R v Hinch

[1993] QCA 402

IN THE COURT OF APPEAL [1993] QCA 402

Q UEENSLAND

C.A. No. 233 of 1993

B	risbane
[	R. v. Hinch]

T H E Q U E E N

v.
CHRISTIAN DANIEL HINCH

(Appellant)

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The Chief Justice
The President

Mr Justice Cullinane

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Judgment delivered 18/10/93
JOINT REASONS OF THE PRESIDENT AND CULLINANE J. SEPARATE REASONS OF THE CHIEF JUSTICE. THE CHIEF JUSTICE DISSENTING AS TO PART OF THE ORDER.

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APPEAL AND NEW TRIAL. MISDIRECTION AND NON-DIRECTION.

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CATCHWORDS: EVIDENCE - IDENTIFICATION - appellant convicted of assault occasioning bodily harm armed and in company - wh evidence sufficient to sustain conviction given inconsistencies in identification evidence - wh trial judge adequately directed jury re difficulties in Crown evidence

Domican v. The Queen (1992) 173 C.L.R. 555

Counsel:	Mr S.E. Herbert Q.C. with him Mr A. Rafter for the appellant Mr D. Bullock for the respondent
Solicitors:	Richardson McGhie for the appellant Director of Prosecutions for the respondent
Hearing date:	17 September, 1993

IN THE COURT OF APPEAL

QUEENSLAND

Brisbane

Before	The Chief Justice The President Mr Justice Cullinane
[	R. v. Hinch]

C.A. No. 233 of 1993

T H E Q U E E N

v.
CHRISTIAN DANIEL HINCH

(Appellant)

JUDGMENT - THE CHIEF JUSTICE

J udgment delivered 18/10/93

This appeal is brought essentially on the basis that the evidence presented at the trial was insufficient to sustain a conviction and because of alleged deficiencies in the summing-up. The issues raised related to the evidence of identification of the appellant as the offender involved in the offence which was charged.

The charge against the appellant was that on 21 June, 1992 he unlawfully assaulted Robert John Griffiths and thereby did him bodily harm. Circumstances of aggravation were alleged namely that he was in company with others and armed with an offensive weapon.

The Crown allegation was that in the course of a fight involving a number of persons the appellant struck the complainant with a motor vehicle steering lock and fractured his jaw. A Crown witness, Conway, was in the company of the complainant when he was struck and the Crown case depended on Conway's claimed identification of the appellant as the attacker. Without Conway's evidence it was accepted that the Crown would have had no case against the appellant and the trial was conducted on the basis that the reliability of his claimed identification was the crucial issue.

Two fights had taken place between two groups of young men on the night in question. The complainant received his injury during the second fight. Conway and the complainant had been with one of these groups and the appellant was in the other. After the first fight had concluded the group of which the appellant was a member went looking for their adversaries, and having located them, recommenced the fighting. A number of persons on each side were engaged in one way or another. The appellant who admitted taking part gave evidence that his participation consisted of fighting on a man-to-man basis with one person who eventually ran away. If his account was correct his adversary on this occasion could not have been the complainant. Conway said that the members of the appellant's group had armed themselves apparently in various ways. He specifically mentioned sticks.

It seems that when the appellant's group caught up with the group containing Conway and the complainant, the latter group was a little spread. They had been pushing a car which had broken down and were trying to clutch start it. Both Conway and the complainant had been drinking and were affected by liquor.

The complainant could not remember much of the events of the night. When the second fight commenced, the complainant and Conway were sitting on some steps near the Sandgate train station. The complainant saw a white panel van pull up and a number of males, some seven or eight, alight. These constituted the second group to which reference has been made. He said that a man wielding a steering wheel lock came over and struck him. He remembered the wheel lock because it was being pointed in his face. He conceded his lack of a clear memory of events but said he remembered that the man who struck him had short hair and a goatee beard. He did not claim to be able to identify the appellant.

Conway described the same events more fully. He said he was sitting on the steps with the complainant and a girl, Michelle, was in front of them. Others who had been in their group were distributed apparently some greater distance away on the footpath. When the fight commenced he said a couple of men came over. One stood in front of him with a knife and another hit Michelle with the steering wheel lock used as a club. The same man then hit the complainant in the region of the head with the wheel lock. Conway said that he himself was held from behind by someone and though he turned to look he did not recognise that person. The other man in front was holding the knife towards Conway restraining him. Then the complainant was hit for a second time by the assailant wielding the steering lock. Conway and the complainant apparently remained on the stairs throughout the assault. The assailants ran off and drove away about the time that a police car arrived. On the appellant's version of his own part in this second fight he was not involved in the attack on Conway and the complainant but, if Conway's identification of him was correct, he was the one who wielded the steering lock. The claim of identification was made shortly afterwards near a Pizza Hut establishment.

Conway, the complainant and others who had been in the two groups were congregated outside the Pizza Hit when Conway pointed out to a Constable Crang the man who he said had shortly before assaulted the complainant. Conway said that at the Pizza Hut the one he identified as the assailant had a jumper or dark shirt thrown or worn over the shirt which he had been wearing previously. He said that at the time of the assault with the steering lock the assailant had been wearing a white shirt with coloured sleeves.

According to Constable Crang, the man whom Conway pointed out at the Pizza Hut was at that time wearing a white T-shirt with red sleeves, that is without a dark jumper or shirt over it. Putting this feature to one side for the moment Conway said that the one who had struck the complainant with the wheel lock had a goatee beard. He expressed himself as being absolutely sure of this. However Constable Crang could not remember whether the man identified by Conway at the Pizza Hut as the assailant had a goatee beard.

The Crown called only the complainant and Conway from their group involved in the two fights on the evening of 21 June although some explanation did emerge for the absence of certain of the others, it being suggested that they were unwilling or were believed to be unwilling to provide statements. On the defence side, the appellant and four others who had been in his group, including his younger brother, were called and the appellant's mother was called as well. Each of these defence witnesses said that the appellant did not have a goatee beard on the night of the assault and during the time they knew him had never had one. This provided a definite challenge to the Crown and for the defence side it was taken even further with the suggestion that the characteristics of the appellant's facial hair were such that he could not have grown a goatee beard had he tried. Although the Crown might have felt under some pressure to take notice of the challenge which the dispute over the goatee beard represented, it did not respond by calling witness from any quarter who could testify to the contrary.

One question is whether the Crown evidence was sufficient to sustain a conviction. It totally depended upon Conway's purported identification and Conway was certain that the attacker had a goatee beard. Could a reasonable jury safely have rejected each of the parade of witnesses, admittedly called on the defence side, who said that the appellant did not have and had not had a goatee beard? Is it a satisfactory outcome that the Crown could brush to one side the very direct challenge presented by this evidence dealing with it only by ignoring it?

Logical possibilities are that a person other than the appellant wielded the steering lock, that person being one who had a goatee beard, or that Conway's perception of the assailant was flawed in a central and important aspect. Perhaps he thought he saw a goatee beard on the appellant when he was standing just in front of him although he did not possess one, or perhaps he erroneously thought that the person standing in front of him who did in fact possess a goatee beard was the same person as the appellant whom he later identified at the Pizza Hut. Either way, there was the possibility of a central critical weakness in his purported identification of the assailant as the appellant. This weakness could not be eliminated by speculating that Conway might have got other aspects of the identification exactly correct but inexplicably imagined that the man standing just in front of him was wearing a goatee beard. Such a speculation could not assist the Crown who had an obligation to prove its case beyond reasonable doubt.

It is necessary to consider next how these matters were dealt with by the learned trial judge bearing in mind that the Crown case completely depended upon the accuracy of Conway's identification of the appellant as the assailant.

The judge gave a general warning on the dangers involved in identification evidence and of the need to take great care before reliance was placed on it. He pointed out a number of matters including the state of the evidence as to lighting at the scene, the opportunity of Conway to observe and the fact that he had not seen the appellant previously. The conclusion must nevertheless be reached that he did not sufficiently highlight the particular difficulties inherent in the Crown's evidence of identification.

The High Court in Domican v. The Queen (1992) 173 C.L.R. 555 has recently dealt with the approach which a trial judge should take in criminal trials where identification is a significant issue. There are special rules which apply in these cases. Not only must proper warning be given of the usual general matters but where the evidence represents any significant part of the proof of guilt the attention of the jury must be drawn to any weaknesses in the identification evidence and mere reference to counsels' arguments is insufficient. In the majority judgment, this is said: "the jury must have the benefit of a direction which has the authority of the judge's office behind it", and "the trial 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 the identification evidence" (at 562). It is also said that if matters "may reasonably be regarded as undermining the reliability of the identification evidence, the trial judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on that evidence" (at p. 564).

In the present case the trial judge did not follow the course which the High Court has directed. In his summing-up the trial judge referred to the difference between Conway's version and that of Constable Crang dealing with the appellant's clothing when pointed out at the Pizza Hut but he said to the jury, "you make what you will of that ... discrepancy" and, "you might or you might not think that that conflict is significant".

In respect of the extremely important matter relating to the goatee beard the judge's principal reference to it in the summing-up was simply to indicate that the defence asked that they take the evidence concerning the goatee into account and he then indicated that it was a matter for them, the members of the jury, to deal with. To treat the matter in this way does not comply with the course which the High Court has indicated a trial judge should follow. Further, the judge should isolate the matters which are important on the question of identification and indicate the way in which the resolution of the issue should be approached. In this case the jury should have been told that they could not safely convict unless they were satisfied that at the time of the assault the appellant was wearing a goatee beard and that this conclusion would involve the rejection of the evidence of the appellant and the other defence witnesses on this point. He should also have told them that if they were inclined to consider the possibility that the assailant at the scene was not wearing a goatee then they could have no confidence in the observation claimed to have been made by Conway and hence no confidence in the identification which he claimed to make and that there was no other evidence implicating the appellant. The other specific feature appearing in Conway's evidence of identification concerned the clothing on the upper part of the body of the assailant at the scene and of the appellant at the Pizza Hut. In this respect Conway's evidence was in conflict not only with the appellant's evidence of what he was wearing at both places but also with that of Constable Crang as to the state of things at the Pizza Hut. This evidence had an independent capacity to reduce confidence in the reliability of Conway's identification.

The summing-up dealt with a number of other matters that were relatively unimportant on the issue of identification but the effect overall was to direct the jury's attention away from the difficulties and to offer a degree of reassuring support of the Crown case. It would have tended to reduce the vigilant attention which the jury were obliged to give to the resolution of the particular difficulties on the issue of identification. The effect was to leave the task to them to do the best they could with the evidence when they should have been firmly told that they should refrain from convicting unless the problems in Conway's identification could be eliminated beyond reasonable doubt.

Two matters should specifically be mentioned.
There was some substance in the claim of counsel for the

appellant that the trial judge's direction had a tendency to saddle the defence with the burden of proving that Conway was deliberately untruthful, if his evidence was to be doubted, when the defence contention that Conway was mistaken on the issue of identification was entitled to the jury's full and careful attention.

Further, a direction was given the effect of which was that any lack of conviction in Conway's evidence on the identification issue could be supplemented by possible untruthfulness on the appellant's part on unrelated issues and this was not consistent with the Domican decision. The direction which must be regarded as erroneous is contained in this passage from the summing up:-

"In considering the evidence of identification you should not consider that in isolation from other evidence in the trial. Other evidence tending to implicate the accused is highly relevant and may assist you in concluding that you are satisfied beyond a reasonable doubt of the guilt of the accused, even if you might have felt that you were not quite satisfied of the identification by Conway."

Unlike the present case, Domican was one where apart from the evidence of identification there was other evidence which was independently capable of supporting a conviction: see the report of that case at 566. Yet the majority judgment indicates that the "adequacy of the warning has to be evaluated by reference to the identification evidence and not the other evidence in the case", that is, "not by reference to other evidence which implicates the accused" (ibid at 565). This is because the "judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence" (ibid), that is, of course, when that possibility is open. It follows when, as here, there is no evidence apart from that on identification which is independently capable of supporting a conviction and the judge is committing the identification issue to the jury's consideration with appropriate accompanying directions he should not distract them from their task by referring in that context to the other evidence unrelated to identification as he has done in the passage above quoted from the summing-up. This is because the identification evidence cannot in these circumstances legitimately be supported by that other evidence but must be considered in isolation.

The reality in the present case is that the difficulties in Conway's purported identification could not be eliminated and the problems for the Crown do not stem only from the deficiencies in the summing-up. Indeed the Crown's challenge to the evidence of the defence witness about the absence of a goatee beard was half-hearted and its failure to controvert these claims by calling evidence independent of Conway to meet it constituted a fundamental weakness in its case.

The conviction must be set aside and in view of the absence of any safe basis in the evidence to sustain a conviction there should be no order for a new trial: see Director of Prosecutions (Nauru) v. Fowler (1984) 154 C.L.R. 627 at 630. A verdict of acquittal should be entered.