R v DOLFEN

[2011] SASCFC 45

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DOLFEN

[2011] SASCFC 45

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Kelly and The Honourable Justice Peek)

18 May 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction – appellant convicted of aggravated causing serious harm with intent to cause serious harm – where victim chased from a street into a park at night and stabbed with a knife – victim previously knew the appellant as a friend and recognised the appellant as his attacker – victim failed to promptly identify his attacker to his mother and police after the stabbing – appellant allegedly confessed to independent third party – whether inconsistency in accounts given by third party and victim in relation to a subsequent meeting or sighting of the accused and the victim – whether conviction unsafe and unsatisfactory having regard to the evidence.

Held: (Kelly J, Doyle CJ and Peek J concurring): Appeal dismissed – although some aspects of the evidence open to criticism, the trial Judge gave detailed instructions in respect of the evidence – no inconsistency demonstrated in accounts given by third party and victim in relation to a subsequent meeting or sighting of the accused and the victim – verdict not unsafe.

M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559, discussed.

R v DOLFEN
[2011] SASCFC 45

Court of Criminal Appeal:   Doyle CJ, Kelly and Peek JJ

1. DOYLE CJ:          I would dismiss the appeal against conviction.  I agree with the reasons of Kelly J.

2. KELLY J:             After a trial by jury in the District Court the appellant was convicted of one count of causing serious harm with intent while in possession of a knife.

3. The charge arose out of an incident in which a 20 year old man was chased into a park and stabbed at Aldinga Beach in the early hours of the morning of 17 December 2007.

4. The prosecution case was based on the evidence of the victim, Travis Laidlaw, who identified the appellant as his attacker, and an associate of the appellant’s to whom the appellant admitted the stabbing.

5. The appellant appeals the conviction.  The sole ground of appeal is that the conviction is unsafe and unsatisfactory and cannot be supported having regard to the evidence at trial.  Two main arguments were advanced in support of the ground of appeal.  The appellant submitted that the credibility and reliability of the victim’s identification of the appellant as the offender was undermined to a significant extent by the failure of the victim to promptly identify the appellant as his attacker after the stabbing.  The appellant also argued that the jury should have entertained a reasonable doubt whether any confession as recounted by the appellant’s associate, Mr Cutts, was ever actually made.  It was said that the inherent unreliability of both the identification evidence and the evidence of the alleged confession should have left the jury with a reasonable doubt and that the conviction is unsafe and unsatisfactory. 

   Background

6. The appellant and the victim both resided at Aldinga Beach.  Prior to 17 December 2007 the two men were acquainted.  They had previously met each other earlier in 2007 when the appellant and the victim both lived in the same street, namely Dover Street, Aldinga Beach.  For several months the victim lived in a house not far away from the house where the appellant lived on the corner of Pengilly Drive and Dover Street, Aldinga Beach.  From time to time the appellant would stop at the victim’s home and go in for a drink or a smoke.  From time to time the victim went to the appellant’s house as well.  The home in which the appellant lived was just across the road from John Nicholl Reserve, the park where the victim was stabbed on the morning of 17 December 2007.

7. After the victim left the address at which he had been staying in Dover Street, he did not have any further contact with the appellant.  Although he was very vague about times and when various things happened, the victim agreed with the suggestion made to him in cross‑examination that as at 17 December 2007 it was approximately eight to 10 months since he had last seen the appellant.

8. The victim’s account was that on the morning of 17 December 2007 at about 2.00 or 3.00 am he found himself wandering about the streets of Aldinga Beach after an argument at his mother’s home.  On his way back to his mother’s house he found himself on the opposite side of the road to “Jules’” (as he referred to the appellant) house.  He was intending to cross the road diagonally in front of the appellant’s house and walk through the park back to his mother’s house on the Esplanade when suddenly he heard someone saying “you’re fucked”.  When he looked over to the appellant’s house he saw the front door of the appellant’s home open and the appellant run at him holding what the victim initially thought was a bat.  Another man came out of the house at the same time as the appellant and ran in the opposite direction down Pengilly Road.  The distance between the appellant and the victim at the time the victim first saw him coming out of the home was around 6 to 7 metres.  There was street lighting above them in the street. 

9. After seeing the appellant run at him with what he thought was a bat or a knife the victim said he turned and ran in fear towards the park.  He was stabbed not far into the park and managed to make his way back to his mother’s house, where he asked her to take him to the hospital.  The victim has no memory of arriving at the Noarlunga Hospital and said that the next thing he recalled was waking up in the Flinders Medical Centre where he spent the next five days.  At about 9.55 am that morning a surgeon at the Flinders Medical Centre commenced an operation to repair his perforated bowel.  The Doctor described the injuries suffered by the victim as very serious and potentially life threatening. 

10. Ten minutes prior to the operation at 9.45 am a police officer named Hlavnika spoke with the victim.  At that stage the victim told the police he did not see the attacker as it was too dark.  The police officer described the victim’s state at the time he spoke with him as very groggy.  According to the police officer, the victim appeared to be in a lot of pain and distress and appeared to be passing in and out of consciousness.  The police spoke with the victim a few days later on 20 December 2007.  At that time the victim told the police he thought he knew who might have been the offender and that he might be able to identify the crime scene. 

11. On 28 December 2007 the victim gave a full statement to the police in which he named the appellant as his attacker.

12. An associate of the appellant, Mr Steven Cutts, said that he became socially acquainted with the appellant when he lived next door to him for about 12 months in about 2008.  Mr Cutts described an occasion in which he and the appellant were at the Aldinga shops when Mr Cutts observed the victim coming out of the shops.  He said two men came out of the shop within approximately five metres of himself and the appellant.  One of the men pointed to the appellant and said “that’s the guy who stabbed me”.  After that encounter at the Aldinga shops the appellant confessed to Mr Cutts that he had chased Mr Laidlaw into the park and stabbed him with a knife.  The witness agreed with the proposition which was put to him in cross‑examination, that the sighting of the victim at the Aldinga shops occurred in about May or June of 2009, however he added that he was not too good with times.  The victim on the other hand said that he saw the appellant again after 17 December 2007, about 10 months later, at a pub.  That evidence was elicited by the prosecutor in re‑examination after the victim had earlier been asked in cross‑examination whether he saw the appellant again after 17 December 2007.  The appellant was never asked either by the prosecutor or by the appellant’s counsel whether there was any other occasion in which he had seen the appellant after the stabbing.  The matter was left open‑ended.

13. It emerged from the evidence of the police officer and the victim’s mother that the victim did not identify the appellant as his attacker until 28 December 2007 when he gave a statement to the police.  His explanation for his failure to tell his mother on the night of the stabbing was because he felt in such a bad way and needed to get to the hospital.  He said his main concern was about stopping the blood coming from the wound where he had been stabbed.  All he told his mother was that some guys had attacked him with a baseball bat. 

14. The appellant did not give evidence at the trial. 

    Arguments on Appeal

15. Counsel for the appellant submitted that the failure of the victim to identify the appellant as his attacker either to his mother who he spoke to a few minutes later or to the police officer in answer to specific questions at the hospital later that morning is crucial to the credibility and reliability of the later identification of the appellant as the offender.  Mr Charman pointed to the fact that even as late as 20 December 2007, some three days after the attack, all that the victim said to the police was “he thinks he knows who might have been the offender”.  Mr Charman pointed to the circumstances in which the offence occurred namely late at night in an unlit park and in circumstances where the victim saw his attacker only briefly before turning to run away.  In these circumstances he submitted that the jury ought to have entertained a reasonable doubt as to whether there was any recognition at all by the victim of the appellant. 

16. With regard to the confession the appellant allegedly made to Mr Cutts counsel submitted that the jury should also have entertained a reasonable doubt about whether the meeting outside the Aldinga shops ever occurred at all.  No evidence was led from the victim about any such meeting and Mr Cutts had access at least to some of the prosecution brief shown to him by the appellant in circumstances where he could have gleaned information about the attack.  In those circumstances it was said the inherent infirmities in the evidence of both the victim as to the recognition of the appellant and the alleged confession created a fundamental difficulty in the prosecution case and the jury could not have been satisfied beyond reasonable doubt.

    Analysis

17. The evidence relied on by the prosecution to satisfy the jury beyond reasonable doubt was, in effect, the evidence of the victim, Mr Laidlaw, and the evidence of Mr Cutts.

18. There is no doubt that some aspects of the evidence of the victim were open to criticism.  The fact that he did not identify his attacker either to his mother or to the police officer who specifically questioned him about it, was an important matter going to the credibility and reliability of the victim’s evidence that he recognised the appellant as his attacker.  The circumstances in which the attack occurred were also relevant to the strength of the evidence of identification.  The fact that it was dark, and that the appellant only saw his attacker very briefly before turning to run were also important matters for the jury to consider.  However, as the photographs which were tendered at trial demonstrate, the victim’s evidence that there was overhead lighting in the area in the street where he first saw the appellant emerge from his house, is plainly correct.  The victim’s evidence was that he was some 6 to 7 metres away about to cross in to the park when he heard the words “you’re fucked” and turned to see the appellant emerge from the house on the corner block.  The location where the stabbing occurred was in a dark and unlit park, however the recognition by the victim of his attacker occurred in the street adjacent to the appellant’s house.

19. Moreover the appellant was well known to the victim.  They had socialised together sometimes in the very house from which the victim said the appellant emerged that night. 

20. The trial Judge gave detailed instructions to the jury about each of the infirmities in the victim’s evidence which have been criticised on this appeal.  On the circumstances in which the offence occurred his Honour directed the jury:[1]

    The incident took place at night. Mr Laidlaw says the lighting was good on the street and there are street lights on the Stobie pole in front of the accused’s home and there is another street light around the corner on Dover Street. However, Mr Laidlaw was unable to remember whether both of these lights were on at the time but he did say that the lights in the accused’s home were on. Mr Laidlaw says that the accused was some 6 to 7 m away from him and that he then turned and ran and that he did not look back, and when one studies the geography as it can be discerned from the photographs, it would seem that the man who came out of the front door holding the implement by his side as described by Mr Laidlaw would not have had to move very far to be about 6 or 7 m from Mr Laidlaw. Thus, and although it is entirely a matter for you, you might well think that Mr Laidlaw can only have seen the man holding the implement for a very short time before he turned and ran.

    [1]    Summing Up at 11.

21. His Honour reminded the jury that the victim had been drinking earlier that night, that the victim and the appellant shared only a casual acquaintanceship and nothing more and that the last time the victim purported to have seen the appellant was some 10 months previously.  The trial Judge gave very detailed instructions on the matters relevant to the identification of the appellant and how the jury were to evaluate that evidence.

22. In addition to the victim’s evidence of identification of the appellant there was the confession which the appellant made to the witness Mr Cutts.  A striking feature about that evidence is that there was no suggestion that Mr Cutts knew the victim prior to these events.  On the contrary Mr Cutts was an associate of the appellant’s.  He was in the company of the appellant on the day when he and the appellant encountered the victim outside the Aldinga shops.  It is true that the circumstances of that encounter described by Mr Cutts do not appear to accord with the evidence of the victim that he saw the appellant again some 10 months later at a local pub.  Curiously however, as I pointed out earlier, neither counsel specifically questioned the victim as to whether he ever saw the appellant on more than one occasion after 17 December 2007.  It was never directly suggested to him that he only ever saw the appellant again once after the stabbing.  To that extent there was no direct inconsistency in the account given by either of the two prosecution witnesses as to any subsequent sighting of or meeting with the appellant after the stabbing. 

23. Leaving that aside however, there was nothing in the evidence of Mr Cutts concerning the confession made to him by the appellant to suggest that the information imparted by the appellant could have come from anyone other than either of the two participants in the event, namely the stabber or the victim. 

24. The appellant told Mr Cutts that he heard rustling noises in his front yard and then went out to investigate.  He chased a person out of the front of his house with a knife into a park just off Dover Street and stabbed him there.  He named that person as Travis Laidlaw.  He also told Mr Cutts that he went away to Melbourne after the incident to get away from it all.  The detail in that confession recounted by the appellant has the hallmarks of a spontaneous and truthful account.  Moreover, it accords with the known facts.  It was evidence, if accepted by the jury, which was capable of supporting the victim’s account that it was the appellant who chased him and stabbed him in the park on the morning of 17 December 2007. 

25. The question for this Court is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt.  In M v The Queen[2] the High Court expressed the test as follows:

    Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

    [Footnotes omitted]

    [2]    M v The Queen (1994) 181 CLR 487 at 493.

26. The remarks of Hayne J in Libke v The Queen[3] (with whom Gleeson CJ and Heydon J agreed) are pertinent to the present facts.  He observed that the question for an appellate court when considering whether a conviction is unsafe or unsatisfactory is whether it is open for the jury to be satisfied of guilt beyond reasonable doubt, that is to say, whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.  It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.  The critical question for the jury is what assessment it makes of the whole of the evidence.[4] 

    [3]    Libke v The Queen (2007) 230 CLR 559.

    [4]    Libke v The Queen (2007) 230 CLR 559 at [113].

27. The evidence of the identification by the victim of the appellant together with the evidence of the confession made to Mr Cutts was, in my view, sufficient to satisfy the jury beyond reasonable doubt.  The infirmities in the evidence of both the victim and Mr Cutts were squarely before the jury.  There has been no complaint about the manner in which the trial Judge warned the jury how they should approach that evidence.  As I noted earlier, the trial Judge spent a good part of the summing up reinforcing the dangers inherent in identification evidence, particularly where the person identified has been previously known to the identifier. 

28. The various infirmities in the evidence of both the victim and Mr Cutts which gave rise to the submission that their evidence was unreliable and therefore could not be believed, were all mattes for the jury, properly instructed as they were, to assess and determine.  The fact that Mr Cutts and the victim were not known to each other prior to these events underscores the fact that the evidence of Mr Cutts was independent. 

29. After carrying out my own independent assessment of all of the evidence before the jury in this matter I have no misgivings about the verdict. 

30. For these reasons I would dismiss the appeal.

31. PEEK J:   I agree with the order proposed by Kelly J and with her Honour’s reasons.