ME v R [2012] NSWCCA 237

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: ME v R [2012] NSWCCA 237 Hearing dates: 2 October 2012 Decision date: 15 November 2012 Before: McClellan CJ at CL at [1] Rothman J at [2] Adamson J at [3] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against conviction - whether jury's verdict unreasonable or cannot be supported by the evidence - identification evidence Legislation Cited: - Crimes Act 1900 - Criminal Appeal Act 1912 Cases Cited: - M v The Queen [1994] HCA 63; 181 CLR 487 - SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: ME (Applicant) Regina (Respondent) Representation: Counsel: C Loukas (Applicant) N Bruni (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/130312 Publication restriction: None Decision under appeal Date of Decision: 2011-08-15 00:00:00 Before: Ashford DCJ File Number(s): 2010/130312

Judgment 1McCLELLAN CJ at CL: I agree with Adamson J. 2ROTHMAN J: I agree with Adamson J. Having examined the evidence, I, too, have no reasonable doubt as to the guilt of the applicant. 3ADAMSON J: The applicant (ME) was indicted with one count of robbery in company occasioning grievous bodily harm contrary to s 98 of the Crimes Act 1900 as follows: "On 12 May 2010, at Chester Hill, in the State of New South Wales, being in company with another person, robbed Terrence Gofton of a mobile telephone and a wallet containing personal documents, bank cards and a sum of money and at the time of the robbery inflicted grievous bodily harm on the said Terence Gofton." 4He was convicted following a trial before the District Court (Ashford DCJ and a jury of 12). 5The only issue was whether ME was the person who attacked the victim. 6ME seeks leave to appeal against his conviction on a single basis: that the verdict should be set aside on the ground that it is unreasonable, or cannot be supported. Leave is required because the ground involves a question of fact or a mixed question of law and fact: Criminal Appeal Act 1912 s 5(1)(b). 7The ground of appeal requires this Court to assess the whole of the evidence, both as to sufficiency and quality, and determine whether it has a reasonable doubt. 8The High Court, by majority, emphasised the nature of the task to be performed in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14]: "In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." 9In answering that question, this Court is to pay proper regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and to the benefits the jury has had in having heard and seen the witnesses. The High Court said, in M at [9]: "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."