New South Wales Court of Criminal Appeal CITATION : R v Shorten [2004] NSWCCA 266 HEARING DATE(S) : 17 June 2004 JUDGMENT DATE : 6 August 2004 JUDGMENT OF : Grove J at 1; Dowd J at 2; Sperling J at 44 DECISION : Appeal dismissed CATCHWORDS : Conviction appeal - armed robbery - competence of counsel - directions to jury on identification evidence - assertions that conviction unreasonable Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Rules Evidence Act 1995 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Chidiac v The Queen (1991) 171 CLR 432 Ignjatic v R (1993) 68 A Crim R 333 Papakosmas v R (1999) 196 CLR 297 CASES CITED : M v R (1994) 181 CLR 487 R v Birks (1990) 19 NSWLR 677 R v Bryant, NSWCCA, unreported, 27 June 1994 R v Hines (1991) 24 NSWLR 737 R v Leonard, NSWCCA, unreported, 4 August 1993 R v Moussa [2001] NSWCCA 427 PARTIES : Crown David Eric Shorten FILE NUMBER(S) : CCA 60460/03 COUNSEL : Crown: J Girdham Appellant: In person SOLICITORS : Crown: C K Smith Appellant: none LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1235 FILE NUMBER(S) : LOWER COURT Ainsley-Wallace DCJ JUDICIAL OFFICER : - 1 - IN THE COURT OF CRIMINAL APPEAL 60460/03 Grove J Dowd J Sperling J Friday, 6 August 2004 R v David Eric SHORTEN Judgment 1 GROVE J: I agree with Dowd J. 2 DOWD J: This is an appeal by the appellant, against conviction only, on a charge of Armed Robbery contrary to s97(1) of the Crimes Act 1900, which offence carries a maximum penalty of 20 years' imprisonment. Judge Ainsley-Wallace, the trial judge, imposed a sentence on 20 September 2002 of 8 years' imprisonment commencing on 18 April 2001 to expire on 17 April 2009, with a non-parole period of 5 years also commencing on 18 April 2001 to expire on 17 April 2006. 3 The appellant had been arrested on this matter and another matter, and was bail refused. The appellant had been in continual custody since his arrest. 4 The appellant had a number of prior convictions of a minor nature, mainly related to drug matters, for which he had not previously had a custodial sentence imposed. 5 The robbery occurred at a pharmacy on Oxford Street, Sydney at around 6pm on 4 April 2001. A person approached a female shop assistant standing behind a counter and made an enquiry about a particular type of condom, holding two packets of condoms in his hand. The condoms were then replaced on the shelf. A customer who was then in the pharmacy left the store and the person then came back to the counter with a packet of condoms which he put on the counter. The shop assistant said that she had looked away and that when she looked back the person had a knife in his hand which he was pointing at her. He told her to open the cash register, and then went behind the counter and took money out of the register. The pharmacist saw this, called out to the robber and, using a small ladder, managed to fend off the robber, who then ran away. 6 The person committing the robbery ran around the corner to South Dowling St, where a taxi had been waiting, in which was seated the robber's female companion. The taxi drove off with the two persons as passengers. The taxi's license plate number was noted by a bystander, an Adam John McCullogh, whose evidence, by way of tender of his statement, was of what he had seen, describing the robber and the license plate number of the taxi. 7 The taxi driver also gave evidence in the proceedings. His evidence was that after a woman hailed the taxi and it moved away from a busy intersection some metres up South Dowling St, a man came to the back door of the taxi and asked the taxi to wait, saying that he wouldn't be long. The man came back about three minutes later and the woman asked the taxi driver to drive them to Waterloo. The taxi driver described the man as possibly Aboriginal, with dark skin and a skinny build, about 170 cm tall, in his late twenties, unshaven and wearing a light-coloured baseball cap, wrap-around sunglasses and dark clothes. 8 A closed-circuit television video from within the pharmacy was admitted in evidence in the trial and showed a person within the pharmacy premises, generally of a similar description to that given by the taxi driver. The video showed the attack on the shop assistant and the fending off by the pharmacist. 9 In the trial, a Senior Constable Sumsky gave evidence of his taking of three boxes of condoms for fingerprint analysis. There was no issue in the trial that the condoms that were tested for fingerprints were the same as those taken from the shop. 10 In the trial, Detective Sergeant Newell, a fingerprint expert from the Major Crimes Laboratories at Westmead, gave evidence that he had located and photographed a fingerprint on one of the packets. His evidence was that the age of the fingerprint was such that it could not be older than one or two weeks. Detective Senior Constable Foley of the fingerprint section at Parramatta gave evidence that the photograph of the fingerprint was identical with the appellant's left thumbprint on file with the police. 11 At the trial, the appellant did not give evidence. The appellant's case was that there was no direct evidence that the appellant was the robber; that the robber depicted on the video was not the appellant; that the fingerprint could have been laid at any time in the two weeks leading up to the offence; and that there was no direct evidence that the appellant had touched the packet of condoms on which the print was found, or any evidence as to how often the stock on the shelves was replenished. 12 The grounds of appeal were included in a document lodged by the appellant. A further handwritten summary of arguments in support of the grounds and a typed note dealing with certain of the grounds were placed before the Court. The grounds of appeal as set out in the document of the appellant were as follows: 13 Grounds of Appeal 1. Failure of Counsel to seek directions on identification and circumstantial evidence; 2. Judge erred in not giving directions on identification and circumstantial evidence; 3. Judge erred in not informing the jury of the accused's right to an identification line up after he had agreed to a line up; 4. Failure of Counsel to seek Voir Dire on the admissibility of statements of witnesses not available for cross examination; 5. Failure of Counsel to follow instructions to call parole officers to give evidence of the fact that the accused had a shaven head on the day of, and hours prior, to the offence; 6. Judge erred in not directing a Not Guilty verdict be entered as the evidence put forward by the Crown did not support a case for deliberation; 7. Judge erred in not clarifying if answer 35 of Gamage evidence was in fact a dock identification or an account at time of robbery; 8. Points 4,5,and 8 failure of Counsel to follow instructions of client; 9. Unsafe and unsatisfactory conviction. 14 Although not following the precise order of these grounds, in support of the grounds of appeal the appellant submitted that there was no identification of the appellant, that there was no evidence capable of identifying the appellant as the robber, and that her Honour the learned trial judge had shifted the onus onto the jury to become identification experts, causing the jury to in effect do a dock identification of the appellant. 15 The appellant's contention that there was never enough evidence for a jury to bring down a conviction is based on a series of arguments. 16 The appellant contends, first, that the statement of McCulloch, which was made some two months after the event, was admitted by the appellant's barrister without consultation with the appellant. The statement had then been read in open Court in the presence of the appellant. The appellant said that his Counsel told him that it is the Counsel's decision, but that it should have been the appellant's decision The appellant submitted that the description in McCulloch's statement significantly differed from all other descriptions given, and that McCulloch could not have seen people leave the taxi as alleged by McCulloch. The appellant said that he would not have let the evidence in and that it could not be tested under cross-examination because McCulloch was overseas. The appellant also said that the statement had not been served on him. 17 The appellant submitted that it was never possible for a fair and reasonable jury properly instructed to prove that the appellant was not the robber, that the Crown did not have the security video enhanced, and that it would be difficult to identify anyone from the video. The appellant further submitted that the man depicted in the security video did not look like the appellant. The appellant also said that the witnesses agreed that he had darker, more olive skin than a northern European, the appellant having asserted that as he was of Aboriginal heritage his skin was slightly darker than a person of northern European heritage. 18 The appellant's contention was that crucial evidence was not presented on his behalf, being evidence of which he had made his legal representatives aware. It was contended by the appellant (in the appeal) that at the time of the alleged robbery, the appellant was bald, and that this issue was never raised by his barrister, who had spoken to the appellant's parole officer, all the evidence having been that the robber had hair. The appellant said that this evidence not being presented was in spite of the appellant asking his legal representatives that the issue be raised, and that the officers concerned were not cross-examined on the issue of the appellant's baldness. There was no evidence before the trial Court or this Court as to baldness or otherwise. 19 The appellant further contended that there were variations in the description by the various witnesses, but clearly no-one described the appellant. The appellant further submitted that there was an ambiguity about the evidence of the shop assistant as to whether she was in fact making an identification of the appellant in the dock, and that the Judge's direction in the summing up was that the jury should look carefully at the descriptions given as to whether they could be applied to the appellant. The appellant further contended that no directions on the risks of convicting on identification evidence, particularly where there was no clear consistent identification of the robber, were given. 20 As to the question of identification parade, the appellant contended that he was willing to take part in an identification parade, and that it was never made clear to him why it never took place. The appellant submitted that there was no reason why a further identification parade could not have occurred, and that the failure of the police to conduct an identification parade did nothing to assist him in proving his innocence. The appellant submitted that he would have been prepared to take part in an identification parade, and that it was the duty of the police to find people willing to participate in a parade. 21 In relation to the fingerprint, the appellant submitted that the Crown case relied solely on a particular thumbprint, and that the Crown had failed to connect that thumbprint to the robber. The appellant further submitted that the fingerprint came off a packet of condoms which was not those taken to the counter by the robber in that the robber was not seen to touch the particular packet which the appellant's fingerprint was found on. The appellant did not believe the fingerprint should have been included in the evidence, but said that his barrister did not wish to argue the point on his behalf. The appellant also contended that there was no precise evidence there as to how long the condoms may have been on the shelf. The fact was that the appellant's fingerprints could be identified and that he, the appellant, became the subject of police attention, not the robber. 22 In relation to the summing up of the learned trial Judge, the applicant submitted that her Honour was incorrect in inviting the jury to speculate on the identifying of the robber; that her Honour should have given adequate warnings; that her Honour should have highlighted the failure of the Police to give an identification parade; and that her Honour should have pointed out the weakness in the Crown evidence on which the jury was asked to rely. The appellant submitted that her Honour failed to direct the members of the jury in relation to their role as identification experts, causing the jury to do a dock identification, and that her Honour had failed to draw to the jury's attention the fact that the accused had agreed to an identification parade upon his arrest, and that an identification parade is the desired method to be used. 23 The appellant further submitted that in a case such as this, which is one of identification, her Honour had a responsibility to direct an acquittal at the end of the Crown case, and that her Honour was in error in not directing the jury as to the inherent dangers as to making an identification of the accused in the dock, when the evidence before it was not capable of identifying the accused. The appellant further submitted that the best the Crown could put the evidence was to find a general description that fit the accused, and that her Honour failed to give appropriate judicial warnings. 24 The Crown in reply submitted that the essential issue in the trial was whether it was the appellant who had committed the offence, and identified a number of circumstances relied upon in order to prove that case. These were: a) that the accused was generally of an appearance not inconsistent with the descriptions given by the shop assistant, the taxi driver, and McCullogh, with the exception of the height asserted by McCullogh; b) that the appearance of the offender in the video was consistent with the appearance of the appellant; c) that the appellant's thumbprint was located on a packet of condoms on the display shelf; d) that the appellant had been seen to pick up condoms from that display five minutes immediately before the offence; e) that the pharmacy had a turn-over of condoms of at least a packet a day; f) that there was no evidence that the appellant had been in the store prior to the day of the offence, and the shop assistants had never seen the offender before. 25 It was submitted by the Crown that the appellant had adduced no evidence in relation to, and that there was no challenge to the evidence of the accused's fingerprint being on the condom packet. It was further submitted by the Crown that the defence case simply was based on a reliance on the different and varied descriptions of the robber and that those descriptions did not precisely describe the appellant. This was despite the fact that, clearly on the Crown case, the appellant had touched the condom packet. 26 In reply to the grounds which assert incompetent representation at the trial, the Crown submitted, and with this I agree, that the principles set out in R v Birks (1990) 19 NSWLR 677, apply, as summarised by Gleeson CJ at p 685. In Ignjatic v R (1993) 68 A Crim R 333, Hunt CJ at CL stated at p 336: "Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will interfere." 27 The onus was on the appellant to establish a miscarriage of justice, and it must be shown that there was at least a substantial chance of acquittal. In relation to the assertion that the reading of the statement of McCulloch, was in the absence of instructions, evidence was tendered before this Court that the statement had been served on the appellant's legal advisers in July 2001. The description given by McCulloch varied somewhat from that of the other descriptions, and this fact was relied on by the defence in the trial. It is submitted by the Crown that the evidence cannot be said to have resulted in any miscarriage of justice. 28 In relation to the assertion that Counsel failed to call evidence of the appellant's appearance, the Crown pointed out that there was evidence on the day of the arrest that the appellant had a shaven head, but the arresting officer had no prior knowledge that he had been bald, and calling the parole officer may have resulted in prejudicial evidence being adduced. The fact that the offender wore a cap significantly reduces the effectiveness of this evidence. It was submitted by the Crown that there is nothing to suggest that the defence case was not advanced other than competently, and that any decision of the appellant's Counsel would not have affected the outcome of the trial. 29 I would dismiss the grounds of appeal relating to the competence of Counsel and his failure to seek or abide by instructions. 30 As to the assertion that the trial Judge's directions on identification were inadequate, and that the appellant was denied the opportunity of an identification parade, the appellant requires leave pursuant to r4 of the Criminal Appeal Rules (the "Rules") that no direction was sought at the trial. 31 The Crown submitted that there is no case for leave under r4, unless this Court is satisfied that the appellant had an arguable case that the trial Judge had made an error of law, or was satisfied that the appellant's conviction was otherwise a miscarriage of justice. In Papakosmas v R (1999) 196 CLR 297, McHugh J stated at p 319: "Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant." 32 Evidence was adduced before this Court of a letter being forwarded to trial Counsel asking for him to provide an affidavit. His Counsel asked for the transcript of the trial, but no affidavit was filed as to Counsel's conduct. 33 The practice has developed in relation to applications for leave under r4 for the filing of an affidavit by trial Counsel. In R v Hines (1991) 24 NSWLR 737 at 743 Sully J, with whom the other members of the Court agreed, stated: "For my own part, I consider that it should become the fixed practice of this Court that in a case where the person who is to appear for the appellant on the hearing of the appeal did not appear for the appellant at the trial, there should be filed an affidavit which puts before this Court such explanation as it might be desired to advance for the failure to take, at the proper time and in the proper form, at trial an objection upon which it is sought to rely on the hearing of the appeal. I feel very strongly that failure on the part of this Court to take such a stand will detract seriously from the efficient administration of criminal justice according to law. That efficient administration of criminal justice requires imperatively, - although, no doubt, among other things, - the affording by the legal profession or proper assistance to trial judges. A fundamentally important aspect of that professional duty of assistance is the duty to take at the proper time and in the proper way proper objections to the trial judge's summing-up in a particular case. If, in a particular case, counsel or a solicitor representing an accused person simply overlooked the point at trial, then I can see nothing harsh or unreasonable in expecting that practitioner to own up to theoversight when the point is sought to be raised for the first time on appeal. If the practitioner has some other explanation of substance for the failure to take the point at trial, then, again, I can see nothing untoward in this Court's expecting to be told what the explanation might be. Such an approach applied consistently and sensibly by this Court would, I venture to suggest, instill into the conduct of criminal trials a degree of intellectual discipline, to say nothing of proper professional pride and responsibility, all of which qualities appear to me, if I may say, to be sadly lacking, not, to be sure, in all criminal trials, but certainly in a good many." 34 The importance of this type of material has to be recognised by this Court, although with some reservations (see R v Leonard, NSWCCA, unreported, 4 August 1993 but cf R v Bryant, NSWCCA, unreported, 27 June 1994). In R v Moussa [2001] NSWCCA 427 at paras 58-60, Howie J also referred with approval to R v Hines (supra). 35 I would not grant leave under r4 as no arguable case has been made out that the appellant's conviction was a miscarriage of justice and there is no evidence before the Court as to why trial Counsel took the decisions that he did. The onus is on the appellant. 36 I accept the Crown submission that the evidence of descriptions of the offender was not identification evidence but was circumstantial evidence that when taken with other evidence could lead, rationally, to the conclusion that the applicant was the person who committed the offence. As submitted by the Crown, the evidence of descriptions of the offender by eyewitnesses was not within the definition as set out in the dictionary of the Evidence Act 1995, which is as follows: identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed, or (ii) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b) a report (whether oral or in writing) of such an assertion. 37 There was no identification by the witnesses in the witness box and the evidence admitted in the trial was evidence which was capable of proving the commission of the crime by the applicant, and was of a circumstantial nature and not of an identification nature. Her Honour was therefore not obliged to give directions in accordance with s116 of the Evidence Act, and therefore the summing up was adequate in this respect. I would not allow any ground of appeal based on her Honour's directions or the matters that are required under r4 of the Criminal Appeal Rules. 38 The appellant submitted that the conviction was unsafe and unsatisfactory. To determine whether the conviction was unsupportable and unreasonable it was necessary to consider the whole of the evidence. In doing so, I have considered that evidence, and am of the view that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 39 In this respect I have had regard to what was said in the majority judgment in M v R (1994) 181 CLR 487 at 494-495 (footnotes omitted): In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence ( Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at pp 618-619; Chidiac v The Queen (1991) 171 CLR 432 at pp 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty ( Chidiac v The Queen (1991) 171 CLR at pp 443, 451, 458, 461-462). 40 In my view, it cannot be said that the evidence lacks probative force so as to lead this Court to conclude that even making full allowance for the advantages enjoyed by the jury there was a significant possibility that the appellant was an innocent man who has been convicted. 41 I would dismiss this ground of appeal. 42 Accordingly in respect of all matters raised I consider that no ground has been made out and would dismiss the appeal. 43 The order that I propose is that the appeal be dismissed. 44 SPERLING J: I agree with Dowd J. ********** Last Modified: 08/11/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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