R v Shoesmith

[2013] NSWCCA 127

Court of Criminal Appeal (NSW)|2013-04-22|Before: Price J, Davies J, Barr AJ, Ms J

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Court

Court of Criminal Appeal (NSW)

Decision date

2013-04-22

Before

Price J, Davies J, Barr AJ, Ms J

Catchwords

(1994) 181 CLR 487 MFA v The Queen [2002] HCA 53
(2002) 213 CLR 606 Morris v The Queen [1987] HCA 50
(1987) 163 CLR 454 R v Kanaan [2005] NSWCCA 385
(2005) 64 NSWLR 527 R v Small (1994) 33 NSWLR 575 Rasic v R [2009] NSWCCA 202 Raumakita v R [2011] NSWCCA 126

Source

Original judgment source is linked above.

Catchwords

(1994) 181 CLR 487 MFA v The Queen [2002] HCA 53(2002) 213 CLR 606 Morris v The Queen [1987] HCA 50(1987) 163 CLR 454 R v Kanaan [2005] NSWCCA 385(2005) 64 NSWLR 527 R v Small (1994) 33 NSWLR 575 Rasic v R [2009] NSWCCA 202 Raumakita v R [2011] NSWCCA 126(2011) 210 A Crim R 326 SKA v The Queen [2011] HCA 13(2011) 85 ALJR 571 The Queen v Hillier [2007] HCA 13(2007) 228 CLR 618 The Queen v Keenan [2009] HCA 1(2009) 236 CLR 397 The Queen v Nguyen [2010] HCA 38

Judgment (2 paragraphs)

[1]

Judgment 1PRICE J: Following a trial in the District Court before a judge and jury, the applicant was convicted of one count of robbery, whilst armed with a dangerous weapon contrary to s 97(2) Crimes Act 1900 and one count of threatening injury with intent to hinder the lawful apprehension of himself contrary to s 33B(b) Crimes Act. The applicant appeals against his conviction on the following grounds:

His Honour the trial judge erred in his directions to the jury on alibi evidence.
The verdicts of guilty are unreasonable and cannot be supported by the evidence. 2The central issue at trial was the identification of the person who robbed the Bradfield Newsagency on 26 January 2011 (Australia Day). The Crown case depended heavily for its acceptance on the evidence of CP, an 11 year-old boy. It was the applicant's case that he did not rob the newsagency but was in Sussex Inlet. He called three witnesses who testified that he was with them in Sussex Inlet on Australia Day 2011. It was put in the applicant's case that none of the witnesses to the robbery observed gloves or tattoos on the hands of the robber but that the applicant had tattoos across the backs of the hands. It was the applicant's case that CP was mistaken in the recognition of the applicant's voice and that CP was mistaken or made an assumption about the shoes CP said the offender was wearing. 3The trial commenced on 5 March 2012, the jury retired on 7 March 2012 and the verdicts were delivered on 8 March 2012. 4On the hearing of this appeal, Mr M Smith appeared for the applicant and Ms J A Girdham SC for the Crown. 5In light of the Grounds of Appeal, it is necessary to set out in some detail the evidence that was led at the trial. The Crown case 6There was no dispute that on 26 January 2011 (Australia Day) an offender, wearing a balaclava and holding a gun, entered the Bradfield newsagency and committed a robbery, threatening Mr Nguyen the proprietor and taking seventy dollars from the cash register. Mr Nguyen described the offender who was wearing a black balaclava on his face as being about 180 centimetres with a slim build. He was speaking normally and sounded Australian. Mr Nguyen said that he did not know if the person was wearing gloves. He thought that the offender had on a white jacket and dark blue trousers. As the offender ran out of the newsagency, he encountered Mr Hona saying to him words to the effect of "move or I'll shoot." Mr Hona, believing the gun was not real, replied "well shoot me then." In cross-examination, Mr Hona said that he couldn't remember whether the person was wearing gloves or not. He couldn't recall the shoes or their colour that the offender was wearing. The offender ran down an alley at the back of the shopping centre and continued on through several streets past Mr and Mrs Kirmaier who observed him running, with his balaclava on, carrying a gun and entering a parked vehicle which was occupied by two unidentified persons. 7Mr Kirmaier described the offender as being roughly 175 to 180 centimetres tall and a skinny sort of build. He initially came down Abercrombie Street where Mr Kiramaier saw a white VR or VS Holden Commodore station wagon with he thought two guys sitting in the driver and passenger seats. Mr Kirmaier had no memory of what the offender's shoes looked like. He didn't see any gloves and wouldn't be able to say if the offender had gloves on or not. 8Mrs Kirmaier gave evidence that she saw out of the corner of her eye someone run past. She recounted that he had a "t-shirt on and he had joggers" and a "dark sort of tracksuity parachute material sort of pants" on. She described the shoes as being probably "dirty white coloured joggers". 9CP who lived with his Nan, said that he was eleven years old in January 2011. He gave evidence that he was standing on the driveway of 20 Abercrombie Street when he saw the offender running down the street towards number 9. When the offender got there the offender yelled out, "Hurry up coppers are coming open the door." He recognised the voice as belonging to Shoey, David Shoesmith or David Shoey. Shoey was his nickname. He had known Shoey since he was little. He was friends with his uncle and his family. He had seen him a lot. He would normally see Shoey at the shops or at his mum's house. He said he saw him at his mum's house very often "like about four times or something more than that". The day he saw the man run down the street and recognised the voice as Shoey's was Australia Day. He had seen Shoey the weekend before at his mum's house. Shoey was there all weekend. Shoey spoke to him on that weekend and he heard him talking to other people as well. 10CP said that it was "[h]e's [sic] like expression sort of" and "like the words that he said, like the letters" that he recognised when he heard Shoey yelling. A particular sound that he thought sounded very much like Shoey was the word "car" which he'd heard him say before. 11CP couldn't see the face of the offender who was running because he had a balaclava on. He was the size of Detective Napier. The offender who he saw running was the same height and the same thinness as Shoey. The offender was wearing a white shirt, black pants and golden Asics because he saw them the weekend before at his mum's house. The shoes that the offender was wearing looked exactly the same as the shoes Shoey was wearing at his mum's place. They were white and gold. They were gold on most of the shoe and white near the toe and the rubber on the bottom. When asked whether they looked new, CP replied, "just normal". 12CP had seen Shoey around the Bradfield shops only a few times. He had seen him at the shops, at his mum's house or at Shoey's house only about once or twice. When he was asked how sure the voice he heard was Shoeys, he replied, "I exactly knew his voice when he was at my mum's, exactly, 100 per cent". The offender yelled out, "[h]urry up coppers are coming" and then the guy in the car opened the door for him and he dived in and they drove off fast. CP ran back to his friend Sean's mum and told her what had happened. He thought she rang the police and then he ran back home to his Nan's place. The police took a statement from him later the same day. 13In cross-examination CP agreed that he had seen Shoey about three or two times at the shops, once or twice at Shoey's house; and about four times at his mum's place. When he saw him at the shops, it was a quick hello, goodbye. He was at Shoey's house for just a few minutes, like half an hour. 14CP agreed that the offender was running away from him when he yelled. He knew the shoes were Asics because he "could see the 'A' because I've seen them shoes before". He agreed the closest the person got to him was from the corner of Barker Street on the left hand side from the back of the driveway. 15The grandmother of CP said in evidence that CP had lived with her since he was eighteen months old. She had known the applicant for about eight years as he was a good friend of her son Allan. She knew him by his nickname "Shoey". Allan had lived with her in the time that she had known the applicant and Allan had also lived at his sisters. Shoey had been to her house on many occasions and CP had been there. She couldn't count the number of times Shoey had been at her house when CP had been there. 16Gary Thomas Stanton gave evidence that he had known the applicant since primary school. He had a younger brother named Daniel who is a similar build to him. The police asked him what he could remember of Australia Day 2011 and around that time. Mr Stanton said that he didn't spend time in Sussex Inlet around January 2011. He had been there once but he hadn't been there for a couple of years. He did not know anyone named Scotty. The Crown was given leave to cross-examine Mr Stanton. He was shown a notebook statement and agreed that it recorded "I stayed for one night with a friend of mine called Scotty" but denied he said that in his statement or that he had a friend called Scotty. He remembered saying to police that he went to Sussex Inlet once only and that was to a tattoo shop. He never stayed down at Sussex Inlet. He did not know the name of the owner of that tattoo shop. He agreed that he knew someone called Scotty who had some connection with a tattoo shop in Sussex Inlet but he had never stayed at his place. He didn't go to Sussex Inlet with the applicant in January 2011. 17Detective Senior Constable McManus interviewed the applicant on 1 March 2011 by way of ERISP. The DVD and transcript of the ERISP became exhibits G and H. Detective McManus identified the shoes that the applicant was wearing when arrested. He said that the reference in the interview to the applicant wearing gold Asic's runners at the time of the arrest was wrong, and that when the applicant said in the interview that the runners were black and silver, that was correct. These shoes became exhibit J. The applicant had agreed to give a sample of his DNA which was taken. 18The applicant said in the ERISP interview that on Australia Day he was having a barbecue with his mates Scotty and Daniel. He didn't know their last names. Scotty lived at Sussex Inlet and he was thirty odd. Daniel lived at Campbelltown and was 20 something. Gazza, Daniel's brother arrived first. Scotty and his missus lived at the house and her name was Liz. They went down the night before. He couldn't remember who drove but he thought he went down with Daniel and Adam. Adam was more Daniel's mate. Adam owned a car and he was pretty sure that he drove. They stayed the night of the 25th. He stayed there for the whole weekend and then he went back down and stayed there for a couple of days again. On Australia Day they were just drinking and having a barbeque and then they went out on a boat. It was a boat big enough to fit 10 to 15 people and it was a boat for wake boarding. Nobody went wake boarding on that day but they went down the sand hills on a disc they pulled behind a boat. They went fishing but they didn't catch anything. He met a couple of people on the boat that day. Scott's kids were there. He did not leave Sussex Inlet at all from Tuesday to Friday. Scott gave him a lift up to Sydney on Friday. 19The applicant said that he owned a white jacket but it wasn't completely white, it was white, grey and black. He does not own any guns. He doesn't know anyone who owns a white Holden Commodore. He said that the police had taken his black and silver Asics runners. He said they didn't have gold on them but they had some yellow. He didn't know anything about the robbery. 20Detective Senior Constable Napier gave evidence that he took a statement from CP in the mid afternoon of 26 January 2011 shortly after the robbery. CP had nominated the applicant as being the person he recognised. The Forensic Section came to the scene of the robbery and looked for fingerprints and possible DNA evidence but they didn't find either. 21Detective Napier agreed that the applicant raised an alibi defence in the ERISP and nominated Garry Stanton and Daniel Stanton as alibi witnesses. Detective Napier sought to obtain a statement from Daniel Stanton who indicated that he was not prepared to give evidence on behalf of the prosecution. The applicant also nominated a person he referred to as Scotty. After speaking with Daniel and Garry Stanton, he established that a person called Scotty owned a tattoo parlour in Sussex Inlet. Detective Napier attempted to contact that person and left messages but he made no contact and there was no reply. 22Detective Napier received two alibi notices on the morning he gave evidence that referred to Adam John Holland, Elizabeth Mitchell and Nicole Kokaev. He spoke with Mr Holland who said he was not prepared to make a statement or give evidence on behalf of the prosecution. Ms Mitchell made a statement which he received a short time ago. He spoke to Ms Kokaev a short time before giving evidence and she indicated that she was not prepared to make a statement or give evidence on behalf of the prosecution. Detective Napier identified a handwritten statement from Gary Stanton in which Mr Stanton said, "I stayed for one night with a friend of mine called Scotty". The applicant's case 23The applicant gave evidence that what he said in his interview with police on 1 March 2011 was true and correct. He said he was about 170 centimetres tall and had for two years a number of tattoos on his arms and hands. He identified the Asics brand shoes (ex J) as being his and said that they were the only Asics shoes he has owned. 24He knew CP through CP's uncle Allan who was the applicant's age. He did not know CP too well. He didn't often have contact with CP but would sometimes have contact with him at CP's uncle's girlfriend's place or CP's mum's place. The last time he saw him was the weekend before Australia Day. When he would speak to Allan, CP was not present. When he visited Allan, CP was not present. 25The applicant said that he was down in Sussex Inlet on Australia Day 2011, having gone down the night before with his friends Adam and Daniel Stanton, they drank, had a barbeque, and went on a boat. Scotty, Adam, Liz and their kids were on the boat. He recalled that they went sand boarding that day. He thought he was in Sussex Inlet for a week but he didn't have an exact memory of that. He denied that he committed the robbery. 26In cross-examination, he said that he had seen CP around for a decade or so. He had spoken to CP just to say hello and CP is someone who was around and present when he was speaking with other members of CP's family. He went to Kelly's (Allan's sister, CP's mum) house the weekend before Australia Day 2011 but he didn't stay there. He agreed that CP was there that weekend. He just said hello to him but CP would have been in a position to hear his voice at different times on the weekend. 27Adam John Holland, a truck driver, said that he was in Sussex Inlet on 26 January 2011. He had driven down there a few days beforehand with the applicant and his cousin Scott Browley. He left to go to Sussex Inlet before his birthday which was on 24 January. He knew it was before his birthday because that's where he had his birthday and he usually has his birthday down at Sussex Inlet every year. He stayed at Scott Browley's house where the applicant, Nicole Kokaev (his ex-girlfriend) and his two step-daughters, Chloe and Tamika Kokaev also stayed. 28He recalled that on Australia Day, the applicant, himself, Nicole Kokaev, his two-step daughters, Frank (who owned the boat), Scott Browley, Elizabeth (Scott's ex girlfriend) and Frank's two children were out on the boat. They were inside the inlet and he recalled running up and down the sand dunes. He, the applicant, Scott and Jason Lord ran up and down the sand dunes. He remembered the applicant going for a walk with his two step daughters. The girls were picking up things out of the water and the applicant would run away. They would yell out "shark" and would run out of the water. The day would have ended towards late in the afternoon. Mr Holland said that he would have returned to Sydney maybe a day or two later and that the applicant did not come back with him. 29In cross-examination, Mr Holland said that he hadn't known the applicant long before January 2011. The applicant was good friends with Dan and that was how he met him. He probably invited the applicant down there because there were some spare seats in the car. He agreed that it wasn't the case that he took the applicant down to Sussex Inlet on the night before Australia Day because they were already down there. They celebrated his birthday down there. The first time he was asked to cast his mind back to January 2011 was in the last few days. 30Nicole Kokaev, Mr Holland's ex partner, gave evidence that on Australia Day 2011 she was in Sussex Inlet. She went there about 22 or 23 January because her ex-partner Adam Holland had his birthday on 24 January and they go down there every Australia Day long weekend. The group of people she was there with included Liz and Scotty whose house they were staying at, their two children, the applicant, Adam Holland, Jason Lord, Troy Holm, her stepson Kyle Hayward, her two children, and Frank who had the boat. The applicant was at Sussex Inlet when she arrived. She wasn't aware when he left, but she left first. 31On Australia Day they all went out on the boat which was a big boat. They went out to a sand dune. The boys got on a donut that goes on the back of the boat. Her kids were playing with the applicant in the water with the fish. They went out on the boat in the early morning taking food with them. They finished up at dusk as the sun set. They came back to Scott and Liz's house and had a barbeque. She can remember every Australia Day but she remembered that one because it was the last one with Adam and the last time she went to Sussex Inlet for the Australia Day long weekend. 32In cross-examination, Ms Kokaev said that the first time she was asked to recall what she did on Australia Day 2011 was the Monday before when Troy phoned her and asked her did she remember anything from that particular Australia Day. She spoke to Adam about it on maybe the day that Troy spoke to her and he said that he got in contact with the solicitor. She went to the hospital the evening before she gave her evidence and she briefly spoke with Adam about the matter. At the time she spoke with Adam the day before she didn't know that he had given evidence in the trial. She and Adam are not together and she denied that they are still on good terms. She went to the hospital because he was still on the health fund and he had a good relationship with her children. 33Ms Kokaev agreed that she would class the applicant as a friend. She agreed that she would want to make sure that he was not wrongly convicted and she was prepared to tell the truth in order to make that happen. She agreed that she refused to make a statement about this matter to Detective Senior Constable Napier. She told him what she knew but she didn't want to write a statement. 34Elizabeth Mitchell, a real estate agent, said in evidence that she met the applicant through a mutual friend when he was doing some gardening at her friend's house in either December 2010 or the beginning of January 2011. He later came down to her place at Sussex Inlet for Adam Holland's birthday which was approximately 24 or 25 January 2011. She could not give an exact day but the applicant left Sussex Inlet close to the end of February 2011. 35On Australia Day 2011, they left her home about 10 o'clock in the morning to go boating for the day. There were quite a few people on the boating trip including Frank, the boat owner, Adam Holland and his girlfriend Nic, Nic's two kids Chloe and Tamika, Ms Mitchell's two kids, the applicant, Jason Lord and her ex-partner Scott Browley, her daughter Kiara, and Kiara's partner Ashley. They finished at approximately 4 or 5pm. During the day, the applicant was never out of her company. They couldn't keep their eyes off the applicant as "he was the most funniest bloke." He was afraid of the water and they all kept yelling out "shark" and he would run out of the water. During the day they sunbaked, drank, and swam. 36She remembered this particular Australia Day because a week or a couple of weeks after, the applicant went with her partner to get a dog and the dog was now a year old. Her daughter's birthday was coming up on 24 March 2011 and the applicant was looking forward to her daughter's birthday and he missed it. 37In cross-examination Ms Mitchell said that she was first asked to recall what happened on Australia Day 2011 on the Monday afternoon prior to the Wednesday of her giving evidence. It wasn't common that people came to her place at Sussex Inlet to celebrate Adam Holland's birthday but it happened two or three times. She said that the applicant lived at her house for about five or six weeks until February. She was sure that the applicant was there for Adam Holland's birthday which she was pretty sure was on 24 January. They all came down in a group for his birthday. They came down the day before or two days before the birthday. She said it was not possible that the applicant came down the night of 25 January. She said they came down during the day. There would have been five extra adults and probably an extra four children staying at her house during that time. 38Ms Mitchell gave evidence that she didn't know the applicant at all when he turned up at her place. She had only seen him once at a friend's house. The applicant was always at her home when she arrived home from work in February. He never left the house unless he went fishing. He used to go fishing with her partner, Scott Browley. She was 100 per cent certain that from when he arrived before Australia Day until about the end of February he spent every night at her house. She said she was "210 per cent" certain and she "knew for a fact" that the applicant was with them for Australia Day. Ground 1: His Honour the Trial Judge erred in his direction to the Jury on alibi evidence 39The applicant gave evidence that he was at Sussex Inlet and not in Leumeah when the robbery was committed. Mr Holland, Ms Kokaev and Ms Mitchell testified that he was in Sussex Inlet on that day. Where an alibi is raised, an accused does not bear the onus of proving the alibi. The onus rests on the Crown to remove any reasonable doubt which may have been raised by the alibi claim. As Hunt CJ at CL observed in R v Small (1994) 33 NSWLR 575 at 596: "In other words, the Crown had to eliminate any reasonable possibility that the alibi was true." 40Mr Smith contended that the judge's directions to the jury on alibi were inadequate. He complained that the jury were never told what they should do in the event that they neither accepted, nor rejected some or all of the alibi evidence and they should have been informed that the Crown could not discharge its onus if there was a reasonable possibility that one of the alibi witnesses was accurate in their evidence. 41Mr Smith said that the following direction ought to have been given (T 22/4/13 T1 L40-46): "The Crown must establish beyond reasonable doubt the accused was at Leumeah at the relevant time. The Crown cannot do so if there is any reasonable possibility that the accused was at Sussex Inlet at the time as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was at Sussex Inlet at the relevant time". 42This direction was modelled on what this Court considered to be an appropriate alibi direction in R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527 at [135]. 43The judge did not give a direction in the terms that the applicant suggested. However, his Honour made it very clear that the Crown bore the burden of establishing beyond reasonable doubt that the accused had committed the robbery and by raising an alibi, the burden of proof did not shift, but the Crown had to disprove the alibi beyond reasonable doubt. His Honour said (SU5): "...A person involved in alleged criminal activity where it is asserted that he or she committed an offence is entitled at all times to remain mute and say nothing and no inference against that person can be drawn from the fact that they do remain mute, because at all times it is the Crown that bears the burden of proof, and even in this case, where there has been raised alibi evidence and Mr Shoesmith has given evidence himself, he had to prove nothing. The Crown has the burden of proving that the offence occurred in the way in which it asserts and the Crown has to disprove to your satisfaction, on the requisite standard, any alibi evidence." (italics added) 44After directing the jury about voice recognition, the judge returned to the evidence of alibi (SU8). His Honour instructed the jury that if they accepted the alibi evidence, then they were obliged to acquit. Furthermore, they were not required to believe that the applicant or his witnesses were telling the truth before he was entitled to acquittal. The members of the jury were told that even if they reached the conclusion that the alibi witnesses were unreliable or lacked credibility that of itself did not necessarily mean that the Crown could succeed in its case. It was still essential that the Crown proved beyond reasonable doubt that it was the applicant who was at Leumeah. 45 The judge then summarised the substance of the applicant's case. His Honour turned to the issue of identification and the need to exercise special caution. Shortly before sending the jury out, his Honour said (SU11): "I should mention one more thing that the fact that the accused has given evidence does not alter the burden of proof. I've said that in a number of ways already but it is important that it be stressed, because the accused does not have to prove that his or her version is true. The Crown has to satisfy you that the account given by the accused and the defence witnesses should not be accepted as a version of events that could reasonably be true". (italics added) 46By this direction, the judge made it apparent to the jury that the Crown was obliged to satisfy them that there was no reasonable possibility that the applicant was at Sussex Inlet at the time of the robbery. 47No objection was taken at trial by counsel appearing for the applicant to the judge's directions on alibi. No further directions were required. 48Ground 1 is not established. Ground 2: The verdicts of guilty are unreasonable and cannot be supported by evidence. 49Mr Smith submitted that in this case the identification evidence was fraught with even more danger than that which ordinarily attends such evidence as CP was 11 years old at the time and just 12 years old at the time of giving evidence. He argued that although the witness' age was not in itself a ground to reject the evidence, CP lacked sufficient life experience to make a value judgment about the possibility that his identification was wrong. It was contended that CP had simply not been present in enough situations through the course of his life to realise that mistakes can be made as to identification even with people very well known. 50Balanced against CP's evidence, Mr Smith said, was the evidence of three witnesses who were resolute in their evidence that the applicant had been at Sussex Inlet on Australia Day 2011. Although there had been some inconsistency in the testimony as to his presence at Sussex Inlet on Australia Day, this was not a recent invention as he had raised his alibi in his ERISP, many months prior to the trial and only five weeks after the offence. 51No complaint was made by Mr Smith about the trial judge's directions on CP's evidence of voice recognition. In short, the members of the jury were instructed that they were required to approach the task of assessing the reliability of CP's evidence with special caution, they needed to consider carefully the evidence as to CP's familiarity with the applicant and to the circumstances in which CP said that he heard the applicant. They were told that unless they were satisfied beyond reasonable doubt that CP was both an honest and accurate witness, they could not find the applicant to be guilty. 52Mr Smith, however, seemed to suggest in his written submissions that CP should have been directed that mistakes can be made as to identification (AWS [102]-[103]). I would reject that suggestion. It was not his Honour's task to tell CP that such mistakes can be made. In any event, the applicant's counsel at trial put it to CP that he didn't hear Shoey's voice on the day of the robbery and that he was mistaken, which CP disagreed with. 53The Crown submitted that this Court would not conclude that the factual circumstances of the case required the applicant's acquittal. The Crown argued that it cannot be demonstrated that CP's evidence as to the identification of CP's voice, or distinctive shoes lacked the necessary probative value to establish guilt beyond reasonable doubt. 54A convenient summary of this Court's task where the ground of appeal raises a question of unreasonableness of a verdict is provided by Johnson J (with whom Macfarlan JA and Garling J agreed) in Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326 at [31]-[34]: "In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22]. In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R [[2009] NSWCCA 202] at [29]. In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen , Mason CJ, Deane, Dawson Toohey JJ said at 494-495: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal 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 court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.' The M v The Queen formulation of the task of this Court has been emphasised by the High Court in later cases: The Queen v Nguyen [2010] HCA 38; 85 ALJR 8 at 14 [33]; SKA v The Queen at 575 [13]." 55It is uncontroversial that CP's evidence was crucial to the question of the applicant's guilt. There was no other evidence that the Crown relied on to establish that he was the person who robbed the Bradfield Newsagency. CP was a 100 per cent certain that the person who yelled out "[h]urry up coppers are coming open the door" was the applicant. He told his friend's mother what had happened and gave a statement that afternoon to Detective Senior Constable Napier nominating the applicant as the person he recognised. CP marked on the plan (ex B) where the man was when he heard him yelling, where the getaway car was, and where he was standing when he first saw the person. In cross-examination, CP agreed that there was the distance of one house in between where he was standing and where the person was yelling. Other than this evidence and the markings on the plan, no evidence was given as to the distance between CP and the person when the words were yelled out but the Crown Prosecutor put to the members of the jury that it might have been "some tens of metres perhaps" and suggested that this was a leafy suburban area in the middle of the day where voices carry clearly. It is evident when the words were spoken, that the person was some distance away from CP. 56CP was asked by the Crown Prosecutor what was it about the voice that he recognised. On this topic, the following evidence was given (T 05/03/12 T67 L21-47): "Q Now you recognised his voice when you heard him yelling out? A Yes Q What is it about his voice that you recognised? A He's [sic] like expression sort of. Q Can you explain to us what you mean by that? A Like, like the words that he said, like the letters. Q The letter sounds of words is that what you're saying? A Yeah. Q Any particular sounds that you thought sounded very much like him? A Yes Q What particular sounds? A Like "car". Q That's something you'd heard him say before is that right? A Yes Q And the way he said "car" it sounded like you'd heard before is that right? A Yes." 57CP identified the word "car" as being a word that he had heard Shoey say before. The difficulty with this evidence was that CP's testimony of what he heard the person yell out did not include the word "car". In his closing address to the jury the Crown Prosecutor recognised the problem but suggested that the word "car" must have been used for CP to make that observation. This submission should not have been put to the jury by the Crown Prosecutor as CP had been asked by the applicant's counsel (T 05/03/12 T77 L15-21): "Q And the words you say you heard this person yell out, "Hurry up the coppers are coming, open the door", is that right? A Yes. Q Nothing else apart from those words? A No." 58The identification by CP of a word that was not used by the person as a basis for his recognition of the applicant's voice to my mind strikes at the reliability of his evidence. No other peculiar characteristics or matters of distinction were attributed by CP to the applicant's voice. 59CP's evidence that he knew Shoey's voice was supported by his grandmother. However, the opportunity that he had to hear the person's voice on the day of the robbery was limited. The person had run past him and there was a distance of one house between them. The Crown Prosecutor estimated the distance to be "some tens of metres". What was said by the person was confined to nine words. The Crown Prosecutor told the jury that there wasn't anything particularly distinctive about the applicant's voice. 60The Crown Prosecutor submitted to the jury that CP's identification of the applicant's voice was supported by his evidence that the height and build of the person were exactly the same as Shoeys and he recognised the shoes. CP gave evidence that the person was wearing golden Asics shoes that looked exactly the same as the shoes he saw Shoey wearing at his mum's place the weekend before. He was asked by the Crown Prosecutor (T 05/03/12 T69 L29-40): "Q Whereabouts is the gold part of them? A Just on some like, just like on most of the shoe. Q And where was the white part of them? A Just like near the toe and - and the rubber on the bottom Q Were they new looking shoes or old looking shoes? A They looked new a little Q A little new? A Yeah just like - yeah just normal." 61In cross-examination, CP agreed that he said that the shoes were new or normal. He said that he could see the "A" on the shoes because he had seen them before. CP went on to say that the closest the person got to him was when he was running around the corner of Barker Street. 62CP's evidence of the shoes that the person was wearing does not fit easily with other evidence in the trial. Mrs Kirmaier estimated that when the person ran past the vehicle in which she was seated, he was about half a metre away. She described the shoes that the person was wearing as probably being dirty white old joggers. In cross-examination, Mrs Kirmaier agreed that she told police that the person had runners on that were white in colour but were old, dirty looking. In answer to a question from the judge, Mrs Kirmaier said that the person would have been "maybe 5 metres away from the car" when she could see the person's shoes. She saw him running away from the back. 63Mr Hona said that he did not recall the shoes that the person was wearing, but when asked if the shoes were bright in colour, did he think that was something that would have stood out in his mind, he replied "[p]ossibly, yes". 64At the time the applicant was arrested, he was wearing black and silver Asics runners. The applicant testified that they were the only Asics shoes that he had and denied that he had worn gold Asics shoes. 65There was also before the jury the evidence of Mr Holland, Ms Kokaev and Ms Mitchell that the applicant was in Sussex Inlet at the time of the robbery. Although there were inconsistencies in the alibi evidence as to when the applicant arrived and departed from Sussex Inlet, these witnesses were adamant that the applicant was on a boat with them on Australia Day 2011. 66The identification of a voice is notoriously liable to be mistaken. That is why juries are instructed to exercise special caution before accepting voice identification evidence. A careful consideration of CP's evidence leads me to conclude that there is a reasonable possibility that CP was mistaken in identifying the voice of the applicant. In my view, the jury, acting reasonably must have entertained a reasonable doubt as to the guilt of the accused. I would uphold Ground 2 of the appeal. 67Accordingly, I propose the following orders: (1)Appeal upheld and the conviction is quashed. (2)Order the entry of a verdict of acquittal. 68DAVIES J: I agree with Price J. 69BARR AJ: I agree with Price J.

R v Shoesmith

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Judgment (2 paragraphs)

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Cases Cited (19)