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

1. KOURAKIS CJ:    I would dismiss the appeal for the reasons given by Vanstone J.

2. 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.

3. 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.

4. 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 accepted at the hearing of the appeal that the judge’s decision was superseded by the question for this Court, namely whether the verdict was “unreasonable” or could not “be supported having regard to the evidence”: s 353 Criminal Law Consolidation Act 1935.  That is the sole question before the Court.

5. In M v The Queen (1994) 181 CLR 487 the High Court discussed the approach by an appellate court to a complaint that a verdict was unsafe or unsatisfactory. The plurality comprising Mason CJ, Deane, Dawson and Toohey JJ said this at 493:

   … the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.

   The Court went on (at 494) to say:

   If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside the verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

   (footnotes omitted)

6. This formulation was more recently confirmed in Nguyen v The Queen (2010) 242 CLR 491 at 499 and SKA v The Queen (2011) 243 CLR 400.

7. 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

8. 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.

9. 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.

10. 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.

11. Mr Robertson identified the accused in the dock before the jury.

12. 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.

13. Mr Robertson agreed that his opportunity to take in the facial features of the second assailant was limited;  that he was intoxicated and that the room in which the incident occurred was dimly lit.

14. In relation to the photo pack identification of the appellant, Mr Robertson refuted the suggestion in cross-examination that he might simply have been identifying in the display a photograph of the person whom he had seen in the photograph P1.

15. Upon the appeal, Mr Edwardson QC, who appeared for the appellant at the trial as well, put to the Court that the circumstances in which Mr Robertson originally observed the second assailant were not advantageous, having regard to the limited time over which he observed the second assailant, the poor lighting conditions, the fact that Mr Robertson was intoxicated and that he was then knocked unconscious and severely injured immediately after having observed the two men.  Mr Edwardson emphasised that the witness’s original description made no mention of what he later said was a distinctive feature, namely the eyes, and placed the tattoo on the left side of the second assailant’s neck.  In the photo pack photograph of the appellant which was before the jury, the appellant plainly had a tattoo on the right side of his neck.  In Exhibit P1 the appellant had no visible tattoo on the left side.  Certainly there was no tattoo visible above the appellant’s collar line on the left side.  The right side of his neck was not visible.  (It seems there was no direct evidence from anyone as to the extent of any tattooing on the accused’s neck.)  Mr Edwardson also suggested that, in circumstances where the two principal witnesses did not give a timely statement to police of the process by which they respectively recognised the person depicted in Exhibit P1, and had opportunity to discuss their identification prior to speaking to police – each, as it happens, focussing on the eyes of the appellant – this aspect of the identification was marred by collusion, or at least by contamination.

16. Going to the evidence of Ms Harrison, she said that, although drinking prior to going to the hotel and once there, she “had all functions” and could “cohere everything”.  Ms Harrison said that she and the victim were inside the hotel when the victim was approached by the first assailant, Sanderson, whom she knew from having seen him play football.  She observed the first part of the attack on the victim.  Then she saw the appellant approach with his fists closed and hands drawn.  She was watching from close quarters as the victim was hit in the face by the appellant.  However, she did not continue to watch the incident because she herself was hit from behind and fell to the ground.

17. She described the second assailant as being of medium height and build.  She said he was wearing a t-shirt with a print on its front.  He had a thick gold chain and gold necklace.  He had a tattoo on the side of his neck, spiky brown hair and very distinctive eyes.  He was in his early to mid 20s.  She said the tattoo was on her left and so would have been on the right side of his neck.  She did not know the appellant at that time.

18. Ms Harrison said that about a week later she was at a party with some friends and speaking about the incident with a Ms Harris.  She said that Ms Harris showed her a photograph on her mobile telephone, which had apparently come from Facebook.  She said she immediately recognised the man depicted as the second assailant.  She said his appearance was similar, although he looked a bit younger.  She was able to identify him by his eyes, his haircut and the “structure around his body”.  She said that also, he “still had the thick gold chain on”.

19. On 17 December 2011 Ms Harrison undertook a photo pack identification procedure and selected a different photograph of the appellant as showing the second assailant.

20. Ms Harrison also identified the appellant in the dock.

21. Under cross-examination Ms Harrison agreed that she had first given a statement to police about the matter on 25 October 2011.  She agreed that she had told police nothing about the second assailant’s eyes.  She was not asked in evidence what was distinctive about the eyes.  She agreed that she had described the neck tattoo as being large and “on the left side”.

22. In explaining how she came to see the photograph (Exhibit P1) Ms Harrison said that she had described the second assailant to Ms Harris at a party.  Ms Harris then produced a photograph which had apparently come from Facebook.  Ms Harrison looked at the photograph and immediately said “That’s him”.  At that time or a little later that night she sent a text message to Mr Robertson attaching the photograph and saying “I’ve found him”.  She also mentioned the name of the appellant in the message.  Later, she was contacted by police about the sequence of events, Mr Robertson apparently having alerted police to the fact that the second assailant had been identified.  The police however did not take a statement from her until 20 April 2012.

23. In relation to the photo pack identification it was put to her that she had simply identified the appellant as the same person earlier seen in the photograph Exhibit P1, but she denied that.

24. In his summing up the judge warned the jury of the very limited value of the dock identifications.

    Analysis

25. In considering the probative value of the identification evidence it is helpful to set apart some questions of credibility which Mr Edwardson recruited to give force to his argument.

26. It is true that in their original statements to police giving a general description of the second assailant neither the victim nor Ms Harrison mentioned that the man had distinctive eyes.  Yet later, when shown the photograph Exhibit P1 (electronically) each claimed that the second assailant’s eyes were a critical feature underpinning their recognition.  Then, both witnesses originally suggested to police that the second assailant’s tattoo was on the left side of his neck, whereas the photo pack picture shows a large tattoo on the right side of his neck.  The significance of these matters was essentially for the jury to determine.  A jury might take the view that the important aspect of the original descriptions and of the identification procedure was that the appellant has a tattoo at all.  It is important to emphasise that the photograph, Exhibit P1, did not show a tattoo at all.  Plainly, the presence (or lack of) a tattoo could not have been instrumental in either witness identifying the second assailant from that photograph.  The jury was entitled to weigh the fact that each witness purported to positively identify the appellant from Exhibit P1 without reliance on any tattoo;  yet both picked out a man who in fact had a tattoo on his neck, albeit on the right side.

27. Similarly, Mr Edwardson submitted that there was a definite suggestibility about Ms Harrison forwarding electronically the depiction of the appellant after she had identified him, along with the words “I’ve found him”.  First counsel put that in the context of the recent events it would have been plain to the victim that Ms Harrison was forwarding the photograph as a likely candidate for the second assailant.  Then, counsel argued that although Mr Robertson claimed not to have opened the message until after he had viewed the attachment, that might not have in fact been the sequence.  Again, while these were matters for the jury to consider, they do not go to the intrinsic value of the sequence of events which unfolded or the procedures followed.  In the absence of demonstrated unreliability or inherent improbability I consider that this Court should take at face value the evidence given by the two witnesses in these respects.

28. Similarly, evaluation of the evidence about the state of the lighting at the time of the assault and the other circumstances which could have called into question the ability of the two witnesses to comprehend and accurately recall what they saw is, in the first instance, for the jury.  These matters, too, though important in themselves, are not of such quality as to call into question the safety of the verdict.

29. I shall consider first the circumstances in which Ms Harrison purported to identify the appellant.  Although Ms Harris told the jury that she produced the photograph to Ms Harrison because it showed the only person she knew at the time who had a neck tattoo, neither Ms Harrison nor Ms Harris was asked to give an account of the conversation between them leading up to the production of that photograph and to Ms Harrison’s identification.  Either counsel could have led that conversation.  Accordingly, there is no evidence that Ms Harris said anything at all to Ms Harrison to explain why she selected that photograph for Ms Harrison’s consideration.  It could be inferred that she produced the photograph to Ms Harrison as being a photograph of a potential candidate for the second assailant, but no more than that.  Consequently, there could be no suggestion that Ms Harrison would infer from the very production of the photo to her that Ms Harris had any particular knowledge of the identity of the second assailant.  It was not suggested that she was present at the time of the assault or that she had other information about the identity of the second assailant.  This situation is not comparable with a case where police, having a suspect, produce that suspect or a photograph of him to a witness who is in a position to identify him.

30. Much the same can be said of the transmission to Mr Robertson of the message.  As he told the jury, his mother had shown him some 50 or so photographs which she had found on Facebook who were, presumably, connected in some way with the first assailant, Sanderson.  Mr Robertson had not identified any of those persons.  In a sense, this was just another photograph.  If Mr Robertson’s statement that he did not open the message until after he opened the attachment was accepted, then there is no element of suggestibility about this process.  Rather, to him, it would have been just another photograph of someone who – for reasons not known to him – might be thought to be a candidate.

31. As to the suggestion that the later photo pack procedure merely involved the two witnesses each picking out the photograph which most resembled the person depicted in Exhibit P1, that again was essentially a matter for the jury’s consideration.  Both witnesses denied that this was their thinking and claimed to have retained an independent recollection of the appearance of the second assailant.  It is to be noted that the photo display showed 12 men with either tattoos or at least large dark marks on their neck.  Thus, the presence of a neck tattoo did not amount to a feature which could distinguish any of those men.

32. 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

1. Having given the evidence the independent assessment demanded by this ground of appeal, I have no misgivings about the safety of the verdict.

2. I would dismiss the appeal.

3. STANLEY J:  I would dismiss the appeal.  I agree with the reasons of Vanstone J.