Tang v The State of Western Australia
[2010] WASCA 30
•18 FEBRUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TANG -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 30
CORAM: McLURE P
OWEN JA
WHEELER JA
HEARD: 23 NOVEMBER 2009
DELIVERED : 18 FEBRUARY 2010
FILE NO/S: CACR 55 of 2009
BETWEEN: TRUNG TRONG TANG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :IND 487 of 2008
Catchwords:
Criminal law - Conviction appeal - Identification evidence - Delay - Turns on own facts
Legislation:
Nil
Result:
Extension of time refused
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr B Fiannaca SC
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
R v Mendoza [2007] VSCA 120; (2007) 173 A Crim R 157
Wimbridge v The State of Western Australia [2009] WASCA 196
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
McLURE P: I agree with Wheeler JA that the appellant's application to extend time within which to appeal should be refused. These are my reasons for that conclusion.
The appellant was convicted after trial of unlawfully wounding Jonathan Lim (count 1) and Luke Gabriel (count 2) and acquitted of assaulting and doing bodily harm to Eugene Lee (count 3). The offences occurred on 20 August 2006. The State case was that the appellant had unlawfully wounded Lim by striking him on the hand with a bottle in a bar at the Metropolis Nightclub. A number of bouncers, including Mr Gabriel, then ejected the appellant from fire door 8 of the nightclub after which the appellant ran around the side of the nightclub and re‑entered it through the front doors. The bouncers pursued the appellant and a scuffle broke out in the foyer between a number of men and the bouncers including the appellant and Mr Gabriel. Some time after the scuffle was broken up, Mr Gabriel went and stood just outside the front doors of the nightclub. The appellant approached Mr Gabriel and unlawfully wounded him by striking him on the head with a bottle.
The issue at trial was the identity of the person who wounded Mr Lim and Mr Gabriel. The State relied principally upon the jury identifying the appellant for themselves from video surveillance of the bar and foyer of the nightclub. The video surveillance of the bar does not show Mr Lim being struck with the bottle. However it shows some bouncers, including Mr Gabriel, confronting a man in the bar and escorting him out up the stairs. It was not in dispute at trial that the man escorted by the bouncers was the man who committed the offences the subject of counts 1 and 2.
The State tendered photographs of the appellant taken on the night of the offences and invited the jury to compare those photographs with the man in the surveillance footage. The State case was that they were the same man.
The State also relied upon the evidence of Mr Lim and the head bouncer, Ryan Burgers in support of its case that the appellant was the offender. The appellant contends the trial judge erred in directing the jury in relation to the evidence of identification given by Mr Lim and Mr Burgers.
The evidence of Mr Lim
After being wounded, Mr Lim went to the emergency department at Royal Perth Hospital. He saw police officers there with a person he thought looked like the person he was fighting with at the nightclub. He said at trial that he was quite certain of that but not 100% sure (ts 196). In cross‑examination he accepted that he was not saying he was certain. He then gave the following evidence in re‑examination:
How sure you are you that it was him---If I put a number on it, maybe 80 per cent (ts 203).
The appellant relies on two grounds. First he contends the trial judge directed the jury that the evidence of Mr Lim was either positive identification evidence or circumstantial evidence. The distinction between the two is discussed in Festa v The Queen (2001) 208 CLR 593.
As far as I am able to make out from the submissions, the appellant's contention is that by giving a full 'Domican style warning' (Domican v The Queen (1992) 173 CLR 555) the trial judge had elevated Mr Lim's circumstantial evidence to the realms of a positive identification.
After informing the jury that she was moving to the evidence of Mr Lim and Mr Burgers, the trial judge gave a warning in accordance with Domican to the effect that an honest and convincing witness may be mistaken when giving identification evidence. She then turned her attention to the evidence of Mr Lim. As appears from the extracts quoted in the reasons of Wheeler JA, the trial judge on three occasions expressly directed the jury that the evidence of Mr Lim was not positive identification evidence. There is no reasonable basis for the appellant's claim that the giving of the Domican warning effectively elevated Mr Lim's evidence to that of positive identification.
Secondly, the appellant claims the trial judge failed to isolate and identify the weaknesses in Mr Lim's evidence relating to identification. In circumstances where a Domican warning is required, the judge must put the authority of his or her office behind any matter of significance that may be regarded as undermining the identification evidence. As Mr Lim did not give positive identification evidence, a full Domican warning of the type required in such a case was not needed: Festa [57].
The trial judge gave a direction that was appropriate to the circumstances. She told the jury to consider the following: Mr Lim's inability to recall the offender's clothing; how detailed Mr Lim's recall of the offender was, having earlier summarised Mr Lim's description of him; how good the lighting was and his ability to see the man; that Mr Lim accepted he was possibly intoxicated to a degree; that Mr Lim agreed the incident was a surprise and happened quickly; and whether the fact that the accused was in the company of police when he attended the hospital suggested to Mr Lim that there was some connection with the incident at the nightclub. No matter of significance was omitted from the direction. There is no merit in this ground.
The evidence of Mr Burgers
Mr Burgers, the head bouncer at the nightclub at the time of the offences, participated in an identification process using a photo board more than two years after the offences. The video‑recorded identification procedure was played to the jury and tendered in evidence. Mr Burgers made the following comments:
"That's him, number 11" (No 11 was a photograph of the appellant).
"I don't want to be racist but they all fucking look the same".
"12 was involved but it wasn't him".
"I think this one was involved as well, number 10".
"I think it's number 11".
Then he said, in relation to number 10:
"Possibly, yeah, but I'm not sure about him. Well definitely these two", (pointing to 11 and 12).
Then he said of number 11:
"The more I look at him, the more I think it's him, I think, yeah".
The issue was addressed in cross‑examination as follows:
So what I'm putting to you is you weren't sure. It's a person who looked somewhat like Thirteen. That's the person you picked---Okay. Well, that's what you say, but I'm ‑ I'm sure as in ‑ ‑ ‑ (ts 97).
Counsel interrupted the witness's answer to say that the witness had not said during the identification process that he was sure, a proposition with which the witness agreed.
Mr Burgers' evidence at trial is detailed in the reasons of Wheeler JA. His evidence is not on all fours with that of Mr Gabriel who had seen the video surveillance footage before giving evidence, whereas Mr Burgers had not. In summary, Mr Burgers gave evidence that he was present in the bar and observed a man hit another man over the head with a bottle. He described the attacker as follows:
He was about 5' 10"; sort of medium built; longish, sort of black hair, quite ‑ to his shoulders. Yeah, he ‑ he's a regular, so I sort of remember him (ts 72).
Mr Burgers described what the attacker was wearing (a striped shirt with pink in it and dress pants). He also said the attacker was a regular at the nightclub and was known to Mr Burgers by his nickname 13. Mr Burgers assisted in ejecting the attacker from the nightclub, observed him for a lengthy period attempting to re‑enter the nightclub by smashing a glass door, observed him in the foyer at the time of the scuffle and witnessed the incident in which Mr Gabriel was injured.
The appellant relies on three grounds. He contends the trial judge erred: (1) in leaving Mr Burgers' evidence as either positive identification or circumstantial evidence; (2) in failing to adequately isolate and identify the weaknesses in Mr Burgers' evidence relating to identification; and (3) in failing to direct the jury about the displacement effect as it applied to Mr Burgers' evidence.
I understand the appellant's first contention to be that it was not open to the trial judge to leave to the jury the question whether Mr Burgers' evidence was positive identification or circumstantial evidence. As the facts are a matter for the jury, I infer the appellant contends the evidence was incapable (as a matter of law) of constituting positive identification. The submission is by way of an assertion which in my view is without merit.
There is also no merit in the appellant's claim that trial judge failed to adequately isolate and identify the weaknesses in Mr Burgers' identification evidence. Most of the alleged omissions identified in the written submissions were in fact covered in the trial judge's lengthy direction concerning the matters that may impact on the reliability of Mr Burgers' identification evidence. Although the trial judge did not expressly state to the jury that the witness gave no description of the offender's facial features, she had earlier summarised Mr Burgers' description of the offender. The trial judge did not err in failing to remind the jury that the description did not include the offender's facial features. Moreover, in the absence of any distinctive facial features, it is difficult to volunteer a description that is likely to be of any significance. In any event, the offender's facial features can be of no significance in a case where, as here, the witness had recognised the offender at the scene.
The final ground directs attention to whether a displacement warning was required. The written submissions filed on behalf of the appellant fail
to condescend to specifics about the circumstances said to give rise to the displacement effect. It emerged in oral submissions that the basis for the claim was Mr Burgers' evidence that he had seen the offender at the nightclub before the night in question and knew him by the nickname 13.
The trial judge adverted to the question of displacement in her direction. After directing the jury that they had to be satisfied that Mr Burgers' identification was reliable as a result of the two‑year delay between the offences and the identification, she referred to Mr Burgers' evidence that on the night of the offences he recognised the offender as 13 because he was a regular at the club, the trial judge continued:
On the other hand, if the man involved that night was a regular and you've heard evidence from the accused and Abdul Waisame [a bouncer called by the defence] that the accused was a regular, there might be the danger that Burgers picked a face that was familiar to him, that he knew, rather than the face of the man who was in fact involved in the incident that night (ts 373).
I am not persuaded that sightings of a person prior to the commission of an offence that enable a witness to a crime to recognise that person as the offender gives rise to the potential for the displacement effect described in Alexander v The Queen (1981) 145 CLR 395 and R v Mendoza (2007) 173 A Crim R 157. Even if there was such a potential the trial judge's direction is adequate.
OWEN JA: I agree with Wheeler JA.
WHEELER JA:
The applications
This is an application for extension of time, and an application for leave to appeal, which were ordered to be heard together with the appeal against conviction. On 6 February 2009, the appellant was convicted of two counts of unlawful wounding arising from incidents at a nightclub. The appellant was acquitted of a third charge, assault occasioning bodily harm, though this is listed as a conviction on the appeal notice. On 26 March 2009, he was sentenced to 5 years' imprisonment, backdated to 25 November 2008, with parole eligibility. There is one proposed ground of appeal, relating to the issue of identification.
Delay
The affidavit "explaining" the delay in appealing reveals the following matters. Legal Aid advised that aid had been granted on 3 April 2009. On 9 April 2009, counsel sought an extension of aid because of potential new evidence issues. No new evidence issues are raised in the appeal.
On 7 May 2009, counsel's "opinion as to merit" was received by the appellant's solicitors. I am not sure what is meant by this. It seems unlikely that legal aid would have been extended if there had not already been an opinion as to merit expressed by counsel having some knowledge of the case. It may perhaps refer to counsel's view of the appropriate framing of the grounds. The appeal notice was filed on 7 May 2009.
Were it not for the apparent pursuit of new evidence issues, referred to in counsel's letter of 9 April 2009, there would have been effectively no explanation for the three‑week delay. Even taking account of that matter, it does not appear why an appeal notice referring to the ground now in issue could not have been filed within time.
At the hearing of this appeal, I observed to counsel:
[I]t ought to be in most cases ... fairly obvious to trial counsel at the end of the case, the end of the trial, if there has been any error in the way the trial, was conducted, if there are any grounds of appeal.
The court requires very little by way of instituting an appeal and it ought to be possible, based on the view of any competent trial counsel, for the appellant and those representing him to form a view as to whether or not an appeal is appropriate, having the courage of his convictions, put in an appeal notice and then, if it [is] necessary to review the evidence in more detail to refine the grounds, the rules allow that to occur.
The view seems to be taken in some quarters ... that it is appropriate, however, for aid to be sought for an opinion, for time to be taken for fresh counsel to trawl through the whole trial again and that that process takes as long as it takes and then you consider an appeal notice.
It is important to note that the view to which I referred is incorrect. Potential appellants, and those representing them, must clearly appreciate that every day of delay in filing an appeal notice increases the risk that an extension of time will be refused. If further time is needed following the filing of the appeal notice, an appropriate application can be made. I will return to the issue of delay in this case.
Facts of the offending
The appellant was convicted of two counts of unlawful wounding arising out of events that occurred at Metro City Nightclub in Perth on 20 August 2006. The evidence was to the effect that the complainant on the first count, Mr Jonathan Lim was at the nightclub with friends. Some time after midnight, Mr Lim, who acknowledged at trial that he was probably intoxicated, was standing at one of the bars on the ground floor of the nightclub when a man deliberately walked into him. Mr Lim told the man to "look out", and the man responded by punching Mr Lim. The two men then engaged in a fight in which both threw punches at each other. The men ended up on the floor.
Bouncers intervened and attempted to stop the fight, but the man swung a bottle at Mr Lim. Mr Lim blocked the blow with his right hand, and the bottle broke, cutting Mr Lim's hand (the first count of unlawful wounding). Bouncers disarmed the man and he was ejected from the premises via a fire door, and Mr Lim was taken to Royal Perth Hospital where the wound to his hand was treated, requiring a skin graft. One of the bouncers involved, Mr Burgers, recognised the man as a regular patron nicknamed "Thirteen".
After his eviction from the nightclub, the man became involved in an argument with Mr Abdul Waisame. The man re‑entered the nightclub, and there was a further incident, which is not directly relevant. Some little time later, near the front doors, the man struck Mr Gabriel in the face with a broken bottle, then walked away. Mr Gabriel was left with a "substantially scarred" forehead (the second count of unlawful wounding).
Identification evidence - Jonathan Lim
At trial, Mr Lim described his attacker in the following manner (ts 193):
This other party, are you able to describe them, to the best of your recollection?‑‑‑Asian, Asian male is what I can describe as.
Do you recall what his hair was like?‑‑‑It was - it was longer than normal for an Asian. For a male, it was probably, from what I recollect from my accounts, it was shoulder length from my statement.
Do you recall what the person was wearing?‑‑‑No.
How tall are you?‑‑‑188 centimetres.
Are you able to estimate about how tall this person was?‑‑‑From what I remember, he was shorter than me, not by a lot; so probably about around about 180 centimetres.
He then went on to describe an incident that occurred at Royal Perth Hospital in which he observed the appellant, who had also been taken by police to emergency for treatment (having been arrested on an outstanding warrant and not in relation to the events of that evening) (ts 95 ‑ 96).
Did you see any police officers when you got to Royal Perth?‑‑‑Yes.
Where at Royal Perth did you go, sorry?‑‑‑To emergency.
Now, at some point did you notice any police officers there?‑‑‑Yes.
Did you notice whether they had anyone with them?‑‑‑There was an instance where I pointed out that someone I thought looked like the person that I was fighting with, yes.
Who did you point that out to?‑‑‑I can't recall exactly. An officer, yeah, a police ‑ ‑ ‑
An officer?‑‑‑Yeah.
How sure were you that it was the person?‑‑‑I was quite certain, but not 100 per cent sure.
Under cross examination, the following exchange occurred (ts 203):
You were then taken to hospital; is that right?‑‑‑Yes.
There was a person that was with a police officer that you saw in the hospital; correct?‑‑‑Yes.
Now, in which part of the hospital did you see this person with the police officer?‑‑‑I think I was lying down in emergency, waiting to be treated.
Had you received any treatment at that point?‑‑‑No, no.
This person who was with the police officer, you have indicated that you think that person, I'm putting to you, might be the person who struck at you in the nightclub?‑‑‑Right.
But you're not saying you're certain?‑‑‑True.
And finally, during re‑examination (ts 203):
My learned friend just suggested to you that it might have been the man you saw in the hospital and that you were not certain and you agreed with that?‑‑‑True.
How sure you are you that it was him?‑‑‑If I put a number on it, maybe 80 per cent.
Identification evidence - Ryan Burgers
Mr Burgers was in a position to observe the incident in which Mr Lim was injured, and assisted in ejecting Mr Lim's attacker through the fire door. He later observed Mr Lim's attacker attempting to re‑enter the nightclub by smashing a glass door, an attempt that lasted 10 or 15 minutes. Mr Burgers then witnessed the incident in which Mr Gabriel was injured. At trial, Mr Burgers described the offender - whom he said he recognised as a regular patron of the nightclub - in the following manner:
What would you describe that man as?‑‑‑He was about 5'10"; sort of medium built; longish, sort of black hair, quite - to his shoulders. Yeah, he - he's a regular, so I sort of remember him.
Do you recall what he was wearing?‑‑‑Yeah, like a striped shirt that had - I think it had pink in it, pink.
And I think you mentioned ‑ ‑ ‑?‑‑‑Like a collar shirt and like dress pants.
I think that you mentioned that he was a regular?‑‑‑Yeah, yeah.
So you'd seen him before, had you?‑‑‑Yeah, yeah.
Where had you seen him before?‑‑‑Just at the same place. It's a nightclub.
Did you know that man by any nickname?‑‑‑Yeah.
What was that?‑‑‑Well, all I know is, he was - his nickname was Thirteen ....
On 28 October 2008 (that is, more than two years later), Mr Burgers identified the appellant's photograph from a digiboard as being a photograph of the offender. The identification process was videotaped, and the videotape was played to the jury, and tendered as an exhibit.
The appeal
The appellant appeals on one ground, which reads:
The learned trial Judge erred both in law and in fact and there was a miscarriage of justice when she inadequately directed the jury concerning the evidence as to identification;
Particulars:
(i)the evidence of Jonathan Vun Gin Lim ('Mr Lim') was left as being either positive identification or as circumstantial evidence;
(ii)the evidence of Ryan Evert Burgers ('Mr Burgers') was left as being either positive identification or as circumstantial evidence;
(iii)Her Honour failed to adequately isolate and identify for the jury the weaknesses in the evidence of Mr Lim and Mr Burgers relating to identification;
(iv)Her Honour failed to direct the jury about the 'displacement effect' as it applied to the evidence of Mr Burgers.
Particular (i)
In respect of Mr Lim, the trial judge on at least two occasions expressly instructed the jury that the evidence of Mr Lim was not positive identification evidence:
You could not on the basis of that evidence alone, find that it was the accused who wounded Mr Lim, because [his] is not a positive identification (ts 367).
…
But you couldn't use this evidence as positive identification evidence because the witness himself is not positive. That is clear from his own evidence. The State is not asking you to regard this piece of evidence as positive identification (ts 368).
…
As I have said in the case of Lim, [he] said he was 80 per cent certain, that is not evidence of positive identification and you can't use it as such (ts 376).
This particular cannot be sustained.
Particular (ii)
In respect of Mr Burgers' evidence, her Honour said the following (ts 371):
It's for you to interpret the effect of his evidence and whether he is purporting to make a positive identification or not. If he is not, then you could conclude no more than that the person he has selected, the accused, might bear a strong resemblance in his facial features to the person Mr Burgers saw that night.
That direction was not in error. The jury had the benefit of both a DVD recording of the identification process, and of having observed Mr Burgers giving evidence. It was for the members of the jury to decide whether Mr Burgers positively identified the appellant. In oral argument, counsel appeared to suggest that her Honour had directed the jury that they should conclude that the person selected bore a "strong resemblance" to the person he saw. That suggestion is plainly wrong. This particular cannot be sustained.
Particular (iii)
In relation to the evidence of Mr Lim, the appellant's written submissions list a number of issues as weaknesses her Honour needed to isolate and identify for the jury. Most were in fact raised by her Honour as issues members of the jury ought to consider, such as the speed of the incident, the fact that Mr Lim was taken by surprise, Mr Lim's inability to describe the offender's clothing, and the possible impact of the events at the hospital (ts 366 ‑ 367). In relation to this last matter, her Honour said:
Does his inability to describe the man's clothing impact in your view on his ability to recognise him later?
There is another factor that you'll need to bear in mind. When Mr Lim saw the accused, he was at the hospital with police. He didn't specifically say that he noticed any blood on the accused, but if the accused was at a hospital, it might be natural for Mr Lim to assume that the accused might be injured.
If the accused was with police, it might be natural for Mr Lim to conclude that he was involved in some incident requiring the police, whether it be as a victim or as a suspect. They would be natural assumptions for a person to make. There is no suggestion that Mr Lim himself had dealt with these police that night or knew that they were connected to the Metro City Nightclub incident. You'll still want to consider, however, whether the fact that the accused was in company of police when he attended the hospital suggested to Mr Lim that there was some connection.
Other issues, such as the lack of evidence from Mr Lim as to the lightning conditions, required no direction by her Honour. Mr Lim was not, in fact, asked any questions about the lighting conditions at the time of the incident. Members of the jury had access to the surveillance footage of the incident and were capable of judging the lighting conditions for themselves.
So far as Mr Burgers was concerned, counsel in his oral submissions conceded that his sole complaint was that her Honour had not referred to the fact that Mr Burgers was "unable to describe the offender's facial features". The absence of a reference to this factor is not, generally, an error: Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 at [63] ‑ [70]. No reason was suggested why such a direction was, exceptionally, required in this case.
The learned trial judge gave the jury detailed and comprehensive directions on the issue of identification, tailored to the facts of this case. Particular (iii) cannot be sustained.
Particular (iv)
There is nothing in the facts of this case that gives rise to the risk of the type of "displacement effect" discussed in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395. The appellant's counsel suggested that the facts in some way resembled those in R v Mendoza [2007] VSCA 120; (2007) 173 A Crim R 157. They did not: see the discussion of that case in Wimbridge v The State of Western Australia [2009] WASCA 196 at [33].
Wimbridge was a case in which a novel application of what was said to be the "displacement effect" problem was relied upon by that appellant. The court in that case noted the absence of any basis in evidence or in logic justifying a "displacement effect" warning (at [36] ‑ [37]). Counsel for the appellant in the present case was counsel in Wimbridge. In the present case also, despite that earlier decision, there was no expert evidence, and no logical argument, advanced for the extension of the requirement to warn of a "displacement effect" to cases such as the present.
Particular (iv) cannot be sustained.
Conclusion
Although the delay in this case was not properly explained, it was relatively short, and it does not appear that any part of it was attributable to the appellant personally. If the proposed ground had been reasonably arguable, I would have granted an extension of time. However, it is not, and I would not extend time within which to appeal.
7
1