New South Wales Court of Criminal Appeal CITATION: Whitney v. Regina [2006] NSWCCA 243 HEARING DATE(S): 8 May 2006 JUDGMENT DATE: 14 August 2006 JUDGMENT OF: Hodgson JA at 1; Grove J at 24; Adams J at 25 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW - Appeal against conviction - Identification from photographs - Jury able to compare photographs with person before them - Appellant does not attend court on the appeal - Whether possible to say the jury could not reasonably be satisfied, beyond reasonable doubt, of identity of offender. PARTIES: Shayne Nathan Whitney - appellant Regina - respondent FILE NUMBER(S): CCA 2006/341 COUNSEL: Mr. A.P. Cook for appellant Ms. V. Lydiard for respondent SOLICITORS: Steve O'Connor, Legal Aid Commission, for appellant S. Kavanagh, Solicitor for Public Prosecutions, for respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): D04/11/1440 LOWER COURT JUDICIAL OFFICER: Nicholson DCJ LOWER COURT DATE OF DECISION: 19 August 2005 IN THE COURT OF CRIMINAL APPEAL CCA 2006/341 DC 04/11/1440 HODGSON JA GROVE J ADAMS J Monday 14 August 2006 WHITNEY Shayne Nathan v. REGINA Judgment 1 HODGSON JA: On 21 March 2005, the appellant was indicted before Nicholson DCJ on the charge that he: On 29 August 2004 at Longueville in the State of New South Wales did rob Nicholas Marshall of a sum of money and two packets of cigarettes, the property of Vafimo Pty. Limited, trading as Caltex Starshop, Longueville. 2 The appellant pleaded not guilty, and was tried before his Honour and a jury. On 24 March 2005, the jury returned a verdict of guilty. 3 On 19 August 2005, the appellant was sentenced to a non-parole period of 1 year 6 months to commence on 21 September 2004 and expire on 20 March 2006, with the balance of term of 12 months to expire on 20 March 2007. THE CROWN CASE 4 Nicholas Marshall gave evidence that, on 29 August 2004, he was on duty as a console operator at the Caltex Service Station, Longueville, operated as Caltex Star Shop. He was doing the shift between 1.30pm and 8.30pm that day, and he was the only employee at the shop. 5 He said that, at about 6.15pm on that day, a male person came into the shop and walked around the display; and took a pie out of the pie oven and placed it on his counter. Mr. Marshall asked him "Is that all, mate?", and the man said "Oh no I'm holding you up". Mr. Marshall said "Ah are you sure?", and the man said "Yeah, I'm holding you up. Give me all the money …Yeah I've got a knife", while demonstrating that he had a knife down his pants. Mr. Marshall pulled the till out and put it on the counter. The man grabbed the money, and then asked him for some cigarettes. Mr. Marshall threw two packets of cigarettes to him. The man then walked out of the shop, and started running. Mr. Marshall pushed the alarm and called the police. 6 Mr. Marshall described the robber as "Male Caucasian, probably about 172 centimetres tall …He had no shoes on and he had looked like a rolled ankle on his right – his ankle looked swollen … He was wearing just a black sort of suit pants, they looked like black trousers and they were just rolled up to the ankles and a button-up green shirt, and he had sort of just brown hair, and I think brown eyes". Mr. Marshall said he was "unshaven, there was quite a bit of facial hair, a day's growth or something". Mr. Marshall said he looked like mid to late 20s. Mr. Marshall said that he alerted the store manager, Darren Tyndall, about the robbery; and Mr. Tyndall came to the service station and reviewed the surveillance footage. 7 Mr. Marshall was shown three pages containing six photographic images, taken from the closed-circuit television installed in the shop (Exhibit A); and he said he recognised himself depicted there and the man who held him up at that time. 8 Mr. Marshall said that, on 17 September 2004, he went to Chatswood Police Station and viewed an array of 20 photographs (which became Exhibit C). He was then asked to identify the man who held him up at the service station that day. He said he selected an image, photograph No.4. 9 A video of the occasion (Exhibit B) was played to the jury. This showed Mr. Marshall looking at the array of photographs, saying "There's one that I'm thinking" (having previously said, when asked if he had previously seen any of these persons, "No, I don't …); and then selecting photograph 4 saying "It looks like the guy who was there, but it's a while ago" and agreeing with the police officer that he was not absolutely sure. 10 Darren Tyndall gave evidence that he went to the service station shortly after the robbery and viewed the recorded images from the closed-circuit television. He said Mr. Marshall and a police officer called Michael were next to him while he was viewing the image. He heard Mr. Marshall say "Oh, this is him coming in now". He said that Michael selected about six shots from the recorded images which he thought were good; and that Michael then transferred them onto a floppy disc. This floppy disc became Exhibit D before the jury, and through a computer this disc showed somewhat better images than the printed images on Exhibit A, the three pages referred to earlier. 11 Constable Bridie O'Shea gave evidence that she and Constable Vickery went to the Caltex Service Station, Longueville, at about 6.30pm on 29 August 2004 after receiving a communication by police radio. She said that Mr. Marshall described the robber as "a male, late 20s, knife in long pants, short brown hair, no shoes, cut on right foot, wearing a dark green and blue buttoned shirt, Caucasian in appearance". 12 Detective Sergeant Andrew Birch gave evidence that, in the course of the investigation on 8 September 2004 in relation to this matter, he spoke to the appellant, and the appellant denied any knowledge of the robbery. The appellant told Detective Birch that he did not want to go into a line-up. Detective Birch then obtained a forensic order for the appellant's photograph to be taken. This photograph became Exhibit E. This was one of the photographs later placed in the array of 20 photographs shown to Mr. Marshall. THE APPELLANT'S CASE 13 The appellant did not give evidence at the trial or call evidence on his behalf. It was the defence case that the images in Exhibit A were of such poor quality that they were not a proper vehicle for comparison with the image of the appellant in Exhibit E or with the actual appearance of the appellant in court; and that Mr. Marshall's selection of photograph No.4 proved no more than that the image in photo 4 "looks like the guy who was there". TRIAL JUDGE'S SUMMING UP 14 Included in the directions given by the trial judge were the following: 66. So all of those criticisms members of the Jury bring me to this point. I warn you that the evidence of identification, if you regard it as such, and of course it is perfectly open to you not to regard it as identification, but if you do regard the selection of photograph 4 as identification, then I warn that that evidence given by Nick Marshall may well be unreliable, you should approach the evidence of identification with substantial caution in determining whether you are prepared to accept that evidence, and if you do accept it as to the weight or level of importance you are to give to it. 15 The trial judge later made the following observations: 67. … The warning of the need for special caution before accepting the evidence of identification is one that is given in every case in which, such evidence is disputed by the Defence. And again, this is an expression of opinion by me and not a direction, but you may take it for what it is worth. If you agree with it, accept it. If you do not, you still have to listen to the warning but you can put this expression of opinion to one side. It is particularly appropriate in this case to give a warning for the reasons I have given above. To those reasons should be added this further reason. There is only one witness in this case, Mr Marshall, to the criminal offence, therefore - and it is not Mr Marshall's fault - only one witness capable of giving identification from his memory of the event. 68. In this case the only matter in dispute between the parties is identification. The outcome of this case turns on one matter only, the identity of the robber. Normally I do not give the warning because of any particular view which I have formed concerning the reliability of the identification evidence. However, in this case I have formed a view which is a view of the facts about the dangers inherent in Nicholas Marshall's selection of photograph 4. My personal view is that the evidence of identification, whilst honestly attempted, is neither positive identification nor could it possibly be reliable identification. 69. While I give this warning in all cases, regardless of whether I form a view as to whether the identification evidence is reliable or not, I stress that this is because you are the judges of the facts, not me. So it is a matter for you, whether having heeded the warning I have given, are you prepared to accept the selection of photograph number 4 as good identification of the offender by Nicholas Marshall. 16 No complaint was made at the trial concerning the trial judge's directions to the jury, and no submission was made that there was no case to go to the jury. GROUNDS OF APPEAL 17 The appellant relies on the following grounds of appeal: (1) The learned trial judge erred in the manner in which he directed the jury to analyse the identification evidence of Nicholas Marshall. (2) The verdict of guilty is unreasonable having regard to the evidence in the trial. WHETHER DIRECTIONS ERRONEOUS 18 Mr. Cook for the appellant submitted that in his directions to the jury, the trial judge conflated the warning that special caution was needed before accepting evidence of identification, and his own opinion that Mr. Marshall's selection of photograph 4 was not positive identification and could not be reliable identification; so that, when the trial judge said that the jury should ignore his view unless their view coincided with it, the jury could have taken that as indicating they could disregard his warning about the need for special caution. If the jury went away with the impression that the warning was only an opinion of the judge that they need not accept, they were misdirected. 19 In my opinion, the possibility of confusion was small, and was not seen by Counsel for the appellant as a matter calling for clarification or further directions. The directions, considered as a whole, were favourable to the appellant. In my opinion, the small possibility of confusion was such as could not give rise to a miscarriage of justice, which could justify grant of leave under r.4 of the Criminal Appeal rules to rely on a matter not raised at the trial. WHETHER VERDICT UNREASONABLE 20 Mr. Cook submitted that the selection by Mr. Marshall of photograph 4 could not, in view of his comments, establish any more than that the appellant was similar in appearance to the robber; and that the quality of the photographs in Exhibit A was insufficient to have allowed the jury to conclude, beyond reasonable doubt, that the appellant was depicted in them, by comparison either with Exhibit E or with the appellant as he appeared in court. 21 Having viewed the video recording of Mr. Marshall's selection of photograph 4, I think that selection could not reasonably be considered as establishing more than similarity of appearance; and having seen the six still photographs both as they appeared in Exhibit A and as displayed on a computer screen through use of Exhibit D, I think they are of insufficient quality to support a conclusion beyond reasonable doubt that they depict the same person as shown in the photograph Exhibit E. 22 However, the appellant did not attend Court on the hearing of the appeal, and the jury had the great advantage of seeing the appellant in person. Much greater assurance is possible in reaching a conclusion whether a number of photographs of a person depict a person actually in one's presence (or a person already well known) than in reaching a conclusion that such photographs depict a person shown only in another photograph. The question of identification in those circumstances is very much a jury question. I am unable to say that the jury could not reasonably have been satisfied, beyond reasonable doubt, that the six still photographs shown in Exhibit A and Exhibit D depicted the person who was in court before them. CONCLUSION 23 For those reasons, in my opinion the appeal should be dismissed. 24 GROVE J: I agree with Hodgson JA. 25 ADAMS J: I agree with Hodgson JA. ********** 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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