R v Jeffers

[1994] QCA 11

IN THE COURT OF APPEAL	[1994] QCA 011
SUPREME COURT OF QUEENSLAND

C.A. No. 187 of 1992

Brisbane
[R v. Jeffers]

BETWEEN

T H E Q U E E N

v.

DARREN CHRISTOPHER JEFFERS

(Appellant)

Macrossan C.J.

Pincus J.A. Thomas J.

Judgment delivered: 18/2/94

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:CRIMINAL LAW - EVIDENCE - identification evidence - inconsistencies - warnings to jury - whether verdict unsafe or unsatisfactory

Counsel:Mr P. Nase for the appellant

Mr M.J. Byrne for the respondent

Solicitors:Legal Aid Office (Queensland) for the appellant
Director of Prosecutions for the respondent
Hearing Date:14 May 1993
IN THE COURT OF APPEAL

QUEENSLAND

C.A. No. 187 of 1992

Brisbane

Before The Chief Justice

Mr Justice Pincus

Mr Justice Thomas

[R v. Jeffers]

T H E Q U E E N

v.

DARREN CHRISTOPHER JEFFERS

(Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 18/2/94

This appeal is concerned with the adequacy of identification evidence and the trial judge's direction to the jury in respect of it. The appeal notice also seeks leave to appeal against sentence but no argument was addressed to the Court on this aspect. A formal order disposing of the application for leave will be necessary. First, the appeal against conviction must be considered.

The appellant had been charged jointly with another man, Ryan, on counts of robbery alleged to have occurred at a branch of the Metway Bank at Noosa on 18 January, 1991 and also on two counts of unlawful use of motor vehicles on the same day. When called on together to plead, Ryan pleaded guilty and it was common ground throughout the appellant's trial that Ryan had been involved in the offences. The question was whether it was established that the appellant was one of his co- offenders.

The Crown case was that the appellant was the driver of two get-away cars used in succession after the robbery had been carried out. It seems that a third car was also used at some later point and evidence was tendered to this Court describing the appearance of a person, not the appellant, who had been dealt with in certain other proceedings on the basis that he was the driver of that car. This evidence seemed to indicate that this further person shared a physical feature with the appellant, namely a gap in his teeth. An affidavit of a deponent, a Ms Bentley, received by leave could be regarded as indicating this. For the disposal of the appeal this evidence did not turn out to have particular significance.

Three witnesses gave important evidence on the identification issue which was at the centre of the trial. Other witnesses gave evidence of association at relevant times between the appellant and Ryan and this also will receive some consideration.

The identification evidence can be dealt with first. The three witnesses to which reference has been made were Mrs Kling, Mrs Earner and Mr Jeffries.

Mrs Kling was a passenger in a vehicle being driven by her husband when, in the course of a traffic hold up, they found themselves obstructed by a brown motor car. Mr Kling sounded his horn and drove up beside this car. Mrs Kling was in a position where she could see the car's driver. He responded to their presence by raising a gun and pointing it towards Mrs Kling and her husband. Mrs Kling was naturally enough frightened and distracted by the presence of the gun but she nevertheless had an opportunity to observe the driver. She said that while he was not shaven, he did not have a beard. She also said that he had a gap in his front teeth, a description which she later expanded to indicate that one of his front teeth was missing. Seated where she was, Mrs Kling was not able to see the whole of the other driver's face and she could not see his eyes.

On 25 January 1991 at the request of the police Mrs Kling looked at certain photographs and said she was able to make an identification of the driver of the brown car. She said that he was shown in photograph No.10 on a board marked "A" containing photographs of 12 different male persons. It was accepted at the trial that the photograph she picked out was of the appellant. In the intervening week since the robbery, she had seen no other photographs or images of the appellant before identifying him in the fashion described. However, it seems that she had been given to understand that the police were holding two men who had been involved in the robbery. The implication thus may have been that a photograph of the man she had seen might be contained amongst the 12 shown to her on the board marked "A". After her act of identification Mrs Kling understood that the photograph she had selected was in fact of one of the two men held by the police. In explaining to the Court how she had identified the person who was the driver of the brown car she said that she found the shape of the face and especially of the chin and neck, features on which she could rely.

A Mrs Earner made certain observations on the day of the robbery and gave evidence at the trial. While on the second floor of a house she saw a car arrive in the street in front and from it the driver and two other men emerged. She had the driver under observation for about three minutes. She thought he was acting suspiciously. The three men eventually walked into an allotment opposite. This seemed to her to be unusual. She noticed that they were carrying bags and after a time they started to run. Mrs Earner gave a description to police on 18 January and a week later, on 25 January, she was asked to attempt an identification from photographs. Before she did this she had seen an item on T.V. describing certain prison escapees and this was associated in her mind with the robbery. Both the appellant and Ryan on 18 January were in fact, escapees. Mrs Earner said that the police first showed her a board containing photographs of 12 bearded men. She said that photograph No. 7 on this board marked "H" looked very similar to the driver of the car she had seen a week earlier but she wished to be careful and so did not nominate that photograph. Then she was shown the "A" board and she, like Mrs Kling, selected the photograph No. 10 which showed the appellant. Mrs Earner said that the driver she had seen on 18 January was clean- shaven. A Mr Jeffries had seen the robbery take place and he made an observation of the driver of the first get-away vehicle. This car contained two other persons apart from the driver, and it was delayed for a time in traffic. Mr Jeffries had the driver under observation for some three or four minutes. He said that the driver had a short beard and a moustache. When subsequently asked by the police to look at photographs to see if he could make an identification he picked out photograph "H7" which in fact showed the appellant. He had however seen this same picture on T.V. the day before he made his identification. Mr Jeffries was also shown the photo board "A" but he recognised no-one on it. When he saw the appellant in court at the committal hearing, he did not recognise him and again at the trial he did not recognise the appellant as being the driver of the vehicle he had seen on 18 January nor, it must be added, did he recognise him as the person shown in photograph H7 which was, in fact, a photograph of the appellant.

This sufficiently summarises the identification evidence. The submission for the appellant was that it provided an insufficient basis to sustain a conviction taken either alone or in association with certain circumstantial evidence in the case.

No objection was taken to the summing-up so far as it dealt with the standard matters in respect of which a warning must be given. However, it was said that the trial judge did not, as he was obliged to do by Domican v. The Queen (1992) 173 C.L.R. 555, sufficiently draw the jury's attention to specific weaknesses that existed in the identification evidence. One matter of objection was that in dealing with the three identification witnesses the judge dealt with them in separate compartments. But as to this it can be responded that that was an effective way of underlining any weaknesses as well as differences and inconsistencies in the evidence of each witness. Some of the differences in the witnesses' evidence were hardly subtle such as Jeffries' claim that the driver of the get-away vehicle had a beard and a moustache and Mrs Earner's claim that the driver of the particular vehicle she saw was clean-shaven. Also in respect of Jeffries it was an obvious point that although he had picked out photograph "H7", he was asserting that the man in the dock was not the person there shown although it was common ground between the parties that he was. When the points mentioned by the judge in respect of the identification evidence are surveyed, they are persuasive that he sufficiently dealt with the matters, which might be regarded as weaknesses or inconsistencies in that evidence. In dealing with the evidence the judge told the jury that they would see there were inconsistencies and discrepancies in the identification evidence of the witnesses. In asking for some redirection at the end of the summing-up, defence counsel referred to the time lag of one week which had preceded acts of purported identification and also the media exposure of events which had occurred during that week. Some further redirection was given by the trial judge and after it there were no outstanding requests from the defence for redirection in respect of alleged discrepancies or weaknesses in the identification evidence.

On the hearing of the appeal the principal argument was that the Crown case was insufficient or unsafe because one of the three identification witnesses, Jeffries, said that the man in the dock was not the driver of the get-away vehicle as the Crown case alleged. It was submitted that the judge should have instructed the jury that in view of this inconsistency they should acquit. These submissions cannot be accepted.

If, amongst a group of witnesses who are asked whether they can identify an alleged offender, one says the accused is not that person, that fact, although a significant matter for consideration, does not necessarily mean there must be an acquittal. The evidence of each of the witnesses has to be considered by the jury. If the matter subsequently comes to an appeal court then that court may be called on to make its own assessment and decide whether the evidence provides a safe basis for conviction. Having reviewed the evidence and considered the summing-up in this case, the conclusion should be reached that there did not remain critical weaknesses in the Crown case but rather that the matter was left in an area where the jury had to make its assessment of the body of identification evidence and decide whether it proved the Crown case to the necessary standard even though it contained some inconsistencies which called for attention. Mr Jeffries, it is true, had difficulty at the trial in seeing that the appellant was the same person as the one shown in "H7" but it should be mentioned that this Court was not informed of the extent, if any, to which the appellant's appearance had changed between the time of the taking of photograph "H7" and the trial. The jury, however, was in a position to make an assessment of this.

There was in the case certain circumstantial evidence which, although not independently sufficient to provide a basis for conviction, tended to provide some confirmation of the identification evidence if the jury was sufficiently satisfied by it. There was strong evidence of association at relevant times between the appellant and the co-accused Ryan who was admittedly a participant in the robbery.

A Miss Charlton was involved in the management of a motel at Noosa in January 1991. She said that two females booked a room for the two nights of 19 January and 20 January and the appellant and Ryan stayed with those women on those two nights. She also seemed confident that she had seen the appellant at the motel before Saturday, the 19th. Subsequently on 23 January she said she saw the appellant and Ryan walk together out of some bush area, but when they saw her they doubled back into the bush once more. Miss Charlton told her father of this sighting and the police were informed of it. A search made of the area where the two men had been seen resulted in the discovery there of a bag containing a weapon indistinguishable from that which had been used in the robbery.

A Ms Hansson, a hairdresser, gave evidence that on Tuesday, 22 January, 1991 she cut the hair of the appellant and Ryan when they attended together at her salon. Later when they were shown on T.V. she saw the item and subsequently made an identification of the appellant at the police station by picking out photograph "A10".

There is in the evidence of association between the appellant and Ryan, significant potential support for the identification evidence which the Crown led at the trial. In the result it should not be concluded that the Crown evidence was insufficient or unsafe or that the summing-up was in the circumstances deficient. The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.