Cumberland v Regina - [2006] NSWCCA 377

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: CUMBERLAND v REGINA [2006] NSWCCA 377

FILE NUMBER(S):
2006/1635

HEARING DATE(S): 22 September 2006

DECISION DATE: 22/09/2006

PARTIES:
John Martin Cumberland (Appl)
The Crown

JUDGMENT OF: McClellan CJ at CL Buddin J Rothman J

LOWER COURT JURISDICTION: District Court

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

LOWER COURT JUDICIAL OFFICER: Moore ADCJ

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

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

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

DECISION:
Appeal dismissed

JUDGMENT:

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

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)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
There is only one ground of appeal.
The learned trial judge erred in his direction to the jury on identification, in that he did not give judicial imprimatur to the specific recounting of issues that may have led to a reasonable doubt on the issue of identification as required under s 116 and s 165 Evidence Act 1995.
The trial judge gave extensive directions to the jury summarising the evidence and the arguments of counsel in relation to it. Those who observed the offences taking place were not able to give evidence that it was the appellant who was driving the car. However, both Const Dutton and Snr Const Ashe gave evidence that the person they saw leaving the motor vehicle and escaping over the side fence was the appellant.
In his summing up the trial judge said to the jury that they must be careful when considering the evidence identifying the person who committed the crimes. He reminded the jury that there were separate charges and they could only consider the evidence of the alleged observations of the Macarthur Square witnesses regarding the first count and the evidence of the witnesses at the Bradbury shopping centre regarding counts two and three. His Honour then gave the jury a number of standard directions before turning to consider identification evidence. In that respect his Honour said:
“In regard to identification evidence, there is also a customary direction given by Judges to Juries which applies to all cases of identification and this has not been tailored to this case by any means. There have been a number of instances where responsible witnesses whose honesty was not in doubt and whose opportunity for observation was adequate, have later been shown, and they have made positive identification, have later been shown to be incorrect.”
His Honour then turned to consider the criticism made by counsel for the defence of the evidence of police officers Ashe and Dutton. His Honour said:
“There has been a particular criticism in a legal sense made by Ms Rigg of Officers Ashe and Dutton in that they had arrived on the scene, seen someone get out of a motor car, disappear and then re-appear in handcuffs and being escorted by police officers. That is a way in which an honest and reliable person, honest and apparently reliable person may come to a conclusion and express it as an affirmative voice [sic] of fact when that person however honestly has made a mistake because of all those circumstances.
I am only putting those to you not by in any way of adopting the submissions that have been put to you but only by way of indicating some help, if it is of any help, in how you assess the identification evidence.”
His Honour then gave consideration to the evidence of the various witnesses in some detail. Having discussed the evidence of those who witnessed the robberies he turned again to consider the evidence of Const Dutton and Snr Const Ashe. He reminded the jury of the circumstances in which they came upon the scene, observed the driver of the motor vehicle to get out of the car and quickly run away. He also reminded the jury of the challenge which was made to their evidence by defence counsel in cross-examination, including the difficulties, given the exigencies of the situation, in observing the person fleeing so as to be able later to identify him as the appellant. His Honour summarised his directions in the following terms:
“In summary, and please do not think I am simply adopting the submissions put to you by counsel that Ms Rigg summarised, the defence criticism of the police officers, Ashe and Dutton as to their observation was that they saw the person getting out of the car for a few seconds. He was running. Their own car was in motion. Constable Ashe was attending to driving. There was stress and urgency involved. They had never before met the accused. They saw him side on and he was wearing different clothing.
I repeat that the criticism that was made of these officers was not that they were being untruthful but the submission was and this is of course a matter for you and not for counsel to decide that they were well motivated police officers who were seeking to apprehend a criminal and when they saw him coming out of the house that they may well have made a mistake by displacing their views of the first man with those of the second man.”
At the conclusion of his summing-up and in the absence of the jury his Honour adopted the usual practice of asking counsel if there were matters that required further direction. Counsel for the defence requested that his Honour give a warning in relation to identification evidence in terms of sections 116 and 165 of the Evidence Act 1995. His Honour responded that he believed he had given an appropriate warning and in referring to the submissions of counsel in factual matters had appropriately discharged the statutory obligation.
However, his Honour accepted the criticism and when the jury returned said:
“I pointed out to you a number of things which a Judge is obliged to tell the jury as a matter of law for you to consider when looking at identification evidence. I pointed out to you a number of facts which apply to the assessment of identification evidence and a number of particular features of the evidence in this case. I did say to you that Ms Rigg had put some things to you and that I wanted to make myself clear that I was not adopting the submissions of counsel, but merely pointing out to you things that she had said.
That as it were modified what I said earlier, and it is what I said earlier which matters, and namely that each of those features which I mentioned to you such as honest witnesses, and apparently reliable witnesses making mistakes, are matters which it is the court’s experience in cases do occur and juries must be informed of that and take that into account. And it is not just an argument that is put by counsel. It is the experience of the courts.”
When the jury retired defence counsel again raised a question as to the appropriateness of these further directions. It was urged upon his Honour that sections 116 and 165 require the court to identify the particular factors in the case which might affect the reliability of the identification evidence and make plain that the court was of the opinion that they may affect the reliability of the identification evidence in the particular case. His Honour responded that he believed he had by the further direction, together with the earlier direction, appropriately discharged the requirements of the statute.
The complaint made by trial counsel is embodied in the submission put to this Court.
Section 116 of the Evidence Act is in the following terms:
(1)If identification evidence has been admitted, the judge is to inform the jury:
(a)that there is a special need for caution before accepting identification evidence, and
(b)of the reasons for that need for caution, both generally and in the circumstances of the case.
(2)It is not necessary that a particular form of words be used in so informing the jury.”
It is clear that his Honour discharged the requirements of that section in the directions which he gave.
Section 165 is in the following terms:
“(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a)evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,
(b) identification evidence,
(c)evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,
(d)evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,
(e)evidence given in a criminal proceeding by a witness who is a prison informer,
(f)oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,
(g)in a proceeding against the estate of a deceased person—evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.
(2) If there is a jury and a party so requests, the judge is to:
(a)warn the jury that the evidence may be unreliable, and
(b)inform the jury of matters that may cause it to be unreliable, and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3)The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)It is not necessary that a particular form of words be used in giving the warning or information.
(5)This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6)Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B.”
Subsection (2) obliges the judge, where there is a jury and a party so requests, to inform the jury of matters that may cause the identification evidence to be unreliable (s 165(2)(b)). A particular form of words is not required (subs (4)). Defence counsel made the appropriate request in this case.
The submission of the appellant was that, although a warning was given, the ultimate form of that warning did not appropriately carry judicial authority being more correctly categorised as a comment on a submission by counsel (Crampton v R (2000) 206 CLR 161). It was submitted that there is a distinction of significance in the present case between a reminder of evidence or counsel’s address and a warning which carries with it judicial authority.
I have recorded the relevant portions of the trial judge’s summing-up. His Honour commenced by indicating that he was about to provide the jury with observations customarily made by judges. His Honour dealt firstly with the evidence of the police officers generally and then gave attention to the identification evidence. The general warning which he gave was in conventional terms and no complaint could be made about it.
His Honour then proceeded to deal with the matters particular to the present case which may render the identification evidence unreliable. Although his Honour commenced by referring to the address by defence counsel, in which criticisms of the identification evidence were made, he immediately stated “that is a way” in which a person may be mistaken. Read in context his Honour’s remarks commence with the conventional warning followed by the details of the matters of particular relevance to the case. Although reference was made to the fact that defence counsel had raised those matters, in my opinion the jury would have understood that the judge was endorsing these matters as relevant to the jury’s consideration of whether to accept the identification evidence in this case. His Honour expressly stated to the jury that he was not simply adopting defence counsel’s submissions. In my opinion the judge appropriately leant his authority to the warning: R v Heuston (1995) 81 A Crim R 387 at 392; Domican v the Queen (1991) 173 CLR 555 at 561.
When, following discussion with counsel, his Honour gave the jury further directions in relation to identification evidence he reinforced the observation that those directions were given because of the court’s experience in dealing with identification evidence and stated that “it is not just an argument that is put by counsel. It is the experience of the courts.”

I am satisfied that if there was a relevant deficiency in the earlier observations these further directions made clear to the jury that the matters raised with respect to identification evidence carried the authority of the court and were not confined merely to the submissions of counsel.
Accordingly, in my opinion the ground of appeal fails.
Even if I was of the view that there was some deficiency in the direction which his Honour gave I would not have been persuaded that there was a miscarriage of justice. Although circumstantial this was a strong Crown case. The vehicle used in the robbery was owned by the appellant’s former de facto and he had spent the previous evening at her residence. The car was observed to be involved in the crimes following which it returned to the premises. It was observed to be driven by a male who sought to flee from the approaching police. The car was left with its engine running and the stolen items were found in it. Blood consistent with the appellant’s was found on the steering wheel. The appellant had a fresh wound on his hand.
The police gave evidence that when they entered the de facto’s home the appellant was found hiding under a couch. The appellant denied that he had hidden in this manner although his evidence as to his movements was contradictory and difficult to accept. If, as in my opinion the jury must have concluded, the appellant was attempting to hide under the couch to avoid apprehension there could be no reasonable doubt that the appellant committed the offences.
In my opinion the appeal should be dismissed.
BUDDIN J: I agree.
ROTHMAN J: I agree.
McCLELLAN CJ at CL: The order of the court is as I have indicated.

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LAST UPDATED: 23/11/2006