Brett Audsley v The Queen
[2018] VSCA 162
•26 June 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0128
| BRETT AUDSLEY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 June 2018 |
| DATE OF JUDGMENT: | 26 June 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 162 |
| JUDGMENT APPEALED FROM: | DPP v Audsley (Unreported, County Court of Victoria, Judge Patrick, 19 December 2016 (Conviction), 18 May 2017 (Sentence)) |
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CRIMINAL LAW — Appeal — Conviction — Aggravated burglary, armed robbery, recklessly causing serious injury and assault — Identification evidence — Offender identified by co-offender — Judge warned jury about dangers of identification evidence —Whether judge sufficiently identified ‘significant matters’ going to reliability — Evidence of making of telephone calls — Whether wrongly admitted — Whether verdict unsafe and unsatisfactory — Leave to appeal refused — Jury Directions Act 2015 ss 35, 36, 37 — Domican v The Queen (1992) 173 CLR 555.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Traczyk | Simon Parsons & Co |
| For the Crown | Mr C B Boyce SC with Mr J Gullaci | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons of Priest JA. For the reasons which his Honour gives, I too would refuse leave to appeal.
PRIEST JA:
Introduction
Dominic and Colleen Mammone, and their children Stacey and Paul, lived and worked on a farming property in Clyde, a semi-rural suburb south-east of Melbourne. Since the early 1960s, Dominic Mammone had run a vegetable growing business on the property. It was also where the family home was situated.
As long ago now as 10 January 2009, three male intruders entered the Mammone family home. The evident intention of the three intruders was to steal, and, if necessary, to use force or violence to do so. In the course of the terrifying events that followed, Dominic Mammone was hit on the head with a hammer, causing a compound depressed fracture of the skull. That vicious blow changed his life forever, leaving him with serious permanent disabilities. His wife, Colleen Mammone, and his daughter, Stacey Mammone, were robbed and subjected to violence of varying degrees, Stacey at one stage being struck to the head, causing her to fall to the ground.
It was not disputed at trial that the offending had taken place, the central issue in the applicant’s case being whether he was one of the three offenders.
Throughout November and December 2016, the applicant and Jason Parks faced trial in the County Court on charges arising out of the offences perpetrated against the Mammone family. On 19 December 2016, the jury convicted both the
applicant and Parks of aggravated burglary[1] (charge 1); common assault[2] (charge 2); recklessly causing serious injury[3] (charge 3); and armed robbery[4] (charge 4). Subsequently, on 18 May 2017, the trial judge imposed a total effective sentence upon the applicant of six years and six months’ imprisonment, with a non-parole period of six years.[5]
[1]Crimes Act 1958, s 77(1). The maximum penalty is 25 years’ imprisonment.
[2]Common assault is an offence at common law. By virtue of s 320 of the Crimes Act 1958, it carries a maximum penalty of five years’ imprisonment.
[3]Crimes Act 1958, s 17. The maximum penalty is 15 years’ imprisonment.
[4]Crimes Act 1958, s 75A(1). The maximum penalty is 25 years’ imprisonment.
[5]Four years and three months of the total effective sentence were ordered to be served cumulatively upon a sentence imposed on the applicant on 14 November 2016 by another judge for subsequent offending. A new global non-parole period of six years was imposed, commencing on 14 November 2016.
The proceedings against the applicant to this point have had a somewhat tortured history. Indeed, the applicant was previously convicted of the offences which are the subject of the instant case. Thus, on 1 November 2013, the applicant was found guilty of the four charges by a previous jury in the County Court, and, on 2 December 2013, was sentenced by the trial judge to a total effective sentence of seven years and three months’ imprisonment, with a non-parole period of five years. Subsequently, however, on 9 October 2014, those convictions were quashed by this Court and a new trial was ordered.[6]
[6]Audsley v The Queen (2014) 44 VR 506 (Maxwell P, Weinberg and Priest JJA).
A new trial accordingly commenced in the County Court on 27 July 2015; but, after five weeks of evidence, the jury was discharged as a result of a jury matter (‘the first trial’).
A further re-trial commenced on 2 May 2016; but, after four weeks of evidence, the judge was unable to continue due to health reasons, and the jury was discharged (‘the second trial’).
On 7 November 2016, a third new trial commenced; and, on 19 December 2016, the jury returned the convictions set out above (’the third trial’).
In this Court, the applicant initially sought leave to appeal against both conviction and sentence. At the outset of the hearing of the application for leave to appeal against sentence, however, following an indication by the Court that, rather than being manifestly excessive, the sentence imposed appeared to be manifestly inadequate, counsel for the applicant sought, and was granted, leave to abandon the application. Although, as a result, the sentence imposed by the trial judge was left undisturbed by this Court, it should not however be thought that the sentence properly reflected the objective seriousness of the applicant’s offending. Indeed, a significantly more severe sentence was warranted.
As to conviction, the applicant relies on three grounds as follows:
1. The learned trial judge failed to adequately direct the jury as to identification evidence.
Particulars
The learned trial judge:
(a)simply repeated some matters raised by Counsel undermining reliability of the identification evidence and failed to direct the jury they were bound to take those matters into account;
(b)failed to isolate and specify the evidence relating to —
(i)other instances where [Michael Turner] stated he had met the Applicant;
(ii)the opportunity for [Michael Turner] to observe the Applicant on any occasion;
(iii)the different versions of what was said and done by [Michael Turner] at any photoboard identification;
(iv)the different versions as to the lapse of time from offending to photoboard identification;
(v)the evidence relating to the effects of drug and alcohol ingestions and lack of sleep on the ability to accurately recall;
(vi)the evidence relating to suggestions made by the police to [Michael Turner] that the applicant was the offender prior to any identification [Michael Turner] had made;
(c)failed to direct the jury that in considering the identification evidence, the other ‘circumstantial’ evidence implicating the [applicant] had to be disregarded and that unless satisfied beyond reasonable doubt that the identification was reliable, the jury must acquit.
2. The convictions are unsafe and unsatisfactory.
Particulars
The identification evidence was so unreliable that no reasonable jury could have accepted it.
3. The learned trial judge wrongly admitted irrelevant and highly prejudicial evidence against the applicant.
Particulars
The evidence in question related to the timing of three telephone calls between the [applicant], Jason Parks and [Michael Turner], which took place on 10 January 2009 at 10:09, 10:11 and 10:19.
Each ground is bereft of merit. The application for leave to appeal against conviction must be refused. My reasons for those conclusions follow.
Overview of the evidence
As I have indicated, the present application is concerned with the convictions from the third trial, the juries empanelled in both the first trial and the second trial having been discharged without verdict. Conveniently, however, much of the prosecution evidence in the third trial was presented by playing of the recorded evidence of witnesses given either at the first or the second trial.
The evidence revealed the following.
A little after 11:00 am on 10 January 2009, three men entered the Mammone family home situated in Clyde. The prosecution case was that the three men were the applicant, Jason Parks (‘Parks’) and Michael Turner (‘Turner’). At the time of their entry, Dominic and Colleen Mammone, and their adult daughter, Stacey Mammone, were inside. Paul Mammone, their adult son, was working in a nearby shed on the property.
Stacey Mammone heard a car ‘on the driveway’. She went to the laundry door, and was confronted by ‘three males standing at the door’. The men were yelling, ‘Where’s Paulie?’. One man was wearing a ‘black hoodie with a zip past his mouth’, ‘zipped up past his nose’, so that Stacey could only see his eyes. Another man was wearing orange and black ‘motorbike gloves‘, but she was unsure whether this was the same man who was wearing the black hoodie. One male had ‘big teeth’. She was not sure which, but one man had a bar with ‘black tape on it’, and another was holding a hammer.
Thinking that the males ‘were just Paul’s friends being silly’, Stacey started to call her brother Paul on her mobile telephone. The three men entered the house behind her (charge 1 — aggravated burglary). They were yelling, ‘no phones’. Stacey was then hit to the temple on the right side of her head, but she was unable to say whether she was hit with a fist or something else. After she was hit, Stacey was thrown by her hair ‘against the wall’ (charge 2 — common assault).
Having heard noise, Colleen Mammone walked into the kitchen. She saw her daughter kneeling on the floor. A man had his hand on her head. All three of the intruders were in the kitchen. Two of the males, Colleen said, had ‘like a skeleton jumper and a hood and a mask over their faces’, and ‘the other one had a grey hoodie on over [the] top of his head, but his face wasn’t covered’. Colleen saw that ‘one had a knife and one had a hammer’, but she did not know what the other male had. The men again asked where Paul was. They were told that he was working. The men then demanded money.
Dominic Mammone had been just outside the back door of the house, putting on his Blundstone boots preparatory to commencing work. He then saw a man with a hammer standing in front of him. According to Dominic, the man had a beard and was ‘fatter’ than the other ‘skinny’ people in the house. He ‘had a coat on and he had the hammer in his hand’. The man said, ‘Get inside, get inside’. He then hit Dominic to the top of the head with the hammer, causing Dominic to ‘collapse’. As I have indicated, the blow caused a compound depressed fracture of the skull (charge 3 — recklessly causing serious injury).
I pause to note that, as a result of the injuries he suffered, Dominic Mammone was airlifted to hospital by helicopter. He required surgery to relieve pressure on his brain. Initially, he was paralysed through the right half of his body and could not speak. Mr Mammone needed rehabilitation to learn to walk and talk again, but he has been left with ongoing disabilities, including an inability to use his right hand (he being right-handed); a speech impediment; memory difficulties; and confusion.
In response to the demands for money, Colleen Mammone and Stacey Mammone, accompanied by one or more of the intruders, went to various rooms getting cash and handing it to the men (charge 4 — armed robbery). Having taken the cash, the three intruders left the home and drove away.
None of the Mammone family was able to identify their assailants.
Some months after the attack, however, on 24 September 2009, Turner made a statement to police describing his own involvement in the offences, and nominating the applicant and Parks as the other two offenders. Turner was subsequently given an undertaking — inaccurately referred to in different parts of the trial as an ‘indemnity’[7] — with respect to his evidence by the Director of Public Prosecutions.
[7]See Public Prosecutions Act 1994, ss 22(1)(ca) and 22(1A), and footnote 8 below.
On 17 February 2010, the applicant was arrested and charged, giving a ‘no comment’ record of interview.
Parks was arrested and charged on 25 February 2010. He also made a ‘no comment’ record of interview.
On 2 March 2010, Turner identified the applicant from a police photo board. His was the sole evidence of identification available to the prosecution.
Ground 1 — Directions on identification evidence
Whether the applicant was one of the three men who invaded the Mammone family home was, as I have indicated, the principal issue in the applicant’s trial. Hence, the reliability of Turner’s evidence identifying the applicant was pivotal.
Before turning to the criticisms of the trial judge’s directions on identification advanced under cover of the first ground, therefore, it is necessary to refer to the more important aspects of Turner’s evidence at trial.
The identification evidence
Turner gave evidence that he was the recipient of an undertaking by the Director of Public Prosecutions.[8]
[8]Under s 22(1)(cb) of the Public Prosecutions Act 1994, the Director may ‘give an undertaking to a person that an answer given, or statement or disclosure made, by that person in a specified proceeding will not be used in evidence against that person in any criminal proceeding, other than a proceeding in respect of the falsity of evidence given by that person’; and s 22(1A) permits such undertaking to ‘be subject to such conditions (if any) as the Director considers appropriate’.
He said that he had known Jason (‘Jase’) Parks since 2008. Turner socialised with Parks until January 2009, and would visit him at his home in Patterson Lakes and at his panel-beating factory, also situated in Patterson Lakes.
Turner gave evidence that he was involved in a ‘run-through’ or robbery of the Mammone family home at Clyde on ‘a Saturday morning’. In the days leading up to the robbery, Turner had been socialising with Parks at his house and had been using ‘Ice and speed’. On the morning of the robbery, Parks drove Turner home — ‘the sun was just coming up’ — they having socialised the night before.
After Turner had been dropped off at his address in Frankston, Parks contacted him by telephone, saying ‘he needed a hand with something’. (Call records suggest that Parks called Turner three times.[9]) They arranged to meet at the end of Turner’s street. Parks was in the front passenger seat of ‘a silver Ford’. Turner was introduced to ‘Brett’, the driver of the car. The two of them shook hands, and Turner got into the back of the car.
[9]See [84] et seq below.
In the car, there was an ‘offer to go and do a run through’. Brett told Turner that ‘there was a bloke feeding Brett’s missus G’ (an illicit drug) and that he was ‘rooting her’. Turner was told that this man was a ‘dealer’ and there would ‘probably be about 200 grand roughly, give or take, drugs and money value’. Brett told Turner that the dealer was named ‘Paul’, and that Paul was going to ‘cop a flogging of his life time’.
Turner gave evidence that he, Parks and Brett snorted ‘speed’ whilst in the car. He said that Brett was wearing a black ‘skeleton zip-up hoodie’, and that, before entering the property, Brett zipped the hoodie up, covering his face and head. Parks was wearing the same ‘skeleton sort of a hoodie’, and put on a pair of black and orange ‘Harley gloves’. Turner was wearing a ‘hoodie’ which was ‘dark grey’, and a dark blue or black cap. He noticed a ‘bit of conduit’ in the car. It was black ‘electrical piping’, made out of copper wires and ’thick rubber’ and it was ‘semi-flexible, pretty rigid’.
When they arrived at the Mammone property, they forced open the front gates. Brett and Jase entered the house, and Turner stayed at the door. When they went in the door of the house, Brett said, ‘Where the fuck is Paul?’. Turner heard a girl shriek and entered. He saw the girl on the ground. Jase ‘had his foot on top of her hand to stop her picking up [a] knife’. Turner said that he did not have a weapon, but ‘Jase had the conduit’. Jase handed Turner the conduit and picked up the knife.
Turner saw an older woman, and then he saw an old man ‘dressed like a farmer’ putting on his boots at the door. He told the old man that ‘it was in his interest to go back inside’. The old man laughed at him and swung a boot at Turner’s head. Turner said that he pushed the old man, and he ‘was sitting there looking at him face to face and all of a sudden … Brett just come up behind him and just clocked him with a hammer’ — Brett ‘hit him over the top of the head with a hammer’. The old man’s ‘eyes rolled in the back of his head and he just face planted’ (that is, he fell to the ground face first).
They then saw a man, ‘Paul’, on a ‘quad bike’ outside. Brett yelled out to the man, ‘You’re fuckin dead. I’m gonna shoot yah’. Paul then headed for a farming shed.
Turner said that he and Jase then went further into the house with the girl, who ‘pulled out some envelopes from a drawer’. (The envelopes contained cash.) He ‘ended up with one or two’. Turner and Jase then dragged each other out the door with Brett following. They went straight to the car and drove away. Turner later used some of the money from the envelopes to buy clothes.
A couple of days after the robbery, Turner went to Parks’ factory a couple of times. He saw Brett there ‘once or twice’.
Turner gave evidence that more than a year after the robbery, on 2 March 2010, he attended the St Kilda Road Police Station at the request of police. He was shown a group of photographs in a photo board and identified a photograph of Brett.
Under cross-examination, Turner agreed that he had been using ‘ice’ and ‘speed’ in the days leading up to the robbery, and it was possible that he had been awake for five nights before the robbery. He said that in the week prior to the robbery, he had consumed a ‘couple of grams’ of ‘speed’ and approximately a gram and a half of ‘ice’. Turner said that, on the morning of the robbery, he was ‘awake’ and ‘coherent’.
Turner said that when he first met Brett, he was introduced only as ‘Brett’. He did not learn of Brett’s surname until the trial. Turner agreed that when he first spoke to his lawyers about the robbery, he did not provide any names. He also agreed that in his record of interview he told police that he was not prepared to name any co-offenders. Police may have mentioned to him that Brett was a suspect before he had said anything about Brett. He agreed that at the committal, in 2010, he had given evidence that the police had mentioned the name Brett before he had. Turner was told about evidence of telephone intercepts before he made a statement implicating Brett. He had also heard that police had a cigarette lighter with his DNA on it before he made his statement, and that this information may have come through police.
During cross-examination, Turner also agreed that on the way to the robbery he could not see the driver’s face. He said he saw the driver’s face when he shook hands with him, and while they were snorting ‘speed’ and talking in the car. Turner saw his face for possibly ‘no more than one or two seconds’. He agreed that if the day of the robbery had been the only occasion on which he had seen the driver, he possibly would have had some difficulty recognising him on a later occasion. But he saw him at the factory within a week or two later.[10]
[10]See also [72] below.
Turner said that, through his father, he became aware of the possibility of securing an indemnity before he made a statement to police. He said that he was asked to look at photographs within a week or two after his statement.
Expert evidence
In the course of the trial with which the present application is concerned (the third trial), the recorded evidence of two expert witnesses who had given evidence in the first trial was played to the jury.
Martin Jackson, a clinical neuropsychologist, gave evidence that ‘methamphetamine is a brain stimulant’. In low levels, ‘ice’ makes the brain produce dopamine, which aids concentration; but, if ‘you take too much, you go over the edge, then you start … getting agitated and restless and … really being prepared [to] flee or fight’, because of the production of noradrenaline. When a person gets to the ‘fight and flight’ stage, he or she loses the ability ‘to concentrate very well’. He said, ‘You have trouble focusing on things and because of that, you then also have trouble focusing long enough to lay down proper memories about what’s going on’. Mr Jackson also gave evidence that sleep deprivation ‘has a major impact on our cognitive functions’. A sleep deprived person cannot concentrate very well and thus cannot store memories. Such a person may ‘also have what are called errors of commission, which means they remember to do something, but they do the wrong thing’. Sleep deprivation, alcohol and drugs may all impair the ability to lay down memory and to recognise a face.
Mr Jackson also gave evidence concerning the ‘displacement’ effect, one aspect of which is that a person may remember a face from a particular occasion but associate it with a different event. Such an error of context is more likely to arise if, on the occasions that a person had seen a particular face, the person had ingested alcohol, methamphetamine, and marijuana, and had been sleep deprived.
Warrick Brewer, also a neuropsychologist, gave evidence. When asked how the brain operates after a person has ingested large amounts of drugs and alcohol, he said:
Well again it depends on the mix of drugs and alcohol. For some people some drugs and some moderate levels of alcohol stimulate it, it increases the efficiency and the amount of energy we've got to essentially absorb information. For amphetamines it’s, for some people they get wired, they are able to absorb all sorts of information but they may not necessary —necessarily process that efficiently. But again it’s different for each person.
And when asked about the combined impact of drugs, alcohol and sleep deprivation, he said:
[T]he impact combined, is as variable as the number of individuals that you’d be assessing. Speed will generally be associated with reduced sleep. Some people who are able to go for days without [scil, with] reduced sleep and their brain is able to absorb all sorts of information that you — that they otherwise wouldn’t be able to. Other people in street language, it wipes them out, and they don’t remember anything.
Prescribed directions on identification evidence
Although the applicant’s counsel at trial seemed to think that the common law still governed jury directions in cases of disputed identification, common law rules had been abolished more than a year previously by s 37 of the Jury Directions Act 2015 (‘JDA’).[11] Thus, s 37(1) of the JDA provides that, except as provided by Division 4 of Part 4 (ss 35, 36 and 37), ‘a trial judge is not required to direct the jury regarding the unreliability of identification evidence’; and s 37(2) provides that any rule of the common law to the contrary is abolished.
[11]Clause 1(1) of Schedule 1 of the JDA provides that: ‘A provision of this Act (other than Division 1 of Part 5) applies to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which that provision comes into operation’. The JDA provisions governing identification evidence came into operation, therefore, on 29 June 2015. For the purposes of the instant case, the trial commenced when the applicant was arraigned in the presence of the jury panel on 9 November 2016.
By s 35 of the JDA, identification evidence is defined as follows:
35 Definition
In this Division—
identification evidence means an assertion by a person, or a report of an assertion by a person, to the effect that—
(a)he or she recognises, or does not recognise, a person or object as the person or object that he or she saw, heard or perceived on the relevant occasion; or
(b)the general appearance or characteristics of a person or object are similar, or are not similar, to the general appearance or characteristics of the person or object that he or she saw, heard or perceived on the relevant occasion—
and includes—
(c)visual identification evidence within the meaning of section 114 of the Evidence Act 2008; and
(d)picture identification evidence within the meaning of section 115 of the Evidence Act 2008.
Section 36 of the JDA prescribes the directions permissible in the case of identification evidence:[12]
[12]Although not presently relevant, s 115(7) of the Evidence Act 2008 also sets out directions that must be given at the request of the accused with respect to picture identification evidence.
36 Direction on identification evidence
(1)The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on identification evidence.
(2)In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify the significant matters that may make the evidence unreliable.
(3)In giving a direction referred to in subsection (1), the trial judge must—
(a) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it; and
(b) inform the jury of the significant matters that the trial judge considers may make the evidence unreliable; and
(c) inform the jury that—
(i)a witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken; and
(ii)the mistaken evidence of a witness may be convincing; and
(d) if relevant, inform the jury that a number of witnesses may all be mistaken; and
(e) if relevant, inform the jury that mistaken identification evidence has resulted in innocent people being convicted.
It will be noticed that s 36(1) provides that either counsel for the prosecution or defence may request under s 12[13] that the trial judge direct the jury on identification evidence; and s 36(2) provides that in so doing counsel must specify the significant matters that may make the evidence unreliable.
[13]Section 12 is in the following terms:
12 Legal practitioners must request that particular directions be given or not given
After the matters in issue have been identified in accordance with section 11, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of—
(a)the matters in issue; and
(b)the evidence in the trial relevant to the matters in issue.
Further, s 36(3) provides that, in giving the directions requested by counsel, the judge must warn the jury of the need for caution in determining whether to accept the evidence (and the weight to be given to it), and inform the jury of other specified things, including the significant matters that the trial judge considers may make the evidence unreliable.
The submissions in this Court
In the written case, counsel for the applicant submitted that, in her charge to the jury, the trial judge gave a ‘bare bones’ direction concerning the dangers attending identification evidence. It was submitted that Turner’s evidence was ‘confusing, vague, contradictory’ and of such a nature that the judge ‘should have isolated and identified it rather than leaving it to the jury to work out’. In particular, it was submitted that the judge should have directed the jury on the influences tainting Turner’s evidence of identification, including his ingestion of drugs; the circumstances of the meeting with the driver of the car; suggestions by police and others that the applicant was a suspect; and the circumstances of the identification of the applicant from the photo board. It was contended that the judge should have emphasised the ‘dangers of suggestibility’ when selecting the applicant’s photograph, given that the police had told Turner that ‘Brett’ was a suspect. Further, so it was submitted, the judge ought to have directed the jury that other circumstantial evidence ‘could not be used in evaluating the reliability of the identification evidence’. Finally, it was submitted that the judge should have recounted the evidence of the expert Martin Jackson, which related to the potential for drug use to impair memory, and to the dangers of the ‘displacement’ effect.
In oral submissions, counsel for the applicant conceded that the trial judge’s directions in the charge satisfied the requirements of subsections 36(3)(a), (c) and (e) of the JDA, but not subsection (3)(b). Counsel submitted that the trial judge should have drawn the jury’s attention to specific items of evidence which may have made the identification evidence unreliable.
Counsel for the respondent submitted in writing that the judge’s directions were adequate. Thus, the trial judge told the jury that she was providing warnings about identification evidence and about significant matters in this case which might make the identification evidence unreliable, and highlighted the circumstances in which the offender was observed, the characteristics of the witness who gave evidence of identification and the manner in which the person was identified. It was submitted that the judge told the jury that a mistake could have been made at any one of ‘three stages’, which were Turner meeting a person called ‘Brett’ on the day the offences were committed; Turner stating that on at least one occasion, possibly twice, he saw the same person at Parks’ factory after the offending; and Turner’s identification of the applicant from a photo board. The judge, it was submitted, specifically warned the jury about identification from photographs, including that it could be unreliable due to the differences between photographs and real life, and because the photographs used to identify a person may have been taken in very different circumstances than those in which the witness observed a person. Further, the judge repeated the arguments of counsel concerning the dangers of suggestibility, and reminded the jury of the evidence of the experts.
Orally, senior counsel for the respondent contended that the ‘first step’ to a trial judge informing a jury under s 36(3)(b) of the JDA of ‘the significant matters that may make the evidence unreliable’, is a request for such a direction by counsel pursuant to s 12. In the present case, counsel for the applicant ‘had every chance to identify them’ — that is, ‘the significant matters’ — but did not do so. Thus, in light of s 15,[14] the judge was not permitted to give a direction unless she considered that there were substantial and compelling reasons for doing so.[15] And in any event, counsel submitted, the trial judge’s directions were adequate.
[14]Section 15 provides:
15 Trial judge must not give direction that has not been requested
Subject to section 16, the trial judge must not give the jury a direction that has not been requested under section 12.
[15]See s 16 of the JDA.
Moreover, senior counsel for the respondent submitted that, ‘in some ways, the case being run here is different from the case that was run below’, the supposed mistaken identification by Turner being a ‘secondary defence’. The ‘primary defence’, counsel argued, was that Turner was a liar. So much may be gleaned from the opening gambit of Turner’s cross-examination by counsel for the applicant:
Mr Turner, let me suggest to you at the outset that everything you have said about Mr Audsley being involved in this aggravated burglary is either a lie or they are things that are being put into your mouth by the police when you were speaking to the police. What do you say to that?---No.
Discussion
None of the criticisms levelled at the judge’s charge under cover of ground 1 has substance.
In the charge, the judge made clear that acceptance of Turner’s evidence was critical to a finding that the applicant was one of the three men who invaded the Mammone home. She said:
The central issue is are you satisfied beyond reasonable doubt that Mr Audsley and Mr Parks each was one of the three men who went into the Mammone house. That is the central issue. That issue depends on an acceptance of Michael Turner’s evidence.
With respect to the photo board identification of the applicant by Turner, the trial judge gave the following warnings, which included a specific warning as to the displacement effect:
One piece of evidence that the prosecution relies upon is Mr Turner picking Mr Audsley’s photo out from the photo board that, the prosecution case is, he was shown. Now I need to give you an additional warning about photographic identification evidence.
This sort of evidence may be unreliable due to the differences between photographs and real life. For example, photographs are two-dimensional and do not show the way a person moves, the range of their facial expressions, their body shape or many of the other characteristics that can help you identify a person.
The photograph used to identify the accused may also have been taken in very different circumstances from those in which the offender was observed. For example, the light in the photograph might be much better than it was at the time of the crime. These factors could increase the risk of misidentifying the offender, who may look like the accused as seen in a photograph but may look different when viewed face to face. You should therefore treat photographic identification evidence with special care.
I must also warn you about what is known as the displacement effect. Now, in this case this is often talked about in a situation where a person is shown a photograph of a suspect before identifying them in a parade. So the witness’ memory of what the person looks like may be influenced by having seen the photographs; so that is what is called a displacement effect.
In this case then you need to take into account whether or not — and it is a matter entirely for you — there is a similar issue that might arise in respect of how Mr Turner says he was able to identify Mr Audsley. He says that he saw Mr Audsley on another occasion at least — maybe another, twice, but once at least — the time of the silicone incident at Mr Parks’ factory. And he says then — and it was after seeing him that second time that he was able to identify [him]. He says that person was the person Brett who was there at the time of the Mammone intrusion.
So you need to carefully consider this evidence to see whether — especially in the light of Mr Turner’s evidence that he might have had some difficulty recognising Mr Audsley just from the day of the offending. You need to consider whether there is a risk that he was identifying — when he picked out the photo he was identifying the person that he had seen at the factory. So you would need — before you could rely on it you would need to accept that he was talking — that the person that he saw at the factory and the person in the car were both Brett Audsley, that it was one in the same person in effect. Think about whether there is potential for a displacement effect.
After these directions were given, during a break in the delivery of the charge, counsel for the applicant took an exception. He asked the judge ‘to redirect on the identification evidence’, observing that the judge ‘never referred to actually a Domican warning’, even though counsel ‘thought it was fairly obvious that [he] was seeking a Domican warning’.[16] The judge said that she did not think that counsel had asked for such a direction. Counsel apparently agreed that he had not, but sought a Domican warning nonetheless.
[16]See Domican v The Queen (1992) 173 CLR 555 (‘Domican’).
Somewhat surprisingly, counsel was not aware that the JDA prescribed the requisite directions. The trial judge had to inform him of so much. There was then more discussion, which I need not recount, until the luncheon adjournment intervened. After lunch, counsel — again somewhat surprisingly — referred the judge to s 116 of the Evidence Act 2008. Exercising, so it seems to me, a marked degree of patience, the trial judge pointed out to counsel that s 116 had been repealed by the JDA, and informed him that s 36 of the JDA now sets out the ‘warnings’ that ‘need to be given’. Undeterred, however, by the judge’s advice to him that common law rules had been statutorily abrogated, counsel for the applicant sought to ‘quote’ from Domican. Once more, I need not recount the discussion that followed, save to note that it culminated in the following exchange:[17]
[COUNSEL]: Yes, but what I’m submitting to Your Honour here is the terms of the warning and in my submission, Your Honour should, with the force of your judicial office, tell the jury that there have been many cases experienced by the law, where mistaken identity has led to wrongful convictions.
HER HONOUR: Well, that’s a general statement about the risks of general dangers of identification evidence, that’s included.
[COUNSEL]: Well, that’s what I’m talking about at the moment.
HER HONOUR: Well, that’s not what you said, but I don’t have a problem with that.
[COUNSEL]: No. Well, that’s about all I wanted to say about that, Your Honour.
[17]Emphasis added to this and following passages.
Thereafter, the trial judge charged the jury in — and beyond — the terms sought by counsel for the applicant. Of particular relevance, given the submission in the exchange extracted immediately above, the judge directed the jury that: ‘The experience of the law has shown that witnesses have given mistaken identification evidence which has resulted in innocent people being convicted’.
As I have mentioned, in oral submissions in this Court counsel for the applicant conceded that the judge gave adequate directions concerning the matters set out in subsections 36(3)(a), (c) and (e).[18] Thus, although it is unnecessary to set out what the judge said, the concession amounts to an acceptance of the fact that the directions were adequate to:
[18]Given that Turner was the sole identification witness, s 36(3)(d) had no application.
· warn the jury of the need for caution in determining whether to accept the evidence (and the weight to be given to it);
· inform the jury that a witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken; and that the mistaken evidence of a witness may be convincing; and
· inform the jury that mistaken identification evidence has resulted in innocent people being convicted.
A fair reading of the charge — the salient parts of which I will set out in full — also makes clear that the judge’s directions enumerated the significant matters that may make the evidence unreliable, as contemplated by s 36(3)(b).[19] Thus, the trial judge informed the jury of ‘the significant matters’ she considered ‘may make the evidence unreliable’ in the following terms:
[19]Albeit that the obligation to give directions in conformity with s 36(3)(b) only arises upon a request by counsel under s 36(1), and specification by counsel under s 36(2) of ‘the significant matters that may make the evidence unreliable’.
I charged you and spoke to you about the photo board identification. I now want to say something to you about identification evidence generally, because clearly identification is an important issue in this case. The case against Mr Audsley depends to a significant extent on evidence claiming to identify him as being the person Brett, who was involved in this offending. Now, clearly Mr Turner’s evidence against Mr Parks is relied upon by the prosecution, but there is no issue that Mr Turner knew Mr Parks. The situation though is different with Mr Audsley. You know that the evidence from Mr Turner is that he was picked up by Mr Parks with the car. There was a person called ‘Brett’, he was introduced to him. He says that person went with he and Mr Parks to the Mammone house. … Mr Turner says that what happened there [sic] then they drove back and he was dropped off at Karingal Hub.
He further says that on at least one other occasion — possibly twice, but on one other occasion … he saw the same person at Mr Parks’ factory. Then, of course, sometime later [March 2010] he identifies Mr Audsley — picks Mr Audsley out of the photo board. So there are sort of three stages in that identification process, and in the stages of somebody identifying somebody else as being involved in an offence the — a mistake can be made at any of those stages. So you need to carefully think about whether Mr Turner may have made an error at any stage.
So first of all the witness has got to have observed somebody on one occasion, then they have to have retained that image in their mind until, for example, the time of the photograph identification, or at the time of the factory, saying this is the same person. So I am giving you some warnings about identification evidence and I am going to talk about some significant matters in this case which may make the identification evidence unreliable.
Now, the factors affecting reliability may include the circumstances in which the offender was observed, the characteristics of the witness who gave evidence, and the way in which the accused was identified. So looking at these factors in more detail — and you need to look at this — I am sorry. You need to consider the circumstances under which Mr Turner saw this person he knew as Brett on the day of the offending, and then also the circumstances under which he says he saw him at Mr Parks’ factory.
So you should examine the circumstances in which the offender was observed, you should consider what opportunity for accurate observation existed. There are some matters that you should consider, including how long was Mr Turner able to observe the person on each occasion? How far away was Mr Turner from the person he was observing? What was the angle of observation? For example, did the witness see the person’s face, or only his or her back?
Now, there is some evidence about where Mr Turner was in the car, for example. There is other evidence from him about where various people moved around the house. When he spoke about the factory situation he was asked questions about what he observed of this person at the factory and the circumstances under which he observed it. You should consider that evidence.
You should consider that on Mr Turner’s evidence, prior to the ‘run-through’ on the Mammone house, he had not seen this person before, so there is no familiarity with this person. Matters such as the lighting might influence a person’s ability to make an accurate observation, other movements of other people, what activities were being engaged in at the time, the characteristics, any particular characteristics. There is no evidence in this case of Mr Turner saying that the person he observed had any particularly distinguishing features of one sort or another.
So you should consider all of the circumstances on the day of the run-through and on the day of the factory and consider whether the circumstances of observation — you should consider the circumstances of observation, because there are a number of factors that may make such observations unreliable.
You must also consider the characteristics of the witness who gave the identification evidence, so you might — you have to assess the quality of this witness as an observer. The question of on each occasion his ability, was he affected by substances or by sleep deprivation in a way that would affect his ability to make accurate observations and accurate recall.
You might consider in view of the way this case has been put issues of Mr Turner’s wish to inculpate Mr Audsley in order to get an indemnity. Perhaps he had an interest in this identification and that made him identify rather than his actual observation.
The ability to identify someone might be affected by circumstances such as stress or other distracting features of what was occurring at the time. In this case you should also take into account that no description was given by Mr Turner about — no detailed description of the other offenders. You need to take into account the length of time, so the delay between each stage of the recognition process.
So the first delay is between the run-through and seeing a person, who Mr Turner says is the same person, at Mr Parks’ factory. There was then a considerably longer delay, on the evidence, before picking Mr Audsley out of the photo board. You should look, and you need to ask, was the witness’ ability to accurately identify the person affected by any delay.
You should look at the identification process. There have been a number of arguments and submissions made about that, and the photo board identification. You should look at that process, whether it was conducted fairly. I have already referred earlier about some arguments about the photo board process.
I have already told you earlier to bear in mind the potential for a displacement effect in photo board identification. You need to ask was the witness influenced in any other way to identify the accused, for example, by the behaviour of the police. ...
There is no issue that Mr Turner did know what Mr Parks looked like and knew Mr Parks, but there is a different issue when it comes to Mr Audsley, because Mr Turner was not able to say it was Brett Audsley; all he could say was that this was a person called ‘Brett’ and then later on picked out — or he did not tell the police it was Brett Audsley, he said it was Brett, and then later on he picked out this person he said was Brett from the photo board, which was a photo of Mr Audsley.
…
Finally you should consider any other significant factors that may affect the reliability of identification evidence. In summary it is important that you take care in determining whether you accept identification evidence and, if you do accept it, in deciding what weight to give that evidence. If, after careful examination of the identification evidence and in light of all the circumstances and other evidence given in the case, you find that the accused was correctly identified, then you can use that evidence in reaching your verdict.
Quite plainly, these directions were apt to draw the jury’s attention to a number of things that might render Turner’s identification evidence unreliable. In summary, the directions included the following ‘significant matters’:
· a mistake in identification could have been made by Turner at any one of three stages: first, when he was in the car with ‘Brett’; secondly, when he subsequently saw Brett on one or two occasions at Parks’ factory; and, thirdly, when he selected the applicant’s photograph from the photo board;
· factors affecting Turner’s reliability might include the circumstances in which Brett was observed, Turner’s personal characteristics, and the manner in which the applicant came to be identified;
· the jury should examine the circumstances in which Brett was observed, and should consider what opportunity Turner had for accurate observation, including the length of time available to him to be able to observe the person on each occasion; how far away he was from the person he was observing; his angle of observation; and whether he saw the person’s face, or only his back (so that, for example, the jury should examine the evidence of where Turner was in the car, and what he observed of the relevant person at the factory and the circumstances under which he made the observation);
· the jury should consider that, prior to the day of the offending, Turner had not seen Brett before and had no familiarity with him;
· the jury should consider the activities being engaged in at the time that the identification was made — including that Turner’s ‘ability to identify someone might be affected by circumstances such as stress or other distracting features of what was occurring at the time’ — and any particular characteristics that the co-offender possessed (that person being said to have no distinguishing features);
· the jury needed to consider Turner’s characteristics, and assess his quality as an observer (including whether he was ‘affected by substances or by sleep deprivation in a way that would affect his ability to make accurate observations and accurate recall’);
· it was important to consider any motive Turner may have had to inculpate the applicant so as to secure an indemnity, so that he may have ‘had an interest in this identification and that made him identify rather than his actual observation’;
· the jury should take account of the fact that Turner gave no detailed description of the relevant co-offender to police;
· the jury needed to take into account ‘the delay between each stage of the recognition process’, and to ask whether Turner’s ability to accurately identify his co-offender was affected by any delay;
· the jury needed to consider the fairness of the process of identification from the photo board, and to have regard to ‘a number of arguments and submissions made about that’;
· the jury needed to consider the displacement effect, and the directions earlier given on that topic;
· the jury had to ask themselves whether Turner was influenced by the behaviour of the police; and
· the jury ‘should consider any other significant factors that may affect the reliability of identification evidence’.
Unsurprisingly, given their thoroughness, no exception was taken to these directions. Counsel for the applicant did, however, submit that the judge should instruct the jury that ‘the prosecution case depends entirely on the jury accepting the identification evidence’. Her Honour duly redirected as requested in the following terms:
There is the question … about identification evidence in respect of Mr Audsley that I have been through, because it relies on this ultimately later identification from the photo board; that is what identified it [sic] as being Brett Audsley rather than some unknown Brett, or some unknown person that Mr Turner called Brett.
Now, if you are not satisfied beyond reasonable doubt of the evidence of Mr Turner as to the identification of Mr Audsley then you cannot find Mr Audsley guilty. It is only if you accept that evidence beyond reasonable doubt that you can find Mr Audsley guilty.
Despite the failure to take any further exception to the judge’s charge, however, the applicant’s counsel’s primary contention in his oral submissions to this Court boiled down to the proposition that, when read as a whole, the directions on identification were deficient, in that the judge did not rehearse various parts of the evidence bearing on the reliability of Turner’s identification. In particular — and this was the highpoint of counsel’s submissions — counsel submitted that the evidence disclosed that Turner had observed Brett’s face in the car only for ‘a second or two’, and that the judge should have reminded the jury specifically of that evidence.
In support of that submission, counsel took the Court to part of the discussion that he had with the trial judge in which he submitted that the evidence was that Turner ‘seems to have a glance’ at Brett’s face. The judge, however, responded — her response being a major cause of complaint in this Court — that she was ‘not going to say things like, he only had a glimpse at him, because [she did not] think that’s exactly what he said, apart from anything else’.
Notwithstanding counsel’s complaints, the judge was correct, in my view, to refuse to give the direction requested. It would have been misleading for her to have done so. Given that the evidence revealed that Brett, the driver of the car, shook hands with Turner when he got into the back seat; that Brett, Turner and Parks snorted drugs together before driving to Clyde; and that the three men committed the home invasion in each other’s company before all driving away in the same car; it would not have been accurate for the judge to have suggested to the jury that the evidence was that Turner had only a glimpse of Brett’s face, or that he had only glanced at it for a second or two. Turner’s evidence was that he saw Brett’s face when Brett was introduced and they shook hands, and that, when Brett turned around to the back seat, he ‘looked [him] in the eyes’. And, although Turner agreed that he may have seen Brett’s face for ‘one or two seconds’ when they shook hands, Turner also gave evidence that he saw Brett’s face during ‘conversations’. Indeed, Turner’s evidence was that he had an opportunity to see Brett’s face when Brett stopped the car at traffic lights, and when Brett’s face came forward in order to ‘put his head down to have a snort’.
To summarise the foregoing, prior to the charge, counsel for the applicant did not ask for any specific directions on identification; but, after the judge had directed the jury on identification from photographs, counsel sought a Domican warning (notwithstanding his previous failure to ask for any direction). After further discussion (in the course of which the luncheon adjournment intervened), counsel ultimately simply submitted that the judge ‘should, with the force of [her] judicial office, tell the jury that there have been many cases experienced by the law, where mistaken identity has led to wrongful convictions’, it now being conceded that her Honour indeed gave such a direction (in conformity with s 36(3)(e) of the JDA). Counsel did not, however, ultimately contend that the judge needed to ‘specify the significant matters that may make the evidence unreliable’, let alone identify particular evidence to which the judge needed to refer when charging on such significant matters.
Notwithstanding that counsel neither identified any significant matters that may have made the evidence unreliable, nor any evidence relating to those significant matters, the judge informed the jury in some detail of a variety of matters that the jury needed to consider when examining the reliability of Turner’s evidence of identification. The judge’s directions on those significant matters provoked no exception from the applicant’s counsel. In those circumstances it may readily be inferred that the absence of an exception reflected counsel’s view at the time that, when they were viewed as a whole, the directions plainly were very thorough and perspicuously fair. They were apt not only to bring home to the jury the caution needed to be exercised when evaluating the identification evidence, but also to remind the jury of those aspects bearing on the reliability of Turner’s identification evidence that had been canvassed in the course of evidence and during counsel’s address.
There is thus nothing in the first ground.
Before departing this ground, however, there is one final matter I should mention. One of the particulars of the ground, and one of the arguments put briefly in the written case and orally, claimed that the judge erred in failing to direct the jury that in considering the identification evidence, other circumstantial evidence implicating the applicant had to be disregarded. No authority was cited — and, beyond mere assertion, no real argument was advanced — in support of that proposition. In those circumstances, it is sufficient to observe, I think, that the proposition seems to run counter to prevailing authority.[20]
[20]
Ground 2 — Are the convictions unsafe and unsatisfactory?
In contending that the convictions are unsafe and unsatisfactory, counsel for the applicant generally relied on the frailties of the identification evidence canvassed under cover of the first ground. Orally, counsel submitted that Turner’s evidence was ‘so appallingly bad that no jury could have accepted it’.
In an endeavour to further impugn Turner’s identification evidence, however, there was one additional matter distinctly relied upon in oral argument in support of ground 2, as follows.
Turner made his statement to police on 24 September 2009. The prosecution relied on his identification of the applicant from the photo board, which was made some months later, on 2 March 2010. In cross-examination, Turner gave evidence, however, that he looked at police photographs, ‘Within a week, couple of weeks or something … Like it wasn’t months and months and months down the track’. Counsel submitted that Turner’s evidence was that he was shown two manila folders, and picked out not only ‘Brett’, but also ‘two other mates’. In light of this evidence, counsel submitted, the jury could not be satisfied beyond reasonable doubt that Turner was shown only one photo board from which he selected the applicant’s photograph.
There is, in my view, nothing in this submission. Police gave evidence at trial that Turner was shown a single photo board on 2 March 2010, from which he selected the applicant’s photograph. It was a matter for the jury as to what they may have made of any perceived discrepancy between the evidence of Turner and of the police with respect to the photo board process. But taking Turner’s evidence on this aspect at its highest for the applicant, it would not have dictated that the jury must have had a reasonable doubt about the reliability of the essential features of his identification evidence.
Looking at Turner’s evidence more broadly, and reviewing for myself the whole of the evidence, in my view it was well open to the jury to convict the applicant. The evidence was not ‘so appalling’ that the jury must have had a reasonable doubt about the applicant’s guilt. It was open to the jury to conclude that Turner had ample opportunity, over an extended period and in different circumstances, to observe Brett’s face, and to conclude that Turner was correct when he said he saw the same ‘Brett’ at Parks’ factory once or twice after the robbery. Moreover, even having regard to the significant matters bearing on the possible unreliability of his evidence — all of which were adequately exposed for the jury’s consideration — it was open to the jury to conclude that Turner was correct when he selected the applicant’s photograph as being the ‘Brett’ with whom he had committed the crimes against the Mammone family. Subjecting Turner’s evidence to critical examination, and paying due regard to its alleged frailties, I do not enjoy a reasonable doubt as to the applicant’s guilt. None of the significant matters bearing on the possible unreliability of Turner’s evidence raises the possibility in my mind that an innocent man may have been wrongly convicted.
There is no substance in the complaint that the convictions are unsafe and unsatisfactory.
Conviction: ground 3 — Evidence of telephone calls
Ground 3 asserts that the trial judge wrongly admitted ‘irrelevant and highly prejudicial evidence’ of ‘the timing of three telephone calls’ between the applicant, Parks and Turner, ‘which took place on 10 January 2009 at 10:09, 10:11 and 10:19’.
According to the evidence, there were three calls between Turner and Parks on the morning of the robbery at 10:09, 10:11 and 10:19. Over objection, the trial judge permitted evidence of the timing of the calls to be put before the jury, but not their content.
In my view, in combination with technical evidence as to the movements of the applicant’s telephone, the calls provided evidence from which the jury, first, could draw an inference that Parks was trying to engage Turner to participate in the anticipated offending; and, secondly, could infer that the applicant was in the car with Parks when he collected Turner prior to the offending.
Technical evidence from a Telstra employee, Mark Borg, showed that the applicant’s phone engaged a mobile phone base station at Seaford East at 10:09 am, then Seaford South at 10:11 am, and Frankston East at 10:14 am (Turner, of course, then living at an address in Frankston). The applicant’s telephone then engaged stations at Frankston East, Frankston Hills, Mount Eliza North, and Baxter, before engaging a tower in Clyde at 11:11 am. The last time is important, since Stacey
Mammone gave evidence that she was confronted by the three intruders at about 11:00 am, and the first police responding to the emergency at the Mammone home attended at 11:24 am.
In my opinion, it was open to the jury to infer from the evidence of the calls that Parks was with the applicant when they picked up Turner at the end of his street in Frankston, and that the three of them travelled together to Clyde. Indeed, to my way of thinking, the telephone evidence paints a compelling picture — particularly when represented diagrammatically (as it was by Exhibit A6) — of Turner having been collected from his residence in Frankston before continuing to the Mammone residence in Clyde.
Quite plainly, therefore, the evidence was relevant. The only prejudice to the applicant lay in the capacity of the evidence to be legitimately probative of his guilt.
Ground 3 has no substance.
Conclusion
Leave to appeal against conviction must be refused.
BEACH JA:
I agree with Priest JA.
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See R v Coxon (2002) 82 SASR 412, 419 [32]–[33] (Prior J), 425 [85]–[86] (Gray J).
See also R v Spero (2006) 13 VR 225, 236–7 [38]–[39] (Redlich AJA, Maxwell P and Buchanan JA agreeing).
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