R v Raymond

[2007] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v Raymond [2007] QCA 91

PARTIES:

R
v
RAYMOND, Scott Michael
(appellant)

FILE NO/S:

CA No 285 of 2006
DC No 1441 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2007

JUDGES:

Williams and Holmes JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – where the appellant was convicted of armed robbery with personal violence and unlawful use of a motor vehicle – where the complainant identified the appellant by his voice – where the complainant’s native tongue was Thai and English was a second language – where the appellant contends that language history could affect identification evidence – where the critical issue in the case was identification – whether verdict unsafe or unsatisfactory – whether the jury were properly directed on identification evidence

Bulejcik v The Queen (1996) 185 CLR 375, cited
Domican v The Queen (1992) 173 CLR 555, cited

COUNSEL:

A Entriken for the appellant
R Pointing for the respondent

SOLICITORS:

Gilmore & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. WILLIAMS JA: The appellant was convicted after a trial of armed robbery with personal violence and unlawful use of a motor vehicle.  On the first charge he was sentenced to six years imprisonment with a parole eligibility date of 21 September 2009, and he was sentenced to three years concurrent for the unlawful use offence.  Initially the notice of appeal relied on the following grounds:

“1.      [The] learned judge erred in fact and in law in his conduct of the matter.

2.         That in all the circumstances, the sentences imposed are manifestly excessive having regard to my prior criminal history, prison history, the circumstances of the events and personal circumstances.”

1. However, counsel abandoned both of those grounds and relied only on the following grounds in challenging the conviction:

“3.      There has been a miscarriage of justice in that the verdict of the jury is against the weight of the evidence, and/or is unsafe and unsatisfactory.

4.       The learned trial judge erred in failing to adequately direct the jury as regards the evidence of identification.”

1. Only four witnesses were called at the trial; all the evidence was concluded in the morning so final addresses to the jury commenced at about 2.30pm on the first day of trial.

1. The complainant was the owner-manager of a restaurant at Toowong.  He had been born in Thailand on 4 December 1961 and he lived there until he was aged about 15.  Though Thai was his native tongue he learnt English as a second language at school.  He then spent some four years in California (from about age 16 to 20) and came to Australia in June 1988 when he was 26 years of age.  He has lived in Brisbane since 1992. 

1. The complainant first met the appellant in early March 2005 whilst he was taking a lunch break from his restaurant at the barbeque area at Simpson Falls, Mt Cootha.  There was some discussion between them about motor vehicles, and the appellant told the complainant that he was a roofer in the building industry.  After that, according to the complainant the appellant came to the restaurant on "several" occasions; later he said "around 6 or 7 times".  There were conversations on those occasions.  No more detail was given in evidence as to those conversations.  Then about late April early May the complainant moved residence and the appellant assisted in that move; the complainant said that the appellant helped disassemble a bed, carry it to the new home and put it back together.  At some unspecified time prior to the offence the appellant told the complainant that he also worked "on a cruising, you know, entertaining boat along Brisbane river called Wild Boys Afloat". 

1. The complainant also gave evidence that whilst the appellant was at the restaurant he observed the complainant go through his usual procedure on closing the restaurant.  That involved placing the takings in a money bag and putting it in the car for the drive home. 

1. On the evening of 11 June 2005 the complainant left the restaurant just before 10.00pm; he had the day's takings, just under $2,000, with him in the bag which was placed on the floor of the car behind the passenger seat.  He arrived at the driveway to his home at about 10.15pm.  He operated the button which would open the garage doors and that also triggered an automatic lighting system illuminating the driveway.  He was just about to get out of his car, having opened the door, when a person appeared and grabbed him.  The assailant grabbed the complainant using his left hand and had a long blade kind of knife and pair of scissors in his right hand.  The assailant said: "Get out of the fucking car right now.  Get out of the fucking car".  The complainant's evidence was that he immediately recognised the voice as that of the appellant.  He said in evidence: "I know this voice".  The assailant was wearing a pair of light blue jeans and a jumper and had a black balaclava over his head. There were two holes in the balaclava for the eyes.  The complainant's evidence was that he had seen the appellant wearing a similar pair of jeans whilst at the restaurant.  His evidence was also that the physical appearance of the assailant was consistent with that of the appellant.  He also said that he was able to see the assailant's eyes. 

1. The assailant grabbed the ignition keys from the complainant's hand and tore the shirt the complainant was wearing.  The complainant also received a small cut, before he was able to break free and run into the garage.  The assailant drove away in the car with the bag of money still in it. 

1. Some short time after the incident the complainant downloaded from the website of Wild Boys Afloat a photograph of the appellant.  He had by then recalled that the appellant had told him there was such a photograph on the website. 

1. Subsequently the complainant identified the appellant from a police line-up of photographs.

1. Under cross-examination it was put to the complainant that he was "mistaken" in identifying the appellant as the assailant, but he denied that and again asserted that he recognised the voice.  The complainant did concede that he was shocked by the sudden appearance of an armed assailant but nevertheless maintained he was able to identify the voice.  He described it as "just normal tone of voice".  He said it was "not like echoing kind of noise".  It was a male voice with "pretty much Australian accent and I recognised the voice".  He was unable to say what colour the eyes were; he was unable to describe the eyes.

1. There was a deal of cross-examination about the extent to which the complainant spoke using the Thai language, and in the address of counsel for the appellant to the jury much was made of what was described as "cross-cultural" issues.  The contention appears to have been that because the complainant was of Thai origin and spoke the Thai language he was less likely to be able to identify an Australian voice.

1. The appellant did not give evidence at trial.

1. There was no doubt that the complainant had been assaulted and robbed, and that his vehicle had been stolen by the assailant. The only issue at trial was the identity of the assailant.

1. The only issues raised on the hearing of the appeal were as to the sufficiency of the evidence of identification and the directions given by the trial judge relating thereto.  The following sets out what was said on the issue of identification by the trial judge in his summing up and re-directions:

"The issue in this case is whether the prosecution has proven that it was this accused man who was the person who did these things on the night in question.  That’s the real issue in this trial. 
…
Now the essential evidence in this trial of course is that of Mr Bangsribun, who told you that he recognised the person that robbed him on that night.  He recognised him because he recognised his voice; as soon as he spoke he recognised who it was, he knew him.  He made other observations of him which you might think he essentially was saying were consistent with the recognition of the voice; in other words the size, the mannerisms, the jeans, the – and the look of his eyes were all consistent or confirmatory of the recognition of the voice.  In other words, there was nothing that jarred with the voice recognition. 

Well now when considering the evidence of a person purporting to identify another the evidence needs to be carefully considered.  Mr Bangsribun is a man of Thai origin, but he has been in English speaking countries for quite a long time; …

Now evidence by a person who says that they recognised another person or identified another person is at first blush convincing because the giver of the evidence believes what they assert to be correct.  But then of course one simply doesn't uncritically accept what a person says about these things.  One needs to consider whether the evidence may be or is reliable. 
…
Now you may be satisfied he believed it and believes it.  The question, though, ultimately is, are you satisfied beyond reasonable doubt that his belief is a correct belief.
…
Essentially what he was saying was nothing jarred.  Everything he saw was consistent with the man he had known and whose voice he recognised. 

Now, in the final analysis you must confront the reliability of what Mr Bangsribun says.  The rest of the evidence just decorates the edges, really.  The critical evidence is what he says of his recognition of the accused man. 
…
In considering the reliability of Mr Bangsribun's evidence about this you obviously enough will examine all the circumstances in which he claims to have recognised the man robbing him.  How long had he known him?  When had he last had contact with him prior to the occasion you are concerned with?  What opportunity over the period of time he had known him and had mixed with him had he had to listen to and become familiar with his voice?  What about the circumstances in which he recognised his voice?

The circumstances seem to have been just after he had arrived home he was suddenly confronted with this man with balaclava and weapons.  He was fearful, obviously enough.  Anybody would be.  You need to consider that. 

You need to consider the – his familiarity with English; consider whether that has any bearing on the reliability of the recognition he claims to have made.

All those sorts of matters are matters which you would regard as circumstances surrounding the recognition that Mr Bangsribun says that he made and which you may think bear upon it and which you would discuss and analyse in ultimately considering whether you are satisfied beyond a reasonable doubt that what Mr Bangsribun says is in truth correct.  He believes it is, of course, or so it would seem.  So does usually any person who says they can identify somebody as – or recognise somebody as somebody who was in a particular place at a particular time or involved in a particular activity.  And because usually they believe what they are saying is correct, then at first blush they appear convincing.  But any fact finding Tribunal simply does not accept what they say.  It has a look at the circumstances in which they are saying this in determining whether what they say can be regarded as reliable. 
…
I am asked to remind you about some cross-examination of Mr Bangsribun, about the eyes of the – the person who robbed him.
…
…It was, on the evidence, a relatively brief encounter in the sense that there was the – the attempt by Mr Bangsribun to get back into his car and close the door which was subverted.  … 
…
But the whole – the – point is that it – it was not a lengthy encounter.  It was a relatively brief encounter and again that is one of the surrounding circumstances.  And it was in artificial light and not daylight.  Well that is apparent also because it was fairly late at night.
…
The only other thing I am asked to remind you of is the evidence about the – Mr Bangsribun about the interaction that occurred between he and the accused man in that March/April period and that during that interaction the accused man was in a position to know how the takings of the restaurant were dealt with.  In other words Mr Bangsribun bagged them, put them in his car and took them with him of an evening."

1. The critical submissions by counsel for the appellant on the hearing of the appeal were that the complainant's evidence of cross-cultural oral identification of the robber, lightly supported by some observations of general physical features, had a real danger of being mistaken.  Further it was said that the learned trial judge did not adequately sum up the defence case.  Reference was made by counsel to Domican v The Queen (1992) 173 CLR 555 especially at 561-2, and Bulejcik v The Queen (1996) 185 CLR 375 especially at 397.

1. Given the fact that identification was the only issue at trial, and that there was no evidence competing with that given by the complainant, I am of the view that the summing up on the issue of identification was adequate.  The jury were clearly instructed that they had to be satisfied that the complainant's identification of the appellant was factual and reliable to the extent that they could accept it beyond reasonable doubt before convicting the appellant.  More could have been said in the summing up, but that does not mean it was not adequate. 

1. In all the circumstances I am not persuaded that the learned trial judge erred in failing to adequately direct the jury as to the issue of identification.  Further, a consideration of the whole of the evidence does not cause me to conclude that the verdict of the jury is unsafe and unsatisfactory.

1. It follows that the appeal should be dismissed.

1. HOLMES JA: I agree with the reasons of Williams JA.  The appeal should be dismissed.

1. MACKENZIE J: I have read the record in detail and have nothing to add to what Williams JA has written. I agree that for the reasons he gives that the appeal should be dismissed.