SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  I agree with the reasons of McMeekin J and the order he proposes.

[2]  CULLINANE J: I agree with the reasons of McMeekin J and the order he proposes.

[3]  McMEEKIN J: The appellant was convicted, after a trial, of unlawfully doing grievous bodily harm to one Shane Jeffrey Upton on 29 September 2007 at the Boulia Showgrounds.  Mr Upton suffered a fracture to the right side of his jaw when struck by an assailant.  That injury was the particular provided for the grievous bodily harm charge.  The issue at trial was whether the appellant threw the punch that broke his jaw.

[4] The appellant appeals against his conviction on three grounds, which were interdependent to a degree:

(a) that the conviction was unreasonable and could not be supported by the evidence;

(b) that the directions given by the primary judge as to the dangers of recognition evidence were inadequate;

(c) that the primary judge erred when he failed to give the jury a special warning as to the dangers involved in dock identification.

Ground 1 – Verdict Unreasonable and Unsupported

[5] To understand the ground it will be necessary to say a little about the facts.

[6] The complainant’s account was that he was assaulted twice in the course of a melee that broke out at the clubhouse at the Showgrounds.  The melee involved numerous people including several indigenous men.  In the first assault the complainant said that he was struck once to the side of the face and went to his knees.  The fracture to the jaw, he said, occurred in that first assault.  He thereafter attempted to get away from the fight but was set upon by three indigenous men.  He maintained that no further blow was struck to his face after the initial attack as he covered up and protected that area.

[7] The difficulty for the prosecution was that the complainant had no opportunity to identify his assailants and, more particularly, the assailant in the first assault.  Beyond seeing that the arms of that assailant were those of an indigenous man he could not assist in his identification.

[8] The prosecution called two witnesses to identify the accused as the assailant in the first incident.  Two things need to be noted.  As might be expected, their accounts were not entirely consistent with that of the complainant.  Each witness saw only the one attack – neither saw the two attacks that the complainant described.  So the witnesses themselves were not in a position to assert whether what they observed preceded a second attack or followed a first attack.

[9] The appellant’s submission was that the complainant’s account was such that the jury could only convict if they were satisfied beyond reasonable doubt that the punch that the witnesses attribute to the accused occurred in the first incident.  It was submitted that on the whole of the evidence the prosecution could not satisfactorily exclude the possibility that the witnesses were in fact describing the second incident and, given the state of the evidence, and in the absence of any specific direction from the trial judge, there is a real danger of an innocent man having been convicted.

[10] The principle relevant to such an argument was explained in R v PAH [2008] QCA 265 by Mackenzie AJA at [30]-[31]:

“If the evidence, on the record itself, contains discrepancies, inadequacies, is tainted, or otherwise lacks probative force in such a way to lead the court to conclude that, even allowing for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, the court is bound to act and set aside a verdict based on that evidence.  In doing so, the court is not substituting trial by the Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

In MFA v R,[1] it is reiterated that, given the jury’s role, sometimes described as a constitutional role, as the tribunal for deciding contested facts, setting aside a jury’s verdict, is, on any view, a serious step.  But where a doubt is experienced by an appellate court, it is only where the jury’s advantage of seeing and hearing the evidence can explain the difference in conclusions about the accused’s guilt that the appellate court may decide that no miscarriage of justice has occurred.  The function of s 668E of the Criminal Code and like provisions is to afford a mechanism against a prospect that an innocent person has been wrongly convicted upon unreasonable and unsupportable evidence and has therefore suffered a miscarriage of justice, while operating in a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual issues concerning the guilt of an accused in serious criminal trials.”

[11]  I turn then to consider the discrepancies relied on as raising the claimed doubt that, it was submitted, attends this verdict.

[12]  The complainant’s account was that a fight started in front of him and that he wanted to get away from it.  Under cross examination he said that in doing so he walked in an upright position with his arms at his side.  His account then proceeded: “I was grabbed by the collar of my shirt and I spun around to see what it was and I was punched in the right-hand side of my jaw.”  He said that the grabbing of his shirt was “enough to turn” him.  The force of the punch, he said, knocked him to his knees on the ground and dazed him “a little bit”.  As a result of the blow he experienced “immense pain” and “had blood in his mouth and a pop noise”.  He conceded that his memory of events after the blow “gets worse”.  He said that he got up from his knees, crawled a couple of metres out of the crowd, and got to his feet to head for his car.  He was standing upright at this point and not hunched over and had his hand over his jaw area.  As he neared a fence on a grassy area he was “jumped by three more aboriginal males” who punched him all over his body.  He expressly denied feeling any impact with his face in that latter assault.  Thus the only evidence that he gave of a blow to his face was the blow that I have described.  In cross examination he confirmed that the single punch that he described he believed had broken his jaw.

[13]  The complainant’s account that he was assaulted by a single indigenous male at one point was confirmed by an onlooker, a Mrs Cynthia Nicholls, but she too could not identify the attacker.  On her account there were multiple blows.

[14]  The two witnesses the prosecution relied on to identify the accused were Lisa Cunningham and Jason Campbell.

[15]  Lisa Cunningham’s account was that she saw a fight commence between certain people and then she saw the complainant come out of the male toilets, “sort of looked around… and he sort of didn’t know what was sort of going on”.  She said that he got to a place she identified for the jury on a photograph and then she said that he was “grabbed” by an indigenous person that she could not identify, that he was grabbed by “at least three of them”, he was punched repeatedly, fell to the ground, and then “he sort of dragged and he’s crawled few paces and… got up”.  This occurred when the complainant was located “under the Curlew sign” – a reference, it would seem, to a location under the shed and not on the grassy area.  She did not see where the complainant then went.  In cross examination she agreed that in the incident that she observed the complainant “just got pummelled” and the punches were in the “upper torso area”.  Later in cross examination she agreed that two to three indigenous men were involved and later again said that there were “definitely three indigenous men involved”.  In describing the complainant’s actions immediately before the assault she said that he walked three or four paces out of the toilet area doing up his fly and looked like “I’m getting out of here”.

[16]  The only one of the two or three indigenous people who grabbed the complainant that Ms Cunningham could identify was the accused.  She could not say which one of the assailants punched the complainant.

[17]  Jason Campbell’s account was that after seeing “all hell” break loose he observed the complainant “staggering through the crowd with his hands up”.  His hands were not touching his face.  The record suggests that he indicated to the jury what he recalled of the position of the hands.  He said in cross examination that from the manner of walking the complainant appeared “groggy”, he was not walking completely straight and was a little hunched over.  He then saw the accused “just sort of reach out and just grab [the complainant] on the scruff of the T-shirt and just, sort of, pull him in and about probably three or four times punch him to the right side of his face.”  The action of pulling him in caused the complainant to half spin him around.  After the complainant was punched three or four times – and he said in cross examination it may have been five or six times – he “just went limp on to the ground” and then he saw him “half crawling through the crowd” to get out of the area.

[18]  If the prosecution had only Ms Cunningham’s evidence to go on then there would be serious grounds for concern.  Her certainty that there was more than one attacker, and indeed, on her account, probably three, strongly suggests that she was describing the second attack.  Thus even though she claims to have seen the complainant walk only a few paces from the toilet area right at the start of the melee and into the attack, places the attack inside the shed, and describes the complainant crawling away, all matters being consistent with the complainant’s version of the first attack, I would entertain considerable doubts about a verdict solely based on such an account.  She might well be conflating aspects of the two incidents with the very danger that the appellant argues for.

[19]  The difficulty for the appellant’s argument however lies in Mr Campbell’s evidence. His description of the initial grabbing of the complainant, the landing of the blows on the right side of the face, the effect of the blows struck in forcing the complainant to the ground, and the manner in which the complainant then “half crawled” to get away, are all strongly confirmatory of the complainant’s version of the first attack and entirely consistent with the blows that Mr Campbell saw being landed in the first attack. 

[20]  The differences between the two versions are only two – on Mr Campbell’s version more than one blow was struck and there was a different description of the complainant’s manner of approach to the site of the first attack.  As to the first matter, it is entirely explicable that the blow that the complainant said broke his jaw and left him dazed could well cause him not to note the two or three or more further blows that Mr Campbell saw strike him.  And as to the second matter, discrepancies in description of how someone walked and where precisely their hands were positioned at a time when those matters were hardly of significance to either the complainant or anyone looking at him over two years before (the trial took place in November 2009) does not engender in me any great concerns.  It would be surprising if there were no discrepancies between the witnesses given the rapid unfolding of events and that long lapse of time.

[21]  Whilst the underlying premise of the appellant’s argument, namely that it was essential for the jury to be satisfied beyond reasonable doubt that the witnesses were describing the first incident and not the second, can be accepted, and whilst no direction was given along the lines that the jury needed to be so satisfied, I cannot accept that there is any cause for concern with the verdict.  No other proposition was ever suggested.  The complainant made plain that he asserted that the crucial blow occurred in the first attack.  The cross examination was conducted on that basis.  The prosecutor stressed in his address that the blow that caused the fracture to the jaw occurred in the first incident.  The defence counsel’s argument was that the witnesses who linked the accused to any blow were describing the second incident, not the first.  In that context I find it entirely explicable as to why no such direction was asked for or given.

[22]  It is relevant to note as well that the learned trial judge did remind the jury towards the very end of his summing up that they were “to determine whether this defendant is guilty beyond reasonable doubt and to be satisfied of that you have to be satisfied beyond reasonable doubt it was him who threw the punch that broke the complainant’s jaw.  Not another punch, the punch that broke his jaw.”  Given that the only evidence given, and the only argument advanced, was that the punch that broke the jaw occurred in the first attack, the trial judge’s direction in my view appropriately focused the attention of the jury on the essential matter for their determination.

[23]  In the circumstances, I find it impossible to accept that the jury was ever in any doubt about the need to be satisfied beyond reasonable doubt that the witnesses were describing the first incident and not the second.

[24]  In summary, the discrepancies that exist between Mr Campbell’s account and that of the complainant are not such as to “lead the court to conclude that, even allowing for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted” (per Mackenzie AJA in PAH (supra)).  To the contrary, the jury had significant advantages over this Court – they saw and heard the witnesses and they had a good idea of where the witnesses claimed to be standing and where the assault they described took place.  Their observation of the witnesses and the location of events might well have justifiably assisted them in reaching their verdict.  They had every right to accept the testimony of Mr Campbell.

[25]  I am unpersuaded by this ground of the appeal.

Ground 2 – Inadequacy of Warnings as to Identification

[26]  The complaint is as to the adequacy of the directions given in relation to the identification evidence.

[27]  It was not in issue that the accused was present at the time of the melee at the clubhouse at the Boulia showgrounds.  And there was evidence that he was involved in the fighting at the showground.  The issue, and the only issue at trial, was whether he was the one who threw the punch that broke the complainant’s jaw.  As I have said, the evidence that the prosecution relied on to link the damaging blow that caused the fracture to the accused was the identification of the accused by Ms Cunningham and Mr Campbell.

[28]  It is well recognised that in the circumstances that prevailed – the confusion of the melee, the numbers involved, the rapidity with which events occurred and hence the possibility of mistake – the trial judge has a duty to sum up in accordance with the High Court’s decision in Domican v The Queen (1992) 173 CLR 555.  A warning sufficient to alert the jury to the potential for such evidence to mislead and the specific weaknesses in the evidence in the particular trial must be comprehensively stated with the authority of the judge’s office behind it.  The majority in Domican held that the directions needed to be “cogent and effective” and “appropriate to the circumstances of the case” (at 562).

[29]  The trial judge, with respect, discharged that duty with great care.  He warned generally in accordance with bench book direction[2] and gave detailed, comprehensive directions to the jury as to the grounds that might legitimately cause concern about the evidence of identification in this case.

[30]  After warning the jury of the “special need for caution before convicting in reliance on the correctness of [the] identification”, he informed them that “[n]otorious miscarriages of justice have sometimes occurred in such situations”, that mistaken witnesses “may nevertheless be convincing” and that “[e]ven a number of apparently convincing witnesses may be mistaken”.  His Honour then prefaced his specific remarks by noting that the matters that he was about to refer to “might reasonably… be regarded as undermining the reliability of the identification evidence.”  He then listed matters that could affect every witness before moving on to the particular witnesses.

[31]  He concluded his remarks in relation to Ms Cunningham’s evidence of identification with the caution that it has “got to be viewed with a degree of scepticism” and that the various matters that he spoke of “don’t instill a great deal of confidence” about her identification of the accused.

[32]  His Honour expressly mentioned every conceivable matter detracting from Mr Campbell’s evidence.  While he did not level the same degree of criticism at Mr Campbell’s identification as he did in respect of Ms Cunningham’s evidence, the evidence from Mr Campbell did not call for such a criticism.

[33]  Only two specific criticisms were levelled at the summing-up – first, that his Honour did not expressly state that it was “dangerous” to convict where identification is the issue when explaining the inherent concerns about the evidence and secondly, that his Honour failed to expressly direct that the jury must be satisfied that the witnesses were describing the first attack. 

[34]  That second criticism I have dealt with above. 

[35]  As to the first complaint it is well recognised that there is no formula to follow – the judgment in Domican[3] itself says that and there is express authority both in this State and elsewhere that a failure to use the word “danger” or “dangers” is not necessarily fatal to a summing up: R v B [1999] QCA 105 at 8 per McPherson JA where he cites R v Clarke (CCA (NSW) 31 Oct 1997 unrep); see also R v Zullo [1993] 2 Qd R 572 at 578.  In the context of what was said, the jury’s appreciation of the concerns about identification evidence would not have been enhanced by adding that it would be dangerous to convict where identification evidence is involved.

[36]  I am quite satisfied that the trial judge brought home to the jury in an effective manner the concerns inherent in identification evidence, both generally and appropriately to this particular case.  The “perceptible risk of miscarriage of justice” that the identification cases are concerned with, and the risk that such miscarriage may not necessarily be obvious to the lay mind,[4] was adequately met here by the directions given.

Ground 3 – Dangers of Dock Identification

[37]  The complaint made here is that no warning was given in the summing-up about the dangers of dock identification.

[38]  In the course of the trial, both Mr Campbell and Ms Cunningham identified the man that they were talking about as striking the complainant as the accused in the dock.  In Mr Campbell’s case he apparently nodded towards the dock as he gave his evidence of who he was talking about and the prosecutor clarified that he was indicating the accused as the man in question.

[39]  It has long been recognised that it is legitimate and perhaps preferable for the prosecution to have a witness identify the accused when in the dock.  The reasons for that were explained in R v Savage [1994] QCA 20 per Pincus JA, and include that the witness is thereby given the opportunity to swear on oath to a previous identification and also given the opportunity to retract an earlier identification.

[40]  Such identification, however, has no or little probative value in the sense of adding to the weight of the evidence on identification, particularly in relation to the identification of a stranger where the identification in the course of the trial afforded the first opportunity that the witness had to identify the accused as the person connected with the crime.  So much was explained in Alexander v The Queen (1981) 145 CLR 395; and see Davies and Cody v The Queen (1937) 57 CLR 170 at 181-2.  The reason for that concern is well known: “the danger that the witness will come to believe, without any true recollection, that the man charged is the man whom he had previously seen” as Gibbs CJ put it in Alexander (at 399) or that “circumstances conspire to compel the witness to identify the accused in the dock” as Mason J said in the same case (at 427).

[41]  Relevantly, this was not a case of identification of a person, previously unknown to the witnesses, seen only for a fleeting moment.  Both Campbell and Cunningham said that although they had never met the accused they had known him prior to the day in question from seeing him around the town of Boulia – a small township of about 400 people.  Appropriately, the limitations of the previous contact were well described by his Honour.

[42]  Thus the circumstances of the case and the issues were very different to those under consideration in the dock identification cases, premised as they are upon “a lack of familiarity between the identifier and the suspect”.[5]  Here the witnesses claimed a previous knowledge of the accused.  In no real sense was the “in court” identification performed to bolster their claim to have recognised the accused on the night in question as the man throwing the crucial blow.  Indeed Mr Campbell’s claim to have previously known the accused was not challenged.  The in court identification was merely evidence that the man they claimed to previously know was the man in the dock.  The essential task for the jury was not to determine whether the witnesses were being accurate when they asserted that they knew the accused, or that the “Vincent” that they were talking about was the man in the dock, but the reliability of the connection they claimed between the man they knew and the man who threw the crucial blow on the night of the incident.  The learned trial judge made that abundantly clear to the jury.

[43]  That the in court identification played no real forensic role is confirmed by the disregard paid to the evidence by counsel in their addresses and the trial judge in his summing-up.  No redirection was sought in regard to the in court identification.

[44]  I cannot see that the risk that the dock identification warning is directed to – that the jury might think an “in court” identification bolsters the claimed identification when in truth it adds no weight to the evidence – arises here at all.  In my view, there is no merit in this ground.

Conclusion

[45]  Section 668E of the Criminal Code requires that the Court allow the appeal if it is of the opinion that the verdict is unreasonable, or cannot be supported having regard to the evidence, or if there has been a wrong decision on any question of law, or that “on any ground whatsoever there was a miscarriage of justice”.  In my view none of these grounds has been made out.

[46]  I would dismiss the appeal.