REGINA v. STEWART [1999] NSWCCA 119

1 DUNFORD, J: I will ask Greg James, J. to give the first judgment. 2 GREG JAMES, J: On 18 June 1998 the appellant was convicted by his Honour Judge Freeman in the District Court of New South Wales on two counts of aggravated break and enter offences after guilty verdicts returned by a jury. The first count included an allegation of intent to commit a felony, the second an allegation that the break and enter was coupled with actual stealing. The appellant was sentenced on each count to a minimum term of 12 months penal servitude to commence on 11 January 1999 and to expire on 10 January 2000, and an additional term of three years to commence on 11 January 2000 and to expire on 10 January 2003. His Honour also dealt with the prisoner in respect of the breach of certain recognisances imposing a fixed term of six months expiring on 10 January 1999. 3 The appellant appeals against his conviction on the sole ground that "the jury verdict was unsafe and unsatisfactory". At this hearing the ground was described as asserting that the verdicts were unreasonable and not in accordance with the evidence. Thus, it is submitted, acquittal should be entered. The ground is expressed this way by way of reference to the criteria in s.6(1) and (2) of the Criminal Appeal Act, no doubt in deference to what has been said in this court in Regina v. Giam [1999] NSWCCA 53 by the Chief Justice at paragraphs 43-44. 4 The written submissions provided by the appellant's counsel describe that ground by reference to what appears in M v. The Queen (1994) 181 CLR 487 at 494:- "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, or 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." 5 The submissions also refer to Jones v. The Queen (1997) 191 CLR 439; Fleming v. The Queen [1998] HCA 68 and Gipp v. The Queen (1998) 72 ALJR 1012. 6 The appellant's contentions here are that there was an absence of identification of the appellant by the victim and there was positive evidence given by persons, albeit with an involvement either in the offence or with that group of people involved in the offence, that, although a person nicknamed "John-Boy" was the offender, it was not the appellant who committed the offence and he was not "John-Boy". Therefore, it is said, the evidence of the one witness who admitted to being highly intoxicated at the time and who identified the appellant as both the offender and "John-Boy" ought to have been rejected by the jury. 7 In Gipp (supra), Gaudron, J. (at paragraphs 17 and 18), McHugh and Hayne, JJ. (at paragraph 49) and subsequently Kirby, J. (at paragraph 128) refer to the well-settled test to be applied where it is contended the jury ought not to have convicted, adverting either expressly or implicitly to the necessity to make full allowance for the advantages enjoyed by the jury. When the appeal court embarks on an examination of the evidence, it does so cognisant of the advantages enjoyed by the jury, particularly on matters of credibility in the oral presentation of the witnesses' evidence, a matter traditionally and peculiarly for the jury. 8 I have reviewed the evidence admissible against the appellant. I summarise it concisely. Mr. Maley said he was asleep in his store, known as The Colosseum, on 21 October when, before midnight, a man kicked open the door and entered the premises saying, "Mr. Maley, Mr. Maley, I come for your money, where is your money?" and then left. At about 3.00 am the door burst open and the same person entered, saying, "I've come for your money, where do you keep your money?" Thereafter, a number of other persons entered. When Mr. Maley was lying on the floor his pockets were searched and keys taken. One of the intruders had a knife. They wanted to know where he kept his money and took $10. One was a young girl, who attempted to make him sign a bank withdrawal form. A knife was held to his face and his co-operation demanded. Other things were taken. 9 Ms. Parnis gave evidence in the Crown case that early in the evening she had been visited by various persons, including Shane Blackecki, "John-Boy", Zoran and Zoran's girlfriend Melissa. With those persons I have named, and on an initial approach to Mr. Maley's store, she said, "John-Boy" kicked in the door, went in and came back out. Stephen Rayner, she said, was present when this happened. She said that later that night she had entered Mr. Maley's store with five members of the group with whom she had been associating that evening, one of which was "John-Boy". On that occasion one of the group had held a knife at Mr. Maley's throat and they left taking a number of items. She had been convicted for her part in the events. 10 In her original statement to the police she had not mentioned "John-Boy" because, so she said, she was scared. She said she had not seen "John-Boy" since and asserted he was not in court. But on her account the person "John-Boy" who had twice entered the premises was the person who had been with her then, who had been at her place and who had been seen by Stephen Rayner to make the first entry. 11 Daniel Hudson in his evidence referred to having also met with the group. He knew "John-Boy" as Kevin John Stewart. He had learnt of this name since these events but had not known that person well prior to the night, had not seen him since, and did not see him in court. He denied any knowledge of the man in the dock, asserted he was not "John-Boy" nor part of the group. 12 Peta-Maree Turner-Mann saw "John-Boy" in the company of Shane Blackecki at Ms. Parnis' home that evening. She did not know his real name but had known him for two years. She denied seeing him in court. 13 The appellant admitted to police that his name was Kevin John Stewart and that he was known by the name of "John Boy". He agreed he knew a Zoran Krstevski and the name of Zoran's girlfriend could be Melissa. In the ERISP he apparently agreed he knew Stephen Rayner. He denied knowing any of the other persons. 14 Stephen Rayner gave evidence that he had known the appellant for approximately 15 years from primary school. The appellant's nickname was "John-Boy". He identified the appellant in court as the person he knew had that nickname. He gave evidence that on the night of 21 October 1996 he was in company with the appellant and a person called Blackecki and they went to some girl's house above the shop. There he was introduced to a girl by the name of Rachel; that a group, the nicknames of which were given but which included Blackecki, "John-Boy", Rachel and himself went to premises that were plainly Mr. Maley's store; "John-Boy" kicked the door open; a couple of people "from what I can remember 'John-Boy' and Blackecki and someone else" went in, "they just went in and came out again". Someone referred to security coming and they left. Thereafter, he and another man split from the group. 15 His identification of the appellant was challenged as mistaken. He was rigorously cross-examined. He accepted that he was "heaps drunk", having consumed 30 throwdowns between lunchtime and leading up to the incident. In his words, he was "close to legless". He could not remember how the people were dressed or their hair cuts. He was first asked to remember the events about 18 months later. The cross-examination concluded:-

"Q. Well bearing in mind your state of intoxication, being legless and all, or near legless, I am sorry, and what you told us about your lack of ability to remember details of what they were wearing, what time it was, hairstyles, who else went in the premises, can you be sure it was John-Boy who went in the premises? A. Not really." 16 In these circumstances, it is submitted that it is a case in which the jury should have had a reasonable doubt as to the identification of the appellant and that the appeal should be upheld on the basis that the appellate court would experience a doubt which the jury ought also to have experienced in the sense described in the passage from M v. The Queen set out above. 17 Not withstanding the skilful and succinct submissions, both orally and in writing by Mr. Cavanagh for the appellant, I am in no such doubt nor do I consider that, bearing in mind the advantage that the jury had in observing the witnesses, it was not open to them, in the sense of reasonably available to them, to reject the evidence that the appellant was not "John-Boy" and not the offender who entered the premises twice. To put the matter more directly, I do not consider it was incumbent on the jury to accept that evidence, particularly having regard to the assistance furnished to the jury in the summing-up, which drew attention to their entitlement to accept or reject such portions of the evidence of the witnesses as might seem to them proper and also directed them that they could not infer the contrary of a statement in evidence merely because they rejected it. 18 In my view, there was ample evidence that the appellant was and was known as "John-Boy". Mr. Rayner's evidence of knowledge of the appellant, even though he was drunk on the occasion, was unlikely to be mistaken and was capable of being regarded as compelling by the jury. 19 In the light of the appellant's admissions of his own nickname and associates, the evidence that it was "John-Boy" who entered on both and the second occasion, the evidence was such overall that I do not consider there is a significant possibility that an innocent person had been convicted. I do not consider that the jury should not have found the appellant guilty on both counts. 20 I would therefore propose that the appeal be dismissed. 21 DUNFORD, J: I agree. 22 SMART, AJ: I also agree. 23 DUNFORD, J: The order of the court will therefore be that the appeal be dismissed.

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