R v Lam - [2006] SASC 208

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LAM
[2006] SASC 208
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Vanstone)
17 July 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
Appeal against conviction - appellant convicted by a jury after a trial in the Supreme Court of certain offences in connection with the kidnapping of a woman from her home in company with another man in April 2004 - whether failure by counsel at trial to cross-examine the victim on a purported inconsistency between her statement to police and her evidence at trial discloses a miscarriage of justice - consideration of grounds for miscarriage - no miscarriage made out - appeal dismissed.
Kidnapping Act 1960 (SA) (now repealed) s 2 , referred to.
TKWJ v The Queen (2002) 212 CLR 124; R v Scott (1996) 137 ALR 347, considered.

R v LAM
[2006] SASC 208
Court of Criminal Appeal: Doyle CJ, Nyland and Vanstone JJ

DOYLE CJ: Mr Lam was convicted of four offences after a trial before a jury in the Supreme Court.
The main offence was an offence of kidnapping, contrary to s 2 of the Kidnapping Act 1960 (SA) (now repealed).
The convictions are challenged on the basis that the failure to cross-examine the victim on a particular matter has given rise to a miscarriage of justice. I will refer to the victim as “Ms V”.
Summary
On 16 April 2004 two men forced their way into the house in which Ms V and her husband lived. She was taken by force from the house, and held at another house, until the police freed her in the early hours of 17 April 2004. While she was held she was forced to telephone her family and tell them that they had to pay $100,000 to secure her release.
There were two broad aspects to the prosecution case. First, Ms V identified Mr Lam as one of the two offenders when shown a number of photographs by police, including a photograph of Mr Lam. She did so relying on observations she made of the offenders while at her home and while being held at the other house. Second, there was a substantial body of circumstantial evidence implicating Mr Lam.
The appeal turns on one issue. Counsel for Mr Lam did not cross-examine Ms V on the fact that, in one particular respect, a statement to the police signed on Monday 19 April 2004 was inconsistent with her evidence at trial.
At trial she was cross-examined and tested on her description of the offenders, the challenge being on several bases. First, the adequacy of the opportunity that she had to make observations. Second, the effect of stockings that the men wore some of the time, and the effect of objects covering her head, and obscuring her vision. Third, she was cross-examined on the basis that a recorded statement to police and a subsequent signed statement did not contain the detailed observations of which she gave evidence at trial. However, she was not cross-examined at trial in relation to an inconsistency between her evidence and the signed statement. In the signed statement she appears to say that a beanie was removed from her head, and replaced with a blindfold which prevented her seeing anything, before an incident in the course of which she said at trial that she had a good opportunity to observe Mr Lam’s face through the beanie.
The failure to cross-examine on this point is said to amount to an error by counsel, giving rise to a material irregularity and to a risk of a miscarriage of justice.
Mr Niarchos, counsel on appeal, correctly submits that the identification evidence of Ms V was left to the jury on the basis that, standing alone, they could convict Mr Lam relying on it. The jury might have done so. Mr Niarchos submits that if the inconsistency between Ms V’s evidence and her signed statement had been drawn to the attention of the jury, they might not have accepted Ms V’s evidence about her observations of Mr Lam.
The trial
Having regard to the issue argued, it is not necessary to go into much detail about the course of the trial.
There was no doubt that Ms V had been kidnapped and held in the manner described by her.
She was subjected to a terrifying experience over a period between about 7.00 am on Friday 16 April 2004, when two men entered the house where she lived, and about 4.00 am on Saturday 17 April 2004, when the police set her free.
Reference was made in the course of cross-examination to two statements that Ms V had made to the police. One was a recorded statement that began at 5.40 am on 17 April 2004, not long after she was released. That statement was taken over the course of an hour or so. The other statement was a signed statement in narrative form. It was signed on Monday 19 April 2004. In cross-examination Ms V said that she spent some hours with the relevant police officer on Sunday 18 April and Monday 19 April providing the information that is found in the statement. I will refer to these statements as the recorded statement and as the signed statement.
Mr Lam was charged jointly with Mr Parker, but Mr Parker pleaded guilty before the trial began.
In her evidence Ms V described opportunities that she had to observe the general appearance and the faces of the men, and in particular, the face of the accused.
Ms V said that while the men were at Ms V’s house, each of them had a stocking over his face. Nevertheless, she was able to provide a limited description of the man said to be Mr Lam, including the fact that he appeared to her to be Asian. In the course of her evidence she subsequently referred to this man as the Asian man, and to the other man as the non-Asian man.
Ms V’s head was covered before she left her home, and remained covered while she was taken to the house at which she was held.
I gather that it remained covered at the house for some time. After a while Ms V was told to telephone her father, and to pass on a demand for money. The covering over her head was removed for that purpose. She said that the Asian man stayed behind her while she made the telephone call, and she did not see his face. Later she was told to telephone again, and this time she spoke to her mother.
After this telephone call a black woollen beanie was put over her head. She said that she was able to see through the spaces between the woollen threads of the beanie. Most of the time her arms and ankles were taped, to restrain her, but on occasions the tape was removed.
Ms V said that she was kept in a bathroom in the house. She could see enough to know when it was daylight and when the daylight faded.
Ms V described an incident, which must have happened late afternoon or early evening on the Friday, when the Asian man said that he was going to give her some marijuana. He told her that he was doing this so that she would be able to sleep. She was sitting on the floor of the bathroom, and by then had been there for some hours. There had been various comings and goings prior to that, and at one stage some food had been brought to her. After the Asian man told her that he was giving her some marijuana, she heard a lighter being lit, and then he put the end of a pipe in her mouth. He told her to inhale.
She said that when this happened she still had the beanie on. Her hands and feet were still taped at the time. Ms V said that the Asian man was facing her when he gave her the marijuana, and that his face was only about five centimetres from hers. She could see his face through the beanie, and she looked at it. She described his facial appearance, and his clothing.
This was significant evidence, because the description that she gave was a fairly detailed one, and on her evidence this appears to have been the best opportunity which she had to observe his appearance, although not the only opportunity.
Ms V also described an incident when, she said, the non-Asian man remarked to the Asian man that Ms V had been “wearing the beanie all day long and that it wasn’t very comfortable because I couldn’t talk or breathe properly through the beanie …”. She said that the Asian man told her to take off the sweatshirt that he had put on her, and then she heard the sound of fabric being cut, and then he put a blindfold over her eyes, having first taken the beanie off. He was behind her when he did this. She said that the blindfold prevented her from seeing anything in the room.
The sequence in which these events occurred is not completely clear, but on my reading of her evidence at trial, the blindfold was applied after she inhaled the marijuana and probably late in the afternoon.
As I have already said, the observations that Ms V made on several occasions of the Asian man’s appearance was the basis upon which she identified Mr Lam when shown a series of photographs. This evidence was an important part of the prosecution case.
At trial Ms V was cross-examined quite closely about her observations of the offenders’ appearance. She was questioned about the reliability of those observations bearing in mind that while at her house the men were wearing stockings over their heads, and bearing in mind the possibility that at other times they were using disguises. The reliability of her observations was then tested in various ways. Ms V continued to assert that she was able to observe the appearance of the men, to the extent described in her evidence. Her evidence about the observations made when she was told to inhale the marijuana was quite firm and clear.
Counsel for Mr Lam also tackled Ms V on the basis that her two statements to the police did not refer to the observations about which she gave evidence, or at least did not give anything like the detail that she gave in evidence. The focus of this aspect of the cross-examination was a challenge on the basis that her evidence went well beyond anything in the two statements, and should be treated as unreliable for that reason.
She adhered firmly to her evidence. She explained that she had not been asked questions by the police that might have caused her to give the detail, in her statements, that she gave in her evidence. She made the point that in one of the statements she told the police that she would recognise the Asian man if she saw him again, necessarily implying that she had had an opportunity to see him. On one occasion it was put to her that at a certain point in the signed statement she did not say that she had seen the man’s face. Her response was that what she said was that the man looked at her, and she made the point that she would not have known that if she had not been looking at his face.
I agree with the submission made by Mr Pearce, counsel for the Director, that Ms V gave a good account of herself when being tested in cross-examination, and appeared to have no difficulty in responding to cross-examination based on the two statements.
The signed statement appears to put the replacement of the beanie by the blindfold before the Asian man told Ms V to inhale the marijuana. On the other hand, in the recorded statement Ms V appears to put the inhaling of the marijuana before the replacement of the beanie by the blindfold. Neither statement is completely clear on that point, but that is my impression of the statements. Neither statement was tendered at trial.
The appeal
The submission on appeal is that counsel for Mr Lam should have challenged Ms V on the basis that in the signed statement she said that the blindfold replaced the beanie before she was told to inhale the marijuana. If that is what happened, she could not have seen the Asian man’s face when he put the pipe in her mouth, because the blindfold prevented her from seeing anything.
Mr Niarchos, counsel for Mr Lam on appeal, correctly submits that considerable emphasis was put on the observations that Ms V made when she was told to inhale the marijuana. This was important evidence. The case was left to the jury on the basis that they might convict Mr Lam on the basis of the identification evidence standing alone, and the evidence of the marijuana incident was a vital part of that evidence.
Mr Niarchos submits that the failure to cross-examine Ms V on this point is an error by counsel, and a material irregularity in the trial, and that there is a significant possibility that the omission to cross-examine affected the outcome of the trial. The reliability of Ms V’s observations was an important matter. He submits that this gives rise to a miscarriage of justice, or a real risk that a miscarriage of justice has occurred.
I am not satisfied that counsel for Mr Lam erred, let alone that the approach taken to the cross-examination of Ms V could have given rise to a real risk of a miscarriage of justice.
It was an understandable and sensible judgment by counsel at trial to focus in cross-examination on the fact that the signed statement and the recorded statement did not contain the observations or descriptions of the offenders’ appearance that Ms V provided in her evidence. That was, as I have already mentioned, coupled with cross-examination based on the limitations on the ability of Ms V to make reliable observations.
Tackling Ms V on the question of when the beanie was replaced by the blindfold might well have led to re-examination on this point, and to a reference to the recorded statement, which appears to be consistent with her evidence at trial, and to be the first account that she gave to the police. This topic might well have seemed an unprofitable line of enquiry, bearing in mind the generally satisfactory way in which Ms V gave her evidence. As it is, counsel at trial focused on an aspect of the matter that could be disputed, that is, the fact that neither the signed statement nor the recorded statement contained the detailed observations that she gave in evidence. There is good reason to think, as Mr Pearce suggested, that having tested Ms V’s reliability in the early parts of the cross-examination, counsel decided that the approach that he took was the better approach to take.
I add, that when one bears in mind the frightening nature of the experience to which Ms V was subjected, and the fact that the signed statement is not completely clear in any event, an attempt to make capital before the jury of the point identified by Mr Niarchos on appeal might have had adverse consequences for the defence case.
In other words, I cannot agree that the omission to cross-examine on the point in question was an error of judgment, or an omission to explore a matter that needed to be explored if the trial was to be a fair trial conducted regularly. I can see good reason why counsel at trial might have made a judgment that the approach taken to the cross-examination was the better approach to take, and there is nothing in the submission by Mr Niarchos to cast any real doubt on such a judgment, if that is the judgment that was made.
I fail to see how the failure to ask the suggested questions could be said to give rise to the risk of a miscarriage of justice: see TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [8] and [16] Gleeson CJ; at [33] Gaudron J; at [81]-[82] McHugh J; at [101] Gummow J; at [107]-[108] and [112] Hayne J; R v Scott (1996) 137 ALR 347 at 362-365 Doyle CJ.
For that reason it is not necessary to consider separately the question of whether the verdict is unsafe or unsatisfactory. The submission in that respect was tied to the point with which I have already dealt. As I noted earlier, no criticism has been made of the Judge’s summing-up, nor has any other basis been identified upon which the verdict might be said to be unsafe or unsatisfactory.
In short, there is no basis, having regard to the conduct of the defence case, for complaint by Mr Lam about the trial process.
Conclusion
For those reasons, in my opinion the appeal should be dismissed.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice. I have nothing to add.
VANSTONE J: I agree that this appeal should be dismissed and with the reasons given by the Chief Justice.