R v Corowa
[2015] QCA 121
•26 June 2015
SUPREME COURT OF QUEENSLAND
CITATION:
R v Corowa [2015] QCA 121
PARTIES:
R
v
COROWA, Robert Kingsley
(appellant)FILE NO/S:
CA No 165 of 2014
SC No 583 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
Supreme Court at Brisbane – Unreported, 15 April 2014DELIVERED ON:
26 June 2015
DELIVERED AT:
Brisbane
HEARING DATE:
9 April 2015
JUDGES:
Margaret McMurdo P and Atkinson and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Appeal allowed.
2. Conviction set aside.
3. Retrial ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted after trial of attempted murder – where the appellant was sentenced to 14 years imprisonment – where the complainant could not identify the gunman – where the complainant was the boyfriend of the appellant’s former partner – where the appellant had sent a large number of text messages to his former partner indicating he was keen to renew their relationship – where the appellant hired a private investigator to follow his former partner – where the appellant and the private investigator followed the appellant’s former partner to the home of the complainant’s mother – where the appellant and an accomplice later attended the house – where the accomplice gave evidence that he knocked on the door, the complainant’s mother answered, and he then returned to the car – where the complainant and his mother went outside the house – where the accomplice gave evidence that the appellant, carrying a shotgun loaded with birdshot, chased and shot at the complainant, hitting him in the shoulder – where the complainant’s mother told police that the man who came to the door was the same man who shot the complainant – where the complainant’s mother described this man as “Kiwi”; he did not have dark skin, was of medium build and was not very tall – where the appellant was a distinctive, muscular looking young man of black African descent – where shortly after the shooting, the complainant’s mother was shown a photo board of 12 photographs of young men of black African descent – where the appellant’s photograph was included on the photo board – where the complainant’s mother did not recognise anyone on the photo board – where the complainant’s mother was later shown a photo board of 12 different men, apparently of Pacific Islander or Maori descent, which included a photograph of the accomplice – where the complainant’s mother stated that the photo of the accomplice stood out – where the complainant’s mother later participated in a COMFIT process and the image produced closely matched the appearance of the accomplice – where the complainant’s mother knew the appellant was a suspect – where the complainant’s mother had asked her son for a photograph of the appellant – where three months after the shooting, the complainant’s mother was working at a service station when the appellant entered – where the complainant’s mother gave evidence that upon seeing the appellant, she now recognised him as the gunman and contacted police – where the appellant’s trial counsel did not apply to exclude the evidence of the complainant’s mother identifying the appellant as the gunman – whether the evidence should have been excluded – whether a miscarriage of justice has occurred
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant’s trial was conducted solely on the basis that the appellant was the gunman who shot the complainant – where the evidence of the complainant’s mother was of poor quality and deserving of little weight – where the trial judge’s directions did not fully discuss a number of real weaknesses in the identification evidence – whether there was a miscarriage of justice
Criminal Code (Qld), s 668E
Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17, considered
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, consideredCOUNSEL:
W Terracini SC, with C Wasley, for the appellant
B J Power for the respondentSOLICITORS:
Archbold Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: The appellant, Robert Corowa, was convicted on 15 April 2014 after a five-day jury trial of the attempted murder of Marko Marjanovic on 26 November 2011. On 4 June 2014 he was sentenced to 14 years imprisonment with 848 days of pre-sentence custody declared as time served under the sentence. He has appealed against his conviction and applied for leave to appeal against his sentence.
The grounds of his appeal against conviction are:
1. A miscarriage of justice occurred due to the admission of the evidence of Snezana Marjanovic identifying the appellant as the man who shot her son.
2. If the identification evidence of Snezana Marjanovic was properly admitted, the directions of the trial judge were inadequate in respect of this identification evidence.
3. The admission of evidence of the Senior Constable Williams concerning the likelihood that the source of the DNA extracted from Mr Graham’s car was blood gave rise to a miscarriage of justice.
4. The trial judge erred in failing to direct the jury regarding the DNA evidence and expert opinion evidence of Senior Constable Williams.
5. A miscarriage of justice was occasioned by the content of the Crown prosecutor’s closing address.
6. A miscarriage of justice was occasioned by the admission of evidence that the appellant was in gaol on remand.
The proposed grounds of appeal in the application for leave to appeal against sentence are:
1. The learned sentencing judge erred in finding that there was no evidence as to whether the appellant knew what type of ammunition was in the shotgun resulting in an error.
2. The learned sentencing judge erred in his assessment of the objective seriousness of the offence.
3. The sentence imposed is manifestly excessive.
Factual Overview
Before discussing the grounds of appeal it is helpful to summarise the significant aspects of the evidence at trial. At about 10.15 pm on 26 November 2011 the complainant was shot outside his mother’s house at Robina. He could not identify the gunman. The prosecution case was that the appellant shot the complainant after procuring an associate, Donald Graham, to lure him outside; the gunman was the appellant, not Mr Graham.
The appellant was in a romantic relationship with Ms Louise Ray from about 2005 until about 2010. She subsequently formed a relationship with the complainant but remained in contact with the appellant.
In September 2011 the complainant received anonymous text messages. He could not remember the detail but one said something like: “I’ll catch you in the street.” Another referred to a photograph of him with Ms Ray on the complainant’s Facebook, perhaps kissing. He also received a phone call from someone identifying himself as Robbie C but he could not recall when.
The day before the alleged offending the appellant sent Ms Ray a large number of text messages which indicated he was keen to maintain or renew their relationship. Some messages were angry:
·“Maybe I won’t MSG maybe I mite cum in & fuckn really runamuck RITE”[1]; and
·“Have u got sim 1 to protect u have u I’ll fuckn kill them if u wanna act like a fuckwit dnt start me up”[2]; and
·“I have changed but I’m not gunna b treatd like a gronk by any 1. I’m all about u and only u but if u act like a bitch 2 me I’ll only put up with so much. I really do love u”[3]
[1]Exhibit 15, 184.
[2]Exhibit 15, 188.
[3]Exhibit 15, 200 and 201.
In one text message, the appellant referred to someone, probably the complainant, as “that wog cunt.”[4] The messages portrayed the appellant as confused about whether Ms Ray wished to continue their relationship and whether she was seeing another man or other men.
[4]Exhibit 15, 219.
The appellant hired a private investigator and drove as a passenger in the investigator’s car on 26 November 2011. The appellant made no attempt to conceal his identity and spoke frankly about his personal details. They followed Ms Ray to Toowoomba where she picked up the complainant, kissed him and drove him back to his mother’s house at Robina. They both went inside. The appellant became emotional. The investigator did not consider the appellant appeared violent. Whilst he was with the investigator he telephoned someone and said:
“They’re going to Robina. I’ll be at Robina. I’ll get back in touch with you.”
The evidence of the appellant’s alleged co-offender, Donald Graham, was critical to the prosecution case. He pleaded guilty to committing a malicious act with intent arising out of this incident. He was sentenced to three years imprisonment suspended after the two years imprisonment he had already served. Had he not co-operated with the authorities he would have been sentenced to six years imprisonment. At the time of the shooting, he was on parole for an offence of grievous bodily harm involving kidnapping, with others, of a young man.
He initially denied to police any involvement in the shooting but later gave the following account. The appellant asked him to take care of a sawn-off shotgun and ammunition. On the evening of 25 November 2011 the appellant phoned him and asked him to “bring my shoes and clothes up.” Mr Graham understood him to be referring to the gun and ammunition. The appellant then texted: “Don’t worry about it.” On 26 November 2011 the appellant texted: “Bring my clothes, please, lad.” Mr Graham then drove from Tweed Heads to Robina with his partner, Ms Tessa Orr. The shotgun was in the back seat. When they met up with the appellant, Mr Graham and the appellant told Ms Orr to get out and the appellant got into the front passenger seat. He pumped the shotgun, discharging it and shooting out the front passenger window. The appellant directed Mr Graham to the house of the complainant’s mother. He told Mr Graham to get the occupants to come out. Mr Graham knocked on the front door and told the complainant’s mother that someone was tampering with their car. He saw the appellant armed with the shotgun waiting at the side of the house. Mr Graham ran back to the car and heard shots. He started the car. The appellant returned, lay down on the back seat with the shotgun and told Mr Graham to drive away. They collected Ms Orr and drove towards Tweed Heads. They took an exit near the Tweed River where the appellant left the car for a few minutes. He later dropped the appellant off at Chinderah.
In cross-examination, after a tape-recording was played of a conversation he had with Detective Davis, Mr Graham conceded that the police officer had described the appellant as “a mongrel of a bloke” and said “we want to put him away for a long time.” The police officer told him he could make an induced statement which could not be used against him. It was only then that he implicated the appellant in this offence. He denied this conversation until the tape recording was played.
Ms Orr gave evidence, broadly consistent with Mr Graham’s account, although she too initially denied any involvement or knowledge in the matter to police.
CCTV footage at a Subway store at 4.30 pm on 26 November 2011 showed the appellant wearing long black pants with wide side stripes, a grey shirt, a bum-bag, white shoes and sunglasses on his head.
At about 10.15 pm on 26 November 2011 Mrs Snezana Marjanovic answered a knock on the door. A man whom she did not know told her that someone was tampering with their car. She told the complainant who went outside to investigate. A man chased him and shot at him a number of times, hitting him in the shoulder. The complainant was unable to identify his assailant. Mrs Marjanovic called 000. She told police that the man who came to the door was the man who shot her son. She described him as a “Kiwi” with dark, short “rooster-type hair.” He did not have dark skin, was of medium build, not very tall, about five foot nine inches. He was wearing a white t-shirt with a greyish coloured print on the front and dark loose fitting pants. The gunman was standing in front of her with a gun pointing at her.
The appellant was a distinctive, muscular looking young man of black African descent. The description given by neighbours of possible suspects at the scene at the time of the shooting did not closely match the appellant’s appearance. No witnesses described seeing a powerfully built young man of black African descent.
The appellant was immediately a person of interest to police because of his relationship with Ms Ray and the recent text messages. In the early hours of 27 November 2011, they prepared a photo board of 12 photographs of young men, apparently of black African descent. The appellant’s photograph was number three.[5] When Mrs Marjanovic looked at the photo board,[6] she did not recognise anyone as the offender. She thought it strange that no photos looked even vaguely like the description of the offender she gave to police. That night she participated in a COMFIT process in relation to the man she saw shoot her son.
[5]Exhibit 7, AB 696.
[6]Exhibit 7, AB 696.
Ms Ray gave evidence that the complainant and his mother told her a couple of days after the shooting that the police had shown them photos of the appellant.[7]
[7]T4-6, AB 398.
Mrs Marjanovic attended the police station again in early December 2011 at the request of police who asked her to review her earlier statement describing the person who came to the front door. They then showed her a different photo board containing 12 photographs of young men, apparently of Pacific Islander or Maori descent, of which photograph number nine was Mr Graham.[8] She was unable to identify anyone with 100 per cent certainty but stated that photograph number nine was the only one that stood out. She realised that the photographs on this photo board were different from the earlier photo board. She told police she remembered a bit more about the shooting. She thought the person who came to the front door was a different person to the person who shot her son. She described the gunman as bigger and taller than the man who came to the door; he seemed to stand more upright and was wearing a dark coloured shirt.
[8]Exhibit 12, AB 699.
On 7 December 2011 the complainant made a further statement to police. He said that one of the people in the photo board he was shown[9] was the appellant. He recognised him from Facebook but he did not say that this was the person who shot him.
[9]Exhibit 7.
On 15 December 2011 Mrs Marjanovic was shown a COMFIT image prepared in accordance with her original description.[10] She considered it had a 90-95 per cent likeness to the person who came to the door of her house on 26 November 2011. On 16 December 2011 the COMFIT photograph was published in the Gold Coast Bulletin. It was an excellent likeness of Donald Graham. Her former husband telephoned her and told her that this person was Donald Graham. On 15 January 2012 the complainant showed her a Facebook photograph of a person whom she recognised as the man who came to her door on the night of the shooting. Her former husband told her this was Donald Graham.
[10]Exhibit 8, AB 697.
Mrs Marjanovic knew that Ms Ray’s ex-boyfriend was a suspect and she asked the complainant if he had a photograph of him. She was frustrated that the gunman had not yet been arrested and wanted to see what he looked like. She “wanted to just confirm this myself first, that this is the person that I – I remember from the night.”[11] She considered that he was the only person who had threatened her son. She denied, however, that anyone showed her a photograph of the appellant prior to 6 February 2012 when she was working at a service station at Mermaid Beach. That day the appellant came into the service station and she immediately recognised him as the man who chased and shot her son. A copy of the service station CCTV footage was tendered.[12] She recognised him because of his stature, appearance, walk, height, build, the way he moved and that the bottom of his legs were skinny but the top of his legs were broad and muscular. She agreed that this person looked very different to the man she initially described to police as the offender. After the appellant left the service station and before she contacted police, the complainant arrived. She told him that the man who shot him “was just here.” The complainant responded that he had seen the appellant “just down the road.”
Grounds 1 and 2: The admission of Mrs Marjanovic’s evidence identifying the appellant as the man who shot the complainant and the adequacy of the judge’s directions to the jury concerning it
[11]T2-46, AB 224.
[12]Exhibits 10 and 11.
Grounds 1 and 2 can be discussed conveniently together.
The appellant’s contentions
There was no application at trial to exclude any aspect of Mrs Marjanovic’s identification evidence. The appellant nevertheless now contends that there was a miscarriage of justice because the admission of the evidence as to her identification of the appellant in the service station was highly prejudicial and should have been excluded on a discretionary basis. The appellant emphasises that her identification of the appellant as the man who shot her son was inconsistent with her original description of the gunman to police. She did not identify the appellant on the photo board[13] which she inspected shortly after the shooting even though he was depicted in photograph three. The mode of the police investigation must have suggested to her that the police considered there were two men involved in the offending, not just one man as she initially claimed. Over time she adopted that suggestion; she did not have an actual memory of it. She was shown a photograph of the appellant, at least in the original photo board.[14] She knew Ms Ray’s former boyfriend was a suspect and she believed that he had threatened her son. She actively sought a photograph of him to assist her in describing the gunman when she was frustrated that no-one had been arrested. The complainant confirmed that the appellant was near the service station before she contacted the police about the indentification. There was a real danger that her identification of the appellant in the service station some months after the offence was as a result of the displacement effect discussed in Alexander v The Queen.[15]There was a real danger that her oral evidence identifying the appellant in February 2012 as the gunman on 26 November 2011 was contaminated by her viewing of the photographs on the initial photo board[16] and her knowledge that the prime suspect was Ms Ray’s former boyfriend.
[13]Exhibit 7.
[14]Exhibit 7.
[15][1981] HCA 17; (1981) 145 CLR 395, Murphy J, 436.
[16]Exhibit 7.
The appellant additionally contends that further prejudice was occasioned by the fact that the appellant’s photograph was contained in a photo board assembled by police so soon after the shooting. This had the potential to convey to the jury that the appellant was someone known to police with a criminal history.[17] This was yet further compounded by Ms Ray’s highly prejudicial evidence in cross-examination that she spoke to the appellant: “a couple of months after he went to jail” [18] (appeal ground 6). This would have suggested to the jury that he was a dangerous person undeserving of bail. In combination these factors meant that Mrs Marjanovic’s identification of the appellant as the gunman was of very little weight. There was a real danger that the jury gave it much greater weight than it deserved: Festa v The Queen.[19] The proper exercise of the judicial discretion required its exclusion and a miscarriage of justice has resulted from it being led at trial.
[17]Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 402 – 403; Festa v The Queen (2001) 208 CLR 593, Gleeson CJ, 602, [22].
[18]T3-10, AB 382.
[19]Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, McHugh J, 614.
If the evidence was admissible, the appellant contended that the judge’s directions were inadequate to avoid a miscarriage of justice. The judge should have specifically isolated and identified matters which undermined the reliability of the identification: Domican v The Queen.[20] Counsel at trial did not identify for the judge all the weaknesses in the identification but it was incumbent on the judge to refer to them. There was the possibility of the displacement effect colouring Mrs Marjanovic’s identification of the appellant as the gunman months after the shooting. The appellant was of distinctive appearance, in part because of his black African descent. Having seen his photograph, at least in a photo board,[21] and knowing that Ms Ray’s former boyfriend was the prime suspect, Mrs Marjanovic may have identified the appellant as Ms Ray’s boyfriend and the person on the photo board[22] rather than making a reliable identification of the gunman. There was a real possibility, in the absence of an appropriate direction as to the danger of the displacement effect, that the jury placed too much weight on Mrs Marjanovic’s evidence when it was really of very poor quality and that a miscarriage of justice has resulted from it being led at trial.
[20]Domican v The Queen (1992) 173 CLR 555, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, 561 – 562.
[21]Exhibit 7.
[22]Exhibit 7.
The respondent’s contentions
The respondent contends that there were sound forensic reasons for the appellant’s trial counsel not to apply to exclude Mrs Marjanovic’s evidence. Much of it assisted the appellant’s case that Mr Graham may have been the gunman, not the appellant. The appellant could not have excluded Mrs Marjanovic’s evidence as to the service station identification without also excluding her earlier evidence exculpatory to the appellant. Her evidence identifying the appellant as the gunman was admissible, subject to discretionary exclusion: Festa v The Queen.[23]
[23](2001) 208 CLR 593, 603; 609 – 10; 658.
The respondent emphasised that Domican allows the trial judge to also set out evidence which is capable of supporting the visual identification of the accused person. The judge’s direction did not refer to the large body of evidence supporting her identification, including Mr Graham’s testimony. Had the appellant’s counsel sought a redirection in the terms now argued for in this appeal, it was likely that the prosecutor would also have sought a redirection which would have resulted in a less favourable direction than that given by the judge.
The respondent contends that neither ground 1 nor ground 2 is made out. Alternatively, the respondent contends, this is an appropriate matter for the application of the proviso under s 668E(1A) Criminal Code 1899 (Qld).
The judge’s directions on identification
Somewhat concerningly, the judge initially omitted to give any directions as to identification during his summing up to the jury. The appellant’s counsel reminded him that he had not given the directions as to identification which he had earlier foreshadowed.
The judge gave these relevant redirections:
“a central issue is whether the Crown has proved that [the appellant] was the person who shot the shotgun on the evening of the 26th of November, and one of the issues that is tied up in deciding that question is the issue of identification, because identification is a matter for you to decide as a question of fact. The case against the [appellant] depends, to a significant degree, on the correctness of the visual identification of the defendant and that visual identification was the identification by Mrs Marjanovic, the victim’s mother, at the service station.
Now, I must, therefore, warn you of the special need for caution before convicting in reliance on the correctness of that identification, and the reason for that is quite simply this: it is quite possible for an honest witness to make a mistaken identification. Notorious miscarriages of justice have sometimes occurred in such situations. A mistaken witness may nevertheless be convincing.
You must examine carefully, ladies and gentlemen, the circumstances in which the identification by the witness was made: how long did the witness have the person said to be the defendant under observation? That is on the evening in question, on the evening of the 26th of November. At what distance was the observation? In what light? Was the observation impeded in any way? Had the witness ever seen the [appellant] before, and if so, how often? If only occasionally, had the witness any special reason for remembering the [appellant]? What time elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description given to the police by the witness when first seen and the evidence that the witness has given you in this trial?
Now, ladies and gentlemen, the evidence of each individual witness, while important in itself, should not be regarded by you in isolation from the other evidence adduced at the trial. Other evidence tending to implicate the defendant may be highly relevant and may justify a conviction while the evidence of identification if it stood alone would be insufficient. Ladies and gentlemen, where evidence is given by a stranger to [the appellant] or a casual acquaintance, you should treat the evidence of identification with care. You should be cautious about concluding that identification has been established in such a case and you must be scrupulous to be satisfied first that the identifying witness was not only honest in her evidence, but also accurate.
Now, in short, the evidence capable of supporting the visual identification of the [appellant] by Mrs Marjanovic was her identification of him at the service station, and you heard her evidence about that, and you have the CCTV evidence with you in the jury room. There was also her evidence of the person holding the gun being relatively close to her when he was pointing the gun at her, but there are weaknesses or what you might regard as matters of significance that you might think undermines the reliability of Mrs Marjanovic’s identification evidence. Those matters would be the fact of her previously giving the police an identification of the person at the door as the person who did the shooting. Another matter might be her claim to be able to identify the shooter simply from his gait and his walk. Then there’s the question of what clothing she said the person who did the shooting was wearing on the evening. I referred to that earlier when I was summing up the case to you, but let me just remind you of evidence that was given yesterday by police officer Davis when he came back after lunch. He gave evidence that during the lunch break he had refreshed his memory from a download media file in relation to a visit to Subway by [the [appellant] on the afternoon of the 26th of November, and Mr Davis confirmed that that closed-circuit TV of [the appellant’s] visit to Subway showed that the [appellant] was wearing a pair of black long pants with a white stripe down the side, a grey shirt, a bumbag, some glasses on his head and white shoes.
You would consider how much of the shooter Mrs Marjanovic was actually able to see on the evening particularly when, on her evidence, he was at least partially obstructed by foliage. You would recall that the [appellant] was a stranger to her. The consistent evidence, as you’ll recall, was that the lighting in the street was not particularly good, and you would also have regard to the fact that a period of some 10 weeks elapsed between the date of the shooting on the 26th of November and the day when Mrs Marjanovic said she identified him when he walked into the service station.
So ladies and gentlemen, those are all the matters that you’ll need to weigh up when considering the reliability of Mrs Marjanovic’s identification of the defendant, remembering, as I said at that outset, that the issue of identification is one for you to decide as a question of fact and that obviously goes to the central question of fact, which is whether the [appellant] was the shooter on the evening. That’s all I had for you, ladies and gentlemen. I’ll invite you to resume your deliberations.”
Counsel did not request any further redirection.
Conclusion
It is clear from the prosecutor’s opening address, the closing addresses of counsel and the judge’s summing up that the trial was conducted solely on the basis that the appellant was the gunman who shot the complainant. The prosecution case was not that the appellant procured Mr Graham to shoot the complainant and nor was that left as a possible alternative pathway to conviction. Mr Graham’s testimony was therefore critical. His evidence was not without problems for the prosecution. He was an accomplice with an obvious interest in minimising his role and perhaps that of his partner, Ms Orr. He had a serious criminal history for violence. He did not initially implicate the appellant when interviewed by police. The tape recording played during his cross-examination at trial recorded a police officer telling him that the appellant was “a mongrel of a bloke and we want to put him away for a long time.” The police officer encouraged Mr Graham to make “an induced statement.” Only then did Mr Graham implicate the appellant as the gunman. In light of his co-operation with the authorities Mr Graham received a significantly reduced sentence for his role in the shooting. As the judge told the jury, they could only convict on Mr Graham’s evidence if, after scrutinising it with great care, they were satisfied of its truth and accuracy.
Mr Graham’s evidence received support from the evidence of Ms Orr but she was not an independent, disinterested witness, as she had an interest in minimising her role and that of Mr Graham. She initially gave a different version to police.
Mrs Marjanovic immediately after the shooting said that the gunman was the man who knocked at her door. When she was shown a photo board of 12 young men apparently of black African descent and containing the appellant’s photo, she did not identify him as the offender. At that time she assisted in the compilation of a COMFIT picture of the offender, which, when assembled, closely resembled Mr Graham.
There was certainly a strong body of evidence at trial that the appellant had a motive to injure the complainant, but that was equally consistent with him having procured Mr Graham to harm the complainant and with Mr Graham being the gunman. The evidence of motive did not establish that the appellant was the gunman.
Mrs Marjanovic’s evidence positively identifying the appellant as the gunman was therefore an important piece of evidence in the prosecution case as conducted. It was evidence independent of Mr Graham supporting his account. Mrs Marjanovic’s identification evidence at the service station, however, was of poor quality and was deserving of very little weight. Unfortunately for the appellant, his counsel at trial did not ask the judge to exclude that evidence. I do not accept the respondent’s contention that the evidence of the service station identification could not have been excluded without also excluding Mrs Marjanovic’s earlier evidence as to the identification of the gunman which tended to support the notion that the appellant was not the gunman. A trial judge could have allowed evidence of the initial investigation to be given whilst excluding the subsequent service station identification evidence. But the evidence was relevant and as the judge was not asked to exclude it in the exercise of his discretion, it was admissible.[24] The first ground of appeal can only succeed if, as a result of the evidence being led at trial, there has been a miscarriage of justice. That turns on a consideration of the adequacy of the judge’s directions as to identification.
[24]Festa v The Queen (2001) 208 CLR 593, 603 [23], 609 – 610 [51], and 658 [216].
In Domican v The Queen[25] Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated:
“The foregoing statements are applicable to all criminal cases including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence. Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
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.” (footnotes omitted)[26]
[25](1992) 173 CLR 555.
[26]Above, 561 – 562.
It is unfortunate in this case that the appellant’s counsel at trial did not sufficiently assist the judge in identifying the weaknesses in this identification evidence. But that cannot completely absolve a judge from the responsibility identified in Domican. I do not accept the respondent’s contention that defence counsel’s omission to ask for a further redirection was a forensic decision. A redirection of the kind now sought could only have assisted the defence case. It can only have been an unfortunate oversight.
The evidence in this case raises questions as to whether the investigating police were astute in their duty to take every precaution reasonably available to guard against the miscarriages of justice that can occur through identification evidence.[27] But these matters were not fully explored at first instance so that they cannot be determinative of this appeal.
[27]Alexander v The Queen (1981) 145 CLR 395, Gibbs CJ, 403.
After giving the appropriate general warning as to the dangers of identification evidence, the trial judge stated: “the evidence capable of supporting the visual identification of the [appellant] by Mrs Marjanovic was her identification of him at the service station.” In doing so, the judge suggested that Mrs Marjanovic’s visual identification could be supported by itself. This was wrong and confusing. But of more significance, the judge did not mention the following real weaknesses in her identification evidence. First, when she was shown a photo of the appellant in the photo board[28] shortly after the shooting, she did not recognise him. This did not support the prosecution case that he was the gunman. Second, in light of the way the police investigation was conducted and her conversations with the complainant and Ms Ray following the shooting, her identification of him at the service station about three months after the shooting may have been a reconstruction rather than an identification. Third, it can be inferred that she was aware that the appellant, Ms Ray’s former boyfriend, was a young man of black African descent. Having been shown a photo board of young men of black African descent by police shortly after the shooting, and knowing that it contained the appellant’s photo and that he was the prime suspect, she may have identified him at the service station from his photograph on the photo board rather than making a genuine identification of the gunman. The judge should have highlighted these important weaknesses in the identification to the jury as reasonably capable of undermining the reliability of Mrs Marjanovic’s identification at the service station.
[28]Exhibit 7.
I am unpersuaded by the respondent’s contention that the Mrs Marjanovic’s identification evidence was of little consequence in this case. The central issue as the trial was conducted was whether the appellant was the gunman. In light of the inadequacies of the judge’s directions on identification, there was a real danger that the jury placed undue weight on Mrs Marjanovic’s unimpressive identification evidence as independent support for Mr Graham’s account that the appellant was the gunman. If properly directed the jury may have been less likely to accept Mr Graham’s evidence.
Although there was a strong case against the appellant implicating him in serious criminal conduct arising out of the complainant’s shooting, the case at trial turned on the less than satisfactory evidence of Mr Graham and the highly suspect identification, months after the shooting, by Mrs Marjanovic. Further, although this was not an issue at trial, the prosecution case was not without difficulties as to the element of intent to kill; the shotgun used was loaded with birdshot. For these reasons I am not satisfied under s 668E(1)A that no substantial miscarriage of justice has occurred despite the weaknesses in the identification evidence and the inadequate directions to the jury as to identification.
It follows that I would allow the appeal, set aside the conviction and order a retrial. It is not therefore necessary to deal with the remaining grounds of appeal against conviction or the application for leave to appeal against sentence.
Orders:
1. Appeal allowed.
2. Conviction set aside.
3. Retrial ordered.
ATKINSON J: I agree, for the reasons given by the President, that the appeal should be allowed, the conviction set aside and a new trial ordered.
APPLEGARTH J: I agree with the reasons of the President and the orders proposed by her Honour.
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