HDS v The State of Western Australia
[2015] WASCA 148
•30 JULY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HDS -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 148
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 22 MAY 2015
DELIVERED : 30 JULY 2015
FILE NO/S: CACR 21 of 2015
BETWEEN: HDS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE SCADDAN
File No :CCBS 170-174 of 2013, CCBS 176-180 of 2013
Catchwords:
Criminal law - Application for leave to appeal against conviction - Whether miscarriage of justice - Whether convictions unsafe or unsatisfactory - Whether learned magistrate's Domican direction sufficient
Legislation:
Criminal Appeals Act 2004 (WA), pt 2 div 2
Result:
Leave to appeal on grounds 1 and 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Gabrielle Clarke Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
The State of Western Australia v HDS [2015] WASCA 69
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
McLURE P: I agree with Mazza JA.
BUSS JA: I agree with the orders proposed by Mazza JA and with his Honour's reasons (including his reasons in relation to grounds 1 and 2).
I merely note, specifically, in relation to ground 1 that I am satisfied, after examining the trial record (including the digiboard containing the appellant's photograph and the video record of CR identifying the appellant from the digiboard) and weighing the evidence, that it was reasonably open to the magistrate to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on each of the charges on which her Honour convicted him. The trial record does not require the conclusion that the magistrate must necessarily have entertained a doubt about the appellant's guilt. None of the verdicts of guilty was unreasonable. After paying full regard to the consideration that the magistrate was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that her Honour had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt on any of the charges on which he was convicted or as to the correctness of his conviction on any of those charges.
MAZZA JA: Before the court is the appellant's application for leave to appeal against conviction. The appeal was referred to this court by a single judge on 4 February 2015 pursuant to s 13(2) of the Criminal Appeals Act 2004 (WA) (the Act). Thus, pt 2 div 2 of the Act applies to this appeal.
The appellant was charged with 11 offences arising out of a violent incident that involved four offenders which occurred in the early hours of 8 October 2013 at an address in Ragna Court, Glen Iris. Glen Iris is a suburb of Bunbury.
The learned magistrate heard evidence on 18 and 19 August 2014, following which she reserved her decision. On 29 August 2014, her Honour convicted the appellant of 10 out of the 11 charges. The convictions relate to the following charges.
Charge Offence
| 170/2013 | Aggravated burglary and committing an offence in a dwelling (s 401(2)(a) of the Criminal Code) |
| 171/2013 | Unlawful assault causing bodily harm in circumstances of aggravation (s 317(1) of the Criminal Code) |
| 172/2013 | Unlawful assault causing bodily harm in circumstances of aggravation (s 317(1) of the Criminal Code) |
| 173/2013 | Aggravated armed robbery (s 392(c) and (d) of the Criminal Code) |
| 174/2013 | Aggravated armed robbery (s 392(c) and (d) of the Criminal Code) |
| 176/2013 | Threat to kill (s 338(B)(a) of the Criminal Code) |
| 177/2013 | Stealing (s 378 of the Criminal Code) |
| 178/2013 | Common assault (s 313(1)(b) of the Criminal Code) |
| 179/2013 | Common assault (s 313(1)(b) of the Criminal Code) |
| 180/2013 | Unlawful damage (s 445 of the Criminal Code) |
The appellant was ultimately sentenced on these and other offences by Reynolds P in the Children's Court of Western Australia.
The appellant's application for leave to appeal against these sentences was dismissed by this court: The State of Western Australia v HDS [2015] WASCA 69.
The principal factual issue for determination at trial was whether the appellant was one of the offenders. The State's case on this issue depended upon the identification of the appellant by an eyewitness, CR. CR identified the appellant from a digiboard.
The appellant relies upon two proposed grounds of appeal. The first proposed ground alleges that the convictions are unreasonable and cannot be supported, having regard to the evidence, because 'the identification evidence did not support a finding by the learned magistrate of guilt beyond reasonable doubt'. The second proposed ground alleges that the learned magistrate 'failed to adequately isolate and identify certain facts that undermined or lessened the reliability and probative value of the identification evidence'.
For the reasons that follow, neither of the proposed grounds of appeal has a reasonable prospect of succeeding. Consequently, the appeal must be dismissed.
The evidence
The events of 7 and 8 October 2013
On the evening of 7 and 8 October 2013, eight people were staying at the Ragna Court premises. In addition to those who ordinarily resided there - being TM, TR and their three children, CR, JR and BR ‑ were TM's sister, KM, and two of CR's friends, JE and BW. CR's friends were having a sleepover.
At about 8.30 pm on 7 October 2013, two women, LS and NL, attended at the Ragna Court premises looking for KM. It appears that there was 'bad blood' between KM and NL. Messages posted on Facebook indicated that the two women were spoiling for a fight.
TM and one of her neighbours persuaded LS and NL to leave. The police were called. By the time the police arrived, they were unable to locate LS and NL. Things then settled down and everyone at the premises went to bed.
At approximately midnight or in the early hours of 8 October 2013, some of the occupants of the premises were woken by yelling and screaming. TM went to investigate. Upon opening the front door, she was confronted by a group of four people: two females and two males. The prosecution case was that the younger of the two males was the appellant.
TM was struck with a baseball bat by two people, one of whom was the older of the two females who had entered the premises. TM described the other person who struck her as being a Caucasian male with a shaved head in his twenties. She described one of the two people who had not struck her as 'a skinny young boy … he only looked 16 to 17 years'.
TR was placed in a headlock by the (older) Caucasian male. He described the second male who had entered the premises as being 'an Aboriginal male who was late teens or early twenties. He was skinny and looked scraggly. I think he had short, curly black hair'. TR said that this person was armed with a 25 cm long kitchen knife. At one point, TR confronted this person, who was saying things like 'I'm going to stab you' and 'I will kill you'.
KM was pulled into the lounge room by an older woman she had never seen before. She said that NL also grabbed her, as did a 'white male with a bald head'. KM said that she was struck with a baseball bat being wielded by the older woman. She said that NL struck her with the bat and that NL and the (older) Caucasian man punched her in the head. KM did not describe the second male offender.
JE, BW and CR were asleep in CR's bedroom when the offenders entered the premises.
Evidence of JE
JE testified to this effect:
(a)He heard loud noises, banging and yelling (ts 26, 18 August 2014).
(b)A male came into the bedroom alone and yelled 'Give us the money, the phone, whatever you've got' (ts 26, 18 August 2014).
(c)The male struck CR with a baseball bat (ts 27, 18 August 2014).
(d)The male stole a fishing knife which belonged to CR and JE's mobile telephone (ts 27, 18 August 2014).
(e)The lights in the room came on at some point. However, he did not see who had turned them on (ts 28, 18 August 2014).
(f)He had not seen the male before the night in question (ts 29, 18 August 2014).
(g)The male was wearing a black hoodie and had a 'bum fluff moustache' (ts 29, 18 August 2014).
JE subsequently participated in a digiboard procedure in which he picked out someone other than the appellant (ts 30, 18 August 2014).
Evidence of BW
BW testified to this effect:
(a)Around midnight, he awoke to find 'a dude standing in the room swinging a bat' (ts 35, 18 August 2014).
(b)The male struck CR with the bat (ts 35, 18 August 2014).
(c)The male asked for 'wallet and phones and that' (ts 36, 18 August 2014).
(d)The male was young, had 'darker' skin and was of a 'skinnier' build (ts 35, 18 August 2014).
(e)The male was maybe wearing 'a hooded jumper' with the hood off and may also have worn 'a hat' (ts 36 ‑ 37, 18 August 2014).
(f)The lights in the room were on (ts 37, 18 August 2014).
(g)He did not know who the offender was (ts 37, 18 August 2014).
BW did not participate in a digiboard identification procedure (ts 39, 18 August 2014).
Evidence of CR
CR testified to this effect:
(a)At about midnight, he heard yelling and screaming (ts 13, 18 August 2014).
(b)His bedroom door opened and a male he did not know struck him in the face, left arm and ribs with a baseball bat (ts 13, 18 August 2014).
(c)The male grabbed a knife off a bookshelf and held it to his (CR's) throat, said 'Don't mess with my family and the Rebels' and demanded any property that the three occupants of the room had (ts 13 ‑ 14, 18 August 2014).
(d)The male took JE's phone and CR's MacBook computer, the latter of which was subsequently thrown at the wall (ts 14, 21, 18 August 2014).
(e)The male stayed in the bedroom 'for about 45 seconds or so' (ts 14, 18 August 2014).
(f)The male walked to the lounge room and started pulling the wires from his father's motorcycle, which was parked near the pool table. Whilst he was doing so, CR had a 'side view and back view' of the offender. CR estimated that the offender took 'about a minute' to remove the wires (ts 21, 18 August 2014).
(g)The male then ran down to his father's bedroom where he 'stole' his father's motorcycle helmet. While this was taking place, CR 'was kind of just standing there telling him [the male] to stop' (ts 16, 18 August 2014).
(h)The male was 'a bit shorter' than himself, approximately 170 cm tall and 'skinny‑ish' with short black hair (ts 16, 18 August 2014). CR could not remember the colour of the male's eyes, or any other of his facial features (ts 16, 20, 18 August 2014).
(i)The male was wearing a cap, pants and a top. CR could not describe his clothing in any greater detail (ts 16, 18 August 2014).
(j)When the male was in his bedroom, the lights were on (ts 17, 18 August 2014).
(k)He estimated that the time between being woken up until the incident calmed down 'was probably four or five minutes' (ts 16, 18 August 2014).
(l)He suffered 'a really sore arm and ribs' after the incident. CR made no reference to any injury to his head, or any loss of consciousness.
(m)In cross‑examination, he agreed with the proposition that the events of the night were 'very stressful' (ts 20, 18 August 2014). CR also said that, when the male went to his father's bedroom, he (the male) walked past him (ts 21, 18 August 2014).
On 6 November 2013, the police conducted a digiboard interview with CR. He was shown two digiboards: one depicting females; the other depicting males. CR positively identified photograph 9 (being the appellant) on the digiboard containing males. I will shortly describe in more detail the evidence in respect of the digiboard procedure.
Evidence of police officers
The prosecution adduced evidence from the principal investigating officer, Detective Senior Constable Gareth Reed. His evidence was largely uncontroversial.
As part of the investigation, Detective Senior Constable Reed accessed the Facebook profile of KM and viewed Facebook messages between her and NL. Later, he obtained the mobile telephone records said to belong to the appellant, NL and another (ts 44, 18 August 2014).
Detective Senior Constable Reed testified to the effect that NL is the appellant's cousin (ts 44, 18 August 2014). He said that, at the time of the offences, they were both living at 5 Court Street, Busselton (ts 45, 18 August 2014).
Detective Senior Constable Reed said that on 6 November 2013, the appellant was arrested in relation to other matters. As a result of his arrest, he was searched and a red mobile telephone was located on his person (ts 45 ‑ 46, 18 August 2014). Later that day, the appellant participated in a video record of interview. No admissions were made in the interview. Indeed, the interview was aborted for reasons which need not be detailed (exhibit 6).
In due course, Detective Senior Constable Reed downloaded the contact list from the mobile telephone seized from the appellant. In that list, he found a phone number said to belong to the appellant (ts 51, 18 August 2014).
The prosecution adduced evidence from another police officer, Senior Constable Nicole Hatch. Her evidence is irrelevant for the purposes of this appeal and does not need to be described.
Evidence of Timothy Miller
The final witness called on behalf of the prosecution was an employee of Telstra, Timothy Miller.
He produced mobile telephone records with respect to two mobile telephone numbers, one ending in the digits 706 and the other ending in the digits 012. The subscribers of these numbers were recorded as having names which were very similarly spelt, but not exactly the same as NL and the appellant. In this court, it was not suggested that the numbers did not belong to NL and the appellant. The number said to belong to NL was the number ending in 706. The other number was said to belong to the appellant. The records reveal that, at 9.10 pm on 7 October 2013, the number ending in 706 (NL's) telephoned the number ending in 012 (the appellant's) and that the call lasted 187 seconds. The records also reveal another call between the numbers at 9.26 pm on 7 October 2013, which lasted 683 seconds.
Mr Miller testified that the telephone ending in the number 012 was connected to mobile telephone cell towers in Busselton, Mangles (a location in the Bunbury area) and Peppermint Grove Beach between 11.55 pm on 7 October 2013 and 3.55 am on 8 October 2013. However, Mr Miller could not confirm that this meant that the mobile telephone number ending in 012 was moving between Busselton, Bunbury and Peppermint Grove Beach during that time.
The digiboard procedure
The digiboard interviews were carried out by Detective Senior Constable Peter Timms. The process was recorded onto a DVD which was played and tendered at trial. I have viewed the DVD.
Before the digiboards were presented to CR, Detective Senior Constable Timms explained the procedure to him. Specifically, Detective Senior Constable Timms said that:
(a)an image of the person involved in the incident under investigation may or may not be in the photographs;
(b)viewing the photographs did not mean that CR was obliged to make a selection;
(c)he (Detective Senior Constable Timms) was not allowed to help in the decision‑making process; and
(d)if CR recognised anyone, he was to point to the photograph and call out the number.
Detective Senior Constable Timms then left the room and returned with two digiboards which he placed before CR.
CR appeared to look at each digiboard. His initial focus appeared to be on the digiboard depicting females. After studying the digiboards for approximately 1 minute 11 seconds, CR pointed to photograph 5 in the digiboard depicting females. He then signed that document. Approximately 27 seconds later, CR selected photograph 9 in the digiboard depicting males. Photograph 9 shows the appellant.
My clear impression from watching the DVD is that CR appeared to carefully study the two digiboards. Nothing he said or did indicated uncertainty.
Detective Senior Constable Timms sat impassively during the identification process. Nothing said or done by him suggested who the offenders may be.
I have viewed the digiboard which included the appellant's photograph (exhibit 5). The appellant's photograph does not differ significantly from the fillers, some of which depict persons with wispy moustaches on their upper lips. There was no evidence as to the date on which the photograph of the appellant was taken. However, the photograph shows the appellant as clean‑shaven, save for a wispy moustache on his upper lip, and that he has dark‑coloured hair. I was unable to distinguish whether it is black or dark red.
In cross‑examination, CR agreed that he took 'a long time to look at both [digiboards] and pick out the photos'. Defence counsel did not define what she meant by 'a long time'. Defence counsel suggested to CR that he was not 100% sure that the male he selected was the person who entered his room on the night in question. CR replied 'I was 100% sure'. CR denied that he could have been mistaken in his identification of the appellant from the digiboard (ts 19, 18 August 2014).
The appellant elected not to give or adduce evidence at trial (ts 18, 19 August 2014).
The closing addresses
Prosecution's closing address
The police prosecutor readily accepted that there was no forensic evidence which connected the appellant to the offences. He relied upon CR's positive identification to prove the element of identity in each charge. The prosecutor submitted that the telephone records supported the prosecution case that NL contacted the appellant and sought his assistance to commit the offences.
Defence's closing address
Defence counsel submitted that the prosecution evidence did not establish beyond reasonable doubt that the appellant was one of the offenders. Defence counsel emphasised that there was no forensic evidence linking the appellant to the offences. With respect to CR's digiboard identification, she asked the learned magistrate to have regard to the following:
(a)The length of time it took for CR to select photograph 9 from the digiboard. Defence counsel characterised it as 'an extraordinarily long time' (ts 31, 19 August 2014).
(b)CR's description of the offender who came into his bedroom. Defence counsel drew attention to CR's testimony that the offender was wearing a hat and had black hair, and also to the statement in his police deposition that the offender had 'short, curly black hair' (ts 32 - 33, 19 August 2014). Defence counsel submitted that CR could not have seen the colour of the offender's hair if he had a hat on. Defence counsel further submitted that the male depicted in the photograph did not have black hair, but rather, dark red hair (although defence counsel conceded it was difficult to tell).
(c)At the time of the offence, CR had been asleep and the events which then unfolded were stressful and occurred quickly.
Defence counsel reminded the learned magistrate of the dangers associated with identification evidence; in particular, that an honest witness may be mistaken, yet convincing. Defence counsel submitted:
… what the defence is saying is that it would be dangerous to convict on such serious offences on one digiboard ID, unless your Honour can be convinced beyond a [sic] reasonable doubt that C[R] did not make a mistake (ts 34, 19 August 2014).
The learned magistrate's reasons for decision
As I indicated earlier, her Honour took time to consider her decision. On 29 August 2014, she delivered oral reasons for decision. Her Honour noted that it was not disputed that CR was assaulted in his bedroom with a baseball bat, and that the person who assaulted him was the same person that he saw pulling wires from his father's motorcycle and later stealing his father's motorcycle helmet (ts 7, 29 August 2014). The learned magistrate summarised the evidence in some detail and, in particular, CR's testimony.
The learned magistrate said that CR impressed her as a credible and honest witness (ts 8, 29 August 2014). Her Honour said that he made appropriate concessions about being woken from his sleep and that the incident was stressful. Further, he remained steadfast in cross‑examination (ts 9, 29 August 2014). After noting that both JE and BW were also credible and honest witnesses, her Honour returned to her assessment of CR. Her Honour said:
In terms of my determination on - in respect of the identity of the offender, while I have found that CR's evidence was credible and reliable, an honest and acceptable witness may be mistaken on the subject of identification. There are some weaknesses in CR's with respect to identifying [the appellant] as the offender, including that he was woken from his sleep, the incident occurred quickly, and it was stressful.
However, CR's identification of the person was not limited to the incident in his bedroom, but he also observed this person pull wires from his father's motorcycle and saw this person walk into his father's room and take a motorcycle helmet, and walk past him in doing so. He may well have observed this person from the side in doing this. Notably, the lights were on in his bedroom when the person entered his room and assaulted him.
In addition, after being (indistinct) by police to look closely at the photographs on the digiboard, my observation from the video is that after doing that CR picked number - photograph number 9 without any prevarication on his part. He was steadfast in cross‑examination that he was 100% sure about the person he picked on the digiboard as being the person who entered his room, etcetera. Further observations by other witnesses of one of the people who entered the house, whilst not detailed, support CR's evidence.
The fact that CR and TR described the person as having black or dark, short, curly hair is neither here nor there as at the time of the offence the accused may well have had black or dark curly hair in comparison to the accused's appearance in the video record of interview, which was one month later, and the digiboard photograph - which I have no idea when it was taken.
Therefore, notwithstanding the weaknesses in CR's evidence in identifying the accused and the care that must be taken in making findings with respect to identification, I am satisfied and I find beyond reasonable doubt that CR positively identified [the appellant] as one of the people who entered the house on - at Ragna Court, and that he was not mistaken in his identification of [the appellant] (ts 9 ‑ 10, 29 August 2014).
With respect to the telephone records, her Honour found that, while they suggested that the appellant communicated with NL before travelling to Bunbury from Broadwater in Busselton, this evidence, viewed alone, was insufficient to place the appellant at the Ragna Court premises on the night in question. However, this evidence did, to some extent, 'corroborate' CR's positive identification of the appellant. Her Honour said that, without this evidence, she still would have been persuaded beyond reasonable doubt of the positive identification of the appellant by CR (ts 11, 29 August 2014).
Ground 1 - were the verdicts unreasonable?
Counsel for the appellant did not make oral submissions in support of proposed ground 1. He was content to rely upon his written submissions (paragraphs 63 ‑ 66 of the appellant's case). These submissions were brief and largely assertive. They contend that, due to 'inconsistencies' in CR's identification evidence, and having regard to the 'vague and general' descriptions of the young male offender, the verdicts of guilty were unreasonable or could not be supported by the evidence.
This court may allow an appeal and set aside a conviction by a court of summary jurisdiction where there has been a miscarriage of justice (s 8(1)(b), s 14(1)(b) and s 14(1)(c) of the Act). In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, McHugh J held that a miscarriage of justice arises, inter alia, whenever the nature of the evidence raises a real doubt as to whether the conviction can be regarded as safe or just (at 523).
In M, the majority (Mason CJ, Deane, Dawson & Toohey JJ) held that the test for an unsafe or unsatisfactory verdict is whether the court considered that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Their Honours explained the application of the test in these terms:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 ‑ 495). (footnotes omitted)
In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J said that, where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis) (footnotes omitted)
Merits of proposed ground 1
I have reviewed the entire trial record. That review does not require the conclusion that the learned magistrate should necessarily have entertained a doubt about the appellant's guilt and, in particular, whether the appellant was reliably identified. The verdicts of guilty were supported by admissible evidence and were not unreasonable. The appellant has suffered no miscarriage of justice.
In my opinion, it was open to the learned magistrate to be satisfied beyond reasonable doubt that the appellant was the offender based upon CR's identification evidence. Although CR did not know the appellant, on the night in question he had the opportunity to see him, not only in his bedroom, but also when he pulled the wires from his father's motorcycle and then stole a motorcycle helmet from his father's bedroom. Further, when the offender went to his (CR's) father's bedroom to steal property, he (the offender) walked past him (CR).
Although the incident was traumatic and CR had been assaulted with a baseball bat, he apparently suffered no head injury, nor did he lose consciousness. At all relevant times, the lights were on. The discrepancies identified on behalf of the appellant do not, in my mind, undermine the reliability of CR's evidence.
It was suggested that there was some contradiction in CR's evidence that the offender was wearing a hat and that he had black hair. There is no such contradiction. A cap does not necessarily cover all of the wearer's head such that some hair may be seen. Both observations could reasonably have been made.
While it is true that the appellant does not apparently have curly hair ‑ and the young offender was said by TR to have curly hair ‑ I do not regard this discrepancy as significant.
The digiboard identification is, to my mind, compelling. I do not regard the time CR took to identify the appellant's photograph as being so long as to convey inaccuracy or hesitancy. Having viewed the DVD of the digiboard procedure, I am satisfied that CR adopted a careful and serious approach to the task. Detective Senior Constable Timms did nothing to suggest to CR who the police suspected the offender was. The fillers in the digiboard were sufficiently similar to the appellant. There was nothing in the language used by CR at the time he identified the appellant's photograph which indicated any doubt as to the accuracy of his identification.
There were aspects of the evidence which lent some support to CR's identification. JE noted that the offender had a 'bum fluff moustache' (see [20(g)] above). I observed in both the photograph of the appellant depicted in the digiboard and also in the DVD of his interview with the police on 6 November 2013 that the appellant wore a wispy‑haired moustache on his upper lip. Further, it appears from Mr Miller's evidence that NL and the appellant were in telephone contact between the time of the initial confrontation by LS and NL of KM and the forced entry by four people into the Ragna Court premises.
Further, the mobile telephone records suggest that the appellant may have been in the general vicinity of the Ragna Court premises. Certainly, he lived sufficiently close to Ragna Court to have travelled from where he lived to that address during the time between the two incidents.
I have not overlooked that there is neither any forensic evidence linking the appellant to the offences, nor any other witnesses, apart from CR, who positively identified the appellant. None of these factors, either individually or collectively, raises a doubt, in my mind, as to the appellant's guilt. Having weighed all of the evidence, it was open to her Honour to be satisfied beyond reasonable doubt of the appellant's guilt.
Ground 1 has no reasonable prospect of succeeding. Leave to appeal on ground 1 should be refused.
Ground 2 - did the learned magistrate fail to adequately isolate and identify the weaknesses in CR's identification of the appellant?
The leading authority in Australia concerning disputed identification evidence remains Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. In that case, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence (561 ‑ 562). (footnotes omitted)
Later, their Honours said:
[T]he adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. 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 … (565). (footnotes omitted)
In Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159, their Honours concluded (at [120]) that:
(a)A trial judge is not required to direct a jury that digiboard identification is unreliable and dangerous per se, or that it is inferior to other types of identification.
(b)A trial judge should usually direct a jury that identification from a digiboard may be affected by the fact that the images on the digiboard are static and two‑dimensional.
(c)In some cases, it may be necessary for a trial judge to direct a jury that identification may be affected by the fact that images on a digiboard do not include identifying (or exclusionary) factors such as height, build and posture.
(d)In some cases, it may be necessary for a trial judge to direct a jury that they should take into account the risk that a relative identification has occurred, rather than actual identification.
(e)A trial judge is not, as a general rule, required to direct a jury that discrepancies between a description given by a witness and the appearance of the person identified by the witness may suggest that the identification is unreliable.
(f)A trial judge is not required as a general rule to direct a jury that 'stress' is a factor that may make a witness' identification suspect.
(g)Where there is any delay between observation and identification, a trial judge should direct a jury that delay is a factor to be considered in assessing the accuracy of identification.
In this case, the appellant submitted that her Honour, in giving herself a Domican warning, was obliged, in the circumstances, to direct herself to the following 'weaknesses' in the evidence, namely, that:
(a)the evidence of CR was disputed;
(b)there was no evidence to corroborate CR's identification;
(c)none of the witnesses could identify any clear distinguishing features of the offender; and
(d)there were 'problems' with the digiboard identification; in particular, that CR's identification of the appellant's photograph was indecisive, and that his description of the offender's hair was unreliable.
In oral submissions to this court, the appellant's counsel alleged that the direction given by the learned magistrate was defective because she failed to refer to the following:
(a)CR had been assaulted with a baseball bat and threatened with a knife.
(b)Identification from the digiboard may be affected by the static and two‑dimensional nature of the images.
(c)CR had never seen the offender before.
In my opinion, the learned magistrate's Domican warning was sufficient having regard to all of the circumstances of the case. Her Honour gave herself the basal direction to the effect that an honest witness may be a mistaken witness. She identified and addressed the weaknesses in CR's identification which were the subject of submissions by the appellant's trial counsel, including that CR had been woken from his sleep, the incident occurred quickly and it was stressful. In describing the events as 'stressful', it may reasonably be inferred that her Honour was referring to the violence inflicted upon CR by the offender, and the generally violent nature of what was occurring at the premises at the time.
Her Honour addressed the discrepancies between, on the one hand, the description of the offender's hair by CR and TR, and on the other hand, how the appellant appeared in the digiboard photograph and the video record of interview.
Her Honour did not refer to the two‑dimensional nature of digiboard photographs. However, it was not suggested by the appellant's trial counsel that this was a matter of significance. While it may have been desirable for her Honour to have referred to this aspect of the identification, there is no mandatory requirement for her to do so.
Her Honour's Domican warning must be viewed as a whole. When read in that way, her Honour was alive to, and sufficiently addressed, the matters which, it was said, undermined the reliability of CR's identification evidence.
In my opinion, her Honour's direction conformed to the requirements of a proper Domican warning. It is not reasonably arguable that the appellant has suffered a miscarriage of justice.
Leave to appeal on ground 2 should be refused.
Conclusion and orders
Neither of the proposed grounds of appeal has a reasonable prospect of succeeding. Accordingly, the appeal against conviction must be dismissed.
The orders that I would make are:
1.Leave to appeal on grounds 1 and 2 is refused.
2.The appeal is dismissed.
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