Elkington v The Queen
[2002] WASCA 34
•22 FEBRUARY 2002
ELKINGTON -v- THE QUEEN [2002] WASCA 34
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 34 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:180/2001 | 21 FEBRUARY 2002 | |
| Coram: | SCOTT J | 22/02/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Bail granted | ||
| B | |||
| PDF Version |
| Parties: | SHERRI-ANNE ELKINGTON THE QUEEN |
Catchwords: | Bail Application for bail preceding appeal Exceptional circumstances required Child of applicant born in prison Strongly arguable grounds of appeal Exceptional circumstances established |
Legislation: | Bail Act 1982, Sch 1, Part C, cl 4 |
Case References: | Bernt v The Queen (1994) 70 A Crim R 1 Collard v The Queen [2000] WASCA 417 Lapthorne v The Queen, unreported; Library No 960464; 23 August 1996 R v Penny, unreported; Library No 970143; 8 April 1997 Rechichi v The Queen [2001] WASCA 319 Roser v The Queen [2001] WASCA 190 Yarran v The Queen [2002] WASCA 52 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ELKINGTON -v- THE QUEEN [2002] WASCA 34 CORAM : SCOTT J HEARD : 21 FEBRUARY 2002 DELIVERED : 22 FEBRUARY 2002 FILE NO/S : CCA 180 of 2001 BETWEEN : SHERRI-ANNE ELKINGTON
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Bail - Application for bail preceding appeal - Exceptional circumstances required - Child of applicant born in prison - Strongly arguable grounds of appeal - Exceptional circumstances established
Legislation:
Bail Act 1982, Sch 1, Part C, cl 4
Result:
Bail granted
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Category: B
Representation:
Counsel:
Applicant : Ms C A McKenzie
Respondent : Mr L Hobson
Solicitors:
Applicant : McKenzie Lalor
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bernt v The Queen (1994) 70 A Crim R 1
Collard v The Queen [2000] WASCA 417
Lapthorne v The Queen, unreported; Library No 960464; 23 August 1996
R v Penny, unreported; Library No 970143; 8 April 1997
Rechichi v The Queen [2001] WASCA 319
Roser v The Queen [2001] WASCA 190
Yarran v The Queen [2002] WASCA 52
Case(s) also cited:
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1 SCOTT J: This is an application for bail pending appeal.
2 On 16 May 2001, the applicant was convicted of armed robbery in company following a trial in the Supreme Court at Esperance.
3 The applicant has applied for leave to appeal against conviction (she being out of time) and the appeal is not yet listed for hearing.
4 Following conviction the applicant was sentenced to a term of 5 years' imprisonment which, I was told by counsel, was backdated so that the applicant would become eligible for parole in September 2002. I am also told by counsel that the applicant will be eligible for work release in March of this year.
5 The grounds of the application essentially fall into two categories. The first that the prosecution failed to produce a police notebook in which a conversation with one Philip Jeffrey Shelton ("Mr Shelton") is said to be recorded. I am told by counsel that the Commissioner of Police was subpoenaed to attend the trial and to produce any statements, case notes, running sheets and other material relevant to the investigation. I am also told that for some reason the police failed to produce the notebook at trial and that the existence of the notebook and the relevant entry was not discovered until after the trial concluded. The relevance of the entry in the notebook arises from the fact that counsel for the prosecution criticised the evidence of Mr Shelton (a defence witness) on the basis that there was no record of his having spoken with the police at the time of the incident. As I understand the position, Mr Shelton had testified that he spoke to the police on the day of the armed hold-up and had told the police what he had seen on that day. The criticism made of his evidence was that, had he spoken to the police, a record would have been kept. As it transpires, there was a record, not only of Mr Shelton's name and address, but also some brief notes of what he said. The brief note which has been produced in evidence before me on this application says:
"Saw car only blue four-door car small round shape alloy wheels."
6 The significance of that note is, I am told, that it confirms Mr Shelton's evidence that when he saw the car in question (the car used in the armed hold-up), no person was in the vehicle. The prosecution's case was that three people were involved in the armed hold-up, two of whom went and actually committed the robbery. The defence case, on the other hand, was that the applicant had nothing to do with the armed robbery and that only two people were involved.
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7 I should add that the prosecution also called as witnesses the two offenders who pleaded guilty to the robbery. Each identified the applicant as the third person involved in the offence. Those two witnesses were, of course, accomplices and I am told by counsel that no criticism is made of the Judge's summing up in relation to the warnings given to the jury in relation to the evidence of accomplices.
8 The second ground for the application relates to the other identification evidence. The victim of the robbery, Jane Frances Clarke, identified the applicant from a photo identity board. Her evidence at trial was that one of the persons who entered her shop and committed the robbery was identified by her from a photograph on the photoboard. That witness did not say that the person in the dock was the offender or that the person in the dock was the person on the photoboard. Her evidence was that she had been shown a photoboard 10 days after the offence and had identified one of the offenders from the photo on the photoboard.
9 The Crown's case so far as identity was concerned therefore consisted of the evidence of accomplices and photoboard identification. In recent times the Court of Criminal Appeal in this State has criticised photoboard identification: see Collard v The Queen [2000] WASCA 417 per Kennedy J at [14]; Lapthorne v The Queen, unreported; Library No 960464; 23 August 1996; Yarran v The Queen [2002] WASCA 52; R v Penny, unreported; Library No 970143; 8 April 1997. In Roser v The Queen [2001] WASCA 190 Anderson J, with whom Malcolm CJ agreed, said at [65-70]:
"Photo identification
There is a special risk that identification evidence may lead to wrong convictions. It is extremely difficult to demonstrate in court by cross-examination or by any other forensic means that an identification which is sincerely and honestly made is in truth a mistaken identification. Yet, all too often, it is. This has led courts of appeal to lay down rules as to when trial Judges should exclude identification evidence and as to what directions should be given when the evidence is admitted and the case goes to the jury for decision: R v Turnbull [1977] QB 224; Domican v The Queen (supra), especially at 561 - 562.
The practice of photo identification is of long standing. The police have used it for many years as part of the investigation and detection process and to prove in court that the accused
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- committed the offence. Early cases exemplifying this include, in England, R v Palmer (1914) 10 Cr App Rep 77; in Australia, R v Fannon & Walsh (1922) 22 SR (NSW) 427 and Davies & Cody v The King (1937) 57 CLR 170 at 178; in Canada, R v Bagley [1926] 3 DLR 717.
The courts have always been especially cautious and vigilant in their receipt of photo identification evidence; particularly when the first act of photo identification takes place after the suspect has been brought to a police station.
Photo identification evidence is regarded as less reliable than face to face identification because photographs provide an inferior representation of a person. A photograph is two-dimensional, static and limited. It does not depict manner of moving, posture, variety of facial expression, complexion, body size, body shape, colouring, nor many of the other subtle physical characteristics that an actual sighting conveys to the mind. The danger is that a photograph of some other person may resemble the suspect in the hazy recollection of a witness who saw the suspect once only, and so lead to a false identification. Another reason for judicial vigilance relates to the effect on the human recognition process once a person has seen a photograph of the suspect. As it was explained in Davies & Cody v The King (supra) at 181 - 182, " … inspection of a photograph of the person in custody before viewing him naturally tends to impress on the mind the characteristics shown in the photograph, so that the witness, however honest he may be, tends to identify the person in custody with the person shown in the photograph rather than with the person whom he himself saw previously". This is the "displacement" effect of photo identification.
Then there is the problem of possible prejudice created by the mere fact that the police have the suspect's photograph. Evidence that police showed to the witness a photograph of the accused suggests to the jury that the accused was already known to the police; that the accused's photograph is in the "rogues gallery". As Stephen J put it in Alexander v The Queen (supra) at 409, it "may often strongly suggest to a jury that the accused has a criminal record, perhaps even a propensity to commit a crime of the kind with which he is charged". So, the very existence of the photograph in police hands tends to be
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- prejudicial. All the more so if it is put into evidence and is obviously a "mugshot". In R v Dwyer & Ferguson [1925] 2 KB 799 a conviction was quashed on the basis of prejudice because the photograph by which the two accused were identified depicted them in prison clothing.
Another objection to photo identification evidence is that it has an element of unfairness inasmuch as the suspect is not present to observe the manner in which the identification process was conducted. Not having been present, he or she will not have the capacity to reveal any weaknesses that may have attended the process, or the identification, except perhaps by chancy cross-examination: Alexander v The Queen (supra) per Gibbs CJ at 400; Stephen J at 409."
10 In this case counsel for the applicant contends that the photoboard identification was contaminated by the fact that after the complainant had made her identification from the photoboard a detective "confirmed that it was the same person that they arrested on the day in question". That statement appears in the victim impact statement of Jane Frances Clarke dated 14 May 2001 which was produced to the trial Court for the purpose of sentencing.
11 It follows, in my view, that there is a strongly arguable case that the identification evidence was deficient. In reaching that view, of course, no concluded view can be reached as to the significance of the identification evidence until the appeal is heard and the issue fully argued. It is sufficient for present purposes to say that, in my view, the applicant has a strongly arguable case that the identification evidence was deficient: see Rechichi v The Queen [2001] WASCA 319 per Murray J at [9] and [10].
12 The applicant also relies upon the fact that since being incarcerated she has given birth to a child. In her affidavit sworn 17 January 2002 the applicant deposes to the fact that she gave birth to a daughter on 14 November 2001 and that the daughter is living with her at the Eastern Goldfields Regional Prison. The affidavit sets out the difficulties the applicant has encountered in trying to cope with a baby in prison conditions. Her evidence in that respect is supported by her father in his affidavit of 17 January 2002.
13 The next matter of concern is that the applicant will have served a substantial part of the non-parole portion of her sentence prior to the appeal being heard. In that respect it has been indicated that the appeal
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- may be heard as an urgent matter in the March sittings of this Court, if that can be arranged, but otherwise it is likely to be heard in May. In either event, the applicant says that she will be eligible for work release in May 2002, with a parole eligibility date in September 2002. In either event, a substantial portion of the non-parole period of the sentence will have been served before the appeal can be heard: see Bernt v The Queen (1994) 70 A Crim R 1.
14 It was accepted by counsel for the applicant that for bail to be granted exceptional circumstances must be demonstrated: cl 4, Sch 1, Part C Bail Act 1982.
15 In all the circumstances of this case I am persuaded that the applicant has demonstrated exceptional circumstances sufficient to justify the grant of bail.
16 I would allow bail in the sum of $20,000 with a surety of like amount with the following special conditions:
(1) that the applicant reside with her parents at 36 Piccadilly Street, Kalgoorlie;
(2) that the applicant not attend Esperance whilst on bail;
(3) that the applicant attend the Court of Criminal Appeal either by videolink or in person at the date fixed for the hearing of the appeal;
(4) that the applicant report to the officer in charge of the Kalgoorlie police station on Friday of each week commencing on 1 March 2002 at a time to be arranged with the officer in charge of that police station; and
(5) that the applicant surrender to the police officer in charge of the Kalgoorlie police station her current passport (if she is the present holder of one).
17 In view of the fact that the applicant is in Kalgoorlie, I will authorise any Justice of the Peace in the State of Western Australia to approve a proposed surety.
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