R v Paul William Thomas No. SCCRM 96/241 Judgment No. 5911 Number of Pages 9 Criminal Law

[1996] SASC 5911

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

CWDS
Criminal law - evidence - appeal against convictions for aggravated assault and larceny from the person - prosecution case dependent upon evidence of eyewitnesses who observed the attack on the victim - refusal by trial judge to administer the usual warning concerning identification evidence on ground that continuous observation by eyewitnesses from time of offence to time appellant taken into custody by the police obviated the necessity for such a warning.Held that this was not a case of continuous observation and the usual warning should have been given to the jury.R v Oakwell[1978] 1 All ER 1223, distinguished. Held further that the directions on joint enterprise were inadequate and necessitated the setting aside of the convictions.

Criminal law - jurisdiction, practice and procedure - Section 57(3) of the Juries Act 1927 requirs that an accused must be found not guilty of the offence charged before a verdict can be taken in relation to an alternative offence.

HRNG ADELAIDE, 19 November 1996 (hearing), 11 December 1996 (decision) #DATE 11:12:1996 #ADD 28:1:1997

Counsel for appellant:     Mrs M Shaw

Solicitors for appellant:    Mr G Lang of Aboriginal Legal Rights Movement

Counsel for respondent:     Ms T Kelly

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 DUGGAN J

1. The appellant was convicted of the offences of causing grievous bodily harm with intent to do grievous bodily harm and larceny from the person. The charges arose out of the same incident. It was alleged by the prosecution at the trial that the appellant and a co-accused kicked the victim as he was lying on the ground and that the appellant then went through the victim's pockets and stole property including money. The co-accused was convicted of the same offences but he has now absconded.

2. The appeal is against the verdict on each count and the grounds are concerned mainly with complaints that the summing-up was inadequate in a number of respects.

3. It was conceded by the respondent that the conviction for larceny from the person cannot stand. The offence charged in the second count was robbery. The foreman stated that the jury were undecided in relation to the offence as charged. The trial judge then permitted the jury to return a unanimous verdict of guilty on the alternative offence of larceny from the person. Although s57(3) of the Juries Act 1927 is somewhat awkwardly worded, I think the effect of it must be that an accused must be found not guilty of the offence charged before a verdict can be taken in relation to an alternative offence. As this was not done in the present case the verdict of guilty of larceny from the person must be set aside.

4. The main complaints concerning the summing-up are that it failed to deal adequately with the issues of identification and the elements of the offence of causing grievous bodily harm with intent to do grievous bodily harm and that the directions on joint enterprise were inadequate.

5. It is convenient to deal first with the identification issue. The prosecution argued at trial and on appeal that this was not an identification case in the sense understood in those cases which deal with the accuracy of purported identification and speak of the necessity to guard against the dangers of mistaken identification. Instead, so it was argued, it was a case involving continuous observation by eye witnesses from the time the offenders attacked the victim until they were taken into the custody of police officers who were called to the scene. Accordingly there was no need to treat the evidence of the eye witnesses with that special care referred to in well-known cases such as Domican v R (1992) 173 CLR 555. According to the appellant's argument before this court, however, the eye witnesses did not have the offenders under constant observation and their testimony revealed a process of recognition which rendered it necessary for the jury to be given specific instructions including the traditional warning appropriate to identification cases.

6. In order to deal with these competing arguments it is necessary to refer in more detail to the evidence of the incident which led to the charges. It is not in dispute that the victim, Mr Fuller, was attacked in Whitmore Square shortly after 5.00 pm on 11th September 1995 and that some of his property was taken from him in the course of the attack. He said in evidence that he had no recollection of the incident, but it is clear that much of what took place was observed by two groups of witnesses from their respective places of employment bordering on the square.

7. The incident took place towards the northern end of the square and within the park area which is bounded on all sides by roads. One group of witnesses observed it from a power tool shop located on the north- western corner of the square and the other group was located at a Mobil service station in the vicinity of the north-eastern corner. There were three men who made observations from the power tool shop; two employees, Smeets and Stramara, and a contract cleaner, McDonald. The witnesses working at the service station were Mooney and Wodson.

8. All five eye witnesses gave broadly similar accounts of the assault upon the victim who was lying on the ground throughout. The witnesses stated that the assault was carried out by two men whom they described as the taller man and the shorter man. The prosecution asserted that the taller man was the co-accused and the shorter man the appellant. The witnesses described an initial kicking of the victim by the taller man followed by the approach of the shorter man who then kicked the victim on a number of occasions before going through his pockets. A person from each of the two groups telephoned the police and police officers arrived at the scene not long after the calls were made. The appellant and the co-accused were eventually arrested by the police after the officers had been given information by the witnesses. The appellant did not give evidence at the trial.

9. A reading of the summing-up gives rise to immediate concern as to its adequacy. Directions on the law were given but they were not then related to the facts in such a way as to assist the jury in resolving the principal issue, namely, whether the appellant had been involved in the two incidents. The trial judge simply explained that it was the defence case that the prosecution witnesses had made a mistake in saying the appellant was involved and that if this was a reasonable possibility the appellant was entitled to an acquittal. None of the evidence given by the witnesses was reviewed.

10. The nature of the duty of a trial judge when summing-up to a jury in a criminal case has been explained in many cases. (See e.g. Holland v R (1993) 117 ALR 193 at 200). In R v Domican (supra) it was said in the principal judgment (at p560):
    "In a criminal trial, the distinction between directions on matters
    of law and directions on matters of fact or argument is
    fundamental. A trial judge is bound to direct the jury as to any
    principle of law or rule of practice applicable to the case, and a
    misdirection or non-direction on such a matter will usually mean
    that the trial has miscarried. But matters of fact and the
    arguments in relation to them are in a different category. A trial
    judge is not bound to discuss all the evidence or to analyze all
the conflicts in the evidence Reg. v Ali (1981) 6 A Crim R 161 at
    p164, and, by itself, the failure of a trial judge to do so does
    not mean that there has been any miscarriage of justice. Section
    405AA of the Crimes Act 1900 (NSW), which came into force after the
    trial of the appellant, provides that a judge of the Supreme or
    District Court need not summarize 'the evidence given in the trial'
    if he or she is of the opinion that in all the circumstances a
    summary is not necessary. Nevertheless, the requirement of
    fairness means that ordinarily the respective cases for the
    prosecution and the accused must be accurately and fairly put to
    the jury. But that requirement does not oblige the judge to put to
    the jury every argument put forward by counsel for the accused Reg.
v Lowery [No 3], [1972] VR 939 at p948. This Court has said that
    it 'is hardly necessary to say that as a reason for granting a new
    trial, after a conviction in a criminal case, it is not enough that
    the presiding judge has not mentioned to the jury all the matters
    which were set up on behalf of the accused as affecting
probabilities' Basto v The Queen (1954) 91 CLR 628 at p637.
    Whether the trial judge is bound to refer to an evidentiary matter
    or argument ultimately depends upon whether a reference to that
    matter or argument is necessary to ensure that the jurors have
    sufficient knowledge and understanding of the evidence to discharge
    their duty to determine the case according to the evidence Reg. v
Matthews and Ford [1972] VR 3 at pp 15-16. Consequently, the
    conduct of the case necessarily bears on the extent to which the
    judge is bound to comment on or discuss the evidence R v Davies and
Cody [No 2] [1973] VLR 226 at pp 236-237; Reg. v Melville (1956) 73
    WN (NSW) 579. Discussion or comment which is justified or required
    in one case may be neither required nor justified when a similar
    case is conducted in a different way."

11. In my view it was necessary for the trial judge in the present case to go beyond the bald statement of the issues provided in the summing- up. It was necessary to relate those issues to the facts led in evidence. An essential ingredient in the prosecution case as it was presented to the jury was the continuity of observation of the appellant from the time of the alleged attack to the point where the appellant was taken into custody by the police. There was evidence within the prosecution case itself which was inconsistent with this claim of continuity. That evidence should have been brought to the jury's attention by the trial judge. Furthermore, directions on the nature of identification evidence and the warning appropriate to such evidence should have been given so as to guide the jury in the event that they rejected the claim of continuous observation. It is unnecessary for present purposes to canvass the evidence of the witness's observations at length. It is sufficient to point out that various witnesses said that their observations of the appellant were interrupted from time to time as they served customers or went inside their respective premises for one reason or another. Although the prosecution case was based on the assertion that the shorter man seen kicking the victim was the same man who was taken into custody by the police, there is some doubt on the evidence over the precise movements of the shorter man shortly before and after the police arrived. Mr Smeets said that after the kicking incident the shorter man returned to a group of people who were in the square and the police arrested him while he was in the general vicinity of this group. Mr McDonald said that the shorter man moved over to the group after the incident and the police arrested him a little later when he was "hanging around the police cars and the ambulance". Mr Stramara said that the shorter man was in the group at the time he was approached by the police officers and that he had been there since walking away from the victim. Mr Mooney and Mr Wodson said they saw the shorter man walk towards the toilet block which is in the north-eastern corner of the square shortly after the incident. They did not say that they saw him walking back to the group. Constable Sheehy, one of the uniformed police officers who arrived at the scene, stated in evidence that he saw the appellant and the taller man walk into the toilet block. He said he approached them and the shorter man walked into a cubicle. He said he asked both men to come outside and the shorter man walked over to where the victim was sitting. It was after this that the shorter man was questioned by another uniformed police officer and arrested.

12. This brief summary is sufficient to indicate the difficulties in the way of the prosecution's contention at trial that this was a case of constant uninterrupted observations by the eye witnesses from the time of the attack until the time of arrest, rendering it unnecessary to treat the matter as one involving identification evidence and the giving of appropriate directions in relation to such evidence. There are cases in which a series of events observed by eye witnesses will provide a link between the perpetrator of an offence and the accused which is not dependent upon recognition. An example is where a person witnesses an assault and watches as the assailant desists and is immediately arrested by a police officer. R v Oakwell [1978] 1 All ER
1223 is a case in which there was almost no possibility of a mistake in identification being made. A police officer gave evidence that he was struggling with a man who knocked him down. He said that when he got up from the ground after what appears to have been a very short period he saw the accused, who he claimed was the man who hit him, standing beside him. Lord Widgery CJ referred to the circumstances as giving rise to "a minor identification problem" which did not require the full warning referred to in R v Turnbull [1977] QB 244, but was dealt with adequately by a direction on identification which is not set out in the report of the case.

13. There seems to be good reason in the present case for doubting that the eye witnesses had the shorter man under observation throughout the entire period of the relevant events. Constable Sheehy's clear evidence of the occasion when the two men entered the toilet block is of particular importance in this regard. If the shorter man did go to the toilet block where he could not be seen by the witnesses, their evidence that he was one of the men taken into custody by the police involves the formation of an opinion and the expression of a conclusion as to identity. Of course the short space of time between observation and identification is a factor relevant to the reliability of the evidence, but it is identification evidence nevertheless. This was not a case in which the circumstances put the issue of identification beyond argument. There were several people in the vicinity of the assault and it appears that the shorter man was mixing with one of the groups at about the time of the incident. The man was not known to any of the witnesses prior to the incident. Quite clearly this was not a case in which a physical line-up or a photographic identification would have been appropriate because the witnesses saw the appellant taken into custody. However it is my view that an identification warning tailored to the circumstances of the case was required. In any event it was important for the trial judge to explain the basis upon which the witnesses said the appellant took part in the attack and to assist the jury in going about its task of assessing that evidence.

14. Counsel for the respondent argued that if the evidence is looked at as a whole, it establishes continuity of observation in that, although some of the eye witnesses may have been absent from time to time, other eye witnesses had the shorter man under observation on those occasions. However it would be a rare case in which observations of others could be used to fill in gaps in the observations of the particular witness so as to take that witness's evidence out of the category of identification evidence. Nor does the argument overcome the problem of the interruption in observation to be inferred from Constable Sheehy's evidence. If Sheehy's evidence on this aspect is a reasonably possible version, the prosecution case of continuous observation by the eye witnesses falls to the ground and the dangers associated with identification evidence must be borne in mind by the jury.

15. I am of the opinion that the failure to provide any assistance to the jury in these matters is sufficient, by itself, to require the setting aside of the verdict on the charge of causing grievous bodily harm with intent to do grievous bodily harm. Nevertheless if there is to be a retrial in this matter it is appropriate to say something about some of the other grounds of appeal.

16. During the trial an application was made to exclude the evidence of some of the identifying witnesses. It was argued that the evidence was unsatisfactory, mainly by reason of the fact that the police officers did not make notes at the scene of what was said to them by the witnesses when providing descriptions of the two assailants and pointing them out to the officers. A ruling which I made in R v Corley
(1995) 63 SASR 509 was cited in support of the application.

17. In Corley's case there were a number of unsatisfactory features about the evidence of identification and much of the confusion could have been prevented by the timely recording of details by the police officers. The words used during an act of identification are usually of considerable importance and should be recorded either contemporaneously or shortly after the identification. The evidence in Corley's case was excluded, not because the police officers did not take appropriate notes, but because the evidence was open to confusion and ambiguity, a situation which might have been avoided if the events had been properly recorded.

18. The trial judge in the present case refused to exclude the evidence on the grounds argued and he seems to have based his ruling in large part on his acceptance of the prosecution argument that this was not an identification case. For the reasons which I have stated I think he was wrong in reaching this conclusion. It is not clear whether his Honour considered he had no discretion to exclude the evidence or he made his ruling on the basis that the reasons put forward for its exclusion were insufficient to support the exercise of the discretion. However it is my view that no ground for the exclusion of the evidence in the exercise of the court's discretion was made out.

19. The criticisms of the learned judge's directions on joint enterprise and the element of intention in relation to the first count of causing grievous bodily harm with intent to do grievous bodily harm can be discussed together. According to the prosecution case, the appellant arrived at the place where the victim was lying after the co- accused had kicked the victim several times. It is obvious that grievous bodily harm was inflicted on the victim, but there were differing versions between the witnesses as to the extent of the shorter man's assault and, although the jury could be invited to draw the inference that the shorter man had himself inflicted grievous bodily harm, it is not surprising that the prosecution alleged that the appellant could be convicted as a secondary party.

20. The learned judge told the jury that the prosecution had put its case on the basis that "each of these men caused injury to Fuller in Whitmore Square separately". He did not direct the jury on joint enterprise in relation to the first count although he did give them such a direction in connection with the count of robbery. After the jury retired the prosecutor said:
    "The second feature I'd like to ask your Honour to give a re-
    direction relates to the first charge of causing grievous bodily
    harm with intent. You told the jury that the Crown case has been
    that each accused individually engaged in the offence and is each
    individually guilty of the offence. I opened and closed in terms
    of aiding and abetting, that whilst it was Raines who started, we
    say, Thomas, the second person, the second person who came along,
    joined in on that course and aided in and abetted and doing so took

    on responsibility for the whole criminal enterprise."

21. When the jury were recalled for further directions the learned judge said:
    "The other thing that was pointed out to me that I probably didn't
    say correctly was this: that I misstated the Crown case about the
    alleged assault on Mr Fuller, because I said to you that you have
    got to look at the acts individually, and see if you thought that
    Mr Raines assaulted him and then whether you thought Mr Thomas
    assaulted him. If, in fact, you came to a conclusion that somehow
    they joined in that enterprise of assaulting him, then it is open
    to you to say who did precisely what. No matter who did precisely
    what, you could find them both guilty, or, of course, not guilty of
    that charge. So that I want to correct that error."

22. The prosecutor had used the terminology "aiding and abetting" in her opening and closing addresses and in her submission to the judge after the jury retired. I assume she was seeking a direction appropriate to the traditional classification of principal in the second degree. The direction which was given was directed to the alternative route to liability as a secondary party, namely, as a party to a joint criminal enterprise or common purpose. These categories of secondary liability are discussed in McAuliffe v The Queen (1995) 183 CLR 108. It is obvious that the direction given fell far short of a satisfactory direction on joint enterprise. It said nothing as to the nature of such liability and the importance of determining the scope of any agreement or understanding which might have been reached between the parties. No attempt was made to relate the direction to the facts of the case. Furthermore, the use of the phrase "no matter who did precisely what" is misleading in the context in which it is used. Later when suggesting to the jury that an alternative verdict on count one was inappropriate his Honour stated:"You're satisfied or you're not. Are you satisfied that either one of them or both or them, acting together, caused grievous bodily harm to Fuller, with intent to do grievous bodily harm? It's as simple as that."Once again the manner in which this was put to the jury was quite misleading. I think it would have been appropriate in the circumstances of the case to give a direction on aiding and abetting and a further direction on the alternate route to liability by way of joint enterprise. As it turned out no direction was given on the first of these issues and the direction on the second was unsatisfactory.

23. Counsel for the appellant also criticised the learned judge's directions on the issue of intention to cause grievous bodily harm. It must be made clear to a jury in the case of the offence under discussion that, although grievous bodily harm must be caused to the victim, there must also be an intention to do grievous bodily harm. His Honour did use the expression "intent to do grievous bodily harm" in the passage quoted above, but in other parts of his summing-up and, in particular, in the main direction on the elements of this offence he referred to the requirement that the appellant "intended to cause the harm which was caused". I agree that the specific intention required should have been stated with more precision on those earlier occasions.

24. Once again no attempt was made to relate these directions to the evidence. For example, according to Constable Meldrum, the appellant was moderately affected by alcohol at the time of his arrest and this was one of the considerations which should have been brought to the jury's attention as part of a direction which canvassed the evidence relevant to the formation of the specific intent.

25. In my view the inadequacies in the directions on secondary liability are also sufficient, in themselves, to lead to the setting aside of the verdict on the first count.

26. There is one final matter. Complaint was made that the learned trial judge did not leave common assault to the jury as an alternative to the first count. As the evidence indicates that the appellant approached the victim and assaulted him after the other man had carried out his assault and there was some room for argument about intention, it cannot be said that there was no basis for a finding that the appellant was not guilty of the offence charged but guilty of common assault. It would have been proper to advise the jury that a verdict of guilty of common assault was available, but in my view the failure to do so in a case such as this should not result in the quashing of the conviction.

27. In view of the inadequacies in the summing-up in relation to the first count and the irregularity in the taking of the verdict on the second count I would allow the appeal, set aside the convictions and direct a new trial on the two counts in the information, robbery and causing grievous bodily harm with intent to do grievous bodily harm.

JUDGE2 COX J

28. In my opinion this appeal should be allowed. I would set aside the verdicts on both counts and remand the appellant for re-trial in the District Court on the amended information. I agree with the reasons of Duggan J.

JUDGE3 PRIOR J

29. I agree with the reasons published by Justice Duggan and with the orders he proposes.