R v Cox & Sadler

R v Cox & Sadler - [2006] VSC 233 - VSC 2006 case summary — Zoe

15 Lai has twice before acted as an informer to the police, on each occasion providing information in respect of the drug trafficking activities and related conduct of people with whom he has been associated. Thus at the time he provided information to Ceja in 2003, he was well versed in the processes of informing, and was conversant with the benefits to be derived from doing so. In addition, Lai's background reveals that he has been involved in serious organised crime involving the trafficking of drugs. He has a number of previous convictions including convictions for blackmail. Lai's background and antecedents gives point to the testimony of Superintendent Biggin as to the treacherous nature of criminal informers. When Lai made his statement to the Ceja Task Force investigators, he was then in jeopardy because he had breached the terms of his parole. He had a potential motive to ingratiate himself to Ceja and, if necessary, to do so by making false accusations against the police with whom he had been dealing, namely Cox and Sadler. In addition, he had a reason to feel ill-disposed towards those two policemen, because of their failure to support him when he was before the courts in mid-1999 for sentencing on the Drug Squad charges and on the charges brought by the Richmond Police. The combined effect of those matters is, in my view, that it would be dangerous for the jury to rely on the evidence of Lai, in the absence of evidence which, in a material respect, corroborates his evidence.[5] Furthermore, in my view, considered together, those factors are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, in the absence of a warning emanating from me as trial judge with the weight of my judicial office.[6] It is one matter for the jury to appreciate that those factors, separately and collectively, adversely affect the credit of Lai. It is another matter for the jury to consider that their combined effect is such that they should regard it dangerous to rely on Lai's testimony in the absence of evidence which corroborates it in a material respect. In those circumstances I consider that I ought, in the interests of justice, to give a Faure direction to the jury in relation to Lai's evidence.

[5]

22 The evidence of Lai which is in question may be described as "recognition" evidence rather than "identification" evidence. At the time of the first corrupt approach alleged by Lai, he already knew Cox, albeit that he had only become recently acquainted with Cox. The description of the evidence as "recognition" rather than "identification" evidence does not resolve the question whether I should give a direction in respect of it to the jury. Rather, that description assists in pointing to the nature of the issues which need to be taken into account in determining whether such a direction should be given. Commonly, a warning is given to juries where the witness did not previously know the accused, and then later identifies the accused (at an identification parade, by means of a photo board, or the like) as the person who the witness saw on the day in question. The potential for error in such a process is self evident. Mistakes can and do occur in observation, memory and recall. The law has long experience of such errors occurring, and which have resulted in unjust convictions. The potential for injustice arises because juries may not have the same appreciation of the frailty of the human powers of observation, memory and recall. It is for that reason that trial judges are required to give a specific warning to the jury concerning the inherent risks in such evidence.[12]

23 It is clear that similar errors may also occur where the witness is already acquainted with the accused. The authorities on this question make it clear that, in a case such as this, much depends upon the particular circumstances of the case, and upon the precise issues which have been raised in the course of evidence. Notwithstanding that the witness making the identification previously knew or had met the accused, a specific warning may nevertheless need to be given to the jury if, on the issues raised in the case, there is a real question as to the accuracy or reliability of the witness's powers of observation, recognition, or recall.[13]

24 In R v Boardman[14] the accused was charged with the robbery of one Crick at a hotel in Elizabeth Street, Melbourne on 3 December 1967. Three days earlier the accused and another man had gone to the hotel. The accused used the name "Noakes". There they spoke to Crick, who was the night porter, and signed the register. The robbery occurred when two men entered the hotel with an imitation pistol and robbed Crick of some money. In his evidence Crick stated that while the robbery was occurring he thought he recognised one of the men. After they had left, he rang the police. While he was waiting for the police, he checked the books and then called to mind that the man, who he thought he had identified, was "Noakes". The trial judge did not give a specific direction to the jury concerning the evidence of Crick identifying "Noakes" (that is the accused) as one of the two robbers. The accused was convicted. The Full Court of the Supreme Court of Victoria (Gillard J dissenting) held that the trial judge erred in not giving such a warning, in light of the importance of the evidence of identification by Crick of the accused as one of the two men who robbed him. Winneke CJ, who delivered the leading judgment, noted that there was potential for error in the identification evidence of Crick. First, Crick was not positive as to the identification of the accused at the time of the robbery. Secondly, the use by the robber of the name of his associate in the course of the robbery might have affected Crick's recognition of the person who he was then observing. Thirdly, there were flaws in the later identification parade at which Crick identified the accused, such that Crick could well have been identifying not so much the person who robbed him, but the person who he saw three days earlier. Referring to an unreported decision in R v Richards[15] Winneke CJ stated:

[8]

"As Boardman and Turnbull illustrate, 'recognition' cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times of their alleged crimes. It would therefore be illogical to hold that such a warning as to the dangers of mistaken identification of the sort discussed in Domican need never be given in a recognition case. Obviously such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend on all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime. In this case, if Ms West was to be believed, she had ample opportunity to observe the man who accompanied Mr Paget to her house, but there were other circumstances that called for a Domican warning, namely (a) the limited degree of contact she claimed to have had with the appellant in the past; (b) her inconsistent statements as to her knowledge of him and ability to recognise him; (c) the possibility that she could have been misled by Mr Paget introducing his companion to her by the appellant's name; and (d) the delay of nine years between the crime and the trial. The learned trial judge adverted to the possibility of someone having been wrongly introduced by the appellant's name, and to the possibility of incorrect identification. Ideally, I think he should also have warned the jury in general terms of the dangers of convicting on identification evidence whose reliability was disputed and, whilst discussing the identification issue, referred to the limited contact Ms West claimed previously to have had with the accused and to the delay between the night of the robbery and the trial. I believe his Honour's directions as to identification were inadequate as a result of these matters not having been mentioned, but I would not regard these omissions as sufficient, by themselves, to warrant the quashing of the conviction."[18]

[9]

26 On the other hand, there are cases where, in light of the evidence and the issues, a Domican warning would be unnecessary, and indeed counterproductive, in respect of evidence which might be described as "recognition" evidence. In R v Matteo,[19] the three witnesses who identified the accused were thoroughly familiar with him. The issue at trial was not whether they might have been mistaken in their identification, but rather whether they were telling deliberate lies. In those circumstances the Court of Appeal held that the trial judge was correct in not giving a Domican warning to the jury. Such a direction would have run counter to, and undermined, the case made by the accused at his trial.[20]

27 In R v Spero[21] the issue was whether it was the accused who had assaulted and raped the elderly complainant. The accused was well known to the complainant. At the time of the assault the complainant had a substantial opportunity to accurately observe the person who she said was the accused. Accordingly the Court of Appeal held that it was not necessary for the trial judge to have given the jury a Domican ruling.[22] In Smith v. Western Australia,[23] the issue was also whether it was the accused who had, some years earlier, indecently assaulted the complainant. The incidents were said to have occurred at the home of two witnesses, Mr and Mrs DC. They both knew the accused reasonably well and gave evidence that it was the accused who had, from time to time, stayed overnight at their home. They identified the accused from a photoboard shown to them by the investigating police. However, the issue at trial was not whether Mr and Mrs DC had falsely identified the accused as the person who stayed overnight at their home on a number of occasions. Rather the issue was whether the person, so identified, had been at their house and stayed overnight on the occasion when the offences were said to have been committed. For that reason the Court of Criminal Appeal of Western Australia held that the trial judge did not err in declining to give a Domican warning to the jury.[24]

28 The effect of the authorities to which I have referred is that an appropriate warning may need to be given to the jury where, on the facts of the case, a real issue is raised as to the reliability of one or more of the processes of observation, recognition, memory or recall, involved in the evidence of a witness claiming to have recognised the accused as the person observed by the witness on the occasion in question. The question whether such a warning is required depends on the particular circumstances of the case and on the precise issues which arise concerning the "recognition" evidence. In both Boardman and Carr, each witness had some previous familiarity with the accused person at the time the witness observed the person identified by him or her as the accused. In each case the witness had a reasonable opportunity to observe the person who the witness said was the accused. Nevertheless, in each case, the court held that a specific warning should have been given to the jury as to the dangers in the evidence of the witness that it was the accused who had been observed and recognised by him or her on the relevant occasion. In both cases, it seems, the courts perceived the potential for error at two stages of the relevant witness' cognitive processes. First, in each case, there was some potential for error in the recognition by the witness of the accused, in light of the witness' limited previous acquaintance with the accused, and in light of the potential for other circumstances to have then wrongly suggested to the witness that the person observed was the accused. Secondly, in both cases, there was seen to be a potential for error in the later recollection by the witness that he or she had indeed recognised the accused as the person observed on the relevant occasion.[25] In Boardman, Winneke CJ was concerned that the identification parade may have led the witness to have identified the accused not so much as the person who robbed him, but as a person who he saw three days before the robbery. In Carr, the lengthy intervening period may have distorted the recollection of the witness that it was the accused who she saw in the company of Paget (the accomplice) shortly after the commission of the robbery.

29 In the present case the factors which weigh in favour of giving a Domican direction to the jury are not as cogent as they were in either Boardman or Carr. It is not suggested that, in 1999, Lai was mistaken in then recognising the two police who made the alleged corrupt approach to him. On the evidence in the trial, such an error would be highly improbable. However, Mr Young did clearly put in issue the question whether Lai was mistaken in recollecting in 2003, and in his evidence, that Cox was one of the two Drug Squad members who made the corrupt approach to him in 1999. Lai did not know Cox previously. He agreed, in cross-examination, that he recalled Cox and Sadler as a duo who generally worked together. He was not required to recall the identity of the persons who made the corrupt approach to him until four years after the event, when he was interviewed by members of the Ceja Taskforce in 2003. According to his evidence (which is denied by Detective Sergeant O'Neill), it was then suggested to him that, according to the records, the only members of the Drug Squad with whom he had been in contact were Cox and Sadler. The Ceja investigators did not show any photographs to Lai from which he might identify the two police members who he alleged made the corrupt approach to him in 1999.

30 In these circumstances there was, in my view, some scope for error in the recollection of Lai as to the identity of the members of the Drug Squad who he alleged made a corrupt approach to him in 1999. He had limited familiarity with Cox. He was then a frequent user of heroin. He was not required to recall the identities of the two relevant policemen for some period of time. According to Lai, when he turned his mind to that matter, it was in circumstances which might have influenced him to recall, incorrectly, that Cox was one of the two police who made the corrupt approach to him. In those circumstances, given that the issue has been squarely raised by Mr Young, and given that it is conceivable, on the evidence, that an error might have been made by Lai in his processes of recalling one identity of who made the corrupt approach to him, I consider it necessary that I give to the jury a direction in relation to the matters which I have just referred to, in line with the principles referred to in R v Domican.

31 Mr Young submitted to me that the warning which I give to the jury on this issue should not be extensive. I intend to inform the jury that the warning is only relevant if they otherwise accept Lai's evidence as truthful. I shall inform the jury of the general experience of the law of the potential for error which occurs with identification evidence, including evidence of the type under consideration in this case. I shall direct the jury that they should therefore take particular care before accepting the evidence of Lai that he accurately recalls that it was Cox who was one of the two persons who made the alleged corrupt approach to him in 1999. I shall draw to the attention of the jury the matter to which I have referred in the previous two paragraphs of this ruling.

Lai - propensity direction

32 For the purpose of completeness I note that, in my final directions to the jury, I shall also give a "propensity" direction in relation to the evidence of Lai. The evidence of Lai is relevant to the issues in this case because, on the Crown case, the corrupt approach to Lai marked the beginning of the conspiracy alleged in the presentment. In his opening, Mr Tovey QC made it clear to the jury that the Crown would not contend that either of the accused men should be convicted on the evidence of Kenneth Lai. The Crown accepts that the accused could only be convicted if the jury were satisfied beyond reasonable doubt as to the evidence of Duy Le. In my directions to the jury I intend to remind them of the role which Lai's evidence plays in the Crown case. I shall also direct the jury that, if they accept Lai's evidence, they must not reason that, by reason of that evidence, the accused were the kind of people who were likely to have acted in the manner alleged by the Crown.[26]

Corroboration

33 It is common ground between the parties that there is no evidence, independent of the testimony, of Kenneth Lai, capable of corroborating Lai's testimony. Accordingly I shall direct the jury to that effect.

34 In the course of submissions Mr Tovey QC has outlined to me, in general form, the evidence which he submits is capable of corroborating the testimony of Duy Le and Loan Tran. However in the course of discussion with counsel it became clear that I shall be unable to rule on the question of what evidence is capable of corroborating the testimony of those two witnesses until the conclusion, at the least, of Mr Tovey's final address. A significant component of the evidence which the Crown submits corroborates those two witnesses consists of some components of the various event charts and other charts which have been tendered in evidence before the jury. Counsel have all agreed that it will be better to defer any further submission and ruling on this issue until Mr Tovey has made his final address, in which he intends to identify to the jury the specific parts of the charts and the like upon which he intends to rely against each accused. It may also be necessary for me to defer ruling on the matter until the conclusion of defence counsel's final address, since Mr Young has foreshadowed a submission that some of the evidence which he apprehends the Crown will rely on is "intractably neutral".

Conclusion

35 I summarise the conclusions which I have reached in this ruling as follows:

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Cases Cited (4)