Gibbs, B.J. v The Queen
[1993] FCA 969
•21 DECEMBER 1993
BRENDAN JOSEPH GIBBS v. THE QUEEN
No. ACT G43 of 1993
FED No. 969/93
Number of pages - 7
Criminal Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
SPENDER, MILES AND EINFELD JJ
CATCHWORDS
Criminal Law - Appeal and New Trial - unreasonable or unsupportable verdict - principles applied by appeal court when reviewing a decision on the basis of unsafe or unsatisfactory verdict - whether identification evidence insufficient for conviction by jury - whether verdict unsafe in light of rejection of alibi evidence.
Criminal Law - Evidence - evidentiary matters relating to witnesses and accused - identification evidence - identification from photographs - whether identification of accused by witness from a collection of 12 photographs shown to witness 48 hours after offence is reliable when only 3 of those photographs matched description of offender - accused not a "direct suspect" - circumstances of and limitations upon showing to witness by police a series of photographs for purposes of identification of offender.
Crimes Act 1900 (A.C.T.) s. 103.
Alexander v. The Queen (1980-81) 145 CLR 395.
Chidiac v. The Queen (1990-91) 171 CLR 432.
Knight v. The Queen (1992) 175 CLR 495.
Morris v. The Queen (1987) 163 CLR 454.
HEARING
CANBERRA, 25 October 1993
#DATE 21:12:1993
Counsel for the appellant: Mr R. Livingston
Solicitors for the appellant: Gilpin and Associates
Counsel for the respondent: Mr J. Ibbotson
Solicitors for the respondent: Director of Public Prosecutions
ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
SPENDER, MILES AND EINFELD JJ This is an appeal by Brendan Joseph Gibbs from the conviction on his trial before Higgins J and a jury on 20 April 1993. The jury convicted the appellant on a charge that on 10 March 1992 the appellant entered as a trespasser the Heritage Motor Inn, Narrabundah, with intent to steal therein and at the time of so doing had with him an offensive weapon, namely, a knife. The appellant was sentenced by Higgins J on 2 July 1993.
The only ground of the appeal is:
" The verdict was unsafe and unsatisfactory and against the weight of the evidence. "
Two bases are relied on by the appellant for the submission that the verdict was unsafe and unsatisfactory. The first calls into question the quality of identification evidence of one Anthony Jason Charman, who was the occupant of a unit at the Heritage Motor Inn and who confronted an intruder in that unit on the evening of 10 March 1992. The intruder produced a knife and threatened Mr Charman and made good his escape by jumping from the balcony of the unit to concrete some ten to twelve feet below and running off through parkland with Mr Charman's wallet containing $525.00.
The Crown case against the appellant relied essentially on Mr Charman's identification of the appellant as the offender and of a jacket owned by the appellant which Mr Charman identified as having been worn by the offender.
The second basis focuses on the evidence of the appellant's former girlfriend, Janelle Marie Richards, a witness who was called by the prosecution and who gave evidence in the nature of an alibi for the accused. It was submitted that the effect of her evidence was that the appellant could not have been the offender, and the verdict was in those circumstances unsafe and unsatisfactory.
Having regard to the nature of the ground of appeal, it is necessary to refer to the evidence in some detail.
The evidence of Mr Charman was that he was lying on the floor watching a television program, "Chances", in the unit at the Heritage Motor Inn, when he heard the sound of a coin dropping on to the table in the unit. He had earlier placed his wallet on that table. All the lights in the unit were on and the illumination was good. On hearing the noise of the coin dropping, he turned his head and saw a person standing at the table with Mr Charman's wallet in his hand. Mr Charman was able to see his face. Mr Charman got up and ran towards the table, at which time the intruder was on one side of the table and Mr Charman on the other. They moved from one side of the table to the other, the separation being four to five feet.
In his evidence, Mr Charman described the person on the other side of the table as wearing a leather jacket with the collar pulled up above the bottom of the ears. The collar was not obscuring any part of the face. He was wearing black jeans, his skin was an "olivy yellow complexion". He said this "eyeball to eyeball" contact lasted at least five seconds and then the intruder pulled a knife from inside the jacket and Mr Charman fell backwards over a lounge. The intruder moved from the table to the sliding door of the unit which was open, and jumped off the balcony of the unit on to the concrete below. Mr Charman observed him getting up from the ground, but the intruder had "done something to his leg and was having trouble running'. The injury he said was to the left leg "as if he didn't have a lot of movement in his knee or ankle". He was limping as he ran, favouring his leg.
Mr Charman ran from the unit along a corridor down a set of stairs back to the place where the intruder had jumped over the balcony rail. By that time he was unable to see any person so he ran back upstairs and immediately contacted the police.
A Detective Constable Shane Patrick Connelly saw Mr Charman a short time later and took a statement from him about twenty minutes after the incident at a time when, according to Mr Charman, the events were "very fresh" in his mind.
Mr Charman in his evidence said "(a)t the time he was slouched over the table with my wallet in his hands I could get a clear look at his face and the clothes that he was wearing". He described the clothing of the intruder as black jeans and a black leather jacket pulled up to ear height, the jacket having patches in the shoulder similar to a baseball jacket with a couple of pockets on the front.
The description given to Detective Constable Connelly shortly after the events of 10 March 1992 was quite detailed, and was in the following terms:
" I would describe this person as: five foot seven to five foot eight inches tall, medium build, olive complexion with a stubble of beard on his face with longer hair on the area of his chin. The person was late teens, early 20s - say between 17 and 24 years. He was wearing black jeans, black baseball jacket of fake vinyl appearance, which had long sleeves which were puffy. A baseball cap which was black with what I think was the word 'Dodgers'. His shoes were also black and casual. The collar of his jacket was folded up to cover his neck and the bottom of his cheeks. His hair was dark and appeared to be tucked in the back of his jacket. It appeared long but it was hard to say because it looked like he was disguising his appearance. Whilst his skin was olive, it had a yellow tinge...(a)s if he was very sick.
As soon as I jumped up I rushed towards this male and I saw that he grabbed what appeared to be a knife from the stomach area of the jacket he was wearing. The male seemed to grab this knife with his left hand from a pocket in the jacket. The knife had a shiny gold solid metal handle with fancy patterns in it and a metal blade which was about the same length as the handle, this being about four inches in length. The total knife was about eight inches long. As I rushed towards the male he lunged at my face with the knife."
Two days later, on 12 March 1992, Detective Connelly was on patrol in the Kingston area of Canberra and, as a result of a radio message from Police Operations, attended at the Barton Tennis Club, where he saw the appellant, who then went with police officers to the City Police Station.
Late on the evening of 12 March, Detective Connelly took a polaroid photograph of the appellant with his permission. Detective Connelly then assembled twelve coloured photographs of male persons, including the photograph he had taken of Mr Gibbs.
Mr Charman was then invited to the police station, where he went through a bundle of photographs handed to him by Detective Connelly.
Detective Connelly then had a conversation with Mr Charman, which he recounted as follows:
" 'Anthony, as you're aware I'm investigating the robbery of your wallet from your hotel room on 10.3.92 about 10.30 pm.' He said, 'Mm.' I said 'I now intend to show you 12 coloured photographs numbered 1 through 12 SC/AC of male persons. If any of these male persons is this person you believed robbed you on 10.3.92 indicate the photograph to me and sign across that photo, do you understand?' He said 'Yes.' Mr Charman then looked through the photographs. He then said 'That's him, without a doubt'. I said, 'Do you agree that you have indicated photo No. 2 SC/AC?' He said, 'Yep, he's got the stubble, the black hair and everything.' I said, 'Are you sure that the photograph you have identified is the person that robbed you on 10.3.92?' He said, 'Yep.' I said, 'Are you prepared to sign across the photograph?' He said, 'Yep.' Mr Charman then signed across the photograph. I said, 'Are you now prepared to sign these notes to show that they are an accurate record of our conversation that has taken place?' He said, 'Yes', and I then saw him sign across the bottom of my field book notes. "
Counsel for the appellant made the concession that in the circumstances of the investigation at that time it was not possible for the police officers to have organised an identification parade; it was not the appellant's case that an identification parade should have been held rather than attempt an identification by means of photographs. This concession was properly made because at the time Mr Gibbs was not a 'direct suspect' for the incident involving Mr Charman.
In the early hours of 13 March 1992, Detective Connelly and another police officer went to the home of the appellant's father at 40 Anembo Street, Narrabundah and also to the flat of the appellant's former girlfriend, Janelle Richards, at 77 Discovery Street. At Miss Richards' flat, Detective Connelly found a "Roger David" brand leather jacket. He then arranged for five new leather jackets to be obtained from the Roger David shop. At about 5.40 p.m. on 13 March, Detective Connelly showed Mr Charman at the City Police Station six leather jackets. He had a conversation with Mr Charman, which he described as follows:
" I said, 'Anthony, I now want you to look at the following six jackets labelled SC/BG 1, 2, 3, 4, 5 and 6 and if any of these jackets are the one that was worn by the offender who robbed you on March 10 1992 please identify that jacket to me.' He said, 'All right.' He was then shown the jackets. They were laid out on the ground. "
Detective Connelly said that Mr Charman looked at them all carefully and he chose one of the jackets. Mr Charman said:
" This is the jacket. "
To which Detective Connelly said:
" Are you sure? "
To which Mr Charman said:
" 100 per cent. "
The jacket identified by Mr Charman is the jacket belonging to the appellant recovered from his former girlfriend's flat and identified by her in her evidence as belonging to the appellant.
Also on 13 March, Detective Connelly had a conversation with the appellant and with his consent arranged for a photograph to be taken of an injury to the knee of the appellant. Detective Connelly said that he saw a large area of bruising and swelling in the vicinity of the kneecap of the appellant. He asked the appellant:
" Can you tell me where that injury came from to your leg? "
And the appellant said:
" I was riding a pushbike down at my girlfriend's flat...it was only a little pushbike...I was just mucking around like that at the front and I fell over and the seat hit me under there. "
He was asked:
" When did this happen? "
to which he replied:
" "About two days ago. "
He was asked:
" What day did you injure your leg? "
He said:
" Yeah, Wednesday afternoon. "
The incident at Mr Charman's unit happened on the evening of Tuesday 10 March 1992, and the conversation between Detective Connelly and the appellant concerning his injured leg happened on the afternoon of Friday, 13 March 1992.
The twelve photographs from which Mr Charman identified the photograph of the appellant as being that of the intruder in his unit on 10 March 1993 were all coloured polaroid photos of young, caucasian males with various colours and lengths of hair and facial hair. Criticism was directed to the fact that some of the photographs were of persons whose description was inconsistent with the description given by Mr Charman on the night of the incident. Mr Charman said that three of the twelve photographs would be consistent with the description that he had given and would not have any major inconsistencies with that description. Two of the photographs in the group of twelve were different photographs of the same person.
Janelle Richards was called by the prosecution and identified the leather jacket identified by Mr Charman as the one worn by the intruder at his unit as belonging to the appellant. She also said that he owned a pair of black jeans. In her evidence before the jury she said that on the evening of 10 March, she was at her home and that the appellant was with her and that she does not recall his leaving her flat that night. She says that she and the appellant went to bed together and that she went off to sleep probably "about quarter past or half past ten", and at that time Mr Gibbs was in bed with her. Her flat at 27 Discovery Street is "probably about twenty minutes in walking distance" from the Heritage Motor Inn.
Miss Richards said that when she was spoken to by the police in the early hours of the Friday morning, 13 March, as to whether the appellant had visited her on the day of 10 March, she was not able to remember at that stage. She says that later on 13 March she remembered what had happened on the Tuesday night. She said:
" Because when the police came and searched my flat they asked about the Tuesday night and I couldn't remember what had happened and then on the Friday I thought what was on T.V. that night and I looked at the guide and that's how I remembered what happened that night. "
It was put to Miss Richards that at the committal proceedings she was asked:
" Do you remember anything happening during the evening of 10 March? "
To which she had answered:
" Well, we'd gone to bed and a friend of ours turned up. "
During her evidence at the trial, Mr O'Donnell, counsel for the appellant, having put that passage to Miss Richards, asked her:
" You told that to Mr Hockridge, did you? Do you remember that? "
She replied:
" I don't really remember it but I must have. "
Mr O'Donnell asked:
" This is back on 24 April 1992. You don't remember having said that? "
to which she replied:
" I think I did say that. "
Mr O'Donnell then asked:
" Do you now recall Steve Brownhill at any stage turning up and getting something briefly from Brendan? "
and she replied:
" No. "
The following exchange then occurred between Mr O'Donnell and Miss Richards:
" I suggest to you that on a previous occasion you've actually - you said under oath - it was put to you, 'I think the situation was that Brendan got out of bed and talked to Steven, is that right?' And you said, 'Yes.'? "---No. Do you remember saying something like that?---Yes. Thinking about it now, and given that you've cast your mind back using the TV program and it's important because the police were there and all of that, is it possible that Steve Brownhill turned up briefly and that you've forgotten about it?---No.
You don't think he came?---He didn't.
He didn't come as far as you're aware, is that the situation?---Yes. "
In re-examination by the Crown Prosecutor at the trial, Miss Richards was asked:
" Why did you tell the Court then that this person had turned up, 'Well, we'd gone to bed and a friend of ours turned up'"
to which she replied:
" I don't know. "
Miss Richards said that the appellant never wore a cap and didn't own a pair of black shoes. He owned only a pair of desert boots and a pair of thongs.
There is no allegation of procedural error in the course of the trial and, in particular, no criticism is made of the summing up of the trial judge, including his careful and full directions to the jury concerning identification evidence. Those instructions to the jury were consistent with the directions of the High Court concerning identification evidence in Domican v. The Queen (1991-92) 173 CLR 555. It is not suggested that any matter of significance which might reasonably be regarded as undermining the reliability of the identification evidence was not properly and forcefully pointed out to the jury.
As to the evidence of Miss Richards, the trial judge told the jury:
" ...in order to be satisfied that this offender was guilty, or this accused was the offender, if I may put it that way, not only would you have to be satisfied in this case that Mr Charman's identification was faultless, but you would also have to be satisfied that you could reject completely the evidence that Miss Richards gave as to his whereabouts. "
And later:
" She tells you that she was not able specifically to recall the accused's whereabouts when first spoken to by police about the matter, which presumably would be the 13th when the jacket was taken. She, however, was able to fix the day in question from a TV guide and by remembering back what program she had watched, LA Law and Inside Edition. As I say, that is a matter for you to evaluate in terms of whether you accept it or not, but I only reiterate to you again, that unless you are positively satisfied that her evidence was totally incorrect for one reason or another, that it would be impossible for the accused to be the offender. "
The jury in returning its guilty verdict must be taken to have had regard to the warnings and instructions of the trial judge, yet have been satisfied beyond reasonable doubt that the appellant was the offender. It also follows that the jury rejected completely the evidence of Miss Richards concerning the appellant's whereabouts on the evening of 10 March.
The appellant's contention that the verdict should be set aside as unsafe or unsatisfactory relies on the short time frame within which Mr Charman's observations happened; that the identification was that of a stranger; that of the twelve photographs which Mr Charman was shown, only three, according to Mr Charman, were consistent with his description to the investigating police officer shortly after the event; the "stubble" on which Mr Charman relied as one of the important factors in his identification is not apparent in the photograph taken of the appellant; there is the evidence concerning the appellant's footwear and the evidence of Miss Richards concerning the appellant's never wearing a cap; the absence of a cap or a knife at either of the premises at which the appellant lived; and the other matters of detail with which Mr Charman was attacked concerning aspects of his identification. It was submitted that these factors, either alone or together with the evidence of alibi offered by Miss Richards, make the verdict of guilty unsafe and unsatisfactory.
In Alexander v. The Queen (1980-81) 145 CLR 395, Gibbs CJ said at 399:
" The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime. "
Gibbs CJ referred to the holding of an identification parade as "the most reliable method of identification". However, as Gibbs CJ observed later at 400:
" ...it may be necessary for a police officer to show a number of photographs to a witness in an attempt to obtain information as to the identity of an offender; if such witness did identify the offender from a photograph, it would not necessarily be unfair for that witness later to be asked to select the offender from a group at an identification parade, but the fact that the witness had seen the photograph might affect the value of the later identification at the parade: see R. v. Dwyer and Ferguson
(1925) KB 799. "
His Honour said at 402:
" In Reg. v. Doyle (1967) VR 698 and Reg. v. Russell (1977) 2 NZLR 20 the photographs were shown to the witnesses during the investigation of the crime and before the arrest of the suspect; the report in R. v. Fannon and Walsh (1922) 22 SR(NSW) 427 does not make it clear at what stage the photographs were shown. In all these cases the evidence of identification by means of the photographs was held admissible and the convictions were upheld. "
And he said at 403:
" ...the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. "
Mason J at 430 said:
" In my opinion the Australian cases demonstrate that identification from police photographs is admissible evidence, that its probative value may be important, that the judge has a discretion to exclude it when he considers its prejudicial effect outweighs that value, and that directions may be given to ensure that unfair use is not made of the evidence...The approach taken in the Australian cases to which I have referred accords with what this Court said in Davies and Cody v. The King (1937) 57 CLR at pp 180-181, when it pointed out that 'in each case the question must be, not whether the identification has been conducted with propriety and fairness, but whether upon the whole evidence as it in fact existed when it came to be laid before the jury, and having full regard to the treatment of the matter at the trial, the actual verdict ought not to stand because a miscarriage of the kind described occurred'".
In determining whether the verdict of the jury in this case should be set aside as unsafe or unsatisfactory, the test to be applied by this Court is whether it was open to a reasonable jury to be satisfied beyond reasonable doubt of the appellant's guilt: Chidiac v. The Queen (1990-91) 171 CLR 432. In applying that test, this Court has to make an independent assessment of the evidence both as to its sufficiency and quality. The Court has, of course, to recognise that issues of credibility and reliability of oral testimony are matters for the jury and that an appellate court will only infrequently set aside a conviction as being unsafe. Where the question is whether the evidence of a vital Crown witness lacks reliability and credibility, the Court should and would intervene if it were of the view that the testimony is so unreliable or wanting credibility that no jury acting reasonably could be satisfied of the appellant's guilt beyond reasonable doubt.
In Chidiac (supra), each of these propositions appears from the judgment of Mason CJ at 442, where he said:
" It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted: Whitehorn v. The Queen (1983) 152 CLR 657 at pp 660, 686; Chamberlain (No. 2) (1984) 153 CLR at pp 532, 601, 604, 618-619; Morris (1987) 163 CLR at pp 461, 473. In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused; Whitehorn (1983) 152 CLR at p 686; Chamberlain (No. 2) (1984) 153 CLR at pp 534, 606-608; Morris (1987) 163 CLR at p 461. Or, to put it another way, it is for the court to decide whether, on the relevant evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt; Morris (1987) 163 CLR at pp 472-473. The appellate court does not discharge its responsibility by finding that there was evidence sufficient to entitle the jury to convict because a verdict may be unsafe or unsatisfactory when there is a sufficiency of evidence for that purpose: Chamberlain (No. 2) (1984) 153 CLR at p 531; Morris (1987) 163 CLR at p 473.
In deciding whether the jury, acting reasonably, should have entertained a reasonable doubt, it is the duty of the appellate court to make an independent assessment of the evidence: Ratten (1974) 131 CLR at pp 515-516; Chamberlain (No. 2) (1984) 153 CLR at p 534; Morris
(1987) 163 CLR at pp 463, 473. In making that assessment, the court must necessarily take into account the nature and quality of the evidence, as this Court did in Morris, when it set aside the conviction as being unsafe or unsatisfactory because it proceeded upon the jury's evident acceptance of an admission of guilt which, in the opinion of the Court, was unreliable. "
And at 444:
" ...the court must necessarily recognize that issues of credibility and reliability of oral testimony are matters for the jury. For that reason, if for no other, an appellate court will infrequently set aside a conviction as being unsafe because the evidence of a vital Crown witness lacked reliability or credibility. Nonetheless, occasions do arise when a jury proceeds to a conviction when the Crown case rests upon oral testimony which is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the required degree. Then the appellate court must discharge its responsibility to set aside the conviction as one which is unsafe. When that happens the court is not substituting its view of credibility for that of the jury; the court is giving effect to its conclusion that, notwithstanding the jury's apparent willingness to accept the particular witness or witnesses as credible, the evidence was, having regard to its nature and quality, insufficient to satisfy a reasonable jury of the accused's guilt according to the criminal standard of proof. "
See also the observations of Dawson J at 451 and McHugh J at 461.
It is against the background of the observations in Chidiac (supra) that in the judgment by Deane, Toohey and Gaudron JJ in Morris v. The Queen (1987) 163 CLR 454 at 473, their Honours said:
" A Court of Criminal Appeal must make an independent assessment of the evidence, both as to its sufficiency and its quality. "
and earlier on that page:
" ...it is clear that the question whether a verdict is unsafe or unsatisfactory involves a Court of Criminal Appeal undertaking an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused. "
In Knight v. The Queen (1992) 175 CLR 495, the High Court was concerned whether the verdict of a jury was unsafe and unsatisfactory. Mason CJ, Dawson and Toohey JJ at 503 said:
" That question can, in the circumstances of this case, be rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit Salvo. In considering that question, the Full Court were required to make their own assessment of the evidence, within the limits imposed by the fact that they neither saw nor heard the witnesses: see Chidiac v. The Queen (1991), 171 CLR, at pp 443-444, 453, 462; Carr v. The Queen (1988), 165 CLR 314, at p 331. They were required to act upon that view of the facts which the jury were entitled to take having seen and heard the witnesses: see Chidiac v. The Queen (1991), 171 CLR, at p 452. "
In the light of the trial judge's directions as to the evidence of Miss Richards, it is clear that they rejected that part of her evidence dealing with the whereabouts of the appellant on the evening of 10 March 1992. This they were entitled to do, particularly having regard to the evidence given in cross-examination concerning the absence of a recollection of the appellant's whereabouts when first spoken to by the police, the serious inconsistencies between her evidence at trial and what she had said at the committal hearing, and the absence of any explanation as to why she had given that earlier evidence.
The evidence of identification of the appellant by Mr Charman was admittedly given by a stranger and of a person whom Mr Charman had seen for only a short period of time. However, the identification was made in circumstances of good lighting and in circumstances where it might be expected that the features of the intruder were likely to be the subject of close scrutiny by Mr Charman. The identification of the appellant from photographs happened within forty-eight hours of the incident. On that evidence alone, in our opinion, the verdict was not unsafe or unsatisfactory.
That conclusion is fortified by the existence of other evidence supporting the identification of the appellant as the offender by Mr Charman. There are two strong pieces of evidence corroborating the correctness of the identification. The first is the identification of the appellant's jacket as that worn by the offender, the jacket of the appellant being located as a consequence of the photograph identification of the accused by Mr Charman as the intruder. The second is the injury to the left knee of the appellant observed and photographed on 13 March 1992 which is consistent with the observations by Mr Charman that the offender appeared to injure his left leg in the area of his knee or ankle in jumping from the balcony to the concrete below on 10 March 1992.
On the whole of the evidence, the verdict was not unsafe or unsatisfactory and the appeal should be dismissed.
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