Williams v The Queen; R v Williams - [2019] NSWCCA 53

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Williams v R; R v Williams [2019] NSWCCA 53
Hearing dates: 2 November 2018
Date of orders: 15 March 2019
Decision date: 15 March 2019
Before: Gleeson JA at [1]
Schmidt J at [152]
Button J at [219]
Decision:
(1)   Grant the appellant leave to appeal his convictions.

(2)   Uphold the appeal.

(3)   Quash the convictions.

(4)   Dismiss the Crown’s appeal against sentence.
(5) Pursuant to Rule 50C of the Criminal Appeal Rules (NSW), direct a judgment and verdict of acquittal for the appellant on counts 2 and 3.
Catchwords:
CRIMINAL LAW – appeal against conviction – evidence – identi fication and recognition evidence – whether convictions unreasonable or not supported by evidence – whether it was open to the jury to find beyond reasonable doubt that the appellant was guilty of discharging a firearm in a public place and causing grievous bodily harm to the victim
CRIMINAL LAW – appeal against conviction – where appeal does not involve a question of law alone – where appellant failed to seek leave to appeal – grant of leave not a formality
Legislation Cited: Crimes Act 1900, ss 33A(1)(a), 93G(1)(b)
Criminal Appeal Act 1912 (NSW), s 5(1)
Evidence Act 1995 (NSW), s 116
Cases Cited: Atai v R [2014] NSWCCA 210
Cottrell v R [2012] NSWCCA 117
Davies v The King (1937) 57 CLR 170; [1937] HCA 27
Kuehne v R; Humphries M v R; Humphries A v R [2010] NSWCCA 270
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mills v Western Australia (2008) 189 A Crim 411; [2008] WASCA 219
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
Palmer v R [2018] NSWCCA 205
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Rasic v R [2009] NSWCCA 202
R v Trudgett (2007) 70 NSWLR 696; [2008] NSWCCA 62
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
R v Turnbull [1977] QB 224 at 228
Category: Principal judgment
Parties: Kyle Williams (Appellant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
P Lange (Appellant)
F Veltro (Respondent)
Solicitors:
King and York Lawyers (Appellant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/200787
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 July 2018

Before:

Pickering SC DCJ

File Number(s):

2016/200787

Judgment

GLEESON JA: On 12 February 2018, the appellant Mr Kyle Williams pleaded not guilty in the District Court to an indictment that contained three counts as follows:

1. On 2 July 2016, at San Remo in the State of New South Wales, fired a firearm in or near a public place, namely Emu Drive, San Remo, contrary to s 93G(1) of the Crimes Act 1900 (NSW);
2. On 2 July 2016, at Buff Point in the State of New South Wales, fired a firearm in or near a public place, namely Tirriki Close, Buff Point, contrary to s 93G(1) of the Crimes Act;
3. On 2 July 2016, at Buff Point in the State of New South Wales, discharged a firearm with the intent to cause grievous bodily harm, contrary to s 33A(1) of the Crimes Act.

After a jury trial lasting 17 days, the jury returned verdicts of guilty on counts 2 and 3 and not guilty on count 1.
On 27 July 2018, the appellant was sentenced by His Honour Judge Pickering SC. In respect of the firearms offence, he was sentenced to imprisonment for 2 years 4 months, commencing on 20 May 2018. In respect of the offence of causing grievous bodily harm he was sentenced to imprisonment for 7 years 6 months with a non-parole period of 3 years 6 months to commence on 20 May 2018. The total period of imprisonment therefore is 7 years and 6 months with a non-parole period of 3 years and 6 months, to date from 20 May 2018 and expiring on 19 November 2025. The appellant appeals against the convictions. The Crown appeals his sentence.

Background

The appellant was aged 20 at the time of the offences. He lived at Tirriki Close, Buff Point, with his parents and siblings. The first count arose out of a drive-by shooting that occurred in the early evening of 2 July 2016 at about 5.30pm at Emu Drive, San Remo, an adjacent suburb on the Central Coast. Mrs Leanne Ryan, and her husband, Mr Gregory Ryan, lived at Emu Drive. Matthew Cooper and his partner, Laura Cox, the daughter of Mrs Ryan, lived across the road at Emu Drive. The second and third counts arose out of two shooting incidents that occurred shortly thereafter at about 6.48pm at Tirriki Close, Buff Point. The shooting incidents followed shortly upon various confrontations between Matthew Cooper and the appellant and his girlfriend, Abigail Voce.

The confrontation at Lake Haven McDonalds

Prior to the shooting incidents upon which the three counts are based, a verbal and physical confrontation occurred at a McDonald’s restaurant at Lake Haven on the Central Coast at about 3.00am on 2 July 2016. That dispute involved the appellant, his girlfriend and other friends, and Laura Cox and her mother, Mrs Ryan. There was a contest at trial as to what occurred in and outside the McDonald’s restaurant. It seems that the dispute started when Mrs Ryan told the appellant, Tyson Bosworth, and another male to take their hoods off. At trial, the appellant admitted to spitting on Laura Cox but maintained it was after she had punched him. Laura Cox alleged that she was spat at and then punched by the appellant and others. Police took no action as it appeared both sides were involved.
Laura Cox and her mother went home and told their respective partner and husband what had occurred, according to their version of events. Laura Cox knew the appellant and Tyson Bosworth from school and had recognised them at McDonald’s. Matthew Cooper also knew Tyson Bosworth from school, but did not know the appellant. Following the incident at McDonald’s, Laura Cox and Matthew Cooper looked at a number of photographs of the appellant on the appellant’s Facebook profile and that of Abigail Voce.

The first incident at Tirriki Close

In the early morning of 2 July 2016, Matthew Cooper, Mr Ryan and Alex Robello, went to Tirriki Close, Buff Point just before 4.00am where the appellant lived. Tirriki Close is a cul-de-sac. The appellant and his girlfriend were parked at the end of the cul-de-sac in her car, a Toyota RAV4. Mr Ryan parked his car facing the RAV4 and left the headlights on as he and Matthew Cooper got out of the car. Matthew Cooper went to the driver’s side where Abigail Voce was seated and Mr Ryan went to the passenger side where the appellant was seated. He yelled at the appellant and his girlfriend to get out of the car. Mr Ryan smashed the passenger side window. Abigail Voce started the car and drove away a short distance to the driveway of the Williams’ house in Tirriki Close. Matthew Cooper gave evidence at trial that he recognised the male in the front passenger’s seat as the person he had earlier seen on the appellant’s Facebook profile. He said the appellant was wearing a hoodie, but could not recall if the hood was up or down.
The appellant’s next-door neighbour, Ms Tracey Kent, was outside preparing to leave for work just before 4.00am on 2 July 2016 when she heard the sound of glass breaking coming from the end of Tirriki Close. A short time later she heard a car drive past coming from that end, which, on the Crown case was Mr Ryan’s car. She then saw the RAV4 car pull up in the driveway where the appellant lived. She heard a lot of yelling and screaming; she recognised the appellant’s voice shouting and also heard banging on the front door to the Williams’ home. The appellant’s father, Troy Williams, opened the front door to let the appellant and his girlfriend inside.

Communications between the appellant and Matthew Cooper and Laura Cox

The dispute escalated when the appellant responded by sending a series of abusive and aggressive messages to Matthew Cooper and Laura Cox commencing with a Facebook message to Matthew Cooper at 5.07am on 2 July 2016 expressed succinctly as “Cunt”, and another message at 5.58am which said, “Big boy”. In a later Facebook message sent to Laura Cox, the appellant said, “I’m ganna find where u live”.

First visit to Emu Drive, San Remo

In the afternoon of 2 July 2016, the appellant visited the home of Mr and Mrs Ryan at Emu Drive, San Remo. He was accompanied by Abigail Voce, Tyson Bosworth and Maddison Biddle, and on the Crown case, Brandan Randall. Abigail Voce got out of the car and spoke aggressively to Mrs Ryan about who smashed her “fucking window”. The appellant was in the back seat. He said he wanted to know who assaulted his girlfriend. He spoke aggressively to Mr Ryan. On the Crown case, the male driver, who it seems was Tyson Bosworth, said, “[w]e’ll be back. Who the fuck’s Matt Cooper? We’ll be back at 6pm to get him”. The appellant denied saying this.

Further communications between the appellant and Matthew Cooper

The appellant took a photograph of the Ryan’s home from inside the car. He tried unsuccessfully to call Matthew Cooper on Facebook at 3.49pm. At 3.52pm, a photo of Laura Cox and Matthew Cooper was saved to the appellant’s phone. At 4.25pm the appellant sent Matthew Cooper a photo of the Ryans’ home. The appellant again tried unsuccessfully to call Matthew Cooper on Facebook at 5.16pm.
Matthew Cooper used Facebook to return the appellant’s call. Their call lasted one minute and nine seconds. Matthew Cooper gave evidence that the appellant said that he was coming for him and for his kids and that he was going to bring people to the house and “come through”. Matthew Cooper said that he responded that he would have people there. He then contacted family and friends to come to Emu Drive, San Remo, where they waited out the front of the Ryan’s home.

Second visit to Emu Drive, San Remo (count 1)

At 5.26pm, a dark coloured car drove past the Ryans’ house at Emu Drive and a shot was fired from the car. The appellant was in the car, as was Brandan Randall. This conduct was the subject of count 1 on the indictment. As indicated, the appellant was found not guilty on this count.
A security camera at the front of the Ryans’ house recorded the car driving past and a flash is visible. Mr Ryan gave evidence that he noticed that the car had driven past twice and it was the second time when he heard the loud bang and saw a flash. Matthew Cooper gave evidence that it was the appellant who had fired a gun from the car and that he heard him yell, “You’re going to, you’re going to fucking die”. Laura Cox and Mr Ryan each gave evidence that they did not see who fired the gun, however, Laura Cox recognised the car from which the gun was fired as being the same car she had seen earlier that afternoon at about 4.00pm or 4.30pm in which she had seen the appellant. She gave evidence that abuse and threats were yelled from the car and that a male said, “You’re all dead cunts”.
The CCTV footage of the incident taken from the Ryan’s house did not support Matthew Cooper’s evidence that the person who fired the gun from the car could be seen from the open window.
The appellant sent a text message to Matthew Cooper at 5.46pm stating “want my window fixed”. That may be taken to be a reference to the smashed car window of Abigail Voce’s RAV4.
At 5.52pm and 6.08pm, the appellant tried unsuccessfully to call Matthew Cooper on Facebook. Matthew Cooper then called the appellant on Facebook; the call lasted 1 minute and 27 seconds. According to Matthew Cooper, the appellant said he was coming back with more people to “come through” the house and get him and his kids, and he replied that he knew where the appellant lived and he would come around and see him. The appellant then sent Matthew Cooper a Facebook message stating, “I didn’t touch your ugly misses or ya mum or whatever, but I think facey is the only time your tuff otherwise u would com see me [sic]”.

The shooting at Tirriki Close, Buff Point (counts 2 and 3)

The dispute escalated further when Matthew Cooper responded to this challenge. Together with Jordan Langley, Samuel Heterick and Myles Taueli, he travelled by car to Tirriki Close, Buff Point. Jordan Langley, the driver, parked approximately opposite the appellant’s house in Tirriki Close. Matthew Cooper and Myles Taueli were seated in the back of the vehicle. After Jordan Langley and Samuel Heterick got out of the car and were standing on the road, a shot was fired into the rear window of the car. Glass shattered on Matthew Cooper and Myles Taueli. This conduct was the subject of count 2.
Matthew Cooper immediately called triple-0 at 6.48pm and reported that shot. He remained on his phone to triple-0 and reported what was occurring. In his triple-0 call, he identified the appellant as the person who fired the shot. Myles Taueli, who was not wearing a shirt, got out of the car. Matthew Cooper gave evidence that he recognised the male with the shotgun on the road as the same person he had seen at the car window when the gun was fired (at Emu Drive) and earlier that morning in the cul-de-sac at Tirriki Close.
According to Jordan Langley and Samuel Heterick, the male with the gun retreated to the driveway near the front of the house in Tirriki Close. Jordan Langley obtained a short-handled axe out of his car, which he threw into the rear window of a grey Subaru vehicle parked in the driveway causing the window to smash. That vehicle belonged to Brandan Randall. The male with the gun fired again at a distance of 5 to 10 metres. The bullet went through Jordan Langley’s chest and exited through his back; he suffered grievous bodily harm as a consequence. This conduct was the subject of count 3.
Matthew Cooper, who was still on the phone to triple-0, reported that Jordan Langley had been shot in the chest. A police radio message was broadcast about this second shot at 6.51pm. Samuel Heterick managed to move Jordan Langley into the front passenger’s seat of the car with the assistance of Matthew Cooper. Mr Cooper drove the car to a hospital and gave the phone to Myles Taueli who continued to speak with police and ambulance staff on the triple-0 call.
Ms Kent heard the disturbance in Tirriki Close at about 6.50pm and went to the front of the house to see what was going on. She made a call to triple-0 during which she identified the gunman as the appellant. Ms Kent also gave evidence that she saw the appellant later returning to Tirriki Close in his car, which parked on the road just prior to the police arriving at the scene.
Police arrived at Tirriki Close at about 7.25pm. The appellant was arrested at the scene at about 8.00pm, and taken to Wyong Police Station where he was charged. The arresting officer, Detective Senior Constable Michelle Daly, gave evidence that at the time of his arrest, the appellant said, “What, I didn’t shoot anyone, I can’t believe this”.

Account given by the appellant to the police

Prior to his arrest, the appellant gave two different accounts at the scene. He first told Senior Constable Michelle Stone that he was not home at the time of the incident. Later he told Sergeant Craig Hoffman in a voluntary recorded interview that a couple of car loads of people arrived at Tirriki Close armed with axes, hammers and bottles, he did not know them, they were aggressive, and he closed the door. He said these people banged on the cars. He opened the door and saw that one of his mate’s car windows was smashed. One of the males approached with a firearm. There was a bit of a wrestle between the appellant and the male with the gun and a bang went off. One member of the males’ group started picking up things from the ground when they left. According to the appellant he did not know why they came to Tirriki Close. He offered as an explanation, “My mates” could have had confrontations with them. He said that he had not been in his car but in his mate’s car and pointed to Brandan Randall’s car. He also told Sergeant Hoffman that he had not left the premises after the shot was fired (Ex 33).
At the time of his arrest, the appellant was wearing fingerless gloves which remained on his hands when they were bagged by police at 8.45pm on 2 July 2016. Swabs of his hands were taken at 12.05am on 3 July 2016. His gloves and jumper were also tested. No gunshot residue was found on his hands or clothing.
Police did not locate the firearm or any casings from the shots that were fired at Tirriki Close. A ballistics expert, Officer Timothy Berry, gave evidence that, having examined Jordan Langley’s clothes, the shot was fired from a distance of more than a couple of metres given the absence of partially burnt and unburnt propellant particles on his jumper. Officer Berry also expressed the opinion that the firearm shown in the images and videos on Brandan Randall’s phone could have been used to fire the shot at Mr Langley’s car based on the bullet fragments recovered from the car.

The course of the trial

At the trial, the Crown called witnesses from the “victims group” (the victim Jordan Langley, Samuel Heterick, Myles Taueli, Matthew Cooper, Laura Cox, Greg Ryan, Leanne Ryan and Koree Hungerford), as well as from the “appellant’s group” (Brandan Randall, Abigail Voce, Tyson Bosworth, Jye Williams and Maddison Biddle). Abigail Voce gave evidence that she saw Brandan Randall shoot the gun, both at Emu Drive and at Tirriki Close. Jye Williams gave evidence that after he heard the first shot at Tirriki Close, he saw Brandan Randall holding the gun and placing it inside the front of his pants. Jye Williams, Tyson Bosworth and Maddison Biddle all gave evidence that they heard Abigail Voce saying that Brandan Randall has a gun.
Leave was granted to the Crown to cross-examine all of the witnesses from the appellant’s group, as they all gave evidence that differed from the witness statements they had provided to police. It is not necessary to recount their evidence; counsel for the appellant accepted that the jury must have rejected their evidence. The Crown also called the neighbour, Ms Kent. Police and other non-civilian witnesses were also called.
The defence case was that Brandan Randall fired the gun in relation to all counts and that the Crown could not prove beyond reasonable doubt that the appellant was the person who fired the gun in relation to each count.
At trial, the appellant’s counsel initially requested that self-defence be left to the jury and then withdrew that request. The Crown submitted that a self-defence direction should be given because of the evidence in the Crown case. His Honour gave a self-defence direction but emphasised that it was the appellant’s case that he was not the shooter.
There was no issue at trial that a shot had been fired from a gun at Emu Drive, San Remo, on 2 July 2016 and that a short time later, two shots were fired from a gun at Tirriki Close, Buff Point. Nor was there any issue that Jordan Langley had suffered grievous bodily harm as a consequence of being shot; this was an agreed fact pursuant to s 191 of the Evidence Act 1995 (NSW). Identification was the principal issue at trial. In respect of count 1 the Crown relied upon the evidence of Matthew Cooper identifying the appellant as the shooter in the drive-by incident. In respect of counts 2 and 3, the Crown primarily relied upon the recognition evidence given by Ms Kent, the only independent witness, and by Matthew Cooper. The Crown also relied upon an admission allegedly made by the appellant to Jordan Langley outside the District Court at the trial. The critical issue at trial was whether the prosecution established that it was the appellant who fired the gun in relation to each count.
The trial judge commenced his summing up to the jury on Wednesday, 7 March 2018. No complaint is made on appeal with respect to his Honour’s directions to the jury or summing up. The jury retired to consider its verdict the following day, and on Monday, 12 March 2018, delivered its verdicts as indicated.

Appeal against conviction

The notice of appeal contains three grounds of appeal:

(1) The verdict of the jury in respect of counts 2 and 3 should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, and the verdict not guilty in respect of count 1;
(2) The trial judge erred in failing to direct the jury following an in-court identification by Matthew Cooper;
(3) The trial judge failed to avert a miscarriage of justice by failing to discharge the jury following an accumulation of impermissible identifications of the accused.

On the hearing of the appeal, grounds 2 and 3 were not pressed. Nor was ground 1 pressed insofar as it asserted inconsistency of verdicts between count 1 and counts 2 and 3.
Counsel for the appellant also abandoned that part of the written submissions in support of ground 1 which placed reliance upon a number of comments and observations made by the trial judge following the jury’s verdicts. Counsel was correct to do so. Such post-verdict statements are not appropriate matters to be taken into account in determining whether the verdicts are unreasonable: Palmer v R [2018] NSWCCA 205 at [58]-[63] (Basten JA, McCallum and Bellew JJ agreeing).

Leave

As the sole ground of appeal against conviction now relied upon does not involve “a question of law alone”, the appellant must be treated as an applicant for leave to appeal against conviction: Criminal Appeal Act 1912 (NSW), s 5(1): Cottrell v R [2012] NSWCCA 117 at [62] (Johnson J, Basten JA and RS Hulme J agreeing); Rasic v R [2009] NSWCCA 202 at [12] (Hislop J, McClelland CJ and Blanch J agreeing). In this case, the appellant failed to seek leave to appeal. It has been said that the statutory requirement of leave to appeal should not be treated as a mere formality: Rasic v R at [12]. Nevertheless, no point having been taken, and given the significant argument as to whether the verdicts were unreasonable, it is appropriate that there be a grant of leave to appeal.

Ground 1: Unreasonable verdict

Ground 1 asserts that the convictions were unreasonable or could not be supported by the evidence.
The task of an appellate court faced with such a ground is well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, French CJ, Gummow and Kiefel JJ at [11] endorsed the test in M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 by Mason CJ, Deane, Dawson and Toohey JJ:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

This test was reaffirmed in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66].

In R v Baden-Clay, French CJ, Kiefel, Bell, Keane and Gordon JJ referred at [65] to the importance of the role of the jury and emphasised that the setting aside of a jury’s verdict on the ground that it is “unreasonable” is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over an appellate court which has not seen or heard the witnesses called at trial, referring to earlier remarks in M v The Queen at 494 (Mason CJ, Deane, Dawson and Toohey JJ); and MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [49]-[51] and [56] (McHugh, Gummow and Kirby JJ).
The ultimate question for the appellate court must always be whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: R v Baden-Clay at [66]. Importantly, in determining that question the Court must make its own independent assessment of the evidence, both as to its sufficiency and quality: Morris v The Queen (1987) 163 CLR 454 at 473; [1987] HCA 50 (French CJ, Gummow and Kiefel JJ) (Deane, Toohey and Gaudron JJ); SKA v The Queen at [22].
If the evidence contains discrepancies, displays inadequacies, is tainted or it otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court is bound to act and to set aside a verdict based upon that evidence: M v The Queen at 494-495; MFA v The Queen at [56].
Thus, it is not sufficient that there is evidence on which a jury could convict: SKA v The Queen at [13], citing M v The Queen at 492-493. If, after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt that the court can conclude there was no miscarriage of justice. See also MFA v The Queen at [26] (Gleeson CJ, Hayne and Callinan JJ), [55]-[56] (McHugh, Gummow and Kirby JJ).
Accepting that the Court must make its own independent assessment as to the sufficiency and quality of the evidence, which includes weighing the competing evidence, the relevant question is whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.

The nature and quality of the evidence

In support of the unreasonable verdict ground, counsel for the appellant relied upon four aspects of the evidence as supporting the significant possibility that an innocent person has been convicted: M v The Queen at 494. The appellant’s submissions were directed to the proposition that the evidence left open the reasonable possibility that another person, specifically Brandan Randall, was the shooter on both occasions at Tirriki Close.
The four aspects of the evidence were:

the identification evidence;

the alleged admission by the appellant;

the absence of any gunshot residue on the appellant;

matters implicating Brandan Randall as the shooter.

It was common ground that the jury must have accepted the reliability of Ms Kent in order to convict the appellant on counts 2 and 3, and/or accepted that the appellant had made an admission to Jordan Langley. The primary focus of the appellant’s submissions was directed to criticisms of Ms Kent’s evidence. As indicated, the appellant accepted that the jury must have rejected the evidence of the persons in the appellant’s group. Nor did counsel take the Court to Matthew Cooper’s evidence given, it was submitted, the difficulties with his evidence and his lack of familiarity with the appellant. The Crown fairly acknowledged that, on its own, the evidence of Matthew Cooper would not sustain a conviction, but submitted that his evidence could be taken into account by the jury in support of the Crown case in respect of counts 2 and 3.
Given the focus on Ms Kent’s evidence as being pivotal to the Crown case, it is convenient first to consider her evidence, and the criticisms directed to her evidence. In this context, reference should also be made to the evidence of Jordan Langley, Samuel Heterick or Myles Taueli, none of whom had previously known the appellant, but each gave relatively similar descriptions of the man they saw with the gun; the evidence of Brandan Randall; the appellant’s own evidence; other evidence favouring the appellant; and evidence of the police attending the scene.

(1) The identification evidence

(a) Ms Kent

Ms Kent gave evidence in chief that she had lived next-door to the Williams family in Tirriki Close for three years, that she knew the appellant to look at and recognised his voice. When asked to describe what the appellant looked like on 2 July 2016, she gave the following description:

Not thin, but not quite, sort of, well-maintained, … quite tall, … short [hair] [coloured] brown, light brown.

She described the appellant’s car as a black or dark sedan; she was not sure whether it was a Commodore or Falcon.
She gave evidence about the incident she observed early on the morning of 2 July 2016 at about 4.30am when she was going to work, including that she recognised the appellant’s voice shouting and heard banging on the front door of the Williams’ house. Counsel for the appellant did not submit that any part of this aspect of Ms Kent’s evidence was unreliable.
Ms Kent also gave evidence about the incident later that evening on 2 July 2016. While watching TV at about 6.50pm, she heard a sound like firecrackers going off. She stood up and went into the main bedroom to look through the window to see what was going on. The main bedroom was on the left-hand side at the front of the house. She was looking through security shutters. She saw a young man standing on the road in the middle of the driveway of the Williams’ home. There was a lot of yelling. She described the scene as lit by the street light on the perimeter of the Williams’ house and the down lights under the eaves at the front of that house.
On the road, towards the centre of the Williams’ driveway, Ms Kent saw a young man standing shirtless who appeared very fit. (That may be taken to be Myles Taueli). She saw the appellant standing at the top of the driveway holding a gun, which looked to be a hand gun about 30 centimetres in length. His arm was out-stretched and the gun was pointed towards the road. The appellant was just outside the eaves of the Williams’ house. She heard a lot of screaming and yelling; she recognised the voice of Abigail Voce but did not see her; and she heard a male person say:

Come on, Kyle. You better not miss, otherwise I’m coming back.

At this point Ms Kent observed the appellant was “[s]tanding in his driveway, with his arms still outreached” holding a gun in his hand. She could not recall whether the appellant said anything. She observed the dark blue sedan parked in the driveway of the Williams’ home.
Ms Kent then phoned triple-0. The recording of that telephone call was played before the jury and a transcript of that call was in evidence (Ex 23). Ms Kent told the triple-0 operator that she was watching through her Mum’s window and:

He was standing there and I heard him. I seen like his hand it was like a long pistol.

Ms Kent referred to this person as the “son” who she identified as the appellant by name. She said she heard the appellant say:

I think I shot one. Something to do with the boy hitting his brother, ah girl, sister. That’s what the argument was about.

She later told the triple-0 operator:

They were looking out the front near the car and something about casings or something they said.

Ms Kent could not recall at trial what the appellant was wearing at the time she saw him holding the gun. She said that after she heard the smashing sound she stepped away from the window; and when she went back to the window all the cars and people had gone. She did not see the appellant when she returned to the window. She said she next saw two girls out the front of the Williams’ home on the council verge and it looked like they were looking for something. The next thing she recalled was Troy Williams, the appellant’s father, pulled up in his car and parked on the roadside in front of the driveway. He was on his phone. She next saw Abigail Voce and another girl get into the car of Troy Williams and drive off. She then gave the following evidence:

Q: And after that happened, what did you see?
A: Kyle came back to the house.
Q: Can you remember what car he came back in or not?
A: No, I can’t.
Q: And after Kyle arrived back, what’s the next thing that you recall seeing?
A: All the police arrived.
Q: What did you see and hear once the police arrived?
A: A female police officer told them to get down on the ground three times.
Q: Can you remember what Kyle was wearing at this point when the police were there?
A: Grey track pants and a grey sloppy joe.
Q: What’s the next thing that you saw?
A: Them handcuffing Kyle and putting him into the paddy wagon.

Ms Kent marked a document containing three photographs of Tirriki Close (Ex 24). On the first photo, which was an overhead view from Google Maps, she marked with an “x” the position where she saw the male person without a shirt, the position of the three cars in the street, and with a “dot” the position of the appellant standing on the driveway. On the second photo she marked where the “dark blue sedan was parked and the gentleman in no shirt”. The third photo showed the front window of the house from where Ms Kent observed the incident.
In cross-examination, Ms Kent agreed that it was dark where the three cars were parked in Tirriki Close and said that she could see shadows of people inside the cars. She agreed that it was dark along the driveway of the Williams’ house. She could only recall one car, not three cars, parked in the driveway. She accepted that she observed the events looking out a screened window, which she described as a security shutter with slats that were “open like little holes”, a flyscreen and curtains. She said that she only saw one person holding a gun, and that person was the appellant. She agreed that she described the gunman in her evidence in chief as not being thin, he was toned, quite tall, and had short, light-brown hair. When asked “how short”, she responded “Like a crew cut type”.
Ms Kent was cross-examined about her evidence concerning the appellant returning to Tirriki Close in a vehicle:

Q: Some time later do you recall the person you say was Kyle Williams return in a vehicle?
A: Yes.
Q: Did that vehicle park on the driveway?
A: No, on the road.
Q: Do you remember if it was a grey Subaru?
A: I can’t remember.
Q: And you say that the person who got out of that car was a person you recognised as Kyle Williams, correct?
A: Yes.
Q: And you are sure about that, aren’t you?
A: Yes.
Q: And at that very point the police arrived, didn’t they?
A: Yes.
Q: And did you see them tell the person you thought was Kyle Williams to get on the ground?
A: Yes.
Q: Do you remember that that person that you thought was Kyle Williams was wearing a dark grey jumper?
A: Light grey.
Q: I suggest to you it was a dark grey jumper. The person who got out of the car had a dark grey jumper on. What do you say about that?
A: To me it was light grey.
Q: You recall that he was wearing track pants, is that right?
A: Yes.
Q: Were they jeans or track pants?
A: Track pants.
Q: Are you sure about that?
A: Yes.
Q: It’s possible isn’t it Ms Kent that you’re mistaken about the person who was holding the gun?
A: No.

In re-examination, Ms Kent gave evidence that she was looking through the window of the front bedroom. The curtain was open. When asked why she didn’t believe she was mistaken about seeing the appellant with the gun, she responded, “I know Kyle if I see him”.

(b) Jordan Langley

In a video-recorded statement given at the police station some 10 days after the incident, Jordan Langley gave the following description of the man with the gun:

Sure, brown curly hair, sort of medium length.

On the video he is seen gesturing to his shoulders. The video, but not a transcript, was tendered in evidence (Ex 66). There was some debate in this Court as to whether the first word of Jordan Langley’s answer was “short”, rather than “sure”. Having viewed and listened to the video, I am satisfied that the first word of this response was “sure”.
Jordan Langley gave evidence at trial describing the male with the gun as skinny, about 170 centimetres tall (his own height), with medium-length brown curly hair that was just passed the ears.
Jordan Langley agreed at trial that in his police statement he described the gunman as “he had a black jumper, short brown curly hair”. However at trial, he could not remember whether the gunman was wearing a black jumper. He also agreed that in his police statement, he responded “Nah” to the question “… was it well lit outside the house or not?”, but at trial he could not recall the lighting conditions.

(c) Samuel Heterick

Samuel Heterick gave evidence describing the male with the gun as having long, shoulder length curly hair, light coloured hair, light grey hoodie, dark track pants and would not be over six foot or roughly six foot. In cross-examination, he agreed that in his police statement he had described the gunman as “[h]e had a black and grey baggy jumper, dark coloured track pants” and that the person with a knife had a light grey hoodie on. He accepted that the gunman had the darker hoodie on, “[i]f that’s what I wrote in my statement”.
In re-examination, he said he had not looked at Facebook photos of the appellant before he made his statement to police. He accepted that his memory was better when he made his police statement on 2 July 2016.

(d) Myles Taueli

Myles Taueli (who is six foot, five inches) described the gunman as little, skinny, long hair to his collar or shoulders, wearing a grey-coloured or dark blue hoodie.

(e) Brandan Randall

Brandan Randall gave evidence at trial that he had gone to school with the appellant and considered him to be a close friend. He said that he had visited the appellant on the morning of 2 July 2016 for a short time, when the appellant had told him that Abigail Voce and Maddison Biddle had been in a fight with some girls at McDonald’s. He said he returned to the appellant’s place when it was dark. According to his evidence, about 15 minutes after he arrived, he was out the front of the appellant’s house in Tirriki Close when five or six people arrived. He said he ran inside to the appellant’s bedroom; he heard fireworks and yelling; he heard the appellant outside yelling; and the appellant came inside and was very distressed. Brandan Randall got into his car and left because he felt scared after observing that his rear passenger window was smashed. He went to Jordan Todd’s place where he received a message to come back as his car was needed for evidence. The police were present when he returned and told him to get on the ground. He was not arrested or handcuffed.
Leave was granted to the Crown to cross-examine Brandan Randall. He was unable to remember many of the details set out in his witness statement dated 2 July 2016 (Ex C). In his statement, he said that at one point he had seen the appellant wrestling with another person, but did not see the appellant with a gun. He agreed that he suffered from post-traumatic stress disorder after being glassed in an accident in 2014.
He admitted that he was the person depicted on the video on his phone with a set of “Wolverine” hand claws. He said the claws were a birthday present from his mother and were purchased from a comic book store.
In response to being shown two images and two short videos found by police on his phone of a hand holding a shortened shotgun inside a car captured on 29 May 2016, Brandan Randall denied ever having seen the gun. The metadata on his phone recorded that the photos and video were taken in the vicinity of the appellant’s home on 29 May 2016 and that the appellant and Brandan Randall were in text contact the previous day. The gun looked similar to the gun described by Matthew Cooper and Myles Taueli.
In response to the cross-examiner’s proposition that he first went to Emu Drive when Abigail Voce spoke to Mr and Mrs Ryan, Brandan Randall responded “Don’t know”. When it was put to him that he returned to Emu Drive a second time, he said he did not know what the cross-examiner was talking about. He denied having the gun and denied discharging it at Emu Drive. On his account, he had gone to the appellant’s house once in the morning and had returned later in the afternoon. He also denied telling the appellant what to say to the police or taking the gun away from the appellant’s home. He denied making threats to other witnesses: Jye Williams, Tyson Bosworth or Abigail Voce.
Brandan Randall agreed in cross-examination that he had short-to-medium-length light brown or brown hair as at 2 July 2016. He also agreed that he was clean-shaven and was thin but a little bit toned in body shape. That description was relatively consistent with photographs of Brandan Randall taken from his phone which, according to the evidence, had been saved to his phone in May and June 2016.

The Crown accepted that there were discrepancies in Brandan Randall’s evidence and submitted that the jury could put his evidence to one side.

(2) The appellant’s evidence

At the time of his arrest, police photographs of the appellant showed him to be wearing a light grey hoodie jumper with a black Adidas motif on the front, dark jeans and he had dark shoulder-length wavy hair (Ex 61).
The appellant admitted in his evidence-in-chief that he had told various lies to the police at the scene. At trial, he gave an account of what had occurred at McDonald’s and later when parked in the cul-de-sac at Tirriki Close with his girlfriend, when they were attacked by two men who were thumping on the window and asking them to get out of the car. It is not necessary to recount that evidence.
The appellant made a number of admissions in his evidence. He acknowledged that he took a photo of the Ryan’s house at Emu Drive at 4.25pm on 2 July 2016 in order to show Matthew Cooper that he knew where he lived and in order to intimidate him. He also admitted to sending threatening messages to Laura Cox and saving a photo of her and Matthew Cooper on his phone to make sure he knew who he was.
The appellant said that during the morning of 2 July 2016 he phoned Brandan Randall and told him what had happened and that he was going to go to the Ryan’s house and asked Brandan to go with him. He said he did this because, “I knew Randall was – he wasn’t scared of confrontation. He was fucking – he was crazy”. He drove to Emu Drive, San Remo, with Abigail Voce and they picked up Tyson Bosworth, Madison Biddle and Brandan Randall on the way. When they arrived at Emu Drive there was a confrontation with Mr and Mrs Ryan. After they left, they dropped off Brandan Randall at his home so that he could get his car and he followed them back to Tirriki Close in his car. The appellant said that he thought that Brandan Randall was going to pick up his car because, “he was known to have weapons in the car and well, we was having incidents with the people”.
The appellant said that after the call from Matthew Cooper, which was on loudspeaker, Brandan Randall suggested they go back to Emu Drive, San Remo. Although he was “iffy”, the appellant agreed and he went back to Emu Drive with Abigail Voce and Brandan Randall. Before they left he saw Brandan Randall go to his car and grab a backpack, which the appellant assumed contained a weapon, although he did not think that it was a gun. The appellant denied ever having seen the gun depicted on the photo or video found on Brandan Randall’s phone.
When they drove down Emu Drive, the appellant heard a massive bang from the rear of the car and looked back and realised what it was. He drove off and told Brandan Randall that he could not come back to the appellant’s home with that gun. Brandan Randall responded that his car was there. The appellant said that they went and parked somewhere near Budgewoi Bridge where he engaged in further text communications with Matthew Cooper. The appellant accepted that he knew that Brandan Randall had a gun and admitted that he was not trying to stop the situation.
The appellant said that when they arrived back at Tirriki Close he saw Brandan Randall put his backpack in his car and then follow Abigail Voce and him into the house. According to the appellant, he told Brandan Randall to leave and was arguing with him at the front door when he saw a car drive up the street and stop a bit further past his house. He said two or three people exited the car, he walked down the driveway telling them to “fuck off”, and Brandan Randall came past him and fired a shot at them. At this point, the appellant was at the end of his driveway and Brandan Randall was just on the road. He then saw another car pull up and ran back inside his house. He was followed by Brandan Randall and they had another argument. He told everyone to stay inside and went to the laundry where he obtained a machete and a knife and walked out the front of his house. He said he saw at least four, five, maybe six people. There was a heated argument. During this argument, a blonde person threw an axe into the back window of Brandan Randall’s car. At that point, according to the appellant, Brandan Randall walked in front of him and fired another shot. The appellant and Brandan Randall then ran back inside. He told Brandan Randall to go. According to the appellant, Brandan Randall left taking the gun with him and only Abigail Voce, Jye Williams and Maddison Biddle were left in the house.
Before police arrived, the appellant hid the machete. He also hid a flick knife in the washing machine. He said the grey track pants found inside the washing machine with the flick knife belonged to his brother. He said that he had the same clothes on all day. He explained that he was wearing gloves on his hands when he was arrested because it was freezing cold. He denied wearing gloves because he knew he would be handling a firearm.
In cross-examination, the appellant said that his neighbour, Ms Kent, did not know him personally and had never had a conversation with him. The appellant admitted that he was calling out and banging on the front door to be let in during the early hours of 2 July 2016. Despite sending the message challenging Matthew Cooper to come and see him, the appellant said he was just being a “smart arse” and did not think they would come to his house after the shot had been fired in Emu Drive. He denied the reason he wanted Brandan Randall, who was much bigger than he was, to come and visit him was because he had a gun.
The appellant denied that he thought he had shot one of them. He denied leaving the house at Tirriki Close between the time of the shooting incident (at about 6.48pm) and when police arrived between 7.25pm and 7.28pm. He denied telling Abigail Voce or his brother, Jye Williams, to look for casings in the driveway. He agreed that he told both Abigail Voce and his brother to tell the police that the guy who was shot had the gun, and that he was wrestling with the guy with the gun. He denied that he told either his brother or girlfriend to tell Tyson Bosworth what to say in his police statement. He accepted that it was possible that he told Abigail Voce not to say anything about going to Emu Drive on either occasion on 2 July 2016. He said that he did not think he told Maddison Biddle not to mention anything and he denied speaking to Abigail Voce, Jye Williams or Tyson Bosworth about the evidence they were to give in court.
The appellant admitted that he tried to contact Brandan Randall after he was charged but he would not speak with him. In his evidence-in-chief, the appellant said that before Brandan Randall left Tirriki Close, he said the words, “Don’t fucking dob me in or I’ll be back”, which were heard by everyone in the lounge room. In cross-examination, the appellant said that it was Brandan Randall who had come up with the idea to say that the appellant had wrestled the gunman, but he could not recall exactly what was said. According to the appellant he had left that “little part” out when he had earlier given his evidence-in-chief. He denied that he was making this evidence up off the top of his head.

(3) Other evidence favouring the appellant – Gunshot residue

There was expert evidence from Elizabeth Chan, a senior forensic chemist employed by Forensic Analytical Science Service, that gunshot residue generally may persist on hands up to two hours but it is lost with activity and washing and all of it is usually gone within four hours.
In cross-examination, the expert acknowledged that when giving her opinion she did not know that the appellant’s hands were bagged when he was arrested at the police station. She expressed the opinion that this made less of a difference in relation to skin surfaces because gunshot residue is still subject to loss with movement and activity. However, if the gloves had gunshot residue on them to begin with and had been bagged within two hours of the shooting, she would expect to find gunshot residue on them.
The Crown’s case was that the absence of gunshot residue was explicable given that the appellant’s hands were not bagged until about 1 hour and 54 minutes after the shooting and were not swabbed until more than three hours after being bagged.

(4) Evidence of police attending the scene

(a) Senior Constable Stone

Senior Constable Michelle Stone was in the first police vehicle that attended the scene at Tirriki Close, Buff Point, at about 7.25pm, driven by her partner, Senior Constable Smith. She gave evidence that as the police vehicle was slowly driving down Tirriki Close, a grey Subaru drove past and straight into the driveway, and at that point she called for backup. Constable Stone also observed a black XR6 vehicle parked outside the front of the house and noted the registration plate – BLB 06J. It is not in dispute that this was the appellant’s vehicle.
Senior Constable Stone tried to take control of the people exiting the house, asking them to sit down. She recalled the front driver’s door of the grey Subaru, which was parked in the driveway door, opening and the rear passenger door opening, but she did not know who was in that vehicle at that time. In cross-examination Senior Constable Stone said that she observed Constable Jared Allwood taking details of the people who had turned up in the driveway.
Senior Constable Stone identified the people exiting the house as Troy Williams and his sons, the appellant and Jye Williams, and three other people who were quite intoxicated. As mentioned, the appellant told Senior Constable Stone that he was not home at the time of the incident at Tirriki Close.

(b) Constable Allwood

Constable Jared Allwood attended the scene with Senior Constable Robert Beeby at about 7.40pm. He gave evidence that he saw several people exiting the house, one of whom he knew as the appellant. His role was to record the crime scene log, which commenced at 7.58pm and was maintained until about 2.00am the following morning.
In cross-examination, Constable Allwood denied the suggestion that he had spoken with two males who had arrived in the grey Subaru vehicle. When asked about his notebook, he said that he did not have it with him and it was back at the station. Constable Allwood was later re-called and gave further evidence in which he acknowledged that he had obtained a copy of his police notebook and its contents relating to 2 July 2016. He confirmed that his earlier evidence that he did not speak to two males who had arrived in the grey Subaru was not true.
His notebook entry on 2 July 2016 recorded at 19.36pm under the heading “record re: shooting”, a licence plate registration number, “Jordan Todd” with an address, date of birth and mobile number. Under this appeared the words “Brandan Randall”, a date of birth and mobile number. On the following page appeared the words “grey hoodie”, then “beige long pants”, “white shoes”, following a space “Jordan” and “black Hurley hoodie”, and after a further space the words “blue/grey”.
It was put to Constable Allwood in further cross-examination that the licence plate number in his notebook entry referred to the car that arrived when police arrived, to which he responded that he did not know, but he agreed it was possible. It is not in dispute that the vehicle identified by Constable Allwood was the grey Subaru owned by Brandan Randall.

(c) Senior Constable Garcia

Senior Constable Natasha Garcia attended the scene at about 10.30pm on 2 July 2016. She conducted an examination of the crime scene and prepared a sketch which noted the registration numbers of three cars in the driveway, which it is common ground were the grey Subaru, Troy Williams’ vehicle, and Abigail Voce’s RAV4 (Ex 40). She also took a number of photographs of the scene, including photos of a flick knife located inside the washing machine in the laundry (Ex 46) and a photograph of the appellant’s vehicle, which was parked on the road in front of the house (Ex 47). That vehicle was examined for samples from the rear off-side door trim and roof lining and tested for gunshot residue. No gunshot residue was detected in the samples taken from the appellant’s vehicle.
Senior Constable Garcia confirmed that she found a pair of grey track pants, among other clothes, inside the washing machine (Ex 50). Samples from the fingerless gloves, the front of the grey Adidas jumper and the right and left sleeves of the jumper were also tested for gunshot residue. As mentioned, no gunshot residue was detected in these samples.

Analysis

Although the trial judge described Ms Kent’s evidence as identification evidence, strictly it was recognition evidence. Recognition cases involve the recognition of a person previously known to the witness; identification cases involve the subsequent identification of a person by a witness who first saw that person at or near the crime scene: Mills v Western Australia (2008) 189 A Crim R 411; [2008] WASCA 219 at [5] (McLure JA).
The distinction between “recognition” and “identification” evidence has long been recognised. In Davies v The King (1937) 57 CLR 170; [1937] HCA 27 the High Court said in a joint judgment at 181:

It is almost unnecessary to say that the amount of care and the nature of the precautions which should be taken when a potential witness is brought to identify an accused or suspected person must vary according to the familiarity of the witness with that person. It would be ridiculous … to deny the value or reliability of the identification if the witness’ knowledge of the prisoner arose from long and close association or from every day intercourse in business affairs.

In R v Trudgett (2007) 70 NSWLR 696; [2008] NSWCCA 62, Spigelman CJ (Hulme and Latham JJ agreeing) observed (at [26]) that witnesses can err even when purporting to recognise a person that they have known intimately and/or for a long time, referring to the observations of Lord Widgery CJ in R v Turnbull [1977] QB 224 at 228:

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

Spigelman CJ also remarked at [29]:

Plainly, recognition evidence does not suffer from all of the defects of identification evidence. However, it does share with such evidence the danger that a witness will propound his or her conclusion with force and conviction. Furthermore, both forms are also likely to be given special weight by a jury, even where its reliability is dubious,

before concluding (at [31]) that recognition evidence falls within the definition of “identification evidence” for the purposes of s 116 of the Evidence Act1995 (NSW). Section 116 requires the trial judge to inform the jury that there is a special need for caution before accepting identification evidence, and of the reasons for that need for caution, both generally and in the circumstances of the particular case.

In the present case, his Honour gave extensive and comprehensive directions identifying potential deficiencies in the evidence of Ms Kent, and also Matthew Cooper, and warned the jury in both general and specific terms to carefully consider the circumstances in which they made their identifications and to exercise special caution because of the potential unreliability of such evidence. As I have said, no complaint is made about the directions given by the trial judge concerning the identification (strictly recognition) evidence given by Ms Kent, and by Matthew Cooper.
Counsel for the appellant acknowledged that Ms Kent had no motive to be untruthful; the challenge to her evidence was based solely on its reliability. The Crown submitted that it was ultimately a question for the jury to assess Ms Kent’s evidence and her reliability and determine whether that evidence could be accepted beyond reasonable doubt. It was not in dispute that this was a quintessential function of the jury to determine: Atai v R [2014] NSWCCA 210 at [134] (R A Hulme J).
In support of the contention that Ms Kent was mistaken about recognising the appellant as the man holding the gun in the driveway, counsel for the appellant pointed to the following matters.

(1) Recognition evidence

(a) Prior familiarity with the subject

The first complaint by the appellant was that Ms Kent did not give evidence of the extent of her prior familiarity with the appellant and, accordingly, this severely undermined her evidence. However, this complaint ignored the unchallenged parts of Ms Kent’s evidence, which it was open to the jury to accept.
First, Ms Kent gave unchallenged evidence that having lived next door to the appellant and his family for three years, she knew the appellant to look at and knew what his voice sounded like.
Second, Ms Kent gave unchallenged evidence of her observations of the appellant, his girlfriend and the members of his family which was consistent with her having frequently observed the appellant over the previous three years. Ms Kent accurately identified the members of the Williams family that lived next door. She gave evidence that she regularly saw the appellant’s girlfriend, Abigail Voce, and another girl, Maddie (Maddison Biddle) – a friend of Jye Williams – at the house. She identified the appellant’s vehicle as a black or dark sedan, either a Commodore or Falcon, and Abigail Voce’s vehicle as a RAV 4.
Third, Ms Kent’s recognition evidence was supported by her voice identification of the appellant in her statement to the operator of the triple-0 number. She told the operator that she heard the appellant say: “I think I shot one. Something to do with the boy hitting his brother, ah girl, sister. That’s what the argument was about”.
The appellant sought to meet this evidence by submitting that this statement must have been the product of either confusion, or mishearing by Ms Kent. According to the submission, the jury could not have placed reliance upon it because it would not make sense for the appellant to be referring to hitting the girl, given that the female who was said to have been assaulted at McDonald’s was from the victim’s group and not from the appellant’s group. I do not agree. Ms Kent’s statement to the triple-0 operator about the argument she heard was consistent with the appellant’s own evidence in relation to the incident at Lake Haven McDonalds where he said:

…[B]ut the only guy that was really doing the talking was the dude with the blonde hair and he was just saying, he was saying “Hit, yousse hit my fucking, youse hit my fucking sister”.

The trial judge gave a direction in respect of Ms Kent’s voice identification evidence, favourable to the appellant, that “… There is actually not any evidence … that she had ever heard his voice before this night outside an assumption a – just a – almost verging on speculation that because she is a neighbour that she must have heard his voice”. However, this direction overlooked that Ms Kent had correctly identified the appellant’s voice earlier on the morning of 2 July 2018 at about 4.30 am, when she heard banging on the front door of the Williams’ house as she was leaving for work. As the Crown submitted, this voice identification evidence was properly before the jury for its consideration and the jury was directed to analyse for itself in detail how much evidence Ms Kent gave of her prior dealings with the appellant. It was well open to the jury to accept that Ms Kent was familiar with the appellant’s voice.

(b) The circumstances of the perception of the subject

The appellant’s second complaint was that Ms Kent’s ability to identify the appellant was necessarily limited by the circumstances of her perception of the subject with the gun in the driveway. The submission continued that there were various matters affecting Ms Kent’s ability to clearly see the gunman. Reference was made to the lighting conditions, the stressful situation, and that Ms Kent was observing the scene through slats on the main bedroom window, which was covered by a flyscreen and a curtain.

It may be accepted that the matters referred to by the appellant were relevant circumstances affecting Ms Kent’s perception of the subject holding the gun. Nonetheless, Ms Kent’s evidence was that she was able to see through the open slats of the security shutters and that the curtains in the front bedroom window were open when she made her observations. The length of time between her initial perception of the subject in the driveway with the gun and her call to the operator of the triple-0 number was almost contemporaneous. She told the triple-0 operator that she was watching through the vents of the security shutters.
In terms of lighting, having described the street light on the perimeter and down lights under the eaves at the front of the Williams’ house, and that the appellant was standing “just outside the eaves of his house”. Ms Kent agreed in her evidence that it was dark along the driveway; and she could only recall one car, not three, parked in the driveway. The lighting conditions in which Ms Kent observed the gunman was the subject of comment by the trial judge in his summing up. It is a matter which the jury can be taken to have considered. That the person she recognised in the driveway as her next door neighbour was holding a gun, was a matter likely to have been of significance to her. Further, that she heard the sound of a shooting incident, and she recognised the gunman’s voice, was also likely to be a reason for remembering what had occurred. Plainly, the lighting described by Ms Kent was relevant to her ability to clearly see the gunman in the driveway but it does not follow that her evidence of what she observed lacked probative force.
In my view, it was open to the jury to accept that Ms Kent could physically observe the appearance of the man in the driveway holding the gun.

(c) Discrepancies in the description of the man holding the gun

The appellant’s third complaint was that Ms Kent’s description of the appellant as having short hair, “like a crew cut”, was inconsistent with the appearance of the appellant as at 2 July 2016 and conversely, consistent with the appearance of Brandan Randall at that time. The photographic evidence of the appellant established that at the time of his arrest he had shoulder-length hair, whereas at the time of the trial he had a crew cut (Ex 21).
The Crown responded to this criticism by emphasising that the first time Ms Kent was asked to comment on the length of the appellant’s hair was at trial, two years after the incident. According to the submission, Ms Kent’s misdescription of the appellant’s hair was a result of a mistake at the time of the trial, and not a mistake as to her observations of the appellant in July 2016. The Crown suggested that Ms Kent had subconsciously conflated the appellant’s hair style at trial with her description of the appellant’s hair style almost two years earlier.
This discrepancy in Ms Kent’s evidence was the subject of comment by the trial judge in his summing up. It is a matter which the jury can be taken to have considered. That the jury did not reject the Crown case on counts 2 and 3 because of a reasonable possibility that the shooter did have a crew-cut hair style is explicable on the evidence. There was no evidence that Brandan Randall’s hair could be described as a “crew cut” at the time of the offences in July 2016. Evidence of identification or recognition may be affected by confusion and displacement, or contaminated by subsequent observations. It was well open to the jury, having had the benefit of seeing and hearing all the witnesses (see [39] above], to conclude from the whole of the evidence that Ms Kent’s description at trial of the appellant having a crew cut at the time of the offences given by Ms Kent at trial was mistaken.
The appellant’s fourth and related complaint was that Ms Kent was wrong about the clothes the appellant was wearing when he was arrested. Counsel emphasised the discrepancy between Ms Kent’s evidence that the appellant was wearing grey track pants, whereas the objective photographic evidence established that at the time of his arrest he was wearing blue jeans (Ex 61). So much may be accepted, but the significance of this discrepancy in the evidence is lessened by two matters.
One is that Ms Kent correctly identified the appellant as wearing a light grey jumper, albeit it also contained a black Adidas motif on the front. The other is that there was evidence of tampering with the crime scene. Ms Kent observed people looking out the front near the car and something was said about casings, and there was no evidence of casings from the shooting found by the police. It was clearly open to the jury to reject the self-serving parts of the appellant’s evidence that he did not change his clothes before the police arrived at the scene and that the grey track pants found by police in the washing machine containing the appellant’s flick knife (which the appellant admitted hiding there), belonged to his brother.

(d) Recognition of the appellant returning to the Williams’ house in a vehicle that parked on the road

The appellant’s fifth complaint was that Ms Kent incorrectly identified the appellant as exiting his car just before the police arrived at Tirriki Close at about 7.25pm and had mistakenly confused the appellant with Brandan Randall who had exited the grey Subaru. Acceptance by the jury of this aspect of Ms Kent’s evidence was critical to the Crown case that the appellant had the opportunity to dispose of the gun when he left Tirriki Close after the shootings and returned in his car just prior to the police arriving at the scene.
Counsel for the appellant submitted that Ms Kent assumed that it was the appellant who returned in a vehicle just before the police arrived because that was the assumption that she had earlier made about the person holding the gun in the driveway when, according to the submission, the appellant was in the house and it was Brandan Randall who returned to the scene in the grey Subaru.
In support of this challenge the appellant pointed to evidence given by the police who attended the scene. As mentioned, Senior Constable Stone observed a grey Subaru vehicle overtake the first police vehicle in which she was travelling and park in the driveway of the Williams’ house just before that police vehicle arrived at Tirriki Close at about 7.25pm. And, the inquiries of Constable Allwood, who it will be recalled arrived at the scene at about 7.40pm, established that the persons who exited the grey Subaru that parked in the driveway just before the police arrived were Brandan Randall and Jordan Todd.
In my view, the matters referred to by the appellant do not affect the quality of the evidence given by Ms Kent. First, Ms Kent was not directly challenged on her evidence that the person she recognised as the appellant who returned to the Williams’ house just before the police arrived, had returned in the vehicle that parked on the road, rather than in the driveway of the Williams’ home.
Second, Ms Kent’s evidence as to the location of the appellant’s vehicle parked on the road was consistent with the evidence of Senior Constable Stone, and the photographic and crime scene sketches by the police: see [89] and [96] above.
Third, insofar as the cross-examiner sought to challenge the reliability of this aspect of Ms Kent’s evidence, that challenge was limited to the colour of the jumper the appellant was wearing. It was suggested to Ms Kent in cross-examination that the appellant was wearing a dark grey jumper, and that the person she observed exiting the vehicle was also wearing a dark grey jumper. Ms Kent disagreed and adhered to her evidence that the jumper worn by the appellant and the person who exited the vehicle that parked on the road was “light grey”. Her description of the colour of the appellant’s jumper accorded with the photos taken of the appellant by the police. He is shown wearing a light grey hoodie with a black Adidas motif on the front.
Fourth, while Ms Kent agreed with the cross-examiner’s temporal suggestion that the police arrived at “that very point” when the appellant exited the vehicle parked on the road, that evidence is not to be considered in isolation from the whole of her evidence. In her evidence-in-chief, Ms Kent said that after the appellant returned in the vehicle that parked on the road, the next thing that she recalled seeing was that the police arrived. That evidence was consistent with the appellant returning to the scene shortly before the police arrived. As indicated, the evidence of Senior Constable Stone corroborated Ms Kent’s evidence that the appellant’s car was parked on the road when the first police vehicle arrived at the scene. It is not in dispute that the appellant was not in the grey Subaru, which overtook Senior Constable Stone’s vehicle and parked in the driveway just before the police arrived.
Fifth, Ms Kent correctly identified the appellant as the person who, after returning to the Williams’ house in the vehicle that parked on the road, was the person who was handcuffed by police and put into a paddy wagon. There is no suggestion in the evidence that Brandan Randall was ever handcuffed or taken away by police in a paddy wagon. This aspect of Ms Kent’s evidence reinforced her evidence that she recognised the appellant as the person she observed holding the gun in the driveway and who returned to the Williams’ home in the vehicle that parked on the road just before the police arrived at the scene.
Sixth, it was clearly open to the jury to reject the appellant’s self-serving evidence that he did not leave his home after the shootings and before the police arrived at the scene.

Other matters

The Crown submitted that there were other important aspects of Ms Kent’s evidence at trial which supported her accuracy and reliability as a witness generally. That may be accepted. Those matters included:

Ms Kent gave evidence that a car was parked across the road before the speed bump in Tirriki Close, which is where Jordan Langley’s car was parked according to the diagram drawn by Matthew Cooper (Ex 4) and is consistent with the appellant’s evidence about where Jordan Langley’s car was parked.

Ms Kent gave evidence that during the incident on the evening of 2 July 2016, she heard screaming and yelling and recognised Abigail Voce’s voice. This is consistent with Abigail Voce’s evidence that she was screaming during the incident. Nor was it put to Ms Kent in cross-examination that she could not recognise Abigail Voce’s voice.

Ms Kent gave evidence that after the shooting incident, Abigail Voce and another girl entered Troy Williams’ car and drove off. This is consistent with Abigail Voce’s evidence that she left in Troy Williams’ car, a blue Ford XR6, to collect the appellant’s mother and sister from the Lake Haven Cinemas. Maddison Biddle also gave evidence that she accompanied Abigail Voce.

Ms Kent correctly identified Abigail Voce’s car as a RAV4 and that the appellant drove a black sedan.

Ms Kent’s description of the gun provided during the triple-0 call as a “long pistol” and in her evidence as “like a hand gun, but a longer barrel” was generally consistent with the description of the gun provided by other witnesses and also consistent with a diagram of the gun drawn by Matthew Cooper on the day of the offences (Ex 5).

Ms Kent described seeing a male on the road who was tall, very fit, muscular, had a six-pack, not wearing a shirt and not holding anything in his hand. This was consistent with the evidence given by the appellant that Myles Taueli was “standing there being a monster of a guy that he is, with no shirt on in the middle of winter time” and had nothing in his hand. It is also consistent with the evidence of Myles Taueli that he was unarmed, not wearing a shirt, weighed 106 kilograms and is six foot five inches.

As indicated, the appellant did not challenge the reliability of Ms Kent’s report during the triple-0 call or her evidence concerning the earlier incident at Tirriki Close about 4.30am on the day of the shooting offences occurred.

Having considered the whole of Ms Kent’s evidence and the evidence of the other witnesses to which attention was drawn in submissions, I do not share a doubt as to the sufficiency and quality of Ms Kent’s evidence that she recognised the appellant as the person holding the gun in the driveway, who said “I think I shot one” and who later returned to the Williams’ house in the vehicle that parked on the road just before the police arrived and was handcuffed and taken away in a paddy wagon.
For completeness, I will consider the other matters raised by the appellant.

(2) Alleged admission by the appellant

On the sixth day of the trial, Tuesday 20 February 2018, Jordan Langley gave evidence that during the lunch hour the previous Friday, 16 February 2018, before he was to give evidence, he was in the toilets on the lower ground floor of the Downing Centre, when the appellant and another male came in and approached him. According to Jordan Langley, the appellant said to him, “At the end of the day, I never wanted to shoot you” and “I’m sorry this has happened to you”.
In cross-examination, Jordan Langley agreed that he asked the appellant, “How are you, mate?” to which the appellant replied, “Okay, yourself?”. He also agreed that he said to the appellant, “I’m sorry about all this, I shouldn’t have been there” and that the appellant responded, “Well, I’m sorry about it too”. He denied the suggestion by the appellant that this evidence was fabricated. He accepted that he knew on the previous Friday that he would not be able to give evidence identifying the appellant as the gunman, but denied giving evidence about the conversation with the appellant in the toilet so that he could point the finger at the appellant as the gunman. He accepted that he commenced to give his evidence at about 2.45pm on the Friday afternoon, but did not tell the police or the prosecution about the alleged admission by the appellant prior to giving evidence.
There was CCTV footage (Ex 21) which showed the appellant going into the toilets at the time when Jordan Langley was in the toilets. He walked out first, followed shortly after by the appellant and his brother, Jye Williams. Jordan Langley did not tell police or the prosecution about this conversation until the following Monday morning, 19 February 2018. The trial did not proceed that day, as one of the jurors was absent due to illness. Jordan Langley gave evidence the next day that he had told his family what had happened over the weekend. In re-examination, he gave evidence that on the Friday afternoon he was also approached by another older male in a purple shirt after he had left the toilet and was asked if he could “drop it all and forget it”.
On the Crown case, that older male was Troy Williams, the appellant’s father. The reason Jordan Langley gave for not immediately reporting the interaction in the bathroom was that he felt intimidated.
The appellant was cross-examined about this alleged admission. He said that he did not follow Jordan Langley into the toilets outside the courtroom. According to the appellant, Jordan Langley spoke to him first and said, “How are you bro?” to which he replied, “Alright, bro, yourself?” and Jordan Langley then said, “I’m sorry bro, I shouldn’t, never been at your house” and the appellant replied, “I’m sorry about what happened too. I never, ever intended for that dude to do what he done”. The appellant denied that he spoke to Jordan Langley first or that he said, “[A]t the end of the day I never wanted to shoot you”.
Counsel for the appellant accepted that the admission which the appellant allegedly made to Jordan Langley involved a matter of credit, however it was submitted that the circumstances in which Jordan Langley failed to report the alleged admission to the police or prosecution prior to commencing the giving of his evidence casts significant doubt on its reliability.
The submission continued that the following factors – the nature of the approach to Jordan Langley in the toilets at the court, the absence of anything that might be said to be of an intimidating nature, and with the statement by the man described as wearing the purple shirt that, “We will have a beer afterwards” – provided no basis for the Crown’s submission that intimidation lay behind Jordan Langley’s failure to report the admission to the prosecution until the following Monday.
The Crown accepted that the alleged admission was not the most important part of the Crown case in maintaining the conviction, but submitted that it was further evidence that the jury was able to rely on to establish that the appellant was the shooter.
Evidence that an accused person has a consciousness of guilt of a charged offence is relevant and admissible in support of the prosecution case. To be admissible such post offence conduct must be capable of constituting an admission against interest: Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 at [6] (Latham J). The evidence in issue in this case answered that description. The evidence involved an issue on which the jury had an advantage over an appellate court, in having seen and heard first hand the conflicting evidence of Jordan Langley and the appellant.
Against this it cannot be overlooked that Jordan Langley was not an independent witness: he was a participant in the confrontation at Tirriki Close; he had thrown the tomahawk into the rear passenger window of Brandan Randall’s vehicle; and he was the victim of the shooting. He was also aware prior to giving his evidence that he could not give evidence identifying the appellant as the gunman. He may have had some purpose to serve in giving such evidence adversely to the appellant, namely revenge or seeking retribution.
There are three further considerations. One is that the alleged admission was uncorroborated. Next, the explanation for the delay in bringing the alleged admission to the attention of the police or prosecution was hardly consistent with Jordan Langley’s aggressive conduct during the confrontation at Tirriki Close. Finally, there is the inherent unlikelihood that the appellant would make such an admission while at the same time asserting his innocence by defending the charges against him.
In my view, the circumstances surrounding the making of the alleged admission and the delay in bringing it to the attention of the police or prosecution raises a significant concern with that part of the evidence.

(3) Absence of gunshot residue

Counsel for the appellant emphasised the absence of any gunshot residue found on the appellant’s hands and clothes. However, given the expert evidence as to when residue could be expected to be present on the appellant’s hands and clothes if the appellant had fired the gun, relative to the time delay in bagging the appellant’s hands and testing the gloves and clothing samples, the absence of any gunshot residue is neutral.

(4) Matters implicating Brandan Randall

Counsel for the appellant drew attention to the evidence which, it was submitted, implicated Brandan Randall as the shooter: the pictures found on his mobile phone of a hand holding a gun which appears to be similar to that described in the evidence; he had short hair at the time, as is evidenced in the photographs of him (Ex 52, 53, 54 and 55); he was of a similar build to the appellant; that he had access to a firearm; the tomahawk thrown into his car provided a motive for him, at least for the second shot, at Jordan Langley; and that he had the opportunity to dispose of the gun before he returned to the scene.
These matters are either equivocal or neutral. That images of a gun similar to that described in the evidence were found on Brandan Randall’s mobile phone is not inconsistent with the Crown case that the appellant co-opted him to join him in his confrontation with Matthew Cooper and that, at least after the drive-by shooting at San Remo, the gun passed into the appellant’s possession. As to the length of Brandan Randall’s hair, as I have said, it could not be described as a “crew cut” at the time of the offences. That Brandan Randall had a motive for the second shot is not inconsistent with the appellant having a motive for both shots, given the damage to his girlfriend’s car and importantly, the threats made by Matthew Cooper that he was coming after him. That Brandan Randall had the opportunity to dispose of the gun is neutral, given that it was open to the jury to accept that the appellant had that same opportunity when he left the Williams’ house after the shooting incident and returned before the police arrived at the scene.

In my view, it was open to the jury to conclude that none of these matters either individually or collectively were sufficient to cast doubt on the reliability of Ms Kent’s recognition evidence.

Conclusions open to the jury

The recognition evidence of Ms Kent was powerful; she was a witness independent of the dispute that had arisen between the appellant’s group and the victim’s group on 2 July 2016. Notwithstanding the criticisms directed to her evidence, it was open to the jury to accept that Ms Kent observed the appellant in the driveway holding the gun, she recognised the appellant’s voice in the driveway saying, “I think I shot one …”, and she identified the appellant returning to the Williams’ house in the vehicle that parked on the road just before the police arrived, and as the person handcuffed by the police and taken away in a paddy wagon.
Having made my own independent assessment of the nature and quality of the evidence, I am satisfied it was open to the jury on the evidence to find beyond reasonable doubt that the appellant was the shooter in the two incidents at Tirriki Close and was guilty of discharging a firearm in a public place and also causing grievous bodily harm to the victim. I am satisfied that the appellant was rightly convicted on counts 2 and 3.
Accordingly, I would propose the following orders:

Grant the appellant leave to appeal his convictions;

Appeal dismissed.

Given that the other members of the Court would uphold the conviction appeal and quash the convictions, it is not necessary to address the Crown’s appeal against sentence on the ground of manifest inadequacy. The Crown’s appeal should be dismissed.
SCHMIDT J: Conviction Appeal
I have had the advantage of reading Gleeson JA’s judgment, but while I agree with his Honour’s explanation of the principles which apply to an appeal in which a ground is that the jury’s verdict was unreasonable or not supported by the evidence; how the recognition evidence which Ms Kent gave must be approached; and much of his explanation of the evidence, having myself assessed the evidence, I do not agree with his Honour’s conclusion that the appeal must be dismissed.
The reasons for my conclusion are as follows.
Having made necessary allowance for the advantage which the jury undoubtedly had in this complex trial, I am not satisfied that its advantage of having heard and seen the evidence was capable of resolving the doubt which arose as to the reliability of Ms Kent’s identification that it was the appellant who was the gunman who she saw on the night of the shooting.
As Gleeson JA has explained, Ms Kent’s evidence was pivotal to the Crown case, she being the only person who knew the appellant, who identified him as the gunman. The defence case was that she had mistaken the appellant for Mr Randall. The jury having convicted the appellant, it must have accepted her evidence as reliable. I do not agree with his Honour that this conclusion was open.
Ms Kent, the appellant’s next door neighbour who had known the appellant for some years, was at home when Mr Langley was shot outside the appellant’s home, at about 6.48 pm on 2 July 2016. At trial there was no issue that both the appellant, Brandon Randall, and others were present, or that Ms Kent saw the gunman standing in the appellant’s driveway, holding a gun. But that the gunman was the appellant and that it was he who said the words Ms Kent described in the 000 call, were in issue.
For reasons which Gleeson JA has explained, unlike with other witnesses it was not suggested that Ms Kent had any motive to be untruthful. But the accuracy and reliability of her evidence on crucial matters were in issue and is ultimately what resolution of this appeal turns on.
The question which must be resolved is whether Ms Kent’s evidence left open a reasonable doubt that she had accurately identified the appellant as the gunman.
There is no question that Ms Kent’s description of the gunman’s hair did not reflect the appellant’s hair at the time of the shooting, or that there were other problems with her evidence, which the jury had to consider.
Ms Kent’s evidence-in-chief was that while watching TV that evening, she had heard what sounded like firecrackers outside. There was other evidence that two shots had been fired, the second after a tomahawk was thrown at Brandan Randall’s car.
Ms Kent said that she went into the bedroom and looked through the security shutters to see a young man standing in the appellant’s driveway and cars parked across the road. At that point she heard a lot of male voices yelling, but did not identify the appellant’s voice.
Ms Kent described it then to be dark outside. The street lights were on, as were downlights under the eaves, near the front door of the appellant’s house. She saw the gunman standing at the top of the driveway, just outside the eaves of the appellant’s house. She was not certain in which hand he was holding the gun.
It was when she moved closer to the window that Ms Kent said she saw that it was the appellant who was holding the gun, with his arm outstretched. She described the gun in terms which matched the photo of the gun later found on Brandan Randall’s phone. Ms Kent also described seeing a tall, well-built male without a shirt on and a “six pack” in the street.
At that point Ms Kent heard a lot of screaming and yelling and recognised one voice being that of the appellant’s girlfriend, Abbi. She also said that she heard an unidentified male voice say: “Come on Kyle. You better not miss, otherwise I’m coming back”. She could not remember the appellant saying anything at that point.
Ms Kent then made a 000 call, as did the victim. This established that the shots were fired at about 6.48 pm.
In her 000 call Ms Kent told the operator that it was the appellant who she could see holding the gun; that she had earlier heard what sounded like firecrackers; that those outside had all taken off; and that she had heard the appellant say “I think I shot one. Something to do with the boy hitting his brother, ah girl, sister. That’s what the argument was about”. She also said she had seen a whole pile of guys egging him to come out.
Ms Kent also said in her evidence-in-chief that she saw two girls outside looking for something and then the appellant’s father pull up in his car, which he parked in front of the driveway. He was on the phone and looking around for something on the road. She then saw Abbi and another girl drive off in the appellant’s father’s car.
Ms Kent then saw the appellant come back to the house in a car which he parked on the road, but she could not say in what car. It was then that all the police arrived and told him to get down on the ground three times. Ms Kent described the appellant to then be wearing a grey tracksuit and sloppy joe and being handcuffed and put into the paddy wagon.
In cross-examination Ms Kent said that she had heard two firecrackers before she went to the window, when she saw three cars across the road, but could not clearly see the people in them, because it was dark. She described the window through which she was looking as having a flyscreen, an aluminium security shutter which was down, but with the slats open, as well as a curtain. She described the slats to have “like little holes”. In re-examination she explained that the curtain was open.
On appeal the Crown accepted that Ms Kent’s view was limited and that she did not see all those who were then in the driveway.
Ms Kent also said in cross-examination, that it was when she returned to the window, after she made the 000 call, with the phone in her hand, that she saw that everyone had gone. She also saw the person she identified to be the appellant get out of a car which was parked on the road, “at the very point that police arrived”. She also saw the police tell the appellant to get on the ground. She was sure that he was not wearing jeans, but track pants and that his jumper was light, not dark grey.
Ms Kent denied that she had been mistaken in identifying the gunman to be the appellant. She agreed that she did not know any of his friends, other than those she had mentioned. They did not include Mr Randall.
In re-examination Ms Kent explained that she believed that she was not mistaken about her identification, because “I know Kyle if I see him”. But she then described him as having a crew cut, rather than the shoulder length hair which, it was common ground, that he had at the time of the shooting.
This was thus one incorrect aspect of Ms Kent’s evidence which the jury had to consider, in concluding that it should accept her identification of the appellant as the gunman to have been reliable. There were others.
The photographic evidence established that contrary to Ms Kent’s evidence, when the appellant was arrested shortly after police arrived, he was wearing jeans, not tracksuit pants. Police later found grey tracksuit pants inside the appellant’s house in a washing machine, with a knife and machete. Those pants and the clothing the appellant was wearing, including gloves, were all tested for gunshot residue, but none was found.
Further, contrary to Ms Kent’s evidence, the evidence of police officers established that the appellant was inside the house when police arrived. The appellant’s car, an XR6, was then already parked in the street. It was Mr Randall who then arrived in his car, a Subaru in which he had overtaken the police vehicle in which Senior Constable Stone was driving to the scene.
Constable Stone was in the first police vehicle which arrived. In her evidence she described approaching quite slowly and seeing one house extremely lit up. She also saw the XR6 parked out the front of the house, vehicles parked in the driveway and as they approached, the grey Subaru drove past into the driveway. She parked and rushed to the house, where she saw people exiting, whom she asked to sit on the ground on the grass to the right of the driveway. One of them was the appellant. Two other constables then entered the house to make sure no-one else was inside.
The evidence of the appellant and his brother was that they were in the house when police arrived, they then went outside, where they sat down. This evidence which was contrary to Ms Kent’s evidence, was thus corroborated by Constable Stone. She identified those who came out of the house to have been the appellant, his father Mr Troy Williams, his brother Jye Williams and three others, who were quite intoxicated.
Constable Stone’s evidence was that the lighting was then sufficient for her to see who came out of the house and what they looked like, because of how the house was lit up. She described the appellant to have been wearing a grey coloured Adidas hooded jumper with a black motif and blue pants.
Constable Stone also saw two of the doors of the Subaru which had pulled up open, but it was Constable Allwood who dealt with those who got out. Constable Stone also saw Constable Daly take details from those people and also saw Constable Daly speak to Mr Randall. The appellant was then taken away in a police truck and Mr Randall and others were taken to another police station.
In cross-examination, Constable Stone was taken to her notes and confirmed that she later established that the Subaru belonged to Brandan Randall. She could not remember whether the blue pants she saw the appellant wearing were jeans.
Constable Allwood’s evidence was also that he saw the appellant, who he recognised, come out of the house and sit on the lawn, with the others removed from the house. In cross-examination, he confirmed that the appellant was one of several people who exited the house, when he arrived
Constable Allwood’s notebook established that Mr Randall was one of those who got out of the Subaru. Constable Allwood had spoken to him, but he was not sure if the Subaru was the car which arrived, as police arrived, but on Constable Stone’s evidence, there was to be no doubt about that. Constable Allwood had noted that Mr Randall was then wearing a grey hoodie and beige long pants. He was not arrested, nor was his clothing tested for gun residue, but a photo of a gun was found on his phone.
Constable Daly’s evidence was that when he arrived he asked a group of people who Kyle Williams was and it was the appellant who then stepped forward, was handcuffed, and his phone removed and he was taken to Wyong Police Station, where gunshot residue swabs from his hands and his clothes were taken.
Constable Daly also spoke briefly to Mr Randall, before he was taken to another police station. Examination of Mr Randall’s phone found images and a short video of a shortened firearm, taken inside a vehicle, which was of a similar model to his car, some weeks before the shooting. Constable Daly’s attempts to discuss those images with Mr Randall were unsuccessful.
Constable Daly also said that Mr Randall’s car was examined and an axe seized from the back seat, but despite this, the clothing in his car was not seized, nor were any tests for gunshot residue undertaken on them, or on the clothing Mr Randall was wearing. On the Crown case that was because Mr Randall never became a suspect in the shooting.
As Gleeson JA has explained, the evidence established that Ms Kent knew the appellant as her neighbour, was able to recognise him on sight and his voice on hearing. On her evidence she did not know Mr Randall, who the evidence established was also present and who had a connection with the gun used in the shooting.
The defence case at trial was that Ms Kent was mistaken in her identification of the appellant as the shooter, who was in fact Mr Randall. On appeal the possibility that her recognition was mistaken was argued to have arisen from a combination of factors, including that:

the appellant and Mr Randall were young men of similar build and height;

Ms Kent was looking into the darkness outside towards the appellant’s driveway, which was not well lit;

Ms Kent’s vision was obscured by a screen on the window;

Ms Kent had agreed that she had described the gunman not to be thin, to be well maintained, toned, quite tall, with short brown hair, which she then explained was like a crew cut, with the result that there was no issue that Ms Kent’s description of the gunman’s hair did not match the appellant’s hair, but matched Mr Randall’s hair;

the difficulties raised by what Ms Kent said in the 000 call about what she had heard the appellant say; and

the problems with her description of the appellant’s clothing and having seen him return to the house, after the shooting.

The jury was directed about what was advanced for the appellant about these matters in terms which were not criticised. The jury’s verdict reflects that it concluded that despite the problems with Ms Kent’s evidence, she was not mistaken in her recognition of the gunman having been the appellant.
The question which has to be resolved is whether it can be concluded that the jury erred in reaching this conclusion, because the evidence left open a reasonable doubt that Ms Kent was correct in her identification of the appellant as the gunman.
On the evidence I have discussed, I am satisfied that there was such a doubt and that the Crown did not satisfy the onus which fell upon it, to establish the appellant’s guilt beyond reasonable doubt.
Ms Kent did not see anyone other than the gunman in the driveway, but she heard people yelling at each other, including the appellant and Ms Voce. There was no issue that Mr Randall was at the house when the shooting occurred. On his evidence he was inside the house, but on that of others present at the house, Mr Randall was in the driveway.
It was not until Ms Kent gave her evidence, some 20 months after the shooting, that she was asked to describe the gunman.
There was no suggestion that Mr Randall, who was of similar build and height to the appellant and who, unlike the appellant, had short hair as Ms Kent initially described, was known to Ms Kent, or that she saw him or anyone else outside with the gunman, at the time of the shooting.
Being unaware of the presence of another such young man and having heard the voices of the appellant and his girlfriend, amongst those she heard outside yelling, that she was mistaken in her identification of the appellant as the gunman when she made the 000 call was undoubtedly possible, even though she did not accept this to be so. That possibility flowed from the darkness outside and the dimly lit driveway, which the Crown accepted must have had an impact on what Ms Kent was able to observe.
When challenged in cross-examination Ms Kent became more adamant that she had correctly identified the appellant. He then had shoulder length hair, but she then changed her description of the gunman from having short hair, to having a crew cut and insisting “If I see him, I know him”.
The difficulty with this evidence was not only that on the night of the shooting, the appellant had shoulder length hair, but that Mr Randall’s hair was short. Unlike Gleeson JA, I consider this to be important evidence, which was not neutral to the jury’s resolution of what was in issue as to its assessment of the reliability of Ms Kent’s evidence and the possibility that she was mistaken about the identity of the gunman.
This and other aspects of her evidence gives rise to the need to consider whether what here occurred was what Spigelman CJ discussed in Trudgett at [29], that despite the careful directions which his Honour gave, Ms Kent having propounded her conclusion that the gunman was the appellant with force and conviction, as she plainly did, the jury gave her evidence special weight, despite the obvious problems which it raised, over which the parties joined issue.
The Crown case on appeal was that it was relevant to take into account that when Ms Kent gave her evidence, her description of the appellant coincided with what she could see that day, his hair having in the meantime been cut into a crew cut, while at the time of the shooting it was shoulder length.
This was not advanced at trial, but that this is what Ms Kent appears to have done, changing her description of the gunman’s hair from having been short, which could have described Mr Randall’s hair, but not the appellant’s shoulder length hair, to the appellant having a crew cut, does not support the conclusion that her recognition of the appellant as the gunman on the night of the shooting, could not have been mistaken.
The Crown’s case on appeal was that the photographs of Mr Randall in evidence showed that “his hair can neither be described as short or particularly as a crew cut, it might be described as shorter but not necessarily short.” T29. But it certainly was not shoulder length.
Account also needs to be taken of the fact that the shooting occurred at about 6.48 pm and police arrived at the house at about 7.25 pm. Both the appellant and Mr Randall thus had the opportunity in the meantime, not only to change their clothes, but to leave the house to dispose of the gun. But there was no issue that Mr Randall had left the house and evidence that a call had been made to him, before he returned to the house. There was no suggestion that call had been made by police.
Ms Kent did not say that she saw the appellant leave the house, only that she saw him return, when police arrived. At that point the house was well lit and accordingly, it can be accepted, Ms Kent could better see what was happening outside, than when she saw the gunman.
Despite this, on the evidence of the police officers, it was Mr Randall’s Subaru which overtook the first police car to arrive at the house and he was one of those who then got out of that car, which stopped in the driveway, just as they arrived. At that time the appellant was inside the house.
Ms Kent’s evidence, however, was finally that she saw the appellant get out of the car which pulled up in the street “at the very point that police arrived”. She could not identify the make of that car. The car parked in the street belonged to the appellant’s, but it was already parked there when police arrived, when the appellant was inside the house.

The police officers’ evidence established not only that it was Mr Randall who got out of the car which had stopped just as they arrived, but that the appellant came out of the house after they arrived, when he was told by Constable Stone to sit on the ground. Constable Stone did not give evidence that he failed to comply with her direction.
While it was the Crown case that there was an element of confusion as to what Ms Kent had meant when she said that she saw the appellant get out of the car, “at the very point that police arrived”, which “would have been apparent to the jury”, I am unable to see how that can be accepted.
True it is that the time which elapsed between the 000 calls being made and the arrival of police was long enough to have permitted both the appellant and Mr Randal to leave and return to the house. But Ms Kent’s evidence in cross-examination was unequivocal as to the close proximity between when she saw the person she identified to be the appellant exiting the car and police arriving, namely “at the very point that police arrived”. Had there earlier been any confusion about what she meant, Ms Kent clarified what she had seen by the answer which she so gave.
The evidence of the police officers thus simply did not support Ms Kent’s evidence that it was the appellant who arrived and got out of the car parked on the street, when the police officers arrived at the house. Their evidence established that the car parked on the street was already there as they approached and it was Mr Randall who got out of the car which stopped in the driveway, when they arrived. At that time, contrary to Ms Kent’s evidence, the appellant was, undoubtedly, inside the house.
It follows that the police officers’ evidence does not support the conclusion that Ms Kent could not also have been mistaken in her identification of the appellant as the gunman, that having occurred in circumstances where she could not see what was happening outside as well, given the poor lighting.
Also necessary to take into account is Ms Kent’s certainty about what she saw the appellant wearing, when she saw him get out of the car as police arrived.
Mr Kent’s evidence that the appellant was wearing a grey sloppy joe and grey track suit pants, conflicted with what police officers noted both the appellant and Mr Randall then to be wearing, notwithstanding that in cross-examination she said that the appellant’s sloppy joe was light grey, not dark grey. She was clearly mistaken.
The police officer’s notes established that the appellant was wearing a grey hoodie with an Adidas symbol and blue pants and Mr Randall a grey hoodie and beige pants. It is not open to conclude that by her mistaken description of what she saw the person who got out of the car wearing, it was more likely that Ms Kent was describing the appellant, rather than Mr Randall.
It follows that this aspect of the evidence also does not support the conclusion that Ms Kent was not mistaken in her earlier identification of the appellant as the gunman.
True it is that it was the appellant who police handcuffed, as Ms Kent said she saw, but even when this is taken into account, in the face of the other problems with her evidence, I am satisfied that it is not open to conclude that the evidence excluded the other obvious hypothesis which arose on the evidence, that it was not the appellant, but Mr Randall who was the gunman who Ms Kent saw when she made the 000 call.
In the result I have concluded that it was not open to the jury to find that the evidence established beyond reasonable doubt that it was the appellant who was the gunman who Ms Kent saw holding a firearm. In the result it was not open to the jury to find that the appellant was guilty of discharging the firearm or causing grievous bodily harm to the victim.
In the result, I would make the following orders:

Grant the appellant leave to appeal his convictions;

Uphold the appeal;

Quash the convictions;

Dismiss the Crown’s appeal against sentence;

Pursuant to Rule 50C of the Criminal Appeal Rules (NSW), direct a judgment and verdict of acquittal for the appellant on counts 2 and 3.

BUTTON J: Summary of determination
I have had the substantial benefit of reading the judgments of Gleeson JA and Schmidt J in draft.
I agree with the orders proposed by Schmidt J, very largely for the reasons given by her Honour. Because my opinion is dispositive of the appeal, however, and will lead to a person found guilty by a jury of two very serious offences being acquitted and immediately released from custody, I consider that I should set out my own reasons, albeit briefly.

Analysis of various, less probative evidence at trial

I shall first succinctly analyse the probative value of various, less important pieces of evidence for and against the proposition that the appellant was the shooter, before turning to the central recognition evidence of Ms Tracey Kent.
First, the identification evidence of Mr Matt Cooper of the appellant as the shooter with regard to the second and third shots that were fired is of little probative value. I say that because the purported identification based on previously seeing photos on Facebook stood on a weak foundation; the asserted sighting by Mr Cooper of the appellant at the time of the firing of the first shot (the drive-by shooting) was not supported by the CCTV product of that event; the circumstances in which Mr Cooper saw the shooter at the time of the second and third shots made it difficult to observe and identify that person accurately; and, finally, Mr Cooper may have been persuaded by others or by himself that the appellant was indeed the shooter.
In my opinion, the identification evidence given by Mr Cooper must be very largely put to one side.
Secondly, I adopt the same approach to the alleged uncorroborated oral admission, constituted by the asserted apology by the appellant in one of the bathrooms of the Downing Centre, about which Mr Jordan Langley gave evidence. I say that although CCTV evidence establishes that the two young men were in the bathroom at the same time.
I have come to that view because: there was a significant delay in Mr Langley informing any person in authority about it, despite its obvious importance; it was denied on oath by the appellant; of the fact that Mr Langley, by the time of the trial, had surely come to believe that the appellant was indeed the person who had shot him on the third occasion, and may for that reason have had a motive to seek to assist the prosecution case; and, finally, because the experience of the criminal courts over many decades – admittedly, in a somewhat different context – is that alleged oral admissions that are denied should be approached with significant caution.
Thirdly, as for the question of motive, there is no doubt but that the appellant behaved deplorably in the build-up to the shootings, and had a motive to inflict harm on those with whom he was upset. But, in considering the thesis that another person who was a friend and supporter of the appellant could have been the shooter, I have borne in mind that many criminal trials feature the infliction of harm, some of it fatal, not by the aggrieved and motivated person himself or herself, but by an associate of that person, who wrong-headedly believes that he or she is being a supportive friend and doing the right thing.
Fourthly, the descriptions of the shooter of the second and third shots, given by more than one of the young persons associated with the victim, very generally matched the appellant; in particular, with regard to hair length, they were more consistent with that of the appellant at the time rather than Mr Brandan Randall. On the other hand, none of that evidence rose anywhere near the level of a positive identification.
Fifthly, as for the evidence of the appellant, because of his two separate and admitted previous lies (complete absence from the scene; a wrestle leading to the gun going off accidentally) his evidence about the events must be assessed as being of little weight.
Sixthly, the same may be said of the evidence of his associates, the majority of whom first adopted the proposition that the gun had gone off accidentally during the tussle, and only later asserted the completely different proposition that the shooter was Mr Randall.
Seventhly, on the other hand, it is clear from the summing-up that the admitted lies of the appellant, and the conjunction of at least one of them with the admitted lies of many of his associates, were not permitted to be relied upon as evidence of consciousness of guilt on his part, and in accordance with that approach at trial I do not take them into account in that way.
Eighthly, in my opinion, the evidence connecting Mr Randall with what one can readily infer was the weapon in question was significant. It is not difficult also to infer that he may have been the person who brought the weapon to the scene and made it available to be fired by the shooter, whoever he was. It is also noteworthy that Mr Randall left the scene promptly after the shooting (though one might infer that the appellant did so as well). And there was also evidence that Mr Randall was not a person who was afraid of weapons, nor their use.
Ninthly, to my mind, the absence of gunshot residue (GSR) on the person of the appellant and in his motor vehicle is of little weight in his favour: it is well known that that substance can be readily dispersed, and his hands were bagged and thereafter examined quite some time after the third and final shooting. Quite apart from that, one can readily infer that were was something of a “clean up” at the scene, on the simple basis that no fired cartridge cases were found at the location where two shots had been fired; at the least, one of them must have been expelled from the weapon. In short, the absence of GSR is neutral.
Tenthly and finally, without delving deeply into a discussion of the “meaning” of an acquittal, I believe that, in considering the proposition that the appellant was the shooter on the second and third occasions, it is not irrelevant that the verdict of acquittal on the first occasion establishes that he is presumed to be innocent of being the shooter then, with the inevitable inference that another person was the perpetrator of the drive-by shooting.
In short, analysis of the evidence as a whole, leaving out the recognition evidence of Ms Kent, neither strongly inculpates nor exculpates the appellant.
That leads one to the evidence of Ms Kent.

Analysis of central evidence

Certainly, the evidence of Ms Kent was recognition evidence, not “true” identification evidence that features no previous contact between the alleged perpetrator and the identifying witness. But it is well known that, although less dangerous than true identification evidence, recognition evidence has its own perils. And the point is soundly made that, although Ms Kent could correctly describe aspects of the family next door – in terms of their names, partners, and vehicles – there was little detailed evidence in the trial about the degree of direct contact between herself and the appellant. In that regard, one knows from common experience that a householder can know quite a bit about his or her neighbours without truly knowing them well, and certainly without having close personal contact with them.
It is also true that Ms Kent correctly identified the voice of the appellant from early that morning. That is significant, but not determinative. That is not only because the whole phenomenon of mistaken recognition evidence is founded on the proposition that one can mistakenly identify a person whom one knows, even if one has been correct in the past. And it is also because the particular circumstances in which Ms Kent identified the appellant as the shooter made that latter identification more difficult and open to question.
I respectfully adopt all that Schmidt J has written about the physical and emotional difficulties that attended the recognition of the appellant by Ms Kent as the shooter, and shall not repeat that analysis. And those difficulties are little reduced in force by the fact that Ms Kent asserted that the shooter was the appellant at a very early stage during her 000 call: whether or not one makes a purported recognition at an early stage or a late stage does not detract from the problems that may attach to that act of recognition.
Contrary to what Gleeson JA has written, I respectfully think that the question of the hair length of the shooter is very important. The arrest photo of the appellant from the evening in question shows that his hair was approaching his shoulders. Whilst accepting that describing the hair of a young man as “short” is hardly unambiguous, I do not believe that that is the natural description of how the hair of the appellant looked that evening. And it is also noteworthy that the hair of Mr Randall, according to a reasonably contemporaneous photograph, was short, indeed in my opinion spiky, at around that time.
That in turn is relevant to the characterisation by Ms Kent in her evidence at trial of the hair of the shooter as a “crewcut”. It is simply impossible to characterise the hair of the appellant at the relevant time in that way. And if that description was the result of suggestion based upon the appearance of the appellant in the dock by the time of the trial, that is itself troubling. Finally, to repeat: although the hair of Mr Randall was not a true crewcut, it had a spiky appearance that, some weeks before the shooting, could be said to share some of the attributes of such a hairstyle.
The final aspect of the evidence of Ms Kent worthy of note is that, in accordance with the analysis of Schmidt J of what the witness said she saw when the appellant was arrested, and what the police said in evidence actually happened at that stage, I believe that Ms Kent must be mistaken about at least some of that. And it is very important that the explanation of those mistakes could be the mixing-up of the appellant and Mr Randall.

Determination

In short, once one strips away evidence (both inculpatory and exculpatory) that is of little weight, it is true to say that the convictions stand or fall on a satisfaction, beyond reasonable doubt, that Ms Kent could not simply be a completely honest and unbiased witness who was nevertheless mistaken.
Reflecting on that question, having had recourse to the entirety of the transcript and the documentary exhibits, and respectfully adopting the entirety of the analysis of Gleeson JA of the legal principles regarding how this exercise should be approached, I experience such a doubt. And I believe that it is a doubt that the jury should have shared. One of the reasons I say that is because, very often, assessing the demeanour of an identification or recognition witness in the witness box is of little assistance: it is trite that the most sincere, convinced, and convincing identification witness may simply be mistaken.
A final, more general, aspect of my assessment of the evidence in this appeal is the warning given to juries every day by Australian trial judges about the very topic of identification, including recognition evidence. In short, I have tried to apply that direction to my own reflection with the same force that I would expect a jury to adopt, if they were to hear me give it.

Conclusion

For all of those reasons, I agree with the orders proposed by Schmidt J.

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Amendments

18 March 2019 - Additional Order 5:

(5) Pursuant to Rule 50C of the Criminal Appeal Rules (NSW), direct a judgment and verdict of acquittal for the appellant on counts 2 and 3.

Decision last updated: 18 March 2019

Medium Neutral Citation:	Williams v R; R v Williams [2019] NSWCCA 53
Hearing dates:	2 November 2018
Date of orders:	15 March 2019
Decision date:	15 March 2019
Before:	Gleeson JA at [1] Schmidt J at [152] Button J at [219]
Decision:	(1) Grant the appellant leave to appeal his convictions. (2) Uphold the appeal. (3) Quash the convictions. (4) Dismiss the Crown’s appeal against sentence. (5) Pursuant to Rule 50C of the Criminal Appeal Rules (NSW), direct a judgment and verdict of acquittal for the appellant on counts 2 and 3.
Catchwords:	CRIMINAL LAW – appeal against conviction – evidence – identi fication and recognition evidence – whether convictions unreasonable or not supported by evidence – whether it was open to the jury to find beyond reasonable doubt that the appellant was guilty of discharging a firearm in a public place and causing grievous bodily harm to the victim CRIMINAL LAW – appeal against conviction – where appeal does not involve a question of law alone – where appellant failed to seek leave to appeal – grant of leave not a formality
Legislation Cited:	Crimes Act 1900, ss 33A(1)(a), 93G(1)(b) Criminal Appeal Act 1912 (NSW), s 5(1) Evidence Act 1995 (NSW), s 116
Cases Cited:	Atai v R [2014] NSWCCA 210 Cottrell v R [2012] NSWCCA 117 Davies v The King (1937) 57 CLR 170; [1937] HCA 27 Kuehne v R; Humphries M v R; Humphries A v R [2010] NSWCCA 270 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Mills v Western Australia (2008) 189 A Crim 411; [2008] WASCA 219 Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 Palmer v R [2018] NSWCCA 205 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Rasic v R [2009] NSWCCA 202 R v Trudgett (2007) 70 NSWLR 696; [2008] NSWCCA 62 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 R v Turnbull [1977] QB 224 at 228
Category:	Principal judgment
Parties:	Kyle Williams (Appellant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Counsel: P Lange (Appellant) F Veltro (Respondent) Solicitors: King and York Lawyers (Appellant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2016/200787
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 27 July 2018 Before: Pickering SC DCJ File Number(s): 2016/200787