Smith v The King
[2022] VSCA 268
•8 December 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0120 |
| JESSE SMITH | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, McLEISH and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 November 2022 |
| DATE OF JUDGMENT: | 8 December 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 268 |
| JUDGMENT APPEALED FROM: | DPP v Smith (Ruling No. 1) [2021] VCC 1544; DPP v Smith (Ruling No. 2) (Unreported, County Court of Victoria, 29 September 2021, Judge Riddell); [2022] VCC 1177 (Judge Cahill) |
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CRIMINAL LAW – Appeal – Conviction – Burglary – Arson – Whether judge erred in admitting photo board identification evidence – Whether judge erred in admitting tendency evidence – Whether verdict unsafe and unsatisfactory – Leave to appeal refused.
Evidence Act 2008 ss 97, 101, 137.
TL v The King (2022) 96 ALJR 1072, applied; THDv The Queen (2010) 200 A Crim R 106, R v Dickman (2017) 261 CLR 601, Hughes v The Queen (2017) 263 CLR 338, discussed.
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| Counsel | |||
| Applicant: | Mr P Smallwood and Ms K Foote | ||
| Respondent: | Mr J McWilliams and Mr L McAuliffe | ||
Solicitors | |||
| Applicant: | David Barrese and Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA:
I agree with Taylor JA.
McLEISH JA:
I agree with Taylor JA.
TAYLOR JA:
Introduction and summary
On 7 July 2022, a County Court jury found the applicant guilty of burglary (Charge 1) and arson (Charge 2).
Both charges related to a fire which destroyed the home of Rachel Donoghue,[1] the applicant’s ex-partner, in the very early hours of 1 January 2020. In short, it was alleged at trial that the applicant had entered Ms Donoghue’s home without permission and with intent to commit arson, and thereafter did.
[1]A pseudonym.
The applicant seeks leave to appeal against his conviction on three grounds:
Ground 1: The trial miscarried by reason of the learned trial judge’s failure to exclude a ‘photo-board identification’ of the applicant.
Ground 2: The trial miscarried by reason of the admission of tendency evidence, namely prior incidents of property damage by the accused.
Ground 3: The verdict of the jury was not reasonable and could not be supported having regard to the evidence.
For the reasons that follow, leave to appeal should be refused.
The prosecution case at trial
Ms Donoghue and the applicant commenced an intimate relationship in 2017. Although they did not live together, the applicant spent increasing amounts of time at Ms Donoghue’s home in Wodonga, where she lived with her young daughter.
In 2019 there were two incidents in which the applicant damaged Ms Donoghue’s property after becoming angry with her. On 13 July 2019 the applicant used his fist to punch a wall in Ms Donoghue’s home, causing damage to it. He also threw a television remote control at a wardrobe, causing it to crack. On 13 October 2019 Ms Donoghue left her home following an argument with the applicant. He then sent her abusive and threatening text messages, including threats to smash her stuff up and smash her house.
He also left abusive and threatening telephone messages. He thereafter damaged photos and prints in her bedroom by walking over them and broke the screen of the computer monitor by punching it. Ms Donoghue reported the October 2019 incident to the police.
By November 2019, Ms Donoghue and the applicant were back in contact and the applicant occasionally stayed with her.
At about 11:30 pm on New Year’s Eve 2019, Ms Donoghue attended an Albury bar named Beer Deluxe with two friends. The applicant also attended Beer Deluxe. While they were there together, and until about 2:45 am on 1 January 2020, when CCTV footage showed him leaving the bar, there were a number of interactions between the applicant and Ms Donoghue. Some were ostensibly convivial, such as when they danced and kissed. Others were marked by the applicant’s aggression. During a time when they were in the smoking area, the applicant called Ms Donoghue a slut and told her to fuck off. At a later time, when Ms Donoghue was standing with a friend, the applicant showed her the smashed screen of his mobile telephone, said it was her fault that it was smashed and, in her ear, said that he was going to kill her. He walked away before again returning and whispering in her ear words to the effect of ‘I’m going to fucking murder you’.
Ms Donoghue and one of her friends later spoke to security officers who informed them that the applicant had left the venue. Ms Donoghue then received a number of abusive Facebook messages from the applicant.
After leaving Beer Deluxe, the applicant was captured on various CCTV cameras heading south, being a direction away from the Albury Botanic Gardens. The applicant was last captured on CCTV at 3.00 am.
At about 3:01 am a taxi driver, Ned Sharkey, picked up a young male passenger on Ebden St in South Albury and dropped him off at the intersection of Moorefield Park Drive and Mayfair Avenue in West Wodonga, located approximately 250 metres from Ms Donoghue’s house. The trip took about 10 minutes. Just over two weeks later, Mr Sharkey identified the applicant as that young male passenger from a photo board shown to him by police (the ‘photo board identification’).
At 3:17 am the applicant sent a Facebook message to Ms Donoghue. Telephone records show that his telephone used a Wodonga cell tower.
At 3:32 am the CFA was despatched to Ms Donoghue’s home immediately after a 000 call was made to report smoke and flames at that house.
John Kelleher, a forensic scientist, gave his opinion that the fire started in the north-eastern bedroom (being that occupied by Ms Donoghue) by the ignition of the bedding and mattress using a match or cigarette lighter, or possibly by the curtains falling onto the bed if they had been similarly lit. He did not detect any flammable liquid.
While the house was substantially destroyed by fire, Ms Donoghue noticed that some undelivered, wrapped Christmas presents she had bought for her colleagues were intact, except for one. It was a ceramic bowl addressed to a man named Adam. It had been unwrapped and smashed. Ms Donoghue said that the applicant was paranoid about her interactions with male friends. A television screen had also been damaged and looked like it had been punched.
Ground 1: Photo board identification evidence
At 7:10 pm on 16 January 2020, Mr Sharkey attended Wodonga Police station to speak with Detective Leading Senior Constable Andrew Leonard following enquiries made by the police with Albury Taxis in the course of investigating the house fire.
D/LSC Leonard had compiled a photo board containing the applicant’s photo and ‘11 other similar photographs’ prior to Mr Sharkey’s attendance. It was conceded that he did so without first having asked for a description of the young male passenger.
Upon attending, Mr Sharkey gave the following initial description: ‘I don’t know him but I remember him. He was odd, he had a lip ring, walked like he was on a mission … I remember thinking that he was going to rob me.’
D/LSC Leonard’s evidence was that when subsequently shown the photo board, Mr Sharkey pointed straight at the photo of the applicant (being photo No 9) and stated ‘Yep, that’s the guy there.’
Mr Sharkey was cross-examined at the committal on 28 October 2020. He accepted a proposition that he remembered the passenger’s lip ring being particularly distinctive and that his hair was light brown and ‘swept across like he’d just been going out.’
On 11 and 12 May 2021 legal argument as to the admissibility of the photo board identification took place before the judge assigned to case manage the matter.[2] Limited cross-examination of Mr Sharkey took place on the same date.[3]
[2]That is, not the trial judge.
[3]Pursuant to s 198B of the Criminal Procedure Act 2009.
When asked if he looked at each of the images on the photo board prior to making the identification, Mr Sharkey said that he ‘went across the images and selected [the applicant] straight away.’ It was put to Mr Sharkey that the two distinguishing features he had identified were the male passenger’s swept hair and lip ring, and No 9 was the only person who had that combination of features. In response, Mr Sharkey said, ‘… I have to agree with you, but that’s not the reason I chose him … I chose him because that’s the guy who had hopped in my cab that night … And I’m absolutely a hundred per cent.’ He added that he remembered that particular journey in the cab very clearly as the young man had asked to be dropped off at an APCO service station and he was concerned about him doing ‘a runner.’
Mr Sharkey’s evidence at trial was that the young man he picked up got into the front seat beside him. He noticed that the young man’s phone had a shattered screen.
Mr Sharkey accepted he had prepared a statement shortly after the photo board identification stating, ‘when the light [in the taxi] came on, I got a good look at his face … What stood out was the lip ring in his bottom lip to the left of the centre, and I think he had an eyebrow ring. His hair was slicked across, pretty well looking for going out. I remember his nose and mouth, they didn’t stick out, but I can still remember them. It’s just something I do as part of my nature.’
He also accepted that the lip ring and hair being slicked across were distinctive features of the young man’s appearance, and that of the two men on the photo board with a lip ring, one had close-cropped hair. When it was put to him in cross-examination that he could have been mistaken about the identification because the applicant was only one of two people in that photo board to have a lip ring in his lip, his response was, ‘Absolutely not.’
The applicant submitted that the trial miscarried by reason of the judge’s failure to exclude the photo board identification under s 137 of the Evidence Act 2008 (‘EA’).[4]
[4]Reliance on sections 114 and 115 of the EA was expressly disavowed.
The applicant submitted that the composition of the photo board rendered it of low probative value. He argued that only two of the 12 images depicted men with lip rings and only one of those had longer hair, being the distinguishing features that the witness remembered.
The applicant further argued that the admission of the evidence occasioned unfair prejudice from the danger of the jury placing too much weight on the purported identification. While the applicant’s written case argued that unfair prejudice would also have been occasioned by the jury speculating about how the police had obtained a photo of the applicant, as he was not arrested until the day after the photo board was prepared, this point was not pressed at the hearing for leave to appeal.
Analysis
A decision about the fairness of the composition of a photo board is essentially one of fact and degree, and thus of judgment.[5]
[5]THDv The Queen (2010) 200 A Crim R 106, 113 [33] (Nettle JA, Neave JA agreeing at 114 [37]); [2010] VCA 115 (‘THD’).
The photo board exhibit was viewed by the Bench. The criticisms of it made by the applicant are not justified. It contains 12 images of men of Anglo-Australian appearance. Two men have lip rings on their bottom-left lip, but the jewellery is not immediately obvious. None have eyebrow rings. The men appear to be of a similar age range, with hair colours ranging from light to dark brown. One man has shoulder-length hair. The others have a range of hair styles and lengths.
While photographs selected for inclusion in a photo board should be consistent with the original description provided by a witness of a suspect’s physical features and any other identifiable features,[6] small, hard to see facial jewellery is insignificant in comparison with other types of readily identifiable features that make an individual ‘stand out from the crowd’,[7] such as a goatee beard[8] or red hair.[9]
[6]R v Nguyen [2003] NSWSC 1068, [14] (Buddin J).
[7]THD (2010) 200 A Crim R 106, 108 [7] (Maxwell P).
[8]See R v Blick (2000) 111 A Crim R 326, 335 [28]–[29] (Sheller JA, James J agreeing at 335 [31], Dowd J agreeing at 335 [32]); [2000] NSWCCA 61.
[9]See Knight v Brown (2004) 183 FLR 135, 140 [20], 140–1 [22] (Connolly J); [2004] ACTSC 35.
Further, it is clear from the evidence of Mr Sharkey that his identification of the relevant photo was not based upon the presence or absence of a lip ring nor upon a particular hairstyle. The witness consistently maintained that he got a good look at the applicant and selected him from the photo board right away.
The probative value of the identification falls to be considered in conjunction with other evidence in the prosecution case. The circumstantial case against the applicant was strong. The judge was correct to find the impugned evidence to be of high probative value.
In R v Dickman[10], the High Court said:
Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury’s assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence. The ‘rogues’ gallery’ effect of picture identification evidence creates a risk of the latter kind because the appearance of some photographs kept by the police may invite the jury to infer that the accused has a criminal record.[11]
[10](2017) 261 CLR 601 (‘Dickman’).
[11]Ibid, 616 [48] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) (citations omitted).
The High Court found that as the limitations of the identification in that case were obvious and the jury had not been required to grapple with abstract notions as to the dangers of identification evidence, the resulting prejudice was minimal and could be adequately addressed by direction.[12]
[12]Ibid, 618–9 [55]–[57].
Plainly, in this case there was no danger of the jury having misused the photo board identification evidence. Adequate directions were provided by the trial judge as to the dangers of identification evidence.
The learned judge was correct in finding that the probative value of the evidence was not outweighed by the risk of unfair prejudice. It follows that ground 1 must fail.
Ground 2: Tendency evidence
Prior to trial and pursuant to s 97(1)(a) of the EA, the Crown filed notice of its intention to adduce evidence to establish the tendency of the applicant to:
(a)act in a particular way, namely to damage the property of Ms Donoghue when in a rage with her, and
(b)have a particular state of mind, namely to intentionally damage Ms Donoghue’s property when in a rage with her.
The evidence of the purported tendency was drawn from the two incidents in 2019, being the 13 July 2019 incident where the applicant punched a wall and cracked a wardrobe in Ms Donoghue’s home and the 13 October 2019 incident where he sent her abusive and threatening text and voice messages then proceeded to damage photos and prints in her bedroom and break her computer screen.
The applicant submitted that it was necessary for the tendency evidence to have ‘close similarity’[13] with the conduct of the alleged offence because the Crown relied upon it to prove the identity of the offender. Further, it was submitted that the tendency evidence required expression of the relevant tendency at a level of particularity rather than at a high level of generality.[14]
[13]Hughes v The Queen (2017) 263 CLR 338, 355–6 [39] (Kiefel CJ, Bell, Keane and Edelman JJ) (‘Hughes’).
[14]Ibid, 363 [64] (Gageler J).
It was argued that the tendency evidence lacked both and therefore lacked the significant probative value necessary to its admission pursuant to s 97 of the EA. This was said to be because there was a qualitative difference between the mode of criminal damage in the tendency evidence and the conduct involved in the charged arson and also because the tendency evidence showed no more than a tendency to commit crimes of a general kind.
The applicant argued that even if the tendency evidence had significant probative value, it should have been excluded pursuant to s 101 of the EA because that probative value did not outweigh its prejudicial effect. The prejudice was identified as the necessary revelation of prior convictions.
Analysis
The tendency alleged was very specific and detailed, being a tendency of the applicant to damage the property of Ms Donoghue when in a rage with her. The tendency conduct occurred in her bedroom. The applicant was in a rage with Ms Donoghue on the night of 31 December 2019 and in the early hours of 1 January 2020. The seat of the fire that destroyed her home was her bedroom. That the acts the applicant was alleged to have committed included the ignition of flammable items and the tendency evidence did not is immaterial.
Further, as the High Court stated in TL v The King:[15]
The majority’s observation in Hughes as to the general requirement for ‘close similarity’ where identity is the relevant fact in issue should be understood as postulating a situation in which there is little or no other evidence of identity apart from the tendency evidence, and the identity of the perpetrator is ‘at large’.[16]
[15]TL v The King (2022) 96 ALJR 1072; [2022] HCA 35.
[16]Ibid, 1079 [30] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ).
Here, there was other compelling evidence of identity, including but not limited to that of Mr Sharkey canvassed above and telephone call charge records (CCRs) that placed the applicant in the vicinity of Ms Donoghue’s house at the relevant time.
Nor did the applicant suffer impermissible prejudice by the admission of the tendency evidence. By agreement that evidence was led, sparingly, through Ms Donoghue and the informant. That evidence included that the applicant had admitted to police in July 2019 that he had punched the wall and cracked the wardrobe by throwing a remote control at it. The trial judge gave an anti-propensity direction to the jury with respect to the whole of the tendency evidence. No real prejudice arises.
The learned judge was correct to admit the tendency evidence. It follows that ground 2 must fail.
Ground 3: Unreasonable and insupportable verdict
In his written case, the applicant advanced two bases for his submission that the verdict of the jury was unreasonable or could not be supported having regard to the evidence. First, he argued that he was unlikely to have been the person who entered Mr Sharkey’s taxi at 3:01 am, having been last sighted on CCTV footage at 3:00 am, based on the assertion that he would have needed to travel on foot ‘approximately 700 metres’ in one minute. Second, the evidence of the applicant’s brother was that he met the applicant at the Albury Botanic Gardens ‘probably between 3 and 4’, spent ‘maybe 15 minutes’ with him there before walking home with him, a journey of ‘between half an hour, 40 minutes.’ This, coupled with the evidence of the applicant’s mother that both the applicant and his brother arrived home at ‘about 4 am’ was said to mean that it was impossible for the applicant to have been at Ms Donoghue’s house at about 3:20 am when the fire was lit.
Counsel for the applicant conceded that the argument on this ground was weaker if ground 1 failed. In oral argument the first basis was not pressed. Nonetheless, it was submitted that the evidence of the applicant’s brother and mother were ‘insurmountable hurdles’ to conviction.
Analysis
Considering the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.[17]
[17]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
First, the observations about timing in the evidence of both the applicant’s brother and mother were imprecise and estimated. Second, that evidence was at odds with much of the rest of the evidence led in the trial, including that of Mr Sharkey, the smashed screen of the applicant’s mobile phone, the CCRs, the tendency evidence, the evidence of the unwrapped, smashed ceramic bowl found in Ms Donoghue’s house and an admission to another witness that he had ‘got the bitch’ and had ‘burned her house down’.
In short, it was open to the jury to exclude as a reasonable possibility that the applicant, after being last sighted on CCTV footage at 3:00 am and walking in the opposite direction, then went to the Albury Botanic Gardens before walking with his brother for 30 to 40 minutes, arriving home at 4:00 am. It was therefore open to the jury to draw the ultimate inference that the applicant’s guilt had been satisfied to the criminal standard. Having reviewed the evidence, that conclusion was compelling.
Accordingly, ground 3 must fail.
Conclusion
Leave to appeal should be refused.
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