R v Meadway

[1992] QCA 49

IN THE COURT OF APPEAL [1992] QCA 049

SUPREME COURT OF QUEENSLAND

C.A. No. 285 of 1991

T H E Q U E E N

v.

JASON ALLAN CAMERON MEADWAY

(Appellant)

JUDGMENT OF THE COURT

Delivered the 1st day of April 1992

On 18 October, 1991, the appellant was convicted in the
District Court at Brisbane of committing two offences on 28
May that year, one of breaking and entering and unlawfully and
indecently assaulting a woman, the other of rendering the
woman incapable of resistance by means calculated to strangle
with intent to commit an unlawful and indecent assault. He
was sentenced to imprisonment for twelve months for the former
offence and to imprisonment for seven years and four months
for the other offence, the sentences to be served
concurrently. The appellant has appealed to this court
against his convictions on the ground that they were
unreasonable and has applied for leave to appeal against
sentence on the ground that the sentences are manifestly

excessive.

At approximately 7.30 p.m. on Tuesday 28 May, 1991, the knees. Her underwear was dishevelled and had been damaged. She fled, bursting through the front window of the office, and her assailant escaped through the rear door.

complainant was attacked at the office of a real estate agent
at Margate where she worked. The office was in a major
street, well lit and located near other premises which were
open for business. The complainant was alone in the office at
the time. She had entered the office earlier that evening
through a rear door and had left the key in the door. While
she was working at her desk, her assailant came up behind her,
placed a cord around her neck and tightened the cord. The
complainant either fell, or was pulled, from her chair to the
floor and almost immediately afterwards lost consciousness.

The offences were committed about three kilometres from where the appellant lived with members of his family, including his small child. He was only eighteen years old at the time of

the offences, unemployed and with limited education and work
experience. He did not have a motor vehicle or other means of
transport. Although it is of now limited significance, the
appellant's brother and his brother's de facto wife gave
evidence that the appellant was with them at the time of the
offences.

There was no evidence against the appellant other than the uncorroborated evidence of the complainant identifying him as her attacker.

There was some conflict between the evidence of the complainant and the evidence of a female witness who was the first person to speak to the complainant on the footpath outside the real estate agency after the offences had been committed concerning statements made by the appellant at the time. However, the conflict was, overall, of little importance.

Not long after the offences, a police constable arrived. The complainant did not disagree with what he said he was told, which she later contradicted in important respects in her evidence at the trial. In her statement made to the police constable within half an hour of the offences, the complainant said that her attacker had clean, blond hair, stopping at the shoulders, that he was of medium height and slim build, and said that he was wearing a white shirt with a collar and black pants. She also said that she had "seen his face before here at the office" and that he was "either a tenant or someone who's come in to pay rent for one of them." The appellant was a total stranger to the complainant, as she acknowledged at the trial.

On the night of the offences, the appellant also supplied a pants and a long sleeved white shirt with a collar", and the clothing did not look dishevelled or rumpled. At the trial, the complainant elaborated, stating:-

description of her attacker to a detective. She described her
assailant as a male, 22 to 24 years old, clean shaven, 5'10"
tall, with a thin build and long blond "scraggly" hair.
"The shirt was similar to those you see waiters or bar staff

wearing in most hotels, and the black pants were of a
style where they were a little looser up around the top,
not a tight fitting black pant. It was a dress pant
rather than a pair of jeans."

The appellant did not work in hotels or bars and there was no evidence that he owned any clothes of the type described. His own evidence was that he did not own a pair of black trousers or a shirt with long sleeves or a collar. He usually wore

shorts or jeans and a t-shirt or singlet and, while he owned two white t-shirts, most of his t-shirts were black and some had symbols or pictures on the front. There was also some

inconclusive evidence concerning footwear, and certainly assisted in the preparation of an identikit picture depicting a likeness of her assailant. The picture was admitted as an exhibit without objection. There was some similarity between the picture and photographs of the appellant which were also tendered in evidence. The complainant considered that, as a depiction of her attacker, the identikit picture rated 7 out of 10.

nothing which implicated the appellant.

On the afternoon of 29 May, the complainant was shown a large number of photographs, over 700 of which were photographs of males. After she had looked through over 400 photographs she identified the appellant from a photograph as the man who had attacked her. The photograph had been taken about a year earlier when the appellant had shorter hair. According to the evidence, when she selected the photograph the complainant said:

"If he arrived on the doorstep and he had long blond hair and

owned a long sleeved white shirt and black pants and it
was a year or two later, you would have your man. The
hair on this fellow was lighter and the hair on him in
the photo was too short and too dark."

It is apparent that the investigating police did not consider that there was sufficient evidence to charge the appellant at that time, and no effort was made to do so although his

whereabouts were known. The police visited the appellant at
his home at Clontarf on the following day, 30 May, and on a
number of subsequent occasions. Their searches failed to
produce any clothing which matched the description supplied by
the complainant or any other evidence against the appellant.

During the next two weeks, the complainant went to a variety of public places on the Redcliffe Peninsula, "hotels, clubs, shopping centres - just all over the Peninsula day and night,"

apparently in the hope that she would recognise her assailant if he was present. Sometimes she was taken by police officers and on other occasions she went on her own or with members of

her family. On 7 and 11 June, she went to the Redcliffe appellant would be present at any of these places on any of these occasions. For whatever reason these efforts were made, they proved futile except as a backdrop to what occurred on June 12.

The appellant was required to appear before the Redcliffe Magistrates Court that day to answer another charge which arose out of one of the visits to his home by the police in

connection with these offences. The police must have known, information to the complainant. They took the complainant to the Courthouse where she waited in the foyer and, when the appellant arrived, she identified him as her attacker. He was wearing shorts and a t-shirt at the time.

or expected, that the appellant would attend the Redcliffe

The complainant's evidence was that she relied on the appellant's voice as well as his appearance when she identified him on that occasion, but it is apparent that the few words which she says her attacker spoke at the time of the offences provided a totally inadequate foundation for a voice comparison weeks later and little, if any, reliance was placed on the voice identified in this Court by the prosecution.

There was no evidence with respect to the surrounding circumstances, including the presence of other persons at the Redcliffe Courthouse, on June 12, 1991, at the time when the complainant identified the appellant as her attacker.

No complaint was made to this Court concerning the conduct of the trial or the very fair summing up by Botting DCJ who warned the jury that the evidence of the complainant identifying the appellant was uncorroborated and told them that it would be dangerous to convict the appellant.

Nor was there any issue concerning the credibility of the complainant. On the contrary, counsel for the appellant expressed the view that she was intelligent and "undeniably a very impressive looking and sounding witness", which emphasised the dangers associated with any possibility of a mistake by the complainant in her identification of the appellant. As the Full Court of Victoria pointed out in R. v. Dickson (1983) 1 VR 227, a jury is unlikely to know the substantial degree of risk that an honest witness may be wrong.

While there is no rule of law that uncorroborated evidence of identification of a stranger cannot, without more, support a conviction, the risks inherent in such evidence have been recognised on many occasions. See, for example, R. v. Oakwell (1978) 1 WLR 32, where the English Court of Appeal referred at p.37 to "the ghastly risk run in cases of fleeting encounters". In R. v. Folan (CA No.151 of 1991; unreported Judgment delivered on 5 December 1991), McPherson SPJ (as His Honour then was) said:-

"Miscarriages of justice arising from mistaken visual

identification are notorious, particularly where a
prosecution witness impresses the jury as being honest
... ".

The relevant principles to be applied and the material factors to be considered in relation to identification evidence are extensively discussed by the High Court in Davies and Cody v. R. (1937) 57 CLR 170 and Alexander v. R. (1981) 145 CLR 395, and there is little purpose to be served by a repetition in this matter of the lengthy observations made in those cases. A sufficient indication of presently material factors may be derived from one passage in the judgment of Gibbs CJ in Alexander. Although His Honour stated that a failure to hold an identification parade would not always result in a conviction being quashed, he pointed to both the desirability of such a course and the deficiencies in identifications based on a collection of police photographs. His statements also illustrate the difficulties which may be encountered in other methods used to obtain identification evidence. At pp.400- 401, he said:

"

The value of holding an identification parade is not only that, if properly carried out, it provides the most reliable method of identification, but also that it is necessarily held in the presence of the accused, who is thereby enabled to observe, and later bring to light, any unfairness in the way in which the parade was conducted, or any weakness in the way in which the witness made the identification. However, as a matter of legal principle, it seems to me impossible to say that the admissibility of evidence of a prior act of identification depends on the fact that an identification parade was held. As a matter of law it would be equally admissible to prove that an identification was made by a witness who was shown a collection of photographs and selected one which he said was the photograph of the person concerned. There are, however, two grounds of objection to the proof of identification by means of police photographs. In the first place, the accused will of necessity be absent when the identification is made, and has no means of knowing whether there was any unfairness in the process or whether the witness was convincing in the way in which he made the identification. Secondly, the production in evidence at the trial of photographs coming from the possession of the police is very likely to suggest to the jury that the person photographed had a police record, probably for offences of the kind in question.

For these reasons, it is most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that a witness should identify a person who is firmly suspected to be the offender."

This Court must consider whether, having regard to the
principles and considerations to which attention has been
drawn, the conviction of the appellant is unsafe and
unsatisfactory in the administration of justice. In carrying
out that task, it is not for the Court to decide merely
whether there is evidence upon which the appellant could
theoretically have been convicted on the one hand or, on the
other hand, whether the jury's verdict is against the weight
of the evidence or different from the conclusion which the
Court itself would have reached. Rather, the Court must
decide whether a jury, acting reasonably, must have
entertained a reasonable doubt as to the appellant's guilt
having regard to the probative value of evidence which, if
accepted, would support a conclusion of guilt. In assessing
the probative value of the evidence, the Court must have
regard to that experience which has been gained in the
administration of criminal justice, including the special
difficulties associated with some evidence and the special
disadvantages which some accused face where credibility is
important. There may be circumstances in which there is
almost nothing which an accused person, particularly an
accused person lacking credibility, can do to contest evidence
of his guilt.

For example, in this instance, there was little, if anything, that the appellant could do to cast doubt upon the testimony of the complainant, who was a confident and credible witness, even if she was mistaken. In such circumstances, the need to recognise the possibility of mistake in her evidence necessarily permeates every aspect of any assessment of the sufficiency of the evidence to support the appellant's conviction.

The appellant was a stranger to the complainant. At the time
of the offence, she saw him for a very short time in
circumstances of distress and fear. There was no suggestion
that the appellant possesses any peculiar or remarkable
features; the complainant described him as "a very average
person". There was nothing distinctive of the appellant in
the complainant's contemporaneous description of her attacker,
which could appropriately be applied to a large number of
young males. There were important discrepancies between
aspects of the complainant's descriptions of her attacker and
the appellant, including age (18 not 22 or 24), clothing and
the identification of the attacker as a tenant or someone who
has "come in to pay rent". In combination, these features

strongly emphasise the risk associated with the complainant's

identification of the appellant at the Redcliffe Courthouse,

compared with an orthodox identification parade.

It has been held that the quality of identification evidence
may be so poor that it is virtually useless and that, in those
circumstances, it is appropriate for a trial judge to exclude
such evidence and that the case should be withdrawn from the
jury and an acquittal directed unless there is other evidence
which goes to support the correctness of the identification:
R. v. Corke (1989) 41 A Crim. R 292; R. v. Currie (CA No.313
of 1990; unreported judgment delivered 21 December 1990). In
Victoria, in R. v. Burchielli (1981) VR 611, two members of
the Full Court, McInerney and McGarvie JJ, adverted to the
possibility that evidence of identification might even be
excluded if it was obtained by police in a way which they knew
involved a high risk of mistaken identification.

The position here is rather different. The evidence of the various instances of identification of the appellant by the complainant, including the identification based on the

photographs and the identification at the Redcliffe Whatever might have been the value of the identification at the Redcliffe Courthouse if the attendant circumstances had been established, the value was considerably reduced by the absence of any evidence of those circumstances. Each identification had associated difficulties which created a significant risk of mistake. The risk is that, whether the identification evidence is considered separately or in combination, a conviction based only on the complainant's identification of the appellant without any corroborative evidence, gives rise to so serious a possibility of miscarriage of justice that the conviction cannot be sustained.

In these circumstances, the appeal must be allowed and the conviction quashed. There is no practical course which would leave open a prospect of a sustainable conviction, and accordingly, it should further be ordered that there be no new trial.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 285 of 1991

T H E Q U E E N

v.

JASON ALLAN CAMERON MEADWAY

(Appellant)

The President
Mr Justice McPherson

Mr Justice Thomas

Judgment of Court delivered on 1st April, 1992

APPEAL AGAINST CONVICTION ALLOWED

CONVICTION QUASHED
ORDER THAT THERE BE NO NEW TRIAL

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 285 of 1991

T H E Q U E E N

v.

JASON ALLAN CAMERON MEADWAY

(Appellant)

JUDGMENT OF THE COURT

Delivered the 1st day of April 1992

MINUTE OF ORDER:	Appeal against conviction allowed Conviction quashed Order that there be no new trial
CATCHWORDS:

Counsel:Mr. J. Claire for the Appellant

Mr. J. Byrne for the Crown

Solicitors:  Legal Aid Office (Queensland) for the Appellant

Director of Prosecutions for the Crown

Hearing date: 26 February, 1992