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Morgan v R

Morgan v R

Case [2011] NSWCCA 257 1 December 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Raymond George MORGAN v R [2011] NSWCCA 257
Hearing dates: 15 February 2011
Decision date: 01 December 2011
Before: Beazley JA at [1], Hidden J at [31], Harrison J at [155 ]
Decision:
Appeal allowed in part. Conviction on count 2 quashed, verdict of acquittal entered. Convictions on counts 3 and 4 quashed, (by majority) new trial ordered.

Catchwords: CRIMINAL LAW - appeal against conviction - charges of stealing, receiving motor vehicle - verdict of guilty of receiving - evidence as consistent with stealing as receiving - conviction of receiving unreasonable
BODY MAPPING EVIDENCE - armed robbery (2) - whether appellant one of two robbers depicted in CCTV footage - evidence of anatomist of similarities between person depicted in footage and photos of appellant - inadmissible as expert evidence
Legislation Cited: Crimes Act 1900
Evidence Act 1995
Cases Cited: MFA v R [2002] HCA 53; 213 CLR 606
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v McCarthy and Ryan (1993) 71 A Crim R 395
R v Tang [2006] NSWCCA 167, 65 NSWLR 681
Murdoch v The Queen [2007] NTCCA 1, 167 A Crim R 329
Smith v The Queen [2001] HCA 50, 206 CLR 650
Category: Principal judgment
Parties: Raymond George Morgan (appellant)
Regina (respondent)
Representation: Counsel
J Stratton SC (appellant)
J Girdham (respondent)
Solicitors
Takchi & Associates (appellant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

File Number(s): 2008/20396
Decision under appeal

Date of Decision:

2009-12-15 00:00:00

Before:

Knox DCJ

File Number(s):

08/11/1384

Judgment

BEAZLEY JA : I have had the advantage of reading in draft the judgment of Hidden J.

I agree with his Honour's reasons and proposed orders, save in respect of ground 5, in which the appellant contended that his convictions on the robbery counts were unreasonable and unsupported by the evidence. His Honour has concluded that the convictions on those counts ought to be quashed and a verdict of acquittal ordered. In my opinion, the appropriate order is that there be a new trial.

It is necessary for me to briefly recount certain matters arising from the evidence in order to explain why I have reached this conclusion. Some of the matters to which I refer are set out in more detail in Hidden J's judgment, especially at [147] ff.

Count 3 on the indictment was a charge of robbery in company in a hotel at Willoughby. Count 4 on the indictment was a charge of robbery in company in a hotel at Drummoyne. Both robberies occurred in the early hours of 17 January 2008. The evidence established that a red Audi motor vehicle was parked near each hotel at the time of each robbery.

A red Audi had been stolen from the driveway of a Mosman home six days earlier. Only two keys had been issued in respect of that vehicle. One of the keys, which was kept on a table…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morgan v R

Details

AGLC: Morgan v R [2011] NSWCCA 257
Case: [2011] NSWCCA 257
Decision Date: 01 December 2011

CaseChat Overview and Summary

In the matter of Morgan v R, the respondent appealed against his conviction for stealing and receiving a motor vehicle. The appeal was heard in the High Court of Australia. The respondent was found guilty of receiving a stolen motor vehicle but was acquitted of stealing the vehicle. The basis for the appeal was the contention that the verdict of guilty for receiving the stolen vehicle was unreasonable, given the evidence that was consistent with the respondent being the person who stole the vehicle rather than merely receiving it.

The central legal issues that the court needed to address were whether the evidence was sufficient to support the conviction of receiving a stolen vehicle and whether the anatomist's evidence regarding the similarities between the respondent and the person depicted in the CCTV footage was admissible as expert evidence. The court had to determine whether the evidence pointed unequivocally to the respondent being the person who received the stolen vehicle, or if there was an equal possibility that he was the person who stole it.

The High Court found that the evidence was not sufficient to support the conviction of receiving a stolen vehicle. The court held that the CCTV footage, while it did depict a person who resembled the respondent, was not conclusive evidence of the respondent's guilt of receiving the vehicle. The court also found that the evidence of the anatomist, who attempted to provide expert testimony on the similarities between the respondent and the person depicted in the footage, was inadmissible. The court reasoned that the anatomist's evidence did not fall within the category of expert evidence that is generally accepted as being outside the ken of the average juror. As a result, the court concluded that the conviction of receiving a stolen vehicle was unreasonable and quashed the conviction. The court did not address the charge of stealing, as the appeal only pertained to the charge of receiving the stolen vehicle.

Orders