R v Preston

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PRESTON
[2013] SASCFC 69
Judgment of The Court of Criminal Appeal
(The Honourable Justice David, The Honourable Justice Stanley and The Honourable Justice Nicholson)
18 July 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Appellant jointly charged with a co-accused with aggravated serious criminal trespass in a place of residence (count 1) and aggravated robbery (count 2). Following a trial by jury both the appellant and his co-accused were convicted of count 1 and acquitted of count 2. He appeals against his conviction of count 1 on the basis that the trial Judge erred by:
(1) admitting evidence of a "photo board" identification procedure of which the appellant was a subject;
(2) failing to discharge the jury following an "in-dock" identification of the appellant;
(3) failing to adequately direct the jury as to the "in-dock" identification of the appellant; and
(4) failing to adequately warn the jury of the general dangers of convicting the appellant on identification evidence.
Held per the Court:
1. As there was no positive identification of the appellant during the "photo board" procedure, the trial Judge therefore had a discretion to exclude that evidence if the probative value of the evidence was outweighed by its prejudicial effect. However, the trial Judge's decision to admit the evidence did not cause this discretion to miscarry as, although the probative value of the evidence was weak and did not amount to a positive identification, the evidence of the "photo board" procedure was nevertheless a piece of circumstantial evidence which was relevant and admissible in a circumstantial case such as this one, to be considered along with other evidence as to identification (at [26]-[29]).
2. An "in-dock" identification will only be appropriate in cases where there has been some form of positive identification on a previous occasion and the "in-dock" identification merely relates that previous identification to the case at hand. As there was no previous positive identification of the appellant in the present case, the "in-dock" identification was therefore valueless and, if objected to at the time, should have been excluded by the trial Judge (at [34]).
3. After the Court had received the evidence of the "in-dock" identification of the appellant, the trial Judge failed in his attempt to cure the receipt of such evidence by means of a jury direction. The trial Judge erred in directing the jury that the "in-dock" identification could be considered, rather the jury should have been directed that it was valueless and had to be ignored (at [35]-[36]).
4. A warning to the jury as to the dangers of convicting an accused on identification evidence is required even when the case against an accused is not, strictly speaking, positive identification, but is rather a circumstantial case where a witness' observations lead to a finding of identity. The direction given by the trial Judge fell well short of what was required by way of a direction as generalities are not sufficient; specific references to the identification evidence itself was required (at [38]-[42]).
5. Appeal allowed. Conviction set aside. Matter remitted for retrial.
Domican v The Queen (1992) 173 CLR 555; Alexander v The Queen (1980-1981) 145 CLR 395; The Queen v Hallam and Karger (1985) 42 SASR 126, considered.

R v PRESTON
[2013] SASCFC 69
Court of Criminal Appeal: David, Stanley and Nicholson JJ

DAVID J: The appellant was jointly charged with a co-accused with the offences of aggravated serious criminal trespass in a place of residence (count 1), and aggravated robbery (count 2). Both pleaded not guilty and, after a trial by jury, were convicted of count 1 but acquitted of count 2.
The appellant was sentenced to a term of imprisonment of three years, two months and three weeks as a head sentence, with a non-parole period of 20 months’ imprisonment. The sentence included a period of time for a breach of a three-month suspended sentence bond.
The appellant now appeals against his conviction. At this stage, there has been no appeal by the co-accused.
The arguments on appeal focus mainly on the question of admissibility of certain aspects of identification evidence and the adequacy, or otherwise, of directions by the trial Judge on the same topic. In particular, the appellant argues that a “photo board” identification led by the prosecution at trial was inadmissible, and further argues that the trial Judge should have declared a mistrial after an “in-dock” identification was made by the main prosecution witness during the trial. The appellant also argues that the Judge’s directions about the use that could be made of the in-dock identification were inadequate, as were his Honour’s directions about identification generally.
The trial
At trial, it was the prosecution case that the appellant and his co-accused entered the Seacombe Gardens residence of Jack Adams on the evening of 28 February 2012, where they threatened Adams with a knife and subsequently left the premises with a number of items belonging to Adams.
The prosecution case relied almost solely upon the evidence of Adams, plus the evidence of four police officers involved at various stages of the investigation. Neither the appellant nor his co-accused gave evidence at trial.
Adams gave evidence that he was alone in his residence at 57 Ramsay Avenue, Seacombe Gardens, on the evening of 28 February 2012 when he was alerted to the sound of footsteps approaching along his gravel driveway. This prompted him to open his front door, at which point he viewed two men walking up the driveway. On inquiry by Adams as to who they were, one of them replied, “Hey, it’s me, Kingsley, I met you the other day”. The men walked up to Adams at the front door and proceeded to walk past him and into his lounge room uninvited. Adams recognised the man who identified himself as Kingsley from meeting him on two previous occasions at the nearby residence of a mutual friend, Crystal Harrison, the week prior. On each of these occasions, Kingsley had been accompanied by a female friend unknown to Adams. On one of the occasions, Adams and Harrison drove the female back to her nearby Sandery Avenue address after Kingsley had left Harrison’s house at an earlier time.
Once inside, Adams sat on a couch in the lounge room and was joined by Kingsley while the other person looked around the house. (I will refer to him herein as the “second person”).
That second person looked in the area of the kitchen and the front bedroom. Kingsley began to make comments to Adams about wanting money and drugs and, at a time when the second person was standing in the doorway of the lounge room, Kingsley said to Adams, “I know you’ve got stuff, you’ve got a nice TV and a computer”. Adams made an attempt to use his mobile phone to call for help, to which Kingsley responded by telling him not to try to call anybody.
During this exchange, both Kingsley and Adams were standing in the lounge room, and Kingsley made a small lunge towards Adams and attempted to punch him in the stomach. Adams stepped back to avoid Kingsley’s advance, and the punch did not connect. Kingsley said, “You’re lucky I don’t have a knife”, which prompted the second person to pick up a kitchen knife that was sitting on Adams’ lounge room table, and give it to Kingsley. Adams gave further evidence that Kingsley held the knife to his stomach and repeatedly asked him about the “money and stuff”. Adams recalled saying something to the effect of, “Well, man, I don’t have any money I don’t have anything to give you”, causing Kingsley to lunge towards him with the knife. Adams avoided contact with the knife by jumping backwards.
Adams then took Kingsley and the second person to the kitchen in order to convince them that he had no money hidden. As Kingsley returned and started making his way back to the lounge room, Adams took the opportunity to flee out of the back entrance of the house. He gave evidence that he had tried knocking on the door of a next-door neighbour. After there was no response, he crossed the road to try other neighbours and, at that time, he observed the same two males running from his front yard. One of the men was holding a plastic bag filled with items, and the other was cradling loose items in his arms.
Adams gave further evidence that he then returned to his house and collected his car keys. He decided to drive the short distance to the nearby Sandery Avenue residence of the female who was in Kingsley’s company on the earlier occasions on which Adams had previously met him. He suspected that this was where the men were going. He parked his car in an adjoining side street about 40 to 50 metres away from the Sandery Avenue house. From this position, Adams saw the two men appear on Sandery Avenue and enter that same house. Adams gave evidence that he then went into Crystal Harrison’s house to make further inquiries about Kingsley, before attending at the Sturt Police Station to report the incident.
Adams then gave evidence that the last time he saw the two men was at 9.10 pm. He pointed out to the police that he last observed them entering the house at 14 Sandery Avenue. At approximately 10.39 pm, police officers arrived at that premises and discovered two men, including the appellant who was lying on the floor of a bedroom of the property dressed in a brown dressing gown and briefs.
After a thorough search of the premises, none of the stolen property was detected.
On 9 March 2012, Adams provided the investigating police officers with a statement which contained a description of the second person who, on the prosecution case, was the appellant. He said he was about 28 years of age, wearing a short-sleeved shirt and long pants, of medium build, muscley, and was shorter than the other man. He said he had light coloured hair, approximately two centimetres in length.
It is undisputed that, at the time of the appellant’s arrest, he was 20 years of age, he was wearing a dressing gown and briefs and, he had dark coloured hair, albeit with a shaved head. (Exhibit AP9 at trial – police photograph taken on arrest).
On 18 June 2012, the witness, Adams, took part in a photographic identification procedure at his house. An array of photographs (including a photograph of the appellant) was shown to him (Exhibit P6 at trial). Photograph number 4 of that array was a photograph of the appellant. He was unable to positively identify the appellant but said during the course of the procedure, in referring to photograph number 4, that the second person “kinda looks like number 4” and “I can’t be 100 per cent sure really” and further, also referring to photograph number 4 “If I said anyone I’d say that one” and, further, “Definitely none of the others”.
That procedure was recorded by way of a DVD, and was played to the jury at trial (Exhibit P7). All members of this Court have viewed that Exhibit.
During the course of the trial, whilst giving evidence-in-chief, Adams was asked by the prosecution questions which led to an “in-dock” identification of the appellant (as well as the co-accused). Initially, there was no objection by defence counsel to that evidence. However, the next morning a belated objection was raised to its admissibility and, because of the lateness of the objection, an application was made for a mistrial. That application was refused.
Neither the appellant nor the co-accused gave evidence or presented evidence.
The main issue at trial was whether the prosecution proved beyond reasonable doubt that the appellant was the second person involved in count 1. In order to prove that was the case, the prosecution relied upon a case based on circumstantial evidence (if one excludes the in-dock identification). The pieces of circumstantial evidence upon which the prosecution relied were:
The similarities between the second person and the appellant’s reference to photograph number 4 in the photo board procedure. This, of course, fell short of a positive identification.
The fact that the witness, Adams, saw the same two men who entered his house, leave the house and, eventually, go to the house in Sandery Avenue.
That approximately one and a half hours later the police found the appellant and the co-accused at that Sandery Avenue house.
Appeal
There are five grounds of appeal. I set them out and will deal with them in turn.
1.The Learned trial Judge erred in admitting evidence of a photographic identification procedure of the applicant.
Particulars:
The learned trial Judge failed to take into account or give sufficient weight to the following specific evidence of the case when assessing the probative value of the identification procedure, in particular:
1.1The circumstances and substance of the purported photographic identification;
1.2The delay in conducting the purported photograph identification procedure;
1.3The lapse in time between the observation by the complainant of the suspects and the attendance of police;
1.4The absence of the proceeds of the robbery when the police arrest the suspects;
1.5The difference in clothing being worn by the applicant at the time of arrest and the description given by the complainant.
2.The learned Trial Judge erred in failing to discharge the jury following the in-dock identification of the applicant.
3.The learned trial Judge failed to adequately direct the jury as to the in‑dock identification of the applicant.
4.The Learned trial Judge failed to adequately warn the jury of the dangers of convicting the applicant on the identification evidence in accordance with the principles set out in Domican v The Queen (1992) 173 CLR 555.
Particulars:
The directions failed to warn of the dangers of identification evidence with reference to the specific evidence of the case, in particular:
4.1The circumstances and substance of the purported photographic identification;
4.2The delay in conducting the purported photograph identification procedure;
4.3The lapse in time between the observation by the complainant of the suspects and the attendance of police;
4.4The absence of the proceeds of the robbery when the police arrest the suspects;
4.5The difference in clothing being worn by the applicant at the time of arrest and the description given by the complainant.
5.The Learned trial Judge erred in directing the jury that “... [t]he acid test in that case might be that the men whom [the complainant] in fact said were in the house were in fact in the house ...]” and that this direction may have caused the jury to engage in circular reasoning and to assume there had been no change of persons inside the house during the period between the complainant seeing two men enter it and the police attending there approximately an hour and a half later and arresting the two men present.
Ground 1
As I have already indicated, there was no positive identification of the applicant during the photo board procedure. There is no suggestion that that procedure was not conducted properly, and it was agreed on appeal that the appellant had exercised his legal right not to have a “line up” identification parade.
Mr Allen, counsel for the appellant, argues that the weight of the evidence was so weak that the Judge, in the exercise of his discretion, should have refused to admit that evidence of the photo board procedure.
I have already set out the more important aspects. It is clear that there was no positive identification. Consequently, Mr Allen correctly argues that the trial Judge had a discretion to exclude that evidence if the probative value was weak and was outweighed by its prejudicial effect.[1]
[1] Alexander v The Queen (1980-1981) 145 CLR 395.
In my view, his Honour’s discretion did not miscarry. The photo board procedure was a piece of circumstantial evidence not amounting to a positive identification which was relevant and admissible, in the same way that a description of an assailant falling short of positive identification may also be admissible in a circumstantial case, to be considered along with the other evidence going towards identification.
I would dismiss this ground of appeal.
Grounds 2 and 3
It is convenient to deal with these grounds together.
Mr Allen argues that the in-dock identification was inadmissible. He referred to the oft-quoted passage in Alexander v The Queen, where the majority said:[2]
Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused. The reasons for this were explained in Davies and Cody v The King. In particular there is the danger that the witness will too readily come to believe, without any true recollection, that the man charged is the man whom he had previously seen, particularly if his own memory has become dim and there is some resemblance between the two men. The courts in England and Australia have long recognized the danger of acting upon evidence of identification made in those circumstances.
(Footnotes omitted)
[2] (1980-1981) 145 CLR 395 at 399 per Gibbs CJ.
In The Queen v Hallam and Karger, King CJ said:[3]
...Identification by confronting the victim with the suspect in circumstances which tend to suggest to the victim that the suspect is under suspicion is a virtually valueless form of identification which should be resorted to in only the most exceptional situations...
[3] (1985) 42 SASR 126 at 130.
There may be cases where an in-dock identification is appropriate, but only where there has been some form of positive identification on a previous occasion and the in-dock identification merely relates that previous identification to the case at hand. That is not the case here. There was no previous positive identification, merely evidence that amounted to a piece of circumstantial evidence. Therefore, the only positive identification led as part of the prosecution case against the appellant was that in-dock identification. The evidence is clearly valueless and, if objected to at the time, should have been excluded.
However, the trial Judge had to deal with the objection after the evidence had, in fact, been given. His Honour therefore had to consider whether a mistrial was the appropriate remedy, or alternatively, whether the matter could be cured by a direction. His Honour chose the latter course and said to the jury in his summing up:
I need to say some words about the in-dock identification of Luke Preston [the appellant]. I need to give you a very strong warning to be careful. The reason for the warning should be quite obvious to you. At the time of the identification Mr Preston was sitting in the dock alongside Mr Joseph whom he had already identified. In those circumstances Mr Preston was an automatic choice. There were two men in the dock, one was Mr Joseph. So by itself the in-dock identification is not very helpful. However the fact is that Mr Adams did point out Mr Preston and that evidence, the evidence of the in-dock identification needs to be considered together with the photo board identification and the circumstantial evidence.

In my view, the Judge erred in directing the jury that the in-dock identification could be considered. He should have directed the jury that it was valueless and had to be ignored.
I would allow both grounds of appeal.
Ground 4
Even if the trial had not miscarried because of the problems of the in-dock identification and the subsequent directions, Mr Allen argues that the trial Judge failed to adequately direct the jury as to the dangers of convicting the appellant on identification evidence. A proper warning against such dangers still applies when the case against the appellant is not, strictly speaking, positive identification but, nevertheless, is based upon a circumstantial case where a witness’ observations lead to a finding of identity.
The respondent concedes, properly, to this Court that this ground has been made out. However, as there may be another trial, it is nevertheless important to deal with the matters.
The trial Judge directed the jury in these terms:
In approaching your task you should consider the circumstances in which the alleged offenders were observed at the time of the offence: how long had Mr Adams had the persons under identification? From what distance? In what light? Was the observation impeded in any way? Had Mr Adams ever seen the culprit before, if so, how often? If only occasionally, had he any special reason for remembering him? Was there anything distinctive about the appearance of the person? There may be other matters which you can think of, but consider the circumstances in which Mr Adams observed the alleged offenders.
Mr Allen argues that these directions were inadequate. He relies on the High Court decision of Domican v The Queen, where the majority (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:[4]
Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should 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.
(Footnotes omitted)
[4] (1992) 173 CLR 555 at 561-2.
It is clear that the trial Judge’s directions fell well short of what was required. More than a number of general rhetorical questions are needed in a case such as this. Reference should have been made to the evidence itself concerning the identification of the appellant at Adam’s house and also the differences between the original description given by Adams as compared to the photograph of the appellant on the night of his arrest, as well as the uncertainty of Adams during the photo board procedure.
As the majority held in Domican’s case, generalities are not enough.
I would allow this ground of appeal.
Ground 5
It is unnecessary to deal with this ground.
Conclusion
Because of the above reasons, I am of the view that there has clearly been a miscarriage of justice. The conviction should be quashed and, at the very least, there should be a re-trial.
The appellant argues that, without the in-dock identification, and with proper directions concerning the balance of the identification evidence, the prosecution case would be so weak that this Court should not order a re-trial. Although there is some merit in that submission, nevertheless in my view there is sufficient evidence at the end of the day for the jury to consider the question of whether the prosecution has proved beyond reasonable doubt that the appellant was the second person involved in the offending.
Even though there may be circumstances where there is a residual discretion for an appeal court to take the view that a re-trial should not be ordered even if there is, strictly speaking, a case to answer, in my view this is not an appropriate case to take that course.
I would allow the appeal and order a re-trial.
STANLEY J: I would allow the appeal and order a re-trial. I agree with the reasons of David J and the further reasons of Nicholson J.
NICHOLSON J: I agree with the orders proposed by David J and with his reasons. However, I wish to add the following brief observations concerning the evidence of the photo board procedure.
The procedure undertaken by which the victim was asked if he could identify his unrecognised assailant from an array of photographs was video recorded. Unfortunately, the sound quality is poor when the DVD is played through the reproduction equipment typically used in trial courts in this State. It is not possible to know what individual members of the jury might have heard when the DVD of the procedure was played in court or, if played again in the jury room during deliberations.
The trial seems to have been conducted[5] on the basis that the victim said the word “definitely” with an implication available that this was said with reference to the accused. However, at the hearing of the application for leave it became apparent that decent quality headphones served to enhance the quality of the audio. At the hearing of the appeal it had become common ground that the victim had, in fact, said during the procedure:
(i)I don’t remember this guy as much.
(ii)Kinda looks like number 4.[6]
(iii)Can’t be 100% sure really.
(iv)If I said anyone, I’d say that one.
(v)I just sort of recognise the face kind of.
(vi)Definitely none of the others.
(vii)None of the others look like him I don’t think.
[5] Neither of the counsel at the appeal conducted the trial.
[6] Number 4 was a photo of the accused.
Two things follow. First, the use of the word “definitely” (as part of the statement in (vi) rather than attached to the end of the statement in (v)) has taken on a completely different complexion. Second, there can be no doubt that this was not identification evidence in the strict sense but evidence of “likeness” relevant only as a component in a circumstantial evidence case. This underscores the potential unfairness in the erroneous description given by the Judge when he said in summing up:[7]
You have the evidence of the way in which Mr Adams identified the photographs of the accused in the two sheets of photographs. While you study the video ask whether the identifications were convincing…It is for you to judge what weight should be given to the identification of each accused. (Emphasis added.)
[7] AB 90.
The DVD evidence of the photo board procedure was tendered by the Crown through a police officer. It was not put to the victim either in examination in chief or in cross-examination. Neither counsel on appeal was able to give a full explanation of how this came about. Ordinarily, the evidence comprising the DVD alone will be evidence of an out of court statement by the witness and inadmissible hearsay. Presumably the DVD was allowed to go into evidence in this way by agreement. I accept that forensic decisions of this nature are made by the defence from time to time. As far as DVD evidence of a photo board procedure is concerned it might be convenient to do this in the first instance. However, ordinarily, the DVD should be put to the relevant witness during examination in chief. In my view that should have occurred here. In this case it was part of the defence case that the victim displayed hesitancy and uncertainty on the DVD. However, the purported “identification” was barely touched on in cross‑examination.[8] Of course, whether or not or the extent to which a witness is cross‑examined on their performance during a photo board procedure will be a forensic decision to be made by the defence, according to the circumstances at the time.
[8] Transcript p 122: “Q. I put it to you that you are mistaken about the identification of my client. You disagree. A. Yes. As I said, I identified him immediately in the photo.” Earlier in cross‑examination, the accused made the unresponsive statement “I was able to identify them both in the photo line‑up immediately.” (Transcript p 116).

[2013] SASCFC 69

18 July 2013

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Criminal Law

Evidence

Legal Concepts

Appeal

Procedural Fairness

Sentencing

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