Mulholland v R

Court of Criminal Appeal (NSW)|2019-04-08|Before: Wilson J, Ierace J

Solicitors: Ross Hill & Associate Solicitors (Applicant) Office of the Director of Public Prosecutions NSW (Respondent) File Number(s): 2016/114567 Decision under appeal Court or tribunal: District Court Date of Decision: 30 August 2017 Before: Armitage ADCJ File Number(s): 2016/114567

Judgment

SIMPSON AJA: I agree with Ierace J.
WILSON J: I agree with Ierace J.
IERACE J: The applicant was convicted at trial before a jury on 30 August 2017 of one count of recklessly inflicting bodily harm with intent to have sexual intercourse, contrary to s 61K(a) of the Crimes Act 1900 (NSW). There was an alternative count on the indictment of indecent assault, contrary to s 61L of the Crimes Act. He seeks leave to appeal his conviction, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). He has not sought leave to appeal against the sentence subsequently imposed.
The Crown case was that the applicant assaulted the complainant as she was walking home late at night on Monday 14 March 2016 in Randwick, in circumstances which indicate that he intended to have sexual intercourse with her. The applicant denied that he was the assailant. Identification was the central issue of the trial.

The applicant's ERISP

The applicant was arrested later the same day at his workplace, a restaurant in the Circular Quay area of the city, where he was head chef. He agreed to be interviewed. Police informed him that Ms X had said that he had arrived home at around 1am on 15 March 2016 and that he had told her he had been robbed of his backpack.
The applicant responded that he recalled the incident, but not the date. He said that after work and before 10pm he had purchased Uberbrau brand beer from a supermarket in Randwick and then headed home. When he arrived there and realised that his partner was already home he walked off, because he wanted to drink the beer, which she did not approve of. He then walked around Randwick, drinking the beer.
The applicant said that he was wearing jeans and a "small chequered shirt". He had a backpack, which had in it his work clothes and "a couple of hundred bucks". At some point, he decided to return home, but first changed back into his work clothes, so that he could pretend to his partner that he was arriving directly from his work. He changed in "somebody's yard" in a "side street" behind the Coach and Horses Hotel along Alison Road. He indicated the position on a sketched plan he produced for police, which was tendered in the trial.
As the applicant finished changing, he said that he was robbed by a person or persons unknown. He assumes he was hit on the head from behind, because the next thing he remembered was "waking up". His backpack had been stolen, together with his jeans and shirt and the remaining bottles of beer he had purchased, which had been either in the backpack or in "the plastic bag they come in". His only injury was a sore neck.
The applicant said he walked home and told Ms X, who advised him to report the robbery to the police. He did not do so, because "what the hell are they going to do over a bag?" His wallet and phone were not in the backpack, only some items of clothing, and the backpack itself was not valuable, so he considered that there was little point in reporting it. Police told the applicant that Ms X had informed them that he had told her that one of his work shirts was stolen. (I note that this representation is contrary to what Ms X had told police, as related in the agreed facts.) The applicant agreed that "[i]t might've been likely" that a spare work shirt was in his backpack, as well.
When told by police that Ms X had informed them that he had said the incident occurred in a park, the applicant explained that he had mentioned to her that earlier he had seen two men and two women walk across a park next to Randwick Police Station, and that one of the men looked "a bit dodgy", so "this was the time when the park was mentioned".

The applicant's former partner (Ms X)

Ms X was called by the prosecution. She stated that she had come to Australia from the Czech Republic about 13 years ago. As of March 2016, she had been living with the applicant for about 15 months. She said that she particularly recalled 14 March 2016, because on that date, two of her friends from the Czech Republic who had been staying with them, departed. She and the applicant farewelled them at Circular Quay at around 4pm. The applicant then went to work. She had expected him home about 10am, but he arrived "after 12. Would be maybe 12.30".
Ms X said that he told her he had been robbed "in the park". He told her that luckily her iPad and his work clothes were not in the backpack. She told him he should report it to the police, and he replied: "Yes, I should".
Ms X agreed that the applicant's alcohol consumption was an issue in their relationship, although she said she had not told him that he could not drink alcohol at home. She thought he was hiding his drinking from her; there had been occasions when she had seen him drinking outside the apartment building.

Grounds of appeal

The applicant advances two grounds of appeal: (1) His Honour's directions regarding physical characteristics evidence and the victim's out of court representations as to the photographic array were misleading and included evidence which should not have been the subject of a warning, thereby giving rise to a miscarriage of justice. (2) The verdict is unreasonable having regard to the evidence in the trial.

Ground 1: The trial judge's direction concerning "physical characteristics"

The complainant's description of the assailant

The complainant said she did not have any issues of vision impairment and described the lighting at the place of the attack as "not lit up but it's not pitch black". She said that she saw the assailant's face over her left shoulder, which was about 30 centimetres away, just before she was pulled to the ground.
She said that "the first thing I saw" was that the assailant had "big hair"; she agreed that when she made her statement, two hours after the attack, she had described the assailant as having "grey, thick, wiry hair". In evidence, she qualified that recollection, saying: "I know he had grey bits to his hair". She said that it was "standing up" from his head, indicating a distance above her head. Counsel varied widely in their estimates of her demonstrated length, from "an inch and a half" (3.8 centimetres) to "maybe about 15cm or thereabouts". She agreed that in her statement, taken a few hours after the attack, that she had said "His hair stood up off his head about 5 centimetres".
The sandals worn by the complainant were open-toed. When she was examined by police, a hair was seized from a graze on her big toe. It was described by a police officer as "a grey, short, wiry hair". The complainant described it as being of the same appearance as the hair of the assailant. The police officer who removed the hair noted that the complainant said, "I must've kicked out and kicked him in the head". A police officer gave evidence that DNA could not be obtained from the hair. The hair itself was not tested for mitochondrial DNA and was not tendered.
As to facial hair, the complainant said that the assailant had grey stubble. She said that she thought he was aged between 45 and 55 and had "like, light emotionless eyes". Their colour was "blue or [light] grey. … I'm almost sure they were light blue eyes".
The complainant said that when she saw the assailant over her shoulder, his eyes were almost level with hers, so she thought his height was similar to hers. Her height was "not quite 5 foot 6". Her sandals had a "very small heel" that were about half an inch, so she thought that her height at the time of the incident would have been about "5 foot 7".
The complainant weighed 60 kilograms and described the assailant as having around the same build to hers: "He wasn't fat and he wasn't big build. He was just average build and my height".
The complainant described the assailant's clothing on the top part of his body as being dark in colour.

The evidence of the applicant's physical features

Ms X gave evidence as to the colour of the applicant's hair at that time. Her opinion was variously dark blonde, brown and dark brown. She was shown Exhibit N, which was a photograph of the applicant that was used in a photograph identification procedure with the complainant. She agreed that it accurately showed the "way that it was on 14 March 2016" but added: "He had probably, maybe longer hair at the time". She later added: "he's got grey hair, so when he's got longer hair, it looks lighter".
Ms X said that the applicant would sometimes go to work with "a few days' growth" and on that particular day, "I would think he had bit of beard, yeah", explaining that she meant the type of growth she had earlier explained. (I note that Exhibit N shows the applicant with stubble and that in Exhibit O, which is a close-up of his face, the stubble appears as partly grey in colour.)
The applicant's date of birth was 19 May 1977, meaning that on 14 March 2016, he was aged 37. It was not suggested at the trial by the defence that the applicant's age was inconsistent with the complainant's estimate of the age of the assailant, being between 45 and 55 years. The appearance of the applicant in a photograph that was before the jury as part of the photograph identification procedure, which was taken on 13 April 2016 following his arrest, to my mind would be consistent with someone who appeared to be significantly older than 37 years.
An agreed fact tendered to the jury pursuant to s 191 of the Act was that the applicant "has blue eyes".
In his ERISP, the applicant told police that his height was 5'6" and that he weighed "78, 80" kilograms. The jury had a full-length photograph of the applicant taken on the day of his arrest that suggested, in my opinion, that he was slight to average build.
There was no evidence from Ms X as to what clothing the applicant was wearing when he arrived home.

The photograph identification procedure

The applicant declined to take part in an identification parade. The complainant was taken through a photograph identification procedure on a computer on 14 April 2016. She viewed 20 photographs. Photograph 17 was of the applicant. It was not disputed that the photograph incorrectly depicted the applicant as having dark eyes, for technical reasons apparently to do with the lighting when the image was captured. It was for this reason that the agreed fact as to the actual colour of the applicant's eyes was tendered.
A video of the complainant viewing the photographs, during which she commented on some of them, was tendered. After the viewing, police asked the complainant certain pro forma questions, including: "Have you seen any of these persons under any circumstances?" She replied: "I feel like I've seen some of their eyes but it's their hair that's throwing me off". She was cross-examined about her participation in the photograph identification procedure, in particular that response, and asked if it was prompted by her looking for hair of the appearance that the assailant had, which she had described as "grey, tall, wiry hair". She responded: "I agree, but it wasn't the only thing I was looking for in the picture".
Having viewed all the photographs, the complainant went through them again, commenting on some of them to the police officer who facilitated the procedure. At the outset, she said of the assailant: "He had really blue eyes" and "He definitely had blue eyes".
When the complainant came to the photograph of the applicant (photograph 17), she said: "This guy's hair's right but I can't see his eyes. Don't know if they're blue or … Looks like he's the right frame, some of the other guys were bigger and this guy wasn't big."
The complainant made observations about many of the other photographs that were also, in part, confirmatory of some features being the same as those of the assailant. For example, at photograph 16, the complainant is heard to say, "See, he looks - those eyes - those dead eyes look familiar, but the hair - it's just thrown me off". At photograph 18, she said, "And like - he's got the kind of dead eyes and weird hair, but he looks massive". At photograph 19, she said, "That hairline looks right, he's got the proper hair. But this big cut in his neck - I don't remember seeing that. But he's got the right eyes". At photograph 20, she said, "And this guy's - again, are they brown eyes? But he looks the right frame, and the right shaped face".

No injuries or blood on the applicant

The defence submitted that the complainant's account of the assault was such that one would expect the assailant to have the complainant's blood on him, so that if the assailant was the applicant, blood would have been visible to Ms X when he arrived home shortly afterwards. In cross-examination, Ms X said that when the applicant arrived home, she did not notice any blood on him.
The defence submitted to the jury that the complainant's evidence was that "by the end of the incident she was covered in blood" and referred to evidence from Ms X to the effect that if she had seen blood on the applicant when he arrived home that evening, she would have told police when they interviewed her on 13 April 2016. The defence theory that blood would be expected on the assailant appears to arise from the complainant's evidence that when she was at Maroubra police station, she was "covered in blood". Most of her injuries were captured in photographs tendered in the trial. They comprised a circular graze to her elbow which she said was sustained when she was pulled to the ground, a small abrasion to her right big toe and scratch marks on her neck. The complainant also suffered pain to the palms of her hands, being the area between the wrists and little fingers, which she explained occurred when she crawled quickly on the ground to grab the beer bottle.
Similarly, the defence suggested that one would expect the assailant to be sporting visible injuries to his face and head immediately after the incident, from the complainant hitting and kicking him. Ms X said that when the applicant arrived home on 15 March, she did not notice any injuries to his face and head, including any redness, bruising or scratches to his face.

Direction regarding identification

The trial judge said to the jury that the identity of the assailant was "one of the major disputes" between the parties and that the Crown's case as to the applicant being the assailant was circumstantial. His Honour summarised the Crown case as to the nature of the circumstantial evidence and the defence case in response. That was followed by a direction on circumstantial evidence which was uncontroversial and not the subject of complaint. His Honour's summary of the Crown case as to the elements of circumstantial evidence replicated part of the Crown's address, which can be summarised as follows:

Firstly, three pieces of physical evidence that were located or derived from a position immediately alongside the site of the assault, being the chef's jacket with the applicant's DNA, the chef's pants and the Uberbrau beer, which was the same type as was located at the applicant's residence, a month later;
Secondly, the applicant's admission that on the night in question, he was within a short distance of the place of the assault;
Thirdly, the evidence of the time of the assault and the time that the applicant arrived home. The complainant estimated it took her five minutes to run home and the triple-0 call made by her flatmate was at 12.04am. Ms X said she thought the applicant arrived home around 12.30am, and there was evidence from police that it took about 15 minutes by the fastest route to walk from the scene of the assault to the applicant's residence;
Fourthly, that the assailant's physical characteristics, as described by the complainant, either match or are "very close" to those of the applicant. These characteristics are as follows: a Caucasian male of the same height and of a similar build as her; an appearance, based on a photograph taken on the day of his arrest, that corresponds to the complainant's estimate of his age; grey facial stubble and blue or light grey eyes; and hair that stood up from the head about 5 centimetres that could be described as "thick, grey, wiry hair".

The trial judge went on to summarise the Crown and defence cases in respect of what the complainant had said during the photograph identification procedure in relation to various photographs, including that of the applicant.
His Honour then gave the jury a direction which he told them to apply to their consideration of the circumstantial evidence relied upon by the Crown, as to the complainant's description of the assailant, as well as the evidence of what she said during the photograph identification procedure as to similarities and dissimilarities of the physical characteristics of those depicted in a number of the photographs. The direction was in the following terms (paragraph numbers and emphasis added): "(1) There is an important direction I must now give you concerning physical characteristics evidence. There is a need for special caution in accepting and applying identification evidence of this type, i.e. evidence that a person who perpetrated a crime had certain physical characteristics as to which I must give you the following warning. In giving you these directions you should not think that I am giving you any indication of what I think about the reliability of the evidence. As I told you at the beginning of the trial, that is not my task. My task is to make sure that you consider everything that is relevant to the assessment of the reliability of the evidence. That assessment is your function, not mine. However, judges have an experience with the law that members of the community generally do not have. (2) Judges know that resemblance evidence or physical characteristics evidence may be unreliable and there are a variety of reasons why that is so. Evidence from a person such as [the complainant] that a person who perpetrated a crime on her had certain physical characteristics said by the Crown to resemble those of the accused must be approached by you with special caution before you accept it as reliable. I shall call this evidence physical characteristics evidence from now on. These directions relate only to the reliability of the physical characteristics evidence, not to the honesty of the witness. (3) The witness may be honest but that does not necessarily mean that the witness will give reliable evidence because the witness who gives evidence of physical characteristics honestly and sincerely believes that their evidence is correct, that evidence will usually be quite impressive and persuasive. So here even if you thought [the complainant] was entirely honest in her evidence that she gave, you must still approach the task of assessing the reliability of her evidence as to the physical characteristics of her assailant with special caution. So special caution is necessary before accepting physical characteristics evidence of this kind because of the possibility that a witness may be mistaken in their observation of the person who perpetrated the crime as having certain physical characteristics. (4) The experience of the criminal courts over the years, both in Australia and overseas, has demonstrated that physical characteristics evidence of this kind may turn out to be unreliable. There have been some notorious cases over the years in which physical characteristics evidence has been demonstrated to be wrong after innocent people have been convicted. You must carefully consider the circumstances in which [the complainant] made her observation of the person who attacked her. The circumstances in which a witness made their observation of the person can affect the reliability of physical characteristics evidence. (5) There are a number of matters which have been specifically raised by the evidence in this case that require your consideration. Was the person identified a stranger to [the complainant]? It is obviously harder to identify physical characteristics of strangers than it is to identify those of people who are well known to us. What opportunity did [the complainant] have to make her observation of the person? She said in evidence relied upon by the Crown that the period of observation she had was the very short period where she looked over shoulder and her face was 30 centimetres from her assailant. The evidence would suggest that there was sufficient lighting for [the complainant] to measure specific distance and colour of hair. The complainant gave evidence that the incident went on for some five minutes and that she got a good look at her attacker's face. (6) So much of the five minutes that the episode took where the assailant was at the complainant's feet, the accused raised in cross examination that the complainant whilst hitting out must have been fixated on the attacker. The complainant also gave evidence that her eyes are perfect and that her attacker's face was 30 centimetres from hers when she first noticed him. Furthermore, the complainant gave evidence that she was hiding behind a bin and looking down the street at her assailant who was looking around for her. (7) In what light was it made? You have evidence from [the complainant] about the light at the time of the alleged offence in evidence relied upon by the Crown which was that it was dark, however the complainant had sufficient light to see things like hair colour. The Crown tendered exhibit C that shows the lighting in the area where the attack occurred. (8) Was there anything special about the person observed which would have impressed itself on the witness? In other words, was there anything distinctive about the person? Her evidence about this relied upon by the accused and the Crown was that the [distinctive] features of the assailant were his hair and that he had grey, thick, wiry hair. The accused says that this feature was quite distinct and obviously impressed itself on the complainant. This description was also conveyed to a number of people. (9) Was there any special reason for remembering the person concerned? Again, the accused points to the grey, thick, wiry hair and asserts that the attacker had big hair, as stated by the complainant. This was the first thing that the complainant noticed. (10) Was the witness under any stress or pressure at the time? For example, if a person is physically attacked. If [the complainant] was under any stress or pressure at this time, how do you think that might have affected her ability to accurately observe the person and store the image of the person's appearance in her memory? (11) When was [the complainant] first asked for a description of the person and how fresh would her memory have been at the time? The accused would say that the complainant gave a description within minutes of the attack and conveyed what she considered to be a prominent feature to others, being the hair. (12) How did this description given by [the complainant] compare with the appearance of the accused in the photograph in exhibit [O]? How long was it between the sighting [of] the person and the giving of the description to the time that [the complainant] gave her statement containing resemblance evidence - in other words, physical characteristics evidence. The Crown relies on her evidence that her statement was made within a couple of hours of this incident. (13) You must give careful consideration to each of these matters. Any one of these circumstances may possibly lead to error. What I have done is to tell you about the need for special caution in coming to your decision about whether you accept the physical characteristics evidence from [the complainant]. (14) There is this need for special caution because of the potential unreliability of the evidence, and I have told you the reasons why that might be so. I want you to clearly understand this so that you can make your decision about the reliability of the evidence by taking into account all of the matters that are relevant to your task. (15) Ladies and gentlemen, if, having considered all the evidence and the various arguments of counsel, you are not satisfied beyond reasonable doubt about the identity of the assailant being the accused, then the appropriate verdicts would be not guilty on both counts 1 and 2. If, however, you were satisfied beyond reasonable doubt about the identity of the assailant as the accused, then you would go on to consider whether the Crown has established the elements of the counts in the indictment."

Statutory provisions

Identification evidence is defined in the Dictionary to the Act as follows: "identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed, or (ii) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b) a report (whether oral or in writing) of such an assertion."
Section 116 of the Act provides: "116 Directions to jury (1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence, and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury."
Section 165 of the Act relevantly provides as follows: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: … (b) identification evidence … (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. …"
The trial judge canvassed with counsel their views on the appropriateness or otherwise of a direction. His Honour noted that some of the evidence required a direction pursuant to s 116 of the Act, and some descriptive evidence that did not, may require a direction pursuant to s 165. His Honour confirmed with counsel that both parties sought a direction in relation to both the evidence of the complainant's observations of the assailant and what she said during the photograph identification procedure, and decided to fashion one based on the standard direction that is often given pursuant to s 116. Accordingly, the terms of the direction closely followed a standard direction on identification evidence, with the substitution of the words "physical characteristics" for "identification evidence".
In written submissions in support of ground 1, counsel for the applicant submitted that the complainant's description of his hair, which was a prominent feature of her observation of him, was significantly different from the tendered images of the applicant's hair as of the date of his arrest and the description of it at the relevant time by Ms X. Accordingly, to the extent that the direction cautioned the jury against an uncritical acceptance of the complainant's evidence of the assailant's physical characteristics, it undermined the force of this key discrepancy, which was a cornerstone of the defence case.
The applicant relied upon observations by Simpson J (as her Honour then was) (Spigelman CJ and Johnson J agreeing) in Collins v R [2006] NSWCCA 162, which concerned descriptive evidence that was exculpatory for the defence. Her Honour said: "60 There is nothing in the relevant provisions of the Evidence Act that requires a warning to be given in relation to the descriptive evidence. That is for the simple reason that that evidence does not come within the Dictionary definitions of identification evidence. Ss 116 and 165 are directed to identification evidence within that definition. … Counsel complained that to include the descriptive evidence in the warning had two different impacts upon the appellant's defence. … [T]he second as the potential of the direction to undermine the exculpatory capacity of the evidence in question (the descriptive evidence). … the direction given to the jury invited caution in the approach to the descriptive evidence. 61 It is correct, as counsel argued, that neither s 116 nor s 165 obliged the trial judge to give a direction to the jury to exercise caution in relation to the descriptive evidence. But neither is there anything that prevents a trial judge giving such a direction where it is appropriate to do so: see R v Rose [2002] NSWCCA 455; 55 NSWLR 701, per Wood CJ at CL and Howie J. It was perfectly appropriate, in this case, for the judge to draw to the jury's attention any potential weaknesses in the descriptive evidence. … It has often been said that the requirements concerning directions to a jury are designed to ensure a fair trial to all parties. The task of judges in directing juries is to assist them to reach the correct verdict. Pointing out potential weaknesses in evidence that may appear to favour the defence, provided it is done with restraint, is a proper approach to that task. 62 While I accept that the direction had some potential to undermine the exculpatory capacity of the descriptive evidence, I do not see that it was in any way unfair to do so …"
The applicant's counsel submitted that in this case it was unfair to give the direction, because of its adverse impact on a critical element in the applicant's case which was exclusively dependent on the complainant's account. In Collins, as well as the victim's descriptive evidence of the assailant, there was also exculpatory descriptive evidence by two nearby witnesses of a person who was accepted as being the offender. The applicant submitted that this was a distinguishing feature that would warrant a different outcome in this case, as opposed to the outcome in Collins.
In R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455, the appellant had been convicted of murder of his wife. Evidence was led from a witness, Mr Dawson, who said he saw and had a conversation with a woman whose description fitted that of the victim, at a time and place that, if correct, exonerated the appellant. The trial took place 18 years after the events in question, so an additional factor was reliability of memory. The trial judge, Kirby J, agreed that the evidence did not come within the definition of "identification evidence" so that ss 116 and 165(1)(b) of the Act did not apply, but nevertheless found that a direction was appropriate pursuant to s 165(1), namely, that it was evidence of a kind that may be unreliable. The appellant submitted that where such evidence assists the defence rather than the prosecution, it was inappropriate to do so and the direction should not have been given. Wood CJ at CL and Howie J rejected the appeal, stating: "286 The question, which arises then, is does the section, referring as it does specifically to "identification evidence" in s 165(1)(b), apply to evidence of visual identification not falling within that definition? Notwithstanding the arguments to the contrary set out in the judgment of Smart A-J, we believe that it does. … 295 But, even if we were wrong in the view we take of the scope of s 165(1), s 165(5) makes it clear that the trial judge has a residual power to give a warning to a jury, or to inform them about some matter where the judge believes it is necessary to do so in the interests of justice. If the particular evidence under consideration does not fall within the scope of s 165(1), the trial judge has power to give a warning or provide the jury with information although there is no requirement to do so. In our view it was open to Kirby J to conclude that in fairness to the Crown the jury should be alerted to the general difficulties involved [in] evidence of the nature of that given by Mr Dawson. 296 Although we are of the opinion that identification evidence generally falls within the scope of s 165, it does not follow that a warning has to be given. Nor is it necessary for a judge to give a warning of any particular kind and, certainly, not one of indicating the special caution required by s 116. As Hunt CJ at CL pointed out in R v Clarke, not all identification evidence has the potential for unreliability that attaches to visual identification of a person. Identification of an inanimate object, such as a motor vehicle, may be less likely to be open to mistake and it may not be so persuasive. The trial judge is required to make a discretionary judgment in all the circumstances of the case whether to give a warning and what the content of the warning should be. In R v Stewart, it was held that s 165(3) applies to each of the matters set out in s 165(2), so that, for example, a trial judge may find that there is a good reason not to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it, as required by s 165(2)(c). 297 In the case of evidence of a person other than the accused, and in circumstances where the evidence favours the accused, there would be good reason for the trial judge to temper the warning and information given to the jury in respect of that evidence. Clearly there would be no basis for the trial judge to warn the jury that mistaken identification has led to erroneous convictions. Generally speaking it would not be necessary for the trial judge to caution the jury in terms of s 165(2)(c) although we would not hold that such a caution could never be given. …"

Consideration

The complainant's evidence that was the subject of the direction was of two types: her description of the assailant ("descriptive evidence") and her opinion that in some respects the male portrayed in photograph 17 resembled the assailant ("resemblance evidence"). Some of the complainant's observations made during the photograph identification procedure came within the first type; for example, her comments that the assailant had blue eyes and was not of a big build.
Three of the complainant's observations in relation to photograph 17 come within the definition of identification evidence in the Dictionary to the Act, namely, an assertion to the effect that a defendant visually resembles a person at the place where an act connected to the offence was done, which, in this case, was the assailant. Two of the complainant's observations in relation to the applicant's hair ("This guy's hair's right") and his apparent build ("Looks like he's the right frame") directly contributed to that assertion. Inferentially, there is a third, consequent to the complainant's observation that: "I can't see his eyes. Don't know if they're blue or…". The evidence before the jury was that the photograph incorrectly portrayed the applicant's eyes as brown, when they were in fact blue. An available inference from these words of the complainant was that, if the eyes of the person in photograph 17 were blue, that was a further point of resemblance of that person to the assailant.
A trial judge is obliged by s 116 of the Act to direct the jury that there is a special need for caution before accepting evidence of resemblance and the reasons for that. This was done, although the first paragraph of the direction identified it as applying only to evidence of physical characteristics, rather than resemblance evidence as well. However, both types were identified in the second paragraph.
In par (5) of the direction, his Honour said, "Was the person identified a stranger to [the complainant]? Presumably, his Honour meant to say "described", rather than "identified". However, the context of the balance of the paragraph in particular, and the direction as a whole, makes clear that he did not mean that the complainant "identified" the applicant as the assailant.
As this Court said in Rose and Collins, a trial judge is not obliged to give a direction in respect of descriptive evidence. His Honour determined to do so, it having been sought by both the Crown and defence. As descriptive evidence does not come within the definition of identification evidence in the Act, it is not subject to s 116 of the Act, but if, pursuant to s 165(2), a party requests a direction and the trial judge finds that the evidence in question comes within the terms of s 165, the court is obliged to do so. As Rose makes clear, descriptive evidence that has the potential to exculpate an accused may come within s 165(1) of the Act.
In view of what was said in the majority judgment in Rose at [297], it might be thought that the direction inappropriately advised the jury that mistaken descriptions of "physical characteristics" had led to wrongful convictions in the past. However, the majority judgment specifically focussed on a direction referring to mistaken identification leading to erroneous convictions as being inappropriate. The direction did include a warning to the jury for the need for caution, which the majority, at [297], stated would not always be necessary, but in my opinion that does not assist the applicant.
In my view, there is a fundamental problem with the applicant's submissions on ground 1. The ground is advanced on the basis that the direction had the potential to undermine the reliability of the complainant's description of the assailant's hair. However, a reading of the direction makes clear that it would have had the opposite effect, namely, it would have highlighted the reliability of that particular observation.
In pars (8) and (9), his Honour noted that distinctive or special features of the person being described may enhance the reliability of descriptive evidence, and then identified only one feature of the complainant's observations as coming in that category, being her description of the assailant's hair. Similarly, at par (11), the trial judge directed the jury that freshness of complaint was relevant to the reliability of the evidence, noting that within minutes of the attack, the complainant had "conveyed what she considered to be a prominent feature to others, being the hair".
In my opinion, having regard to the terms of the direction and assuming the significance placed by the applicant in his case upon the complainant's observations of the assailant's hair, the direction could only have enhanced that case as it went to the jury.
Accordingly, I would reject ground 1.

Ground 2: The verdict is unreasonable having regard to the evidence in the trial

At the hearing of this matter, counsel for the applicant submitted that the first ground was "part and parcel" of the second; that the other aspects of circumstantial evidence, when considered individually and collectively, were so "remarkably weak" that, the direction having deprived the applicant of "the most essential feature of the trial", the verdict was unreasonable or could not be supported, having regard to the evidence.
On such an application, the Court is required to make an independent assessment of the evidence. If, having taken into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside: SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 per French CJ, Gummow and Kiefel JJ at [11]-[14].
Where the Crown relies on circumstantial evidence, the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence: Dickson v R [2017] NSWCCA 78 at [84], considering R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]-[48].
In light of the summary of the evidence earlier in this judgment, I draw the following conclusions.
The evidence establishes that the applicant had the opportunity to commit the offence, both temporally and geographically.
The complainant's description of the assailant coincided with the evidence of the applicant's appearance on 14 March 2016 as to his age, height, build, eye colour and facial hair, being grey stubble.
As to his clothing, the complainant said the assailant was wearing dark clothing on the top part of his body. There was no evidence from Ms X as to what the applicant was wearing when he arrived home. The applicant gave evidence that he had been wearing two different outfits late that night. When he arrived home, he was wearing his chef's jacket, which was white, and pants, which he said he had changed into shortly before. He said he had changed out of a "chequered" shirt and jeans and that those clothes were stolen. There was no evidence as to how dark or light the shirt was.
As to the assailant's hair, the complainant's evidence was in summary that he had "thick, wiry grey hair" standing up about 5 centimetres above his scalp. It was open to the jury to find that the complainant's description was inconsistent with the evidence of the applicant's hair as of the date of the attack, which was the photograph of the applicant taken on the date of his arrest and the evidence of Ms X. However, there was a degree of ambivalence in this evidence that also left it open to the jury to find that the complainant's description was not inconsistent with this evidence. As noted earlier in my judgment, Ms X described the applicant's hair at the date of the assault as being "probably, maybe longer" than it appeared in Exhibit O which was also photograph 17. As well, although Ms X variously described the applicant's hair colour as dark blond, brown or dark brown, she also said he had grey hair and when it was longer, it was lighter.
In any event, the fundamental problem with the applicant's case in relation to the hair is the evidence of what the complainant said, unprompted, when she viewed his photograph: "This guy's hair's right". I consider that to be persuasive evidence that the applicant's hair was a further point of similarity between the assailant and the applicant.
The case for the applicant rested primarily on his recorded explanation to the police, that is, that he was mugged nearby and robbed of some of the items that were located at the scene of the offence, leading to the inference that whoever robbed him was the assailant. The weight one would place on that explanation is tempered by the following considerations. Firstly, the applicant said he was knocked out by a blow to the head that caused him to fall to the ground in a front yard, where he was getting changed. However, he did not seek medical assistance, claiming that his only injury from the blow to his head and the fall was a sore neck. Secondly, the applicant was robbed of his backpack and $270 cash, and although he was advised to report it to police he did not do so, because he did not think it was worth it. Thirdly, the applicant did not explain why he had $270 in his backpack, rather than in his wallet. Fourthly, the applicant's wallet and phone were in the clothing he had just changed into and, although he was unconscious on the ground and the motive was clearly robbery, they were not stolen. Fifthly, the notion that the applicant would change into a different set of clothing in a public place, being the front yard of a building, is difficult to accept.
The applicant also relied on the absence of visible injuries when he arrived home, in light of the complainant's evidence that she thought she must have made contact with the assailant when she was hitting and kicking out, although the complainant had said that she did not actually feel any contact being made. She also said that her punching and kicking were not delivered with "full force" and that she felt "exceptionally weak" because of her state of mind at the time. Her conclusion rested on the fact that the applicant stopped his attack which allowed her to escape, and the hair that was found on her big toe, not because she felt any contact. As a matter of logic, assuming that her foot had made contact with a part of the assailant's head covered in hair, any resulting bruise or other injury may not have been visible.
The applicant's contention that, if the applicant was the assailant, one would have expected Ms X to have noticed the complainant's blood on the applicant when he arrived home, does not necessarily follow from the evidence. The blood produced from her wounds, primarily the injury to the complainant's elbow when she fell to the ground, would not necessarily have found its way onto the assailant or, if it had and the assailant was the applicant, could have been cleaned off before returning home.
Necessary elements of the count on the indictment was that the applicant recklessly inflicted actual bodily harm. That intent and degree of harm is satisfied at a minimum by the complainant's evidence that she was pulled backwards by the assailant onto the ground, causing the injury to her elbow.
A further element is that the assault was committed with the intention of having sexual intercourse with the complainant. That is satisfied by the evidence of the assailant grabbing her left breast and, after pulling her to the ground, pulling at her cardigan and trying to pull her dress down and, having failed to do so, then moving around to her front and pulling at her dress. The only reasonable inference in all the circumstances is that the assailant dragged her to the ground in order to have sexual intercourse with her.
For these reasons, I am satisfied that there is no reasonable inference inconsistent with the guilt of the applicant on the first of the alternative counts on the indictment. Accordingly, I would reject ground 2
I would make the following orders: (1) The application for leave to appeal is granted. (2) The appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2019

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