R v White - [2011] SASCFC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHITE
[2011] SASCFC 89
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
19 August 2011
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
Appeal against conviction - appellant charged and found guilty by majority jury verdict of the offence of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) - aggravating factors were that the appellant committed the offence in company with another person and that the appellant used an offensive weapon - trial involved circumstantial evidence in relation to identify of appellant.
Whether the trial judge erred in admitting into evidence the evidence of text messages from the mobile phone of the co-accused to establish a link between the co-offenders - whether the trial judge failed to give adequate directions to the jury concerning identification evidence.
Held: Appeal dismissed - trial judge correct to admit the evidence of the text messages for limited non-hearsay use - directions issued by trial judge to the jury concerning the identification evidence were adequate in the circumstances.
Criminal Law Consolidation Act 1935 (SA) s 137(1); Evidence Act 1929 (SA) s 59B, referred to.
Domican v R (1992) 173 CLR 555, applied.
Kanaan v R [2006] NSWCCA 109, discussed.
R v Sparrow [2009] SASC 206, considered.

R v WHITE
[2011] SASCFC 89

NYLAND J. I agree that permission to appeal should be granted but the appeal should be dismissed for the reasons expressed by Anderson J.
ANDERSON J.
Introduction
This is an application for permission to appeal against conviction. Permission to appeal was refused by a single judge of the Supreme Court on 13 May 2011. The Full Court heard the application and the appeal at the same time.
The appellant, Hayden David White, was jointly charged on information with a second person, CVE, with the offence of Aggravated Robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence allege that the appellant and CVE on 8 May 2010 at Surrey Downs used force against the complainant in order to commit the theft of a wallet, cash, keys and bank and identification cards in the sum of approximately $150.00. It is further alleged that they committed the offence in company with each other and another person. It is further alleged that the appellant used an offensive weapon, namely a shotgun, when committing the offence.
The appellant was convicted of the offence of aggravated robbery by a majority jury verdict following a trial in the District Court. The maximum penalty for the offence is life imprisonment.
The only issue at trial in relation to the appellant was that of identification. The issues on appeal are whether the trial judge erred in admitting certain evidence before the jury and whether the trial judge failed to give adequate directions to the jury concerning identification evidence.
Background
The prosecution led evidence at trial that late in the evening of 7 May 2010 two persons, one male and one female, attended the residential premises of the complainant. Upon hearing a knock at the front door, the complainant opened the front door. It was dark and the complainant used a torch for illumination. The only other illumination in the house was in the kitchen and that was with candles.
Outside were two persons, one male and one female. The complainant recognised the female offender as CVE but did not know the male offender. The complainant and CVE had met on a few occasions and had smoked marijuana together. The two offenders entered the complainant’s house and made their way into the kitchen with the complainant. The male offender demanded to know what type of drugs the complainant had in the house. The complainant’s house had been raided by police some weeks earlier and approximately 50 cannabis plants had been seized. The complainant told the male offender that he only had a small amount of cannabis and no other drugs. The male offender became agitated and accused the complainant of lying and concealing additional drugs.
After some further discussion, the male offender produced a shotgun with which he then threatened the complainant. At this point CVE left the house. This occurred at approximately 2.00 am on 8 May 2010. The male offender threatened to take the complainant hostage and forced the complainant to leave the house with him. After further discussion, the male offender left the complainant’s house taking with him the complainant’s wallet, cash keys and bank and identification cards in the sum of approximately $150.00.
The complainant reported the matter to police some 18 hours after the offenders left the premises. Six days later on 14 May 2010, the complainant participated in a photographic identification process conducted by the police. The complainant identified photograph 7 in a folder of photographs as being a photograph of the male offender. Photograph 7 is a photograph of the appellant.
The prosecution led circumstantial evidence to link the appellant to the crime and in particular to CVE. Such circumstantial evidence included evidence of the contact “Haydez” saved in CVE’s mobile phone and a reference to “Hayden” in one of the text messages on CVE’s mobile phone.
Grounds of appeal
The grounds of appeal raised by the appellant are:
1.The learned trial judge erred in admitting as evidence before the jury the existence of text messages contained in the phone of CVE.
2.The learned trial judge erred by finding that his discretion was not enlivened to exclude the evidence of photo board identification.
3.The learned trial judge failed to give adequate directions concerning identification evidence.
Ground 2 was not pursued by the appellant.
Admission of Mobile Phone Evidence
At trial, the prosecution led evidence from the investigating officer that:
(a)CVE’s mobile phone was seized by police on 8 May 2010;
(b)On 10 May 2010 police looked through the mobile phone and found a contact “Haydez”;
(c)Four out of twelve outgoing messages saved on the phone were sent to “Haydez” and were sent on 7 May 2010;
(d)One out of nineteen incoming messages saved on the phone was from “Haydez” (at 12.52 am on 8 May 2010);
(e)One incoming message on the phone had the name “Hayden” within the text; and
(f)The clock on the phone was 5 hours and 20 minutes fast.
Counsel for the appellant objected at a voir dire hearing to the evidence of the text messages on the basis of a failure to comply with s 59B of the Evidence Act 1929 (SA) and on the basis that the text messages were relied upon for a hearsay purpose. The prosecution conceded that the mobile telephone was a computer for the purposes of s 59B of the Evidence Act and not admissible under this section, but maintained that the text messages were still admissible at common law.
The learned trial judge ruled after the voir dire hearing that the evidence of the content of the text messages, which was hearsay evidence, was to be excluded from the trial. His Honour stated:
For those reasons, I would exclude from the trial evidence of the text messages on [CVE’s] mobile phone, that is, all of them, and any evidence that relies on those text messages….
Submissions of Counsel regarding Mobile Phone Evidence
Counsel for the appellant, Mr Graham, submits that the trial judge erred in admitting as evidence before the Jury the existence of text messages and the saved contact “Haydez” contained in CVE’s mobile phone. Mr Graham submits the prosecution led this evidence for the purpose of establishing a link between the appellant and CVE. He argues that linking the two accused by the text messages and the saved contact is a hearsay use as the process relies on the truth of an out of court identification of the owner of the telephone number.
Mr Graham argues that the evidence of the contact saved on the phone is insufficient to give rise to evidence of an association between the appellant and CVE as:
·There is no evidence that the phone number saved to the contact Haydez belonged to the appellant;
·There is no evidence as to when the Haydez was stored to the contact;
·The phone was found in possession of the appellant;
·Large amount of numbers can be stored in a phone; and
·There was no other evidence of association between the appellant and CVE.
Mr Graham submits in the alternative that if the messages have an original use they should have been excluded as more prejudicial than probative. He submitted that the probative value of the messages was slight as there is no evidence that the phone number belonged to the appellant and the messages were the only piece of circumstantial evidence linking the two accused. It was further submitted that the messages were prejudicial because the appellant had no means to challenge the veracity of the evidence or cross examine to establish the context they were made in or whom they were sent to.
It was agreed by Mr Graham during this appeal that the mobile phone in question belongs to CVE, the co-accused. However, it is an agreed fact from the trial that the phone number stored in CVE’s mobile telephone for “Haydez” was not registered to Hayden White.
Mr Illingworth, for the respondent, submits that it is the respondent’s position there was no point leading any evidence about phone numbers. It is submitted that the respondent was simply leading evidence for the purpose of demonstrating a link between CVE and a person called Haydez and a person called Hayden.
Mr Illingworth submits that the trial judge did not err in admitting the text messages and the saved contact “Haydez” into evidence. The evidence was not admitted for a hearsay purpose, but was limited to evidence of a connection between CVE and a person called “Haydez” or “Hayden”, which the prosecution asked the jury to infer referred to the appellant. Mr Illingworth submitted that s 59B of the Evidence Act is not the only route available to the admissibility of the evidence, and the evidence was rightly admitted at common law for the reasons described in terms of being circumstantial evidence.
In my view, the trial judge was correct to admit the evidence of the text messages for the limited purpose described above. The evidence of the text messages was not led as to the truth of its contents, but only as circumstantial evidence that there was a link between CVE and a person called “Haydez” or “Hayden” who may or may not be the appellant. The evidence is relevant, probative and is part of the appellant’s circumstantial case. There is no hearsay use. The truth of whether the contact “Haydez” or “Hayden” saved in CVE’s phone is the appellant is not relied upon. Rather, it is open to the jury to infer from considering all the circumstantial evidence that CVE is associated with a person called Hayden who is the appellant. I would dismiss this ground of appeal.
Principles Concerning Identification Evidence
As discussed earlier, the evidence of identification was central to the prosecution case at trial. In a case such as this, the jury must be warned of the dangers of convicting on identification evidence where its reliability is disputed. The terms of the warning need not follow any particular formula but must be appropriate to the facts of the case: see Domican v R (1992) 173 CLR 555 at 561-562.
When discussing the adequacy of directions on identification, the High Court in Domican stated at 561-562:
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 (9) Kelleher v. The Queen [1974] HCA 48; (1974) 131 CLR 534, at p 551; Reg. v.Turnbull (1977) QB 224, at p 228; Reg. v. Burchielli (1981) VR 611, at pp 616-619; Reg. v. Bartels (1986) 44 SASR 260, at pp 270-271. The terms of the warning need not follow any particular formula (10) Reg. v. De-Cressac (1985) 1 NSWLR 381, at p 384; Finn (1988) 34 A Crim R 425, at pp 435-436. But it must be cogent and effective (11) Reg. v. Dickson (1983) 1 VR 227, at p 230; Reid (Junior) v. The Queen (1990) 1 AC 363, at p 380. It must be appropriate to the circumstances of the case (12) Reg. v. Aziz (1982) 2 NSWLR 322, at p 328; Allen (1984) 16 A Crim R 441, at pp 444-445. 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 (13) Smith v. The Queen (1990) 64 ALJR 588. A warning in general terms is insufficient (14) Kelleher (1974) 131 CLR, at p 551. The attention of the jury “should be drawn to any weaknesses in the identification evidence” (15) ibid. 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(16) Davies and Cody v. The King (1937) 57 CLR 170, at pp 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.
[Footnotes omitted]
As it is an essential issue in the appeal, it is appropriate to set out the portion of the trial judge’s summing up regarding the use of the identification evidence:
I now come to the photographic identification evidence. This was the evidence whereby Mr Mark Mullen chose, by point to, photograph 7 in the folder of photographs. Photograph 7 is a photograph of the accused Hayden White.
Apart from the evidence as to his photographic identification Mr Mullen was asked some questions in this trial about the appearance of the man that came to his house that night. I do not propose to go through all that evidence. Some of it has been referred to by counsel. You may take into account that evidence, including what Mr Mullen apparently may have said to police soon after the incident, when you are considering all the evidence, including the photographic identification evidence.
You should, however, approach the photographic identification evidence with caution. The reason is because it is easy for an honest witness to make a mistaken identification and experience has shown that miscarriages of justice have occurred as a result. Witnesses can be mistaken, even though quite sure of their identifications. A mistaken witness who is sure of an identification can be a convincing witness and therein lines considerable danger.
The ability to form and retain an accurate impression of a culprit, including his physical features and appearance, his dress or any other distinctive feature, may be affected by many factors, including the witness’s involvement in the incident, as well as the frailty of human observation and memory and a tendency to reconstruct events in the mind over a period of time.
You have probably had experience in your own lives of mistakes as to people’s identity. You may have experienced thinking that you saw someone in the supermarket, for example, only to find that it was not the person you thought it was at all. That can happen even when the person is previously known, even well known, to the observer. The risk of error is much greater where the person is a stranger.
You must carefully examine the evidence of Mark Mullen’s photographic identification of the accused Hayden White. In doing so you should examine carefully the circumstances in which the identification was made. How long did the witness have the person identified under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused, Mr White, before? Was there anything distinctive about the appearance of the person identified or the accused? How long elapsed between the observation of the person identified and the subsequent identification to the police? Was there any material discrepancies between the description given to the police and the accused’s actual appearance? Did anything occur between the time of the observation of the person identified and the identification to the police which could have contaminated the witness’s memory of the person identified? Experience has shown that people can pick out a photograph of a person who has been seen before or since a particular incident, like the one said to have occurred at Mark Mullen’s house, as the person previously or subsequently seen rather than the person seen at the incident.
Mr Mullen’s identification was done from photographs. The array of photographs presented to him by the police included one of the accused, Hayden White. There was not an identification parade where the accused, Hayden White, and other men were present and where the witness could see actually people in three dimensions.
An identification line-up is a better and more satisfactory form of identification than one done from photographs. Sometimes, however, an identification line-up does not occur. Here, it did not.
The next best type of identification occurred here and that was from photographs. Photographs are, of course, static and two-dimensional and usually do not give a realistic idea of a person’s physique. There may also be a risk, as I mentioned earlier, that when a witness looks at the photographs some time after the incident he may have subconsciously associated the photograph identified with someone he had seen before or after the incident rather than what he actually saw on the night. Remember this when assessing the evidence.
You will also consider the manner in which the witness gave evidence, including cross-examination, in forming a judgment about his reliability. You will also consider the video of the identification procedure with Mark Mullen, Exhibit P3.
Whilst I am required to alert you to the dangers attendant upon acting on this identification evidence, I must, however, also say to you that if, after a careful examination of the evidence of the identification witness, and after paying due heed to the warning which I have given, you are satisfied beyond reasonable doubt about the correctness of the identification of the accused Hayden White as the offender, then you are entitled to act upon the evidence of identification.
You must be satisfied beyond reasonable doubt about the accuracy and reliability of the photographic identification of the accused, Hayden White, by Mark Mullen before acting upon that evidence. You must be so satisfied before you consider that evidence with any circumstantial evidence of which you might be satisfied which you consider links an accused to the crime. Such circumstantial evidence includes, but is not limited to, the evidence of the contact ‘Haydey’ in Ms Van Eck’s phone and reference to ‘Hayden’ in one of the text messages on her phone, which the Crown asks you to infer refer to Mr White, and the descriptions of the male in the kitchen by Mr Mullen.
The issue to be determined is whether this direction was adequate in all the circumstances or whether the trial judge failed to give adequate directions concerning identification evidence such that there was a miscarriage of justice.
Submissions of Counsel regarding Identification Evidence
Mr Graham submits that the trial judge erred in failing to give adequate directions to the jury concerning identification evidence. Mr Graham conceded that the trial judge gave general warnings about identification and that the trial judge directed the jury to examine the circumstances in which the identification was made. However, it is submitted that the trial judge did not give directions appropriate to the circumstances of the case.

It is submitted that the trial judge gave a general warning about the identification evidence by posing a series of questions for the jury, including asking them to consider what light the offender was observed under and the length of time that had elapsed between the observation of the person identified and the subsequent identification to the police. Mr Graham submits that the trial judge should have guided the jury to the specific evidence concerning the circumstances of the identification.
Mr Graham argues that the attention of the jury should have been drawn to any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. Appropriate warnings about unreliability should then have followed. In particular, it is submitted that the trial judge should have identified the complainant’s cannabis use before and after the robbery, the stress the complainant was under, the complainant’s mental health and the fact the complainant was not wearing the glasses which he was prescribed.
Mr Graham further submits that the trial judge erred in criticising the defence counsel’s arguments in relation to factors which the defence said undermined the reliability of the identification evidence. The trial judge stated:
Mr Graham included in his address to you references to Mr Mullen’s cannabis use. He referred to it as ‘the elephant in the room’. He said that when Mr Mullen had said that Mr Mullen smoked two ounces a week he, Mr Graham, thought that was pretty impressive, but he, Mr Graham, thought that four to five ounces a week was absolutely amazing.
What Mr Graham submitted to you is not evidence. Mr Graham cannot give evidence before you, the jury. What Mr Graham thought impressive or amazing is irrelevant and you should ignore it. Mr Graham continued that some of you may have had experience with people who have used marijuana and know how it affects them and affects their brains. He submitted that you might think that it is inevitable that using that much marijuana over that period of time is bound to affect Mr Mullen’s brain in some way.
…
Similarly, Mr Graham made submissions to you as to Mr Mullen’s mental health. He submitted that you might have concerns about his mental health and his mental health is a biological process of his brain. He submitted you might fairly think that that could affect the reliability of Mr Mullen’s observations. Mr Graham told you that he is not a psychiatrist so he could not give an assessment of what issues Mr Mullen might have so far as his mental health is concerned. But you also are not psychiatrists and, again, psychiatric evidence could have been put before you. It was not.
Accordingly, you might be less likely to draw inferences which may have no basis in medicine or science, that Mr Mullen’s reliability as to his observations in his evidence before you were affected by whatever mental issues he had.
…
Lastly, so far as Mr Graham’s address to you is concerned, he referred to Mr Mullen not having his glasses on that night and submitted that may affect his reliability so far as his observations are concerned. You must remember that Mr Mullen’s evidence was to the effect that he uses glasses for close reading. He did not otherwise use glasses.
It is submitted that whilst the trial judge should have given his authority to the proposition that certain factors may have affected the reliability of the identification evidence, the criticisms of defence counsel’s arguments had the opposite effect. I do not agree with Mr Graham that the trial judge erred in not giving appropriate warnings to the jury regarding factors that may have affected the complainant’s identification evidence. I consider the trial judge’s directions regarding deficiencies in Mr Graham’s arguments at trial were appropriate.
Finally, Mr Graham submits that the trial judge erred by not directing the jury in relation to “negative identification/recognition evidence”. There was evidence before the jury at trial that the complainant had told police soon after the robbery that he believed at the time of the robbery that he had met the offender before in prison. It was an agreed fact that the complainant had never been in custody with the appellant. Mr Graham submitted that the appropriate direction which the trial judge should have given was as stated in Kanaan v R [2006] NSWCCA 109 where the court stated at [133]:
[133]What is required in relation to negative identification evidence is, therefore, that the trial judge ensures by appropriate directions that the jury understands that:
1.    as the Crown must establish beyond reasonable doubt that it was the accused who committed the offence charged or who was involved in its commission (as the case may be), the negative identification evidence raises a doubt as to that fact,
2.    the Crown must eliminate such doubt in order to succeed in establishing that fact, and
3.    if there remains a reasonable possibility that the negative identification evidence is correct, the Crown case against the accused must fail.
His Honour states at page 12 of his summing up:
Apart from the evidence as to his photographic identification Mr Mullen was asked some questions in this trial about the appearance of the man that came to his house that night. I do not propose to go through all that evidence. Some of it has been referred to by counsel. You may take into account that evidence, including what Mr Mullen apparently may have said to police soon after the incident, when you are considering all the evidence, including the photographic identification evidence.
In my view, the jury would have clearly understood what His Honour was referring to when he mentioned the complainant’s statement to police. Because of the duration of the trial this evidence would have been fresh in the jury’s mind. In my view the trial judge clearly directed the jury as to the onus of proving beyond reasonable doubt that it was the appellant who committed the offence.
Mr Illingworth submits the trial judge’s directions were adequate and emphasised the relevant matters as set out in R v Sparrow [2009] SASC 206. The court in Sparrow stated in relation to the adequacy of a direction on identification at [22]:
[22]The question to be determined is whether this direction was adequate in all the circumstances or whether there was a risk of miscarriage of justice as a result of some inadequacy in this direction.
In Sparrow, Gray J, with whom Bleby and David JJ agreed, summarised the directions given by the trial judge in that case at [25]:
[25]The jury in the present proceedings were directed as to the caution required in approaching identification evidence, the risk of mistake and that miscarriages of justice have occurred as a result of such mistakes, the considerable danger associated with mistaken identification, the frailty of human observation, the possibility of reconstruction and the need to heed the warning given. Further, the circumstances in which the victim had made his observations were highlighted for the jury: the period of time during which the observation was made, the lighting conditions, the continuity of his observations, the fact that the offender was wearing a hood, aspects of the victim’s description of the offender that did not match the defendant and the time that passed between the incident and the identification procedure. True it is that no reference was made to the disadvantages associated with the two-dimensional and static nature of photographs. However, sufficient was said by the trial Judge in what was a strong and otherwise comprehensive direction which identified the possible risks of false identification appropriate to the circumstances of this case. As earlier observed, the jury were reminded of the defence criticisms of the evidence. The directions given in this case, as set out earlier in these reasons, in my view, were appropriate.
[Footnote omitted]
As in Sparrow, the trial judge in this instance issued relevant directions including:
(a) The caution required in approaching such evidence;
(b) The potential for an honest witness to make a mistaken identification;
(c)That miscarriages have occurred as a consequence of mistaken identification; and
(d)The impact of the witness' involvement in the event, together with the frailty of human observation and memory on the ability to form and retain an accurate impression of the offender.
It is true that the specific circumstances in which the complainant made his observations were not highlighted by the trial judge. However, the jury was directed by the trial judge to carefully examine a number of matters relevant to the circumstances in which the identification was made including the duration of the observations; the distance; the lighting; whether the observation was impeded in anyway; whether the witness had seen the appellant before; whether there was anything distinctive about the appearance of the person identified or the appellant; the time that elapsed between the observations and the subsequent identification; whether there were any material discrepancies between the description given to police and the appellant's appearance; the risk that a person seen before or since the incident has been identified rather than the person actually involved; and that an identification parade is a better and more satisfactory form of identification than one done from photographs.
I agree with Mr Illingworth that in these circumstances these directions were sufficient, given that the trial was conducted over only three days, and the evidence was fresh in the minds of the jury.
Conclusion
In my view the directions given in this case, as set out at [25], were appropriate. I would grant permission to appeal but I would dismiss the appeal.
DAVID J. I would grant permission to appeal but would dismiss the appeal. I agree with the reasons of Anderson J.