R v Gee

Case [2000] NSWCCA 198

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     R v Gee [2000]  NSWCCA 198

FILE NUMBER(S):
60772/98

HEARING DATE(S):           17/03/2000

JUDGMENT DATE:            26/05/2000

PARTIES:
Stephen Robert Gee (appellant)
Regina (respondent)

JUDGMENT OF:      Spigelman CJ Grove J Hidden J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        97/31/0481

LOWER COURT JUDICIAL OFFICER:     Armitage DCJ

COUNSEL:
A Webb (appellant)
M Grogan (Crown)

SOLICITORS:
Legal Aid Commission (appellant)
Director of Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW - Co-incidence evidence - adequacy of directions to jury; Recognition evidence - admissibility of out of court recognition from photos - Crown witnesses' evidence unfavourable

LEGISLATION CITED:
Evidence Act 1995

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60772/98

SPIGELMAN CJ
GROVE J
HIDDEN J

Friday 26 May 2000

REGINA  v  Stephen Robert GEE

JUDGMENT

1     SPIGELMAN CJ:  I agree with the orders proposed by Hidden J. As to the evidence of the Appellant’s current de facto wife and of the de facto husband of the Appellant’s daughter, I agree generally with the reasons of both Grove J and Hidden J. I specifically agree with Grove J that the evidence falls within the statutory definition of hearsay in s59(1) as a “previous representation”. In this case, the evidence adduced falls within both the exceptions referred to: s66, to which Grove J refers and s60, to which Hidden J refers.

IN THE COURT OF
CRIMINAL APPEAL

60772/98

SPIGELMAN CJ
  GROVE J
  HIDDEN J

Friday 26 May 2000

REGINA  v    STEPHEN ROBERT GEE

JUDGMENT

2     GROVE J :  I agree with the order proposed by Hidden J but wish to state my own reasons for rejection of ground 2 which asserted that there was error in admitting the evidence of acts of past identification by the witnesses Shane Goldsborough and Lee Paterson.

3     To recapitulate:  Goldsborough was the de facto husband of the appellant’s daughter and, when called by the Crown, gave evidence in chief that the man depicted in the security camera photographs looked like the appellant.  Leave was given to cross examine him as an unfavourable witness.  He denied earlier making a positive statement that it was the appellant depicted in the photographs to Detective Dawson.  Detective Dawson was permitted to give evidence contradicting that denial. 

4     Paterson was the appellant’s current de facto wife.  To the Crown Prosecutor in chief she said that the person depicted in the photographs was similar to the appellant.  Leave to cross examine her was granted and she denied earlier saying that it was the appellant to Detective Stone.  Detective Stone was permitted to give evidence contradicting that denial.

5     The thrust of argument in support of the ground was directed towards the admission of the evidence by the detectives. 

6     In my view, the respective testimony of Detective Dawson and Detective Stone, whilst admissible at common law: see Alexander v The Queen 1981 145 CLR 395 per Mason and Aickin JJ; R v Barbaro & Ors 1993 67 A Crim R 456, must now be categorized as…

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AGLC
R v Gee [2000] NSWCCA 198
Case
[2000] NSWCCA 198
Decision Date

CaseChat Overview and Summary

The case of R v Gee involved the appellant, who was on trial for multiple bank robberies. The primary legal issue was whether the trial judge's directions to the jury regarding the consideration of coincidence evidence were adequate. Specifically, the court had to determine if the similarities between the robberies were sufficient to constitute coincidence evidence and if the judge's instructions on the use of this evidence were appropriate. The appellant argued that the directions were inadequate, suggesting that the judge should have provided more guidance on the weight that could be given to such evidence.

The court examined the judge's directions and noted that the judge had instructed the jury to consider the coincidence evidence only if they were satisfied beyond reasonable doubt that the facts were similar. The judge also emphasised that while the evidence could be considered, it should not lead the jury to conclude that the appellant was likely to commit such crimes again simply because he had committed one. The court found that the judge's directions were sufficient as they adhered to the principle that coincidence evidence could only be used if the similarities were striking and could reasonably persuade the jury of the appellant's guilt.

Ultimately, the court upheld the trial judge's directions as appropriate. The appellant's appeal was dismissed, and the convictions were affirmed. The court held that the judge's instructions allowed the jury to consider the coincidence evidence correctly and within the bounds of the law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant gave evidence in which he denied involvement in any of the robberies, as he had done in recorded interviews with police. He called evidence to the effect that his appearance at the time of the robberies was different from that of the offender described by the witnesses. No further examination of the defence case is necessary for the purpose of dealing with the grounds of appeal.Directions on coincidence evidence Neither at the trial nor in this Court was it argued that the similarities between the offences were not sufficient to amount to coincidence evidence. The complaint on appeal was that the trial judge’s directions to the jury about their approach to this evidence were inadequate. Those directions were couched by reference to the common law notion of “similar fact” evidence, but nothing turns on that for present purposes. What his Honour said was this:As to all four charges, the Crown relies upon the evidence of the very many witnesses who described the person who entered the bank or building society. The evidence as to that person’s appearance, the Crown submits, is consistent with the accused’s appearance. However, in addition to the accused’s appearance, the Crown relies upon the manner in which of (sic) these robberies was carried out. In each case the modus operandi the Crown says was the same. In each case a tall male person of solid build, dressed in a very similar manner entered a bank or building society and approached a single teller. In each case an object resembling a firearm was displayed. In each case a verbal request for money was made. In each case that verbal request was made in a low tone of voice. In each case the robber left without fuss and each of the four robberies was committed within the same broad geographical area and within a comparatively short space of time. Those similarities the Crown submits are so striking that they prove beyond reasonable doubt that one offender was responsible for all four robberies. This sort of evidence members of the jury is sometimes referred to as similar fact evidence. I direct you as a matter of law that in a case such as this where the accused is being tried on one occasion for two or more similar crimes, in this case of course he is being tried for four, you are entitled to take into account the whole of the similar fact evidence as evidence rendering more likely the accused guilt (sic) of an individual offence of a similar character. I direct you that you cannot use similar fact evidence against the accused unless you are satisfied beyond reasonable doubt that the facts are indeed similar. The weight you attach to the evidence is a matter for you and the similar fact evidence must be considered in the light of all the other evidence. I must add this, it would be completely wrong to reason that because the accused has committed one crime, he is therefore the sort of person who would be likely to offend again. The evidence is admitted only because the similarities are such that you may be persuaded, because of those similarities, that it is more likely that the accused is guilty of an offence or offences of a similar character. As to all these alleged offences but in particular the robbery at Warners Bay, the Crown relies not only upon similar fact evidence, but also upon circumstantial evidence. As to those two types of evidence there is a certain degree of overlapping as similar fact is in itself a form of circumstantial evidence.The robbery at Warners Bay was the subject of the fifth count.

Decision

Reasons for decision

GROVE J

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Ratio Decidendi

Legal Principle Established

Established by: GROVE J

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