Keith William Sutherland v R Nos. SCCRM 93/396 and SCCRM 93/397 Judgment No. 4346 Number of Pages 8 Criminal Law and Procedure

[1993] SASC 4346

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ (2), MILLHOUSE(3) and OLSSON(1) JJ

CWDS
Criminal law and procedure - appeal against conviction - common assault and threatening life - consideration of value of an "in dock identification" - recognition case - directions given as to identification evidence and approach to take when considering verdict adequate - appeal dismissed.
Appeal against sentence - sentence of 4 years with 18 month non parole period imposed head sentence manifestly excessive - appeal allowed - sentence of 2 years with 18 month non parole period substituted.
Alexander v The Queen (1979-80) 145 CLR 395; Jokic v Hayes (1990) 53 SASR
530; Grbic v Pitkethly (1992) 110 ALR 577; R v Britten (1988) 51 SASR 567 and Domican v The Queen (1991-92) 173 CLR 555, considered.

HRNG ADELAIDE, 9 December 1993 #DATE 22:12:1993
Counsel for appellant:     Mr R N H Mayne
Solicitors for appellant:    Sykes Bidstrup
Counsel for respondent:     Ms W J Abraham
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal dismissed.

JUDGE1 OLSSON J This is an appeal against the conviction of the appellant of the offences of common assault and threatening life and also against a single sentence imposed in respect of them, pursuant to section 18a of the CriminalLaw (Sentencing) Act. 2. The appellant complains that -
    (1) evidence of so called "dock identification" ought not
    to have been allowed.
    (2) inadequate directions were given to the jury concerning
    the dangers of identification and allied aspects.
    (3) an erroneous direction was given as to the approach
    which ought to be made to an assessment of the evidence of
    the appellant - as related to onus of proof.
    (4) the sentence imposed was manifestly excessive and showed
    undue disparity, having regard to a sentence imposed on an
    offender separately charged with offences in the same
indictment as that related to the appellant. 3. The appellant was charged in an indictment, which also presented a woman named Jacqueline Smith for trial, in connection with an incident at Smithfield Plains on 30 October 1992. The appellant faced one count of assault occasioning actual bodily harm and one count of threatening life. Jacqueline Smith was charged with one count of common assault and one count of threatening to endanger life. 4. In the case of the appellant the offences were alleged to have been committed in relation to a man named Mark Flitcroft. The victim of the offences charged against Jacqueline Smith was said to have been a woman named Louise Adams. In the event, Jacqueline Smith pleaded guilty to common assault, for which she received a suspended sentence of imprisonment for one month. The Crown entered a nolle prosequi as to the second count against her. 5. The appellant pleaded not guilty to both counts and was tried before a jury. The jury found him not guilty of assault occasioning actual bodily harm, but guilty of common assault and guilty of threatening life. 6. The evidence led at trial disclosed that Flitcroft and Adams both resided at a house situated at Smithfield Plains. It was said that Flitcroft boarded there. It appeared that Adams had worked at what was euphemistically called an escort agency, known as Dreamtime Promotions Escort Agency, but had left some weeks previously. Jacqueline Smith had also worked at the agency when she was there. 7. Flitcroft said that, at about 1.00 a.m. on 30 October 1992, he was awakened by a knock at the door. He got up and opened it, to find Jacqueline Smith there. She was known to him. 8. Three other persons, two males and one female, then appeared around the corner, at the front of the house. Flitcroft identified the appellant, then in the dock, as one of those persons. He told the jury that he knew him as Keith (which was in fact the appellant's name) and had met him a couple of nights previously when he had also met Jacqueline Smith. On that occasion the appellant and Smith had called at the Smithfield Plains house and had been present for two to three hours. It does not appear that Flitcroft knew the other two persons in the group. Jacqueline Smith seemed drunk. She told Flitcroft that she wished to talk to Lou, which Flitcroft took to mean Adams. When Flitcroft protested that it was too late, Jacqueline Smith insisted. She and the others with her edged their way into the house. Flitcroft backed off towards the kitchen, as the two men came towards him. He was clearly apprehensive at the turn of events. 9. Flitcroft deposed that, whilst he was in the kitchen, he heard female voices arguing in the lounge room. He said that Jacqueline Smith apparently wanted Adams outside to fight. 10. He told the jury that, without prior warning, the appellant at one stage struck him on the left side of the head, as a result of which he fell to the floor. Then someone kicked him a few times, although he did not see who was responsible. 11. Flitcroft narrated how he later got up off the floor and sat at the kitchen table. After a time he got up to go to the lounge and the appellant said "Call a copper and I'll blow you away". Flitcroft then remained where he was and did not persist. The group eventually left and took the house telephone with them. According to Flitcroft the appellant said "It'll cost you a hundred dollars to get it back". He was told that he could get it back the next day at a nominated hotel car park. 12. Flitcroft testified that he did go to the car park in question the next morning. After a time the appellant appeared and exchanged the telephone for $80 in cash - being all the money that Flitcroft had. 13. Flitcroft was closely cross-examined as to the identity of the man Keith, who came to the house that night. Both before the jury and on appeal, counsel for the appellant sought to contend that there were important differences between the appellant's actual physical characteristics and the description given by Flitcroft of his assailant; and that Flitcroft had failed to observe some noticeable features obviously apparent. 14. I agree with Ms Abraham of counsel for the Director of Public Prosecutions that the description given by Flitcroft did substantially match the appellant and that what he did not see that night, in the form of tattoos on his arms, was, in any event, seen by Adams. A failure of Flitcroft to notice tattoos, for example, may well have been explicable by reason of his apprehensiveness at the assault on him at the time. 15. In this regard it must be pointed out that this was no fleeting incident. The group of persons was present in the house for some time (during which Flitcroft had ample reason and opportunity to observe the appellant's facial features over the space of about one and a half hours), he had met him a few days earlier for a substantial period of time and he saw him again the next day. Moreover, it must be said that, on observing the appellant in court during the appeal, he has facial characteristics which are relatively unique and would scarcely be difficult to recall. Although Flitcroft thought that his assailant was bald, that could have been explained either by his receding forehead and extremely short hair cut at the time, or the evidence given by Adams as to that aspect. 16. Adams gave evidence that she was aroused by loud voices at about 1.00 am. She got up and went into the lounge in time to see Flitcroft, the appellant, Jacqueline Smith and two other persons known to her as Rex and Jodie. 17. She knew Rex well as a driver at the Escort Agency. Jodie had also been working at the Agency. She identified the appellant in the dock as a person known to her as Keith, whom she had met on two or three occasions prior to the night in question. She said his hair had been shaved on that night. 18. Adams saw Flitcroft moved towards the kitchen and into it. The females were swigging bourbon from a bottle shared between them. They complained that their boss at the Agency had been hassling them, because they had not been showing up for work and he thought they had been working for Adams. Their manner and tone was aggressive. At one stage they invited Adams outside for a fight and she declined. 19. Adams said that, at one stage, she heard a crash in the kitchen and Flitcroft call out "Don't. No don't". She went to the kitchen door and saw Flitcroft on the floor. Both the appellant and Rex were kicking him. She was then pushed back into the lounge. 20. Adams deposed that the women then slapped her around. After a time the group left. Adams verified that the appellant took the telephone and said that, if she wanted it back, she would have to pay him $100 the following day. 21. Counsel for the appellant also closely cross-examined Adams on the question of identity, but she was adamant that the appellant was the man Keith who came to the house that night. She gave an accurate physical description of him as seen that night, including the distinctive tattoos on his arms. 22. It only remains to be said that no line up or photograph folder was ever arranged by the police in relation to the evidence of either Flitcroft or Adams. 23. When spoken to by police the appellant exercised his right not to answer questions. The appellant gave evidence on oath. He denied ever having met Flitcroft or Adams, or being present at the Smithfield Plains House on the night in question. He asserted that he had been present at the house of a friend, Jeffrey Brown, at Mansfield Park at the time of the alleged offences. He conceded that he knew Jacqueline Smith and that she worked for an escort agency. He initially claimed that he did not know the name of that agency, but, in cross examination, later conceded that he did. 24. The defence called Brown to establish the appellant's alibi. He said that he and the appellant were drinking together that night until about 2.00 or 2.30 am, when he, Brown, went to bed. Brown claimed to have been what he described as "dead drunk" by that time. The two men were, he said, into their third carton of beer. 25. It goes without saying that the jury verdicts indicate that Brown was rejected as a witness of truth. 26. Against that evidentiary background, I now turn to the grounds of appeal relied upon by the appellant. 27. It should at once be said that the assertion that the evidence of "in dock identification" should have been disallowed at trial must unequivocally be rejected. Counsel was quite unable to invite the attention of this Court to any authority for such a proposition. 28. True it is that much has been said concerning the general lack of value and validity of such an exercise (Alexander v The Queen (1979-80) 145 CLR 395 at 399, 426-7, Jokic v Hayes (1990) 53 SASR 530 at 535-6). As Mullighan J pointed out in Jokic v Hayes, having cited the oft quoted excerpts from Alexander v The Queen, "That is not to say that an in-court identification is not admissible or should not be sought ... It is merely that, in itself, it is of little value". 29. It must be acknowledged that there are dicta in Alexander v The Queen and also Grbic v Pitkethly (1992) 110 ALR 577 which speak, in traditional terms, of the rejection of evidence the prejudice of which is far greater than its probative worth, but it is difficult, if not impossible, to perceive how this could arise in relation to an in-dock identification situation. As King CJ said in R v Britten (1988) 51 SASR 567 at 572:-
    "I might add at this point that it appears that counsel for
    the prosecution did not ask Mrs Sauer to identify the appellant
    in court. I think that it is apparent from the course of her
    evidence that she implicitly identified the man in the dock as
    the man of whom she was speaking, but it is unfortunate that she
    was not asked to say so explicitly. It is not to be thought
    that because courts have stated that dock identification is of
    little value where the accused is not previously known to the
    witness, the witness should therefore not be asked whether he
    can see the person concerned in court, This should be done in
    every case depending upon identification notwithstanding that
    the evidence principally relied upon by the prosecution is the
out of court identification." 30. As was pointed out in the course of this appeal it would be little short of absurd if a witness asked to identify an offender was not asked to confirm to the jury that the person in the dock was, indeed, the offender. 31. Be that as it may, there is a further, more important, riposte to the appellant's contention on this point. 32. The short answer to it is that this was not an ab initio dock identification of the nature under discussion in Alexander v The Queen and the published authorities stemming from it. It was, in truth, a recognition case. Both identification witnesses said that they had met the appellant before (in the case of Adams, on several occasions), there had been ample opportunity to observe him on the night in question over a substantial period of time, Flitcroft in fact saw him again the next day to retrieve the telephone and, as I have pointed out, the appellant has relatively memorable facial features. In such circumstances the identification of him as the offender took on a very different hue. 33. There is simply no substance in this ground of appeal. Nor was there anything sinister in the police not attempting to arrange the traditional "line-up". They would have been pardoned, at the time of their investigations, for concluding that identification was not a significant issue - that it was merely the recognition of a group of persons known to one or other of the witnesses. Certainly the appellant did not ever assert to them that it was a case of mistaken identity, thereby placing the police on notice that an identification issue existed. 34. Another ground of appeal relied upon by the appellant was that the learned trial judge did not give an adequate direction on the issue of identification to the jury - that, although he gave them a warning in general terms, this did not satisfy the requirement articulated in Domican v The Queen (1991-92) 173 CLR 555 at 561-2 in these terms:-
    "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." 35. In the course of his summing up the learned trial judge gave a very full warning, in general terms, as to the dangers of identification evidence - perhaps in rather more extensive terms than may have been necessary. He carefully explained the manner in which the jury ought to go about its assessment of the evidence bearing on that issue. They could have been under no misapprehension as to the dangers involved and the need for approaching the evidence in a logical fashion and with care. 36. It is true that, at that point, the learned trial judge made but limited reference to the evidentiary issues in the particular case. However, what must be borne in mind is that, later in his summing up, he included a quite detailed reference to relevant aspects of the evidence and the questions which the jury ought to pose to itself with regard to it. 37. Although Mr Mayne, of counsel for the appellant, has criticized the summing up for not plumbing every relevant evidentiary issue on this topic to the depths, I do not consider that this ground of appeal has been made out. Reading the summing up as a totality - as one must - I fail to see how it can fairly be said that the jury were not given ample guidance on this aspect of the case. 38. Moreover it must be said that, as emerges from my resume of the evidence, the Crown case on identification was a particularly strong one. I am not left with any feeling of unease at all with regard to this aspect of the case. 39. The ground of appeal which complains of that portion of the summing up which suggested to the jury that it would be appropriate first to consider whether they believed the accused's evidence may simply be disposed of. 40. In the first place the segment sought to be impugned has been lifted out of its context and an attempt has been made to accord it an emphasis and construction which it does not bear. What the learned trial judge, in effect, said to the jury was this:-
    . if they positively believed the evidence of the accused
    that was an end of the matter
    . if they at least considered that what he said remained a
    reasonable possibility at the conclusion of the case, that
    also was an end of the matter
    . they could convict the accused if:- "but only if, the
    Crown has proved each of the two charges, and every element
    of those charges, beyond reasonable doubt. It follows,
    therefore, that you may convict him if, but only if, you
    come to the conclusion that, on the evidence as presented,
    his explanation and his defence is wrong or inherently
    implausible, and that what he has told you is totally
    unacceptable, even and if only as a reasonable possibility". 41. In my view the overall directions in that regard were unexceptional. 42. Nor do I accept that the learned trial judge was elsewhere "unduly dismissive" of the defence case. Mr Mayne has, in my view, attempted to place on an expression used by the learned trial judge a construction which it does not bear in its context. 43. It was, perhaps, unfortunate that the learned trial judge did tell the jury that he had formed a particular view of the case, but was not going to tell them what it was. That would, perhaps, have better been left unsaid. However, what he was setting out to do, at that point in his summing up, was simply to emphasize that it was for the jury to make up its mind as to the facts; and that his personal view was irrelevant. No proper ground of complaint arises on this contention. 44. In my opinion the appeal as to conviction raises no matters of substance and ought to be dismissed. 45. The appeal as to sentence is another matter. It should first be said that, insofar as that appeal relies on the concept of disparity, it is completely ill founded. No disparity issue can possible arise on the facts. The offence of common assault for which Jacqueline Smith was convicted was a quite different assault, involving totally different parties, by way of contrast with that now under consideration. Any comparison between the two sentencing outcomes is quite meaningless. 46. However, bearing in mind that the jury verdict was guilty of common assault, rather than of assault occasioning actual bodily harm as charged, the head sentence of imprisonment for four years is, in my view, unduly high. 47. It must, of course, be acknowledged that this was a nasty episode. The appellant and his companions forced their way into the house occupied by Adams and Flitcroft, uninvited and in the early hours of the morning. The only reasonable inference was that Jacqueline Smith came to put pressure on Adams concerning her activities and cessation of work at the Escort Agency and that the accused and his male companion came as "stand over" men or enforcers. The assault on Flitcroft was both gratuitous and cowardly. The only redeeming feature is that he appears to have suffered no appreciable injury or long term harm. The threat made was obviously intended to frighten him into refraining from seeking police assistance, and is to be construed in the light of the subsequent removal of the telephone. 48. Clearly these offences invited a substantial custodial sentence, particularly when it is borne in mind that the appellant had a long and unsavoury antecedent record, including a number of prior offences involving violence. Little by way of mitigating circumstances were identified. No discounts for plea or contrition were applicable and the appellant was not shown to be a good candidate for rehabilitation. Considerations of personal and general deterrence were manifestly paramount in this case. 49. The learned sentencing judge was correct in taking a serious view of the offences. However it seems to me that a head sentence of four years is manifestly excessive, given the jury verdict and the consequence of the assault. 50. I would allow the appeal as to sentence, set aside the sentence imposed and substitute for it a sentence of imprisonment for two years with a non parole period of 18 months, both to run from 30 September 1993.

JUDGE2 KING CJ In my opinion the appeal against conviction should be dismissed. I also agree that the appeal against sentence should be allowed, and the sentence reduced to imprisonment for two years with a non parole period of 18 months. 2. I agree with the reasons of Olsson J.

JUDGE3 MILLHOUSE J I agree.