Regina v F a P

[1999] NSWCCA 278

CITATION:	Regina v F A P [1999] NSWCCA 278
FILE NUMBER(S):	CCA 60380/98
HEARING DATE(S):	06/09/99
JUDGMENT DATE:	6 September 1999
PARTIES :	Regina (NSW) v F A P
JUDGMENT OF:	Meagher JA; James J; Sperling J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0089
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ

COUNSEL:	R Ellis (Crown) M Austin (Applicant)
SOLICITORS:	S E O'Connor (Crown) Walker Smith (Applicant)
CATCHWORDS:	Criminal Law and Procedure - identification - photographic identification - whether verdict unreasonable.
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60380/98

MEAGHER JA
JAMES J
SPERLING J

Monday 6 September 1999

F A P v REGINA
JUDGMENT

1   JAMES J: The appellant F A P has appealed against his conviction, after a trial in the District Court in June 1998 before His Honour Judge Gibson of Queens Counsel and a jury, on one count of robbery in circumstances of aggravation committed on Christmas Day 1997 in Forster, the circumstances of aggravation being the malicious infliction of actual bodily harm on the victim. His Honour Judge Gibson sentenced the appellant, pursuant to the Children (Criminal Proceedings) Act, to a control order for eighteen and a half months, to date from a date in June 1998. At the time the offence was allegedly committed and at the time he was sentenced, the appellant was a “child” for the purposes of that Act, being seventeen years old. His Honour recommended that, after the appellant had served six months of the control order, the Minister should give consideration to the appellant being released to the Young Offenders Diversionary Programme as conducted by a local Aboriginal Land Council. His Honour had arrived at the period of eighteen and a half months by deducing from a period of twenty-one months, which His Honour considered would otherwise have been an appropriate sentence, a period of two and a half months being equivalent to the time the appellant had spent in custody solely referrable to this matter before he was sentenced. The Court was informed that the appellant was in fact granted bail on 18 October 1998 pending the hearing of this appeal and that he remained at liberty until he was returned to custody a few days ago for a breach of the conditions of his bail.

2   The Crown case at the trial was that the appellant was one of three aboriginal youths, who shortly after 1.30 on the morning of Christmas Day 1997 assaulted and robbed a white youth, aged seventeen at the time of the trial, who was travelling home on his bicycle. At the trial there was no dispute that the victim had been robbed by three aboriginal youths and had sustained actual bodily harm. The only issue at the trial was whether the Crown could establish that the appellant, who was being tried alone, was one of the three offenders. The offender who the Crown alleged was the appellant had not been known to the victim before the offence was committed.

3   Before the trial commenced in the presence of the jury, a voir dire inquiry was held to determine the admissibility of evidence that on 5 January 1998 the victim had made a photographic identification of the appellant at the Forster Police Station in the presence of a police officer named Clarke. At the conclusion of the voir dire inquiry His Honour Judge Gibson held that evidence of the photographic identification was admissible. The correctness of his Honour's decision is challenged in the first ground of appeal against conviction. The trial then proceeded in the presence of the jury.

4   The only witnesses in the Crown case were the victim and Detective Clarke. The victim's evidence can be briefly summarised as follows. At about 1.30 on the morning of Christmas Day 1997 the victim left his brother's home on a bicycle, in order to return to his own home. As he was crossing an intersection in Forster three aboriginal youths came up to him and asked him for a cigarette. The victim recognised only one of the youths. The three youths positioned themselves around the victim's bicycle, so that one was in front of him, one was to his right and one was to his left. On the Crown case the youth on the victim's right was the appellant. One of the youths demanded money and the youth on the victim's right punched the victim a number of times, causing him to fall off his bicycle. After the victim fell to the ground, all three of the youths punched and kicked him. The youth on the victim's left removed the victim's wallet from one of his pockets. The wallet contained some personal papers. Photographs of the victim taken the following day showed marks on his face as a result of the assault. The victim reported the offence to the police. He gave a description of the offender who had been standing on his right, which included that he was fifteen to seventeen years old and that his head looked shaved.

5   On 5 January 1998 the victim attended Forster Police Station. He was shown three manila folders of photographs, each containing three photographs. The victim stated in his evidence in the trial that on 5 January 1998 he identified the middle photograph in the first folder and the top photograph in the second folder as being photographs of the youth who had been standing on his right. Both of these photographs were photographs of the appellant. The victim said that a difference between the appearance of the offender and the appearance of the person shown in these two photographs was that the offender had had a shaved head.

6   The victim maintained in his evidence that he had identified both photographs of the appellant in the folders as being photographs of the offender, notwithstanding that in a statement made on 5 January 1998 after he had looked at the photographs, he had said that he had identified only one photograph, being the photograph in the middle of the first folder.

7   Det Clarke gave evidence at the trial that on 5 January 1998 the victim had identified only the photograph in the middle of the first folder as being a photograph of one of the offenders. At the time of the photographic identification the appellant had had what Det Clarke described as a “number two” cut, that is a crew cut.

8   The appellant gave evidence in his own case. He said that he was living at Bunyah (38 Little Bunyah Street), which is some distance out of Forster, and had spent Christmas Eve 1997 at that address in Bunyah, watching videos. He had stayed up till 10 or 11 o'clock on Christmas Eve. He and a number of other persons living in the house had slept in the same room of the house. He had not got up until midday and had then gone with members of the family to spend Christmas Day at his grandfather's house in Forster. He agreed that his head was well shaved at the time of the trial but said that as at Christmas 1997 his hair was three inches long in parts. He said he had had his head shaved about a week before the trial commenced.

9   The appellant's father’s de facto wife Felicia Marr and her daughter by a previous relationship gave evidence in support of the appellant's alibi to the effect that each had spent the night of Christmas Eve 1997 at the house at Bunyah and that the appellant had been there.

10   The first ground of appeal against conviction was:-

That the trial Judge was in error in allowing identification evidence in this case to go to the jury.

11   The identification evidence referred to in the ground of appeal is the evidence of photographic identification of the appellant as being one of the offenders.

12   Earlier in this judgment I referred to the voir dire inquiry conducted into the admissibility of the evidence of photographic identification and the evidence given in the trial itself about the photographic identification. The first ground of appeal challenges the ruling of the trial Judge at the conclusion of the voir dire inquiry that evidence of the photographic identification should be admitted.

13   In the voir dire inquiry two principal submissions were made on behalf of the appellant. The first submission was based on s 115(2) of the Evidence Act. The second submission was based on ss 135 and 137 of the Evidence Act. On the hearing of the appeal the first submission has not been pressed and it is unnecessary to deal with the submission advanced at the trial which was based on s 115(2) of the Evidence Act.

14   Both ss 135 and 137 require a comparison between the probative value of some piece of evidence and the danger of unfair prejudice if the evidence is admitted. Section 137 provides that in criminal proceedings the Court must refuse to admit evidence adduced by the prosecution, if its probative value is outweighed by the danger of unfair prejudice to the accused.

15   Both in the voir dire inquiry and on this appeal the matters principally sought to be relied on as giving rise to the danger of unfair prejudice were that the evidence was evidence of photographic identification and not evidence of identification at an identification parade and that in an array of only nine photographs two photographs of the appellant had been included.

16   As to the absence of an identification parade, Judge Gibson considered that it would probably have been difficult to arrange an identification parade in which the other participants had heads as shaved, or at least hair as closely cut, as the appellant's was, as at 5 January 1998, and that without such other participants an identification parade would in fact have been less fair to the appellant than photographic identification. I do not consider that His Honour made any error in saying what he did about the absence of an identification parade. The fact that an identification parade was not held is nevertheless still a matter to be taken into account.

17   Judge Gibson was clearly troubled by the small number of photographs and the circumstance that two photographs of the appellant had been included. However, His Honour decided that he should not exclude the evidence under either s 135 or s 137 of the Evidence Act.

18   I have myself been troubled by the small number of photographs and the inclusion of two photographs of the appellant. The case is in stark contrast, for example, to the case of R v Batty (unreported Court of Criminal Appeal 6 August 1997), to which we were referred in written submissions concerning s 115(2) of the Evidence Act.

19   In Batty the victim was shown four volumes of photographs, each containing between 100 and 160 photographs of persons. The photograph of Batty which the victim selected was photograph 102 in one of the books. I am not of course suggesting it is necessary to show a prospective witness as many photographs as were shown to the prospective witness in Batty. However, an array of nine photographs, which includes two photographs of the person suspected of committing the crime, provides much less choice than is desirable.

20   During argument on the appeal the Court was referred to the decision of this Court in R v Maklouf (unreported) CCA 23 June 1999. In that case the Court of Criminal Appeal held that the trial Judge had not erred in deciding not to exclude evidence of photographic identification, where 2 photographs of the accused had been included in the collection of photographs shown to a witness. There were, however, differences between Makouf's case and the present case. In Maklouf the witness was shown a total of twenty-six photographs. Most of the photographs were not of individuals but of groups of young men, so that the total number of persons shown was much more than twenty-six. The photographs included a number of persons with ponytails, which was apparently a distinguishing feature of Maklouf. Two photographs of two other young men were also included in the collection. The two photographs of Maklouf included one full face photograph and one photograph in profile, which the Court of Criminal Appeal considered, in the particular circumstances of the case, contributed to the fairness of the photographic identification of Maklouf.

21   However, notwithstanding the comments I have made about the low total number of photographs in the collection and the inclusion in the collection of two photographs of the appellant, it is clear that the trial judge gave careful consideration to the question of whether the identification evidence should be excluded. His Honour expressly took into account the matters relied on by the appellant and I have concluded that I should not find that the exercise of his Honour's discretion miscarried. I am fortified in reaching this conclusion by the following considerations.

22   It is not immediately apparent from an inspection of the photographs that the two photographs, which are in the middle of the first folder and the top of the second folder respectively, are photographs of the same person. In the photograph at the top of the second folder, which, according to the witness’s statement and Detective Clarke’s evidence, the witness did not identify, long strands of the subject's hair obscure some of his forehead and his eyes and those strands of hair in fact reach below eye level. It would also appear that the two photographs were taken under different conditions of lighting, so that the subject of the photograph at the top of the second manila folder appears to have lighter coloured skin than the subject of the photograph in the middle of the first folder. The fact that the victim failed to identify the second photograph of the appellant suggests that the victim was not influenced in the identification he did make of the photograph in the first folder, by the presence of the second photograph of the appellant.

23   I would reject the first ground of appeal. I would however repeat that it is undesirable to present a prospective identification witness with only nine photographs, including two photographs of the same suspect.

24   The second ground of appeal against conviction was as follows.

“ The Court of Criminal Appeal should order a new trial based on fresh evidence in this case. At the time of the trial there was in the possession of the Director of Public Prosecutions a statement from Mr Perry Cunningham which supported the alibi defence run by Mr Pacey. This statement was not provided to the defence until the trial was completed .”

25   In July 1998, shortly after the appellant's trial had finished, a solicitor employed by the Director of Public Prosecutions happened to remark to the solicitor who had acted for the appellant at his trial, that a statement had been obtained on 6 January 1998 in an unrelated criminal proceeding from a person named Perry Cunningham. The part of the statement by Perry Cunningham which is sought to be relied on as fresh evidence is to be found in paragraph 5. The particular part of paragraph 5 relied on contains assertions to the effect that on the night of Friday 2 January 1998 Mr Cunningham stayed at a house in Forster and that next door to that house was another house.

"where F.S (that is the appellant's father) was living. He has moved out now."

26   It was submitted that this additional evidence supported the appellant's alibi that on the night of Christmas Eve the appellant was at the house in Bunyah, where his father was living, and not in Forster.

27   The principles to be applied in determining whether a criminal conviction should be set aside on the grounds of fresh evidence are well known and need not be repeated here. One requirement which additional evidence must satisfy in order to amount to fresh evidence is that it attains a certain level of cogency. In my opinion, the evidence of Mr Cunningham, even if it was accepted, is so lacking in cogency that there is no significant possibility that if the evidence had been before the jury, the jury would have acquitted the appellant. The evidence from Mr Cunningham amounts to evidence that at some indeterminate time before 2 January 1998 the appellant's father had stopped living at a house in Forster. The issue at the trial was whether the appellant had spent the night of Christmas Eve 1997 in the house at Bunyah. The Crown did not really dispute evidence that the appellant's father and his de facto wife Felicia Marr had been living in the house at Bunyah and were living in the house at Bunyah as at Christmas Eve 1997. I would reject this ground of appeal.

28 The third ground of appeal in the Notice Of Appeal which was filed was that the verdict was unsafe and unsatisfactory. In deference to the decision of the High Court in Fleming v The Queen (1998) 73 ALJR 1, the ground of appeal was amended at the hearing of the appeal so as to accord with s 6(1) of the Criminal Appeal Act and assert that the verdict of the jury should be set aside on the ground that it was unreasonable or could not be supported, having regard to the evidence.

29 The principles to be applied in determining an appeal on such a ground were stated by the High Court in M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 440.

30   In my opinion it was open to the jury to be satisfied beyond reasonable doubt that the alibi advanced by the appellant should be rejected. Among the reasons which would have supported the rejection of the alibi were:-

31   (1) when the appellant was giving evidence in chief he said, contrary to his alibi, that he had spent the Christmas Eve of 1997 at his grandfather's house at 23 South Street, Forster. Subsequently, in response to leading questions from his counsel, the appellant corrected himself and said that he had spent the night before Christmas at Bunyah but the jury could well have regarded his original evidence as highly significant.

32   (2) the appellant said in his evidence that by Christmas Eve he had been living at Bunyah for two months, yet Felicia Marr said that she and the appellant's father, the appellant and other relatives had moved into the house at Bunyah in December 1997.

33   (3) the appellant said in his evidence that he had slept in until about midday on Christmas Day. Not only is it implausible that the appellant would have slept in until midday on Christmas Day, especially in the light of his account that he had gone to bed on Christmas Eve about 10 or 11 o'clock after spending the evening watching videos but Felicia Marr gave evidence that the appellant had woken up at 10 o'clock on Christmas morning.

34   (4) the appellant said in his evidence that he had slept in the living room with all the other occupants of the house. Felicia Marr said that the appellant had slept in one of the children's bedrooms.

35   (5) when the appellant was charged on 5 January 1998 he gave as his address, not the Bunyah address, but 23 South Street, Forster. The appellant claimed that he did not know the address of the house at Bunyah but the jury could have regarded that evidence as implausible.

36   The jury could well have regarded its rejection of the alibi advanced by the appellant as affecting seriously the general credibility of the appellant.

37   It was submitted on behalf of the appellant in regard to the identification evidence that the victim had no previous knowledge of the appellant, that the offence was committed at night, that the offender purportedly identified was one of three offenders, that the victim would have been able to observe the offenders for only a short time and that the victim's attention would not have been focussed solely on the appellant.

38   On the other hand, there were a number of factors which would have enhanced the reliability of the identification evidence. The offence was committed at a well lit intersection in a country town, the encounter with the offenders lasted several minutes and not just a few seconds, the offender including the offender on the victim's right came very close to the victim, close enough in the case of the offender on the victim's right to restrain the victim's bicycle and to punch the victim. The offender alleged to be the appellant was not disguised and there was no impediment to the victim observing him.

39   I have already in dealing with the first ground of appeal referred in some detail to the photographic identification. I have expressed the opinion that there were some unsatisfactory features of the photographic identification. The inability of the victim to identify the second photograph of the appellant as being a photograph of the offender who was on his right to some extent weakens his evidence of identification. On the other hand, the fact that the victim did not identify the second photograph of the appellant suggests that he was not prompted in making the identification that he did make, by the presence of the second photograph of the appellant in the array of photographs. I have already referred to the fact that the appellant, in the photograph which the victim did not identify, is shown as having long strands of hair which obscure parts of his face.

40   In favour of the reliability of the photographic identification made by the victim is the fact that the identification took place on 5 January 1998, only a few days after the offence was committed.

41   A particularly telling circumstances in the present case is that soon after the offence was committed the victim in his first statement to the police described the offender on his right as having a head which looked shaved. The appellant had a shaved head at the trial. Detective Clarke gave evidence that on 5 January 1998 the appellant had a “number two” cut, that is a very short hair cut, consistent with him having had a shaved head about ten days earlier. It was open to the jury to disbelieve the appellant's evidence that on 5 January 1998 some of his hair was three inches long.

42   I have concluded that it was open to the jury, which had the advantage denied to this Court of seeing and hearing the witnesses, to be satisfied beyond reasonable doubt of the appellant's guilt. I would dismiss the appeal against conviction. The application for leave to appeal against sentence is not pressed.

43   MEAGHER JA: I agree.
44   SPERLING J: I agree.
45   MEAGHER JA: The orders of the Court are as stated by Justice James.

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