Logan v The Queen

[2015] NSWCCA 116

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Logan v R [2015] NSWCCA 116
Hearing dates:	11 March 2015
Decision date:	27 May 2015
Before:	Meagher JA at [1]; Simpson J at [2]; Schmidt J at [29]
Decision:	(1)  Leave to appeal granted; (2)  Appeal dismissed.
Catchwords:	APPEAL - conviction - aggravated assault with intent to rob - whether verdict unreasonable or unsupported by evidence - identification evidence - appeal dismissed
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5(1)(b) Evidence Act 1995 (NSW), s 191
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:	Tamara Leigh Logan (Applicant) Regina (Respondent)
Representation:	Counsel: A Webb (Applicant) S Dowling SC (Respondent) Solicitors: Aboriginal Legal Service (NSW/ACT) Ltd (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)
File Number(s):	2011/378495
Decision under appeal	Court or tribunal: District Court Date of Decision: 15 August 2013 Before: Haesler DCJ File Number(s): 2011/378495

Judgment

1. MEAGHER JA: I agree with Simpson J.

2. SIMPSON J: On 18 February 2013 the applicant was arraigned in the District Court on an indictment containing two counts. The first count was of robbery in company, allegedly committed on 26 November 2011; the second count was of aggravated assault with intent to rob, using corporal violence, alleged to have been committed on the same day.

3. A jury was empanelled and the trial proceeded. On 25 February the jury returned its verdicts. It found the applicant not guilty on the first count, but guilty on the second.

4. Haesler DCJ proceeded to sentence the applicant (to imprisonment for 1 year and 9 months, with a non-parole period of 9 months).

5. The applicant now appeals against the conviction. She has not sought leave to appeal against the sentence imposed. She has identified one ground of appeal only, that:

“the verdict of guilty is unreasonable or unable to be supported having regard to the evidence”.

A ground that the verdict was unreasonable and unsupported by the evidence accepts that, as a matter of law, there was evidence to support the conviction, but contends that, as a matter of fact, the evidence was insufficient to rise to proof beyond reasonable doubt. Since the ground involves a question of fact alone, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) the applicant requires the leave of the Court to appeal. In my opinion that leave ought to be granted.

The Crown case

6. The Crown case was in narrow compass and may be outlined succinctly. Having regard to the arguments advanced in support of the appeal, it is necessary to refer to the allegations made by the Crown in respect of the first count, notwithstanding the applicant’s acquittal on that count.

7. The events that gave rise to the charges occurred in two locations in the Redfern/Waterloo area. The Crown alleged that, from about 8.15pm, the applicant was one of a group of nine young women in that vicinity. The applicant is tall, and has long dark hair. She was wearing distinctive clothing, a black and white horizontally striped full length skirt, and a white short sleeved blouse.

8. At about 9.00pm, Ms Enni Guan was walking from the Redfern Railway Station to her home. A group of young women approached her and demanded money. She prepared to comply with the demand, and one of the women snatched her wallet, one punched her to the ground, others took her mobile telephone and her house keys. This event gave rise to the first count on the indictment.

9. At about 10.30pm another woman, Ms Anna Han, also left the Redfern Railway Station, walking towards the Sydney Film School in Cope Street which was nearby. As she arrived at the film school, she was accosted by a group of (she said) about “4-5 girls”, one of whom demanded her bag. She refused to give it. The woman pulled her hair and bashed her head into the door. Other women pulled at her bag. They punched her in the face, and she fell to the ground. One of the women kicked her in the head, another bashed her head against the concrete. She called for help, and students within the film school opened the door and let her in. The attackers ran away.

10. In opening (with particular reference to the first count) the trial advocate who represented the Crown referred to the principles of joint criminal enterprise. He made no such reference specifically in respect of the second count. Later, after the jury had retired and had asked a question directed to the principles of joint criminal enterprise (with respect to the first count) the trial advocate disavowed reliance on that doctrine. He maintained that the applicant “did actually play a fundamental part such that she would be guilty of robbery on her own her actions”.

The evidence in the trial

11. Evidence in the trial was given by Ms Guan (through an interpreter), Ms Han, three students of the film school each of whom had, to some degree, witnessed the attack on Ms Han, and three police officers. A good deal of the movements of the group of women had been recorded on closed circuit television (“CCTV”) cameras in various locations, and the video, together with still images taken from the videos, was in evidence.

12. The CCTV footage came from various sources. Chronologically, the first was from a camera near the Abbott’s Hotel, and was taken at about 8.15pm. This footage is important, because it shows two women, of apparently approximately equal height, dressed in near identical black and white horizontally striped skirts, and white blouses. The same two women can be seen more clearly in footage taken at the Redfern Railway Station an hour later, at 9.30pm (not long before the attack on Ms Han). What is clear from these images is that the white blouse worn by one woman is sleeveless; the other has short sleeves.

13. There is also clear footage of the attack on Ms Han in Cope Street (Ex D).

14. Also in evidence was a photograph of the applicant, taken shortly after the events. She is depicted wearing a full length black and white skirt and a short sleeved white top.

15. It is unnecessary to go further into the detail of the charge concerning Ms Guan, of which the applicant was acquitted.

16. Ms Han gave an account of the attack upon her. She gave no evidence capable of identifying the applicant. None of the three students who gave evidence of their observations was able to identify, to any degree, the applicant. Two gave some evidence that one member of the group was wearing black and white striped clothing. The evidence was not consistent. For example, one of the witnesses said:

“… there was a girl wearing striped clothing like white and dark striped horizontal stripes and there was a girl wearing some pink clothing …”

She was unable to give any clearer description of the woman wearing the striped clothing because, she said, that woman had her back to her (the witness):

“… so I just saw the stripy clothes and the ponytail with the curls.”

She then referred to a “stripy top”. In cross-examination she said:

“… I just saw the stripes on her back.”

17. Another of the students also described a person wearing black and white striped clothing, but said that this was a shirt, and she thought the person was wearing jeans.

18. Pursuant to s 191 of the Evidence Act 1995 (NSW) a document entitled “Agreed Facts pursuant to s 191 of the Evidence Act 1995” was put before the jury. This included the following:

“4  The accused appears on the colour CCTV footage wearing a black and white, horizontally striped, full-length skirt; white top with short sleeves; and thongs.

…

6  Tamara Logan [the applicant] is correctly identified in the laminated stills from the CCTV footage.

…

9  Elizabeth Hains and Akira Jarrett are the two persons seen on the black and white CCTV footage to initiate the attack on Anna Han. Elizabeth Hains is the larger of the two.

10  Elizabeth Hains and Akira Jarrett pleaded guilty to and were convicted of the charge of Assault with Intent to Rob Anna Han on 26 November 2011.”

The defence case

19. The applicant did not give or call evidence. There was no dispute that the offences had been committed. The sole issue in the trial was whether the prosecution evidence established, beyond reasonable doubt, that the applicant was the person, or one of the persons, who attacked Ms Han (and Ms Guan).

The ground that a verdict of guilty is unreasonable or unable to be supported on the evidence

20. For many years, a ground challenging the sufficiency of evidence to sustain a finding beyond reasonable doubt of guilt was pleaded as a ground that the verdict was “unsafe and unsatisfactory”. In that context, the High Court, in what has become a definitive statement, said:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty …

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”: M v The Queen [1994] HCA 63; 181 CLR 487

The High Court said:

“The starting point in the application of s 6(1) [of the Criminal Appeal Act] is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses.”: SKA v The Queen [2011] HCA 13; 243 CLR 400

These principles are well established and well known.

The applicant’s submissions

21. The written submissions advanced on behalf of the applicant were succinct. Essentially, they made two points. The first was that this Court would not be satisfied beyond reasonable doubt that the applicant committed the offence and could not exclude the reasonable possibility that another person (“wearing or not wearing a striped dress/skirt”) committed the offence, and it was therefore not open to the jury to be satisfied of the applicant’s guilt.

22. Further, reliance was sought to be placed on the applicant’s acquittal in respect on Count 1. The written submissions contended:

“To the extent that it is possible at law, the appellant [sic] relies upon the acquittal on count one in support of the sole ground of appeal. The position, on all of the evidence, and in accordance with the acquittal on count one, is that there was a group of offenders who were committing robberies and at least on one occasion the applicant was not one of the those offenders.”

Resolution

23. The second argument raised on behalf of the applicant can be dispatched at once. It is incorrect to say that her acquittal on Count 1 establishes that she was not one of the offenders against Ms Guan. The most that can be said of the acquittal is that the jury was not satisfied beyond reasonable doubt of one (or more) of the elements of that offence. It may be that the jury were not satisfied of the identification evidence. (Ms Guan gave evidence through an interpreter, and described the woman in the striped skirt as “African”. The applicant is Australian Aboriginal.) There may be other reasons for the acquittal. It is inappropriate to attempt to unravel the verdict. The submission overstates the position. That was conceded by counsel who appeared for the applicant on the application (who had not prepared the written submissions).

24. Identification was the only issue in the trial, and is the principal basis argued in support of an appeal.

25. The video footage showing the attack on Ms Han at Cope Street is the key to this ground. Together with the other members of the Court, I have carefully examined that footage. There is sequential footage, from different CCTV cameras. What can be seen clearly is that, at 10.21pm a group of seven women exit from Redfern railway station. There is no issue that the applicant is one of these. She is dressed as described above. It was common ground that the second woman wearing a horizontally striped black and white shirt is not depicted in this video, and does not appear again. On behalf of the applicant, however, it was submitted that the possibility that she was present could not be entirely eliminated. The video then shows the attack on Ms Han at Cope Street, by “5 or 6 girls”, one of them a “large aboriginal girl”, wearing clothing that had thick “white and dark horizontal stripes”. Close examination of this video does reveal that one of the attackers was wearing a horizontally striped black and white skirt. Given that the other woman similarly attired did not appear in the footage shown at the exit from the Redfern Railway Station, it is a reasonable inference that that was the applicant. That inference is strengthened by the final video footage, which shows a group of women, the applicant among them, entering a home unit building in Pitt Street, at 10.33pm. There is present in this group no other woman wearing a horizontally stripe black and white skirt.

26. Having reviewed the evidence with great care. I am satisfied that it was open to the jury to convict the applicant. The evidence establishes beyond reasonable doubt that the applicant actively participated in the attack on Ms Han.

27. Having regard to the issues raised, I would grant leave to appeal, but dismiss the appeal.

28. The orders I propose are:

1. Leave to appeal granted;

2. Appeal dismissed.

29. SCHMIDT J: I agree with Simpson J.

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Decision last updated: 28 May 2015