Director of Public Prosecutions v Alberto Bass (a pseudonym)[1]
[2016] VSCA 110
•17 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0041
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| ALBERTO BASS (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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| JUDGES: | PRIEST, SANTAMARIA and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 May 2016 |
| DATE OF JUDGMENT: | 17 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 110 (First Revision, 17 May 2016) |
| JUDGMENT APPEALED FROM: | DPP v [Bass] (Unreported, County Court of Victoria, Judge Howard, 3 March 2016) |
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CRIMINAL LAW – Application for leave to appeal interlocutory decision – Evidence to be given by witness described offender by reference to what he was wearing and who he was with rather than by reference to any physical characteristics – Judge ruled that evidence constitutes ‘identification evidence’ within definition in Dictionary to Evidence Act 2008 and ‘visual identification evidence’ within Evidence Act 2008 s 114(1) and thus inadmissible under s 114(2) – Certification by judge under Criminal Procedure Act 2009 s 295(3) – Meaning of these defined terms – Interests of justice – Criminal Procedure Act 2009 s 297 – Leave to appeal granted and appeal allowed.
CRIMINAL LAW – Interlocutory appeal – Application for leave to add a particular to proposed ground of appeal which departed from concession made at trial – Circumstances in which prosecution may be permitted to depart from position adopted at trial – Leave granted – DPP vWaack (2001) 3 VR 194 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr C Mandy with Mr M Habib | Pearce Webster Dugdales |
PRIEST JA
SANTAMARIA JA
KYROU JA:
Introduction and summary
This is an application by the Director of Public Prosecutions for leave to appeal against an interlocutory decision made by a judge of the County Court on 3 March 2016 to exclude certain prosecution evidence. The judge held that the evidence constitutes ‘visual identification evidence’ and ruled that it is inadmissible under s 114(2) of the Evidence Act 2008 (‘EA’) because an identification parade was not held.
The admissibility of the evidence arose during the second trial of the respondent on a charge of intentionally causing serious injury and an alternative charge of recklessly causing serious injury.[2] The charges related to an incident that occurred outside a hotel on the evening of 17 January 2014[3] in which the complainant, ‘TB’, was ‘glassed’ on the left side of his face.
[2]The jury in the first trial were unable to agree on a verdict.
[3]The evidence is unclear as to whether the incident occurred after midnight. However, nothing turns on whether it occurred on the evening of 17 January 2014 or on the morning of 18 January 2014.
The sole issue at each trial was whether the respondent was the person who glassed TB. ‘GMA’ was the only witness whose evidence was capable of supporting an inference that the respondent glassed TB. His evidence described the offender by reference to what he was wearing and his relationship with others present at the incident rather than by reference to any of his physical characteristics. It is common ground that, without GMA’s evidence, the prosecution case against the respondent cannot succeed.
At the first trial, the trial judge[4] indicated that he did not think that GMA’s evidence was ‘visual identification evidence’ and the admissibility of the evidence under s 114 of the EA was not addressed by defence counsel.
[4]The judge at the first trial was not the judge who presided over the second trial.
On the third day of the second trial, after four witnesses other than GMA had given evidence, the trial judge raised the question of whether GMA’s evidence was inadmissible ‘visual identification evidence’, and expressed surprise that defence counsel had not objected to the evidence. Following the judge’s comments, defence counsel submitted that GMA’s evidence constitutes visual identification evidence and applied to have it excluded under s 114(2) of the EA. The prosecution conceded that the evidence constitutes visual identification evidence but contended that it was admissible under s 114(2)(b) because it would not have been reasonable to have held an identification parade.
After hearing submissions, the trial judge ruled that GMA’s evidence was inadmissible by virtue of s 114(2) of the EA. The judge discharged the jury and granted the prosecution a certificate under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’).
The Director’s proposed ground of appeal is that the trial judge erred in excluding GMA’s evidence pursuant to s 114(2) of the EA. Initially, the sole particular was that the judge erred in holding that it would have been reasonable to have held an identification parade. Before this Court, however, the Director sought to resile from the concession made below that the evidence constitutes visual identification evidence and applied for leave to add a second particular that the judge erred in ruling that the evidence constitutes visual identification evidence.
For reasons that follow, we have concluded that, despite the concession made at trial, the judge erred in characterising GMA’s evidence as visual identification evidence. The application for leave to appeal should thus be granted and the appeal allowed.
Evidence about glassing incident and identity of offender
The hotel where the glassing incident took place is located in a town north-east of Melbourne. It was common ground at the second trial that at least the following individuals were present at the hotel during part or all of the evening of 17 January 2014:
·The hotelier, GC.
·GMA, the key prosecution witness, who was a town local.
·TB, the complainant, who was also a local.
·MB, TB’s brother, who was also a local.
·Ms RG, the former girlfriend of TB, who was also a local.
·Ms BLK, a friend of RG, who was also a local.
·JC, who was also a local.
·JH, who was also a local.
·GL, who was also a local.
·Ms MW, who was also a local.
·SK (‘Scott’), a friend of RG and MW, who was not a local.
·The respondent, a friend of Scott, who was not a local.
In his record of interview, the respondent stated: that he was at the hotel on the evening of 17 January 2014 with his friend, Scott; that he was wearing a white singlet, jeans and glasses; that he has a Southern Cross tattoo on his left arm; and that the people at the hotel generally knew each other and that ‘non-locals’ stand out.
The respondent does not dispute: that there was an altercation between Scott and TB; that he was in the vicinity of the altercation; that, during that altercation, another person stepped in and glassed TB; and that his left sneaker had a drop of TB’s blood on it. However, he denies that he glassed TB.
GMA made a statement on 19 January 2014, gave evidence at the committal hearing on 13 May 2014 and gave evidence at the first trial on 16 April 2015. Leaving aside some inconsistencies, GMA’s evidence derived from those three sources was to the following effect:
·He attended the hotel on 17 January 2014 at about 9.30pm.
·At about 10.30pm two men whom he did not know arrived at the hotel.
·As the hotel is in a remote location, ‘outsiders’ usually stand out. He was not aware of anyone other than RG who knew the two men. They were the only ‘non-locals’ at the hotel that evening.
·RG introduced him to one of the two men whose name was ‘Scott’. He was not introduced to the other man. That man was wearing a white T-shirt, white shoes, grey shorts and reading glasses, which made him stand out.
·The two men did not interact with anyone other than RG. One of them had a Southern Cross tattoo but he could not remember which one had the tattoo.
·He estimated that there were around 14 persons at the hotel that evening.
·There was a verbal altercation between TB and RG outside the hotel after closing time. Scott intervened and began grappling with TB, who was intoxicated by this stage. Both men had each other by the shirt and there was some pushing and shoving. He was only two metres from them and nothing obscured his vision.
·While the pushing and shoving was taking place, Scott’s friend (who he believed was named ‘Pat’) was standing slightly behind Scott and slightly to Scott’s right. He observed Scott’s friend take a big swing at TB with his right hand while holding a pot glass, hitting TB in the left cheek. He could see the glassing quite clearly. He heard a ‘pop’ on contact. The glass broke on contact.
·At the time of the glassing, the people in the vicinity included himself, JH, TB, Scott, the offender, Ms RG, Ms BLK, GL and JC.
·He intervened in the fight between Scott and TB and observed a large laceration to TB’s face.
·He did not tell anyone about whom he saw glassing TB at the time because he was concerned about possible retribution against that person. He first told the police of his observations on 19 January 2014.
There were some inconsistencies in GMA’s evidence. It is unnecessary to recount them all. Of possible importance, however, is that in his statement, he said that the offender was wearing a white T-shirt whereas, at the committal, he said that the offender was wearing a white singlet. After he was questioned on the inconsistency, he initially said the white singlet was ‘[l]ike a white T-shirt’ and later said ‘I’ll stick with T-shirt’. At the first trial, he said that he was ‘100 per cent sure’ it was a white singlet.
At the first trial, TB, Ms BLK and Ms MW gave evidence that, at the hotel on 17 January 2014, Scott’s friend was wearing a white singlet and glasses. Ms MW also said that he had a Southern Cross tattoo on one of his arms. When TB, Ms BLK, Ms RG, GL and JH gave evidence about Scott’s friend, the prosecutor said, without objection from defence counsel, that there was ‘no issue’ that Scott’s friend was the respondent.
During the first trial, GMA referred to ‘Pat’ or ‘Patrick’ on several occasions in his evidence in chief. For example, the following exchange took place between him and the prosecutor:
Just describe slowly what happened. What did you see? --- OK. So the boys still had each other, and Patrick had his glass and he swung his arm and hit Tim in the face with the glass, and it – it broke on impact.
The following exchanges took place during GMA’s cross-examination at the same trial:
[Y]ou noticed my client and his friend because they were non-locals? --- Yeah. That’s correct.
…
You introduced yourself to them? --- Yeah. We – only to Scott. I didn’t speak with Pat.
And you saw my client in a white singlet and shorts? --- M’mm.
…
And my client has stepped around Scott’s body - - -? --- M’mm
And he is in front of Tim? --- M’mm
And in front of Scott, essentially - - -? --- M’mm
When he has swung the glass? ---Yes. Well, he – Pat would have been – so both the boys are at three-quarter arm length, holding each other by the shirt. So there was a fair bit of space in between. Patrick stepped forward and swung, and I could see his arm and himself clearly.
At the second trial, prior to the impugned ruling, TB, MB, Ms RG and the hotelier gave evidence. When TB stated that Scott’s friend ‘had a white singlet on, glasses and a Southern Cross tattoo on his shoulder’, the prosecutor said ‘There’s no issue, Your Honour, that this is the accused man’ and mentioned his name. In response to a question from the judge, defence counsel confirmed that this was the position. When MB gave evidence that Scott’s friend wore a white singlet and glasses, the prosecutor stated, without objection from defence counsel, that there was no issue that the friend was the accused. The prosecutor also mentioned the respondent’s name, again without objection from defence counsel, when Ms RG gave evidence about Scott’s friend.
As we have mentioned, in his record of interview the respondent told police that he was wearing a white singlet, denim jeans and dark grey sneakers. It is not in dispute that the respondent has a Southern Cross tattoo.
Investigating police did not conduct an identification parade. The prosecutor does not propose to ask GMA to identify the respondent in court.
Judge’s ruling
Due to the prosecution’s concession at trial that GMA’s evidence constitutes ‘visual identification evidence’, the judge did not attempt to analyse the requirements of either the definition of that expression in s 114(1) of the EA or the definition of ‘identification evidence’ in the Dictionary to the EA. His brief reasons for accepting the correctness of the prosecution’s concession were as follows:
Before turning to the provisions of s 114, I note that the prosecution concedes that [GMA’s] evidence involves an assertion by him of something he said that he saw, and hence it constitutes ‘visual identification evidence’, and ‘identification’ as those concepts are defined in the Evidence Act and its Dictionary … . Clearly that is so. These concepts are broadly defined.
The judge added that he was not satisfied that GMA’s evidence was recognition evidence because, prior to the glassing incident, GMA had seen the offender ‘for a very short period of time, probably a matter of seconds only, in dark, chaotic and crowded circumstances’. However, according to the judge, s 114 would apply even if the evidence was recognition evidence.
The judge concluded that it would have been reasonable to have held an identification parade and, therefore, GMA’s evidence was inadmissible pursuant to s 114(2) of the EA. In the light of our conclusion below that the judge erred in finding that GMA’s evidence constitutes visual identification evidence, it is unnecessary to set out the judge’s reasons for his conclusion about the reasonableness of holding an identification parade.
Director’s application for leave to amend the proposed ground of appeal
The Director submitted that this Court should grant leave to add to the proposed ground of appeal a particular that the judge erred in finding that GMA’s evidence constitutes visual identification evidence because that particular raised a question of construction of an important provision of the EA which has not been considered previously by this Court. That question was said to be difficult, as two County Court judges had reached different conclusions in relation to it.
Counsel for the Director (who was not the prosecutor at the first and second trials) contended that the concession made by the prosecutor at the second trial — who was described as ‘inexperienced’ — was erroneous and the prosecution should be permitted to resile from it. This was said to be appropriate because the prosecution had consistently maintained that an identification parade would not have been reasonable and thus had never conceded that GMA’s evidence was inadmissible under s 114(2) of the EA. The judge’s ultimate conclusion on the inadmissibility of the evidence based on the absence of an identification parade was wrong, so it was said, as it relied on the decision of Rares J in R v Taylor[5] which has been disapproved by the New South Wales Court of Appeal in Walford v Director of Public Prosecutions.[6]
[5](2008) 2 ACTLR 216.
[6]Walford v DPP (2012) 82 NSWLR 215, 229 [68] (‘Walford’).
While the respondent made submissions as to why it is not in the interests of justice for this Court to grant leave to appeal under s 297(1) of the CPA, he did not make any separate submissions on the Director’s application to add the second particular to the proposed ground of appeal.
We are persuaded by the Director’s submissions to grant leave to amend the particulars so as to enable the Director to challenge the judge’s finding that GMA’s evidence constitutes visual identification evidence. The additional particular involves a question of construction on an important provision of the EA and, rather than raising an entirely new ground of appeal, it provides another basis for impugning the judge’s ruling as to the inadmissibility of GMA’s evidence. In our opinion, it would not be meaningful for this Court to consider the question of whether it would have been unreasonable to hold an identification parade for the purposes of s 114(2) of the EA in respect of GMA’s evidence in circumstances where an antecedent issue is raised as to whether that section applies to that evidence.
The fact that the prosecutor conceded that GMA’s evidence constitutes visual identification evidence does not debar the Director from taking a different stance before this Court.[7] This Court has a discretion to permit such a course where, having regard to the circumstances of the case, it is in the interests of justice to do so.[8]
[7]DPP v Waack (2001) 3 VR 194, 207 [31] (‘Waack’).
[8]Ibid.
In the present case, several considerations point strongly to the discretion being exercised in favour of the Director. The charged offences are very serious and the error alleged in the additional particular is highly significant, as it will emasculate the prosecution’s case against the respondent. The circumstances in which the issue of the inadmissibility of GMA’s evidence arose, and the prosecution’s concession was made, were most unusual. Defence counsel chose not to challenge the admissibility of the evidence under s 114(2) of the EA at the first trial following discussion with the judge as to whether it constitutes identification evidence. The same defence counsel had no intention of making such a challenge at the second trial and only did so after the trial judge intervened and expressed surprise that such challenge had not been made. It was in that context that the prosecutor made the concession.
We accept that, by allowing the prosecution to resile from its concession, there would be an additional basis provided upon which this Court could decide to set aside the impugned ruling and thus pave the way for a third trial against the respondent. This consequence would clearly be adverse to him. In particular, the respondent will have to face a further trial, with the stress and expense that entails. However, the effect on him must be balanced against the interests of the community in the prosecution being able to prosecute persons reasonably suspected of having committed serious offences and to do so on the basis of all available admissible evidence.
We have not given any weight to the description of the prosecutor as ‘inexperienced’. We can understand why a considered concession made by ‘a very experienced member of senior counsel who is a Senior Crown Prosecutor in the Director’s office’[9] might make it more difficult for the Director to persuade this Court to exercise its discretion to permit the Director to resile from that concession. However, if the Director chooses to be represented by inexperienced counsel in a trial involving a serious offence with complex evidentiary issues, we do not see why that should be a factor in favour of the Director in the exercise of the Court’s discretion.
[9]DPP v Sismanoglou [2016] VSCA 87 [42].
For the above reasons, we will grant leave to the Director to add the additional particular to the proposed ground of appeal.
Whether GMA’s evidence was ‘visual identification evidence’
Relevant statutory provisions and legal principles
Subsections 114(1) and (2) of the EA provide:
114 Exclusion of visual identification evidence
(1)In this section, visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
(2)Visual identification evidence adduced by the prosecutor is not admissible unless—
(a)an identification parade that included the accused was held before the identification was made; or
(b)it would not have been reasonable to have held such a parade; or
(c) the accused refused to take part in such a parade—
and the identification was made without the person who made it having been intentionally influenced to identify the accused.
The Dictionary to the EA defines ‘identification evidence’ as follows:
identification evidence means evidence that is—
(a)an assertion by a person to the effect that an accused was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—
(i)the offence for which the accused 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.
For the purposes of the present application, in context, para (a) of the definition of ‘identification evidence’ requires an ‘assertion’ to have been made by GMA that the respondent is or ‘resembles’ — visually, aurally or otherwise — a person who was present at or near the place where TB was glassed.
The requirement arising from the words ‘an accused was, or resembles’ a person may be satisfied if the witness asserts, first, that the accused ‘was … a person who was, present’ at or near the place where the relevant offence was committed; or, secondly, that the accused ‘resembles … a person who was, present’ at or near the place where the relevant offence was committed.
Generally, an assertion of resemblance might relate to obvious physical features which are visually observable, including height, weight, age, gender, complexion, facial features and the length, texture and colour of a person’s hair. Visually observable physical features can also include race, distinctive marks and gait.[10]
[10]Festa v The Queen (2001) 208 CLR 593, 611 [56] (‘Festa’).
The Macquarie Dictionary defines ‘resemble’ to mean ‘to be like or similar to’, ‘to liken or compare’.[11] The Oxford English Dictionary contains six meanings for ‘resemble’, including, ‘To be like, to have likeness or similarity to, to have some feature or property in common with (another person or thing)’, ‘To compare or liken (a person or thing) to another’, and ‘To be like in some respect to another person or thing’.[12] The Australian Concise Oxford Dictionary defines ‘resemble’ to mean ‘be like; have a similarity to, or features in common with, or the same appearance as.’[13]
[11]Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 6th ed, 2013) 1249.
[12]J A Simpson and E S C Weiner (eds), The Oxford English Dictionary (Oxford University Press, 2nd ed, 1989) 695-6.
[13]Bruce Moore (ed), The Australian Concise Oxford Dictionary (Oxford University Press, 4th ed, 2004) 1201.
So far as visual identification evidence is concerned, as a matter of ordinary language, in order for a witness to assert that the accused ‘resembles … a person who was, present’ at or near the place where the relevant offence was committed, the witness must, in effect, assert that he or she has seen both the accused and a person at or near the place where the relevant offence was committed, and that, based on his or her observations of their physical features, the accused resembles that person.
It follows that we agree with Odgers that s 114 of the EA will not apply to evidence of a description of a person alleged to be the accused ‘unless the person testifying as to the description takes the next step of asserting some resemblance between the person described and the [accused]’.[14]
[14]Stephen Odgers, Uniform Evidence Law in Victoria (Thomson Reuters, 2nd ed, 2013) 602 [1.3.9520].
A person’s name does not constitute identification evidence.[15] This is because the witness makes no ‘assertion … to the effect that the [accused] was or resembles … a person’, namely the perpetrator.[16] It is not a reference to a physical feature of that person. And an item of clothing worn by a person will usually not be capable of forming the basis of an assertion by a witness to the effect that the person is or resembles the accused so as to constitute identification evidence.[17]
[15]R vTrudgett (2007) 70 NSWLR 696, 702 [37] (‘Trudgett’).
[16]Ibid, 701 [35].
[17]See Lowe v The Queen (1997) 98 A Crim R 300, 317; Festa, 612 [61]; Evans v The Queen (2007) 235 CLR 521, 589 [231].
If a witness either knows or sees a person prior to the commission of an offence and later recognises him or her as a person present at or near the place where the offence was committed, the witness’s evidence will not constitute identification evidence unless the witness makes an assertion that the person is or resembles the accused.[18] This is because the definition of ‘identification evidence’ does not apply to the identification of a person who is not the accused in the relevant trial.[19]
[18]R v Taufua (Unreported, New South Wales Court of Criminal Appeal, 11 November 1996) (‘Taufua’).
[19]Walford, 219 [17].
Our analysis is consistent with the limited case law that has considered these issues.
Taufua involved an armed robbery at a supermarket. It was not in dispute that one of the robbers was a man named Price. An assistant at a nearby railway station gave evidence that he saw two men at the station shortly prior to the robbery. The witness said that he knew one of the men was Price and that he had also seen the other man, whose name he did not know, on a number of previous occasions. The witness said that he regularly saw the man with Price and that the most recent sighting of the man prior to the day of the robbery was about a year before that day. The witness said that the second man: was tall, thickset and muscular; was of Tongan or Samoan descent; and had olive skin and short black hair.
Barr J, with whom Priestley AP and James J agreed, held that the witness’s evidence did not constitute identification evidence because it did not link the second man with the accused. Barr J explained his conclusion as follows:
One may test the matter by asking whether … [the witness] gave any visual identification evidence. The answer must be no. His evidence was of seeing a man … whom he had seen a number of times before. The man’s appearance was like the [accused’s] (if the jury should think that [the witness’s] description corresponded with their own observations). That was evidence of circumstances consistent with the [accused’s] being the second man, but it did not identify him. … [T]here was nothing to link the evidence of what [the witness] saw at the railway station with the [accused] as opposed to anybody else of that general description. That link was necessary before the evidence could be described as identification evidence … .[20]
[20]Taufua (Unreported, New South Wales Court of Criminal Appeal, 11 November 1996).
Clifford[21] involved an assault outside a nightclub. It was not in dispute that the appellant punched a crowd controller, Mr Mading, to the ground. The issue was whether the appellant subsequently punched the complainant, Mr Grice, who was a barman. Crawford J, with whom Underwood and Slicer JJ agreed, described Mr Grice’s evidence as follows:
[21]Clifford v The Queen (2004) 12 Tas R 415 (‘Clifford’).
Mr Grice gave evidence that … he saw Mr Mading and the appellant shouting and arguing with each other … . Mr Mading was well known to him. He did not know the appellant at the time. He described the man with whom Mr Mading was arguing as ‘a large man, about six two, six three, solid, wearing jeans and a shirt, trim hair … it was either like brown with little blond tips or blond with brown tips’. The man’s shirt was ‘a greeney aqua blue’. ...
Mr Grice described the appellant … pushing Mr Mading backwards to the ground. He continued:
Immediately after Mr Clifford turned his attention to me, said ‘who the fuck are you’ and instantaneously I felt a fist on the right side of my jaw.
It was the blow that fractured his mandible. He accepted that he did not see the blow coming, but he was adamant that it came from the appellant because there was no one else who was close to him at the time who could have administered it. After that the appellant … wandered off up the street. Mr Grice said that he asked ‘who was that’ and Mr Mading told him it was Ricky Clifford. Throughout his evidence, Mr Grice referred to the man who argued with Mr Mading and Mr Grice’s assailant as Mr Clifford, without objection from counsel for the defence.[22]
[22]Ibid 418–19 [10]–[11].
Crawford J referred to Taufua for the proposition that ‘evidence of a mere description of an offender does not fall within the definition [of ‘identification evidence’], unless it contains an assertion that it was or resembled the accused.’[23] He concluded that parts of Mr Grice’s evidence constituted identification evidence for the following reasons:
The evidence of Mr Grice of what he saw of the altercation between the appellant and Mr Mading was identification evidence insofar as it contained an assertion that the appellant was at or near where, and at or about the time, that Mr Grice was struck. Of course, his evidence without that assertion, did not fall within the definition. His mere description of the man with whom Mr Mading was arguing did not alone fall within the definition, for it contained no assertion that the person he described was or resembled the appellant, but Mr Grice’s evidence that it was the appellant was identification evidence. His evidence that it was the appellant who turned his attention to him immediately before he was struck also amounted to an assertion that fell within the definition, but not his evidence of what the man did, divorced from that assertion. Further, the hearsay evidence given by Mr Grice that Mr Mading told him that the man (who struck him) was Ricky Clifford, fell within [para](b) of the definition.[24]
[23]Ibid 422 [19].
[24]Ibid 422–3 [22].
In Trudgett, the complainant gave evidence about the person who had sexually assaulted her. Although her evidence included a physical description, it was to the effect that the person who assaulted her was introduced to her as ‘Adam’ and that that was all she knew about him. Spigelman CJ, with whom Hulme and Latham JJ agreed, held that the complainant’s evidence did not constitute identification evidence because she made no assertion to the effect that the accused was, or resembles, the offender.[25]
[25]Trudgett (2007) 70 NSWLR 696, 702 [35].
In Walford, the accused was charged with breaching an apprehended violence order that had been made in favour of the complainant following an assault upon her. The complainant gave evidence that she had observed a man she recognised as the accused entering her housing complex. The magistrate ruled that the complainant’s evidence was inadmissible because it constituted visual identification evidence in circumstances where an identification parade had not taken place. The issue on appeal was whether the magistrate had erred by treating the complainant’s evidence as in-court identification rather than out-of-court identification at the time that the complainant saw the man entering her housing complex and contacted the police. The New South Wales Court of Criminal Appeal (Beazley, Basten and Hoeben JJA) held that the magistrate had erred.
Basten JA agreed with the analysis in Taufua and Trudgett concerning the scope of the definition of identification evidence. He stated:
[W]hat must be identified is a connection (identity or resemblance) between the person the subject of the criminal proceeding (the defendant) and a person present at or near the place where the offence was committed at the time it was committed. This language encompasses an in-court identification, but less obviously also covers an out-of-court identification. In the latter case, there must be a link between the act of identification and the person on trial. …
[E]vidence involving a physical description of the offender, or the name by which he was addressed, does not involve an ‘assertion … to the effect that [the] defendant was, or resembles … a person’, being the putative offender.[26]
[26]Walford, 219 [17]–[18] (citations omitted).
Hoeben JA stated that the definition of ‘identification evidence’ requires that a witness make an assertion which links the accused to the offence.[27] A similar statement was made by Penfold J in R v D.[28] In that case, the complainant reported an assault to the police the day after it occurred and named the accused as one of the assailants. That was held to constitute visual identification evidence.[29]
[27]Ibid 226–7 [55].
[28](2008) 2 ACTLR 225, 227 [12].
[29]Ibid 227 [9], [14].
Parties’ submissions on whether GMA’s evidence is visual identification evidence
The Director submitted that the judge erred in characterising GMA’s evidence as identification evidence because it amounted to no more than a general description of the offender — by reference to what he was wearing and who he was with — without linking the offender to the respondent. The Director contended that, in the absence of such a link, the evidence could not constitute visual identification evidence. Any link between the respondent and the offender was said to arise not from GMA’s evidence but from that evidence combined with all the other evidence in the case.
The Director also submitted that the judge was wrong to describe the definitions of ‘visual identification evidence’ in s 114(1) of the EA and of ‘identification evidence’ in the Dictionary as ‘concepts [which] are broadly defined’. According to the Director, the judge overlooked the requirement in the latter definition that the evidence must constitute ‘an assertion … to the effect that an accused was … present at or near a place where … the offence for which the accused is being prosecuted was committed … at or about the time at which the offence was committed’. In the present case, so it was said, GMA did not at any stage assert that the respondent was either present at the hotel or had any involvement with the glassing of TB.
The respondent conceded that, had GMA’s evidence been confined to a statement that the offender was a non-local man who wore a white singlet and glasses, who arrived at the hotel with ‘Scott’ and whom others described as ‘Pat’ or ‘Patrick’, it would not have constituted visual identification evidence because the evidence did not link the offender with the respondent. The respondent also conceded that GMA’s statement did not contain visual identification evidence. However, he submitted that the manner in which the evidence was adduced at the first trial provided a link between the offender and the respondent. The respondent relied in particular on the exchanges at [15]–[16] above which were said to be premised on the offender, ‘Pat’ and defence counsel’s ‘client’ being one and the same person.
According to the respondent, when GMA’s evidence was viewed in its entirety and in the context of the other evidence, it amounted to ‘an assertion … to the effect that [the respondent] was … present at … a place where … the offence for which [he] is being prosecuted was committed … at … the time at which the offence was committed’ within the meaning of the definition of ‘identification evidence’.
Decision on whether GMA’s evidence is visual identification evidence
In our opinion, GMA’s evidence does not constitute identification evidence. This is because it does not contain an assertion to the effect that the respondent is or resembles the person GMA saw glass TB. The evidence does not include a description of any physical features of the offender that would have enabled GMA to compare the physical features of the respondent and make an assertion that there is a resemblance between them.
Had GMA given evidence in accordance with his statement, no part of that evidence would have constituted ‘visual identification evidence’. This is because, in essence, such evidence would have been that the person who glassed TB was the non-local man who was wearing a white T-shirt and glasses and who came to the hotel with another man named Scott. Such evidence would not have included a description of any physical features of the offender which would have enabled a visual comparison to be made of the offender and the respondent. It follows that the evidence would not have contained anything which could have constituted ‘an assertion … to the effect that [the respondent] was, or resembles’ the offender.
It seems that much of the difficulty attending this case arose from the manner in which evidence was elicited from GMA at the first trial, both in chief and in cross-examination. Although GMA gave evidence which was consistent with his statement, both the prosecutor and defence counsel asked questions and made statements which linked the evidence to the respondent. This was particularly the case with defence counsel’s references to ‘my client’. Accordingly, the link between GMA’s evidence and the respondent resulted from the manner in which counsel for both parties conducted the case rather than from the nature of that evidence. In other words, insofar as GMA’s evidence had the effect of identifying the respondent as the offender, this resulted not from the content of the evidence but from the context in which defence counsel allowed that evidence to be given. GMA did not at any stage say either that the respondent was the offender or that the respondent resembled the offender. In essence, GMA’s evidence was that the offender was the friend of Scott who wore a white singlet and glasses. That evidence was neither identification evidence nor visual identification evidence.
Moreover, GMA’s evidence does not constitute recognition evidence for the purposes of the definition of identification evidence. Prior to the glassing incident, GMA did not learn anything about the man who accompanied Scott to the hotel other than that he wore a white singlet and glasses and was Scott’s friend. GMA said that he saw the same man glass TB but he did not at any stage say that he knew the man’s identity. Importantly, for the purposes of the definition of identification evidence, GMA never said that he recognised that man as the respondent.
The prosecution’s case was a circumstantial one, relying on the cumulative effect of all of the evidence which pointed to the respondent as the offender. That evidence included the respondent’s admissions, the testimony of various witnesses about his presence in the vicinity of the glassing incident and TB’s blood on his sneaker. GMA’s testimony is an important component of the circumstantial evidence. This is because he states that Scott’s friend who wore a white singlet and glasses was the offender in circumstances where many of the other witnesses state that Scott’s friend was wearing a white singlet and glasses and no witness gave evidence that any other person wore a white singlet and glasses at the relevant time. It would be a matter for the jury as to whether, on the whole of that evidence, they are satisfied that the respondent was the offender.
Any perceived weaknesses in GMA’s evidence arising from internal contradictions or inconsistencies with the evidence of other witnesses have no bearing on the question of whether the evidence constitutes visual identification evidence. It will be a matter for the jury to assess the reliability of GMA’s evidence and the weight to be given to it relative to the other evidence in the case.
It follows from the above that the judge erred in finding that GMA’s evidence constitutes visual identification evidence which is inadmissible by virtue of s 114(2) of the EA.
Whether it would have been reasonable to have held an identification parade
Having regard to our conclusion that GMA’s evidence is not visual identification evidence, the question of whether it would have been reasonable to have held an identification parade does not arise.
Whether leave to appeal should be granted
In circumstances where (as in this case) the judge has certified under s 295(3) of the CPA, applications for leave to appeal interlocutory decisions are governed by s 297, which relevantly provides:
297 When leave to appeal may be given
(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to—
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may—
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
(3) If the Court of Appeal refuses leave to appeal under this section, the refusal does not preclude any other appeal on the issue that was the subject of the proposed appeal.
For the reasons we have discussed, we are of the opinion that the judge’s ruling that GMA’s evidence was inadmissible plainly was incorrect.
Notwithstanding that the judge’s ruling was wrong, however, the respondent submitted that it is not in the interests of justice for this Court to grant leave to appeal for the following reasons:
(a) The prosecution does not have a case without GMA’s evidence and that evidence is unreliable because it is internally contradictory in some respects and is also inconsistent with the evidence of other witnesses. The weakness in GMA’s evidence has already resulted in one hung trial and the second trial has now been aborted. The change in the prosecution’s position about whether GMA’s evidence constitutes visual identification evidence has resulted in the ‘goal posts’ being ‘moved’ since the second trial. It is not in the interests of justice for the respondent to face a third trial as there is little prospect of a successful prosecution.
(b) Although GMA’s statement did not identify the respondent as the offender, the manner in which he gave evidence at the first trial means that he now believes that the respondent is the offender. That belief will affect his evidence at a third trial such that there is a real risk that his evidence would constitute inadmissible identification evidence. According to the respondent, it is now too late to ‘unscramble the egg’.
(c) If the fact that GMA’s evidence does not include a description of any of the offender’s physical features means that it does not constitute visual identification evidence, this is because the informant chose not to elicit such a description when he interviewed GMA. Had the informant done so, the evidence would have constituted visual identification evidence which would have required the holding of an identification parade. Thus, the informant’s conduct resulted in unfairness for the respondent.
In our opinion, leave to appeal should be granted.
The Director has been successful in establishing that the judge fell into error in finding that GMA’s evidence constitutes visual identification evidence and that, unless the error is corrected, it will bring the prosecution of the respondent to an end. In these circumstances, it would be contrary to the interests of justice to allow that error to go uncorrected.
It is regrettable that the respondent has already endured a concluded trial without verdict and an aborted trial and will now have to face a third trial. However, we do not accept his submission that it is not in the interests of justice for a third trial to take place. Nor do we accept his submission that it is now too late to ‘unscramble the egg’. In our opinion, for the purposes of s 114 of the EA, provided that precautions are taken to ensure that GMA’s evidence about the events at the hotel is confined to what he saw, it will not be inadmissible. Leading counsel for the respondent conceded as much. In essence, GMA saw a man who was not a local and who was wearing a white singlet and glasses arrive at the hotel with another man who was introduced to him as ‘Scott’ and later in the evening he saw the man who had accompanied Scott strike TB’s face with a glass. Care should be taken to avoid the errors in the first trial, where the prosecutor referred to ‘Pat’ and defence counsel referred to ‘my client’.
The circumstances that have given rise to this application for leave to appeal — including the second trial being aborted — mean that the factors in s 297(1)(a), (b)(i), (ii), (iv) and (2) of the CPA have little relevance. However, s 297(1)(b)(iii) is apposite because the determination of an appeal against the judge’s ruling will involve the resolution of an important issue of law and evidence that is necessary for the proper conduct of the third trial.
We are not persuaded that the conduct of the informant was such as to render it contrary to the interests of justice to grant leave to appeal.
We note that, at the second trial, defence counsel applied to have GMA’s evidence excluded pursuant to ss 135 or 137 of the EA. Having regard to his conclusion that the evidence was inadmissible under s 114(2), the judge did not deal with ss 135 or 137. Nothing we have said would preclude a future application under those sections.
Conclusion
For the above reasons the application for leave to appeal will be granted and the appeal will be allowed.
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