New South Wales Court of Criminal Appeal CITATION : Regina v Ahmad [2002] NSWCCA 265 FILE NUMBER(S) : CCA 60385/2001 HEARING DATE(S) : 21 June, 2002 JUDGMENT DATE : 21 June 2002 PARTIES : Regina Kevin Ahmad JUDGMENT OF : Spigelman CJ at 1, 16,18; Simpson J at 17; Blanch AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/3007 LOWER COURT JUDICIAL Robison DCJ OFFICER : COUNSEL : P E Barrett (Crown) P R Boulten (Appellant) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appellant) CATCHWORDS : Criminal law - robbery - unsafe and unsatisfactory - identification - circumstantial evidence Chidiac v The Queen (1991) 171 CLR 432 Alexander v The Queen (1980-1981) 145 CLR 395 CASES CITED: Pitkin v The Queen (1995) 69 ALJR 612, (1995) 130 ALR 35 Festa v The Queen [2001] HCA 72 (13.12.2001) Chamberlain v The Queen (1983) 153 CLR 521 Shepherd v The Queen (1990) 170 CLR 573 DECISION : Appeal allowed. Convictions and sentences quashed. Verdicts of acquittal entered on both counts. - 6 -in the COURT OF CRIMINAL APPEAL 60385/2001 SPIGELMAN CJ SIMPSON J BLANCH AJ 21 June 2002 REGINA v Kevin AHMAD Judgment 1 SPIGELMAN CJ: Blanch AJ will deliver the first judgment. 2 BLANCH AJ: This is an appeal against convictions at Campbelltown District Court on 5 April, 2001. The appellant stood trial on one count of armed robbery said to have occurred on 11 June, 2000 at the McDonald's restaurant at Casula and one count of stealing a motor car on 11 June, 2000 at Liverpool. 3 The Crown case consisted of evidence from two identification witnesses and there was other evidence tendered. The major ground of appeal argued in this case is that the verdict is unsafe and unsatisfactory. Where such a ground is raised, it is necessary for this Court to embark upon its own independent assessment of the evidence. In the context of an appeal against a conviction reliant on identification evidence in Chidiac v The Queen (1991) 171 CLR 432 at 443 Mason CJ said: "In deciding whether a verdict should be set aside as unsafe and unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused: … Or, to put it another way, it is the court to decide whether, on the relevant evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt:" His Honour pointed out at page 445 that even where appropriate directions had been given, the appellate court might conclude the jury did not apprehend the full extent of the warning. 4 In Alexander v The Queen (1980-1981) 145 CLR 395 the High Court indicated that the use of photo identification by the police had its drawbacks but could not realistically be forbidden. Gibb CJ, supra at page 400, noted a problem arising from the absence of the accused at the photo identification. He also noted the production at trial of photographs from the police created a perception of a "rogues gallery". He said at page 403: "… the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice." 5 The first identifying witness in this case was Nathan Brown. He was working at McDonald's at Casula on 11 June and at 1.30 p.m. he was out the back of the premises cleaning the area. He saw a blue Commodore in the drive-through section and in it he saw a person with dark brown hair with "darkish tanned skin". He saw that person, who stepped out of his car at the pick-up point for take-away food, he then saw that person get back in the car and reverse out of the drive-through. On 27 June, 2000 he was shown 14 coloured photographs including a photograph of the appellant. At first he selected four photographs and he then narrowed that down to two. He eventually pointed to the photograph of the appellant and said "That looks more like him". He was asked in cross-examination "The best, Mr. Brown, that you could say that out of the 14 photographs you were shown by Detective Cutler, the one that you eventually picked was the one that looked more like the person on 11 June than any of the other in that group of photographs, is that right?" He answered "Yes". He agreed that he expected to see the robber in the group of photographs he was shown. 6 The second identifying witness was Ms. Pandelis. On 11 June, 2000 she was the breakfast shift manager at this McDonald's restaurant. She was 19. She saw the robber after the robbery commenced and then saw him get into the car and reverse out. On 28 June, 2000 she was shown 14 photographs at Moorebank Police Station and she selected two photographs and said they "reminded me a bit of the man who robbed us". She said "I am not sure but these two photographs are similar to the man". When asked what features reminded her of the man, she said "Below the nose, the mouth particularly. The shape of the mouth." She was asked by the police "What percentage would you say that photograph 6L looks like the man?" She said "About 50 per cent". When asked "What percentage would you say photograph 8L looks like the man?" she said "Again about 50 per cent". The appellant's photograph was 8L. Her evidence otherwise was that her view of the robber was limited to less than a minute and when she viewed the photographs, she expected one of them would be the photograph of the offender. In cross-examination she said the photographs reminded her "a bit of the man who robbed us". 7 A third witness, Clarissa Reid, was working at the service counter at McDonald's on that day. She heard a noise and saw a man halfway through the window with a screwdriver and he demanded money and pointed the screwdriver at her stomach. She described the man as 165 cm tall, of Mediterranean appearance, with short hair and wearing a baseball cap. She was unable to identify any of the photographs. 8 None of this identification evidence amounted to evidence upon which there could be a conclusion reached that it established the appellant was the robber. In Pitkin v The Queen (1995) 69 ALJR 612, (1995) 130 ALR 35, the High Court dealt with a case where the identifying witness said "This looks like the person I seen take the lady's handbag." In the joint judgment of the Court at page 614, it was said "Obviously the fact an accused 'looks like' a person who, in fact, committed a crime is, of itself, insufficient to sustain a conviction of that accused of that crime." In my view, the evidence of the two witnesses who made an identification in this case does no more than raise a possibility that the appellant was the robber. Such evidence can be of some probative value (see Festa v The Queen ([2001] High Court of Australia 72 – 13 December, 2001), although the trial judge did have a discretion to reject it in the interests of fairness if its probative value was outweighed by unfair prejudice. The decision to allow the evidence was open to the trial judge in this case and it was quite appropriate for the evidence to be admitted. As McHugh J said in Festa (supra) "… the weakness of relevant evidence is not a ground for its exclusion." 9 There was other evidence relied upon by the Crown in this case to prove the guilt of the appellant. The first piece of that evidence came from Detective Senior Constable Cutler who said that on 16 June, 2000 police went to the home of the appellant's parents at Willan Drive, Cartwright and seized a sweatshirt and a "Nike" brand baseball cap and a pair of beige track pants. The track pants were eventually accepted as not having relevance. It was argued the sweatshirt and cap were similar to items worn by the robber. There was tendered at the hearing a video but the judge described the video as of poor quality and it was not suggested there could be a positive identification of the cap or sweatshirt as that worn by the robber as shown in the video. Moreover, the mother of the appellant gave evidence that the cap and sweatshirt belonged to the appellant's brother, Omar. This was disputed by Rouba Hijazi, who had lived in a de facto relationship with Omar. However, there had been significant periods of separation during that relationship. 10 The next piece of evidence relied upon was the discovery of two bottles of after shave lotion when the police went to the appellant's home in Surry Hills on 23 June, 2000. There they found three bottles of after shave – Joop, Tommy Hilfiger and Hugo Boss. The driver the car which was stolen, Stefan Simmonds, said that it was his mother's car which was stolen and two bottles of after shave were missing from the car when it was recovered. One was a bottle of Joop after shave and the other was a bottle of Tommy Hilfiger. He was able to say that the two bottles found in the appellant's home were similar to his missing bottles of after shave. However, he noted there was less after shave in each of the bottles. As to this issue, evidence was tendered to indicate these were common brands of after shave available in Sydney at that time. 11 The prosecution also relied upon a video tape taken from a video camera installed at the McDonald's restaurant. It showed part of the course of the robbery. Because the video camera at the premises changed focus from one part of the premises to another, it did not show continuous footage of the robbery in progress. The majority of the footage showing the robber showed the top of his head which was covered by a peaked cap. There was one part of the film which showed the robber getting out of the car and which did show his face, but the film was of such a poor quality that it would be impossible to make a positive identification. 12 In Chamberlain v The Queen (1983) 153 CLR 521 in the joint judgment of Gibb CJ and Mason J at page 534, it was said: "It seems to us that the proper test to be applied in Australia is, as Dawson J said, to ask whether a jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal i.e. must have entertained a reasonable doubt as to the guilt of the accused." At page 536, they went on to say: "It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed along would support that inference." They went on to restate the principle that in a criminal case based on circumstantial evidence, the circumstances must exclude any reasonable hypothesis consistent with innocence. 13 In my view, the evidence of identification from the two witnesses could not lead to a conclusion that the appellant was the robber. The description given of the robber was one which would fit many people in the community. The evidence relating to the cap and the sweatshirt did support the prosecution case but only to a very slight extent. The evidence of the after shave lotion bottles being found in the appellant's home also added to the prosecution case to a limited extent. The film footage demonstrated no more than that the appearance of the appellant was not inconsistent with that of the robber. None of these pieces of evidence individually could justify a conclusion beyond a reasonable doubt that the appellant was the robber. 14 The prosecution is entitled to prove its case by an accumulation of separate pieces of evidence as was said in Chamberlain (supra) or to use the words of Dawson J in Shepherd v The Queen (1990) 170 CLR 573 at 579 to create the "strands in a cable …". In my view, even when all of these pieces of evidence are added together, they do no more than raise a suspicion about the appellant and the combined effect of the evidence would not have justified a reasonable jury concluding beyond a reasonable doubt the appellant was guilty of either one of these offences. 15 In my view, the verdicts were unsafe and unsatisfactory. I would allow the appeal and quash the convictions and sentences and enter verdicts of acquittal on both counts. 16 SPIGELMAN CJ: I agree. 17 18 SIMPSON J: I also agree. 19 SPIGELMAN CJ: The orders are as indicated by Blanch AJ. 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. 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