Joshua Maher v Regina [2011] NSWCCA 97

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Joshua Maher v Regina [2011] NSWCCA 97 Hearing dates: 30 March 2011 Decision date: 10 June 2011 Before: McClellan CJ at CL at 1; Davies J at 2; Grove AJ at 3 Decision: 1. Appeal allowed. 2. Conviction and sentence quashed. 3. A verdict and judgment of acquittal on the remaining count on the indictment be entered. Catchwords: CRIMINAL LAW - leave to appeal against conviction - set aside jury verdict - evidence of witnesses unreliable and contradictory - unsatisfactory demeanour of the witness - capacity of witness to recall events doubtful - obvious unwillingness of witness - deficiency in the Crown case in positively identifying the appellant - conviction unreasonable and cannot be supported by the evidence Legislation Cited: Evidence Act 1995 Cases Cited: M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Category: Principal judgment Parties: Joshua Maher (Appellant) Regina (Respondent) Representation: Counsel: R. Button SC (Appellant) N. Noman (Respondent) Solicitors: S. O'Connor, Legal Aid Commission (Appellant) S. Kanavagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/78083 Decision under appeal Date of Decision: 2010-08-10 00:00:00 Before: Hughes DCJ File Number(s): 2009/78083

Judgment 1MCCLELLAN CJ at CL: I agree with Grove AJ. 2DAVIES J: I agree with Grove AJ. 3GROVE AJ: Following trial before Hughes DCJ and a jury at Parramatta District Court the appellant was convicted of aggravated breaking and entering and committing a serious indictable offence, namely assault occasioning actual bodily harm upon Rhyse Hooker. He had been acquitted (by direction) of a second count in the indictment which was in similar terms nominating Daniel Cohen as the victim. He was jointly tried with one John Donald in respect of whom the outcomes were the same on identical counts. 4The offence has a prescribed maximum penalty of imprisonment for 20 years and a standard non-parole period of 5 years. After conviction on 12 February 2010 the appellant was released on continuing bail. On 20 August 2010 he was sentenced to imprisonment for one year suspended upon conditions as to good behaviour, residence and supervision by the Probation and Parole service. It was not suggested that anything has happened for which the appellant might be called up for breach of conditions. No Crown appeal against that sentence was instituted. 5The appellant challenges his conviction on the ground that the verdict was unreasonable and cannot be supported having regard to the evidence. Such a ground requires this Court to determine whether, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant: M v The Queen (1994) 181 CLR 487. It is recognised that a measure of restraint is obligatory when considering the serious step of setting aside a verdict found by a jury whose verdict must be accorded special respect and legitimacy: MFA v The Queen (2002) 213 CLR 606. These strictures are borne in mind and applied when reaching a conclusion in this appeal. 6As will appear, the evidence as it emerged, was, to say the least, somewhat confused and more so than what might be expected in common cases which require resolution of contradictions between witnesses. 7The nominated victim, Rhyse Hooker lived in a house numbered 60 in a street in St Marys. He testified that he had been at the house numbered 36 in the afternoon of Friday 14 November 2008 but returned home for dinner at about 9 pm. At about 2.15 am on Saturday 15 November he returned to number 36 and commenced to watch a movie. At the time he was in company with Daniel Cohen and a young female whom I shall refer to as KT. She was aged 15 when she gave evidence in the trial in February 2010. Rhyse Hooker was also aware that another girl of similar age (TP) had gone to sleep in a bedroom at number 36. 8Mr Hooker's evidence was that, shortly after they began watching the movie, he heard a screen door and then a front door open and six persons entered the room. He knew some of them. He described those who entered as "Anthony Shipley, then two other dark people, then John Donald and Shannon and Adrian". He described being attacked by John Donald and Anthony Shipley and thereafter he told of his eventual retreat into the kitchen where he used his feet to barricade the door in order to prevent assailants from reaching him. A number of items were thrown in his direction which he was able to observe when he opened and closed the kitchen door. He described some events concerning Daniel Cohen who, it appears, was unable to be located at the time of trial. It was during this incident at about 2.15 am that it was alleged Rhyse Hooker sustained actual bodily harm. 9The intruders departed, a final occurrence being the breakage of a window by throwing a chair through it. It was the appellant's case that he was not one of those who had entered the house at number 36 at about 2.15 am. Mr Hooker did not identity him as one of them. As a matter of fact the appellant could not fulfil any description of being one of "other dark people". 10Counsel for the then co-accused elicited from Mr Hooker evidence that he had "on monday" nominated the appellant as one of the intruders. "Monday" was a reference to a trial which commenced and was aborted. Mr Hooker said that he had realised that it was a mistake to identify the appellant and he pointed out that there were factors affecting his ability to recall and he mentioned that he suffered from epilepsy and some psychiatric problems. 11Cross examined by Counsel for the appellant, Mr Hooker agreed that in a statement to police on 15 November 2008 he did not nominate the appellant as one of the intruders who attacked him. 12In re-examination by the Crown Prosecutor Mr Hooker confirmed that the evidence given on "monday" concerning the appellant was "an honest mistake". 13The consequence must be that there is simply nothing in the testimony of Mr Hooker which could inculpate the appellant in the offence charged. 14The next witness was KT who as above noted, was watching the movie in the early hours of the morning. I interpolate that an adult, TP's mother, ordinarily resided at number 36 but was staying elsewhere overnight on this occasion. 15KT had met the appellant some time in 2008. She said that on "that night" she saw the appellant fighting with "TP's sister's brother's friend". This was a reference to an altercation between the appellant and a person known as Marbuck Dixon. This altercation was not contemporaneous with the events leading to the charge of occasioning actual bodily harm to Rhyse Hooker. 16Despite from time to time moving from events earlier in the evening to those at about 2.15 am she gave the following evidence: "Q. What did he and the boys do? A. They were having a fight with Chantelle's brothers friend. Q. This also was something you mentioned to the police I think in the interview, wasn't it? A. Yes. Q. Was there any other time after that you saw Josh Maher? A. I'm not quire sure but I think he came back with them boys, when they started bashing Daniel and Chris. Q. What, if anything, do you remember of seeing Josh Maher on that occasion? A. I wasn't quite sure but I think I saw him there. Q. Exactly where, when and doing what? A. They were just standing with the boys. They were sort of standing around. Q. You said to the police I think that you saw the boys coming in through the door and then you described the things that happened including Daniel and Chris getting assaulted, correct? A. Yes. Q. Now, where and when in that sequence, if at all, did you see Josh Maher? A. I didn't because I wasn't - I didn't. Q. Where and when did you see him? A. When he was drinking and when he came back with some boys and they wanted to go fight Shane's friend. Q. I thought you indicated that you saw him, yet again, after that when he came back with the boys? A. No, I said I think I saw him. Q. You think you saw him? A. Yes. Q. That is what I want to ask you about. So this would be a fourth time, wouldn't it, if you saw him then? A. Yes. Q. The first time when you were first introduced to Josh Maher, the second time when he came with a few boys, I think you said four of them came to see the two girls and there was some drinking of whisky, right? A. Mm-hmm. Q. Then you told the police about five minutes later Josh Maher came back and that was out the front, right, and there was a possible fourth time where you think you saw him but you are not sure, is that the situation? A. Yes. Q. I want to ask you about that fourth time. Just tell me if you can what it was that you saw, as best you can recall it, if anything, of Josh Maher on that occasion? A. I saw this person who looked just like him but I don't know if it was him or not. He was a white person. Q. And where did you see that white person and what was he doing? A. He wasn't doing anything, he was just standing around with some other boys and yelling out and stuff. Q. Inside the house or outside the house or where? A. Inside. Like some of them were standing near the door, the front door, yes. Q. Inside the front door or outside the front door? A. They were inside but they were standing near the front door. Q. What were they doing nor saying, those boys? A. I can't remember, they were just all young. Q. As to the white person, that may have been Josh Maher but you are not sure, describe that person as you remember him on that night? A. I know he was just as tall as him and looked the same, yeah. I wasn't really looking at him. Q. So, did you say that person was as tall as Josh Maher? A. Yes. Q. And looks the same as Josh Maher does, is that right? A. Yes. Q. Did you hear that person speak? A. No. Q. Are you able now to describe what that person was wearing? A. No. Q. Are you able to say whether or not he had a hat on? A. Yes, I think he did. Q. Are you or are you not prepared to swear that person was Josh Maher? A. What do you mean? Q. Swear means to say that it is your evidence that was him? A. Yes, I'm sure it was him, but. Q. I beg your pardon? A. I'm sure it was him. I'm sure it was him. Q. I'm sorry, but I thought you weren't sure? A. No. I'm not quite sure but I'm sure. I don't know. Q. Just in your own words express it? A. It looked like him because I wasn't really full looking at him but it looked like him. That's why I say it was him. Q. Have you got any doubts about it? A. No." 17In cross-examination KT agreed that she had made a statement to police on the morning of 15 November 2008. In that statement she agreed that she referred to a fight in which the appellant was involved and corrected the impression that this occurred at about 11 to 12 in daylight and said that it was "like around midnight". 18This police interview was video recorded. With reference to the appellant and the incident at about 2.15 am she was asked directly "was Josh" (the appellant) "one of the blokes that came back" and she was seen to move her head from side to side. At trial her testimony was interrupted while Counsel argued about the interpretation of the movement of her head but ultimately and, if I may say obviously, she agreed that she was indicating "no". 19The evidence of KT does not provide evidence which could be relied upon as identifying the appellant as one of the intruders. 20The only direct evidence identifying the appellant as such came from TP. As I have observed, she was 15 years old when giving evidence in February 2010 and was therefore (like KT) about 13 or 14 at the time of the central occurrence. 21Senior Counsel for the appellant submitted this was a "rare case" wherein the unsatisfactory demeanour of the witness TP can be discerned from the transcript. It will be necessary to quote substantial portions of her testimony. There is considerable force in this submission by Counsel. 22The officer in charge of the investigation, Detective Senior Constable Mirabito, testified that he had became aware that TP was at the premises on 15 November 2008 but in the ensuing 14 months had not been able to obtain a statement from her. Conscious of her age, he had sought to arrange contact through her mother but she had not co-operated. He did not obtain a statement from TP until the Friday before she gave evidence on 8 February 2010. 23Her capacity to recall accurately the events of the evening, whether when making her statement or giving evidence, is, in any event doubtful. She was asleep when the intruders arrived and there was some controversy as to whether she woke or was awakened but it is significant, as appears in the extract of evidence given by KT above, that there had been "some drinking of whisky". 24TP was asked: "Q. Okay, can I ask you before you went to bed had you been drinking with anybody? A. Nope. Q. Had you - you hadn't been drinking with some boys who were around drinking, drinking scotch and coke or something along those lines? Black Douglas? A. No. Oh, yes." 25This topic was again raised and further testimony emerged: "Q. You were watching TV weren't you and you got bored? A. Yeah and then, you know. Q. No, I don't know? A. Go to sleep. Q. Go to sleep - after midnight? A. Yes, something like that. Q. And I think before that, so before you went to sleep I know you told Mr Crown nothing happened, but before that you had been having some scotch and coke hadn't you? A. Yeah, yeah. CROWN: I object. The question is inaccurate. The witness didn't say nothing was happening. SANDILANDS: I withdraw that part Mr Crown. HIS HONOUR: I thought she did. SANDILANDS: I thought she did too. HIS HONOUR: In fact I am sure she did. Then she was reminded of the scotch, Black Douglas - I think it's an inferior scotch. WITNESS: Doo doo di doo doo, doop doop. HIS HONOUR: She was reminded of that and then she said, "Yes I did." WITNESS: Can I go now?" 26And again: "Q. No, that's not going to make things shorter. How much scotch had you drunk, how much scotch had you drunk that day, that night? A. I don't know, like 10 cups, probably 20. I don't know. Q. Are you just saying that or are you making that up as you go along? A. No. I don't know, like probably like five. Q. Probably about five? A. Yeah, probably or six. I don't know. Q. Or six? A. Maybe, yeah." 27TP went on to acknowledge that when she awoke that night she had "a bit of a hangover". 28The testimony of TP (as transcribed) was littered with responses by her which strongly indicated that she was not attempting to give the Court the benefit of her best recollection. 29It is recognised that in her initial evidence in chief she said she was woken by people fighting and she walked out (into the lounge) and "it got broken up". She said that she identified "Josh, Anthony and yea I know all them, don't know the rest". 30"Josh" is a reference to the appellant. TP said she saw her cousin (Daniel Cohen) being "bashed" and that one of the perpetrators was "Daniel". Asked to elaborate she said "it was Joseph's brother Anthony - not Anthony. Fukin - sorry. Sorry Josh's brother". She accepted, as led to her, that the Daniel she referred to was Daniel Maher. 31A gauge to the atmosphere at this point can be derived from an intervention by his Honour: "Q. Miss, would you stop chewing gum, please? A. Sorry. Q. This is a court of law, it's not some kind of amusement arcade. Now, stop chewing gum and answer questions sensibly. A. It's gone. Q. Thank you. Don't be impertinent either." 32This can be gleaned by the foregoing; there was more than one visit by groups of "boys" to number 36 on the night in question. The indictment specifically related to the intrusion at about 2.15 am. At times TP appeared to be conflating different visits as appears in this extract from her evidence: "Q. So just in terms of the sequence you've indicated that when you came out of the bedroom, out of your bedroom where you were asleep? A. Yeah, yes. Q. You saw some boys walking out and you've also indicated that you saw some boys bashing your cousin, right? A. Yeah, yeah. Q. When was that in relation to the boys walking out? A. What do you mean by that? Q. Okay. A. I don't know, I was not there. Q. So just dealing then with your evidence that you've given so far that they were bashing your cousin, Daniel Cohen and he was, I think you said, did you say he was standing near the front door? A. No, he was sitting down and they came back in and then they couldn't get to Chris so they bashed my cousin. Q. I'm sorry and where was your cousin when they bashed him then? A. I think he was on the lounge. Q. Yeah? A. Yeah. Q. The boys came back in, did they? A. Yeah. Q. Were they the same boys that had gone out a moment before? A. Yeah. Q. Are you able to say whether or not all of them came back in or just some? A. Some, cause some boys went home. Q. How many boys were there at first when you saw them walking out? A. I wouldn't have a clue, probably about seven. I don't know, something like that. I wouldn't have a clue. Q. And then how many boys came back in when Daniel was on the lounge, the couch? A. Have a think about that one. I don't know. Q. You don't know how many came back in but they didn't all come back in is that the best you can do? A. No, yeah. Yeah, that's the best that I can do, mate. Q. Please continue then, what happened next? A. What happened next, they took it out the front, they had a go at - they went out the front and then, yeah. Q. They took it out the front, what do you mean by that? A. Yeah, like they had a fight out the front. Q. Who had a fight out the front? A. I don't know, my cousin. I don't want to do this." 33Shortly after this her evidence continued: "Q. Can you remember some of the details of what happened that night? A. No, not really." 34The Crown Prosecutor later returned to direct attention to acquaintance with the appellant. The examination of TP continued: "Q.Did you see any - did you see him again after that prior to the night you're talking about now, that's Josh Maher? A. Yeah. Q. How many times did you see him? A. They have to be hard questions, don't they? I don't really know. I don't want to do this. Q. Can you give an approximation as to how many times you saw him? A. Not really. Do I have to do this? Q. In between the time you were first introduced - A. Yeah. Q. And the night in question did you see him again once or more than once? A. More than once. Q. Just doing the best you can approximately how many more times did you see him in that period? A. No, I don't know. I need help. I don't know what to do. Q. Did you ever talk to him again in that period? A. Yeah. Yes, I have. Q. Now, on the night in question did you see any other people that you recognised from before? A. Yeah. Q. Who were they? A. Anthony, Daniel, then yeah, no one. Q. Anthony, Daniel and yeah, what did you mean please? A. And this is stressful. I need a drink of water. Can I go now? Cheers." 35In her evidence TP vacillated about the presence, identity or activity of the intruders. For example: "Q. Did you know a man called, or a boy called David May? A. David May? Q. Yes. A. Nope. Q. Corey May? A. Corey May, oh yeah, I know him, yep. Yeah, man, but he wasn't there I think. Oh yeah, he was there. Q. When was Corey May there? A. I don't know, this was a long time ago, I wouldn't have a clue. Q. What was Josh Maher wearing on the night in question? A. I don't know, I wouldn't have a clue. Q. What part precisely did Josh Maher play when your cousin was being bashed on the lounge? What did you see him do in relation to that, if anything? A. don't know. I don't know." 36About this juncture the Crown Prosecutor obtained leave to cross-examine TP pursuant to s 38 of the Evidence Act . Parts of the statement made on the previous Friday were read to her and included was a description of: "...I saw about seven or eight boys hitting into Daniel, my cousin. I saw Anthony Shipley, Josh Maher, Offa (unknown surname), John Donald, Shannon (unknown surname) and a couple of boys I don't know all hitting Daniel". 37I pause to interpolate that the appellant is convicted of assaulting Rhyse Hooker and not of assaulting Daniel Cohen. 38The statement was read to her in parts and TP's responses included "Mm", "no", "oh no, not, no" and "listen, is Josh". This last appears to be interrogatory in nature but is obviously incomplete. One is left to speculate as to what confirmation TP is seeking. 39She did agree however, when it was led to her, that what was in her statement was true. 40TP was next cross-examined by Counsel for the co-accused. He elicited some evidence of TP's consumption of liquor which has already been recited. When questioned about her omission to include Coorey May as one of those who intruded, she said that she just forgot about him, then she added that he was going to get locked up "anyways" and she further added that her memory was "lost". 41She confirmed to Counsel that she has seen the appellant and Marbuck Dixon engaged in a flight earlier in the night after which she thought the appellant "went back to his house". 42Cross-examination by Counsel for the appellant elicited these responses: "Q. Okay, can I suggest to you that you are mistaken about, first of all, seeing Josh Maher being one of the boys. What do you say about that? A. Huh? Q. You know what I mean when I say you made a mistake, don't you? A. Yes. Q. Yes, well I am saying to you that you made a mistake, you didn't see Josh Maher going out just after you got woken up, did you, think back? A. Mm-hmm. Q. This is really important, I know you are laughing? A. Think back, that's a long time ago. Q. If you can't be sure just say that to the court now? A. I can't be sure. Q. I am not putting words in your mouth, am I? A. Yes, no you're not. Q. So what you are saying is you really can't be sure whether you saw Josh Maher going out the door, is that right - think about it - are you drawing there, are you? A. No. Q. What are you doing? A. I got no pen. Q. Just listen to my question. I am saying that you can't be sure now that you actually saw Josh Maher going out the door when you came to the hallway, can you? A. Mm-hmm. I can't answer. Q. Either yes or no? A. Yes." 43These questions were after followed by enquiry concerning the consumption of alcohol which has been above quoted. The cross examiner returned to this topic again: "Q. And it's not true that Josh Maher wasn't even there in the early hours of the morning, was he? A. I don't know. No, but he was there. I know it. I forget. I don't remember. Q. How can you be so sure? A. So sure? Q. Yeah. A. Because I'd seen him right there. Q. But you'd been drinking? A. No - I'd been drinking? Q. Yeah. A. I wasn't drinking that much. Q. Weren't you? About five or six cups? A. Yeah, I was tipsy. Q. And what I'm saying to you is you think he was there but you're confusing it with another time? A. No, he was there. Q. Was he? A. Yeah. Q. You know Josh Maher's mum, Sharon, real well too don't you? A. Yep. Q. Yeah. Did you tell Sharon a couple of weeks ago that Josh was definitely not there on that morning? A. Not that morning but that night. Q. Sorry, that's what I meant, the early hours of the morning-- A. Yeah. Q. You told his mother that Josh was not there? A. Josh, he was there the first time but not that. He was there the first time not the second time. Q. Okay, so you're now saying he was there the first time but not the second time? A. Yeah, I said that before. Q. Okay, can you just explain to me what you mean by the first time and the second time? A. He was, he was there the first fight and then he wasn't there the second time, so." 44Thus this evidence can be understood to assert that TP saw the appellant at number 36 when he fought with Marbuck Dixon but not "the second time" which seems to be a reference to the intrusion at about 2.15 am. 45There was no other witness testifying to the essential proposition in support of the indictment that the appellant was one of the intruders who came at 2.15 am. It would have been necessary for the jury to accept beyond reasonable doubt the evidence of TP when she said from time to time that the appellant was present at 2.15 am and was a participant in the attack upon Rhyse Hooker. 46The foregoing substantial extracts of TP's evidence show contradictions, uncertainties and obvious unwillingness to apply herself to the seriousness of the task upon which she was engaged. In my view it would be dangerous to rely upon her testimony, in particular her identification of the appellant. 47In coming to that conclusion it is not to be ignored that her memory of events was attempted to be provoked for the purpose of making a statement well over a year after the events and only days before she came to testify. The resource for her statement and her evidence was a memory of a very young person who had ingested strong liquor and at the time had wakened from a following sleep. 48The assertion in the ground of appeal that the conviction was unreasonable and cannot be supported on the evidence should be sustained. 49Having regard to that conclusion and the foregoing observations and recitations of extracts of evidence, inquiry might be provoked as to why the verdict of guilty was returned. It is not appropriate to speculate upon the determination of the jury nor upon their reasoning but it does not pass notice that the appellant himself gave evidence which involved an admission at the very outset that he had lied to police. His mother gave evidence supporting the proposition that he was in bed at home on the relevant night. A tribunal of fact may well have some difficulty in accepting this assertion bearing in mind the evidence of the fight earlier in the night between the appellant and Marbuck Dixon which, contrary to the appellant's proposition, was described by witnesses as occurring close to midnight rather than close to midday. In addition there was a contradiction between Mrs Maher and the officer in charge of police investigation about conveying to the latter the facts which constituted the claimed alibi. 50Although these criticisms tend to provide an understanding as to why the defence case should be rejected, none of the matters rejected would repair the deficiency in the Crown case in positively identifying the appellant as one of the intruders. 51I would allow the appeal, quash the conviction and sentence and enter a verdict and judgment of acquittal on the remaining count on the indictment.