HORSMAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 190 (12 September 2008)

HORSMAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 190 (12 September 2008) - WASCA 2008 case summary — Zoe

[22]

Members of the jury, this is an identification case, and because issues of identification are difficult, there's something I want to say about that before I generally summarise the evidence. The state says to you that its witnesses, and this is Nolan, Moffat, Green and Davies, have correctly identified the accused, and the accused says they're mistaken. The law is, members of the jury, that there is a special need for you to be cautious before you convict an accused in reliance upon the correctness of the identification of the accused by witnesses who do not know the accused.

Now, there are very good reasons for that rule. It exists, members of the jury, because there is a special risk that identification evidence may lead to a wrongful conviction. It's the experience of judges and lawyers that mistakes in identification do occur. Those mistakes occur not infrequently, and despite the mistake being honest and the witness being very careful, innocent people have been convicted based on faulty identification.

If a witness honestly believes that their identification of an accused person is correct, that witness can be very convincing when giving evidence even though they may be mistaken, and again that has been the experience of judges and lawyers. It's also our experience that more than one witness can be mistaken in their identification of an accused person.

So, members of the jury, you should examine closely the circumstances in which each witness saw the offender and the circumstances in which that witness later made the identification of the accused. For instance, you will consider how long did the witness see the person who committed the offence for, at what distance and in what light? Were there any obstructions or distractions to the witness's observations? Did the witness see the offender face to face or at an angle? Were there any distinguishing features about the offender that the witness noticed; height, complexion, hair, clothing et cetera, or was there anything unusual or distinctive about the offender's appearance?

You may also consider how long was it between the original observation and the subsequent identification to the police; that's another matter you may wish to consider when assessing the identification evidence. In respect of Ms Green, you will note from the evidence that it was some four weeks between the original observation and subsequent identification, and Ms Davies I think it's about five and a half weeks.

There is no evidence before you that anybody who did a digiboard identification had previously seen the composite picture in The West Australian newspaper which might somehow influence them; but that apart, the other matters to which I have referred might falsely enhance a person's belief in the reliability of their identification.

In this case, members of the jury, you will recall there was photo identification evidence given by Davies and Green. There was no direct evidence as to how the police came to have a photograph of the accused person, Mr Horsman. As I have told you, you must not speculate about matters that are not in evidence. There may be any number of reasons why the police may have a photograph of a person or access to such a photograph and that may be for an entirely innocent purpose so don't speculate about why the police may have had a photograph.

Photo identification evidence does have some limitations and like any other identification evidence has to be examined carefully. A photograph is two-dimensional; it's static, it's limited. It doesn't depict a manner of moving, posture, variety of facial expressions; it doesn't depict often as not complexion, body size, body shape, colouring, nor many of the other subtle characteristics that an actual sighting may convey to the mind.

The danger is that a photograph of a person may resemble the suspect in the recollection of a witness who saw the suspect only once and so lead to a false identification. Members of the jury, you will no doubt ask yourselves whether there were any material discrepancies between the description that the witness gave to the police, and in court, and the accused's actual appearance (ts 289 - 291).

[25]

The state submits to you that there are striking similarities between the evidence of each of the alleged offences. Similarities that the state points to are: firstly, that the offences all occurred in the same general geographical area; they all occur at or about the same time, within a month or so; that each offence involved an offender exposing his penis; and all of the witnesses identified the accused, Mr Horsman.

There are several things I want to say to you about that submission. The first thing is that you must be satisfied beyond reasonable doubt that Mr Horsman has committed an offence with which he has been charged before you can use the facts of that charge in considering whether he is guilty of the other charges; secondly, if you're satisfied beyond reasonable doubt that he has committed an offence with which he has been charged, in considering the alleged similarities of that offence with those on another count that you're considering you should look to see whether the similarities are so striking or of such a clear underlying unity as to make coincidence a very unlikely explanation and whether similarities indicate that the same person was responsible for the alleged offence you're considering.

Thirdly, members of the jury, you can only use the evidence of the alleged similarities to support the state's case on a charge in this way if you are satisfied beyond reasonable doubt that the similarities exist because the accused, Mr Horsman, committed that offence and has put his stamp on that offence by those similarities; fourthly, in deciding whether Mr Horsman has put his stamp on the offence in the way that I have described, you should also consider any dissimilarities between the way in which the alleged offences were committed.

Finally, if you are satisfied beyond reasonable doubt that Mr Horsman has committed one offence, you must not use a process of reasoning that he is a person of bad character or that he is the type of person who would commit the offence. You must decide each charge on the evidence and not on any assessment of his character because you have concluded that he is guilty of one offence.

So you can't convict Mr Horsman on any charge unless you are satisfied beyond reasonable doubt from the evidence that he [is] guilty of that offence. Then, members of the jury, having considered all of the evidence you may then find Mr Horsman guilty of all the charges, or you may find him not guilty of all the charges. You may find him guilty of some and not guilty of others. They're matters for you to determine on the evidence.

The one thing you mustn't do though is to draw any inference against Mr Horsman or make any conclusions against him or be prejudiced against him because there is more than one charge. It's the state that has decided to charge him with these four charges and your duty in respect of each charge is to consider the evidence relevant to that charge and on the basis of that evidence determine whether the verdict is guilty or not guilty (ts 284 - 285).

[53]

(See also Heydon [21135] - [21150].)

When assessing the risk of an unfair trial for the purposes of this hypothetical comparison, the court will take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. It is important to bear in mind in this respect that, when propensity evidence is admissible as such because it meets the requirements for the admission of evidence of that kind, a standard propensity warning will not be required: Noto [27]. In KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, McHugh J said (235):

If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning ... And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment. (emphasis in original)

Of course, that does not necessarily mean that, in a case in which propensity evidence is admissible as such, no warning of any kind is required. Whether a warning is required and, if so, the terms of that warning, will depend upon the circumstances of the individual case. It is important to have regard for the purpose for which the evidence is admitted and to tailor the directions accordingly: Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [77] (McHugh & Hayne JJ). It is also important to bear in mind what was said by Kirby J in BRS (330) as follows:

It is ... necessary to remind oneself that a judge's direction to a jury must be considered in the context of the entire trial and in the light of the issues litigated and the submissions made. This Court should exercise restraint before adding to the catalogue of warnings required of judges conducting criminal trials. If overlooked, or considered unnecessary in a particular trial, they may simply give rise to unmeritorious appeals. But, in certain fundamental matters, the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice. The risk must be a real, and not a fanciful one to attract the intervention of an appellate court. It is not enough that a conclusion is reached that a particular warning would have been desirable. It must be shown to have been necessary in order to avoid the risk of a miscarriage of justice. (footnotes omitted)

Having identified the probative value of the evidence and the degree of risk of an unfair trial, the court must turn its attention to the conclusion that fair-minded people would draw from a comparison of the two. These fair-minded people are presumably reasonable members of the general public who are not lawyers: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (Unreported, NSWCA, 27 November 1990) (20), cited in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 419; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J). However, the legislature must be taken to have assumed that such people would have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson [53] (Kirby J).

The comparison that these fair-minded people are to be assumed to have undertaken is problematic. As McHugh J pointed out in Pfennig (528), 'prejudicial effect [or, I would suggest, the degree of risk of an unfair trial] and probative value are incommensurables' that have 'no standard of comparison'. It is not easy to compare the probative value of the evidence with the degree of risk to the fairness of the trial that is brought about by its introduction. That risk arises because the jury might use the evidence in an impermissible way. In a case in which the evidence is led for its propensity value (for example, as identification evidence), the risk of unfairness might increase proportionately with the probative value of the propensity evidence. In effect, the test provided by subs 2(b) requires an assessment to be made whether fair-minded people would think that the interests of justice require the admission of the evidence despite the risk: cp the similar comments made by McHugh J in Pfennig (528) in respect of his statement of the position under the common law [62] - [67].

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Judgment (77 paragraphs)

HORSMAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 190 (12 September 2008)

Legislation Cited (1)

Cases Cited (11)