Huynh v R [1999] WASCA 45

Criminal law - Obligation of prosecutor to act fairly

Respondent : Acting State Director of Public Prosecutions

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

1 KENNEDY J: I have had the opportunity of reading in draft the reasons to be published by Owen J. I agree that this appeal should be dismissed, generally for the reasons of Owen J.

2 The security films taken in the taxis, from which the photographs were obtained, were not of such quality as to permit their use for the purpose of directly identifying the appellant as one of the two offenders. They were properly left to the jury on the basis that the appearance of one of the two persons shown in the photographs was "consistent" with the appellant being one of the offenders and so formed part of the circumstantial evidence available to prove that the appellant had committed the crimes of which he was charged. Clearly, however, in the circumstances of the case, a warning by the trial Judge was required, particularly having regard to the manner in which the Crown opened the case by contending that some photographs showed the appellant "as clear as day". That was a claim which could not be sustained, and it was in fact a claim from which the prosecution later retreated.

3 In the end, in my view, the warning in the directions given by the learned trial Judge regarding the risk of mistaken identification was sufficient to avoid any possible miscarriage of justice on this account. The learned trial Judge directed the jury, as part of his warning:

"The Crown is not saying to you - and it would be very dangerous if they did, but they are not anyway - "Look at those photographs, that's the accused man"."

He also instructed the jury to be careful about the weight, if any, which they gave the photographs, saying that it is a dangerous thing to identify people from photographs unless you can see "as plain as day" that they are the same person.

4 It is perhaps useful also to re-emphasise the heavy responsibility which a Crown Prosecutor must bear. The role of a Crown Prosecutor was conveniently summarised by Young CJ in R v Bazley (1986) 21 A Crim R 19, at 29:

"The long tradition of prosecutors is that they should perform their task as ministers of justice rather than as advocates seeking a particular result. It is, of course, clearly their task to present the Crown case fairly and fearlessly but to present it in a detached way and not to appear to urge a conviction. Moreover, experience suggests that the fairer the prosecutor the more devastating so far as the defence is concerned. Juries have been known before now to react against over-zealous prosecutors."

5 These words were spoken in a very different context from that with which we are concerned, and it is to be emphasised that there is no suggestion that the prosecutor at the trial, who was not one of the counsel on the appeal, deliberately overstated the value of the photographs.

6 IPP J: I have read the reasons to be published by Owen J. I agree with them and his Honour's conclusions. I have nothing further to add.

7 OWEN J: This is an appeal against conviction. The appellant was convicted of various offences arising out of attacks on taxi drivers. Custodial sentences were imposed.

8 The appellant was convicted on 10 December 1998 after a trial by jury. The notice of appeal was not lodged until 4 February 1999. The appellant's application for an extension of time within which to lodge the notice of appeal was supported by an affidavit of Amanda Burrows sworn 5 February 1999. The explanation was satisfactory and the respondent did not object to the application. Accordingly, at the hearing the Court granted the extension of time and I need say no more about it.

9 On the night of 6 June 1998 two men of Asian extraction hailed a taxi being operated in Balga by a Mr Fairclough. They got into the back seat of the taxi and asked to be taken to Wanneroo Road. They then directed him to a street called Driver Road. At a point in the journey one of the men slipped a belt around the driver's neck and pulled it tight. The driver was able to stop the vehicle. The other man got into the front driver's seat and pushed Mr Fairclough away. He then tried to release the belt. The passengers threatened to kill him. The driver thought they wanted his money and gave it to them. He was struck in the face and the men then ran away after damaging the vehicle's instrument panel. I will refer to these events as "the first incident".

10 On the night of 8 June 1998 two men of Asian extraction hailed a taxi at the same street in Balga where the journey involved in the first incident had started. The taxi was being operated by a Mr Nikoloski. They got into the back seat and asked to be taken to Wanneroo Caravan Park. They then directed him to a street called Skeit Street. At a point in the journey one of the men slipped a belt around the driver's neck and pulled it tight. The driver struggled and one of the passengers stabbed him in the hand while the other punched him. They demanded money. The driver managed to get out of the vehicle. The passengers drove off in the vehicle. When the passengers took the vehicle a blue velvet bag containing the driver's mobile telephone and some fuel receipts was in it. No money was taken. The taxi was later found abandoned in a street in Northbridge. I will refer to these events as "the second incident".

11 Later that night (8 June 1998) two men of Asian extraction hailed a taxi in Northbridge, a couple of streets from the place where the taxi involved in the second incident had been abandoned. The taxi was being operated by a Mr Allmark. They got into the back seat and asked to be taken to the Wanneroo area. At a point in the journey one of the men slipped a belt around the driver's neck and pulled it tight. The driver lapsed into unconsciousness and the taxi struck a tree. When he regained consciousness the men were demanding money from him. They threatened him with a knife. He gave them all the money he had. They began to trash the taxi. A passer-by stopped and the men ran away. Police attended the scene and found a mobile telephone on the ground just outside the taxi. It was later identified as the telephone belonging to Mr Nikoloski and which had been in the taxi involved in the second incident. A belt was found in the back of the taxi. I will refer to the second of these events of 8 June 1998 as "the third incident".

12 Immediately following the third incident police conducted a search of the surrounding area. Not far from the place where the taxi had crashed the police located and arrested two men of Asian extraction. One was the appellant and another a man to whom I will refer as "Mr Le". When the police searched the appellant the blue velvet bag that had been in the taxi involved in the second incident fell from inside his jacket.

13 Later forensic tests revealed a fingerprint on the taxi involved in the second incident which matched Mr Le's fingerprint. They also revealed blood on the appellant's clothing that matched blood samples taken from the appellant. Tests of Mr Le's clothing revealed some of his own blood and some that matched samples taken from Mr Nikoloski, who was the driver involved in the second incident.

14 Following his arrest the appellant was interviewed about the events. He made a complete denial of any involvement in any of the incidents. He proffered an explanation as to why he was in the area. He had spent the evening at a friend's house. He had left with Mr Le in a vehicle but it had broken down. He and Mr Le walked down Wanneroo Road and then to the place where the police found them. The police officers took him to the location at which he said the car had been left but they were unable to find it. He also described how it was that he came to be in possession of the blue velvet bag. After he left the broken down car he found the bag by the side of the road. He picked the bag up thinking it might contain money but it did not.

15 None of the taxi drivers was able to identify his attackers but in each case the vehicle was equipped with a security camera which took photographs of the passengers. In relation to the first incident the photograph actually depicted a passenger in the act of strangling the driver with a belt.

16 The appellant and Mr Le were charged with a series of offences arising out of the three incidents. From the first incident they were charged with one count of stealing with actual violence while in company and one count of criminal damage. As a result of the second incident they were charged with one count of attempted stealing with violence while armed and in company, one count of stealing a motor vehicle and one count of unlawful wounding. The third incident had the consequence of them being charged with one count of stealing with violence while armed and one count of criminal damage.

17 While it was not, of course, before the jury I should say for sake of completeness that Mr Le pleaded guilty to the offences. The appellant pleaded not guilty to all charges and stood his trial before a jury. He did not give evidence at the trial and no witnesses were called on his behalf. The jury returned verdicts of guilty on each of the seven counts.

The Use of the Security Photographs at the Trial

18 The way in which the photographs taken by the security cameras installed in the taxis were used at the trial is at the heart of this appeal. The appellant has raised concerns about the Crown Prosecutor's reference to the photographs in the opening and the course that the trial took in that regard.

19 In her opening remarks the Prosecutor described the security camera system in taxis. When she was describing the first incident the Prosecutor said:

"The system isn't perfect. Sometimes the system doesn't work. Sometimes the photos aren't clear. Some of the photographs you will see during this trial will not be clear. Some of them were taken before the attack even began. But there are some photographs that show the older man, the man with the moustache, sitting behind the driver, Kim Fairclough, and that man was [Mr Le]. There are some photos that show, as clear as day, [the appellant], and show him strangling Mr Fairclough."

20 In relation to the second incident the Prosecutor said: "... photographs .. show as clear as day [Mr Le] in the back seat and [the appellant] sitting next to him". So far as concerns the third incident, this comment was made: "... [the] photographs ... again, as clear as day, [show Mr Le] behind the driver and [the appellant] sitting on the other side".

21 Each of the taxi drivers gave evidence which included a description of the attackers. However, none of them identified the appellant as one of the attackers and there was nothing in that evidence that was relied on as identification in the classic sense.

22 At the close of the Crown case counsel for the appellant submitted that there was no case to answer. The submission was rejected. Its importance is that in opposing the no case submission the Prosecutor resiled somewhat from the bald statement that the photographs depicted "as clear as day" the appellant as one of the attackers. It was, the Prosecutor said, a case based on circumstantial evidence and "it is not the case that the jury needs to be satisfied beyond reasonable doubt that the [appellant] is the man in those security photographs and if they're not the rest of the evidence falls away". In other words the photographs were not direct evidence of identification in the classic sense. Rather, they were "strands in the cable" making up the circumstantial case contended for by the Crown. In an exchange with defence counsel in the absence of the jury and which, I think, forms part of the ruling on the no case submission , the learned trial Judge put it this way:

"... this is a case of circumstantial evidence pure and similar [sic]. The photo is there and it is not, as I understand it, alleged by the Crown that they can look at that photo and say, 'This is the accused person'. The reverse is true. They can look at the photo, as I understand the crown contention, and say, 'With all the evidence you have got in the case and looking at the photograph its certainly not inconsistent with it being this person'. In other words it is the reverse. The photograph is consistent with the accused. It is not inconsistent with him, but that is just part of the whole mass of evidence...."

23 Although the addresses of counsel were not included in the Appeal Book I understand that both counsel spoke to the jury in similar terms.

24 In his summing up the trial Judge told the jury that the Crown case was a circumstantial one. He explained a circumstantial case as one "made up of a number of strands, as it were, in a rope". In that context he dealt specifically with the photographs. His Honour said:

"There has been reference made to the photographs by both counsel in this case. They are only one aspect of the evidence in this case and I must tell you that the crown is not saying that you identify the accused man from these photographs at all. ... The crown is not saying to you... and it would be very dangerous if they did but they are not anyway - look at those photographs; that's the accused man.

You can have a close look at the photographs eventually but it would be dangerous, from the quality of those photographs, to say that he is the accused man. The crown says: with all the other evidence those photographs add to our case but we don't rely solely on those at all. They add to it to the degree that they certainly don't show a different person - for example, a person with a moustache. They show a person who is consistent with the accused man in this case - in those photographs - so to that degree they are not inconsistent and they add to this rope that I have just mentioned.

So be careful of the weight, if any, you give to those photographs. It is a dangerous thing to identify people from photographs unless you can see as plain as day that they are the same person. That is always a matter for you."

25 His Honour then gave a full direction on the treatment of circumstantial evidence. I do not understand the appellant to take any objection to that aspect of his Honour's remarks. Later in the summing up the trial Judge returned to the issue of security photographs and delivered a full warning along the lines required by cases such as Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. Once again, the appellant does not now suggest that there was anything inadequate or incorrect in the text of those comments and I do not think I need to set them out. It will be sufficient to say that his Honour suggested that the jury not place too much reliance on the photographs, that they not rely solely on them and to the extent that they used them at all, to take care.

26 When the jury had retired counsel for the appellant raised the matter with the trial Judge again. He said that it was wrong to categorise the case as solely a circumstantial one and that the photographs were in effect direct evidence. His Honour responded by pointing out that he had not told the jury that the case was "purely and simply" circumstantial. This exchange then occurred between the trial Judge and defence counsel:

"Judge: ...I thought I went a bit too far in downgrading the importance of the photographs ... I think I told them not to try and draw any conclusions from the photographs, other than that the crown suggested that it was not obvious that it was not the accused. I thought I went a bit too far to be honest.

Counsel: Yes. I think where we differ from either end of the bar table is that I take the view that if they are not satisfied beyond a reasonable doubt that the man in the dock is the man in the photo, then the other evidence doesn't get them anywhere.

Judge: That's when you get to the circumstantial evidence, you see. I think it's a question of emphasis. Did you want to say any more about that.

Counsel: No, I just wanted to make my position clear on that.

Judge: ... I agree with you that the photos are dangerous. ... I am quite happy they got the message from my direction that they were not to convict on those photographs and that the crown didn't even want them to and that is why I said when I said it, 'It's my understanding that the crown doesn't want you to', ...."

27 The matter was left on that basis. The trial Judge was disinclined to, as he put it, do anything by way of clearing it up. Although defence counsel had raised the matter, no further direction was given to the jury about the use it could make of the photographs.

28 There are three grounds of appeal and they all relate to the security photographs in one way or another. They are:

"1. The learned trial Judge erred in law in that he directed the Jury that the Crown case was a circumstantial case in which one of the circumstances relied upon by the Crown was a series of photographs taken by automatic cameras installed in taxis, each photograph said by the Crown to depict and identify the Appellant and an accomplice.

2. The learned trial Judge erred in law in that he failed to direct the Jury that there was no direct evidence to the effect that the man depicted in the said photographs said by the Crown to be the Appellant was in fact the Appellant, that is, that there was no evidence of identification of the Appellant as being the man who was said by the Crown to have attacked the Complainants.

(a) in that he told the Jury that the Crown was not asking the Jury to identify the Appellant by reference to the said photographs, when that was clearly what the learned Prosecutor, in her open speech to the Jury, had invited the Jury to do, and

(b) in doing so the learned trial Judge allowed the Crown to depart from its case against the appellant as opened by the learned Prosecutor."

29 I can deal with the third ground of appeal in relatively short order. The purpose of the opening is for the prosecutor to give an outline of the salient features of the case and the nature of the evidence that the Crown proposes to call in support of it. It has often been said that a prosecutor should regard himself or herself as a minister of justice rather than an advocate and should avoid inflammatory language.

30 However, I am not sure that there is any rule of law or practice that prevents the Crown from putting to the jury a case for conviction that is somewhat different from that alluded to in the opening address. Each case has to be assessed on its merits and it would depend on the nature and materiality of the departure. It is a truism that the case which the jury has to consider is that which is established by the evidence, not by the opening. To take an example, it cannot be the case that because a Crown witness has not "come up to proof" the prosecution must fail because what remains differs from the way it was put in opening. Of course, a departure from the opening may be the subject of comment at the appropriate time. There will also be occasions on which the trial judge is obliged to hold the Crown to the case it said in opening that it intended to advance. An example of this can be seen in Falconer-Atlee v R (1973) 58 Cr App Rep 348 at 355-57 where Roskill LJ described the departure from the opening as being "tantamount ... to adding a second count to the indictment in the middle of the trial". I think it all depends on whether the trial judge forms the view that there would be a real prejudice to the right of the accused to a fair trial or it would otherwise be contrary to the proper administration of justice to permit the prosecution to change tack. Much will depend on the materiality of the departure and the effect it would have on the ability of the accused to put his or her defence squarely to the jury.

31 In this case it might have been better had the Prosecutor avoided the gratuitous comment that the photographs depicted the appellant "as clear as day". But I have difficulty in seeing how the departure (as the grounds of appeal describe it) could materially have affected the defence case. By the time counsel came to make the no case submission and (subject to what I have to say about the remaining grounds of appeal) for the remainder of the trial, the relevance and importance of the photographs was clear. They were not being used themselves to establish the identity of the appellant as one of the attackers. They were part of the entire factual matrix by which the Crown sought to convince the jury that there was sufficient evidence on which they should be satisfied to the required standard of the appellant's guilt.

32 I cannot see how the appellant was prejudiced by the "departure". In this respect the evidence simply did not support the comment that the Prosecutor made in opening. It was always the appellant's case at trial that he was not involved in any of the incidents in any way. He did not enter any of the taxis concerned. He was not the person depicted in the photographs. He did not attack any of the drivers. It is difficult to see how the approach of counsel for the appellant to the cross-examination of Crown witnesses or the appellant's own case would have changed if the proposed use of the photographs had been described in opening in the way that it was at the time of the no case submission and later in the trial.

The Photographs as Direct or Circumstantial Evidence

34 It is convenient to deal with the first and second grounds of appeal together. In some ways I think the concentration on whether the photographs were "direct" or "circumstantial" evidence is misleading. The real issue is not the characterisation of the evidence but the use to which it could legitimately be put by the jury in its fact finding processes.

35 As defence counsel said in the exchange with the trial Judge that I have set out above the photographs did constitute, at least in some sense, direct evidence. I think the trial Judge recognised this when he decried the suggestion that he had told the jury that the Crown case was "purely and simply a circumstantial one". The photographs were direct evidence to the extent, for instance, that they depicted the application of violence which was one of the elements of the offence of stealing with actual violence while in company arising from the first incident. They might also be regarded as direct evidence to the extent that they went to establish that the same two men (whoever they may have been) were involved in the three incidents.

36 Where the evidence was not "direct" was as identification evidence in the classic sense. This was not a case in which the jury was being asked to accept the evidence of a witness who had been present at the commission of an offence and who, by reason of the accused being personally known to the witness or by use of a line up, photoboard, dock identification or the like purported to say that the accused was the person who perpetrated the crime. The evidence was to be used for a more limited purpose and that emerges from the extracts from the trial Judge' s summing up to which I have already referred.

37 In my view there are two critical points that emerge. The first is whether the trial Judge might have left the jury with the impression that it could convict on the evidence of the photographs alone. The second point is neatly summarised in what defence counsel described as the difference "from either end of the bar table". I think the position contended for by the appellant is that regardless of what other evidence might have existed the jury could not convict unless it was satisfied beyond reasonable doubt that "the man in the dock is the man in the photo". I will deal with each in turn.

38 It is always important to look at a trial judge's summing up as a whole. A wrong impression can easily emerge from individual phrases or sentences taken out of context. This is a case in point. The last two sentences that appear on p324 of the Appeal Book could give the impression that the trial Judge was leaving with the jury the possibility that it could use the photographs as establishing the identity of the accused and thus going directly to his guilt. He said: "It is a dangerous thing to identify people from photographs unless you can see as plain as day that they are the same person. That is always a matter for you". But those sentences should not be divorced from their context. A little earlier in the same general passage his Honour had told the jury that the "Crown is not saying that you identify the accused from these photographs at all". His Honour then moved on to caution about the danger (because of the quality) of relying on the photographs to say that the person depicted was the appellant and to outline how they could properly be used, namely as showing a person consistent with (or not inconsistent with) the appellant. In this context, his Honour said "they add to this rope that I have mentioned". Then, in the sentence immediately preceding the two sentences that I have mentioned as raising a possible area of confusion, his Honour said: "So be careful about the weight, if any, that you give those photographs".

39 This is the context in which the impugned sentences appear. In my view, when properly understood in that context, they are unobjectionable. The sentence containing the words "as plain as day" is simply a reiteration of the danger of relying on the photographs. The comment that it is a matter for the jury goes, I think, to the weight which it was to give to that evidence as part of the "rope" to which reference had been made. I believe that further support for this interpretation of what was said comes from the tenor of the remarks the trial Judge made when he delivered what I have referred to as the Domican warning: see Appeal Book p350.

40 It may seem strange that a Domican warning was given at all if it was not an identification case, properly so called. I believe that in the circumstances of this case the inclusion of such a warning was prudent. There were elements in this aspect of the evidence that had some of the peculiarities of identification. In that respect the warnings that the courts have consistently given over the last century or so of the dangers of this type of evidence and the role of the trial judge in minimising those dangers were applicable. There are occasions in which the circumstances are so similar to identification cases that a warning of some type needs to be given: see, for example, R v Golightly (1997) 17 WAR 401 at 417-18. In my view, even to the limited extent that the photographs were to be used as part of the circumstantial case (namely as depicting a person consistent with the appellant) a warning of the type was called for.

41 I have considered the similarity of the wording used by the Crown Prosecutor in opening (that the photographs depicted the appellant "as clear as day") with that used by the trial Judge ("as plain as day") in the first of the impugned sentences. But events had moved on since the opening and I do not believe there is any real possibility that the jury would have made a connection between the two statements so as to have been misled . In the context of the case overall, I do not think the jury would have been left in any doubt as to the true nature of the intellectual exercise it was called on to make in relation to the photographs.

42 That brings me to the second of the critical factors raised in this aspect of the appeal. In Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 the High Court made it clear that in a case resting on circumstantial evidence a jury can draw an inference of guilt even though not every fact or item of evidence is established beyond reasonable doubt. However, proof beyond reasonable doubt is required for any fact that is an "indispensable intermediate step" in the process leading to the ultimate conclusion. I do not believe that the evidence represented by the photographs fall into that category. The trial Judge gave clear instructions to the jury that the essential relevance of the photographs was to demonstrate consistency rather than as direct evidence of identification in the classic sense. This being so, I do not think it is correct to say that unless the jury could be satisfied beyond reasonable doubt that "the man in the dock was the man in the photos" the rest of the evidence would fall away. In my view the depiction of the person in the photographs fell to be considered along with all of the other evidence adduced as part of the circumstantial case. It must inevitably have satisfied the jury that the man depicted in the photographs was the appellant because that is the tenor of the verdict. But this is the end process of the reasoning, not a discrete step along the path to the ultimate conclusion.

43 I am not persuaded that the trial Judge erred either in the way he described the Crown case as circumstantial, with one aspect of the circumstances being the existence of the security photographs, or in failing to tell the jury that there was no direct evidence of identification. Accordingly, neither of the first two grounds of appeal have been made out.

44 This is not a case in which the grounds of appeal allege that the verdict of the jury was unsafe or unsatisfactory. The challenge lies in the discrete issues that have been canvassed. It is not necessary, therefore, to consider as a separate issue whether, based on all of the material advanced by the Crown (including the photographs), it was reasonably open to the jury to reach the conclusion that it did.