and John Reid v The Queen
[2014] VSCA 295
•21 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0134 | |
| JOHN REID | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, WEINBERG and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 August 2014 |
| DATE OF JUDGMENT: | 21 November 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 295 |
| JUDGMENT APPEALED FROM: | DPP v Reid (Unreported, County Court of Victoria, Judge Patrick, 3 March 2014 (Conviction)) |
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CRIMINAL LAW – Armed robbery and recklessly causing serious injury – Description of offenders by victim inconsistent with victim’s photo board identification of the applicant – Whether photo board identification ‘recognition’ of offender seen prior to the offence – Whether evidence of photo board identification should have been excluded pursuant to s 137 of the Evidence Act 2008 – Whether verdicts unsafe and unsatisfactory – Leave to appeal against conviction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Randazzo SC | Doogue O’Brien George |
| For the Crown | Ms S Flynn | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
WEINBERG JA
WHELAN JA:
Following a trial in the County Court, the applicant was convicted of armed robbery, acquitted of intentionally causing serious injury and convicted of the alternative charge of recklessly causing serious injury. His co-offender, Jay Appleby, was found guilty of the same charges.
The applicant seeks leave to appeal against his conviction on the following grounds:
1.The learned trial judge erred in ruling admissible the evidence of the photo board identification, as it was evidence:
(a)amounting to evidence of ‘recognition’ as opposed to identification; and
(b) which had little probative value; and/or
(c)in which the danger of unfair prejudice to the applicant outweighed the probative value.
2.The verdicts of guilty are unsafe and unsatisfactory, in that:
(a)it was not reasonably and logically open to the jury to find the applicant was the first male and/or one of the two offenders, based on all the evidence, and in particular the description of the first male [said to be the applicant] as being a person with blond hair and wearing light coloured trousers (not tracksuit pants); and
(b)in light of the evidence, the finding by the jury, as to the two offenders being the applicant and [co-offender] Appleby, was ‘factually inconsistent’ and represented an ‘affront to logic and common sense’.[1]
[1]Citations omitted.
For the reasons that follow, we would refuse leave to appeal.
Background
Circumstances of the offending
The circumstances of the offending were as follows.
At around 2am on 13 August 2012, the victim, Ivan Basile, and his associate Shannon Thomas met a group of three men in the car-park of the Middle Hotel in Ferntree Gully. The three men were the applicant, Appleby and Paul Uhe. The purpose of the meeting was for Thomas to sell a quantity of the drug ‘ice’ (methylamphetamine). Basile had a conversation with the applicant. After a short time, all five men entered the car being driven by Basile, and he drove them to a residential address where Thomas went inside for about 10 minutes. The others remained in the car. Thomas returned to the car and they drove back to the hotel. Upon arrival at the hotel, Basile entered the hotel, leaving the others in the car. Thomas provided the drugs to Uhe, who paid for them. Thomas then joined Basile in the hotel. CCTV footage of the men in the hotel car-park and in the foyer was shown in Court.
The applicant, Appleby and Uhe left the hotel and consumed the drugs at a friend’s house approximately 500 metres from Ferntree Gully Railway Station. A person by the name of Coulter was present at the house. The men became ill as a result of consuming the drugs.
Thomas and Basile remained at the hotel for some time. They left the hotel at approximately 4.09am and entered Basile’s car in the car-park. The car exited the hotel car-park at approximately 4.22am. Again, the movements of the men were captured on CCTV. After exiting the car-park, Basile, with Thomas in the front passenger seat, drove towards the Ferntree Gully Railway Station in order for Thomas to meet other people.
CCTV footage at the train station prior to the attack depicted two men leaving the railway station at approximately 4.28am.
The offending occurred at about 4.30am at a street approximately 200 metres from the station. Basile saw two men walking along the street and Thomas confirmed that they were the men he was meeting. Basile pulled over. As the two men walked over to the car, he recognised them as two of the men he had previously met at the hotel. The two men entered the back seat of the car. Immediately, the man seated behind Basile reached around and held a knife to Basile’s throat, making demands for money. Basile said that this was the man with whom he had previously had a conversation at the hotel. The second man also had a knife. Thomas was able to flee the car and call emergency services. Basile grabbed the knife at his throat, causing an injury to his finger. Both men lunged at Basile with the knives in stabbing motions. Basile was stabbed in the legs multiple times during the struggle. During the attack, there were repeated demands for money. Basile ended up in the back seat of the car wrestling with one of the men. Meanwhile, the other man was searching the front of the car. At one point the man holding Basile asked the other man to stab Basile in the side.
Basile was able to exit the car. He gave evidence that the men told him that Thomas had ripped them off and sold them dirty drugs and that they wanted $300 back. They said two of their friends were sick at home. Basile went over to a passer-by whose car had stopped at a nearby intersection. That car drove off and Basile remained on the street. The two men entered Basile’s car and drove the car at Basile, who stood behind a pole. The attackers then drove away. The car was later found abandoned.
Police and an ambulance attended the scene and took Basile to hospital for treatment. He suffered the following injuries: a four centimetre wound to the base of his left index finger; a puncture wound to the right knee; a four centimetre wound to the left calf; a puncture wound to the right foot; and scalp abrasions.
At trial, the Crown case was that the applicant and Appleby were the two men who attacked Basile and Thomas and then left the scene in Basile’s car. The Crown contended that the applicant and Appleby were the two males depicted on CCTV at the Ferntree Gully Railway Station near the time of the attack. The defence did not contest Basile’s account of what took place during the attack. The sole issue for the jury was the identity of the two offenders. The defence case was that the two men who attacked Basile and Thomas were Uhe and Coulter.
Identification evidence
In the course of the investigation and the trial, Basile gave evidence describing his attackers and identifying the applicant as one of the attackers. Certain inconsistencies in that evidence are central to both grounds of appeal.
In brief, in conversation with the police within hours of the offending, Basile gave physical descriptions of the offenders. He described the man who sat behind him and held the knife at his throat as having blond hair. In a statement to police on 16 October 2012, he described the man with the knife as having blond hair and wearing light coloured pants. At the committal, Basile gave evidence that the man with the knife had blond hair and was wearing light coloured pants. In his evidence at trial, Basile reiterated that the man was blond.
On 1 September 2012, Basile was advised that a man was in custody and was asked to look at a photo board. Basile identified a photo of the applicant. The circumstances of that identification are described below.
CCTV footage from the Middle Hotel was shown at the hearing. In that footage, the applicant is depicted as having dark hair and wearing light grey tracksuit pants, and is wearing a light coloured beanie. On the same footage, Uhe is shown as having blond hair and wearing light coloured tailored trousers.
Ground 1 — Evidence of photo board identification
Under ground one, the applicant submits that the trial judge erred in refusing to exclude the evidence of Basile’s photo board identification of the applicant pursuant to s 137 of the Evidence Act 2008.
Initially, in a somewhat unusual process, the trial judge ruled on the papers that the evidence of the photo board identification should not be introduced into evidence. The papers did not disclose what it was that Basile had claimed the person he identified had done. Thus the trial judge ruled that the photo board identification was no more than identification of the applicant as someone whom Mr Basile had previously seen and recognised and as such it was not probative of any fact in issue.
On the day following that ruling, the Crown applied for a voir dire and for the judge to reconsider her ruling. The judge allowed the voir dire, at which Basile and the informant police officer gave evidence. Basile stated that he had identified the appellant on the photo board as ‘[t]he person that held a knife to me and robbed me and also stabbed me’. Under cross-examination, Basile agreed that he had not said to police at the time that the person he was identifying was the person who held a knife to, robbed and stabbed him. The judge subsequently ruled that the evidence of the photo board identification was admissible. The judge said:
I consider the evidence to now be relevant and therefore not inadmissible. There is [probative] value, ultimately the weight to be determined, but [probative] value in the evidence of Mr Basile as to what he intended doing or what he thought he was doing in identifying [the applicant’s] picture from the photo board.
The trial judge adverted to inconsistencies in Basile’s identification evidence which she considered were ‘matters which ought to be determined by the jury and presented to the jury for their consideration’.
In his testimony at trial, Basile confirmed that his intention when identifying the applicant on the photo board was to identify the person who held the knife to his throat.
The applicant submits that the photo board evidence should not have been admitted as it was ‘recognition’, rather than identification, evidence. The contention is that Basile identified the applicant on the photo board because he recognised him from earlier in the evening, rather than as one of the offenders.
The short answer to this contention is that the evidence was not to that effect. Basile gave evidence that he identified the applicant as one of the two offenders who attacked him. Where the identity of an offender is at issue, positive identification evidence by the victim will ordinarily be highly probative. The photo board identification evidence had significant probative value. The only issue in the trial was whether the man who held the knife to Basile’s throat and participated in the offences was the applicant. It was accepted that Basile saw his attacker. He was therefore capable, via the photo board, of identifying the person whom he claimed had attacked him. As appears hereafter, the answer to the question whether Basile’s identification of the applicant was correct would also have been informed by whether it could be said that Appleby was the other offender as it was not in issue that the applicant and Appleby were together at all material times.
Although no further application was made to exclude the identification evidence during the trial, the submission before us drew upon the course of the evidence following the impugned ruling. The applicant submits that the probative value of the evidence was outweighed by the danger of unfair prejudice to the applicant as a result of the inconsistencies in Basile’s evidence. Most particularly, the applicant relied upon the fact that Basile maintained that the attacker, who he alleged was the applicant, had blond hair while the photo of the applicant in the photo board depicted the applicant as having dark hair. Because of the inconsistencies, the applicant contends that the evidence had no probative value and the jury should not have been permitted to give it any weight.
In our opinion nothing that occurred following upon the impugned ruling required the trial judge to revisit the conclusion that the identification evidence was properly admitted. But in deference to the detailed argument advanced by counsel, we should refer to the salient aspects of the trial that dealt with this issue.
In cross-examination, defence counsel put to Basile that in the photo board identification process he was merely confirming that he recognised the applicant:
On 15 January 2013, you were asked some questions about this. This is at p 47, Your Honour, and again I am going to go through the same process of reading it out to you and then I will ask you some questions. Question: ‘When the photo board was shown to you, nobody said to you, “Pick out the person who did this to you”. Those weren’t the words that were used?’ Answer: ‘No, I was produced a photo board and I was asked can I — do I recognise any of these people’. Question: ‘That is the entire way it was put, “Come in, look at the photo board and see if you can — if you can recognise any person in the photos”?’ Answer: ‘Yes’. Were you asked those questions and did you give those answers at the committal hearing?—Yes.
Was that the truth?—Yes.
…
I want to put to you, I’m putting this to you and then you can respond to it, the person that you pointed to in the second photo board, that’s Exhibit H, is not the person who got in behind you and held a knife to your throat. What do you say to that? That you are mistaken about that?—I don’t believe I am.
And that when you went in to engage in that photo board process, looking at the photo board, that second photo board, what you did when you pointed to that photo board, was to indicate that you recognised that person, and indeed, you did recognise him from earlier in the night, at the Middle Hotel?—That’s correct.
That is what you pointed to?—Yes.
You pointed to the person whom you recognised from earlier in the night at the Middle Hotel and in the car with you — first of all, you agree with that?—Yes.
And secondly, you did not intend to convey to police that he was the person who sat behind you and held a knife to your throat?—I didn’t convey that at the time, no. I wasn’t [sic] specific questions and answered them, ‘Yes’, ‘No’.
Defence counsel cross-examined Basile at some length as to the inconsistencies between his description of the attackers and the photo board identification. The circumstances of the identification were fully explored in cross-examination, allowing the jury to evaluate the evidence of identification on its merits. The inconsistencies between Basile’s description of the physical appearance of his attacker and the applicant’s photo were well ventilated in cross-examination and were reiterated in the judge’s charge. It was plainly open to the jury to accept the photo board identification evidence. The jury could rationally have concluded that Basile’s photo board identification was correct but that he was mistaken in his recollection that the attacker was blond.
In her charge, the judge noted the inconsistencies in Basile’s description and gave the following instruction:
You should bear in mind that a witness who gives inconsistent accounts is not necessarily lying. Dishonest witnesses might be more likely to introduce inconsistencies but truthful witnesses can make mistakes about details. If you do find that Mr Basile’s earlier statements were inconsistent with the evidence that he gave about picking out [the applicant] from the photo board then you will have two different accounts, effectively, from the same witness and it is a matter for you to determine which account if any you believe.
Later in her charge, the judge said:
There is no issue that the photo on the photo board picked by Mr Basile was a photo of [the applicant] which had been taken of [the applicant] shortly after his arrest. You cannot use that evidence to support a conclusion that [the applicant] was one of the men in the car unless you are satisfied beyond reasonable doubt that what Mr Basile thought he was doing when he picked [the applicant] from the photo board was identifying one of the men who was in the car.
…
When you are considering this evidence you must bear in mind the following warning: You must be very careful before you rely on that evidence. There is no issue that Mr Basile had spent some time with [the applicant] earlier that night. Consider whether when Mr Basile gave evidence about recognising [the applicant] he may simply have recognised [the applicant] from the events earlier during the drug transaction and thought he recognised him from the car because of that. This is a matter for you but you must consider these things.
Mr Basile’s recollection of the face he saw in the car may have been displaced by his recollection of [the applicant] from earlier in the night. He may — again it is a matter for you — but he may have unintentionally identified [the applicant] because his photo matched a person he had seen before. Consider also whether Mr Basile may have jumped to the conclusion that it was that person who was in the car because he recognised him from the earlier drug deal. You should also consider any other evidence which might throw doubt on the identification.
The defence position is that Mr Basile’s descriptions to the police soon after the incident of the person holding the knife are inconsistent with it being [the applicant]. There were submissions made to you about those descriptions including a reference to blond hair rather than dark hair as [the applicant] had in the photograph. The defence submitted that there was opportunity in the car and outside the car for Mr Basile to observe the two people; that Mr Basile had not said before that the person had a hat on. [Defence counsel] referred to cross-examination of Mr Basile where he was asked about saying that the person had a hat on and he said he connected that with the guy that he had met back at the hotel. [Defence counsel] argued to you that what Mr Basile was doing was recognising the person he had met at the hotel.
[The prosecutor] also made submissions to you and arguments. He suggested that the recognition of a face by Mr Basile would be more cogent and have more weight than a verbal description. He suggested that a person could make mistakes earlier in the investigation and that the blond hair description had no consequence in view of the later identification from the photo board. [The prosecutor] also referred to Mr Basile’s evidence about curly hair sticking out and said that Mr Uhe’s hair, as shown on the photographs, was short. [The prosecutor] submitted that you should accept Mr Basile’s evidence that what he was doing was identifying a person from the car.
If, after careful examination of the identification and in the light of all of the circumstances and other evidence given in the case and the warning I have given, you are satisfied beyond reasonable doubt that [the applicant] was identified from the photo board by Mr Basile as one of the offenders then you can use that evidence in reaching your verdict alone or in combination with other evidence relied upon by the prosecution. If you are not satisfied beyond reasonable doubt about that then you should put that evidence aside.
The admission of the evidence did not give rise to a risk of unfair prejudice. As Weinberg JA said in R v Dupas (No 3):
There are many instances in the cases of identification evidence that could be said to be suspect having none the less been admitted. … The safeguard against the possible misuse by the jury of such evidence is normally the giving of appropriate directions by the trial judge.[2]
[2](2009) 28 VR 380, 445 [262] (citation omitted).
Similarly, in MA v The Queen this Court said:
Deficiencies in identification evidence other than those that are the subject of specific provision in the Evidence Act will ordinarily be addressed by appropriate cautionary directions being given by the trial judge. The need to exclude such evidence would generally only arise when the trial judge concludes that no directions can adequately remove a danger that the evidence will be given undue weight or will be impermissibly used.[3]
[3](2011) 31 VR 203, 209–10 [25] (Redlich, Weinberg and Bongiorno JJA agreeing) (citation omitted).
As extracted above, the judge gave an appropriate instruction to the jury concerning the defence argument as to the potential unreliability of the evidence. Counsel for the applicant does not take issue with those directions. Her Honour alerted the jury of the risk that Basile had merely recognised the applicant, rather than identified him as the offender. The judge outlined the danger that an honest witness may be mistaken, referred to the risk of displacement and summarised the defence submissions about the unreliability of the evidence. This warning appropriately canvassed the issues that arise in the context of identification evidence that may be tainted by a prior familiarity with the accused by the witness.[4] The evidence did not evince any special characteristic that would give rise to a risk that the jury would give the evidence more weight than it deserved or divert the jurors from their task.[5]
[4]See R v Spero (2006) 13 VR 225, 233–7 (Redlich AJA, Maxwell P and Buchanan JA agreeing).
[5]See Festa v The Queen (2001) 208 CLR 593, 611–12 [57].
We refuse leave to appeal on ground 1.
Ground 2 — Unsafe and unsatisfactory
The applicant also submits that the verdicts of guilty are unsafe and unsatisfactory as a result of the inconsistencies in the evidence. He contends that the jury must have had a reasonable doubt as to the applicant’s guilt, in particular as a result of Basile’s repeated statements that the offender had blond hair and was wearing light coloured trousers. It was said that the description was not only inconsistent with the photo board identification but that it more accurately described Uhe, as he was depicted in the evidence adduced at trial. The defence contended at trial that Uhe was the more likely perpetrator of the offences. For the reasons that follow, this submission must fail.
The issue for the jury was whether the applicant was one of the offenders. The jury was presented with two competing hypotheses. The Crown case was that the applicant and Appleby were in a joint criminal enterprise. As we have said, it was not in dispute at the trial that the applicant and Appleby were together at this material time. The defence case was that the offenders were Uhe and Coulter. The competing cases were fully explored at trial, with the inconsistency of Basile’s description with the Crown case at the forefront of the defence argument. That said, the jury had the benefit of evaluating the witnesses including the evidence of Uhe who denied participating in the offending. The jury was well placed to determine which parts of Basile’s evidence it would accept and which it would reject.
Apart from Basile’s positive identification of the applicant, there was substantial and cogent circumstantial evidence to support the Crown case that the applicant was one of the offenders. The primary circumstantial evidence was the CCTV footage taken of the five men meeting at the hotel and the later CCTV footage of two men, said to be the applicant and Appleby, taken at the Ferntree Gully Railway Station. The station was 200 metres from the site of the offending. The two men appear in the footage minutes before the offending took place. The first man, said to be the applicant, was waving about what appeared to be a knife or knives. The jury is very likely to have concluded that Appleby could be observed in some of the footage at the station. The Crown relied upon a comparison of the clothing and the appearance of the two men at the station with the clothing and appearance of the applicant and Appleby in the earlier CCTV footage. The runners said to be worn by Appleby and by the applicant at both locations, the jacket said to be worn by Appleby at the station and a jacket found at Appleby’s residence days later, and a white beanie with a pattern worn by the applicant at the hotel and worn by the man said to be the applicant at the station all supported the Crown hypothesis that the two men at the station were the applicant and Appleby. The Crown also pointed to the applicant’s body type and gait depicted on the footage from the hotel, and invited the jury to make a comparison with the man said to be the applicant at the station. The Crown additionally observed that the clothing and shoes worn by the men at the station were different to those worn by Uhe at the hotel. We are satisfied that it was well open to the jury to infer that the men depicted on the CCTV footage at the railway station were the applicant and Appleby.
The applicant further submitted by reference to the timing shown on the CCTV footage at the station that the persons at the station were unlikely to have been the persons who assaulted Basile a few hundred metres away a very short time later. That argument is without substance. Given the close physical and temporal proximity of the men at the railway station to the site of the offending, and the fact that the men at the railway station appeared to be brandishing knives, it was open to the jury to infer that the men at the railway station were the men who committed the charged offences. Notwithstanding that the evidence strongly pointed to Appleby and the applicant being the persons at the station, the applicant and Appleby disputed at trial that they were the persons on the CCTV footage.
The Crown also relied on the fact that items that belonged to Basile and Thomas — a set of keys owned by Basile and a Centrelink document in the name of Thomas — and said to have been taken from Basile’s vehicle, were discovered in the applicant’s belongings in a hotel room, as was a backpack that was similar to that on the CCTV footage of the two men at the station. Although Uhe had stayed in the hotel room with the applicant, the jury would have been entitled to attach some weight to this evidence in coming to a conclusion that the applicant was one of the men who had committed the offences.
Where it is claimed that a verdict is unsafe and unsatisfactory, the question is whether the jury must have entertained a doubt about the applicant’s guilt.[6] We are satisfied that the jury verdict was well open to it. Plainly the jury accepted Uhe’s testimony that he was not one of the offenders. The Crown case against the applicant and Appleby was compelling. This ground cannot be sustained.
[6]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); Libke v The Queen (2007) 230 CLR 559, 596–7 (Hayne J).
For the reasons given, we refuse the applicant leave to appeal against his conviction.
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