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R v Zammit

R v Zammit

Case [1999] NSWCCA 65 28 May 1999

Appeal

Jurisdiction

Admissibility of Evidence

Expert Evidence

Compensatory Damages

Criminal Law

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Reported Decision:
107 A Crim R 489

New South Wales

Court of Criminal Appeal

CITATION: R v ZAMMIT [1999] NSWCCA 65

FILE NUMBER(S): CCA 60003/98

HEARING DATE(S): 8/4/99

JUDGMENT DATE:
28 May 1999

PARTIES :

David John Patrick Zammit

JUDGMENT OF: Wood CJ at CL at 1; Ireland J at 174; Kirby J at 175

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70007/95

LOWER COURT JUDICIAL OFFICER: Grove J

COUNSEL: G. Nicholson QC for Appellant
R.D. Ellis for Crown

SOLICITORS: Patricia White & Associates for Appellant
S.E. O'Connor for Crown

CATCHWORDS: CRIMINAL LAW - appeals - appeal against conviction - murder and armed robbery.; CRIMINAL LAW - directions to jury - sufficiency of directions on identification evidence - whether trial judge’s directions were inaccurate or misleading, or failed sufficiently to identify weaknesses or inconsistencies in that evidence - dangers inherent in identification evidence generally. ; CRIMINAL LAW - directions to jury - refusal to participate in identification parade.; CRIMINAL LAW - directions to jury - evidence led by appellant of him being in gaol at a time of a possible earlier sighting.; CRIMINAL LAW - directions to jury - sufficiency of directions on potentially prejudicial answer to question by witness.; CRIMINAL LAW - verdicts - whether jury’s verdict should be set aside as unreasonable or not supported having regard to the evidence.; EVIDENCE - identification - warnings to be given.; EVIDENCE - admissibility - discretion to admit photographs of victim.

ACTS CITED: Evidence Act 1995 (NSW) ss 116, 165(1)
Criminal Appeal Act 1912 (NSW) s 6(1)
Evidence Act 1995 (NSW) ss 116, 165(1)
Criminal Appeal Act 1912 (NSW) s 6(1)
Evidence Act 1995 (NSW) ss 116, 165(1)
Criminal Appeal Act 1912 9NSW0 S 6(1)

DECISION: (1) Appeal dismissed; (2) Conviction and sentence confirmed

-
IN THE COURT OF
CRIMINAL APPEAL
No. 60003 / 98

WOOD CJ at CL
IRELAND J
DAVID KIRBY J
FRIDAY 28 MAY 1999

R v DAVID JOHN PATRICK ZAMMIT

The appellant was convicted of murder and armed robbery. He was sentenced to a minimum term of penal servitude for eighteen years and to an additional term of penal servitude for six years for the murder; and a concurrent fixed term of ten years penal servitude for the armed robbery.

He appealed against the conviction. Most of the grounds related to the trial judge’s directions concerning the issue of identification which was the central issue in the trial. The other two grounds related to the admission into evidence of photographs of the victim’s wounds; and an argument under s 6(1) Criminal Appeal Act that the verdict should be set aside as unreasonable or not supported, having regard to the evidence.

HELD (dismissing appeal and confirming conviction and sentence):

Grounds 1-3: directions on identification evidence - leave granted but ground not made out
(1) The need for appropriate directions as to dangers of identification evidence, which include a warning that there is a special need for caution, an explanation of the reasons for that caution,…

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 R v Zammit

Details

AGLC: R v Zammit [1999] NSWCCA 65
Case: [1999] NSWCCA 65
Decision Date: 28 May 1999

CaseChat Overview and Summary

The case of R v Zammit involved the appellant appealing against his conviction for murder and armed robbery. The trial judge had directed the jury on various aspects of the evidence, including issues related to identification, the appellant's refusal to participate in an identification parade, and other evidentiary matters. The appeal raised questions about whether the trial judge's directions were accurate and whether they adequately highlighted the weaknesses and inconsistencies in the identification evidence, which is inherently fraught with dangers. The appellant also argued that the trial judge failed to sufficiently address other evidentiary issues, including the admissibility of certain photographs of the victim and the appellant's alibi evidence.

The court considered whether the trial judge's directions to the jury regarding the identification evidence were sufficient, particularly in light of the known dangers of such evidence. It was critical to assess whether the judge's instructions properly guided the jury on the reliability of the identification testimony and whether they sufficiently cautioned against the inherent risks. Additionally, the court examined the impact of the appellant's refusal to participate in the identification parade and whether this was appropriately considered by the jury. The court also evaluated the admissibility of certain photographs of the victim and the effect of the appellant's evidence about his whereabouts at the time of a possible earlier sighting.

In delivering the judgment, the court found that the trial judge had provided adequate directions to the jury regarding the identification evidence, including the appropriate warnings about its inherent dangers. The court held that the trial judge's instructions were not inaccurate or misleading and that they sufficiently highlighted the weaknesses and inconsistencies in the identification evidence. The court further determined that the evidence of the appellant's refusal to participate in the identification parade and his alibi evidence was appropriately considered by the jury. The appeal was dismissed, and the conviction was upheld.

The final orders of the court were to dismiss the appeal and confirm the conviction of the appellant on the charges of murder and armed robbery. The court found no grounds to set aside the jury's verdict as unreasonable or unsupported by the evidence. The trial judge's handling of the various evidentiary issues, including identification evidence and the admissibility of photographs, was deemed to be within acceptable legal standards.

Orders