Regina v Nicholas

[1999] NSWCCA 433

CITATION:	REGINA v NICHOLAS [1999] NSWCCA 433
FILE NUMBER(S):	CCA 60048/99
HEARING DATE(S):	8 December 1999
JUDGMENT DATE:	8 December 1999
PARTIES :	The Crown Jason Wayne Nicholas (Appl)
JUDGMENT OF:	Meagher JA at 23; Newman J at 1; Greg James J at 24

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/1004 98/11/0693
LOWER COURT JUDICIAL OFFICER:	Latham DCJ

COUNSEL:	P G Berman (Crown) J I Doris (Appl)
SOLICITORS:	Director of Public Prosecutions Neil J O'Connor & Associates (Appl)
CATCHWORDS:
DECISION:	Appeal against sentence dismissed; Application for leave to appeal against sentence adjourned.

IN THE COURT OF

CRIMINAL APPEAL

60048/99

MEAGHER JA
NEWMAN J
GREG JAMES J

WEDNESDAY, 8 DECEMBER 1999

REGINA v Jason Wayne NICHOLAS

JUDGMENT

1 NEWMAN J: This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was indicted on 27 August 1998 before her Honour Judge Latham in the District Court on a charge of robbery in company laid pursuant to s 97(1) of the Crimes Act. The charge involved a bank robbery on 26 June 1997 at Caringbah. The appellant and a co-accused Mundarra Smith pleaded not guilty. Eventually on 1 September 1998 the jury found the appellant and the co-accused, Smith, guilty.

2    This morning Mr Doris of counsel appearing for the appellant/applicant has indicated that a judgment of this Court involving another co-accused, one Murchie, is not available. It is a judgment upon which he wishes to rely.

3    The Crown does not oppose the application for leave to appeal against sentence being adjourned and an indication has been given that should the appeal against conviction fail the matter will be, in fact, adjourned to the call over to be held by the Registrar on 13 December.

4    However, I turn then to the allegations made by the Crown in its case against the appellant.

5    The Crown case was that at about 12.25 pm on Thursday, 26 June 1997, four males entered the National Australia Bank at Caringbah. One of the four jumped over the counter and struggled with a bank officer before pushing him away and then using a gun ordered the bank employees to lie on the floor. He then opened the staff door, letting in two of his fellow bank robbers, the fourth acting as a look out standing by the front door. Money was removed from the cash drawers and the four then departed using a stolen Commodore station wagon to make good their escape.

6    Still pictures were developed from the bank security camera. These were shown to bank employees and witnesses in the form of a video compilation. None of these people were able to identify any of the faces. However, a Constable Trevallion, who had previously known the appellant, when shown the photographs identified the appellant as one of the offenders.

7    In evidence Const Trevallion stated that he had been shown the photographs by Dets Rotsey and Jones and identified the appellant in two of those photographs. He having a book of photographs to examine. He had first met the appellant in early to mid 1994 and knew him on a first name basis. He had been in the company of the appellant for two to three hours on two occasions. The first in March 1995 and the second in August 1995. Between August 1995 and November 1996 he deposed that he had seen the appellant on an average every two or three days and had spoken to him on the street on occasions.

8    Det Rotsey deposed that he had shown the photographs to Const Trevallion because in his duties as a member of the Task Force Bagnara he had received information indicating that those involved in the subject bank robbery had come from the Redfern area. Const Trevallion had been attached for some years to the Redfern police station and it was for these reasons that he showed him the photographs.

9    When Const Trevallion gave evidence there was no suggestion made that he did not know the appellant. What was put to him was that he had fabricated his evidence in order to assist his police career. These suggestions Const Trevallion emphatically denied. Equally Det Rotsey denied suggestions put to him in cross-examination that he had influenced Const Trevallion. He was also challenged in cross-examination as to why he had not shown the photographs to other police who had worked in the Redfern area at the relevant time.

10    The appellant did not call any witnesses nor did he give evidence himself.

11    Initially, the appellant relied upon two grounds of appeal:

Ground one: The jury were wrongly permitted to take account of the appearance of the applicant as the accused in the dock and to treat it as evidence in the case when it was not.

12 Quite properly, Mr Doris of counsel, having examined the Crown submissions in the matter has elected to abandon this ground of appeal. No doubt influenced by an examination of what fell from the High Court in Bulejcik v The Queen (1994-95) 185 CLR 375.

Ground two: The conviction was unreasonable and cannot be supported having regard to the evidence.

13    It was submitted that given the quality of the photographs used by Const Trevallion to make the identification was it reasonably open for the jury to be satisfied, beyond reasonable doubt, that the identification was correctly made.

14    This morning the court has examined the subject photographs. In this regard it is properly conceded by counsel for the appellant, that her Honour in fact gave adequate cautions to the jury concerning that issue.

15    Inter alia, her Honour had said in her charge to the jury.

“Now you are entitled to look at all the evidence in the trial including all the photographs that have been tendered and admitted into evidence in making that decision, namely whether you are satisfied beyond reasonable doubt that Constable Peterson and Crampton correctly identified Mr Smith and similarly that Constable Trevallion correctly identified Mr Nicholas.”

16    Later she said:

“As I said that minute ago that did you not preclude you from looking at all the photographs in order to determine that you are satisfied beyond reasonable doubt that those constables made their respective identifications accurately and correctly.”

17    It was ultimately submitted and reinforced today by Mr Doris that it became essentially a question of fact for the judgment of this Court to make a determination whether it was open to the jury to conclude as they did.

18    However, the fact is, no challenge was made to the accuracy of Const Trevallion’s identification. The challenge was, as I have already mentioned, made to his veracity. The jury were entitled to accept Constable Trevallion’s identification as being one both honestly and accurately made.

19    Having examined the photographs, including photographs taken of the appellant on his arrest, and accepted the invitation issued by Mr Doris to compare the photographs with the appellant in the dock, I am of the view that it was in fact open to the jury to find as they did.

20    That being so and, as I have said, the jury being correctly directed by her Honour, that ground of appeal must fail.

21    The first ground having been abandoned, I am of the view that the appeal should be dismissed.

22    The application for leave to appeal should, on the grounds advanced by Mr Doris, be adjourned to the Registrar’s call over on 13 December next.
23    MEAGHER JA: I agree.

24    GREG JAMES J: I agree.

25    MEAGHER JA: The order of the court, therefore, are the orders proposed by Newman J.