R v Czerner

[1997] QCA 409

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND [1997] QCA 409

C.A. No. 308 of 1997

Brisbane

[R v. Czerner]

T H E Q U E E N

v.

JAMIE CZERNER

Appellant

Davies JA Williams J Lee J

Judgment delivered 14 November 1997

Judgment of the Court.

APPEAL ALLOWED. CONVICTION QUASHED. NO ORDER FOR A NEW TRIAL.

CATCHWORDS: CRIMINAL LAW - EVIDENCE - IDENTIFICATION - inherent weaknesses in evidence of sole identification witness - inconsistencies with other evidence

Counsel:	Mr A MacSporran for the appellant Mr C Chowdhury for the respondent
Solicitors:	Dearden Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	16 October 1997.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14 November 1997

This is an appeal against conviction. The appellant was convicted on 18 July 1997 in the District Court at Brisbane after a two-day trial, of one count of doing grievous bodily harm on 21 January 1996. The appellant submits that the verdict is unsafe and unsatisfactory and submitted a number of reasons in his grounds of appeal why that was so. Essentially those reasons amount to a contention that identification evidence given at the trial was inherently unreliable, and inconsistent with other evidence. This was the central issue. The appellant did not give or call evidence.

The appellant, who was born on 23 December 1970 and was aged 25 at the time, was visiting Her Majesty’s nightclub in the early morning of 21 July 1996. The nightclub is located in the Wintergarden Complex beneath the Hilton Hotel in the Queen Street Mall. At about 1.30am at least two people were forcibly removed from the nightclub by security staff. The Crown case is that one of those removed was the appellant. As the group approached the doors, the complainant security guard, who had been waiting on the landing at the top of the stairs and was holding the door open, was struck on the right side of the face. It was admitted that the injury which resulted constituted grievous bodily harm. The sole issue at trial was whether it was the appellant who had struck the blow.

The only witness to identify the appellant as the assailant was Kelly, an off duty security officer. Kelly gave evidence that in the early morning of 21 January 1996 he was standing at the bar in the nightclub talking to a friend who worked there. He was off duty and had not been drinking. He said he saw two males pushing each other and that two security officers came over to see what the problem was. Kelly said that the appellant was identified as the aggressor and was escorted towards the exit. Kelly said that he followed the group at a distance of 10-12 metres. The security guards and the two patrons went up a flight of stairs to the doorway. The complainant was standing at the door and he pushed the door open with his right hand as the group approached.

Kelly said that a group of four or five other people began following the first group up the stairs. He said that as the appellant reached the door the complainant put his left arm on the appellant’s right arm to “gently” lead him out the door. The appellant then struck the complainant on the right side of the face near the eye with his right closed fist. He had been standing to the left of the complainant and wrenched his right arm away. Kelly said that at the time the blow was struck there were “probably one or two people” between him and the complainant, and that he was able to “catch glimpses basically” of what was going on. He said that immediately before the blow, the assailant had his back to him. He said that a bit of a melee broke out, and that he began talking to another security guard. He noticed the appellant walk up the stairs behind him and leave the nightclub. He called out “That’s him”, and the appellant began to run away. He was eventually caught by another security officer. He said he later pointed the appellant out to police in the police kiosk located further up the mall from the nightclub.

When asked to describe what the assailant was wearing, Kelly said a “bluish” chambray type shirt, blue jeans, brown shoes and a brown belt. He said the assailant was of average build. Later, during cross-examination, he said the assailant had long sleeves which were rolled a quarter of the way up. He also agreed that he had previously given estimates of the assailant’s height ranging between 5'9" and 6'2". During his evidence he eventually settled on a height of 5'11" or 6", although he conceded it was a difficult task to be accurate in that regard. He also conceded that there were a number of other people in the vicinity of the door at the time, dressed in a similar manner, and of a similar build to the assailant. He said that there were about 200 people in the club at the time, which was an unusually large number for that time of night. He conceded there was a possibility that he could have been mistaken when identifying the appellant as the person who had struck the complainant. He put the possibility of such error as between five and ten percent.

The two security officers who removed the men from the bar, Virtue and Jackson, also gave evidence. Virtue said that he and Jackson escorted one each of the two men who had been fighting near the bar. He said that as they neared the exit a crowd of people gathered round, apparently in protest at the men’s removal. As Virtue approached the door with his charge he saw, out of the corner of his eye, the complainant slump to the ground. He said that there were at least four or five patrons in the immediate vicinity at the time, including one man wearing a long sleeved blue checked shirt, and with shoulder length hair. Virtue said that he did not see who had struck the complainant, but assumed it was the man in the checked shirt because he was standing closest to the complainant at the time. He said that man was about 197 cm or 6'5" tall. He said he was unsure whether that man had been escorted by Jackson. Virtue himself had not been escorting him.

Virtue said that in the confusion that followed the assault on the complainant, he noticed the man in the check shirt had “disappeared”. Virtue went into the mall to look for him and saw him walking up the mall. Someone called out “run”, and the man began to run. Another security officer caught him and handed him to police. Virtue conceded in cross-examination that the appellant may not have been in any way involved in the incident at the nightclub. He also conceded that he could not be certain that the man in the check shirt had delivered the blow to the complainant.

Jackson said that he and Virtue attended the bar area in order to remove two patrons who were fighting. He and Virtue each escorted one man towards the exit. As they reached the top of the stairs there was a group of about three or four patrons there. Jackson heard the complainant fall. He did not see who struck the blow but said he saw a closed fist swing past. After viewing a security video, taken by a camera in the Mall, of patrons and security officers after they had emerged into the Mall, he identified the appellant and another man as two of the persons who had been on the landing when the blow was struck.

He conceded in cross-examination that he could not say it was the appellant who had delivered the blow. He also conceded having said to a police officer that immediately after the incident, he saw another patron, Wheelan, standing in front of the complainant “in a fighting stance”. He also agreed that he could have said to police, although he could not recall doing so, that the appellant was too far away from the complainant to have struck him.

A police officer, Constable Sweet, also gave evidence. He said he attended the scene shortly after the incident, and was involved in transporting the appellant back to the city police station. He took statements from a number of people. He agreed that Jackson had told him that he thought Wheelan was responsible because he saw him standing in front of the complainant in a fighting stance. He also agreed that Jackson had told him that the appellant had been too far away to have delivered the blow. Constable Sweet also said that he had noted that the appellant was wearing a short-sleeved blue checked shirt. Of all the evidence of the appellant’s shirt, this seems clearly the most reliable.

Two of the appellant’s friends who were present at the time, Wheelan and Lambert, also gave evidence for the prosecution. Although for obvious reasons their evidence is of somewhat less value than that of other witnesses, a number of points should be made. In particular, Wheelan gave evidence that he thought the appellant was wearing a short-sleeved shirt. This is consistent with Constable Sweet’s report. Another friend of the appellant, Lambert, gave evidence that the appellant was on the ground at the time of the assault on the complainant. Lambert also agreed that he (Lambert) could actually have been the person who had struck the complainant, because he admitted to throwing a number of punches about at the time.

It is clear then that the only evidence the jury could reasonably have had regard to in convicting the appellant is the identification evidence of Kelly. None of the other witnesses saw who threw the punch that struck the complainant. Virtue conceded that the appellant may not even have been involved in the incident, and it seems clear that Jackson, some very short time after the incident, was convinced the appellant was not responsible for the assault. Indeed, as indicated, a concession was made by Lambert that he may have been responsible. There is also at least some evidence that the appellant may have been lying on the floor at the relevant time. In light of this evidence, it is clear that any purported identification of the appellant must be strong in order to support a conviction.

The evidence of Kelly is anything but strong. He was unable to accurately describe the appellant’s height. He was plainly wrong about the shirt the appellant was wearing at the time. He conceded that he did not know the appellant before the incident, that he watched him for at most a few minutes, and that there were a number of people at the top of the stairs at the time with a similar appearance to the appellant. His view of the assailant was obstructed by a number of people and he caught only “glimpses” of what was going on. He quite properly conceded that he may have been mistaken.

This Court, applying the test laid down by the High Court in M v R (1994) 181 CLR 487, will only interfere with a jury’s verdict where the Court concludes that no reasonable jury could have come to the conclusion beyond reasonable doubt that the accused was guilty. The evidence in this case is such that no reasonable jury could have concluded beyond reasonable doubt that the appellant was guilty. The evidence of the only identification witness, Kelly, is extremely weak and inherently unreliable. When considered together with the other evidence, although it seems reasonably plain that the appellant was in the general area, it is clear that there is a significant possibility that the appellant was not in any way involved in the attack on the complainant. There is a chance that the appellant struck the blow. However a mere chance that the appellant struck the blow is not enough. In order for the appellant to have been convicted, there must have been no reasonable doubt about his guilt. In this case the standard of proof has simply not been achieved on the evidence. The appeal must be allowed.

This is not a case where any further direction or warning in addition to the comprehensive warning as to identification given by the trial judge could overcome the weaknesses in the evidence. There is no basis to order a new trial.

The appeal must be allowed and the conviction overturned. There should be no new trial.