R v Collier - [2007] SASC 450

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLLIER
[2007] SASC 450
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Layton)
20 December 2007
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - DIRECTION TO JURY - ADEQUACY OF WARNING
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - CIRCUMSTANTIAL EVIDENCE
Appellant convicted of robbery but acquitted of aggravated robbery - evidence against him included three eye-witness descriptions - witness descriptions similar - appellant described as having distinctive markings - burn marks/scarring on neck and star-shaped tattoo on left ear - one witness confused about positioning of star-shaped tattoo - accused identified from photographic line up - accused identified in court - appellant claimed conviction unsafe and unsatisfactory because witness testimony unreliable - whether judge gave adequate direction as to identification evidence - whether defence case left to jury in a fair, full and balanced way.
Held: Verdict not unsafe and unsatisfactory, directions in relation to identification correct - no unfairness in direction - appeal dismissed.
R v Bennett & Ors (2004) 88 SASR 6; Festa v The Queen (2001) 208 CLR 593, discussed.
R v Sutherland Judgment No 4346, unreported, CCA, 1993; R v Blair & Kipa [2005] SASC 319, considered.

R v COLLIER
[2007] SASC 450
Court of Criminal Appeal: Anderson, White and Layton JJ
ANDERSON J.
Introduction

On Thursday 2 August 2007 a jury (by majority) acquitted Gary Mark Collier of the charge of aggravated robbery but found him guilty of robbery by a unanimous verdict. This is an appeal by permission on two grounds and an application for permission to appeal against that conviction on three further proposed grounds. The grounds of appeal are that:
1.The verdict is unsafe and unsatisfactory. (Permission to appeal granted.)
2.The trial judge erred in failing to direct the jury adequately, or at all, to correct serious errors in the submissions put forward by the prosecutor in her final address. As a result, it is suggested that the appellant did not have a fair trial. (Leave for permission to appeal sought.)
3.The trial judge failed to leave the defence case to the jury in a fair, full and balanced way. (Permission to appeal granted.)
4.The trial judge erred in not directing the jury that if they did not accept the identification evidence beyond reasonable doubt they should acquit. (Leave for permission to appeal sought.)
5.The trial judge erred in failing to direct the jury that it was not to rely on or use any other item of evidence to resolve any doubt it may have on the identification evidence standing alone. (Leave for permission to appeal sought.)
Factual Background
On Friday 9 July 2004 a man entered the Cunningham’s Warehouse store at 430 Brighton Road, Brighton, South Australia. It was shortly before 5.30pm. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Collier

Details

AGLC: R v Collier [2007] SASC 450
Case: [2007] SASC 450
Decision Date: 20 December 2007

CaseChat Overview and Summary

The appellant, Gary Mark Collier, was convicted by a jury of robbery but acquitted of aggravated robbery. The evidence against him included descriptions provided by three eye-witnesses, which had several similarities and described distinctive markings on the accused. The witnesses testified to burn marks or scarring on the accused's neck and a star-shaped tattoo on his left ear. One witness had initially confused the positioning of the tattoo, but later corrected her testimony. The accused was also identified from a photographic line-up and in court. Collier appealed against his conviction, arguing that the conviction was unsafe and unsatisfactory, and that the trial judge did not adequately direct the jury regarding the identification evidence. He also argued that the defence case was not left to the jury in a fair, full and balanced way.

The court considered the legal issues raised by the appellant's arguments. The court found that the evidence of the three eye-witnesses, when taken as a whole, was strong evidence upon which a jury might convict. The court noted that the discrepancies between the witnesses were typical in matters of identification and that the appellant had the distinctive identifying features described by the witnesses. The court concluded that the lack of fingerprint evidence was not of itself conclusive and that the fact that no witness spoke of tattoos on the hands was understandable given the circumstances. The court also found that the trial judge's directions in relation to identification evidence were correct and that there was no unfairness in the direction.

The court dismissed the appeal, holding that the verdict was not unsafe and unsatisfactory and that the directions in relation to identification evidence were correct. The court found that the evidence of the witnesses, when taken as a whole, was strong evidence upon which a jury might convict. The court concluded that the discrepancies between the witnesses were typical in matters of identification and that the appellant had the distinctive identifying features described by the witnesses. The court found that the lack of fingerprint evidence was not of itself conclusive and that the fact that no witness spoke of tattoos on the hands was understandable given the circumstances. The court also found that the trial judge's directions in relation to identification evidence were correct and that there was no unfairness in the direction. The court dismissed the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On Thursday 2 August 2007 a jury (by majority) acquitted Gary Mark Collier of the charge of aggravated robbery but found him guilty of robbery by a unanimous verdict. This is an appeal by permission on two grounds and an application for permission to appeal against that conviction on three further proposed grounds. The grounds of appeal are that:1.The verdict is unsafe and unsatisfactory. (Permission to appeal granted.)2.The trial judge erred in failing to direct the jury adequately, or at all, to correct serious errors in the submissions put forward by the prosecutor in her final address. As a result, it is suggested that the appellant did not have a fair trial. (Leave for permission to appeal sought.)3.The trial judge failed to leave the defence case to the jury in a fair, full and balanced way. (Permission to appeal granted.)4.The trial judge erred in not directing the jury that if they did not accept the identification evidence beyond reasonable doubt they should acquit. (Leave for permission to appeal sought.)5.The trial judge erred in failing to direct the jury that it was not to rely on or use any other item of evidence to resolve any doubt it may have on the identification evidence standing alone. (Leave for permission to appeal sought.)Factual Background On Friday 9 July 2004 a man entered the Cunningham’s Warehouse store at 430 Brighton Road, Brighton, South Australia. It was shortly before 5.30pm. The employees of the business were preparing to close the store for the day. The man proceeded to a display within the store where he picked up a packet of Maltesers and took it to the counter to pay. In the process of paying the sales assistant, he demanded that the money from the cash register be placed in a bag. At this point, according to the witness Ms Daebeler, he revealed a gun, which was hidden under his jacket and she said that he threatened to shoot the two employees behind the counter if they did not cooperate by putting the money from the cash register in the bag. Ms Dunn was the Store Manager. She described a man who came into the store on Friday 9 July 2004. She identified him as being approximately 170 cm tall, of gaunt or skinny appearance, with shortish brown hair and aged in his mid thirties. She observed that he was wearing a black Adidas jacket, with track pants and sneakers. She said he was unshaven and dirty-looking. She also described some distinctive features about this man. Ms Dunn described some scarring or burn marks on the man’s neck and a star shaped tattoo on his left ear. Mr Wurst was a sales assistant working in the store at the time. He also gave a description of the man who came into the store. This description was of a man of an approximate height of 5 feet 10 inches, wearing black track pants, a navy blue zip-up jacket, a grey baseball cap, having closely shaven hair and aged in his mid-thirties. Mr Wurst also noticed a discoloration on the man’s neck that looked like a burn, tattoo or bruise. Ms Daebeler was the Assistant Manager on the day in question. She described the man as thirty years old, with dark brown hair shaved like a crew cut and having dirty brown skin like he had not washed for sometime. She said he was skinny, Caucasian, approximately 170 centimetres tall and wore a black zip-up hooded jacket with a white Adidas logo on the back. She went on to describe some burns or scars down the man’s face and neck. As indicated, she said the robber produced a gun.

Evidence

Evidence Before The Court

Mr Niarchos submitted that the evidence showed that the offender was not wearing gloves and that he had touched both the counter and the front doors to the shop either to open or close them. There was no evidence that Mr Collier’s fingerprints were found at the scene and the appellant argued that this created a doubt as to whether he had been there at all.No Evidence of Any Other Tattoos Photographic evidence led by the prosecution showed that Mr Collier had extensive tattoos of “birds” down both arms extending down to the backs of both his hands and around the base of his thumbs. Mr Collier gave evidence that he had these tattoos for many years prior to the date when the robbery took place. It was submitted that these tattoos would have been obvious to anyone looking at the backs of the offender’s hands if such tattoos were present. The appellant argued that because these distinctive markings were not described by any witness, when other markings were, it cast doubt as to whether Mr Collier was the robber.Respondent’s submissions on ground 1 Mr Press for the Director of Public Prosecutions argued that there was sufficient evidence for the jury to be satisfied beyond reasonable doubt and convict the appellant. Mr Press argued that any discrepancies between the evidence given by the three witnesses were the sorts of discrepancies which commonly arise in identification cases. He submitted that each witness gave a description of the offender that was consistent with the appellant’s appearance. He further submitted that all three witnesses identified the same distinctive features relating to the scarring on the neck. The observations by Ms Dunn and Ms Daebeler of the star-shaped tattoo on the earlobe and the positive identification made by Ms Daebeler from a photo line-up, enabled the jury to find that the evidence led by the prosecution as to the identity of the offender proved beyond reasonable doubt that the appellant was the offender. Mr Press submitted that the jury was entitled to conclude that Ms Daebeler’s evidence as to the presence of a gun did not prove beyond reasonable doubt that a gun was used as illustrated by the fact that the jury acquitted the appellant of the first count of aggravated robbery. Mr Press submitted that such an argument did not form a basis to conclude that the balance of Ms Daebeler’s evidence should be treated in the same way. As to the absence of fingerprints at the scene, the respondent argued that the particular characteristics of the person, the type of surface involved and the cleanliness of that surface would all play a part in determining whether fingerprints would be left by a person touching the surface, and that the absence of any fingerprints of the appellant was not conclusive.Conclusion on ground 1 It is my view that the evidence of the three eye witnesses, when taken as a whole, was strong evidence upon which a jury might convict. In particular I single out the observations by Ms Daebeler and Ms Dunn of the star-shaped tattoo on the robber’s ear and the evidence of all three witnesses as to the scarring on the robber’s neck. This is quite apart from Ms Daebeler’s evidence as to the positive identification from a book of photographs. That photographic identification was of course only based on the facial appearance and not related to any of the distinguishing marks she observed at the time of the robbery. The photo did not show either the scarring on the neck or the star-shaped tattoo on the ear.

Decision

Reasons for decision

ANDERSON J LAYTON J (dissent)

As to the absence of fingerprints at the scene, the respondent argued that the particular characteristics of the person, the type of surface involved and the cleanliness of that surface would all play a part in determining whether fingerprints would be left by a person touching the surface, and that the absence of any fingerprints of the appellant was not conclusive.Conclusion on ground 1 It is my view that the evidence of the three eye witnesses, when taken as a whole, was strong evidence upon which a jury might convict. In particular I single out the observations by Ms Daebeler and Ms Dunn of the star-shaped tattoo on the robber’s ear and the evidence of all three witnesses as to the scarring on the robber’s neck. This is quite apart from Ms Daebeler’s evidence as to the positive identification from a book of photographs. That photographic identification was of course only based on the facial appearance and not related to any of the distinguishing marks she observed at the time of the robbery. The photo did not show either the scarring on the neck or the star-shaped tattoo on the ear. I agree with Mr Press that the discrepancies between the witnesses are typical in matters of identification. The appellant has the distinctive identifying features which were described by the witnesses. Ms Daebeler’s evidence is no less cogent because of the jury’s acquittal on the count of aggravated robbery. It is my view that the lack of fingerprint evidence is not of itself conclusive. The fact that no witness spoke of tattoos on the hands is understandable. These events all happened within a very short time and the witnesses were no doubt under pressure because of the situation in which they were placed. The fact is that all of Mr Niarchos’ arguments as summarised above were put to the jury in his final address. The appellant did have significant distinguishing marks which were described by the eye witnesses. The jury was entitled to find beyond reasonable doubt that the appellant was present at the scene.Applicant’s submissions on ground 2 It is submitted by the applicant for permission to appeal on this ground, that the prosecutor should not have asked the witness Ms Daebeler to undertake an in-court identification of the accused and furthermore, that the learned trial judge defeated the purpose of his direction to the jury not to place any reliance on that evidence when, during his summing up, he commented that the prosecutor had a very good reason for carrying out such a procedure. It is contended that the error in that subsequent comment by the trial judge had the effect of nullifying the earlier direction. In his summing up, the trial judge said:In court during her evidence, Ms Daebeler pointed to the accused and purported to identify him as the robber. You are to ignore that purported in-court identification completely. Ms Daebeler, before she made that identification in court, had already seen and presumably had in her mind a photograph of the accused. She also knew, of course, that he has been charged with the offence. Those facts make it open to her to have the suggestion in her mind unconsciously that the man sitting in the dock must be the robber. That is a completely unsatisfactory form of identification. I make no criticism of Ms Downey for having asked the question. There were very good reasons for her having done so, but in the circumstances, it is the clear experience of the courts that such an in-court identification is of no value at all. You must ignore it completely.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J,

The appellant argued that there were several factors which should have caused the jury to entertain a reasonable doubt. These matters included the following.Skin Discolouration The appellant submitted that none of the witnesses gave an accurate description of the discolouration which exists around Mr Collier’s neck. This discolouration in fact results from a 1989 car accident and a resultant skin graft from a seat belt injury. The witnesses, as indicated earlier, described it variously as scarring or burn marks, discolouration that looked like a burn, tattoo or bruise and finally burns or scars down the robber’s face and neck.Earlobe Tattoo The appellant submitted that none of the witnesses gave an accurate description of the tattoo situated on Mr Collier’s left earlobe. Mr Wurst did not give evidence as to there being a tattoo on either of the offender’s earlobes. It was submitted by the applicant that given the proximity of the offender to this witness, Mr Wurst, being directly in front of the robber and across the service counter, he should have been able to identify such a distinctive mark. Ms Daebeler and Ms Dunn gave evidence of the fact that the offender had a star shaped tattoo on his left earlobe. Ms Daebeler initially placed the star shaped tattoo on the offender’s right earlobe, when giving her statement to police and in compiling a computer generated identikit image, but when giving evidence in the trial three years later, placed the tattoo on the left earlobe. It was the appellant’s argument that given the good opportunity Ms Daebeler had to observe the facial features of the offender, she should have been able to correctly nominate which ear it was.The Weapon It was the prosecution’s case that the offender used a gun to compel the staff to hand over the money from the cash register. The appellant argued that this was an allegation which relied on the evidence of Ms Daebeler. She gave a description of a gun, something she described as being “a six-shooter, like an old sort of western type gun”. She also described the way this gun was revealed to her. She said that the offender pulled it part of the way out of his jacket to reveal the handle, the chamber and a small part of the barrel, but she did not say that he waved it around. Mr Niarchos submitted Ms Daebeler’s observations were irregular, given that the other two witnesses (who were closer to the offender) did not see a gun or any other weapon.Fingerprint Evidence Mr Niarchos submitted that the evidence showed that the offender was not wearing gloves and that he had touched both the counter and the front doors to the shop either to open or close them. There was no evidence that Mr Collier’s fingerprints were found at the scene and the appellant argued that this created a doubt as to whether he had been there at all.No Evidence of Any Other Tattoos Photographic evidence led by the prosecution showed that Mr Collier had extensive tattoos of “birds” down both arms extending down to the backs of both his hands and around the base of his thumbs. Mr Collier gave evidence that he had these tattoos for many years prior to the date when the robbery took place. It was submitted that these tattoos would have been obvious to anyone looking at the backs of the offender’s hands if such tattoos were present.