Traill v The Queen

[2019] SASCFC 122

Supreme Court of South Australia

(Court of Criminal Appeal)

TRAILL v THE QUEEN

[2019] SASCFC 122

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)

4 October 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING

Application for permission to appeal against conviction.

Appellant submitted that trial Judge failed to direct the jury properly on the weaknesses of the evidence identifying the accused.

It was contended that the trial Judge did not direct the jury on the lack of opportunity and difficulties to identify the accused and the reliability of the evidence where a witness may have been influenced by the opinion of another.

Held, per David AJ (Kelly and Parker JJ agreeing), refusing permission and dismissing the appeal:

1. Trial Judge adequately directed jury on limitations of identification and did not err in failing to direct jury that opinion of other witness may have influenced identification where accused was known to the witness.

Domican v The Queen (1992) 173 CLR 555, discussed.

TRAILL v THE QUEEN
[2019] SASCFC 122

Court of Criminal Appeal:   Kelly and Parker JJ and David AJ

1. KELLY J:             I would refuse permission to appeal.  I agree with the reasons of David AJ.

2. PARKER J:          I would refuse permission to appeal.  I agree with the reasons of David AJ.

   DAVID AJ.

3. The applicant appeals against his convictions for:

   a.Aggravated serious trespass in a place of residence;

   b.Aggravated causing serious harm with intent to cause serious harm;

   c.Aggravated assault; and

   d.Theft.

4. The applicant was tried jointly with his son, Jesse Traill, with the above offences.  Both were found guilty but Jesse Traill has not appealed against his convictions. 

5. It was alleged by the prosecution at trial that the applicant and his son broke into the home of three people, namely Jonathon Eldridge, Sue Gures and Michael Douglas, and assaulted each of them with claw hammers.  They also stole a laptop and mobile phone.  The issue at trial was one of identification.  There was no dispute that a break-in took place and that people had committed the offences upon the victims, but it was the applicant’s case at trial that two of the victims were wrong in their claims that the applicant was one of the attackers as he was home at the time. 

6. The sole ground of appeal relates to the trial Judge’s directions on identification and it is argued that they were deficient to the extent that there was a miscarriage of justice.

   The trial

7. The home invasion which resulted in the offences being committed occurred on 3 March 2016 at a unit in Gilles Plains which was the home of the victims, Eldridge, Gures and Douglas.  It was the prosecution case that the applicant committed a violent home invasion as part of a joint enterprise with Jesse Traill and a third unknown male.  The victim Eldridge sustained serious harm as a result of being attacked by the three offenders while his partner Gures was kicked in the chest and knocked down by Jesse Traill and had her laptop computer and mobile phone stolen. 

8. The case against the applicant turned upon the evidence of two of the victims who said they recognised him as one of the men.  Victim Douglas was unable to be located and did not give evidence at trial.  There were a number of surrounding circumstances supporting that recognition evidence but without that evidence there would be no case against him. 

9. At trial both the applicant and his son denied any involvement in the offence and the applicant gave evidence by way of alibi, which was supported by the evidence of his partner Sharona Davis and another son Adam Davis.  Jesse Traill did not give evidence. 

   The recognition evidence

10. As indicated, the prosecution case turned on the recognition evidence of the two victims, Eldridge and Gures.  Eldridge gave evidence that he recognised both the applicant and Jesse Traill as they were initially huddled over the front gate.  Having recognised the applicant at that time he said “Rick’s out the front. …”.  He said in evidence that when both the attackers entered the house there was nothing covering their faces, although he agreed that he told the police on an earlier occasion that the applicant’s beanie was partially over his face but not covering his whole face.  He gave evidence that he initially recognised the applicant at the gate based on his physique and body language and he had the opportunity to see his face after he entered the unit. 

11. The victim Gures gave evidence that when the men entered the house she recognised Jesse Traill and also recognised the applicant by virtue of his stature.  She said the applicant had been wearing a bandana which had fallen off when they were leaving and when he was smashing furniture in the house.  She gave evidence that the applicant’s face was uncovered when they were leaving and she gave evidence that she was “100 per cent certain it was him”.

12. There was evidence that both the applicant and his son Jesse Traill were known to the two victims.  However, it was some period of time since either of the victims had seen either the applicant or the co-accused.  In the case of the victim Eldridge it was five years and in the case of the victim Gures it was six years. Therefore, this becomes a question of recognition rather than identification, but I agree with the applicant’s counsel that the principles, directions and care that should apply to identification cases must also apply to a recognition case.

    The appeal

13. There is one ground of appeal, namely:

    The Learned Trial Judge failed to identify for the jury specific weaknesses in the identification evidence and other matters of significance which undermined the reliability of the identification evidence.  Consequently, the directions on identification evidence did not satisfy the Domican requirements. 

14. The Domican requirements as mentioned in the ground of appeal refer to the often-quoted principles set out in the High Court decision of Domican v The Queen[1] (“Domican”).In Domican Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:

    Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

    [footnotes omitted]

    [1] (1992) 173 CLR 555 at 561-562.

15. Counsel for the applicant, Mr Stratton-Smith, argues that the trial Judge’s directions on recognition were defective when applying those principles.

    The Judge’s directions

16. Her Honour directed the jury on the question of recognition thus:

    As you know, the case for the prosecution depends substantially on the evidence of Mr Eldridge and Ms Gures, who claim to identify and recognise both Jesse and Ricky as two of the offenders, and I need to give you a very specific direction about this evidence and how you must approach it.

    You should approach evidence of identification with caution.  The experience of the courts is that honest witnesses can be mistaken in making an identification and miscarriages of justice have occurred as a result. Witnesses can be mistaken, even though they are quite sure of their identifications.  A mistaken witness who is sure of their identification can be a convincing witness, and acceptance of that evidence can lead a jury to error.

    A number of apparently convincing witnesses as to identification can be mistaken in the same way, perhaps because of a similarity between the real culprit and the person selected.  In seemingly supporting one another, the evidence of such witnesses can falsely appear to bolster the case against an accused.

    The ability to form and to retain an accurate impression of a culprit may be affected by many factors, including the witness’s involvement in the incident, his or her state of mind at the time of observation, as well as the frailty of human observation and memory, and a tendency to reconstruct events in the mind over a period of time.

    You have probably had experience in your own lives of mistakes as to people’s identity.  How often is it that you have thought you have seen someone, say at a supermarket, only to find that it was not that person at all?  It can happen even when the person is previously known, even well known, to the observer.  But of course the risk of error is much greater where the person is not so well known.

    While I am required to alert you to the dangers attendant upon acting on identification evidence, I must, however, also say to you that if, after careful examination of the evidence of Mr Eldridge and Ms Gures, the reliability of which you have had ample opportunity to form a judgment about, and after properly considering the warning which I have given, you are satisfied about the correctness of the identification of either accused or both of them as offenders, then you are entitled to act upon the evidence of identification.

    In approaching your task you should examine carefully, first, the circumstances in which the observation occurred.  How long did Mr Eldridge and Ms Gures have the persons they have identified as Jesse and Ricky under their observation during the incident?

    At what distance?  In what light?  Was the observation impeded in any way?  How often had Mr Eldridge and Ms Gures seen either accused before and when had they last seen them?

    Was there any special reason for remembering either of them?  Was there anything distinctive about the appearance of either of them?

    How long elapsed between their observation of the offenders in the incident and their subsequent identification of Jesse and Ricky to the police?

    Did anything occur between the time of the observation of the culprit and the identification to the police which could have contaminated the witnesses’ memory of the culprit?

    How sure was either witness in selecting Jesse during the police identification procedure?

    You have heard this evidence a few days ago and it has been repeated to you in the closing addresses, but it is important so I will remind you of the evidence on this topic.

    Mr Eldridge gave evidence that he first met Ricky in about 1998 in Victoria.  He had next seen him when he was walking down Pirie Street one night and that was in about 2002.  He said Ricky was very supportive of him and he used to be his best friend, and he also said he lived with Ricky’s mother for about six months and at that time he was seeing Ricky about once every week or two.  He said they would go out drinking and partying.

    Mr Eldridge said he first met Jesse also at around that time and that he said that was when Jesse was about five years old.  Mr Eldridge said he did not see Ricky for about three years between the years of 2005 to 2008 and he remembered seeing him at a friend’s son’s birthday party.

    He also gave you the evidence relevant to the motor vehicle accident and his compensation payout and that he said that it was in 2011 that he spent several weeks with Ricky drinking and taking drugs and that Ricky would drive him around to his lawyers at that time.

    He said that as at 3 March 2016 he had not seen Ricky since about 2011.

    As to Jesse, Mr Eldridge said he had also last seen Jesse in around 2011, and he said that at that time Jesse had been living with Ricky.

    In cross-examination he agreed he was not hanging around with Jesse at that time and he would only have seen Jesse once or twice then when he was catching up with Ricky.

    He agreed that he had not seen Jesse going from a teenager to an adult, nor had he seen him go from a kid to a teenager.

    Turning to Mr Eldridge’s observations of the offenders during the incident, Mr Eldridge said that in the early hours of 3 March 2016 he was inside on the sofa with Ms Gures and they were about to put a movie on.  He said the power had been off earlier in the day but had come back on at around 11.30 that night.  He said the dog started barking, he went outside through the back door, which led out onto the pergola, and he stuck his head around the side of the unit, and it was dark, given the time of day.  He said there was a light on in the backyard and also the front porch light was on.  The loungeroom light was not on but he thought there might have been a light on in the kitchen.  There was no lighting down that northern side of the unit between the back of the unit and the gate.

    He said he looked down the side and saw three people huddling over the gate and he marked that gate on the plan.  You have also seen that gate in the photographs. He said he recognised two of the men as Jesse and Ricky and that they were standing next to the gate but he did not recognise the third man, and he said the gate was about five-and-a-half feet high and it was shut at the time.

    He said he could see their bodies and he said that Ricky and Jesse were both quite tall.  He said ‘I knew it was them straightaway’.  He was not sure which of the three men was closest to the house.  He said: ‘I know Rick’s body language.  I’ve known him for long enough.’ He then ran inside and screamed to Ms Gures ‘Rick’s out the front, Rick’s out the front’, and he said he ran in to get Michael and asked for his help and said: ‘Can you help me please?  Rick’s here, Rick’s here.’ He said he could see Jesse trying to rip the front screen door and that was when he looked through the window to the right-hand side of that door.

    Mr Eldridge said that after the men entered the house Rick pushed everyone out of the way and said ‘Right, you cunt’ and started coming towards him so he picked up a chair and pushed him away.  He said all three men were carrying hammers.  He then ran outside through the laundry door and he said that Rick and the third man pursued him down the driveway.  Rick had thrown a hammer at him and he had jumped it.

    Mr Eldridge said that he went back inside and he saw Jesse pushing Ms Gures around and he said he was kicking her.  He said he pushed Jesse away but Jesse then pursued him through the kitchen.  He said that it was then that the men started going at him with hammers.  He managed to block a few hits but he was knocked in the head and fell to the ground.  He did not know which of the three men had hit him in the head.  He rolled up in a ball on the ground, and was hit on his leg, his hip and his head.  He was unsure if he was knocked out but when he came to he went into the bathroom and saw blood squirting from his head, and he had not seen any of the offenders again that night.

    Mr Eldridge said that Ricky was wearing a yellow Hi-Viz top and a beanie and that Jesse was wearing a green cap.  He also said that when the three men were in the house there was nothing covering their faces.  In cross-examination he agreed he had told the police that Ricky’s beanie was partially pulled down on his face but he said it was only pulled down to the extent that Ricky could still see and was not covering his whole face.

    He was asked about the bandana that police found at the scene and he said he had never seen that bandana that night.

    Despite his brain injury, Mr Eldridge denied having any memory problems, although he did acknowledge he had some short-term memory issues. 

    You will remember that Mr Eldridge participated in the identification procedure with police on 14 May 2016, and he was presented with a folder containing eight photographs, and you heard Detective Blandford’s evidence about that procedure and you watched a video recording of it.

    You will recall that Mr Eldridge identified photograph 1, and although you will need to watch the recording to be reminded of the exact words used, he said something like he was ‘not 100% but it looks a bit like Jesse’, that he had ‘similar facial features’ to Jesse, and he also said something about his eyesight not being that crash-hot.  You have a photocopy of the eight photographs that were presented to Mr Eldridge in that ID procedure, being p.4 of Exhibit P8, and you will remember Mr Eldridge signed and dated the back of photograph 1 from that photo pack.

    In court Mr Eldridge said of that particular identification procedure: ‘I wasn’t 100% about it but I’m pretty sure that was a pretty bad photo of Jesse at the time.’

    Now, I have already reminded you of some of the difficulties associated with evidence of recognition or identification, and that is difficult enough when you see someone face to face, but it is even more difficult from a photograph.  Photographs are obviously taken in quite staged conditions, possibly at a time when the person in question has a different haircut or they are facing at a different angle or wearing maybe different clothes.  Therefore you should scrutinise this type of identification with great care.

    Turning to Ms Gures, since we are talking about the incident I will go to her observations on the night of the incident first.  She gave evidence that on 3 March she had woken in the early hours of the morning, as she often did, and she explained she had a brain tumour with spinal injuries and she had to take a lot of medication, and she said that her cognitive ability was affected by her condition.  She denied that her condition in any way impacted on her memory of what had happened that night.

    She said it was about 3.30 a.m., she and Mr Eldridge were on the sofa in the loungeroom watching a movie and the loungeroom was in darkness except for the laptop. She also said the front porch light was on and that it was her practice to leave the outside lights on and the inside lights off at night as a measure of security. She could not recall if the light outside the back of the unit was on or off.

    She said they heard clamouring and knocking outside and that people were trying to break in and that she did not at first recognise any of these people.  However, when they came inside she said there were three men, that she recognised Jesse Traill and that he had said ‘What the fuck, that’s my dog’ when Gypsy had walked into the room.  She said she recognised the second man by his stature as Rick Traill.  She did not recognise the third man, who had his face covered with ‘a balaclava or something’.  She said all three men had claw hammers.

    Ms Gures said she tried to get away but the man she identified as Jesse had kicked her in the chest and knocked her down to the ground and dragged her back inside.  She described him standing over her, holding a hammer, and that she told him he could go his hardest as she was dying of cancer.  She said that Ricky and the other man were hitting Mr Eldridge with their hammers, that they hit him on his head and on his leg and that there was blood everywhere.

    She said that the last thing she can remember was the man she identified as Rick Traill with his hammer pointing at her and that he was smashing the furniture. She said that Rick had been wearing a bandana which had fallen off when they were leaving and when he was smashing up the furniture.

    She said that Ricky was wearing a Hi-Viz top and that she was 100% certain it was Ricky.  She disagreed that she was mistaken and that she only thought the second man was Ricky as she had identified and seen Jesse.  She was not asked what the man she identified as Jesse was wearing.

    You might also recall that Ms Gures participated in a similar identification procedure on the same day and was presented with a folder containing eight photographs.  She identified photograph 7 as Jesse and again, while you will need to look at the video, she said something like that she had only seen Jesse twice before that night but the last time she had seen him was in 2011, that she had a brain tumour and that her vision was affected by that.  Again, you have a photocopy of the photographs that were presented to Ms Gures, and I remind you she signed and dated the back of photograph 7 from that photo pack.

    Ms Gures also gave evidence as to how she knew Ricky and Jesse.  She said she first met Ricky in 2010 when he was giving her husband a lift somewhere and that she had seen him on another occasion in about 2010 or 2011 when she and Mr Eldridge had bought a car for one of Ricky’s sons.  She could not say for sure if the car was for Jesse or for the other son, whose name she thought was either Adam or Aaron.  However, she recalled going to the Motor Registration Department at Elizabeth with Mr Eldridge, Ricky, Jesse and the other son in connection with the purchase of this car.  She was adamant that Jesse was there and that that was the only time she could recall meeting Jesse, although she said she might have also seen him again at about that time in the process of buying that car.

    As I said before, it is an agreed fact that Jesse’s date of birth is 8 August 1995, meaning in 2010 he would have been about 15.  It was an agreed fact that Adam’s date of birth was 1 April 1992, meaning he would have been about 17 or 18 in 2010.

    Ms Gures gave evidence that she had not seen either Ricky or Jesse between the time of the purchase of that car in 2010 until she believed she saw them again at her unit on 3 March 2016.

    She was adamant that she recognised both Jesse and Ricky as being in her house at that time, and she disagrees that she could have mistaken Jesse for Adam or that she was mistaken in her identification of Ricky. She said she recognised Jesse the minute he was standing over her with the hammer, and she denied that she had been told by her husband to say it was Jesse.

    As I said before, mistakes can happen and sometimes confident witnesses are mistaken, but there is scope for a mistake as to a claimed recognition of a person, even if someone is previously known to the witness or even well known to that witness.

    If, after scrutinising the evidence as to the identification of an accused as an offender with great care, you are satisfied about the truthfulness of it and the accuracy of it, and bearing in mind the caution I have given you, if you are still so satisfied then you can act upon it as true that an accused was indeed an offender.

1. I have quoted the trial Judge’s directions in full as there is an attack upon them in this appeal.  Certain parts of the directions quoted are not relevant to this appeal as they are concerned specifically with Jesse Traill.  However, there must be an appreciation of the full content of the trial Judge’s directions.

2. Mr Stratton-Smith argues that there were two specific matters which the trial Judge failed to address when directing the jury, and the absence of such directions is fatal to the convictions.  He argues that the trial Judge should have addressed the jury about the lack of opportunity by the victims to observe the intruders and the possibility that the comment by Eldridge, when observing the applicant at the gate, that it was the applicant may have influenced the identification of Gures.  In other words, the jury should have been directed that the identification of Gures may have been because the opinion by Eldridge that it was the applicant at the gate may have been implanted in her mind. 

3. Counsel for the respondent, Mr Lesses, argues that the first complaint by the applicant has no merit as the trial Judge in her charge carefully and thoroughly examined and warned the jury about the lack of opportunity and difficulties there may have been in identifying the attackers.  Before dealing with the evidence the trial Judge posed a series of questions, as set out above, directing the jury to examine the circumstances in which the observations occurred and the length of time the victims had to identify both assailants.  Her Honour warned about the distance and the light and whether there was any impediment and other warnings about the difficulty of recognition.  After that the Judge, in great detail, reminded the jury of the evidence itself.  Mr Stratton-Smith argues that by doing it in that way the Judge has not related the warnings to the specific facts of the case.  In my view, the way the trial Judge went about her task was perfectly proper and cogent.  After posing a series of questions that amounted to clear warnings, she immediately set out the facts concerning the recognition of both victims and the warnings would have been at the forefront of the jury’s mind.  In my view, in the context of this case, that would have the same effect as taking each piece of evidence and giving a warning about that individually.  To do it in the way that the trial Judge directed the jury instead of the latter method merely amounts to a matter of presentation. 

4. In my view the trial Judge did not err in failing to direct the jury that the comment by the victim Eldridge that it was the applicant at the gate may have been an influence on the recognition evidence of the victim Gures.  Gures had known the applicant and had a view of his face whilst he was in the house.  In the context of this case such a warning was not necessary. 

5. In my view the trial Judge’s directions on the recognition evidence of both witnesses was thorough and fair and the sole ground of appeal has not been made out. 

   Conclusion

6. I would refuse permission to appeal.