Brown v R

Court of Criminal Appeal (NSW)|2008-11-03|Before: McClellan CJ, Hall J, Harrison J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 53; Harrison J at 54

DECISION: Leave to appeal refused and appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - misdirection and non direction - whether trial judge failed to adequately direct jury in relation to identification evidence - Evidence Act 1995 s 116 - CRIMINAL LAW - appeal and new trail and inquiry after conviction - appeal and new trial - miscarriage of justice - whether trial miscarried on account of prosecutor inviting jury to consider submission "why would the victim lie?" - whether allowing the jury to consider that question reversed the onus of proof

Crimes Act 1900 LEGISLATION CITED: Evidence Act 1995 Criminal Appeal Act 1912

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 R v Clarke (1997) 97 A Crim R 414 R v Coe [2002] NSWCCA 385 at [67] CASES CITED : R v Demiroz [2003] NSWCCA 146 R v Hodge [2002] NSWCCA 10 R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340 R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505 R v Villa [2005] NSWCCA 4 R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 South v Regina [2007] NSWCCA 117 Trudgett v R [2008] NSWCCA 62 at [28] Zammit v R [1999] NSWCCA 65; (1999) 107 A Crim R 489

PARTIES: David Charles Brown (Appellant) The Crown

COUNSEL: A Francis (Appellant) P G Ingram (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 6785/2005

McCLELLAN CJ at CL HALL J HARRISON J

WEDNESDAY 17 DECEMBER 2008 BROWN, David Charles v R Judgment 1 McCLELLAN CJ at CL: The applicant was tried together with Spyro Sophiadakis on an indictment which pleaded that on 26 May 2004 at South Grafton the applicant and the co-accused shot at Jonathan Koen with intent to murder him. The count alleged a contravention of s 29 of the Crimes Act 1900 and attracted a maximum penalty of imprisonment for 25 years. Both the applicant and Sophiadakis were convicted. 2 The applicant seeks leave to appeal against his conviction on three grounds. None of the issues now raised were raised at the trial. The first two grounds relate to the lack of a warning by the trial judge in relation to identification evidence. The third ground alleges a miscarriage of justice on account of the Crown Prosecutor inviting the jury to consider the submission "why would the victim lie?"

The facts 3 Mr Koen, the applicant and Sophiadakis (also known as "Spyro" or "Spud") had known each other for a number of years. They were members of the Outcast Motorcycle Club. At the time of the offence Mr Koen lived near Yamba. The applicant lived at Ulmarra between Yamba and Grafton. Sophiadakis was living at Mermaid Beach on the Gold Coast. 4 Each of the three men had held office in the Outcast Club at various times over the preceding decade. At the time of the shooting Sophiadakis was in the process of forming the Queensland Chapter of the Club. 5 About a month before the offence Mr Koen had confronted Sophiadakis in the Club's premises at Sydney. The issue between them was a visit by Sophiadakis to Mr Koen's home when his wife was there alone. The evidence indicated that they had "hard words" and Sophiadakis was asked to leave. The Crown suggested that this dispute was the source of Sophiadakis' motive to commit the crime. No separate motive was alleged in relation to the applicant, it being submitted that he was a participant in the common purpose. 6 Mr Koen owned a prime mover and in the days prior to the shooting had been seeking work for it. To this end he had been contacting Sophiadakis who represented that he had work connections for Mr Koen which would require his truck to drive to Perth via Sydney. It was the Crown case that Sophiadakis had rung Mr Koen on the day of the shooting and told him that he had work for him which required the prime mover to drive to Sydney that day. An arrangement was made for Mr Koen to collect Sophiadakis from the applicant's house later that day. There was evidence of a number of phone calls on the day of the incident between the three men. However, Mr Koen conceded that he may have spoken to the applicant but said that if he had done so their conversation was brief. 7 The time of the meeting became delayed and Mr Koen started drinking. By the time Sophiadakis ultimately contacted him he would not drive his truck on account of his intoxication. It was then arranged that Sophiadakis would meet Mr Koen at his house and Sophiadakis would drive at least some of the way. 8 Mr Koen did not recall the time at which Sophiadakis arrived at his house but it was at least half an hour after Mr Koen placed a call to the applicant, which was answered by the applicant's de facto wife. He was looking for Sophiadakis. The telephone records establish that this call was made at about 7.50 pm that night. 9 The reason Mr Koen rang the applicant's de facto looking for Sophiadakis was twofold. Mr Koen had been told by a friend, Russell Grogan, that Sophiadakis' car had been parked outside the applicant's house. They had earlier made an arrangement that Mr Koen was to collect Sophiadakis from the applicant's premises. It was the defence case that Sophiadakis' white panel van was outside the applicant's house but this was said to be because the applicant had borrowed the car from Sophiadakis after the applicant had visited him in Queensland the day before the offence. 10 When Mr Koen rang the applicant's de facto, Erica McPherson, she allegedly said they were not due at her place for another 40 minutes. 11 Sonia Koen, the victim's wife, gave evidence that she overheard a telephone call between her husband and the applicant's wife in which she heard Mr Koen say "Erica where's Dave, have they left yet?" After concluding the telephone call she said that her husband said to her "Erica said they left over 40 minutes ago, I wonder what's going on?" 12 The Crown case was that Sophiadakis arrived at the house at about 8.30 pm in a green Ford motor vehicle. The applicant was driving. However, the applicant denied that this occurred and said that he was at home at the time with his de facto wife. Mrs Koen gave evidence that she saw the applicant in the vehicle which was on her driveway when she opened the door at her house for Sophiadakis. She was the only witness who observed the applicant. Mr Koen did not see him at this time. 13 Mrs Koen had earlier given an account of the events to police. In that account she said that she saw the applicant in a Commodore motor vehicle. Mr Koen denied seeing any vehicle. His wife ultimately resiled from her original account although she maintained that she saw the applicant drop off Sophiadakis in a green Ford motor vehicle. 14 Mrs Koen was familiar with the applicant. 15 Mr Koen and Sophiadakis left and drove to a location on the Pacific Highway about 10 kilometres south of Grafton where it formed the intersection with the road to Woolli, otherwise known as the Woolli turnoff. The truck was stopped on the left hand side of the highway as it travelled south. Sophiadakis allegedly got out of the truck and said "I'm just going to see Davey for a minute." 16 Sophiadakis had previously, but not until the journey began, told Mr Koen that the applicant was also travelling to Sydney in a separate vehicle. Mr Koen said that at least at one point during the journey he called the applicant's number on a telephone which he handed to Sophiadakis. There was no independent evidence of any contact between Sophiadakis and the applicant during the journey. 17 Immediately after Sophiadakis left the truck Mr Koen moved to the driver's seat and was filling in his logbook. He then heard a loud bang and felt a blow to his body. He said that he looked up and saw the applicant at the driver's window with a gun in his hand. He said that the applicant was trying to do something to the gun at the time. Mr Koen then realised that he had been shot and set the truck in motion. Sophiadakis jumped onto the side of the truck. He was also armed with a pistol but as the truck moved off he disappeared. 18 Mr Koen managed to travel approximately 800 metres up the road before he lost consciousness and the vehicle ran off the road into the bush. Mr Koen was found some distance from the truck and was ultimately treated at the scene by ambulance officers. 19 The applicant was first discovered by Mr Weeks who asked him "who shot you?" Mr Koen replied "I can't tell you." Mr Weeks repeated his question but Mr Koen did not respond. Mr Weeks asked Mr Koen his name to which he replied "Jon". Shortly afterwards the police and ambulance officers arrived. 20 Ambulance Officer Rogers gave evidence that she also asked Mr Koen who shot him and he said "Spyro". After leaving the scene and on the way to the hospital Mr Koen nominated "David Brown" as the person who had shot him.

The defence case 21 The defence case was that the applicant was not at the scene of the incident and did not drop Sophiadakis at Mr Koen's house. The primary defence case was that both Mr Koen and his wife were lying when they said that the applicant was involved. If not lying, it was said that they were mistaken. 22 Erica McPherson was called in the defence case. She gave evidence that the applicant was at home on the evening of the offence. She recalled speaking with Mr Koen that evening but denied saying that "they were on their way" or words to that effect. Her evidence was that the applicant was at home at this time and did not want to talk to Mr Koen so she told him that the applicant was attending to firewood at his parents' place. She said that Mr Koen abused her so she handed the phone to the applicant. 23 Evidence was also called from Miss Karen Pardoe (who was declared unfavourable to the Crown) who said that she observed the applicant at his house in the bedroom when she dropped off Erica's two children at about 9 pm on 26 May 2004. Ms McPherson confirmed this account.

The evidence of identification 24 Mr Koen said that the applicant had presented at the driver's window of his truck after it had stopped. He said that he did not see the applicant until after he had been shot. It was submitted by the applicant that there were significant factors which suggested that this evidence may be unreliable. Mr Koen did not immediately nominate the applicant as the shooter. He was severely injured and likely to have been in shock. Furthermore, it was evening and the vehicle had stopped in darkness, albeit that Mr Koen said the light was on inside the vehicle. 25 Mrs Koen gave evidence that she had known the applicant for years. She said that when the applicant arrived at her house his car stopped no more than 30 feet away from her and it was facing the house. Although it was dark the vehicle was illuminated by a spotlight and a street light. She said that she saw the applicant in the driver's seat. 26 Mrs Koen also gave evidence that she recognised the applicant's voice when she answered Mr Koen's mobile phone on the day of the shooting. However, she could not recall the time when the call took place and could not remember the contents of the conversation. As I have earlier recorded Mrs Koen had previously said that she had observed the applicant to arrive in a Holden Commodore. She said this was a mistake. She was challenged by defence counsel because in her witness statement she had asserted that Mr Koen would also have been in a position to have seen the applicant when he left the house with Sophiadakis.

Ground 1 - the trial miscarried by reason of the trial judge failing to adequately direct the jury in relation to the dangers of the identification evidence of Sonia Koen as required by s 116 of the Evidence Act 1995.

Ground 2 - the trial miscarried by reason of the trial judge failing to adequately direct the jury in relation to the dangers of the identification evidence of Jonathan Koen as required by s 116 of the Evidence Act 1995. 27 The applicant submitted there were significant reasons why the identification evidence of Mr Koen and his wife was unreliable. I have already related the matters raised with respect to Mr Koen's evidence. In respect of Mrs Koen's evidence the applicant emphasised that she allegedly saw the applicant at night, at a distance, and whilst obscured by the car in circumstances where she could not recall other aspects of him. It was submitted that she said that she had recognised the applicant only after she had been made aware that he was a suspect. 28 No warning was given to the jury by the trial judge concerning the evidence of either Mr Koen or his wife. It was submitted on the appeal that this was an error and that s 116 of the Evidence Act 1995 required that a warning be given. 29 Section 116 of the Act is in the following terms: "116 Directions to jury (1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence, and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury." 30 It was accepted by the applicant that although both witnesses were familiar with the applicant, their evidence was not evidence of identification in the common law sense. It was nevertheless submitted that it was recognition evidence which required a warning: see Trudgett v R [2008] NSWCCA 62 at [28]; Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [68]-[69]. Counsel for the applicant submitted that in these circumstances a warning pursuant to s 116 of the Act was mandatory. It was submitted that the directions failed to comply with s 116 and failed to adequately identify for the jury the problems with this evidence: see Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555; Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1; R v Clarke (1997) 97 A Crim R 414; Zammit v R [1999] NSWCCA 65; (1999) 107 A Crim R 489 at [117]; R v Coe [2002] NSWCCA 385 at [67]. 31 In the written submissions, counsel for the applicant emphasised that in R v Demiroz [2003] NSWCCA 146 this Court stated that the caution required by s 116 is mandatory. It was accepted that the applicant made no request for a redirection at the trial but it was submitted that in any event leave to raise the issue on appeal should be granted. Again reliance was placed on the decision in Demiroz where trial counsel had not sought a redirection. 32 There is a significant difference between the present case and Demiroz which was not acknowledged in counsel's submissions. In Demiroz Carruthers AJ was satisfied that in the absence of assistance from counsel the trial judge overlooked the requirements of s 116 (at [63]). This cannot be said in the present case. 33 The defence case at trial was conducted without any dispute that Mr Koen could have readily recognised the applicant. The defence was that Mr Koen had either deliberately implicated the applicant in revenge for the applicant failing to lend assistance to Mr Koen in relation to some illicit adventure, or "back him up." The alternative submission to which little emphasis was given was that Mr Koen mistakenly recognised him. By implication the same position was adopted in relation to Mrs Koen's evidence. 34 Because the primary basis of the defence was a deliberate false identification, significant tactical issues arose for counsel. A case of deliberate false identification did not require identification directions, although a defence of mistaken recognition would do. However, any warnings with respect to the unreliability of the recognition evidence may have significantly diminished the impact of the discrepancies which counsel said existed in the evidence of Mr and Mrs Koen and which were relied on as an indication that their evidence was fabricated. Identification directions directed to mistaken recognition would have inevitably brought to the attention of the jury alternative explanations, apart from deliberate lies, for Mr Koen falsely recognising of the applicant. 35 This was not a case where the requirement for directions was overlooked. After the evidence of Mr Koen was concluded the trial judge raised the question of identification directions. His Honour said that he would not give them unless they were sought and enquired of both defence counsel whether directions were requested. Counsel for the applicant indicated that he wished to wait until the close of the Crown address before providing a considered response to his Honour's enquiry. However, at this stage of the trial he agreed with the trial judge that the defence did not appear to involve an identification case. Counsel for Sophiadakis adopted the same position. 36 At the conclusion of the Crown case in reply the trial judge asked counsel what directions they sought. No identification direction was requested. Furthermore, no identification directions were sought after the conclusion of the Crown address or at any later stage of the trial. It is against this background that the applicant makes his request for leave to rely on the present grounds of appeal. 37 In these circumstances I am satisfied that defence counsel and the trial judge gave deliberate consideration to the issue of identification directions and trial counsel for forensic purposes did not ask for an identification direction. This was a deliberate choice and a course open to counsel. It was against a background where the evidence made plain that both Mr and Mrs Koen knew the applicant well and were able to recognise him. 38 As I have related, Mrs Koen's evidence was that she opened the front door of her residence and saw a green car in her driveway facing towards her. The car was no more than 30 feet away with the applicant in the driver's seat. Both the car and the applicant were illuminated by the street light and a spotlight on the residence which illuminated the driveway. With respect to the evidence of Mr Koen, his assailant was in extremely close proximity to him when he was shot. The assailant was standing on a step on the truck immediately outside the driver's door and clearly visible through the space where the driver's window would have been. The driver's window was down and did not obscure the line of sight. The light inside the cabin was on and was illuminating the assailant's face. When he was shot Mr Koen looked up and later said that he saw the face of the applicant smiling back at him. He said that he watched the applicant who continued to point the gun at him. With Mr Koen pleading that he not shoot again, he said that the applicant attempted to fire a second shot. The gun jammed and Mr Koen continued to watch as his assailant attempted to clear the weapon. 39 In these circumstances I am satisfied that the failure to seek a direction or warning was a considered decision made for tactical reasons. The principles by which a grant of leave under Rule 4 of the Criminal Appeal Act 1912 have been discussed on many occasions. In Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 McHugh J said at [72]: "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted. Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant." 40 See also R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505 at [59]-[60]; R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 at [23]-[24]; R v Villa [2005] NSWCCA 4 at [74]; R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [92]-[99] per Ipp J; R v Hodge [2002] NSWCCA 10 per Levine J at [19]. 41 In the present case not only was a direction not sought, his Honour's decision that it was not required was not challenged. This position was likely to have been adopted for rational tactical reasons. In those circumstances, leave pursuant to Rule 4 should be refused.

Ground 3 42 The applicant submitted that the trial miscarried because the prosecutor invited the jury to consider the submission "why would the victim lie?" 43 In his closing address to the jury the Crown said: "But ask yourself this, there are two important questions, why in a situation when somebody is in peril of dying and really thinking at that point that they're not going to survive, would you nominate the names of some person who was a friend of yours. Why would you nominate two people who are close friends of yours, knowing full well that if you did survive, the people that actually shot you would still be out on the loose in the community and may well come back and finish the job. Why would that person do that?" 44 It was submitted that this aspect of the address invited the jury to reason "… why would the victim lie?" and "why would the victim lie on his deathbed?" It was submitted that this invitation falls foul of the mischief identified in the High Court decisions of Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at [8]. In that case the majority joint judgment said: "… to ask an accused the question: 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused." 45 In South v Regina [2007] NSWCCA 117 Hunt AJA (with whom Simpson and Whealy JJ agreed) said, in upholding a similar complaint at [42]-[44]: "42 Where there is evidence that the complainant had a motive to lie, the jury's task is to consider that evidence and to determine whether, in the light of such of that evidence as they accept, they are nevertheless satisfied that the evidence given by the complainant of the commission of the offence charged is true. The jury's task necessarily does not include speculation as to whether there is some other reason why she would lie: Regina v Uhrig CCA 24 October 1996 [BC 9605087] at 15-16; Palmer v The Queen at [8]). Nor does the jury's task include acceptance of the complainant's evidence unless some positive answer to that question is given by the accused: Regina v F (1995) 83 A Crim R 502 at 511-512; Palmer v The Queen at [8]).

43 Both the Crown prosecutor and the accused are entitled to put arguments to the jury relating to the evidence of a motive to lie which has been asserted in relation to a witness in the particular case, and a satisfactory summing-up should include reference to those arguments: Regina v Uhrig at 16-17; Palmer v The Queen at [10]-[11]. To invite the jury to go beyond both the evidence supporting the asserted motive on which the accused relies and the evidence denying it on which the Crown relies, and to ask 'Why would the complainant lie?' is to suggest to the jury that, in the absence of any other evidence beyond that on which the accused relies, they should accept the complainant's evidence.

44 The jury should never be asked to go beyond the evidence on which both parties rely to establish or refute a motive to lie and to consider the question 'Why would she lie?' Such a question simply should never be asked." 46 The applicant accepted that it would have been proper for the Crown to attack the evidence of an asserted motive to lie, if raised by the defence, but argued that the applicant did not nominate in his evidence a motive for the victim to lie nor did counsel for the applicant address on the issue. It was the applicant's evidence that the victim had contacted him on the day of the offence to inform him that in effect something was "going down" that evening and that he wanted the applicant to "back him up", a request the applicant refused. It was submitted that irrespective of this piece of evidence, and whether it may have been construed as a motive to lie, in effect the Crown asked the jury to go well beyond the issue as raised, and ask generally why would this complainant lie. This, it was said, was an impermissible line of enquiry. 47 The applicant requires leave to argue this ground pursuant to Rule 4 of the Criminal Appeal Rules, there being no request for a direction on the issue. 48 Although the applicant accepted that it may be argued, there being no request for a redirection, that there was no wrong decision on any question of law it was submitted that a miscarriage of justice had occurred. It was submitted that the risk of miscarriage on account of the Crown address was heightened by the absence of an appropriate warning concerning the victim's identification evidence which improperly bolstered the identification evidence and placed an "evidential cloud" over the defence case. The applicant submitted the onus was effectively reversed in the absence of the mandatory warning. In these circumstances it was submitted that it should be concluded that there had been a substantial miscarriage of justice. 49 The respondent submitted that the Crown Prosecutor had not posed the "impermissible question" but instead had invited the jury to consider the weight to be afforded to the recognition of the applicant by Mr Koen, having regard to the improbability that Mr Koen would knowingly misidentify the applicant, with the consequence that the real shooter would be free to later attempt to kill him. It was submitted that the impugned passage of the Crown address was directed to evidence given by the applicant that he had refused to lend assistance to the victim in relation to some illicit adventure on the day of the shooting. 50 I am satisfied that there has been no miscarriage of justice. The essential difficulty with the "impermissible question" is that it potentially reverses the onus of proof either explicitly or by necessary implication. It invites the jury to accept the evidence of the prosecution witness merely because a motive for lying cannot be identified. I do not believe this has occurred in the present case. The Crown Prosecutor did not ask the jury to consider whether there was any identified motive for Mr Koen to lie. Rather he was suggesting that there was good reason why he did not lie. This is a submission of an entirely different character. It is true that he added the question "why would that person do that?" but that question was directed to the consideration that the effect of a lie was to expose Mr Koen to continuing danger. The question was not directed to a speculative motive for lying. 51 Counsel for the applicant did not raise this issue at the trial. Although I cannot discern any tactical consideration for this course, it is apparent that counsel did not perceive the error for which counsel on the appeal (who was not trial counsel) now contends. In my opinion that judgment was correctly made and I would refuse leave to raise ground 3.

Orders 52 In my judgment leave to appeal should be refused and the appeal dismissed. 53 HALL J: I agree with McClellan CJ at CL. 54 HARRISON J: I agree with McClellan CJ at CL. **********

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