R v Passey

[1992] QCA 436

COURT OF APPEAL [1992] QCA 436

McPHERSON JA
DAVIES JA

DERRINGTON J

CA No 255 of 1992

THE QUEEN
v.

MICHAEL PASSEY Appellant

BRISBANE

..DATE 02/12/92

JUDGMENT

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021292 D.1
McPHERSON J: This is an appeal by Michael Passey against conviction
at his trial in the District Court at Maroochydore in respect of the
offences (1) of wilfully exposing his private parts in a public
place and (2) assaulting the complainant Sommer Jean Maloney.

The sentence imposed was probation for 2 years. There is no appeal against that.

The place where the offences were alleged to have been committed was the surf beach at Mooloolaba and the date was 3 November 1991, which was a Sunday. The complainant Sommer is a girl who at that time was

10 years old, and by the time of the trial was 11. She said that at
about 2.45 p.m. on that day she was in the water at the beach with
her friend Jodie Walk, when she saw a man she later identified as
the appellant pull his swimming togs down and exposing part of his
penis. She decided to return to the beach from the water and dived
under an incoming wave. When she came up the appellant grabbed her
around the back and attempted, as she thought, to interfere with her
togs where they were tied behind. She said that about 3 minutes
elapsed between the 2 incidents.

At the trial the Judge directed the jury that before convicting they would have to be satisfied that acts of the kind described had taken place. In fact there was no specific challenge to the Crown case on this aspect which meant, in effect, that the critical question for

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the jury was whether it was the appellant who committed the offence
or someone else. The jury found that it was the appellant.

There are 2 grounds of appeal against the convictions. The second is that the trial Judge's directions to the jury concerning the identification evidence were inadequate. The complaints are that he failed sufficiently to isolate or identify matters tending to undermine the identification evidence against the appellant, and also that he did not lend his judicial authority to strictures by the defence on the evidence that was given at the trial on behalf of the Crown.

The first of these complaints is, in my opinion, quite unsustainable. The summing up which was thorough and fair was, if anything, in many respects favourable to the appellant. The trial Judge gave appropriate and adequate warnings about the risks of relying on the testimony of young children in charges of sexual offences and hence of the desirability of corroboration. He explained the concept of corroboration and also that the only evidence capable of constituting corroboration, which was that of Jodie Walk, should be approached with caution because both primary witnesses were children, who might have been mistaken, or were liable to misinterpret the acts about which they testified.

He emphasised that unless the evidence of the complainant Sommer

Maloney was itself intrinsically credible it was not capable of

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being corroborated. The jury must, he warned, be satisfied beyond
reasonable doubt that the 2 girls were speaking the truth. No
specific redirection was sought at the trial in respect of any of
these matters, which plainly do not afford any basis for

intervention by this Court.

The second aspect of this ground of appeal was the failure as it was
claimed to be of the Judge to comply with the decision in Domican v.
The Queen (1992) 66 ALJR 285, particularly at 288 and 289. In
directing the jury on the issue of identity a trial Judge is, as it
was held by the High Court in that case, bound to draw attention to
any weaknesses in the identification evidence. Their Honours went
on, "Reference to counsel's arguments ... Judge's office behind it."

What the trial Judge did here was first to give the standard warnings and directions required by decision like R v. Turnbull [1977] QB 224. He then proceeded to recount in some detail the matters put forward by the defence as amounting to weaknesses in the identification evidence. It is true that in the summing up these matters were prefaced by his saying, "In particular Mr Allen refers to the following," Mr Allen being defence counsel at the trial; but the Judge went on to conclude this aspect of the summing up with the words, "I simply point out to you what appears to me to be the principal discrepancies." In response to a request by the defence for a redirection he specifically directed the jury that they should take into account those alleged weaknesses in assessing the evidence

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of the girls on the central issue of identification.

From this it is evident that the Judge went at least as far as was required in lending his authority to defence strictures on the weaknesses in the identification evidence. I say "at least as far" because there is no suggestion in Domican's case that a trial judge is required to compromise his primary duty of impartiality in summing up so as to become, in a sense, a second or additional advocate for the defence. What he is bound to do is to isolate and identify for the benefit of the jury "any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence," see 66 ALJR 285, 286, column 1D.

Here several of the matters singled out by the defence counsel as weaknesses in the identification evidence were matters of contested fact. They could not reasonably be regarded as undermining the reliability of the identification evidence unless and until the jury accepted, if they did, the defence versions or submissions in respect of those facts or events, or until at least they were satisfied they were not persuaded that matters were as the Crown alleged them to be.

It was not for the Judge to add the authority of his office to the defence contention that matters like that should be found in favour of the defence, or in any other particular way. To do that would be for the Judge to usurp the jury function of deciding matters of

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credibility and of primary fact.

Those matters that were in this way the subject of contention, as well as certain acknowledged discrepancies in the evidence of the prosecution witnesses, can best be considered in the context of the appellant's first ground of appeal, which is that the verdicts of guilty were unsafe and unsatisfactory.

As to most of these matters, it is enough to say that there was ample scope and evidence for the jury to decide them against the appellant, as it must be assumed they did. Examples are whether the complainant had any real opportunity to look the man in the face when he grabbed her; whether she saw him again after he came out of the water; whether there were many people on the beach or in the water moving around; and so on.

Essentially, the way in which the appellant came to be identified was that the 2 girls were again at the same beach on 10 November 1991, which was the Sunday following that on which the offences were alleged to have been committed. They claimed on that occasion to have seen and identified the appellant as the offender of the previous Sunday. He was then traced to his home address through his vehicle registration number.

There is a feature of the identification process by one of the girls on that subsequent occasion on 10 November that may possibly lend

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itself to criticism; but in the end the critical question at the
trial remained the cogency of the visual identification principally
by the complainant on the day of the offence, which was Sunday 3
November. The complainant described the offender as she recalled him
on that date as a man with dark hair and a moustache, and brown or
tanned in appearance, wearing black Speedos with a red stripe across
the front. Jodie Walk, her companion, described him as having black
hair and a moustache and wearing black Speedos.

When interviewed by the police on 12 November, the appellant denied committing the offence but admitted being at the beach on the Sunday afternoon in question. He also admitted wearing Speedo swimming togs, which he said were black with a red or red and yellow stripe across the front, or the side, he could not remember which. His description of the swimwear is strikingly similar to that given by the complainant herself. It was, it may be said, different from what the girls said ne was wearing on the following Sunday, which were described as black board shorts. The complainant and Jodie both recalled the latter detail at the trial although the complainant had not been able to remember it at the committal.

When asked about the beach population at the time, the complainant said in cross-examination that on Sunday 3 November 1991, there were, she thought, only about 20 people at the beach on that afternoon, of whom about half that number were men. She and Jodie had ample opportunity to observe the appellant in clear sunlight for

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some time before the incident, when he was only a few metres away
from them as they played in the water.

The main discrepancy between the accounts of these 2 young witnesses was that Jodie said that the act of exposure and the assault took place together, whereas the complainant said that the 2 acts were separated by some 3 minutes in time. However much that might be thought to affect the general reliability of the statements given, it was in the end not a matter that specifically went to the issue of identification, and the jury may not have considered it to be of much assistance on that particular issue.

The case is, in the end, one in which it lay well within the province of the jury to find that it was the appellant who committed these offences. In substance, the task confronting them was to assess the possibility of the girls having mistaken the appellant for some other young man with dark hair and a black moustache, wearing black Speedos, with a red stripe in the front, who was among the crowd of some 20 or more at the beach on that afternoon.

In my opinion, when regard is had to that question, the jury were justified in reaching the conclusion that they did. I would therefore dismiss the appeal against conviction.

DAVIES JA: I agree.

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DERRINGTON J: I agree.

DAVIES JA: The appeal is therefore dismissed.

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