R v Kearney - [2013] SASCFC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KEARNEY
[2013] SASCFC 148
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
20 December 2013
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appeal against conviction for aggravated causing harm with intent to cause harm - where appellant identified from single photograph shown to witness electronically by friend - where witnesses subsequently picked appellant's photograph from array of 12 photographs presented by police - whether manner of identification such as to render verdict unsafe or unsatisfactory.
Held: appeal dismissed - it was open to the jury to find appellant guilty - verdict not unsafe.
Criminal Law Consolidation Act 1935 (SA) s 353, referred to.
M v The Queen (1994) 181 CLR 487, applied.
Nguyen v The Queen (2010) 242 CLR 491; SKA v The Queen (2011) 243 CLR 400, considered.

R v KEARNEY
[2013] SASCFC 148
Court of Criminal Appeal: Kourakis CJ, Vanstone and Stanley JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Vanstone J.
VANSTONE J: After a trial before a judge of this Court sitting with a jury Luke David Kearney was convicted for aggravated causing harm with intent to cause harm. The prosecution case was that in the early hours of Saturday, 22 October 2011, at the Tea Tree Gully Hotel, the appellant joined in an attack by one Sanderson upon Broady Robertson. It was said that without any provocation or warning Sanderson put his arm around the victim’s shoulder and then pulled his head down and repeatedly punched him in the face. The appellant then approached and joined in the punching, whereupon the victim fell to the ground. He was seen to be kicked and stomped upon by either or both Sanderson and the appellant, and he lapsed into unconsciousness.
The incident was witnessed by a number of persons and there was video footage showing some of the incident, though not clearly. But before the jury only two persons gave evidence identifying the appellant. The first of those was the victim himself and second was a friend of his, Ms Harrison. The evidence of identification was placed before the jury after the judge was asked, and declined, to exclude the evidence in the exercise of his discretion on the basis that it would be unfair to use it against the appellant. The evidence was left to the jury accompanied by comprehensive directions and warnings going to its evaluation, about which there is no complaint.
The appellant put to this Court that, although the evidence was admissible, such was the danger associated with reception of it that the conviction was “unsafe” or “unsatisfactory”: ground 1.2. While the appellant’s grounds of appeal included a complaint that the judge erred in failing to exclude the evidence, it was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kearney

Details

AGLC: R v Kearney [2013] SASCFC 148
Case: [2013] SASCFC 148
Decision Date: 20 December 2013

CaseChat Overview and Summary

The appeal concerned a conviction for aggravated causing harm with intent to cause harm. The appellant, R v Kearney, argued that the verdict was unsafe or unsatisfactory due to the manner in which identification evidence was obtained. The dispute centred on whether the identification procedures rendered the jury's verdict unreasonable. The appeal was heard by Kourakis CJ, Vanstone and Stanley JJ.

The legal issues before the court were whether the identification of the appellant by witnesses was so flawed as to render the jury's verdict unsafe or unsatisfactory. Specifically, the court had to consider the impact of the victim, Mr Robertson, identifying the appellant from a single photograph shown to him electronically by a friend, prior to a formal police identification procedure where he selected the appellant's photograph from an array. The court also had to consider the victim's initial uncertainty about his ability to recognise the assailants and inconsistencies in his description of a neck tattoo.

The court dismissed the appeal, finding that it was open to the jury to find the appellant guilty and that the verdict was not unsafe. The reasoning highlighted that despite the inherent dangers of identification evidence, particularly when made in traumatic circumstances or from photographs, the jury was entitled to accept the identifications. The court noted the significance of both witnesses making confident identifications based on a photograph that did not depict a neck tattoo, when the appellant did have a prominent neck tattoo. Furthermore, a witness's description of a gold chain worn by the assailant was consistent with the appellant's appearance in the photograph. These factors, the court concluded, assuaged concerns arising from the nature of the identification evidence.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow I have found that the appellant’s arguments fall to be rejected and that the verdict is not unreasonable or insupportable having regard to the evidence.Background In order to place in context the criticisms of the identification evidence it is necessary to go into some detail about the sequence of events and circumstances in which the identifications were made. I deal first with the victim, Mr Robertson. He told the jury that after being punched in the head by the first assailant he saw a second person coming towards him and that this person also punched him in the head forcefully. He then became unconscious. He gave a general description of the second assailant, being that he was in his 20s, perhaps about 23 or 24 years, he was white, about six feet tall, muscular with short dark hair and that he had a neck tattoo which, he said, if looking at him “would have been on the left side, sort of my left”. He said that he made a mental note to himself before being rendered unconscious, that, apart from the man’s face, there was something that he should remember about him. He recalled nothing of what the man was wearing. He said the man’s eyes stood out in his memory and that he remembered the man’s face. He said that after his release from hospital a day or so later and in the days following the assault his mother was looking on Facebook and presenting photographs to him in an attempt to ascertain the identity of the second assailant. By that time the first assailant, Sanderson, had been identified and apparently it was associates of Sanderson who were being targeted. About two weeks later he received a text message from the witness Natalie Harrison attaching a photograph. He said he opened the attachment prior to reading the text message and immediately recognised the person depicted in the photograph as the second man. He said the features in the photograph which stood out and enabled his recognition were the man’s face – “just his eyes” – and the structure of his face. No neck tattoo was visible in the photograph. Mr Robertson said that the man looked younger in the photograph than his appearance on the night. He said that the text message from Ms Harrison read “I’ve found him”. The photograph was subsequently printed onto paper and became Exhibit P1. Some weeks later and on 17 December 2011 Mr Robertson attended at the Holden Hill Police Station to undertake a “photo pack identification procedure”. He selected photograph number 11 in one of the packs, identifying that person as the second man. That was a different photograph of the appellant. Mr Robertson identified the accused in the dock before the jury. In cross-examination Mr Robertson agreed that in his original statement to police he said that he was not sure he would recognise the two assailants again. When asked what it was that struck him about the accused’s eyes in the photograph, Exhibit P1, he said that it was “his eyes however they are”. He agreed he had said nothing to police in his statement about the second assailant’s eyes. Mr Robertson agreed that in his statement to police he had said that the second assailant’s neck tattoo was on the left side. He agreed he had said it was “a dark colour and looked like it connected to another tattoo further down his shoulder”. It was put to him that he had changed his description of the site of the tattoo from the left to right side of the neck because he learned that the appellant did not have a tattoo on the left side of his neck. He denied it, but acknowledged that there was, with the passage of time, perhaps an element of reconstruction on his part.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view the matters raised by Mr Edwardson are not of such import as to call into question the reasonableness or safety of the jury’s verdict. I have considered all those matters – including those matters which I have suggested go to credibility – and weighed them with the knowledge that identifications made in disadvantageous circumstances and traumatic circumstances of persons previously unknown to the witnesses are inherently dangerous. In my mind the fact that each witness made a very confident identification of the appellant on the basis of Exhibit P1, even though that photograph did not show any neck tattoo, is of great significance. In other words, each witness made that identification of a man who, it turned out, had a prominent neck tattoo, albeit on the right side of his neck. I do not suggest that neck tattoos are rarities. However, this fact remains a striking coincidence if the appellant were innocent. In addition, in the case of Ms Harrison, the description she gave police of the gold chain worn by the second assailant was consistent with the gold chain worn by the appellant in Exhibit P1. These features of the evidence tend to assuage any concerns which arise from the nature of identification evidence.Conclusion Having given the evidence the independent assessment demanded by this ground of appeal, I have no misgivings about the safety of the verdict. I would dismiss the appeal. STANLEY J: I would dismiss the appeal. I agree with the reasons of Vanstone J.

Ratio Decidendi

Legal Principle Established

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