R v Trudgett

[2008] NSWCCA 62

Reported Decision: 70 NSWLR 696

New South Wales

Court of Criminal Appeal

CITATION:	Trudgett v R [2008] NSWCCA 62 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27 February 2008
JUDGMENT DATE:	25 March 2008
JUDGMENT OF:	Spigelman CJ at 1; Hulme J at 53; Latham J at 54
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – evidence law – identification and recognition evidence – whether direction to jury required – Evidence Act 1995, s 116 - WORDS & PHRASES – “identification evidence”
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Rules 1952 Evidence Act 1995
CASES CITED:	Davies and Cody v The King (1937) 57 CLR 170 Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 Domican v The Queen (1992) 173 CLR 555 Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 R v Clarke (1997) 97 A Crim R 414 R v Demiroz [2003] NSWCCA 146 R v Spero [2006] VSCA 58; (2006) 13 VR 225 R v Turnbull [1977] QB 224 Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
PARTIES:	Michael Beverley Trudgett (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/5281
COUNSEL:	S Corish (Appellant) J Dwyer (Respondent)
SOLICITORS:	Legal Aid Commission (NSW) (Appellant) Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 06/61/0011
LOWER COURT JUDICIAL OFFICER:	Hulme SC DCJ
LOWER COURT DATE OF DECISION:	21 November 2006

CCA 2006/00005281

SPIGELMAN CJ
HULME J
LATHAM J

Tuesday 25 March 2008

Michael Beverley TRUDGETT v REGINA

The complainant attended a party hosted by the appellant in the backyard of his residence. A mutual friend introduced them. Although not his real name, the appellant was introduced as “Adam”. He and the complainant entered the house and after a period of time she emerged, distressed and crying. She reported to police that she had been sexually assaulted by “Adam”. Police arrested and charged the appellant with one count of sexual intercourse without consent. The complainant was never asked to identify the person by photographic array or by an identification parade or in court. At trial there was no dispute that the complainant had been sexually assaulted. The only matter in dispute was whether the appellant was the offender. A jury did so find.

The appellant appeals his conviction, arguing that a miscarriage of justice has occurred for the reason that the witnesses’ evidence is identification evidence and, accordingly, the trial judge was required to provide a jury direction under s 116 of the Evidence Act 1995 warning them of the dangers of such evidence. The Crown submits that such evidence is not identification evidence and, accordingly, that no such direction was required. It further relies upon the proviso and r 4.

HELD
Per Spigelman CJ, Hulme and Latham JJ agreeing

1 The definition of “identification evidence” contained in the Dictionary of the Evidence Act 1995 extends to recognition evidence. [23]–[24], [27], [30]–[32], [53], [54]

Davies and Cody v The King (1937) 57 CLR 170; R v Turnbull [1977] QB 224; R v Spero [2006] VSCA 58; (2006) 13 VR 225; Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233; referred to.


2 The complainant gave no identification evidence within the meaning of the Dictionary definition. [35]–[36], [53], [54]

3 The evidence of introduction is not identification evidence within the meaning of the Act. [37]–[38], [53], [54]

4 The evidence about the appellant’s movements is not identification evidence within the meaning of the Act because:

(a) The Dictionary definition of identification evidence is concerned with evidence of the accused’s direct, and not indirect, presence. [38], [50], [53], [54]
(b) A jury direction warning of the dangers of accepting identification evidence is not required where the presence of the accused at or about the time the offence was committed is not in issue. [43], [49]–[51], [53], [54]
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 applied.

CCA 2006/00005281

SPIGELMAN CJ
HULME J
LATHAM J

Tuesday 25 March 2008

Michael Beverley TRUDGETT v REGINA

Judgment

1 SPIGELMAN CJ: On 25 August 2006 the appellant was found guilty after trial by jury of one charge of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. At the trial there was no dispute that the complainant had been sexually assaulted. The only matter in dispute was whether or not the appellant was the offender.

2 There is only one ground of appeal as follows:

“The trial miscarried by reason of the learned trial judge failing to direct the jury in relation to the dangers of identification evidence as required by s 116 of the Evidence Act 1995.”

3 That section provides:

“116(1) If identification evidence has been admitted, the judge is to inform the jury:
(a) that there is a special need for caution before accepting identification evidence; and
(b) of the reasons for that need for caution, both generally and in the circumstances of the case.
(2) It is not necessary that a particular form of words be used in so informing the jury.”

4 Section 116 is contained in Pt 3.9 of the Evidence Act entitled Identification Evidence. In that Part s 114 is concerned with the exclusion of visual identification evidence and s 115 is concerned with the exclusion of evidence of identification by pictures.

5 In the Dictionary to the Act the following definition appears:

“ identification evidence means evidence that is:
(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where;
(i) the offence for which the defendant is being prosecuted was committed; or
(ii) an act connected to that offence was done;
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
(b) a report (whether oral or in writing) of such an assertion.”

6 The evidence at trial by the complainant was that she had been sexually assaulted by a person who had been introduced to her by the name of “Adam”. Her evidence was that the offender went into the house with her and assaulted her there. She ran out after the assault distressed and crying. She described the person but did not identify him. She was never asked to identify the person by the procedure of a photographic array or by an identification parade or in court.

7 Critical evidence in the case against the appellant came from witnesses who said that it was he who went into the house with the complainant and who emerged from the house at about the same time as her. The Crown contends that each of those witnesses knew the appellant by name. One of the witnesses said that he had introduced the appellant to the complainant by the name of “Adam”, although he knew it was not his name.

8 In his summing-up to the jury the trial judge summarised the relevant evidence as follows:

“Very briefly, [GC] – he said in the course of his evidence that the accused was present at the house at the relevant time. [SN] said that it was he who introduced the accused to [Ms W] as being Adam. [DM] – he gave evidence that [Ms W] went inside the house, he thought for a drink and that he thought the accused was inside the house. He said that [Ms W] came outside upset and crying and that the accused came out a short time later saying something along the lines of ‘You may as well call it rape’. [SC] – he said that he saw [Ms W] walk inside the house with the accused and that later she ran out crying and that the accused came out of the house a bit later. That very briefly – and probably not doing the Crown case justice – is the nature of the evidence the Crown relies upon to prove beyond reasonable doubt that it was the accused who was the ‘Adam’ that sexually assaulted [Ms W].” (names replaced)


His Honour was not asked to, and did not, give the jury a warning in accordance with s 116.

Issues on the Appeal

9 The appellant submits that, as acknowledged during the course of the trial and in the trial judge’s instructions to the jury, the critical issue in the case was whether or not the person who sexually assaulted the complainant was the accused.

10 The appellant relies on the definition of “identification evidence” set out above. He submits that the relevant assertion was that the appellant was or resembles “a person”, namely the perpetrator, and was present when the offence was committed. Such assertions were made by witnesses who testified:

· that the appellant was at the party;

· that the appellant was introduced to the complainant;

· that the appellant was introduced as “Adam”;

· that the appellant entered and left the house where the assault occurred at the material time.

11 The appellant submits that the “truth” of each such assertion of identity was contested. He refers to Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at [19], [22], [53] and [94] and submits that, unlike that case, the issue of identification was in issue.

12 The appellant relies on the textual difference between s 116 and s 165, the latter providing that an appropriate warning should be given “if a party so requests”. He submits that the requirement for a direction under s 116 is mandatory, particularly in circumstances where “identification” was the central issue of a trial. The appellant relies on the judgment of this Court in R v Demiroz [2003] NSWCCA 146.

13 The appellant accepts that no request was made by counsel for the accused for any direction under s 116. The appellant accepts that he needs leave under r 4 of the Criminal Appeal Rules. He submits that the centrality of the issue is such that leave should be granted, and that the failure to give the direction required by s 116 was a miscarriage of justice.

14 The Crown submits that the evidence does not fall within the definition of identification evidence in the Evidence Act. It submits that all of the witnesses, other than the complainant, knew the appellant personally by name and had attended his home on several occasions before the night of the assault on the complainant. None of them took part in identification procedures. All were giving direct evidence of their observations on the night in question.

15 Alternatively, the Crown seeks to distinguish the judgment in Demiroz on the basis that the appellant in that case had been identified at or near the place of the offence by witnesses who had no prior knowledge of him.

16 The Crown emphasises that witnesses gave evidence which, if accepted, proved that the appellant had been introduced to the complainant by the name of Adam, that he resided in the premises where the offence occurred, that he entered the house with the complainant, that they both emerged some time later when the complainant was distressed and that, at that time, the appellant said words that could amount to an admission. All of these witnesses knew the appellant personally and had visited his home. The issue at trial was their reliability, because of the fact that some witnesses had subsequently fallen out with the appellant and their recollection of the events was faulty because of alcohol and marijuana consumption at the party.

17 The evidence also gave rise to the usual range of inconsistencies eg height, eye colour, sequence of events. These were quintessential jury matters.

18 The Crown submits that leave pursuant to r 4 should be refused. Alternatively, the Crown invokes the proviso.

Recognition Evidence

19 The Crown submissions assert that evidence by a person who knows the accused well is not “identification evidence” within the statutory definition. Such evidence is often called “recognition evidence”.

20 As the decision in Dhanhoa indicates, the literal words of the definition can lead to absurd results. This is a frequent occurrence when a flexible common law principle is forced into a rigid verbal formulation.

21 The correct approach to the use of statutory definitions was identified by McHugh J in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103]:

“[O]nce it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.”

22 This approach is consistent with how each judgment construed s 116 in Dhanhoa. I refer particularly to the reliance on the adversary system as a significant part of the context, qualifying a strict literal application of the words. (See Dhanhoa at [20], [22], [53].)

23 In order to determine whether the definition of identification evidence extends to recognition evidence, it is appropriate to focus on the words:

“… being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time.”

24 Recognition evidence is not “wholly” based on what the witness perceived at the time of the offence. However, it may be “partly” so based.

25 The distinction between “recognition” and “identification” was recognised in Davies and Cody v The King (1937) 57 CLR 170 where the High Court said in a joint judgment at 181:

“It is almost unnecessary to say that the amount of care and the nature of the precautions which should be taken when a potential witness is brought to identify an accused or suspected person must vary according to the familiarity of the witness with that person. It would be ridiculous … to deny the value or reliability of the identification if the witness’ knowledge of the prisoner arose from long and close association or from every day intercourse in business affairs.”

26 However, this analysis does not suggest that witnesses cannot err when purporting to recognise a person that they have known intimately and/or for a long time. I note particularly the observations of Lord Widgery CJ in R v Turnbull [1977] QB 224 at 228:

“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

(See also Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at [55].)

27 I note that the joint judgment in Domican v The Queen (1992) 173 CLR 555 referred to Turnbull with approval. (See at 561, fn 18.) Furthermore, consistently with the whole of the analysis in Turnbull at 228 (not just the part I have extracted), the High Court considered a list of relevant circumstances at 565 which commenced as follows:

“The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified …”

This indicates that a warning may be appropriate in a recognition case.

28 The development of the common law with respect to recognition evidence is set out by Redlich AJA, with whom Maxwell P and Buchanan JA agreed, in R v Spero [2006] VSCA 58; (2006) 13 VR 225 at [25]–[30]. His Honour concluded that, on the facts of that case (the complainant had known the applicant for 25 years) no warning was required in accordance with Domican v The Queen (1992) 173 CLR 555. Nevertheless, the requirements of s 116 and s 165 differ from, and in certain respects are stricter than, the directions required by Domican. (See R v Clarke (1997) 97 A Crim R 414 at 424–427.)

29 Plainly, recognition evidence does not suffer from all of the defects of identification evidence. However, it does share with such evidence the danger that a witness will propound his or her conclusion with force and conviction. Furthermore, both forms are also likely to be given special weight by a jury, even where its reliability is dubious.

30 Generally speaking, recognition evidence will be more reliable than identification evidence strictly so called. For example, the displacement effect and the rogues gallery effect would not appear to be material. That is not, however, sufficient to exclude it from the Dictionary definition and from s 116 as a category. Section 116 does not turn on any issue of reliability (cf s 165).

31 In my opinion, the Crown submission, that recognition evidence does not fall within the definition of “identification evidence” at all, should be rejected. (See also Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [68]–[69].)

32 Nevertheless, in accordance with the approach to reading in statutory definitions identified in Kelly v The Queen, quoted at [21] above, it is necessary to have in mind the immediate textual context. Evidence that has been admitted about the ‘presence’ of a person is to be subject to a jury direction both generally as to the “special need for caution” and, specifically, in the particular circumstances of a case. It will often be difficult to give content to the specific requirement where the witness knows the person, particularly where s/he knows the person well.

33 Notwithstanding the mandatory language of s 116, this consideration is likely to be of significance where, as here, r 4 applies or the proviso is invoked. Had I been of the opinion that s 116 was engaged, I would have applied r 4. However, for the following reasons, it is unnecessary to do so.

The Alleged Identification Evidence

34 The appellant characterised the evidence of the complainant as identification evidence. The complainant’s evidence included a physical description but, relevantly, was to the effect that the person who attacked her was introduced to her as “Adam” and that that was all she knew about him.

35 The complainant made no “assertion … to the effect that the” appellant “was, or resembles … a person”, namely the perpetrator. She gave no “identification evidence” within the meaning of the Dictionary definition.

36 In this regard, the appellant’s submissions involve a confused use of the word “identification”. Of course the evidence of the introduction, when combined with the evidence next to be considered, assisted the jury to “identify” the appellant as the assailant. However, that process is not “identification evidence” by a witness that has been “admitted” for purposes of s 116.

37 One witness said that he introduced the appellant to the complainant and did so under the name of “Adam”. This is evidence of what the witness said. It is not evidence of what the witness “saw, heard or otherwise perceived” and, accordingly, is also not “identification evidence” within the Dictionary definition. The same confusion appears as that referred to above.

38 Obviously, it is implicit in evidence to the effect, ‘I introduced X to Y’ that X and Y were there at the time. That is not, in my opinion, evidence of ‘presence’ within s 116. The long history of identification evidence indicates that the Dictionary definition is concerned with direct evidence of ‘presence’, not indirect evidence of the character involved in reciting the occurrence of an introduction.

39 A number of other witnesses gave express evidence that the appellant was present on the evening. The premises at which the events occurred were occupied by the appellant as his residence. Counsel who appeared for the appellant on this appeal accepted that he was present at the premises during the party.

40 At trial, save perhaps in one ambiguous question, none of the witnesses who testified about his presence were cross-examined with a suggestion to the contrary. However, there was an issue as to whether he had entered and left the house itself around the time of the offence.

41 One witness gave evidence that he thought the appellant was inside the house. This witness said he saw the complainant come out of the house in a distressed state and, shortly thereafter, saw the appellant who said: “You may as well say I raped you a couple of times?”.

42 A second witness said he saw the appellant go inside with the complainant and that 20 minutes later he saw the girl run out in a distressed state. He said he saw the appellant come out “a bit later”.

43 There was no issue at the trial about whether the appellant was present at the party held at his own residence. Dhanhoa is authority for the proposition that s 116 is not engaged, notwithstanding its literal terms, if there is no dispute about the identification evidence. (See at [19]–[22], [51], [53], [92]–[94].)

44 Furthermore, s 116 was not engaged in Dhanhoa, where the fact in issue was not the person’s presence on the night in question, but whether he was still present when the offence occurred. The defence case at trial was that the Appellant had been there on that night, but had left before the offence occurred.

45 As Gleeson CJ and Hayne J said:

“[9] … The critical question was whether the appellant was still in the flat when the attack occurred.”

46 Their Honours also said:

“[16] The identification evidence here in question was the assertion, in the evidence of the victim, … that the person shown in photograph No 8 (the appellant) was, or resembled, a person who was present at or about the time of the events … It was the assertion that the appellant was, or resembled, a man who was present at or about the time when the victim was attacked and then taken from his flat that constituted the identification evidence; not the detail of his alleged conduct. By the time the case was left to the jury, the area of dispute about that matter had been confined. The appellant did not dispute that he was present at the flat … his case was that he had departed shortly before the alleged events occurred. Having regard to the time intervals … on any view the appellant was present at or about the time when the offences were committed.”

47 Gleeson CJ and Hayne J concluded:

“[23] … [I]n the light of the appellant's evidence, the only question was whether the man in photograph No 8 was still there when the attack occurred, or whether he had left shortly before. It was not the reliability of the identification that was in dispute; it was the reliability of the account of the conduct of the person identified, and, in particular, of the evidence that such person remained with his three companions at all material times.”

48 The other judgments similarly concluded that the issue of whether the person, who had been present, remained there at the relevant time did not require a direction.

49 This conclusion in Dhanhoa is not consistent with an approach which applies the words of the Dictionary definition to evidence about an accused’s movements during the relevant period. By emphasising the words “at or about” the time of the offence, the reasoning in Dhanhoa led to the conclusion that once presence is accepted, the detail of presence at a specific time or location, is not relevantly in issue for the purposes of s 116.

50 In the present case, the evidence about the appellant’s entry into, and departure from, the house during the course of the party did not require a direction. First, like the evidence of the introduction discussed above, this is indirect evidence of ‘presence’ and s 116 is concerned with direct evidence. Secondly, his presence “at or about” the time of the offence was not in issue.

51 The circumstances under consideration are, in my opinion, analogous to those in Dhanhoa. Whether or not the appellant entered and left the house is, in my opinion, the same kind of issue as whether the appellant in Dhanhoa had left the unit before the assault. No direction was required with respect to this evidence.

52 The appeal should be dismissed.

53 HULME J: I agree with Spigelman CJ.

54 LATHAM J: I agree with Spigelman CJ.

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02/07/2013 - reference to s 110 of the Evidence Act 1995 changed to s 116 - Paragraph(s) headnote