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." The evidence The victim's evidence 10The victim gave evidence that on 21 May 2010 he had been drinking beer at Newtown, which amounted to three or four full-strength schooners over the course of three to four hours. He caught the train back to Chester Hill and arrived at about 6.30 pm. When he got off the train he decided to sit on a bench near the platform and roll a few cigarettes. Shortly after he sat down two men approached him: one in a red jumper and the other in a hooded white jumper. They asked him for cigarettes and also for some "pot". It was common ground that these two men were the applicant and his friend, ES. 11The victim then walked up the steps and left the station, as did the two other men. The victim turned left at street level. All of a sudden he was struck from behind. He turned around and was punched in the face. He recognised his assailants as the same two men who had earlier asked him for cigarettes and had left the station at the same time as he did. After two punches he fell to the ground and they kicked him a couple of times. He fell heavily and grazed his right arm. They took his mobile phone and his wallet which contained $30 or $40 in cash. 12The victim was assisted by a bystander who called an ambulance, which took him to Bankstown Hospital. He had a fractured eye socket that required surgery to put a metal plate in his face. He is still suffering from a loss of sensation around the whole left cheek area including his teeth. 13The victim was shown CCTV footage and identified himself sitting on the bench rolling his cigarette. He also identified the males who had asked him for cigarettes. 14In cross-examination it was put to the victim that he was drunk; he said that he was relatively sober. He agreed that he was interacting with the two other males for about three minutes. He confirmed that he had told the males to "piss off" at the top of the stairs. 15The victim agreed in cross-examination that he realised that his assailants were the two males who had asked him for cigarettes because he recalled the red jumper and the white hooded jumper. The victim distinctly remembered the drawstrings on the white hooded jumper. 16The victim agreed in cross-examination that he had gone to the police station on 25 May 2010 and had selected three males from a series of photographs as the most likely to have assaulted him. None of the males selected was the applicant. The victim said that he specifically remembered the applicant's long hair. 17The victim was extensively cross-examined about matters of detail, including about what he had told the bystander, police and the doctor about the exchange on the night of his admission to hospital. The bystander's evidence 18Evidence was also given by a bystander who was walking to the taxi rank at Chester Hill station when she noticed the victim sitting in the gutter and another man next to him on the telephone. She assisted him to speak to Triple 0. The victim told her that there were two assailants and that one had been wearing a white jumper. She noticed that he was bleeding from his mouth and nose, had injured his left eye and had a graze on his forehead. The paramedic's evidence 19The paramedic who came in the ambulance to treat the victim gave evidence of the location where she had found him. He had told her that he had been mugged and his wallet and mobile phone had been taken. She said that he was apparently able to recall all events and there was no loss of consciousness. The victim gave a history of having been out drinking. He was able to give his name, address and so on. In cross-examination, the paramedic described the victim as "alert and oriented". Police evidence 20Senior Constable Shane Phillips attended the victim at Bankstown Hospital on 21 May 2010. His notebook included the following: "About 5.30 pm on Friday 21 May 2010 on platform on Chester Hill Railway Station when befriended by two males about 25 years of age, Middle Eastern appearance, one had white hooded jumper, the other had a distinctive haircut, shaves at sides, back bit long. Caught train from St Peters Station about 5 pm. Had only just got off train when they started talking asking victim if he wanted some weed. About ten minutes later they started punching victim..." 21In cross-examination Constable Phillips agreed that at the time of making the statement the victim had made no mention of another male wearing a red jumper. CCTV footage 22The Crown tendered CCTV footage which was taken at Chester Hill Railway Station from a number of points along the platform as well as from the stairs leading up to street level from the platform. The salient events shown in that footage are set out below. 23The footage showed the applicant alighting from a train at 5.48 pm and walking towards the exit of the platform followed by ES. The pair continued along the platform, and left via the stairs. At around the same time, a person wearing a light jacket with drawstrings climbed the same set of stairs while a person wearing a grey sweatshirt with drawstrings accompanied by a person with a white hooded jacket walked along the platform. At 6:27 pm, the footage showed the applicant and ES walking back down the stairs onto the platform. 24At about the same time, the victim alighted from a train, as did a man wearing a light hooded sweater. As the victim walked away from the carriage towards the platform exit, he appeared relaxed. The man in the light hooded sweater walked in the same direction. At 6:28 pm, the victim appeared to catch ES's attention before sitting on a nearby bench and rolling a cigarette. A few seconds later, the applicant sat down on a bench while ES paced nearby and at some point waved at someone in the carriage of the departing train. The two appeared to talk for a few seconds, before ES sat opposite the victim. 25The footage showed all three standing up to leave at 6.31 pm. ES was in front, followed by the victim and then the applicant. As the three men walked towards the stairs that led away from the platform, ES and the victim appeared to talk to one another. The footage showed all three men leaving the station at 6.32 pm. At around the same time, a person wearing a light jacket with a hood walked up the stairs from the platform. Other evidence 26On 25 May 2010, four days after the assault, a search warrant was executed at the residence where the applicant lived with his parents. A white hooded jumper was located. The jumper and tracksuit pants that the applicant was wearing were sent for testing. There were no drawstrings on the jumper. No blood was found on the jumper or the tracksuit pants. 27On the same day a search warrant was executed at ES's residence. A red Adidas sweater was located and tested. No blood was found on the sweater. The applicant's evidence 28The applicant gave evidence at the trial. He admitted that he and ES had spoken with the victim on the platform at Chester Hill Railway Station but denied the assault. His evidence was that he, ES and the victim had left the railway station at about the same time and that they went up the steps together. He said that the victim had been behaving in a strange fashion and that he and ES had left the railway station to get away from the victim. 29The verdict indicates that the jury did not believe the applicant in so far as he denied the assault. The application for leave to appeal 30The applicant submitted that the verdict was unreasonable or cannot be supported having regard to the evidence because it was a case based on identification. He relied on four aspects of the evidence which he contended meant that the jury ought not to have been satisfied beyond reasonable doubt that the applicant was the person who had assaulted the victim. The four matters relied upon were: (1)The white jumper that the applicant was wearing that day had no drawstrings; (2)The white jumper did not test positive for blood when it was located and tested four days after the assault; (3)The proceeds of the crime (mobile phone and cash) were not recovered and were not located in the applicant's residence at the time of the execution of the search warrant four days after the assault; and (4)The victim did not select the applicant from the photographs shown to him four days after the assault. 31The applicant also submitted that the victim had so little opportunity to view his assailants because of the speed and dynamics of the assault, that any attempt by him to recognise them as being the men he had seen earlier could have been the effect of transposition, rather than true recollection. 32The applicant also relied on the presence of other men with light tops with drawstrings who could be seen on the CCTV footage. He contended that the Crown had not excluded the hypothesis that one of those men was the assailant. 33In summary, the applicant submitted that the verdict rested on evidence, both as to recognition and identification, which had been shown to be flawed and that, accordingly, the verdict was unsound. 34The Crown submitted that the Crown case, properly analysed, was only an identification case in a limited sense. The victim's evidence was that his assailants were aged between mid-teens and early twenties and of Lebanese or Middle Eastern appearance; one was wearing a white hooded jumper which had a drawstring around the hood and the other wore a red jumper and his hair was shaved around the sides of his head. The victim and these two males had conversed and walked up the stairs together prior to the assault. The exchange between them had lasted for a few minutes. 35The victim's evidence was that he was attacked about 15 paces from where he left the applicant and his associate at the top of the stairs. He said that the two young men who attacked him were the same two young men whom he had, seconds earlier, left at the top of the stairs. 36The Crown submitted that the other men wearing white hooded tops with drawstrings were not in company with another man of Middle Eastern appearance with shaved hair and wearing a red top. 37Since it was common ground that the applicant and his associate were the two men who had spoken with the victim on the platform and who had walked up the stairs with him when he was leaving the station, this aspect of the victim's evidence was the key to the Crown case. The victim did not "identify" the applicant in any other relevant sense; rather he recognised his two assailants as being the man in the white top and the man in the red top whom he had seen earlier. 38I consider that the contemporaneous recognition by the victim that the men who attacked him were the same men from whom he thought he had parted at the top of the stairs seconds earlier to be distinguishable from the so-called identification evidence which the applicant sought to impugn. 39The evidence of contemporaneous recognition did not require the victim to describe the two assailants in any detail at all; all it required was that he register at the time that they were the same people as those with whom he had been speaking and walking seconds earlier. Although the victim's opportunity to see these two men after he had been struck from behind and before he fell to the ground was relatively short-lived, it was open, in my view, to the jury to be satisfied beyond reasonable doubt that they were the same men on the basis of the victim's evidence that they were. 40I do not consider any of the four matters raised by the applicant to impugn the victim's evidence of recognition. 41That the victim "recalled" drawstrings when there was none and that he selected photographs some four days later that were of men other than the applicant do not undermine the reliability of the recognition evidence. These matters are consistent with the victim's having suffered trauma, the passage of time, and the difficulties of identification evidence. All that this evidence tends to establish is that the victim does not have perfect recollection. As McClellan CJ at CL said, extra-curially: "Research has shown that when a person witnesses a traumatic event, they focus on the central features of the event rather than peripheral details. For instance, when a weapon is used to commit a crime, eyewitness identification is less accurate because the witness tends to focus on the weapon." [footnotes excluded] Hon Justice Peter McClellan, "Who is telling the truth? Psychology, common sense and the law" (2006) 80 Australian Law Journal 655 at 663-664 42Furthermore that the accused's mobile phone was not located at the applicant's residence and that blood was not found on the jumper four days after the assault are, in my view, neutral rather than exculpatory. Importantly, these matters do not impugn the reliability of the victim's recognition evidence. 43I consider that the Crown case excluded the other persons depicted on the CCTV footage who were wearing light coloured hooded jumpers both because of the timing of their presence and also because, unlike the applicant, none was in the company of another man in a red jumper. 44I do not have any doubt that ME was guilty of the offences charged. Orders 45I would make the following orders: (1)Leave to appeal granted. (2)Appeal dismissed. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2012