R v Duffy

[1992] QCA 31

IN THE COURT OF APPEAL [1992] QCA 031

SUPREME COURT OF QUEENSLAND

C.A. No. 30 of 1992

THE QUEEN

v.

SHANE ANDREW DUFFY

JUDGMENT - THE COURT

Delivered the Twenty-third day of March 1992

This is an appeal against conviction. On 23 January

1992, the appellant was convicted of two offences, one of

grievous bodily harm and the other assault, the victims being,

it was alleged, two people named Clunes and Faint - i.e. the

conviction of grievous bodily harm related to Clunes and that of assault related to Faint. The offences were said to have been committed on the night of 20 March 1991. The primary issue in the case was whether or not the appellant was correctly

identified as one of two persons who took part in an attack on

Clunes and Faint. Mr. O'Regan Q.C. argued for the appellant

that the jury's verdict was unsafe because the jury should not have been satisfied on the question of identification. He also

contended that the trial judge gave inadequate warnings on that point and, lastly, complained of what he said was the admission

of further evidence after the jury had retired.

Clunes and Faint gave evidence that they were
assaulted by two men, neither of whom did they previously know.
The Crown case was that Faint noted the registered number of a
vehicle in which the two people who attacked them travelled. It
was admitted that the vehicle, a Pulsar, belonged to the
appellant. According to the evidence adduced on behalf of the
Crown, each of Clunes and Faint independently picked the

appellant out as one of the two persons who assaulted them, by examining a collection of twelve photographs (Exhibit 2) prepared by the police. It is not clear from the transcript of

Faint's evidence that he identified the appellant, in the court

below, as one of the two assailants, but it is common ground

that he in fact did so. The appellant gave evidence which, if

accepted, would have established that he could not have committed the offences because at the relevant time he was at home with two other people, Julie Strain and Stephen Sutton,

both of whom gave evidence to support his alibi.

The appellant also called one Hansen, who said that on

the night in question, he had borrowed the appellant's Pulsar

and, with another man named "Robert", was involved in encounters with two people in a Suzuki car, that being the type of car in which Clunes and Faint were travelling at the relevant time. When it became known to the police, before the trial, that this

defence was being advanced, a second sheet of twelve photographs

(Exhibit 3) was prepared, including a photograph of Hansen.

Clunes and Faint were shown that sheet and did not pick Hansen

out as a person involved in the affair.

Identification, as has been pointed out, was the substantial issue; the jury did not have to consider that in isolation, but in the context of a positive case advanced by the

defence having two elements: alibi, and that Hansen, not the

appellant, was the offender (if any offence was committed).

It is necessary to give somewhat more detail, as to

the facts. There was two separate encounters. Clunes said at

the trial that he and Faint attended a show at a night-club in

the city on the evening in question, leaving about 11.45 pm.

They drove in Faint's Suzuki car along Turbot Street and then

into Wharf Street. Faint changed lanes there and people in

another car, which was plainly the Pulsar owned by the appellant, beeped the horn and yelled; Faint yelled back. The Suzuki pulled up at a set of lights shortly after that and a man

in the passenger seat of the Pulsar got out and punched Clunes

in the face. Faint, alighting from the Suzuki, attempted to

defend Clunes and was himself attacked. Because of the

intervention of a taxi driver, that fight stopped and the

occupants of the cars got back in; the cars were driven off. Shortly after that, the Suzuki was stopped to let Clunes collect

his own car, which was parked in a street off Boundary Street.

The Pulsar pulled up beside the Suzuki and the occupants of the

Pulsar then attacked Clunes and Faint, who fought back to some

extent. Part of Clunes' left ear lobe was bitten off and his jaw was broken in the incident. He was taken to hospital and

later underwent an operation to wire the fragments of his jaw in
place.

Clunes referred in his evidence to the person who attacked him at the scene of the second incident as the "defendant". He described him as having "dark hair, an olivey complexion, and he had - when his shirt came off I noticed he had a hairy chest. He had a very big build and a hairy chest".

He claimed to be able to identify the appellant easily and gave
evidence of having subsequently picked out the appellant's
photograph from a set prepared by the police, as explained

above; that occurred on 25 March 1991. He said that the light at the scene of the second attack was enough to enable him to "see the defendant, to see what was happening".

Faint gave evidence which was, as to the two incidents

just described, substantially consistent with that of Clunes.

His description of the person who was, according to the Crown

case, the appellant was:

"He had dark hair, he had a large build, large shoulders, hairy chest, olive skin, was about 6 foot ...".

He also said that the lighting at the scene of the second attack

was sufficient to enable him to "see everything" and of having picked out the photograph of the appellant from the set prepared

by the police; he did that on 26 March 1991. Before Faint

looked at the set of police photographs, Clunes had told him

that Clunes had identified someone from the set as being one of

the assailants.

Hansen's evidence was that he drove the appellant's

Pulsar along Wharf Street on the night of the two incidents and

"a blue Suzuki pulled out and I had to swerve to miss it". Hansen then gave a version of two encounters between the

occupants of the two vehicles - the Pulsar and the Suzuki - which was, in important respects, at variance with that given by Clunes and Faint. Some details of this should be mentioned.

According to Hansen, after the first encounter, the driver of

the Suzuki said:

"Follow us, you arseholes. We'll finish

this somewhere else".

This was not put to Clunes or to Faint, in cross-examination.

Hansen said that he and "Robert" followed the Suzuki to an

alleyway in Spring Hill and that a fight developed between Robert and the driver of the Suzuki. Hansen said that he got

out to watch the fight and was attacked by the passenger of the Suzuki. During the ensuing scuffle, Hansen bit the passenger on

the ear.

The jury had to consider, in determining whether
Hansen's evidence threw any doubt upon the veracity of Clunes

and Faint's evidence, the conflict between Hansen, on the one hand, and Clunes and Faint, on the other as to the course of

events on the night in question - quite apart from identification. It was not submitted that, as to that conflict,

the jury could not have accepted Clunes and Faint rather than Hansen. If they did so, that could have assisted them in determining whether Hansen was telling the truth when he said

that it was he and not the appellant who had injured Clunes. Of course, a conclusion that Hansen was lying would not itself have led to the inference that he was put up to it by the appellant.

It would, however, have left the presence at the scene of the

appellant's Pulsar quite unexplained.

It was not contended before us that Exhibit 2, the sheet of twelve photographs including that of the appellant was, if the Crown case was true, used unfairly; it was argued that a

line-up rather than photographs should have been used.

It was submitted that the verdict was unsafe because, amongst other things, the only evidence of identification consisted in the photographic identifications and a dock identification by Faint. It was, of course, a matter for the

jury whether they accepted any of the prosecution witnesses. But

if they believed Clunes, Faint and the police officer (S.J.

Dabinett) who arranged the photographic identifications, they had to consider whether, when each of Clunes and Faint

independently selected the photograph of the appellant from the

collection which became Exhibit 2, he did so correctly or otherwise. One difficulty for the defence was that it appears from a comparison of the photograph of the appellant in Exhibit

2 and the photograph of Hansen in Exhibit 3, that the two men

are quite dissimilar in facial appearance. The jury had ample opportunity to observe the appearance of Hansen and that of the appellant in court. On the Crown case, each of Clunes and Faint independently selected the appellant's photograph from Exhibit 2

as being that of the man who attacked Clunes. If that man was, in truth, Hansen, the jury might have thought the two mistaken selections of a man who looked quite unlike Hansen to be a remarkable coincidence.

It was also argued by Mr. O'Regan that Dabinett gave no explanation of his failure to arrange an identification parade. Mr. O'Regan argued that identification by police

photographs was prejudicial and unsatisfactory. Dabinett initially said that he located the appellant in May 1991, but

Duffy declined to answer questions, as did Hansen when

interviewed later. In cross-examination, Dabinett said that the

appellant refused to answer police questions until he spoke to a solicitor and that when Hansen was asked whether he was prepared to take part in an identification parade, said he would not do

so until he had seen a solicitor. Dabinett gave as a reason for
not asking the appellant to participate in a line-up:

"I was of the mind at that stage it would one (sic) be worthwhile because the photograph had already been viewed".

Here "one" should presumably be "wouldn't". Dabinett also

commented that line-ups are "very difficult to put together" and
that he had never done one.

It should be added that during the trial, the jury viewed the torso of each of the appellant and Hansen. This aspect of the matter is further discussed below.

Reference was made to discussions of the disadvantages of identification by the means used here. Gibbs C.J. in Alexander v. The Queen (1981) 145 C.L.R. at 400, 401, said there

were two grounds of objection:

"In the first place, the accused will of necessity be absent when the identification is made, and has no means of knowing whether there was any unfairness in the process or whether the witness was convincing in the way in which he made the identification. Secondly, the production in evidence at the trial of photographs coming from the possession of the police is very likely to suggest to the jury that the person photographed had a police record, probably for offences of the kind in question".

As to the first objection, it is true that since
neither the appellant nor any representative of his was present

during the process of photographic identification, it was

difficult for him to test whether this was done unfairly,

although one may remark that trickery could be used in a line- up. The second objection has not much weight here, in our opinion.

It appears to us impossible to say that the verdict was unsafe. An appellate court may, of course, set aside a conviction on this ground, merely from an examination of the record, and without the jury's advantage of having seen and heard the witnesses. This case appears to us far from that

category. If the jury accepted the Crown witnesses - and their story was not inherently incredible - the appellant was positively identified twice from the collection of photographs

and identified in court. As an identification problem, the facts were in a special class. The jury was entitled to take the view that the substantial question had been narrowed to

whether the offender was the appellant or Hansen, two people who do not resemble one another. As a practical matter, the choice

was between the Crown's case that the appellant was in the car at the relevant time, and the story given by the appellant and by Hansen that the appellant lent the car to Hansen. The Crown,

as the judge stressed, had to prove the Crown's case to be the truth, beyond reasonable doubt. Mr. O'Regan appeared at times

during the argument in this Court to suggest that serious

consideration should have been given by the jury to the possibility that Hansen did not borrow the car and that some

person other than the applicant and Hansen was the offender;

that seems fanciful.

In considering the likelihood of Hansen's truly being the assailant of Clunes, the jury could well have been assisted by the matter we have already mentioned, namely their

opportunity to form an opinion of the veracity of Hansen's account of the two incidents, as compared with that of Clunes and Faint.

On the authorities, it must be accepted that a line-up

is a method of identification preferable to selection from a

group of photographs, but it is not the only permissible method

of identification. In our opinion, the first ground of appeal
that the verdict was unsafe must plainly be rejected.

The second ground was that the trial judge (Boulton D.C.J.) failed adequately to direct the jury on the question of identification. The judge made a number of comments on that issue, some of which need to be quoted:

"Now, in every case where identification is a significant issue, it is incumbent upon a trial judge to remind the jury of probably what is already their own experience, namely, that identification of people is a difficult and, perhaps, subtle exercise. It is very hard when you think about it to identify the sorts of things which enable you to identify another person".

The judge then went on to discuss the possibility of
using features other than the face for identification -

distinctive voices and mannerisms being particularly mentioned.

His Honour then said:

"Of course, our chances of identifying someone are much better if we know that person well and, of course, are much better if we have got a good opportunity to observe that person over a significant period of time; much better if we get a chance to hear that person, see that person walk or observe that person's demeanour. What defence counsel said here is no doubt true, that in a line-up situation where a person is able to observe another person - not merely head and shoulders in a photograph which is two dimensional, but to observe his entire build, perhaps to observe the way that person might walk or stand - is a better situation than that of identifying a person from a photograph. Well, that would probably be self-evident to you ... Nonetheless, we don't live in a perfect world and the Crown case is the case that has been put before you. The Crown doesn't get any bonus points or anything like that. You have to look at the evidence that is before you and see whether, at the end of that evidence, you are satisfied beyond a reasonable doubt that it was this accused that was there on the night in question".

His Honour then suggested that the jury have regard to "the limitations that may have existed". He referred to the street lighting and the scuffling that went on, which he implied might interfere with identification and, as a matter in favour of the Crown, said that closeness in a scuffle might be some advantage in identification. His Honour said:

"... you must look very carefully at this aspect of the matter because it is possible to make mistakes about identification, particularly when the circumstances are not ideal. You have to really recognise that possibility. It is also very hard when one person says, 'Yes, I identify another person' - to contradict that - for the simple reason that it is not easy to know just what are the various bases upon which that identification might have been made".

It does not appear to us that anything else the judge said could be regarded as a specific warning on the question of identification.

It is difficult to specify in advance the precise warning which should be given to the jury on identification. Evidence of identification could be strong, uncontradicted and

of a kind which no rational person could easily reject, as when an offender is of unusual appearance and is identified by a number of people who know him well. In such circumstances, it would seem rather foolish for a trial judge to warn the jury against accepting the evidence. Nor can it properly be said, in our opinion, that a strong warning is needed in every case where identification depends upon a witness or witnesses' recollection

of the appearance of a person not previously known. The circumstances can vary greatly, so as to make a warning which is quite appropriate in one case incongruous in another. It

appears to us that some weight must be given, and respect accorded, to the trial judge's view as to what, in the atmosphere of the trial and having regard to what was put in addresses, is a fair warning. The problem for the jury here was not so much whether the perpetrator of the assault on Clunes was the appellant rather than anyone else in the world, but whether

it was proved to the requisite standard that it was the

appellant and not Hansen; the whole summing up was rightly

affected by that consideration.

There is some support in the authorities for the view

that it is important to tailor the warning upon identification

issues carefully to the facts of the case, although authorities

can be found tending the other way. In the former category is R. v. Aziz [1982] 2 N.S.W.L.R. 322 on which Hodgson J. commented

in R. v. De-cressac [1985] 1 N.S.W.L.R. 381 at 394:

"However, in New South Wales, cases such as R. v. Aziz [1982] 2 N.S.W.L.R. 322 do not support the necessity of particular directions of this type, but rather stress that the jury must be warned appropriately and thoroughly and have some discussion of the way in which the warning and the need for caution must be taken into account in the light of the particular circumstances of the case in hand".

His Honour's reference to "particular directions of this type"

was an allusion to R. v. Dickson [1983] V.R. 227, reference to which shows that it is authority for the giving, in the usual case, of certain particular warnings concerning identification evidence, including one of the danger of identification from photographs.

In The Queen v. Sainsbury (Court of Criminal Appeal, 13 December 1991, unreported), it was contended that directions concerning identification should have been given in accordance with the requirements of R. v. Turnbull [1977] 1 Q.B. 224 at 228. Thomas J. remarked:

"Whilst it is generally desirable that these particular points be made to the jury, I do not regard it as a rigid requirement that failure to make those particular points amounts to an error of law, or that their omission means that the summing up is unfair" (at p.6).

"It is I think undesirable to insist upon a rigid recitation of particular points on an issue such as this when subtle variations of circumstance may make a considerable difference. Such an insistence would result in sometimes inappropriate formula being solemnly recited to juries" (at p.7).

To our mind, the real risk of an incorrect verdict arising from the peculiarities of these facts was not of mistaken identification so much as dishonesty. It might have seemed to the jury very unlikely that, if Hansen was the true perpetrator, each of Clunes and Faint could have mistakenly

picked the appellant out from a collection of photographs; that

would not have seemed unlikely if the appellant had borne some facial resemblance to Hansen. It has to be said, further, that

the possibility of fraud in the identification process was not

probed by counsel for the appellant at the trial; we do not

suggest that this was a mistake in judgment on counsel's part. In what might be described as the ordinary case where the

question is whether an attacker, previously unknown to the

victim, is later identified as the accused, strong and clear warnings of the risk of mistaken identification will be necessary. Where the issue is, in substance, whether the attacker is proved beyond reasonable doubt to have been A rather than B, two persons not resembling each other, different

considerations might arise, as they do here.

It remains to be added that no application for redirections was made. This, of course, is not conclusive against the appellant, but makes it appear less likely that the summing up was inadequate in any important way. In our opinion, the appellant should not succeed on the ground that the summing up did not sufficiently explain the difficulty of identification; it did so adequately.

Mr. O'Regan's third argument was that a new trial should be ordered because of what he asserted was an error made by the judge during the time when the jury was considering its verdict. During the trial, each of the appellant and Hansen was asked to pull his shirt up, to show the jury his torso. The appellant was asked to do this because he had given evidence of having certain tattoos on either side of his shoulder blades.

This was relevant because Clunes' attacker had his shirt off,

but neither Clunes nor Faint saw any tattoos. With the same

point in mind, counsel for the appellant had asked Hansen to

lift his shirt and show the jury his back and chest, which had
no tattoos on.

During the jury's retirement, they asked if they could again see the appellant and Hansen with their shirts removed. Counsel for the appellant objected, on the ground that what was proposed would amount to new evidence, but the judge acceded to the request made by the jury, saying that:

"It seems to me that the jury want to refresh their memories of this aspect of the evidence of each of these persons. It seems to be analogous to having a part of the evidence reread for them".

Mr. O'Regan made to us the same objection as was made at the trial - i.e. this was allowing new evidence to be adduced after

the jury had retired.

There is authority in favour of the view that fresh

evidence may never be admitted after the end of the summing up:
see for example Gearing (1965) 50 Cr. App. R. 18 and Lawrence
(1968) 52 Cr. App. R. 163. But that absolute proposition is at

least doubtful: R. v. Hodgkinson [1954] V.L.R. 140 at 148,

Dryburgh v. The Queen (1961) 105 C.L.R. 532 at 535. Mr.

O'Regan's argument was that evidence should be allowed to be

adduced during the course of the summing up, if at all, only in exceptional circumstances: R. v. Bodi [1969] V.R. 36 at 39. It seems to us plain that the court has a discretion to allow further evidence to be given after the summing up is completed;

no doubt that would be allowed only in quite special cases. But here, all that was done was to show the jury, again, matters which they had been shown during the trial. There would have been no argument about it if the jury had asked to see exhibits, but different considerations may arise where the objects previously seen have not been tendered.

As was pointed out during the argument, the submission has an ironical aspect: had the jury been shown photographs of the two torsos, no doubt they would have been tendered and would

have been available for the jury's inspection - but with the disadvantage about which we heard in the first part of Mr.

O'Regan's argument.

Accepting that the jury's view during the summing up was part of the evidence, the same must apply to the view of the same torsos at an earlier stage. It was not suggested that there was any substantial difference between the two views. The

judge said that the second would be done "in as close a manner

as we can to the manner in which it occurred during the evidence that they gave during the trial". The case was not one in which

new evidence was allowed to be given during the summing up, but one in which the jury was given another look at evidence presented during the trial. There is no doubt about the judge's right to comply with a request from the jury to be shown an exhibit tendered during the trial and the same principle must apply to any other evidence placed before the jury during the trial. In our view, what the judge did in allowing the jury to see the torsos again was not only within his power, but a proper exercise of discretion.

A subsidiary argument was that the judge should have

given a special direction as to the significance of the view of

the torsos. In our opinion, there was no necessity to do so.

The appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 30 of 1992

Before the Court of Appeal

Mr. Justice Pincus
Mr. Justice McPherson

Mr. Justice Thomas

THE QUEEN

v.

SHANE ANDREW DUFFY

JUDGMENT - THE COURT

Delivered the Twenty-third day of March 1992

MINUTE OF ORDER:  The appeal against conviction is dismissed.

CATCHWORDS: EVIDENCE - IDENTIFICATION - Appellant convicted of grievous bodily harm and assault after being identified from collection of photographs - whether verdict unsafe in light of manner of identification - whether line-up is the only permissible method of identification - whether warning on this issue sufficient.

Counsel:	Mr. M.M. Byrne for the Crown Mr. R.S. O'Regan Q.C. with Mr. M.J. Burns for the Appellant
Solicitors:	The Director of Prosecutions for the Crown W.P. Blake for the Appellant
Hearing Date(s):	25 and 26 February 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 30 of 1992

THE QUEEN

v.

SHANE ANDREW DUFFY

_______________________________________________
Mr. Justice Pincus
Mr. Justice McPherson
Mr. Justice Thomas

_______________________________________________

Judgment of the Court delivered on 23rd March 1992.

_______________________________________________
Appeal against conviction dismissed.
_______________________________________________