The Queen v Negus[1997] QCA 191

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 57 of 1997

Brisbane

Before      Macrossan CJ

Fitzgerald P

Davies JA

[R. v. Negus]

THE QUEEN

v.

PAUL WILLIAM JOSEPH NEGUS

(Applicant) Appellant

Macrossan CJ

Fitzgerald P

Davies JA

Judgment delivered 1 July 1997.

Joint reasons for judgment of the Chief Justice and Davies JA.    Separate reasons of Fitzgerald P concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - evidence - dock identification - whether failure to direct jury to disregard dock identification resulted in a miscarriage of justice.

SENTENCE - two counts of break and enter with intent and two counts of stealing - whether effective sentence of four years’ imprisonment manifestly excessive.

Counsel:  Mr A.  Glynn SC for the appellant.

Mr D.  Bullock for the respondent.

Solicitors:  Patrick T.  Murphy for the appellant.

Queensland Director of Public Prosecutions for the respondent.

Hearing Date: 15 May 1997

JOINT REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND DAVIES JA

Judgment delivered 1 July 1997

This is an appeal against conviction on the grounds that the Trial Judge erred, as it is claimed, in admitting dock identification evidence given by a witness in the course of the trial and in refusing to discharge the jury after that evidence has been given.  There is also an application for leave to appeal against sentence.

The appellant had been tried on four charges that in the early hours of the morning of 29 March 1996 at Holloways Beach in North Queensland he broke and entered the dwelling-house of a complainant Kemp with intent to commit an indictable offence and that he stole there a shifting spanner and that he broke and entered the dwelling house of complainants Bates and Dighton with intent to commit an indictable offence and that he stole there a number of items including money, a purse, keys and personal cards.  Although he denied the charges and gave evidence at the trial, there was a strong circumstantial case against the appellant. 

It was during the evidence given by one of the complainants, Ms Dighton, that the dock identification evidence was given.  It came while Ms Dighton was being examined by the prosecutor but her claim to identify the appellant was in answer to a question that did not seek it.  Ms Dighton had seen an intruder who broke into her premises on the night of 29 March 1996 and she was asked to give a description of him.  She did this by saying "he is sitting right over there" indicating the appellant in the dock.

Argument then took place in the absence of the jury, with defence counsel asking that the trial be terminated and the jury discharged.  In the circumstances the Judge had not been asked to rule on the admissibility of the dock identification but he did refuse to discharge the jury.  He dealt with the matter by giving particular directions in the course of his summing up.

The offences charged had occurred about 3.30 a.m. and the indications were that it was very likely that both residences which were in the same area had been burgled by the same offender or offenders.  A spanner taken from the residence of the complainant Kemp was found at the residence of Ms Dighton.  The appellant's car was located by investigating officers parked a short distance from the scene with the keys in the boot-lock.  In the boot the officers found property that had been taken from Ms Dighton's residence.  The appellant was located on an access pathway leading to the beach near where his car was parked.  When interviewed by the police officers he told what could be regarded as a number of lies including giving an incorrect address, an incorrect assertion about a key found in his possession and other statements about how he came to be at Holloways Beach.  Essentially, his version was that he had been drinking with a group of people at the beach and had left his car keys with his vehicle.  He was sharing his tobacco with his companions and had fallen asleep at the beach because of the amount he had had to drink.  He later claimed to have been under the influence of liquor when spoken to by the police, apparently in explanation of false statements he had made.  When taken to the police station for questioning he, in effect, identified a tobacco pouch that had been found at the premises of the complainant Kemp as being his property.  This made relevant his claim to have been sharing his tobacco with companions at the beach.  Notwithstanding his denials there was obviously a strong circumstantial case against the appellant. 

Ms Dighton had been at home reading in bed when an intruder came to her room, opened the door and stood there for a time so that Ms Dighton had what she said was a good opportunity to observe him.  The description that she gave shortly afterwards to an investigating officer, Sergeant Newton, was repeated in the course of the trial.  The police had not arranged an identification parade nor shown Ms Dighton a photoboard from which to attempt an identification.  The trial took place about nine months after the burglaries occurred and in the meantime there had been a committal hearing when Ms Dighton had seen the appellant but she had made no purported identification of him in court on that occasion.

The description that Ms Dighton had given to Sergeant Newton shortly after the intruder entered her home contained a number of details some of which might have been regarded as matching the appellant but others less so.  One feature, consisting of tattoos peculiar to the appellant, she did not observe on the intruder although, as she described events, she would have had a good opportunity to see them.

Ms Dighton says she saw the intruder in the doorway of her room from a distance of about three or four metres in a good light.  She said that "it seemed like forever when he stood there".  The description she gave to Sergeant Newton was that the intruder "was a Caucasian male, well tanned, grey short hair, approximately 40 years of age and not wearing a shirt".  She did not mention tattoos.

There was evidence that the appellant had long hair, pale skin and twelve tattoos on his forearm, upper arms, chest and underarm.  At the trial he displayed the tattoos to the jury.  It was obviously an important feature of the appellant's defence that if Ms Dighton with a good opportunity to observe the upper body of the intruder had not seen tattoos, then the intruder must have been someone other than the appellant.  The strength of this defence was greatly challenged by Ms Dighton's purported identification of the appellant if it were to be allowed any weight by the jury in their consideration of the case.

In his summing up the Trial Judge in strong terms directed the jury that they should not give weight to the dock identification although it could be said that he did not, in terms, say that they must disregard it.  For this reason it was submitted that his summing up was defective and that the verdict would not stand.  For the appellant it was conceded that in this case there should be a new trial.  This submission makes it necessary to look a little more closely at the terms of the summing up.

It cannot be suggested that it can never be a proper course to allow dock identification in the course of a trial (see R v. Demeter [1995] 2 Qd R 626, and R v. Saxon No. 49 of 1996 CA (Vic) 7 March 1997, unreported).  But there were strong reasons for thinking that in a case like the present it should not have been permitted if the Judge had been asked to rule upon admissibility.  However, this is not the way in which the evidence was introduced.  The precise question now arising for this Court is not whether the Trial Judge was in error in declining to discharge the jury when asked to do so, but whether his not having done so and the terms in which he later directed the jury have in the circumstances resulted in a miscarriage of justice;  see e.g. Mraz v. The Queen (1955) 93 CLR 493 and Wilde v. The Queen (1988) 164 CLR 365 at 371-372.  To answer this question the overall effect of the evidence, including the fact that it amounted to a strong circumstantial case, needs to be considered together with the terms of the summing up.

Before turning to the summing up it should be emphasised that apart from the dock identification there were these features:  some parts of the description provided by Ms Dighton to Sergeant Newton might be thought to apply to the appellant and others less so or not at all;  Ms Dighton's description of the intruder and later explanation of it contained unusual aspects, for example her claim at the trial that she regarded hair that came down to the shoulders as short hair and her opportunity to observe the intruder was combined with a failure to observe tattoos.  The Trial Judge would naturally feel obliged to deal with these matters but he did it in a way which ran certain issues together and it is said introduced confusion.

After outlining the nature of the circumstantial case presented by the Crown and after referring to the appellant's denial of any involvement and claim to have been simply drinking with a group at the beach and thereafter sleeping there, the Trial Judge proceeded to give directions concerning what he described as "specific pieces of evidence".  He told the jury that the only direct identification of the accused as the offender came from Ms Dighton in the witness box.  In strong terms he informed the jury that the experience of the courts was that dock identifications were notoriously unreliable although of course they might be right and they might be wrong.  He said that the jury should not use Ms Dighton's dock identification as a basis for finding the appellant guilty.  He explained why psychological factors could induce a witness to honestly believe someone whom they see in court accused of a crime to be one whom they have previously observed at a place and in circumstances connected with the commission of a crime.  He urged the jury to put Ms Dighton's identification out of their minds "completely" and then a little later "entirely". 

Notwithstanding the strong nature of these warnings the Judge immediately after proceeded to deal with matters which he said the jury could think might make Ms Dighton "unreliable".  Under this heading he referred to "apparent differences" between what she observed of the intruder on the night and the appearance of the appellant.  Although he made the point that a failure to observe tattoos notwithstanding good opportunity to do so was something which favoured the appellant's claim that he was not involved, the Judge did this in a way which combined it with references to her possible "unreliability".  The complaint seems to be that the effect was to invite the jury to think that her failure to see tattoos was an aspect of her unreliability and by running the wider issues together the Judge weakened the warning which he was at the same time giving about dock identifications.

However, the relevant passages of the summing up call to be judged as a whole and although subsequent analysis of the Judge's words allow some opportunity for objections of the kind mentioned to be raised the conclusion should be reached that, judged as a whole, the summing up would not to any significant extent have distracted the jury's attention from relevant matters.  In particular, the jury would have sufficiently understood the instruction about the need to ignore the dock identification and the reasons for the unreliability of identifications offered by witnesses for the first time of persons whom they see in the dock.  At a later point in the summing up the Judge referred to the strengths and possible vulnerabilities in the Crown case, putting these matters fairly and clearly as well as warning the jury once more to ignore Ms Dighton's identification of the appellant in court.  As an indication of the atmosphere of the trial it should be noted that no relevant redirection was asked for.  The appeal against conviction should be dismissed.

In sentencing for the four offences the Judge imposed an effective penalty of four years' imprisonment.  He did this by making distinctions and imposing the heaviest penalty in the case of the entry into Ms Dighton's premises at a time when she was present and greatly alarmed by the intrusion.  The question for this Court's consideration is not whether a significant distinction should have been drawn between the two cases of burglary, but whether the effective four year term was in the circumstances manifestly excessive.  It is not possible to come to that conclusion.  The Judge noted that there was no entitlement in the appellant to particular consideration or leniency as might have been the case had there been a plea.  He noted the significance of the appellant's age and background.  The appellant was 31 years of age when he committed these offences and he had an extensive criminal record which included a number of offences of burglary as well as a range of other offences.  There is no reason shown to regard any of the terms of six months, one year, two and a half years and four years imposed on this occasion as excessive.  The application for leave to appeal against sentence should be refused.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 1 July 1997

The circumstances giving rise to this appeal against conviction and application for leave to appeal against sentence are set out in the joint reasons for judgment of Macrossan C.J. and Davies J.A.

I agree with their Honours that the evidence of the dock identification should not have been admitted had it been objected to, but the appellant lost the opportunity to object because the dock identification was made in an unresponsive answer.  I am also of opinion that the dock identification did not require the discharge of the jury provided that it was appropriately directed. 

Particularly by reason of the dock identification, it was important for the trial judge to carefully instruct the jury in relation to the discrepancies between the appellant’s description of the offender to an investigating police officer shortly after the offences and the appearance of the appellant.  Regrettably, the summing up did not deal with these matters in an entirely satisfactory manner.  The question therefore arises whether the appellant lost a chance of acquittal which was fairly open to him by reason of inadequacy in the trial judge’s directions to the jury.  It is necessary to take into account not only the terms of the directions but also any request for a redirection and whether at the end of the day it appears that the trial might have miscarried by reason of the inadequacy in the directions: Mackenzie v. R. (1996) 71 A.L.J.R. 91, at p. 92 per Dawson and Toohey JJ.  In the same case, Gaudron, Gummow and Kirby JJ. said at p. 106:

“The jury therefore considered their verdict without ... assistance [on an important question upon which redirection had been sought].  In our view it was a matter upon which assistance ought to have been given.  The failure to give it (particularly when the problem was expressly raised with the judge) is one which, in the circumstances of this case, occasioned a miscarriage of justice.

This is not a case where it would be appropriate to apply the proviso in sub-section 6(1) of the Criminal Appeal Act 1912 (N.S.W.).^[1]  Although, it is true, there was evidence upon which a jury, properly instructed, might convict the appellant, the instruction was imperfect in an essential respect.  It therefore undermined the acceptability of the verdicts, given that the Court must assume that the jury acted on instruction given by the judge on matters of law [Domican v. The Queen (1992) 173 C.L.R. 555 at 565-566; Glennon v. The Queen (1994) 179 C.L.R. 1 at 8-10].  It cannot be said that the conviction of the appellant was inevitable.  He lost a chance of an acquittal which was fairly open ... [Mraz v. The Queen (1955) 93 C.L.R. 493 at 514; Wilde v. The Queen (1988) 164 C.L.R. 365 at 371-372].”

My mind has fluctuated somewhat in the application of these principles to the circumstances of the present case, in which there was no request for a redirection by the appellant’s trial counsel.  In the end, I have concluded that the inadequacies in the summing up did not deprive the appellant of a chance of acquittal which was fairly open to him, his trial was not unfair and there is no real risk that an innocent person has been wrongly convicted.

Accordingly, I agree that there has been no substantial miscarriage of justice, and that the appeal against conviction should be dismissed.

I agree with Macrossan C.J. and Davies J.A. that the application for leave to appeal against sentence should be refused, and with their Honours’ reasons for that conclusion.

I agree with the orders proposed.