R v Patrick Dixon and Darren Spence Henry Nos. Sccrm-96/265, Sccrm-96/266, Sccrm-96/267, Sccrm-96/268 Judgment No. 5924 Number of Pages 12 Criminal Law

[1996] SASC 5924

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA COX, PRIOR AND DUGGAN JJ

CWDS
Criminal law - evidence - appellants convicted of aggravated assault and damage to property - prosecution case against both dependent upon identification evidence although in the case of appellant Henry there was additional evidence which was circumstantial in nature. Held that the trial judge was correct in refusing to exclude the evidence of photographic identifications on the grounds that the photographs of the appellants were obtained unfairly and that the selection of photographs was unfair. Held further that the verdicts in the case of Henry were not unsafe or unsatisfactory but that the appeal of Dixon against his convictions on that ground should be allowed. Alexander v R (1981) 145 CLR 395; R v Deering (1986) 43 SASR 252; R v Hallam and Karger (1985) 42 SASR 125, discussed.

Criminal law - jurisdiction, practice and procedure - judgment and punishment - appeal by appellant Henry against sentence - causing grievous bodily harm with intent to do grievous bodily harm - attack with cudgels - victim with serious ongoing injuries - head sentence of seven years with non-parole period of four years not manifestly excessive for first offender.

HRNG ADELAIDE, 20 November 1996 (hearing), 11 December 1996 (decision) #DATE 11:12:1996 #ADD 28:1:1997

Counsel for appellants:     Mrs M Shaw

Solicitors for appellants:    Scammell &; Co

Counsel for respondent R:     Ms W Abraham

Solicitors for respondent R: DPP (SA)

ORDER
Dismiss the appeal of the appellant Henry against his convictions and sentence. Allow the appeal of the appellant Dixon against his convictions and enter a judgment and verdict of acquittal on each count.

JUDGE1 DUGGAN J

1. The appellants have appealed against their convictions and sentence on charges of causing grievous bodily harm with intent to do grievous bodily harm and damaging property. The charges were laid following an incident which took place at Clovelly Park in the early morning of 28th June 1995. The prosecution case depended in large part on identification evidence and the grounds of appeal against conviction are concerned mainly with that aspect of the case.

2. The victim, Chad Frost, went to the Tonsley Hotel on South Road on the evening of 27th January with a group of friends. At approximately 3.20 am he and some of his friends left the hotel and got into a Datsun vehicle driven by one of them, Matthew Pisters. According to Pisters some men approached the vehicle and one of them assaulted Frost who was sitting in the front passenger seat. Pisters said he got out of the car and commenced fighting with one of the men. Some of the witnesses called by the prosecution saw a Maori woman approach the two men as they were fighting and a security officer, McLelland, who was working at the hotel, said he saw one of the men involved in the fight accidentally hit the woman as she attempted to separate the men involved. McLelland said that he saw the woman get into a white Holden station wagon. She sat in the front passenger seat and a man drove her out on to South Road. McLelland said he saw the vehicle turn into Tobruk Avenue which is the first street on the southern side of the hotel. Another occupant of the vehicle driven by Pisters was Stacey Parsons. He said that the fight escalated with others joining in and a Maori woman then walked up to Pisters' car, took the keys out and threw them in the direction of a lawned area in the car park.

3. By this time, the police, who had been called by McLelland, arrived at the car park. After the police officers left, Pisters and his friends commenced looking for the car keys and it was at this stage that McLelland saw the same white station wagon drive up to the hotel. McLelland said that the driver, whom he described as a Maori, jumped out of the vehicle and said "Why did you let my sister get hit?" McLelland replied "Well it was her own fault. She was told not to go in there and anyway it was an accident." McLelland said the driver then got back into the vehicle. McLelland also said that he observed a man he described as a Maori sitting in the front passenger seat and a Maori woman and two men he described as "Australian" sitting in the rear seat.

4. McLelland said that a short time later he saw the driver with a piece of timber in his hand chasing a young man up the street. He stated that later still he saw two men coming from the direction of some bushes on the northern side of the hotel. One of the men was the front seat passenger from the white station wagon and the other was a young man who staggered and fell onto the ground. McLelland stated that one of the men who had been a passenger in the rear seat of the station wagon was also walking from the direction of the bushes and these two men went over to the Datsun which Pisters had been driving. They, together with the man who had been driving the white station wagon, commenced smashing the Datsun with a cricket bat and a baseball bat. The driver of the station wagon still had the piece of wood in his hand. All those who had returned in the station wagon then re- entered their vehicle and drove off.

5. Peter Schirmer, a security officer on duty at the hotel, was with McLelland when he saw a vehicle he described as a white Commodore station wagon being driven into the hotel grounds. The driver, a Maori, got out and approached him. The driver said "What's the fucking idea of your letting my sister get smashed or hit?" Schirmer replied that he had not seen anything happen. Schirmer noticed that there was another Maori man sitting in the front passenger seat and there was a cricket bat alongside his leg. Schirmer said there were two men and a woman sitting in the rear of the vehicle. According to his evidence she was the woman who had been involved in the earlier incident. When giving evidence of that incident he described her as a Maori. The car drove to another area in the hotel grounds. Later he saw the driver of the station wagon and the other occupants of that vehicle damaging the Datsun.

6. Frost, the victim, gave evidence of the first incident and the arrival of the police. He said he remembers looking in the bushes for the keys to the Datsun but he could not recall any events after that until waking up in the Julia Farr Centre approximately three weeks later. Pisters said that he left the hotel to telephone for another set of car keys and when he returned he saw Frost lying unconscious in the gutter a little to the north of the hotel. He noticed extensive damage to the Datsun. Paul Wilson, who had driven to the hotel in the Datsun, said that while he was helping to look for the keys he saw a car which he thought was a VB Commodore being driven into the grounds of the hotel. He said there were three or four people in the vehicle and one was a Maori woman he had seen during the earlier fracas. He said that on the second occasion she shouted abuse at Wilson and his companions and he then saw a Maori man alight from the vehicle with a cricket bat in his hand. The man attacked Frost whereupon Wilson ran from the area. He was picked up in a vehicle by another member of his group, Vicki Smith, who drove back past the hotel. Another man then came out and struck her vehicle with a cricket or baseball bat. Smith said that the person who hit the vehicle was a "Maori or Kiwi".

7. Stacey Parsons was in the car park helping Frost look for the car keys when he saw a white Holden station wagon drive in. He said two men, one of them Maori, got out of the vehicle and the Maori, who had alighted from the front passenger seat, hit Frost in the face. Parsons ran from the scene and eventually got into Smith's car. He was in the vehicle when it was struck by a man with a baseball bat.

8. The police were called to the hotel for the second time and, after a preliminary investigation, they went to 6 Tobruk Avenue, St Marys. They arrived there at approximately 4.50 am and observed a white Commodore station wagon which was parked in a car park alongside the house. The bonnet of the vehicle was warm to the touch and there was a cricket bat in the back of the vehicle with glass fragments on its surface. There was evidence that the house was a two-minute walk from the hotel.

9. When they entered the house the police officers saw a group of men and a woman sitting around the kitchen table. The woman was Maori. There was evidence to establish that Henry was present. The appellant Dixon's name was given by one of the men who was present, but there is no identification or other evidence to establish that it was Dixon who gave the name to the police.

10. The police continued with their enquiries and on 3rd February 1995 they went to a house at English Avenue, Clovelly Park, and took a statement from the appellant Henry. The statement is as follows:
    "On Saturday morning, 28 January 1995 I was at home with my de
    facto, Michelle and other (sic) three children. At about 4 a.m.
    that morning I received a phone call from my sister, Margaret
    Henry. She told me there was a fight down at the Tonsley and she
    got hit in the face. I said 'Oh well, come around and get me'
    because she said she was going to a party at 6 Tobruk Avenue, St
    Marys. I know Ronald Storey who lives there. About 4.15 a.m.,
    Margaret came here in her white Commodore station wagon by herself
    and picked me up. We went straight around to Tobruk Avenue. I
    knew Wade Harold who was there because I know him from the Tonsley
    and Ronald Storey. There were other people there but I didn't know
    them. I saw Wade was bleeding around the left eye. Margaret was
    limping but I don't know what happened there. At about 4.40 a.m.
    the police came to the house. Two male officers came into the
    house and took all of our names. I heard Wade tell them 'Look at
    my eye' and I presume that Wade was going to lay charges against
    someone. Police had a look through the house for weapons. After
    the police left, Margaret dropped me off here at about 5 o'clock
    11. It wasn't long after the police left. I had been to the
    Tonsley Hotel from about one or two to 4 o'clock that afternoon and
    I had a few drinks. I was home between four in the afternoon to
    about four in the morning, with Michelle and the kids. We didn't
    have any visitors here that night. I did not go back to the
    Tonsley Hotel after Margaret rang me up at about 4 a.m. I was not
    involved in any assault, at the Tonsley Hotel that evening. The
    only Maori I know who lives around this area is my brother-in-law,
    Patrick Dixon who is Margaret's de facto."

12. The appellants were subsequently identified by photographs in circumstances which I summarise later. They were charged with the two offences based on the events which took place during the second incident when Frost was injured and the Datsun damaged. Neither appellant gave evidence at the trial.The first matter which arises for consideration is a complaint concerning the refusal of the learned trial judge to exclude the evidence of the identification of both appellants because of the manner in which their photographs were obtained by the police. Constable Daly gave evidence on the voir dire hearing that on 12th February 1995 he spoke to Dixon and that the following was said on the question of identification:
    "Daly said: I have obtained several witness statements regarding
    this assault. In order to identify any possible offender I'm
    giving you the opportunity to take part in a line-up, bearing in
    mind that you are not obliged by law to be in any line-up. Do you
    understand?

Dixon said: Yes.

Daly said: Do you wish to take part in a line-up?

Dixon said: No.

Daly said: What will happen is that I will put a photo of you in a
    folder with other photos of Maori males and show these photos to
    witnesses to see if any identification is made. Do you
    understand?

Dixon said: Yes.

Daly said: Once you have done this, I will be back in touch with
    you. Is it all right if we get a Polaroid photo of you to use in
    this identification folder?

Dixon said: Yes, all right."

13. Another police officer then took three Polaroid photographs of Dixon and in due course one of them was incorporated into a folder of photographs which was shown to the various eye witnesses.

14. Dixon gave evidence on the voir dire. On the face of it, his evidence is vague and unsatisfactory on the question as to what was said during the interview. Although he said he gave permission for the photograph to be taken, he said that Daly said to him: "Would you participate in a line-up or could we have a photograph of you, which is it?" Dixon said he did not think he had a choice. He also said that he did not know what a line-up was.

15. The learned judge ruled on the applications for exclusion by Dixon and Henry (whose application I will deal with later) in the following terms:
    "Upon the evidence presented, I am satisfied that, when he spoke to
    each of the accused in relation to their participation in proposed
    identification parades, Detective Daly did inform the accused that
    they were not obliged to take part in such a parade; that each of
    the accused understood what was meant by such a parade; and that
    each accused declined to participate in such a parade.In
    application of the legal principles enunciated and referred to in
Alexander v R (1981) 145 CLR 395, R v Hallam and Karger (1985) 42
SASR 125, R v Deering (1986) 43 SASR 252 and R v Britten (1988) 51
    SASR 567, in my view Detective Daly took every precaution
    reasonably available to guard against the miscarriages of justice
    that can occur with photographic identifications (see Gibbs C.J. in
    Alexander's case, at 143).I do not consider that the strict rules
    of admissibility would here operate unfairly against the accused,
    or any of them, in relation to the proposed evidence of
    photographic identification. In the exercise of the discretion
    relating to considerations of fairness to each accused, the
    proposed evidence should not here be excluded."

16. Although these reasons are brief and his Honour does not refer directly to his findings on credibility it must be inferred from what he said that he rejected the suggestion that Dixon considered he had no choice in the matter. It appears that he was satisfied that both appellants had been informed of their rights in relation to taking part in a line-up and that they declined to take part.

17. Mrs Shaw, for the appellants, argued that the discretion in the case of Dixon should have been exercised against admission by reason of the police evidence itself. However I can see nothing in the version given by Constable Daly which would justify such a course. Dixon was invited to take part in a line-up and refused to do so. He was then told of the police officer's intention to organise a photographic identification procedure. It was clearly up to the police officer to determine how he would obtain a photograph of the appellant and no doubt there were avenues available which would not involve any illegality on his part. However he went on to ask Dixon if he would be prepared to allow a photograph to be taken of him for that purpose. It is clear that the appellant agreed to this being done. Mrs Shaw argued that the police officer should have gone on to tell the appellant he still had the right to take part in a line-up although it was the present intention of the police to conduct a photographic procedure. In my view the police officer was under no such duty and, in certain circumstances, police officers would run the risk of being criticised for putting an accused person under pressure by again raising the possibility of a physical line-up after a clear refusal to take part in that procedure was followed by an intimation that the photographic procedure would be adopted.

18. Evidence of photographic identification will be excluded in the exercise of the court's discretion if the strict rules of admission would operate unfairly to the accused (Alexander v The Queen (1981) 145 CLR 395 at 402) or "where in the interests of wider public policy the court deems it proper to exclude the evidence because of some impropriety in the procedure by which it has been obtained". (R v Deering (1986) 43 SASR 252 at 253. See also R v Hallam and Karger
(1985) 42 SASR 126).

19. However, on the facts set out above, there was no unfairness in the procedures leading up to the photographic identification of the appellant Dixon, nor do I think that the evidence should be excluded on public policy grounds.

20. The appellant Henry declined to take part in a line-up and he refused to allow a photograph to be taken of him. The police had various avenues in mind for obtaining a photograph, but eventually a photograph taken at the time of Henry's arrest was used. Constable Daly was cross-examined on the voir dire about this as follows:
    "Q So you arrested him for the purposes of getting a photograph?

A And to bring him before the court to press charges, yes."

21. Elsewhere in his evidence the police officer explained that at the time of the arrest he entertained the requisite suspicion that the appellant had committed the offences and, as he did not arrest this appellant until 16th April 1995, it seems obvious that by this stage he had good reason to suspect Henry's involvement in the offences. The police were entitled to take a photograph of the appellant upon his arrest and I do not think that the concession as to a secondary motive in the arrest is sufficient to attract the exercise of the discretion to exclude the evidence of the subsequent identifications.

22. Mrs Shaw criticised the selection of photographs included in the folders prepared for the identification process and suggested that the photograph of each of the appellants might have stood out because the other photographs were not of Maoris. In the case of the appellant Henry 15 photographs of other men were included in the folder and in the case of Dixon there were 11 other photographs. I do not think it can be said by looking at the photographs that the appellants are the only Maoris whose photographs are included. It seems that the only evidence on the topic is that of Constable Daly who thought that there were photographs of other Maoris in the folder containing the appellant Henry's photograph. But whatever the ethnic origin of those in the photographs might be, the important question is whether there is unfairness in the selection such that prominence is given to the photographs of the suspects and, having studied each of the folders, I have reached the view that there is no unfairness of the type suggested. In my view the learned trial judge was correct in refusing to exclude the evidence of the photographic identification of the appellants.

23. Next it was argued that the verdicts of guilty returned against both appellants were unsafe and unsatisfactory. Particular emphasis was placed on what were said to be unsatisfactory features of the evidence of the identifying witnesses. It is necessary to summarise the relevant evidence before dealing with the submissions made in this regard.

24. On 6th March 1995 McLelland was shown a folder containing the photograph of the appellant Dixon (P5) and he picked out Dixon's photograph. Then on 28th May 1995 the same witness was shown the folder containing the appellant Henry's photograph (P6) and he picked out that photograph from the others. Constable Daly stated in cross- examination that McLelland identified the photograph of Henry as that of the driver and the photograph of Dixon as that of the passenger in the station wagon. In court the witness identified Henry as the driver and, after a short period of confusion, he identified Dixon as the front seat passenger. In cross-examination McLelland agreed that he said to the prosecutor before he came into the court room: "They were definitely there, I might not be sure which is which". However he said he was now sure who was driving the car and it was the person he had identified in court as the driver. During further cross-examination the appellants were asked to stand one after the other and McLelland wrongly stated that Dixon was the man whose photograph was in P6 and Henry was the man whose photograph was in P5. In the result, therefore, the witness correctly (according to the prosecution case) identified Henry as the driver and Dixon as the passenger, but when asked to relate the photographs to the two appellants he got them around the wrong way. Mrs Shaw argued that this incident casts doubt on the reliability of the witness and supports her contention that the photographs selected were inappropriate.

25. Dixon was not identified by any of the other witnesses. However, on 30th October 1995, Mr Schirmer was shown the folder P6 and he picked out Henry's photograph. He said in evidence that the photograph he picked out was that of the driver of the white Commodore. He could not pick out either of the appellants in court.

26. Mr Wilson identified the appellant Henry in court as the man who hit Frost. Previously he had been shown the folder P6 by Constable Daly and he had picked out Henry's photograph, although he told the police officer he could not be sure of the identification. In evidence he said that he picked out Henry because he thought he was involved. He was cross-examined as follows:
    "Q You say, do you, that you could have been mistaken about the man
    you have identified as being at the Tonsley that night?

A No.

27. Couldn't be mistaken?

A No.

Q How long did you look at this man at the Tonsley for, the one who
    hit Chad?

A Five seconds, at the most.

Q You can't tell us whether he had a beard or moustache?

A Don't know, couldn't tell you; it happened too quick.

Q You are sure when you come to court today that's that same man?

A Yes.

Q Couldn't be mistaken?

A No.

Q Might it have been that you saw one of the other Maori men who
    were involved in that earlier fight hit Chad?

A No, I didn't see no-one else hit Chad.

Q What I'm suggesting rather than this man you have identified in
    court, it could have been one of the Maoris there that night
    involved in that fight that hit Chad. Could that be possible?

A Could be but I'm not sure."

28. The witness Parsons made a dock identification of Henry, but in the course of the police investigation he was unable to identify him from the photographs and he conceded that he might have been mistaken about his identification in court.

29. The dangers of acting upon identification evidence and the special care required with identification by means of photographs are well documented. It is unnecessary to go beyond Alexander v The Queen
(1981) 145 CLR 395 for practical guidance on the approach to evidence of this nature and the role of the Court of Criminal Appeal in considering whether, despite the evidence being properly admitted, the verdict is nevertheless unsafe and unsatisfactory. Apart from the fact that the identification in the present case was mainly photographic identification, other matters relevant to an assessment of this evidence include the fact that those identified were not known to the witnesses, the observations were at night and of quite limited duration and some of the witnesses were affected by alcohol. Other matters to take into account are the circumstances of subsequent identification, including the possibility of the "displacement effect" influencing witnesses after viewing photographs, the fact that some witnesses discussed their identifications after looking at the photographs, the lapse of time between the incident and identification and the very slight weight to be attached to dock identification. These and other factors were very carefully explained to the jury by the learned trial judge and his explanation of the weaknesses in the evidence of particular witnesses is a convenient and useful reminder of some of the matters to be taken into account when considering the ground of appeal alleging that the verdicts were unsafe and unsatisfactory.

30. McLelland stated that the station wagon was about 10 feet away from him when it came to a halt on the occasion of the second incident. The driver got out of the vehicle and spoke to McLelland who walked towards him in the course of the conversation. The witness said the driver was out of the car for 30 seconds or a minute. He also saw the driver chasing one of the youths in the hotel grounds. He described the artificial lighting as fair. He said he saw the two appellants and others smashing the Datsun. His identification of Henry by photographs took place on 28th May 1995. It is important to have regard to the confusion of McLelland while giving evidence and his failure in court to link the two appellants with their respective photographs.

31. However in the case of the appellant Henry the evidence of McLelland does not stand alone. Although it should be borne in mind that "two unsatisfactory identifications do not support one another in the same way as two primary facts may lead to the conclusion of an ultimate fact" (R v Burchielli [1981] VR 611 at 616), the other identifications of Henry are evidence in the case and carry some weight, although they must be subjected to careful scrutiny.

32. Schirmer, the other security officer, was present when the driver got out of the station wagon. He said the driver spoke to them and so he had an opportunity similar to that of McLelland of observing that person. He also said he watched as the driver smashed the Datsun. He identified Henry as the driver, although an important factor to take into account when assessing his evidence is the fact that he did not identify him until nine months after the incident. There is also the identification of Henry by Wilson in the circumstances referred to above. Again this evidence must be treated with some caution by reason of the matters chronicled by the learned judge in his summing-up. Very little weight can be given to Parsons's dock identification of Henry.

33. These identifications must also be considered against the background of some telling circumstantial evidence led as part of the case against the appellant Henry. A number of the witnesses referred to the part which the Maori woman played in both incidents. In his statement to the police, Henry said his sister had complained to him at about 4 o'clock on the morning of the alleged offences of being hit in a fight at the Tonsley Hotel. The driver of the station wagon (which matches the description of the vehicle in which the Maori woman left the hotel after the first incident) complained to the two security officers about his sister being hit. After the first incident the station wagon was seen to enter Tobruk Avenue where a vehicle answering its description was found later in the morning. It was parked adjacent to the house in which Henry was located that same morning.

34. In my view the evidence against Henry, when considered as a whole, was ample to justify a finding of guilt and, after conducting the examination of the evidence which is required by M v The Queen (1994) 181 CLR 487, I have reached the firm view that the verdicts recorded against Henry were not unsafe or unsatisfactory.

35. However the case against the appellant Dixon is by no means as strong. The only person to identify him was McLelland. This witness's opportunities for observing the front seat passenger in the station wagon were quite limited. Unlike Henry, the front passenger did not get out of the vehicle when the driver was complaining to McLelland and Schirmer. McLelland at first said that the man he saw chasing the youth was Dixon, whom he identified in court, but he then changed his evidence and said it was the other man he identified (Henry). He said that he saw Dixon coming out of the bushes a little later.

36. The identification of Dixon was made from a series of photographs viewed by McLelland six weeks' after the incident. I have referred to McLelland's confusion in relation to more than one aspect of his evidence. In Dixon's case there are not the important incriminating circumstances which are present in Henry's case and which link him to the incident at the hotel. The other evidence against Dixon does not extend very far beyond the fact that someone gave his name when the police visited the house at Tobruk Avenue. In the light of these considerations I do not think that the verdicts, which were based almost solely on McLelland's evidence, can be regarded as safe.

37. For these reasons I would dismiss Henry's appeal against his convictions and allow that of Dixon.

38. There remains the appeal by Henry against his sentence of seven years with a non-parole period of four years. This was imposed as a global penalty for the offences of causing grievous bodily harm with intent to do grievous bodily harm and damaging property.

39. Henry was 29 years of age at the time he was sentenced. He has no previous convictions and the learned judge accepted that he was in a stable domestic relationship and that he had three dependent children.

40. The attack on Frost was premeditated and carried out in company and with the aid of weapons described as a cricket bat, a baseball bat and a piece of wood. The victim was knocked unconscious and remained so for three weeks. He was in the Julia Farr Centre for one month and his cognitive functions were impaired. He was an outpatient at the Payneham Head Injuries Rehabilitation Centre until the end of 1995. The learned judge was justified in concluding that the assault continues to have a profound effect on the victim's life.

41. Enough has been said to indicate that this was a serious assault which warranted the imposition of a substantial sentence. The damage to the vehicle underlines the motive of revenge which inspired the attack.

42. In my view the sentence was not manifestly excessive.

43. I would dismiss the appeal of the appellant Henry against his convictions and sentence. I would allow the appeal of the appellant Dixon against his convictions and enter a judgment and verdict of acquittal on each count.

JUDGE2 COX J

44. I would dismiss the appeal of the appellant Henry against his convictions and his sentence. I would allow the appeal of the appellant Dixon against his convictions and enter a judgment and verdict of acquittal on each count. I agree with the reasons of Duggan J.

JUDGE3 PRIOR J

45. I agree with the reasons of Duggan J and with the orders proposed.