Ith v R
[2012] NSWCCA 70
•26 April 2012
Court of Criminal Appeal
New South Wales
Case Title: Ith v R Medium Neutral Citation: [2012] NSWCCA 70 Hearing Date(s): 3 November 2011 Decision Date: 26 April 2012 Jurisdiction: Before: McClellan CJ at CL at [1]
Adams J at [65]
Hoeben J at [66]Decision: Leave to appeal out of time is refused. Catchwords: CRIMINAL LAW - appeal - conviction - directions on identification evidence - directions on evidence of an accomplice - whether directions must be in the precise terms of the bench book - whether a miscarriage of justice was occasioned by all the circumstances - whether leave to appeal out of time should be granted - leave to appeal out of time denied Legislation Cited: Evidence Act 1995
Criminal Appeal RulesCases Cited: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Hong v The Queen (2009) NSWCCA 242
R v Adams [2004] NSWCCA 279
R v Chen & Others [2002] NSWCCA 174; (2002) 130 A Crim R 300
R v Esho; R v Sako [2001] NSWCCA 415
R v Gonzalez-Betes [2001] NSWCCA 226
R v Nale [2002] NSWCCA 31
R v Sullivan 2003] NSWCCA 100
Santo v The Queen [2009] NSWCCA 269
Stanley v The Queen [2004] NSWCCA 278Texts Cited: Category: Principal judgment Parties: Samban Ith (Applicant)
The CrownRepresentation - Counsel: W P Lowe (Applicant)
M M Cinque (Crown)- Solicitors: Bilias & Associates (Applicant)
Solicitor for Public Prosecutions (Crown)File number(s): 2007/13722 Decision Under Appeal - Court / Tribunal: - Before: Sorby DCJ - Date of Decision: 06 March 2009 - Citation: - Court File Number(s) 2008/21/3364 Publication Restriction:
JUDGMENT
McCLELLAN CJ at CL: The applicant was convicted following a trial on the following count:
"On 1 February 2007 at Cabramatta in the State of New South Wales, whilst being in company with Sena Aji Dharma, did rob Quoc Vu Nguyen of certain property, namely a sum of cash, the property of Quoc Vu Nguyen and at the time of the robbery, did inflict grievous bodily harm on Quoc Vu Nguyen.
The applicant was sentenced to a term of imprisonment of 9 years with a non-parole period of 6 years. He was sentenced on 6 March 2009 and filed a Notice of Intention to Appeal on 30 March 2009. Subsequently, approximately 7 months after the Notice of Intention to Appeal had expired, the applicant sought an extension of that notice. That application was refused by the Registrar.
A Notice of Application for Extension of Time to file a Notice of Application for Leave to Appeal was filed on 28 July 2011. It was accompanied by an affidavit sworn by the applicant's solicitor. The picture presented is of a failure by the applicant's original solicitor to prosecute the appeal with any expedition. The matter was assigned to the applicant's present solicitor by Legal Aid on 28 April 2010. Thereafter the matter has proceeded slowly. However, I am satisfied that the failure to prosecute the appeal in the appropriate manner was not occasioned by any action of the applicant. If I had been persuaded that the applicant had an arguable case on the appeal I would have granted leave to appeal. However, as I discuss below in my view the appeal is without merit and I would refuse leave to appeal out of time.
There are three grounds of appeal with sub grounds in the first two grounds. The grounds of appeal are as follows:
Ground 1:The trial judge erred in that:
(a)His directions to the jury regarding identification evidence were inadequate in the circumstances.
(b)His direction to the jury regarding the evidence of an accomplice, Sena Aji Dharma, was erroneous or, at the very least, inadequate.
(c)His Honour failed to adequately or properly direct the jury regarding the use to be made of the evidence of the accomplice's plea of guilty.
Ground 2:A miscarriage of justice was occasioned and the appellant's trial was rendered unfair in that the Crown trial advocate erred:
(a)In adducing evidence of the plea of guilty of the accomplice which was not relevant to a fact in issue in the proceedings.
(b)By making a submission in her final address which had no proper foundation.
Ground 3:Generally, there has been a miscarriage of justice.
The facts
The complainant, Mr Quoc Vu Nguyen, was in the poker machine section of Cabramatta Inn hotel between at least 1.30 am and 3.25 am on 1 February 2007. He can be seen in CCTV footage wearing blue jeans and a dark blue jacket. Sena Dharma was also in the poker machine section of the hotel between 1.30 am and 3.30 am and can be seen in the footage wearing blue jeans and a white t-shirt with orange motif and a black jacket with collar length black hair which was tied in a ponytail at the back.
The applicant, who had short dark hair, was also in the hotel in the poker machine area and can be seen on the CCTV footage between 2.09 am and 3.26 am, wearing white and blue sports shoes and a grey jacket with black stripes down the sleeves. The jacket and sports shoes were located on the applicant's arrest in the evening of 6 February 2007.
At about 1.47 am Dharma approached the complainant who was sitting at a poker machine and asked him for a lighter, which he gave him. The complainant described Dharma to the police as having spoken in Vietnamese with a northern Vietnamese accent, 25 to 30 years old, 160 centimetres tall, skinny, collar length hair wearing a grey/red jumper and dark-coloured pants. Everything but the clothing was consistent with Dharma's appearance that morning.
At 2.05 am Dharma approached the complainant again and asked him for a cigarette. The complainant refused to give him one and told him to buy his own. A second man (on the Crown case the applicant) whom the complainant later described to police as having short dark hair, 35 to 40 years old, 175 centimetres tall and wearing a yellow short-sleeved t-shirt with collar and grey pants then approached him and said to him in Vietnamese, spoken with a Cambodian accent, "What do you want, do you want to fight or not." At 2.09 am the applicant can be seen on the CCTV footage standing behind the complainant and appearing to watch him playing a poker machine for some minutes.
At about 2.13 am the complainant won $1,000 while the applicant was still standing behind the complainant. He was paid out that amount in $50 notes by a cashier at 2.16 am. At the same time Dharma walked past and looked down at the complainant as the cashier handed him the money.
The complainant then left the hotel, went to a nearby ATM and withdrew $1,000 and put it in his front pocket. When he went outside to the ATM he saw the man with short black hair standing outside the hotel smoking. He then went back into the hotel and continued playing the poker machines. When he went back inside the man with the ponytail was sitting near the poker machine and this coincided with footage of Dharma at about 2.17 am sitting playing a poker machine.
At 2.19 am the applicant can again be seen standing behind the complainant whilst the latter was playing a poker machine and watched him for several minutes At 2.29 am Dharma and the applicant are seen to approach the complainant at the poker machine and appear to have a conversation. Shortly after a security officer, Mr Muagututia, approached Dharma and the applicant and another security officer who was trying to calm them down. They told Mr Muagututia that they had asked the Vietnamese man (the complainant) for a lighter and he told them to "fuck off."
Between 3.09 am and 3.11 am the applicant was seen talking to the security officer at the Railway Parade liquor store and then, at 3.20 am, left the hotel where the footage shows him smoking a cigarette and then returning into the hotel.
At about 3.23 am the complainant was paid out another $460 from the poker machine by the cashier. The CCTV footage shows the applicant walking past the complainant at that time and looking towards him as he was being paid. The video footage then shows the applicant leaving the hotel at 3.24 am. Shortly thereafter the complainant left the hotel through the Railway Parade exit and was seen on other CCTV footage walking towards Old Cabramatta Road at 3.25 am.
At 34:25:35 am the applicant can be seen to come back into the Hotel. At 3:25 am the complainant can be seen crossing on to the other side of Old Cabramatta Road West. At 3.26 am the applicant left the Hotel through the same Railway Parade exit and shortly thereafter was seen running along the hotel side footpath heading towards Old Cabramatta Road West in the same direction as the complainant had gone.
At 3.28 am Dharma was paid out the sum of $10 from a machine that he had been playing (after being told the Hotel was about to close). At 3:28 am Dharma walked out through the Railway Parade doors and talked to the security officer, Muagututia. Dharma gave evidence that he had asked which way the applicant had gone and the security officer indicated to the left. At 3.29 am Dharma was walking along Railway Parade towards Old Cabramatta Road West. By 3:30 am he had crossed on to the opposite side of Old Cabramatta Road West just near the crossing. He appears to be running and was heading in the same direction as the complainant had gone.
As he walked along Old Cabramatta Road West (past the back of the Commonwealth Bank) the complainant heard a voice call out "Hey come back." He turned around and saw the man with the short dark hair with the Cambodian Vietnamese accent who had spoken to him inside the pub. The man ran towards the complainant and said to him "o you want to fight?" The complainant turned to run but before he could the man started to attack him. He was struck with a strong blow to the left side of his face and fell to the ground. He looked up and saw the man lift his shirt up and pull a knife out from the front part of his jeans. At that point the complainant looked at the man's face as he stood in front of him, and the man looked at him, and the man raised the knife up and made a screaming-type noise. The complainant recognised the man as the one he had seen in the Hotel and had asked him if he wanted to fight.
The knife was about 8 inches long and had a smooth edge and the blade was pointed. Upon seeing the knife the complainant became very scared and lost consciousness. When he came to he got up and ran along Old Cabramatta Road West, then Cabramatta Road towards Acacia Street. As he ran he heard someone following him and calling out in Vietnamese, "Stop", and he then heard another voice calling out in Vietnamese "Hey hey". He turned around and saw an object coming towards him and realised it was his wallet. He picked it up, checked that his cards were still in it but saw that the $460 had gone. He continued running along Acacia Street towards Bolivia Street. As he did that he turned around and saw the man with the short dark hair in a crouching position.
The complainant continued to run along Acacia Street with the man with the short dark hair running behind him. When he reached Bolivia Street somebody grabbed him by the shoulder and he yelled out "Help" and threw his arms out and tried to push the person away. He said he saw the person's legs and feet in front of him, and then he felt himself being pushed from his right side (by a second person). The complainant fell to the ground and landed on all fours. At that point he was kicked very hard to the right side of the face around his eye. When kicked he felt the top part of a shoe. It was the Crown case that whilst the applicant was wearing shoes, Dharma was wearing only scuffs.
As a result of the kick to his right eye the complainant suffered a tear in the retina of his right eye that was subsequently repaired by laser surgery. This was the injury relied on by the Crown as the grievous bodily harm the subject of Count 1.
The complainant then received another kick to the head and the man said "why do you tell lies?" He then felt someone put a hand into his front left jeans pocket and take his money - the $1,000 that he had withdrawn from the ATM machine and the $1,000 that he had initially won on the poker machine.
The complainant then passed out. When he came to he was in the middle of the road on his own. He called 000 and managed to crawl home to Myall Street. The police and an ambulance subsequently arrived. In addition to the retinal tear of the right eye, he also suffered a fractured left orbital socket, two black eyes, cuts around his left eye, facial swelling and bruising, and bleeding from his ear and nose.
On the night of 6 February 2007 Dharma and the applicant again attended at the Cabramatta Inn. As a result of a request from the police to advise if the two returned to the Hotel the police were called by hotel staff and the two were arrested a short distance away. The applicant was wearing blue and white Puma shoes (the same as he was wearing on 1 February 2007 according to the CCTV footage) and he had a knife, which became Exhibit 5, tucked down the front of his jeans. It was about 8 inches long with a black handle, a smooth top edge on the blade and a serrated edge on the bottom.
On 20 February 2007 when shown a selection of photographs, including that of Dharma, the complainant was unable to identify anyone.
On 1 May 2007, the complainant was shown 20 photographs which included (at no. 13) a photograph of the applicant. He said (in a statement made at the time):
"Out of all the pictures, I thought he looked like the person in photograph 13, however, I'm not sure. I think the man who attacked me has lighter skin than the man in photograph 13. However, when I look at his face, it makes me feel like I met him before, although I don't remember when. That's why I didn't say the man in photograph 13 during the parade, because I'm not completely sure if it was him. I thought the person who attacked me looked like him, which I did."
When shown the CCTV footage for the first time in court the complainant identified Dharma as the man with the collar-length hair and the man with short hair as the applicant and as "the man who attack me". It was not until cross-examination by defence counsel that it was directly suggested that the complainant was saying that the man who attacked him was "the accused in the dock."
It is to be noted that during the course of pre-trial arguments on 18 August 2008 defence counsel indicated there was no issue that the applicant could be seen in the CCTV footage.
Dharma was called by the Crown. As expected (following a Basha enquiry) he gave a version of events which was completely contrary to that which he had given police in an ERISP on his arrest and contrary to the Agreed Facts to which he had pleaded guilty. On those occasions his account of the events implicated the applicant. At the trial he admitted his own involvement in the robbery but asserted he was alone and completely exculpated the applicant.
The complainant readily conceded during cross-examination that he was confused and frightened at the time and that he "wasn't concentrating on what the man who hit him looked like." He also accepted during cross-examination that he only had a limited opportunity to view his attacker, a matter of "a few seconds." He said that as a result of being struck his "eyes were blurred because of the injuries. So I didn't see anything clearly."
Grounds 1(c) and 2(a)
It is appropriate to consider Ground 1(c) and Ground 2(a) of the appeal together.
The co-offender Dharma gave evidence at the applicant's trial. His evidence included an admission of his own involvement in the offence. Evidence was adduced, without objection, of his plea of guilty to the offence. Mr Dharma had pleaded guilty to a charge that read:
"On 1 February 2007 at Cabramatta in the State of New South Wales you did rob Nguyen Quoc Vu Nguyen of certain property, namely an amount of cash the property of Nguyen Quoc Vu Nguyen whilst being in company with Samban Ith."
However, his evidence, which was contrary to earlier statements he had made to the police, sought to exculpate the applicant.
Notwithstanding that there was no objection to the evidence, defence counsel submitted after completing his closing address that the trial judge should direct the jury that they could not use the fact that Dharma had pleaded guilty to the relevant charge when considering the circumstances of the case against the applicant. The trial judge responded by reminding counsel that the issue had been dealt with in great detail in counsel's address. The trial judge declined to give further directions in relation to it.
Defence counsel returned to the issue at the conclusion of the summing-up saying he was "concerned about the jury using the evidence of the plea against the accused." The trial judge repeated that he was not going to direct in relation to the issue. He did, however, provide a warning to the jury about Dharma's evidence in the following terms:
"Members of the jury, the Crown called Mr Dharma who gave evidence that was not favourable to the Crown and the Crown was able to cross-examine him to show that he had earlier made statements which were inconsistent with the evidence he gave before you. The content of those statements is now in evidence before you as is the evidence which the witness has given in this trial. In many respects, the evidence given in this trial is in clear conflict with the content of the earlier statements. You must decide, in the case of such conflicts, whether you accept the evidence given in this trial or what Mr Dharma said in the earlier statements, or, on the other hand, whether in view of these conflicts, you should reject the evidence of Mr Dharma altogether.
In respect of the earlier statements I must warn you that such evidence may be unreliable because:
1.On his own admission in the witness box Mr Dharma lied to police about his involvement and that of the accused in the robbery;
2.Such witnesses may fabricate evidence out of a motive of loyalty to assist a friend;
3.Such witnesses will often be peculiarly equipped, by reason of inside knowledge of the crime, to provide a convincing account of what happened, in this case to exculpate the accused.You must therefore exercise caution in determining whether to accept the evidence or any part of it and the weight you give to such part of the evidence as you may accept. However, it is open to you to exercise the necessary degree of caution to accept the evidence contained in the early statements and preference the evidence given by Mr Dharma in this trial."
The applicant submitted to this Court that whether or not Dharma pleaded guilty was not a fact in issue in the proceedings and, as he had not received a discounted sentence for assisting the authorities, it was not relevant to any issue in the trial. It was submitted that accordingly, evidence of his guilty plea was liable to distract the jury from a dispassionate and rational consideration of the case against the applicant. It was submitted that the trial judge should have directed the jury that the plea of guilty by Dharma was not evidence against the applicant and was strictly irrelevant.
Consideration of the transcript of the trial indicates the extent to which counsel for the applicant addressed the jury in relation to Dharma's evidence. It was lengthy and canvassed the reasons why it was suggested Dharma may have pleaded guilty. In any event, as this Court has made plain, the trial judge was obliged to identify the true situation of Dharma and provide, as his Honour did, a warning that his evidence may not be reliable.
There are a number of decisions following the enactment of the Evidence Act 1995 where this Court has had occasion to consider the principles relevant to the duties of a Crown prosecutor and/or a trial judge to ensure that a jury is made aware of matters which could affect the reliability of a co-offender who is called to give evidence: see R v Gonzalez-Betes [2001] NSWCCA 226; R v Nale [2002] NSWCCA 31; R v Chen & Others [2002] NSWCCA 174; (2002) 130 A Crim R 300; R v Sullivan [2003] NSWCCA 100 and Santo v The Queen [2009] NSWCCA 269.
It is helpful in the present case to consider Chen where the appellant was convicted of being knowingly concerned in the importation of a large quantity of heroin into Australia. The Crown called a co-offender and led evidence that the witness had signed a written undertaking to co-operate with law enforcement authorities and that the Crown could appeal against the inadequacy of his sentence if he failed to co-operate. The appellant accepted that the evidence that the witness was complicit in the offence, had pleaded guilty to it and had received a discount for giving evidence against his co-offender was admissible. However, the appellant argued that the evidence relating to the written undertaking was not admissible - it being relevant only to the witness's credibility and thus a contravention of s 102 Evidence Act 1995.
After expressing the view that the appellant's contention regarding the written undertaking was weakened by the concession that evidence that the witness had pleaded guilty was not contrary to s 102, the Court continued at [28]:
"[2]There is authority of long standing in this Court for the proposition that the true status of such a witness as the witness Chan in the present case is relevant in a sense that extends beyond credibility alone: R v Booth (1982) 8 A Crim R 81; followed in R v Gonzalez-Betes [2001] NSWCCA 226.
[3] In Booth each member of the Court, (Street CJ, O'Brien CJ of Cr D and Lee J) gave concurring but separate judgments. It will suffice for present purposes to quote the following passages from the judgment of Lee J:
'The direction which practice requires a judge to give when an accomplice gives evidence for the Crown is intended to achieve a particular purpose: namely to bring to the attention of the jury that the evidence of such a witness may be in a different position from the point of view of reliability from that of other witnesses. The trial judge is expected to bring home to the jury that it is dangerous to convict on the uncorroborated evidence of such a witness; and this direction has the consequence that the witness is, in a real sense, held up as a witness whose testimony is suspect. It is left to the jury to appraise the evidence of the witness in the light of the warning given.
In my opinion the requirement that the judge give the direction and that the jury then assesses the witness' evidence in the light of that warning provides the justification for the admissibility into evidence of evidence showing the position of the accomplice vis-a-vis the Crown which is the party calling him. In order for the jury to assess the degree of danger involved in evaluating his uncorroborated testimony, it is necessary for the Crown to disclose whether the witness has for instance been offered or granted a pardon, or whether it is not intended to proceed against him, or whether in fact he has been charged with an offence arising out of or related to the matter with which the accused is charged. Such evidence, in my opinion, goes to the witness' status as an accomplice, and that is a relevant matter for the jury to consider. It is particularly relevant in regard to the extent to which the evidence of that accomplice can be called upon to found a conviction of the accused." [(1982) 8 A Crim R, 81 at 86-87]
[4]We agree, with respect, with that analysis of Lee J. We are not persuaded that those responsible for the drafting of section 102 of the Evidence Act intended simply to abrogate the principles thus explained. The evidence is not tendered as evidence relevant only to a witness's credibility because it is tendered pursuant to the Crown's duty of fairness to the accused to lay out before the jury the status of the witness without that status being dragged out in cross-examination in a manner which might not be favourable to the interests of the accused. Section 9(1) provides that the Act does not affect the operation of a principle or rule of common law in relation to evidence except in so far as the Act provides otherwise expressly or by necessary implication. Section 102 does not provide otherwise. There are other forms of evidence in chief which might, on one approach, be said to relate to credibility, while not being excluded by s 102. It is customary to obtain the address and occupation of witnesses at the start of the examination in chief. Strictly speaking the address and occupation of a particular witness at the time of the trial is irrelevant to any issue, though either an address or an occupation at the time of the events in issue can be. The evidence is received simply in order to locate the witness in society. Similarly, the qualifications of an expert do not go to an issue, and, if there is no objection to the witness's expertise, can only be relevant to the reliability of the opinions or other evidence to which the witness testifies. Yet s 102 cannot be construed to render that kind of evidence inadmissible when for centuries it has been admissible. We reject, therefore, the proposition basal to paragraph (a), as did this Court in R v Gonzales-Betes [2001] NSWCCA 226.
[5] Even had we been persuaded to the contrary view, we would have held that there had been, in substance, no miscarriage of justice. First, it seems to us that counsel at trial for the appellant could not have been denied the opportunity of cross-examining Chan about the matters of which we have earlier spoken: see section 103 of the Evidence Act. Secondly, had the Crown not led the particular evidence from Chan, and had that evidence thereafter been elicited in cross-examination, the practical position at trial would have been, in our opinion, substantially the same as the practical position achieved in fact. Thirdly, had the relevant material about the witness Chan been led neither in-chief nor in cross-examination, then the jury would have been called upon to consider Chan's reliability upon an incomplete and misleading basis. It is sometimes not possible to avoid such a result, because of some countervailing, or other, legal requirement. But such a misleading presentation of a witness such as Chan is, obviously we would have thought, to be avoided if that can possibly be done. In the present matter it could be done; and was, in our opinion, properly and correctly done. Fourthly, counsel appearing for Chen at the trial did not object to the tender of the written undertaking. The transcript for 18 October 2000 records that it was admitted without objection. This attracts the operation of rule 4 of the Criminal Appeal Rules, requiring leave for the moment to be taken. There is no reason whatever why leave should be given.
In the submissions appearing under this ground was a submission that the trial judge did not direct the jury that a plea of guilty by Chan was not evidence against the appellant, and that this failure was a material non-direction. No argument was developed in relation to this point, and it is rejected." (emphasis added)
To my mind the matter is of no significance. Dharma gave evidence in which he admitted his part in the crime and identified the applicant as his co-offender. Whether or not there was evidence of the entry of a formal plea of guilty seems to me to be of little relevance. The fact of the matter was that Dharma admitted committing the offence. In any event, knowledge that Dharma had pleaded guilty provided the jury with complete knowledge of matters which may have affected the reliability of this evidence. Moreover, the plea was an acceptance of the truth of the allegations in the charge. It was a statement concerning an issue in the trial, namely, whether Dharma was indeed alone or had committed the offence in the company of the appellant. The mere fact that it was made in the form of a plea did not change this characteristic. It was therefore, in the circumstances, admissible as part of the material that the jury was entitled to take into account in considering whether to accept the evidence he gave in the trial that exculpated the applicant or to rely on his former statements about the matter.
I would reject these grounds of appeal.
Ground 2
Photo identification evidence was tendered at the trial without objection. The complainant said that the person in the photograph "looked like" his attacker. The evidence was admitted as "circumstantial identification evidence: R v Adams [2004] NSWCCA 279 at [18] Dunford J, with whom Adams and Howie JJ were in agreement; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [56]. A later application to have the evidence withdrawn from the jury was rejected by the trial judge.
The utility of the photo identification was diminished by the fact that in the photograph the applicant appeared to have dark or heavily tanned skin which was not consistent with the complainant's recollection. He thought his attacker had "lighter skin." Although there was no evidence to this effect, when addressing the jury the trial advocate attempted to deal with this issue by submitting that the applicant appeared to have tanned himself between the date of the offence on 7 February and the taking of the photograph on 11 April.
The applicant correctly points out that there was no evidentiary basis for the making of this submission. However, no objection was taken to the submission and defence counsel did not ask for it to be withdrawn or for the judge to give any direction in relation to it. In fact, defence counsel sought to draw upon the complainant's evidence that the photograph "looked like someone I have seen before" to assert that it was consistent with the complainant having seen the applicant in the hotel in the early hours of that morning rather than his having seen him as his assailant.
To my mind, this ground of appeal has no merit. The comment by the trial advocate should not have been made. However, it was of such little consequence that, in the absence of the matter being raised at the trial, I would refuse leave under rule 4 of the Criminal Appeal Rules to raise this ground of appeal.
Ground 1(a)
Ground 1(a) raises issues in relation to the directions given by the trial judge with respect to the identification evidence. There was no objection taken in the terms now raised to the directions given at the trial.
In his summing-up, the trial judge commenced dealing with the question of identification by saying to the jury "members of the jury the next important direction of law I give you concerns the question of what is known as identification evidence." His Honour then read passages from the evidence of the complainant in which he described his recollection of the person who had attacked him. The trial judge then gave the following directions:
"Members of the jury the accused does not have to prove to you that he was not involved in the assault and robbery on Mr Nguyen. The Crown has to prove that he was, and the question for you is whether the Crown has proved that he was, and proved it beyond a reasonable doubt.
Members of the jury in relation to the evidence of visual identification by Mr Nguyen and the voices he heard I give you the following directions. We have all had experience in everyday life of mistakes being made in the identification of a person. You may have yourselves made a mistake in recognising someone you saw in the street, at a party or some other social occasion. Although generally speaking no two people are the same, people are often alike and certainly people have common features. A description of a person, particularly if it is relatively general, can easily apply to more than one person. Just as mistaken identification occurs in general everyday activity, so too wrongful identification evidence is sometimes given in courts and there are cases where people have been wrongly convicted because of mistakes in identification. Of course the consequences of a wrong identification, particularly in a criminal matter, can be very serious indeed. False identification can occur even when the witness is being honest, as appears to be the case of Mr Nguyen who gave evidence before you. This is because identification to be of value has to be reliable, that is it has to be accurate and it is notorious that people, who otherwise might be reliable as witnesses can be very unreliable when it comes to identifying a person they have seen on a specific occasion in specific circumstances. One difficulty with this type of evidence is that identification evidence given by a respectable, honest and sensible witness may be very persuasive, even though this witness is wholly mistaken.
Further, two or more witnesses can be just as mistaken as one. Because of the serious risk of unreliability of this type of evidence and the real possibility of mistakes being made in the visual identification there is a special need for caution before accepting identification evidence as the basis upon which you can convict the accused. Identification evidence should always be examined very carefully, bearing in mind that mistakes have happened from time to time and that the identifying witnesses, in this case Mr Nguyen, might be mistaken even though he may sincerely believe that he is correct. You must not think that I am saying identification evidence is always wrong or that you cannot rely upon it in this case, but I do direct you that before finding the accused guilty simply on the basis of evidence of visual identification and verbal identification, you must be very cautious and look closely at the evidence to see whether it is in fact reliable.
Members of the jury generally speaking there are two aspects of the identification process. The first is the observation stage. This is where the identifying witness sees the person he or she later identifies. The second stage is the recognition stage when a witness identifies the person he or she has seen on an earlier occasion. Each of these two aspects need to be considered when determining whether to accept the evidence and each can have its own peculiar difficulties.
In respect of the observation stage you must consider the circumstances in which the witness saw the person who is later recognised, that witness being Mr Nguyen on this occasion. You should take into account such matters as would be likely to affect the ability of Mr Nguyen to observe the person later identified. First you would obviously take into account that the assailants were strangers to Mr Nguyen and he had no knowledge of them before that night. You should also consider the time Mr Nguyen had the assailants under observation and the circumstances at the particular time, including the fact that this all occurred at night time, and Mr Nguyen told you of his fear. You should also take into account how much time Mr Nguyen had to view his alleged attackers and whether there were special reasons for observing or identifying or for not observing or identifying. For example, unusual features or circumstances of the occasion for observing the person, or unusual features of the person being identified such as distinctive or unusual marks, clothing or actions. The mental state of the witness, of Mr Nguyen in this particular case, at the time of the observation is also important. For example was Mr Nguyen under stress or did he have time for a long calm look at the person or persons? Mr Nguyen also told you that after being assaulted the first time his eyesight was a bit blurry.
The next stage of identification evidence is the recognition or identifying stage. Having observed the person there comes a later point when the identifying witness indicates who the person was he or she had observed previously. The two matters of importance here are, firstly, the time between the observation and the identification, and secondly, the circumstances and witnesses of the identification or recognition process. You have to consider the effects of the delay between the observation and the recognition upon the retention of the mental picture of the robber or robbers held by Mr Nguyen. In this case the recognition process was undertaken by using a photograph board some three months later. Identification from photographs has the difficulty that the identifier has not seen the whole of the person as a three dimensional human body. As you would be aware, photographs very often do not do justice to the way a person looks. A photograph can distort features, particularly colouring of skin, eyes and hair and you remember the evidence of Mr Nguyen that I mentioned earlier, that he picked out the photo of the accused but he said he was "not sure".
Members of the jury in the case of the voices heard by Mr Nguyen in the street as he ran you must bear in mind that in the hotel there was not much conversation between Mr Nguyen and Mr Dharma in company with the accused. It was brief. Just a few words were spoken as Mr Nguyen played the poker machines. There is no evidence of any direct conversation between the accused and Mr Nguyen. Mr Nguyen told you that he recognised the voice of the man with the short hair while he was being kicked lying on the ground as that of the man who said "you want to fight or not" after Mr Nguyen left the club and was walking along the street. Mr Nguyen told you that this person when kicking him said "why do you lie" and he recognised the voice. You should also bear in mind that at the time Mr Nguyen heard the voices in the street he was in a state of fear for his safety. You should also bear in mind that the assailants may have been trying to disguise their voices. These are matters you should consider carefully when determining whether the person who called out to the complainant, Mr Nguyen, was the accused.
Members of the jury you will remember the evidence of the complainant of the robbery, Mr Nguyen. During the course of his evidence, he was shown some CCTV footage of the poker machine room in the Cabramatta Hotel and the persons in that room whom he identified as a man with his hair tied back and another as a man with the short black hair. It was the first time that Mr Nguyen has seen that CCTV footage. At one stage in his evidence Mr Nguyen pointed to the accused in court and said he was the man who had attacked him. Members of the jury you might think that Mr Nguyen, if he was going to point to anybody, would point to the accused. Members of the jury identification is a very live issue in this case as I have said. You will remember the evidence that Mr Nguyen saw the photo board some three months after the robbery and he said he was "not sure". In these circumstances members of the jury you should give the evidence of Mr Nguyen as to what he said about the accused in the witness box and the dock the weight you consider it deserves along with all the other evidence you have before you and remember the directions of law that I have just given you about the need to be cautious in relation to identification evidence, (emphases added)
The applicant complained that the trial judge failed to include an additional sentence from the model direction in the Bench Book in relation to identification evidence. That sentence reads as follows:
"You must give consideration to each of these matters. Any one of those circumstances may possibly lead to error."
To my mind the submission is without merit. This Court has previously commented on the fact that the Bench Book, although prepared with great care, should not be relied upon as a complete and authoritative statement of the law. The fact that a trial judge does not direct in the precise terms provided by the Bench Book is not indicative of legal error. It is necessary to consider the directions which were actually given at the trial and determine, in the context of that trial, whether or not they were appropriate: Hong v The Queen (2009) NSWCCA 242.
The applicant further submitted that the jury should have been given a more significant warning in relation to the process by which the applicant was identified by the complainant in the court room. When shown CCTV footage the complainant first identified the applicant as being the man with the "short black hair" who was inside the Cabramatta Inn. When he made this statement he was not wearing his glasses, which he apparently needed in order to see the CCTV footage on the screen. When he was given his glasses he again identified the applicant on the CCTV footage. This sequence of events would have been observed by the jury. When the complainant was cross-examined it was suggested to him that he was mistaken in his identification of the man in the dock as his attacker.
In the written submissions counsel for the applicant accepted that no complaint was made at the trial about the directions in relation to identification of the applicant in the dock. There is some reference to this issue in the transcript when defence counsel submitted that the identification by the complainant of the person with the short hair as being "the man in the dock" should be the subject of a particular warning.
The passages highlighted in the extract from the trial judge's directions which I have set out above were identified by the respondent in its submission to this Court. I am satisfied that the trial judge dealt with the issue of dock identification (see Stanley v The Queen [2004] NSWCCA 278) and provided a warning in appropriate terms: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555.
Although the trial judge did not give any express warning to the jury regarding the potential unreliability of "in court identification", the directions included the statement that "you might think that Mr Nguyen, if he was going to point to anybody, would point to the accused." The implication was plain - the judge was telling the jury they should place little or no weight on such an identification.
The trial judge's directions in relation to identification were otherwise comprehensive and drew to the jury's attention any matter of significance arising in relation to the issue. The jury were reminded of the need for caution in relation to identification evidence and were assisted in identifying the problems to which it can give rise. There being no issue at the trial in relation to the matters now raised by the applicant, I would also refuse leave to raise this ground of appeal.
Ground 1(b)
The applicant's submissions in relation to this ground of appeal are not altogether clear. As I understand them the applicant first complains that when directing the jury in relation to Dharma's evidence, although the direction generally accorded with the relevant direction in the Bench Book, his Honour ended by saying:
"However, it is open to you, having exercised the necessary degree of caution, to accept the evidence contained in the earlier statements in preference to the evidence given by [Dharma] in the trial."
It was submitted that this direction constituted more than a warning that the evidence may be unreliable, and "impermissibly trenches on the essential function of a jury, to determine for each juror, whether they accept the reliability of that evidence or not." It was submitted that the trial judge only once alluded to the role of the jury as the ultimate finders of fact. It was further submitted that "it was necessary to make a reference to their right to reject that direction of law, [sic] if it did not accord with their own assessment of the evidence." It was submitted that his Honour misdirected the jury regarding how they could approach Dharma's evidence."
It was further submitted that this Court should determine that the direction in the trial Bench Book is appropriate in the circumstances of this case and failure to comply with its terms was an error of law. The suggested directions in the Bench Book end with an invitation to the trial judge to "deal with the submissions by the prosecution and the accused with regard to the evidence of the witness." It was submitted that because the trial judge failed to deal with those submissions there had been a miscarriage of justice.
I am satisfied these submissions must be rejected. His Honour did, on more than one occasion, remind the jury of their role as the finders of fact. His Honour told the jury that it was their responsibility to "identify the facts established by the evidence and to apply the legal principles which I tell you to the facts that you have identified. What has been proved is for you and you alone to decide. How you decide those matters of fact is a matter of you exercising your commonsense." Elsewhere his Honour reminded the jury that when there were inconsistencies in the accounts of relevant matters it was a matter for the jury, as the judges of the facts, to resolve the inconsistencies. His Honour reminded the jury that inconsistencies or variation in a witness's account at different times may be relevant to the reliability of that witness. I am satisfied that the jury could have been under no misapprehension as to the respective submissions in relation to the evidence. There was no suggestion by trial counsel that further directions were required.
It was suggested by the applicant that the form of the direction in the Bench Book may have derived from the charge given to the jury by Abadee J, which was referred to without criticism by this Court in R v Esho; R v Sako [2001] NSWCCA 415 at [97]. The direction given by Abadee J ended by saying that "whether you do so or not is a matter for you." This additional direction was not included in the direction given by his Honour and is not contained in the suggested Bench Book direction. However, it was submitted that Abadee J was correct and the additional words should have been included in the direction. For this reason it was submitted that by omitting these words his Honour's direction occasioned a miscarriage of justice.
This submission is entirely without merit. As I have indicated, the trial judge on a number of occasions referred to the role of the jurors as the deciders of the facts. The directions which his Honour gave on this issue were comprehensive. I do not accept that the additional direction given by Abadee J in Esho and Sako was required in the present case.
I would refuse leave to raise this ground of appeal.
Ground 3
Ground 3 of the appeal contains a general assertion that there has been a miscarriage of justice. The written submission is brief being confined to the proposition "that the combination or aggregation of the defects identified in the several grounds of appeal advanced by the appellant constitute a miscarriage of justice." Although counsel acknowledged the strength of the Crown case, it was submitted that the applicant did not have a fair trial.
I have previously related the factual circumstances from the evidence in the trial. In the course of his closing address the Crown prosecutor identified the circumstances relevant to the Crown case with some particularity. They were repeated by the trial judge for the benefit of the jury in the following terms:
"1. The first circumstance is that the accused, Dharma and Mr Nguyen were all in the poker machine room at the Cabramatta Hotel between 1.30 am and 3.25 am on 1 February 2007.
2.The accused said to Mr Nguyen in Vietnamese "What do you want, do you want to fight or not?" The accused spoke in Vietnamese with a Cambodian accent and the accused Mr Ith is Cambodian.
3.The accused stood behind Mr Nguyen and watched him playing a poker machine. Mr Nguyen won $1,000 on a poker machine and was paid out at 2.16 am.
4.Dharma walked past Mr Nguyen and looked towards him as the cashier was paying Mr Nguyen.
5.Mr Nguyen won $460 on a poker machine and was paid out by the cashier at 3.23 am. The accused walked past Mr Nguyen and looked towards Mr Nguyen whilst the cashier was paying Mr Nguyen.
6.Mr Nguyen left the hotel through the Railway Parade exit and then walked towards Old Cabramatta Road at 3.25 am.
7.Mr Nguyen crossed onto the other side of Old Cabramatta Road at 3.25.56 am.
8.The accused left the hotel through the Railway Parade exit and then ran towards Old Cabramatta Road at 3.26.10 am.
9.Dharma left the hotel through Railway Parade doors at 3.28.05 am. Dharma walked along Railway Parade towards Old Cabramatta Road at 3.29.45 am. Dharma went along the opposite side of Old Cabramatta Road at 3.30.05 am heading in the same direction that Mr Nguyen was last seen moving.
10.Mr Nguyen was walking along Old Cabramatta Road West when he was confronted by a man with short dark hair and a Cambodian Vietnamese accent who had spoken to him inside the pub. That man said "do you want to fight?".
11.That man with the short dark hair lifted his shirt up and pulled out a knife from the front of his jeans.
12.The knife was about eight inches long and had a smooth edge. The blade was pointed.
13.When the accused was arrested on the night of 6 February 2007, he had a knife, which is exhibit 5, tucked in the front of his jeans.
14.The knife is eight and three-quarter inches long. It has a black handle. It has a smooth top edge of the blade. The lower edge of the blade is serrated. The blade is pointed.
15.Dharma told detective Kilmister when he was interviewed on 6 February 2007 that the accused had a weapon when he attacked Mr Nguyen on the morning of 1 February 2007.
16.As Mr Nguyen ran along Old Cabramatta Road West, he heard two separate voices calling out in Vietnamese "Stop" and "Hey, hey".
17.As Mr Nguyen ran along Acacia Street towards Bolivia Street he saw the man with the short hair in a crouching position.
18.When Mr Nguyen reached Bolivia Street, someone grabbed him by the shoulder. He saw the person's legs and feet in front of him and then he felt a second person joining in and pushing from his right side.
19.Mr Nguyen was then kicked in the right side of this face. He felt the top part of a shoe when he was kicked in that part of his face.
20.The accused had been wearing sports shoes when he was inside the hotel and when he left the hotel.
21.The accused was wearing a pair of blue and white Puma sports shoes when he was arrested on 6 February 2007.
22.On 1 May 2007, Mr Nguyen had been shown a selection of twenty photographs of males, he said that:
'Out of all the pictures I thought he looked like the person in photograph thirteen (the photograph of the accused), however, I'm not sure. I think the man who attacked me has lighter skin than the man in photograph thirteen, however when I had a look at his face it makes me feel like I've met him before, although I don't remember when. That's why I didn't say the man in photograph thirteen during the parade because I'm not completely sure if it was him.'
It was from this combination of circumstances the Crown wants you to draw the inference that it was the accused who assaulted and robbed Mr Nguyen in company with Mr Dharma."
I have reviewed the evidence admitted at the trial. Mindful of the factual matters and circumstances identified by the Crown I am satisfied that the applicant was rightly convicted. I am not persuaded that there has been a miscarriage of justice.
In my opinion the application is without merit and accordingly leave to appeal out of time should be refused.
ADAMS J: I agree with McClellan CJ at CL.
HOEBEN J: I agree with McClellan CJ at CL.
**********
6
13
2