R v Rockwell[2014] QCA 321

SUPREME COURT OF QUEENSLAND

[1] GOTTERSON JA:  On 20 May 2014 at the District Court in Townsville, the appellant, Mark Lawrence Rockwell, was convicted on two counts of robbery.  Count 1 alleged that on a date between 25 February 2013 and 4 July 2013 at Townsville, the appellant robbed the complainant, Ellen Yun Lan Wong, whilst armed with a knife, in company with another, and that immediately after the robbery he used personal violence to the complainant.  Count 2 alleged that the appellant robbed the complainant at Townsville on 4 July 2013 whilst armed with a knife.

[2] The appellant was sentenced to three years’ imprisonment on each count.  It was ordered that he be released on parole on 20 May 2015.  On 15 June 2014, the appellant filed a notice of appeal to this Court against his convictions.

Circumstances of the alleged offending

[3] The complainant was a sex worker who at the time of the alleged offending was 58 and then 59 years of age.  English is not her first language.  She visited Townsville in April and July 2013.  She would rent a motel room in Townsville and advertise her services in the local newspaper.  Potential clients were invited to use a mobile phone number to contact her to arrange a visit.

[4] The complainant gave evidence that she received a telephone call at about 11 pm on 15 April 2013 from a male.  About 10 minutes later, two men arrived at her motel room.  She told them that only one could come in.  One of them entered.  She had never seen him before.  She described him as a “white skin, slim guy” with “brown hair”.[1]  This man checked to see if anyone was in the bathroom.  Then he pulled out a knife and said he wanted money.[2]  He pointed the knife towards her rib area.  She told him to wait, went to the wardrobe, retrieved $120 and gave it to him.[3]  The second man then entered the room and began punching her after she refused to give him money.  The man holding the knife continued to point it close to her while she was being punched by his companion.[4]  The complainant said that she did not report this incident to the police because she was too scared to do so.[5]

[5] A second incident was described by the appellant in her evidence in the following terms.  At about 8.15 pm on 4 July 2013, she was in her motel room.  She heard a knock on the door.  On opening the door she saw a man whom she recognised as the same man as the one to whom she had given the $120 on 15 April.[6]  She tried to close the door.  He pushed the door back, entered, closed the door, and then pulled her on to the bed.  He produced a knife which he pointed towards her heart area.[7]  His face was very close to hers.  He mentioned money.  She said: “I surrender”.  She walked to the wardrobe, retrieved $430 and gave it to him.[8]  The two lights behind the bed in the room were on during both incidents.[9]

[6] The complainant reported the two incidents to the police on 1 August 2013.  She was interviewed by Senior Constable Gavin Briggs who took a statement from her.  He also arranged for the complainant to view three photoboards immediately after the interview concluded.  Each photoboard contained photographs of 12 different adult males.  One of them, identified as photograph 10, was a photograph in police possession of the appellant.  Photograph 10 was on the third photoboard shown to the complainant.[10]  On that occasion the complainant promptly identified the person in photograph 10 as the person to whom she had given the $120 and the $430.  She confirmed that she had made that identification when this photoboard was shown to her during the course of her evidence-in-chief.[11]

Issue at trial

[7] The trial was short.  Only two witnesses were called in the prosecution case, the complainant and Senior Constable Briggs.  Their evidence, during which a video recording of the photoboard identification was played to the jury,[12] occupied slightly less than one hour.  The appellant, who was represented by counsel, did not give or call evidence.

[8] The focus in the trial was upon the complainant’s identification of the appellant as the offender.  In cross-examination, she gave these further descriptions of the offender who, at trial, was referred to as the first man to enter her room in the April incident.  He was “slim and short hair … white man … around 170 cms”.  He had “brown hair”.  He had “like, little bit chin … like this … I don’t know what they call. Little bit. Yeah.”.[13]  She was asked about the description she gave to police of this offender during her interview.  She agreed that she told police that he was white skinned with “light brown short hair … little bit curly in the front”.  She then said that he was about 180 cms tall and about 24 to 27 years of age.[14]

[9] Defence counsel then put to the complainant that she was unable to tell the police what the offender’s head looked like.  She agreed that she gave no description of that and that she had tried to tell the police everything she could remember.[15]  Next, it was put to her that she did not describe to the police what colour the offender’s eyes were.  She did not answer that proposition directly but responded by saying:  “His like normal brown eye”.  She agreed that she did not tell that to the police.[16]  To emphasise the point, defence counsel again put it to the complainant that notwithstanding that she was trying to tell the police everything, she did not tell them anything about the offender’s eye colour.[17]

[10] The complainant also agreed that she did not mention the offender’s nose, ear or mouth shape.  She said that she was “very scared”; that during the April incident, she could not “very see properly”; and that on that occasion: “I only see his face”.[18]  She could remember that at the time of the April incident, the offender was wearing long pants.  She could not remember what colour they were or what he was wearing on his upper body.[19]

[11] The complainant was insistent that it was the same man who was the single offender in the July incident.  This time the offender was wearing a white jacket.  She could not remember what he was wearing on his lower body.[20]

[12] The video recording of the photoboard identification depicts the complainant identifying the person in photograph 10 as the offender.  She asked to see that photograph again.  Upon looking at she said that the person “definitely is him”.  Asked why she said that, she gestured towards her jawline and said “Little bit bones here”.  Senior Constable Briggs remarked to her:  “Bones on the jaw there?”  She replied:  “Mmm … and the everything, yep”.

The application to adduce further evidence

[13] A review of the transcript of the trial reveals that defence counsel did not question the complainant further about the eye colour of the offender.  Specifically, he did not put to her that the colour of the appellant’s eyes are blue, did not adduce evidence of that fact, and did not invite the jury to observe the colour of his client’s eyes.  Nor did he advert to the appellant’s eye colour when, in addresses, the prosecutor repeated the complainant’s evidence that the offender’s eyes were “normal brown”.

[14] The appellant seeks leave to adduce further evidence by way of affidavits to prove that, as to his physical characteristics:

(a)he has, and always has had, blue eyes;

(b)he is 188 cms tall;

(c)his hair colour is towards auburn;

(d)at all relevant times his upper left and right arms were tattooed and there was a tattoo on the front of his upper right leg;

and that, as to other circumstances:

(e)the watchhouse photograph which was supplied digitally to Senior Constable Briggs for inclusion in a photoboard (and which became photograph 10) depicts the appellant as having dark coloured eyes but not blue eyes;

(f)defence counsel was briefed some four days before the trial and conferred with the appellant face to face on three occasions prior to the commencement on the trial; and

(g)to the knowledge of the appellant’s solicitor at trial, there was no forensic or tactical reason for defence counsel not to have undertaken any of the steps which I have noted were not taken by him.

[15] The evidence of the physical characteristics of the appellant which is sought to adduce by leave, is new evidence.  At the hearing of the appeal, the court reserved its decision on whether leave would be granted.  The evidence has a particular relevance to Grounds 2, 3 and 4.  It is therefore appropriate to rule upon the application in the course of discussing those grounds.

Grounds of appeal

[16] At the hearing of the appeal, leave was granted to the appellant to amend his grounds of appeal.  As amended, those grounds are:

1.The verdict is unreasonable and cannot be supported having regard to the evidence.

2.A miscarriage of justice was occasioned by the incompetence of trial counsel for the appellant.

3.A miscarriage of justice was occasioned by the conduct of the prosecutor.

4.New or fresh evidence demonstrates that a miscarriage of justice was occasioned.

Grounds 2, 3 and 4 are interrelated.  It is convenient to consider them together after consideration of Ground 1.

Ground 1

[17] In order to succeed on this ground of appeal, the appellant must establish that after making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.[21]  This ground will not be made out if upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[22]

[18] Here, both incidents were brief in time.  The complainant was very scared during both of them.  She spoke only of a limited number of identifying features of the offender.  Notwithstanding, there was a consistency in her evidence-in-chief and in cross-examination with respect to the course of events that comprised each incident.  The evidence on that was generally consistent with her account given to the police as put to her and admitted in cross-examination.

[19] As to details of description of the offender’s appearance, there was a general consistency between the testimony she gave in her evidence-in-chief and in cross-examination with respect to the features she did mention:  skin colour, hair colour and length, build and height.  Her reference to the offender’s chin in cross-examination was generally consistent with the reliance she had placed on the jaw area for identification from the photoboard.  There was, however, a difference of 10 cms between her testimony and the description she gave to the police with respect to the offender’s height.

[20] The complainant made a prompt and unequivocal identification of the appellant as the offender from the photoboard.  That feature of the evidence was apt to impress the jury with respect to the reliability of her identification testimony.  Within the context of the trial evidence, there was no significant departure between the evidence that the appellant gave as to the offender’s eye colour and that depicted in photograph 10.

[21] In my view, the evidence adduced at trial was sufficient for the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt.  The appellant has failed to identify any feature or features of the evidence which would have precluded the jury from being so satisfied.  This ground of appeal is not made out.

Grounds 2, 3 and 4

[22] Each of these grounds concerns essentially the same miscarriage of justice that the appellant contends occurred.  Ground 4 is premised upon a misapprehension that the new evidence sought to be adduced, of itself, manifests a miscarriage of justice.  That is not so.  The appellant’s real point is that that evidence provides a factual basis from which to argue one of the other two grounds, Ground 2.

[23] It is well settled that there is a residual discretion reposed in appellate courts to receive on appeal new or further evidence which is not fresh evidence if, to refuse to do so, would lead to a miscarriage of justice.[23]  The appellant’s case is that a miscarriage of justice occurred because the conduct of his counsel at trial deprived him of a chance of acquittal which, but for that conduct, would have been fairly open to him.[24]

[24] Of particular significance is that the new evidence, if received, would prove that at all relevant times, the appellant had blue eyes.  It would also prove, by inference, that photograph 10 incorrectly depicted the colour of the appellant’s eyes.  The respondent does not seek to challenge either of those facts by evidence to the contrary.  The new evidence would also establish that defence counsel had conferred with the appellant face to face on three occasions prior to the commencement of the trial.  That evidence would lend to an inference that at the time of the trial he knew that the appellant had blue eyes.

[25] An alert defence counsel, upon hearing the complainant describe the offender’s eye colour as “normal brown” would have taken a number of steps.  Importantly, he would have adduced evidence that the appellant’s eye colour was blue.  He would have put to the complainant that his client’s eyes were blue and that she had misidentified him as the offender on that account.  In addresses, he would have referred to such evidence to counter the prosecution’s reference to the complainant’s evidence about eye colour (assuming such a reference was made in the face of evidence as to actual eye colour) and he would have reminded the jury of the risk that the complainant’s evidence of eye colour was based upon what she had seen in photograph 10, and not upon her recollection of the eye colour of the offender.  There is no apparent forensic reason why none of these steps were taken.  Counsel for the respondent did not submit that there was any such reason.

[26] Were those steps taken, the evidence before the jury would have been enlarged.  They would have known of the appellant’s true eye colour.  They would have observed the manner and content of the complainant’s response to the proposition that the accused’s eyes were blue and that she was mistaken, and they would have known of the risk that the complainant’s evidence of eye colour was based upon what she had seen in photograph 10 and not her recollection of the incidents.  Those would have been significant factors for the jury’s consideration.  They may well have been sufficient to cause doubt in the jury’s mind to a point that they were not satisfied beyond reasonable doubt that the appellant was the offender.

[27] I am persuaded therefore that leave should be granted to adduce the new evidence concerning the appellant’s true eye colour, the wrong depiction of his eye colour in photograph 10, and defence counsel’s knowledge of his client’s true eye colour.[25]  I am further persuaded that the failure of defence counsel to undertake the steps to which I have referred deprived the appellant of a chance of acquittal that, had those steps been taken, might reasonably have been open to him.  Ground 2 is made out.

[28] It is appropriate to make some observations with respect to Ground 3.  The appellant’s counsel stated that the ground was not intended to impugn the integrity of the prosecutor’s conduct.  He conceded that there was no evidence giving rise to an inference that the prosecutor knew of the appellant’s eye colour.  It was said by counsel for the appellant that the ground went no more than to contending that the prosecutor had facilitated a miscarriage of justice by, in his address, referring to the complainant’s evidence as to eye colour and urging the jury to look at photograph 10.  On the state of the evidence, the prosecutor was quite justified in addressing as he did on those matters.  He did not facilitate, much less cause, a miscarriage of justice.

Disposition

[29] In view of the success of Ground 2, the appeal must be allowed and the convictions on Counts 1 and 2 set aside.  I would reject the submission for the appellant that acquittals should be entered on each count.  It cannot be said that had the steps that should have been taken by defence counsel been taken, then it would not be open to a jury to be satisfied beyond reasonable doubt of guilt on the appellant’s part.  Whether that test would be satisfied or not would depend upon the body of evidence that might emerge as the result of taking them.  A jury might well have cause for considerable doubt as to guilt were the complainant to insist that the offender’s eyes were brown.  By contrast, were the complainant readily to concede that she had made a slip and that his eyes were blue, the jury might not be much troubled by her earlier evidence that they were brown.  After all, she had not expressly relied upon eye colour for her identification when first shown the photoboard.  A retrial should therefore be ordered on both counts.

Orders

[30] I would propose the following orders:

1.Grant leave to the appellant to adduce evidence by way of the affidavit of Mark Lawrence Rockwell sworn 24 October 2014, the affidavit of Tristan Scott Carlos sworn 27 October 2014, the affidavit of Megan Power sworn 27 October 2014 and the affidavit of Trevor Baldock sworn 14 October 2014.

2.Allow the appeal.

3.Set aside the convictions on Counts 1 and 2.

4.The appellant be retried on Counts 1 and 2.

[31] MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the orders his Honour proposes.

[32] DALTON J:  I agree with the orders proposed by Gotterson JA and with his reasons.