Application by Thomas Hudson Wilson pursuant to s 78 Crimes (Appeal and Review) Act 2001
[2014] NSWSC 1792
•16 December 2014
Supreme Court
New South Wales
Medium Neutral Citation: Application by Thomas Hudson Wilson pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1792 Hearing dates: On the papers Decision date: 16 December 2014 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Application is dismissed.
Catchwords: CRIMINAL LAW - application for inquiry into conviction under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) - photo identification evidence - no special facts or special circumstances raised - identification of seized items - no sense of unease or disquiet required raised - application dismissed Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Evidence Act 1995 (NSW)Cases Cited: Application of Peter James Holland [2008] NSWSC 251
Domican v The Queen [1992] HCA 13; 173 CLR 555
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593;
Kirk Group Holdings Pty Limited v WorkCover Authority of NSW [2006] NSWCA 172; 66 NSWLR 151
Regina v Wilson (Unreported 18 December 1997
R v Wilson (District Court (NSW), Karpin J, 24 May 1996, unrep)
R v Tugaga (1997) 74 A Crim R 190
Varley v Attorney General (NSW) (1987) 8 NSWLR 30Texts Cited: -- Category: Principal judgment Parties: Thomas Hudson Wilson (Applicant)
Regina (Respondent)Representation: Counsel:
Ms R Mathur (Applicant)
Ms G Wright (Respondent)
Solicitors:
John B Hajje & Associates (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 2012/111798 Publication restriction: --
Judgment
In April 2012 the applicant, Mr Wilson, sought an order under s 78 of the Crimes (Appeal and Review) Act2001 (NSW) for an inquiry into his conviction in 1996 of having maliciously inflicted grievous bodily harm, with intent to do grievous bodily harm to Ms Catherine Sommer, when he broke into her home in February 1992. Under s79 of that Act, on considering such an application, the Court may direct that an inquiry be conducted by a judicial officer into a conviction or sentence, or may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.
Such an application gives rise to an administrative, rather than a judicial act (see Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at 362 [124]).
When the application was filed, relevant material had not been obtained by Mr Wilson (see written submissions of April 2012 at [13]). That material was later provided by the Crown, which opposed his application. What lies in issue between the parties must now be considered in light of the voluminous material provided to the Court, which includes the judgment given on appeal, the transcript of the trial, certain exhibits tendered at trial and the sentencing judgment given by Karpin DCJ (see R v Wilson (District Court (NSW), Karpin J, 24 May 1996, unrep). The Court is also entitled to consider the written submissions advanced by the Crown (see s 79(4)).
Mr Wilson was given an opportunity to respond to the Crown's submissions, which he did not take up, understandably perhaps given what the materials before the Court reveal.
The application was made in circumstances where on 2 August 1994, at the committal hearing, the presiding Magistrate declined to commit Mr Wilson for trial. The Crown later preferred an indictment ex-officio against Mr Wilson. At the trial conducted before a jury in 1996, the Crown's case was that a Mr Mitchell had procured Mr Wilson to assault Ms Sommer.
As Karpin DCJ later observed in July 1996 on sentencing Mr Wilson, the central issue at trial was the identity of the person who assaulted Ms Sommer. At p 8 of the sentencing remarks it was observed that the verdict which the jury had reached was the only rational verdict available in light of Ms Sommer's evidence. In the result Mr Wilson was sentenced to penal servitude for 18 years, 8 months with a minimum term of 14 years and an additional term of 4 years, 8 months.
Mr Wilson's appeal from that conviction and sentence was dismissed in December 1997 (see Regina v Wilson (Court of Criminal Appeal (NSW), Sully, Abadee, Dunford JJ, 18 December 1997, unrep). The case which Mr Wilson advanced did not deal at all with the Court of Criminal Appeal's judgment.
In the joint judgment the Court described the evidence on which Mr Wilson was convicted in these terms:
"At about 9.35 p.m. on 19 February 1992, Catherine Jane Sommer, a young woman then aged 24 years, returned home to 50 Carrington Parade, Curl Curl, a house which she was then sharing with her brother and another friend. A short time later she heard her dogs barking outside. She went outside to investigate but was unable to see anything suspicious. She walked back into the house, passing through the kitchen into the dining room and there turned on a light that illuminated the rear courtyard of the premises. She heard banging noises coming from outside the rear of the house and walked from the dining room back to the kitchen. At this point she heard heavy footsteps enter the kitchen and, as she herself reached the door between the dining room and the kitchen, she was confronted by a male intruder. The intruder was wearing a balaclava and he was carrying a pinch bar. The intruder did not say anything to Miss Sommer but he began to assault her with the pinch bar that he was carrying. The first blows fractured Miss Sommer's left cheek bone and caused her to fall backwards. The intruder thereupon took hold of her and threw her into the dining room. She managed to get herself under the dining room table in the hope that that would shelter her from further attack. The intruder pursued her, took hold of her left leg, and struck it with the bar. He aimed further blows at her head and, she, in self defence, put up her left arm to shield her face. Blows were struck to that arm and it was broken. Further blows were struck; and Miss Sommer, with remarkable presence of mind, took a deep breath, closed her eyes, and feigned unconsciousness. Her assailant struck a few further blows to her legs; but shortly thereafter decamped. At no time did the assailant say anything to Miss Sommer.
The attack thus made upon Miss Sommer was unprovoked and vicious. Undisputed medical evidence given at the trial was to the effect that she presented to the treating specialist who first saw her about 2 hours after the attack, with bruising around her left eye and the left side of her nose and across the forehead to the mid-line. She had two small puncture wounds over the medial side of the left arm. She had lacerations to the front of her right leg and lacerations to the front and lateral side of her left leg. There were three skin lesions over the front of the right tibia; and these had the appearance of having been caused separately because there was separate associated bruising to each of them. Subsequent examination established that Miss Sommer had suffered a fracture of the mid-shaft of the left radius and ulna, with some comminution. It was found, similarly, that she had suffered a fracture of the right tibia and fibula, with an associated butterfly fragment. Her left leg was found to have a marked degree of comminution. X-ray examination established that she had suffered, as well, a fracture of the zygoma.
The relevant evidence at trial described, in a detail which need not be repeated here, the course of post-traumatic operative and other treatment undergone by Miss Sommer. It is sufficient to say that she required a number of discrete operations; and that her physical injuries did not finally stabilise until about the end of 1993 or the early part of 1994, at which time she underwent operation for the final removal of various metal insertions in an arm and leg.
The treating specialist was asked about his observations of Miss Sommer's demeanour at the time of his initial examination of her. He replied as follows:
"I think the most striking feature was that she was - appeared extremely calm and collected, and rational. Most people that have been assaulted, in my experience, are fairly stressed. In comparison with a person who's say been injured in a car accident and suffered similar sort of injuries, there's often a lot of emotional trauma with being assaulted and it really struck me that the lady was really quite relaxed and calm. She was quite happy to sit there and lie there and talk about where it hurt and where it didn't hurt and it was at localised areas. She was very helpful."
Later, and in cross-examination, this witness added that, so far as he was concerned "there were no problems with her cognitive faculties, as far as her ability to communicate with me, to point to me - to point to things"; and he agreed with the proposition put by cross-examining counsel that: "given the horrible beating that she got, she seemed calm, cool and collected".
Miss Sommer gave the investigating police a description of her assailant, and it will be necessary to return presently to the detail of that description. Police investigations into the attack continued throughout 1992, but with little apparent progress. The appellant had been seen in Manly at about 7.50 p.m. on the evening of the assault; and on 27 February 1992 he was interviewed by two police officers. He was questioned in particular about his knowledge of a man named John Michael Mitchell, who was a person with whom Miss Sommer had had a short relationship during 1991. That relationship had broken up acrimoniously; and it was, ultimately, the Crown case at trial that Mitchell had procured the appellant to carry out the assault previously described, as an act of revenge upon the victim. The appellant denied any knowledge of the assault; and said that he did not know Mitchell.
In October and November of 1992, the police were able to establish, by the use of a police under-cover operative, that Mitchell and the appellant were, indeed, well acquainted. It will be necessary to return presently to the detail of these police operations.
In December 1992 the police executed a search warrant upon the appellant's then residence at Campbell Parade, Manly Vale. This search uncovered a number of items that became very important at the trial of the appellant. It will be necessary to discuss later the details of this particular police search, and of the items obtained by means of it.
On 23 January 1993, that is to say about 11 months after the attack upon Miss Sommer, the appellant was arrested and charged with having been the assailant. On 24 February 1993 he was offered, in the presence of his solicitor, an opportunity to take part in a line-up; but he declined to do so. Evidence was given at trial of subsequent approaches by the police to have the appellant take part in a line-up; but all such further approaches proved fruitless.
On 6 July 1993, that is to say about a year and five months after the date of the assault upon her, Miss Sommer took part in a video identification exercise. Once again, it will be necessary to return later to a discussion of the detail of what then occurred; but it is sufficient for the present to say that Miss Sommer made a clear and unqualified identification of the appellant."
The statutory regime
Action may only be taken under s 79(1) "if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case" (s 79(2)). The s 78 procedure does not, however, provide a further avenue of appeal after a convicted person has exhausted their normal appeal rights.
The purpose of this aspect of the legislative scheme was discussed by Johnson J in Application of Peter James Holland [2008] NSWSC 251 at [5]. It is remedial, designed to overcome injustices that sometimes arises in the course of the administration of criminal justice (see Kirk Group Holdings Pty Limited v WorkCover Authority of NSW [2006] NSWCA 72; 66 NSWLR 151 at 154 [5], 155 [8]). As Johnson J also discussed at [7] - [8]:
"7 Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19].
8 There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]."
It follows that in order for an application such as this to succeed, there must be material identified which gives rise to the necessary doubt or question which must be established, before an inquiry may be ordered.
The Court also has a discretion to refuse to consider or deal with an application in circumstances specified in s 79(3), namely if:
"(a) it appears that the matter:
(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
(ii) has previously been dealt with under this Part or under the previous review provisions, or
(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or
(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action."
In this case it is accordingly relevant to take into account that Mr Wilson unsuccessfully pursued an appeal against his conviction in 1997.
The matters relied on by Mr Wilson
Mr Wilson's application rests on two matters: photo identification evidence, which he submits ought not to have gone to the jury and photographs of items located at his house during a search conducted on 10 December 1992, in circumstances where the items themselves had gone missing and photographs of Mr Mitchell.
The photo identification evidence was the result of a photo line-up of 20 faces which took place some 16 months after the assault. Mr Wilson's case was that this evidence should not have been permitted to go to the jury.
The items seized at Mr Wilson's home were a balaclava, a pinch bar and a jumper which Ms Sommer had identified as having seen, or being used, during the assault. Mr Wilson alleged that she had been told prior to identification that the items were found in the home of the person charged with her assault. Those items had gone missing and the Crown led photographs of them.
It should be noted that while not raised on Mr Wilson's application, it is relevant that the Crown's circumstantial case also relied on an association between Mr Wilson and Ms Sommer's former boyfriend, Mr Mitchell. Mr Wilson had denied any knowledge of Mr Mitchell, despite photographs found in his house depicting him in the company of Mr Mitchell. It also relied on entries in a diary found at Mr Wilson's, as well as evidence called from various witnesses, which it is unnecessary to explore.
The Crown's position
The Crown's case was that the Court would refuse to consider the identification evidence relied on by the applicant, because, on appeal the Court of Criminal Appeal had already comprehensively assessed the evidence on which Mr Wilson was convicted at trial. The trial had followed a voir dire in relation to the admissibility of the picture identification evidence on which the Crown's case rested. The photographic evidence and the arguments now advanced by Mr Wilson had also, for the most part, been dealt with on the appeal and were not capable of satisfying the test provided in s 79(1). Accordingly, his application for an inquiry would be refused.
Mr Wilson's case on appeal
In order to resolve the issues lying between the parties it is necessary to consider the case Mr Wilson advanced on appeal, where he pressed five grounds, including that the verdict was unsafe and unsatisfactory (ground 5). That ground had to be considered on the basis of an assumption that all of the Crown evidence was correctly admitted and that the jury was correctly charged. The evidence also had to be taken at its highest (see judgment at p8).
The other four grounds pursued were:
- Ground 1 - the learned trial judge failed to warn the jury at all in relation to the dangers of identification evidence of the pinch bar and the balaclava by the witness, Miss Sommer.
- Ground 2 - the learned trial judge erred in allowing such evidence of the identification of the pinch bar and balaclava to be used as corroborative evidence of the video identification.
- Ground 3 - the learned trial judge erred in allowing such evidence of the finding of the pair of shoes and pair of gloves to be used as corroborative evidence of the video identification.
- Ground 4 - the learned trial judge failed to properly warn the jury in relation to the evidence of the identification depicted on the video.
The photo identification evidence
On this application Mr Wilson's case was that the photo identification evidence was the "key determining factor" in the finding made by the jury and that this had led to a miscarriage of justice. On his case Ms Sommer's identification could not have been reliable, given that she had observed her assailant for only a brief period, in varying conditions of light. In the result, the evidence should have been excluded under s 114, s 115, s 135, s 137 and s 138 of the Evidence Act 1995 (NSW), consistently with the approach discussed by McHugh J in Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [65]:
"In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. Because circumstantial identification evidence is usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasions for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positive-identification evidence."
It was also submitted:
"32. In the present case, there were numerous problems with the identification evidence, which reduced its probative value. The lapse of time - namely 16 months - was clearly a relevant factor: R v Clarke (1997) 97 A Crim R 414 at 429-430. The victim's evidence that a man wearing a balaclava, that covered his face from one inch above and below the eyes, made plain the inherent limitations and unreliability of any identification evidence.
33. When the victim was shown an identification video, she was shown 20 faces, many of which did not have green eyes or hazel eyes. Of the 20 faces, only two of the photographs showed a man with no eyebrows (one of whom was the accused). The victim never described her assailant as having no eyebrows prior to identifying the applicant. It is suggested that a lack of eyebrows is a significant and somewhat memorable facial feature, particularly in the context of how much of the assailant's face the victim purported to see.
34. Further, the video depicted a larger face area of each individual shown, rather than pursuant to the description given by the victim to police, which indicated the victim had only seen to the bridge of her assailant's nose. It also depicted persons with and without hair, although this feature was unknown to the victim.
35. As Buddin J said in R v Nguyen [2003] NSWSC 1068, at [14](xxi):
"It is axiomatic that the photographs selected for inclusion in the array should be totally consistent with the original description provided by the witness of the suspect's physical features and any other identifiable features, including the clothing worn by him or her. It therefore follows that very considerable care needs to be taken to ensure not only that the original description itself is accurately recorded, but that the details of it are comprehensive and that they are obtained as close in point of time to the incident, as circumstances permit. "
36. It should be noted that the identification video and the photographs of the items found at the applicants[sic] home were allowed into evidence, over objection from defence counsel. Further, issue made at trial that the video had two screens depicting two images of different colours, namely the image on the larger monitor depicted the colour skin as tan or yellow and the image on the bottom monitor depicted the skin colour as pinkish white. (Trial @T50)"
I am satisfied that the matters on which this aspect of Mr Wilson's application rests were fully ventilated both at the trial and on appeal and that no special facts or circumstances warranting the application being further dealt with have now been established by Mr Wilson.
Ms Sommer's description of the assailant was referred to at pages 9 -11 of the Court of Criminal Appeal's judgment. How the identification evidence came to be videoed was also described. The authenticity and integrity of the videos themselves was not in issue (see at p11-12). The videos were described as follows:
"She is shown entering the room; going through the ordinary civilities as to introductions and the like; and, then, seating herself in front of a video monitor. Twenty images, previously compiled by the police into a video tape, are then screened to the victim. Each photograph in the compilation shows a face, the central area of which, only, is clearly depicted. The screening proceeds uneventfully to the point where such a photograph of the appellant appears on the screen. Miss Sommer at once reacts. She shudders visibly, begins to sob, and, having regained her composure, identifies the person in that particular photograph as the person who attacked her. She is asked, thereafter, to look carefully and patiently at the balance of the photographs in the particular compilation; and she does so without any reaction. She is then shown a second video taped compilation of photographs. They are the same photographs, and in the same sequence, as the photographs first shown to her; but this time the whole head of the subject is shown. The course of the screening is exactly the same on the second occasion as on the first." (at p 12)
This evidence made a powerful impression on the Court of Criminal Appeal, which observed it must have made a similar impression on the jury. It concluded at p13 that:
"... the material in the two video tapes was such that the jury was entitled to regard it as powerful evidence confirming the fundamental assertion of the victim, - and the fundamental assertion, also, crucial to the Crown case, - that it had been, indeed, the appellant who had carried out the attack upon her. This was, in our opinion, more so the case if the jury accepted, as, in our opinion, the jury was perfectly entitled to do, that Miss Sommer, whom the jury saw and heard for itself, was an intelligent, responsible, and resourceful young woman whom they were prepared to accept, not only as truthful, - (a matter not in issue at the trial), - but reliable as well."
Extensive reference was then made to Ms Sommer's cross-examination as to the reliability of her identification, given the contrasting light in the kitchen and dining room; her concessions as to the strength and clarity of the light; the brief period she had seen the assailant's eyes; how the colour of his eyes had varied in the light, so that she had variously described them to be green or hazel/green; the differences in eye and skin colour depicted at various points of the video recording; what she had later said about the eye colour; that part of the assailant's face had been obscured by shadow; and the colour of the bright red bar, which on the Crown case had been used to assault her, which she had described as being a dark brown colour.
The Court of Criminal Appeal observed at p 6 that the only ultimate issue for the jury at the applicant's trial was whether the Crown had proven the identity of the assailant beyond reasonable doubt.
It referred to Ms Sommer's extensive cross examination and the questioning designed to discredit her, including questions she was asked as to her and her father asking police as to their ongoing enquiries and whether she had dealt in cannabis. The Court of Criminal Appeal concluded that:
"We do not see anything in this part of the cross-examination, apt to suggest, that the suggested activities of the victim gave rise to some reasonable inference adverse to the reliability of her identification of the appellant."
As well as referring to the other evidence led in the Crown's circumstantial case, the Court referred to Mr Wilson's evidence and the unsworn statement which he made to the jury, as well as the evidence called from his solicitor and an expert in optometry, Professor Stephen Dain, who explained how an individual's perception of eye colour can change in different kinds and intensities of electric lighting.
The Court concluded as to ground 5:
"Proceeding, as we now do, to apply the principles stated in M v The Queen to the facts of the present case as disclosed by the foregoing canvass of the evidence at trial, we acknowledge at once that an evaluation by this Court of any Crown case which is essentially dependent upon identification evidence, is to be carried out with a constant awareness of the dangers inherent in such a case. We accept that, in the present particular case, it is possible to point to particular things said by Miss Sommer in connection with her identification of the appellant, that are plainly incorrect in detail. For example, the suggestion that the person who assaulted her "may have had dark featured eyebrows" is, on its face, incorrect, in that the appellant has no eyebrows at all because of a particular skin condition, which he has had since childhood. The submissions put for the appellant seize upon precisely this point, and argue that logically the appellant could not have been the person who carried out the attack.
We think, however, that the conclusion does not necessarily follow from the given premise. For, even granting that the appellant has in fact no eyebrows, it is necessary nevertheless to consider whether the appellant, when viewed in certain lighting conditions, might give momentarily the impression of having dark or darkish eyebrows. The appellant was not present in Court on 7 November, the first day of the hearing of the appeal; but he was present in Court throughout the second day of the hearing on 21 November, and we had a good opportunity of seeing him for ourselves. We were struck by the fact that, looked at from certain angles, the appellant's face was indeed shadowed in such a fashion as to suggest, albeit briefly, that he did in fact have such eyebrows.
Quite apart from that matter, we were struck not only by the physical appearance of the appellant which, in our opinion, accorded closely with the appearance described by the victim. We were struck, also and particularly, by the appellant's eyes and their immediate facial surrounds. The appellant's eyes and their facial setting are, in our opinion, very distinctive. It is true that Miss Sommer's assailant was wearing a balaclava, but it was a balaclava which left exposed the central area of the assailant's face. The victim's view of that area of her assailant's face made a searing impression upon her, and that impression under-pins her identification of the appellant. We think that the descriptions given by the victim of her assailant do not contain inconsistencies of such a kind as to render suspect her identification so under-pinned.
In making, as we are required by law to do, our own independent assessment of the evidence at trial, we do not overlook other features of that evidence capable of strengthening the inculpation of the appellant in the assault on Miss Sommer. We have particularly in mind the appellant's hand-written diary note for 17 February 1992; and the clear evidence of the appellant's false denial of any knowledge of or acquaintance with the man Mitchell, albeit that the evidence did not establish in a precise and particular way such association at times preceding the date of the assault.
It must have been apparent to the jury at trial that the whole point which the Crown sought to make concerning the association between Mitchell and the appellant, was that the appellant had been procured by Mitchell to assault Miss Sommer. The appellant, when he came to make his unsworn statement, could not credibly have denied any knowledge of the man Mitchell, given the volume of evidence available to the contrary. The appellant chose, however, not to tell the jury why he had denied to the investigating police any knowledge of Mitchell. We think that the jury was entitled to infer that the appellant did not give any such explanation for the reason that any truthful explanation would have been disadvantageous to his case; and it is nowhere apparent that there could have been any such disadvantage deriving from anything other than that his association with Mitchell, if explained truthfully, would tend to support the Crown case that he was indeed the assailant.
As to his hand-written diary entry, the appellant chose to say nothing at all by way of explanation consistent with innocence. We think that the jury was entitled to infer that the reason why the appellant gave no such explanation was because a truthful explanation would have tended to strengthen the Crown case that he was the assailant.
We have come to the conclusion that the principles established by the decision in M v The Queen do not entail, when applied to the given facts of the present case, that the jury at trial ought to have had a reasonable doubt as to the guilt as charged of the appellant. We ourselves have no such doubt. We are, therefore, of the opinion that Ground 5 has not been established."
As to ground 4, that the trial judge failed to properly warn the jury in relation to the identification depicted in the video, the Court of Criminal Appeal concluded that the summing up, fairly read, complied with the requirements established in the Queen v Domican [1992] HCA 13; 173 CLR 555; that specific directions under s 165(2) of the Evidence Act could have been sought, but that the directions in fact given, had satisfied the requirements of that section.
In the result I am well satisfied that despite the observations relied on by Mr Wilson in R v Tugaga (1997) 74 A Crim R 190 at 193-4, that it is always open to a trial judge to withdraw evidence of identification from a jury, if its probative value is outweighed by its prejudicial effect, on the material on which this aspect of Mr Wilson's application must be determined, it must be concluded that the matters he now raises in relation to the photo identification evidence were fully dealt with both at the trial at which he was convicted, and on appeal from that conviction.
The matters now advanced do not raise any special facts or special circumstances that justify the taking of the further action sought in relation to his conviction and thus cannot provide a basis for the further inquiry that Mr Wilson now pursues.
The photographic evidence
At the trial, over the applicant's objection, the Crown tendered three photographs of items seized from the applicant's home, which had gone missing after the committal hearing, including a balaclava and pinch bar. Mr Wilson had admitted owning those items (p 27 judgment).
The submissions advanced by Mr Wilson on this application as to the receipt of this evidence at trial were:
"37. At the trial of the applicant, above objection, the Crown were permitted to tender 3 photographs of items located at the applicants[sic] house during the search conducted on 10 December 1992. (Trial @ T 132) What can be inferred from the transcript is that those photographs depict a balaclava with a single hole, a red pinch bar and possibly a blue woollen jumper. The Crown relied on photographs as the items themselves had gone missing after the Committal.
38. The victim gave evidence that prior to viewing these items in January 1993, she had been informed that an arrest had been made (Committal @ T52) and that the items had been found in the premises of the arrested person: (Comittal@T54).
39. Prior to the identification of these items in January 1993, the victim had described the iron bar as a "crow bar" that was "dark brown" or "dark" in colour: (Trial @ T67) the photograph tendered and identified by the victim as being used in the assault depicted a "very red pinch bar".
40. The victim gave evidence at trial, obviously after viewing the red pinch bar at the police station in January 1993, that she believed the bar to be about 16-18 inches in length: (Trial@T27). Of note is that when the police went to search the applicants[sic] house Officer Moran asks the applicant: "Have you got a pinch bar about one metre in length: "(Thai @ 131), the inference being that the victim at some point had described the bar as about one metre in length.
41. The victim identifies the balaclava depicted in the photograph as the one worn by the assailant. The photograph depicts a balaclava with a single hole, the fabric of which is unclear from a reading of the transcript at committal. The evidence of Officer Caddy is that he records in the critical incident report that the assailant is "wearing a black woollen balaclava with holes for eyes and mouth. (Trial @ T155).
42. Given both the time that had elapsed and the circumstances surrounding the identification of these items, this identification evidence should not have been permitted to go to the jury. It was highly unreliable, lacking in probative force and of great prejudice to the accused. At the time of identifying the items the victim is not shown other iron bars, or balaclavas or jumpers and the victim is informed that the items come from the house of the man arrested for the crime. The identification takes place close to 11 months after the offence.
43. There were significant issues with the evidence, not least the fact that it was photographs and not the items themselves being tendered. The photograph of the pinch bar tendered in the trial was a different colour, being bright red, to the dark coloured bar the victim stated she saw. Further, the balaclava appears to have been of an entirely different description - the one found at the defendant's home was described as 'open faced'.
44. In R v Razzak [2004] NSWCCA 62, Levine J stated, at [28]:
"It is as much a matter of common sense, if not logic, as it is a matter of principle, to assert that other evidence, other circumstantial evidence, touching upon the issue of identification, cannot bolster flawed evidence of identification to the point where the flaws are eliminated and a finding can be made that that flawed identification is correct". Such sentiments were echoed by Kirby J in Festa at [165]."
Grounds 1 and 2 of Mr Wilson's appeal were directed to this evidence. At p38 of the Court of Criminal Appeal's judgment, after referring to the principles discussed in Domican v The Queen, it was observed that the evidence as to the balaclava and pinch bar were not in a real sense identification evidence, but a small category of the Crown's circumstantial case which tended to strengthen the reliability of Ms Sommer's identification of Mr Wilson.
As to the tender of the photographs now relied on by Mr Wilson the Court of Criminal Appeal observed:
"For some reason that remains unexplained, the balaclava, the pinch bar, the black gloves and the shoes, which were taken by the police from the appellant's home, were lost between committal and trial. The Crown sought, therefore, to tender in its case at trial a photograph of each of the missing items. The four photographs were admitted over objection and became Exhibit G in the trial. It was not contended at trial, either that the photographs were not authentic or that they showed something other than the items actually taken by the police.
The photographs were tendered during the course of the evidence-in-chief of Miss Sommer. She gave evidence that Det. Sgt. Monk had shown her the items depicted in the four photographs. She said that this had happened sometime after her assault. She then gave the following evidence:
"He handed me enveloped or part-wrapped items and of those items I identified a balaclava being I believe the same one that was used by the attacker on the night. He showed me the bar. As I unpacked it I identified that as being identical to the one being used by the attacker that attacked me on the night. He showed me some black gloves. I couldn't be specific about those gloves. They were black. They looked similar, I couldn't say if they were the same ones, and some sport shoes, some running shoes of which I couldn't identify."
As to the pinch bar and the balaclava, we have no present need to add to what we have said earlier herein. (at p47-48)"
Ms Sommer was cross-examined for days on her evidence, including in relation to the balaclava and the bar. The circumstances in which Ms Sommer came to be shown and identify the balaclava and pinch bar and the discrepancy in her description of the colour of that bar and what could be seen on the photographs, were all explored with her at length.
The Court of Criminal Appeal concluded at p 45, in relation to the various, detailed directions given to the jury about the identification evidence and the balaclava and pinch bar, that:
"First, that no piece of evidence in the Crown case lying outside the direct visual identification by Miss Sommer could be of itself sufficient to convict the appellant; secondly, that such evidence as was to hand concerning the balaclava and the pinch bar might, if accepted by the jury, afford some circumstantial evidence tending to strengthen the reliability of that critical direct and visual identification of the appellant by Miss Sommer; thirdly, that even were the evidence concerning the balaclava and the pinch bar to be accepted, it was necessary nevertheless to bear carefully in mind past demonstrated cases of mistaken identification, and the consequent need to be particularly careful, because of particular considerations pointed out carefully to the jury by the trial Judge, before finally deciding to accept as reliable, and to act upon, the critical direct and visual evidence of identification coming from Miss Sommer. There were, of course, the additional considerations that the appellant, when first questioned about his ownership of a balaclava or a pinch bar, had denied that he owned either; when in fact he owned one of each; and that both the balaclava and the pinch bar had been the subject of evidence which, if accepted by the jury, established that they were similar to the balaclava worn, and to the pinch bar wielded, by the assailant of Miss Sommer.
We observe, finally, that no objection was taken at trial upon the basis now advanced by the appellant. As we have earlier remarked, the appellant was represented at trial by senior counsel of great experience in the conduct of criminal cases. That capable and experienced senior counsel, having the advantage of having seen and heard the delivery of the charge to the jury, did not think it necessary to seek further directions as to the matters now propounded by the appellant, strengthens us in the conclusion to which we have come: namely, that the matters of which present complaint is made by the appellant were sufficiently covered both in law and in fact by the directions to the jury."
It was also considered that the directions given fulfilled the applicable requirements of s 116 of the Evidence Act. It was observed that no application had been made under s 165(2) of that Act as to the giving of further directions as to the unreliability of this evidence.
In the result the case advanced on this application, that this evidence ought not have gone to the jury, may not be accepted. The applicant's objection to the receipt of that evidence was dealt with both at trial and on appeal. It was part of the circumstantial case on which the Crown relied in respect of things which Mr Wilson had conceded belonged to him. It was accordingly proper for that evidence to be considered by the jury and was not so unreliable or prejudicial that it necessarily had to be excluded as a matter of fairness.
In all of those circumstances I consider that this aspect of Mr Wilson's application also does not raise the necessary sense of unease or disquiet required, which must arise before the discretion to order an inquiry can be exercised. No special facts or circumstances justifying the further inquiry sought have been established.
Conclusion
In the result, Mr Wilson's application must be dismissed.
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Decision last updated: 19 December 2014
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