R v Hackett
[2006] VSCA 138
•27 June 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 79 of 2005
| THE QUEEN |
| v. |
| JOHN FREDERICK HACKETT |
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JUDGES: | BUCHANAN, NETTLE, JJ.A. and BONGIORNO, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 June 2006 | |
DATE OF JUDGMENT: | 27 June 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 138 | |
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CRIMINAL LAW – Armed robbery – Evidence – Identification evidence – Identification made from photo board – Contrasting evidence of other eye-witness – Whether judge failed to deal with distinction between identification evidence and similarity evidence – Whether judge needed to warn jury of “displacement effect” – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.A. Gamble | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr M.J. Croucher | Michael Gleeson & Associates |
BUCHANAN, J.A.:
I will ask Nettle, J.A. to deliver the first judgment.
NETTLE, J.A.:
Following a three-day trial in the County Court at Melbourne, on 18 March 2005 the applicant was convicted of one count of armed robbery, for which he was sentenced to six years' imprisonment with a non-parole period of four years. He now seeks leave to appeal against conviction and sentence.
The facts
The offence was alleged to have taken place in Acland Street, St Kilda at around midnight on Tuesday 11 November 2003. The applicant denied committing the offence. The Crown called the complainant, an eye witness (Mr K) and the informant, Senior Constable Quinlan, and by agreement read to the jury the statement of a medical practitioner (Dr Lim). The applicant did not call any evidence.
The complainant's evidence in chief was that on 11 November 2003 she left her friend's house in Carlisle Street, St Kilda at approximately 11.50 p.m., having consumed no alcohol. She walked along Acland Street, just past Robe Street, when she observed a man alone 50 metres away on the same side of the road and walking towards her. He was wearing dark clothing and had his hands in his pockets and at first sight the complainant thought that she knew him.
The complainant said that the man had his head down as he walked towards her and consequently she could not observe his face from the "far distant". But as he got closer (approximately five metres away) she could see that he was wearing a dark beanie pulled down just above his eyebrows and could see his face. She realised then that she did not know him. She continued to watch him, however, because she was scared and, as they were about to pass, the man stepped across her and cut her off, standing just in front of her face.
The complainant said that the man pulled a knife from his pocket in his right hand and said: "Give us your bag, will you?" She did not, and so he then tried to pull her handbag off her right shoulder with his left hand. She in turn pinched her arms towards her body to hold on to the bag and turned around, and when she did that the man put the knife up against her throat for approximately two seconds. She sat down to avoid the knife and the man then attempted to pull the handbag away from her, causing her to lie down. He continued the attempt as she lay on the ground and as part of the process he kicked her five times to her upper arms and the side of her body.
The complainant said that she began to scream and the man told her several times to stop screaming. Eventually, however, the bag broke, causing a lot of her belongings to fall out, and the man grabbed the bag and ran away, turning left into Robe Street.
In giving evidence as to the man's identity, the complainant said that as well as seeing the man's face as he got to within about five metres of her, she was also able to observe him for three or four seconds when he "cut her off" and for a further 30 seconds when he was standing over her and she was looking straight up at him and was able to see his face clearly. She described the lighting where the incident took place as beneath a light-pole, although the lighting, other than from the street lights, was pretty dark.
She described the man as being approximately 180 centimetres tall[1] and aged "about" mid-forties with "very white" long hair that could be seen underneath his black beanie. She said that he had a very distinctive rough face with two thick-scarred lines from the cheekbones travelling down his face, and that he had a very husky or rough voice with an Australian accent. She stated that he had a black beanie, and had slim legs and was wearing very tight dark pants and a shiny dark jacket which went down to the waist and had a flat collar and a zip. When shown photograph 6 of Exhibit C, she stated that the jacket was "similar in the waist and the collar".
[1]The complainant is 176 cm tall.
The complainant said that after the attack she went to the police station and at 1.26 a.m. made a statement to police. She then returned home and consumed half of a glass of sparkling strawberry wine before going to sleep.
She explained that police next attended on her at her home at 9.30 a.m. on 12 November 2003 and that she subsequently identified the assailant in a photo-board at photograph number 5 (Exhibit A). In her evidence in chief she stated that she was certain that the person depicted in that photograph was the assailant.
In cross-examination the complainant conceded that she had said in her statement to police that when she first observed the man he was only 20 metres away; not 50 metres as she had said in her evidence in chief. She also conceded that the clothing depicted in photographs taken of the applicant when arrested was not the same as that which she had described her assailant as wearing. In particular, the beanie shown in photographs 1 and 2 of Exhibit C was not black but green and the jacket shown in photograph 3 was brown and did not sit on the waist. But she said that it was similar to what she had described.
During cross-examination the complainant admitted that her reaction when shown the photo array was to point to photograph 5 and state that it " ... Looks similar to Photo No.5, he had longer hair but same face ... that's him, I'm pretty sure, that's him, he has the same lines on his face". She also admitted that she had said at the committal hearing that she could not be 100% sure but was 99.5% sure that the applicant was her attacker. She explained that the fact that the photograph was in black and white meant that she could not observe the colour of his hair.
Evidence of the eye witness
The eye witness (Mr K) stated that on the evening of Tuesday 11 November 2003 he had consumed about four cans of Jim Beam and Cola at a pub in St Kilda. He then left the pub between 11.30 p.m. and midnight and walked along Acland Street, St Kilda. As he walked along the street he heard a woman scream from the opposite side of the street. The lighting in the area in which he was standing was not good but the assault on the other side of the road took place directly beneath a light pole and was well lit. He said that he was able to see the female being assaulted but did not have a clear view of the assailant.
He stated that he "scattered around pressing doorbells, trying to wake people up in the area" but nobody came to his assistance. He was slightly off the street when the assailant ran past him, and police attended within five to ten minutes.
Mr K made a statement to police the following evening (12 November 2003) at 8.20 p.m. His evidence, which was in accordance with his statement, was that the assailant was late thirties, early forties, with darkish hair; a "fairly tall man". Mr K said that he was five feet eleven inches tall and that the assailant was taller than him. The assailant was wearing daggy old clothing, "what a homeless person would wear"; jeans and a nice warm jacket.
In cross-examination it was put to Mr K that he could not "really describe the person you say was the attacker", and he answered "No". He also said that his short-term memory had been affected by a car accident.
Evidence of Senior Constable Quinlan
Senior Constable Quinlan gave evidence that he attended the complainant at her home at 9.30 a.m. on 12 November 2003 and that she had then identified photograph 5 of the photo-board as being that of her assailant.
He said that he later attended the crime scene and was present while the complainant performed a re-enactment, and that the complainant was transported for a medical examination.
Senior Constable Quinlan said that at approximately 11.05 a.m. he attended the applicant's home, which he described as being approximately half a mile from the crime scene, and found there the applicant and a woman.[2] He said that the applicant was wearing a brown jacket, black T shirt, dark pants and runners (as depicted in photograph 3 of Exhibit C) and that there was a green beanie on the applicant's couch which he retrieved (Exhibit F - depicted in photograph 1 of Exhibit C).
[2]Who later disappeared.
Senior Constable Quinlan added that police again attended the vicinity of the crime scene after the complainant telephoned to say that she had located some of her belongings. Police then located and photographed various items, including the complainant's handbag and postcards (photographs 14 and 15 of Exhibit C).
Evidence of Dr Cynthia Lim
Dr Lim's statement was that she had examined the complainant on 12 November 2003 at 10.30 a.m. She obtained a history from the patient and documented a number of injuries, including abrasions, bruises and incised wounds. She concluded it was possible that the injuries could have occurred within the timeframe suggested by the complainant.
Record of interview
On Wednesday 12 November 2003 the applicant was conveyed to St Kilda Police Station and interviewed by police at 11.56 a.m. The interview was suspended while a search of the applicant's premises was conducted by consent. At the conclusion of the search the applicant was conveyed back to the police station and the interview continued. He denied committing the offence. He stated that he had been at home the previous evening watching television and was not in Acland Street at approximately 11.50 p.m. He said that the woman who was with him when police arrived was a friend whom he helped from time to time and that she had been with him all night. She had since disappeared and he did not know where she was.
Grounds of appeal against conviction
The grounds of appeal against conviction are:
Ground 1: That the judge erred in directing the jury that they were "entitled to assume" that the description of the applicant which the complainant gave in evidence was the same as that which she had given to police.
Ground 2: That the judge erred in directing the jury on identification, in a manner which assumed that the complainant's evidence amounted to a positive identification as opposed to evidence of similarity; by failing to direct the jury that they could not convict unless able to exclude the possibility that the complainant's evidence was evidence of similarity as opposed to identification; in failing to direct the jury on the risk of "displacement effect"; and in failing to direct the jury on the possibilities that the complainant's identification of the accused was mistaken and that evidence given by Mr K was inaccurate.
Ground 3: That an aggregate of errors caused the trial to miscarry.
Ground 4: That the verdict was unsafe and unsatisfactory in the sense that no reasonable jury properly instructed on the evidence before it could have been satisfied beyond reasonable doubt of the applicant's guilt.
It is convenient to deal with each ground in turn.
Ground 1
The applicant relies in support of ground 1 on the circumstances leading up to the challenged re-direction.
In the course of his charge to the jury the judge gave a detailed Domican[3] warning in which his Honour explained that, among other things the jury might do in order to assess the reliability of the complainant's identification of the applicant as her assailant, was to compare what she had said in her evidence with the description she gave before any identification was attempted. As his Honour put it:
"Now you should also take into account the description that the witness made of the person, before any identification was attempted. And in this case, I will go through the evidence in a moment, but she gave a description to the police of the man she says robbed her. You should consider that description as against the identification she makes and take that into account. Does it tally with the person that she subsequently identified."
[3]Domican v. The Queen (1992) 173 C.L.R. 555 at 565.
Later, after the jury had been deliberating for about an hour, they sent a note to the judge stating that: "We’d like to see [the complainant's] original police statement before she's seen any photo ID's and also the transcript of her evidence given on Monday". Without discussing the question with counsel, the judge then had the jury brought back into court and said this to them:
"HIS HONOUR: I understand you have some questions. Thank you. The question reads, 'We'd like to see [the complainant's] original police statement before she'd seen any photo ID's and also the transcript of her evidence given on Monday.'
I can do this in two parts. Her statement is not in evidence and indeed, it wasn't put into evidence and it's not an exhibit. There were some references to it in the course of cross-examination, were there not, Mr Gleeson? I think you referred to a couple of portions of her statement.
MR GLEESON: I did, your Honour.
HIS HONOUR: Any assistance I can have in finding that - - -
MR GLEESON: The initial part was about 50 metres, 20 metres - - -
HIS HONOUR: The reason for that ladies and gentlemen is this. The evidence is, as I told you, what the witness gives in the witness box, not what they've said to the police on some other occasion.
Now one of the factors I said you should take into account in assessing an identification and the reliability of it is to compare it to what she said to the police at the first opportunity when she was asked to give a description and I presume that's probably why you want to have a look at it and I think that somewhere in this there is reference to it."
His Honour then referred to the two aspects of the statement which had been the subject of cross-examination, namely, the difference between the 20 metres distance at which the complainant said in her statement she first saw the assailant approaching her and the 50 metres which she estimated in her evidence, and that she had said in her statement that the jacket which her assailant was wearing looked "a bit shiny". His Honour then instructed the jury that it was open to use prior inconsistent statements of a witness in assessing the reliability of the witness's testimony, and then continued:
"It's what the witness says here in evidence, not what they said in any prior statement. The only reason you use that is to assess the reliability of the account they've given here. Now if somebody says in the witness box something totally different from what they've said in the past, you would say, 'Well, hang on, how can we rely on that if it's something different?'
The statement she made to the police is not in evidence. Mr Gleeson chose to put little bits of it, the two pieces that I mentioned to her. What you know is that he didn't put anything else to her.
Now I talked to you about inferences. Although there is no evidence, you are entitled to assume that the description she gave in court is the same as the description she gave the police, because if she did not, you can assume that you would have heard about it; do you follow? You did hear about some differences to the version that was put by Mr Gleeson, but the relevance is it's her version here that's important.
So I cannot help you any more with her police statement. She gave a description. If that description were different to the one that she gave in court, you can imagine that that would have been put to her. If she gave a description different to the one that she gave in court, you can imagine that that would have been put to her. So that's all I can help you with with that."
Despite the fact that defence counsel did not take any exception to the re-direction, counsel who now appears for the applicant contends that it was fundamentally wrong. He submits that the principal issue in the case was the reliability of the complainant's identification of the applicant and that the re-direction invited the jury to speculate about something not in evidence which bore directly on the issue. It was, he says, plainly not open to assume that the complainant's statement was the same as her evidence and, furthermore, the direction was apt illegitimately to bolster the witness's credit and reliability and to create in the minds of the jury the impression that defence counsel had unfairly kept from the jury the consistent parts of the complainant's statement.
I accept that submission. As a matter of law it was not open for the jury to draw the inference that the statement was the same as the evidence[4] and, in any event, whatever the complainant may have said in her statement on the point was irrelevant and should not have been admitted.[5] By inviting the jury to draw an inference as to what was in the statement, his Honour was inviting them to speculate about a matter on which there was no evidence and influencing them to act on the basis of matter which was irrelevant in the sense that it had not been put in issue. His Honour should have directed the jury that there was no evidence as to what the complainant may have said in her statement (other than upon those matters which had been the subject of cross-examination); that they should not speculate as to anything else that she may or may not have said in her statement; and that, in any event, whatever she may have said or not said in her statement (other than as to those matters which had been the subject of cross-examination) was irrelevant to the matter which the members of the jury had to decide.
[4]R. v. Mackaway [2005] VSCA 229 at [17].
[5]Cross on Evidence, Aust Ed. at [19005]; Fox v. General Medical Council [1960] 1 W.L.R. 1017 at 1024.
In my view the error was productive of a miscarriage of justice. As has been seen, the critical issue in this case was identity and the resolution of that issue was critically dependent on the complainant's testimony. The jury would almost certainly have treated a prior consistent statement as adding to the reliability of the complainant's identification of the applicant. But in truth it was irrelevant and should not have been admitted. It had not been the subject of cross-examination. It was not suggested that the complainant's testimony was an exercise in recent invention. And so far as can be seen there was no other applicable exception to the hearsay rule on the basis of which it might have been admitted.
This is not a case in which the proviso can be applied. The question of identification was dependent upon an assessment of the reliability and credibility of the complainant's testimony. It follows in my view that the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record are such in this case as to preclude us being satisfied beyond reasonable doubt that the applicant was proved guilty of the offence with which he was charged.[6]
[6]Weiss v. R. [2005] HCA 81 at [41]; Darkan v. The Queen [2006] HCA 34 at [94].
Ground 2: Directions on identification
It is submitted in support of ground 2 that it was incumbent on the judge to direct the jury that they could not convict unless able to exclude the reasonable possibility that the complainant's evidence amounted to evidence of similarity as opposed to evidence of identification. Reliance is placed on Pitkin v. The Queen[7] in which the High Court held a verdict to be unsafe and unsatisfactory in circumstances where the only evidence of identification was the statement of the complainant when shown a photo array that the man in one of the photographs: "looks like the man I seen ... ". The Court said:
"In the context of the above danger of prejudice to an accused in prosecution evidence of identification by a witness's earlier selection of a photograph or photographs, ordinary considerations of fairness dictate that any such evidence be subjected to careful scrutiny before it is accepted as constituting evidence of positive identification. If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification. All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt. That point was made by Mason, C.J., Dawson and Toohey, JJ. in Knight v. The Queen:[8] 'In those circumstances, the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognized.' As Dixon, J. said in Martin v. Osborne:[9] 'If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.' "
[7](1995) 69 A.L.J.R. 612 at 615; see also R. v. Clune (No. 2) [1996] 1 V.R. 1 at 5.
[8](1992) 175 C.L.R. 495 at 502-3.
[9](1936) 55 C.L.R. 367 at 375.
This case is different to Pitkin. The complainant's reaction when shown the photo array by police was: "Looks similar to Photo No.5, he had longer hair but same face ... that's him, I'm pretty sure, that's him, he has the same lines on his face". In my view it would be open to the jury to take that response as amounting to evidence of identification.
But while the jury would be entitled to treat the complainant's response as amounting to evidence of identification, I do not think that one can exclude the reasonable possibility that they might not have been prepared to do so if alerted to the distinction between evidence of identification and evidence of similarity, and warned of the limited value of evidence of the latter kind.[10] Consequently, I consider that the judge should have explained the distinction to the jury, explained the limited utility of evidence of similarity, and warned the jury that they could not treat the complainant's testimony as evidence of identification unless satisfied that her words were meant to convey that she identified the man in photograph 5 as being her assailant as opposed to being similar to her assailant.
[10]See R. v. Clune (No. 2) [1996] 1 V.R. 1 at 5.
As it was, when giving the Domican warning, the judge told the jury that:
"The expression, 'That is the man I saw,' can never be more than an expression of opinion. [The complainant] is saying, really, 'I believe that is the man I saw'."
It is likely that the jury would have taken that to mean that they should treat the complainant's statement as amounting to evidence of identification.
Counsel for the applicant submitted that it was also incumbent on the judge to direct the jury that they could not convict unless satisfied that the complainant's response to the photo array was evidence of identification.
I do not accept that submission. This case is different to Pitkin not only in the respect already mentioned but also in that in this case the complainant's evidence of identity was not the only evidence on which the Crown relied in order to tie the applicant to the crime. In this case there was as well the complainant's evidence as to her assailant's distinctive voice, the fact that the clothing recovered at the applicant's home was very similar to the clothing which the complainant described and the fact that the applicant lived a relatively short distance from the crime scene. Even if the complainant's evidence of identity was not wholly certain, I consider that it would have been open to the jury to use it in combination with the other circumstantial evidence to come to the view beyond reasonable doubt that the applicant was the assailant.[11]
[11]Shepherd v. The Queen (1990) 170 C.L.R. 573 at 580.
Counsel for the applicant submitted as well that it was incumbent on the judge to direct the jury on the dangers of displacement effect[12] and to say something to them concerning the rogues' gallery effect[13] of photo identification. I am not persuaded that that is so either. I accept that it would have been desirable for the judge to refer to the possibility of displacement effect and to warn the jury of its dangers. Some such treatment of the subject could profitably have been incorporated into the Domican warning together with a direction that in considering the evidence the jury might make allowance for displacement effect. Contrastingly, however, there was nothing which the judge could have said to the jury about the rogues' gallery effect without unnecessarily drawing attention to it, and his Honour was, with respect, correct, therefore, to say nothing about it.
[12]ie. "Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory." Alexander v. The Queen (1981) 145 C.L.R. at 409, per Stephen, J.
[13]ie. " ... 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." Alexander v. The Queen (1981) 145 C.L.R. at 400-401, per Gibbs, C.J.
Finally, on the subject of the judge's directions as to identification, counsel for the applicant submitted that it was incumbent on the judge to direct the jury that they could not convict without being able to exclude the possibility of the truth of the eye witness's evidence that the assailant was taller than him and had dark hair and the reasonable possibility of the truth of the applicant's denials.
I do not accept that submission. As the Crown points out, the judge summarised the eye witness's evidence and made it apparent that the evidence was of very limited value. The fact was that the assailant had run past the eye witness in an instant and the witness could not identify him. He described some clothing, and his description was not inconsistent with the complainant's description, but his observations as to height and hair colour were different. The judge explained to the jury the need to consider all of the evidence together in assessing its reliability. In my view that was enough.
Ground 3: Aggregate of errors
In view of my conclusions about ground 2, it is unnecessary to say a great deal about ground 3. But for the judge's failure to deal with the distinction between identification evidence and evidence of similarity, I am not persuaded that the matters complained of would have been sufficient individually or in combination to warrant that the conviction be set aside. But for the reasons already given, I am persuaded that the judge's failure to direct on the identification/similarity distinction means that the conviction should be quashed.
Ground 4: Unsafe verdict
It is possible to deal with ground 4 equally briefly. For the reasons already given I consider that it would have been open to the jury, if properly directed, to be satisfied of the applicant's guilt beyond reasonable doubt. It follows in my view that ground 4 fails.
Conclusion
In the result, I would allow the application for leave to appeal against conviction, and treat the appeal as instituted and heard instanter and I would allow the appeal. I would quash the conviction and order a new trial to be had. The appeal against sentence does not require separate consideration.
BUCHANAN, J.A.:
I agree.
BONGIORNO, A.J.A.:
I agree and have nothing to add.
BUCHANAN, J.A.:
The orders of the Court will be:
The application for leave to appeal against conviction is granted.
The appeal is heard instanter and is allowed.
The convictions entered on 9 March 2005 are quashed and it is ordered that the appellant be re-tried.
A certificate under s.14 of the Appeal Costs Act 1998 is granted to the appellant.
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