Regina v Dennis John Adams

Court of Criminal Appeal (NSW)|2004-08-06|Before: Dunford J, Adams J, Howie J

CITATION : Regina v Dennis John Adams [2004] NSWCCA 279 HEARING DATE(S) : 6 August 2004 JUDGMENT DATE : 18 August 2004

JUDGMENT OF : Dunford J at 1; Adams J at 41; Howie J at 42 DECISION : Appeal against conviction dismissed - leave to appeal against sentence granted but appeal dismissed

CATCHWORDS : CRIMINAL LAW - Evidence - relevance - probative value - unfair prejudice - identification - similarity - sufficiency of directions - CRIMINAL LAW - Sentencing - armed robbery - whether sentence excessive - special circumstances - variation of statutory ratio LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1995 Evidence Act 1995 Domican v The Queen (1992) 173 CLR 555 Festa v The Queen [2001] HCA 72, 208 CLR 593 Pitkin v The Queen (1995) 69 ALJR 612 CASES CITED : R v Clarke (1993) 71 A Crim R 58 R v Coe [2002] NSWCCA 385 R v Fidow [2004] NSWCCA 172 R v Simpson (2001) 53 NSWLR 704 PARTIES : Regina v Dennis John Adams FILE NUMBER(S) : CCA 60107/04 COUNSEL : D M L Woodburne - Crown S M Kluss - Appellant SOLICITORS : S Kavanagh - Crown Ross Hill & Associates - Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0665; 02/11/0664 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER :

13 - IN THE COURT OF CRIMINAL APPEAL 60107/04

DUNFORD J ADAMS J HOWIE J

WEDNESDAY, 18 AUGUST 2004 REGINA v DENNIS JOHN ADAMS Judgment 1 DUNFORD J: This is an appeal against conviction and an application for leave to appeal against sentence by Dennis John Adams who stood trial in the District Court in April 2003 before her Honour Judge Hock and a jury. The charges related to an armed robbery committed on 16 April 2001 at the Chipping Norton Newsagency. On 10 April 2004, the appellant was found guilty of four charges, namely, robbery being armed with a dangerous weapon, fire firearm with disregard for safety, and two counts of maliciously discharge firearm with intent to resist or prevent lawful apprehension. The appellant was subsequently sentenced to an effective overall sentence of imprisonment for 12 years with an effective non-parole period of 8 years. 2 On the morning of 16 April 2001, a man wearing a balaclava and armed with a rifle entered a newsagency at Chipping Norton and robbed Mr Kassir of about $1500 in cash. A rifle was discharged during the robbery. A customer saw the robber get into the front passenger seat of a stolen blue Ford Laser, which was driven off by a co-offender. The stolen car was driven down a one-way street in which police in a highway patrol car happened to be patrolling. Police pursued the stolen car. During the pursuit, shots were fired by the passenger in the direction of police. 3 It was the Crown case that a man named Hooper was the driver of the car and that it was the appellant who entered the newsagency and who got into the passenger seat of the stolen blue Ford Laser. The appellant did not give evidence, however, in an interview with police, he denied his involvement in the offence. 4 The central issue in the trial was identification and, in order to prove its case, the Crown relied essentially upon two pieces of evidence, the admissibility of which is not in contention on this appeal. The first piece of evidence was of an admission made by the appellant to a friend of his named Michael Shane Johnson who came forward and made a statement to police in May 2001. The second piece of evidence was evidence of an identification given by Senior Constable Wildbur, one of the police involved in the pursuit of the stolen blue Ford in which the offenders escaped from the scene of the robbery. 5 Senior Constable Wildbur gave evidence of the opportunities he had and the circumstances in which he observed the driver and the passenger of the car. He described the driver as male 25 to 30 years old, thin build, fair to olive complexion with shoulder length hair, and he described the passenger as about 25 years old with dark short crew cut like hair, thin build and dark to olive complexion. 6 On 17 October 2001, Constable Wildbur looked at two photo boards, each containing 15 photos. He was asked if he could identify any person, he said, "number 12" (the photo of the appellant), "I believe this was the gentleman who was driving the offending vehicle at the time of the offence". He was then shown the 2nd photo board and he said, " I was incorrect about it, that was the passenger that was shooting (on the first photo board) this is the driver here. Got it the wrong way". The photo indicated on the second photo board was that of Hooper. Looking at the first photo board Constable Wildbur said, "This bloke is very similar to…both person are very similar. This person was the actual passenger of the vehicle, on recall at the time he was the one that leant out of the window", "he was the passenger number 12". On photo board 2, he identified number 9 and said, " I had a clear view of him when our cars were practically next to each other within two metres he was the driver". Constable Wildbur confirmed that his identification of both was "100 percent definitely" and that he had the best view of number 9 (the driver). 7 The identification procedure was videoed and the video was in evidence giving the jury the opportunity of observing what Constable Wildbur did and said. 8 In cross-examination, Constable Wildbur said that by "dark to olive complexion" he meant "tan, very tanned skin" (p 14), he did not mean to convey that the person was not fair skinned or white skinned. In relation to his observations of the passenger he said, "…It's a memory that will always stay with me". 9 In respect of the initial selection of the photo of the appellant as the driver, Constable Wildbur explained that when he first looked at photo board 1 "the face (of the appellant) just shone out to me". He agreed that at the time he picked him, he believed he was the driver but that he was mistaken about that. As noted above, during the identification procedure Constable Wildbur said after he said that he'd got it around the wrong way, that "This bloke is very similar to…both persons are very similar". In cross-examination he was asked, "What is it photo 9 and 12 that you say make them look very similar?" and he said that "they have very similar facial features, I believe the noses are very similar, they stick out a little bit, the actual facial shape is very similar, I just believe that both persons that are in these photos are very similar in looks." He also said "I thought they were brothers on the day". Constable Wildbur maintained that he had a good view of both but the best view was of the driver. He denied he was mistaken when he said that the person in photo 12 (the appellant) was the passenger. 10 On 17 October 2001, Constable Waibel (the other person in the police vehicle) participated in a photo board line up. He identified a photograph as being that of the passenger in the Laser, but the photograph was of neither the appellant nor Hooper. 11 There was also the evidence of a Mr Frances, who said that on the morning of Easter Monday 2001, he was heading off to work intending to catch the 6:45am train from Warwick Farm. He stopped to buy a newspaper from a newsagency in Epson Road at Chipping Norton (a newsagency nearby to the one that was robbed later that morning). He parked outside the newsagency. He sat in his car for a couple of minutes before going in because he saw two men seated in a small blue sedan 10-15 years old. The car was parked in an unusual position and the two men were just sitting there. Mr Frances glanced at the men, he could see their faces but did not make eye contact. Mr Frances went into the newsagency and bought a newspaper. As he left the newsagency, the driver of the blue car walked past him. Mr Frances looked at him for 3 or 4 seconds and saw that he was about 5'6" - 5'7", no facial hair, olive complexion like well tanned, wearing a parachute material, grey, grey/blue tracksuit top and track pants. Mr Frances saw that the other man was still seated in the passenger seat of the blue car. He looked at that man for 3 to 4 seconds and saw that he "looked similar to the other man I just walked past". Mr Frances sat in his car for another couple of minutes before leaving because he did not really like the look of the situation. 12 Mr Frances took part in a photographic identification procedure. On 17 October 2001, he was shown two boards of colour photos. The procedure was videoed and that video was in evidence. The transcript of the video (Ex V) records that he said, "it could be that one there", indicating photo number 12 (the appellant). He said, "from memory he's very similar to the guy I saw", "That's the man, the driver that I passed as I was coming out of the newsagency he was going in there". He said he did not actually have eye contact with the man as "he had his head slightly down". He said the man was "about 5'6" or 5'7". Mr Frances signed and dated beneath the photograph. Mr Frances was shown a second photo board. He said, "Number six, he looks very similar to the guy I walked past coming out of the newsagent". Number 6 was a photograph of the man Hooper. Mr Frances was asked, "so both of those men are very similar in appearance is that what you're saying", he answered "Yeah". Mr Frances signed and dated below photograph number 6. Mr Frances was asked out of the two whether there was one that he "would think more than the other". The police officer conducting the procedure reiterated that it didn't necessarily have to one or the other or indeed any of the thirty men. Mr Frances said, "Definitely number 12 on the first one", but then said, "I think it may have been more the fellow" indicating photo number 6, "probably the ears and the hair really". He agreed that the hair and the ears were quite similar. In relation to the colouring (of the hair) he said, "that colouring (photo 6) looks more like it, to me that looks like black hair there". In respect of the skin colouring Mr Frances said, "from memory the guy had a good tan" (pointing to photo 6). 13 In his second statement of 10 October 2001, he said "In relation to the first photo board, I told police that number 12 looked similar to the man I saw leave the Epsom Road Newsagency at Chipping Norton on the morning of 16 April this year and get into the driver's side of the small blue car. I was then shown the second photo board and I identified photo number 6 as the man who actually left the newsagency and got into the car. Both of these men are similar in appearance with similar cut hair and their ears sticks out slightly". 14 On 31 March 2003, after an indictment containing 12 charges was presented but before the jury was empanelled, an application was made by defence counsel that the evidence of Mr Frances be excluded. The basis of the objection was based on s 137 of the Evidence Act 1995 and that the evidence lacked "any probative value".

15 On 3 April, her Honour indicated she would admit Mr Frances' evidence and give her reasons later, which she did after the summing-up whilst the jury was deliberating. 16 Grounds 1 and 2 may conveniently be considered together. They were as follows:

The trial judge erred in admitting the evidence of "similarity" of the witness Frances
The trial judge erred in her directions to the jury regarding the evidence of Mr Frances and "similarity". 17 His evidence on the voir dire related entirely to the driver of the vehicle who had got out of the car and had passed him as he left the newsagency. He did not purport to give any evidence concerning the passenger. He said that the men in photo 12 on the first board and photo 6 on the second board were similar in appearance, but he did not say that the men in the car were similar in appearance. In her judgment in the voir dire, her Honour said: "In my view, the evidence that Mr Frances can give has some probative value, having regard to the whole of the evidence in the case. The fact in issue in the trial is the identity of the man who was the passenger in the car. Constable Wildbur said that both the passenger and the driver looked similar. Mr Frances' evidence provides some support. The probative value of that evidence although slight, is not outweighed of the dangers of unfair prejudice to the accused. In the Summing-up the jury will be directed as to the limited way in which Mr Frances' evidence can be used, and that will cure any danger that they might misuse his evidence." 18 Although evidence which is not a positive identification, such as evidence that someone looked "similar to" or "like" the offender is not, standing by itself, sufficient to satisfy a jury of the identity of the offender beyond reasonable doubt: Pitkin v The Queen (1995) 69 ALJR 612, that does not mean that evidence of the general appearance or characteristics of an accused as similar to that of the person who committed the crime, sometimes referred to as "circumstantial identification evidence", is not inadmissible, being proof of a circumstance usually, but not always, weak which with other evidence may point to the accused as the person who committed the crime: Festa v The Queen [2001] HCA 72, 208 CLR 593 at [56].

19 In my view, the evidence had some, although limited, probative value and, subject to the appropriate directions being given, such probative value was not outweighed by the danger of unfair prejudice to the appellant. I see no error in her Honour's ruling. As was pointed out by McHugh J in Festa at [51]: "But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task". 20 When he actually gave evidence in the trial, Mr Frances' evidence went a little further, in so far as he said that after he got back into his own car, and while the driver was still in the newsagency, he saw the other man still seated on the passenger side of the car, that "he looked similar to the other man I just walked past", and that he had a chance to look at that person for 3 or 4 seconds. In cross-examination, he agreed that at all times, he was considering the man that had walked past him and come from the driver's side of the vehicle and he was not trying to identify the passenger in any way, but only the driver. 21 In other words, by the time his evidence in the trial concluded, he was asserting not only that the persons shown in photographs 12 and 6 were similar but that the driver and the passenger in the car were similar in appearance although he was really directing his attention only to the driver. In that context, her Honour summed up as follows: "You should be quite clear that Mr Frances did not identify the accused as the passenger in the blue car that he saw outside what I would call his newsagency. In the video, Mr Frances picked out two people who looked like, looked similar to the driver whom he saw going into the newsagency as he, Mr Frances, was coming out. Ultimately, and you will have the video, he settled on number 6 as being "most like" the person he saw. You should be quite clear about this, members of the jury, you could not use the fact that Mr Frances picked the photo of the accused as proof that it was the accused who was the passenger because at no stage did Mr Frances identify the passenger. He did say that his observation of the passenger when he walked back to the car was 3 to 4 seconds and that he looked similar to the other man who he had walked past as he was coming out of the newsagency… What you could use Mr Frances' evidence for is that the person he saw walking into the newsagency about an hour earlier looked like number 6 and like number 12; in other words as some support for Constable Wildbur's evidence that the two people involved looked "similar." (my underlining) 22 In other words, her Honour emphasised the fact that there was no identification of the accused as the passenger in the blue car by Mr Frances, and the fact that he had initially picked out photo number 12 as being that of the driver could not be used by them as any kind of identification of the appellant as the passenger; although in the light of Mr Frances' evidence that not only the photos number 12 and 6 looked similar, but the passenger in the car looked similar to the driver, that evidence could be used to support Constable Wildbur's evidence to a similar effect. 23 I am satisfied that her Honour's directions in this regard were explicit and accurate, and removed any risk that the jury might misuse Mr Frances' evidence in a manner unfairly prejudicial to the appellant.

24 Ground 3 was that her Honour erred in her directions to the jury regarding the evidence of photographic identification. 25 Her Honour gave detailed general directions concerning the dangers of identification evidence and the need for caution in regard to such evidence, and then went on to refer to matters particular to the trial. She commenced by noting that the Crown relied on the identification evidence of Constable Wildbur and pointed out that Constable Wildbur had never seen the person who was the passenger in the car before 16 April so that the person he saw at the time was a stranger to him, his opportunities to observe the person on the day was limited and she describe the circumstances of the observations, the difference between the descriptions given at the time or close to the offence and the appearance of the appellant , and that there was no evidence of his appearance in April 2001. The photograph before the jury was taken in August of that year and the video recorded interview with him which was before the jury took place in October. She also pointed out that the identification was from photographs and the usual difficulties and deficiencies that arise from such form of identification and that the identification was made six months after the incident and in circumstances where the identifier believe the police had a suspect and the suspect could be contained from the photo boards. 26 Notwithstanding that no request was made for further directions, it was submitted that in order to satisfy the requirements of ss 116 and 165 of the Evidence Act and the requirements set out in Domican v The Queen (1992) 173 CLR 555 at 561-562, further directions were required, in particular that it was necessary to point out to the jury that Constable Wildbur did not initially identify the appellant as the passenger but first described him as the driver, a matter which he quickly corrected when he saw the photo of Hooper. 27 After giving the directions to which I have referred, her Honour then summarised the submissions of the Crown Prosecutor in respect of Constable Wildbur's evidence and his submission that jury would accept it. She then referred to the arguments of Defence Counsel as follows: "Mr Paish on the other hand suggested to you that you would not find Constable Wildbur's identification of the accused reliable. He reminded you that Constable Wildbur was the driver of the police vehicle. He had less opportunity, he suggested, for observation than Constable Waibel. He suggested Constable Wildbur jumped to conclusions, that he looked at the photo board for approximately six seconds only and reminded you that he first identified the accused as the driver. He said you would not accept his explanation that the driver and the passenger looked similar. And said that he only had seconds to observe the passenger. He reminded you that, as I said earlier, as I understand it, he was not suggesting that Constable Wildbur was not an honest witness but just mistaken in his identification of the accused as the offender that day. He reminded you that the identification was made some six months after the incident and he pointed to the fact that Constable Waibel selected someone other than the accused as the offender, number 13 in exhibit M. He reminded you also that the offender was aiming a rifle at one stage and therefore part of his face was obscured. And he also reminded you that Mr Kassir described the offender as up to his eye level, he was 176 centimetres, the evidence of Chief Inspector Bingham was that the accused was 180 centimetres. All of these matters, members of the jury, are matters which you are bound to consider when deciding whether you will accept the evidence in this case as reliable." 28 It is true that directions as to identification evidence, particularly those matters of fact relevant to the reliability of the identification, must be put to the jury not merely as the arguments of counsel but with the authority of the judge, but to tell the jury that they are "bound to consider" those matters stamps the judge's authority on them: R v Coe [2002] NSWCCA 385 at [73]. 29 In any event, the fact that Constable Wildbur had initially referred to the appellant as the driver rather than as the passenger was not a matter that was likely to be overlooked by the jury. There is no requirement for the trial judge to lend his or her judicial authority to every argument reasonably open to defence counsel on the evidence: R v Clarke (1993) 71 A Crim R 58 at 72 citing Domican at 569. Her Honour also reminded the jury that there was no identification of the offender by Mr Kassir and that Constable Waibel (on his first day of service) erroneously described the passenger to be dark to olive skin, black crew cut hair, clean shaven, 25-30 years old of thin built and that he selected the photograph of a person who was not the accused on Exhibit M. 30 Finally, no objection was taken at the trial or request for re-direction so Rule 4 applies. This is not a case where it can be said there was a miscarriage of justice. Detailed directions and warnings were given concerning the identification evidence and any omissions were minor and were not seen by defence counsel at the trial to be significant. In addition, there was other evidence pointing to the guilt appellant, namely that of Michael Johnson concerning the appellant's statements to him and that of Sheree Atkinson concerning the appellant's association with the co-offender, Hooper. Ground 3 is not established. 31 In relation to the application for leave to appeal against sentence, two grounds of appeal were relied on namely: (a) The sentence was in all the circumstances manifestly excessive,

(b) The sentence insufficiently reflected her Honour's finding as to "special circumstances" 32 The sentences imposed by her Honour were as follows:

Counts 6 and 9 - maliciously discharge firearm with intent to avoid apprehension: concurrent sentences of imprisonment for fixed terms of 6 years to commence 22 October 2001 (the date of his arrest).

Count 3 - fire firearm with disregard for safety: imprisonment for fixed term of 3 years to commence 22 October 2003.

Count 2 - armed robbery: imprisonment for 10 years to commence 22 October 2003 with a non-parole period of 6 years to expire 21 October 2009.

The overall effect of the sentences was imprisonment for 12 years with an effective non-parole period of 8 years. 33 In sentencing the applicant, her Honour noted the utmost gravity of each of the offences, that the robbery was clearly premeditated and that the weapon was actually discharged towards the victim, that persons conducting their lawful businesses are entitled to do so without being confronted by armed offenders intent on depriving them of their takings and subjecting them to potentially life threatening events, that he twice discharged the weapon in the direction of the police vehicle, that it is incumbent on judges is to show appropriate measures of support for police officers undertaking difficult, dangerous and often thankless tasks, and that specific and general deterrence were important considerations in respect of all the offences. 34 Her Honour then turned to the applicant's subjective features, noted that he was 31 years of age at the time of the offences and 33 at the time of sentence, that he had spent considerable time in his teenage years in boy's homes and that his father left home when he was about 12 but his mother remained supportive, that he left home before he turned 15 and has been convicted of many offences in the Children's Court and was drinking alcohol to excess. She also noted a number of convictions as an adult dealt with in the Local Court including a number of short sentences of imprisonment. She noted that he had used hard drugs but did not consider he was addicted. 35 Her Honour considered that it was difficult to assess his prospects for rehabilitation but considered he would benefit from a lengthy period of supervision upon his release. She considered the questions of parity in relation to the co-offender, Steven Hooper and found special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act 1995 on account of the accumulation of sentences and the need for an extended period on parole to foster the applicant's prospects for rehabilitation. 36 In my opinion the sentence was not manifestly, or otherwise, excessive. The appellant was convicted of four extremely serious offences and her Honour correctly identified the relevant considerations to be taken into account in fixing the sentences. Having regard to the serious nature of the offences, particularly the use and discharge of firearm, I consider that the sentences were well within the exercise of a proper sentencing discretion. 37 In relation to the finding of "special circumstances" the complaint is that the length of time during which the applicant will be eligible for release on parole under supervision will be insufficient to further his rehabilitation and that given the length of the overall sentence that her Honour gave but a marginal reduction in the ratio provided for by s 44 of the Act, namely 66 percent as opposed to 75 percent. 38 In my opinion, there are three answers to this submission. Firstly, a reduction from the statutory ratio of 75% to 66% of the overall head sentence is not, in my view, marginal but substantial. It had the effect of reducing the effective non-parole period from 9 years to 8 years, a difference of 12 months. Secondly, if 4 years release on parole under supervision is insufficient to further or secure the applicant's rehabilitation, I do not believe that a longer period would be any more likely to be successful. Thirdly, since R v Simpson (2001) 53 NSWLR 704, it has been established that a wide variety of matters can constitute special circumstance, and not all of them justify a reduction in a variation from this so called "statutory ratio". As Spigelman CJ said in R v Fidow [2004] NSWCCA 172 at [22]: "Simply because there is present in a case a circumstance which is capable of constituting a "special circumstance" does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation". 39 It follows that merely because a finding of "special circumstances" is made, it does not necessarily follow that there must be a variation in the statutory ratio, or if there is such a variation, that it must be substantial. In Fidow, there was only a small adjustment resulting in the possible period of supervision on parole being reduced from 3 years to 2 years and 9 months, but this Court found no error in the sentencing judge's approach. 40 I therefore propose that the appeal against conviction be dismissed. I would grant leave to appeal against sentence but dismiss the appeal. 41 ADAMS J: I agree with Dunford J. 42 HOWIE J: I agree with Dunford J. **********

Last Modified: 08/20/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (6)

Cited By (2)