R v Abbott

[1996] QCA 443

IN THE COURT OF APPEAL	[1996] QCA 443
SUPREME COURT OF QUEENSLAND

C.A. No. 294 of 1996

Brisbane

[R. v. Abbott]

THE QUEEN

v.

BRENDAN JAMES ABBOTT

Appellant

Macrossan C.J.
Davies J.A.

Cullinane J.

Judgment delivered 12 November 1996

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS: CRIMINAL - Appeal against conviction - armed robbery - admissibility of identification evidence - directions concerning identification evidence - McKinney direction - proviso to s.668E Criminal Code (Qld).

Counsel:	Mrs. D. Richards for the appellant Mrs. L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	11 October 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12 November 1996

The appellant was convicted in the District Court at Brisbane on 7 June 1996 of the offence of armed robbery.

The offence occurred on 20 January 1995 at the Elanora branch of the Commonwealth Bank. In excess of $354,000 was stolen included in which was a total of $9 in old notes which had been set aside to be destroyed.

The offender had entered the bank initially through a fire cupboard from which access to the ceiling of the bank was obtained and upon removal of tiles in the bank's ceiling to the bank itself.

On the morning of 20 January 1995 bank staff were held up by a person who had a pistol and was wearing a balaclava, gloves and items of clothing which were described by members of the staff who gave evidence. The offender had possession of a radio device and wore a small microphone beneath the balaclava. He carried a black bag which contained a baseball cap, wrap-around sunglasses and some pliers. As he left the bank after cash had been handed over to him he was seen by an officer of the bank who was about to enter the building to be wearing wrap-around sunglasses and a baseball cap.

The offender was seen to enter the passenger side of an orange sedan in the carpark of the shopping centre where the bank was located. Shortly afterwards an orange Cortina sedan was located in an area of the carpark and this was identified by one of the witnesses who had seen the offender enter the vehicle as the vehicle concerned.

Identification evidence was led from three witnesses to link the appellant to the vehicle and thus the offence.

On the previous day the vehicle had been sold by a Mr Stripp. He had advertised it for sale and a man was on that date driven in a taxi by a Mr Middleby to Mr Stripp's residence. This person purchased the vehicle from Mr Stripp for $1,750. Mr Stripp's wife was present during the transaction. There was evidence from Mr Stripp, Mrs Stripp and Mr Middleby in the nature of identification evidence. Each of them had been shown a photo board containing some twelve photographs. Mr and Mrs Stripp were shown this on 20 January and Mr Middleby on 25 January. Although none made a positive identification each was inclined to fix on the appellant as the person seen on 19 January. Each purported to identify the appellant in court at the trial. Objection was taken to the admission of the in court identification evidence and this constituted the first ground of appeal.

The second ground of appeal concerned the learned trial Judge's directions to the jury about the identification evidence of each of these three witnesses. We will return to this a little later.

No member of the bank staff purported to make any identification of the offender. The appellant was arrested on 26 March 1995. A number of items were found in

his possession. Included in these was a key to a storage shed at Burleigh.

The appellant was prepared to concede at trial that he had access to the shed. This was done with a view to having excluded certain evidence of items found in the shed, which it was claimed were prejudicial to him. The Crown sought to and was permitted to lead evidence of some of these items. It is clear that the Crown sought to link the appellant to the shed in a way which went beyond a matter of access.

About $80,000 was found on the appellant or in a unit occupied by him. A hand gun and some magazines with ammunition were found in the unit and there was evidence that the weapon found was similar to that used by the offender.

Three bags were found in the shed. A green and black bag contained two other bags within it. One of these was a black bag in which a key to the orange Cortina was found.

Also found were items of clothing and equipment which were consistent with what had been seen to be either worn by or in the possession of the offender.

At the unit $9 in used notes of $1 and $2 denominations were found. This coincided with the total of the used notes which had been stolen although the evidence could not establish the precise composition of the denominations stolen or otherwise identify the notes specifically.

Two address books which contained certain names and telephone numbers were found. These matched details contained in items found on the appellant himself. They were found in one of the bags in the shed.

Included amongst the items found were a number of false documents in various names and equipment associated with the production of such documents. These documents in some cases coincided with documents found on the appellant himself or in his unit or in a shed in Cairns which the evidence associated him with. In addition there was evidence that the appellant was known by some of the names contained in these documents. One of the grounds of appeal related to the trial Judge's refusal to exclude this evidence because of its prejudicial nature.

The address books and the false documents supported the conclusion that the appellant had a significant degree of control over the items found in the shed. These included the key to the vehicle. There was evidence of fingerprints and hairs found which might have suggested that he did not have exclusive access to it.

It appears the key was not found on the initial search but was found on a subsequent occasion. There was evidence that there was no key in the vehicle when it was originally found in the carpark. A tow truck driver said that when on 20 January 1995 he towed it to the police yard he carried out a search of the vehicle (but not the boot) looking for a key before towing it away. Two police officers joined in the search.

On the afternoon of the day of the offence Mr Platz the manager of the bank, noticed what appeared to be a blood stain on the bricks inside the fire cupboard through which entrance had been gained. This had not been noticed by police officers earlier. He pointed it out to bank officers, one of whom was called to give evidence. Photographs were taken on 24 January 1995 and swabs were taken. After the appellant's arrest a blood sample was taken from him. Subsequent forensic examination identified the blood which was said to have been taken from the fire cupboard wall as being that of the appellant.

The jury were informed that the appellant was an escapee who was wanted by the police throughout Australia. The purpose from the defence perspective of having this placed before the jury was to establish a motive on the part of police officers to fabricate evidence against the appellant and in particular to fabricate the evidence concerning the blood and the finding of the key to the vehicle.

So far as the blood is concerned there had been no analysis of the swabs taken from the bank prior to the arrest of the appellant and the taking of a sample of his blood. It was suggested that what ultimately was analysed may not have been the blood which had been taken from the bank wall, but that it may have come from the sample which the appellant had provided. Reliance was placed upon what were said to be some anomalies revealed by the evidence as to the labelling sealing of and dealing with the sample.

The appellant claimed that the jury ought to have been given a warning in relation to the evidence about the blood and the finding of the key to the vehicle. It was suggested that warning should have been in terms similar to that which the High Court said should be given in the circumstances under consideration in McKinney v. The Queen (1990-1991) 171 CLR 468.

There were other grounds of appeal in the notice of appeal but none were pressed apart from the four already referred to.

The case against the appellant was, as will be seen, one in which he was linked to the commission of the offence in a number of ways.

We now turn in a little more detail to what occurred when the three identification witnesses viewed the photo board.

Mr and Mrs Stripp were shown the photo board on the day of the commission of the offence and Mr Middleby a few days later. The transaction involving the vehicle had occurred on the day before the offence.

Neither Mrs Stripp nor Mr Middleby positively identified the appellant at the time each viewed the photo board. In each case the witness chose the photograph of the appellant (no.7 on the photo board) as being similar to the person they saw on 19 January 1995. Mr Stripp used the words "close similarity", Mrs Stripp said "very similar" and Mr Middleby said no.7 was the person "most like" the man he drove to the Stripp's ultimately stating he was "75% sure." Mrs Stripp was later to claim in evidence that she had made a positive identification at the time. It is fair to say Mrs Stripp's evidence of identification fluctuated considerably between what she said at the time of being shown the photo board, the evidence she gave in the Magistrates Court and the evidence she gave at trial. Mr Middleby initially fixed on two other photographs before finally settling on no.7 as the photograph most like the person he drove on that day.

What occurred when each of them inspected the photo board was video-taped and the videos were tendered as evidence.

The first ground of appeal concerned the admission of in court identification by each of the three witnesses. Each was asked whether they saw the person in court who they had seen on 19 January 1995 and each identified the appellant. The dangers associated with such identification evidence are well recognised (see Alexander v. The Queen (1981) 145 C.L.R. 395) and need no restatement here. His Honour warned the jury about such evidence and his warnings were not challenged as being inappropriate or insufficient. Rather it was suggested that no warning would be adequate and the evidence should have been excluded.

There was a discretion to allow such evidence and there were circumstances which, in our view, justified the exercise of the discretion in favour of its admission. The purported in court identification can only be considered in the light of what had occurred on 20 January in the case of Mr and Mrs Stripp and on 25 January in the case of Mr Middleby when each viewed the photo board. That procedure in the case of each had been video-taped and the jury could see and evaluate what had occurred at that time. In addition, there was the evidence of the key linking the appellant to the vehicle, as well as the evidence of the bloodstain found at the bank which, on analysis, was identified as the appellant's blood and the evidence of the finding of the various items including the $9 in old notes. All of these were matters bearing on the exercise of the discretion to admit in court identification evidence.

His Honour warned the jury in terms which are not the subject of any complaint. The request which was made after Mr Stripp's evidence and before Mrs Stripp

was called, suggested that the jury were alive to the risks associated with this evidence.

The exercise of the discretion to admit the evidence was justifiable and indeed

unsurprising.

The second ground of appeal concerned the adequacy of the learned trial Judge's directions to the jury about the evidence of the three identification witnesses. In his outline of argument the appellant points to a number of features of the evidence of each of these three witnesses. This ground of appeal is directed towards certain specific matters which his Honour did not expressly refer to and in respect of which redirections were sought. The matters in respect to which redirections were sought are reflected in ground 2 of the notice of appeal. It should be noted that his Honour, in relation to each of the witnesses, referred extensively to the evidence and made observations about such evidence. The features which were identified in the outline as weaknesses in the out of court identification evidence of each were, in almost all cases, expressly referred to by his Honour.

No redirection was sought in relation to Mr Middleby's evidence nor is there any ground of appeal directed to it, although counsel for the appellant on the trial sought to add a ground of appeal which would allege that his Honour had failed to make any reference to the jury that Mr Middleby had in finally fixing upon photograph no.7 referred to being "75% sure". This appears on the video.

The duty of a trial Judge when directing a jury in a case where the identification evidence represents a significant part of a prosecution case is dealt with in Domican v. The Queen (1992) 173 C.L.R. 555 at pp.561-562:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed "as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case". A warning in general terms is insufficient. The attention of the jury "should be drawn to any weaknesses in the identification evidence". Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. "

It is not necessary that every matter raised be specifically referred to. Whether a trial Judge is obliged to refer to an evidentiary matter or argument will depend on "whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence." See Domican p.561.

There is no reason to conclude that his Honour's treatment of the evidence of Mr Stripp and Mr Middleby whether by way of reference to the evidence or observation failed to satisfy the requirements of Domican.

A matter which was particularly pressed related to the evidence of Mrs Stripp. His Honour took the jury through the evidence Mrs Stripp had given and what she had said at various times on relevant subjects. Her evidence, as we have already mentioned, fluctuated considerably.

The matter upon which emphasis was placed concerned the failure of his Honour to refer to evidence that Mrs Stripp had, shortly before viewing the photo board, seen the appellant's photograph in the television news broadcast in which the appellant was named as a suspect.

The appellant contended that this was an important feature of the evidence bearing directly upon the reliability of Mrs Stripp's purported identification of the appellant at the time she viewed the photo board and her evidence of identification generally. It was suggested that Mrs Stripp, having seen the photograph of the appellant so recently before viewing the photo board, might have been influenced towards photograph no.7 by her recollection of what she had just seen than by a genuine recall of the person who she saw on 19 January 1995.

It is difficult to disagree that this was a matter of such importance that the jury ought to have had their attention directed to it with appropriate reference to the evidence and comment. We think that his Honour ought to have given directions in relation to this matter and that his failure to do so amounted to a misdirection.

The third ground of appeal concerned his Honour's failure to give a warning about the evidence relating to the blood and the finding of the key. It was suggested that the circumstances of this case warranted a McKinney type warning. According to counsel for the appellant this would involve an extension of that principle to circumstances such as those in the present where it was claimed that the appellant was in a position of vulnerability. At one point it was sought to link the need for such a warning to the fact that the appellant was in custody when the sample of blood was taken from him. However, ultimately the appellant was obliged to place the matter upon the basis that, wherever there was an opportunity to fabricate the evidence the warning should be given.

There is not, in our view, any justification for such an extension of the McKinney principle which is concerned with unrecorded and uncorroborated confessions made while a suspect is in police custody. No doubt the particular circumstances of any case may warrant the giving of a warning couched in appropriate terms.

In the present case his Honour did give a warning which suggested the jury ought to take into account the possibility suggested by the defence, and identified the opportunity to do what was suggested. Speaking on the subject of the blood his Honour said at p.788:

"What is alleged, there can be no doubt about it, ladies and gentlemen, is a serious criminal offence. It is alleged that either Inspector Platz or Constable Durre, or both, committed a serious criminal offence, that offence being the fabricating of evidence. In this day and age, ladies and gentlemen, we cannot shy away from the fact that there are numerous reported instances of police fabricating evidence. It is a fact of life, you read it almost weekly in the newspaper. The issue, however, ladies and gentlemen, is not whether police fabricate evidence, it is whether the evidence was fabricated in this particular case.

It is obvious that it would not have been impossible to open the sealed envelope, extract part of the blood sample, seal the envelope up again and then go down to Southport, get into the office of the Scientific Section, go to the refrigerator, remove the sealed bag, cut the sealed bag, swap over the swabs, seal the bag up again. That is not impossible. It is a question, ladies and gentlemen, however, whether it was done in this particular case ...".

In part this ground of appeal involved an objection to the opening remarks in the above passage. It is, we think undoubtedly correct, as was pointed out in McKinney at p.477, that whilst a challenge to the evidence of the kind which was advanced here inevitably raises the possibility that police officers have engaged in wrongdoing, the jury should not be directed in terms which suggest that the question to be considered is whether the police have acted illegally or committed perjury.

However while such remarks are to be avoided as diverting the jury from the real issue, they do not amount in our view to a misdirection resulting in a mistrial. They have to be assessed in the light of the trial Judge's directions to the jury as a whole. In some respects the trial Judge's summing up to the jury was favourable to the appellant (see, for example, the way in which the trial Judge suggested to the jury they might deal with the blood when considering the various items of circumstantial evidence). The appellant through his counsel was permitted to adduce evidence that one of the police officer's conduct which was the subject of attack had been committed for trial in respect of an offence for which he did not ultimately stand trial. His Honour referred to this evidence.

The learned trial Judge also in our view dealt adequately with the suggestion raised in relation to the key which, it was suggested, may have been planted by the police.

The final ground of appeal relates to the admission of evidence of documents found in the shed providing various forms of identification and the means of making these documents. There was evidence from witnesses linking the appellant to the use of certain names and there was evidence that the appellant had in his possession or in his unit or in a shed at Cairns (which the evidence linked him) with documents which matched those found in the shed at Burleigh. His Honour's ruling which appears at p.162 of the record limited the evidence of such documents to those which could be directly related to the appellant by other evidence.

This evidence was admissible as linking the appellant to the shed in which the bags were found. Those documents together with the address books link the appellant to those bags and the key to the vehicle.

We return then to what we consider to have been a misdirection in respect of the identification evidence of Mrs Stripp. The consequence of a misdirection in relation to identification evidence was dealt with in the joint judgment of the High Court in Domican at p.565.

"A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence."

It is necessary to consider what flows from the misdirection here.
The evidence against the appellant has already been canvassed. There was

evidence independent of Mrs Stripp's evidence linking the appellant to the vehicle. There was evidence independent of all of the identification witnesses linking the appellant to the vehicle. Moreover a significant body of evidence linked the appellant to the commission of the offence apart from that linking him to the vehicle. The most significant of this is of course the evidence of the appellant's blood being found at the scene. In addition the evidence of the possession of the $9 in mutilated notes was significant. There was also evidence of various items of property found in the shed which were consistent with what had been observed on the offender or in his possession.

In many respects Mrs Stripp's evidence could be regarded as the least acceptable of the identification evidence.

When the evidence is viewed as a whole it is impossible to resist the conclusion that the case against the appellant was such a compelling one that the proviso to s.668E of the Criminal Code should be applied.

We would dismiss the appeal.