SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v BBA [2006] QCA 234 PARTIES: R v BBA (appellant) FILE NO/S: CA No 276 of 2005 DC No 37 of 2005 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal DELIVERED ON: 23 June 2006 DELIVERED AT: Appeal against Conviction Childrens Court at Townsville Brisbane HEARING DATE: 30 May 2006 JUDGES: ORDER: CATCHWORDS: McMurdo P, Keane JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made Appeal dismissed CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - GENERALLY - appellant convicted by jury of one count of unlawful deprivation of liberty and one count of common assault - appellant and complainant both children - appellant argued learned trial judge had not sufficiently warned jury about convicting on basis of evidence of purported identification of accused child by adult witness - witness said photograph on photo board "looked most like" appellant - additional evidence capable of identifying appellant as person who assaulted complainant - judge gave direction on use of witness's evidence - witness's evidence was subsequently read to jury but learned trial judge did not repeat the directions - whether learned trial judge's directions were inadequate and whether there is reason to doubt propriety of the verdict Alexander v The Queen (1981) 145 CLR 395, cited Crofts v The Queen (1996) 186 CLR 427, cited Domican v The Queen (1992) 173 CLR 555, cited Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited Pitkin v R (1995) 130 ALR 35, considered R v DAK [2005] QCA 211; CA No 45 of 2005, 17 June 2005, cited

2 2 R v Davidson [2000] QCA 39; CA No 369 of 1999, 28 July 2000, cited R v Reiken [2006] QCA 178; CA No 7 of 2006, 26 May 2006, cited R v Zullo [1993] 2 Qd R 572; [1993] QCA 208, cited COUNSEL: SOLICITORS: S G Durward SC for the appellant J A Greggery for the respondent Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent [1] McMURDO P: The appeal should be dismissed for the reasons given by Keane JA. [2] KEANE JA: On 14 October 2005, the appellant was convicted upon the verdict of a jury after a trial conducted in the Childrens Court of Queensland held at Townsville of one count of unlawful deprivation of liberty and one count of common assault. The offences were alleged to have been committed on 18 June The appellant was born on 2 November At the time of the trial the appellant was 14 years of age. [3] The appellant filed a notice of appeal which raised a number of grounds of challenge to his conviction. Only one of these grounds was supported by argument on the hearing of the appeal and the other grounds of appeal were abandoned. The appellant argued that the learned trial judge erred in not excluding the evidence of the purported identification of the accused child by Adam Robert Foster. In the course of argument, it emerged that the appellant's complaint was not that this evidence had been admitted, but rather that the trial judge had not sufficiently warned the jury of the dangers of convicting the appellant on the basis of this evidence. [4] In order to discuss the appellant's argument intelligibly, it is necessary briefly to summarise the case made at trial against the appellant. The Crown case at trial [5] The complainant was a female child born in March Her evidence-in-chief was in the form of two interviews with police which were tendered pursuant to s 93A of the Evidence Act 1977 (Qld). On 18 June 2005, she and her friend, H, were visiting Palmetum Park at Annandale. They were approached by a young man. This boy grabbed her and put his mouth on hers. He also pushed her down and lay on top of her. When she stood up, he pushed her down an embankment. He then rode away on his bicycle. [6] H, whose evidence consisted of her interview with the police, confirmed that this incident had occurred. [7] The complainant said that the boy was wearing a blue T-shirt with red sleeves and the number "5" on the back. There was some red and white writing on the front which she thought might have been "A-Mart". He was wearing a blue hat and blue shorts. He had a silver CD player in his pocket. She said that he was riding a silver,

3 3 black and red bicycle. He was described by the complainant as aged about 14 to 16 years, having short blondy-brown hair and pimples. [8] H said that the boy was wearing a navy blue T-shirt with red sleeves and a blue number "5" on the back. H said the boy was wearing black pants. She said he was wearing blue sneakers with white shoe laces and a blue cap. She said that the boy was 14 to 16 years old with brown hair and freckles or "skin coloured spots" of some kind. [9] Adam Foster gave evidence that he was at the "bike jumps" at Annandale on 18 June 2005, digging out and building bike jumps. He saw two girls riding around on a bike taking turns to ride it one at a time. He also saw a "guy" who was wearing a hat, sunglasses "over a hat" and a red and blue FUBU shirt with a white number "5" on his back. He was riding a Huffy brand bike which was silver, black and red. It had a "distinct bar through the middle of the bike". This person was present for about 45 minutes before he left the area where Mr Foster was digging jumps and came back after about 15 minutes. Mr Foster spoke briefly to this youth. At this time, Mr Foster saw that the youth was wearing a silver Discman, which Mr Foster described as "like a little CD player with headphones". Mr Foster left the park. As he did so he saw that the two girls were still present and that the young man was returning to the park. Mr Foster later returned to the park. At that time, neither the girls nor the young man were there. [10] Eight days later Mr Foster was shown a photo board by the police. There were 12 photographs on it. Those photographs were of teenage Caucasian males with fair to brown hair. Mr Foster chose photograph number 6, a photograph of the appellant, on the basis that he said that it was the photograph which, of those presented to him, "mostly looks like" the male person he had seen riding the Huffy bike at the bike jumps on 18 June. [11] In cross-examination, Mr Foster conceded that his description of the distinctive bar on the Huffy bike of which he spoke in his evidence had not been mentioned in his original statement to the police. Mr Foster also said that he saw other male children riding bikes in the area where he had been on 18 June It was not suggested to him that any of these youths were riding a bike similar to that which he had described, or were attired similarly to the youth he had described. [12] Constable Robyn Godfrey was involved in the investigation of the complaint. She and other police compiled Comfit pictures of the complainant's assailant on the basis of descriptions given by the complainant and H. [13] Constable Godfrey showed the Comfit picture to people in the Murray Sporting Complex on 25 June On that occasion, the appellant approached Constable Godfrey on his silver, black and red push bike. He said: "What are youse doing?" Constable Godfrey showed him the Comfit picture and said: "We're looking for this male person. He's assaulted a young girl at Palmetum Park. He was wearing a blue FUBU shirt with red sleeves." The appellant said: "I've got a shirt like that." She said: "What colour are the sleeves?" He said: "Red." She said: "Does it have a number on the back?" He said: "Yes, 05." The appellant was riding a small BMX bike. It was silver, red and black, with "Huffy" on the main bar. The appellant said: "So, did he punch her?" Constable Godfrey declined to discuss the matter further with the appellant on that occasion.

4 4 [14] A police search was later conducted at the appellant's home. A silver, red and black BMX Huffy brand bicycle, a silver Discman, and a pair of sunglasses were found. A shirt with the number "50" on the back was also found. [15] The appellant was interviewed by Constable Smith on 27 June He said that he purchased his bicycle the day before the incident, and that he was out riding his bicycle on the day of the incident, but he denied being near the scene of the assault. He said that he was familiar with the area in question but had not been there for seven months. He denied owning a shirt of the kind which Constable Godfrey said he had described in their conversation the previous day. When asked why he had told Constable Godfrey that he owned such a shirt, he said: "I didn t know that was going to happen so I was speaking shit." He was further asked: "And do you agree that you volunteered the information, you told the police officer that you owned a - a blue FUBU shirt with red sleeves and that you even volunteered the information that it had a number 5 on the back of it? Why did you say that?" He replied: "Just to piss her off." When he was pressed with the evident illogicality of this answer, he said: " not piss her off, just waste her time." He admitted that he owned a silver Discman, and a pair of sunglasses. The argument on appeal [16] The appellant's argument focuses upon the evidence of Mr Foster in which he said that this photograph was the one which "looked most like" the youth he had seen on the day in question. [17] The appellant contends that this evidence does no more than suggest that a person who looked more like the appellant than the other photographs on the photo board was riding a bike in the locality of the offences on the day in question. The appellant makes the valid points that identification evidence may be inherently unreliable because of the frailties of human powers of observation and recollection, 1 and that evidence of mere resemblance is not identification. 2 But the photo board evidence was not relied upon to identify the appellant. The evidence of Mr Foster's photo board "identification" of the appellant was one strand in a circumstantial case of identification of the appellant as the young man who attacked the complainant. [18] It may be accepted that this evidence was of limited value. The learned trial judge directed the jury in strong terms as to the limited value of the evidence as one aspect of a circumstantial case against the appellant, and of the need to approach the evidence of Mr Foster's photo board identification with "a great deal of caution". It is not necessary to set out the terms of his Honour's direction in full because it was accepted that the terms in which this warning was given were sufficient properly to instruct the jury. The appellant contends that the trial judge's cautionary comments were not sufficient to protect the appellant from the prejudicial effect of this evidence only because they were not repeated after the jury had asked that Mr Foster's evidence be read to them, and it had been read to them. [19] In Pitkin v R, 3 the High Court quashed the conviction in that case because there was no evidence identifying the appellant other than the eyewitness evidence that the photographs which she was shown "looked like" the person she saw commit the Domican v The Queen (1992) 173 CLR 555; Alexander v The Queen (1981) 145 CLR 395. Pitkin v R (1995) 130 ALR 35. (1995) 130 ALR 35 at

5 5 offence. But as this Court pointed out in R v Reiken, 4 in Pitkin v R, an identification in those terms was the sole evidence upon which the Crown relied to implicate Mr Pitkin in the offence. Here it is clear that Mr Foster's evidence was not relied upon by the Crown as constituting evidence of positive identification of the appellant as the assailant. Mr Foster's evidence of the photo board identification was admissible as one strand of evidence which, with other evidence, might establish that the appellant was the assailant. [20] It is to be emphasized, at this point, that it is because of the "vagaries of human perception and recollection" 5 that evidence of visual identification of an accused by a witness, who is not familiar with the appearance of the accused at the time of the alleged offence, is regarded as "inherently fragile". In the present case, there was other, more objective and therefore less "fragile", evidence which tended to establish the link between the appellant and the assailant as a boy riding a distinctive bicycle, wearing a FUBU shirt with the number "5" on the back and listening to a silver Discman. That evidence was significantly less likely to be subject to the "vagaries of human perception and recollection", and to be, as a result, insufficient to establish that the appellant was the assailant. [21] The evidence identifying the appellant as the person who assaulted the complainant was thus not limited to Mr Foster's subjective judgment of the resemblance between the young man he saw and the appellant's photograph. The prosecution was able to point to the silver, red and black Huffy brand BMX bike, the silver Discman, and the sunglasses found at the appellant's home. The prosecution was also able to point to the appellant's admission, albeit one which he later retracted, that he owned a shirt of the kind described by the complainant and H. The descriptions of the offender by H and the complainant were not inconsistent with the appearance of the appellant. These matters in combination amount to a compelling case. [22] The appellant also criticizes Mr Foster's evidence because of his initial failure to mention the distinctive bar on the bicycle ridden by the youth he said he saw on the day in question. The significance of Mr Foster's failure to mention the distinctive bar was a matter for the jury. For reasons which I will mention, it is clear that the jury scrutinised Mr Foster's evidence closely. The jury's verdict is consistent with their acceptance of Mr Foster's evidence. Mr Foster had no reason not to be truthful; and his evident interest in bicycles might tend to confirm his reliability on this point. [23] Similarly, the significance of the apparent failure of the police search of the appellant's home to uncover a shirt of the same kind as that described by the complainant and H was a matter for the jury, bearing in mind the appellant's earlier admission to Constable Godfrey. The jury were entitled to regard the appellant's explanation for his admission to Constable Godfrey as being as unconvincing as it was unedifying. If the earlier admission was true, the appellant had ample opportunity to dispose of the shirt he had spoken of to Constable Godfrey. [24] While it is true that there may have been many such bikes, shirts, Discmans, and sunglasses in use by youths in Townsville, the likelihood of the same combination of insignia at the scene of the offences at about the time the offences were 4 5 [2006] QCA 178; CA No 7 of 2006, 26 May 2006 at [16] - [17]. Alexander v The Queen (1981) 145 CLR 395 at 426. See also Domican v The Queen (1992) 173 CLR 555 at 567.

6 6 committed is remote. While it is true that there were other male bike riders in the vicinity of the location where the offence occurred and that there may have been any number of Huffy bikes for sale in Townsville, there was no suggestion that any of the other male bike riders seen at the park rode such a bike or displayed the other insignia which were connected by the complainant, H and Mr Foster with the appellant. [25] On the evidence, there was no reason to doubt that the offences had occurred, and there was evidence which, in its totality, objectively identified the appellant as the offender. On the evidence, there was no "candidate" as the offender other than the appellant. The evidence does not raise a rational hypothesis that some other person of about the same age as the appellant, identifiable by these same objective features, may have been in the vicinity of the complainant at the time of the offences so as to have the means and opportunity of assaulting her. [26] It is unlikely that the jury could have treated the photo board evidence alone as tending to establish the identity of the appellant as the assailant. I have already referred to the strong cautionary comments made by the trial judge. The jury, after considering their verdict for a full day, asked for the entirety of Mr Foster's evidence to be read to them. This evidence was read in full to the jury. The appellant's complaint is that the judge did not repeat the warning relating to the use which might be made of the photo board identification. It is argued that having had Mr Foster's evidence read to them in full, the jury should have been reminded of the warning which they had previously been given. But the fact that the jury asked for Mr Foster's evidence to be read again suggests that they approached Mr Foster's evidence with great care, both with respect to the reliability of his evidence in relation to his recollection of the special bar on the appellant's bicycle, and in relation to the probative value of his photo board evidence. There is no reason to think that the jury did not understand the cautionary direction which the judge had given in relation to this evidence or that they needed to be reminded of that warning. It is well-established by authority that the jury may be taken to have understood and acted upon the direction they were given. 6 Conclusion and order [27] The appellant has not established that the trial judge's direction to the jury was inadequate or that there is a reason to doubt the propriety of the verdict. [28] The appeal should be dismissed. [29] JONES J: On 14 October 2005 in the Childrens Court of Queensland the appellant was convicted by a jury of two offences namely deprivation of liberty and common assault. [30] The charges arose from an incident on 18 June 2005 when a nine year old girl was detained and assaulted by a young male person at Annandale, Townsville. [31] The prosecution alleges that the young male person is the appellant. The evidence relied upon to support this allegation comes from the complainant, her nine year old companion, H, and a youth named Adam Foster. The appellant was not known to 6 Crofts v The Queen (1996) 186 CLR 427 at ; Gilbert v The Queen [2000] HCA 15 at [13] and [31]; (2000) 201 CLR 414 at 420 and 425; R v Davidson [2000] QCA 39; CA No 369 of 1999, 28 July 2000 at [13]; R v DAK [2005] QCA 211; CA No 45 of 2005, 17 June 2005 at [17].

7 7 any of these witnesses so his connection with the offence depends on the adequacy and accuracy of his identification by them as the offender. The evidence, in this respect, is entirely circumstantial. There is, in the evidence of the three witnesses, a high degree of consistency in their descriptions of the person, his clothes, the bicycle he was riding and the fact that he was carrying a Discman player. A bicycle and a Discman were later seized from the appellant's residence and these items matched the descriptions given by the witnesses. The details of these items as well as those of the clothing and physical characteristics of the offender are referred to in the judgment of Keane JA and need not be repeated here. [32] Adam Foster, in his initial statement to the police, failed to describe an unusual feature of the offender's bicycle which he referred to in his evidence. Whether this failure or oversight impugned his observation or his credibility, were simply matters for the jury and were appropriately left for their consideration. [33] The substantial issue on this appeal is whether the evidence depicting Adam Foster's attempt at photo board identification should have been presented to the jury. He was shown the photo board (ex 28) by Detective Smith on 26 June 2005 some eight days after the offence. The appellant's photo was located in position number 6. Foster's response to viewing the photo board was conveyed to the jury by Detective Smith in lieu of the usual procedures of showing the videotape. The evidence of Foster's response was - "ADAM FOSTER: Number 6 mostly looks like the same fellow that was at the bike jump. DETECTIVE SMITH: All right. So, number 6 was the closest - you're saying 6 is the closest to the person that you saw that day at the bike ramps? ADAM FOSTER: Yeah." 7 [34] In the cross-examination of Foster, the following exchange occurred:- " when you looked at the photo board you picked the photograph number 6 as being the person who most closely resembled the male person at the ramps with the that you were talking about, didn t you?-- Yes. That person, you d never seen him before had you?-- No." 8 As a result of that attempted identification by the photo board procedure, there was no identification in fact but merely the circumstance of a resemblance between the offender and the person photographed. [35] In summing-up to the jury the learned trial judge gave appropriately strong directions as to the dangers associated with identification generally and further warnings specifically directed to the use to be made of photo boards. In reference to Adam Foster's identification he said - "But I stress to you, members of the jury, having highlighted these several things, I stress to you that in this case Adam Foster does not purport to identify the person in number 6, that is the accused, as the offender. He does not purport to do that. At best he says, 'Of the 12 people on that display he looks the most like the person I saw'. 7 8 Appeal Record 123/1. Appeal Record 115/5

8 8 Now, I tell you as a matter of law, members of the jury, that standing alone that evidence would not be enough upon which to base a verdict of guilty. On that evidence alone you could not, I direct you, return a verdict of guilty." 9 [36] The jury having deliberated for more than 24 hours sought redirections which extended overnight and the morning of the next day. In particular the jury asked that the evidence of Adam Foster be read over to them. The learned trial judge obliged, the jury retired and returned a short time later with a verdict of guilty on both charges. [37] Counsel for the appellant contends that having thus repeated Foster's evidence about the identification the learned trial judge ought to have repeated the warning referred to above. [38] Adam Foster's evidence occupies 11 pages of the trial record. The reference to his photo board identification is dealt with in 20 lines in his evidence-in-chief 10 and in five lines in cross-examination 11 where he agreed that he "picked the photograph number 6 as being the person who most closely resembled the male person at the ramps with the - that you were talking about". The only relevant passage of evidence was that set out in para [33] above. Counsel at trial (who was not counsel on appeal) did not seek to have the subject warning repeated. In my view there would be no requirement for the learned trial judge to do so. The instructions given during the summing-up were clear, forceful and correct as required by law. There is no reason to expect that his directions as set out in para [35] above were not followed. [39] The substance of Adam Foster's evidence went to the circumstantial elements from which identity could be inferred. In R v Zullo 12 the Court of Appeal considered the extent of directions required by law as laid down in Domican 13. The Court said (at p 578) - "Identification may be wholly or partly indirect, depending, for example, on clothing as in Ramsden [1991] Crim. L.R. 295 referred to in volume 1 of Archbold at p or upon identification of a person accompanying the offender: see Bath [1990] Crim. L.R. 716, 717. Domican should not be applied as if what the High Court said were a statute, but there appears to be no reason for declining to apply it where the identification, although visual, is two-stage: where the observer of events ascribes certain characteristics to the offender, and other evidence identifies the accused as having those characteristics." (my emphasis) [40] The characteristics relied upon to identify the appellant as the offender in this case related to features of his clothing, his bicycle and certain facial features and the property he was carrying. The offences occurred in an area where there was only a few people. No other person was seen in the area with even a few of the characteristics which described the appellant. Each witness described a combination Appeal Record 164/50-165/10. Appeal Record 109/35. Appeal Record 115/1. [1993] 2 Qd R 572. (1992) 173 CLR 555.

9 9 of the features. Whilst the combination of features observed by each witness was not identical there was a high degree of consistency. [41] In addition there is evidence of the appellant's intrusion when police officers were making inquiries and the admissions he made as to ownership of the shirt described by witnesses. As well there is the evidence of what was found at his residence. From all of this evidence, largely unchallenged, the jury could safely and reasonably draw the inference that the offender was indeed the appellant and that there was no other inference consistent with his innocence reasonably open. [42] In my view there is no irregularity in the conduct of the trial. I agree with the reasons prepared by Keane JA. The appeal should be dismissed.