CUMBERLAND v REGINA [2006] NSWCCA 377

New South Wales Court of Criminal Appeal

CITATION: CUMBERLAND v REGINA [2006] NSWCCA 377

HEARING DATE(S): 22 September 2006

JUDGMENT DATE: 22 September 2006

JUDGMENT OF: McClellan CJ at CL at 1; Buddin J at 41; Rothman J at 42

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - APPEAL AGAINST CONVICTION - larceny - robbery - malicious damage - identification evidence - directions - warning - unreliability - whether directions were given with authority of the court - judicial imprimatur - experience of the courts

LEGISLATION CITED: Crimes Act 1900 Evidence Act 1995

Crampton v R (2000) 206 CLR 161 CASES CITED: Domican v The Queen (1991) 173 CLR 555 R v Heuston (1995) 81 A Crim R 387

PARTIES: John Martin Cumberland (Appl) The Crown

FILE NUMBER(S): CCA 2006/1635

COUNSEL: G K Walsh (Appl) N Noman (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3086

LOWER COURT JUDICIAL OFFICER: Moore ADCJ

LOWER COURT DATE OF DECISION: 24 February 2006

IN THE COURT OF CRIMINAL APPEAL 2006/1635

McCLELLAN CJ at CL BUDDIN J ROTHMAN J

FRIDAY 22 SEPTEMBER 2006 CUMBERLAND, John Martin v REGINA Judgment 1 McCLELLAN CJ at CL: The appellant was tried and convicted on 29 August 2005 in relation to three counts: 1. Aggravated robbery (s 95 Crimes Act 1900 NSW) 2. Larceny (s 117 Crimes Act 1900 NSW) 3. Malicious damage (s 195(a) Crimes Act 1900 NSW) 2 The Crown case was that on 21 September 2004 at about 10.20 am the appellant drove a red Meteor motor vehicle, the property of his former de facto wife, Tracey Cook, to Macarthur shopping centre where he drove into Mrs Tannous causing her to be thrown onto a parked car. The appellant allegedly took Mrs Tannous' handbag containing money before fleeing the scene in the red Meteor. 3 A short while later the appellant allegedly smashed the window of a silver Daewoo motor vehicle parked in a car park at Bradbury shopping centre, taking a bag left in that car, before again fleeing the scene in the red Meteor. 4 The appellant then drove to Ms Cook's home at 15 Phelps Crescent Campbelltown and seeing police vehicles approaching from the other direction in the street, parked in the driveway, alighted from the vehicle and jumped the fence into the backyard of the premises. The engine of the motor vehicle was left running. The appellant was subsequently discovered by police hiding under a couch in Ms Cook's living room. The stolen bags were found in the car. 5 Evidence was given at the trial by Mrs Tannous who described the occupant of the car that hit her as a man in his mid thirties of average build and having darker blonde, bushy hair, light coloured skin with a redness to the face. The man she described did not have facial hair. 6 Evidence was also given by Ms Karen Pendlebury who had parked her car at the Macarthur Square shopping centre when she heard screams for help. She ran towards where Mrs Tannous was located saw a red, four door, 80's model Laser coming down the ramp and recorded the number plate of the car: ZJD-893. As the car drove past her, Ms Pendlebury noticed that it was being driven by a male wearing a blue and white checked shirt with short brown hair who appeared to be between 25 and 30 years old. She thought the man was European and noted that he had no facial hair and was not wearing glasses. 7 Ms Kylie Skelton had parked her car at the Bradbury shopping centre and left it to do some shopping. She placed her Kathmandu bag under the seat of the car and when she returned noticed that her car widow was smashed and her bag was missing. 8 Ms Adrienne Galliano was standing in the car park of the Bradbury shopping centre when she heard a banging noise. She saw a man banging on the passenger window of a car with his right hand. When the banging stopped she heard a smash. She observed what she believed to be an old model red Toyota or Mazda drive slowly past her with the boot open. She noted the registration number of the car. The car had only one occupant which she described as having dark, mid-length hair, athletic build, slightly tanned in his mid twenties. 9 Ms Pendlebury telephoned 000 and informed the police of the incident she observed and the registration number of the car. In response to the call Const Dutton in company with Snr Const Ashe went to 15 Phelps Crescent, Campbelltown, the registered address for the car. As the police car entered Phelps Crescent, Const Dutton observed a red Meteor car slow to enter the driveway of No 15 and then accelerate after the driver appeared to look towards the police car. Const Dutton noted that there was only one occupant in the red Meteor. 10 Const Dutton gave evidence that the red car came to a stop in the driveway and the driver emerged, ran around the front of the car and jumped a side fence into the backyard of the premises. Snr Const Ashe left the police car and chased the driver of the red car, also jumping the fence into the backyard. 11 The chase by Snr Const Ashe was not successful and he reported to Const Dutton that "he had lost him." Const Dutton noticed a pair of men's brown leather slip-on shoes in the backyard of the premises where the driver of the car had jumped the fence. Const Dutton described the driver as wearing a dark jacket with dark messy hair. Having failed to find the driver she then went to the front of the house and waited, after calling for further police assistance. She also switched off the engine of the red Meteor motorcar and noticed two bags on the front seat. They were the bags taken from the victims. 12 Const Dutton did not enter the premises but she later observed the appellant exit wearing a light grey sloppy joe and dark track pants and no shoes. She identified the appellant as the same person that she saw exit the red Meteor although she noted that he was no longer wearing the black jacket he had worn when he got out of the car. 13 Snr Const Ashe gave evidence of observing the red Meteor car as they approached 15 Phelps Crescent in the police vehicle. He noted the car had only one occupant and chased that person over the fence into the backyard of the premises. He recalled the driver as being a male, wearing a navy blue tracksuit top and pants with salt and pepper shaggy hair. He also observed a pair of sandals on the grassed area adjacent to the fence over which the driver had escaped. 14 Sgt Hurst in company with Const Digby attended 15 Phelps Crescent at about 10.40 am. He gave evidence that they knocked on the front door and were let in by Ms Cook. They entered the lounge room where Sgt Hurst observed the legs of a male person lying under the lounge. Const Digby approached that person, spoke with him and the appellant emerged. He was then arrested and cautioned. He had a fresh graze on the back of his left hand and was sweating. It was suggested that Sgt Hurst had caused the graze when he handcuffed the appellant but he denied this. 15 Const Digby also gave evidence. She observed a person under the lounge. She recalled seeing an arm sticking out from under a futon-style lounge with metal legs. She also noticed that the appellant, when he emerged, was sweating and had a fresh graze to his left hand. 16 The appellant gave evidence at his trial and was cross-examined. He said that on the evening of 20 September he had stayed the night with Ms Cook. He said he slept in the lounge room and awoke approximately 15 minutes before the police arrived at the house. He said that after waking he had dressed and made himself a cup of coffee. He said that upon returning to the lounge room he saw Ms Cook talking on the mobile telephone and heard loud banging on the western and eastern parts of the house. Ms Cook answered the front door and the police entered. 17 In his evidence-in-chief, the appellant said that when the police entered the house and he was standing in the lounge room just inside the doorway. However, when cross-examined, the appellant said he was standing on the other side of the coffee table. He said that the graze to his left hand was caused by the application of the handcuffs by the police and denied that he was sweating when arrested. He denied that he had ever been under the couch. 18 Forensic examination of the motor vehicle found blood on the steering wheel. That blood was confirmed as the blood of the appellant. The appellant suggested that this may have been caused by a nick to his finger when he was cleaning the car on the previous day. 19 There is only one ground of appeal.