New South Wales Court of Criminal Appeal CITATION : R v King [2002] NSWCCA 365 FILE NUMBER(S) : CCA 60929/01 HEARING DATE(S) : 23 August 2002 JUDGMENT DATE : 2 September 2002 PARTIES : Crown - Respondent Mathew James King - Appellant JUDGMENT OF : Hodgson JA at 1; Simpson J at 6; Smart AJ at 36 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0173 LOWER COURT JUDICIAL English DCJ OFFICER : COUNSEL : GIO Rowling - Crown DN Stewart - Appellant SOLICITORS : SE O'Connor - Crown Ross Hill & Associates - Appellant CATCHWORDS : robbery whilst armed with an offensive weapon - identification evidence LEGISLATION CITED : Evidence Act 1995 DECISION : Appeal against conviction dismissed. IN THE COURT OF CRIMINAL APPEAL 60929/01 HODGSON JA SIMPSON J SMART AJ 2 September 2002 REGINA v Mathew James KING Judgment 1 HODGSON JA: I agree with the order proposed by Simpson J, and with her reasons. 2 I also take the view that, even if there had been some shortcoming in the directions, leave should not be granted under r.4 of the Criminal Appeal Rules to rely on such shortcoming, no objection having been taken at the trial. 3 It is plain that the jury found beyond reasonable doubt, as it was entitled to do, that the appellant had possession of the number plates UMG 887 on 30 April 2001, when he booked into Ettalong Beach Village, those plates having been stolen on 25 April. It is plain that, having rejected the appellant's denial that he had such possession on 30 April, the jury inferred beyond reasonable doubt, as it was entitled to do, that the appellant was the person seen by Ms. Lynn to be in possession of those plates (albeit placed on a different vehicle) on 26 April and 31 April. Thus, the jury rejected the appellant's denial that he was that person. 4 The jury was not invited to reason by way of consciousness of guilt, and no directions were given on that matter. Nevertheless, in my opinion this Court, in deciding whether a miscarriage of justice has occurred because the jury was given allegedly inadequate directions on identification, can have regard to what to my mind is extremely powerful corroboration of the identification by Ms. Lynn of her assailant with the person she saw on 26 April and 1 May, namely the appellant's untrue denial that he was the person she saw on 26 April and 1 May. 5 Having regard inter alia to that consideration, even if there had been a shortcoming in the directions concerning identification, I would not have considered any miscarriage of justice had occurred and would not have granted leave under r.4. 6 SIMPSON J: On 26 November 2001 the appellant was indicted in the District Court on a charge of robbery whilst armed with a dangerous weapon, and, alternatively, robbery whilst armed with an offensive weapon. He was acquitted by the jury of the primary charge but convicted on the alternative. On 7 February 2002 he was sentenced to imprisonment for seven years with a non-parole period of five years and three months. He now appeals against the conviction. the Crown case 7 The Crown case was that, in the evening of 30 April 2001 after Miss Elizabeth Lynn had entered and went to start her car outside her seafood restaurant at Umina Beach she was accosted by a man already seated in that car. She turned around. The man told her to face the front and demanded money. Before she complied with his order she observed the outline of his face, and that he was wearing a blue and white striped beanie. The man told Ms Lynn that he had a gun, and would use it to kill her if she lied to him. He said he knew where she lived and that she had a little brother. (In fact, Ms Lynn did not have a younger brother, but did have a young nephew.) At the commencement of the encounter Ms Lynn had felt a nudge in her back with what she then thought was a steel pole. After the man told her that he had a gun she believed that what he was holding was in fact a gun. Whatever the object was, the man pointed it at her head, ordered her out of the car, pushed her face to the right, and forced her to walk to and unlock the restaurant. He again demanded money. Ms Lynn gave him the day's takings. He told her to sit on the floor, not to turn around nor look at him, and to remain where she was after his departure. He told her, when she reported the robbery to police, to give a description that did not fit him. He left with the money and the weapon. 8 There was no issue in the trial that the offence had occurred as described by Ms Lynn. The sole issue for the jury to determine was whether the Crown had proved beyond reasonable doubt that the appellant was the offender. 9 The appellant was arrested on 11 May. When told of the reason for arrest, he told the Police Officer he did not know what he was talking about. He declined to be interviewed. Ms Lynn did not at any stage identify him as the perpetrator of the offence. The Crown case was circumstantial, but in a somewhat unusual way. 10 Ms Lynn's evidence was that she recognised the man as somebody she had seen three or four days previously, on 26 April (a Thursday), early in the morning, in the shopping centre car park, which was ordinarily, at that time, deserted. What she saw on that occasion was a red van in which a man was seated. A woman and a young boy were standing outside the van. A little later, the man alighted from the van and urinated on a nearby fence. Ms Lynn had a clearer vision of him, and observed a tattoo on his left upper arm. Ms Lynn had a short conversation with this man. Ms Lynn took a note of the registration number on the red van. The piece of paper on which she wrote this became exhibit A. The number she noted was UMG 887. 11 Ms Lynn said that the man was the man who robbed her a few days later. In making that identification she relied upon his "voice, height, body, face", and his "size, shape, walk". 12 Ms Lynn gave evidence that, on the day after the robbery, she saw this man again. On this occasion she was a passenger in her friend's motor vehicle. She saw a red van. She noted the number plate as UMG 887. She recognised the driver of the van as the man who had robbed her. Her friend followed the red van. It pulled over at an intersection. A woman and a child entered the van. It was the same woman and child she had seen with the man in the car park on the earlier occasion. 13 There was other circumstantial evidence. For example; · Ms Lynn gave evidence that after the robbery she found in her restaurant a jacket that she recognised as one that had been worn by the woman accompanying the man in the red van on the occasion she had encountered him in the car park. · Mr Gregory Voss, the owner of the Ettalong Beach Village, a caravan park and holiday cabins, gave evidence that, on 30 April, using his own name, the appellant checked in to the village, and filled out a registration form. He was accompanied by a woman and a small boy, the descriptions of whom broadly corresponded with the descriptions of the woman and the boy observed by Ms Lynn in the car park. The appellant was driving a yellow Torana. On the registration form, which became an exhibit, the number UMG 887 was given as the registration number of the appellant's vehicle. (The appellant denied that he had written this number on the form, and denied that he had access to a vehicle bearing that registration number). That number corresponded with the number plates on the yellow Torana. The plates had, in fact, been stolen from a Mitsubishi Magna which was parked at the Bateau Bay Bowling Club on 25 April. · On 23 April 2001 a red Tarago van was stolen at Gosford. It was located on 5 May 2002, bearing number plates UMG 887. These were not the number plates it had borne at the time it was stolen. 14 In cross-examination counsel for the appellant elicited from Ms Lynn a portion of her statement made to police in which she said that the man who robbed her on 30 April was the man she had seen a few days previously, and that she knew this, inter alia, because of his voice and the way he spoke. In that statement she said she would not have been one hundred per cent certain of that identification had it not been for the conversation that she had had with the man from the red van. However, as a result of that conversation, she was definitely sure. 15 In cross-examination Ms Lynn was further asked to describe the man's accent. She said it was: "yobbo-ish, sort of, it was like instead of saying 'you' it was 'ya' … and sort of short words, not clear English, sort of." She said his delivery was quite slow, or "just average speed". She was adamant that the voice was very distinctive and exactly the same as the voice she had heard on 26 April. She made this identification by reference to: "the sound, the pitch, the level, the tone, the words". 16 Some other circumstances should be noted: · the appellant was arrested at the caravan park on 11 May. The yellow Torana was present, but was not displaying number plates UMG 887; · during cross-examination by the arresting Police Officer, the appellant demonstrated that although he was heavily tattooed on his right arm, he had no tattoos on the left arm. the defence case 17 The appellant gave evidence. He denied guilt of the offence. He denied going to Ms Lynn's restaurant on the night of 30 April and said he was not in the Umina area at the time of the offence. He said that as at 30 April he did not own a motor vehicle nor have possession of one. He said he obtained the yellow Torana on 5 May, having purchased it after seeing an advertisement in a newspaper. He denied ever having been in possession of a red van. He denied that the handwriting in which the car registration "UMG 887" was written on the caravan park registration form was his. This was in clear conflict with the evidence of Mr Voss, who said that he had seen the appellant write the number on the registration form. When pressed in cross-examination, Mr Voss said there was no doubt about that at all. The appellant said that he had no tattoo on his left upper arm and had not had any tattoos removed since 26 April. He denied having spoken to Ms Lynn on 26 April, or picking up passengers in a red van on 1 May. He said he had never been in the car park behind Ms Lynn's restaurant and had never previously seen the jacket found in the restaurant after the offence. He had never had a male child come to stay with him at the caravan park although his four-year-old daughter had done so on one occasion. (This also was in conflict with the evidence of Mr Voss, who said that a boy of about two or three had visited the appellant on two or three occasions.) 18 When the appellant came to be cross-examined by the Crown Prosecutor, the Crown Prosecutor referred to an answer given by him earlier, while giving evidence-in-chief. What was suggested to him was that, in denying a proposition that had been put to him, he replied "na". What the Crown Prosecutor was doing was seeking to demonstrate that, in giving his evidence, the appellant demonstrated the speech characteristics described by Ms Lynn. Indeed, the tape recording of the appellant's evidence was replayed, firstly in the absence, and subsequently in the presence, of the jury. The appellant appeared to accept, having heard the tape recording, that the word he had used sounded like "na", but said that this was not his normal manner of speech. 19 This, of course, was peculiarly a jury issue. The jury had heard Ms Lynn's description of the man's voice and diction, and had heard the appellant give his evidence. They also heard the tape replayed. the grounds of appeal 20 Two grounds of appeal were argued. Each concerned the directions given to the jury with respect to identification evidence, the first being the visual identification by Ms Lynn, and the second voice identification. 21 The trial judge directed the jury as follows: "Evidence that an accused has been identified by witnesses doing something must whenever it is disputed by the accused, be approached by you with special caution before you accept that evidence as reliable. That caution is necessary even though you may be satisfied that the witness has been completely honest when saying that she recognised or identified the accused ." (emphasis added) 22 Her Honour went on to give conventional directions as to the reasons for the need for caution, and the potential unreliability of identification evidence even when honestly given. Indeed, these directions went on over several pages of the summing up as transcribed. 23 The complaint that is made about the passage extracted is that it contained within it an assumption that Ms Lynn had given evidence identifying the accused as a person doing something. It will be apparent from the foregoing account of the evidence, that, at no time, did Ms Lynn identify the accused – that is the person in court charged with the offence – as the person who committed the offence upon her. Rather, Ms Lynn's identification evidence was evidence that the man who robbed her was the man she had seen on the previous Thursday, and saw again the following day. At no time was she asked directly to identify the appellant (as the accused person) as that person. The Crown set out to make this connection by reference to the circumstantial evidence I have already outlined. 24 Subsequently, her Honour said: "You have seen the tattoos adorning the accused's body. They cover his right arm and there is a scorpion tattooed on his left breast. His left arm has no tattoos upon it at all. The tattoos on his right arm extend, you might well think, below the sleeve level of a T-shirt. You are entitled to look at the accused and determine whether or not you regard the evidence given by Miss Lynn about the tattoos is accurate, according to your assessment of those tattoos and taking into account the other descriptions given by her of the man she saw in the carpark and at the back door and on the evening of the robbery and the circumstances in which she saw those men. … She gave the description of the man in the carpark as being between 170 and 180 cm tall. He had a crew cut and was of a thin build. He had spots on his face, generally in the centre of his nose – on his face but also over his nose and his cheek and you will recall that she indicated his left cheek when she was describing those spots. You are entitled to look at the face of the accused and if you have been studying his face you will notice that he appears to have a scar over his right eyebrow and I think there are some other marks on his face around about the eyebrow. These are matters which you can take into account when once again you are assessing whether the Crown has established beyond reasonable doubt that it was this accused who robbed Miss Lynn on that night. She of course gave no evidence of the existence of a scar but of course on the night of the robbery the man was wearing a beanie and as she's told you, it came down to his eyebrows." 25 I accept that the references in the first passage extracted suggesting that Ms Lynn's evidence identified the appellant directly as the person who robbed her were a slip. At no time did she give evidence to that effect. However, I am satisfied that the slip was immaterial. What her Honour was doing was cautioning the jury about identification evidence, in terms that clearly drew to their attention the need for, and the reasons for the need for, caution. It was perfectly appropriate for her Honour to draw the attention of the jury to the physical description given by Ms Lynn of her assailant, and to invite comparison with the appellant as the jury saw him in the court. The reference to the absence of a tattoo on the appellant's left shoulder was a point in the appellant's favour. 26 I am satisfied that no miscarriage of justice has arisen by reason of the directions given to the jury in this respect. 27 The ground of appeal concerning voice identification is substantially similar. Having referred directly to the evidence given by Ms Lynn as to the voice of the man she had seen on 26 April, her Honour said: "You have heard the accused give evidence before you. There is always the possibility that he has attempted to disguise his normal method of speech when giving evidence. It is for you to determine whether the voice described by the complainant Miss Lynn had such distinctive characteristics of tone and expression as to enable her to identify the voice. It is necessary for you to determine, if you seek to rely upon the evidence about the voice of the person heard on 26 April and the voice of the person heard on 30 April being the same voice that they are identical and not merely similar. It is the evidence of Miss Lynn that the voice on 26 April and the voice on 30 April were affected by nerves but the voice was distinctive. It was exactly the same, she says, as the voice that she had heard on 26 April." 28 Again, her Honour went on to refer to the circumstances in which Ms Lynn had heard the voice of the man in her car, and circumstances that could have affected her capacity properly to assess and recognise the voice of the assailant. 29 Voice identification does present particular difficulties, by reason of the difficulty many people have in describing sounds. However, the complaint made on behalf of the appellant, in my opinion, goes too far. It was submitted on his behalf that, in the absence such as a tape recording of the person in the car park, or of the robber, there was an insufficient basis to invite the jury to compare the voice of the appellant. True it is, the jury were invited to compare the voice of the appellant as they heard it when he gave evidence with the description given by Ms Lynn of the voice of the man in the car park and the man who attacked her. This is not an easy exercise. However, the judge gave appropriate warnings to the jury and the jury could be relied upon to exercise the caution that was called for. 30 In oral submissions it was argued that a direction under s165 of the Evidence Act 1995 should have been given. The simple answer to this submission is that no direction was sought. S165 is clear in its terms – such a direction is to be given, when asked for, and in relation to evidence of a kind that may be unreliable, unless there are good reasons for not doing so. "Identification evidence" is expressly included as evidence of a kind that may be unreliable. The section is not triggered unless and until the direction is sought on behalf of a party. 31 Further, there is in my mind a real doubt whether the evidence in question was evidence of the kind referred to in s165. The Dictionary to the Act defines identification evidence as, inter alia: "An assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done; at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; …" 32 I doubt whether Ms Lynn's evidence could strictly speaking be classified as an assertion by her to the effect that the appellant was or resembled a person who was present at or near the place where the offence was committed, or an act connected to that offence was done. Ms Lynn's evidence made no direct reference to the appellant at all. What Ms Lynn's evidence did was to link the sighting of the man (or men) on three separate occasions, and to assert that these were, in fact, sightings of the same man on three separate occasions. From other evidence – but not by way of an assertion by Ms Lynn – the Crown sought to establish that the appellant was that person. 33 Accordingly, for this reason also, a direction under s165 was not necessarily called for. However, in these unusual circumstances, such a caution was prudent. The ultimate answer to the submission is that the directions given did amount, in my opinion, to such a caution, and certainly discharged the obligation on the trial judge. 34 A third ground of appeal pleaded was that the verdict was unreasonable and could not be supported by the evidence but no separate argument was addressed to this ground and it is unnecessary further to mention it. 35 I would dismiss the appeal against conviction. 36 SMART AJ: I agree with the reasons of and orders proposed by Simpson J with one reservation. I would reserve for future consideration the question whether the evidence of Miss Lynn was identification evidence within the meaning of that prase in the Dictionary to the Evidence Act 1995. The question which arises was whether her evidence was evidence to the effect that the accused was present at a place where the offence was committed or an act connected to that offence was done. The words "to the effect" and "an act connected to that offence" are words of wide import. 37 This was a strong Crown case and Mr King's conviction was inevitable. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.