R v O'Sullivan

[1995] QCA 312

IN THE COURT OF APPEAL	[1995] QCA 312
SUPREME COURT OF QUEENSLAND

C.A. No. 165 of 1995

Brisbane

Before McPherson J.A.

Pincus J.A. Demack J.

[R. v. O'Sullivan]

T H E Q U E E N

v.

PAUL GEOFFREY O'SULLIVAN

(Appellant)

McPherson J.A.
Pincus J.A.

Demack J.

Judgment delivered 21/07/95

Reasons for judgment by the Court

APPEAL ALLOWED. CONVICTION SET ASIDE AND A NEW TRIAL ORDERED.

CATCHWORDS	CRIMINAL LAW - GRIEVOUS BODILY HARM - Whether trial judge failed to warn the jury of danger of acting on evidence of voice identification - Whether conduct of defence relieved trial judge of need to warn the jury of risks of voice identification - Domican v. The Queen (1992) 173 C.L.R. 555.
Counsel:	D. Richards for the appellant M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant

Queensland Director of Public Prosecutions for the respondent

Hearing Date:	23 June 1995
REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 21st day of July 1995

This is an appeal from conviction following a trial in the District Court at which the appellant was found guilty of one count of doing grievous bodily harm to Jacob Koster and a second count of entering his dwelling house at night with intent to commit an indictable offence. Both offences were alleged to have been committed on Friday 2 April 1993 when, at about 8 p.m., the appellant, as the prosecution set out to prove, came to Koster's house at Mt. Nebo in the company of three other men, Leighton, Childs and Liversay. Liversay had a sawn-off single barrelled shotgun. Childs also had a shotgun. Childs hit Koster around the head with his gun, and stuck the barrel into Koster's eyes. Liversay discharged his gun at Koster hitting him in the hand and causing injury which it was formally admitted involved grievous bodily harm. As a result, Koster lost a finger and part of his left hand.

Liversay has not been apprehended. By the time of this trial Leighton had already pleaded guilty and been sentenced for doing grievous bodily harm. Childs pleaded guilty at the beginning of the appellant's trial and was sentenced to imprisonment for two years. The appellant received sentences of three years and of two years, to be served concurrently, for the two offences of which he was convicted.

The events of Friday 2 April 1993 arose out of an agreement between Koster and Leighton in 1992 to cultivate a crop of marijuana in the rainforest somewhere near the house where Koster was living with Donna Williams at Mt. Nebo. At some time before those events, the marijuana plants were "ripped off", or removed from where they were growing, leaving only about 10 lbs or more of the plant, which was salvaged, harvested and dried. Their activities came to light as a result of the events of the night of 2 April 1993, and Leighton, Koster and the appellant were prosecuted for cultivating marijuana in proceedings in which Koster gave evidence against O'Sullivan. He was nevertheless acquitted.

At the trial of the offences out of which the present appeal arises, Koster and Donna Williams gave evidence for the Crown. His account of the night of 2 April 1993 was that he and Donna had gone to bed upstairs in their house at Mt. Nebo, when they heard Leighton outside shouting to them and sounding the horn of his car. Leighton had a money claim against Koster, and had telephoned him some days earlier to say he was coming that night to collect the debt. Koster went downstairs and opened the door, at which Leighton came in, followed by Liversay who was carrying the sawn-off shotgun, and then by Childs holding another gun. According to Koster's evidence, O'Sullivan also came into the house and went over to a table where there was a mobile telephone and a lamp, which he smashed. They all began shouting at Koster and threatening him. Leighton was accusing him of having ripped him off; Koster was protesting his innocence; the appellant had a tape recording which he was trying to make Koster listen to; and Leighton and the appellant were shouting "Kill him. Kill him". Donna Williams said that from upstairs she heard the appellant say this again after the shot was discharged. Then one of them yelled out "Let's get out of here before she calls the cops". Koster came upstairs with his hand wrapped in a sheet and used the telephone to call the police.

The police came and an ambulance arrived, and Koster was taken to hospital in Brisbane. Detective Sgt. Hatwell was one of those who went to the house at Mt. Nebo. He saw the broken lamp, and arranged for photographs to be taken, which were tendered at the trial. On the following morning, which was Saturday, he visited Koster in hospital. He found Donna Williams was already there talking to him. Later in the afternoon Koster was brought back to the CIB office at The Gap, where he was shown a board with photographs of 12 different persons on it, from which he picked out the photograph of the appellant.

Detective Const. Garnett had by then already paid a visit to the appellant at his home at Park Ridge. He went there at about 3.50 p.m. on the Saturday afternoon. The appellant said he knew of the incident at Mt. Nebo from hearing about it on the radio that morning. Asked what he knew about it, he said that "All I know is that a group of blokes came around to the house on Friday night and they were asking for Jacob [Koster's] address, so I gave it to them". He said he did not know who those people were, "and by the look of them I didn't want to know", and that he had been over at his sister's place with his wife and had not got home until morning.

Leave was given to raise the only point argued on the appeal, which was that the learned trial judge had failed to warn the jury of the danger of acting on the evidence of Donna Williams, which was evidence of voice identification. The duty to warn of the dangers of mistaken identification is well settled. The risk of mistake is at least as great in a case based on hearing a voice as it is in the case of visual identification. See R. v. E.J. Smith (1986) 7 N.S.W.L.R. 444, approving R. v. E.J. Smith [1984] 1 N.S.W.L.R. 462; R. v. Mackay [1985] V.R. 623; R. v. Harris (No. 3) [1990] V.R. 310, 314; R. v. Zullo [1993] 1 Qd.R. 572, 578. It is true that both Koster and Donna Williams claimed to have known the appellant for some 15 years or so. However, his voice was only one of four or five persons who were shouting more or less simultaneously. Plainly this would make it more difficult to be confident that the appellant's voice had been correctly identified. It was not suggested that there was anything about it that was particularly distinctive.

The prosecution case against the appellant did not, however, rest simply on the identification by Donna Williams of the appellant's voice. Koster himself gave evidence of having seen the appellant come into his house with the others and he testified to the actions of the appellant on that occasion. It was put to him by counsel for the defence that the appellant was not there at all. Koster's response was that he definitely was. The appellant did not give evidence, so that what Koster said was uncontradicted. On the other hand, he was a person with a record of convictions for prior drug and other offences. He admitted to having been sentenced to imprisonment for six years in 1980 for cultivating marijuana, and again in 1993 for trafficking in dangerous drugs, for cultivating marijuana, and for being in possession of money that was the proceeds of selling drugs. These offences or one or more of them arose out of the cultivation of the crop at Mt. Nebo. It was at the trial in May 1993 of charges for those offences that Koster gave evidence against the others including the appellant, when he was acquitted. It was put to him in cross-examination that he had falsely nominated the appellant as a party to the subject offences in order to solicit the favour of the police so as to attract a reduction in the sentence he could expect to receive as a result of those activities.

Koster denied that this was his motive for giving evidence against the appellant. He also denied that he or Donna Williams, or both, were motivated by a desire for revenge against the appellant because he had had an affair with Koster's former de facto wife while Koster himself was in gaol. That seems a rather surprising reason for supposing she would wish to incriminate the appellant; but it is scarcely something that would have been put in cross-examination without specific instructions from the client to counsel. It was also put to both Koster and Donna Williams that, on the Saturday morning before he picked out O'Sullivan's photograph from among those on the photograph board, he and she had an opportunity to speak to each other out of earshot of the police. For her part, Donna Williams agreed that she had telephoned the appellant at his home at about lunch time on that day; but she denied she had said she was going to make sure that the appellant would "get fucked up the arse in prison for this. You'll be there till you rot". She said "That's not correct at all". She also denied having accused the appellant of having sent the others to Koster's house on the previous night.

It is worthy of note that it was never put to Donna Williams at any time in the course of cross-examination that she was mistaken about her claim to have recognised the appellant's voice. Apart from highlighting some discrepancies between her evidence and the statement obtained from her on the night of the shooting, the thrust of the questioning was that she and Koster had conspired to incriminate the appellant contrary to the facts. In that way the question left to the jury was, as the judge expressed it in summing up, that -

"there was some dishonest conspiracy of Williams and Koster to implicate Mr O'Sullivan quite wrongly in the events of 2 April 1993. Mr Macgroarty suggests to you there would have been no need whatsoever for a photo board if Mr Koster had at an early stage named O'Sullivan, a person he knew well, as having been among his attackers".

The issue left to the jury was therefore one of credibility, meaning by that the honesty of the two principal prosecution witnesses, and not the accuracy of their identification. That is no doubt why there was no reference in the summing up to the dangers of mistaken identification, and also why there was no request for any redirection in relation to that question. Indeed, the only relevant redirection sought by counsel for the defence concerned Koster's evidence that the appellant had mentioned his reason for being at the house that night, and that the jury be reminded that "this is part of Koster's overall evidence for the jury to evaluate".

The question remains, however, whether the way in which the defence was conducted relieved the trial judge of the need to warn the jury specifically of the risks involved in relying on the evidence of Donna Williams that she had identified the appellant's voice among those downstairs in the house on that evening. Her evidence tended to corroborate the direct eye witness account of Koster that the appellant was one of those present and threatening him in the house on the occasion in question. The point is, we consider, covered by what was said by the majority of the High Court in Domican v. The Queen (1992) 173 C.L.R. 555, 565-566:

"A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused (See Reg. v. Bartels [1986) 44 S.A.S.R., at pp. 270-271; cf Reg v. Goode [1970] S.A.S.R. 69, at p.77). The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused (See Reg. v. Gaunt [1964] N.S.W.R. 864 at p.867). Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused."

The case there was one in which, as Mrs Richards of counsel pointed out, it appears from the proceeding paragraph on the same page of their Honour's reasons that "the thrust of the appellant's attack on Mrs Flannery's evidence at the trial was not that she had been mistaken in identifying the appellant but that her evidence was false".

In Domican Mrs Flannery was the principal Crown witness who claimed to have identified the appellant. There were weaknesses in Mrs Flannery's evidence that were held by the High Court to require "careful direction concerning the dangers of acting upon it". In the absence of such a direction, their Honours decided that a new trial must be ordered despite the existence of a body of other evidence which was said to make the case against the appellant "on paper a strong one" (173 C.L.R. 555, 566).

There are some obvious points of resemblance between the circumstances considered in Domican and those in the present case. Here there was direct evidence from Koster at the trial that the appellant was present; but the reliability of his evidence was affected by his previous criminal record and his involvement with one or more of his assailants in the illegal enterprise of drug cultivation which gave rise to the attack on him. In those circumstances, the jury might perhaps have given decisive weight to the evidence of Donna Williams identifying the voice of the appellant among those she heard shouting downstairs. The jury were, however, not warned in accordance with settled practice of the risks involved in their doing so, nor about the particular difficulties associated with voice identification. This being so, we see no escape from the principle laid down in Domican that a new trial must be ordered. The case is not one in which it can be said that the jury must inevitably have convicted apart from the evidence of Donna Williams.

The appeal should be allowed and the conviction set aside. There will be an

order for a new trial.