Regina v Maklouf

[1999] NSWCCA 94

CITATION:	Regina v Maklouf [1999] NSWCCA 94 revised - 12/08/99
FILE NUMBER(S):	CCA 60378/98
HEARING DATE(S):	16 April 1999
JUDGMENT DATE:	23 June 1999
PARTIES :	Anthony Maklouf (Appellant) Regina (Respondent)
JUDGMENT OF:	Wood CJatCL at 1; Hidden J at 38; Smart AJ at 42

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0160
LOWER COURT JUDICIAL OFFICER:	Shillington DCG

COUNSEL:	Crown - C.K. Maxwell QC Apellant - G.P. Craddock
SOLICITORS:	R. Gray T.A. Murphy
CATCHWORDS:	CRIMINAL LAW - appeals - appeal against conviction; CRIMINAL LAW - verdicts - error of law or miscarriage of justice under s 6(1) Criminal Appeal Act 1912; CRIMINAL LAW - directions to jury - whether judge misstated evidence in summing up.; EVIDENCE - identification - admissibility of photographs - probative value or unfair prejudice. ; EVIDENCE - identification - whether warning as to picture identification to be given in absence of request from defendant.
ACTS CITED:	Crimes Act 1900 (NSW) s 97(1) Evidence Act 1995 (NSW) ss 115(7), 137, 165 Criminal Appeal Act 1912 (NSW) s 6(1)
DECISION:	Appeal dismissed; Conviction and sentence confirmed

IN THE COURT OF
CRIMINAL APPEAL

No. 60378 / 98

WOOD CJ at CL
HIDDEN J
SMART J

WEDNESDAY 23 JUNE 1999

REGINA v ANTHONY MAKLOUF

The appellant was convicted of assaulting a taxi driver with intent to rob him: s 97(1) Crimes Act 1900. He was sentenced to a minimum term of penal servitude for one year and three months, and to an additional term of penal servitude for one year and nine months. He appealed the conviction on four grounds: the trial judge’s discretion to admit photographs of him showing the cafe for the Downing Centre Court complex in the background, was wrongly exercised; the trial judge erred in not giving a warning as to picture identification evidence; misstatement of evidence by his Honour in summing up; and unsafe and unsatisfactory verdict.

HELD (dismissing the appeal):
Admission of photographs of accused - ground of appeal not made out
(1) The exercise of discretion did not miscarry. The photographs were not suggestive of a café associated with a court building. It is improbable that the jury would have noticed the café when reporting for jury service, or that they or the taxi driver when making the identification, would have reasoned that the accused had some earlier involvement with the criminal law.

(2) There was no appreciable risk of unfairness to the appellant by showing the taxi driver a set of photographs in which the appellant appeared twice. There were other individuals who appeared more than once in the bundle. Moreover there was a specific advantage in showing two photographs of the appellant as one was full face whereas the other was in profile.

Lack of warning as to picture identification evidence pursuant to s 115(7)
(3) As no such warning was sought at trial, and leave was required to argue this ground, leave was refused. The appellant had not been taken into custody, and there was nothing in the photographs to suggest that the people in them were known to police.

(4) Section 115 is specifically directed to problems associated with “mug shots”. Subsection (7) depends on request being made by the accused, since in the absence of such a request, the discretions in ss 137 and 165, to exclude the evidence or to give a warning, provide ample protection for an accused.

(5) To have given a warning here that the jury should not assume from the photographs that the appellant was know to police, would almost certainly have worked to the prejudice of the appellant since it risked inviting the jury to suspect those very matters.

Alleged misstatement of evidence in summing up
(6) Leave refused to argue this ground, as no point was taken at trial. The evidence was as consistent with the way his Honour summed up as it was with the suggested interpretation. Moreover, it was fresh in the minds of the jury, having been given the day before the summing up.

Error of law or miscarriage of justice attracting s 6(1) Criminal Appeal Act
(7) After an independent review of the evidence, the Court was not persuaded that the jury ought to have entertained a reasonable doubt.

(8) As to the inquiry required by M and Jones, the present case was one where the identification evidence was positive and unshaken. Furthermore the jury were given strong and comprehensive warnings; and their advantage in seeing and hearing the witness should be given full respect.
M (1994) 181 CLR 207, Jones (1997) 72 ALJR 78, considered; Chidiac (1991) 17 CLR 432, applied.

ORDERS PROPOSED

(1) Appeal dismissed;
(2) Conviction and sentence confirmed.

IN THE COURT OF
CRIMINAL APPEAL

No. 60378/98

WOOD CJ at CL
HIDDEN J
SMART AJ

WEDNESDAY 23 JUNE 1999

Regina v Anthony MAKLOUF

JUDGMENT

1 WOOD CJ at CL: The appellant was convicted, after a two day trial before Shillington DCJ and a jury, of assaulting a taxi driver, Rong Gen Tao, with intent to rob him (S 97(1) Crimes Act 1900). He was sentenced to a minimum term of penal servitude for one year and three months and to an additional term of penal servitude for one year and nine months. He now appeals against that conviction.

Crown Case

2   It was the Crown case that at 2am. on 22 November 1996, Rong Gen Tao’s taxi was hailed by two men in George Street Sydney. One man, alleged to be the appellant, sat in the front seat. The second man sat in the back seat. Tao was told to drive to Castlereagh Street to pick up a third man. When he could not be found, Tao was instructed to drive to Leichhardt. When the taxi arrived at Petersham about fifteen minutes later, Tao was asked to turn left into Railway Street. He parked parallel to another car and turned on the interior light. 3   At this point the man sitting in the back seat put something against the right hand side of Tao’s head and instructed him to take the money out. Tao turned his head and looked at the man in the back seat. He saw that he was holding a black tube 25 cms long which he believed was a gun. The man in the front seat instructed Tao not to touch anything, to put the money on the arm rest and not to look. That Tao understood to be an instruction not to look at the man behind him. He placed a five dollar note and some coins on the arm rest and said that the money was in the boot. He suggested that if they did not believe him, one man should stay in the taxi and that the other should check the boot. He released the boot catch. 4   The man in the back seat alighted from the off-side door. Tao saw him in the mirror on that side. Tao then looked across at the man in the front seat as he was getting out of the taxi. His body was out ofthe car with the exception of his legs. He was looking towards the back of the taxi at the other man. Tao immediately accelerated away. The man did not touch or take the money that he had placed on the arm rest. 5   The matter was reported to police. The description that Tao gave of the man in the front seat was about eighteen years old, with dark brown hair held together at the back. He was clean shaven, his skin colour was “like yellow”. He had no idea as to his nationality, but said that he was wearing a grey chequered top. The man behind he thought was Lebanese. 6   On 11 January 1997, the appellant was spoken to in relation to the offence, at Bankstown detectives office. He denied any involvement. On 15 January 1997, he was invited to participate in an identification parade but declined to do so. Photographs were taken of the appellant and another suspect on 23 January 1997, in Liverpool Street, outside the Downing Centre court complex. 7   On19 February 1997, Tao attended Petersham police station where he was shown a bundle of twenty six photographs. Senior Constable Stewart instructed him to look through the photographs once without making any comment, and then to look through them a second time and indicate whether he had seen any of the persons before. 8   During the second run through Tao indicated photograph 14, a photograph depicting three men. One had his back turned to the camera. It seems that he first picked a person wearing a striped shirt, standing beside the appellant. This man, Farrer, he said was “the person sit behind me, so this person take the gun touch my head”. He then pointed out the appellant, who was wearing dark pants and a white shirt, and standing with his arms folded, and whose hair was obviously gathered in a pony tail. Tao said, “I pick this person from George Street, he talk to me. I saw his face several times .. the person just sit near my seat in the cab.” 9   Tao was then asked to look through the rest of the photographs. He stopped at photograph 6, which similarly depicted the appellant with his arms folded, his hair swept back and possibly although not obviously gathered in a pony tail. He appeared to be speaking to the man whose back was turned to the camera in photograph number 14. The man in the striped shirt was not visible in this photograph. Tao said, “there’s another photograph, number 14 photograph, just like this man.” 10   The audio recording that was made of the identification process shows that when Tao was asked why he knew the man with the white shirt and ponytail he said: “But I pick this person from George Street, he talk to me. I saw his face several time.” 11   The yellow green and blue neon sign in the background of the photographs, that was more visible in photograph 6, was that of the café in the Downing Centre where the appellant was placed on trial. In each photograph the sign was illuminated, and by reason of its location inside the building, the area appeared to be dark, an impression that would have been encouraged by the fact that the buildings in the background appeared to have their lights on. The neon sign in each photo was somewhat obscured by greenery from a tree. All that can be seen in photograph number 14 is “CAFE … WNIN”. In photograph 6 the only words Visible are “DOWNING”. In photograph 6 the appellant could be seen full face, while in photograph 14 he could be seen only in profile. 12   During his evidence Tao said that he had spoken to the man sitting beside him in the taxi, and that it was he who gave the instructions as to where they were to go. He had a further conversation with him during the trip. Tao said that he had selected the two photographs because “I remembered this person so I chose these two photographs”, and later, “because these things happen before so I can recognise the two men. So I select the two photos.” He said that he was “absolutely certain”, “one hundred per cent certain,” that the men in the photographs were the same men who had entered his taxi. 13   When asked, in cross examination, if he had been informed of the reason for going to the police station on 19 February 1997, he replied that he had been told that he would be shown some photographs. When asked if he had expected to see the two men who had robbed him, he said “yes”. In re-examination, he was asked if he had thought that the man would be in the photographs or might not be. He said that he did not know. In his cross examination, Tao also acknowledged that when he had picked up the men, he had no particular reason to take notice of them, and that when he had reason to do so he was very scared. 14   The appellant was arrested on 25/3/97 and interviewed by way of ERISP. He said that he could not recall his whereabouts, or who he was with, at 2am. on 22 November 1996. He said, however, that he had never caught a taxi from the city to Petersham. 15   The appellant who was twenty years old at the time of the trial, did not give evidence, nor was any evidence called on his behalf. Although it was unknown to the jury, it may be assumed that investigating police knew that he had prior convictions for malicious damage and steal motor vehicles, and was a suspect for an offence having a marked similarity to the present, involving a taxi driver at Kings cross. This offence, it would appear from the reasons for sentence, occurred one month before the present offence. The co-offender was Robert Farrer, the other young man appearing in photograph 14. The appellant was convicted of it and sentenced, before he appeared for trial before Shillington DCJ. This is not a matter than can be taken into account in relation to his guilt or for the purposes of this appeal, save so far as it is relevant to a submission advanced by the appellant which I will mention later. 16   In his summing up the trial Judge gave comprehensive directions concerning identification evidence. He pointed out that such evidence can be unreliable, and drew particular attention to the factors in this case that may impact upon the reliability of Tao’s evidence. So it was that his Honour drew attention to the fact that the appellant was a stranger to the taxi driver; that there had been no identification parade; that the driver’s opportunity to see the offender had to be considered in the light of the circumstance that he was driving a taxi and his principal concentration was likely to be on that task; that he was scared; that identification from photographs was a poor second to seeing someone in the flesh; that there was a risk of displacement in that, having first identified the man in the striped shirt as the man in the rear seat, he may have assumed that the other man, who was also seen in the photograph, was the man in the front seat. 17   The reasons why these matters may affect reliability were pointed out. Further, his Honour emphasised more than once that the prosecution case rested solely on the identification evidence, and that the jury could only convict the appellant if they were satisfied beyond reasonable doubt of his identification by Tao.

Ground One

Objection was taken to tender of the evidence of the photographic identification, upon the basis that the danger of unfair prejudice to the appellant outweighed the probative value of that evidence (S 137 Evidence Act 1995). There were three grounds for the objection:

(a) that the appearance in the background of the photographs of the Downing Centre Café neon signs might have led jurors who had seen that sign, when reporting for jury service on the first day of the trial, to suppose that the appellant was there as a person charged or associated with a criminal trial;

(b) that the fact that there were two photographs of the accused in the bundle of 26 photographs, risked encouraging Tao’s identification or reinforcing it;

(c) that having looked at photograph 14, and identifying the suspect co-offender Farrer, there was a risk that by association the victim wrongly identified the appellant in that photograph, and then again in photograph 6.

18   For the reasons mentioned by the trial Judge, I am unpersuaded that the exercise of discretion miscarried. 19   As to the first point, I have already made mention of the circumstance that the photographs give every impression of having been taken in the dark, and are not suggestive of a café associated with a court building. Rather, they are suggestive of a city café. The Downing Centre building is not evident, and it is improbable in the extreme that the jurors would have noticed the cafe inside the centre, when reporting for jury service. Even if they entered the building on the second and final day of the trial via a doorway which took them past that café, which is doubtful, there is little reason to assume that they would have taken any greater notice of it. 20   As his Honour observed, Liverpool Street is located in a busy part of the city to which people come from time to time, and the café is similarly used by people who have no association with the Court. His Honour expressed surprise, which I similarly share, whether any juror would have made the association or drawn the inference suggested. There was, in my view, no appreciable risk of unfairness to the appellant in this respect. 21   Perhaps more relevantly, so far as the identification itself was concerned, there was no reason to suppose that the taxi driver recognised the Downing Centre from the photograph, or was influenced by that circumstance, in making his identification. 22   As to the second head of complaint, which was based upon the assumption that the presentation of the appellant twice in the bundle of photographs might have caused Tao to focus subconsciously upon him, there are several answers. First, most of the photographs are of groups of young men, and there are included within their midst several persons with pony tails. Secondly, there were two other occasions where persons apart from the appellant, were depicted twice (photographs 15 and 23, and photographs 5 and 26). Thirdly, there was a specific advantage in showing two photographs of the appellant in that one showed him full face, and the other showed him in profile. The appellant submitted that the procedure adopted was akin to placing a suspect at one position in a line up, and then asking him to double around to the end of the line up after the witness had passed by him. What occurred in the present case is in no way analogous, and again I am quite unpersuaded that there was any appreciable risk of unfairness to the appellant. 23   As to the third objection, the reasoning suggested by the appellant, which depends on the existence of subtle influence, is, at best, tenuous. The photographs of the appellant were clearly of the same man, and they were taken in the same place. The persons depicted were not apparently engaged other than in innocent conversation in the street. There was nothing about them to suggest that either of them were the persons involved in the offence, or that they were personally known to police. They were very much less prejudicial than the old fashioned mug shots, and there was, to my mind, no risk of suggestion or displacement involved. I am quite unable to see how in the circumstances outlined, there was an appreciable risk of Tao being influenced to assume that the appellant had been associated with the other man depicted in the offence. The situation might have been otherwise had the police informed Tao that the man in the striped shirt was known to be the offender, or had been identified by someone else as a suspect. This, however, was not the case. 24   The evidence was of considerable probative value. Despite the lapse of time the victim was very definite in his identification. Moreover, although scared, he maintained his wits in resisting the attempted robbery and in making an escape from the situation. He had ample time to observe the appellant during the taxi trip, while he engaged in conversation with him, and when he was leaving the cab. He had, by that stage, illuminated the interior light and he looked at the man in the front seat before he left the vehicle. 25   This ground of appeal has not been made out.

Ground Two

26 It was submitted that his Honour erred in not giving a warning pursuant to S 115(7) of the Evidence Act. That Section provides:

“If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the defendant:
(a) if the picture of the defendant was made after the defendant was taken into that custody - inform the jury that the picture was made after the defendant was taken into that custody, or
(b) otherwise - warn the jury that they must not assume that the defendant has a criminal record or has previously been charged with an offence.”

27 No such warning was sought at the trial, and leave is required under R4 Criminal Appeal Rules to argue this ground. I would refuse leave. The submission is misguided. Neither the appellant nor any of the other persons depicted had been taken into custody, either at the time that the photographs were taken or at the time that identification was made. Nor was there anything in the photographs to suggest that the persons depicted were known to police or involved in any form of criminality. The section is not at large. It is directed to the problems associated with the use of “mug shots” ie pictures which themselves give the impression that the persons depicted were persons known to police. The Section takes its place alongside Section 137, which permits exclusion of evidence where its probative value is outweighed by the danger of unfair prejudice to the accused, and S165 which permits any relevant or appropriate warning to be given to the jury. The discretion there reserved provides ample protection for an accused, and explains why S 115(7) depends upon request being made by the accused. 28 No request was made here for a warning. Moreover, to have given a warning to the jury that they should not assume from the photographic identification that the appellant had a criminal record, or had previously been charged with an offence, would almost certainly have worked to the prejudice of the appellant since it risked inviting the jury to suspect those very matters. Otherwise, there would have been no apparent reason for it.

Ground 3

29   It was submitted that his Honour misstated the evidence when, in summarising the evidence of Tao, he observed:

“He said he looked at both of the people at that stage and more particularly, when this item was held against the side of his head, he said in that situation he looked not only at the person behind, but also at the person beside him.”

30 No point was taken at the trial. It was argued, however, that leave should be given because of the criticality of the identification evidence, and because of the risk that the jury might have been misled as to the effect of the evidence of Tao. I am unpersuaded that this ground has been made good. First, it is the case that the evidence of Tao may be assumed to have been fresh in the minds of the jury, since he was the principal witness and had given his evidence the day before his Honour delivered his summing up. 31 Secondly, he did say that he looked at the man sitting alongside him, on the front seat, after the demand for money was made. Although on a very strict literal interpretation, that passage might be taken to suggest that Tao looked at both men while the item, assumed to be a gun, was held against his head, it is equally capable of being understood to have had a temporal connection to the entire incident, which lasted for a relatively short time, from the time of demand to the time that both men left the vehicle. It was the fact that Tao said that he looked across and saw the man still seated on the front seat, at a time when the interior light of the taxi was illuminated. It was to this evidence I believe the jury would have understood the passage to relate. 32 Even if the alternative meaning was that adopted by them there was in my view no risk of a miscarriage of justice arising. Tao did give evidence of seeing the appellant during the trip, and after the demand was made. It was upon the basis of those observations that his identification was made. The proviso to s6 of the Criminal Appeal Act would apply, in those circumstances. However, having regard to the absence of any point being taken at the trial, I would refuse leave to rely on this ground.

Ground 4

33 Finally, it was submitted that by reason of the combination of matters outlined above, and the absence of any evidence incriminatory of the appellant, other than the identification evidence, the verdict was unsafe and unsatisfactory. In further support of this ground, it was put that the identification occurred three months after the offence, and that there was a risk that the police had selected and placed photographs of him before Tao, either randomly because he had a pony tail, or because he was suspected of having been involved in the earlier robbery of a taxi driver at Kings Cross. 34 I am not persuaded, after an independent review of the nature and quality of the evidence, that the jury ought to have entertained a reasonable doubt; nor am I persuaded for the reasons earlier outlined that any of the other matters identified involved an error of law, or led to a miscarriage of justice of the kind that that would attract the intervention of the Court under s 6(1) Criminal Appeal Act. 35 As to the inquiry required by M (1994) 181 CLR 207 and by Jones 1997 72 ALJR 78, the present case is one where the identification evidence was positive, and was unshaken. Tao had a good opportunity to observe the men, and his response to the situation in which he became involved at the end of the trip shows that he retained his senses. It was to the appellant that Tao spoke, not only in relation to the route he was to take, but also while they discussed, during the trip, the purchase of taxis. 36 The appellant called no evidence in his case and the jury were given strong and comprehensive warnings. I am unable to see, in those circumstances, that there is any occasion for reasonable doubt. The case is one in which, to my mind, the advantage of the jury in seeing and hearing Tao, should be given full respect: Chidiac (1991) 17 CLR 432. This ground has not been made out. 37 Accordingly, I would propose that the appeal be dismissed, and the conviction and sentence be confirmed.
IN THE COURT OF
CRIMINAL APPEAL

60378/98

WOOD CJ at CL
HIDDEN J
SMART AJ

Wednesday 23 June 1999

Regina v Maklouf

Reasons for judgment

38   HIDDEN J: I agree with Wood CJ at CL that the appeal should be dismissed, substantially for the reasons his Honour has given. However, I wish to add a few comments of my own. 39   The array of photographs consisted of candid shots of men, including the appellant, taken at various urban locations. The advantage of such a selection of photographs, compared to the “mugshots” of earlier days, is obvious. Equally, the difficulty in obtaining a suitable series of photographs of this kind must be acknowledged. 40   That said, I consider it undesirable that a photographic array should contain a photo of the suspect in company with an alleged co-offender in the crime under investigation. Nor should it contain more than one photo of the suspect, as this may tend inappropriately to focus attention upon that person. I can understand that a suspect’s appearance at a court in relation to another matter might be a convenient opportunity to obtain a photo of him or her but, for obvious reasons, every effort should be made to ensure that it does not appear to have been taken in court precincts. 41   I must say that I was initially concerned that some of the jurors might have recognised that the photos of the appellant, particularly number six, had been taken outside the very court in which he was being tried before them. However, the contrary view of the experienced trial judge, who would be familiar with the Downing Centre, commands respect. I am not persuaded that his Honour fell into error in admitting the evidence. Equally, I am not satisfied that there has been any other miscarriage of justice or that the jury’s verdict is unreasonable.

IN THE COURT OF
CRIMINAL APPEAL

NO. 60378/98

WOOD CJ at CL
HIDDEN J
SMART AJ

Regina v Anthony MAKLOUF
JUDGMENT

42   SMART AJ: I agree with Wood CJ at CL.

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