R v Feiloakitau

[1993] QCA 522

IN THE COURT OF APPEAL [1993] QCA 522

SUPREME COURT OF QUEENSLAND

C.A. No. 332 of 1993.

Brisbane

[R v. Feiloakitau]

T H E Q U E E N

- v -

SIAOSI FOTU GEORGE FEILOAKITAU

(Appellant)

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The Chief Justice
McPherson J.A.

Pincus J.A.

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Judgment delivered 14/12/93
Joint reasons for judgment delivered by Pincus J.A. and McPherson J.A., the Chief Justice separately. All concurring as to the orders made.
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APPEAL ALLOWED, CONVICTION SET ASIDE AND A NEW TRIAL ORDERED
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CATCHWORDS: CRIMINAL LAW - summing-up - appellant convicted of stealing a handbag with actual violence - appellant and co-accused brought in police car to witnesses and victim for identification - appellant identified by victim and one witness mainly by build and clothing - co-accused recognised by other witness - whether trial judge adequately emphasised the weaknesses in the Crown

identification case, especially

unsatisfactory method of identification, cross-racial identification, and the absence of real opportunity to observe the offenders - whether conviction unsafe.

Counsel:	Mr T Carmody for the appellant. Mr P Callaghan for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.

Hearing Date: 05/11/93.
IN THE COURT OF APPEAL

Q UEENSLAND

C.A. No. 332 of 1993

B	risbane
Before	The Chief Justice Mr Justice McPherson Mr Justice Pincus
[	R v. Feiloakitau]

T H E Q U E E N

v.

SIAOSI FOTU GEORGE FEILOAKITAU

(Appellant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 14/12/93

I agree with the conclusion expressed by Pincus and McPherson JJ.A. in their joint reasons which they have prepared and apart from what I wish to say on one aspect of the Crown case there is nothing I want to add.

It has been pointed out that not long after the robbery occurred the appellant and his co-accused were found together in another suburb it appears and the appellant was wearing a shirt of about the same colour as was said to have been worn by one of the two robbers and the co-accused a shirt of about the same colour as that worn by the other robber. Since we are making an order for a new trial it is desirable to say something about the way in which the trial judge should direct the jury to treat this particular evidence if it emerges again in the retrial. In my view the judge should inform the jury that they should not allow it to reduce the vigilant scrutiny which, in accordance with his other directions, they will be giving to the identification evidence and he should indicate that it would be wrong to use it to compensate for any deficiencies which they might perceive in the identification evidence.

Essentially, identification evidence is evidence which becomes available when a person has observed another in the act of committing an offence or in closely related circumstances which other evidence can connect with the offence and its commission. The person who purports to make the identification will have had a view of the offender or the presumed offender and will subsequently see one who he says is the same person. Evidence merely of proximity or other evidence of opportunity to commit an offence can be part of the circumstantial evidence in a case but may not by itself be probative. Other evidence which has conveniently been categorised as "circumstantial evidence of identity" (see Cross on Evidence 1991 edition, para. 1455) is to be distinguished from evidence usually called "identification" evidence.

Shared points of resemblance in two observations which are made such as in respect of sex, skin colour, height etc. do not by themselves identify an offender or even tend to implicate him unless a reliable witness is able to go further and say, perhaps with subconscious reliance on factors such as those mentioned and other factors "yes, that is the one".

In the present case apart from what can be regarded strictly as evidence of identification there was no evidence independently capable of supporting a conviction. This feature distinguishes it from Domican v. The Queen (1992) 173 C.L.R. 555, a recent authoritative decision where guidance is given on the way in which identification evidence should be treated. In Domican there was other evidence independently capable of supporting a conviction (see at 566) yet even so it was said that the "adequacy of the warning (in respect of the identification evidence) has to be evaluated by reference to the identification evidence and not the other evidence in the case" (see at 565).

In the present case there were no very precise characteristics ascribed to the shirts worn by the offenders at the scene. The description of the shirts when given by the witnesses seems to have gone no further than a general reference to colour. Therefore the later discovery by the police of the appellant and his companion in shirts, which, as to their colour had some conformity with the kind worn by the offenders, cannot be said to amount to evidence of identification of them as the offenders. The fact that the police, no doubt basing themselves on the witnesses' description of the offenders, located the appellant and his companion is not itself independent evidence of identification. Unless the jury are told when they are considering the identification issue to disregard the evidence of the two being found together there is a danger that the evidence will be misused by them. Had the shirts worn by the appellant and his companion been non-conforming with the earlier description given by the witnesses, that would, depending on the time interval, have tended to show they were not the offenders but the opposite does not apply when the nominated characteristic viz. their colour is so general.

There is some difficulty in discussing the present question only by reference to the evidence in the trial below and without knowledge of the exact state of the evidence as it will be. It is possible that on the retrial which it is presumed will occur the evidence which I have been discussing will emerge differently. However, the point which I consider ought to be made is that the jury should not be offered any encouragement to use evidence, which is not evidence of identification, to supplement any deficiencies which they might think exists in the identification evidence.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 332 of 1993.

Brisbane

Before The Chief Justice
McPherson J.A.
Pincus J.A.

[R v. Feiloakitau]

T H E Q U E E N

- v -

SIAOSI FOTU GEORGE FEILOAKITAU

(Appellant)

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND McPHERSON J.A.

Judgment delivered 14/12/93.

This is an appeal against conviction. Two men, one of them the appellant, were convicted of robbery in company with actual violence, the offence being alleged to have occurred on the morning of 4 September 1992. The robbery alleged was a handbag snatching, the victim being a Mrs Tat, and the questions raised relate to proof of the identity of the robbers. It was argued that the conviction was unsafe and that the judge did not sum up correctly on the issue of identification.

Mrs Tat said that her handbag was snatched in Sherwood Road about 10.15 a.m.; somebody came beside her and grabbed her bag and ran. Mrs Tat ran after that person and then a bigger person pushed her aside and also ran away. Mrs Tat screamed and chased after the two people, who ran down an alleyway, then towards the back of a shop where they jumped over a couple of fences and went towards the railway station. She said that the person who grabbed her bag was "sort of Aboriginal, Islander origin" and was wearing a "brownish mustardy sort of colour, yellowish colour top". She did not recall whether the top was long or short sleeved, nor whether the fellow had short or long trousers, nor whether he had anything on his head; she thought him to be a teenager. The second person, according to Mrs Tat, was wearing a purple shirt; again, she did not remember whether it was long or short sleeved, whether the trousers were short or long or anything about headwear. Mrs Tat spoke to the police and gave them a description of the two people who had robbed her; later on that day the police brought two men to her and she identified them as the robbers. Mrs Tat thought each of the robbers was Aboriginal or Islander in origin. One person identified was the appellant and the other a co-accused, one Pulou.

A second identification witness relied on by the Crown was a Ms Bowness, a bank officer, who was working in Sherwood Road; hearing a scream, she saw people running past, two of whom appeared to bump into each other. She said one of them was wearing a "mustard, brownish coloured shirt and was dark olive in skin tone". She saw them only for "a couple of seconds maybe". Like Mrs Tat, Ms Bowness had the appellant and Pulou brought to her and identified one of them as being the person in the shirt just described; that one was the appellant. She did not recognise his face, but recognised "the colour of the shirt and the build". She was unable to recognise the other person brought to her by the police.

The third identifying witness was a Mr Simon, a store
keeper in Sherwood Road. He was looking outside his store when
he saw a young man running past a lady, who started screaming.
Mr Simon left his shop and saw a man scaling a fence; he
"actually stopped for a second and I actually saw his face". Mr
Simon described the man as being of Islander origin and in his
teens. Again, the police brought two people to him to be
identified, as to one of whom, Mr Simon was "a hundred percent
sure it was the same person". He was unable to say anything

about the other. The person Mr Simon identified was not the

appellant but his co-accused, Pulou.

The evidence was that the appellant and Pulou were found playing video machines at Oxley not long after the robbery. The appellant was wearing a mustard coloured top and dark track pants and Pulou was wearing a purple top and blue denim jeans. The appellant had a cap on, underneath which was tied a handkerchief "in a bandanna style". Both appellants denied involvement in a robbery.

It is convenient to consider first the criticisms of the summing-up. The judge gave a fairly elaborate general direction about the difficulties of identification, some of which had relevance to the particular facts of the present case. No complaint is, or reasonably could be, made of this part of the summing-up. What is argued for the appellant is that the judge did not deal thoroughly or strongly enough with the weaknesses in the Crown identification case. The specific points to which the judge drew the jury's attention were as follows:

a.   The three identification witnesses may have made their identifications of the people brought to them by the police because they expected 'to see something there". His Honour asked:

"Did that expectation unwittingly for them induce a transposition of the recollections so that their identification is inaccurate, even though unwittingly so?"

b.    It is easier to identify people whom you know than those you do not know.

c.    Mrs Tat might have been shocked by being robbed and that could have affected her identification of two persons "of whom she became aware rather suddenly".

d.    Simon might have been excited and perhaps distracted.

e.    Ms Bowness had only a limited view and the identification of only but a colour of a shirt and a "general figure with it".

We are of the view that a number of weaknesses should have been emphasised in the summing up.

1.    The unsatisfactory method of identification.

We agree with the submission that the direction on that subject was not strong enough, although some reference was made to it, as appears from what has been said above. In our view, the judge should have told the jury that the police method of presenting the appellant and his co-accused to the three potential identifying witnesses was quite unsatisfactory; the two men were presented as suspects and the method used did not put the witnesses to the test of picking the offenders out from others. The jury should have been told that an identification parade is the best method, but short of that, some other means such as the use of photo boards would have been much more reliable than simply presenting the two suspected persons and asking the witnesses if they were the offenders.

2. Cross racial identification.
We agree with the contention on behalf of the appellant,

and express the view, that the jury should have been warned that people find it more difficult to identify a person from another racial group than one from their own racial group. It should have been pointed out that this was, in the present case, a factor making the identifications less reliable, and that a person of e.g. European origin could not be expected to identify one of Aboriginal or Islander descent as easily as another European would be identified. This point is not of as much significance as that dealt with in para. 1.

3.    Simon did not identify the appellant. This may have seemed too obvious to mention, but we think

it should have been emphasised that Simon's evidence assisted
the Crown only indirectly, in relation to Feiloakitau.

4.    The absence of real opportunity to observe the offenders.

On the evidence, that applied principally to Ms Bowness, who saw the two people through a window only for "a few seconds" or "a couple of seconds". It should have been pointed out that Ms Bowness did not see either of them well enough to be able to recognise a face, later the same day, and she professed to be able to recognise only one, namely the man in the mustardy- coloured shirt, and only by "the colour of the shirt and the build". The jury should have been told that the evidence of Ms

Bowness, for these reasons, was of some, but limited, value on the question of identification. We are conscious of the judge's having given a brief direction which would have discouraged the jury from giving too much weight to the evidence of Ms Bowness, but do not think, with respect, that his Honour went into sufficient detail about the weaknesses of her evidence.

The duty of the trial judge in cases of disputed identification as laid down in Domican (1992) 66 A.L.J.R. 285 is an onerous one. The attention of the jury "should be drawn to any weaknesses in the identification evidence" and the 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 identification evidence": Domican at 288. Although the summing-up in the present case was a fair and balanced one, we have been unable to be satisfied that, in the respects just indicated, it measured up to the standard which the law requires.

One of the difficulties about summing-up on identification is that no mechanical formula will do; nor is it enough to recite or summarise the submissions made by counsel. If there are significant weaknesses in the Crown case on identification, they must be pointed out to the jury quite explicitly and the jury must be given to understand that they are weaknesses.

Mr Carmody argued that the conviction was, quite apart from the summing-up, unsafe because the Crown case on identification was too weak. It was certainly not a strong case, but we are of the view that a conviction on the basis of it could be supported. Success for the Crown depended upon acceptance of, for example, Mrs Tat's evidence that the two men she was chasing looked back at her and Simon's assertion that he was "a hundred percent sure" that the appellant's co-accused was the person he had seen scaling the fence. Simon said that he got a good look at the face of that man when he was scaling the fence. Admittedly, that identification gives only indirect assistance to the Crown case against the appellant; but as was pointed out during argument, it was a coincidence that when the appellant and co-accused were found together not long after the robbery, each was wearing a shirt of about the same colour as was said to have been worn by one of the two robbers. The Crown case was by no means without its difficulties, the chief being the unsatisfactory method the police adopted when inviting the three eye witnesses to identify the appellant and the co-accused; but it was not suggested that that made the identification evidence inadmissible, and the question whether it should be accepted is in the end a jury question.

The appeal will be allowed, the conviction set aside and a new trial ordered.