R v HMB - [2000] NSWCCA 554

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v HMB [2000] NSWCCA 554

FILE NUMBER(S):
60495/99

HEARING DATE(S): 04/07/00

JUDGMENT DATE: 04/07/2000

PARTIES:
Regina
v
HMB

JUDGMENT OF: Meagher JA Sperling J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/41/0059

LOWER COURT JUDICIAL OFFICER: Garling DCJ

COUNSEL:
Applicant: J S Andrews
Crown: C K Maxwell QC

SOLICITORS:
Applicant: T A Murphy
Crown: S E O'Connor

CATCHWORDS:
Criminal Law - evidence - identification - where identification made from a photograph - time lapse between offence and identification - admissibility.
Criminal Law - evidence - identification - jury direction.

LEGISLATION CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA      60495/99
MEAGHER JA
  SPERLING J
  ADAMS J
Tuesday, 4 July 2000

REGINA v HMB

JUDGMENT

MEAGHER JA: In this appeal the situation is that on 15 June 1999 the appellant pleaded not guilty to one count of robbery with violence. On the following day the jury found him guilty.
On 24 August 1999 his Honour Judge Garling sentenced him to three and a half years imprisonment, comprising a minimum term of eighteen months to commence on 16 June 1999 and to expire on 17 December 2000.
The Crown case involved a robbery and assault which took place at the Mobil Service Station, East Nowra, at about 11.00 pm on 5 July 1998. On the Crown case there were allegedly three people involved - Mr B, another male and a female. The console operator at the service station, Mr Kenneth Ingliss, initially saw what he described as two Koori males talking outside number one petrol bowser. He could not hear what they said. He said he had a good opportunity to look at them because they were in a well-lit area. He looked away from them to check cigarette packs and when he looked back they were gone. He had them in view for about thirty seconds.
He said the smaller one was wearing a beanie and track pants. About a minute or a minute and a half later the larger of the two males came through the door. He raised an axe above his head and said, "Give me your fucking money." Mr Ingliss said, "No" and swerved back and the larger man swung the axe at him. The man then swung the axe at the cigarette cabinet and swung it again at Mr Ingliss, who picked up a chair to defend himself.
The girl came in through the door and Mr Ingliss pushed her away. He heard another voice from the door saying, "Just give him the fucking money."
He felt something hit him on his head and then the axe hit him on his arm and took off his watch. During this episode he pushed the panic alarm. He concluded the fellow at the door had thrown a knife at him. He said, "Take it then," referring to the money.
The girl took all the notes out of the till and then she and the smaller male left. The larger male slammed the axe down on the counter and said, "Give me some smokes." The smaller man then came back and said, "Give us the rest of the till." Mr Ingliss looked at him and said, "No." They then left.
When Mr Ingliss was asked to describe the younger of the two men - that is the man in the beanie - he said he was about five foot six inches, five foot seven inches tall, about eighteen years of age, maybe a bit younger, and he thought he was aboriginal with a bit of Maori in him. He described him as being stocky and pretty well rugged up. The lighting in front of the bowser was quite good.
The Crown case is that the younger of the two assailants was the appellant, Mr B. There was no doubt he was a stranger to Mr Ingliss.
The taller of the two males and the female were apprehended by the police not far from the scene and not long after the robbery. There was no evidence linking the appellant, Mr B, with the other two co-accused.
A surveillance video was played to the jury but was of insufficient quality to be able to identify any of the persons involved. The critical question in the trial, and the critical question before us, is the correct or otherwise identification of the smaller male person as Mr B.
One thing about which everyone is in concurrence is that that is the situation. The prosecutor said that he relied on identification and only on identification. The defence dealt with the accused's case on the basis that he had nothing to answer, except the question of identification. His Honour in his charge to the jury told them that the only matter they had to decide was the question of identification.
Before any other steps were taken, as I have said, Mr Ingliss gave a description which coincided in a number of respects with the accused. He said the smaller of the two men was of a certain height, and that seems to be an accurate description of the accused. He said he was either of aboriginal or part-aboriginal race. That would seem to fit the accused. He said he was about eighteen years of age, and that likewise seemed to fit the accused.
Some sixteen weeks after the robbery, on 26 October 1998, he was shown a video containing eleven numbered photographs. These included one photo of the appellant, Mr B. That photo had been taken after he was arrested on 2 October 1998. Mr Ingliss, on being shown the video, immediately nominated No 6. That was the photo of Mr B and he said, "That's him."
He watched the rest of the video and he asked for it to be played again. It was played again and when he got to No 6, he said, "That's definitely him." He said he had no shadow of doubt and he was 100% sure his identification was correct.
This evidence about the identification from photographs obviously played a large part in the trial. Counsel for Mr B said then, and has again said before us, that his Honour was in error in admitting this evidence in the case. He should have on this basis either refused to admit it or else, having admitted it, ordered that it be withdrawn.
This is put in various ways. It is, of course, notorious that identification from photographs can be a tricky and unfair process. His Honour knew that and his Honour told the jury that. But in the present case, on balance, his Honour saw no reason why the admission of the photographs and the evidence concerning them was either tricky or unfair.
It was submitted both below and before us that one reason why it was unfair was that there was such a long interval of time between the offence and the photographic identification. Certainly it was sixteen weeks, as everyone was aware, and equally certainly, I think, it would have been a happier circumstance if the time lapse were less than sixteen weeks. But the fact is that the time lapse did not renderd the identification other than definite. There is no reason to suspect that it rendered the identification unfair. In other cases like R vMaklouf [1999] NSWCCA 94 (23 June 1999, revised 12 August 1999) before this Court in 1999 a similar or greater time limit had expired.
The other criticisms which have been made concern the three alleged opportunities for identification. From the evidence of Mr Ingliss he could have identified Mr B either when he saw two men at the petrol bowser - that is number one - and secondly, at a later period of time when Mr B came to the door and said, "Just give him the fucking money." The third time was when the shorter of the two men came and said, "Give him the rest of the till," on which occasion Mr Ingliss looked at him and said, "No."
Of the three opportunities, it is clear enough that Mr Ingliss bungled his account of the first of the two opportunities. But it does not, to my mind, follow that he did not see the shorter of the two men on the occasion of the first opportunity, but it certainly does mean that he did not see him in the well-lit area. Nevertheless, on any view Mr Ingliss' account of that incident is unsatisfactory and it may perhaps be best categorised as a mistake, as his Honour did. But I see no reason to reject the identification on the second and third occasions. Certainly the time limit in both the second and third occasions was severely limited. Mr Ingliss in his evidence made it fairly plain that his mind was sufficiently concentrated to note fairly clearly many of the salient features of what was happening. He said in his evidence that he was quite definite about certain features of the younger man, and he could not be shaken on those matters. It was open to the jury to believe him, as the jury obviously did.
In this respect it may well be worth repeating that his Honour was impressed by Mr Ingliss' demeanour and particularly with the way that he gave answers adverse to his case as and when they were required. In my view, the attack on the admissibility of the evidence on both the second and third opportunities simply fails.
Insofar as it has been suggested that his Honour's conduct of the case was wanting insofar as he did not give proper directions, that seems to me bound to fail. His Honour made it crystal clear to the jury what the difficulties were in admitting the identification evidence and what the risks were. There is no reason to think the jury did not understand what his Honour was saying.
Another ground which was taken, not I think with much enthusiasm, was that his Honour erred in not re-directing the jury in relation to telling them that honest mistakes can be made.
It is very difficult to understand exactly what ground is being taken. It is clear enough that the evidence initially given by Mr Ingliss as to the first opportunity of seeing Mr B was not 100% accurate. It was agreed by all parties at the trial that Mr Ingliss was a very honest witness. It must follow that insofar as his evidence about his opportunity was inaccurate, that inaccuracy was due to a mistake, not dishonesty. When his Honour said, "It is an honest mistake, and mistakes can be made", his Honour was doing no more than repeating what counsel on both sides had already in effect agreed. I am quite unable to see on what basis his Honour's conduct is attacked in that regard.
I would propose that the appeal be dismissed.
SPERLING J: I agree.
ADAMS J: I also agree.
MEAGHER JA: The order will be the appeal is dismissed.

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LAST UPDATED: 05/04/2001