Mundy v The King

Case [2023] SASCA 59

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MUNDY v THE KING

[2023] SASCA 59

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice David)

8 June 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - GENERALLY

On 4 July 2020, a robber demanded money from an On The Run employee before stabbing her hand with a pair of scissors and stealing approximately 90 dollars from the till. The appellant was convicted by a jury of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).

The issue at trial was the identity of the offender. The prosecution case relied on the evidence of Police Constable Butler that the appellant, on an occasion two days earlier, was dressed in the same clothing or largely the same clothing as worn by the offender at the time of the robbery.

The appellant appeals his conviction on the grounds that the trial Judge erred in failing to give adequate warnings in relation to the evidence of Constable Butler and that the verdict was unreasonable and/or cannot be supported having regard to the evidence.

Held, per Lovell and David JJA, allowing the appeal, setting aside the conviction and entering an acquittal:

1.The trial Judge did not direct the jury on the dangers and potential unreliability of identification evidence. In that context, the trial Judge's directions on the potential unreliability of Constable Butler's evidence, and in particular the contamination of his evidence by the displacement effect, were inadequate.

2.Having regard to the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

Held, per Kourakis CJ, addressing Ground 3 but otherwise agreeing with the reasons and orders of Lovell and David JJA on Ground 1:

1.Given the verdict was not supported by the evidence, it is unnecessary to decide Ground 3.

Criminal Law Consolidation Act 1935 (SA) s 137; Evidence Act 1929 (SA) s 34AB(3), referred to.
Alexander v The Queen (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 555; Evans v R [2007] HCA 59; Fennell v The Queen (2019) 93 ALJR 1219; Festa v The Queen (2001) 208 CLR 593; Gately v The Queen [2007] HCA 55; M v The Queen (1994) 181 CLR 487; Nominal Defendant v Clements (1960) 104 CLR 476; Pell v The Queen [2020] HCA 12; R v Blundell [2019] SASCFC 84; R v Boyle [2022] SASCA 50; R v Clout (1995) 41 NSWLR 312; R v Connolly (No…

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Mundy v The King [2023] SASCA 59
Case
[2023] SASCA 59
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Lovell and David JJ, heard an appeal by Trevor Mundy against his conviction for robbery. The central dispute concerned the reliability and admissibility of identification evidence presented at trial, particularly the testimony of Constable Butler, which the appellant argued was problematic and led to an unsafe verdict.

The legal issues before the Court included whether the trial judge’s directions to the jury regarding identification evidence were adequate, and whether the verdict was unreasonable or insupportable having regard to the evidence. Specifically, the Court was required to consider the admissibility and weight of Constable Butler’s evidence, which involved him identifying the appellant’s clothing based on a description received over police radio and his own prior observation of the appellant. The Court also considered the application of principles relating to identification evidence, including the identification of inanimate objects, to the circumstances of the case.

The Court reasoned that Constable Butler’s evidence regarding his thought processes upon hearing the description over the radio was inadmissible hearsay and self-corroborating, as it did not constitute evidence of identification. The relevant identification evidence should have focused on a comparison between the offender's clothing as seen in CCTV footage and the appellant's clothing as observed by Butler on a prior occasion. The Court drew upon established principles from cases such as *R v Boyle*, *R v Crupi*, *Clout*, *Evans v R*, and *Fennell v The Queen*, which emphasise the fallibility of human memory, the risks of misidentification, and the need for clear and detailed cautionary instructions to juries when identification evidence is relied upon, even when it pertains to inanimate objects. The Court found that the identification evidence in this case was beset with difficulties and that the trial judge's directions may not have adequately addressed these issues.

The Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Before turning to the question of the trial Judge’s directions, it is necessary to discuss Butler’s evidence in detail as the evidence, as produced at trial, was problematic and beset with difficulties.Evidence of Constable Butler As mentioned, counsel for the appellant at trial did not object to the admissibility of Butler’s evidence relating to the identification of the clothing worn by the offender. In evidence in chief, Butler stated that at about 8.00 pm on 4 July 2020 he responded to a call out to a robbery at the OTR. Butler, working alone, drove around the area searching for potential suspects. Butler stated that he heard via police radio a description of the offender including his clothing. Butler said that he received information that the “offender had what appeared to be a T-shirt wrapped round their face, had black-and-white trainers, tan-coloured chinos and a black nylon bomber jacket – or black or blue, dark”. Butler was asked whether the description reminded him of anyone he had recently seen and Butler said that “It matched the exact clothing description” of Mr Trevor Mundy who he had spoken to about 48 hours earlier. Butler’s evidence about what he heard over the radio invited hearsay evidence if led for the truth of its content. Of course, it may be led for a non-hearsay purpose. However, the prosecutor asked if the description he heard reminded him of anything. The evidence of Butler’s thought processes was not admissible and prejudicial. It was not evidence of identification. What he saw the robber wearing in the CCTV and how that compared with his memory of what the appellant was wearing two days before was the relevant identification evidence. His thought processes took the matter no further and as led, was simply self- corroborating evidence. As this Court observed in R v Boyle:[28]In general terms, a party may not call evidence supporting the credibility of a witness called by that party. To put that another way, a witness may not be asked in evidence in chief whether he or she has made a statement, outside of the court hearing, consistent with their present testimony. It is sometimes called the ‘rule against narrative’ or ‘the rule against self-corroboration’. The witness cannot narrate such a statement if it was oral or refer to it if it was in writing and other witnesses may not be called to prove it. This rule exists independently of the rule against hearsay.[28] [2022] SASCA 50 at [27]. Butler was then asked about the incident two days before. He described how he came to be in contact with the appellant and described what the appellant was wearing. Butler stated:[W]hen he was standing in the front yard of 60 Head Street he had on black trainers with a white sole on the front and black laces, tan chinos. He had a T-shirt on that was half black and half white fabric and a navy blue nylon bomber jacket with a silver zip up the front and a silver zip on the left arm. This was the first step in Butler’s identification evidence. Butler then returned to the topic of his discussion with the radio operator. He was asked whether he received any further information “as to the offender’s appearance”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Victorian Full Court reached the same conclusion. In R v Crupi, Crockett, Nathan and Vincent JJ observed:[21]A further argument advanced on behalf of the respondent to which we should make some brief reference was to the effect that Domican was concerned with the identification of persons and not objects. It is sufficient to say in response to this proposition that this Court accepted in R.v.Marijansevic (unreported 9/12/1993) that there could well be circumstances in which the identification of an object could be a significant part of the Crown case such that a warning based on the Domican considerations would be appropriate.(emphasis added)[21] [1995] VSC 149 at [49]. When dealing with what may be required where the evidence involves identification of inanimate objects, Kirby A-CJ in Clout observed:[22]The general warning about the dangers of convicting persons upon identification evidence need to bring to the notice of juries at least the following:1. The fallibility of human memory;2. The risks of convicting persons upon the basis identification evidence and the injustices which have occurred in the past from such mistakes;3. The danger of contamination of memory by facts later discovered;4. The high importance of securing an early record of the uncontaminated recall of the witness before the passage of time to prevent later in elaboration or distortion in the retelling of the event; and5. The specific danger the memory may sometimes become enlarged (even quite innocently) to include matters which the observer expects, or is expected to recall.[22] (1995) 41 NSWLR 312, 321. In Evans v R, Kirby J reiterated what he had said in Clout. He observed:[23][A]s this Court and other appellate courts have repeatedly pointed out, the history of miscarriages of justice is littered with cases where serious wrongs have occurred on the basis of imperfect evidence of identification of the accused or imperfect evidence of resemblance. It is for that reason that courts in this country have insisted, even in cases where the prosecution case is otherwise strong, upon clear and detailed, accurate and properly cautionary instructions to the jury about the special dangers of convicting an accused person on the basis of identification or resemblance evidence. The need for warnings or cautions about the dangers of evidence of “resemblance” or “similarity” should not be diluted simply because they arise in new and different circumstances.[23] [2007] HCA 59 at [72]. In Fennell v The Queen (Fennell),[24] the prosecution alleged that Mr Fennell had used a hammer to murder the victim. Mr and Mrs Matheson purported to identify a hammer discovered in a mangrove area near the victim’s belongings. Mr and Mrs Matheson gave evidence that Mr Matheson had lent the hammer to Mr Fennell. At trial, the prosecution described the evidence as significant. The High Court observed that the identification evidence relating to the hammer was the most significant of the “strands in a cable”.[25] The High Court stated that the evidence given by Mr and Mrs Matheson purporting to identify the hammer, which they had not seen for approximately two years, was “glaringly improbable”.[26] [24] Fennell v The Queen (2019) 93 ALJR 1219.[25] Fennell v The Queen (2019) 93 ALJR 1219 at [5].[26] Fennell v The Queen (2019) 93 ALJR 1219 at [78], [81].