Murray v The State of Western Australia
[2009] WASCA 18
•15 DECEMBER 2008
MURRAY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 18
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 18 | |
| THE COURT OF APPEAL (WA) | 21/01/2009 | ||
| Case No: | CACR:148/2008 | 15 DECEMBER 2008 | |
| Coram: | PULLIN JA BUSS JA MILLER JA | 14/12/08 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction and sentence quashed Retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | VERONICA HOPE MURRAY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Evidence Identification No positive identification Trial judge misdirecting jury on issue Whether any other evidence sufficient to identify appellant Whether substantial miscarriage of justice |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3), s 30(4) Criminal Code, s 143 Criminal Procedure Act 2004 (WA), s 97(3) Evidence Act 1906 (WA), s 50(2) Road Traffic Act 1974 (WA), s 49(1) |
Case References: | Browne v Dunn (1893) 6 R 67 Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Mackrell v The State of Western Australia [2008] WASCA 228 Pitkin v The Queen [1995] HCA 30; (1995) 130 ALR 35 Rankins v The State of Western Australia [2007] WASCA 51 White v The Queen [2006] WASCA 62 Wilde v The Queen (1988) 164 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MURRAY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 18 CORAM : PULLIN JA
- BUSS JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
File No : INS 471 of 2008
(Page 2)
Catchwords:
Criminal law - Evidence - Identification - No positive identification - Trial judge misdirecting jury on issue - Whether any other evidence sufficient to identify appellant - Whether substantial miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code, s 143
Criminal Procedure Act 2004 (WA), s 97(3)
Evidence Act 1906 (WA), s 50(2)
Road Traffic Act 1974 (WA), s 49(1)
Result:
Appeal allowed
Conviction and sentence quashed
Retrial ordered
Category: B
Representation:
Counsel:
Appellant : Ms F R Veltman
Respondent : Mr D Dempster
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Browne v Dunn (1893) 6 R 67
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Mackrell v The State of Western Australia [2008] WASCA 228
(Page 3)
Pitkin v The Queen [1995] HCA 30; (1995) 130 ALR 35
Rankins v The State of Western Australia [2007] WASCA 51
White v The Queen [2006] WASCA 62
Wilde v The Queen (1988) 164 CLR 365
(Page 4)
1 PULLIN JA: I agree with Miller JA.
2 BUSS JA: I joined in the orders made by the court on 15 December 2008 for the reasons to be published by Miller JA.
3 MILLER JA: At the hearing of this appeal, the appeal was allowed, the conviction of the appellant and the sentence imposed upon her were quashed and it was ordered that she should be retried in the District Court at Perth. The court undertook to give its reasons and these are my reasons.
4 The appellant was charged on indictment that, on 15 February 2006, at Bassendean she attempted to pervert the course of justice by procuring Sharon Graham (Ms Graham) to falsely represent to the Western Australian Police that Ms Graham was the driver of a motor vehicle so as to prevent the appellant being prosecuted for the offence of driving without being the holder of a valid driver's licence contrary to s 49(1) of the Road Traffic Act1974 (WA). The offence alleged a breach of s 143 of the Criminal Code which provides that any person who attempts to pervert the course of justice is guilty of a crime and liable to imprisonment for 7 years.
5 The appellant pleaded not guilty to the offence and was tried before Wisbey DCJ and a jury in the District Court at Perth on 7 and 8 August 2008. She was convicted by unanimous verdict of the jury.
6 The appellant appeals from her conviction on the single ground that the trial judge erred in directing the jury that the evidence of the prosecution witness, Peter Andrew Gibson (Mr Gibson), constituted identification of the appellant as the driver of the vehicle involved in [an] accident. The particulars annexed to the ground contend that the evidence of Mr Gibson went no further than a statement that the features of a person shown in a photograph were similar to those of the appellant.
The facts
The prosecution case
7 The prosecution case alleged that, on 15 February 2006, the appellant, who had been disqualified from driving a motor vehicle, reversed a Mitsubishi Magna motor vehicle onto Railway Parade, Bassendean, at a location outside the Bassendean railway station. It was alleged that the appellant's vehicle had been parked on the verge outside
(Page 5)
- the railway station. It was further alleged that the incident had occurred after the appellant and Ms Riannna West (Ms West) had returned from their place of work at the Grand Chancellor Hotel on the afternoon of 15 February. The prosecution case was that there was a collision between the Magna and a vehicle being driven on Railway Parade by Mr Gibson. The appellant was said to have reversed directly into the path of Mr Gibson.
8 Mr Gibson gave evidence that he was travelling at about 30 km per hour when he saw the vehicle reverse into his path. He braked, but was unable to avoid colliding with the back corner of it. He pulled over after the collision, jumped out of his vehicle and went back to the scene to check that the occupants of the vehicle he had struck were all right. He said there were two people in the car and they were 'okay'. His testimony was that he then 'copped a torrent of abuse for having swerved into the vehicle and then I was told that I wouldn't get any details, it wasn't her car, the car wasn't ... insured so it wasn't her car and she wasn't insured'. Mr Gibson said that it was the driver who abused him. Mr Gibson said that he took the registration number of the vehicle and noted it on a piece of paper. He described the driver as about 160 cm tall, which he said was 5 foot 4, 5 foot 6 'in the old money'. The driver had 'curly hair, Maori appearance and slim build'. He noted that the passenger was a younger girl whom he thought was in school uniform, although he did not take a great deal of notice of her. He was at the scene for a period of no longer than about two minutes.
9 The prosecution case was that the appellant then drove her vehicle to Ms Graham's house and asked Ms Graham to take the responsibility for the accident.
10 Ms Graham gave evidence that the appellant asked her to take responsibility because the appellant had had her licence suspended for driving without a licence. Ms Graham gave evidence that she said that she would think about it. She went outside to look at the vehicle and she was taken back by the appellant to the crash scene. She asked the appellant and her daughter, Ms West, to take photographs of where the accident had occurred.
11 Ms Graham then wrote an accident report. She said that she did so at the dictation of the appellant. She knew that she was making a false report, but she signed it and dated it 6 April 2006. The report was submitted to the Kiara police station. The relevant portion of it read:
(Page 6)
- Vehicle 1 was parked on dead end of Railway Parade, on verge near temporary fencing. Started car. Looked for traffic. Started to reverse and not gone over cement kerbing when vehicle 2 skidded and swerved, causing his vehicle to veer towards my car. Impact resulted in tow ball being forced to the east side of the car and lodging into back bumper region. After the incident, and vehicle 2 left, I photographed and video'd the skid marks and rubble.
- The report contained a sketch in which vehicle 1 and vehicle 2 were identified.
12 Ms Graham said that, some time after she submitted this report, she was contacted by an insurance company seeking reimbursement for the costs of repairs to Mr Gibson's vehicle. She said that she endeavoured to contact the appellant about it, but she was unable to do so. Eventually, she went to the police and explained what had happened. This caused a reopening of the accident investigation.
13 Meanwhile, Ms Graham participated in a record of interview with police on 29 November 2006. She admitted to having agreed to take responsibility for the accident and said that what she had said about it 'was a lie'. She was charged with, and pleaded guilty to, making a false statement. She was fined $1,000.
14 Mr Gibson was asked to attend Midland police station to see whether he could identify a woman and he went to the station where he met Ms Graham. He said that she was 'definitely not the driver of the vehicle on the day'. She was a larger woman 'quite a bit older and not the slight built woman that I'd met'.
15 For some reason, the appellant's trial counsel sent an email to Mr Gibson, attached to which were two photographs. Mr Gibson was asked to advise whether the woman in the photographs was the woman driving the vehicle. He contacted the Midland police to ask whether it was correct to answer the email and he was told not to respond.
16 In his evidence, Mr Gibson was asked what he thought when he saw the photographs. The question and answer were as follows:
Now two things. The first thing is what did you think; tell us what you thought when you looked at the photograph in relation to your earlier observations about the driver; what did you think?---I was quite confident that it was the driver but without actually having height references to her, I couldn't say 100 per cent with my hand on my heart that it is her. You know, I had a feeling that it may be a relative, cousin or something, but the features were so similar.
(Page 7)
17 It was assumed by all concerned at the trial of the appellant that the photographs to which Mr Gibson referred were photographs of the appellant. In fact, there was no identification of the person shown in the photographs. They were neither shown to the jury nor tendered in evidence.
18 Ms West testified that she was in company with the appellant on 15 February 2006 when they returned from their place of work at the Grand Chancellor Hotel in the city to the Bassendean railway station. There, they got into the appellant's vehicle, which the appellant reversed off the verge onto Railway Parade. Ms West said that she had looked to the left and had seen a vehicle coming. She tried to warn the appellant, but apparently the appellant did not hear her.
19 Ms West testified that, after the collision, she and the appellant had gone around to Ms West's mother's house (Ms Graham's house). There, it was agreed that Ms Graham would take the blame for the collision. Ms West also said that, on the day in question, she was wearing her 'Delron cleaning uniform' which was a maroon dress.
20 Ms West was cross-examined at length about her evidence. It was not put to her that she, or anybody else, was driving the vehicle. It was never suggested that her mother had been driving the vehicle. Nor was it suggested that the appellant was not with her that day. Her credibility was tested about various incidental aspects of her evidence.
21 Ms Graham agreed in cross-examination that she had fallen out with the appellant. It was never put to her that she was the driver of the vehicle at the time. Nor was it put to her that she had given false evidence about the appellant asking her to take responsibility for the accident.
The appellant's evidence
22 The appellant gave evidence that between 9.00 am and 2.00 pm on 15 February 2006, she worked as a supervisor at the Grand Chancellor Hotel. She said that before work her father had dropped her at the Bassendean railway station and she had caught the train to Perth. She said that her parents had three vehicles, a Magna, a Daewoo and a Kia Rio. It was the Daewoo that her father was driving when he dropped her at the station.
23 The appellant said that she finished work at 2.00 pm and she was collected by her mother outside the hotel. Her mother was in the Kia Rio and they drove to her mother's home, arriving there at about 2.30 pm.
(Page 8)
24 The appellant said that, at about 2.45 pm, she left her mother's house to pick up her children from school. Her mother drove her to the school. When she got to the school, she got a telephone call from Ms West, saying that they had had an accident. She said that she went to the Bassendean railway station, where she saw Ms Graham and Ms West. The Magna was there and it had been involved in an accident.
25 The appellant said that she took the vehicle and drove it away. Later, she pleaded guilty to driving whilst under suspension. She said that the offence she committed was driving the vehicle away from the scene of the accident in which Ms Graham and Ms West had been involved.
26 The appellant denied that she was driving the Magna at 2.10 pm when it was involved in an accident. She was asked if she knew who was driving and she said:
Do you know who was driving the vehicle?---I do not know who was driving the vehicle. I can make an assumption, but I cannot tell you for sure.
27 As I have pointed out, counsel for the appellant at trial did not cross-examine either Ms West or Ms Graham to allege that they had been driving the vehicle at the time it was involved in the collision. No point seems to have been taken about this at the trial, but there was clearly a fundamental obligation imposed upon counsel for the appellant to put to the prosecution witnesses, Ms Graham and Ms West, that one or other of them must have been the driver of the Magna at the time in question: Browne v Dunn (1893) 6 R 67. See also Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 per Pidgeon J at [37] et seq. The trial judge made no reference to this issue. He did not direct the jury in relation to the failure of defence counsel to cross-examine in accordance with the rule in Browne v Dunn, nor did he advert to the consequences of that failure.
28 There were other irregularities with the trial. I have already mentioned the matter of the photographs. In addition, no notice of alibi was given by the defence, when it was clearly required as a result of the alibi evidence given by the appellant's mother: Criminal Procedure Act 2004 (WA) s 97(3).
Evidence of appellant's mother
29 Caroline Dianne Murray (Ms Murray) gave evidence that she was the mother of the appellant. Ms Murray worked for Delron Cleaning
(Page 9)
- Services. She had been with them for some 10 years. In February 2006, she worked at the Grand Chancellor Hotel as a supervisor.
30 Ms Murray testified that on 15 February 2006, she finished work at 2.00 pm. The appellant had finished work at the hotel and she drove the appellant home in her Kia Rio motor vehicle. She said that they went to her children's school and the appellant was dropped off at about 2.40 pm or 2.45 pm. She said that the appellant's children played netball and 'she (the appellant) was getting a ride from the school with her children to go to netball so that's where I dropped her off'.
31 Ms Murray testified that the family had three cars. A Daewoo was her husband's, a Kia Rio was hers, and a Magna was 'a communal car'. She said that the Magna was available for anyone who wanted to use it for the day. The keys were left in it. She said that she had no idea what happened to the car on 15 February 2006. She did, however, recall that Ms Graham had borrowed the car on two occasions of which she was aware. When cross-examined, Ms Murray said (in apparent contradiction to her earlier evidence) that she could not specifically remember the day of 15 February 2006.
Rebuttal evidence
32 With leave of the trial judge, Ms Graham was recalled to give evidence. She said that she had knowledge of work practices at the Grand Chancellor Hotel. She gave evidence that supervisors (of whom the appellant was one) were relieved at between 1.00 pm and 1.30 pm. Ms Graham also gave evidence that she had a car which she shared with her de facto. She denied that she had ever borrowed the Mitsubishi Magna. Ms Graham said that she had no knowledge of her daughter, Ms West, ever borrowing it. It was not put to her in cross-examination that she was driving the Magna on the day of the accident.
Trial judge's summing up
33 The trial judge explained to the jury the elements of the charge of attempting to pervert the course of justice, summarising the position as follows:
Again, it's a matter entirely for you but if you were satisfied beyond reasonably [sic reasonable] doubt that the accused approached Sharon Graham to claim that she was the driver of the vehicle at the material time when the position was otherwise[,] [t]hen, I think you would be entitled to be satisfied, bearing in mind the evidence that the accused person was unlicensed to drive, that that representation to the police would have the
(Page 10)
- tendency to pervert the proper course of justice and that the accused would have had that course, that proposed course in mind, that is she would have intended that it have that result, that is that she would not be prosecuted.
34 The trial judge directed the jury that they must first be satisfied that the appellant was the driver of the Magna involved in the collision with Mr Gibson's vehicle. His Honour repeated the evidence of Mr Gibson in relation to his description of the driver and alerted the jury to the fact that, when invited by police to look at Ms Graham at the Midland police station, he had said that she was definitely not the driver of the vehicle on the day.
35 The trial judge then turned to the question of identification from photographs submitted to Mr Gibson. His direction was in the following terms:
Then, of course, he was sent photographs of the accused person by the accused's legal representatives and he had this to say, again at page 24:
Tell us what you thought when you looked at the photograph in relation to your earlier observations about the driver. What did you think?---I was quite confident that it was the driver, but -
Of course he's had a facial photograph, not of the whole person, he says:
I was quite confident that it was the driver. But, without actually having height references to her, I couldn't say 100 per cent with my hand on my heart that it is her. You know, I had a feeling that it may be a relative cousin, or something, but the features were so similar.
So he was saying, 'It was not the lady I saw in the police station and the person who was driving the car, I think, was the person depicted in the email photographs sent to me, although I couldn't see her height and physical appearance and I make that qualification.'
36 This direction was not an accurate account of the evidence given. It omitted to point out that there was no evidence that the photographs were photographs of the appellant. The trial judge then added:
The State says to you that Mr Gibson's evidence is very significant in terms of his identification from the photographs, it's of course important in evaluating the evidence, you reflect on the reliability of that identification that obviously going to be an issue for your determination.
37 The trial judge then gave the jury a direction about the dangers of identification evidence. The direction and the warnings within it were consistent with the directions suggested in Domican v The Queen [1992]
(Page 11)
- HCA 13; (1992) 173 CLR 555. They were suited to a case of positive identification.
38 The difficulty with the trial judge's direction to the jury is that he equated Mr Gibson's evidence with identification of the appellant. He told the jury that Mr Gibson had identified the appellant in the photographs sent to him by her trial counsel.
39 Leaving aside the absence of any evidence that the person depicted in the photographs was the appellant, the evidence of Mr Gibson was not a positive identification of the appellant as the driver. This is clear from Pitkin v The Queen [1995] HCA 30; (1995) 130 ALR 35, a case in which a witness had said, when looking at photographs shown to her by police, 'This looks like the person that I seen take the lady's handbag'. The court pointed out that the fact that an accused person 'looks like' a person who in fact committed a crime is, of itself, insufficient to sustain a conviction of that accused of that crime (37). The court considered that the words used by the witness did not, as a matter of literal meaning, amount to positive identification (39).
40 Pitkin was applied in Rankins v The State of Western Australia [2007] WASCA 51. In that case, an identifying witness had described a person shown to her in a photograph as 'similar' to the offender. She said that the person in the photograph looked very alike, 'but I cannot be 100 per cent sure'. The trial judge left it to the jury to determine whether they were satisfied that the 'identification' made by the witness was an accurate identification of the appellant as the offender. In my reasons for judgment, I said:
This latter direction gave to the jury the option of concluding that the evidence of Ms Murray was evidence of positive identification, or, alternatively, concluding that it was something less than positive identification.
Warnings were given about the dangers of identification evidence. The warnings were more or less in terms of the direction suggested in Domican v The Queen (1992) 173 CLR 555 and were suited to a case of positive identification, not a case in which the identifying witness had simply singled out persons as looking similar to those whom she saw on the morning and/or night in question. [38] - [39]
- I added:
... The evidence of Ms Murray could not be categorised as positive identification. The learned trial Judge thought (as did the Court of Criminal Appeal in Pitkin (supra)) that it was for the jury to determine
- whether Ms Murray's words amounted to a positive identification, or whether they did not. But the words were plainly inconsistent with any positive identification by Ms Murray. They were consistent with an intention on her part to indicate nothing more than that the persons depicted in the photographs were similar to the persons she had seen ... [45]
41 In the present case, the trial judge was clearly wrong to direct the jury that Mr Gibson's evidence constituted identification of the appellant. It was an error, but not, in my opinion, an error which constituted an irregularity which was such a departure from the essential requirements of the law that it 'went to the root of the proceedings': Wilde v The Queen (1988) 164 CLR 365, 367 (Brennan, Dawson and Toohey JJ). See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 where Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ said:
[N]o single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso: see, eg, Wilde v The Queen (1988) 164 CLR 365 at 373; cf Conway (2002) 209 CLR 203 at 241 [103] per Kirby J, referring to R v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143 at 148 per Herron CJ; R v Henderson [1966] VR 41 at 43 per Winneke CJ; R v Couper (1985) 18 A Crim R 1 at 7 - 8 per Street CJ. [45] - [46]
Sections 30(3) and (4) of the Criminal Appeals Act 2004 (WA)
42 Section 30(3) of the Criminal Appeals Act provides that this court must allow an appeal against conviction by an offender if, in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b) the conviction should be aside because of a wrong decision on a question of law by the judge; or
(Page 13)
- (c) there was a miscarriage of justice.
43 By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
44 In Mackrell v The State of Western Australia [2008] WASCA 228, Buss JA reviewed in detail at [8] - [17] the fundamental propositions relating to the applicability of s 30(4) Criminal Appeals Act 2004. I respectfully adopt Buss JA's elucidation of the principles relevant to the application of 'the proviso'.
45 The question is whether a substantial miscarriage of justice has actually occurred in the present case. To determine that question, it is necessary for this court to undertake the task which an appellate court undertakes in determining whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The following passage from Weiss states the test:
That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence (Driscoll v The Queen (1977) 137 CLR 517 at 524 - 525 per Barwick CJ; Storey (1978) 140 CLR 364 at 376 per Barwick CJ. Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487; Festa (2001) 208 CLR 593 at 631 - 633 [121] - [123] per McHugh J) and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record (Fox v Percy (2003) 214 CLR 118 at 125 - 126 [23] per Gleeson CJ, Gummow and Kirby JJ), the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself. [41]
46 An examination of the record in the present case reveals that this case was primarily a contest between the evidence of Ms West and Ms Graham on the one hand and the appellant and Ms Murray on the other. It was necessary for the jury to be satisfied beyond reasonable doubt that Ms West and Ms Graham were truthful and accurate witnesses before they could accept their testimony in preference to that of the appellant and Ms Murray. The appellant carried no onus of proof and the
(Page 14)
- question was whether, on the basis of the evidence which the jury accepted, they were satisfied beyond reasonable doubt as to the appellant's guilt. They would not have been so satisfied if the evidence of the appellant and her mother raised a reasonable doubt as to the identity of the driver.
47 Once it is accepted that Mr Gibson's evidence was not a positive identification of the appellant as the driver, the prosecution case consisted of:
(a) the evidence of Mr Gibson that:
(i) the driver of the vehicle with which he came into collision was 'about 160 centimetres tall ... curly hair Maori appearance slim build',
(ii) the passenger in the vehicle was a younger girl whom he thought was in school uniform;
(b) the evidence of Ms West that she was a passenger in the vehicle driven by the appellant which reversed into the path of Mr Gibson's vehicle; and
(c) the evidence of Ms Graham that she was approached by the appellant on the afternoon of the accident and asked to take responsibility for driving the vehicle which she did, eventually leading to her prosecution for having made a false statement to that effect.
48 Opposed to this evidence was the evidence of the appellant that she had not been in the vehicle in question at the time it was involved in the collision. She testified that she had been collected by her mother on the day of the accident and had later been contacted by Ms West and advised that 'they'd had an accident'. She had gone to the scene of an accident at the Bassendean railway station, but she was unable to say who had been driving the vehicle at the time it had been involved in an accident. This evidence was supported by the evidence of Ms Murray who testified that she had taken the appellant from work on 15 February 2006 and had dropped her at her children's school at 2.40 pm to 2.45 pm.
49 There was circumstantial evidence against the appellant. It included the following:
(1) the appellant pleaded guilty to driving a motor vehicle whist not being the holder of the appropriate valid driver's licence on 15 February 2006;
(Page 15)
- (2) Mr Gibson put the time of the accident at varying times between 2.10 pm and 2.30 pm, but said that when he returned to the scene shortly after the accident and measured skid marks and the distance from the kerb where the collision had occurred, there was no sign of Ms Graham, Ms West and the appellant (who claimed that she had walked to the scene and arrived there at about 2.50 pm); and
(3) Ms Graham pleaded guilty to making a false statement that she was the driver of the Magna when it was involved in a collision with Mr Gibson's vehicle.
50 The evidence of Ms Graham was clearly that of an accomplice (see Cross on Evidence (7th ed Heydon J D [15085])). No corroboration warning was required in relation to her evidence (Evidence Act1906 (WA) s 50(2)). However, a warning was required about her evidence as a result of the particular circumstances of the case (see White v The Queen [2006] WASCA 62 [70], [77] - [78]). An appropriate warning was given by the trial judge to the jury. They were told that it would be unsafe to rely on her evidence alone, unless, having evaluated it in full, the jury was satisfied as to its truth and reliability.
51 The evidence of Ms West supported that of Ms Graham, but the real question is whether, on the whole of the evidence, this court can be satisfied beyond reasonable doubt that the appellant was guilty of the offence with which she was charged.
52 Due allowance must be made for 'the natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record (Weiss at [41]) and, in my opinion, this is a case in which those natural limitations require that this court cannot conclude beyond reasonable doubt that the appellant was guilty.
53 Much depended upon the assessment of the credibility of Ms West and Ms Graham. In the absence of any independent positive identification of the appellant as the driver, she could only be convicted if the jury accepted beyond reasonable doubt what Ms West and Ms Graham said. As Ms Graham was an accomplice and Ms West was uncertain in her evidence about many matters of detail, it is difficult to say that their evidence alone was sufficient to prove beyond reasonable doubt the guilt of the appellant.
54 The respondent conceded in written submission that 'in considering the application of the proviso, it cannot be said that the prosecution case
(Page 16)
- was overwhelming'. This concession was withdrawn at the hearing of the appeal.
55 Counsel for the respondent provided to the court a helpful summary of the material evidence in the case. This summary pointed to a number of inconsistencies in the appellant's case at trial. What comes out of this summary is as follows:
(1) The appellant said that her father had dropped her at Bassendean railway station on the morning of the incident, and she had not travelled to work with Ms West.
Ms West testified that she had travelled to the Bassendean railway station with the appellant in the Magna sedan and it had been parked on the verge at the station.
(2) The appellant and her mother both said that the Magna was borrowed from time to time by friends of the appellant's brother and it had been borrowed by Ms Graham 'in circumstances that she needed to borrow the car for'. The appellant said that the car was not insured.
Mr Gibson gave evidence that, after the collision, he was told by the driver of the vehicle that it was uninsured.
(3) The appellant said that she was taken from the Grand Chancellor Hotel by her mother at 2.05 pm or 2.10 pm and then driven to her mother's place, arriving at about 2.30 pm. She was then driven by her mother to the school attended by her children at about 2.45 pm
(4) The appellant's mother said that, on the day in question, she had taken the appellant from the hotel and dropped her off at the school attended by her children at 2.40 pm to 2.45 pm. This was because the appellant was getting a ride from the school to netball with her children.
(5) The appellant said that she received a telephone call from Ms West advising that 'they'd had an accident'. The appellant was then at the school, but she had plenty of time to walk to the railway station, which was only five minutes away, and she went down there. She said that she had plenty of time to get back to the school by 3.05 pm. The appellant said that, when she arrived, she could see that there had been an accident. She 'basically ... took the car' and did not care what happened to Ms West and Ms Graham. She said that 'it was my mum and dad's car, they'd damaged it, they didn't want to ring my mum and dad and tell
- them. I took the car. Obviously I shouldn't have drove so I know that'. The appellant said that she got back to the school 'as the bell went'.
- (6) The appellant said that she later explained to her father what had happened to the car. She heard afterwards that the accident occurred when 'they were reversing'.
(7) The appellant admitted that she had pleaded guilty to a charge of driving under suspension, but she contended that she had pleaded guilty 'after the fact', claiming that she had told the magistrate that she had driven the car home from the accident site.
56 Some of this evidence is hard to rationalise with the evidence of Mr Gibson. He said that the accident occurred at about 2.15 pm. After the accident, he rang his wife to ascertain the whereabouts of the nearest police station and he obtained details of the Morley police station. He drove away from the scene, but then decided he would go back to take some measurements of the accident scene. He did this, measuring the distance from the kerb to the position of the skid marks of his vehicle. He then went to the police station and made a statement on which he recorded the completion time at 3.15 pm. He did not encounter the appellant upon his return to the scene for the purpose of taking measurements.
57 Counsel for the respondent questioned whether the evidence of Mr Gibson about his identification from the emailed photographs was of sufficient probative value to be admissible in the first place. That is an issue which need not be determined, because, in any event, the evidence did not constitute a positive identification. At best, the evidence was 'circumstantial identification evidence' as explained by McHugh J in Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [56] - [57]. Such evidence is proof of a circumstance 'usually but not always weak, that with other evidence may point to the accused as the person who committed the crime' [56].
Conclusions
58 The case against the appellant at trial was very largely reliant upon the evidence of Ms West and Ms Graham. Ms West swore that she was in company with the appellant when the appellant drove the Magna vehicle off the verge into the path of Mr Gibson's vehicle. She said that she was in the passenger seat. She said that she was wearing her Delron uniform. Mr Gibson identified the person in the passenger seat as a young-looking woman in a school uniform.
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59 Ms Graham gave evidence that she was requested by the appellant to say that she was the driver of the Magna when it was involved in the collision. She said that she acceded to that request and made a statement to police to the effect that she was the driver. Later, she told police that the statement was untrue and she pleaded guilty to a charge of having made a false statement. It would, indeed, be odd that she should have done this and received a substantial fine if, in fact, she was the driver of the Magna sedan. However, as I have pointed out, there were qualifications about the evidence of Ms Graham. She was an accomplice in law and she admitted to having lied to police about who was driving the vehicle.
60 The appellant and her mother, Ms Murray, swore that the appellant could not have been the driver of the Magna at the time it was involved in the collision. This was because Ms Murray had driven the appellant from the Grand Chancellor Hotel on the afternoon of 15 February 2006 and had driven her either to Ms Murray's home or to the school. I have already mentioned the inconsistency in the evidence about that.
61 The issue was not whether the jury believed Ms West and Ms Graham on the one hand, or the appellant and her mother on the other. The issue was whether, based on the evidence which the jury accepted, they were satisfied beyond reasonable doubt that the appellant was the driver and the other elements of the offence were proven by the respondent. The jury would not have been so satisfied if the evidence of the appellant and her mother created a reasonable doubt in relation to any element of the offence.
62 The case turned on a clash between the testimony of Ms Graham and Ms West on the one hand and the appellant and her mother on the other. This court has not had the opportunity of seeing and hearing from the witnesses. There are, thus, limitations in this court relying wholly or substantially on the record (Weiss at [41]).
63 I consider that it is impossible for this court to conclude that the evidence established beyond reasonable doubt the guilt of the appellant. The appeal must therefore be allowed.
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