Gray v The State of Western Australia - [2010] WASCA 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GRAY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 114

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 17 MAY 2010

DELIVERED : 24 JUNE 2010

FILE NO/S: CACR 170 of 2009

BETWEEN: TRAVIS LEIGH GRAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
File No  :IND 359 of 2009

Catchwords:

Criminal law - Appeal against conviction - Identification and recognition evidence - Adequacy of trial judge's directions - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr D Dempster

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Mills v The State of Western Australia [2008] WASCA 219
Omar v The State of Western Australia [2009] WASCA 198
Tang v The State of Western Australia [2010] WASCA 30
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159

McLURE P: The appellant seeks leave to appeal against his conviction after trial on one count of aggravated burglary and one count of unlawful wounding. The sole ground of appeal is that the trial judge failed to 'adequately direct' the jury about the evidence of recognition.
The offences were committed during an invasion of the home of Justin McKain at 93 Amazon Drive, Greenfields on 21 July 2008 at around 6.00 pm by a number of men. The appellant was charged with two co‑accused, Kerry Harvey and Mark Robertson. Harvey and Robertson gave evidence in their defence and admitted being present at the complainant's home at the time in question. The appellant did not give evidence at trial but his defence case was that he was not present.
The complainant gave evidence as follows. Three men secured a violent entry through the front door of his home at about 6.00 pm on 21 July 2008. The three men, who were armed with bats and lumps of wood, were people who he had seen before. He identified them as the appellant, Harvey and Robertson (ts 41). On entry, they were yelling something about 'Brooke' who was Robertson's ex‑girlfriend (ts 42). Two other people entered the house after the three identified by the complainant. The other two were wearing disguises.
The co‑accused were yelling and brandishing weapons. The complainant backed into the hallway moving towards the backdoor or the backroom. He received two gashes to his head, the first from a hit over the head with a baseball bat (ts 46) and the second was caused by the appellant throwing an ornament (a Balinese statue) which hit the complainant on the head (ts 45, 47, 73). The incident took around four or five minutes in total (ts 49).
The complainant had seen (but not spoken to) the appellant and Harvey at a gathering at Robertson's house some three weeks prior to the home invasion (ts 45, 72). The complainant was at that time a friend of Robertson's (ts 54). In response to a question as to whether the complainant noticed anything unusual about the appellant, the complainant referred to the appellant's haircut and a tattoo on his forearm of the word 'ANARCHY'. There was photographic evidence at trial of the appellant's appearance at the time of the offences. He had a distinctive 'mullet' haircut. The tattoo on his forearm is also very distinctive; it occupies the majority of the inside of the appellant's forearm.
Shortly after the incident, the complainant gave a statement to police identifying the appellant, Harvey and Robertson as the offenders. However, he was unable to describe to police the clothing the appellant was wearing at the time of the offences or say whether he had facial hair.
On 23 July 2008, the complainant was requested by police to identify the offenders from a digiboard of twelve persons. The complainant selected the appellant.
The trial judge gave a comprehensive direction on the subject of recognition and identification. He said:
Another matter that requires your specific attention is what we call recognition and identity evidence. There is no dispute, on the evidence, that the accused persons, Robertson and Harvey, were present at 93 Amazon Drive, Greenfields, at the time of the alleged incident. The issue for you is why were they there and what did they do? It is disputed, however, that the accused, Gray, was present. And he denied any knowledge of his presence there in his recorded interview … He also denies, in the recorded interview, knowing Robertson, Harvey or McKain. Although you'll recall that Robertson stated in his evidence, that Gray was a friend of a Matthew Nott and had worked for Robertson's father. So Gray's identity, as an accused, that is the validity of Mr McKain's recognition of him at the time of the incident, is an important matter for your consideration. The reliability [of] McKain's recognition evidence is a critical issue for your determination in respect to the charges against Mr Gray. Was he present on the occasion in question? It's important to bear in mind, and indeed, you're probably well aware of it, but common experience suggests a potential for unreliability of recognition evidence based on a single sighting of a person, particularly if that person was not well known to the witness providing the recognition evidence, because mistaken identity is a reality. And evidence of recognition based on personal impression, however bona fide the person forming the personal impression might be, can be unreliable. And it may be that unless that impression is supported by other facts, it's reliability might be doubtful. Such evidence is frequently given with confidence by respectable and honest witnesses who are nevertheless mistaken.
Many of us have had the experience of going up to someone, in the street or a social occasion, thinking they it is someone other than it turns out to be. So there's therefore a special need for caution before accepting identification or recognition evidence. If a person, of course, is a stranger, then of course so much more is the likelihood of a mistake being made. If a person has unusual or particular features, that enhances the reliability of subsequent recognition. McKain refers to the fact that Gray had a particular hairstyle which drew his attention. And that he had a tattoo on his arm, although he doesn't suggest, in his evidence, that he saw that tattoo at the time of the incident. Mr McKain gave evidence that he saw Gray and Harvey at a social gathering at Robertson's house approximately three weeks before the incident. He didn't indicate the circumstances in which he saw him, but if you were satisfied Gray was at that function it will be open to you to conclude that McKain probably had a reasonable opportunity to observe him. That's a matter for you, particularly as the function, you are told, went well into the night and he said that he noticed that Gray had a tattoo 'anarchy' on his arm and a particular hairstyle. You can evaluate that observation from the consideration of the photographs of Gray, which of course are before you in evidence. He said that it was at that function that he told you he also observed Harvey being the only occasion he had previously observed him. And there seems to be no error on the material before you, with his subsequent identification or recognition of Harvey. We know that Harvey was present at the house at the time of the incident. And that is a matter that you're entitled to take into account, in determining or making a finding as to McKain's powers of observation and his capacity to observe and recognise. It's a matter for you, as the judges of the facts ‑ but it will be open to you to conclude that McKain would have had an opportunity and every good reason to make careful observation of those persons who entered 93 Amazon Drive and participated in the altercation with him.
You also have the evidence of the subsequent digiboard identification, although the significance of that is somewhat limited, since McKain had already indicated to the police his recognition of the people who had come to the house, he says, as a result of his seeing them at the party. And you may think that the exercise of the digiboard was simply to provide some limited confirmation of the recognition on the surnames of the people concerned. But that's a matter for you. There was also no lengthy delay between the incident and McKain's recognition or identification account. In respect of the digiboard identification, there are some drawbacks to it, but in the context of this case it is not suggested that the persons identified by the digiboard examination were not the persons that McKain indicated them to be. So it is important in looking at McKain's recognition or identification that you do so very carefully, that you do so having regard to the matters that I have spoken about (ts 335 ‑ 337).
In the course of referring to the defence cases, the trial judge noted that both Harvey and Robertson gave evidence that the appellant was not at the party attended by the complainant of which he gave evidence and was not present at the complainant's home at the time of the incident. The trial judge continued:
In respect of the evidence of McKain, the recognition evidence, which of course is critical to the involvement of Gray, it is said that there was no detailed evidence given from McKain, to indicate that he had a reasonable opportunity of careful observation of Gray at the social function, even if Gray was there, which is denied, was the case. It is said that the incident was of very short duration. That it took place in a confined space within the house. That, even accepting McKain's evidence, he was being confronted by Robertson and Harvey and would have had no opportunity to carefully observe the third person, whoever that was. It was pointed out that he was not able to describe clothing or facial hair when asked about Gray. And that there is no evidence, before you, concerning the lighting within the premises and the capacity to make careful observation of anyone within the house. And that of course, is a matter that you must consider, having regard to the issues already outlined to you (ts 348).
There is no dispute in this case as to the scope and application of the relevant legal principles which have been canvassed by this court in Winmar v The State of Western Australia (2007) 35 WAR 159, Mills v The State of Western Australia [2008] WASCA 219, Omar v The State of Western Australia [2009] WASCA 198 and Tang v The State of Western Australia [2010] WASCA 30. It is unnecessary to repeat them.
In support of the assertion that the trial judge failed to adequately warn the jury of the danger of convicting on the complainant's evidence, the appellant refers to the following matters:
(i)the complainant had never actually met the appellant before the offences were committed;
(ii)the complainant had observed the appellant only once before he was assaulted;
(iii)there was limited evidence about the circumstances of the alleged initial sighting by the complainant of the appellant at Robertson's house;
(iv)although he observed a distinctive tattoo and hairstyle on the first observation, there was no mention of these with regard to the relevant offender;
(v)the complainant is unlikely to have acquired any real familiarity with the appellant as a result of the first observation;
(vi)the complainant's alleged recognition of the appellant occurred in the course of a violent assault, in particular, after he was struck, at least once, to the head with a baseball bat;
(vii)at the time the offender, said to be the appellant, threw the ornament he was said to be 'a fair distance' from the complainant;
(viii)the complainant did not say that at any time during the assault he saw the relevant offender's facial features;

(ix)the alleged recognition occurred in circumstances which did not permit careful and measured reflection on the characteristics of the offender.

It should be noted that the complainant was not cross‑examined about the surrounding circumstances in which he had observed the appellant at Robertson's party. Having regard to all the evidence, in particular the contemporaneous photographs of the appellant, there was no requirement for the trial judge to direct the jury that it was unlikely the complainant would be sufficiently familiar with the appellant to be able to recognise him three weeks later. It was also relevant, as the trial judge noted, that the complainant was able to correctly recognise Harvey who he also met for the first time at the same party. Moreover, the assertion that the complainant's recognition of the appellant occurred after he was violently assaulted is incorrect. The complainant recognised the appellant on his entry into the house (ts41). As to the throwing of the ornament, 'a fair distance' has to be seen in its proper context, being that the appellant was in the hallway and the complainant in a bedroom (ts 60).
The appellant's complaint about the adequacy of the trial judge's direction is without merit. The trial judge correctly identified the dangers of convicting on the recognition and identification evidence and referred to all the relevant factors and evidence to which the jury should have regard. The appeal has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
BUSS JA: I agree with McLure P.
MAZZA J: I agree with McLure P.