R v Hanson [1995] QCA 385

Court of Appeal (Qld)|1995-08-29|Before: Davies J, Moynihan J, Shepherdson J

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MOYNIHAN J.

The appellant was convicted in the District Court on 25 November last of taking part in a riot of prisoners and, whilst taking part in that riot, wilfully and unlawfully damaging property. He was sentenced to 15 months imprisonment with a recommendation that he be eligible for parole after serving six months of that term. He appeals against that conviction and seeks leave to appeal against that sentence.

1. the learned trial Judge's directions to the jury on the elements of s.92 of the Corrective Services Act were defective in that they were incorrect or insufficient;

2. his directions failed to warn the jury of the onus on the Crown to prove the unlawful assembly and the appellant's participation in such unlawful assembly;

3. the learned Judge failed to accede to an application for redirection on the limits of particulars of the unlawful assembly in the alternative charge left to the jury;

4. the Crown should have specifically charged the appellant with unlawful assembly if it wished that charge to go to the jury on an alternative basis;

5. the learned Judge erred in directing the jury that the failure of the prison staff to warn the prisoners to desist from their behaviour was not a defence to the charge of riot;

6. the identification by officer Wilson of the applicant as one who placed a mattress against the windows of the "fishbowl" was unreliable;

7. others who took a more active part in the riot were acquitted at their trials; and

8. the evidence did not establish to the requisite standard that the proved actions of the appellant constituted a "taking part in" a riot.

Grounds 3 and 4, relating as they do to the alternative charge of unlawful assembly, can have no relevance to this appeal and we do not propose to say anything more about them. Ground 7 which simply complains that others who were charged in respect of this riot were acquitted, plainly has no substance. Nor has ground 5; the failure of the prison staff to warn the prisoners to desist was not a defence to the charge of riot.

Grounds 1, 2 and 9 may be taken as complaints that the learned trial Judge failed to direct the jury as to what must be proved in order to establish that the appellant took part in the riot. If however ground 2 relates only to the alternative charge it may be ignored for the same reason as grounds 3 and 4.

There is no need to set out in detail in these reasons the directions of the learned trial Judge on the elements of the offence which the Crown was obliged to prove. It is sufficient to say that they were, in substance, in accordance with the decision of this Court in R. v. Cook, Hartigan and McCart (C.A. Nos. 65, 66 and 67 of 1994, judgment delivered 23 June 1994). These grounds must therefore fail.

This leaves the ground complaining about the unreliability of the evidence of officer Wilson. The main evidence against the appellant at his trial consisted of a video recording of the riot and evidence by Mr. Wilson purporting to identify the appellant involved in two acts in the course of that riot.

The first of these was moving a chair. During the course of the riot it appeared that a number of prisoners, in order to barricade a door to the room in which they were, placed a chair against that door and then proceeded to place, in line behind it, a large number of chairs reaching to the other side of the room in order, it appeared, to prevent the door from being opened into the room. It was alleged against the appellant that he was one of those who moved a chair in order to give effect to this. The appellant did not give evidence but his counsel addressed the jury on the basis that he was the person observed in the film to be moving a chair. It was submitted however that this did not prove that the appellant was moving it for the above purpose.

If the jury could reasonably have been satisfied from their observation of the film, that it was the appellant who was moving the chair (or that fact was conceded on his behalf) they could reasonably also infer that it was being moved for the purpose for which other chairs appeared to have been moved, namely to prevent the door to the room from being opened. It is not clear from the evidence that the jury's satisfaction as to the identity of the appellant pushing the chair derived solely from their observation of the film and of the appellant in the dock. They may well have been influenced, in reaching that conclusion, by the evidence of officer Wilson to the effect that he identified the appellant as the person in the film pushing a chair. It may be, however, that any problems associated with Wilson's evidence, to which we refer below, were overcome by what appears to have been a concession on the appellant's behalf at the trial that it was he who could be seen in the film to be pushing a chair.

The other act which it was said the appellant was observed to be doing in furtherance of the riot was, with another prisoner, moving a mattress into a position where it would cover the aperture through which the riot was being filmed. No concession was made on the appellant's behalf that it was he who was involved in this action. Officer Wilson however purported to identify him in the film as so involved.

Evidence of the kind given by officer Wilson was considered by this Court in R. v. Griffith (C.A. No. 474 of 1994, judgment delivered on 5 May 1995). In that case two police officers, who had had prior dealings with the appellant, gave evidence identifying him as one of those participating in an armed robbery of a TAB agency. This they purported to do from a photograph taken by a security camera at the agency. At the time the appellant had a stocking covering his face. This Court held that the evidence was inadmissible. It was not suggested that either policeman was an expert in identification and their prior knowledge of the appellant did not give them any advantage over the jury in identifying him from the photograph. The Court said:

"In our respectful opinion the better view appears to be that ordinarily opinion evidence that a person present in court (but observed by the witness at earlier times) looks very much like a person depicted in a photograph before the court will not be admitted, where there is no circumstance giving the witness in question a substantial advantage over the court. Here, the appellant's hair was, it was said, rather different at the time of his arrest in June 1993 from its appearance at the time of the offence, but this had no bearing on the value of the police evidence."

No objection was taken at the trial of the present case to the admissibility of officer Wilson's evidence. Nor was it submitted before this Court that his evidence should have been excluded, the appellant confining his submission to that referred to in ground 6 above. However before this appeal was argued counsel for the respondent was advised that he would be required to argue this question and the appeal proceeded on the basis that the safety of the verdict in consequence of the admission of officer Wilson's evidence was a ground of appeal.

The respondent submitted that there were two substantial advantages which, in terms of this Court's decision in Griffith, officer Wilson had over the jury in identifying the appellant on the video film. One of these was said to be of more importance than the other. The advantage of lesser importance was, it was said, that officer Wilson had seen the film 30 or 40 times. That, in our view, cannot be a substantial advantage of the kind of which the Court spoke in Griffith. It must be seriously doubted whether one's capacity for identification in such a situation could continue to improve up to the thirtieth or fortieth viewing. But in any event where it is a photograph of him which is the only means of identifying an accused it is the jury who must make that identification and, in order to do so, be given whatever opportunities are necessary to determine that question. If that involves playing the tape over to them many times then that should be done. Whether that is necessary or not, it cannot place a witness in a position of substantial advantage over them simply because he or she has viewed the tape on more occasions than they have.

The other suggested substantial advantage which it was said Mr. Wilson had over members of the jury was that there were 30 occupants of the room all of whom Mr. Wilson was able to recognise; so that not only was he able to identify the appellant positively but he was also able to identify him by excluding all others in the room. Assuming for the purpose of argument, that this would have been a substantial advantage over the members of the jury, there is no evidence that Mr. Wilson identified the appellant not only by positively recognising him but also by excluding any others who may have looked a little like him. Indeed Mr. Wilson's evidence seems to suggest that, in each case, he identified the appellant positively; that is by positively recognising him.

We cannot be satisfied therefore that Mr. Wilson had any substantial advantage over the members of the jury in identifying the appellant from the video film. Consequently his evidence should have been excluded. Even if the jury themselves thought that they could recognise the appellant as one of those who placed the mattress against the aperture they may nevertheless have been influenced in reaching that conclusion by the evidence of Mr. Wilson.

Once it is accepted that Mr. Wilson's evidence is inadmissible the Crown failed to prove that the appellant was one of those who placed the mattress against the aperture. And as it is impossible to say whether the jury, in concluding that the appellant took part in a riot, relied on his placing the mattress against the aperture either alone or together with the evidence that he moved a chair, the verdict must be set aside and the conviction quashed.

However the Crown may well be able to prove a case that the appellant took part in the riot by inviting a jury to view the video film and identify the appellant in it as taking part in one or both of the activities referred to above. On that assumption we propose to order a new trial.

I have read the draft reasons for judgment of Davies JA and Moynihan J. I agree with their Honours views on all the grounds they have discussed save for ground 6 in which the appellant submitted that the identification by Officer Wilson of the appellant as the person who placed a mattress against the windows of the "fish bowl" was unreliable.

Most of the relevant facts are set out in the reasons of Davies JA and Moynihan J. so I shall not repeat them.

Exhibit 2 is a video tape with sound, recorded by a Mr Cork when a riot of prisoners occurred in the Arthur Gorrie Correctional Centre on 12 November 1992.

Wilson gave evidence that he knew everybody in unit B1, that he was familiar with everybody there and had been working there on a daily basis for some eight weeks before the riot. On looking at the video during the course of his evidence Wilson identified the appellant on the video on a number of occasions (see Transcript pp. 143, 144, 145, 146). At p. 151 after looking at the video, when asked, "Who were the prisoners involved in placing the mattresses against the officers station window?", he identified Hanson as having "just put the mattress standing up".

The video tape was properly admissible into evidence (Kajala v. Noble (1982) 75 Cr.App.R. 149; Taylor v. Chief Constable of Cheshire [1986] 1 W.L.R. 1479; R. v. Grimer [1982] Crim. L. Review 674 and R. v. Fowden and White [1982] Crim L. Review 588; see also "Cross on Evidence", Aust. ed. para. 1310).

In my respectful view the evidence of Wilson purporting to identify the appellant as the person who moved the chair and the person placing the mattress against the window was admissible. In Grimer (supra) the theft of a bottle of spray cologne from a shop was recorded on video tape. This was seen later by a security officer who recognised the thief as the appellant, a man he had known socially for a number of years. The appellant was arrested and charged with theft. The judge at the trial ruled the security officer's evidence was admissible. The jury also saw the video tape. The appellant appealed his conviction on the ground, inter alia, that the judge erred in admitting the security officer's evidence. The note of the case in The Criminal Law Review shows that the Court of Appeal (Criminal Division) held that there was no distinction between the evidence of a man who looked at the video tape (provided there was no challenge to the validity of the tape itself) from that of a by-stander who observed the primary facts, saw someone with whom in the past he was acquainted and could say so to the jury. The note shows that their Lordships based their judgment on the fact that the witness's previous knowledge of the appellant, upon which he was entitled to rely, and the benefit of which the prosecution were entitled to place before the jury. The note concludes:

"In each case the weight of such evidence would depend upon the circumstances, including the length of the acquaintanceship and the quality of the video tape but on the facts of this case the evidence was rightly admitted."

In Fowden and White, two persons alleged by the Crown to be Fowden and White were photographed on a video film in Debenhams of Canterbury. The activities shown on the film were consistent with acts of theft. They were arrested some time later and each denied being on the film. At their trial the Crown sought to call evidence from a police officer and a store detective who knew Fowden and White to say that the persons on the film were the accused. The Crown argued that such evidence was admissible because there had to be some evidence to link the accused with the alleged offence and a jury should not speculate about identity by comparing the appearance of persons on the film with those in the dock. It was contended by the defence that it was purely a matter for the jury, looking at the film, to determine the question of identity. It was agreed on both sides that whether the activities on the film amounted to theft were entirely for the jury to decide and the film was shown without comment but the trial Judge allowed the evidence of identity to be called.

The Court of Appeal (Criminal Division) held there was no difference in principle between a video film and a photograph or tape recording; that although it was not strictly necessary to decide the point the Court was of the opinion that there was no reason in principle why the Crown should not be able to call a witness who knows someone to look at a photograph and give evidence to the effect that he knows the person and it is the accused. However, in the circumstances of that particular case the evidence should not have been admitted as the prejudicial value outweighed its probative effect because the identifying witnesses knew the accused from a similar shop lifting case a week later and accordingly the defence were deprived from testing the accuracy of the identification without causing prejudice and embarrassment.

In Taylor v. Chief Constable of Cheshire (supra) the defendant was charged with the theft of a packet of batteries from a shop. The evidence for the prosecution consisted of evidence from witnesses who had seen a video recording of the events alleged to constitute the offence. The recording which had been made by the shop's security officer was not available in court because it had been inadvertently erased before the hearing. The defendant objected to the giving of evidence of what the witnesses had seen on the recording as being inadmissible hearsay. The justices ruled that the evidence was admissible, heard the witnesses and convicted the defendant. On appeal by way of case stated the Court (Ralph Gibson LJ and McNeill J) held that evidence of what was seen on the video recording was no different from evidence of witnesses who saw the event directly and was not inadmissible in law by virtue of the hearsay rule, although it might like all direct evidence, vary greatly in its weight, credibility and reliability, that the evidence had been rightly admitted and the defendant had been properly convicted.

"Where the identification of an offender depends wholly or in major part on the evidence of a witness describing what he saw on a video display unit, contemporaneously with the events which he describes, or which a tribunal of fact sees from the recorded copy of that display, or what a witness says he saw on a recorded copy of that display, whether or not that copy is available to be seen by the tribunal of fact, and any combination of one or more of those circumstances, that evidence is necessarily subject to the directions as to identification evidence laid down in R. v. Turnbull [1977] Q.B. 224 and juries will be directed and justices must direct themselves, to approach the evidence in accordance with that authority."

For the reference in that passage to Turnbull's case, I would substitute Domican v. The Queen (1992) 173 C.L.R. 555 and otherwise agree with His Honour's remarks. In the present case, I consider that Wilson gave his evidence of identification on the basis of his prior knowledge of the appellant along with other persons in the unit B1. Wilson in his evidence positively identified the appellant as the person who placed the mattress against the window - it was not a case of his saying it "looks like" the appellant. In my respectful view the case of The Queen v. Griffith does not apply to the present appeal. I might add that the judgment in Griffith was delivered on 5 May 1995 some six months after the appellant was convicted.

Wilson's evidence of identification of the appellant was relevant and admissible. In Australia one of the latest authoritative decisions on a Judge's duty when directing a jury in a case where identification represents any significant part of the proof of guilt of an accused is Domican and The Queen (1992) 173 C.L.R. 555. In that case (at pp. 561-2) six members of the High Court said:-

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case.' A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence.' Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

In the present case, the learned trial judge when summing up and dealing with the case against the appellant said the Crown case was that he -

"joined in the building of a barricade of chairs in the lounge room area. That was a barricade designed to block the door opening so as to deny the prisoner officers access through the door to the lounge room area and that further at a later point Hanson was observed to be placing a mattress over the observation windows at the fishbowl area and it is urged by the Crown that you will conclude from what you observe on the video of Hanson's movements and in particular those two incidents that he was taking part in a riot with a fall back position that he had taken part "in an unlawful assembly". (T.280)

"An obvious question that confronts you is the question of identification of each accused. The Crown has placed before you evidence to identify each accused and it is a matter for you whether you are satisfied as to the identification of each accused on the video and this comes from the witness Wilson. Now in effect prison officer Wilson says that he identifies each person, each accused, from what he saw on the video and you have to approach that identification with some caution because obviously it is very easy to make a mistake in an identification. So, when you consider Wilson's identification of each accused on the video, you ask yourself 'how well did Wilson know that particular accused? How clear is the picture of the person he identifies on the video? Is the person identified close up to the camera or is he at a distance? Is the person that Wilson identified obscured in anyway in the video? Was it merely a fleeting picture of the accused?' and are you satisfied that it was in fact the accused and you will realise that so far as the placing of the mattress in the window is concerned it is urged on behalf of the accused Hanson that that was merely a fleeting picture of the accused Hanson and it is a matter for you to be satisfied on that point. You ask yourself 'was there anything about the personal appearance of each accused that is his height, build, his colour, his hair that made him readily identifiable? Was there anything about his clothing, his carriage or the way he walked that assisted in his identification' and you take all of these matters into account in considering Wilson's identification of each accused."

When His Honour addressed the jury as to submissions made by the appellant's defence counsel he said (p.290):-

"He [the appellant's counsel] reminded you that the Crown case was that the riot began when the men met at the fire hydrant and said that the real question is whether Hanson took part in the riot. .... He reminded you that Mr Wilson said he has seen the video some 30 or 40 times but he seems to have difficulty in remembering some things."

A little later, still commenting on the appellant's counsel's submissions, His Honour said (p.291):-

"He reminded you that somebody had barricaded or reinforced a barricade with a chair and that Hanson did place a chair in that area but that he was merely placing a chair on top; he did not throw the chair, he did not do anything effective and suggested that putting the chairs down to block entry to the unit from U Block was not taking part in the riot ... He suggested you saw Hanson wandering about ... the mattresses then appeared and Hanson is seen coming out of the cells wiping his hands on a towel and there is a fleeting shot [of] Hanson - or what is said to be Hanson putting up a mattress."

The application of Domican in a particular case can prove difficult for a trial judge. Here there was evidence that Wilson had looked at the video 30 or 40 times prior to his giving evidence at the appellant's trial when he identified the appellant. This, in my respectful view was a weakness in his evidence. And one which in my respectful view should have been pointed out to the jury by the learned trial judge and with the weight of the judge's authority.

Before Wilson looked at the video he must have had an impression in his mind of what the appellant looked like and that impression must have been based on his prior knowledge of the appellant.

In Craig v. The King [1933] HCA 41; (1933) 49 CLR 429 at p.446 Evatt J. and McTiernan J. said:-

"An honest witness who says 'the prisoner is the man who drove the car' whilst appearing to affirm a simple, clear and impressive proposition is really asserting:

(2) that the observation became impressed upon his mind;

(4) that such impression has not been affected, altered or replaced by published portraits of the prisoner; and

(5) that the resemblance between the original impression and the prisoner is sufficient to base a judgment, not of resemblance, but of identity."

Here Wilson had his impression of the appearance of the appellant for some time before the date of the alleged riot and on 30 or 40 subsequent occasions he saw the video in which the appearance the person he believed to be the appellant may well have become reinforced in his mind. The danger is that the repetition of the viewing has reinforced the original impression to such an extent that Wilson was then able to swear very positively that the appellant was the person who placed a mattress over the window. Without that constant viewing it may well have been that the very first time he saw the video he was not so confident.

In my respectful view this matter should have been addressed by the learned trial judge and pointed out to the jury as a weakness in Wilson's evidence. It was insufficient to tell the jury that defence counsel referred to these 30-40 subsequent occasions.

Did the failure of the learned trial judge to address this matter cause the appellant to lose the chance of an acquittal? The appellant's counsel in effect conceded to the jury that it was the appellant who had placed a chair in the area of the barricade. Even if the jury accepted that concession they may not have been satisfied beyond reasonable doubt that that conduct amounted to taking part in a riot.

The second act relied on by the Crown was the placing of a mattress against the window of the fish bowl, said by the Crown to be done by the appellant. The learned trial judge described the video as containing a "fleeting shot" of a person said to be the appellant putting up a mattress.

If, in convicting the appellant, the jury relied on this second act and Wilson's identification of the appellant as the doer of that act then in my view the failure to draw the jury's attention to the abovementioned weakness, with the judge's authority behind it may well have deprived the appellant of an opportunity of a "not guilty" verdict.

For the above reasons I would allow the appeal against conviction and order a new trial.

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