R v Wilkie

[1994] QCA 107

IN THE COURT OF APPEAL	[1994] QCA 107
SUPREME COURT OF QUEENSLAND BRISBANE

C.A. No. 27 of 1994

[R. v. Wilkie]

THE QUEEN

v.

KENT ROBERT JOHN HERBERT WILKIE

Appellant

The Chief Justice
Mr Justice McPherson

Justice Kiefel

Judgment delivered 04/05/1994
Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED. REASONS FOR JUDGMENT ARE THE REASONS FOR THE COURT

CATCHWORDS:Criminal Law - Appeal against conviction - Identification evidence - Whether question of sufficiency of identification evidence to support verdict without circumstantial evidence relevant - Cross-examination by prosecution - Prosecution not calling witness to conversation referred to in cross-examination - Judge's directions.

Domican v. R. (1991-2) 173 C.L.R. 555.

COUNSEL: Mr Brian G. Devereaux for the Appellant

Mr P. Ridgway for the Respondent

SOLICITORS:  Legal Aid Office for the Appellant

Director of Prosecutions for the Respondent

HEARING DATE:12 April 1994

REASONS FOR JUDGMENT OF THE COURT

Judgment Delivered 4th May 1994

The appellant was convicted of one count of armed robbery and sentenced to six years' imprisonment. The robbery in question occurred on 9th June 1993 at the Red Rooster Store at Tugan. The robber wore a stocking over his face to a level below his nose. Of the three employees present when the robbery took place, one Mrs Christie was able to identify the accused from a photoboard which showed photographs of the head and shoulders of twelve men and included a photograph of the accused. The reliability and indeed the admissibility of that evidence identifying the accused was the principal ground on appeal.

The accused was arrested on 22 June and the identification was made on 5 July. Of the two female employees a Mrs Paton identified the photograph of the accused as being very similar to the person who had robbed the store. Mrs Christie however, almost without hesitation, pointed to a photograph of the accused as being that of the man who had held her at gunpoint. Mrs Christie was in the presence of the robber for some minutes, although not continuously, and was concerned to observe and recall matters which might later assist in a description, such as what he was wearing, how tall and how old he was. She had been present when a robbery had previously taken place. She was able to give a reasonably detailed account of the robber's clothing and indeed one aspect of this evidence has other importance as we shall refer. It was submitted that the evidence showed that Mrs Christie was concentrating on features of dress and that her evidence of details of his facial features, her memory of which founded the basis for the later identification, could not be regarded as sufficient. The ability of a witness to convey an image in words may not of course always mean that the image actually retained by them is not adequate. Mrs Christie was able to describe the robber's age, the state of his beard and complexion. Whilst she conceded that features such as his nose were distorted to an extent by the stocking she was adamant that she had an unforgettable impression of his face and that the stocking did not hinder this. She was in no doubt in her choice of the accused's photograph when the photographs were placed before her.

There was other circumstantial evidence admitted. The appellant had been staying at a unit some hundreds of metres from the store in question for a few weeks prior to the robbery. He left the unit that day to stay at a nearby motel. He returned, he told the police, only about half an hour prior to the time that the robbery occurred and had not been at the unit since. However in the room in which he had stayed a gun, similar to that used in the robbery, was found placed in a bag said to belong to the accused. The bag was identified as belonging to him. Overalls also found were of a similar type and colour to those worn by the robber. They had patches on them. Mrs Christie had observed a patch on the right leg of overalls worn by the robber. The overalls found at the unit were identified by an occupant of the unit as ones previously worn by the appellant and which had been washed at the unit. A stocking, ammunition cartridges, and masking tape were also found in this room. The stocking was examined by a forensic expert and found to have hairs present. The expert also examined the appellant's hair which was found to have a particular feature, a rare distribution pattern of pigment. The hairs in the stocking also had this feature. The expert described these hairs as "very very remarkably similar" to those of the accused.

It was submitted that this Court should undertake an exercise of assessing the identification evidence alone and the other, and circumstantial, evidence separately. The submission proceeded, that if the identification evidence itself was not sufficient to support a verdict then, unless the rest of the evidence could have itself supported a conviction, there must be a retrial. Domican v. The Queen (1991-2) 173 C.L.R. 555, 565 was cited as authority for this proposition. A reference to the passage relied upon does not however suggest such an approach. Their Honours said:

"A Trial Judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused . . . . . The Judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a Trial Judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused . . . . . . Of course, the other evidence in the case may be so compelling that a Court of Criminal Appeal will concluded that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused."

In this case the evidence of Christie identifying the accused could not be regarded as so distant from the robbery in time or on any other basis as to be unreliable, and was properly admitted. Warnings as required by Domican's case were given by His Honour to the jury, and counsel for the appellant did not submit otherwise. In these circumstances it is neither necessary nor indeed appropriate to consider whether the jury "must inevitably have convicted the accused independently of the identification evidence." Here the evidence before the jury included the identification evidence of Christie and of Paton together with the other, and substantial, circumstantial evidence.

The second ground concerns questions arising in the cross-examination of the accused when he gave evidence on his own behalf. It was suggested to him in cross-examination that he spoke to a third person, Rushbrook, and asked Rushbrook to provide a false alibi. The accused had not given notice of any alibi. He substantially denied the accusation although at one point he conceded he may have said words to the effect that he sought help, but it would seem in a context not concerning an alibi.

Whilst the general principle is that the prosecution ought to present its case completely: see e.g. Shaw v. The Queen (1952) 85 C.L.R. 365, 379 this is subject to the calling of evidence in rebuttal and also to the right to cross-examination as to credit. This is not a case however where the Court is concerned, as it was in Shaw v. The Queen and Killick v. The Queen (1981) 147 C.L.R. 565, as to whether the Crown ought to have been permitted to call rebuttal evidence or split its case on an issue. The Crown did, subsequently, foreshadow during argument in the absence of the jury, that it would seek to call Rushbrook in rebuttal but this course was not pursued and his Honour did not have to rule upon it. At its highest the use to which this part of the cross-examination could have been put was as to the accused's credit. Whatever misapprehension the jury might have had that the questions in cross-examination suggested that a conversation had taken place would have been dispelled by his Honour's directions with respect to this evidence. The following morning, and at a very early stage of the summing-up his Honour referred to this questioning of the accused and explained, correctly and in clear terms, the inferences which might be drawn particularly given the failure of the Crown to call Rushbrook. In these circumstances we do not consider that any injustice or unfairness to the accused is shown to have resulted.

The sentence imposed was clearly within a range appropriate to this offence.

The appeal against conviction is dismissed. The application for leave to appeal against

sentence is refused.