Dixon v The State of Western Australia [No 2]
[2014] WASCA 1
•8 JANUARY 2014
DIXON -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 1 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:123/2013 | 19 SEPTEMBER 2013 | |
| Coram: | BUSS JA MAZZA JA HALL J | 8/01/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on ground 2 refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK PETER DIXON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against conviction Identification and recognition evidence Directions to jury |
Legislation: | Nil |
Case References: | Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Mills v The State of Western Australia [2008] WASCA 219; (2008) 189 A Crim R 411 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DIXON -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 1 CORAM : BUSS JA
- MAZZA JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 1300 of 2012
Catchwords:
Criminal law - Application for leave to appeal against conviction - Identification and recognition evidence - Directions to jury
Legislation:
Nil
Result:
Leave to appeal on ground 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : Frederick Butafa Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Mills v The State of Western Australia [2008] WASCA 219; (2008) 189 A Crim R 411
1 BUSS JA: I agree with Mazza JA.
2 MAZZA JA: This is an application for leave to appeal against conviction.
3 The appellant was charged on indictment in the District Court with unlawfully doing grievous bodily harm to Douglas Gregory Herbert inside a nightclub in Albany on 22 January 2011. On 18 April 2013, he was convicted as charged by a jury. On 12 June 2013, he was sentenced to 2 years and 8 months' imprisonment with eligibility for parole.
4 Originally, the appellant sought leave to appeal on two grounds. At the hearing of the appeal, ground 1, which alleged a miscarriage of justice as a result of defence counsel's failure to cross-examine a doctor about an aspect of the evidence, was abandoned (appeal ts 46). Nothing more needs to be said about it. Ground 2 alleges that there was a miscarriage of justice because the learned trial judge failed to adequately direct the jury about identification and recognition evidence led at trial. Specifically, it was alleged that his Honour failed to adequately isolate and identify for the jury the weaknesses in the evidence of two prosecution witnesses, Mr Shannon Carson and Ms Emma Hull.
A summary of the case
5 On the evening of 22 January 2011, the victim went with some of his friends to a nightclub in Albany. Among those friends were Mr Carson and Ms Hull. The victim, Mr Carson and Ms Hull had consumed considerable quantities of alcohol prior to going to the nightclub.
6 After the victim had been in the nightclub for some time, and while he was on the dance floor, he was approached by Paul Thompson. The victim said that he ignored Mr Thompson, who appeared to be about to walk away. The victim faced the opposite direction to Mr Thompson and kept on dancing. He testified that all of a sudden he felt a blow to the back of his neck. The victim said he turned back to see Mr Thompson 'standing there'. At that point, he said he was 'king-hit' from the side, as a result of which he lost consciousness and fell backwards to the floor. The victim said that he regained consciousness and started to get up. At this point, he said he felt 'a massive thud' to the right side of his face, followed by 'massive stinging pins and needles' (ts 33 - 34).
7 The victim was unable to say who inflicted this last blow to his head (ts 40, ts 59). The next thing he remembered was being dragged down the stairs of the nightclub by Mr Carson.
8 Mr Carson testified that, on the night in question, he saw the victim and Mr Thompson (to whom he referred using the nickname 'Skinner') having a verbal disagreement on the dance floor. He said that he saw Mr Thompson strike the victim to the head, causing him to fall down. Mr Carson testified that he then saw the appellant kick the victim in the head while he (the victim) was on the floor.
9 Mr Carson said he then ran downstairs after the appellant. Mr Carson testified that he had a verbal confrontation with the appellant outside the nightclub. The defence case was that the confrontation was actually with the appellant's brother, Stephen Dixon.
10 Mr Carson testified that he did not know the appellant at the time of the assault. He subsequently saw the appellant 'on the street' in Albany. Mr Carson later agreed to take part in a digiboard identification procedure conducted by the police. He identified the appellant during that procedure as the person who had kicked the victim in the head.
11 Ms Hull testified that she saw Mr Thompson pull the victim aside and intensely talk with him on the dance floor. She said that she saw Mr Thompson hit the victim on the side of the head. She then saw the appellant 'come up out of nowhere' and kick the victim in the face. She said that Mr Thompson was 'too far away' to be the person who kicked the victim and that the only person close enough to have done so was the appellant. Ms Hull testified that she thought it was the appellant who kicked the victim because she recognised his clothing.
12 Ms Hull said that she recognised the appellant because she had previously been introduced to the appellant. Like Mr Carson, Ms Hull took part in a digiboard identification procedure, but she failed to recognise the appellant's photograph, even though it was one of the photographs on the digiboard. In cross-examination, she said that she could not be sure who kicked the victim.
13 In re-examination, she said that she did not really know the appellant or his brother Stephen. She explained that she had only been introduced to them. She said that she could not remember when she had been introduced to them, explaining that it could have been 'the weekend before or a couple of weeks before that'. She said that the appellant and his brother looked alike.
14 In addition to the evidence of Mr Carson and Ms Hull, the State also relied on evidence given by the victim about a conversation that he had with the appellant in the Premier Hotel after the nightclub incident, during which it was alleged that the appellant impliedly admitted that he had kicked the victim.
15 The appellant did not give evidence or adduce any evidence in his defence. The appellant's case at trial was that the identification evidence of Mr Carson and the recognition evidence of Ms Hull was not reliable and that the State had not proved, to the requisite standard, that the appellant was the person who kicked the victim. Further, the appellant, through his counsel, argued that the grievous bodily harm was caused, not by the kick, but by Mr Thompson's earlier king hit.
The summing up
16 His Honour instructed the jury that identification was the 'crucial issue in this case'. He gave very detailed directions about the evidence of Mr Carson and Ms Hull, clearly designed to conform with the well-known statement in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561 - 562 (Mason CJ, Deane, Dawson, Toohey, Gaudron & McHugh JJ):
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. (emphasis added)
17 His Honour summarised the evidence given at the trial, giving some emphasis to the evidence of Mr Carson and Ms Hull (ts 249 - 255).
18 It is unnecessary to set out all of his Honour's direction on identification and recognition evidence because the only deficiency in the direction alleged by the appellant is that the learned trial judge failed to adequately isolate and identify for the jury the weaknesses of the evidence of Mr Carson and Ms Hull. Hence, it is only necessary to set out that part of his Honour's direction which deals with these issues. His Honour commenced his direction on this subject with general directions as to how the jury should go about the task of assessing the evidence of the two witnesses. He said:
So there's slightly abstract concepts there, but in [Ms Hull's] case it's how reliable was her recognition, 'Oh, that's [the appellant],' and in [Mr Carson's] case it's how reliable is the system by which he picked out a photo which had [the appellant's] name behind it? So examine closely the circumstances in which they had the opportunity to see the perpetrator, and examine the circumstances surrounding their recognition and/or the process by which the identification was made.
For instance, how long did the witness see the offender for in the first place, and in what distance, and in what light? [Were] there any obstructions or distraction to the witness's observation, including nonvisual distraction such as noise? Was the witness under any impairments from alcohol, drugs, mood, stress, temper, or anything else?
Did the witness see the perpetrator clearly face-on, or only from an angle? Were there any other distinguishing features about the offender? They might be racial, hair, clothes, height, or something like that. Or was there nothing unusual or distinctive about the offender's appearance which could assist?
So if the perpetrator only has one eye and an eye patch on the other one and the description is given, 'Well, he only had one eye and he had an eye patch,' that is something which can bolster the reliability of the identification, but if the witness says, 'No, I didn't notice anything unusual about his face,' then that's obviously going to dilute the force of the identification because the witness has missed something - the eye patch. So this is all commonsense really, isn't it, but I'm trying to illustrate the sorts of ways you can go about assessing the evidence (ts 262 - 263).
19 His Honour then directed the jury's attention specifically to the identification and recognition evidence of Mr Carson and Ms Hull. With respect to Mr Carson he said:
Directing your attention [now] to [Mr Carson's] evidence where he made an identification at a later date, some four - three and a half months later - I direct you as follows. Delay between observation and identification at the police [sic] is a factor which you should consider in assessing the accuracy of the identification evidence.
Questions which you would need to consider was how long was it between the original observation and the subsequent identification of the person to the police? Has the witness's recollection of the person's appearance or the identification process been influenced in any way by events that occurred after the event - for example, seeing the person accosted by others afterwards, or bundled into the back of the police van - something like that.
A person's belief in the reliability of their identification, or even recognition if they don't know the person very well, can be affected and falsely enhanced by such matters. So let me give you an example … If the issue is whether or not I was at the TAB on Saturday afternoon and someone said, 'Yeah, he was there because I saw [him] going [in] and going out of the TAB.' But what if I, at the time, was carrying a carton of beer with me? Perhaps I had actually just been to the bottle shop and hadn't been into the TAB at all, has my mere proximity to the TAB been something which has influenced the person into thinking, 'Oh, he's gone to have a bet.'
In the same way, if someone saw someone accosting [the appellant], that might reinforce a view they have formed that it was [the appellant] that was the perpetrator. People start to hone in if someone gets accosted or arrested or their photo appears in the newspaper or something like that.
In [Mr Carson's] case he saw the man, [the appellant], he says, later on in the street, and again you've got to consider has that enhanced his memory in a way that could lead to error. He has testified that he identified the kicker, not the man he'd come to know as [the appellant], but he had come to know him because he'd seen him in the street as well as fought with him or argued with him outside the nightclub and so on.
Now, photograph identification, which is the process that [Mr Carson] used, has its drawbacks as well. A photograph is two dimensional, static and limited and only depicts facial features. It does not depict other identifying or exclusionary factors such as manner of moving, posture, variety of facial expressions, complexion, height, build, colouring or many of the other subtle physical characteristics that an actual sighting conveys to the mind.
A further danger is that a photograph of a person may resemble the suspect in the recollection of a witness who saw the suspect only once or in inferior circumstances or might resemble the person he's come to understand was the offender and so lead to a false identification of the accused. Also photo identification is capable of being influenced by expectations. For example, you should bear in mind the possibility of a witness being influenced perhaps subconsciously by the belief that the offender must necessarily be in [one] of the photos he is asked to examine.
The police go to some lengths to assure people that this is not necessarily so and that's why we show you the video so that you know that people - these factors are being dealt with and hopefully eliminated. Now, it's my duty at this stage to illustrate some of these matters that I'm talking about in relation to identification and recognition, to direct your attention to features of the evidence that might be relevant (ts 263 - 264).
20 His Honour then turned to the recognition evidence of Ms Hull. He said:
[Ms] Hull is said to have recognised the perpetrator. In other words, she saw the kick and she said, 'I think that's [the appellant].' So you're asking yourselves was that a reliable recognition. Well, relevant to that is the fact, is this, how well did she know him? She told us she'd met him once and only exchanged a couple of words with him and that was at the nightclub of one or two weeks prior.
She also met the other brother, Steve Dixon, at the same time on that particular occasion. The description she gave to the police was not accurate and she maintained in evidence a different description which you might think is not the same description that the policeman would give of [the appellant]. The description she gave to the police mentioned nothing about an eye ring or whatever they're called, eyebrow ring or stud. If [Mr Carson] is right and [the appellant] was wearing an eye ring that night then [Ms Hull] missed it.
Next, she did not identify [the appellant] in the digiboard. So she was shown a sheet, she didn't recognise him in the digiboard. So she recognised him, she says, in the nightclub but not on the digiboard. Also the point of that is allowing for the difficulties of the digiboard process which I have just remarked upon, she felt she could make a reliable recognition up to 98 per cent accuracy on the night, but when she was shown a photograph of the man who was said to have done it, she didn't pick him out. It didn't really matter whether he did it or he didn't. We know it was [the appellant's] photo and she didn't recognise it (ts 264 - 265).
21 His Honour returned to Mr Carson's evidence, saying:
So far as [Mr Carson] is concerned, he did not previously know [the appellant] so we're looking at the testing of his identification in a different way in some respects. He was being asked to identify a person who was a stranger to him until that night, so the issue is with all that has happened, when he sat down with the digiboard and picked out [the appellant], was the fact that [the appellant] was a stranger to him until all this happened, something that impacts on his ability to make the identification.
So far as the eyebrow ring is concerned he said that the man had an eyebrow ring. He said [the appellant] had an eyebrow ring on the night. He recognises he doesn't have one in the photo. Whether or not that's important is a matter for you. The [S]tate say[s] if you look at the photo you can see a shaved eyebrow. I don't know, people seem to love eyebrow rings down here. Most of the witnesses seem to have had one. At least three, I think, of the witnesses had an eyebrow ring, but they can be removed.
Anyway, that's something for you to bear in mind because if [Ms Hull] was right there was no eyebrow ring. Then he's identified a person who did have an eyebrow ring. So you see how you have to work your way through these issues and you have to be mindful of that factor I mentioned before of the possibility that his confidence when he came to make the identification has been reinforced by the sightings of [the appellant] after the event.
So he sees someone kick Doug. He chases the person downstairs. He accosts him. He gets a good look at him face to face and then some time later, he sees him walking around the streets of Albany. He goes, 'Oh, that's the guy'. You need to be conscious that his memory, which he later relies on to pick out a photo, could be influenced to some extent [by] that casual sighting in the street some time afterwards (ts 265 - 266).
22 His Honour concluded his direction in this way:
At the end of the day, in [Ms Hull's] case, it's has she made a reliable recognition, having regard to all these factors, and in [Mr Carson's] case, it's did he lay down a reliable memory on the night, so that he could pick a photo, did he not and has it been influenced by other events or could it have been influenced by other events (ts 266)?
23 His Honour did not, in substance, differentiate in his directions between Mr Carson's identification evidence and Ms Hull's recognition evidence. While recognition evidence may be more reliable than identification of a stranger, that is not always the case and, depending upon the circumstances, it may be appropriate to warn the jury of the dangers of a mistaken recognition in the same way as a judge would warn a jury about the dangers of mistaken identification. In light of Ms Hull's very brief prior contact with the appellant, his Honour was correct to warn the jury about her recognition evidence, consistently with the principles in Domican. See Mills v The State of Western Australia [2008] WASCA 219; (2008) 189 A Crim R 411.
24 The appellant's trial counsel took no exception to his Honour's directions.
The appellant's submissions
25 The appellant submitted that his Honour failed to adequately direct the jury as to the following weaknesses in the evidence of Mr Carson:
(a) Mr Carson's level of intoxication at the time of the incident, when he believed he saw the appellant.
(b) A party that did not witness the assault on the victim told Mr Carson that the man he saw was the appellant.
(c) Mr Carson gave inconsistent evidence as to whether, when using the digiboard to make his identification, Mr Carson was identifying the person he believed to be the appellant or the person he believed to have committed the assault.
(d) Mr Carson had seen the appellant on the street on at least two occasions prior to having made the identification.
(e) Some time had passed between the incident and Mr Carson making the identification. This, it was said, gave rise to a possible contamination of memory caused by:
(i) having seen the appellant on the street;
(ii) having been told the appellant's name; and
(iii) an 'amplification of the diminished recall' caused by Mr Carson's intoxication on the night.
(a) His Honour specifically directed the jury to have regard to impairments such as alcohol (ts 262). His Honour, earlier in his summing up, had directed the jury to consider whether the evidence of both Mr Carson and Ms Hull had been affected by alcohol. His Honour reminded the jury about their evidence concerning their alcohol consumption, saying:
[Mr] Carson said he wasn't very drunk, he only had about 10 JDs [Jack Daniels], he needs about 18 to get drunk. [Ms Hull] said she had only had eight Cruisers, she was only a bit tipsy (ts 222).
(b) His Honour specifically noted Mr Carson's evidence that he was given the appellant's name subsequent to the incident (ts 250). His Honour correctly directed the jury that it needed to consider whether 'the witness's recollection of the person's appearance or the identification process [has] been influenced in any way by events that occurred after the event' and noted that Mr Carson 'testified that he identified the kicker, not the man he's come to know as [the appellant]' (ts 263 - 264).
(c) It is difficult to make much sense of this submission. What is clear is that his Honour gave very clear and comprehensive directions about the weakness of the digiboard identification, including that a photograph may resemble someone he believed was the offender.
(d) His Honour specifically directed the jury to consider whether Mr Carson's memory had been 'enhanced' by seeing the appellant on the street after the alleged assault (ts 264).
(e) His Honour directed the jury about the delay between the alleged assault and the digiboard identification (ts 263).
27 As to Ms Hull's recognition evidence, the appellant submitted that his Honour failed adequately to direct the jury about the following weaknesses:
(a) Ms Hull's level of intoxication at the time of the incident.
(b) Ms Hull had only briefly met the appellant on one previous occasion, so she had little familiarity with him.
(c) When Ms Hull saw the appellant, she was on the dance floor where lights were flashing on and off.
(d) During the incident, Ms Hull had only seen the appellant 'very briefly'.
(e) Ms Hull testified that when she saw the appellant outside, she only saw him briefly under a streetlight.
28 Again dealing with each of these in the same order that I have just set them out:
(a) I will not repeat what his Honour said about intoxication. His Honour's treatment of this issue was entirely adequate.
(b) His Honour instructed the jury that it was relevant for them to consider how well Ms Hull knew the appellant. He directed the jury's attention to her evidence that she had only met the appellant once and had only exchanged a couple of words with him.
(c) It was not suggested in cross-examination that Ms Hull's view of the offender might have been distracted by lights on the dance floor. In any event, the jury were directed to consider the quality of the lighting when assessing a witness's identification or recognition evidence (ts 262).
(d) His Honour directed the jury that a relevant matter for it to consider in both the identification evidence and recognition evidence was 'how long did the witness see the offender for in the first place?' (ts 262).
29 It is clear from his Honour's directions that, with the authority of his office, he directed the jury to carefully consider all of the significant potential weaknesses in the evidence of Mr Carson and Ms Hull. The jury were warned about the dangers of mistaken identification and recognition. The warning was appropriate to the facts of the case and included a comprehensive summary as to the potential weaknesses of the evidence.
30 Defence counsel took no exception to his Honour's directions. The appellant has not demonstrated any miscarriage of justice in respect of his Honour's identification and recognition evidence direction. Ground 2 has no reasonable prospect of success.
Conclusion and orders
31 As the only live ground has no reasonable prospect of success, the appeal must be taken to have been dismissed. The orders I would make are as follows:
1. Leave to appeal on ground 2 is refused.
2. The appeal is dismissed.
32 HALL J: I agree with Mazza JA.
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