New South Wales Court of Criminal Appeal CITATION : R v Stanley [2004] NSWCCA 278 revised - 19/08/2004 HEARING DATE(S) : 04/08/2004 JUDGMENT DATE : 18 August 2004 JUDGMENT OF : Dunford J at 1; Adams J at 2; Howie J at 3 DECISION : The appeal is dismissed. CATCHWORDS : Criminal Law - Summing up - dock identification - whether directions adequate to warn jury of dangers of identification in circumstances of the case. LEGISLATION CITED : Evidence Act 1995 - s 116 CASES CITED : Alexander v The Queen - (1981) 145 CLR 395 Dhanhoa v The Queen [2003] 77 ALJR 1433 PARTIES : Regina v Kurt Frederick Stanley FILE NUMBER(S) : CCA 60166/04 COUNSEL : G. Rowling - Crown S. Odgers SC - Appellant SOLICITORS : S. Kavanagh - Crown S. O'Connor - Appellant LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0127 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60166/04 DUNFORD J ADAMS J HOWIE J WEDNESDAY 18 AUGUST 2004 R v Kurt Frederick STANLEY Judgment 1 DUNFORD J: I agree with Howie J. 2 ADAMS J: I agree with Howie J. 3 HOWIE J: Kurt Stanley, the appellant, was convicted by a jury of a robbery in company. He appeals against his conviction on a single ground of appeal contending that the trial judge erred in the directions given to the jury on identification, the only issue raised for the jury's determination during the course of the trial. Background 4 On 8 September 2001, shortly after 8pm, Maurice Blackhall was assaulted by two men in the car park of the Wellington Bowling Club. He was struck to the face and, when he fell to the ground, kicked to the body. During this assault his wallet was stolen. He could not recognise either of his assailants, although he could give a description of the two men when later interviewed by police. 5 At about 8.10 pm on the same evening Christopher Fuller was jogging past the Bowling Club, when he heard someone call out " Hey Fuller". He stopped and moved closer to where he heard the voice. He saw two men sitting on a bench near a disused bowling green. He recognised the two men as Kurt Stanley and Patrick Daley. One of them said to him, "Where's your brother?" Mr Fuller replied that he did not know and one of the persons said, "Yeh, its right then, go away". Mr Fuller continued to jog to his home a short distance away. 6 Shortly after he arrived home, Mr Fuller heard someone call out for help. He jumped the back fence and went to the Bowling Club where he saw the injured Mr Blackhall. Mr Fuller later told the police the names of the two persons he believed he had seen on the bench near the bowling green. 7 Mr Fuller had never met the appellant or the person he understood to be Kurt Stanley. He accepted that it had been inaccurate of him to tell police that he knew Kurt Stanley but rather the position was that he knew of a person named Kurt Stanley. Mr Fuller's evidence was that his brother had at some stage pointed out a person in the streets of Wellington and said that his name was Kurt Stanley. He had then seen this person around Wellington on unspecified occasions. He told defence counsel during cross-examination, in explanation of how he knew of Kurt Stanley, "its just Wellington, it's a small town where everybody knows everybody". 8 During the course of his evidence, the Crown prosecutor asked Mr Fuller whether he could see the person he knew as Kurt Stanley in the courtroom. The witness indicated the appellant seated in the dock. The trial judge then gave a direction to the jury as to the special caution required in a criminal trial where the Crown relies upon evidence of identification. See s 116 of the Evidence Act. 9 The accused gave evidence and denied being in the vicinity of the Bowling Club on the relevant evening or of assaulting Mr Blackhall. He denied knowing Mr Fuller or his brother. The defence called two witnesses to give evidence of an alibi. 10 Counsel for the appellant conceded before this Court that, if the jury accepted the reliability of the evidence of Mr Fuller, the jury could infer that the two persons whom he saw on the seat were the two persons who attacked Mr Blackhall. The issue was whether the jury could be satisfied beyond reasonable doubt that one of those persons was the appellant. 11 In his summing-up the trial judge repeated the directions on identification that he had given during the trial. He later supplemented those directions at the request of defence counsel by reminding the jury of factual matters that might indicate that the evidence of Mr Fuller was unreliable. The ground of appeal 12 The argument in support of the ground of appeal does not seek to impugn the directions given by the trial judge so far as they were of a general nature or on the basis that they failed to raise for the jury's attention evidentiary matters that might undermine the reliability of Mr Fuller's identification of the appellant as being one of the persons he saw near the Bowling Club. Rather it is submitted that the directions were erroneous, or at least inadequate, in that they failed to warn the jury about the dangers of acting upon the evidence of Mr Fuller that it was the person in the dock whom he had seen on the night in question. 13 This is not a direction or warning that was sought by defence counsel during the course of the trial or at the conclusion of the summing up. Leave under rule 4, therefore, is required before the applicant can rely upon this ground. Mr Odgers SC accepted that it was for the appellant to show that there had been a miscarriage of justice resulting from the failure of the trial judge to give the direction or warning. 14 In support of the ground of appeal it is argued, firstly, that the reasoning behind Mr Fuller's identification of the appellant was as follows: Mr Fuller knew a person named Kurt Stanley; he identified one of the persons whom he saw on the bench as the person he knew as Kurt Stanley; the person in the dock was the person he knew as Kurt Stanley; therefore, the person in the dock was one of the persons he saw seated on the bench. Mr Fuller was asserting both that the appellant was the person he knew as Kurt Stanley and also one of the two person's sitting on the bench. So much can be accepted. 15 The argument continues that Mr Fuller could have been wrong in two ways: he could have erroneously identified the person near the Bowling Club as the person he knew as Kurt Stanley and he could have erroneously identified the appellant as the person he knew as Kurt Stanley. If Mr Fuller had made the second error, he could have assumed that the appellant was the Kurt Stanley he knew because of the following: he was aware that Kurt Stanley had been charged with the robbery, he had seen the appellant at committal proceedings when Mr Fuller gave evidence and the appellant was presented to him in the dock. 16 It is not suggested that the evidence of Mr Fuller was inadmissible or should have been rejected by the trial judge. Nor that Mr Fuller should not have been asked to identify the person in the dock as the person he knew as Kurt Stanley. The contention is that the trial miscarried because of the failure of the trial judge to warn the jury as to the dangers of acting upon the evidence of Mr Fuller identifying the appellant as the person he knew as Kurt Stanley. 17 The appellant denied that he knew Mr Fuller or his brother during his evidence. But it was never put to Mr Fuller directly that he was mistaken in his identification of the appellant as the Kurt Stanley who his brother had pointed out to him or that he came to believe that the appellant was Kurt Stanley because of his involvement in the prosecution of the offence. The cross-examination of Mr Fuller was as to the circumstances in which he came to know of a person named Kurt Stanley and his opportunities to recognise this person as that identified by his brother. The defence attack upon the witness was summarised by defence counsel in his final questions of the witness: Q. See what I suggest to you sir that when you say that in this time you were having this conversation over the fence that you're mistaken when you say that it was Kurt Stanley was one of the people there? A. No. Q. You're not mistaken. A. No. Q. You're not mistaken about the distance you were away is that right? A. No. Q. You say it was, you were there for less than a minute? A. Yes. Q. That was the extent of your conversation? A. No I said no more than a minute. Q. Anything up to a minute -- A. Yes. Q. -- you're suggesting for that conversation? A. Yes Q. And the times and you've already given evidence about your brother pointing him out in the streets? A. Yes. Q. You don't know when or where that occurred? A. No. 18 Criticism of Mr Fuller in defence counsel's address to the jury was consistent with this line of cross-examination and was based almost entirely upon the unreliability of Mr Fuller's recognition of the person whom he saw near the bowling green because of the limited and difficult opportunity he had to observe him. It was also submitted to the jury that it was unclear how well Mr Fuller knew the appellant and that this impacted upon his ability to identify the appellant. But it was never submitted to the jury that Mr Fuller might have been in error about his identification of the appellant as the person he knew as Kurt Stanley nor was it argued that his identification of the appellant as the person he knew as Kurt Stanley was affected by his knowledge of, or participation in, the prosecution process. 19 As part of the directions on identification in the summing up, the trial judge reminded the jury of the possibility of a witness erroneously identifying a person whom the witness knew well and the limited opportunity Mr Fuller had to have come to be able to recognise the appellant as Kurt Stanley. He said (my underlining): It is perhaps easy to understand the possibility of error when the evidence is given by someone who has not previously known the accused but errors also occur even when the witness has previously known the accused. Mistakes have been known to be made by friends and even by relatives of a person who thought that it was their friend or relative whom they had seen such as in a busy street or across a room at a party or even down a dark corridor. Because the witness who gives evidence of identification honestly believes that his evidence is correct that evidence will usually be quite impressive even persuasive. But the issue at this stage is not whether the evidence is honest, the question is whether the evidence is reliable. And other witnesses have said that, yes it was dark in that area. And then whilst Mr Fuller states that he knew the accused, he states that he did not know him personally, only through having had him identified to him by a brother sometime earlier driving down the street in Wellington. And there was no evidence of any regular sightings or contact ………… 20 The issue raised on this appeal then is whether, in these circumstances and in the absence of any request for him to do so, the trial judge was required to warn the jury about the dock identification of the appellant by Mr Fuller so that a failure to do so resulted in a miscarriage of justice. Dock identification 21 It is trite that dock identification is notoriously unreliable and generally of little weight. It is unnecessary to refer to authority for those propositions. Nor can it be seriously questioned that a trial judge should, at least if requested to do so, direct a jury as to the danger of that type of evidence as a reliable basis for the identification of an accused person. This is because of the persuasive or beguiling nature of the circumstances in which the witness, for the first time, is making an identification of the accused as the offender. 22 The danger with dock identification is that the witness may be persuaded by the fact that the accused has obviously been arrested, charged and is in the court alleged to have committed the offence that he or she is the offender. Mason J in Alexander v The Queen (1981) 145 CLR 395 identified the danger inherent in the process as being that "circumstances conspire to compel the witness to identify the accused in the dock". Clearly where that danger exists, a trial judge must appropriately warn the jury about it. 23 But in the present case Mr Fuller nominated to police that one of the persons sitting on the bench was the person he knew by the name of Kurt Stanley. It would presumably be unsurprising to him to learn that a person of that name was arrested or would be in court during committal proceedings or trial. The only risk in Mr Fuller identifying the appellant as the person he knew as Kurt Stanley would be that he might identify the person in the dock as being that person, even though the person in court was not the person he knew by that name. 24 As I have indicated, that was a proposition that was never put to the witness in cross-examination and was never suggested in so many words by defence counsel in address. True it is that some of the cross-examination and the defence address were concerned with the reliability of Mr Fuller's recognition of the person pointed out to him by his brother, but that criticism was directed at his ability to identify the person he saw near the bowling green as the person he knew as Kurt Stanley. As I have already noted, his Honour commented upon that matter, albeit briefly, in the second paragraph of the part of the summing up quoted above. No further direction, warning or comment was requested on that matter. 25 There was some discussion at the hearing of the appeal as to why it might have been that defence counsel conducted the trial in the way he did and limited the issue to Mr Fuller's ability to identify the person he saw near the bowling green. Mr Odger's expressly declined to argue that defence counsel was incompetent. However, he submitted that there could have been no tactical advantage in the course adopted by defence counsel. He suggested that it might simply have been that counsel overlooked the issue. On the other hand, it might have been an approach consistent, or at least not inconsistent, with counsel's instructions. 26 It must be accepted that the evidence as to the witness's knowledge of, or familiarity with, the person he knew as Kurt Stanley was very vague and to a degree unsatisfactory. Arguably defence counsel might not have investigated the matter to its full extent during cross-examination. But on the face of it, there is no reason to believe that one young man in the town of Wellington would not have been familiar with the appearance of another young man in the town nor was there any positive basis for a suspicion that Mr Fuller was mistaken in his knowledge of the appellant. On the other hand, of course, there was nothing done to test that knowledge objectively. However, insofar as the issue went to the reliability of Mr Fuller's recognition of the person he saw on the night of the robbery as the person he knew as Kurt Stanley, the possibility of a mistake due to Mr Fuller's lack of familiarity with the appearance of the appellant was left to the jury both by defence counsel and his Honour. 27 I do not believe that on the facts of this particular matter there was any requirement imposed upon the trial judge by s 116 of the Evidence Act or otherwise to warn the jury about dock identification in light of the way the defence was conducted. As was pointed out in Dhanhoa v The Queen [2003] 77 ALJR 1433, the provisions of the Evidence Act, including s 116, do not operate in a vacuum but according to the issues raised during the course of the trial. I am far from satisfied that the failure to give such a warning gave rise to a miscarriage of justice and, therefore, I believe that leave should be refused under r 4. 28 I propose that the appeal be dismissed. ********** Last Modified: 08/20/2004 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.