Allen v The State of Western Australia - [2015] WASCA 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ALLEN -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 71

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 6 MARCH 2015

DELIVERED : 8 APRIL 2015

FILE NO/S: CACR 208 of 2014

BETWEEN: JOSHUA GREG ALLEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
File No  :IND 1264 of 2013

Catchwords:

Criminal law - Leave to appeal against conviction - Miscarriage of justice - Whether trial judge's directions to jury on identification evidence risked misleading jury into thinking witnesses had given positive identification evidence against appellant

Legislation:

Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters & Mr G M Rodgers
Respondent: No appearance

Solicitors:

Appellant: Gary Rodgers Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Rankins v The State of Western Australia [2007] WASCA 51

McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: At about midday on 1 January 2013, two men knocked on the front door of a home unit in Tuart Hill. In the unit at the time were Mr Steele St Clair‑Baker, Mark Lionel Kelly, Daniel Joseph Wallam and Keira Alcock (also referred to by the surnames Dodd or Alcock‑Dodd). After Mr St Clair‑Baker answered the door, one of the men entered the unit without consent. The man punched Mr St Clair‑Baker in the face and inflicted a blood nose and cut lip. The man then produced a machete and struck Mr Kelly with it, badly lacerating his left arm and fracturing the distal end of the humerus bone. He subsequently threw a torch at Mr Wallam's head that missed, and then proceeded to strike Mr Wallam over the head with a bottle, lacerating the top of his head.
The appellant was charged on indictment in the District Court with one count of aggravated burglary (count 1), two counts of assault occasioning bodily harm (counts 2 and 4) and one count of grievous bodily harm (count 3).
The decisive issue at trial was whether the State had proved beyond reasonable doubt that the man who entered the unit and attacked the occupants was the appellant. The State's case on this issue was circumstantial.
On 30 October 2014, after a trial before Keen DCJ and a jury, the appellant was convicted as charged. The appellant seeks leave to appeal to this court in respect of these convictions.
The sole ground of appeal the appellant proposes to rely upon is as follows:
There was a miscarriage of justice when the learned trial judge gave directions suited to a case of positive identification when there had been no identification at all.
In my opinion, the proposed ground of appeal has no reasonable prospect of succeeding. Accordingly, the appeal must be taken to have been dismissed: s 27(1), s 27(2) and s 27(3) of the Criminal Appeals Act 2004 (WA).

The evidence adduced at trial

There was no real issue taken by the defence with what had occurred at the unit on 1 January 2013. Of the four occupants of the unit, only Mr St Clair‑Baker and Mr Wallam testified at the trial.
Mr St Clair‑Baker testified that when he answered the door he saw two men, one of whom he described as being of medium build with a 'mo‑ish spiked up hair cut [sic]'. This man asked if Mr St Clair‑Baker knew a woman whose name began with a 'T' and ended with an 'A'. Mr St Clair‑Baker said that this man punched him in the mouth, knocking him backwards. Mr St Clair‑Baker said that he then left the unit via the back door. When he got to the backyard, he stopped and he saw his attacker strike Mr Kelly with what he thought was 'a pole or something'. Mr St Clair‑Baker testified that he then jumped the fence into an adjoining backyard and asked the occupier to call the police. He said that he went back to the unit three minutes later, by which time the attacker had left.
In cross‑examination, Mr St Clair‑Baker described the attacker as being possibly Lebanese and having spiked‑up hair - about an inch long at the top - which was thinned out and short along the sides and back.
Mr St Clair‑Baker admitted in cross‑examination that he had a number of convictions, including for assault occasioning bodily harm, aggravated burglary and making a false statement to police.
Mr Wallam testified that after Mr St Clair‑Baker had been assaulted, the attacker, whom he described as having 'a sort of Mohawk sort of haircut on the sides … trimmed on the sides', approached him and Mr Kelly. Mr Kelly tried to convince him to go away. Mr Wallam said that the attacker pulled out a machete from the front of his pants and started hitting the walls with it. Mr Wallam said that the attacker then struck Mr Kelly to the arm with the machete, leaving him with 'a big gash'. The attacker then grabbed a 'big, yellow spotlight torch' and threw it at Mr Wallam. Mr Wallam said he ducked and the torch hit the lounge room wall. The man then picked up an empty stubby and struck Mr Wallam on the top of the head with it. Mr Wallam said he picked the machete off the ground and left the unit.
In cross‑examination, Mr Wallam said that when Mr St Clair‑Baker left the house he went straight through the back door, over the fence and did not hang around. Mr Wallam said that the man who had come to the door could have been Arabic or Lebanese. Mr Wallam said that he recalled the torch that the man had thrown at him had been in the lounge room before the attacker and his companion had knocked on the door.
In re‑examination, Mr Wallam said that he could not remember whether the attacker took the machete with him.
Neither Mr St Clair‑Baker nor Mr Wallam knew the man who had attacked them. Both said that they had never seen him before.
The State called Mr Benjamin Stone. He was the usual occupant of the Tuart Hill unit, but, at the time of the alleged offences, he was in the United States of America. He said that Mr St Clair‑Baker was supposed to be looking after the unit in his absence.
As to the torch which the attacker had thrown at Mr Wallam, Benjamin Stone said that he got it from his brother, Daniel Stone, approximately 2 1/2 years before the alleged offences. Benjamin Stone said that he did not know the appellant and, as far as he knew, the appellant had not been to the unit.
Daniel Stone testified that he was the owner of the torch. He said that he had purchased it from Bunnings about five years before. He testified that his brother had borrowed it in about 2008 and had never returned it. He said that he had seen the torch on a number of occasions at his brother's house. He said that he and his brother move in different circles and that he had no idea where the torch had been.
Constable Clinton Amesbury was the forensic officer who had attended at the scene. He took photographs of a number of items, including the torch and its broken handle. He swabbed the handle of the torch for DNA. Constable Amesbury examined a number of items, looking for fingerprints. The appellant's fingerprints were not found on any of the items he examined.
The principal investigating police officer was Detective Nicholas Perich. He attended at the crime scene on 1 January 2013. He testified that he asked the occupants of the unit whether they could identify the attacker, but none of them were confident that they could do so. As a result, they were not asked to produce an identikit picture or undertake a digiboard identification.
Detective Perich testified that on 28 January 2013, the appellant was arrested and taken to the Mirrabooka police station. There, photographs were taken of the appellant. Those photographs were tendered in evidence (exhibit 8).
Christine Chin, a forensic scientist from PathWest, testified that an examination of the torch revealed the presence of a DNA profile which matched that of the appellant. She said that the statistical probability of it coming from someone other than the appellant, or someone unrelated to him, was less than one in ten billion.
In cross‑examination, Ms Chin said that not all touching of an article will result in DNA being deposited. She was asked about the transfer of DNA. She distinguished between primary transfer, which is the direct deposit of DNA upon an article, and secondary transfer, which is the process by which DNA is deposited via an intermediary. She said that the relevant scientific literature suggested that secondary DNA could occur, and it had been shown to occur, under ideal laboratory conditions, although others had been unable to replicate it. She accepted that the secondary transfer of DNA was possible, but she was unable to say how probable such a transfer could be. She also testified that she could not say when the DNA found on the torch was deposited, or from what source the DNA had come.
The appellant did not give evidence, nor did he adduce any evidence in his defence.

The issue of identification

As I said earlier, the critical issue for the jury to determine was whether the State had established beyond reasonable doubt that the appellant was the attacker. At no stage in the trial did the State allege that any of the occupants of the unit had positively identified the appellant. The State's case on the question of identification was circumstantial. It relied predominantly upon the appellant's DNA profile being found on the handle of the torch which had been thrown at Mr Wallam by the attacker and, to a lesser extent, the descriptions that Mr St Clair‑Baker and Mr Wallam gave of the attacker's haircut, which the State said was consistent with the appellant's haircut as shown in the photographs taken on 28 January 2013.
The defence case was that the identification evidence was insufficient to establish that the appellant was the attacker. In his closing address, defence counsel pointed out to the jury that there was no eyewitness identification of the appellant and no forensic evidence, apart from the DNA evidence, to connect the appellant to the offences. With respect to the DNA evidence, the defence submitted that the jury could not be satisfied beyond reasonable doubt that the appellant's DNA had not found its way onto the torch by way of secondary transfer. It was submitted by defence counsel that the appellant's DNA could have been transferred onto the torch via visitors to Benjamin Stone's unit who had been in contact with the appellant.
Defence counsel submitted that there was nothing particularly distinctive about the appellant's haircut and that the appellant does not appear to be Lebanese or Arabic.

The summing up

The learned trial judge instructed the jury that the crucial issue for it to decide was the element of identity in each charge.
His Honour told the jury that none of the State's witnesses had identified the appellant as the attacker (ts 299).
His Honour instructed the jury that the State's case as to identity relied upon the DNA which had been recovered from the handle of the torch and upon the descriptions given by both Mr St Clair‑Baker and Mr Wallam of the attacker's appearance on the day in question. As to this aspect of the State's case, his Honour gave the following directions, which the appellant now says have occasioned a miscarriage of justice (ts 299 ‑ 300):
But in relation to identification the law is that there is a special need for you to be cautious, before you convict the accused, in reliance on the correctness of the identification of the accused by witnesses or indeed by association between their evidence and the photos taken by another and indeed, not seen by them. There are very good reasons for that law, members of the jury. It exists because there is a special risk that identification evidence may lead to a wrong conviction.
It is the experience of judges and of lawyers - and that may not be your personal experience - that honest mistakes in identification do occur. That is, that innocent persons have been wrongly convicted based on faulty identification evidence. And the mistakes occur not infrequently. And this has also occurred in cases where eyewitnesses were apparently honest, careful and convincing. Now, if a witness honestly believes that his or her description of an accused person is correct, the witness can be very convincing when giving evidence even though they may be mistaken. It's also been the experience of judges and lawyers. It's also our experience that the more - more than one witness can be mistaken in the identification of an accused person.
Now, in this case of course, none of the witnesses have said that they identify this particular accused. What they've done by way of identification is to give a description of the person. Now, all that being the case you should closely examine the circumstances in which each of the witnesses say they saw the offender that they described. By any account, it was fleeting.
Clair-Baker said that he was at the door speaking to the [attacker] for no more than 15 seconds before being struck. He then ran out of the house. He had been drinking, and you may consider, quite heavily, the night before and he was hung-over as was Mr Wallam. It would all have been a stressful situation as well.
As for Daniel Wallam, he was in the presence of the [attacker] for a longer period, but again, the tenor of his evidence was that it was stressful and he tried to distance himself from the [attacker]. In other words, he was frightened. He was also hung-over, as I've said. His evidence would also suggest, as I've mentioned before, that Clair-Baker would not have seen the [attacker] strike Kelly in the house.
Now, you may wish to consider whether or not there' s been any evidence about any distinguishing features of the [attacker]. There would appear to be no evidence, save for the haircut, being said to be in the Mohican (?) style. But you will also bear in mind the differences in the descriptions given by Clair‑Baker and Wallam.
And members of the jury, the State says that you should be satisfied that the person these witnesses have described is in fact the accused. Now, the defence submission is that that's not so. The defence say the accused - sorry. The defence say that this is not a case where identity has been established. And there must be doubt about the evidence of his identification.
And, members of the jury, I have summarised for you some of the evidence of each of the witnesses on this issue of identification, and commented on the same. I have summarised for you the submissions of the State and the defence in relation to the evidence.
It is however essential that I should isolate and identify for you matters of significances [sic] which you might regard as undermining the reliability of the evidence that goes to identification. However, as I've said to you, what I say to you is my own view on the evidence. It is of course entirely for you to consider what I have to say, weigh it up. But you reach your own view in relation to the matter.
But it is because of the problems associated with identification and the special need for caution to be taken by a jury before convicting an accused in relation to the preface of identification evidence that I have independently directed you as to the witnesses which identification evidence can reveal.
So in order to convict the accused based on this evidence leading to identification, you need to be satisfied beyond reasonable doubt as to the honesty, accuracy and reliability of the descriptions of the [attacker] that have been given and how that fits with the other evidence, including the DNA evidence, so as to place the accused at the premises on 1 January 2013. As I warned you, honest witnesses can be wrong about matters of identification and sometimes everyone can be wrong.
The appellant's trial counsel took no exception to these directions.
The directions given by his Honour have many of the features of the directions suggested in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. Of course, Domican v The Queen was a case in which the prosecution relied upon eyewitness identification.

The appellant's submissions

The appellant's counsel expressly stated in the hearing of this application that the appellant did not allege that the conviction was unreasonable or could not be supported by the evidence.
As explained by the appellant's counsel at the hearing of this application, the principal submission put on the appellant's behalf was that, by giving a direction appropriate to cases of positive identification, there was a danger that the jury would have been misled into thinking that Mr St Clair‑Baker and Mr Wallam had given positive identification evidence against the appellant.

Disposition of the appeal

The appellant's submission cannot reasonably be accepted.
There is no reasonable possibility that the jury would have been misled as contended for by the appellant. This is because:
(a)Neither Mr St Clair‑Baker nor Mr Wallam knew the appellant.
(b)Neither Mr St Clair‑Baker nor Mr Wallam purported to identify the appellant as their attacker.
(c)At no point did the State suggest that either Mr St Clair‑Baker or Mr Wallam had identified the appellant. To the contrary, the prosecution case as to identification expressly denied that the witnesses had identified the appellant.
(d)Defence counsel, in his closing address to the jury, emphasised that neither Mr St Clair‑Baker nor Mr Wallam had identified the appellant: closing address transcript, 29 October 2014, ts 23, ts 25.
(e)The learned trial judge instructed the jury in his summing up that the State witnesses did not positively identify the appellant as the attacker and that the evidence of identification was, in substance, circumstantial.
His Honour's directions, when considered in context, were directed to the evidence of Mr St Clair‑Baker and Mr Wallam and concerned, as the jury would have well understood, those witnesses' general descriptions of the attacker.
In the appellant's written submissions, it was submitted that the present case was analogous to Rankins v The State of Western Australia [2007] WASCA 51. This submission was misconceived. In Rankins, a State witness, Ms Murray, testified that persons shown to her in photographs were 'similar' to the offenders. She further said that a person in the photograph and the appellant Rankins looked very alike, 'but I cannot be 100 per cent sure'. The trial judge in that case left it to the jury to decide whether Ms Murray had in fact positively identified the appellant. This court unanimously held that Ms Murray's evidence could not be treated as positive identification as her testimony was plainly inconsistent with that characterisation.
The present case is distinguishable from Rankins because the learned trial judge did not leave it to the jury to determine whether there had been positive identification of the appellant by Mr St Clair‑Baker or Mr Wallam. To the contrary, his Honour told the jury that the witnesses had not positively identified the appellant.
The directions given by his Honour did not give rise to the risk of a miscarriage of justice as alleged by the appellant.

Conclusion and orders

The proposed ground has no reasonable prospect of succeeding. Leave to appeal must be refused.
The orders that I would make are:
1.Leave to appeal is refused.
2.The appeal is dismissed.