Bradshaw v Tasmania
[2009] TASSC 39
•2 June 2009
[2009] TASSC 39
CITATION: Bradshaw v Tasmania [2009] TASSC 39
PARTIES: BRADSHAW, Benjamin John
v
STATE OF TASMANIA
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: 729/2008
DELIVERED ON: 2 June 2009
DELIVERED AT: Hobart
HEARING DATE: 11 May 2009
JUDGMENT OF: Evans, Blow and Porter JJ
CATCHWORDS:
Criminal Law – Evidence – Identification evidence – Warning advisable or required – Generally – Inanimate objects – Clothing and mask not positively identified – Not "identification evidence" as defined.
Evidence Act 2001 (Tas), s116.
Aust Dig Criminal Law [2946]
REPRESENTATION:
Counsel:
Appellant: G A Richardson, P D Sullivan
Respondent: D G Coates SC
Solicitors:
Appellant: Paul Sullivan
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 39
Number of paragraphs: 22
Serial No 39/2009
File No 729/2008
BENJAMIN JOHN BRADSHAW v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
BLOW J
PORTER J
2 June 2009
Order of the Court
Appeal dismissed.
Serial No 39/2009
File No 729/2008
BENJAMIN JOHN BRADSHAW v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
2 June 2009
I agree with the reasons for judgment of Blow J and, like him, would dismiss the appeal.
File No 729/2008
BENJAMIN JOHN BRADSHAW v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
2 June 2009
At about 2.45am on Friday 8 June 2007, Mr Jan Harrington was asleep in bed in his house in Queenstown when someone started knocking repeatedly on his front door. Eventually he got up, swore at his visitor, and opened the door. He was confronted by a masked man wielding a long-bladed knife, who asked him, "You got guns, cunt?" That enquiry might have been inspired by a sign on Mr Harrington's front door which read, "This House Guarded by shotgun 3 Nights per Week you guess which 3!" Mr Harrington tried to shut the door, but the masked man was pushing it from the other side, and inserted the knife between the door and the jamb so as to prevent it from locking. Mr Harrington managed to get the door closed, whereupon the masked man said, "You are dead cunt, you're dead." The masked man then left.
On the basis that he was the masked man, the appellant, Benjamin Bradshaw, was charged with attempted armed robbery, tried and convicted. This is an appeal against his conviction on that charge.
There are two grounds of appeal. The appellant contends that the verdict of the jury was "unsafe and unsatisfactory". He also contends that the learned trial judge erred by not giving the jury a direction in accordance with the Evidence Act 2001, s116, as to the need to exercise caution in relation to identification evidence.
Was the verdict "unsafe and unsatisfactory"?
There was no evidence from any witnesses identifying the appellant as the masked man, or saying that he looked or sounded like the masked man. There was no fingerprint evidence or scientific evidence, such as DNA evidence, that tended to incriminate the appellant. There was no evidence of any admissions by him. He was arrested in Queenstown about 45 minutes after the incident I have described, but there was evidence that he denied that he was the offender. The case against him was based entirely on circumstantial evidence. The Crown case was that he drove alone to Mr Harrington's house in a white Falcon flat tray truck belonging to a man named Adam Rose, attempted to rob Mr Harrington, and then drove in the same vehicle to Mr Rose's house, where he was arrested. There were two fundamental issues that the jury needed to consider — whether the masked man was attempting to rob Mr Harrington, and whether the appellant was the masked man. The appellant contends that the evidence against him in relation to those issues was so weak that his conviction should be quashed.
The test to be applied when considering whether a conviction was "unsafe or unsatisfactory" was explained by Mason CJ in Chidiac v R (1991) 171 CLR 432 at 442 – 443 as follows:
"It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted … In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused …".
In M v R (1994) 181 CLR 487 at 494 – 495, Mason CJ, Deane, Dawson and Toohey JJ said the following as to the role of an appellate court in relation to an appeal on the basis that a jury's verdict was unsafe or unsatisfactory:
"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, 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 (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461-462)."
The circumstantial evidence that weighed against the appellant on the identity issue can be summarised as follows:
· Mr Harrington said he thought the masked man was wearing a greeny-coloured bush shirt, like a flannelette shirt. When arrested, the appellant was wearing a green camouflage jacket. Mr Harrington was shown that jacket and gave evidence that it could have been what the man was wearing.
· Mr Harrington said that, after the incident he described, he heard a car start up, went to the front door, opened it, and saw a "white Falcon flat tray" drive off.
· Mr Harrington's girlfriend, Aleisha Sullivan, gave evidence that she looked out of a window after Mr Harrington came back from the door. She said she saw a white flat tray ute, that she saw someone walk towards the ute, that that person was wearing a bulky jacket, that something was covering that person's face, and that that person got into the car and drove off.
· One of Mr Harrington's neighbours, Kathleen Dennis, gave evidence that she heard a car pull up at around 3am on the morning in question, that she heard the car take off, that she then got up to have a look out, and that she saw a car. She said she recognised the noise of the car and that, from the noise, she was able to say it was Adam Rose's car. She described it as a white Ford ute. She said it was parked on Mr Harrington's side of the street.
· A police officer, Sen Const Bryce, gave evidence that he went to Mr Rose's home at about 3.30am on the morning in question and saw there a white Ford flat tray ute. He found a face mask inside the driver's side foot-well. Mr Rose was wearing a mining uniform that was "fluorescent from the chest up". The appellant was present, wearing the camouflage jacket.
· Mr Harrington was shown a photo of the mask found in the vehicle. He said the mask in the photo "could have been" the mask worn by his visitor.
· Mr Raymond Bell, the emergency services and security officer for Barrack Gold at the Henty Mine gave evidence that the appellant and Adam Rose both worked as employees at that mine. He was shown the mask that Sen Const Bryce had found. He said it was a mask and goggle combination used "by the mines", that such masks are used frequently, that workers can remove them from the mine site all too easily, and that there is no system for the tracking of any individual mask issued from the mine's store.
· Mr Rose gave evidence that he owned a white Ford utility, that more often than not he left it unlocked with the keys in it, that the appellant frequently used it, and that the appellant had permission to borrow it without telling him. He said the appellant visited him at about 3.30am on the morning in question. He said that he had not been anywhere before the appellant visited him. He said that he had driven the appellant first to the appellant's home, and then to another house for the purpose of buying cannabis, before he and the appellant returned. He said they had just come in the door when the police arrived. He did not expressly state that he had not visited Mr Harrington's house that night, but his evidence was inconsistent with him having done so.
· Mr Harrington gave evidence that he knew Mr Rose pretty well, and that he was fairly certain that it was not Mr Rose at his door.
· Mr Rose was shown a photo of the face mask. He said that such masks were pretty common, that he had used one at work, that he had taken home a piece of one, and that he had once seen the appellant riding around on a motor cycle wearing one. He said he did not notice anything like the face mask depicted in the photo in his vehicle when he was driving it on the morning in question.
There were various aspects of the evidence that could be considered favourable to the appellant, including the following:
· No-one gave evidence positively identifying the camouflage jacket worn by the appellant at the time of his arrest as a garment worn by the masked man, or by the person that Miss Sullivan saw leaving the area of the alleged crime. In fact, there was a degree of inconsistency between Mr Harrington's description of the masked man's shirt ("I thought it was greeny-coloured bush shirt sort of thing … like a flannelette shirt") and the camouflage jacket that the appellant was wearing when arrested.
· There was no evidence positively identifying the face mask found in Mr Rose's vehicle as the one worn by the masked man. When Miss Sullivan gave evidence, she was not shown the mask found in the vehicle, or even a photo of it. She said only that the person she saw leaving the area had "something covering the face", and that she did not know what was covering the face.
· Mr Harrington gave evidence that he knew the appellant. He said he had known him a fair while, but not particularly well, that he had played a game of 8-ball with him once a fair while ago, and that he would talk to him if he saw him in the street. However he said he did not recognise the voice of the masked man. He later said that he did not recognise the person at the door.
· No-one gave evidence of seeing the appellant driving any vehicle.
· Mr Harrington said that he did not see the person with the knife get into the white Falcon flat tray vehicle. Miss Sullivan gave evidence of seeing a person get into the vehicle, but said nothing about that person carrying a knife. Mrs Dennis said she did not see anyone in the vehicle that she observed.
· Mr Rose said he was not sure if the appellant had used his vehicle on the morning in question.
· If the appellant had driven that vehicle that morning without seeking Mr Rose's permission, there was no reason for him to have woken Mr Rose and asked him to drive him to his home. The evidence that he requested Mr Rose to drive him therefore tended to suggest that he had not earlier driven the vehicle alone.
· Mr Rose was unable to recall where the keys to his vehicle were before he and the appellant set out for the appellant's home. He said there was always a spare set of keys inside his home.
· Sen Const Bryce gave evidence that, when he arrived at Mr Rose's home, he noticed that his vehicle's bonnet was warm and that heat was emanating from the grille. However the warmth of the engine was consistent with Mr Rose's evidence of having driven shortly before the arrival of the police officers, and did not tend to establish that the appellant had driven the vehicle at about 2.45am.
There was no DNA evidence in relation to Mr Harrington's door, Mr Rose's vehicle, or the mask found in it. However the absence of any such evidence does not tend to suggest the appellant's innocence. It is a neutral factor. There was evidence that a handprint was found on Mr Harrington's door, and that it did not match the appellant's hand. Since there was no evidence that tended to suggest that that handprint had been left by the masked man, that evidence was not exculpatory either.
Sen Const Bryce gave evidence that, when he saw the appellant at Mr Rose's home, his facial area was rather damp, as if he had been sweating rather profusely. Counsel for the appellant submitted that such dampness could be attributed to the smoking of cannabis. I do not think it is necessary to consider that proposition. In my view, evidence of facial dampness at about 3.30am could not have any probative value in relation to the question of whether the appellant was the masked man who visited Mr Harrington some 45 minutes earlier.
The jury were obliged to find the appellant not guilty unless they were satisfied beyond reasonable doubt that he was the masked man. Since the evidence as to his identity was entirely circumstantial, they were obliged to find him not guilty unless the evidence that they accepted was consistent with no rational hypothesis other than the hypothesis that the appellant was the masked man: Chamberlain v R [No 2] (1984) 153 CLR 521. It was open to the jury to accept all of the evidence that tended to establish that the appellant was the masked man. It was necessary for the jury to consider whether the masked man might have been Mr Rose or some other person. The alleged crime was said to have occurred at 2.45am on a winter's night in Queenstown. It was open to the jury to infer that not many people would have had cause to be up and about there at that hour. The evidence of Mrs Dennis that she recognised the sound of Mr Rose's vehicle was unchallenged and uncontradicted. That vehicle was found 45 minutes later with a mask in it. Mr Harrington said that mask could have been the mask worn by his visitor. The appellant could have obtained such a mask in the course of his work. Mr Harrington said he was fairly certain the masked man was not Mr Rose. Mr Rose's distinctive fluorescent garment was inconsistent with Mr Harrington's description of a greeny-coloured bush shirt like a flannelette shirt. It was open to the jury to accept Mr Rose's evidence as to his movements, and to be satisfied that he had not been to Mr Harrington's house. The appellant had permission to use Mr Rose's vehicle. The keys were sometimes left in it. It was open to the jury to infer that it was most unlikely that some other person would have used the vehicle without permission, returned it, and disappeared into the night. Having regard to the state of the evidence that tended to incriminate the appellant, I do not think that the jury, acting reasonably, should have entertained a reasonable doubt as to the identity issue. I think it was reasonably open to them to be satisfied that the only rational hypothesis consistent with the evidence that they accepted was that the appellant was the masked man.
There remains the issue of whether there was an attempted robbery at all. In my view there can be only one rational explanation for a masked man armed with a long-bladed knife knocking repeatedly on somebody's door at 2.45am and, when the door was opened, swearing and inquiring about the householder's possessions. The only rational explanation is that the visitor was trying to rob the householder. I do not think that the jury, acting reasonably, should have entertained a reasonable doubt as to whether the armed masked man was attempting to rob Mr Harrington. The ground asserting that the verdict was unsafe and unsatisfactory must therefore fail.
Was a warning about identification evidence required?
Although this was a case about the identity of the masked man, it was not a case about the identification of the masked man. None of the witnesses gave evidence identifying the appellant as the masked man. None of them gave evidence that the masked man, or the person who got into the white vehicle, resembled the appellant.
The learned trial judge did not give the jury a direction in accordance with the Evidence Act, s116. Counsel for the appellant submitted to us that such a direction should have been given. The section reads as follows:
"116 Directions to jury
(1) If identification evidence has been admitted, the judge is to inform the jury —
(a)that there is a special need for caution before accepting identification evidence; and
(b)of the reasons for that need for caution, both generally and in the circumstances of the case.
(2) It is not necessary that a particular form of words be used in informing the jury."
That section only applies when "identification evidence" has been admitted. That term is defined in the Evidence Act, s3(1), as follows:
"identification evidence" means evidence that is —
(a) an assertion by a person to the effect that a defendant was, or resembles, visually, aurally or otherwise, a person who was, present at or near a place where —
(i)the offence for which the defendant is being prosecuted was committed; or
(ii)an act connected to that offence was done —
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
(b) a report, whether oral or in writing, of such an assertion".
There was no evidence that the appellant was a person who was present at or near Mr Harrington's home. There was no evidence that the appellant resembled, visually, aurally, or otherwise, a person who was present at or near Mr Harrington's home. Therefore there was no "identification evidence" as defined. Therefore s116 did not apply, and the learned trial judge was not required by that section to do anything.
Section 116 was enacted because evidence as to the identification of individuals can be much less reliable than it seems. In Domican v R (1992) 173 CLR 555 at 561, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:
"… the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue."
It was against that background that s116 was enacted.
Evidence as to the identification of inanimate objects can be just as seductive and unreliable as evidence as to the identification of people. See, for example, R v Clout (1995) 41 NSWLR 312. The Evidence Act, s165, requires a judge, if requested, to give a warning similar to a s116 direction in relation to "evidence of a kind that may be unreliable". No such warning was requested at the appellant's trial.
The evidence of Mrs Dennis as to the identification of Mr Rose's vehicle was unchallenged. The appellant's jacket and the face mask found in Mr Rose's vehicle were not positively identified as items worn by the man seen by Mr Harrington. The evidence about them did not have the sort of seductive quality that might make a warning necessary to avoid a miscarriage of justice. The learned trial judge did not give the jury any direction or warning as to the dangers of accepting the evidence in relation to any particular inanimate object but, because of the circumstances I have outlined, I do not think there was any need for him to do so. The ground of appeal relating to identification evidence must also fail.
Conclusion
I would dismiss the appeal.
File No 729/2008
BENJAMIN JOHN BRADSHAW v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
2 June 2009
I have read the reasons for judgment of Blow J. I agree with those reasons and would also dismiss the appeal.
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