R v Parry
[2017] SASCFC 66
•9 June 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PARRY
[2017] SASCFC 66
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Parker)
9 June 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - ADJOURNMENT - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - FINGERPRINTS
Appeal against conviction of aggravated robbery.
In October 2012 two men robbed Mr Crosby (who was in company with Mr Carmena-Wilson) of $7,500 after arranging to meet Mr Crosby to sell to him 15 iPhones for $7,500. The robbers fled the scene with the cash, leaving behind a cardboard box ostensibly containing the iPhones but containing make weight items. The prosecution case was that the appellant was one of the robbers. The only issue at trial was identity.
The police found several sets of fingerprints on the box and its contents. In December 2012 the fingerprints were compared to a sample of the appellant’s fingerprints taken in 2007. Three fingerprint experts concluded that there was a match between some of the fingerprints found on the box and its contents and the appellant’s 2007 fingerprint impressions.
In June 2013 Mr Carmena-Wilson identified the appellant as one of the robbers in a photo identification procedure.
In November 2013 the appellant was arrested and fingerprint impressions were taken. The impressions were of extremely poor quality.
In January 2014, a fourth fingerprint expert, Mr Neilson, compared the fingerprint impressions taken from the box and its contents with the appellant’s 2013 fingerprint impressions but could not make a positive identification.
On the first day of the trial, a fifth fingerprint expert Mr Noack prepared a witness statement in which he concluded that impressions taken from the box and its contents matched the appellant’s 2007 fingerprint impressions.
The appellant was convicted by the jury. The grounds of appeal are that:
1. the Judge erred in failing to exclude the evidence of Mr Noack or failing to adjourn the trial to enable Mr Neilson to be called or the trial miscarried as a result of the admission of Mr Noack’s evidence or because the Judge refused to allow cross-examination of Mr Noack in relation to his contact with Mr Neilson;
2. the Judge erred in failing to direct the jury in relation to forensic disadvantage caused by delay;
3. the Judge erred in declining to abridge time for the issue of subpoenas to two potential defence witnesses;
4. the Judge erred in directions to the jury about the identification evidence;
5. the trial miscarried as a result of the above matters.
Held by the Court:
1.1. The Judge did not err in failing to adjourn the trial. Defence counsel eschewed an adjournment and the Judge made it plain that an adjournment would have been granted if sought (at [76]).
1.2. The Judge did not err in failing to exclude Mr Noack’s evidence (at [110] and [115]).
1.3. The trial did not miscarry as a result of the admission of Mr Noack’s evidence (at [100]).
1.4. The Judge did not refuse to allow defence counsel to pursue cross-examination of Mr Noack in relation to his contact with Mr Neilson (at [114]).
2. The Judge’s directions in relation to forensic disadvantage were not inadequate (at [148]-[150]).
3. The Judge did not decline to abridge time for the issue of subpoenas to the potential defence witnesses because no application was made and defence counsel decided not to pursue such subpoenas (at [157]-[158]).
4. The Judge’s directions in relation to identification evidence were not inadequate (at [176]).
5. The appellant’s trial did not miscarry (at [179]).
6. Permission to appeal on ground 3.1 rescinded and permission to appeal on proposed ground 5.4 refused. Permission to appeal on proposed grounds 4 and 6 granted. Appeal dismissed (at 180]).
Evidence Act 1929 ss 34CB, 34AB , referred to.
R v Cassebohm (2011) 109 SASR 465, discussed.
Dominican v The Queen (1992) 173 CLR 555; Haoui v The Queen (2008) 188 Crim R 331; R v Finn (2014) 119 SASR 207; R v Maiolo (No 2) (2013) 117 SASR 1, considered.
R v PARRY
[2017] SASCFC 66Court of Criminal Appeal: Peek, Blue and Parker JJ
THE COURT.
Appeal by Mr Jacob Parry against a conviction of aggravated robbery.
Introduction
On 7 October 2012, Mr Crosby was using the internet and noticed an advertisement on the Gumtree website for the sale of 60 Apple iPhones for $650 each. Mr Crosby, who had an interest in selling such items, found that to be an attractive price and began text messaging the supplied mobile number 0401 429 475. The seller introduced himself as “Glen”. Mr Crosby eventually arranged to meet “Glen” for the purpose of buying 15 Apple iPhones for $7,500.
On 9 October 2012 at about 4:15pm to 4:30pm, Mr Crosby, in possession of an envelope containing $7,500 in cash, went together with his stepson, Mr Carmena-Wilson, to the final arranged meeting place, the Harvey Norman shop car park on Marion Road, Marion. On arrival, they saw two males standing at the end of the car park with a cardboard box (“the box”) on the ground between them. Mr Crosby got out of the car, leaving Mr Carmena-Wilson in the front passenger seat where he remained at all times.
Mr Crosby approached and spoke to the two men, one of whom claimed to be “Glen”. As Mr Crosby bent down to pick up the box which he had been led to believe contained the iPhones, he was kicked hard in the head by one of the two men, but he did not see which.
One of the two robbers then approached and opened the front passenger door, reached over Mr Carmena-Wilson and grabbed the envelope of cash. The two robbers then ran off with the money north on Marion Road, leaving the box and its contents behind.
The course of the investigation
Shortly after the robbery, at about 4:40pm on 9 October 2012, uniformed police attended at the scene. Brevet Sergeant Pill, a crime scene officer, also attended and photographed the box. It was found to be securely sealed with tape. It obviously had something inside, the weight of which gave some verisimilitude to the pretext that it contained a number of mobile telephones.
At 4:52pm Detective Brevet Sergeant De Zilwa, who was to become the investigating officer, attended in company with Detective Senior Constable Godwin. Witnesses spoken to included Ms Laidlaw, Mr Graham, Mr Leitch, Mr Mussell and Mr Harding from each of whom notebook statements were taken.[1]
[1] Mr Mussell and Mr Leitch did not sign their statements until 2016. Two additional persons, Mr Stevens and Ms Patterson, were spoken to by police but no statements were taken.
It was ascertained that the two robbers had been seen by witnesses to run north along Marion Road and then into a different car park off Marion Road, from where they were soon after driven away by a third man in a silver 4WD vehicle. CCTV footage from that car park depicts the departure of that vehicle.
At about 6:00pm that evening, officers De Zilwa and Godwin attended at Flinders Medical Centre and obtained statements from the victim and his step-son.
Gathering of the fingerprint evidence
On 9 October 2012, Senior Constable Pill took possession of the sealed box. Its contents turned out to be the following items: three long life milk containers, aftershave packaging bearing the branding “Mesmerize” and a “B & H” catalogue (“the contents items”). He entered the box and contents into the internal system as one police exhibit, to be referred to as “police exhibit 520233362”.
On the following day, 10 October 2012, Senior Constable Pill delivered police exhibit 520233362 to the Fingerprint Bureau. The box and each of the content items were chemically treated and examined for latent fingerprints. A number of fingerprints, or sets of fingerprints, were discovered. They were photographed, assigned individual barcodes, and placed on SAPOL’s “forensic register” on 24 November 2012.
The important set of fingerprints directly concerning the appellant was a set of four impressions found on the side of the box and assigned the barcode number “900475344” (“the “344” impressions”).[2] On 4 December 2012, fingerprint investigator Godden assessed the fingerprint material and concluded that two of the four “344” impressions” were identical to the right index fingerprint of the appellant and one was identical to the right ring fingerprint of the appellant. She did so by entering the above data into the National Automated Fingerprint Identification System and searching the National Fingerprint Register. That search also revealed a number of fingerprint matches to one Mr KH (“KH”), both on the outside of the box and on items inside the box. These findings will be referred to as “the Godden 2012 assessment”.
[2] For completeness, a second set of two fingerprint impressions on the side of the box were assigned the barcode number “900475355” (the “355 impressions”) but as events transpired these impressions had no part to play in the case.
The appellant’s fingerprints were on the National Fingerprint Register after having been taken by SAPOL officers on 24 February 2007 in unrelated circumstances (“the 2007 fingerprint sample”). KH’s fingerprints were also on the National Fingerprint Register, having previously been taken by police officers in unrelated circumstances.
On the same day, 4 December 2012, the Godden 2012 assessment was “peer reviewed” by Mr Andrews, another fingerprint investigator, who agreed with it. The following day, Ms Godden’s assessment was again checked by another fingerprint investigator, Mr Lewis, who performed a “technical or final review”, and also agreed with it. Each of these assessments was recorded in a document titled “South Australian Fingerprint Bureau Case File”, which was admitted as exhibit VD1 on the voir dire and exhibit D10 at trial.
The silver Nissan Patrol 4WD vehicle
In December 2012 Brevet Sergeant De Zilwa received notification of positive fingerprint identification for the appellant and KH, being the Godden 2012 assessment. He therefore conducted motor vehicle checks and discovered that KH was the owner of a Nissan Patrol 4WD vehicle with a similar colour, shape, and distinguishing roof-rack as the vehicle which had been seen driving away the robbers and was depicted in the CCTV footage collected from the car park off Marion Road.
The photographic identification of the appellant
Police contacted the appellant and KH who both refused to participate in a formal identification parade. Accordingly, SAPOL prepared two photo identification packs in relation to the respective suspects.
On 30 June 2013, Mr Crosby and Mr Carmena-Wilson each participated in separate identification procedures. Mr Carmena-Wilson identified the appellant as the robber who had kicked Mr Crosby in the head. However, Mr Crosby was unable to identify either the appellant or KH, and in fact selected someone other than the appellant.
The arrest of the appellant
Police initially had some trouble in locating the appellant, but on 11 November 2013 he was arrested and charged with aggravated robbery.
As part of the usual arrest procedure, the appellant’s fingerprints were again taken on a fingerprint card by the police (“the 2013 fingerprint sample”). This was to become exhibit VD3 at trial and will be discussed in further detail below.
On 12 November 2013, KH was also arrested and charged with the aggravated robbery of Mr Crosby. Photographs of KH’s silver Nissan Patrol 4WD vehicle were taken by police at that time.
The prosecution case at trial
The prosecution case at trial was that the appellant was the male referring to himself as “Glen” and that he and KH were the two robbers who confronted Mr Crosby. It was contended that they carried out that robbery together with a third man who drove them away in the silver Nissan Patrol 4WD vehicle shortly after the robbery. The prosecutor submitted to the jury that this third man may well have been one Mr CW (“CW”), but it was unnecessary to prove that.
The prosecution case was a circumstantial evidence case (as distinct from an “identification case”), with the fingerprint evidence being of more importance than the photographic identification of Mr Carmena-Wilson.
As to the fingerprint evidence, the appellant did not advance a positive version of fact prior to trial and did not give evidence at trial. However, following the prosecution opening, defence counsel outlined the issues in contention and stated:
The defence will be asserting in dealing with this and will be raising as issues in contention, a number of issues, including: … that there are a number of innocent explanations as to why that fingerprint of my client might be where it was …
(Emphasis added)
This appears to be an admission that the appellant’s fingerprint was indeed on the outside of the box, just as Ms Godden and Mr Noack opined.
In any event, in the absence of any explanation from the appellant, the presence of his fingerprints on the box was powerful evidence and, together with the other evidence, was quite enough to sustain a conviction; it is to be noted that there is no ground of appeal asserting that the verdict is unreasonable.
The prosecution case against the appellant relied on an accumulation of circumstances which, taken together, excluded any reasonable hypothesis consistent with innocence. The circumstances included the following:
First, KH was one of the robbers. This was proved by the following circumstances:
-Fingerprints identical with the fingerprints of KH were found on both the outside of the sealed box and on items inside the box;
-The phone number 0401 429 475 used in the Gumtree advertisement, while being registered to a person named Armando Coluccio, was found in KH’s phone records; in a phone contact which was created on 21 September 2012, some three weeks prior to the Gumtree advertisement being posted; and
-On 1 March 2012, KH acquired a silver colour Nissan Patrol 4WD vehicle (depicted in photographs in exhibit P14) which may be compared with the CCTV footage (exhibit P12) which depicts the car park to which the robbers fled after the robbery and shows a 4WD vehicle driving off which appears to be a Nissan Patrol 4WD similar to KH’s motor vehicle in colour and in relation to its roof-racks. In his closing address, defence counsel conceded, indeed strongly asserted more than once, that the vehicle depicted in the CCTV footage was a silver Nissan Patrol 4WD vehicle.
Secondly, the appellant was a friend or associate of KH at the relevant time which was proved by the following circumstances:
-The records from KH’s mobile phone refer to the appellant’s birthday, phone numbers, and variants to his name including “Jake Parry”, “Jake Bowser” and “Bowser Parry”; and
-The records from the appellant’s mobile phone refer to KH’s name and contact number.
Thirdly, fingerprints which were identical with the fingerprints of the appellant were found on the outside of the box.
Fourthly, Mr Carmena-Wilson identified the appellant as one of the robbers in his photographic identification procedure on 30 June 2013.
The grounds of appeal
The grounds and proposed grounds of appeal against conviction are reproduced in full below.
On 16 January 2017, a single Judge of this Court granted permission to appeal on grounds 1, 2 and 3; refused permission on grounds 5.1, 5.2 and 5.3; and referred grounds 4, 5.4 and 6 to the Court of Criminal Appeal. On 22 March 2017, this Court heard full argument, including that sought to be put on proposed grounds of appeal 4, 5.4 and 6, and reserved judgment.
For the reasons which follow, we rescind permission to appeal on ground 3.1 and refuse permission to appeal on that ground. We refuse permission to appeal on proposed ground 5.4. We grant permission to appeal on proposed grounds 4 and 6. We reject each of the grounds of appeal and dismiss the appeal.
We consider the grounds of appeal in the order: 1, 2, 4, 5.4, 3 and 6.
THE FINGERPRINT EVIDENCE
Grounds 1 and 2 of appeal wholly relate to the fingerprint evidence: they are that the Judge erred in failing to exclude the evidence of Mr Noack and failing to adjourn the trial to enable Mr Neilson to be called; and in the alternative a fair trial miscarried as a result of the evidence of Mr Noack. The appellant also asserts a failure to direct under sub-ground 4.4 of appeal, which is addressed later as part of ground 4 relating to directions.
Introduction
On 10 January 2014, Mr Neilson, a fingerprint investigator, made a witness statement in connection with the prosecution of the appellant. He accessed the original fingerprint impressions taken from the box and its content items police exhibit 520233362, but he compared those impressions with the appellant’s 2013 fingerprint sample rather than with the superior 2007 fingerprint sample that Ms Godden had previously used as referred to above.
It was at first sight unremarkable that the latest fingerprint sample would be used but a lack of communication resulted in Mr Neilson using only this inferior comparator without reference to the earlier work, the Godden 2012 assessment, based on the superior 2007 comparator.
Using the 2013 fingerprint comparator, Mr Neilson concluded in his witness statement dated 10 January 2014 that in relation to the “344” fingerprint impressions:
Barcode number 900475344 this impression does not contain sufficient clear ridge detail for a positive identification to be made however it cannot be excluded as having been made by the right ring finger impression appearing on the PARRY fingerprint card.
Mr Neilson did however conclude that 12 different fingerprint impressions positively identified KH.
The communication problem continued. On 13 January 2014, Mr Noack reviewed Mr Neilson’s 10 January 2014 findings and in doing so he too used the inferior 2013 fingerprint sample; he agreed with Mr Neilson’s conclusions. On 24 March 2014, SAPOL officer Mr Greenlees conducted an “admin review” of the “Fingerprint Bureau Case File Diary” and affirmed Mr Neilson’s 10 January 2014 findings.
On 29 July 2014, Mr Neilson prepared a further witness statement (referred to as a “tech review addendum statement”), outlining the methodology used and also summarising the locations on the exhibit in which each of the barcoded fingerprints or sets of fingerprints were found. On 22 September 2014, the “Fingerprint Bureau Case File Diary” was again “admin reviewed” by Mr Greenlees.
All of these findings by Messrs Noack, Greenlees and Neilson in 2014 proceeded by reference to the use of the appellant’s inferior 2013 fingerprint sample as the comparator rather than the appellant’s superior 2007 fingerprint sample which had been used by Ms Godden.
In what must be recognised as a serious error or omission by the Forensic Science Centre, attention was simply not directed to the earlier Godden 2012 assessment which had resulted in a clear conclusion that the appellant’s fingerprints were present through the use of the different and far superior 2007 fingerprint sample as the comparator.
Disclosure to the defence of fingerprint evidence material
We divide the topic of disclosure to the defence of fingerprint evidence into disclosure up to 17 August 2016 and disclosure as from 18 August 2016.
Disclosure up to 17 August 2016
Up to 17 August 2016, the disclosure to the defence of fingerprint evidence material consisted of the witness statement of Mr Neilson dated 10 January 2014 referred to above and a passage in the witness statement of Brevet Sergeant De Zilwa, the investigating officer, dated 14 December 2013, as follows:
In December 2012 I received notification of positive fingerprint identification for the accused in this matter, KH and Jacob David Hilton PARRY. (Emphasis added)
This witness statement was referred to in a declaration delivery certificate dated 12 March 2014 and was supplied to the defence at that time. Of course, the details of that “positive fingerprint identification” should undoubtedly have been forwarded to defence counsel in the form of statements by Ms Godden and others. Nevertheless, any competent defence counsel, on receipt of this witness statement in March 2014, would have noted the importance of this assertion by the officer in charge that there had been “positive fingerprint identification” in existence since December 2012. It would have been quite apparent that the defence had not been given any details of that evidence. However, the defence did not raise this matter with the police or with the Director of Public Prosecutions.
Disclosure from 18 August 2016
On Thursday 18 August 2016, only three business days prior to the scheduled commencement of the trial on Tuesday 23 August 2016, prosecution counsel (who had only recently been assigned to prosecute) sent an email to defence counsel informing him that Mr Neilson was not available to give evidence and nor was Mr Pill (who had been involved with the initial transfer and photography of the exhibit). The prosecutor stated:
I have a replacement from the fingerprint bureau considering the matter afresh so that part of it shouldn’t be a problem. I asked him over the phone to elaborate about the partial match to your client and he says the reference sample taken actually contained insufficient detail but he can say it is ‘highly likely’ they match but can’t be conclusive about that.
The following day, the prosecutor sent an email to defence counsel in relation to the fingerprint evidence as follows:
I have just got back from the fingerprint bureau and spoken to Sergt NOACK who has reviewed this file and will be the fingerprint expert in this matter. He told me that the reason they were unable to conclusively match the accused to the fingerprint located on the box was because of the inadequacy of the reference sample taken at arrest. He tells me that a fingerprint does not change over time/age and has compared the fingerprints on the box with a previous reference sample taken from the accused and has identified 3 matches. A dec is forthcoming but his case note is attached. The shaded part of that note indicates 5 potential matches which are narrowed down to 3.
On 22 August 2016, Mr De Zilwa, the investigating officer, prepared a new witness statement. He elaborated upon his earlier witness statement thus:
A short time after the commission of this offence I received information by way of a Police Case Management action from the Fingerprint ID database. The information was communicated to me via two forms of paper correspondence that had information naming suspect/s, a case file number and the items on which fingerprints matching those of the accused were located. The prints had been located on the packaging items held by the offenders that were recovered by the Crime Scene Examiner at the scene of the offence.
On 23 August 2016, Mr Noack prepared a witness statement. He stated that, after examining the appellant’s 2007 fingerprint sample, his conclusions were:
- 900475344 four impressions: two identical to the right index finger of PARRY, one identical to the right ring finger of PARRY, one contains insufficient detail for positive identification but cannot be excluded from having been made by the right ring finger of PARRY.
- 900475355 two impressions: one contains insufficient detail for positive identification but cannot be excluded from having been made by the right middle finger of PARRY, the other contains insufficient detail for identification.
These conclusions coincided with the earlier Godden 2012 assessment. At trial, Mr Noack explained the apparent difference between the conclusions of both Ms Godden and himself on the one hand, and the conclusions of Mr Neilson on the other during cross-examination thus:
QWhen we are talking about the sample fingerprints, you say there are two sets of sample fingerprints; one taken from the accused in 2007 and one taken from the accused in 2013?[3]
[3] The transcript here states 2014 but that is an obvious error.
A Yes.
Q That you looked at the 2007 ones and they were clearer?
A Yes.
Q Therefore you could come to a different conclusion?
A Yes.
QDo you agree that what Mr Neilson says in his report is ‘Barcode number 900475344, this impression does not contain sufficient clear ridge detail for a positive identification’. You agree he says that?
A Yes.
Q Isn’t he referring to the exhibit 900475344 when he says that?
AWhat he is referring to and what we always refer to is the state of the identification, in other words, the identification does not produce a positive comparison point in order to make an identification.
There is a later similar passage thus:
HIS HONOUR
QWell as I understand your evidence Mr Noack, you - and correct me if I am wrong – didn’t disagree with what Mr Neilson said in 2014 based upon the information that he had and you were looking at; is that correct?
A That’s correct.
Q You have arrived, in 2016, at a different opinion?
A Yes.
Q And can you tell me why you have arrived at that different opinion?
AYes. The set of fingerprints used on each occasion was a different set. The quality of the impressions on those two different sets vary to such a degree that the same conclusions of identification could not be arrived at by looking at one set or looking at the other. In other words, the identification from the earlier set was based upon a better set of fingerprints; that is, the 2007 set of fingerprints had more detail within them than did the 2013 set and because of the lesser level of detail on the samples from the items that we looked at, with the barcodes, it was impossible to arrive at the same identification decision from looking at the two sets of fingerprints.[4]
QDoes it follow from what you said that if you went back and looked at the fingerprints or the fingerprint impressions taken from the cardboard box and compare them with the 2013 specimen set of the accused, you would come to the conclusion that you couldn’t make a positive identification?
A Yes, that is correct.
[4] T269. Mr Noack’s opinion was “tech reviewed”, but not peer reviewed. There is nothing untoward about this. In cross-examination, in answer to a question from the Judge, he explained:
A.Your Honour, it means that - the tech review means that the identification and the statement was looked at by somebody else in the bureau and checked for accuracy and correctness and the reason that there was no peer review is because the one that I mentioned that was - the identification that I mentioned was done back in 2012 using the same prints had been peer reviewed back then.
It is against the above background that we turn to examine the grounds of appeal relating to the fingerprint evidence.
GROUND 1 OF APPEAL
Ground 1 of appeal is as follows:
1. That the learned trial Judge erred in failing to exclude the fingerprint evidence of Robert Theodore Noack, and/or failing to adjourn the trial to enable Neilson to be called, inter alia:
1.1the learned trial Judge erred in holding that he was not persuaded that the apparent conflict between the experts Robert Theodore Noack and James Neilson actually existed;
1.2the learned trial Judge erred in holding that the disadvantage and potential prejudice from an adjournment of the trial was outweighed by the probative value of the evidence of Robert Theodore Noack;.
1.3the learned judge erred in failing to have any or sufficient regard to the circumstances and timing of the provision of the statement of Noack in determining the question of prejudice to the accused and the potential unfairness of the trial.
(Ruling of 24 August 2016)
Two separate complaints are sequentially made under ground 1 of appeal. First, that the Judge erred in failing to exclude the fingerprint evidence of Mr Noack. Secondly, that the Judge erred in failing to adjourn the trial to enable Mr Neilson to be called. It is best to commence with an examination of the second complaint disengaged from the first complaint.
The complaint that the Judge erred in failing to adjourn the trial to enable Neilson to be called
Upon analysis, the complaint concerning adjournment is misconceived.
There is no doubt that, on the facts recounted above, the defendant was entitled to an adjournment of the trial, should he have wished it. It is quite clear from the transcript that the prosecution would not have opposed such an application and that the Judge would have granted it irrespective of the attitude of the prosecution.
Further, the Court is now aware that it was also obvious to defence counsel at trial that, although the defendant had been on home detention awaiting trial, the prosecution (being rightly embarrassed at the history of the matter) were not opposed to simple bail being granted if the trial were to be adjourned. The prosecutor was quite specific about this. In an email dated 23 August 2016 at 4:25pm, Mr Redford asked prosecution counsel “if the matter is to come out of the list do you oppose the lifting of the home detention conditions of bail regarding my client?”The prosecution responded at 4:47pm, “if this matter was to come out of the list I would not oppose the removal of the home detention conditions”.
Unfortunately, the Court was not assisted in relation to this aspect by the appellant’s lawyers. The firm “Adelaide Legal Solutions” were at trial, and have continued throughout the appeal proceedings to be, on file as the solicitors for the appellant. Senior counsel who appeared on the appeal settled the substituted grounds of appeal.
In paragraph 11 of the “Written Reply Submissions” dated 16 March 2017 (supplied to the Court prior to the hearing) it was stated that an adjournment “would have meant that the prosecution’s late provision of Noack’s opinion resulted in the Appellant likely spending a further twelve months on home detention.” Likewise, in paragraph 6 of the “Skeleton of Argument” dated 20 March 2017 (and supplied to the Court at the commencement of the hearing), it was stated: “Any adjournment of the trial would have meant the appellant spending a further twelve months on home detention.”
At the commencement of the hearing, senior counsel for the appellant handed up multiple copies of a folder of documents which were not in the appeal books (“the appeal folder of documents”). The following dialogue occurred:
MRS SHAW: Your Honours, in conjunction with the appeal we’ve had discussions with the Crown about documents that are referred to in the outlines but are not in the appeal books. So we have prepared a volume of documents with an index for the assistance of the court in relation to, for example, the Neilson reports and the Coluccio statements that are not in the appeal books but are referred to in the outlines.
PEEK J: Right, and Mr Preston you consent to those materials being put before the court and for use on the appeal?
MR PRESTON: I do your Honour.
MRS SHAW: Can I indicate that some of the documents are at the request of the Crown.
PEEK J: Anyway, both counsel agree to the use by the court of these documents, thank you. We’ll come to those in due course.
Senior counsel immediately moved to other matters and the Court did not then look at the documents. Counsel proceeded to open her case thus:
Can I perhaps, in relation to the issue of the admissibility of the Noack report, at the outset point out that during the course of argument it was put to the court that Mr Parry had been on home detention since his arrest was the effect of what was put, and certainly it was agreed that if the matter came out of the list he would be on home detention, estimate approximately a year to get a new trial date. (Emphasis added)
Senior counsel continued with this submission as appears in the following passage:
PEEK J: … I want you to be specific in your arguments today, particularly insofar as you are criticising the Crown and so forth, there are points to be made but I want them to be made very carefully.
MRS SHAW: Your Honour, there are two things, one, that was the premise upon which both parties were proceeding -
PEEK J: What is the premise?
MRS SHAW: That is that a matter of taking it out of the list would likely result in a continuation of home detention bail.(Emphasis added)
A little later, counsel submitted:
The accused was left with effectively a Hobson’s choice; he lost whichever way he went. And it was brought about because of the Crown’s conduct in placing him in that invidious position where his liberty is being restrained. The defence asked the Crown ‘Would you consent to a relaxation of his home detention conditions’, and there was no positive response to that, so he’s therefore faced with the risk being on home [detention] …
(Emphasis added)
The Court was not then aware of the email exchange on 23 August 2016 at 4:25pm and 4:47pm referred to above and, thinking that counsel was here referring to dialogue at trial, Peek J asked “Where is that in the transcript?” to which senior counsel responded “I’ll find that.” Counsel then proceeded with other submissions and never returned to this matter. Nor did junior counsel, or their instructing solicitor, whose firm has been the appellant’s solicitors throughout the trial, apparently draw the attention of senior counsel to the true position.
After judgment was reserved, the Court had the opportunity of examining the appeal folder of documents that had been handed up and found the email exchange on 23 August 2016 at 4:25pm and 4:47pm at tabs 10 and 11 of that folder. In the appellant’s outline of argument dated 16 March 2017 (supplied to the Court prior to the hearing), senior counsel specifically referred to those two emails on 23 August 2016 at 4:25pm and 4:47pm in relation to a quite different matter, reproducing a portion from each email concerning that particular matter only; but the fact that a discussion of home detention bail also appeared elsewhere in those same two emails was not referred to by counsel in that outline of argument or on the hearing of the appeal.
While it is not suggested that senior counsel deliberately misled the Court, it is most regrettable that her written and oral submissions referred to above were not an accurate or fair representation of the prosecution position, or of the email correspondence referred to above. It is now quite clear that, if at trial there had been a defence application for an adjournment with simple bail, together with a prosecution intimation that that was not opposed, the Judge would clearly have made an order in those terms.
Defence counsel at trial positively eschewed adjournment at trial
We turn to the premise “if there had been a defence application for an adjournment”. It is clear from an examination of the trial transcript that, notwithstanding the issues arising at the commencement of the trial, trial counsel consistently and deliberately elected not to seek an adjournment of the trial.
On 23 August 2016 (the first day of trial), Mr Redford submitted in relation to the fingerprint evidence being sought to be led from Mr Noack:
MR REDFORD: There is no doubt of its probative relevance, whereas before it wasn’t, in my submission. So I need to get an instruction from my client. I need to consider the position, then I need to either make that application or indeed another application.I am loathe to ask the matter be taken out of the list at this point, because of the length of the trial list that we are confronted with, and also the fact that my client is on strict home detention, making another 12 months for my client on home detention in a matter such as this given his record, very unfair on him. I would probably need the rest of the day to deal with it. (Emphasis added)
As referred to above, it was after court adjourned that afternoon that defence counsel raised the matter of home detention in an email exchange with the prosecutor and received a favourable reply.
However, on the next day 24 August 2016, defence counsel unfortunately did not bring that aspect of the email exchange to the attention of the Judge when defence counsel applied to the Judge to exclude the evidence of Mr Noack. During defence counsel’s submissions, the following exchange occurred:
MR REDFORD: The circumstances then are this: my client has been on home detention bail for two years and nine months. He is very anxious to have this trial out of the way and he has been advised that if this matter is taken out of the list that he will still have this matter hanging over his head for at least another 12 months and, indeed, this matter would not be prioritised given the court’s resources in such a way as one might guarantee to be reached in 12 months time.
HIS HONOUR: It would be different. At least the circumstances would change to the extent that he had a trial date, but it has been vacated through no fault of his own. It would bump him up the priority list, but would not guarantee it.
MR REDFORD: He is still down the queue. Obviously this is a resource issue, but it puts my client in a difficult position.
The Judge delivered a ruling declining to exclude the evidence.
On 25 August 2016, just prior to the jury pool entering the court room the further exchange occurred:
HIS HONOUR: Ultimately Mr Redford, your client has to make a decision. Either we proceed or you say ‘These problems are such that it needs to go off’. Now I don’t think -
MR REDFORD: They are not my instructions.
HIS HONOUR: It is not a hot and cold matter. If it is that you will be significantly disadvantaged and won’t be able to come by some form of agreed fact, then you have to face up to one option or the other. (Emphasis added)
These statements by the Judge indicate that an adjournment would have been granted if sought.
That this was the position was put beyond any shadow of a doubt by the following exchange relating to a line of cross-examination later that day:
HIS HONOUR: These forensic advantages were, in a sense, albeit a difficult choice, one that you have determined to proceed with because you could have had the matter adjourned and had Mr Neilson called. So that was a forensic decision which you -
MR REDFORD: No, that’s not accurate with respect and that’s quite incorrect.
HIS HONOUR: Why not?
MR REDFORD: I’m told Mr Neilson is unavailable and he can’t be contacted. I don’t know where he is.
HIS HONOUR: So the matter could be adjourned to enable that to have occurred. You chose not to do that.
MR REDFORD: No. With respect, if they don’t know where he is I don’t know where he is. It is not appropriate for me to apply for an adjournment on a whim and a prayer -
HIS HONOUR: There is no suggestion of a whim and a prayer. He is interstate, we know that. He is unable to be contacted at the moment. There is no suggestion that he is not contactable.
MR REDFORD: I understand that is not the case.
HIS HONOUR: Has the prosecution told you that he is unable to be contacted, for instance, any time this year or is he unable to be contacted at the moment?
MR REDFORD: Not in those terms. With respect, he is a prosecution witness. He had a statement made. It is a relevant statement. It is the duty of a prosecutor to deliver up a witness whether they support the prosecution case or not.
HIS HONOUR: I understand that.
MR REDFORD: I have been told that he can’t be.
HIS HONOUR: The difficulty that you were faced with is one that could either be accepted and you press on, or you apply for an adjournment which could not have been resisted.
MR REDFORD: I could not, as I was instructed, as an officer of the court, apply for an adjournment in those circumstances for that reason. There may have been other reasons that I could have applied for it, but not this reason. (Emphasis added)
Defence counsel positively elected to proceed with the trial, despite clear knowledge that the trial could have been adjourned and that home detention conditions would have been removed. This was a forensic choice that defence counsel was entitled to make. The appellant is ordinarily bound by the conduct of their counsel at trial in relation to such choices, and no argument has been advanced to suggest that this should not be so here.
None of the sub-grounds 1.1, 1.2 and 1.3 in the context of the second alternative, asserted “failure to adjourn”, are made out. The Judge did not “fail” to adjourn the trial in circumstances in which defence counsel declined to apply for an adjournment. This second alternative in ground 1 of appeal is entirely without merit.
The complaint that the Judge erred in failing to exclude the fingerprint evidence of Mr Noack
The first alternative in ground 1 of appeal is the complaint that the Judge erred in failing to exclude the fingerprint evidence of Mr Noack.
Ground 1.1 of appeal
Counsel for the defendant at trial essentially contended that the expert opinion of Mr Noack “contradicted” that previously disclosed by the prosecution in Mr Neilson’s statement of 10 January 2014 in that Neilson’s opinion was that the “344” impressions did “not contain sufficient clear ridge detail for a positive identification to be made”.
Similarly, it was submitted in the appellant’s outline of argument on appeal:
33. It appears that the trial Judge has not fully appreciated the conflict between the experts Noack and Neilson. Neilson had found that the two samples from the box were of insufficient detail. Noack found that a different reference sample of the Appellant could be used and showed a match with the samples from the box. But on Neilson’s reasoning no further reference sample would have showed a match because it was the samples from the box which were inadequate. Admitting the evidence of Noack, in circumstances where the prosecution gave extremely short notice of the fact that they were not calling Neilson, and insufficient reasons for not calling him (“he has retired and lives interstate”), caused prejudice to the defence.
This is quite unrealistic. It cannot be said that the appellant was prejudiced by the fact that Mr Neilson was not called and that, if he had been called, his evidence might have advanced the defence case. The defence could have had the trial adjourned and could have then taken a statement from Neilson, or have had the prosecution do so (which they would be doing anyway), with a view to having him present at the adjourned trial.
As referred to above, what had really happened was that the experts had not been comparing apples with the same apples. No doubt, Mr Neilson could have been more precise in the wording of his statement, but it is now clear that he was only performing a comparison between the fingerprint impressions and the 2013 fingerprint comparator. It was only to that comparator that he referred when he stated:
Barcode number 900475344 this impression does not contain sufficient clear ridge detail for a positive identification to be made however it cannot be excluded as having been made by the right ring finger impression appearing on the PARRY fingerprint card.
Thus, what was being compared was “clear ridge detail” and the real problem was that the 2013 comparator had very little clear ridge detail – much less than the 2007 comparator.
Copies of the 2007 and the 2013 fingerprint comparators were supplied to defence counsel at trial and are both reproduced in the appeal book. It is immediately apparent that the taking of the 2013 fingerprint samples was an extremely slovenly job compared with the 2007 samples, and the amount of ridge detail is manifestly less. It is the worst job the members of the Court have ever seen. As an example, in the case of the left index finger, the operator on 11 November 2013 succeeded in capturing what might be fairly described as only a sliver of the full ridge detail which is depicted for the same finger in the 2007 sample.
On five (including the right ring finger) of the ten fingerprint impressions taken on 11 November 2013, there appears, as part of the form, the typed comment “Bad Sequence”. The right ring fingerprint was one of the fingerprints identified by Mr Noack as being that of the appellant by virtue of a comparison using the 2007 fingerprint card rather than this defective 2013 fingerprint card.
However, counsel for the defendant at trial nevertheless insisted that the words of Mr Neilson were to be taken entirely literally and without regard to the factual context referred to above. Proceeding from that shaky foundation, he submitted to the Judge that one should interpret Mr Neilson’s witness statement as meaning that Neilson had looked at not only the 2013 comparator but also at the Godden 2012 assessment and positively disagreed with it. It was this ambitious and irrational leap which the Judge charitably labelled “speculative” when his Honour stated in his ruling:
On the face of it there would appear to be a clear dispute between the experts.
Mr Martin for the prosecution says that the dispute is more illusory than real, and that in his submission the declarations of Mr Neilson, the expert not to be called who could not reach a firm conclusion, were based upon a different fingerprint analysis of the accused taken in 2013, whereas the fingerprint which the expert whom he proposes to call was relying upon was a much better quality fingerprint, namely one taken back in 2007.
I am not persuaded that the apparent conflict between the experts actually exists on the face of the statements which I have readily accepted are less than ideal. It is not much more than speculation on the part of the accused to suggest that the initial expert, Mr Neilson, may have looked at the material that the subsequent expert Mr Noack viewed.
His Honour here essentially made three statements. At first blush, on the face of the witness statements of Neilson and Noack, there initially appears to be a conflict between those experts. Secondly, however, on closer examination any conflict is more apparent than real, although the drafting is less than ideal. Thirdly, to make the further submission that Mr Neilson may have also looked at the material that the subsequent expert Mr Noack viewed (the Godden 2012 assessment) and still found insufficient ridge detail, is at best mere speculation.
As to this third matter, the evidence is clear that Mr Neilson only ever had regard to the November 2013 comparator, as did the other persons (including the witness Mr Noack) who peer reviewed and checked Mr Neilson’s conclusions in 2014. There is no evidence to support a suggestion that Mr Neilson also had regard to the 2007 comparator or to the Godden 2012 assessment and it is inconceivable that he would have done so without stating this in his report.
We conclude that it was obvious to defence counsel at trial that an adjournment with simple bail was available and that he carefully assessed that option. It was virtually certain that the result of such an adjournment would be that Mr Neilson would be called at the subsequent trial; that he would confirm that he had only had regard to the 2013 comparator; and that he would agree with the opinions expressed by Mr Noack, Ms Gooden, Mr Andrews and Mr Lewis which were each based on a comparison with the superior 2007 comparator.
Defence counsel clearly took the forensic decision of electing to continue with the trial and to attempt to get as much benefit as he could from the absence of Mr Neilson by suggesting in cross-examination of Mr Noack and argument to the jury that Mr Neilson had a different view to that of Mr Noack, and hence a reasonable doubt could not be negated.
We reject ground 1.1 of appeal.
Ground 1.2 of appeal
Ground 1.2 of appeal only has a bearing on the complaint concerning adjournment which has been dealt with above.
Ground 1.3 of appeal
The asserted prejudice relied upon for ground 1.3 of appeal is summarised in the appellant’s summary of argument thus:
8 The admission of Noack’s evidence, and the failure to call Neilson, meant that:
8.1 it was necessary for the defence to introduce the hearsay opinions of Neilson through Noack;
8.2 the defence was unable to adduce evidence to rebut the explanation given by Noack for the difference in opinion between Noack and Neilson; and
8.3 the jury were unnecessarily informed that the Appellant had provided fingerprint samples in 2007, and so may have speculated as to whether the Appellant was known to police over a long period of time and in relation to incidents other than the one the subject of this trial.
9 In essence, the Appellant was denied the tools to challenge Noack as a result of the Crown failing to ensure that Neilson (sic) was available to be called at trial and producing a statement after the trial began of a new expert.
Much of this has already been dealt with, but we make the following further brief elaboration.
As to paragraphs [8.1], [8.2] and [9], it is noted above that the absence of Mr Neilson at trial could have been remedied by an adjournment and that, for the reasons already canvassed, defence counsel elected to have a trial in which Mr Neilson did not attend as a witness. There is no merit in these arguments.
As to paragraphs [8.3], in his email of 23 August 2016, the trial prosecutor observed:
To avoid any prejudice to your client I will obviously not be mentioning the date of the sample in the trial because it discloses that your client’s prints were on the system which the jury would infer must be from committing an offence. Whether you want to cross-examine that in will be a matter for you.
The prosecutor did not inform the jury that the fingerprint sample used by Mr Noack as a comparator had been obtained in 2007. This evidence was introduced to the jury only during the following cross-examination of Mr Noack by defence counsel:[5]
[5] T250.
QYou say that you came to a different result because the fingerprint sample of 2012 was deficient compared to another set of fingerprints you looked at in 2007?
A Yes, you mean 2014 compared to 2007, yes.
Q Yes?
A Yes, that is correct.
QWhen we are talking about the sample fingerprints, you say there are two sets of sample fingerprints; one taken from the accused in 2007 and one taken from the accused in 2014?
A Yes.
Q That you looked at the 2007 ones and they were clearer?
A Yes.
Q Therefore you could come to a different conclusion?
A Yes.
The cross-examination then proceeded.
We are not convinced that the cross-examination, and any re-examination, could not have been conducted in a way that minimised reference to dates, for example by referring to different fingerprint samples by letters “A”, “B” etc, rather than by their dates.
In any event, as the Judge stated (and which is not disputed by the appellant), the evidence of Mr Noack was highly probative. A contention that it should have been excluded because the defendant might elect to raise in front of the jury[6] the topic of the different dates of the different comparators used by Mr Noack and Mr Neilson must be rejected.
[6] As distinct from a voir dire inquiry.
We reject ground 1 of appeal.
GROUND 2 OF APPEAL
Ground 2 of appeal is as follows:
2.Alternatively as to ground 1, the fair trial of the applicant miscarried as a result of the admission of the evidence of the fingerprint expert Noack:
2.1The late production of the finger print evidence of Noack together with the non-production of Neilson whose opinion was in conflict resulted in an unfair trial.
2.2The refusal of the Trial judge to allow the applicant’s counsel to pursue cross-examination of the expert in relation to his contact with Neilson resulted in an unfair trial (T265, 266).
Ground 2.1 of appeal
In relation to ground 2.1, the summary of argument of the appellant makes it plain that the same submissions made in relation to ground of appeal 1 are also relied upon to make out this ground. Those matters are dealt with in the reasons above and ground 2.1 is to be rejected for those same reasons. We elaborate on those reasons in the particular context of ground 2.1 as follows.
The phrase “resulted in an unfair trial” is here used in a very loose way. What is in fact asserted on appeal is that the trial was unfair because of the matters referred to in sub-grounds 2.1 and 2.2. Confining attention to ground 2.1 for the moment, it is asserted that the trial was unfair because of the late production of the witness statements of Mr Noack together with the non-production at trial of Mr Neilson (whose opinion was said to be in conflict with Mr Noack).
However, in relation to the “fairness” of the trial, the “lateness” of production of Mr Noack’s witness statement is to be assessed by reference to any detriment to the appellant arising from counsel having had insufficient time to prepare objections, cross-examination and submissions concerning that evidence. Of course, if the appellant had been compelled to proceed with the trial with only a short adjournment given to consider such matters, such arguments as to unfairness of the trial would have had force, but that is not what occurred here; the Judge was clearly prepared to adjourn the trial to a new date and in this respect the complaint of the appellant was not that such adjournment was insufficient, but rather that it would be too long. The fact that a new trial would be accompanied by the appearance of Mr Neilson has already been noted and this disposes of the assertion in ground 2.1 concerning “non-production of Neilson”.
In addition, it would have been well appreciated by defence counsel at trial when he received very late the new fingerprint material that the choice facing him was not simply between a lengthy adjournment (on the one hand) and proceeding with the trial (on the other hand). Rather, if defence counsel considered that his client was seriously prejudiced by the new fingerprint material, and indeed by various aspects of the police investigation, a further option available was not only to adjourn the jury trial to a new trial date but also to make an application that the Information be permanently stayed on the basis of abuse of process, such an application to include arguments that any trial would be unfair (“an abuse of process application”).
An abuse of process application could have been made to the trial Judge, but would likely have been adjourned so that both sides could prepare for it and the necessary witnesses could attend. However, an abuse of process application did not have to be adjourned so as to ride with the new jury trial date. The hearing of such an application would have been much shorter than a full trial; it could have been heard before the new scheduled trial date which, if the application were successful, could then have been allocated to one of the other waiting District Court trials.
It would have been well appreciated by defence counsel that there were both advantages and disadvantages in adopting such a course. Advantages included that it was arguable that the charge was relatively old; that there was some delay coupled with some omissions in the police investigation; and the defence had been served with the new fingerprint material very late.
Disadvantages included that the prosecution would have time to regroup and make further inquiries generally. But in particular, the main disadvantage would have been, as noted above, that in all probability Mr Neilson would have been called and would have confirmed that he had only had regard to the 2013 comparator; and would also have agreed with Mr Noack’s evidence and the Godden 2012 assessment which were based on a comparison with the quite different 2007 comparator.
The assessment of a reasonable defence counsel in the circumstances would have been that an application to stay for abuse of process would likely fail. That being so, one returns to the decision made by defence counsel here: to continue with the trial and to attempt to get as much benefit as he could from the absence of Mr Neilson by suggesting in cross-examination of Mr Noack and argument to the jury that Mr Neilson had a different view to that of Mr Noack and hence a reasonable doubt could not be negated.
After judgment had been reserved, the solicitor for the appellant forwarded to the Court a reference to the decision of the New South Wales Court of Criminal Appeal in Haoui v The Queen.[7] That decision may appear superficially attractive for the appellant in that it was a successful appeal which involved the very late production of prosecution evidence at trial. However, in Haoui, the new evidence was produced to defence on the fifth day of what had been scheduled as a five day jury trial. It was of an extremely technical nature necessitating a great deal of consideration and consultation with defence expert(s); it would have required the re-calling of a substantial number of witnesses. But, most importantly, the trial Judge required the trial to proceed and would not declare a mis-trial or grant the defendant other than a short adjournment. The differences between that case and the present case could not be more stark. Here the defendant had the opportunity of an adjournment of the trial with simple bail and plenty of time to prepare to meet the new evidence, but that opportunity was eschewed by the appellant for tactical reasons in the circumstances explored above.
[7] (2008) 188 A Crim R 331.
Ground 2.2 of appeal
As to ground 2.2, it is asserted that the trial was unfair because the Judge refused to allow counsel to pursue cross-examination of the expert in relation to his contact with Mr Neilson. It is contended in the outline of argument that that refusal “denied the appellant the opportunity to test whether Noack had had any collaboration with Neilson or knew of any other reason why Neilson was unable to give evidence”. Apart from that bald statement, no elaboration is made.
In fact, counsel was permitted to cross-examine as to any such contact and the objection now apparently complained about only came when counsel asked Mr Noack to speculate concerning a different matter. Thus the transcript is as follows:
Q You have come to a different view than Mr Neilson?
A I came to the same view based on one circumstance.
QIn relation to this, I am talking about 9004750344, you have come to a different conclusion?
A Yes.
Q Did you speak to Mr Neilson about that?
ANo, because you are talking about the latest one, Mr Neilson wasn’t here for the one you are talking about.
Q Where was Mr Neilson?
OBJECTION: MR MARTIN OBJECTS
MR MARTIN: I object, how is that relevant?
MR REDFORD: He said Mr Neilson is not here, I have asked where he was, the witness has raised the issue.
HIS HONOUR: It is irrelevant to where Mr Neilson is, he hasn’t discussed it with him.
CROSS EXAMINATION
Q You didn’t speak to Mr Neilson?
AAre you talking about my declaration that I submitted a couple of weeks ago, is that the one you mean, that I talked to him about?
Q Last week.
A No, I haven’t seen him for many months now.
Q Did you make any attempts to contact him?
A No.
Q Why not?
OBJECTION: MR MARTIN OBJECTS
It can be seen that defence counsel had asked his questions concerning contact, had received his answers, and had then moved to a question that was objected to. The Judge upheld that objection. That ruling is not the subject of this ground of appeal, or any other ground.
Defence counsel subsequently put Mr Neilson’s report to Mr Noack and asked whether he had spoken to Mr Neilson about an aspect of it. There was no objection and the witness replied in the negative. Defence counsel was not prevented from putting further questions concerning contact between Mr Noack and Mr Neilson but chose not to do so.
We reject ground 2 of appeal.
Ground of appeal 4.4 is also relevant to the matter of fingerprints but will be dealt with in the context of the whole of ground 4 of appeal, to which we now turn.
GROUND 4 OF APPEAL - DIRECTIONS TO THE JURY
Ground 4 of appeal is as follows:
4. That the learned Judge erred in failing to direct the jury as to the significance of delay including in relation to:
4.1 the failure of police to make all relevant enquiries;
4.2 the forensic disadvantage caused to the defence;
4.3witnesses who had previously given descriptions of the perpetrators had not been called by the prosecution because at the time of trial they no longer “remember[ed] anything” (at T33); and
4.4James Neilson had not been available to give evidence in relation to his examination of the fingerprint evidence.
Section 34CB of the Evidence Act 1929 is central to consideration of this ground of appeal. It relevantly provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1) A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note— See Longman v The Queen (1989) 168 CLR 79
(2) If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3) An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
Section 34CB of the Evidence Act 1929 is a somewhat unusual provision in that the gateway to a requirement that the Judge must give the directions in s 2(a) and 2(b) is that the Judge holds the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant.
Of course, if no directions are given as to forensic disadvantage, the need to have done so may be reviewed on appeal. And if directions are given as to forensic disadvantage, their correctness and adequacy may also be reviewed on appeal.[8]
[8] See generally: R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1, 53-62 (Peek J, with whom Kourakis CJ and Stanley J agreed); and R v Finn (2014) 119 SASR 207.
In cases where no directions have been given as to forensic disadvantage at trial, the question on appeal will be whether the Judge should have formed the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant.
In assessing that question on appeal, it must be appreciated that this statutory obligation to give forensic disadvantage directions is very different to the many common law obligations to give directions that arise simply from an objective examination of the evidence before the court. Although the views of counsel will always be important, in many cases the Judge will be required to give directions irrespective of the tactical preferences of defence counsel.
However, in the case of s 34CB forensic disadvantage directions, the views of counsel will be particularly important, and often critical, because the question of forensic disadvantage will often very much depend on the contents of the defence brief, to which the Judge is not privy. To take an obvious example, the evidence before a Judge may not readily suggest a forensic disadvantage but defence counsel may well be able to persuade the Judge that there is in fact a forensic disadvantage by reference to considerations that only become apparent or important when looked at in the context of the contents of the defence brief. The other side of the coin should be equally obvious. If the Judge specifically inquires of defence counsel as to the need for a forensic disadvantage direction(s) and is informed that there is no need, the Judge will take that as a considered response which is made against the background of the whole of the defence brief.
In the present case, the Judge was plainly aware of s 34CB of the Evidence Act 1929. Throughout the trial the Judge pro-actively approached this matter of directions to the jury including on forensic disadvantage and persistently monitored the views of counsel. Thus at the end of proceedings on 25 August 2016 the Judge said to counsel:
HIS HONOUR: We’ve already canvassed in one way or another some of the directions but I would like each of you to give consideration to the special directions that you want me to give to the jury and I’d like to think about those over the weekend so by the end of tomorrow if you could give me some consideration. I won’t necessarily be holding you to every single one but there would be some obvious ones that you’ll want me to direct on, such as the identification of forensic disadvantage, directions of that nature that I would like both of you to give some consideration to.
And at the end of proceedings on Friday 26 August 2016 the Judge said to counsel:
That just leaves what I mentioned last night, and that’s the question of special directions that the parties would want me to be giving to the jury. Mr Martin?
Mr Martin then spoke to a number of topics. As to the present matter, he said:
MR MARTIN: Your Honour mentioned forensic disadvantage. Now, I assume that relates to the eyewitnesses that are not present and -
HIS HONOUR: I think it relates to that and it also relates to just the possible witnesses that the accused might have been able to track down and so on and so forth. I think if it’s not a year or so later that he was arrested -
MR MARTIN: I think six or seven months when first spoken to by police. He was first spoken to by police in March, my friend says, in 2013.
HIS HONOUR: I will have to think about that but that’s something I’ll reflect on. So you don’t see a need for -
MR MARTIN: I don’t think it needs [a] forensic disadvantage [direction].[9] There’s a forensic disadvantage in what would be an agreed fact that the eyewitnesses that haven’t been called are no longer able to remember any of this. I think that is a forensic disadvantage. That is the only forensic disadvantage that I can see arising in this case.
[9] Although the reporter did not transcribe the word “direction” it is clear that counsel here said “a forensic disadvantage direction”, his submission being that such a direction was not required by the matters that he then mentioned.
The Judge then invited Mr Redford to speak:
HIS HONOUR: Okay, thank you. Mr Redford?
MR REDFORD: Certainly one on identification.
HIS HONOUR: Yes.
MR REDFORD: I thought about the youth of the young man but I don’t think that it falls within the requirement in that regard. There is in some jurisdictions a fingerprint direction but if your Honour considered it, I would argue against it. I don’t think we would need anything more about the fingerprint, other than they have to weigh up the evidence; doesn’t need anything special in my submission. I think that’s all that I can think of. If I think of anything on the weekend, if I can send -
HIS HONOUR: Yes. The position with respect to reporting back, having thought about that, it won’t be in open court. I’m not available but what I would like is I would like telephone contact by the end of the morning; before lunch Monday, I’d like that. Then I’m no longer contactable by phone. I’d like that by then.
MR REDFORD: All right, your Honour.
And at the end of proceedings on 30 August 2016 the Judge said to counsel:
HIS HONOUR: Are there any other matters in terms of the special directions that the parties feel a need to be added to the list, as it were, as a result of what happened today?
MR MARTIN: No.
MR REDFORD: Not that I can think of.
And at the end of proceedings on 31 August 2016 the Judge said to counsel:
HIS HONOUR: And I have in mind giving special directions in relation to those matters that we discussed last week and if there are other matters that come to the attention of either of you?
MR MARTIN: No.
MR REDFORD: I think your Honour has already alluded to the prior inconsistent statement in relation to the fingerprints.
HIS HONOUR: I’ve said that that’s why I admitted the evidence. I don’t know that I need to give any special direction in relation to it. What I will be doing is reminding them that - adopting what Mr Neilson said in relation to the comparison that Mr Neilson made - reached a different view based on different information.
MR REDFORD: That’s all I’m asking your Honour to do, I am indebted.
Despite the great care with which the Judge approached the matter of forensic disadvantage, and persistently monitored the views of counsel so that the jury could be directed appropriately (and, just as importantly, so that his Honour would not intrude into areas defence counsel preferred avoided), the appellant now asserts that the Judge infringed s 34CB of the Evidence Act 1929.
Ground 4 as a whole
The South Australian decisions on s 34CB make clear that directions on the topic of the deleterious effect of delay upon a defendant are to be approached, and given, through the prism of that provision as distinct from what is referred to as a Longman direction.[10]
[10] See generally R v Cassebohm (2011) 109 SASR 465, (Doyle CJ) 470-474.
The drafting of ground 4 of appeal is unfortunate. Sub-ground 4.2 on its face postulates a complaint different to those in sub-ground s 4.1, 4.3 and 4.4, whereas in fact those three sub-grounds should all be seen as being advanced as examples of the forensic disadvantage complained of in sub-ground 4.2.
The short answer to ground 4 of appeal is that the Judge gave defence counsel every opportunity of drawing to his Honour’s attention any forensic disadvantage directions that he sought and that in all of the circumstances it cannot be said that the Judge should have been of the opinion that the period of time that elapsed between the alleged offending and the trial resulted in a significant forensic disadvantage to the defendant.
In the circumstances, we address briefly the specific matters relied upon in ground 4 of appeal.
Ground of appeal 4.1 and 4.3: Eyewitnesses
The police investigation commenced very shortly after the robbery. Police attended the crime scene and took notebook statements from seven potential eyewitnesses. Five of those witnesses, David Mussell, Steven Leitch, Elyce Laidlaw, Sam Graham and Brendan Harding provided descriptions of the two robbers and their “notebook statements” were supplied to defence prior to trial.
Some of the descriptions by those eyewitnesses were in part not consistent with the appearance of the appellant. Prior to trial, defence counsel requested that the prosecution witnesses who had given notebook statements be made available for cross-examination. The prosecutor told the Court that he had been informed by the police that, apart from David Mussell, those witnesses were not prepared to provide statements as they could no longer remember anything.
Of the five witnesses, David Mussell and Steven Leitch gave evidence during the prosecution case and were cross-examined. As to the other three witnesses, Elyce Laidlaw, Sam Graham and Brendan Harding, the prosecution called the police officers who took their notebook statements and defence counsel was permitted to cross-examine into evidence the descriptions they had given to police. Although that evidence was hearsay, no objection was taken by the prosecutor, who had earlier indicated a preparedness to agree the notebook statements given by the witnesses in a set of agreed facts.
Defence counsel never pursued his original request that the prosecution call these witnesses or make them available for cross-examination and he never suggested that he wished to subpoena any of them. If he had done so, he would have been faced with the possibility of awkward incriminating evidence being advanced in addition to the passages upon which he wished to concentrate.
In his closing address, defence counsel referred to the varying descriptions given by the eyewitnesses to the police to found a submission that some were inconsistent with the appearance of the appellant and the appearance of KH. The Judge did not direct the jury that the evidence was hearsay and accordingly the jury would have considered the evidence in the same way as if it had been strictly proved.
In his summing up the Judge spent considerable time in putting the defence case concerning the eyewitness evidence. The Judge also put the defence case in some detail concerning the asserted inadequacy of the police investigation. The only request made by defence counsel during, or after, the summing up that was not the subject of re-direction, and which is the subject of a ground of appeal, is the matter of a height difference not being included in the immediate context of the Judge’s general identification directions (which is discussed in the context of ground 3 of appeal below).
Defence counsel clearly made a forensic decision that the defence was advantaged by adducing selected passages of evidence from the notebook statements of the three eyewitnesses rather than having them called to give evidence. This also advantaged the defence attack on the adequacy of the police investigation. The cumulative effect of sub-grounds 4.1 and 4.3 of appeal does not establish a real risk of miscarriage of justice.
Ground of appeal 4.4: the absence of Mr Neilson from the trial
As to the absence of Mr Neilson from the trial, as discussed above, the short answer is that the appellant could have had a trial in which Mr Neilson appeared if he had wished by making the adjournment application. He elected not to do so for forensic reasons and there is no relevant forensic disadvantage established.
In addition, defence counsel fully elicited before the jury (during cross-examination of Mr Noack) the opinion that Mr Neilson had given in his statement of 10 January 2013. The Judge did not direct the jury that Neilson’s opinion was hearsay and accordingly the jury would have considered that evidence in the same way as if it had been strictly proved. Defence counsel was thereby able to urge the jury to place a certain construction on Neilson’s opinion which was contended to cast doubt on the reliability of Mr Noack’s opinion without facing the risk of Mr Neilson giving evidence and debunking that defence construction of his opinion (which was almost inevitable to transpire for the reasons given above).
As the Court put to counsel for the appellant for her comment at the hearing:
… in the case of the witnesses: their notebook statements had come in as having testimonial effect; similarly Neilson’s report had come in. Perhaps Mr Redford took the view that in fact he was advantaged by the way that it had transpired rather than disadvantaged.
No real risk of miscarriage of justice is established.
Ground 4.2 of appeal
As Doyle CJ observed in R v Cassebohm:[11]
It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. …
If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.
[11] (2011) 109 SASR 465, 474-475 (Doyle CJ with whom White and Peek JJ agreed). A similar spectrum is referred to in the more recent decision of this Court in R v Finn (2014) 119 SASR 207, 216-217 (Sulan, Blue and Bampton JJ).
One may readily appreciate that minds may well differ as to when a s 34CB direction is required. And as the former Chief Justice remarked, it is only if the Judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time that the Judge must give the jury an appropriate direction.
In the present case, the Judge carefully and fully directed the jury as to the defence case (including counsel’s criticism of the police investigation). In all of the circumstances (including his Honour’s dialogues with defence counsel), there is no basis to conclude that the Judge should have formed the opinion that the period of time that elapsed between the alleged offending and the trial resulted in a significant forensic disadvantage to the defendant.
If it were to be considered that the Judge should have given a forensic disadvantage direction, his Honour’s failure to do so in the present circumstances did not give rise to the real risk of miscarriage of justice.
We reject ground 4 of appeal.
GROUND 5.4 OF APPEAL – SUBPOENAS TO THE COLUCCIOS
Ground 5.4 of the appeal is as follows:
5. That the fair trial of the applicant miscarried in that the learned Trial Judge:
5.4 erred in declining to abridge time for the issue of subpoenas in relation to potential defence witnesses Mr Colluccio (sic) and Ms Stephanie Colluccio (sic) (T207, 313).
The complaint is that the Judge declined to abridge time for the issue of subpoenas for the attendance at trial of Mr Armando Coluccio and Ms Stephanie Coluccio. The transcript reference page 313[12] given at the end of the ground of appeal contains part of the dialogue between both counsel and the Judge during the cross-examination of Mr De Zilwa concerning a foreshadowed defence application to abridge time for the issue of subpoenas in relation to potential witnesses the Coluccios. The lead up to the discussion at page 313 can be summarised as follows.
[12] Page 207 is erroneously shown as a reference.
The subscriber to the telephone number 0401 429 475 used in the Gumtree advertisement was Mr Armando Coluccio. In cross-examination of Mr De Zilwa, counsel for the appellant elicited evidence that that mobile phone number had been associated with one CW. Counsel for the appellant then sought to elicit the evidence that the Coluccios had suggested to Mr De Zilwa that CW had access to the physical mobile phone itself. The prosecutor objected to this line of questioning on the basis that it was hearsay.
Counsel for the appellant then requested that the prosecutor make the Coluccios available for cross-examination. The prosecutor refused to do so for various reasons, including that the Coluccios had refused to cooperate with the prosecution and Ms Stephanie Coluccio had refused to sign her draft statement. However, the prosecutor went on to suggest that the issue could be resolved by an agreement between the prosecution and defence that:
-the fact that Mr Armando Coluccio was the mobile phone number’s subscriber would be an agreed fact;
-the prosecutor would not object to defence counsel leading evidence through cross-examination of Mr De Zilwa and Ms Modra that:
oCW was arrested for similar offences on 14 October 2012 and that mobile phones had then been seized from him; and
othere was a notation in the police investigation diary to the effect that those mobile phones may have information related to the matter before the Court.
At transcript pages 312 to 313, defence counsel’s response to the above proposal was:
Thank you, that helps … let’s see if we can get the witness back and see about subpoenas during the morning break. I will make that application at the time.
Defence counsel then resumed cross-examination of Mr De Zilwa and later cross-examined Ms Modra. He elicited all of the evidence offered by the prosecutor from them, and some further evidence besides. Further, agreed facts were tendered in evidence in the following terms:
The phone number associated with the Gumtree advertisement and used by the male who identified himself as ‘Glen’ was 0401 429 475. That phone number was registered to a person named Armando Collucio (sic).
Defence counsel did not later return to the matter of making an application for an abridgment of time to issue subpoenas for the attendance of the Coluccios and elected not to do so. This was another deliberate forensic decision by defence counsel who obviously considered that the defence was advantaged by the alternative course offered by the prosecutor compared to Mr Coluccio giving evidence. Clearly, the Judge never ruled on an application for abridgment and did not “decline to abridge time” as is asserted in ground 5.4 of appeal.
We reject ground 5.4 of appeal.
GROUND 3 OF APPEAL: DIRECTIONS ON IDENTIFICATION EVIDENCE
Ground 3 of appeal is as follows:
3.That the learned Judge erred in his directions as to the identification evidence inter alia:
3.1 By failing to direct the jury that identification by way of photograph, rather than a personal identification parade, has an inherent risk of error associated with suggestibility and is the inferior form of identification;
3.2 in relation to the dangers of convicting on such evidence where its reliability is disputed and the various factors that may affect the reliability of that evidence in the circumstances of the particular case; and
3.3 by failing to adequately direct the jury as to the specific factors that bore upon the reliability of the identification evidence.
Ground 3.1 of appeal
The assertion in ground 3.1 of appeal is directly inconsistent with s 34AB(4) of the Evidence Act SA 1929. It provides:
34AB—Identification evidence
(1) In a criminal trial, evidence of the identity of a person alleged to have committed an offence is not inadmissible, and is not to be excluded, merely because it was obtained other than by means of an identity parade involving a physical line‑up of persons.
(2) In a criminal trial, evidence of the identity of a person alleged to have committed an offence obtained by means of an identity parade is to be excluded unless—
(a) —
(i)an audio visual record of the identity parade is made and kept in accordance with the regulations; and
(ii)if the regulations prescribe procedures for the conduct of an identity parade—the identity parade is conducted in accordance with the prescribed procedures; or
(b)the judge is satisfied that the interests of justice require the admission of the evidence despite the failure to comply with paragraph (a).
(3) In a criminal trial where the identity of a person alleged to have committed an offence is in issue, the judge must, if evidence of the identity of the person is admitted, inform the jury—
(a) of the need for caution before accepting identification evidence; and
(b)of the reasons for the need for caution, both generally and in the circumstances of the case.
(4) In giving any such information, the judge is not required to use any particular form of words but may not suggest that identification evidence obtained from an identity parade by any means other than by a physical line‑up of persons is inherently or intrinsically less reliable than evidence obtained from an identity parade by such means.
(5) To avoid doubt, this section does not—
(a) make evidence admissible that would otherwise be inadmissible; or
(b) affect the court's discretion to exclude evidence.
(6) In this section—
identity parade means a contemporaneous presentation (whether by a physical line‑up or by means of images) of a number of persons to a witness for the purpose of identifying a person. (Emphasis added)
Section 34AB(4) came into effect almost three years ago, on 7 July 2014. Even if one disagrees with the premise upon which this amendment was apparently based, it is the law. Ground 3.1 of appeal is clearly unarguable.
Unfortunately, that ground was advanced at the permission stage without s 34AB(4) being drawn to the attention of the permission Judge. In this Court, s 34AB(4) was also not referred to in the appellant’s outline of argument (but was referred to in the respondent’s outline of argument). The appellant filed a lengthy reply to the respondent’s outline of argument, and at the hearing of the appeal handed up a “Skeleton of Oral Argument”, but neither document made any reference to s 34AB(4).
Permission to appeal on ground 3.1 of appeal should not have been sought, or granted. We rescind the grant of permission and instead refuse permission to appeal.
Grounds 3.2 and 3.3 of appeal
These two grounds of appeal say the same thing in different words. We deal with them together.
At the hearing of the appeal, counsel’s “Skeleton of Oral Argument” dealt with the whole of ground 3 of appeal thus:
The trial Judge did not give adequate directions in relation to the photographic ID procedure, particularly in circumstances where the trial Judge did not direct the jury in relation to the fact that Carmena-Wilson, who undertook the photographic ID procedure, had previously described the attacker as 5’6” whereas the Appellant is 6’1”. [references deleted]
As argued on appeal, the complaint the subject of grounds 3.2 and 3.3 of appeal is that the Judge did not adequately direct the jury concerning Mr Carmena-Wilson having given to police an estimate that one of the robbers was 5’6” in height. At the hearing of the appeal counsel for the appellant submitted in relation to ground 3 of appeal that:
our complaint is here I can tell your Honours is fundamentally that although the descriptions given are fairly general, and we’ve set out a table of those descriptions in our reply, the critical aspect of the directions in respect of which Mr Redford did seek a specific direction, and in respect of which he placed great reliance in his address, was the issue of the height difference as between that described by Mr Carmena-Wilson and the accused’s height.
…
the critical difference in respect of which we submit an identification warning needed to be included and the warning tailored at least to include this difference because, of course, if that difference is correct, a difference that is significant, one single difference means it’s not the person. One single difference can cast doubt on whether or not this accused is that offender.That height difference, it was an agreed fact that the accused was 186cm, which is just over 6’1. So 5’6 to 6’1 is a significant difference in height. …
The “one single difference means it’s not the person” line of reasoning is capable of being misleading here. It is true that one may envisage a case where the only evidence is that of one identifying witness who has previously stated that the offender was 5 foot 6 inches tall whereas it is an agreed fact that the accused is just over 6 feet 1 inches tall. But that is not this case.
In the present case, there are a number of other eyewitnesses who all describe the two robbers as taller than 5 foot 6 inches with some estimating both robbers as being six feet tall or taller. To take the example of Mr Crosby, the Judge accurately described his evidence thus:
One man he said was about six foot two inches, lightish brown hair, mid to late 20s, white Australian ethnicity, taller than himself; his height, Mr Crosby’s height this was agreed at 175 cm. He said he was clean-shaven and he introduced himself as Glen.
The second man was about six foot tall, stocky build, late 20s and he said he had a semi Italian ethnicity, his hair was black and spiky and he was clean-shaven.
The prosecution case was simply that it was Mr Carmena-Wilson who was incorrect in his height estimate. Of course, his height estimate is to be taken into account when assessing the reliability of his photographic identification of the face of the appellant, but it is also correct to say, as the respondent contends, that rather different considerations may be relevant to those two matters.
Mr Crosby and Mr Carmena-Wilson both gave evidence that Mr Crosby was standing next to the two robbers whereas Mr Carmena-Wilson never got out of the car until after the robbers had run off. Mr Carmena-Wilson may well have been at a disadvantage in estimating height in those circumstances, particularly since the robbers were standing to the rear of the car. However, he was in a good position to recognise the face of the appellant because he gave evidence that he identified the appellant as the robber who opened the front passenger door and reached over Mr Carmena-Wilson and grabbed the envelope of cash. Mr Carmena-Wilson was very close indeed to that person’s face at that time and his view was unimpeded.
The Judge’s relevant directions may be briefly summarised thus. First, his Honour gave a careful direction pursuant to s 34AB of the Act as follows:
I now turn to the matter of identification. In this case it is obvious, ladies and gentlemen, that the Crown case depends in part upon the evidence of Mr Carmena‑Wilson who selected the accused’s photograph from a photo pack shown to him in June 2013. His evidence on that topic is referred to, in the law, as evidence of identification. I need to tell you that you should approach evidence of identification with caution. The experience of the courts is that an honest witness can be mistaken in making an identification and miscarriages of justice have occurred as a result. Witnesses can be mistaken even though they are quite sure of their identifications. A mistaken witness who is sure of his or her identification can be a convincing witness and acceptance of that evidence can lead a jury into error. The ability to form and retain an accurate impression of an alleged offender, including his physical appearance and features, may be affected by many factors including the witness’s involvement in the incident, his or her state of mind at the time of the observation, whether the witness is intoxicated for instance; those sorts of factors as well as the general frailty of human observation to which I think Mr Martin referred, the difficulty that one has in describing people.
And then there are matters such as the potential at least for a tendency for people to reconstruct in their mind over a period of time. You have all probably had experience in your own lives of making mistakes as to people's identity. How often have you been somewhere, say in a supermarket, you think you saw somebody and it turns out that the person was never there and you say ‘I could have sworn that you were there’. It can happen even when, as I say, a person is previously known to you, even well-known but of course the risk of error is greater where the person is a stranger.
…
Returning briefly to some of the matters I mentioned which you should bear in mind in assessing reliability and correctness of the identification, you should bear in mind that the offenders were under observation for a relatively short period of time. Some of the observation by Mr Carmena-Wilson took place over his left shoulder which required him to turn and look back to the side. You will bear in mind the traumatic nature of the whole episode and the fact that when the robber reached across him to seize the cash he only saw part of his face. You are required to bear those matters in mind as well as the balance of his evidence concerning his descriptions of the robber that he says was the accused when you decide whether you are prepared to act on the evidence of his identification.
The matter of height was not included here. However, his Honour did refer to it on a number of later occasions and made clear its importance. Thus in reviewing the evidence of the witnesses, his Honour directed:
Now, for his part, the accused, by way of example on descriptions, points to the evidence of Mr Carmena-Wilson, who he said had told the police that the man he says was the accused was, in one part of his evidence he agreed he told the police that that man was five foot six inches tall. Mr Redford again frankly conceded that other witnesses had described the two men as around five foot 10, and still others over six foot tall.But effectively, in the accused’s submission, when you add up all the evidence in relation to these various witnesses and their descriptions of the two men involved, in his submission, you could not make much of it at all in terms of it being evidence upon which you could rely in identifying the accused.
Later, the Judge stated:
You then heard from Mr Carmena-Wilson, he accompanied Mr Crosby to the meeting, his stepfather. He said he had a good look at both men. His description in evidence of the men was as follows: he said the man who was doing most of the talking was the taller of the two, but ultimately it was determined about six inches taller than him. … He agreed he also told the police that this man, the accused, that he identified as the accused, was five foot six inches tall, tall, fat with short black hair and was clean-shaven.
Again, in reviewing the defence case, the Judge directed:
[Defence counsel] asked you to bear in mind when assessing the weight and the accuracy of his identification, his description to the police of the accused being five foot six inches, fat, Caucasian man, clean-shaven and he said, compare that with the accused's height, and you will recall he mentioned the occasion when the accused left the dock and stood next to Carmena-Wilson.
In essence, he said how can you really, in the face of all of those matters, rely on Mr Carmena-Wilson’s identification?
Still later, his Honour repeated:
[Defence counsel] said the identification by Mr Carmena-Wilson must be accompanied by doubts with the description that he gave to the police of the accused’s height, amongst other things.
On the appeal, counsel for the appellant relied heavily on the decision of the High Court in Domican v The Queen[13] and submitted that the Judge should have included this matter of height within his general identification directions reproduced above at [171]. While it might have been preferable to have done so, this was the only respect in which it is now said that the Judge failed to adhere to the precepts in Domican. However, his Honour did specifically refer to this matter on four separate occasions in his summing up in circumstances in which the jury would clearly have appreciated that this was another example of the matters that should be considered when applying his Honour’s general identification warnings. No real risk of miscarriage of justice is established and this ground of appeal must be rejected.
[13] (1992) 173 CLR 555.
That conclusion might possibly be fortified by the particular drafting of s 34AB(3) (“inform” as distinct from “warn”) and also s 34AB(4) (“the judge is not required to use any particular form of words”). However, no submissions were put by either counsel concerning s 34AB and such consideration may await another day. We reject ground 3 of appeal.
GROUND 6 OF APPEAL
Ground of appeal 6 is as follows:
6.The fair trial of the applicant miscarried as a result of a combination of the complaints in grounds 1-5 above.
The cumulative effect of grounds 1 to 5.4 of appeal does not establish a real risk of miscarriage of justice. We reject ground 6 of appeal.
CONCLUSION AND DISPOSITION
We rescind permission to appeal on ground 3.1 and refuse permission to appeal on that ground. We refuse permission to appeal on proposed ground 5.4. We grant permission to appeal on proposed grounds 4 and 6. We reject each of the grounds of appeal and dismiss the appeal.
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