Joseph Stephen Tewharematai Winikerei v The Queen

[2005] ACTCA 41

JOSEPH STEPHEN TEWHAREMATAI WINIKEREI v THE QUEEN [2005] ACTCA 41 (17 November 2005)

CRIMINAL LAW – appeal against conviction - unsafe and unsatisfactory ground - adequacy of identification evidence challenged.

M v R (1994) 181 CLR 487
Jones v R (1997) 191 CLR 439
Gipp v R (1998) 194 CLR 106
R v Marshall [2000] 113 A Crim R 190
R v McKellar [2000] NSW CCA 523 (11 December 2000)

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 24 - 2005
No. SCC 185 of 2004

Judges:  Higgins CJ, Crispin P and Madgwick J
Court of Appeal of the Australian Capital Territory
Date:  17 November 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 24 - 2005
  )  No. SCC 185 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JOSEPH STEPHEN TEWHAREMATAI WINIKEREI

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  17 November 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed.

IN THE SUPREME COURT OF THE  )   No. ACTCA 24 - 2005
  )  No. SCC 185 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JOSEPH STEPHEN TEWHAREMATAI WINIKEREI

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  17 November 2005
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The appellant appeals against his conviction for an offence of recklessly inflicting grievous bodily harm on Scott Peter Wood at Canberra on 22 February 2004. 

1. Whilst the notice of appeal contained grounds raising issues as to the admissibility of evidence, they were expressly abandoned and the conviction was ultimately challenged only on the ground that the jury’s verdict was unsafe and unsatisfactory.

1. The principles generally governing appeals on this ground were explained by the High Court of Australia in the following passage from the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v R (1994) 181 CLR 487 at 494-495:

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 set aside a verdict based upon that evidence (Chamberlain v R [No 2] (1984) 153 CLR at 618-619; Chidiac v R (1991) 171 CLR 432 at 443-444). 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 (Chidiac v R (1991) 171 CLR 432 at 443, 458, 461-462). Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.

1. See also Jones v R (1997) 191 CLR 439 at 450-451 and Gipp v R (1998) 194 CLR 106 at 114, 123, 150 and 162-4.

1. In the present case, the offence was allegedly committed in the early hours of the morning at the Stylus nightclub in Civic. The complainant had attended a party at his uncle’s house on the evening of 21 February 2004 and had consumed six full strength beers before going to the nightclub with his brother, Sean Wood, his uncle, Andrew McGlynn, and friends, Adam Brown and Wendy Fisher.  The group arrived at about midnight and, after buying drinks, moved to an area to the right side of the front entrance.  A short time later a woman, who it was later discovered was the mother of the appellant, approached the complainant and a brief conversation ensued.  He asked her about the location of the toilets, she responded in a jocular manner and the complainant laughed.  He was then approached by a man, allegedly the appellant, who asked, “Is there a problem here”?  The complainant told him that there was no problem and put his hands up in front of him with his palms facing outwards.  The appellant’s mother apparently tried to intervene by trying to calm the other man, but he proceeded to punch the complainant on the side of his face.  The complainant spun around and dropped his drink, then turned back, again put his hands up in front of him with his palms facing outwards and repeated, “No problem here”.  The man punched him again and the complainant fell to the floor, apparently unconscious. 

1. It does not seem to have been disputed that the complainant was assaulted in this manner or that the injuries he sustained as a consequence were sufficient to constitute grievous bodily harm.  The only real issue at the trial was whether the evidence presented by the Crown was sufficient to prove beyond reasonable doubt that it was the appellant who had been the assailant.

1. The complainant, Sean Wood, Mr McGlynn and Ms Fisher were all called to give evidence on behalf of the Crown but, whilst the three men provided descriptions of the assailant that were consistent in some respects with the appearance of the appellant, only Ms Fisher purported to identify him.

1. The complainant described the man who assaulted him in the following terms:  “large muscular tone, islander in appearance, shaved head, wearing a light coloured shirt, denim jeans”.  He explained that the light coloured shirt had been a “white blue pin stripe collared shirt”.  He agreed that he had previously described the man to police as very large, being “at least 100 kilograms in body weight”.

1. His brother, Mr Sean Wood, said he observed that the assailant had a dark complexion and a shaved head.  He added:  “he was really large, like it drew my attention because of the size of the man”.  He agreed that he had subsequently described the assailant as a “big fellow” who had been six feet tall and had “massive shoulders” and a “big neck”.  He had thought that he had had a goatee beard but was somewhat uncertain about that.  Mr Wood had previously said that the man was “the biggest man in the club”.

1. Mr McGlynn also described the assailant as having had a “large build with a shaved bald head, Maori or islander appearance”.  However, he thought that the offender had been wearing a mustard shirt with white writing on it.  He said that the man was about six feet tall and weighed about 120-130 kilograms. 

1. It was not disputed that the appellant was also of islander appearance, but evidence was adduced on appeal to the effect that the appellant was only 1.76 metres tall and weighed only 95 kilograms.  Accordingly, it was submitted that whilst his appearance may have coincided in some respects with the descriptions given by the complainant and the two other male witnesses, he could not have been the person described as the assailant.  It was conceded that evidence of the appellant’s measurements had not been adduced at trial, but Mr Hastings QC, who appeared for the appellant, submitted that the jury would have been able to make an assessment of his size and weight from their observations of him in court.  Whatever the merits of this contention, it is common ground that, had he not been identified by Ms Fisher, his conviction could not have been sustained on the basis of the descriptions given by the complainant and the other witnesses. 

1. Ms Fisher gave evidence that she had met the accused in 1998 when she was in Year 11 at Erindale College and he was in the year ahead of her.  They, and about 200 other students, were members of the “Talented Sports Program” conducted by the College.  Ms Fisher said that she and the accused sometimes chatted together at school and she and other students sometimes went to the college football matches to watch the appellant and his team mates play.  From time to time she used to see him in a nightclub called “Babylon”, and on those occasions she would go up and say hello.  Following her greeting he would usually give her a hug and a kiss on the cheek and there would be a short conversation lasting usually about 30 seconds.  After he left the College, she occasionally bumped into him at the shops and had similar brief contacts with him elsewhere.  In cross-examination she agreed she had seen him infrequently as a student and less frequently in the years following his graduation.  She also agreed that she had never been to his house and that she had had only “very, very fleeting contact” with him after he left school.

1. Ms Fisher said that on the night in question she had seen the appellant in the Stylus Club.  She went up, gave him a hug and said “hello”.  He replied “hello, how’s your night?”.  The conversation took only “a couple of seconds” and then she left and went to the bar.  She said that she was still with the group she arrived with when a lady, presumably the appellant’s mother, joined them.  The appellant subsequently approached them and Ms Fisher observed that he looked distressed and very upset.  She said that the lady began telling the appellant to stop.  However, he asked the complainant what he had said and, when he denied saying anything, punched him with a closed fist.  Ms Fisher said that she then asked the appellant, “Joe, what are you doing?”.  Joe replied, “Don’t fuckin’ touch me”.  She then stepped back and the appellant again punched the complainant.

1. Ms Fisher said that after leaving the club after the assault, she went back into the club and again spoke to the appellant.  She asked him what he was doing but he did not reply.  She then returned to her friends.

1. In cross-examination, it was put to Ms Fisher that she had exaggerated the extent of her previous contact with the appellant and that she had lied to secure his conviction.  She denied having done so.

1. Some apparent inconsistencies were also put to her in cross-examination.  In particular, it was suggested that her evidence that the appellant’s hair had been short and “gelled” when she saw him in the nightclub had been inconsistent with a description she had given to the police the day after the assault in which she had said that the offender had a “bald, like shaved head”.  She sought to explain this apparent discrepancy by suggesting that a person could have cropped short hair and still be classified as having a shaved head.  It was also suggested that she had told the police who interviewed her that the assailant’s name was “Joe”, but that she had been unable to provide his surname at that time.  She insisted that she had given them his surname but this was refuted by Constable Stivala.

1. She agreed that the lighting in the relevant area of the nightclub had been poor, and that she had had only a fleeting glimpse of the assailant between the first and second blows.  She maintained, however, that she had seen the appellant walk up to the group before the assault occurred.

1. Ms Fisher acknowledged that there had been about twenty men at the club who were of islander appearance, most being at least six feet tall and of large build.  She also noted that the security staff and bouncers were big islander men and at least one of them had had a bald head.

1. Other evidence was presented to the effect that the appellant’s father had been present at the club that night, and that he too was a very large man whose appearance was generally consistent with the description given by the complainant and the other two male witnesses.

1. The appellant did not give evidence.

1. Mr Hastings conceded that the jury, which had had the advantage of seeing and hearing Ms Fisher give evidence, would have been entitled to reject any suggestion that she had exaggerated the extent of her previous contact with the appellant or had otherwise given evidence dishonestly.  He maintained, however, that she might well have been mistaken, and referred to the now well recognised risk of mistaken identity citing the observations of Spigelman CJ in R v Marshall [2000] 113 A Crim R 190 at 192 that:

The prejudice often associated with identification is that, although mistaken, it is frequently given with great force and assurance by the person who made the identification.  These are matters about which witnesses frequently refuse to admit the possibility that they might have erred and, accordingly, give evidence in a particularly definitive form. 

1. Mr Hastings also submitted that in considering whether a verdict based upon identification evidence is unsafe and unsatisfactory, an appellate court must address the issue having regard to the special need for caution that arises in such cases:  R v McKellar [2000] NSW CCA 523 (11 December 2000).  We accept that submission.

1. Mr Hastings argued that the case against the appellant had been essentially dependent upon the evidence of Ms Fisher purporting to identify the appellant as the assailant and that there were substantial reasons to doubt the reliability of her evidence.  She had conceded having consumed a number of alcoholic drinks during the course of the evening.  She also acknowledged that the area in which the relevant incidents had occurred had been dark, and that the difficulty in seeing what was occurring had been aggravated rather than alleviated by flashing red and blue lights from the dance floor.  The club was crowded and noisy and the incident happened very quickly.  Furthermore, she had had no reason to suspect any violent confrontation would ensue and would presumably have been surprised and shocked by what occurred.

1. In addition, Mr Hastings relied heavily on the fact that the appellant was smaller than the man described by the complainant and the other male witnesses.  Ms Fisher’s description of the appellant’s hair was inconsistent with the description she had given to the police on the night in question.  There were other men of generally similar appearance present and at least one of them, namely the appellant’s father, not only fitted the description given by the complainant and other male witnesses, but may have had a motive to assault the complainant if he had formed the impression that he was speaking to his wife inappropriately. 

1. Mr Hastings argued that in these circumstances, the favourable impression which the jury apparently formed of Ms Fisher’s credibility provided too fragile a basis to support a finding that it was the appellant who assaulted the complainant.

1. In response, Mr Refshauge SC, the Director of Public Prosecutions, pointed out that these matters were fairly raised during the course of the trial and that the jury had had the opportunity of assessing Ms Fisher’s evidence in the light of all of the criticisms now advanced by the appellant.  There was no reason to suppose that the jury did not approach its task conscientiously or that it was misled in some way.  Any doubts that might otherwise be engendered by assessing the weight of the evidence from the transcript could be adequately answered by reference to the advantages that the jury had undoubtedly enjoyed, including the advantage of being able to see the appellant in court whilst the descriptions of the assailant were given by various witnesses.

1. Whilst we have carefully considered the arguments ably advanced on the appellant’s behalf, we have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged.  Ms Fisher claimed to have both seen and spoken to the appellant before, during and after the incident in question.  She claimed that on the first occasion she had given him a hug and that he had spoken to her in response to her greeting.  She claimed that he had also responded to her, albeit angrily, when she spoke to him in an apparent attempt to remonstrate with him after the first punch to the complainant.  Notwithstanding the various matters put on the appellant’s behalf, we are satisfied that it was open to the jury to accept her evidence as to her interaction with him on each of these occasions.

1. Whilst it does appear that the appellant is somewhat smaller than the description given by the complainant and the other male witnesses might have suggested, the incident occurred in an area where visibility was poor and the violence was sudden and unexpected.  In these circumstances, it would not be surprising if some of those present had been left with impressions that the man responsible for this unexpected violence had been somewhat larger than he actually was.  These circumstances might also account for the inconsistencies in the descriptions given by the complainant and the other male witnesses.  Most notably, the complainant said that he thought the assailant had been wearing a white shirt with blue stripes, his brother had thought it had been a pale blue shirt, and Mr McGlynn thought that it had been a mustard coloured shirt with writing on it.  It should also be remembered that the jury enjoyed the advantage of seeing and hearing these men, as well as Ms Fisher, give evidence and be cross-examined.

1. As previously mentioned, the ultimate question is 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.  Having due regard for the advantages which the jury enjoyed at the trial, we are satisfied that it was.

1. In our opinion no appealable error has been demonstrated.  Accordingly, the appeal must be dismissed.

   I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date: 17 November 2005

Counsel for the Appellant:  Mr P Hastings QC

Solicitor for the Appellant:  S & T Lawyers

Counsel for the Respondent:  Mr R Refshauge SC

Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of hearing:  1 November 2005

Date of judgment:  17 November 2005