R v Priest

[1992] QCA 357

IN THE COURT OF APPEAL [1992] QCA 357

SUPREME COURT OF QUEENSLAND

C.A. No. 206 of 1992

Before the Court of Appeal
Mr Justice Davies
Mr Justice Moynihan

Justice White

THE QUEEN

v.

COLIN MAXWELL PRIEST

(Appellant)

REASONS FOR JUDGMENT OF THE COURT

Delivered the 21st day of October, 1992.

MINUTE OF ORDER

Appeal against conviction allowed. Conviction quashed. New trial ordered.

CATCHWORDS:Identification evidence:- failure to draw jury's attention to witnesses inconsistencies in description of assailant. Allowing non-positive identification to go to jury.

Counsel:G. Long for the Appellant

P. Rutledge for the Respondent

Solicitors:Legal Aid Office for the Appellant

Director of Prosecutions for the Respondent

Hearing Date:1 October 1992 learned trial judge failed to exercise his discretion in admitting identification evidence into evidence; that he erred in the exercise of his discretion in admitting identification REASONS FOR JUDGMENT OF THE COURT

Delivered the 21st day of October, 1992.

On 24th June, 1992 the appellant was convicted at the
District Court at Brisbane of armed robbery with personal
violence occurring on 8th March, 1991.

evidence into evidence when he ought not to have done so and, that the verdict is unsafe and unsatisfactory. At the conclusion of the appeal the appellant was granted leave to add as a further ground of appeal a failure by the learned trial judge adequately to direct the jury as to the deficiencies in

the identification evidence such as to lead to a miscarriage of
justice.

It is fair to say that there was no additional body of evidence apart from the identification evidence which pointed to the accused's participation in the robbery.

At approximately 7.00 p.m. on Friday, 8th March, 1991 the complainant, Philip Hillier, was alone at the service station on Gympie Road, Petrie where he worked as an attendant. He was behind the counter in the office and noticed a male person

coming up from the bottom of the workshop area. As the man walked towards him Mr Hillier asked if there was anything which he could do for him, to which the man replied, "Yes, this", and

produced a gun. The man came behind the counter and pointed the gun at Mr Hillier's chest. Mr Hillier said words something like, "Oh, come on", and reached out and grabbed the gun with

his left hand, pushed it up and away from his chest. A struggle

ensued for about 10 to 15 seconds. The assailant jerked the gun out of Mr Hillier's hand and hit him with it behind the ear. The assailant was unmasked and during the struggle Mr Hillier was about six inches away from him. The area was well lit with overhead lighting. When he was hit Mr Hillier fell to the ground and thought that he must have momentarily blacked out because the next thing he knew he looked up and his assailant

was standing over him with the gun pointed at him saying, "I'll kill you". The assailant then told him to get up and open the

cash register. Mr Hillier was about a foot away from his assailant during this exchange but he was getting very "woozy".

Mr Hillier opened the till and then moved away from behind the counter at the direction of his assailant and watched him take the notes out of the till, stuff them in his pocket and, keeping the gun trained on him, forced Mr Hillier to move back behind the counter again. The assailant then backed to the doorway and when he got there he said, "Now you can call the cops". He walked out through the door, turned left past the glass windows and walked out of sight. Mr Hillier then collapsed, then crawled into the office and phoned 000. His evidence was that he had a clear view of his assailant during the episode which

lasted for about two minutes.

Sherolyn Leitch was driving her car near the service station that evening at around 7.00 p.m. and as she approached the service station she almost came into collision with a cream coloured Ford Falcon sedan which tried to exit from the service station via the way in route. The car was driven by a man who was its only occupant and Mrs Leitch subsequently identified the appellant as "very similar to" that driver. Mr Hillier did not see his assailant get into a motor vehicle.

On the day following the robbery Mr Hillier described his

assailant to the police as follows:-
"He was a man in about his early 40s; 176cm tall; slim to

medium build; looked in good shape; sandy coloured hair, which was short, not sitting on his collar; fair complexion; full head of hair, but looked fine hair."

He described his clothes as follows:-

"He was wearing a short-sleeved shirt, light coloured and

light coloured long trousers, possibly a fawn colour.

I didn't see his shoes."

On 18th October, 1991 the police showed Mr Hillier a video at his work place, without any comment on their part, and from it he selected the accused as his assailant from six other

individuals seen moving similarly on the screen followed by

stills of those men.

The circumstances in which the video evidence was obtained were that the appellant was taken into custody at about 11.00 a.m. on 19th June, 1991 and was then interviewed for about six hours. He was taken to the watchhouse at about 5.30 - 6.00 p.m.

He was then moved to another cell where he was instructed to move around in a particular fashion by the investigating police officers whilst he was being video-taped. He did not give his permission to be video-taped in this fashion and he had earlier refused to take part in an identification parade. In due course, six policemen dressed similarly to the accused were videoed moving in the same manner as the appellant and in a room with similar background.

At the commencement of the trial, counsel for the appellant, after a voir dire on the obtaining of the video evidence on which the accused gave evidence, sought to have the video excluded from going into evidence on the grounds that (a) it was illegally obtained, and, (b) the depiction of the accused on the video was unfair in as much as he was emphasised more than the other men. This was said to have occurred because the face and head of the accused were shown in a close-up by the

camera "zooming" in on his face and head to a much greater little more" than others shown on the video, the learned trial

extent than any of the other six men.
judge did not consider the prominence given to the accused

sufficiently marked to warrant excluding the video at that stage in the trial but indicated that he would be prepared to

reconsider his decision after the reception of other evidence. At the conclusion of the Crown case he was again asked to exclude all of the identification evidence because of the inconsistencies in the evidence of Mr Hillier and Mrs Leitch

inter se and between the descriptions of the assailant given

just after the event and at the trial, together with the

emphasis on the accused on the video. Further, there was some evidence that the accused had tattoos on his hands and distinctive moles on his face, neither of which were referred to

by Mr Hillier in particular, nor by Mrs Leitch. have set out Mr Hillier's description of his assailant to the	The learned trial judge concluded that the identification police the day after the attack. On 18th October, 1991 two detectives asked Mr Hillier if he would look at a video and if
he saw any person on the video that he recognised to indicate
that person. Mr Hillier said in evidence that as soon as he saw number 3 on the video he recognised his assailant but waited to see the whole video through and then told the police that he recognised him. He said then that the hair of number 3 was darker on the video than he recalled. He did not think that he
was shown the video more than once. Detective Pilcher's evidence was that at the end of the video showing Mr Hillier said "number 3 is the person". Mr Hillier was shown the video again. The accompanying police officer's evidence was that Mr Hillier's identification of number 3 was given after he saw the video through for the second time. The video was shown on appeal and number 3 was shown as a man wearing long trousers, a shirt and a long-sleeved jacket. He had light coloured hair, a thinnish face with a somewhat high coloured complexion. The video "zoomed" in on number 3's upper body and face to a greater extent than the other men, although number 4 was highlighted in a similar fashion.
In evidence in chief, Mr Hillier described his assailant as about 5 foot 7 inches in height, of medium build with sandy hair which was fairly long at the back down to his collar, with no facial hair, of a slight build, and of an average complexion rather light in colour but a bit reddish in places. He described him as wearing a pair of trousers, a shirt and some
sort of a jacket. the accused had faded tattoos of light blue swallows between each thumb and fore-finger, about three-quarters of an inch to one inch in size. Mr Hillier did not report seeing those tattoos on the hands of his assailant who was not wearing gloves. It was suggested to Detective Pilcher by defence counsel that the appellant had prominent moles on his face but his response was that he had not taken a great deal of notice of
the moles. Mr Hillier did not note any moles on his assailant's face and Mrs Leitch did not refer to any in describing the man
in the car.
In evidence in chief Mrs Leitch described the man in the car as having shaggy shoulder length hair, about 35 years of age, of slim build with a roundish plump face and no distinguishing marks. She saw him through her car window and
his windscreen for a second or two and he was about a car length
away. Mrs Leitch gave a statement to the police describing this man about a month after the event. In October she was asked to look at a video and told the police that the person shown third
on the video was "very similar" to what she remembered of the man in the car. She noticed that the hair of the man on the video was darker than she recalled of the man in the car. Neither Mr Hillier nor Mrs Leitch were familiar with the appellant prior to the events of 8th March, 1991.
In directing the jury on the identification evidence the learned trial judge properly warned them that in identification cases a convincing witness may be a mistaken witness. He pointed out the focus on the third person on the video by "zooming" and asked the jury to consider if this feature of the video, in effect, provided the identification for each of the witnesses by over-emphasising the third man. He mentioned the fleeting nature of Mrs Leitch's view of the man in the car and
Mr Hillier's greater opportunity for committing his assailant's features to memory. It was only in the context of putting the
defence case, however, that his Honour mentioned the
inconsistencies in the descriptions of the man between the event
and the trial and between Mr Hillier and Mrs Leitch and the failure of Mr Hillier to notice tattoos and moles on his
assailant. which have laid down special rules in relation to the directions which a trial judge must give to a jury in criminal trials where identification is a significant issue, see Davies and Cody v.
The King (1937) 57 C.L.R. 170; R v. Kelleher (1974) 131 C.L.R. 534; Alexander v. R (1981) 145 C.L.R. 145 and, most recently,
Domican v. R (1992) 66 A.L.J.R. 285 wherein the majority held at
p. 288: "A warning in general terms is insufficient (Kelleher

evidence was fit to go to the jury with appropriate directions.

(1974) 131 C.L.R. at 551). The attention of the jury 'should be drawn to any weakness in the identification evidence' (at 551). 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 (Davies and Cody v. The King (1937) 57 C.L.R. 170 at 182-183). 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."

In the present case, although the learned trial judge gave the jury very full directions on the dangers of acting on identification evidence in general, he did not direct them as to

the inconsistencies to which we have referred between the description of the assailant by Mr Hillier immediately following

the attack and his description at the trial after viewing the video and the differences between his descriptions and that of Mrs Leitch. Neither did he warn them of the risk in using Mrs Leitch's evidence to strengthen that of Mr Hillier and vice versa.

Although on appeal it was submitted that the danger in the video evidence was not adequately addressed, we think that the weaknesses were pointed out to the jury sufficiently by the learned trial judge. The complaints that the learned trial judge failed to draw to the jury's attention that the other six

men who appeared on the video appeared to be "acting" their movements compared with the accused, and that the accused turned initially from left to right whilst the others turned from right

to left seem, after viewing the video, to be subtle differences which would not impress upon the mind of an identifying witness.

This was not a significant matter upon which a direction was

required. inconsistencies in the descriptions must amount to a miscarriage

of justice. There was no other body of evidence apart from the place where a replica gun similar to that used in the hold-up was found, let alone other evidence so compelling that this court could conclude that the jury must have convicted on that evidence independently of the identification evidence so as not to constitute a miscarriage of justice, see Domican v. R, supra, p. 289 col. B. Accordingly on that ground alone there ought to be a new trial.

The Crown virtually conceded on appeal that the video evidence was illegally obtained. Whatever may be the ambit of s. 43 of the Vagrants Gaming and Other Offences Act 1931, the only possible source of power, there was no suggestion that the video was taken at the direction of the officer in charge of the police station, see Fullerton v. Commissioner of Police [1984] N.S.W.L.R. 159 at p. 162 et seq. The fact that the video evidence was unlawfully obtained does not render it of necessity inadmissible, see R v. Ireland (1970) 126 C.L.R. 321 and Bunning

v. Cross 141 C.L.R. 54. It was a matter for the learned trial judge in the exercise of his discretion to weigh the public

interest in bringing to conviction those who commit offences on

the one hand with the public interest in the protection of the individual from unlawful and unfair treatment on the other. The

video evidence as founding the identification of the appellant with the assailant in conjunction with the witnesses' evidence was of great weight. The circumstances of obtaining the video evidence of the appellant together with the features which tended to highlight the appellant were not so prejudicial to the appellant that the video ought not to have gone into evidence or ought not to have been left for the jury's consideration with an appropriate warning. The shortcomings of the video were adequately pointed out to the jury. In our opinion the learned trial judge did not err in exercising his discretion to admit the video and leave it for consideration by the jury.

R v. Meadway

The evidence of Mrs Leitch was in a different category from that of Mr Hillier. Her identification evidence was so unsatisfactory that the possibility of error was grave. There was nothing at all to link the man in the car seen by her with Mr Hillier's assailant as Mr Hillier had not seen his assailant leave in a motor vehicle. Her glimpse of him was fleeting, it

was made in evening light and, although she said that her hesitation in positively identifying the appellant on the video

was due to his darker hair, her description of him was so different from that of Mr Hillier for it to be gravely

prejudicial to allow her evidence to go to the jury. Notwithstanding any warning which might have been given to the jury, there was a real risk that the jury might have been

seduced into thinking that her selection of the appellant from the video in some fashion added weight to the evidence of Mr Hillier rather than considering it quite separately for the fragile evidence that it was.

Therefore there was a risk of a serious miscarriage of justice in allowing Mrs Leitch's evidence to go to the jury, see

C.A. No. 285 of 1991, judgment of 1 April 1992. evidence may be considered before being opened to the jury or at the close of the Crown case, both of which occurred here. In an appropriate case, the identification evidence may be of such a kind that the trial judge in the exercise of his discretion will not admit it into evidence at all. On other occasions he may wish to see how it measures up in relation to other evidence adduced in the course of the trial. There was no discernible error on the part of the trial judge in allowing Mrs Leitch's evidence to be tested and evaluated against other evidence. As has been said above, the error lay in letting the jury consider Mrs Leitch's evidence when it became plain that its capacity for misleading the jury was very great.

The order is that the appeal against conviction is allowed and the conviction quashed. Order that there be a new trial.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 206 of 1992

THE QUEEN

v.

COLIN MAXWELL PRIEST

(Appellant)

______________________________________________________________

Mr Justice Davies
Mr Justice Moynihan

Justice White

______________________________________________________________

Judgment of the Court delivered on

21st October, 1992.

______________________________________________________________

APPEAL ALLOWED. CONVICTION QUASHED.
RE-TRIAL ORDERED.