R v McIlwain

[1995] QCA 488

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	C.A. No.300 of 1995
[R. v. McIlwain]

THE QUEEN

v.

EYLES DAVID McILWAIN

Appellant

Fitzgerald P Pincus JA

Mackenzie J

Judgment delivered 7 /11/1995

Separate reasons for judgment of each member of the court, all concurring as to the orders to be made.

Appeal against conviction allowed.
Conviction quashed. No new trial is ordered.

CATCHWORDS: CRIMINAL LAW - conviction - GBH with intent - identification - delay in assembling identification evidence - misdescription of tattoos on face - confusion in describing placement and size of alleged '666' tattoo on appellant's head - complainant misidentified another person as the appellant - whether verdict unsafe and unsatisfactory.

Counsel:	Mr D. Richards for the appellant Mr J Henry for the respondent
Solicitors:	Legal Aid Office for the appellant.. Director of Prosecutions for the respondent.
Hearing date:	10 October 1995
IN THE COURT OF APPEAL	[1995] QCA 488
SUPREME COURT OF QUEENSLAND	C.A. No. 300 of 1995
Brisbane
BeforeFitzgerald P. Pincus J.A. Mackenzie J.
[R. v. McIlwain]

T H E Q U E E N

v.

EYLES DAVID MCILWAIN Appellant

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 07/11/1995

The circumstances giving rise to this appeal are set out in more detail in the reasons for judgment of Mackenzie J.

A few days after he was placed in a cell block, the complainant was viciously assaulted by a number of other inmates. There are only about 24 in all in the cell block, of whom the appellant was one. According to the complainant, he had briefly met the appellant in the few days between his arrival in the cell block and the assault. Further, if he was not present during the attack, the appellant entered the complainant’s cell soon afterwards. Despite the obvious reasons for not doing so, the complainant testified against his assailants. Further, the jury must have accepted the complainant as a reliable witness.

As the other judgments make clear, there are problems with the complainant’s identification of the appellant as one of the persons who attacked him, largely, it seems, attributable to the course which the investigation followed and the pace at which it was conducted. In consequence, the appellant’s conviction must be quashed as unsafe in the administration of justice.

Prison violence is a matter of obvious concern to the community, as well as those who are incarcerated and their families. It would be most unsatisfactory if every attempt was not made to ascertain and prosecute those who engage in such conduct. While that will often be difficult for a variety of circumstances associated with prison life, identification difficulties should be amongst the least of the problems when a complainant is willing to cooperate and testify. In the circumstances, it is appropriate that the Court express its disquiet at what has occurred on this occasion.

I agree with the other members of the Court that the appeal must be allowed and the conviction quashed. There should be no new trial.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 07/11/1995

I have read the reasons of Mackenzie J and agree with the orders his Honour proposes. In addition to the reasons given for those orders, with which I am in substantial agreement, I would emphasise that the gap in time between the assaults on the complainant and the date at which an attempt was made to assemble identification evidence was such as to create a special need for caution in assessing such evidence. The complainant was attacked on 20 August 1994 and six weeks were allowed to elapse before the problem of identification was seriously sought to be resolved. It was not until 2 October 1994 that the complainant was shown photo boards. The disadvantage of this leisurely course of investigation was not merely that, as I understand the evidence, it was not possible to present photographs of all possible assailants as they appeared at or about the time of the assault, but also that the accuracy of the complainant’s recollection of events was likely to have diminished with time. The trial judge rightly laid stress on the latter point in his directions to the jury.

It seems to be beyond the resources of the correctional authorities to protect prisoners against this sort of assault, but one might have hoped that, as a matter of routine, prompt and competent steps would be taken to identify the assailants. It appears likely that on the day of the offence the complainant would have been physically able, although badly injured, to pick out his attackers from that limited number of persons who had access to him. That this was not done in the present case is one of the reasons for the outcome, a plainly unsatisfactory one, that only one of the group of people who brutally assaulted the complainant has been convicted.

I should add that, in circumstances such as the present, it appears to me to be relevant that the appellant gave no evidence denying his complicity in the assault; but even taking into account that the complainant’s evidence against the appellant was uncontradicted, it appears to me to have been so unsatisfactory that the verdict cannot stand.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	CA No. 300 of 1995
Before	Fitzgerald P Pincus JA Mackenzie J

[R. v. McIlwain]

THE QUEEN

v.

EYLES DAVID McILWAIN

(Appellant)

REASONS FOR JUDGMENT - MACKENZIE J.

Judgment Delivered 7 November, 1995

The appellant was convicted on 14 July 1995 of doing grievous bodily harm with intent to do

grievous bodily harm. He had been charged with three other inmates of the Rockhampton

Correctional Centre, where the offence occurred on 20 August 1994. Two of these were acquitted

and the other, Chatters, was convicted. The complainant was assaulted by a number of persons in a

cell block of 24 inmates in which he had been placed on the afternoon of 17 August 1994.

The sole issue in the trial was identification. The complainant gave evidence that prior to the

incident his contact with the appellant was limited to having had him pointed out and saying "g'day

how're you going?" When asked to describe the appellant he said that he had very short hair and

tattoos through his hair and on his face. He described those on the appellant's face as resembling a

set of wings at the side of his eyes. He said he:-

"... didn't get to make out exactly what the tattoos were, except there was a lot of them

on his face, that's the thing that really stood out."

He also gave evidence that while the appellant was stomping on him he looked at the back of his

head and saw a tattoo of the number 666. In cross-examination by the appellant's counsel the
following passage appears:-

"Mr Honey: Well, you said you had seen him around, didn't you? -- That's right, yeah.

Did you notice anything - you say he had tattoos?-- Yes.

You said he had lots of them, didn't you?-- Yeah, I believe so.

On his face?-- Yes.

...

When did you notice that? When do you say you noticed that?-- The first time I seen him I noticed he had tattoos on him.

Where?-- On his face.

Is that at one of these times that you saw him prior to this incident, is that what you are talking about?-- The very first time I seen him -----

When was that?-- ----- they do stand out. When they first put me into 9 Yard.

That's prior to this incident, isn't it?-- Definitely.

...

On any of those particular occasions was he fully clothed?-- I can't really remember, but I presume he was, yeah. I can't think of anything unusual about it.

Well, why is it that you remember him at all? You didn't know him at that stage, I understand?-- Well, mainly the tattoos to his face.

That was why?-- They stood out.

Well, what tattoos were they at the time that you are talking about?-- I didn't itemise them, mate, I didn't take much notice of them, except the fact he had tattoos on his face.

But there were other prisoners with tattoos on their face, wasn't there?-- Yes.

Did he stand out any different to them?-- I think mainly just because he had more of them, but ----"

He was shown a photograph which was relatively contemporaneous with the offence. It

showed some tattoos around his eyes and some that were visible through his hair. However, there

were no tattoos on other parts of his face. He agreed that by the time of the trial - and this is

corroborated by other evidence - the appellant had acquired more tattoos on his face but said that those that were there at the time of the offence stood out to him. There was therefore some limited

evidence of prior familiarity with the appellant to be weighed with other factors by the jury. There

was also evidence that the complaint had not mentioned seeing the number 666 in his statement to

the police nor at the committal. There was evidence that he had misidentified a photograph of a

person not in Rockhampton prison as the appellant and that shortly after the bashing the appellant

had come to the complainant's cell and had a conversation with him, the content of which was

disputed.

With respect to the number 666 there was no evidence except the complainant's that the

appellant had such a tattoo. On this aspect of the case the defence case was that the appellant had

such a tattoo but that the complainant had misdescribed its size and location. It was therefore of

some importance to the defence to have in evidence its size and location. What happened was that

the appellant's trial counsel sought to have the complainant look at the back of the appellant's head

with a view to identifying the mark. After objection by the Crown Prosecutor, apparently on the

basis that the appellant's hair was considerably longer by the time of trial than at the time of the

offence, the appellant's counsel expressed the opinion that that course would not be necessary if he

asked further questions. He asked the complainant whether his recollection of the numbers was that

there were some thick numbers across the back of the appellant's head, with which the complainant

agreed. He then said:-

"I'm putting it to you that he does have those numbers that are very small on the back

of the left ear? ...

I know they're there somewhere."

It is inherent in the question and answer that it was the defence position that the number was

tattooed on the appellant's head and that the complainant accepted that. However, the answer did

not amount to acceptance of the propositions that the number was small or was on the back of the

appellant's left ear. A jury hearing the question and answer would inevitably conclude that it was

common ground that the appellant had a tattoo of the number 666 on his head.

Counsel for the appellant added by leave that ground of appeal that it was an error to direct

the jury that they could act on suggestions of the appellant's counsel that the appellant had 666

tattooed on the back of his ear. As the case was conducted there was evidence upon which the jury

could act that the appellant had 666 tattooed somewhere on his head. As it was an integral part of

the defence case that the complainant's evidence should be not accepted because of the discrepancy

between his description of the figures as being thick figures which were easily seen and the

suggestion that the figures were small and on the ear the direction was actually favourable to the

defence. In the circumstances the learned trial Judge recognised that to direct in any other way than

he did would have prejudiced the defence in respect of this aspect of the defence.

The ground fails as a separate ground. However, the complainant's inability to identify

accurately where the tattoo of 666 was, his failure to describe its size accurately and the failure to

mention seeing it in his original statement and at committal are all relevant to the question whether

the conviction is unsafe and unsatisfactory. Although there was evidence that he had been

transferred from the prison where the assault happened to another prison the possibility of his

having found out about the mark by some means subsequent to the assault cannot be discounted.

Other matters which cannot be left out of account are the facts that shortly after the incident a prison

officer inquired of the complainant whether the appellant was one of his attackers and that he

misidentified another person as the appellant.

It was common ground that the appellant came into the complainant's cell shortly after the

bashing but the complainant denied a suggestion that the appellant had not been involved in the

bashing but had merely come to see if he was all right. It was common ground that no further

violence was inflicted on that occasion. It is the complainant's evidence that he had a good

opportunity to observe the appellant's face on that occasion. In some circumstances, the ability to

identify a person shortly after the event as an attacker will be of considerable weight. However, in

this particular case, the incident must be considered in conjunction with the other evidence
pertaining to the accuracy of the identification.

In determining whether a jury's verdict is unsafe and unsatisfactory this court must ask itself

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 bearing in mind that the jury had the primary

responsibility of determining guilt or innocence and had the benefit of seeing and hearing the

witnesses (M. v. The Queen (1994) 181 CLR 487). The case was one which depended entirely

upon identification. No complaint was or could be made against the learned trial Judge's careful and

accurate summing up. He dealt separately with the appellant's case and urged the jury to scrutinise

the evidence carefully before convicting. However, the quality of the evidence of identification is

critical in cases of this kind. In this case there are serious deficiencies affecting the accuracy of the

identification. If the evidence before the jury contains discrepancies, displays inadequacies, is

tainted or otherwise lacks probative force so as to lead an appellate court to conclude that even

allowing for the advantages enjoyed by the jury there is a significant possibility that the conviction

should not have eventuated, the Court is bound to act and set aside a verdict based on that evidence.

(M v. The Queen). In my view the nature of the identification evidence is so unsatisfactory that the

principle must be applied in this case. I would order that the conviction be quashed and further

order that there be no new trial.