CARR, Peter John v. R. [2005] NSWCCA 439

New South Wales Court of Criminal Appeal

CITATION: CARR, Peter John v. R. [2005] NSWCCA 439

HEARING DATE(S): 12 December 2005

JUDGMENT DATE: 12 December 2005

JUDGMENT OF: Hodgson JA at 1; McClellan CJ at CL at 41; Barr J at 42

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal - Adequacy of directions concerning identification evidence.

Peter John Carr - appellant PARTIES: Regina - respondent

FILE NUMBER(S): CCA 2005/1204

Mr. M. Austin for appellant COUNSEL: Mr. P. Ingram for respondent

Sydney Regional Aboriginal Corporation Legal Service for appellant SOLICITORS: S. Kavanagh, Solicitor for Public Prosecutions for respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0053

LOWER COURT JUDICIAL OFFICER: Nield DCJ

IN THE COURT OF CRIMINAL APPEAL CCA 2005/1204 DC 04/11/0053

HODGSON JA McCLELLAN CJ at CL BARR J

Monday 12 December 2005 Peter John CARR v. R. Judgment 1 HODGSON JA: On 27 July 2004 the appellant was indicted before Nield DCJ at the Sydney District Court on a charge under s 98 of the Crimes Act that he on 10 May 2003 in Lewisham in the State of New South Wales being armed assaulted Salem Diab with intent to rob him and that he at the time of the assault wounded Salem Diab. The appellant pleaded not guilty and was tried before his Honour and a jury of twelve. 2 On 13 July 2004 the jury returned a verdict of guilty. On 19 November 2004 the appellant was sentenced to imprisonment with a non-parole period of five years commencing on 12 February 2004 expiring on 11 February 2009 with a balance of term of three years commencing on 12 February 2009 and expiring on 11 February 2012. 3 The Crown case was in broad terms as follows. 4 On 10 May 2003 the complainant while working at his business, which was a convenience store in a back street in Lewisham, was attacked by two men, one of whom was armed with a pair of scissors. 5 The men, who appeared to be Aboriginal men, had entered the store a short time earlier and had selected some confectionary. One of the men proffered some money for the item and then, drawing a pair of scissors, demanded that the complainant give him money. The complainant refused to comply and kicked the man in the chest. A struggle ensued during which the man stabbed the complainant in his right arm and chin. The complainant managed to locate a kitchen knife and was able to frighten his assailants away. He chased them into the street. They ran and leapt into a car that had been parked in a side street and which carried them away. After returning to his store and telephoning for assistance, the complainant saw the man who had stabbed him run into the front of the store and retrieve a shoe he had left behind. 6 A short time after the stabbing, Dr Jesmond Sammut, whose house was located near the store, while working in his garden and after hearing some yelling, saw persons sitting in a vehicle parked nearby. He felt suspicious about their presence and went to investigate. He noted registration of the vehicle, which was a red Holden Commodore. He saw it drive down the street and return to park a short distance away from him. Still feeling suspicious he closely observed the occupants and in particular a passenger, with whom he became locked in a mutual stare for about 3 or 4 seconds before the vehicle took off and stopped outside the complainant's store. Dr Sammut saw the passenger leave the vehicle and enter the store and return to the vehicle a short time later. 7 Meryl Blundell and Ingo Voss who lived next to the store were arriving home with their children. They saw the vehicle and saw an Aboriginal man exit the vehicle and enter and leave the store. 8 The appellant was apprehended two days after the stabbing incident. When arrested he was driving the red Commodore. 9 The appellant was subsequently identified by Dr Sammut from an array of photographs, and the Crown case relied primarily on his identification. 10 The issue of identification was crucial in this case. 11 The complainant gave evidence that his assailant was Aboriginal, shorter than himself, and gave other features of his description; and he also gave a general description of the other man. Five days after the incident, the complainant attended a police station and, whilst being filmed with a video recorder, examined 15 numbered photographs to see if he could identify his attacker. He was recorded saying: "This one looks familiar and this one yeah", before nominating 2 photographs, neither of which depicted the appellant. Later, he is recorded as saying: "Actually I'm very sure now, yeah", and affirming he was very sure that the persons depicted in those photos were the people. He also said that men in other photos were "off the list". It appeared from the evidence that the complainant later found out that neither of the two men he selected was the man suspected by the police, and his evidence in court was to the effect that he was never a hundred percent sure and that he had told the police he could not pick them out. 12 The identification evidence relied on by the Crown was that of Dr Sammut. His evidence was that, at the time he and the passenger in the car were staring at each other, he was about 2 and half metres from the passenger. He observed that the passenger had roundish face with a slightly flattened nose, that his skin was brown to dark brown, that he had dark hair, 2 to 3 days growth. He also had dark eyebrows slightly angled downwards and almond-shaped eyes. His hair appeared to be covered by a beanie. He had not prior to the day of the incident seen this person. He also gave a description of the other man at the scene. 13 Five days after the incident, Dr Sammut went to the police station and, whilst being video taped, examined 15 numbered photograph. When he saw photograph 4 he put it to one side as he went through the photographs; and then he said: "I think I have identified one person", and said that the man looked very familiar. 14 At a later point he asked the police whether he had picked out the person who the police were alleging committed the offence, and was told that he had. In his evidence he said he was quite confident about his selection, but careful in his use of words, because he was aware of the serious consequences that might flow from his assertions; and he said that he had only a very minor doubt about his selection. 15 The evidence given by other witnesses was not of great assistance in identification of the assailant, though there were a number of estimates of height which it is not necessary to recount. 16 The appellant did not give evidence at the trial, and his defence essentially involved challenging the identification evidence of the Crown. 17 The complainant was cross examined concerning the identification process, and conceded that towards the end of the process he had actually felt sure that the men depicted in the photographs he had identified were his attackers, and that the men in the other photographs could be with regarded as being off the list. He agreed that he had later learned that neither of the persons he had selected was suspected of committing the offence. He conceded that, during a previous trial in relation to this matter, he had identified the appellant's height at 5-foot 10 inches. It appears from the evidence that the appellants height was of the order of 5-foot five and half or 5-foot 6 inches. 18 One other matter relied on by the defence was that the complainant and the appellant had provided a DNA sample to the police, and it was conceded that tests carried out on blood on the scissors and at the scene did not provide any evidence linking the appellant with the scene. 19 The appellant relies on a single ground of appeal namely: His Honour's direction to the jury in relation to the identification evidence were inadequate in the circumstances of this case and led to an unbalanced presentation of the essential issue for the jury's determination. 20 In support of this ground Mr Austin for the appellant made a number of points. 21 In general terms, he submitted that the trial judge failed to direct in clear terms concerning the photograph identification evidence of Dr Sammut and Mr Diab; and that the effect of the direction was not to give a balanced view of the matter to the jury, but that the direction amounted to advocacy in favour of the reliability of the identification evidence of Dr Sammut. 22 Mr Austin submitted that the trial judge created an impression that the task for the jury was to select the more reliable identification evidence, and also created the impression, by his discussion of matters that could affect the accuracy of identification evidence, that the evidence of Dr Sammut was more reliable than that of Mr Diab. 23 He submitted that the trial judge did not comment that Dr Sammut was subsequently told that he had picked out the right person and only then became positive as to his identification of the appellant, and did not comment that Mr Diab's retreat in his oral evidence from identification of persons other than the appellant was on his being told that he did not choose the police suspect. 24 A further particular submission by Mr Austin was that the trial judge failed to explain the relevance of various estimates as to the height of the assailant given by various witnesses, and in particular Mr Diab's evidence indicating that his assailant was only about one and half inches shorter than he was, whereas the appellant was in fact about 5 and half inches shorter. Mr Austin submitted that this was particularly significant, because problems raised by the trial judge concerning the reliability of Mr Diab's identification were not such as to affect his estimate of height to the same degree. 25 One further particular submission made by Mr Austin was that the trial judge did not direct the jury that it was more difficult for a member of one race to identify an individual from another racial group. 26 As I have said, the general submission made was that the overall effect of the summing up was advocacy in favour of the reliability of Dr Sammut's identification. 27 Two further matters raised in written submissions, though not pursued in oral submissions before us, were these. Firstly, there was a submission that the trial judge erred in suggesting that the appellant's association some 40 hours later with the red Commodore vehicle seen at the time of the offence could support Dr Sammut's identification of the appellant. Secondly, Mr Austin submitted that the trial judge erred in giving no direction that the evidence of a witness Mr Voss that the passenger got out of the back seat of the car conflicted with the evidence of Dr Sammut, and no direction that neither Mr Voss nor another witness Miss Blundell had identified the appellant. 28 I will deal in turn with these submissions. 29 In my opinion, the trial judge's review of features of evidence that could be relevant to the accuracy of identification evidence was unobjectionable. The jury necessarily had to come to a view as to the reliability of Dr Sammut's identification, and also as to the proper effect to be given to the evidence relevant to identification given by Mr Diab. The trial judge's summing up at this point did not suggest that the jury merely had to determine which out of the evidence of these 2 persons was the more reliable. He appropriately and repeatedly stressed to the jury they could not convict the appellant unless they were satisfied beyond reasonable doubt that he was the assailant, and that they had to consider identification evidence very carefully before they could be so satisfied. The circumstance that the factors discussed by the trial judge supported the reliability of the evidence of Dr Sammut more than the reliability of the evidence of Mr Diab would not in my opinion make the summing up unbalanced, unless some matter could be pointed out which did not fairly reflect the situation; and Mr Austin has not been able to point out any error of that kind. 30 As regards the submissions concerning identification of a person from another racial group, the trial judge did, following submissions by the appellant's then counsel, direct the jury's attention to the fact that Dr Sammut's selection of a photograph of the appellant was a case of one man identifying by photograph another man of a different racial group. In my opinion, there was no necessity for the trial judge to go on and say this made identification more doubtful because it is more difficult for a member of one race to identify an individual of another racial group. I am doubtful whether it would have been appropriate to say this, although it might have been appropriate to say words to the effect that the jury might consider that it was more difficult for a member of one race to identify an individual of another racial group. In any event, in my opinion what the trial judge said was sufficient to raise for the consideration of the jury the question whether the jury considered this to be a matter relevant to the reliability of Dr Sammut's identification of the appellant. In fact, the appellant's counsel did not ask for any further direction after that. 31 The matters I have discussed so far were raised by appellant's counsel at the trial following the summing up by the trial judge. The remaining matters to which I will come were not explicitly raised by him, and that could give rise to a question whether leave should be granted to raise them pursuant to rule 4 of the Criminal Appeal Rules. However, Mr Austin submitted that Counsel raised the question of the balance of the trial judge's summing up on identification, and that these other matters to which I will come were within the ambit of that general objection. 32 On the question of the impact on the identification evidence of what Dr Sammut and Mr Diab later learnt about whether the persons they had selected were or were not was suspected by the police, the jury had the videotape of the identification procedure in the case of both witnesses, and also a transcript of this procedure, so they were in a position to reach their own judgment as to the confidence with which Dr Sammut made his identification of the photograph of the appellant; and they also had a statement made by Dr Sammut on the same day, namely 15 May 2003, which asserted he had identified the person depicted in the photograph as the person he saw in the front passenger seat of the red Commodore vehicle. 33 In my opinion, it was not an error for the trial judge not to have specifically pointed out to the jury that the confidence of Dr Sammut in his identification as displayed in his oral evidence could be seen as being affected by his being told by the police that he had chosen the suspect. Particularly is this so in circumstances where no request was made by the appellant's counsel to the trial judge do this. It is also to be noted that in his final directions the trial judge referred the jury specifically to the videotape of the identification process and not to what Dr Sammut had said in his evidence. 34 In relation to the identification of two persons other than the appellant by Mr Diab, this was evidence which could be considered as tending to exculpate the appellant. Mr Diab's evidence at the trial, to the effect that he was never a hundred percent sure and that he told the police he could not pick them out, could have been regarded as not significantly detracting from the force of what happened in the identification process, in circumstances where Mr Diab had by then been told that the persons he selected were not suspects. 35 However, the trial judge did tell the jury that they should take into account Mr Diab's identification of the 2 photographs and in doing so view the videotape and read the transcript. He was not asked to draw the jury's attention to the circumstance that Mr Diab's retreat from that identification in the witness box could be viewed as being due to what he was told by the police. In my opinion, particularly in circumstances where he was not asked to do this, it was not an error for the trial judge not to do this, particularly in circumstances where he had directed the attention of the jury, in his final summing up directions to them, to the videotape and to the transcript of the actual process. 36 In my opinion also, there was no inadequacy or error in the directions concerning the various witnesses' estimates of height. In the circumstances in which Mr Diab made his observations, I do not think evidence to the effect that the assailant was about one and half inches shorter than he was, whereas the appellant was in fact about 5 and half inches shorter, was of such significance that it required a specific direction. The matter had recently been the subject of addresses by the appellant's Counsel, and the appellant's Counsel did not see the need for requesting a specific direction to that effect. 37 Having regard to all these considerations, I do not think that the summing up can be considered to have been unbalanced. 38 Turning to the question of the association of the appellant with the red Commodore vehicle, in my opinion that was a matter that could be taken into account by the jury in deciding whether they were satisfied beyond reasonable doubt that the appellant was the assailant. The case against the appellant could not be established unless the jury found the identification evidence of Dr Sammut satisfactory and compelling. But the trial judge did not in his summing up suggest to the jury that, even if they did not find the identification evidence of Dr Sammut satisfactory and compelling, they could use the association of the appellant with the vehicle as making up for this deficiency in the identification evidence. 39 As regards the final matters, in my opinion there was no inadequacy or error in the directions of the trial judge concerning different witnesses' evidence as to the location of the assailant in the vehicle, or in relation to the absence of identification of any person by Mr Voss or Miss Blundell. 40 For those reasons in my opinion the appeal should be dismissed. 41 McCLELLAN CJ: I agree with Justice Hodgson. 42 BARR JA: I also agree. 43 HODGSON JA: The order of the court is the appeal is dismissed. **********