Regina v Hennessy - [2001] NSWCCA 36

CITATION: Regina v HENNESSY [2001] NSWCCA 36 revised - 28/02/2001

FILE NUMBER(S): CCA 60703/99

HEARING DATE(S): 5/10/00

JUDGMENT DATE:
27 February 2001

PARTIES :

Regina
Peter James Hennessy

JUDGMENT OF: Spigelman CJ at 1; O'Keefe J at 6; Barr J at 47

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/41/0021

LOWER COURT JUDICIAL
OFFICER : Payne DCJ

COUNSEL : J C Papayanni (Appellant)
L M B Lamprati (Crown)

SOLICITORS: Brock Partners (Appellant)
S E O'Conner (Crown)

CATCHWORDS: ARMED ROBBERY - two counts - application for separate trials not granted - similar fact evidence - photographic evidence admitted - directions - special caution - ss115 and 116 Evidence Act 1995 - photograph taken at scene of crime not within ambit of sections - identification evidence - possession of hand gun - LARCENY OF A MOTOR VEHICLE - two counts - APPEAL AGAINST SENTENCE - retribution, deterrence and protection of society

LEGISLATION CITED: Evidence Act 1995

CASES CITED:
Hoch v The Queen (1998) 165 CLR 292
Martin v Osborne (1936) 55 CLR 367
Pfennig v The Queen (1995) 182 CLR 461
R v Malcolm John McDonald (NSW CCA 12 October 1998, unreported)
Sutton v The Queen (1984) 152 CLR 528
Veen v The Queen (No 2) (1988) 164 CLR 465

DECISION: Appeal against conviction dismissed; Appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60703/99

SPIGELMAN CJ

O’KEEFE J

BARR J

Tuesday 27 February 2001

REGINA v Peter James HENNESSY

JUDGMENT

1 SPIGELMAN CJ: In this matter I have read the judgment of O’Keefe J in draft. I agree with his Honour’s orders and generally with his Honour’s reasons.

2 His Honour rejects the submission with respect to Grounds 3 and 4 concerning the tender of the video and photographs taken by a security camera in the branch of the building society. His Honour concludes that s115 of the Evidence Act is not concerned with pictures of this character. I agree. His Honour emphasises the last words of the definition of “picture identification evidence” namely “kept for the use of police officers”. I agree with his Honour’s general conclusion but on a wider basis.

3 The video and photographs from the security camera constitute real evidence of the robbery. They do not constitute “identification evidence” of any character, let alone “picture identification evidence” as defined in s115(1) of the Act. To use part of that definition, there was no “identification made wholly or partly by the person who made the identification examining pictures …”. No witness gave any evidence of identification - or indeed of any character - based on the photographs.

4 Section 115 is not concerned with the tender of “pictures” per se. It is concerned with the tender of “picture identification evidence”. It is of no materiality in this case. Nor, for the same reasons, is s116. (See the definition of “identification evidence” in the Dictionary).

5 Juries are no less susceptible than witnesses to the well-known difficulties associated with the use of pictures…

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 Regina v Hennessy

Details

AGLC: Regina v Hennessy [2001] NSWCCA 36
Case: [2001] NSWCCA 36
Decision Date: 27 February 2001

CaseChat Overview and Summary

The appellant, Hennessy, was convicted of two counts of armed robbery, two counts of unlawful possession of a firearm, and two counts of unlawful use of a motor vehicle. He appealed against his convictions and sentences to the Court of Criminal Appeal. The primary issues were whether the application for separate trials should have been granted, the admissibility of similar fact evidence and photographic evidence, and the appropriateness of the directions and special caution given to the jury. The court was also required to consider whether the photograph taken at the scene of the crime fell within the ambit of sections 115 and 116 of the Evidence Act 1995, and whether the identification evidence and the evidence of possession of the handgun were properly admitted.

The court held that the application for separate trials was not warranted as the evidence was not of such a prejudicial nature as to make a fair trial impossible. The court found that the similar fact evidence was admissible to show a common course of conduct, and the photographic evidence was relevant to the identification of the appellant. The court considered the directions and special caution given to the jury to be appropriate, and found that the photograph taken at the scene of the crime did not fall within the ambit of sections 115 and 116 of the Evidence Act 1995. The court also found that the identification evidence and the evidence of possession of the handgun were properly admitted. The court considered the appellant's appeal against sentence and found that the sentences imposed were appropriate, taking into account the need for retribution, deterrence and protection of society.

The court dismissed the appeal against conviction and sentence. The convictions and sentences were affirmed.

Orders