R v TAYLOR No. SCCRM-98-255 Judgment No. S7004

R v TAYLOR
[1998] SASC S7004

Court of Criminal Appeal: Prior, Lander and Wicks JJ (ex tempore)

PRIOR J: The appellant was convicted of burglary and assault occasioning actual bodily harm.
In this appeal, complaint is made about directions given by the trial judge with respect to evidence of identification. The jury's verdict is said to be unsafe and unsatisfactory given the nature and extent of the admissible evidence. I have no doubt that the verdict could not be said to be unsafe and unsatisfactory had the matter remained as the prosecution led its case before the jury.
It is said that, not only was no adequate or proper warning given as to the danger of identification evidence, but that the trial judge gave no proper direction as to how the answers of the accused could be dealt with by the jury. It is also said that the trial judge failed to adequately deal with inconsistent statements with respect to the identification evidence. It is not necessary to deal with this complaint given the views I have with respect to the course of the trial with respect to so-called identification evidence.
The prosecution case was that, early in the morning of 19 November 1997, a house in Angas Street city was broken into. The 80 year old occupant gave evidence of watching the intruder trying to remove a television set which had been left on in the bedroom. The woman said that when the intruder left her room she attempted to prevent him from re-entering by placing a chair against the door. She located the starting pistol and fired it. The shot disturbed the intruder, who re-entered her bedroom and assaulted her, pushing down on her legs and then putting both of his hands over her face, twisting her nose around and blocking her mouth.
There was evidence of fingerprints on the frame of the bedroom window. It was the prosecution's case that the intruder gained entry into the house by way of the bathroom after unsuccessfully attempting to enter via the front bedroom window. The fingerprints on the upper window frame at the front of the house included a right thumb print, its presence on the frame was consistent with a hand being held over the top of the window frame. It was the evidence of a police technical services officer that the fingerprint on the window frame was a print of the appellant's right thumb. There was also evidence that the appellant was at a house of a friend nearby on the night. The appellant's house is also a short distance from the victim's house.
The victim says that later on the same day as the burglary, the appellant, who was known to the victim as being involved with Neighbourhood Watch, came with two women saying he was interested in buying some furniture from her. He did not buy any furniture. The prosecution said this visit was a planned visit by the appellant to contaminate the scene some 11 hours after he had broken into the property. There was strong evidence that the right fingerprint on the upper window frame had already been located.
The prosecution sought to prove its case against the appellant by evidence of opportunity and the thumb print. However, cross-examination of the victim resulted in the prosecutor heavily relying upon responses to a question in cross-examination as telling, credible evidence of identification of the appellant as the attacker.
The appellant gave evidence. He denied he was the person who broke into the woman's house and assaulted her. He claimed that when he attended the woman's house on the day following the incident he was examining the window when he lost his balance, placing his hand on the window to steady himself. He claims this occurred before the police gathered the fingerprint evidence.
In evidence, the victim described the intruder as someone in very dark clothing, tall, sort of solid but not fat. In the darkness of her room, she admitted to having her eyes about half open and only opened to see against the light from the television. She spoke of the person having a suit, she said she was pretty sure he did not have a tie. These observations all related to the time before the intruder left her room and she sought to lodge a chair against the bedroom door before firing the starting pistol when the man came back into the room. The victim said she pretended to be asleep, her eyes were almost closed, although she spoke of having a good look at him when he assaulted her. She said the person had big hands and that she could actually see the attacker's face and eyes when the intruder left.
In court, the victim was asked whether she knew the accused. She said she had not met him before the occasion the subject of the charges. She spoke of having been told the appellant had been to her place before and was a neighbour with a dog. She also said that the appellant came to her house later on on the morning of the burglary. The evidence led by prosecution was not evidence of actual identification by the victim of the appellant as her attacker as much as that she said that the appellant was someone whom she had knowledge of and who came to her house on the day of the burglary, talking of wanting to buy furniture. The prosecutor's case was that the visit was to destroy any incriminating evidence of his earlier presence there.
In cross-examination of the victim, the appellant's counsel tested her description of the person that assaulted her being of a solid or heavy build whereas in her statement to the police she spoke of a man being tallish and thin.
She was then cross-examined about what she said she could see when she was being assaulted. She agreed she could see her attacker's face. It was then put to her, “It wasn't the face of John Taylor, was it.” To this, her answer was “It was.” Counsel then put to her, “You now say it is.” She replied, “I did say it was but I didn't know what his name was at that time.” She then admitted that when the appellant came to her house she did not identify him then to the police who were also at the house. Rather, she said that the police told her it was the appellant. The cross-examiner persisted by putting again to the victim that at the time she did not identify the appellant. The woman then replied:-
“I felt very queer about it. I said to my god-daughter, ‘it makes me all frightened and shivery’ and I went to introduce him and I couldn't remember what his name was and, you know, he said ‘John Taylor’ and I introduced him.”

Again, the cross-examiner put to the victim that at the time she did not identify the appellant. She then gave an answer which is ambiguous, in so far as it may have been running two situations together; - an admission that she had not named the appellant to the police at that time or, alternatively, that she was then asserting that, despite the fact that she was half asleep when the intruder came into her bedroom she nonetheless recognised her attacker, though not by name.

In addressing the jury, counsel for the prosecution relied upon the victim's assertion that it was the face of the appellant that she saw leaning over her that night. The prosecutor relied upon that assertion some four times in the closing address to the jury. The other evidence emphasised, of course, was the presence of the appellant's thumb print on the window frame and the less than credible explanation given by the appellant for being there. Opportunity to commit the offence by being nearby was also relied upon.
Given the prosecutor’s deliberate resort to an alleged positive act of identification at the time of the assault, the trial judge should have intervened to direct the jury not to regard the woman’s response to a question put in cross-examination to the effect that the attacker was not the appellant as an act of positive identification of her attacker at the time of the attack upon her. It seems very clear that the total response of the victim to the questions in cross-examination smacked of a reconstruction and inference against what she had been told by police that the person who came to her house soon after the attack was her attacker. If that was a proper view of the evidence the jury had to be told that there was no evidence of identification of the attacker open to them at all. Instead, in the charge to the jury the trial judge said very little himself. He simply reminded the jury of the arguments put to the jury by counsel. In that respect, therefore, the trial judge failed in his duty. He left it open to the jury to accept the victim’s answers as to identification of the attacker at the time of the attack. The jury should have been told that they could not regard any of the victim’s answers as an act of positive identification at the time of the attack upon her. At best, it was a belief of hers at the time of giving evidence that the appellant was her attacker against what she had been told. The only evidence that might have taken the matter further than that was again coming from the victim but not supported by any other evidence. That was that when the appellant came to her house soon after the attack upon her, she then recognised him as her attacker. Although she spoke of feeling distressed at that time there was no evidence from others then with her that supported her in that allegation.
Whenever the prosecution relies upon answers given by a victim in cross-examination as evidence of identification of the offender, a trial judge must warn the jury as to the dangers of convicting on that evidence where its reliability is disputed.[1] If there was any evidence capable of being used as identification evidence, the trial judge failed to draw the jury’s attention to the fact that the evidence was probably not evidence of identification at all. The jury has to have the benefit of a direction with the authority of the judge’s office behind it. All that was said by the trial judge in this case was to tell the jury it was a matter for them after he had summarised the approach adopted by the prosecution as a result of the answers in cross-examination and the criticisms made of it by the appellant’s counsel.
[1] Domican v The Queen (1991-1992) 173 CLR 555 at 561
The appeal should be allowed because of the course adopted by the prosecution with respect to an alleged act of identification and the failure of the trial judge to properly direct the jury as to the proper use of that evidence. If, contrary to my view, there was any evidence capable of being properly described as identification evidence, the failure by the trial judge to give specific directions as required by law calls for the setting aside of the conviction and an order for re-trial. I would so order.
LANDER J: I do not think it was inappropriate for the prosecutor to rely upon the evidence which the defence counsel, who was not counsel on appeal, should never have elicited in cross-examination. However, her reliance upon that evidence, which she read to the jury in her address, made it incumbent upon the trial judge to give the direction that Domican v The Queen[2] requires. His failure to give such a direction would have allowed the jury to rely upon the evidence of identification without the benefit of being aware that reliance upon that evidence was, in the circumstances of this case, dangerous. The evidence required a specific warning from the judge that it was dangerous to rely upon the evidence for the purpose of determining the appellant’s guilt. I agree the appeal should be allowed.
[2] cp (1991-1992) 173 CLR 555
WICKS J: I agree that the appeal should be allowed, the conviction set aside and the matter sent for re-trial for the reasons set out by Prior J.
PRIOR J: Our order will be appeal allowed, conviction set aside, appellant remanded for trial.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

Domican v The Queen (1991-1992) 173 CLR 555 at 561
cp (1991-1992) 173 CLR 555

[1998] SASC 7004

14 December 1998