Thomas John Wellington v Queen

[1985] FCA 397

Re: THOMAS JOHN WELLINGTON
And: THE QUEEN
No. NTG 14 of 1985
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY OF AUSTRALIA
DISTRICT REGISTRY GENERAL DIVISION
Bowen C.J.
Northrop J.
Toohey J.

CATCHWORDS

Criminal Law - Identification Evidence - discretion to exclude photographs used for out-of-court identification - whether identification was based on hearsay and therefore inadmissible.

Criminal Law - consideration of the power of a trial judge to withdraw a case from the jury on the basis that it would be unsafe to convict.

HEARING

DARWIN
#DATE 16:8:1985

ORDER

The appeal be dismissed.

JUDGE1

This is an appeal by Thomas John Wellington, (Mr Wellington), against a conviction for assault occasioning actual bodily harm. He was sentenced on 17 May 1985 to imprisonment with hard labour for a period of eight months to commence from 17 May 1985.

The original notice of appeal contained 13 grounds of appeal. At the hearing before us the appellant obtained leave to file a supplementary notice of appeal. The supplementary notice of appeal contained new formulations of grounds 2, 3, 4, 9 and 10 of the original notice of appeal and added ground 14.

The grounds argued before us covered two broad areas, first, whether the trial Judge erred in the exercise of his discretion in receiving identification evidence given by two witnesses, secondly, whether the trial judge erred in not withdrawing the case from the jury upon the basis that it would, in the circumstances of the case, be unsafe to convict and, whether in any event, this Court should set aside the conviction upon the basis that this Court having regard to all the circumstances would regard the verdict as unsafe.

The assault in question occurred in the following circumstances. At approximately 8.30 p.m. on 13 February 1983 a group of fifty students from St Phillips College, Alice Springs, were returning to the College after attending a church service. The group was under the supervision of two "housemothers" from the College, one of whom, Miss Richards, gave evidence at the trial. The children proceeded down Todd Street and entered Anzac Oval, at the far side of which is St Phillips College. A group of youths, who had allegedly attempted to disrupt the church service attended by the students, stood outside the Shell Todd Service Station. It is alleged that the accused detached himself from this group and attempted to pick a fight with the last of the school children to pass the service station. He then allegedly pushed past Miss Richards who was standing at the entrance to the oval. At that point he turned and faced her and directed some "karate kicks" towards her face, none of which actually struck her. At that point Miss Richards was able to see him fairly clearly because lighting from Wills Terrace was showing. He was about five feet away. The accused then allegedly ran into the middle of the group of children already on the oval. By this stage the youths who had been standing outside the service station were also entering the oval.

Two fights broke out, one of which allegedly involved the accused and Mark Riley. Riley was kicked and punched and as a result suffered lacerations to his head, a broken nose and loosened teeth. The two fights were eventually broken up by bystanders. Miss Richards said the person engaged in fighting Mark Riley was the young fellow whom she had seen earlier at the gate to the oval, when he directed karate kicks at her and whom she had seen earlier interfering with stragglers from her group of children.

Later that evening, Miss Richards gave a description of Riley's assailant to the police. Some two weeks after the incident, Miss Richards and Leslie Bathern, a student at the College who witnessed the attack and gave evidence at the trial, were shown a folder of fifteen photographs by the police. Amongst these was a photograph (No. 8) of the accused. Both Miss Richards and Bathern separately identified the photograph of the accused as a photograph of Riley's assailant. On being asked whether there was anyone else there who might resemble the accused, Miss Richards selected another photograph (No. 3), which was of another person.

Miss Richards identified the accused as the assailant in committal proceedings before a magistrate and at the trial in court, indicating the accused, she said in answer to the question:

Q. "Are you able to see in this court today the man who you indicated originally in the photograph;

she replied:

A. "Yes, I believe the young man there is the man, but he doesn't have a moustache now."

Leslie Bathern, who had just turned 17 at the time of the trial, also gave evidence of identification. He was present on the night in question. He saw the person directing karate kicks at Miss Richards and he saw the same person engaged in a fight with Mark Riley. He was about 30 yards away. However, he seems to have had a reasonable view of the fight between the assailant and Mark Riley judging by his detailed description of it. His evidence was that he had previously seen the accused at a football match in 1980. When he heard other members of the group calling out "Hit him, Tommy" he recognized the assailant as Tommy Wellington.

As has been mentioned, Leslie Bathern identified the photograph (No. 8) of the accused as a photograph of the person who fought with Mark Riley.

Before us counsel for the appellant argued that the trial judge erred in the exercise of his discretion in allowing Miss Richards and Mr Bathern to give identification evidence. They were shown photographs after the police suspected the assailant was the appellant; there had been no identification parade; Miss Richards had picked two photographs, one of which was of a stranger; Mr Bathern, so it was submitted, was basing his identification on statements made by members of the group, which amounted to relying on hearsay evidence; the photographs should not have been admitted in evidence; and, altogether, the identification evidence was of little probative value and yet highly prejudicial. It should have been excluded.

It should be mentioned that when the photographs were tendered through Miss Richards, counsel for the accused at that time objected. However he did so on the ground of "lack of nexus" which we take to be lack of relevance at that stage. He added "I've no objection to a tender for identification."

The learned trial judge, who has wide experience of criminal trials, admitted the photographs. He added "I've considered the authorities before making that ruling; the recent authority such as Alexander's Case, ((1981) 145 CLR 395) before making that ruling." Whereupon counsel for the accused said: "Yes, your Honour, I'd seek an opportunity to address his Honour on the subject of the admission of the identification evidence at the close of the Crown's case.

It does not appear to us that the learned trial judge overlooked the discretion which he had to reject the identification evidence. His reference to Alexander's Case suggests he had the relevant principles in mind. It appears that he exercised his discretion in favour of admitting the evidence, buth then took strong measures in his summing up to warn the jury of the dangers in relying on the identification evidence.

It was also submitted that the trial judge erred in the exercise of his discretion in allowing Miss Richards to make an identification in Court. However we are not persuaded that his Honour erred in this respect.

It was submitted for the appellant that the trial judge should have withdrawn the case from the jury on the ground that there was not evidence on which a reasonable jury properly instructed could come to a conclusion of guilt beyond reasonable doubt. We reject this submission.

It was more strongly argued that the trial judge should have withdrawn the case from the jury on the ground that it would on the evidence be unsafe to convict.

It has now been decided that the Federal Court, sitting on an appeal from the Northern Territory, may set aside a verdict of a jury if in its opinion the verdict having regard to the evidence was unsafe (Chamberlain v R) 58 ALJR 133). However the weight of authority is against giving the trial judge an additional role, where he himself looks at the evidence before letting the jury pass upon it and comes to a conclusion whether or not a verdict of guilty on that evidence would be safe, of withdrawing the case from the jury, if in his view on the evidence it would be unsafe (See The Queen v Prasad (1979) 23 SASR 161; Attorney-General's Reference (No. 1 of 1983) (1983) 2 V.R. 410; and see Whitehorn v The Queen (1983) 57 ALJR 809 at p. 822).

But whether or not a trial judge may withdraw a case from the jury upon this ground, we see no error in the refusal of the learned trial judge to withdraw the present case from the jury. It appears to us that it was a case properly left to a jury properly instructed. We may add that no criticism has been directed against the summing up. The jury were instructed very fully and carefully on the subject of the identification evidence.

This brings us to the submission that we should set aside the verdict on the ground that it was unsafe. As we have indicated, we consider we have the power to set aside the verdict on the ground. However, we should mention that it is an intervention to be engaged in with care and caution. Having given careful consideration to the evidence, (particularly the identification evidence) to the circumstances, to the summing up and to the verdict, we are of the opinion the verdict was safe in the relevant sense and accordingly we reject the argument that we should set it aside as unsafe.

In the result, the appeal will be dismissed.