Peck v The State of Western Australia
[2005] WASCA 20
•3 FEBRUARY 2005
PECK -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 20
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 20 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:133/2004 | 3 FEBRUARY 2005 | |
| Coram: | STEYTLER P WHEELER JA ROBERTS-SMITH JA | 3/02/05 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed | ||
| A | |||
| PDF Version |
| Parties: | SHERYLEEN PECK THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal Extension of time 9 months out of time Exceptional circumstances must be shown unless miscarriage of justice if extension refused Criminal law Recognition evidence Whether "identification direction" required Criminal law Appeal Direction on "three possible scenarios" Whether misdirection Criminal law Evidence Exculpatory statements in video record of interview Not tendered Whether unfairness |
Legislation: | Nil |
Case References: | Alexander v The Queen (1981) 145 CLR 395 Al-Hashimi v The Queen (2004) 181 FLR 383 Arthurs v Attorney-General (Northern Ireland) (1970) 55 Cr App Rep 161 Bardsley v The Queen [2004] WASCA 251 Cameron v The Queen (2004) 142 A Crim R 424 Carr v The Queen (2000) 117 A Crim R 272 Davies v The Queen (1937) 57 CLR 170 Domican v The Queen (1992) 173 CLR 555 Herbert, Sampson & Wurrawilya v The Queen (1982) 42 ALR 631 Kelleher v The Queen (1974) 131 CLR 534 Kelly v The Queen (2002) 129 A Crim R 363 Kochnieff v The Queen (1987) 33 A Crim R 1 Liberato v The Queen (1985) 159 CLR 507 Pitt v Curchin [2004] WASCA 17 R v Beck [1990] 1 Qd R 30 R v Boardman [1969] VR 151 R v Newsome (1980) 71 Cr App Rep 325 R v Turnbull [1976] 3 All ER 549 R v Williamson [1972] 2 NSWLR 281 R v Wogandt (1988) 33 A Crim R 31 Small v The Queen (1994) 33 NSWLR 575 Straker v The Queen (1977) 15 ALR 103 Wright v The Queen (No 2) [1968] VR 174 Burchielli v The Queen [1981] VR 611 Leary v The Queen [1975] WAR 133 Murray v The Queen (2002) 211 CLR 193 R v Soma (2003) 212 CLR 299 R v Young [2004] QCA 84 Shaw v The Queen (1952) 85 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PECK -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 20 CORAM : STEYTLER P
- WHEELER JA
ROBERTS-SMITH JA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
File No : IND CAR 20 of 2003
(Page 2)
Catchwords:
Criminal law - Appeal - Extension of time - 9 months out of time - Exceptional circumstances must be shown unless miscarriage of justice if extension refused
Criminal law - Recognition evidence - Whether "identification direction" required
Criminal law - Appeal - Direction on "three possible scenarios" - Whether misdirection
Criminal law - Evidence - Exculpatory statements in video record of interview - Not tendered - Whether unfairness
Legislation:
Nil
Result:
Application for extension of time dismissed
Category: A
Representation:
Counsel:
Applicant : Mr P G Giudice
Respondent : Mr S E Stone & Mr C G Astill
Solicitors:
Applicant : George Giudice Law Chambers
Respondent : State Director of Public Prosecutions
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Case(s) referred to in judgment(s):
Alexander v The Queen (1981) 145 CLR 395
Al-Hashimi v The Queen (2004) 181 FLR 383
Arthurs v Attorney-General (Northern Ireland) (1970) 55 Cr App Rep 161
Bardsley v The Queen [2004] WASCA 251
Cameron v The Queen (2004) 142 A Crim R 424
Carr v The Queen (2000) 117 A Crim R 272
Davies v The Queen (1937) 57 CLR 170
Domican v The Queen (1992) 173 CLR 555
Herbert, Sampson & Wurrawilya v The Queen (1982) 42 ALR 631
Kelleher v The Queen (1974) 131 CLR 534
Kelly v The Queen (2002) 129 A Crim R 363
Kochnieff v The Queen (1987) 33 A Crim R 1
Liberato v The Queen (1985) 159 CLR 507
Pitt v Curchin [2004] WASCA 17
R v Beck [1990] 1 Qd R 30
R v Boardman [1969] VR 151
R v Newsome (1980) 71 Cr App Rep 325
R v Turnbull [1976] 3 All ER 549
R v Williamson [1972] 2 NSWLR 281
R v Wogandt (1988) 33 A Crim R 31
Small v The Queen (1994) 33 NSWLR 575
Straker v The Queen (1977) 15 ALR 103
Wright v The Queen (No 2) [1968] VR 174
Case(s) also cited:
Burchielli v The Queen [1981] VR 611
Leary v The Queen [1975] WAR 133
Murray v The Queen (2002) 211 CLR 193
R v Soma (2003) 212 CLR 299
R v Young [2004] QCA 84
Shaw v The Queen (1952) 85 CLR 365
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1 ROBERTS-SMITH JA: This is an application for extension of time to file a notice of application for leave to appeal dated 11 August 2004 and an application for leave to appeal against conviction dated 4 August 2004. The application for extension of time is supported by an affidavit of the applicant sworn on 4 August 2004.
2 The applicant was convicted in the District Court at Carnarvon on 27 November 2003. She is therefore some 9 months out of time. Section 695(1) of the Criminal Code requires that notice of application for leave to appeal be filed not later than 21 days after the date of conviction.
3 In her affidavit the applicant says, in brief, that following her conviction and sentence to 4 years' imprisonment with eligibility for parole, she made an approach to the Aboriginal Legal Service and there was unfortunately a delay in the assistance that was able to be provided by them. It was not until early January 2004 that a solicitor of the Aboriginal Legal Service told her, when she was at Greenough Regional Prison, that he had received the transcript of the trial but had not even then had an opportunity to read it.
4 He spoke to her again in March 2004 but gave no advice on the appeal until early May last year, when he telephoned and said that he had looked at the transcript and there was nothing he could do to assist. That was the outcome of her inquiries of the Aboriginal Legal Service between January and May 2004.
5 In June 2004, other inmates at Greenough Regional Prison suggested she telephone her present solicitor for advice about an appeal. She eventually managed to speak to somebody at the solicitor's firm and she retained that firm on 15 June 2004. She was told that the solicitors would consider whether there were grounds for appeal and in early August she was advised that the case was one which ought to be referred to this court.
6 In relation to an application for extension of time, the law is now well settled. The principles were recently restated in Cameron v The Queen (2004) 142 A Crim R 424 by McKechnie J, with whom Steytler J, as he then was, and Wallwork AJ agreed at [28]:
"The principles governing the grant of leave when there has been a long delay have been settled: Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985. If there has been a long and unexplained delay exceptional circumstances must be shown before an extension of time will be granted unless it can be demonstrated that there
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- will be a miscarriage of justice if an extension is not be granted. ..."
7 Narkle was cited and explained by Templeman J in Bardsley v The Queen [2004] WASCA 251 at [79] to [82]. His Honour there pointed out that in Narkle the delay had been 4½ months and set out a passage from the judgment of the Chief Justice in that case, Burt CJ, to the following effect:
"(s 695(1)) contains no express criteria controlling the Court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of 4½ months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. The discretion has always been exercised by this Court having regard to those two broad considerations …"
8 As Templeman J then pointed out in Bardsley, that principle has been applied consistently over the years. At [82] his Honour explained that there is very good reason for insisting on strict compliance with the time limit. His Honour said:
"If there has been a misdirection resulting in a miscarriage of justice, there will almost inevitably be an order for a new trial. In such circumstances, it is important that the re-trial take place as soon as possible. The crucial evidence in criminal trials is very often the viva voce evidence of witnesses. Although they will no doubt have given statements relatively soon after the events in question, these statements are not admissible: and recollections fade. That is the reason the burden upon an applicant to show cause why an extension of time should be granted will increase as time goes by."
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9 I note in that case Wheeler J, dissenting, thought that the line of authority in Western Australia beginning with Narkle shows there may be occasions on which more must be shown to persuade the Court to grant an extension of time and that there is a ground of appeal which would have been successful had the application been made within time. Given the view I have reached about the grounds of appeal in this case it is sufficient for me to apply the test whether there will be a miscarriage of justice if the extension is not granted. That brings me to the grounds of appeal.
10 Ground 1 is that his Honour the learned trial Judge erred in pointing out to the jury that this case was more a case of recognition than identification. The particulars of that ground are that the direction had the effect of reducing the importance in the mind of the jury of his Honour's warning to the jury in relation to convicting on the basis of identification evidence.
11 Ground 2 is that his Honour erred in telling the jury that there were three possible scenarios in the trial. The three scenarios were:
(1) the complainant and Inman were truthful and accurate, which was the prosecution case;
(2) the complainant and Inman made a mistake in their identification of the accused; and
(3) the complainant was assaulted by someone else and she and Inman concocted the complaint, that being described as the defence case.
12 The particulars given to that ground are:
(a) his Honour by telling the jury that there were only three possibilities gave the jury the impression that they had to decide which of the three possibilities actually happened;
(b) the question for the jury was whether the prosecution had proved the case beyond reasonable doubt;
(c) for example, there is a fourth possibility in this case and that is that the jury were left in doubt on all the options and could not make any finding beyond reasonable doubt. If the jury decided this, they would have been obliged to acquit the applicant.
13 Ground 3 is that the applicant was deprived of a fair trial by the prosecution refusing to admit into evidence the two video records of interview between the applicant and the police.
14 The particulars of this ground are that:
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- (a) in both of the video records of interview the applicant maintained that she was not guilty of the alleged offences; and
(b) the video records of interview were admissible and should have been admitted into evidence by the prosecution because they tended to demonstrate consistency in the applicant's evidence and were relevant to his credibility.
15 The prosecution case, briefly, was as follows. The complainant, Gail Randall, was living with her de facto husband, Mark Inman (also known as Penny) at Tonkin Crescent in Carnarvon. The applicant, Sheryleen Peck, was Mark Inman's previous de facto wife. The applicant and Inman had lived together for something in the order of 10 years and had five children. From August 2002 Mark Inman lived with Gail Randall at the Tonkin Crescent address in Carnarvon. They had been together apparently since about 1998, or four or five years.
16 Gail Randall and the applicant were cousins and had known each other all of their lives. There was some suggestion that there were problems between Randall and the applicant ever since she and Inman had become involved with each other in 1998.
17 On Friday 2 August in the early evening Randall and Inman were sitting in the backyard having a glass of wine and a cigarette. At about 8 pm Randall decided to go to bed. Inman remained outside. The bedroom is at the end of the hallway on the left hand side of the house.
18 Before she went to bed, the complainant went to the toilet in the bathroom and left the toilet light on. That is significant because the toilet light shone into the bedroom, giving some light to that area. Randall lay on the bed on her right hand side, so that she was facing away from the door and away from the light. She was not there for very long when suddenly, and without warning, she received a blow from a hard object to the left side of her face. She heard nothing prior to that.
19 She lay there composing herself for a few moments, then sat up on the bed, dazed, and noticed three figures standing in the bedroom near the wardrobe. That was a dark area. At first she did not recognise the figures at all, but one of them moved towards her and into the light that was shining from the toilet and she immediately recognised the applicant. The applicant had a knife in her hand and subsequently assaulted the complainant. For present purposes it is not necessary to give details of that.
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20 Following the assault, the three women walked out of the bedroom, down the hallway and out of the front door. The complainant went in to the kitchen and called out to Inman, who by then had heard her screams. He came inside and saw her with blood coming down from her head. She told Inman that it was the applicant who had assaulted her.
21 The two of them went to the front door to see where the three women had gone. Inman's evidence was that he saw three women crossing the road, and although he did not see the applicant's face, he was able to recognise her from the back. The police were then called and subsequently took photographs and the complainant made a statement, and the applicant was subsequently charged.
22 Again putting it very briefly, the defence case was that on that afternoon the applicant went to a friend's home at 6 Ridley Place, Carnarvon, some distance from the complainant's house at Tonkin Crescent, and remained there with relatives and friends until the following morning. The first the applicant knew about the incident, according to her, was when she was told about it while fishing the following morning. It was suggested that the complainant's injuries had been inflicted on her by Inman, and the two of them were falsely accusing the applicant to protect Inman.
23 The first ground of appeal concerns his Honour's directions in relation to recognition and identification. To understand the point, and the other grounds of appeal, it is necessary to refer more particularly to aspects of the evidence.
24 Randall's evidence was that the applicant was her first cousin, whom she had known just about all her life.
25 As I have indicated, she described the situation in the house and the toilet light shining into her bedroom. She had not been in the bedroom long before she was struck. She said in her evidence that she was stunned for a few moments, although when she sat up and looked to see the three figures standing there, they looked like three females standing in the darkness and at that stage she was not able to recognise anybody. It was then that she saw the middle one move out from the middle, because they were all standing in a line, and she moved into the light and she could see her face and it was the applicant. She was able to see that because of the light from the toilet.
26 Following the assault, the complainant says that when the three women left, she called out to Inman and showed him the front door, they
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- opened the door and the three women were walking across the road. As they were standing at the front door she said, "That's the one in the middle there, Sheryleen Peck."
27 In cross-examination she agreed that the police arrived at the house about 8.36 pm. It was put to her that she had telephoned her sister before the police arrived and indeed before phoning the police because she wanted to organise or concoct something to protect the person who had actually assaulted her, but she denied that. It was expressly put to her that the person who assaulted her was not the applicant but Mark Inman. She was adamant in her response that it was the applicant.
28 Inman himself confirmed that he had lived with the complainant for some five years and referred to his previous relationship with the applicant which was one which had lasted for 11 or 12 years and produced five children. His evidence was to the effect that the applicant was jealous of his relationship with Randall and that had been the subject of some conflict over a period of time.
29 He described incidents earlier that evening where apparently Aboriginal kids, as he described them, were causing a problem throwing rocks at dogs at the back of the houses. He said he jumped the back fence about two houses down and it was after he came back from that that he walked into his house and saw the complainant standing there with blood on her face and she said that Sheryleen Peck did it. He was asked then what he did and said that they just went to the front door and stood there "and I seen Sheryleen walking across the road". He described her as having light clothing on and said she walked back across the road to some of her friends' place. There were three females altogether. All he could see was her back.
30 When he was asked how he could say it was Sheryleen Peck, he said he knew her (AB 40):
"… by the way she walks and the way she acts and all of that. By living with her for that sort of amount of time, I should know how - how people walk, they way they react, and all of that, when they have a few beers, and all of that."
31 He did not notice whether anyone had anything or any of the three women had anything in their hands.
32 In cross-examination he adhered to his evidence in chief that he was able to recognise the applicant walking away, although he said he could
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- not recognise the other people. It was put to him that he did not see the applicant walking away because she simply did not go there that night, but he maintained his evidence that she was there and he had seen her.
33 The applicant gave evidence to the following effect (AB 49-63) She said she was 36 years of age and had five children with Inman. She denied ever having been inside Gail Randall's house at all. She described certain physical injuries she had suffered, including a smashed kneecap three years previously which resulted in her having wires in her knees. That was the result of a fall in a house and it affected the way she walked.
34 She also said she had other injuries - a head injury that was caused by Inman when he hit her, but she never reported him. That was around 1984, around Balgo, she said. She got a punch from him and she was drunk at the time and fell heavily against the back of her head and it resulted in a blood clot in her brain which required hospitalisation. She mentioned another injury, a broken arm, but said she could not go to the doctor "when we were there", and again she said that came from "Mark"; as she described him, Mark Penny. She thought that was around 1984-85 too. She described the broken arm as having occurred when she put her hand up apparently to protect herself from a blow, and she also mentioned receiving a cut in her head and her hand.
35 She denied having gone to the premises at 23 Tonkin Crescent on 2 August. She said she went to 6 Ridley Place, and that is where she camped and went fishing the next day, which was when she heard about Randall's injuries. She said she stayed there and did not move from there until the next day. She went there with her two daughters, Tamara and Peta. She denied that they were drinking alcohol at that time and said they had a couple of cups of tea and a couple of cones of cannabis. She said that her daughters Tamara and Peta were there all the time, apart from one occasion when the occupant of the house sent them off to return a video and they bought some chops for her as well. The two daughters at that time were said to be 13 and 16 years of age.
36 She said that the girls went over to return the videos and get the chops about 6.30 pm or earlier "because Woollies shuts at 8 o'clock", so it was, she said, about 6.00 or 6.30 - 7.00, so they would "catch Woollies". She again reiterated that she had not moved from that house until the following day, the Saturday. She was the first one to go sleep sitting up on a chair in the lounge as a result of, as she put it, grog from the previous day.
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37 She said the girls got back just when the last episode of "The Simpsons" was on, so it would have been about 8.30 in the evening. She named a number of other people who had been at the house. When she was asked whose idea it was that she should stay at that house with her daughters she said that it was she, being sick from the grog, did not feel like moving, so the occupant, her friend, offered them a mattress for the night and that is where they camped. She denied going to Tonkin Crescent or assaulting the complainant.
38 In cross-examination, asked how sick was she as a result of her drinking previously, she explained that "when you binge for a couple of days you get pretty - your stomach gets pretty messed up". She said she had been bingeing for a couple of days, mainly on moselle, and that was on the Wednesday and Thursday and that is why she was sick on the Friday.
39 She was not able to say how much she had had to drink but she was still "crook from the grog" on 2 August and also smoked cannabis on that day because smoking cannabis and a cup of tea and a drink of water made her feel better. It relaxed her body. She did say she was not drunk on the night that these events occurred, although she was recovering from the two-day binge, because she had not had anything to drink that day.
40 The applicant's daughter Peta Peck was 17 years old at the time. She gave evidence that they went to Frances Bung's house that afternoon about 6 pm, although she was uncertain of that. She remembered they went fishing the next day which was the first time they heard what happened to Randall.
41 She was asked whether the applicant left Bung's house while she was there and she said she did not although she said she went and took some videos back and then returned. She went with her sister. She said the video shop shut about 9 pm. She said her mother did not go with them. She adhered to that account in cross-examination.
42 The next witness was Frances Bung. She said that the applicant and her daughters were at her house at 6 Ridley Place on that night and the following morning they heard that the applicant had been assaulted. They were at the Yacht Club at the time, fishing, and when the applicant was told what had happened to the complainant, according to Bung she was surprised. She said, "Why are they blaming me for it? I didn't do anything. I was at your place last night."
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43 She said that the applicant and the girls arrived there about 4 o'clock and the girls later went down to take her movies back before they were overdue. However, she then said (at AB 74):
"'… they went down to take my movies back because they were overdue.
Who went to take the movies back?---Tamara, Peta and, as far as I know, Sheryleen.
Are you sure it was Sheryleen?---As far as I know.
As far as you can remember?---Yep.
What time of the day was that?---That was about 5.00, 6.00.
How long did it take them all to come back from the - - -?---Maybe about an hour.
An hour, so what time did they get back?---They would've been back at about 7.00. …"
44 That evidence as to what the applicant had said in response to being told what had occurred to the complainant the following morning was, of course, inadmissible as hearsay, being no more than a prior exculpatory out of court statement by the applicant. Nonetheless there was no objection taken to it.
45 It is perhaps somewhat surprising that the first suggestion that the applicant left the Ridley Place house that evening in the company of her two daughters came from a witness called by the defence.
46 Continuing her account of what had happened that night Ms Bung explained that she was still up when the applicant retired to bed or went to sleep on the lounge chair and that would have been between 8.30 and 9 pm. She had been in the lounge chair before the football came on, as she put it, "Since she came back from the shop" (AB 75). She said it was still light when they got back. It was just after dark, just getting a bit dark, and again said it was about 6 to 7 pm. She was then asked (in evidence-in-chief):
"Apart from saying that Sheryleen went to take the videos back and buy some chops, did you see Sheryleen leave your house at all that night?"
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- and she said, "No".
47 In cross-examination she was asked quite a lot of questions about her condition at the time and I need not repeat that. It was put to her that she knew that the applicant and her two daughters all left the house to take the videos back to the video shop and she agreed that was so. She was asked, "There's no doubt about that in your mind?" and she said, "As far as I can recall." Asked (AB 78):
"And you wouldn't have a clue, would you, Mrs Bung, how long they were gone for?---I kept looking at the time and I knew it usually takes about an hour."
48 She said she kept looking at the time to see what time she was coming back, that is to say, the applicant, because she wanted to sit down with her and talk about some personal matters.
49 I return now to ground 1. His Honour's direction on this is at AB 96 to 98 and I set it out in full. His Honour said:
"So although not put to you by either of the counsel, I feel I should say something about that second possibility just briefly, that is, the possibility of mistake of identification. This is because mistakes in identification sometimes do occur in the law. It has happened over the years and there have been occasions when innocent people have been known in the past to have been convicted on mistaken identification evidence.
As I say, the possibility of a mistake in the identification by Gail Randall and Mark Inman was not raised by either counsel before you, understandably I think, because the complainant, Gail Randall, and Mark Inman both knew the accused very well. The accused is Gail Randall's first cousin - I think Gail Randall had known her all her life - and Mark Inman was the accused's former de facto of many years, perhaps 10 years or more, and the father of the accused's five children. So the complainant, Gail Randall, and Inman purport to identify someone they know very well.
You may think that that greatly reduces the risk of a mistake. Nevertheless, you should examine the evidence carefully. The complainant says she saw the accused's face when she came forth from the dark into the light from the toilet - the light coming from the toilet - so that's a circumstance of the alleged
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- identification. The complainant, however, had just been dealt a heavy blow and you need to examine the circumstances of that identification, remembering that it is an identification by somebody of somebody they know very well as distinct from a stranger, which I will come to in a minute.
Mark Inman purports to identify the accused from the back of her. He didn't see her face. He saw her with the other two, walking away from a distance of 30 to 50 to 100 metres in street lighting. You need to consider whether you accept a person can identify another they know very well from the rear. You consider the aspects of body shape, height, build, hairstyle and also the way they walk, etcetera. Both the complainant and Inman had been drinking to some extent and I think the complainant had been smoking cannabis, so you also consider that.
I think it's fair to say that as a generalisation problems with mistaken identification more often arise when the witness doesn't know the person identified. For example, you might have a case where a bloke is sitting at a cafe eating a sandwich and a fellow walks past - a person he has never seen before or since walks past and the bloke sitting down says, 'That was the man I saw rob the bank.' You can see the potential for mistaken identification in that sort of circumstance when they are not known to each other.
As I say, generally you get more risk of mistakes in that sort of scenario than when you have a situation where somebody knows somebody very well, and that's not the case here that they are strangers. They knew each other very well. Here, really it's more a case of recognition than identification you might think, but I think you need to know nevertheless that there is a need to look at the evidence of identification carefully before acting on it."
50 In my opinion his Honour was quite correct to describe the evidence of the complainant and Mark Inman as evidence of recognition rather than identification. There is a significant difference between identification evidence coming from witnesses not knowing the accused and from those knowing him or her. The first category really is identification evidence properly so called, whereas the second is better described as recognition.
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51 The distinction is not always recognised in the cases and there are instances in the authorities in which what is really identification has been referred to as recognition. Nonetheless the distinction, as I say, is important because a warning, or at least a different warning, is required in the case of identification evidence but not necessarily the latter, that is to say, recognition evidence (see Arthurs v Attorney-General (Northern Ireland) (1970) 55 Cr App Rep 161, Wright v The Queen (No 2) [1968] VR 174). In R v Turnbull [1976] 3 All ER 549 Lord Widgery noted, at 552:
"Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognise someone whom he knows the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."
52 The distinction between identification and recognition evidence was recognised by this court in Al-Hashimi v The Queen (2004) 181 FLR 383 in which Miller J, with whom Wheeler and Heenan JJ agreed, set out with approval a passage from the judgment of McKechnie J in Kelly v The Queen (2002) 129 A Crim R 363, explaining the different conditions which apply to different forms of evidence of this kind.
53 On the distinction between identification and recognition evidence and whether or not a warning is required in relation to the latter, the observations of Blow J, with whom Cox CJ and Slicer J agreed in Carr v The Queen (2000) 117 A Crim R 272 at [59] to [61], are helpful.
54 His Honour, at [59] noted that there seemed to be few reported "recognition" cases involving the recognition of individuals previously known to witnesses, as distinct from the subsequent identification of individuals by witnesses who first saw them at or near crime scenes. His Honour then referred to Arthurs and Wright and, at [60], referred to R v Boardman [1969] VR 151 and Turnbull.
55 In relation to Turnbull, which I have already mentioned, his Honour set out the passage just quoted, and continued at [61]:
"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,
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- 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."
56 In the present case, the applicant was well known to both the complainant and Mark Inman. I need not repeat the circumstances of their relationships and knowledge of each other. This was unquestionably not a case in which a full identification direction of the kind referred to in such cases as Daviesv The Queen (1937) 57 CLR 170, Kelleher v The Queen (1974) 131 CLR 534, Alexander v The Queen (1981) 145 CLR 395 and Domican v The Queen (1992) 173 CLR 555 was required.
57 Here, the direction given by his Honour did embody some elements of a general identification direction and to that extent it was, if anything, unduly favourable to the applicant. He quite correctly then referred specifically to the circumstances which in this case more particularly affected the evidence of recognition, notably the lighting conditions, the fact the complainant had just been dealt a heavy blow, the fact that Inman saw the person only from behind (although his Honour incorrectly described it as being under street lighting, of which there was in fact no evidence) but from a distance of up to 100 metres.
58 Again in relation to that, as Mr Stone for the respondent points out, the actual nomination of a distance by Mr Inman probably is largely meaningless given that his description in the Court was of a distance which was within the confines of the Court and therefore most unlikely to have been anything like 100 metres. His Honour also adverted to the fact that both the complainant and Inman had been drinking and the complainant had been smoking cannabis.
59 The ground of appeal claims his Honour's direction had the effect of reducing the importance of his warning to the jury of the danger of convicting on the basis of identification evidence. That seems to presuppose what I have referred to as a full identification direction was required. For the reasons I have indicated, it was not. The direction
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- which was given was correct as a matter of law and fact and in my view was appropriate and sufficient. I would not uphold this ground.
60 I turn to ground 2. It is true, as ground 2 asserts, that his Honour told the jury there were three possible scenarios. This was at AB 96:
"You will know that the accused denies she was there at all and she has adduced evidence to support her claim that she was elsewhere at the time. That being the set-up of the case or the situation of the case, then there are three possibilities if you think about it, three possible scenarios, if you like. Number 1: the complainant and Inman, that is Gail Randall and Inman, are truthful and accurate, the accused was there with two others and the accused with the others did assault the complainant; that is of course the prosecution case.
The second possibility is that the complainant and Inman have made a mistake in their identification of the accused; in other words, there were three people involved, the complainant was attacked, but not by the accused and the accused was not one of them. That's the second possibility. The third possibility is that the complainant was assaulted by someone else, perhaps her de facto Inman was a suggestion - it's merely a suggestion - and that she and Inman have concocted this complaint falsely charging the accused out of spite or jealousy, and so forth. That is really the defence case."
61 His Honour then continued the passage I have already quoted at [ ] above. The point raised by this ground is that which was addressed by the High Court in Liberato v The Queen (1985) 159 CLR 507. At page 515 of that case Brennan J, as his Honour then was, said:
"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a Judge to invite the jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond a reasonable doubt
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- of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."
62 I discussed that passage and other authorities on the point in Pitt v Curchin [2004] WASCA 17 at [12] to [21]. I adopt without repeating what I said there.
63 I do not think the direction complained of here had the vice asserted. What his Honour was referring to were the factual possibilities which arose out the way counsel had conducted the case. He was, as he was required to do, identifying the factual issues which arose on the case for their consideration.
64 The particular direction has to be considered in the context of the evidence given in this two day trial, the addresses of counsel to the jury and his Honour's directions as a whole. At the outset of his directions the learned trial Judge explained the applicant was entitled to the presumption of innocence and that the jury could only reach the view the prosecution had proved her guilt if they were satisfied of that beyond reasonable doubt.
65 He repeated the requirement of proof beyond reasonable doubt when explaining each element of the individual offences charged. At the conclusion of his directions his Honour said at AB 102:
"So that's what each counsel have put to you, each case as put to you. If, having considered all of the evidence and all I have told you, you're not convinced beyond reasonable doubt that the prosecution has proved its case with respect to the charge you're considering, then you should find the accused not guilty. Suspicion is not enough. On the other hand, if you are convinced beyond reasonable doubt the prosecution has proved its case, then you should find the accused guilty of that charge."
66 Whilst in the circumstances of this case it may have been preferable for his Honour to have specifically and in terms directed the jury that if they were uncertain what happened they should acquit, the direction his Honour did give, in my view, effectively encompassed that notion, and the fact that he did not do so did not result in any disadvantage to the applicant nor any miscarriage of justice. It was made quite clear to the
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- jury on several occasions that they could not convict unless satisfied beyond reasonable doubt of all elements of each offence.
67 In reminding the jury there were three possible scenarios on the evidence, his Honour was correctly reflecting the case before them. His Honour did not say they had to choose one of the three and the proposition that they may have thought that is, in my view, entirely excluded by the directions about reasonable doubt generally and in particular that at AB 102 to which I have referred.
68 I am not persuaded his Honour's direction was likely to have precluded the jury from ultimately determining the case on the basis of whether or not the prosecution had satisfied them beyond reasonable doubt of each element of each offence. This ground, in my view, also fails.
69 Ground 3 is entirely misconceived. It pleads that in her police record of interview the applicant maintained she was not guilty.
70 What the applicant said out of Court on some other occasion, whether to police officers or anyone else, claiming her innocence was entirely inadmissible (R v Beck [1990] 1 Qd R 30). Things said out of Court by an accused person are only admissible as to the truth of what they assert if they constitute admissions against interest, (Straker v The Queen (1977) 15 ALR 103) although where the prosecution seeks to rely upon incriminating parts of a statement by an accused which also contains exculpatory material, the law requires as a matter of fairness that the whole statement be tendered (R v Williamson [1972] 2 NSWLR 281, Herbert, Sampson & Wurrawilya v The Queen (1982) 42 ALR 631 and Small v The Queen (1994) 33 NSWLR 575). However, mere denials out of Court have no probative value. They are therefore irrelevant and inadmissible.
71 Evidence of this kind infringes the rule against self-corroboration, it infringes the rule against hearsay and, as I have said, it is irrelevant and inadmissible as having no probative value. The prosecution cannot be compelled to adduce out-of-court denials or wholly exculpatory statements of an accused (R v Newsome (1980) 71 Cr App Rep 325, R v Wogandt (1988) 33 A Crim R 31 and Kochnieff v The Queen (1987) 33 A Crim R 1) and nor can an accused either elicit them in cross-examination of prosecution witnesses or give evidence of them. This ground is accordingly based on a wholly incorrect legal premise and cannot possibly succeed.
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72 For these reasons the applicant has not demonstrated that there will be a miscarriage of justice if her application for extension of time is not granted. I would dismiss the application.
73 STEYTLER P: I agree with Roberts-Smith JA. I would only add, so far as ground 3 is concerned, that, insofar as video evidence can be regarded as real evidence, the evidence in this case was nonetheless inadmissible as being collateral evidence designed merely to self-corroborate a witness's evidence as a matter of credit and serving no other function. In my opinion, there was no obligation on the State to lead it in those circumstances.
74 WHEELER JA: For the reasons given by Roberts-Smith JA and by his Honour the Presiding Judge, it is my view that the proposed grounds have no merit whatever. Having regard to the lengthy delay and the inadequacy of the explanation, I too would refuse leave.
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