Evans v The Queen [2007] HCA 59

Evans v The Queen [2007] HCA 59 - HCA 2007 case summary — Zoe

[116]

The prosecution case. The prosecution case rested principally on the following evidence. A cap had been dropped by the offender at the scene of the crime. The DNA profile of material lifted from that cap matched the DNA profile of a buccal swab which had been taken from the accused with his consent. That DNA profile would be expected to occur in fewer than one in 10 billion people. On 30 December 2003 police officers searched a house owned by the accused's father in which the accused resided: they found a red balaclava in his bedroom and a pair of blue overalls in the laundry. The accused said he owned the balaclava and that it had been there for two years. The balaclava was similar to a large number of red balaclavas found in a box in the basement. These balaclavas had been obtained by the accused in 2000. The accused had discolouration and scarring on his arms, giving him, if he were the offender, a reason for wearing the overalls - to cover up a possible means of identification. The prosecution contended that the balaclava and the overalls were at least similar to those worn by the offender. While under cross-examination, the accused was asked by prosecuting counsel to put on the balaclava and overalls. The jury were asked to compare the appearance and other traits of the accused at the trial in the balaclava and overalls with the appearance of the offender in film of the crimes taken on surveillance cameras, and in still photographs derived from that film, and with descriptions by seven eyewitnesses of the offender's gender, voice, height, age, build, skin complexion, hair and manner of walking. Two witnesses said the offender had an Australian accent. It was said that he spoke in a slow purposeful way and with a "very slow", "very dull" voice. One witness said the offender asked for the "serious cash" and three said he asked for "serious money" or otherwise used the word "serious". One witness said that when he said "'[T]his is serious', it almost came over as, 'sherious', or something like that". There was evidence from five witnesses that the offender was five feet six inches to five feet eight inches tall; on the other hand, one said he was five feet two inches tall and another 180 centimetres tall (ie nearly five feet 11 inches). There was evidence from two witnesses that the offender was aged 30 to 45. Six witnesses said that the offender was of slight or thin or slim or skinny or very slender build. Three said he had fair to medium or fair or pale or white skin. One said he had dark, almost black hair. His mode of walking was said by Mrs Gleeson to be "a real relaxed walk; it was not a run. It was just bouncing, walking out". She also agreed that it was "a swagger style of slow walk". Four witnesses said the overalls the offender was wearing appeared too large on him and one said the balaclava he was wearing was too big for his head.

[206]

It was part of the argument advanced by counsel for the accused in this Court that when the accused was asked to say sentences containing the word "serious", s 53, and hence s 192, applied. Yet at common law a witness could be required "to speak ... so that the jury or another witness may hear his voice ..."[152]. There was no common law equivalent to the s 53/s 192 procedure, and the question arises whether a construction of s 53 which leads to the delays and inconveniences attendant upon the need to comply with that procedure is reasonable. Similarly, at common law a witness may be required "to write so that the jury or another witness may ... compare his handwriting"[153]. It has been held permissible, at least with the witness's consent, for a witness to demonstrate that he could type a record of interview in less than 36 minutes[154]. It has been held permissible for a witness, who claimed in the past to have signed his signature upside down and in reverse, to demonstrate this before the jury after also signing his ordinary signature[155]. Where an offender is said to have walked with a limp, it is permissible to ask the accused to walk a short distance in front of the jury[156]. Subject to questions of exclusion on grounds of prejudice, it is permissible for injured persons to be invited to show the extent of their injuries[157] or for experts to explain them[158] or for the evidence of paralysis or numbness to be revealed by inserting pins into injured plaintiffs[159] and for injured persons to indicate what their capacity to perform bodily movements was before the injury and after it[160]. A jury has been invited to feel a plaintiff's skull to assess whether a hole caused by trepanning was filled by bone or a softer tissue[161]. At common law a witness may be required "to show his face or some other part of his body so that he may be identified"[162]. At common law a witness can be compelled "to submit his foot for comparison with a foot print"[163], or to demonstrate its formation[164]. It is permissible at common law for a tailor claiming payment for making a suit for a customer who resists the claim on the ground that the suit did not fit to ask the customer, while testifying, to try it on in the presence of the jury[165]. It is also permissible for an accused to demonstrate his inability to pull neither of two balaclavas left at the scene of a crime over his head[166]. Where the defence called evidence that clothing left at the scene of a crime did not fit the accused, it was permissible to require the accused to wear the clothing in order to see whether it fitted him[167]. The "wearing of a piece of clothing connected with a crime to see if it fits" is "commonplace" and "entirely unexceptional"[168]. It has been held permissible for a witness to leave the witness box in order to demonstrate how the accused committed an act of indecency on him[169] or to demonstrate the position in which a murdered person was found[170]. A witness who gave evidence about the effect of burning the horsehair stuffing of a chair was permitted to demonstrate that effect by setting on fire a hand full of horsehair from the chair[171]. During the present trial, without objection, the accused was asked to take off his jacket, revealing his stomach, as part of a cross-examination directed to showing that he was fair skinned, and was also asked to show the jury his discoloured and scarred arms; yet in this Court it was said that the jury's "inspection of the stomach" was something which "perhaps" fell within s 53. Counsel for the accused submitted that while he could see no unfairness in an accused person being asked to roll up a sleeve to see whether there was a distinctive tattoo there, s 53 would apply (and therefore s 192).

[208]

It is now necessary to deal with submissions advanced for the accused which relied on s 53(4) and (5). Counsel for the accused submitted: "The potential for the application of s 53 to in court demonstrations is also clear from the words in subsec (5) which allows the jury (or court) to inspect exhibits without an order from the court. This must apply to an inspection occurring in the courtroom, as well as in the jury room." He also submitted that s 53(4) "denotes a specific limit as to what it is permissible for a jury to do with an exhibit without an order from the court". Hence he said that both sub-sections "contemplate that an experiment, demonstration or inspection may be conducted in court". The argument is not clear, but it appears to have two elements. One is that the enactment of s 53(4) assumes that if it had not been enacted s 53 would have applied to the conduct of experiments whether in the jury room or in court; s 53(4) forbids experiments in the jury room, but leaves open their possible carrying out in court, to be regulated by s 53. The second element is that the enactment of s 53(5) assumes that if it had not been enacted s 53 would have applied to the inspection of exhibits by judge or by jury, whether that inspection took place in court, in the judge's chambers, or in the jury room; s 53(5) prevents s 53(1)-(3) from applying in the latter two places, but not to inspection of exhibits in court. The better view is that s 53(4) was inserted to deal with one specific problem which is distinct from those dealt with in s 53(1)-(3), and casts no light on the construction of those sub-sections. And s 53(5) is consistent with the proposition that s 53 applies only to events outside the courtroom: it was inserted to prevent the section applying to those events outside the courtroom which take place in the judge's chambers or the jury room, and assumes nothing about those events which take place inside the courtroom when the judge or jury examines an exhibit. Section 53(5) merely preserves the status quo in relation to inspections by judge and jury out of court. The argument advanced by counsel for the accused on the basis of s 53(5) goes too far: if it were sound, it would follow that the section applied to the "inspection" of an exhibit by a witness, so that every time a witness was asked to look at a documentary exhibit or a chattel which had been marked as an exhibit in order to answer some question about it, the s 53/s 192 procedure would have to be complied with. This cannot be correct. Whether or not s 53(5) was unnecessary, it does not follow from its existence that inspections of exhibits in court by witnesses are governed by s 53, or that any conduct in court is governed by it.

[212]

More clear assistance comes from the relevant Australian Law Reform Commission Reports. ALRC 26, in Appendix C entitled "Differences and Uncertainties in the Laws of Evidence", under the heading "Inspection Out of Court", discussed, as that heading would suggest, various activities outside the courtroom. It discussed "inspections" of "property (including land)" and "the carrying out of 'experiments' on such property"[175]. Clearly these expressions are limited to property outside the courtroom. They therefore cover the ensuing subjects of discussion - "a 'view' where the fact finder uses his power of observation (and other senses) to help to understand and assess the value of evidence adduced in court" and "a 'demonstration' which involves actually taking additional evidence, whether by experience [sic: scil 'experiments'], demonstration or reconstruction"[176]. That the Commission was only discussing out of court visits is supported by the fact that the authorities it cited for the proposition that the court had an inherent power to order "an inspection" concerned out of court visits[177]. That is, the Commission treated "views" as out of court inspections not involving experiments, demonstrations or reconstructions, and it saw experiments, demonstrations or reconstructions as also taking place out of court. It then summarised[178] what the majority said in Scott v Numurkah Corporation[179] and other cases relating to out of court visits[180], or to jury room experiments[181]. Under the subheading "Demonstration (at the Scene)", the Commission turned to the principles stated in Australian cases[182] about experiments, demonstrations and reconstructions outside the court or in the jury room[183]. The Commission proceeded to analyse various English and Privy Council cases: some stated principles consistent with those stated in Australia and some did not, but all of them involved events outside the courtroom[184], and in all of them the principal cases discussed involved events outside the courtroom[185].

[238]

One difficulty with the submission that common law rules similar to s 53 apply is that for reasons given above[212] the three events were not "demonstrations" or, more correctly, "reconstructions". It is true that if the attire the accused was asked to wear, the actions he was asked to perform and the things he was asked to say were significantly different from what the eyewitnesses had said the offender had worn, done and said, the requests that the events in court take place should have been refused - but on grounds of relevance, not any special rule about "demonstrations" or "reconstructions". However, there was evidence that the offender had worn a balaclava and overalls similar to those which the accused was asked to wear. There was evidence of how he walked and how he pronounced "serious". The jurors were entitled to make findings - by assembling a mosaic from small pieces of evidence given by different witnesses if they saw fit - about what the offender was wearing, how he walked and how he pronounced "serious". If what the accused looked like, walked like and spoke like corresponded with that mosaic, it would assist the prosecution case. If it did not, it would assist the accused. The evidence was sufficiently relevant. No specific "reconstruction" rule requiring equivalence to, substantial similarity with, or a faithful reproduction of, some earlier condition or event applied. The evidence was therefore admissible unless s 135 or s 137 applied. Putting aside the unduly long time during which the accused wore the balaclava, there was no unfair prejudice: the three impugned events took place very briefly; it was reasonably necessary for the case which the prosecution wished to advance for them to take place, and the conduct of prosecution counsel did not exceed those legitimate necessities; the events appeared to have generated evidence favourable to the accused in one respect, and defence counsel contended to the jury that they did so in more than one respect; and so far as they were prejudicial, the prejudice lay in their probative value. It is true that, as was submitted for the accused, the trial judge did not refer to s 137 (or, if it was relied on, s 135); nor perhaps did the trial judge analyse the issues coherently. But her decisions to allow the impugned events to take place were correct.

[249]

"[A]lthough I have said to you there is no visual identification in the ordinary sense of the word ... I am still bound to give you a direction which in effect is a special caution about identification evidence. > > I say to you at the outset that in the case of identification evidence the warning of a need for special caution before accepting of [sic] identification is one which is given in every case in which such evidence is disputed by the accused. It is not given because of any particular view which I may have formed concerning the reliability of - when I say that I am not really giving you this direction at the moment. I am telling you this is the sort of direction that is given in every case and the principal reason for it being given is because of the nature of this type of evidence and I will direct you now specifically that the type of evidence that you have heard in this case here which goes to the identification in the Crown case which is led for the purpose of or the foundation of its submission in the evidence is of such a type that you could safely act on it providing you are satisfied yourselves about the evidence and you accept the evidence. > > What I am endeavouring to say to you is that for this type of evidence that you have had before you it also calls for a special caution and as I say that is not because I formed any view concerning the reliability of the evidence in this case. In other words it is given universally in relation to any identification. There is universally given a special caution. Now what I am going to say to you is this, the weight to be given to that evidence is a matter for your decision, not mine, and I have nothing to do with that decision which you have to make. > > You should not interpret these directions as indicating any particular view which I may have formed one way or another. As I said you must approach this evidence with special caution. There are however a number of matters in this case which I propose to draw to your attention which are relevant to the reliability of the evidence that has been given and my direction is that you are bound to consider those matters in determining whether you will accept that evidence as reliable."

[257]

The relevant course of events before the summing up, then, was that prosecution counsel suggested a "resemblance warning" akin to an "identification warning", and raised the question of a s 165 warning; defence counsel asked for "the usual warnings" without saying what they were, and did not make any request for a s 165 warning. After the summing up, prosecution counsel reminded the trial judge of the need for a "resemblance warning" about what the eyewitnesses said about Exs M and O, but defence counsel twice indicated it was not necessary. Even though the trial judge said she would give it and did not, the failure of defence counsel to press for it after prosecution counsel raised the point, and thereafter to remind the trial judge of her failure to fulfil her promise that she would comply with prosecution counsel's request, disables counsel for the accused now from saying that the failure to give the two warnings which it is now said should have been given amounted to a miscarriage of justice. To examine witnesses by reference to the balaclava and overalls in the manner employed in this case, though permissible, is not a particularly common event. To ask the accused to don the items, walk before the jury and speak as requested is less common. On the other hand, the difficulties of drawing inferences from mass produced items are fairly obvious, and were stressed by counsel for the accused in address. The jury must have appreciated the diverse reactions of the eyewitnesses to the offender's clothing. Further, the events to which the two warnings which it is said should have been given related took up very small amounts of time - a miniscule fraction of the whole trial. Rather than asking for unspecified "usual warnings", it was incumbent on the defence, if it was thought the unusual nature of the events called for specific directions, to formulate the precise words of any direction sought and either read them to the judge at dictation speed or hand up a document containing them. What McHugh JA said of civil jury trial is true for criminal cases as well[222]:

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Evans v The Queen [2007] HCA 59 (13 December 2007)