Mahantheran v The State of Western Australia
[2014] WASCA 232
•12/12/14
MAHANTHERAN -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 232
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 232 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:9/2014 | 3 JULY 2014 | |
| Coram: | MARTIN CJ McLURE P HALL J | 12/12/14 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal in respect of grounds 2, 3 and 3A refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JENITTAN MAHANTHERAN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Evidence Warnings Identification evidence and recognition evidence Whether trial judge failed to give an adequate warning to the jury Where appellant well-known to witnesses and circumstances leave little scope for mistake Criminal law Evidence Warnings Dock identification Where dock identification by witnesses does not form any significaint part of prosecution case Where appellant well-known to witnesses Criminal law Evidence Hearsay Prior inconsistent statements Procedure required by Evidence Act 1906 (WA) Rule in Browne v Dunn |
Legislation: | Criminal Code (WA), s 8 Evidence Act 1906 (WA), s 21 |
Case References: | Browne v Dunn (1893) 6 R 67 (HL) Carr v The Queen [2000] TASSC 183 Domican v The Queen (1992) 173 CLR 555 Italiano v The State of Western Australia [2012] WASCA 260 Mills v The State of Western Australia [2008] WASCA 219 NCH v The State of Western Australia [2013] WASCA 29 Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 O'Meara v The State of Western Australia [2013] WASCA 228 R v Gorham (1997) 68 SASR 505 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MAHANTHERAN -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 232 CORAM : MARTIN CJ
- McLURE P
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 765 of 2012
Catchwords:
Criminal law - Evidence - Warnings - Identification evidence and recognition evidence - Whether trial judge failed to give an adequate warning to the jury - Where appellant well-known to witnesses and circumstances leave little scope for mistake
Criminal law - Evidence - Warnings - Dock identification - Where dock identification by witnesses does not form any significaint part of prosecution case - Where appellant well-known to witnesses
Criminal law - Evidence - Hearsay - Prior inconsistent statements - Procedure required by Evidence Act 1906 (WA) - Rule in Browne v Dunn
Legislation:
Criminal Code (WA), s 8
Evidence Act 1906 (WA), s 21
Result:
Leave to appeal in respect of grounds 2, 3 and 3A refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Watters
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Michael J Joubert
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Browne v Dunn (1893) 6 R 67 (HL)
Carr v The Queen [2000] TASSC 183
Domican v The Queen (1992) 173 CLR 555
Italiano v The State of Western Australia [2012] WASCA 260
Mills v The State of Western Australia [2008] WASCA 219
NCH v The State of Western Australia [2013] WASCA 29
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
O'Meara v The State of Western Australia [2013] WASCA 228
R v Gorham (1997) 68 SASR 505
- MARTIN CJ:
Summary
1 The appellant, Mr Jenittan Mahantheran, appeals from his conviction after trial by jury on one count of unlawfully wounding Mr Nanthatheepan Sannthurai and another count of unlawfully doing grievous bodily harm to Mr Mayuran Theiventhram. There are a number of grounds of appeal. It is asserted that the trial judge failed to adequately direct the jury in relation to the evidence given by each complainant with respect to their recognition of Mr Mahantheran during the course of the incident giving rise to the charges, and with respect to their evidence identifying Mr Mahantheran in the dock during the trial. It is also asserted that the trial judge erred by directing the jury that they could not make any use of part of a statement made by the doctor who treated Mr Theiventhram following the incident, the trial judge having ruled that portion of the statement to be inadmissible. It is further asserted that the trial judge erred by failing to discharge the jury after making that ruling.
2 For the reasons which follow, each ground of appeal lacks substance and must be dismissed, as must the appeal.
The prosecution case
3 Mr Mahantheran was tried on an indictment which alleged that he and three named co-accused were each guilty of the two counts to which I have referred. Both offences were alleged to have occurred during the afternoon of 19 August 2011 at a house in Tudor Avenue, Shelley, a suburb of Perth. At the time of the alleged offences, the house was occupied by the complainants, Mr Sannthurai and Mr Theiventhram, and others, those others not being present at the time of the alleged offences.
4 The prosecution case was that Mr Theiventhram received a telephone call after returning home from work on the afternoon of 19 August 2011. Mr Theiventhram recognised the caller as Mr Periyannan, one of the co-accused. Mr Periyannan said that he was going to come and hit Mr Theiventhram.1
5 The prosecution alleged that all four accused travelled together to the house in Tudor Avenue with the common intention of causing serious physical harm to Mr Theiventhram. The prosecution asserted that when they discovered that Mr Sannthurai was the only other person present at the house with Mr Theiventhram, they formed the common intention of also causing serious physical harm to Mr Sannthurai.
6 The prosecution alleged that when the four men arrived at the house, Mr Mahantheran and another approached the complainants who were in the carport area near the front of the house. The prosecution alleged that Mr Mahantheran asked for a cigarette which was given to him, and then went inside with another co-accused, ostensibly to use the toilet. While they were in the house, the two other co-accused approached the complainants. One of those men produced a knife from his trousers, which caused Mr Theiventhram to telephone a friend. At this point, Mr Mahantheran came out of the house and struck Mr Sannthurai on the head with a metal bar. The prosecution case was to the effect that the metal bar had been obtained by Mr Mahantheran inside the house and formed part of the equipment used in a home gym. On the prosecution case, Mr Sannthurai collapsed to the ground after being struck with the bar and was then kicked by a number of the accused men. The prosecution alleged that Mr Mahantheran then struck Mr Theiventhram on the head and the leg with the metal bar, causing him to lose consciousness briefly. The prosecution also relied upon evidence to the effect that Mr Mahantheran's thumb print was found on a metal bar located not far from the scene of the incident and which corresponded to the description given by each complainant of the bar which was used in the course of the attack.
7 The prosecution case against each of the four co-accused relied on s 8 of the Criminal Code (WA). That section provides:
Offence committed in prosecution of common purpose
(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
(2) A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person -
(a) withdrew from the prosecution of the unlawful purpose; and
(b) by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and
(c) having so withdrawn, took all reasonable steps to prevent the commission of the offence.
The proceedings at trial
9 It is only necessary to refer to those parts of the proceedings at trial which are relevant to the grounds of appeal, being:
(a) the evidence given by each complainant with respect to their knowledge and recognition of Mr Mahantheran and their identification of him in the dock;
(b) the general approach taken by counsel appearing on behalf of Mr Mahantheran in relation to that evidence;
(c) the directions given by the trial judge to the jury with respect to that evidence;
(d) the statement of the medical practitioner who treated Mr Theiventhram which was read into evidence by consent;
(e) the use that was made of that statement by counsel representing Mr Mahantheran in the course of his closing address; and
(f) the directions given by the trial judge to the jury with respect to the contentious portion of the doctor's statement.
10 The first complainant called to give evidence was Mr Theiventhram. During his evidence-in-chief he stated that he was standing in the carport at the front of the house when two men came walking towards him and asked for cigarettes. He knew the name of one of the men - it was Jenittan, although he did not know the man's last name. He stated that Jenittan had been to the house in Tudor Avenue before but could not remember the year in which he came. He said that he had been to the house 10 or 15 times and that he had engaged in conversation with him.2 He stated that Jenittan had been inside the house 10 or 15 times. The prosecutor then asked Mr Theiventhram if he could see Jenittan in the court, after which Mr Theiventhram pointed to Mr Mahantheran in the dock.3 According to Mr Theiventhram, Jenittan asked if he could go to the toilet and Mr Theiventhram pointed out where it was.4
11 Counsel representing Mr Mahantheran cross-examined Mr Theiventhram with respect to the extent of his prior knowledge of Mr Mahantheran. The purpose of the cross-examination was to establish that Mr Theiventhram had greater prior knowledge of Mr Mahantheran than he had admitted in the course of his evidence-in-chief. In that context counsel put to Mr Theiventhram that in fact Mr Mahantheran had lived at the house with him and the other complainant. Mr Theiventhram agreed,5 although he was unable to say how long Mr Mahantheran had lived at the house. He estimated that it may have been 'closer to one month'.6 Counsel appearing on behalf of Mr Mahantheran then put to Mr Theiventhram that in fact Mr Mahantheran had lived at the house for about six months. Mr Theiventhram stated that he did not know how long Mr Mahantheran had lived there. Counsel put to Mr Theiventhram that Mr Mahantheran had used the gym in the house while he was living there. Again, Mr Theiventhram answered that he did not know whether Mr Mahantheran had used the gym or not.
12 Counsel appearing on behalf of Mr Mahantheran put to Mr Theiventhram that Mr Mahantheran had moved out of the house about a month before the incident in question. Again, the witness responded to the effect that he did not know how long it was before the incident that Mr Mahantheran had moved out. Counsel then put to the witness that Mr Mahantheran had used the gym at the house five days prior to the incident. The witness denied that proposition. Counsel again put to Mr Theiventhram that Mr Mahantheran had lived at the house for about six months, and again received the answer that Mr Theiventhram did not know how long Mr Mahantheran had lived at the house.7
13 Counsel put to Mr Theiventhram that he was saying that it was Mr Mahantheran who had hit him with the bar for the purpose of getting him into trouble. It was also put to Mr Theiventhram that Mr Mahantheran was not at the house on the day in question. However, no questions were asked with respect to Mr Theiventhram's capacity to recognise Mr Mahantheran, or with respect to his ability to see Mr Mahantheran during the course of the incident.
14 Mr Sannthurai gave evidence to the effect that Mr Mahantheran had lived at the house in Tudor Street, Shelley for three or four months, while Mr Sannthurai was also living there.8 However, Mr Mahantheran was no longer living at the house at the time of the incident. Mr Sannthurai's evidence was to the effect that he saw Mr Mahantheran and another leave a car and walk towards him and Mr Theiventhram. They were standing in the carport towards the front of the house.9 He stated that Mr Mahantheran asked for a cigarette. At that point he was asked if he could see Mr Mahantheran in court, to which he responded affirmatively. He then pointed to one of the accused in the dock. Counsel for Mr Mahantheran then said:
He's in the middle. He's the third from either end, sir, and I - I too will be willing to accept that he would know who Jenittan was. They lived together. I don't really know what weight we give any of this, but anyway.10
15 Consistently with those observations, during the course of cross-examination, counsel for Mr Mahantheran asked no questions of Mr Sannthurai in relation to his knowledge of Mr Mahantheran or as to his capacity to see and recognise him on the day of the incident. The cross-examination focused on inconsistencies between the evidence given by Mr Sannthurai at trial and his prior statement to police. In the course of cross-examination it was put to Mr Sannthurai by counsel for Mr Mahantheran that Mr Mahantheran was not present at the house on the day in question. That proposition was denied by Mr Sannthurai.11
16 At no point during cross-examination did counsel for Mr Mahantheran challenge the evidence given by each of the complainants to the effect that they knew Mr Mahantheran and were able to recognise him as one of the persons present during the incident in which they were attacked. No questions were asked of either witness with respect to their line of vision or the lighting, or their capacity to see Mr Mahantheran, nor was it put to either witness that they may have confused Mr Mahantheran with some other person. Rather, the line taken was to the effect that Mr Mahantheran was not present at all that day, and that each complainant's evidence against Mr Mahantheran was motivated by malice.
17 Following the incident, Mr Theiventhram was taken to Royal Perth Hospital for treatment. By agreement between the parties, two statements provided by Dr Koefman, the medical practitioner who treated Mr Theiventhram at the time of his admission, were read into evidence. This took place after each complainant had completed their evidence. The first statement read was as follows:
I, Alex Koefman, a qualified medical practitioner currently employed by Royal Perth Hospital, examined Mayuran Theiventhram of 31 Cameron Street, Langford, WA 6147, date of birth: 23 July 1985, on 9 August 2011. He was allegedly assaulted with a machete. On examination there was an obvious open depressed skull fracture. On examination he was alert. The injuries were of such a nature as to interfere with the health and comfort of this patient.
The injuries were of such a nature as to endanger or be likely to endanger life, without medical treatment he may have sustained a serious infection. The injuries were of such a nature as to potentially cause significant further injury, given that the structural integrity of his skull had been compromised, and, therefore, he had no protection to the underlying brain.12
18 The second statement of Dr Koefman, which is also read into evidence, simply corrected the date of the examination from 9 August to 19 August.
19 At the time the statements were read into evidence, no point or specific attention was drawn to the reference to Mr Theiventhram having been 'allegedly assaulted with a machete' by either counsel.
20 In the course of his closing address, counsel for Mr Mahantheran took essentially the same line as had been taken in cross-examination of the complainants. The case put to the jury on behalf of Mr Mahantheran was to the effect that the complainants were trying to get the accused into trouble and Mr Mahantheran had been implicated with the other accused because he had moved into a house which they had occupied. Counsel drew attention to the fact that Mr Mahantheran had lived at the house in Tudor Avenue, Shelley for a number of months and suggested that this explained why his palm print was found on the steel bar surmised to have been taken from the gym in the house. He drew attention to inconsistencies between the evidence of the complainants at trial and their prior statements and, in that context, suggested that it was improbable that Mr Mahantheran would have inquired where the toilet was before entering the house, given that he had previously lived in the house. He put no submissions to the jury with respect to the capacity of either complainant to see and recognise Mr Mahantheran, with respect to their prior knowledge of him, or with respect to the possibility that they may have mistaken someone else for him.
21 During his closing address, counsel for Mr Mahantheran referred to that part of Dr Koefman's statement which refers to Mr Theiventhram having been assaulted with a machete. He contrasted that assertion with the evidence given by the complainants to the effect that they were assaulted with an iron bar.13 The obvious purpose of the reference was to suggest that the complainants had made inconsistent statements as to the weapon that was used in the attack.
22 After defence counsel had completed their closing addresses, there was discussion between bench and bar with respect to the terms of the directions to be given to the jury by the trial judge.14 One of the topics discussed related to the evidence with respect to the weapons used by each accused. In that context counsel for Mr Mahantheran referred again to the portion of Dr Koefman's statement which refers to Mr Theiventhram having been assaulted by a machete. The trial judge expressed the view that the reading of that part of the statement took him by surprise because that was the only mention of a machete in the course of the entire trial. The trial judge expressed the view that the relevant portion of Dr Koefman's statement was 'complete and utter hearsay' and that he was inclined to direct the jury to that effect.15
23 Counsel for Mr Mahantheran responded by asserting that if he had been aware that the trial judge was likely to direct the jury that way, he would have asked for the doctor to be called so that he could be asked who had told him about the machete. In that context the trial judge observed that there was nothing in the doctor's statement to suggest who had given him any information about the machete, and that it could have been the police and not necessarily the patient, Mr Theiventhram. Counsel for Mr Mahantheran asserted that the relevant portion of the doctor's statement was not inadmissible hearsay but was admissible as a prior inconsistent statement of Mr Theiventhram. In response to that contention the trial judge again pointed out that it could not be inferred from the doctor's statement that Mr Theiventhram was the one who told him about the use of a machete. The trial judge also pointed out that it was not put to Mr Theiventhram that he had said anything to anybody about the use of a machete. In the course of argument, counsel for Mr Mahantheran again asserted that if the trial judge directed the jury that the portion of Dr Koefman's statement relating to the machete was inadmissible and could not be used by them, he would be deprived of the opportunity to have required the doctor to be called so that he could ask the doctor who had told him about the use of a machete. Defence counsel submitted that the trial judge should give no direction on the topic.
24 After considering the issue overnight, the prosecutor advised the trial judge that it was a mistake on his part to have read into evidence the part of Dr Koefman's statement which contains the hearsay reference to assault with a machete. However, he submitted that reference to that inadmissible evidence would only serve to highlight it to the jury, and that it would be preferable if the trial judge made no reference to it in his directions.
25 During the course of his directions to the jury, the trial judge gave the following direction:
[E]xperience in the courts has shown that from time to time innocent people have been convicted on the basis of honestly mistaken evidence about recognition. Mistakes in recognition are sometimes made. You have to have regard, of course, to the circumstances of the recognition, both in terms of a person's ability to see what was happening at a particular time and in terms of the circumstances said to give rise to their familiarity with the person who they claim to recognise.
In terms of the former, what occurred at 25 Tudor Avenue did so, it would seem, in broad daylight. Each of the complainants, it would seem, had an opportunity to see those who came - had an opportunity to see those who came to the house on that afternoon. Please, however, scrutinise carefully both their voracity [sic] and the foundations of their knowledge of the attackers and their recognition of them. When it comes to the fields of identification and recognition, particularly in difficult or unusual circumstances, it is the case that witnesses can be quite emphatic in their evidence and yet be wrong.
It's for the State to satisfy you, if it can, that the persons who unlawfully did grievous bodily harm to Mayuran Theiventhram and who unlawfully wounded Nanthatheepan Sannthurai were the four men charged. Please be aware of the weakness of dock identifications. It's too easy to point to a person sitting in the dock and say, 'That's the man.' What you must scrutinise carefully is the credibility of each complainant and the basis of their respective recognitions of their attackers. Each gave some background to it. 'I met such-and-such a person at Christmas Island,' or 'I met somebody else in Brisbane,' or 'We lived in the same house together,' or 'I chatted with this person 10 or 15 times.' There is a fair bit of evidence from each of the two complainants about their knowledge of the people who attacked them. It's a matter of what you make of that evidence and, of course, their credibility as to these matters.16
26 The trial judge returned briefly to this topic later in his address, when he observed:
Now, strictly speaking, I can't give you directions about matters of fact, because it's your province and your province alone. What I can do though, and what judges do on a reasonably regular basis, is caution juries where there are inherently problems. And judges regularly caution juries to be careful and to scrutinise areas of evidence where there are well-known pitfalls. Two that spring to mind are evidence of identification. And evidence of recognition. And judges regularly say to juries, 'Just be careful in this area because it's known that from time to time things can go badly wrong'. That in the case of recognition or identification evidence, people can be emphatic in their evidence that they recognise somebody or that they identified somebody, only to find out later that they were wrong. So judges do caution juries to be wary about certain areas of evidence.17
27 On the subject of the dock identifications the trial judge directed the jury in the following terms:
In this case, each of the complainants gave evidence that it was the four accused [men] who attacked them on the afternoon of 19 August. Each gave some explanation of having known the men and as to how they came to know them, each of them made what are known as dock identifications. You might recall that Mr Hunter said, 'Can you see that person in this courtroom?' And the person said, 'Yes, he's over there,' pointing to a particular individual in the dock. Such identifications are made to complete the picture so far as the prosecutor is concerned. You should, however, place little weight on dock identifications. The evidence in this case which connects each of the accused to the crime or crimes is the evidence of each complainant to the effect that they recognised each of the men when they came to their home and their evidence as to how long or how it was they came to know them and how well they knew them.18
28 The trial judge gave the following directions to the jury with respect to that portion of Dr Koefman's statement which referred to the use of a machete:
Both [complainants] say that Jenittan Mahantheran took to them with the pole or the bar but their respective accounts are different. And then [defence counsel] said, Dr Kaufman [sic] says that he was allegedly assaulted with a machete. Now, that evidence is hearsay. Strictly speaking, what the doctor was called to give evidence about was within his expertise. That is the injuries suffered by the person that he treated and as to whether it amounted to grievous bodily harm. It appears that he included the reference to the machete in his statement. We have no idea where that came from. He wasn't there on the afternoon of 19 August, so presumably somebody told him. Who told him? We don't know. Was there an interpreter? We don't know. Is it admissible evidence? Strictly speaking, it's not and I direct you to ignore it. There's no evidence anywhere else in this trial as to the use of a machete. There's only evidence of a knife that bears a resemblance to a traditional Sri Lankan knife and the evidence as to the use of that particular implement is a matter for you but it would appear to be quite limited.19
29 After the trial judge had completed his directions to the jury and the jury had retired to deliberate, counsel for Mr Mahantheran again submitted that the contentious portion of Dr Koefman's statement was not hearsay, and that the trial judge was wrong to direct the jury in those terms. He also asserted that if he had known that the trial judge was going to direct the jury in those terms he would have applied to abort the trial in relation to Mr Mahantheran, or for leave to re-open the evidence so that the doctor could be called to give evidence. After hearing those submissions, the trial judge declined to redirect the jury. He also rejected an application to discharge the jury.
The grounds of appeal
Ground 1
30 Ground 1 is in the following terms:
1. There was a miscarriage of justice when the learned trial Judge failed to adequately direct the jury concerning evidence as to recognition;
Particulars
1.1 His Honour failed to adequately isolate and identify for the jury, as he was required to, the weaknesses in the evidence of Nanthatheepan Sannthurai (count one) relating to evidence of his recognition of the appellant as the offender;
1.2 His Honour failed to adequately isolate and identify for the jury, as he was required to, the weaknesses in the evidence of Mayuran Theiventhram (count two) relating to evidence of his recognition of the appellant as the offender.
31 In support of this ground, written submissions filed on behalf of Mr Mahantheran assert that 'the crucial issue at trial was identity'. That is not correct. There was no issue at trial with respect to the capacity of either complainant to recognise Mr Mahantheran, it being accepted that he had shared the house in question with each complainant for a number of months. Nor was there any issue at trial with respect to the capacity of either complainant to see or identify Mr Mahantheran on the day in question, nor was it suggested to either complainant that they may have confused someone else with Mr Mahantheran. Rather, the proposition put to each complainant was that Mr Mahantheran was not present, and that they had falsely stated that he was present out of malice.
32 This erroneous characterisation of the issues at trial provides the basis for the further assertion made in support of ground 1, to the effect that the circumstances of the case required the judge to warn the jury in accordance with the principles enunciated by the High Court in Domican v The Queen.20 However, this is plainly not a case in which such a warning was required.
33 The applicable legal principles are well established. They were conveniently and succinctly summarised by McLure JA21 in Mills v The State of Western Australia22 as follows:
The distinction between 'recognition' and 'identification' evidence has long been recognised: Davies v The King (1937) 57 CLR 170; Arthurs v Attorney-General for Northern Ireland (1971) 55 Cr App Rep 161; and Kelly v The Queen (2002) 129 A Crim R 363 which was approved in Al-Hashimi v The Queen (2004) 181 FLR 383. Recognition cases involve the recognition of a person previously known to the witness and identification cases involve the subsequent identification of a person by a witness who first saw that person at or near the crime scene.
A Domican warning is required where evidence as to identification represents any significant part of the proof of guilt of an offence. In broad terms, that involves warning the jury that an honest and convincing witness may be mistaken when giving identification evidence and the judge putting the authority of his or her office behind any matter of significance that may be regarded as undermining the identification evidence. The trial judge did not direct the jury in those terms in this case.
Whether or not a full or partial Domican warning is required where evidence as to recognition represents any significant part of the proof of guilt depends on the circumstances of the case: Davies v The King (181). Those circumstances include the degree of familiarity of the witness with the suspect, the circumstances in which the suspect had previously been seen by the witness, and the circumstances in which the suspect was alleged to have been seen by the witness at or about the time of the crime: Carr v The Queen (2000) 117 A Crim R 272 [61] (Blow J), followed by this court in Smith v The State of Western Australia [2005] WASCA 19, [68]. Thus, it is necessary to pay detailed attention to the evidence and the issues in dispute at trial.23
34 It should not be thought that there is a rigid distinction of principle between cases involving recognition on the one hand, and cases involving identification on the other. In Carr v The Queen,24 Blow J25 observed, in a passage adopted by Buss JA in Mills:26
As Boardman and Turnbull illustrate, 'recognition' cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times of their alleged crimes. It would therefore be illogical to hold that a warning as to the dangers of mistaken identification of the sort discussed in Domican need never be given in a recognition case. Obviously, such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend on all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime.27
35 The observation to the effect that such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake apply directly to the circumstances of this case. There was no doubt that Mr Mahantheran was well known to each complainant, and had shared a house with both of them for some time. The incident occurred in broad daylight and each complainant had ample opportunity to observe Mr Mahantheran at close range. It was not suggested to either complainant in cross-examination that there was any possibility that they may have mistaken his identity. In these circumstances, the direction given by the trial judge with respect to the possibility of honestly mistaken evidence with respect to recognition, no doubt given out of an abundance of caution, went beyond that required by the legal principles to which I have referred. As the premise upon which ground 1 is based, namely, that a Domican warning was required fails, the ground must also fail.
36 However, for the sake of completeness it is desirable to deal briefly with the submissions which were put on the assumption that a Domican warning was required. On that assumption it was submitted that the directions given by the trial judge fell short of the warning required because they did not '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'.28
37 In the written submissions filed on behalf of Mr Mahantheran, the matters which were said to be capable of undermining the reliability of the identification evidence were identified as:
(a) the consumption by each complainant of approximately one 'stubby' of beer;
(b) some of the offenders were carrying weapons;
(c) the complainants both suffered severe injuries that required their hospitalisation, including, in the case of Mr Sannthurai, a blow to the head;
(d) both complainants were struck from behind;
(e) in the circumstances of multiple men hitting each complainant, it would have been difficult for the complainant to identify precisely who was striking whom.
38 Dealing with each of these matters in turn, it could not be reasonably concluded that the consumption of one stubby of beer by each complainant had the capacity to undermine their ability to identify a person with whom they had lived for a number of months. The fact that some of the offenders may have been carrying weapons appears entirely irrelevant to the issue of identification of Mr Mahantheran, who was not carrying a weapon when he went up to the complainants and asked for a cigarette. In relation to the injuries suffered by the complainants, there was no evidence to the effect that any injury affected their capacity to recall the events in question, nor was that proposition put to either complainant in the course of cross-examination. Any issues with respect to the capacity of either complainant to observe precisely who struck them were not germane to any issue of identification because the issue presented to the jury for their determination was whether Mr Mahantheran was in fact at the scene. The prosecution case was presented in reliance upon an alleged joint enterprise, consistently with s 8 of the Criminal Code, so that the guilt or innocence of any particular accused did not turn upon any issue with respect to who struck whom, but upon whether they were a party to the alleged joint enterprise.
39 In summary, none of the matters to which attention has been drawn on behalf of the appellant would have required specific mention in the course of a Domican warning, even if such a warning had been required by the circumstances of the case.
40 Ground 1 must therefore be dismissed for two reasons. First, no Domican warning was required in the circumstances of the case and, secondly and in any event, the warning given by the trial judge to the jury was adequate even if a Domican warning had been required.
Ground 2
41 Ground 2 is in the following terms:
Ground 2
2. There was a miscarriage of justice when his Honour failed to adequately direct the jury concerning the 'dock identification (more accurately seen as 'dock recognition') evidence' given by each complainant;
Particulars
2.1 His Honour failed to direct the jury about the need for caution concerning the dock recognition evidence at the time it occurred;
2.2 In his summing-up to the jury his Honour erroneously elevated the dock recognition evidence to the level that it amounted to a recognition of the appellant as an offender.
42 As this was not a case in which there was any issue in relation to the capacity of either complainant to recognise Mr Mahantheran, or the capacity of either complainant to see and identify Mr Mahantheran on the day of the incident, nor was there any suggestion that either complainant had mistaken someone else for Mr Mahantheran, the dock identification of Mr Mahantheran by each complainant was of no moment. The trial judge was correct to advise the jury that 'such identifications are made to complete the picture so far as the prosecutor is concerned'.29 He was also correct to direct the jury that in this case the dock identifications were of little weight, and that the evidence which connected each of the accused, including Mr Mahantheran, to the crime was the evidence of each complainant to the effect that they recognised the men when they came to their home, and their evidence as to how long or how it was they came to know them and how well they knew them. This was not a case in which the dock identification of Mr Mahantheran by each complainant formed any significant part of the prosecution case. If this had been such a case, it would have been appropriate for the trial judge to specifically draw attention to the unreliability of dock identifications at the time they were made, and certainly in the course of his charge to the jury.30
43 This was a case in which Mr Mahantheran was well-known to each complainant, who had identified him out of court on the day of the incident. The process that was followed was conveniently described in R v Gorham:31
Where there is an out-of-court identification of an accused person the subsequent identification of that person in court is usually carried out to confirm that the person previously identified is, in fact, the person before the court: Grbic vPitkethly (1992) 38 FCR 95 at 104. In most cases where the dock identification is employed for this limited purpose it is little more than a formality. It is the out-of-court identification which is the critical matter for the jury's consideration.32
- The directions given by the trial judge in this case were entirely consistent with these principles.
44 The ground of appeal asserts that the trial judge erroneously elevated the dock recognition to the level that amounted to a recognition of Mr Mahantheran as an offender in the course of his directions to the jury. That proposition is impossible to reconcile with the fact that on the first occasion the trial judge referred to the dock identifications, he directed the jury to 'place little weight on dock identifications' and directed them that it was out-of-court identification which was significant,33 and on the second occasion the trial judge referred to the dock identifications he specifically referred to their weakness and directed the jury that '[i]t's too easy to point to a person sitting in the dock and say, "that's the man"'.34
45 Ground 2 is without substance. Leave to appeal should be refused, and the ground dismissed.
Ground 3
46 Ground 3 is in the following terms:
Ground 3
3. There was a miscarriage of justice when, over objection, his Honour told the jury to disregard as hearsay an inconsistent statement made to a doctor, which statement was attributed to the complainant, regarding the weapon used by the appellant ('the statement'):
Particulars
3.1 The prosecutor inadvertently read the statement into evidence and, in the circumstances, defence counsel determined not to have the doctor called;
3.2 His Honour’s direction to the jury to disregard the statement unfairly denied the defence the opportunity to rely on the statement.
47 I have set out the events which occurred during the course of the trial and which give rise to this ground.
48 There are a number of aspects of the ground which should be noted. First, the ground accepts that the contentious portion of the doctor's statement was read into evidence by the prosecutor inadvertently. As I have noted, that is what the prosecutor told the trial judge, and there is no reason not to accept that assertion.
49 Second, the ground asserts that the statement relating to the machete was attributed to the complainant, being relevantly Mr Theiventhram. That assertion is not correct, as the trial judge pointed out during the course of argument on this issue. The statement of the doctor which was read into evidence does not attribute a statement to the effect that Mr Theiventhram was assaulted with a machete to anybody. As the trial judge pointed out, that information could have been provided to the doctor by police. The information might also have been provided by ambulance officers who presumably conveyed Mr Theiventhram to the hospital. While it is possible that a statement to that effect may have been made to the doctor by Mr Theiventhram (assuming an interpreter was present at the time), on the evidence, that was nothing more than a possibility. These propositions were accepted by counsel representing Mr Mahantheran in his appeal.35 Counsel nevertheless submitted that the doctor's statement was capable of giving rise to an inference to the effect that it was Mr Theiventhram who told the doctor about the machete. That submission must be rejected. There was simply no evidence one way or the other as to the source of the information apparently given to the doctor relating to the use of a machete.
50 The trial judge was correct to conclude that the portion of the statement inadvertently read to the jury by the prosecutor relating to the use of a machete to assault Mr Theiventhram was inadmissible hearsay from an unidentified source. The submission made to the trial judge to the effect that the contentious portion of the doctor's statement was, or could have been, admissible as a prior inconsistent statement was baseless, for the reasons which follow.
51 In Western Australia, the procedure to be followed in relation to the admission of prior inconsistent statements made by witnesses is specified by s 21 of the Evidence Act 1906 (WA). That section provides:
21. Cross-examination as to and proof of prior inconsistent statement
Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.
The same course may be taken with a witness upon his examination in chief or re-examination, if the judge is of opinion that the witness is hostile to the party by whom he was called and permits the question.
52 The procedure specified by the section must be followed if evidence of a prior inconsistent statement made by a witness is to be admitted into evidence.36 The correspondence between this procedure and the requirements at common law was identified by McHugh J in Nicholls v The Queen37 where he observed:
At common law, if a witness does not admit the making of a prior statement, the cross-examiner must identify that statement to the witness. Only if the witness still refuses to admit making the statement may the opposing party prove the oral statement. Section 21 of the Evidence Act ('Cross-examination as to and proof of prior inconsistent statement') is to similar effect. Section 21 requires that the cross-examiner identify the particular occasion when the supposed statement was made. Only if the witness does not distinctly admit that he or she made the statement can evidence be tendered to prove that he or she in fact made the statement. Section 21 provides:
…
Section 21 is essentially declaratory of the common law. It does not abrogate the common law principles. Proof or admission of the prior inconsistent statement does not constitute evidence of the facts stated unless the witness is a party (in which case the statement may amount to an admission). Section 21 prescribes the requirement that must be met before proof of a previous inconsistent statement may be tendered. That requirement is that the circumstances of the statement must be identified to the witness sufficient to designate the particular occasion. In other words, the circumstances in which the prior inconsistent statement was allegedly made must be identified to the witness in sufficient detail so that the witness has the opportunity to admit or fail to 'distinctly admit' that he or she made the statement. Only if the witness fails to 'distinctly admit' that he or she made the statement can evidence be led of the making of the inconsistent statement.38 (footnotes omitted)
53 No attempt was made to follow the process which might have rendered a statement made by Mr Theiventhram to Dr Koefman admissible as a prior inconsistent statement. Pursuant to s 21 of the Evidence Act, the first step in that process required counsel for Mr Mahantheran to ask Mr Theiventhram whether he had made any former statement relating to the use of a machete in the course of an attack in such a way as to sufficiently identify the circumstances of the supposed statement. That was not done. It was only if Mr Theiventhram did not admit a statement to that effect to Dr Koefman that evidence could have been led from Dr Koefman as to the making of such a statement by Mr Theiventhram. The failure of counsel for Mr Mahantheran to ask the questions which might have satisfied the preconditions for the tender of a prior inconsistent statement by Mr Theiventhram if answered in a particular way had the consequence that by the time the doctor's statement was read into evidence, there was no way in which that portion of the doctor's statement could have been admissible as a prior inconsistent statement.
54 The trial judge was correct to direct the jury that they should disregard the relevant portion of Dr Koefman's statement because it was inadmissible hearsay. It is common ground that the evidence was tendered by an inadvertent mistake on the part of the prosecutor. This is not one of those cases in which the parties had agreed that inadmissible evidence could be received despite its inadmissibility in the pursuit of a legitimate forensic purpose.39
55 Ground 3 is without substance. Leave to appeal should be refused in respect of that ground and the ground dismissed.
Ground 3A
56 Ground 3A is in the following terms:
3A. There was a miscarriage of justice when his Honour refused, over objection, to discharge the jury after a direction by the trial Judge effectively meant that defence counsel lost an opportunity to rely upon an inconsistent statement of a complainant about the type of weapon used by the appellant.
57 It is difficult to see what, if anything, ground 3A adds to ground 3. It appears to presume the success of ground 3 because it assumes that the trial judge erred by directing the jury to disregard the contentious portion of the doctor's statement because it was inadmissible. Unless the trial judge erred in this way, there is no basis upon which it can be asserted that he erred by failing to discharge the jury. On this view of the ground, it must necessarily be dismissed if ground 3 is dismissed, as I have concluded.
58 Further, the assertion within the ground to the effect that the course of the trial resulted in defence counsel losing an opportunity to rely upon an inconsistent statement of a complainant must be rejected. For the reasons I have already given, any opportunity to rely on a prior inconsistent statement made by Mr Theiventhram was lost when counsel on behalf of Mr Mahantheran made the forensic decision not to follow the procedure specified by s 21 of the Evidence Act. That forensic decision
was made well prior to the inadvertent tender of the inadmissible portion of Dr Koefman's statement.
59 It was quite inappropriate for counsel representing Mr Mahantheran at trial to suggest that the reference to a machete in Dr Koefman's statement could be used by the jury to diminish the credibility of each complainant when he had never put to either complainant that they ever said they were attacked with a machete. In so doing, he contravened the well-known rule in Browne v Dunn40 which requires a cross-examiner who intends to invite the tribunal of fact to disbelieve a witness to put to that witness in cross-examination the grounds upon which the witness's evidence is to be disbelieved.41 It was entirely appropriate for the trial judge to correct counsel's misuse of inadmissible evidence through the directions which he gave. There was absolutely no basis whatever for an order discharging the jury.
60 Ground 3A is without substance. Leave to appeal should be refused in respect of that ground and the ground dismissed.
Conclusion
61 All grounds of appeal are without substance. Leave to appeal should be refused in respect of grounds 2, 3 and 3A, and the appeal must be dismissed.
62 McLURE P: I agree with Martin CJ.
63 HALL J: I agree with Martin CJ.
1 ts 444.
2 ts 474 - 475.
3 ts 475 - 476.
4 ts 477.
5 ts 624.
6 ts 626.
7 ts 628.
8 ts 684.
9 ts 691.
10 ts 694.
11 ts 797.
12 ts 941.
13 Defence closing addresses, ts 26.
14 In the absence of the jury of course.
15 ts 986.
16 ts 1025 - 1026.
17 ts 1068.
18 ts 1024 - 1025.
19 ts 1037.
20 (1992) 173 CLR 555.
21 As her Honour then was.
22 [2008] WASCA 219.
23 [2008] WASCA 219 [5] - [7]. Although in that case McLure JA dissented because of her view of the facts, the principles which she enunciated are not controversial.
24 [2000] TASSC 183.
25 As his Honour then was.
26 [2008] WASCA 219 [81].
27 [2000] TASSC 183 [61].
28Domican v The Queen (1992) 173 CLR 555, 562.
29 ts 1024.
30Mills v The State of Western Australia [2008] WASCA 219 [104].
31 (1997) 68 SASR 505 per Duggan J (Lander and Bleby JJ agreeing), cited by Buss JA in Mills [101].
32 At 508.
33 ts 1024 - 1025.
34 ts 1026.
35 Who was not counsel representing Mr Mahantheran at trial.
36O'Meara v The State of Western Australia [2013] WASCA 228 [38].
37Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196.
38 [84] - [85].
39 See Italiano v The State of Western Australia [2012] WASCA 260 [6], [85], [94].
40Browne v Dunn (1893) 6 R 67 (HL).
41 See NCH v The State of Western Australia [2013] WASCA 29 per Buss JA [99].
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