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GUNSON -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 158

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 158
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:35/2015	Heard:	22 MAY 2015
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	14/08/15
No of pages:	18	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	ASHLEY JAMES GUNSON THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Appellant convicted after trial of murder Whether a miscarriage of justice arose from the manner of the appellant's arraignment Whether the trial judge misdirected the jury in relation to the objective character of the bodily injury the appellant allegedly intended to cause the victim Whether the trial judge misdirected the jury in relation to identification evidence
Legislation:	Criminal Code (WA), s 10B, s 279, s 280 Criminal Procedure Act 2004 (WA), s 3, s 126, s 142 Evidence Act 1906 (WA), s 32
Case References:	Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GUNSON -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 158 CORAM : McLURE P

BUSS JA

MAZZA JA

HEARD : 22 MAY 2015 DELIVERED : 14 AUGUST 2015 FILE NO/S : CACR 35 of 2015 BETWEEN : ASHLEY JAMES GUNSON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : SIMMONDS J

File No : INS 81 of 2014

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of murder - Whether a miscarriage of justice arose from the manner of the appellant's arraignment - Whether the trial judge misdirected the jury in relation to the objective character of the bodily injury the appellant allegedly intended to cause the victim - Whether the trial judge misdirected the jury in relation to identification evidence

Legislation:

Criminal Code (WA), s 10B, s 279, s 280

Criminal Procedure Act 2004 (WA), s 3, s 126, s 142
Evidence Act 1906 (WA), s 32

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters

Respondent : No appearance

Solicitors:

Appellant : J A Bougher, 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
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159

1 McLURE P: I agree with Buss JA.

2 BUSS JA: The appellant has applied for leave to appeal against his conviction for murder.

3 By an indictment dated 28 May 2014, the appellant was charged with three counts.

4 Count 1 alleged that on 11 January 2014, at Atwell, the appellant murdered Jamie Devine, contrary to s 279 of the Criminal Code (WA) (the Code).

5 Count 2 alleged that, on the same date and at the same place as in count 1, the appellant unlawfully wounded Brodie Brouns, contrary to s 301(1) of the Code.

6 Count 3 alleged that, on the same date and at the same place as in count 1, the appellant unlawfully wounded Karl Viandante, contrary to s 301(1) of the Code.

7 After a trial in the Supreme Court before Simmonds J and a jury:

(a) the appellant was convicted of having murdered Mr Devine, as alleged in count 1;

(b) the appellant was convicted of having unlawfully wounded Mr Brouns, as alleged in count 2; and

(c) the appellant was acquitted of having unlawfully wounded Mr Viandante, as alleged in count 3.

The facts and circumstances of the offending

8 The facts and circumstances of the offending, as found by the trial judge in his sentencing remarks, were as follows:

On Friday, 10 January 2014, you went to a 21st birthday party of a Mr Jason Dorrington at a residential address in Atwell, a Perth suburb.

You went there first in the early evening for a short time. You then went home, got changed and returned. You had been drinking prior to going to the party. You continued to drink throughout the evening at the party. You had consumed a substantial quantity of alcohol prior to the beginning of the events that I reach now.

Towards the end of the evening you became involved in an altercation with a Mr Karl Viandante. He and the disc jockey for the evening were packing up the disc jockey's equipment. You had assumed that Mr Viandante was stealing the equipment. Your altercation was broken up by Mr Kyle Strawbridge.

You were agitated after that confrontation. You armed yourself with a sharp object, likely a pair of scissors, and in the course of a confrontation with Mr Strawbridge threatened him by holding that object close to his neck. I am satisfied beyond a reasonable doubt as to these initial matters involving the object. In my view, it matters not how you came upon the object and perhaps ultimately the pair of scissors I will shortly refer to. It matters not as it is not contended before me that there was any significant planning or premeditation of aggressive violence using them in the picking up of them.

A woman at the party ran for assistance and Mr Strawbridge threw you to the side while attempting, without success, to grab the object from you. A friend of yours intervened and attacked Mr Strawbridge. Others came out of the party. A significant number of people became involved in fights.

A number of people at the party, including Mr Brodie Broun and his sister, tried to break up the fighting. The deceased, Mr Jamie Devine, was in the vicinity of the fighting. However, he was not involved in it. At one point, you stabbed him with a pair of scissors, with which you were by then armed, while he was standing to the side of the fighting. The deceased was not offering any threat to you. You had no reason to see a threat from him.

You stabbed him with the scissors once in the chest. The scissors penetrated his chest, travelling through his right lung and into his heart, causing death. You intended to cause a serious injury. It was, objectively, of such a nature as to endanger or be likely to endanger human life. After stabbing the deceased you moved into the fighting.

I have found beyond a reasonable doubt that you intended to inflict a serious injury, in view of the evidence as to your having thrust the scissors at the chest of Mr Devine in a front-handed and not a backhanded way, and your proceeding away from him after the stabbing without any indication of concern about his condition. In my view, it matters not whether you were aware that the injury you inflicted was life threatening, given that finding.

…

At some stage, after you moved into the fighting, you stabbed Mr Brodie Brouns with the scissors. This caused a stab wound to his right forearm which later required surgery on two occasions. I consider this to be a serious stab wound. Mr Brouns was, at the time, attempting to break up some fighting. He offered no threat to you or any other person, nor could his conduct have reasonably been perceived by you to offer any such threat.

You were then confronted by a number of others from the party. You fled with the scissors to a nearby address. There you were assaulted by more than one person, causing you a serious laceration which, after your arrest, was sutured. You went home, changed, at least concurred in the burning of your clothes, and drove to a friend's house in another suburb where you removed the SIM card from your mobile telephone. You were located in the late-afternoon by police. You were arrested [26] - [36].

The appellant's admissions pursuant to s 32 of the Evidence Act 1906 (WA)

9 The appellant made the following admissions, at the commencement of the trial, pursuant to s 32 of the Evidence Act 1906 (WA):

(a) on 11 January 2014, on Lydon Boulevard, Atwell, he stabbed Mr Devine in the chest;

(b) he thereby caused Mr Devine's death; and

(c) he stabbed Mr Devine using a pair of scissors, which were later located by police.

The nature and extent of Mr Devine's injuries

10 The State called evidence from Daniel Moss, a consultant forensic pathologist. Dr Moss conducted an autopsy on Mr Devine's body.

11 The autopsy revealed:

(a) there was a stab wound measuring about 13 mm by 9 mm under the deceased's right nipple (ts 977);

(b) internal examination revealed a hole between the deceased's fifth and sixth ribs, on the right-hand side, which measured about 10 mm by 10 mm inside the chest wall (ts 984 - 985);

(c) the wound passed through the right lung (into the middle right lobe) and continued into the right coronary artery, through the pericardium, and into the heart (ts 986, 991 - 992, 994); and

(d) the wound track measured about 10 cm and was about 6 cm from the external surface of the skin to the heart, and about 4 cm into the heart (ts 994).

12 Mr Devine lost about 2 litres of blood as a result of his injuries (ts 975).

13 The injuries were severe and, without very rapid medical attention, injuries of that kind would be fatal (ts 995).

14 Dr Moss was unable to say how much force would have been required to cause the injuries (ts 995), but the injuries were consistent with Mr Devine having been stabbed with the scissors in question (ts 996).

The appellant's case at trial

15 Defence counsel, in his opening statement at the trial, said the appellant's 'position' was that he was guilty of manslaughter but not guilty of murder (ts 85).

16 Defence counsel asserted, in essence, that the appellant did not at any time:

(a) intend to kill Mr Devine; or

(b) intend to cause Mr Devine a bodily injury of such a nature as to endanger, or be likely to endanger, Mr Devine's life (ts 85).

17 Defence counsel said in opening that the appellant's actions in using a pair of scissors to stab Mr Devine in the chest 'were motivated purely by the need for self-defence, to defend himself and to defend a friend of his who he perceived was being attacked by a group of people that night outside 111 Lydon Boulevard' (ts 85). The appellant's friend was Daniel Burgess.

18 The appellant gave sworn evidence at the trial. He said in evidence-in-chief, relevantly:

(a) he went to the 21st birthday party of Jason Dorrington at 111 Lydon Boulevard, Atwell;

(b) he drank alcohol before the party and between about 8.30 pm and about midnight while he was at the party;

(c) at about midnight he became aware that Mr Viandante and Mr Burgess were 'in a fight out the front';

(d) Mr Burgess was a friend of the appellant and they had known each other for about five or six years, since they were aged 18;

(e) he went to the front of the house at 111 Lydon Boulevard and saw a group of people who were fighting;

(f) in particular, he saw Mr Burgess who was 'on the ground at the time with his shirt basically barely on and five people … attacking him';

(g) he 'ran over to where it was happening' and 'pushed someone … off of or out of the way of Daniel [Burgess] and got entangled in sort of a wrestle or push sort of fighting motion with a couple of other people that were attacking Daniel';

(h) he saw Mr Viandante and Kyle Strawbridge who were 'over Daniel at the time when [he] came out';

(i) he got 'entangled in a fight' and during the fight he was struck to the side of his face and fell to the ground;

(j) when he fell to the ground he could see 'what appeared to be a sharp object' and he picked up and armed himself with the object;

(k) at the time he did not know that the object was a pair of scissors;

(l) he 'swung [the scissors] round behind [him] at the group' because he knew that 'people were attacking [him]';

(m) after he 'made contact with [Mr Devine]' with the scissors he stepped back and 'started waving the scissors from left to right as the people were coming towards [him]';

(n) he had not wanted to hurt Mr Devine; and

(o) after 'waving the scissors from left to right in front of [him]', he turned around and ran the other way (ts 1051 - 1063).

The proposed grounds of appeal

19 The appellant relies on three proposed grounds of appeal.

20 Ground 1 alleges that there was a miscarriage of justice when the trial judge 'refused to allow the appellant's plea of guilty to manslaughter to be placed before the jury'.

21 Ground 2 alleges that there was a miscarriage of justice when his Honour 'misdirected the jury as to the objective character of the bodily injury intended to be caused in s 279(1)(b) of the Code'. The particulars of this ground complain that his Honour directed the jury that 'the bodily injury was merely the penetration of the skin' of Mr Devine.

22 Ground 3 alleges that there was a miscarriage of justice when his Honour 'failed to adequately direct the jury as to identification evidence'. The particulars complain about two matters. First, his Honour's failure to give the jury a 'Domican warning' regarding three witnesses who identified the appellant from a digiboard. Secondly, his Honour's failure to give the jury 'an adequate warning regarding those witnesses who identified the appellant as the offender'.

The merits of proposed ground 1

23 Section 142 of the Criminal Procedure Act 2004 (WA) provides that, whether or not an accused has previously pleaded to a charge, the court trying the accused on the charge must, at the start of the trial and in such manner as the court decides is just:

(a) inform the accused of the charge; and

(b) require the accused to enter a plea in accordance with s 126(1) and (4).

24 By s 3(1), in the Act, unless the contrary intention appears, 'charge' means, relevantly, 'an allegation in [an] … indictment that a person has committed an offence'.

25 Section 126 provides, relevantly:

(1) If under this Act an accused may or must plead to a charge, the accused may -

(a) plead that the court does not have jurisdiction to deal with the accused or the charge;

(b) plead that the offence charged is not an offence under any of the provisions referred to in the Criminal Code Act 1913 section 4;

(c) plead that the accused has a defence to the charge under The Criminal Code section 17;

(d) plead not guilty of the charge on account of unsoundness of mind under The Criminal Code section 27;

(e) plead not guilty to the charge;

(f) plead guilty to the charge or, with the prosecutor's consent, to some other offence of which the accused might be convicted instead of the charge.

…

(4) Unless the accused pleads guilty, 2 or more of the pleas in subsection (1) may be made together.

(5) If an accused, on being required by a court to plead to a charge -

(a) enters a plea other than one permitted by subsection (1); or

(b) does not plead in accordance with subsection (4); or

(c) does not plead,

the court must enter a plea of not guilty on behalf of the accused, unless -

(d) the court, under section 99(4) or (5), enters a plea on behalf of the accused; or

(e) the accused is not mentally fit to stand trial under the Criminal Law (Mentally Impaired Accused) Act 1996.

26 In the present case, count 1 in the indictment read:

On 11 January 2014 at Atwell [the appellant] murdered Jamie Michael Devine.

27 By s 10B read with s 279 and s 280 of the Code, an alternative verdict of manslaughter was available on the charge of murder.

28 When the appellant was arraigned before the jury, at the beginning of the trial, the following exchange occurred in relation to count 1:

THE CLERK OF ARRAIGNS:

Mr Gunson, please stand. Ashley James Gunson, you stand charged by that name that on 11 January 2014 at Atwell, you murdered Jamie Michael Devine. How say you: are you guilty or not guilty?

ACCUSED: Not guilty to murder but guilty to manslaughter.

FORRESTER, MS: Well, your Honour, that's not a valid plea, with respect.

SIMMONDS, J: No. I am inclined to agree. There is another matter in which - or manner in which that matter can be dealt with. Yes. Thank you, Mr Gunson. Yes, Madam Clerk of Arraigns.

THE CLERK OF ARRAIGNS: Further, you stand charged that on the same date and the same place as to count 1, you unlawfully wounded Brody Michael Brouns. How say you: are you guilty or not guilty?

ACCUSED: Not guilty (ts 44).

29 Defence counsel, who is an experienced and competent criminal defence lawyer, did not object to the prosecutor's assertion that the appellant's plea to the count of murder was not valid, to the trial judge's comment that he was 'inclined to agree' with the prosecutor or to his Honour's observation that there was 'another … manner in which that matter can be dealt with'.

30 Defence counsel elected to make an opening statement to the jury. At the commencement of his statement, defence counsel referred to the appellant's plea, without objection, as follows:

Right from the outset you will have noted also that [the appellant] is not seeking to avoid responsibility for the death of Jamie Devine. He is accepting his responsibility in that regard.

He hasn't come to this court and required all of us to assemble here three to four weeks before Christmas to try and pull the wool over anybody's eyes to say that he is not responsible for the death of Jamie Devine. He has accepted it and he said, when he answered the question to the Clerk of Arraigns when he was asked how did he plead to that first count on the indictment, he said, 'I plead not guilty to murder but I plead guilty to manslaughter'. That is his position (ts 85).

31 The trial judge directed the jury, in his summing up, as to the appellant's plea in relation to count 1, upon being arraigned at the beginning of the trial, as follows:

Now, one immediate point I should make about [the indictment] is that nowhere in it does it refer to an alternative offence in this case, upon which I will be giving you directions and about which you have heard a fair bit already: the alternative offence of manslaughter. Now, you will recall right at the beginning of the trial when [the appellant] pleaded not guilty to count 1, he said before he was stopped but he pleaded guilty to manslaughter. Now, it's important you realise that … those words he uttered do not determine his guilt or his being not guilty of manslaughter.

Those words were to be taken and are to be taken by you as an indication of the acceptance by the defence of the matters the subject of the admissions in this trial, and you will recall those formal admissions. Those formal admissions appear in your exhibit list number 1. Do you remember those admissions? The [appellant] admitted that he stabbed Mr Devine, that the stabbing caused the death and that the stabbing was with the pair of scissors that subsequently became an exhibit in this trial and I believe that was exhibit number 23. … But the admission or the matter goes no further than that, and as you will see there is more to manslaughter - indeed, more to murder than that (ts 1408).

32 Defence counsel did not request his Honour to give the jury an additional direction or a redirection in connection with the appellant's plea in relation to count 1 (ts 1444 - 1448).

33 Similarly, counsel for the appellant, in his submissions to this court, did not challenge the trial judge's directions, in his summing up, as to the appellant's plea in relation to count 1.

34 Counsel for the appellant submitted to this court that 'the effect of [his Honour] stating in the presence of the jury that the appellant's plea to manslaughter was not "a valid plea", without any explanation to them as to what that meant, fostered a danger the jury may have sat throughout the trial in a belief they were, despite the directions they were later given, fettered to some degree from returning a verdict of guilty to manslaughter'.

35 As I have mentioned, defence counsel did not object to the prosecutor's assertion about the appellant's plea or to the trial judge's comment or observation on the point. Indeed, on an objective appraisal of the trial record, defence counsel sought to obtain a forensic advantage from the appellant's plea by, in essence, telling the jury, in his opening statement, that the appellant was not seeking to avoid responsibility for Mr Devine's death and, indeed, had accepted responsibility for it by the manner in which he had pleaded to count 1. His Honour's directions, in his summing up, about the plea were appropriate in the circumstances. It is not reasonably arguable that there was a perceptible risk of a miscarriage of justice at the trial as a result of his Honour not giving the jury a direction earlier in the proceedings, as alleged in proposed ground 1 (as that ground was explained by counsel for the appellant in his submissions).

The merits of proposed ground 2

36 Defence counsel, in his opening statement at the trial, explained the appellant's defence on count 1 as follows:

My client says that he disputes the version of events as has been given by the prosecutor, of course, and says that his actions in using what turns out to be the pair of scissors that has been referred to in stabbing Jamie Devine in the chest area - his actions in that regard were motivated purely by the need for self-defence, to defend himself and to defend a friend of his who he perceived was being attacked by a group of people that night outside 111 Lydon Boulevard. That person's name is Daniel Burgess (ts 85).

37 I have already recounted the appellant's evidence-in-chief in relation to the circumstances in which he killed Mr Devine.

38 The trial judge gave these directions to the jury, in his summing up, about the character of the bodily injury which, on the State's case, the appellant intended to cause, and the objective characterisation of that injury, for the purposes of s 279(1)(b) of the Code:

The bodily injury which … the State says the accused intended, which was of that objective character was the penetration of the skin of Mr Devine, which occurred as the prosecution contends you should find. The prosecution refers you in particular to the following evidence: the evidence of other witnesses as to the accused's behaviour that night, leading up to the stabbing of Mr Devine; the evidence of the way the stabbing occurred, as I have indicated; the evidence of the nature of the wound and its tract from Dr Moss and the photographs he testified about; and why the prosecution says you should disregard the accused's evidence as to why he acted as he did …

Here the defence says you will not be satisfied beyond a reasonable doubt - the matter is, of course, again for you - that the accused had an intention of either of the relevant kinds for his acts, having regard in particular to the following evidence: the matters with respect to the evidence of witnesses as to the accused's behaviour that night, which the defence raises as difficulties with that evidence; the accused's evidence as to why he acted as he did; and the expert evidence as to how the wounding of Mr Devine might have come about, particularly in a way consistent with the accused's own account and consistent with the form of the force which the defence says you should conclude was used. The matter is, of course, again for you (ts 1421).

39 Defence counsel did not request his Honour to give the jury an additional direction or a redirection about the character of the bodily injury which, on the State's case, the appellant intended to cause or the objective characterisation of that injury.

40 Counsel for the appellant, in his submissions to this court, complained about his Honour having directed the jury that, on the State's case, the bodily injury which the appellant intended to cause (being a bodily injury of such a nature as objectively to endanger, or objectively be likely to endanger, Mr Devine's life) was the penetration of Mr Devine's skin. According to counsel, this direction 'significantly, and unfairly, minimised the injury the State relied on'. Counsel referred to the prosecutor's submission, in her closing address, that the injury in question, objectively viewed, was a 'penetrating stab wound … [that] was a very severe injury' (ts 1301). It was submitted that the prosecutor's description of the injury was 'certainly more than merely "penetration of the skin"'.

41 As I have mentioned, the appellant made a formal admission at the trial that he had stabbed Mr Devine in the chest, using the scissors which were later recovered by the police, and had thereby caused Mr Devine's death. The nature and extent of the injuries suffered by Mr Devine were explained by Dr Moss and were not in dispute. There is no doubt that the bodily injury inflicted by the appellant was of such a nature as objectively to endanger, or objectively be likely to endanger, Mr Devine's life. The real issues at the trial were the appellant's intent, self-defence and the use of excessive force in self-defence. Defence counsel did not raise with his Honour the adequacy of the passage in the summing up which counsel for the appellant now seeks to impugn. It is not reasonably arguable that, in the circumstances, there was a perceptible risk of a miscarriage of justice at the trial as a result of the manner in which his Honour directed the jury in relation to the character of the bodily injury which, on the State's case, the appellant intended to cause or the objective characterisation of that injury.

The merits of proposed ground 3

42 Mr Strawbridge, Mr Viandante and Aaron Withers, all of whom were present at the party on the night in question, participated in a digiboard identification procedure conducted by police. Each of them positively identified the appellant (ts 145, 213, 366).

43 Counsel for the appellant explained to this court, in his submissions, that proposed ground 3 related to the identification of the appellant as the person who had engaged in a number of aggressive actions at the party (including the unlawful wounding of Mr Brouns) before Mr Devine was killed. Counsel said he was not complaining about the identification of the appellant as the person who had stabbed Mr Devine. No complaint could possibly be made about that issue in view of the formal admissions made by the appellant at the trial.

44 Counsel for the appellant said in his oral submissions:

[I]dentification was very much in issue, and that went to, we say, what the actions and behaviour of the appellant [were] before that incident, and, of course, the defence case was that this was an act of self-defence or defence of another. We would say that it was relevant to what the appellant was actually doing beforehand, that is, was he the person who was running around in a particularly aggressive state, and we say that's why we say identification, as such, is relevant, and that's as we read it was put by defence counsel in his closing address to the trial judge (appeal ts 2).

45 The trial judge directed the jury in his summing up on inconsistencies between the evidence of some of the witnesses and their out of court statements, including inconsistencies between the evidence of Mr Strawbridge, Mr Viandante and Mr Withers, on the one hand, and their out of court statements, on the other (ts 1397 - 1399).

46 His Honour then gave the jury these directions on the question of identification:

Now, let me turn from inconsistencies to matters of identification as I have described them. It goes to evidence in this case from a number of witnesses who did not know at all or had only just been introduced that night to the accused, identifying the accused as the person they testify they saw involved in incidents that night in ways upon which the prosecution relies or where they have identified someone, usually just referred to as the blond guy, as being the same person involved in several incidents or at different times across the night. Those witnesses were Ms Charlie McSevich, Mr Danny Levy-Lee, Mr Torben Romsloe Sherry as well as the witnesses who each went through a DigiBoard identification process. The three witnesses who did that: Mr Kyle Strawbridge, Mr Kurt Viandante and Mr Aaron Withers. Now, how are you to approach evidence of that kind?

You must approach it very carefully and be very cautious before accepting it as being reliable evidence. There is good reason for that warning which I am giving you. That's because judicial experience over many years has shown there can be mistakes [in] identification evidence of the kinds that I have referred to, even confident identification evidence by an honest witness may be mistaken. In approaching this evidence, you need to assess very carefully all the circumstances in which the identification was made.

You must have regard to all the facts that might bear on the reliability of the identification in each case. The person who [has] given such evidence is saying several things. They're saying that they saw the person they're referring to, that what they saw was impressed on their mind, that they have retained that impression, that the resemblance between the original impression and the other person, the accused, or the same person was sufficient to have the judgment that they have given in their or the evidence that they have given - provided.

Now, I have described the factors bearing on reliability as ones going to aspects of the identification itself, but there's also, of course, the matter of the credibility of the witness themselves in all the ways that I have previously identified. In assessing the identification evidence, you will be considering how - to what extent the witness was exposed to the person they have identified, how good was their opportunity to observe the person in question, the condition of the witness themselves at the time of the observation and their ability to recall what they observed.

Now, there is a further point here I should make. It is that there's a recognised phenomenon where the brain can sometimes subconsciously substitute the memory of another person for the memory of the person being identified. This might occur where there are similarities between the two and the other person was seen shortly before the incident in question. I also need to say something specifically about the DigiBoard process through which Mr Strawbridge, Mr Viandante and Mr Withers went, as you saw in the evidence in this case. You should take account of the following features of the DigiBoard process.

The images on the DigiBoard are static. That is to say, one does not see any of the individuals on it in motion. The images are two dimensional. That is to say one only sees the particular presentation without being able to rotate the image. The images are of a portion of the body, broadly from the neck up. And the choice of images, made by the person concerned, needs to be evaluated against the backdrop of the other images presented for how readily or otherwise a choice informed only by limited facts might be made.

There is a further matter relating to the photograph of the accused that appears in the three DigiBoards. It's this: you should draw no adverse inference, that is to say no inference against the accused, from the fact that there was a photograph of him available for the purpose of a DigiBoard process. It's not relevant to this trial how it was that that photograph of him was acquired.

When the photograph was taken, that is to say the age of the photograph and what you heard as to what that meant is, indeed, relevant to you, but not how it was acquired. You will be bringing your common sense, your experience of life, to bear on whether or not these matters of identification that came from these witnesses of how you assess those matters of identification that came from those witnesses (ts 1399 - 1401).

47 After the trial judge completed his summing up, defence counsel requested his Honour to redirect the jury in order to correct errors his Honour had made in specifying the relevant identification witnesses (ts 1444 - 1448).

48 His Honour acceded to defence counsel's request and redirected the jury as follows:

You will recall with respect to the warning I gave you as to identification evidence, being evidence from a number of witnesses who did not know or had only just been introduced that night to the accused, identifying the accused as a person they testified they saw as a person involved in incidents that night in ways upon which the prosecution relies or as being the same person usually referred to as 'the blond guy' involved in incidents at different times that night, and I listed off six names: Ms Charlie Jean McSevich, Mr Danny Levy-Lee, Mr Torben Romsloe Sherry or T. Sherry, as well as the witnesses who went through the DigiBoard identification process, Mr Kyle Strawbridge, Mr Karl Viandante and Mr Aaron Withers.

There is a further name that I missed out that I should have included in that list. That's the name of Mr Shane Hewson. You will remember him, the DJ. Now, I should also say this, with respect to the comments I made. You will recall that I mentioned evidence of a witness to the effect on her - what she testified she saw of the blond guy's confrontation with Mr Strawbridge. I referred to Ms Wilson. I should have referred to - it was simply a slip of the tongue - to Ms McSevich - Charlie Jean McSevich. So the comment should have been:

'You may want to consider particularly, the matter is for you I should emphasise, the evidence of Ms McSevich for the effect on her of what she testified she saw of the blond guy's confrontation with Mr Strawbridge' (ts 1448 - 1449).

Defence counsel did not otherwise request his Honour to give the jury an additional direction or a redirection on the question of identification.

49 In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ made these observations as to identification evidence and the circumstances in which a trial judge must warn the jury of the dangers of convicting on such evidence:

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 (

Kelleher v The Queen

(1974), 131 CLR 534, at p 551;

Reg v Turnbull

, [1977] QB 224, at p 228;

Reg v Burchielli

, [1981] VR 611, at pp 616 - 619;

Reg v Bartels

(1986), 44 SASR 260, at pp 270 - 271). The terms of the warning need not follow any particular formula (

Reg v De-Cressac

(1985), 1 NSWLR 381, at p 384;

Reg v Finn

(1988), 34 A Crim R 425, at pp 435 - 436). But it must be cogent and effective (

Reg v Dickson

, [1983] 1 VR 227, at p 230;

Reid (Junior) v The Queen

, [1990] 1 AC 363, at p 380). It must be appropriate to the circumstances of the case (

Reg v Aziz

, [1982] 2 NSWLR 322, at p 328;

Reg v Allen

(1984), 16 A Crim R 441, at pp 444 - 445). 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' (

Smith v The Queen

(1990), 64 ALJR 588, at p 588). A warning in general terms is insufficient (

Kelleher v The Queen

(1974), 131 CLR, at p 551). The attention of the jury 'should be drawn to any weaknesses in the identification evidence' (

Kelleher v The Queen

(1974), 131 CLR, at p 551). 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 (

Davies and Cody v The King

(1937), 57 CLR 170, at pp 182 - 183). 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 (561 - 562).

50 Later in the joint reasons in Domican, their Honours considered the proper approach to the evaluation of the adequacy of a warning in an identification case:

[T]he adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case (

Reg v Domican [No 3]

(1990), 46 A Crim R, at p 446;

Reg v Dickson

, [1983] 1 VR, at p 230;

Reg v Allen

(1984), 16 A Crim R, at pp 444 - 445). But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused (See

Reg v Bartels

(1986), 44 SASR, at pp 270 - 271; cf

Reg v Goode

[1970] SASR 69, at p 77). The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence (565).

Gunson v The State of Western Australia

[2015] WASCA 158

14 AUGUST 2015

GUNSON -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 158