Domican v The Queen

The statutory regime 9Action may only be taken under s 79(1) "if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case" (s 79(2)). The s 78 procedure does not, however, provide a further avenue of appeal after a convicted person has exhausted their normal appeal rights. 10The purpose of this aspect of the legislative scheme was discussed by Johnson J in Application of Peter James Holland [2008] NSWSC 251 at [5]. It is remedial, designed to overcome injustices that sometimes arises in the course of the administration of criminal justice (see Kirk Group Holdings Pty Limited v WorkCover Authority of NSW [2006] NSWCA 72; 66 NSWLR 151 at 154 [5], 155 [8]). As Johnson J also discussed at [7] - [8]: "7 Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. 8 There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]." 11It follows that in order for an application such as this to succeed, there must be material identified which gives rise to the necessary doubt or question which must be established, before an inquiry may be ordered. 12The Court also has a discretion to refuse to consider or deal with an application in circumstances specified in s 79(3), namely if: "(a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action." 13In this case it is accordingly relevant to take into account that Mr Wilson unsuccessfully pursued an appeal against his conviction in 1997.

The matters relied on by Mr Wilson 14Mr Wilson's application rests on two matters: photo identification evidence, which he submits ought not to have gone to the jury and photographs of items located at his house during a search conducted on 10 December 1992, in circumstances where the items themselves had gone missing and photographs of Mr Mitchell. 15The photo identification evidence was the result of a photo line-up of 20 faces which took place some 16 months after the assault. Mr Wilson's case was that this evidence should not have been permitted to go to the jury. 16The items seized at Mr Wilson's home were a balaclava, a pinch bar and a jumper which Ms Sommer had identified as having seen, or being used, during the assault. Mr Wilson alleged that she had been told prior to identification that the items were found in the home of the person charged with her assault. Those items had gone missing and the Crown led photographs of them. 17It should be noted that while not raised on Mr Wilson's application, it is relevant that the Crown's circumstantial case also relied on an association between Mr Wilson and Ms Sommer's former boyfriend, Mr Mitchell. Mr Wilson had denied any knowledge of Mr Mitchell, despite photographs found in his house depicting him in the company of Mr Mitchell. It also relied on entries in a diary found at Mr Wilson's, as well as evidence called from various witnesses, which it is unnecessary to explore.

The Crown's position 18The Crown's case was that the Court would refuse to consider the identification evidence relied on by the applicant, because, on appeal the Court of Criminal Appeal had already comprehensively assessed the evidence on which Mr Wilson was convicted at trial. The trial had followed a voir dire in relation to the admissibility of the picture identification evidence on which the Crown's case rested. The photographic evidence and the arguments now advanced by Mr Wilson had also, for the most part, been dealt with on the appeal and were not capable of satisfying the test provided in s 79(1). Accordingly, his application for an inquiry would be refused.

Mr Wilson's case on appeal 19In order to resolve the issues lying between the parties it is necessary to consider the case Mr Wilson advanced on appeal, where he pressed five grounds, including that the verdict was unsafe and unsatisfactory (ground 5). That ground had to be considered on the basis of an assumption that all of the Crown evidence was correctly admitted and that the jury was correctly charged. The evidence also had to be taken at its highest (see judgment at p8). 20The other four grounds pursued were:

• Ground 1 - the learned trial judge failed to warn the jury at all in relation to the dangers of identification evidence of the pinch bar and the balaclava by the witness, Miss Sommer.
• Ground 2 - the learned trial judge erred in allowing such evidence of the identification of the pinch bar and balaclava to be used as corroborative evidence of the video identification.
• Ground 3 - the learned trial judge erred in allowing such evidence of the finding of the pair of shoes and pair of gloves to be used as corroborative evidence of the video identification.
• Ground 4 - the learned trial judge failed to properly warn the jury in relation to the evidence of the identification depicted on the video.

The photo identification evidence 21On this application Mr Wilson's case was that the photo identification evidence was the "key determining factor" in the finding made by the jury and that this had led to a miscarriage of justice. On his case Ms Sommer's identification could not have been reliable, given that she had observed her assailant for only a brief period, in varying conditions of light. In the result, the evidence should have been excluded under s 114, s 115, s 135, s 137 and s 138 of the Evidence Act 1995 (NSW), consistently with the approach discussed by McHugh J in Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [65]: "In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. Because circumstantial identification evidence is usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasions for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positive-identification evidence." 22It was also submitted: "32. In the present case, there were numerous problems with the identification evidence, which reduced its probative value. The lapse of time - namely 16 months - was clearly a relevant factor: R v Clarke (1997) 97 A Crim R 414 at 429-430. The victim's evidence that a man wearing a balaclava, that covered his face from one inch above and below the eyes, made plain the inherent limitations and unreliability of any identification evidence. 33. When the victim was shown an identification video, she was shown 20 faces, many of which did not have green eyes or hazel eyes. Of the 20 faces, only two of the photographs showed a man with no eyebrows (one of whom was the accused). The victim never described her assailant as having no eyebrows prior to identifying the applicant. It is suggested that a lack of eyebrows is a significant and somewhat memorable facial feature, particularly in the context of how much of the assailant's face the victim purported to see. 34. Further, the video depicted a larger face area of each individual shown, rather than pursuant to the description given by the victim to police, which indicated the victim had only seen to the bridge of her assailant's nose. It also depicted persons with and without hair, although this feature was unknown to the victim. 35. As Buddin J said in R v Nguyen [2003] NSWSC 1068, at 14: "It is axiomatic that the photographs selected for inclusion in the array should be totally consistent with the original description provided by the witness of the suspect's physical features and any other identifiable features, including the clothing worn by him or her. It therefore follows that very considerable care needs to be taken to ensure not only that the original description itself is accurately recorded, but that the details of it are comprehensive and that they are obtained as close in point of time to the incident, as circumstances permit. " 36. It should be noted that the identification video and the photographs of the items found at the applicants[sic] home were allowed into evidence, over objection from defence counsel. Further, issue made at trial that the video had two screens depicting two images of different colours, namely the image on the larger monitor depicted the colour skin as tan or yellow and the image on the bottom monitor depicted the skin colour as pinkish white. (Trial @T50)" 23I am satisfied that the matters on which this aspect of Mr Wilson's application rests were fully ventilated both at the trial and on appeal and that no special facts or circumstances warranting the application being further dealt with have now been established by Mr Wilson. 24Ms Sommer's description of the assailant was referred to at pages 9 -11 of the Court of Criminal Appeal's judgment. How the identification evidence came to be videoed was also described. The authenticity and integrity of the videos themselves was not in issue (see at p11-12). The videos were described as follows: "She is shown entering the room; going through the ordinary civilities as to introductions and the like; and, then, seating herself in front of a video monitor. Twenty images, previously compiled by the police into a video tape, are then screened to the victim. Each photograph in the compilation shows a face, the central area of which, only, is clearly depicted. The screening proceeds uneventfully to the point where such a photograph of the appellant appears on the screen. Miss Sommer at once reacts. She shudders visibly, begins to sob, and, having regained her composure, identifies the person in that particular photograph as the person who attacked her. She is asked, thereafter, to look carefully and patiently at the balance of the photographs in the particular compilation; and she does so without any reaction. She is then shown a second video taped compilation of photographs. They are the same photographs, and in the same sequence, as the photographs first shown to her; but this time the whole head of the subject is shown. The course of the screening is exactly the same on the second occasion as on the first." (at p 12) 25This evidence made a powerful impression on the Court of Criminal Appeal, which observed it must have made a similar impression on the jury. It concluded at p13 that: "... the material in the two video tapes was such that the jury was entitled to regard it as powerful evidence confirming the fundamental assertion of the victim, - and the fundamental assertion, also, crucial to the Crown case, - that it had been, indeed, the appellant who had carried out the attack upon her. This was, in our opinion, more so the case if the jury accepted, as, in our opinion, the jury was perfectly entitled to do, that Miss Sommer, whom the jury saw and heard for itself, was an intelligent, responsible, and resourceful young woman whom they were prepared to accept, not only as truthful, - (a matter not in issue at the trial), - but reliable as well." 26Extensive reference was then made to Ms Sommer's cross-examination as to the reliability of her identification, given the contrasting light in the kitchen and dining room; her concessions as to the strength and clarity of the light; the brief period she had seen the assailant's eyes; how the colour of his eyes had varied in the light, so that she had variously described them to be green or hazel/green; the differences in eye and skin colour depicted at various points of the video recording; what she had later said about the eye colour; that part of the assailant's face had been obscured by shadow; and the colour of the bright red bar, which on the Crown case had been used to assault her, which she had described as being a dark brown colour. 27The Court of Criminal Appeal observed at p 6 that the only ultimate issue for the jury at the applicant's trial was whether the Crown had proven the identity of the assailant beyond reasonable doubt. 28It referred to Ms Sommer's extensive cross examination and the questioning designed to discredit her, including questions she was asked as to her and her father asking police as to their ongoing enquiries and whether she had dealt in cannabis. The Court of Criminal Appeal concluded that: "We do not see anything in this part of the cross-examination, apt to suggest, that the suggested activities of the victim gave rise to some reasonable inference adverse to the reliability of her identification of the appellant." 29As well as referring to the other evidence led in the Crown's circumstantial case, the Court referred to Mr Wilson's evidence and the unsworn statement which he made to the jury, as well as the evidence called from his solicitor and an expert in optometry, Professor Stephen Dain, who explained how an individual's perception of eye colour can change in different kinds and intensities of electric lighting. 30The Court concluded as to ground 5: "Proceeding, as we now do, to apply the principles stated in M v The Queen to the facts of the present case as disclosed by the foregoing canvass of the evidence at trial, we acknowledge at once that an evaluation by this Court of any Crown case which is essentially dependent upon identification evidence, is to be carried out with a constant awareness of the dangers inherent in such a case. We accept that, in the present particular case, it is possible to point to particular things said by Miss Sommer in connection with her identification of the appellant, that are plainly incorrect in detail. For example, the suggestion that the person who assaulted her "may have had dark featured eyebrows" is, on its face, incorrect, in that the appellant has no eyebrows at all because of a particular skin condition, which he has had since childhood. The submissions put for the appellant seize upon precisely this point, and argue that logically the appellant could not have been the person who carried out the attack. We think, however, that the conclusion does not necessarily follow from the given premise. For, even granting that the appellant has in fact no eyebrows, it is necessary nevertheless to consider whether the appellant, when viewed in certain lighting conditions, might give momentarily the impression of having dark or darkish eyebrows. The appellant was not present in Court on 7 November, the first day of the hearing of the appeal; but he was present in Court throughout the second day of the hearing on 21 November, and we had a good opportunity of seeing him for ourselves. We were struck by the fact that, looked at from certain angles, the appellant's face was indeed shadowed in such a fashion as to suggest, albeit briefly, that he did in fact have such eyebrows. Quite apart from that matter, we were struck not only by the physical appearance of the appellant which, in our opinion, accorded closely with the appearance described by the victim. We were struck, also and particularly, by the appellant's eyes and their immediate facial surrounds. The appellant's eyes and their facial setting are, in our opinion, very distinctive. It is true that Miss Sommer's assailant was wearing a balaclava, but it was a balaclava which left exposed the central area of the assailant's face. The victim's view of that area of her assailant's face made a searing impression upon her, and that impression under-pins her identification of the appellant. We think that the descriptions given by the victim of her assailant do not contain inconsistencies of such a kind as to render suspect her identification so under-pinned. In making, as we are required by law to do, our own independent assessment of the evidence at trial, we do not overlook other features of that evidence capable of strengthening the inculpation of the appellant in the assault on Miss Sommer. We have particularly in mind the appellant's hand-written diary note for 17 February 1992; and the clear evidence of the appellant's false denial of any knowledge of or acquaintance with the man Mitchell, albeit that the evidence did not establish in a precise and particular way such association at times preceding the date of the assault. It must have been apparent to the jury at trial that the whole point which the Crown sought to make concerning the association between Mitchell and the appellant, was that the appellant had been procured by Mitchell to assault Miss Sommer. The appellant, when he came to make his unsworn statement, could not credibly have denied any knowledge of the man Mitchell, given the volume of evidence available to the contrary. The appellant chose, however, not to tell the jury why he had denied to the investigating police any knowledge of Mitchell. We think that the jury was entitled to infer that the appellant did not give any such explanation for the reason that any truthful explanation would have been disadvantageous to his case; and it is nowhere apparent that there could have been any such disadvantage deriving from anything other than that his association with Mitchell, if explained truthfully, would tend to support the Crown case that he was indeed the assailant. As to his hand-written diary entry, the appellant chose to say nothing at all by way of explanation consistent with innocence. We think that the jury was entitled to infer that the reason why the appellant gave no such explanation was because a truthful explanation would have tended to strengthen the Crown case that he was the assailant. We have come to the conclusion that the principles established by the decision in M v The Queen do not entail, when applied to the given facts of the present case, that the jury at trial ought to have had a reasonable doubt as to the guilt as charged of the appellant. We ourselves have no such doubt. We are, therefore, of the opinion that Ground 5 has not been established." 31As to ground 4, that the trial judge failed to properly warn the jury in relation to the identification depicted in the video, the Court of Criminal Appeal concluded that the summing up, fairly read, complied with the requirements established in the Queen v Domican [1992] HCA 13; 173 CLR 555; that specific directions under s 165(2) of the Evidence Act could have been sought, but that the directions in fact given, had satisfied the requirements of that section. 32In the result I am well satisfied that despite the observations relied on by Mr Wilson in R v Tugaga (1997) 74 A Crim R 190 at 193-4, that it is always open to a trial judge to withdraw evidence of identification from a jury, if its probative value is outweighed by its prejudicial effect, on the material on which this aspect of Mr Wilson's application must be determined, it must be concluded that the matters he now raises in relation to the photo identification evidence were fully dealt with both at the trial at which he was convicted, and on appeal from that conviction. 33The matters now advanced do not raise any special facts or special circumstances that justify the taking of the further action sought in relation to his conviction and thus cannot provide a basis for the further inquiry that Mr Wilson now pursues.

The photographic evidence 34At the trial, over the applicant's objection, the Crown tendered three photographs of items seized from the applicant's home, which had gone missing after the committal hearing, including a balaclava and pinch bar. Mr Wilson had admitted owning those items (p 27 judgment). 35The submissions advanced by Mr Wilson on this application as to the receipt of this evidence at trial were: "37. At the trial of the applicant, above objection, the Crown were permitted to tender 3 photographs of items located at the applicants[sic] house during the search conducted on 10 December 1992. (Trial @ T 132) What can be inferred from the transcript is that those photographs depict a balaclava with a single hole, a red pinch bar and possibly a blue woollen jumper. The Crown relied on photographs as the items themselves had gone missing after the Committal. 38. The victim gave evidence that prior to viewing these items in January 1993, she had been informed that an arrest had been made (Committal @ T52) and that the items had been found in the premises of the arrested person: (Comittal@T54). 39. Prior to the identification of these items in January 1993, the victim had described the iron bar as a "crow bar" that was "dark brown" or "dark" in colour: (Trial @ T67) the photograph tendered and identified by the victim as being used in the assault depicted a "very red pinch bar". 40. The victim gave evidence at trial, obviously after viewing the red pinch bar at the police station in January 1993, that she believed the bar to be about 16-18 inches in length: (Trial@T27). Of note is that when the police went to search the applicants[sic] house Officer Moran asks the applicant: "Have you got a pinch bar about one metre in length: "(Thai @ 131), the inference being that the victim at some point had described the bar as about one metre in length. 41. The victim identifies the balaclava depicted in the photograph as the one worn by the assailant. The photograph depicts a balaclava with a single hole, the fabric of which is unclear from a reading of the transcript at committal. The evidence of Officer Caddy is that he records in the critical incident report that the assailant is "wearing a black woollen balaclava with holes for eyes and mouth. (Trial @ T155). 42. Given both the time that had elapsed and the circumstances surrounding the identification of these items, this identification evidence should not have been permitted to go to the jury. It was highly unreliable, lacking in probative force and of great prejudice to the accused. At the time of identifying the items the victim is not shown other iron bars, or balaclavas or jumpers and the victim is informed that the items come from the house of the man arrested for the crime. The identification takes place close to 11 months after the offence. 43. There were significant issues with the evidence, not least the fact that it was photographs and not the items themselves being tendered. The photograph of the pinch bar tendered in the trial was a different colour, being bright red, to the dark coloured bar the victim stated she saw. Further, the balaclava appears to have been of an entirely different description - the one found at the defendant's home was described as 'open faced'. 44. In R v Razzak [2004] NSWCCA 62, Levine J stated, at [28]: "It is as much a matter of common sense, if not logic, as it is a matter of principle, to assert that other evidence, other circumstantial evidence, touching upon the issue of identification, cannot bolster flawed evidence of identification to the point where the flaws are eliminated and a finding can be made that that flawed identification is correct". Such sentiments were echoed by Kirby J in Festa at [165]." 36Grounds 1 and 2 of Mr Wilson's appeal were directed to this evidence. At p38 of the Court of Criminal Appeal's judgment, after referring to the principles discussed in Domican v The Queen, it was observed that the evidence as to the balaclava and pinch bar were not in a real sense identification evidence, but a small category of the Crown's circumstantial case which tended to strengthen the reliability of Ms Sommer's identification of Mr Wilson. 37As to the tender of the photographs now relied on by Mr Wilson the Court of Criminal Appeal observed: "For some reason that remains unexplained, the balaclava, the pinch bar, the black gloves and the shoes, which were taken by the police from the appellant's home, were lost between committal and trial. The Crown sought, therefore, to tender in its case at trial a photograph of each of the missing items. The four photographs were admitted over objection and became Exhibit G in the trial. It was not contended at trial, either that the photographs were not authentic or that they showed something other than the items actually taken by the police. The photographs were tendered during the course of the evidence-in-chief of Miss Sommer. She gave evidence that Det. Sgt. Monk had shown her the items depicted in the four photographs. She said that this had happened sometime after her assault. She then gave the following evidence: "He handed me enveloped or part-wrapped items and of those items I identified a balaclava being I believe the same one that was used by the attacker on the night. He showed me the bar. As I unpacked it I identified that as being identical to the one being used by the attacker that attacked me on the night. He showed me some black gloves. I couldn't be specific about those gloves. They were black. They looked similar, I couldn't say if they were the same ones, and some sport shoes, some running shoes of which I couldn't identify." As to the pinch bar and the balaclava, we have no present need to add to what we have said earlier herein. (at p47-48)" 38Ms Sommer was cross-examined for days on her evidence, including in relation to the balaclava and the bar. The circumstances in which Ms Sommer came to be shown and identify the balaclava and pinch bar and the discrepancy in her description of the colour of that bar and what could be seen on the photographs, were all explored with her at length. 39The Court of Criminal Appeal concluded at p 45, in relation to the various, detailed directions given to the jury about the identification evidence and the balaclava and pinch bar, that: "First, that no piece of evidence in the Crown case lying outside the direct visual identification by Miss Sommer could be of itself sufficient to convict the appellant; secondly, that such evidence as was to hand concerning the balaclava and the pinch bar might, if accepted by the jury, afford some circumstantial evidence tending to strengthen the reliability of that critical direct and visual identification of the appellant by Miss Sommer; thirdly, that even were the evidence concerning the balaclava and the pinch bar to be accepted, it was necessary nevertheless to bear carefully in mind past demonstrated cases of mistaken identification, and the consequent need to be particularly careful, because of particular considerations pointed out carefully to the jury by the trial Judge, before finally deciding to accept as reliable, and to act upon, the critical direct and visual evidence of identification coming from Miss Sommer. There were, of course, the additional considerations that the appellant, when first questioned about his ownership of a balaclava or a pinch bar, had denied that he owned either; when in fact he owned one of each; and that both the balaclava and the pinch bar had been the subject of evidence which, if accepted by the jury, established that they were similar to the balaclava worn, and to the pinch bar wielded, by the assailant of Miss Sommer. We observe, finally, that no objection was taken at trial upon the basis now advanced by the appellant. As we have earlier remarked, the appellant was represented at trial by senior counsel of great experience in the conduct of criminal cases. That capable and experienced senior counsel, having the advantage of having seen and heard the delivery of the charge to the jury, did not think it necessary to seek further directions as to the matters now propounded by the appellant, strengthens us in the conclusion to which we have come: namely, that the matters of which present complaint is made by the appellant were sufficiently covered both in law and in fact by the directions to the jury." 40It was also considered that the directions given fulfilled the applicable requirements of s 116 of the Evidence Act. It was observed that no application had been made under s 165(2) of that Act as to the giving of further directions as to the unreliability of this evidence. 41In the result the case advanced on this application, that this evidence ought not have gone to the jury, may not be accepted. The applicant's objection to the receipt of that evidence was dealt with both at trial and on appeal. It was part of the circumstantial case on which the Crown relied in respect of things which Mr Wilson had conceded belonged to him. It was accordingly proper for that evidence to be considered by the jury and was not so unreliable or prejudicial that it necessarily had to be excluded as a matter of fairness. 42In all of those circumstances I consider that this aspect of Mr Wilson's application also does not raise the necessary sense of unease or disquiet required, which must arise before the discretion to order an inquiry can be exercised. No special facts or circumstances justifying the further inquiry sought have been established.

Conclusion 43In the result, Mr Wilson's application must be dismissed.

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