Ith v R

We agree, with respect, with that analysis of Lee J. We are not persuaded that those responsible for the drafting of section 102 of the Evidence Act intended simply to abrogate the principles thus explained. The evidence is not tendered as evidence relevant only to a witness's credibility because it is tendered pursuant to the Crown's duty of fairness to the accused to lay out before the jury the status of the witness without that status being dragged out in cross-examination in a manner which might not be favourable to the interests of the accused. Section 9(1) provides that the Act does not affect the operation of a principle or rule of common law in relation to evidence except in so far as the Act provides otherwise expressly or by necessary implication. Section 102 does not provide otherwise. There are other forms of evidence in chief which might, on one approach, be said to relate to credibility, while not being excluded by s 102. It is customary to obtain the address and occupation of witnesses at the start of the examination in chief. Strictly speaking the address and occupation of a particular witness at the time of the trial is irrelevant to any issue, though either an address or an occupation at the time of the events in issue can be. The evidence is received simply in order to locate the witness in society. Similarly, the qualifications of an expert do not go to an issue, and, if there is no objection to the witness's expertise, can only be relevant to the reliability of the opinions or other evidence to which the witness testifies. Yet s 102 cannot be construed to render that kind of evidence inadmissible when for centuries it has been admissible. We reject, therefore, the proposition basal to paragraph (a), as did this Court in R v Gonzales-Betes [2001] NSWCCA 226.

Even had we been persuaded to the contrary view, we would have held that there had been, in substance, no miscarriage of justice. First, it seems to us that counsel at trial for the appellant could not have been denied the opportunity of cross-examining Chan about the matters of which we have earlier spoken: see section 103 of the Evidence Act. Secondly, had the Crown not led the particular evidence from Chan, and had that evidence thereafter been elicited in cross-examination, the practical position at trial would have been, in our opinion, substantially the same as the practical position achieved in fact. Thirdly, had the relevant material about the witness Chan been led neither in-chief nor in cross-examination, then the jury would have been called upon to consider Chan's reliability upon an incomplete and misleading basis. It is sometimes not possible to avoid such a result, because of some countervailing, or other, legal requirement. But such a misleading presentation of a witness such as Chan is, obviously we would have thought, to be avoided if that can possibly be done. In the present matter it could be done; and was, in our opinion, properly and correctly done. Fourthly, counsel appearing for Chen at the trial did not object to the tender of the written undertaking. The transcript for 18 October 2000 records that it was admitted without objection. This attracts the operation of rule 4 of the Criminal Appeal Rules, requiring leave for the moment to be taken. There is no reason whatever why leave should be given. In the submissions appearing under this ground was a submission that the trial judge did not direct the jury that a plea of guilty by Chan was not evidence against the appellant, and that this failure was a material non-direction. No argument was developed in relation to this point, and it is rejected." (emphasis added) 39To my mind the matter is of no significance. Dharma gave evidence in which he admitted his part in the crime and identified the applicant as his co-offender. Whether or not there was evidence of the entry of a formal plea of guilty seems to me to be of little relevance. The fact of the matter was that Dharma admitted committing the offence. In any event, knowledge that Dharma had pleaded guilty provided the jury with complete knowledge of matters which may have affected the reliability of this evidence. Moreover, the plea was an acceptance of the truth of the allegations in the charge. It was a statement concerning an issue in the trial, namely, whether Dharma was indeed alone or had committed the offence in the company of the appellant. The mere fact that it was made in the form of a plea did not change this characteristic. It was therefore, in the circumstances, admissible as part of the material that the jury was entitled to take into account in considering whether to accept the evidence he gave in the trial that exculpated the applicant or to rely on his former statements about the matter. 40I would reject these grounds of appeal.

Ground 2

41Photo identification evidence was tendered at the trial without objection. The complainant said that the person in the photograph "looked like" his attacker. The evidence was admitted as "circumstantial identification evidence: R v Adams [2004] NSWCCA 279 at [18] Dunford J, with whom Adams and Howie JJ were in agreement; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [56]. A later application to have the evidence withdrawn from the jury was rejected by the trial judge. 42The utility of the photo identification was diminished by the fact that in the photograph the applicant appeared to have dark or heavily tanned skin which was not consistent with the complainant's recollection. He thought his attacker had "lighter skin." Although there was no evidence to this effect, when addressing the jury the trial advocate attempted to deal with this issue by submitting that the applicant appeared to have tanned himself between the date of the offence on 7 February and the taking of the photograph on 11 April. 43The applicant correctly points out that there was no evidentiary basis for the making of this submission. However, no objection was taken to the submission and defence counsel did not ask for it to be withdrawn or for the judge to give any direction in relation to it. In fact, defence counsel sought to draw upon the complainant's evidence that the photograph "looked like someone I have seen before" to assert that it was consistent with the complainant having seen the applicant in the hotel in the early hours of that morning rather than his having seen him as his assailant. 44To my mind, this ground of appeal has no merit. The comment by the trial advocate should not have been made. However, it was of such little consequence that, in the absence of the matter being raised at the trial, I would refuse leave under rule 4 of the Criminal Appeal Rules to raise this ground of appeal.

Ground 1(a) 45Ground 1(a) raises issues in relation to the directions given by the trial judge with respect to the identification evidence. There was no objection taken in the terms now raised to the directions given at the trial. 46In his summing-up, the trial judge commenced dealing with the question of identification by saying to the jury "members of the jury the next important direction of law I give you concerns the question of what is known as identification evidence." His Honour then read passages from the evidence of the complainant in which he described his recollection of the person who had attacked him. The trial judge then gave the following directions: "Members of the jury the accused does not have to prove to you that he was not involved in the assault and robbery on Mr Nguyen. The Crown has to prove that he was, and the question for you is whether the Crown has proved that he was, and proved it beyond a reasonable doubt. Members of the jury in relation to the evidence of visual identification by Mr Nguyen and the voices he heard I give you the following directions. We have all had experience in everyday life of mistakes being made in the identification of a person. You may have yourselves made a mistake in recognising someone you saw in the street, at a party or some other social occasion. Although generally speaking no two people are the same, people are often alike and certainly people have common features. A description of a person, particularly if it is relatively general, can easily apply to more than one person. Just as mistaken identification occurs in general everyday activity, so too wrongful identification evidence is sometimes given in courts and there are cases where people have been wrongly convicted because of mistakes in identification. Of course the consequences of a wrong identification, particularly in a criminal matter, can be very serious indeed. False identification can occur even when the witness is being honest, as appears to be the case of Mr Nguyen who gave evidence before you. This is because identification to be of value has to be reliable, that is it has to be accurate and it is notorious that people, who otherwise might be reliable as witnesses can be very unreliable when it comes to identifying a person they have seen on a specific occasion in specific circumstances. One difficulty with this type of evidence is that identification evidence given by a respectable, honest and sensible witness may be very persuasive, even though this witness is wholly mistaken. Further, two or more witnesses can be just as mistaken as one. Because of the serious risk of unreliability of this type of evidence and the real possibility of mistakes being made in the visual identification there is a special need for caution before accepting identification evidence as the basis upon which you can convict the accused. Identification evidence should always be examined very carefully, bearing in mind that mistakes have happened from time to time and that the identifying witnesses, in this case Mr Nguyen, might be mistaken even though he may sincerely believe that he is correct. You must not think that I am saying identification evidence is always wrong or that you cannot rely upon it in this case, but I do direct you that before finding the accused guilty simply on the basis of evidence of visual identification and verbal identification, you must be very cautious and look closely at the evidence to see whether it is in fact reliable. Members of the jury generally speaking there are two aspects of the identification process. The first is the observation stage. This is where the identifying witness sees the person he or she later identifies. The second stage is the recognition stage when a witness identifies the person he or she has seen on an earlier occasion. Each of these two aspects need to be considered when determining whether to accept the evidence and each can have its own peculiar difficulties. In respect of the observation stage you must consider the circumstances in which the witness saw the person who is later recognised, that witness being Mr Nguyen on this occasion. You should take into account such matters as would be likely to affect the ability of Mr Nguyen to observe the person later identified. First you would obviously take into account that the assailants were strangers to Mr Nguyen and he had no knowledge of them before that night. You should also consider the time Mr Nguyen had the assailants under observation and the circumstances at the particular time, including the fact that this all occurred at night time, and Mr Nguyen told you of his fear. You should also take into account how much time Mr Nguyen had to view his alleged attackers and whether there were special reasons for observing or identifying or for not observing or identifying. For example, unusual features or circumstances of the occasion for observing the person, or unusual features of the person being identified such as distinctive or unusual marks, clothing or actions. The mental state of the witness, of Mr Nguyen in this particular case, at the time of the observation is also important. For example was Mr Nguyen under stress or did he have time for a long calm look at the person or persons? Mr Nguyen also told you that after being assaulted the first time his eyesight was a bit blurry. The next stage of identification evidence is the recognition or identifying stage. Having observed the person there comes a later point when the identifying witness indicates who the person was he or she had observed previously. The two matters of importance here are, firstly, the time between the observation and the identification, and secondly, the circumstances and witnesses of the identification or recognition process. You have to consider the effects of the delay between the observation and the recognition upon the retention of the mental picture of the robber or robbers held by Mr Nguyen. In this case the recognition process was undertaken by using a photograph board some three months later. Identification from photographs has the difficulty that the identifier has not seen the whole of the person as a three dimensional human body. As you would be aware, photographs very often do not do justice to the way a person looks. A photograph can distort features, particularly colouring of skin, eyes and hair and you remember the evidence of Mr Nguyen that I mentioned earlier, that he picked out the photo of the accused but he said he was "not sure". Members of the jury in the case of the voices heard by Mr Nguyen in the street as he ran you must bear in mind that in the hotel there was not much conversation between Mr Nguyen and Mr Dharma in company with the accused. It was brief. Just a few words were spoken as Mr Nguyen played the poker machines. There is no evidence of any direct conversation between the accused and Mr Nguyen. Mr Nguyen told you that he recognised the voice of the man with the short hair while he was being kicked lying on the ground as that of the man who said "you want to fight or not" after Mr Nguyen left the club and was walking along the street. Mr Nguyen told you that this person when kicking him said "why do you lie" and he recognised the voice. You should also bear in mind that at the time Mr Nguyen heard the voices in the street he was in a state of fear for his safety. You should also bear in mind that the assailants may have been trying to disguise their voices. These are matters you should consider carefully when determining whether the person who called out to the complainant, Mr Nguyen, was the accused. Members of the jury you will remember the evidence of the complainant of the robbery, Mr Nguyen. During the course of his evidence, he was shown some CCTV footage of the poker machine room in the Cabramatta Hotel and the persons in that room whom he identified as a man with his hair tied back and another as a man with the short black hair. It was the first time that Mr Nguyen has seen that CCTV footage. At one stage in his evidence Mr Nguyen pointed to the accused in court and said he was the man who had attacked him. Members of the jury you might think that Mr Nguyen, if he was going to point to anybody, would point to the accused. Members of the jury identification is a very live issue in this case as I have said. You will remember the evidence that Mr Nguyen saw the photo board some three months after the robbery and he said he was "not sure". In these circumstances members of the jury you should give the evidence of Mr Nguyen as to what he said about the accused in the witness box and the dock the weight you consider it deserves along with all the other evidence you have before you and remember the directions of law that I have just given you about the need to be cautious in relation to identification evidence, (emphases added) 47The applicant complained that the trial judge failed to include an additional sentence from the model direction in the Bench Book in relation to identification evidence. That sentence reads as follows: "You must give consideration to each of these matters. Any one of those circumstances may possibly lead to error." 48To my mind the submission is without merit. This Court has previously commented on the fact that the Bench Book, although prepared with great care, should not be relied upon as a complete and authoritative statement of the law. The fact that a trial judge does not direct in the precise terms provided by the Bench Book is not indicative of legal error. It is necessary to consider the directions which were actually given at the trial and determine, in the context of that trial, whether or not they were appropriate: Hong v The Queen (2009) NSWCCA 242. 49The applicant further submitted that the jury should have been given a more significant warning in relation to the process by which the applicant was identified by the complainant in the court room. When shown CCTV footage the complainant first identified the applicant as being the man with the "short black hair" who was inside the Cabramatta Inn. When he made this statement he was not wearing his glasses, which he apparently needed in order to see the CCTV footage on the screen. When he was given his glasses he again identified the applicant on the CCTV footage. This sequence of events would have been observed by the jury. When the complainant was cross-examined it was suggested to him that he was mistaken in his identification of the man in the dock as his attacker. 50In the written submissions counsel for the applicant accepted that no complaint was made at the trial about the directions in relation to identification of the applicant in the dock. There is some reference to this issue in the transcript when defence counsel submitted that the identification by the complainant of the person with the short hair as being "the man in the dock" should be the subject of a particular warning. 51The passages highlighted in the extract from the trial judge's directions which I have set out above were identified by the respondent in its submission to this Court. I am satisfied that the trial judge dealt with the issue of dock identification (see Stanley v The Queen [2004] NSWCCA 278) and provided a warning in appropriate terms: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. 52Although the trial judge did not give any express warning to the jury regarding the potential unreliability of "in court identification", the directions included the statement that "you might think that Mr Nguyen, if he was going to point to anybody, would point to the accused." The implication was plain - the judge was telling the jury they should place little or no weight on such an identification. 53The trial judge's directions in relation to identification were otherwise comprehensive and drew to the jury's attention any matter of significance arising in relation to the issue. The jury were reminded of the need for caution in relation to identification evidence and were assisted in identifying the problems to which it can give rise. There being no issue at the trial in relation to the matters now raised by the applicant, I would also refuse leave to raise this ground of appeal.

Ground 1(b) 54The applicant's submissions in relation to this ground of appeal are not altogether clear. As I understand them the applicant first complains that when directing the jury in relation to Dharma's evidence, although the direction generally accorded with the relevant direction in the Bench Book, his Honour ended by saying: "However, it is open to you, having exercised the necessary degree of caution, to accept the evidence contained in the earlier statements in preference to the evidence given by [Dharma] in the trial." 55It was submitted that this direction constituted more than a warning that the evidence may be unreliable, and "impermissibly trenches on the essential function of a jury, to determine for each juror, whether they accept the reliability of that evidence or not." It was submitted that the trial judge only once alluded to the role of the jury as the ultimate finders of fact. It was further submitted that "it was necessary to make a reference to their right to reject that direction of law, [sic] if it did not accord with their own assessment of the evidence." It was submitted that his Honour misdirected the jury regarding how they could approach Dharma's evidence." 56It was further submitted that this Court should determine that the direction in the trial Bench Book is appropriate in the circumstances of this case and failure to comply with its terms was an error of law. The suggested directions in the Bench Book end with an invitation to the trial judge to "deal with the submissions by the prosecution and the accused with regard to the evidence of the witness." It was submitted that because the trial judge failed to deal with those submissions there had been a miscarriage of justice. 57I am satisfied these submissions must be rejected. His Honour did, on more than one occasion, remind the jury of their role as the finders of fact. His Honour told the jury that it was their responsibility to "identify the facts established by the evidence and to apply the legal principles which I tell you to the facts that you have identified. What has been proved is for you and you alone to decide. How you decide those matters of fact is a matter of you exercising your commonsense." Elsewhere his Honour reminded the jury that when there were inconsistencies in the accounts of relevant matters it was a matter for the jury, as the judges of the facts, to resolve the inconsistencies. His Honour reminded the jury that inconsistencies or variation in a witness's account at different times may be relevant to the reliability of that witness. I am satisfied that the jury could have been under no misapprehension as to the respective submissions in relation to the evidence. There was no suggestion by trial counsel that further directions were required. 58It was suggested by the applicant that the form of the direction in the Bench Book may have derived from the charge given to the jury by Abadee J, which was referred to without criticism by this Court in R v Esho; R v Sako [2001] NSWCCA 415 at [97]. The direction given by Abadee J ended by saying that "whether you do so or not is a matter for you." This additional direction was not included in the direction given by his Honour and is not contained in the suggested Bench Book direction. However, it was submitted that Abadee J was correct and the additional words should have been included in the direction. For this reason it was submitted that by omitting these words his Honour's direction occasioned a miscarriage of justice. 59This submission is entirely without merit. As I have indicated, the trial judge on a number of occasions referred to the role of the jurors as the deciders of the facts. The directions which his Honour gave on this issue were comprehensive. I do not accept that the additional direction given by Abadee J in Esho and Sako was required in the present case. 60I would refuse leave to raise this ground of appeal.

Ground 3 61Ground 3 of the appeal contains a general assertion that there has been a miscarriage of justice. The written submission is brief being confined to the proposition "that the combination or aggregation of the defects identified in the several grounds of appeal advanced by the appellant constitute a miscarriage of justice." Although counsel acknowledged the strength of the Crown case, it was submitted that the applicant did not have a fair trial. 62I have previously related the factual circumstances from the evidence in the trial. In the course of his closing address the Crown prosecutor identified the circumstances relevant to the Crown case with some particularity. They were repeated by the trial judge for the benefit of the jury in the following terms: "1. The first circumstance is that the accused, Dharma and Mr Nguyen were all in the poker machine room at the Cabramatta Hotel between 1.30 am and 3.25 am on 1 February 2007. 2.The accused said to Mr Nguyen in Vietnamese "What do you want, do you want to fight or not?" The accused spoke in Vietnamese with a Cambodian accent and the accused Mr Ith is Cambodian. 3.The accused stood behind Mr Nguyen and watched him playing a poker machine. Mr Nguyen won $1,000 on a poker machine and was paid out at 2.16 am. 4.Dharma walked past Mr Nguyen and looked towards him as the cashier was paying Mr Nguyen. 5.Mr Nguyen won $460 on a poker machine and was paid out by the cashier at 3.23 am. The accused walked past Mr Nguyen and looked towards Mr Nguyen whilst the cashier was paying Mr Nguyen. 6.Mr Nguyen left the hotel through the Railway Parade exit and then walked towards Old Cabramatta Road at 3.25 am. 7.Mr Nguyen crossed onto the other side of Old Cabramatta Road at 3.25.56 am. 8.The accused left the hotel through the Railway Parade exit and then ran towards Old Cabramatta Road at 3.26.10 am. 9.Dharma left the hotel through Railway Parade doors at 3.28.05 am. Dharma walked along Railway Parade towards Old Cabramatta Road at 3.29.45 am. Dharma went along the opposite side of Old Cabramatta Road at 3.30.05 am heading in the same direction that Mr Nguyen was last seen moving. 10.Mr Nguyen was walking along Old Cabramatta Road West when he was confronted by a man with short dark hair and a Cambodian Vietnamese accent who had spoken to him inside the pub. That man said "do you want to fight?". 11.That man with the short dark hair lifted his shirt up and pulled out a knife from the front of his jeans. 12.The knife was about eight inches long and had a smooth edge. The blade was pointed. 13.When the accused was arrested on the night of 6 February 2007, he had a knife, which is exhibit 5, tucked in the front of his jeans. 14.The knife is eight and three-quarter inches long. It has a black handle. It has a smooth top edge of the blade. The lower edge of the blade is serrated. The blade is pointed. 15.Dharma told detective Kilmister when he was interviewed on 6 February 2007 that the accused had a weapon when he attacked Mr Nguyen on the morning of 1 February 2007. 16.As Mr Nguyen ran along Old Cabramatta Road West, he heard two separate voices calling out in Vietnamese "Stop" and "Hey, hey". 17.As Mr Nguyen ran along Acacia Street towards Bolivia Street he saw the man with the short hair in a crouching position. 18.When Mr Nguyen reached Bolivia Street, someone grabbed him by the shoulder. He saw the person's legs and feet in front of him and then he felt a second person joining in and pushing from his right side. 19.Mr Nguyen was then kicked in the right side of this face. He felt the top part of a shoe when he was kicked in that part of his face. 20.The accused had been wearing sports shoes when he was inside the hotel and when he left the hotel. 21.The accused was wearing a pair of blue and white Puma sports shoes when he was arrested on 6 February 2007. 22.On 1 May 2007, Mr Nguyen had been shown a selection of twenty photographs of males, he said that: 'Out of all the pictures I thought he looked like the person in photograph thirteen (the photograph of the accused), however, I'm not sure. I think the man who attacked me has lighter skin than the man in photograph thirteen, however when I had a look at his face it makes me feel like I've met him before, although I don't remember when. That's why I didn't say the man in photograph thirteen during the parade because I'm not completely sure if it was him.' It was from this combination of circumstances the Crown wants you to draw the inference that it was the accused who assaulted and robbed Mr Nguyen in company with Mr Dharma." 63I have reviewed the evidence admitted at the trial. Mindful of the factual matters and circumstances identified by the Crown I am satisfied that the applicant was rightly convicted. I am not persuaded that there has been a miscarriage of justice. 64In my opinion the application is without merit and accordingly leave to appeal out of time should be refused. 65ADAMS J: I agree with McClellan CJ at CL. 66HOEBEN J: I agree with McClellan CJ at CL.

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