the police that when she picked the appellant out in the identification parade, she said: "Number 2 but the hair's thrown me". She also told Inspector Rice that "the long hair's got me". She said that she did not see any of the offender's hair during the robbery. It is clear, so it was submitted, that O'Connor believed that the offender's hair was different to the appellant's hair. The appellant was a student of the school and it is possible that when she said to Rice "the face is very familiar" she recognised the appellant from seeing him in or around school. 14 Van Stappen said he could see some hair hanging out underneath the offender's beanie, but the beanie covered the majority of the offender's hair. Van Stappen had greater opportunity to see the offender's hair because he saw the offender pulling his beanie up and down over his face. He does not describe the offender as having long or shoulder length hair. The initial police description of the offender is someone with "short, blonde hair". There is no doubt that the appellant did not fit the police description of the offender as someone having short, blonde hair. He had shoulder length hair. McIlveen, Horvath and the appellant all confirm that fact. Horvath stated that when he saw the appellant that morning at the service station, the appellant's hair was clearly visible when he wore his beanie. By contrast, Bennett had short hair. Smith (see below), a friend of Bennett's said that Bennett's appearance was the same in August 1999 as it was when the photograph was taken on 20 October 1999. He said that Bennett always had either short or shaven hair. The appellant said that Bennett had more hair than was shown on exhibit M. McIlveen knew Bennett was a person who had short or shaven hair. 15 Apart from the differences in height and hair colour, the appellant and Bennett were of similar appearance, which is a likely explanation for the eyewitnesses having selected the appellant in the identification parades. Bennett was born on 8 January 1981 (aged 18 years and 8 months at the time of the offence). The appellant was born on 6 December 1980. Both the appellant and Bennett had slim builds. The appellant's evidence about the physical similarities between himself and Bennett was uncontradicted: " Well, everyone used to reckon that we were good, close enough, look alike to be brothers and that, like, I had long hair. He had short hair. Both sort of the same build and that and around the same height. I was probably a bit taller than him". 16 There was an inherent unfairness in the identification parade, it was submitted, because Bennett was not in the line up even though the police knew that Bennett was a suspect as a result of information passed on to the police by Horvath. Detective McIlveen could not explain why the police did not attempt to locate Bennett so that he could be placed in the line up. It was submitted that the absence of Bennett in the line up casts doubt on the cogency of the Crown case. Furthermore, the circumstances in which O'Connor and Van Stappen observed the intruder contributed to the unreliability of any subsequent identification at a line up. The offence occurred in the early hours of the morning. There was very limited time to observe the intruder. Van Stappen estimated that the total time he had the intruder under observation was about 30 seconds. That is a far more likely estimate than O'Connor's time estimates. Both eyewitnesses were understandably terrified. O'Connor broke down and started screaming during the robbery. Van Stappen described it as life threatening. There were inconsistencies between the two eyewitnesses concerning the order in which they and the offender left the building. 17 There was a second component to the case of some importance. That was evidence pointing to the possibility of the involvement of that other person, Daniel Bennett, as the offender. The Crown called Dwayne Smith and Jarred Allen, aged 18 and 21 respectively, who were drinking beers at the Lakehaven library in the early hours of 13 August 1999. Smith said that sometime between 3.00am and 5.00am that morning, he heard someone yell "Security" and saw two people run from the recreation centre across to the library and jump over the fence of the Daycare centre. He only saw both men for a few seconds. There was not much light. Both men were wearing dark black pants, dark black shirts and dark black beanies. One of them was carrying a Nike bag. Smith yelled out "David". He was asked if he recognised the two people. Smith said he did. He was asked: "Q: Who do you say the two people were? A: I could see Daniel Bennett and I think I seen David. Q: And when you say you think you saw David, you're talking about the accused? A: Yes". Smith said he saw the hair on the second man (the appellant), but not on Bennett. The reason he yelled "David" was because of that man's hair. Smith knew that appellant as a student of Gorokan high school and knew Bennett through the appellant. 18 Allen said that he and Smith got to the library about 4.30am-5.00am. After about 30 to 45 minutes, he saw a man run from behind the back of the recreational centre along a track behind them. The man came to within 10 to 15 metres of he and Smith. As the man ran past, Smith jumped out and yelled: "Daniel". The man stopped for a second and said: "I can't stop now. I've got police and security guards chasing". He kept on running. Allen described the man as being of slim build, about six foot tall, wearing a black jacket, black pants and a black beanie. He was carrying a black backpack. Allen gave a statement to police on 29 August 1999. He said that he thought that the man who ran past him was Daniel Bennett. The Crown did not challenge the evidence of Smith or Allen. Both Smith and Allen went to the Ampol service station at about 5.10am and spoke to Horvath after they heard the police sirens. The police searched them both for weapons. Horvath recalls one of them telling him that he spoke to the man who robbed the school and said it was Daniel Bennett. Horvath passed that information on to the police. Horvath had heard of the name Daniel Bennett in the local area. 19 There was also fingerprint evidence that linked Daniel Bennett, but not the appellant, to the offence. Two fingerprints were taken. The first print (B1) was taken from the bottom of a window frame of the school's administration office. The second was from a cashbox located in the welfare office of the school. Detective Newton, a fingerprint expert, said that when he compared the fingerprints of Bennett with the fingerprint on B1, "there were points of identification, but there wasn't enough detail for Daniel Bennett to be excluded from that fingerprint." He could exclude the appellant. In other words, the fingerprint in the school could be Bennett's but could not be the appellant's. 20 The accused gave evidence denying his involvement, admitting his presence at the Ampol petrol station, and asserting that the keys had been delivered to his mother's house by Bennett. Michele Phillips was called to corroborate his evidence as to the keys. She also gave evidence as to what Bennett as a matter of custom wore. 21 At the close of the Crown case, trial defence counsel applied for a Prasad direction (Regina v Prasad (1979) 23 SASR 161); her Honour gave the jury such a direction but the trial proceeded. In the course of the trial no question arose as to why it was that Bennett was not called to give evidence (for the principles in relation to such a matter see Regina v Kneebone [1999] NSWCCA 279). From the summing-up to the jury it is apparent that trial counsel for the appellant made a "Jones v Dunkel" submission in regard to that witness (who also was not placed in the line up) and the jury was directed thereon. 22 It can be further observed that rather than a Prasad direction being sought, it could have been open (though it is not necessary to decide here) for an application to have been made by trial counsel in accordance with the situation postulated by the appellant's counsel in R v R (1989) 18 NSWLR 74 at 76E-G, per Gleeson CJ as to the "withdrawal" of the identification evidence. 23 In the course of short oral submissions the Crown conceded that nothing in the defence case added anything to the Crown case on the issue of identification. 24 In summary, it can be seen that the Crown case was, to say the least, at its end and certainly by the end of the whole of the evidence, fragile in the area of identification and vulnerable, again to say the least, by reason of what we consider to be the cogent evidence of the possibility of the involvement of Bennett, not least of which was that of the fingerprint expert. In those circumstances the Court was of the view that the deficiencies in the identification evidence and the cogent evidence linking Bennett to the commission of the offence caused it to have a reasonable doubt as to the guilt of the appellant in accordance with the approach identified in M v The Queen and thus make the orders referred to. ********** 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.