SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  The appellant appealed against his conviction by a jury of one count of attempted burglary, one count of malicious act with intent and one of common assault. (He was acquitted of attempted murder, the alternative to the count of malicious act with intent.)  He also sought leave to appeal against a sentence of 10 years imprisonment with a declaration of a serious violent offence imposed in respect of the count of malicious act with intent.  The sole ground of the appeal against conviction was that the verdict was unsafe and unsatisfactory, but counsel was given leave to add grounds concerned with Domican[1] and Jones v Dunkel[2] directions which, it was said, should have been given, and what was said to be a defective and prejudicial direction as to the credibility of an alibi witness.  The unreasonableness ground was maintained and argued on the basis that the jury, acting reasonably, could not have been satisfied that witnesses’ descriptions of the offenders should be accepted. 

Background

[2] The counts on which the appellant was convicted arose on this Crown case: that on 25 October 2003 the appellant and his son, Rodney John Finlay, attempted to break into a house at Jaguar Drive, Bundall on the Gold Coast (the attempted burglary).  They decamped when disturbed, but were pursued by one of the occupants and his neighbour.  When, after a chase, the two attempted to accost the appellant and his son, the appellant shot the neighbour (the malicious act with intent).  When the neighbour’s father subsequently attempted to follow the two men in his car, the appellant pointed a dark object at him and told him not to follow (the common assault).  The appellant’s son, who has not proceeded with an appeal, was convicted only of attempted burglary; the jury presumably being satisfied that he was in his father’s company, but not that he was a party to the shooting or assault.

The evidence in the Crown case

[3] Jonathan Howe was an occupant of the house which was the subject of the attempted burglary.  At a time between 7 and 8 pm, he saw a man pulling at the security door to the laundry in an apparent attempt to remove it.  He shouted at the intruder who fled, running away down Jaguar Drive in the direction of a nearby canal.   Mr Howe attracted the attention of his neighbours, Andre Von Zeppelin and his teenaged son Alex, and he and Alex began a pursuit, the latter wielding a cricket bat.  Meanwhile, Andre Von Zeppelin had seen two men walking away “as briskly as possible”.  They were wearing dark three-quarter length jackets. One walked with a difficult gait “almost like a limp”.

[4] A young skateboarder, Shannon McDermott, had also seen two men jogging along Jaguar Drive in the direction of Richmond Avenue.  He described the first as taller, with dark clothing, dark shoes, a balaclava or beanie, and the second as shorter, slower, and chubbier, also with a black beanie on.  He was unsure if the first man’s face was covered; it seemed dark.  The second man was having trouble keeping up.  A little further on he saw Alex Von Zeppelin and Jonathan Howe and joined their pursuit, but gave up when he heard shots.

[5] Jonathan Howe and Alex Von Zeppelin ran along Jaguar Avenue.  Off to the side, on the corner of Richmond and Raymond Avenues, they saw two men, apparently attempting to hide, who then moved away into Richmond Avenue. The two men began firing back towards Howe and Von Zeppelin, but they kept up the chase, because they thought that only a cap gun was being used.  The men they were pursuing ran into Raymond Avenue and then stopped.  One produced a small black handgun and, saying, “I told you not to chase me”, levelled it at Alex Von Zeppelin. He fired twice, from a distance of about one and a half metres.  The first firing produced only a click; the second, a bullet which struck Von Zeppelin.  A witness who heard the noise of the shooting and its aftermath said that it occurred at about quarter to eight. 

[6] Mr Howe said he could not accurately describe the person who did the shooting.  He wore a beanie or bandanna rolled up, exposing his forehead, and a dark collared long sleeved jacket which came to around the kneecaps.  Mr Howe estimated that man’s height as between 165 and 170 centimetres.  He had some facial hair around the cheeks and chin.  Mr Howe did not see the other man clearly; he recalled that he wore a similar jacket with a collar and a beanie or bandanna.  He could not say whether either man was the one he had seen at the laundry door of his house, but their clothing was very similar to what that person was wearing.

[7] Alex Von Zeppelin described seeing two men in dark clothing in Jaguar Drive and again at the corner of Richmond and Raymond Avenues.  When he approached them, he saw that one was older, taller and bald; the other, younger, shorter, with red hair.  The first was fiddling with a black backpack and was the one who shot him.  He recalled that individual’s clothing as being black pants and a long sleeved black skivvy, while the other wore black pants and a black shirt.

[8] Under cross-examination, Mr Von Zeppelin agreed to having said these things in his evidence at the committal: that his father had said, before the chase began, that they would “get after the old man and his son”; that the shooter was about six feet one inches tall, the same size as himself, an old, skinny, grey-haired person; and that the younger man was stocky and short, significantly shorter than the shooter, of a big-boned muscular build.  He also agreed that he had previously described the older man in his statement as 65 to 70 years old, older and wrinkly with short gray hair and a pointy chin.  He clarified that by saying that the man had short gray hair on the sides of his head and was bald in the centre.

[9] Andre Von Zeppelin did not join the chase on foot, but drove his four wheel drive slowly along Jaguar Drive, turning right into Racecourse Drive and right again into Raymond Avenue.  There he saw two men on the footpath coming towards him.  It was a dark, rainy evening and he had his headlights on.  He stopped and asked the men for directions to Jaguar Drive, suspecting from their manner of walking and their jackets that they were the same men he had already seen.  The two kept walking; he reversed his car alongside them and put his headlights on high beam in the hope of identifying them.  Mr Von Zeppelin described them as follows: One was in his late forties to fifties, with dark hair and sideburns, fit looking, of strong build, and somewhere between five foot two and five foot six in height.  He walked more easily than his companion.  His jacket was a Drizabone style in three-quarter length; Mr Von Zeppelin thought he wore running shoes.  The second man was balding and had a round face. He was shorter, larger and certainly older than the first man.  He similarly had a three-quarter length jacket.

[10]  Mr Von Zeppelin had reversed back into Racecourse Drive, which the two men crossed before moving into Waterford Court, a cul-de-sac.  He continued to follow them, but the second man moved his arm behind his back, then pointed an object at Mr Von Zeppelin and told him not to follow.  The latter retreated and telephoned the police.  He last saw the man who had threatened him walking into a driveway to units at the end of Waterford Court.  Under cross-examination, Mr Von Zeppelin agreed that in his statement he had described the second man, the one who lagged behind, as in his late forties to his late fifties, of “solid fat build”, and that, although he had mentioned a distinctive walk, he had never described it as a limp.  He agreed that he was unable to identify either man from a photoboard.

[11]  Bridgette Wheeler lived in a house at Waterford Court.  On the evening in question she heard some banging noises.  A little later, looking down from her upstairs bedroom, she saw two men standing in Waterford Court.  One man was younger, had no facial hair and was wearing dark clothes.  She was not really able to describe the clothes but said they were “like, dark board shorts sort of type and a dark shirt.”  She thought the man had a hat but was not sure.  The second person she saw running with a “bit of a limp”.  He had dark clothes and was wearing a long jacket and dark runners.  She could not see whether he had anything on his head, what his hair colour was or if he had facial hair.  She also noticed a white Range Rover with its lights on high beam which came into the cul-de-sac and then did a “U” turn.  By then, the two men had passed her house and disappeared from her view.

[12]  Although Ms Wheeler’s father was a horse trainer and she had seen the appellant “around the racing industry”, she did not recognise him on that night and in fact identified another individual on a photoboard as having hair and a clean-shaven face similar to the man she saw on that night.  Under cross-examination, she agreed that she had not mentioned in her statement that the older man had a limp and had described him as tanned with dark hair.  She had referred to seeing a white T-shirt below his dark blue jacket, which was ankle length. Ms Wheeler said that, although she had turned on the security lights at the front of the house and there was a street light outside, it was dark and difficult to see.

[13]  The location of Waterford Court is of some significance.  At the end of the cul‑de‑sac there is a driveway into some units from which access can be gained to a path alongside a canal.  That path leads south-west to Benowa Road, from which it is a relatively short distance to the appellant’s home in Evans Drive, Benowa.  On the opposite, southern side of the canal is a park and a set of stables next to a street called Equine Court. 

[14]  One of the occupants of the unit complex at Waterford Court said that she had heard, at about 8 pm that evening, a male voice coming from the rear of the units where the canal and path were. The words said were, “Come on Jack, hurry up. Hurry up, Jack.”

[15]  The police were called after the shooting of Alex Von Zeppelin.  Two officers, Sergeant Staines and Senior Constable Cahill, drove around the area and then travelled down Racecourse Drive across the canal into Equine Court.  At the beginning of the pathway running along the south bank of the canal, their headlights illuminated a man ahead of them.  Senior Constable Cahill said he was about 20 or 25 metres in front of the police vehicle, walking towards it, having come from the canal side of the path onto the path.  At that stage, he was very wet and appeared to be breathing heavily. They put a spotlight on him and shouted instructions to stop.  He turned and ran back towards the canal, got in, and stood there in waist deep water. 

[16]  The two officers retrieved the man, who eventually identified himself as Rod Finlay, the appellant, from the canal.  He answered Sergeant Staines’ question as to what he was doing, to the effect that he was having a drink by the canal and fell in.  When asked why he had run, he said that he thought the police officers were “the two guys that were chasing me”.    Both officers disagreed with the proposition that the appellant had said he thought they were the two fellows who had pushed him into the canal.

[17]  Another police officer, Senior Constable Anderson, arrived on the scene. He described the appellant’s appearance and apparel:

“a short, rather solid sort of build, a very prominent stomach and short, receding brown hair. At the time he was soaking wet. His clothes were soaking wet. He was dressed in a grey striped polo shirt, denim - blue denim jeans and a pair of blue and white runners, joggers.”

Senior Constable Anderson spoke to the appellant and asked him how he came to be at the canal.  The appellant replied that he had had an argument with his wife, had gone to the Benowa Tavern and had a few beers. While walking home he had run into two “heavies”.  In trying to get away from them, he had slipped into the canal.

[18]  The appellant had a longer conversation with another police officer, Senior Constable White, who recorded it in his notebook.  According to Constable White, after being warned, the appellant said, in answer to the question: “So what’s happened tonight?”, “I was having a few beers and I had a run-in with the wife”.  Questioned further he said, “I was just having a beer down at the water and I slipped in.”  When asked how he had got there, he said, “I swam.  I swim here a lot, nearly every day.”  When asked again after a short break how he ended up in the water, he said, “I was having a few beers and these two big guys came after me so I jumped in the water”.  When asked where that had happened, he indicated in an easterly direction.  Later he informed another police officer, “As I said they were two big lumps of blokes.  I just jumped in.”

[19]  Later that night, the appellant took part in a formal, taped record of interview.  He said that he did not know why he was there:

“I fell in the friggin’ drink, and two blokes running past me, and - and one beginning to bash me, and I – I had my bottle of beer, and I jumped in the friggin’ water but I swam down the [indistinct] and they come out of the car ---”.

He had some difficulty remembering at what time it had happened; he had “had a few drinks”. He was “travelling from around near the stables”, where he had had a bottle of beer. The two men came past, so quickly that he would not be able to recognise them. He thought they were going to kill him.  He had nothing to do with any shooting.

[20]  Police searched the area around the rear of the unit complex at the end of the Waterford Court cul-de-sac and the path along the canal.  On the path near the back fence of the unit block they found a navy blue balaclava. Not far away, from the water at the edge of the canal, they retrieved two jackets, each with gloves in their pockets.  Close by in the rocks they found a torch and a piece of paper with writing on it which, it was admitted at the trial, was that of the appellant’s son.  The paper was wet but the ink had not run and it did not appear to have been exposed to the elements for any length of time.  The following day, another search found a holster near the canal in the same area and a .22 calibre revolver wedged between two rocks on the canal bank.

[21]  Photographs of the jackets taken from the canal and pictures of ten other, different jackets were shown to Andre Von Zeppelin and Jonathon Howe.  Von Zeppelin identified the jackets found in the canal as “similar” to the jackets worn by the two men he spoke to on the night in question, although he could not say who wore which jacket.  Howe identified three jackets as resembling those worn by the men he had seen that night, two of which were those retrieved from the canal.  One of the jackets was of a particular style for which there were only two outlets in south east Queensland and northern New South Wales.  Only one of the two, a shop in Beaudesert, had sold such a jacket.  Its proprietor said that she had only purchased one jacket of the type in order to decide whether she would carry the line and had sold it to a man who said he had a new barber’s shop “down the road”.  It was admitted that Rodney John Finlay was the proprietor of a barber’s shop at Beaudesert.

[22]  The gun contained five spent rounds and one live round of ammunition.  It fitted the holster.  A ballistics expert who examined the weapon said that the revolver’s firing was unreliable.  If it did not discharge it made a clicking sound.  He could not say definitively that the projectile taken from Alex Von Zeppelin’s body had been fired through the revolver’s barrel, although it had some consistent features.

[23]  Telephone records showed a dozen calls or attempts at calls involving the appellant’s mobile phone, made between 7.54 pm on the evening in question and 1.07 am on the following morning.  Those calls or attempted calls were made to or from the landline at his home and the landline at the home of his son, Rodney John Finlay, usually through the Benowa Base station.  Detective Anderson gave evidence that shortly before midnight he attended the appellant’s house but there seemed to be no one home.  He telephoned the number that he had been given by the appellant for his home phone.  He heard the telephone ring in the house; then the ring tone changed and the telephone was answered by a male person who identified himself as the appellant’s son.

[24]  The appellant was arrested on 26 October 2003.  By way of details of his appearance, a police officer recorded that he was of “heavy build” with a “fair complexion” and was 170 centimetres tall.  His son was arrested on 25 June 2004, when his height was recorded as 178 centimetres, his build as “proportional” and his complexion fair.

[25]  A witness named Kim Bell who had met the appellant through the racing industry was called by the Crown and thus made available for cross‑examination.  He said that he had regularly walked with the appellant in October 2003 and that the latter had not had any difficulty walking.  He did not recall him limping.

The defence case

[26]  The appellant gave evidence, as did his wife, and an alibi witness, Mrs Brenda Lattimer.  The appellant said that as at 25 October 2003 he was 71 years old and was retired.  That evening, he had argued with his wife over dinner. He left the house carrying with him two bottles of lager, which he drank in a nearby park before making his way on foot to the Benowa Tavern.  He was not wearing any coat or jacket and did not own any like those which had been found in the canal.  When he arrived at the Tavern he found that he had no money on him and had left his mobile phone in his car.  As he was waiting for the rain to ease, he saw a neighbour, Mrs Lattimer, who gave him a lift. 

[27]  According to the appellant, Mrs Lattimer turned her vehicle east along Ashmore Road, in the opposite direction to his home, because she wanted to get dinner from a Chinese takeaway restaurant. She pulled off to the side of Ashmore Road and stopped outside the restaurant, although he could not remember whether she had turned the engine off.  However, she changed her mind about going inside and said she would take him home, since he was wet. Mrs Lattimer next turned left into Racecourse Road and drove towards the stables near Equine Court.  At that point, the appellant said, he felt the need to urinate and asked Mrs Lattimer to stop so that he could use the toilet at the stables, where he had once worked.  He told her not to wait for him. 

[28]  The appellant said he duly went to the toilet at the stables and came out through the gate onto Equine Court.  He headed in the direction of the canal and turned right towards the bridge on Racecourse Road, which he intended to cross to reach a garage where he could telephone his wife.  But he was suddenly attacked by two men who came out of the water, grabbed him by the arms and threw him onto the rocks on the side of the canal.  He ended in the water, winded.  He got out of the canal and began to walk towards Equine Drive to go back to the toilet in the stables; because of a medical condition he needed to urinate again.  When he saw the car he thought it might have been the same two men coming back so he hid in the bushes.  He heard a police officer shout “Don’t move” and then “Step back’.  He complied with the latter direction and ended up back in the water.  He told the police officers what had happened.

[29]  Under cross-examination the appellant said that, while he told the police officers he had had a drink at the park, he could not recall saying that he had been drinking beside the canal; that he had fallen in or jumped into the canal; or that he had swum in the canal.  None of those things, he conceded, were true. It was put to him that he had had an arthroscopy on one of his knees on 7 March 2002, which he said “could be right”.  He agreed that he had also had a “light scraping” of both knees on 8 April 2004.  However, he maintained that he had not had a limp as at October 2003.

[30]  In the course of cross-examination, the Crown prosecutor invited the applicant to try on each of the jackets found at the canal.  He complied.  The first jacket, according to the prosecutor’s unchallenged description, fell to a point halfway between the appellant’s hips and knees, while its sleeves were shorter than his wrists by a couple of inches. The second, it was recorded, was a little shorter, but the sleeves all but covered the appellant’s hands.

[31]  Mrs Finlay gave evidence that she had had an argument with her husband on the night in question and that he had walked out at about 6.20 pm.  At around about 7 o’clock she decided to go and look for him in her car.  She went to the Benowa Tavern and did not find him there and then drove around various streets.  At about 8 o’clock she went to the Allamanda Hospital in case he was there and then to the Gold Coast Hospital.  In between the two, she used her husband’s mobile telephone which was in the car to ring her daughter and then went home before going out again.  While at home, she made some calls to her son Rodney.  She was not sure whether she had used the mobile telephone or the home telephone.  She and her son searched separately and then met just before midnight.  Her husband’s mobile phone had rung in the car; it was a police officer.  As a result of that call, she went home and met police officers there who searched her house.

[32]  Under cross-examination, Mrs Finlay said that although her husband had sore knees, and limped when he had arthroscopies on both knees on 8 April 2004, he had not limped before that.  She agreed that in her police statement she had said that her husband had a mobile phone but she did not know whether he had it with him on the night in question and that he might have given it to their daughter-in-law.  She said that she had been mistaken when she said that, although she was in fact well aware that it was in the car she was driving. She also agreed that her description to the police of her searching for her husband that night did not contain any reference to her son.

[33]  Mrs Lattimer gave evidence that she was at the Benowa Tavern until about 7.20 pm, when she left the car park in her car and encountered Mr Finlay.  He was wearing a grey striped short-sleeved shirt, jeans and dark joggers.  He had no coat.  She had driven first to the Chinese restaurant on Ashmore Road but then observing that the appellant was “a little wet”, decided not to stop there and instead turned left into Racecourse Drive to take him home. (She agreed that was a more circuitous route than proceeding another block down Ashmore Road to a roundabout and turning back westwards in the direction of Evans Drive.) When they reached Equine Court, she had let him out because he said he wanted to use the toilet.  He told her not to wait and she drove home.  Ultimately, Mrs Lattimer agreed, she left the appellant further away from his home than their starting point, Benowa Tavern.

Domican  directions

[34]  Counsel for the appellant submitted that this was an identification case requiring directions in terms of the well known passage from Domican:

“Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.”[3]

[35]  Here, counsel for the appellant submitted, the poor quality of, and conflicts in, the witnesses’ evidence describing the offenders mandated the giving of a direction drawing attention to the weaknesses in that evidence.  For example, Mr Von Zeppelin had described the man who shot him as six foot one in height, which was clearly much taller than the appellant.  Mr McDermott had referred to the slower, shorter man as having pale skin; Ms Wheeler said that the limping man had a “fairly dark complexion”. Ms Wheeler also thought he wore a white t-shirt underneath his jacket, but that was not the clothing the appellant wore when the police located him. 

[36]  The rationale for Domican directions was explained in that case:

“[T]he seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.”[4]

[37]  The present case was not one in which any witness purported to identify either of the offenders. Rather, the Crown case sought by a combination of circumstances to identify the appellant and his son as the two men seen by the various witnesses. Among the relevant circumstances were descriptions which at some points coincided with the physical attributes of the appellant and his son and the clothing found by the canal.  It was evidence of a kind described by McHugh J in Festa v The Queen[5] as “circumstantial identification evidence”:

“It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime.  It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait.  It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime … It is proof of a circumstance – usually, but not always, weak – that with other evidence may point to the accused as the person who committed the crime.”[6]

[38]  The question of what direction such evidence requires has received differing answers.  In R v Benz,[7] Mason CJ and Dawson J regarded evidence describing the putative offenders as requiring no special warning.  It was to be distinguished from identification, which Dawson J said, occurred

“when one person recognizes another by comparing his current observations of that person with his recollection of him.”

He continued,

“It is the unreliability of human recollection as a basis for recognition which may call for a warning to the jury.”[8]

Deane J in that case took a different view: while he acknowledged that the evidence did not entail the additional unreliability involved in positive identification, there was a responsibility to caution the jury about the danger inherent in its taking the further step to identification, given the vagueness of the descriptions in that case.  The remaining members of the court did not find it necessary to come to any conclusion on the question.

[39]  The appellant’s contention as to Domican’s applicability finds support in R v Zullo,[9] in which this Court held that the Domican principle ought to be extended to cases in which “observed characteristics of the offender [were] put forward to identify the accused”.[10]  Visual identification could be unreliable for reasons to do with the quality of the light, the opportunity for observation, the distances involved and the speed at which events occurred. Observations where the identification process was two-stage, that is, where the observer described characteristics of the offender which the accused was shown by other evidence to possess, were subject to the same considerations. The trial judge in that case had erred, therefore, in failing to isolate for the jury “any matter of significance which may reasonably be regarded as undermining the reliability of identification”.[11]

[40]  In Festa, McHugh J expressed the opinion that Zullo was wrongly decided on that point and ought not to be followed.[12]  He did not consider that what he called circumstantial identification evidence had the potential unreliability of positive identification evidence, so that the warnings required in the latter case were not needed for the former.  He referred with approval to the point made by the Court of Criminal Appeal of South Australia in R v King,[13] that there was a difference between a catalogue of personal characteristics which resulted in a description fitting the accused and the actual mental process of recognition, which required a warning.  The latter, McHugh J observed, had often proved to be unreliable; but there was no more danger of a witness mistaken in giving evidence of the descriptive type than in most other forms of evidence.[14]

[41]  In his judgment in Festa, Kirby J did not find the distinction between “circumstantial identification evidence” and “direct identification evidence” helpful. He thought it not necessarily the case that such evidence was no more prejudicial than other forms of evidence.[15]  Hayne J, on the other hand, thought that the classification was sometimes a convenient one. But it should not obscure the purpose of the Domican direction in drawing to the jury’s attention difficulties in evidence which because of its “seductive effect” could produce a miscarriage of justice.  A witness might honestly, but mistakenly, give evidence of seeing a person with particular physical characteristics like that of the accused.  It was the judge’s duty to draw the jury’s attention to how and why the evidence might not be reliable.  He added this qualification:

“Of course, what is required will depend on the nature of the evidence that is given. If a witness says it was the accused that was seen, every element of the Domican direction will ordinarily be required. If, at the other end of the spectrum, the evidence is no more than “I saw a man wearing a red shirt” little more may be needed than to point to whatever difficulties the defence asserts that the witness may have had in observing and accurately recollecting the event. In this regard, as in every other aspect of a trial judge’s charge to the jury, the content of the directions must be moulded with due regard to the issues at trial; they are not to be a mere recitation of general propositions derived from decided cases.” [16]

Hayne J’s “man wearing a red shirt” scenario, lying at the furthest end of the spectrum from the Domican situation, seems to be an allusion to the facts in Zullo.

[42]  I do not think occasion has been shown to depart from this Court’s decision in R v Zullo[17], and this case would appear to fall within the two-stage process of identification described there. Notwithstanding, this was not a case of direct identification evidence of the kind involved in Domican, and it follows that not every aspect of the Domican direction was necessarily required. Indeed, the court in Zullo did not appear to be advocating a rigid approach:

“Domican should not be applied as if what the High Court said were a statute”.[18]

The emphasis there was placed on the need to identify for the jury the significant matters going to the reliability of the identification evidence. As Hayne J pointed out in Festa, the extent of direction needed will vary according to where the evidence lies along a continuum beginning with direct identification evidence. At the far end of that continuum lies evidence of description.

[43]  In the present case, after giving standard directions as to the approach to its task, including directions as to how circumstantial evidence was to be treated, the learned trial judge identified, as the first question for the jury to consider, whether it was satisfied that the appellant and his son were the men seen around Jaguar Drive.  If the jury was not satisfied of that beyond reasonable doubt, it should acquit. He reviewed the circumstances relied on by the Crown as pointing to a conclusion that the Finlays were the two men in question and then rehearsed the points made by defence counsel as to the deficiencies in the descriptions given by the various witnesses. His Honour twice reminded the jury during his summing up that it must acquit if it had any doubt that the accused men were those seen in Jaguar Drive and nearby, and that issue was made the first of a series given in written form to the jury for its consideration, under the heading “Suggested (Possible) Course of Deliberations”.

[44]  There were three things that the learned trial judge might have done and did not: he did not mention any particular limitations the witnesses might have had on their capacity to observe the two men; while reminding the jury of the points made by defence counsel as to the descriptions given, he did not give a direction with “the authority of [his] office behind it”;[19] and he did not warn the jury of any danger associated with evidence of the kind.

[45]  No Domican direction was sought by the experienced counsel who appeared for each of the accused at trial. And, although re-directions were sought on a number of matters, they did not relate to the description evidence except for a correction, sought and given, of his Honour’s mistake as to which of the men was said to have worn a coat with a zip fastener. It can be inferred, therefore, that the learned trial judge had adequately recounted defence counsel’s submissions on the weaknesses in the evidence. It was not a case like Zullo, in which the learned trial judge was asked and refused to draw specific inconsistencies to the jury’s attention. But it seems that counsel’s addresses here had focused, not on any impediments to observation, but on the variations in description and the differences between those descriptions and the two accused men. Indeed, in the case of Ms Wheeler, counsel for the appellant pointed out in his address that her opportunity for observation was good, with a view to emphasising that, although she had some familiarity with the appellant, she did not recognise him as one of the men she saw that night. The major thrust of counsel’s submission, as summarised by his Honour, was that

“the descriptions given by the witnesses, particularly of height and of age, do not fit the accused.”

[46]  I confess to some difficulty in identifying in this case any particular danger inherent in the evidence to which the court alone could be expected to be alert, such as to present the risk of a miscarriage of justice if the jury were not warned about it.  It had no particular “seductive effect” of the kind spoken of in Domican; its deficiencies were patent. The potential for inaccuracy in the various witnesses’ descriptions was vividly illustrated by the variety in the details they gave of the same men. Similarly, it is difficult to see that a direction given by his Honour with “the authority of [his] office behind it”,[20] as to how the weaknesses in the identification evidence affected its reliability, would have advanced matters, when the discrepancies of description between, and in, witness accounts were self-evident.

[47] I conclude that in the circumstances of this case it was, as Hayne J suggested in Festa, sufficient for the judge to point to the defence contentions about the deficiencies in the evidence, while emphasising, with the weight of his office, the importance of the jury’s being satisfied beyond reasonable doubt that the accused were the two men seen. I do not think that any miscarriage of justice resulted from the failure to do more.

Jones v Dunkel direction

[48]  Counsel for the appellant also contended that a Jones v Dunkel[21] direction ought to have been given in respect of the Crown’s failure to call the doctors who had treated the appellant for his knee problems.  The prosecutor had cross-examined the appellant and his wife about operations on his knees, apparently with the aid of medical records, in the hope of establishing that he was likely to have had a limp consistent with the description given by some of the witnesses. The evidence of the appellant’s treating doctors, his counsel argued, would have been relevant to showing whether he did or did not have a limp at the relevant time.

[49]  But again, no such direction was sought at the trial.  (One can see why, even if there were some prospect of such a direction be given, defence counsel might have thought it better not; there was a risk of a jury wondering why the appellant, having gone into evidence, could not himself call his medical practitioners if there were a real prospect that they could discount the limp.)  In fact, there was no evidence at the trial that any general practitioner or specialist had examined the appellant close to 25 October 2003, so as to be in a position to comment. There was thus no reason for the trial judge to proceed on the basis that a material witness had not been called so as to invite an inference of the kind suggested.[22]  It is worth mentioning here, though, that the Crown had very properly called in its case Mr Bell, whose evidence was helpful to the appellant on the point. 

The directions on Mrs Lattimer’s evidence

[50]  Counsel for the appellant argued that the direction and redirection given in respect of Mrs Lattimer’s evidence created an improper imbalance against the appellant in the summing up. 

[51]  In relation to Mrs Lattimer’s evidence, the learned trial Judge told the jury that if it accepted her evidence, it should acquit.  He went on to make some further comment, first emphasising that it was for the jury’s assistance and it was to decide the facts for itself.  He reviewed her evidence in these terms:

“She met or encountered Mr Finlay at the entrance to the tavern under the awning at 7.20. After a conversation, she agreed to drive him home. To get directly to his home from the tavern, you would drive along Showcase Court and turn right into Ashmore Road and along to Evans Drive. She turned left away from his home, her reason being that she wanted to collect a takeaway meal from a Chinese restaurant which is in Ashmore Road to the east of the tavern just short of Racecourse Drive. Having driven there, she did not stop to collect her meal but drove up to - drove up Racecourse Drive intending, she said, to take Mr Finlay home but the most direct route, she agreed, would have been to go along to Upton Road where the roundabout is, reversed direction and gone back to Evans Drive. Having got to about Equine Court, the accused asked if she could stop while he went to the toilet in the stables. She stopped but did not wait for him, although she expected him not to be long, and she left him further from his home than where she had collected him at the Benowa Tavern. Having done that, she did not drive back to the restaurant to collect the meal but went home. Now, those matters may or may not have a bearing on what you think of Mrs Lattimer’s evidence. They may or may not cause you to consider whether you can accept it or whether it leaves you with a reasonable doubt as to whether the accused was with her in the car or was not. The assessment of the evidence and of the witnesses is entirely for you.”

[52]  Counsel representing the appellant at trial sought a redirection, asking the learned trial Judge to point out that people did not always make rational choices of route.  His Honour redirected in the following terms:

“Now, I made some comments to you yesterday about Mrs Lattimer’s evidence, and in particular about her choice of route to take Mr Finlay home, to go along Racecourse Drive rather than turn right from the hotel along Ashmore Road. You will, no doubt, recall Mr Glynn’s submissions to you that people who set out on a casual or social car journey don’t always prepare it with great care or forethought and they might inadvertently, as it were, or carelessly, choose a route that in hindsight and on analysis was not the best one, and that there may be nothing at all worthy of comment in the fact that she drove the way she did to go home. You would, though, recall that she give a reason for going the way she went which was to stop at the restaurant, and she did not stop at the restaurant either before or after she dropped Mr Finlay at the stables, and you might wonder whether the choice of route would explain why she would leave him at the stables further from home than she picked him up on a wet night.”

[53]  Counsel here maintained that the adverse effect of the direction was demonstrable, because the jury had asked questions about Mrs Lattimer’s evidence in the course of the summing up. But in fact, the questions asked were, whether the jury’s recollection that Mrs Lattimer had provided a statement first to a private investigator in February 2004 and subsequently to Broadbeach Police in September 2005 was correct; and whether the private investigator was engaged by the Crown or the defence. (The jury was correct as to the former and there was no evidence as to the latter.) Neither of those questions related to the content of his Honour’s direction and redirection.

[54]  There was nothing remarkable about his Honour’s directions; he was entitled to comment as he saw fit on the evidence, provided it was made clear to the jury that it was free to ignore his comment.[23] At the outset of his summing up, his Honour had given the jury the usual direction to the effect that it was not obliged to accept any view he expressed about the evidence.  He reminded the jury before and after giving the initial direction in relation to Mrs Lattimer’s evidence, that, notwithstanding his comment, the assessment of the evidence was a matter for it.  There is no substance in this complaint.

Unreasonableness Ground

[55]  Counsel contended that, given the unreliability of the witnesses’ evidence describing the offenders, no jury acting reasonably could have convicted.  Two matters were raised, not as distinct appeal grounds, but as adding, it was suggested, generally to the unsatisfactoriness of the outcome.  One was that the appellant had been made to try on the two jackets during the course of his cross‑examination. But there was nothing about that demonstration which seems to have been inherently unfair.  Once the appellant elected to enter the witness box he exposed himself to the testing of his evidence by the Crown. In fact, its results seem not to have advanced the Crown case; neither jacket was a particularly good fit. More importantly, no objection was taken to that procedure; and it does not seem that it involved any unfair prejudice to the appellant.

[56]  The second of the two matters, raised in passing by the appellant’s counsel, was a potential for conflict in both father and son being represented by the same firm of solicitors at trial, although they had different counsel.  (The solicitors at trial were given no notice of any such issue and had no opportunity to deal with the question; the court can only properly assume that they proceeded to trial anticipating no conflict.) By way of demonstrating the conflict’s effect, counsel for the appellant here pointed to a submission by Rodney John Finlay’s counsel that the latter’s coat might have been found at the canal because it had been worn there by his father. The jury convicted Finlay Junior of the burglary; it was, presumably, unimpressed by the suggestion that he was not involved in the evening’s events. But the question seems, in fact, to suggest that there was independent representation of the two by counsel.  It might have been more concerning were there anything to suggest that their counsel desisted from raising matters of conflict because they were instructed by the same solicitors. In practical terms, such conflict as did arise was just as likely to have occurred had different solicitors been involved.  The dual representation seems to have been of no consequence.

[57]  As to the contention that the jury verdict was unreasonable, it was to be expected in the circumstances that a variety of descriptions would emerge.  Importantly, though, there was a continuity in the sighting of the two figures; both Alex and Andre Von Zeppelin said that it was the older man by whom they were respectively shot at and threatened; and there was a number of other circumstances which, taken in combination, made for a strong Crown case: the finding of the jackets in the canal; the purchase of such a jacket by an individual who carried on business as a barber in Beaudesert, as the appellant’s son did; the finding of paper bearing the appellant’s son’s handwriting nearby; the finding in the same area of a handgun given to misfiring, as the one used to shoot Alex Von Zeppelin did; the location of the appellant, wet and breathing heavily, on the other side of the canal; his conduct in running from the police and his varying explanations, relied on by the Crown as manifesting guilt through, respectively, flight and lies; the flurry of calls that evening between the appellant’s mobile telephone, his home and his son’s home, and his son’s being in a position to answer the telephone when it was rung at midnight by the police. That combination of evidence was plainly sufficient to enable a jury properly to convict the appellant of the charges.

Sentence

[58]  The appellant was 74 years old at the time of sentence. He had some criminal history, the most significant convictions in which were one for break, enter and steal in 1971 and another for conspiracy to cheat and defraud, for which he was sentenced to three years hard labour in 1979.  He was also given six months hard labour on a charge of possessing an unlicensed pistol in 1979.  That was the last of the offences recorded against him. 

[59]  Counsel for the appellant at sentence tendered a summary of his medical condition prepared by his treating general practitioner.  Among other less serious conditions, it indicated that he suffered from ischaemic heart disease for which he had twice required coronary stenting, most recently in March 2005.  In May 2006, he had had a hip replacement and in November 2006, bilateral inguinal hernia repairs.  His counsel described his medical problems as not suggestive of early death, but such as to make his client’s life harder in prison.  Three personal references, including one from the appellant’s wife, were tendered. 

[60]  Alex Von Zeppelin was 19 years old at the time of the shooting.  He was admitted to hospital in shock, having lost about a litre of blood.  The bullet appeared to have passed through his left upper arm and into his chest, penetrating the left lung, which bled profusely. It grazed the pericardium and creased the wall of the aorta before lodging in the right lung.  Mr Von Zeppelin would have died without treatment and transfusion of blood.  After surgery, he recovered well and was discharged from hospital four days later.

[61]  Victim impact statements from Mr Von Zeppelin and his parents were tendered.  Alex Von Zeppelin said that he had been left with scars on his arm, chest and stomach from the surgery and the insertion of drips.  He had suffered anxiety, had nightmares, trouble sleeping and poor concentration since the shooting.  A psychologist expressed the view that he was suffering from post traumatic stress disorder.  His parents described their trauma and anxiety in relation to the offence and the trial and their difficulties in caring for their son.

[62]  The learned sentencing judge in his remarks expressed the view that the appellant had armed himself intending to shoot his way out of difficulty if necessary, given his physical impairments.  He remarked on the severe suffering of Mr Von Zeppelin and his family and the absence of any remorse shown by the appellant.  There was a need, he said, to impose a sentence with regard to general deterrence, although he accepted counsel’s submission that there was no need for any specific deterrence.  His Honour considered it unlikely that the appellant would re-offend once he was released.  He accepted the submission of counsel for the Crown that the sentencing range was between 10 and 13 years. In recognition of the appellant’s age, he imposed a sentence at the bottom of that range.

The application for leave to appeal against sentence

[63]  Counsel for the appellant here did not argue that the sentence imposed would have been manifestly excessive in ordinary circumstances; what made it so, he contended, were the age and state of health of the appellant.  He placed before the court an affidavit annexing a number of reports from a cardiologist as to the appellant’s ischaemic heart disease and the implantation of stents in his coronary artery in 1995 and 2005. The affidavit added that the appellant had twice while undergoing sentence been admitted to hospital for chest pain and tightening and was to undergo a stress echo test in January 2008. 

[64]  Counsel relied on the decision of a Full Court of the Victorian Supreme Court in R v Yates,[24] in which the view was expressed that 10 years imprisonment with a minimum of eight years was a “crushing” sentence for a 68 year old convicted of a number of counts of buggery.  In R v Bazley,[25] however, the Victorian Court of Criminal Appeal, whilst accepting as accurate the definition of “crushing” in Yates, made the point that a sentence which could be so described was not necessarily manifestly excessive:

“The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of some considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.”[26]

[65]   Counsel for the appellant pointed out that this was a case in which

“each year of the sentence represent[ed] a substantial proportion of the period of life which is left to [the appellant]”.[27]

Arguing that the trial judge gave too little weight to that fact and too much weight to general deterrence, he relied on a passage from the judgment of Angel J in R v Braham,[28] in which the latter said:

“Where advanced age is a factor justifying significant leniency - and the learned sentencing Judge so held in fixing the disproportionate head sentences he did - ex necessitate considerations of parity and proportionality of sentencing are irrelevant and the case is an inappropriate vehicle to give voice to general deterrence – as opposed to personal deterrence or deterrence to others of a like age.  As to the latter, there is no reason to suppose other 79-year-old Territorians need to be deterred from organising commercial drug crops…”.[29] 

But although that passage is quoted in the headnote to the case in the Australian Criminal Reports as if it were part of the ratio, it clearly was not.  It was said in the course of a dissenting judgment. Thomas J expressed no agreement with that proposition, while Martin CJ, the other member of the majority, expressed difficulty in agreeing with all that had been said by Angel J.  In particular, Martin CJ rejected the proposition that the Court was

“only concerned about deterring other octogenarians from organising substantial cannabis crops for commercial purposes.”[30] 

To the contrary, it would be wrong, he said, to disregard the requirement of general deterrence or to downgrade the seriousness of the offending.

[66]  Counsel for the respondent pointed out that the appellant had taken a weapon to a house break-in.  He had not confined himself to warning shots but when the pursuit continued had twice fired at Mr Von Zeppelin. There was a punitive aspect to the shooting, made manifest in the comment “I told you not to chase me”. This was an offence with a specific intent, to cause grievous bodily harm; and it was one committed to evade apprehension, with a potentially fatal weapon used. The injury to Mr Von Zeppelin was life-threatening. After the shooting, the appellant had shown no concern for his victim, and indeed had followed that offending by threatening the victim’s father subsequently.  No remorse had been shown at any stage. 

[67]  The range put by counsel for the Crown, both below and here, of 10 to 13 years, is supported by sentences imposed at first instance and upheld by this Court in R v Palmer[31] (17 years imprisonment for attempted murder: a single shot was fired at a pursuing police vehicle but through good luck did not strike any of the occupants); R v Mulholland[32] (10 years for malicious act with intent: the applicant fired a number of shots at a police officer without result, as well as committing a number of less serious offences during the course of the chase); and R v Laus[33] (10 years on a charge of attempted murder: the 75 year old applicant fired his rifle (which did not discharge) at the occupant of a house where he thought someone against whom he had a grudge lived).

[68]  Counsel for the appellant referred to R v Schuurs[34] in which the applicant, convicted of manslaughter after a trial, was sentenced to 10 years imprisonment. Schuurs was 18 years old and had no previous convictions. In an attempt to collect a drug debt, he went, with two others, to the victim’s house, taking a .22 rifle. When the victim produced some knives to defend himself, Schuurs instructed one of his accomplices to shoot the victim in the leg; instead he was shot, fatally, in the chest. But that was a case in which the sentence (unsurprisingly) was held not to be manifestly excessive, so it does not give any guide as to its adequacy. Indeed subsequently, when the judge who imposed it was referred to it as a comparative while sitting in this Court, he expressed the view that he had, in an attempt to achieve by parity with a co-offender’s sentence, set it too low.[35]

[69]  I do not think anything in the affidavit advanced on what was before the court at sentence.  The information from the cardiologist’s reports was, in summary form, before the court on sentence. The fact that the appellant has suffered symptoms since his sentencing is unsurprising; it adds nothing to what was already known of his condition. Should the situation in fact change by way of some sudden deterioration in the appellant’s health, the possibility exists of an application for an exceptional circumstances parole order under s 176 of the Corrective Services Act 2006 (Qld); but there is nothing of substance in the material which was not before, and taken into account by, the learned judge below.

[70]  To borrow from the terminology of Martin CJ in Braham, the learned judge in the present case could not properly have confined his considerations to deterrence of septuagenarians from shooting people in the course of criminal endeavours.  General deterrence of those given to use of firearms to prevent apprehension loomed large as a sentencing factor, as did the seriousness of the offending, in terms of its ruthlessness, the harm it did, and its potential for fatal consequences.  It was appropriate that his Honour recognise age as a consideration by sentencing at the bottom of the range, but it would have been wrong to allow that feature to override the gravity of the offence and the need for deterrence.  The sentence was by no means a lenient one, but I do not think that any error has been shown in his Honour’s exercise of discretion.

Orders

[71]  I would dismiss the appeal and the application for leave to appeal.

[72]  JONES J:  I have read the reasons of Holmes JA.  I agree with those reasons and the orders she proposes.

[73]  LYONS J:  I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the reasons of Holmes JA and with the orders proposed.