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[1998] QCA 284
General information, not legal advice.
Court of Appeal (Qld)
1998-09-22
McMurdo P, McPherson J, Ambrose J, Mr P, Act J
Original judgment source is linked above.
(a) the period of detention of three months already served by the appellant; and
(b) the period of 5 days pre-sentence custody, but in this instance only in so far as the same has not already been taken into account in the period of three months detention served by him.
Having regard to the character of the offences as involving a high degree of mindless stupidity rather than malice, I do not consider that any useful purpose would be served either by recording a conviction or by ordering that the appellant undergo a period of supervision on his release from detention. The offences or the criminal conduct giving rise to them are not of a kind that are likely to be repeated; or, if they are, they are not such that recording a conviction, or the benefits of supervision, are likely to operate on the appellant as a deterrent.
1 This is an appeal by a child against his conviction on 19 May 1998 before a jury in Cairns of three offences.
3 Upon his conviction the appellant was sentenced on 9 June 1998 in respect of the manslaughter conviction to six months detention to be suspended after serving 50 per cent of that term.
4 Five days spent in custody was deemed to be time served under the sentence.
5 On the grievous bodily harm charge he was sentenced to three months detention "cumulative" with an immediate release order.
6 With respect to the negligence causing bodily harm, he was placed on probation for three years.
7 The Attorney-General appeals against the sentences imposed on 9 June 1998 on the ground that they are manifestly inadequate.
8 The appellant was born on 16 July 1981. He was therefore about 15½ years of age at the time of the commission of the offences and nearly 17 years of age at the time of his conviction and sentence.
"The verdict was unsafe and unsatisfactory with particular reference to the issue of identification which was crucial to the Crown case;
The learned trial judge's directions to the jury on the issue of identification included comments that were unnecessary and as such would lead the jury into error."
10 It is convenient to state shortly the circumstances of the motor vehicle collision which led to the appellant's conviction. It took place at about 11.30 p.m. on 28 February 1997 on the Bruce Highway at Edmonton, a short distance south of Cairns in North Queensland:
11 In the course of the trial, counsel for the appellant admitted the following facts.
That on 28 February 1997 at Cairns in the State of Queensland Olive May Vlassoff died as a result of injuries she sustained when a motor vehicle she was travelling in struck a rock on the Bruce Highway near Collinson Creek, Edmonton and as a consequence left the highway and collided with a tree.
12 A similar admission was made with respect to Angela Lina Porter who suffered grievous bodily harm as a result of injuries she sustained when travelling as a passenger in the motor vehicle. A third admission was made that Morris Fortune, Monica Strike and Paul Porter each suffered bodily harm as a result of injuries they sustained when that motor vehicle collided with a tree.
13 At the request of counsel for the appellant in the course of the trial the Crown prosecutor gave the following particulars relating to Counts 1, 2 and 3:-
"On the evening of 28 February 1997 K either alone or in company with another placed a rock Exhibit 1 in the north bound lane of the Bruce Highway near the Collinson Creek Bridge."
14 The Crown case was that two persons, one of them being the appellant, intentionally placed a large rock on the carriageway of the Bruce Highway shortly prior to the collision of a motor car with it; the passengers in that motor car were injured as a result of that collision, one dying as a consequence of her injury. It was the Crown case that the rock was placed in the carriageway with the intention of causing a collision between it and a motor car travelling along the road for the amusement or interest of the persons involved in placing it on the roadway or present to watch the consequences.
15 In fact eye witness evidence from persons at the scene at the time of the collision showed that a motor car containing the persons injured and killed did collide with the rock which was placed on the carriageway a short distance from the centre-line. As a result of that collision the driver of the motor vehicle lost control of it and it crashed into a tree where it caught fire.
16 Fortunately for the passengers in the motor vehicle they were assisted from it before the fire might reach a stage where it could cause them further injury.
17 No eye witness was called to identify the appellant as one of the persons involved in placing the rock on the carriageway. Eye witnesses placed him and a male companion in the vicinity of the collision area shortly prior to and shortly after that collision. However, the only evidence inferentially implicating him in the placing of the rock on the roadway was a statement he allegedly made in the presence of one of the persons involved in assisting to rescue the persons injured in the motor collision.
18 It is the contention of the appellant that the evidence of identification of him as the young man who made the admission upon which the Crown relied to achieve his conviction was unsafe because some five months after the event the lady to whom the admission was made was shown a photograph board with a number of photographs (including one of the appellant) and said that his photograph "looks like" the person who made the admission. The appellant relies upon observations in Pitkin v The Queen [1995] HCA 30; (1995) 69 A.L.J.R. 612 to support his ground of appeal.
19 The identification question in this case is different in many respects from that in Pitkin. Indeed, this was conceded upon appeal by counsel for the appellant. Nevertheless, it is said that the evidence of the only witness who could prove the inculpating admission against the appellant provided an unsafe and unsatisfactory basis for conviction having regard to her reaction when selecting the appellant as the person who made the admission on the photo board displaying twelve photographs as the young man she spoke to shortly after the collision which caused the death of one and injury to other occupants of the motor vehicle.
20 It is necessary to embark upon a careful analysis of the whole of the evidence placed before the jury concerning the identity of the young man making the inculpatory admission within minutes of the collision and also other evidence of opportunity which placed him and an acquaintance of his in the area of roadway where the rock was left resulting in the collision.
21 Detective Sergeant Thompson gave evidence that at about 11.30 p.m. on the evening of 28 February 1997 he was detailed to attend a motor vehicle incident. He said that he went to a part of the Bruce Highway near the Collinson Creek Bridge outside premises numbered 89 and 91 Bruce Highway. He found a damaged motor vehicle and five injured people in various positions inside and outside the yard of number 89.
22 In the course of his investigations he discovered a large rock in a drain which ran parallel to the highway. The rock had marks on it and there were indications that it was probably that rock with which the car had collided and that it would fit snugly into a gap in a rock wall near the edge of the road nearby. He said he stayed at the scene for 3½ to 4 hours.
23 He said that the accident attracted a lot of interest and there might have been 60 people including firemen, ambulance officers, people helping out and others just coming to the scene while he was there.
24 At some stage of the evening, the policeman saw the appellant. He described him as a 15 year old boy in shorts with a T-shirt. He said that at one stage he had a baseball cap in his hand and at another had it on his head. He said that he noticed the boy had red hair and that it was "spiked up a little bit".
25 Kerrie Ann Mann was travelling home to Innisfail in a southerly direction in a motor vehicle driven by her husband. She said that as they passed through the town she noticed near an intersection giving access to the local police station "two shadows like silhouettes running from the middle of the road off to the side of the road". She said that these shadows or silhouettes were on the north-bound lane when she saw them and they were running over towards houses. She said she remembered seeing two sets of legs in the middle of the road and then saw them running off to the side of the road. She said it seemed to her that they were travelling "towards the high house" but she did not take much notice because it was only when she travelled a little further on that she noticed a rock on the roadway. She was not asked to identify the "high house" on photos tendered as exhibits although it was obviously open to the jury to infer that she referred to the house shown in Ex. 16 in which the appellant was said to have made the admission. She said the rock she saw was on the northbound side of the roadway (she and her husband were travelling in a southerly direction) and was just off the white centreline of the roadway. She said the rock seemed to her to be "about 35 centimetres". She was shown a rock that had been tendered in evidence - the one that the policeman found which fitted into the rock wall - and she said that that rock looked "familiar". She said that at the stage she saw the two silhouettes running and it seemed to her that they were running in a northerly direction. She said she saw them running away off the road at about the time when she saw the rock. She said she was unable to recognize either of these persons. She said that she thought it would have been a quarter to twelve (midnight) when she made this observation.
26 Linda Kay Pitt said that she had been to Cairns and had left there at about 11 p.m. and was driving home towards Gordonvale. She was travelling in a southerly direction with her husband and she said that as they passed the bridge:
"I just thought I saw something on the right hand side but I thought it was a police radar trap at the time - 'cause as I came through my lights just caught something at the side. It looked like somebody sitting on a low stool or something to that effect."
She said that this was just after 11.30 p.m. She said that she did not observe anything on the road. She said that she was driving the car and so "I would have seen anything that was on the right hand side or in the centre I'd say".
27 She marked on a photograph the position where she thought she saw "a policeman" just south of the bridge.
28 Melanie Fay Brimblecombe at the time of the collision was living in a house with her sister at 87 Bruce Highway, Edmonton. She had returned home from work at about 5.15 p.m. She said she stayed home all the evening.
29 She said that her sister Rochelle Brimblecombe returned home at about 10.10 p.m. She said that a guard dog they had became agitated a couple of times during that night; once at about 10.30 p.m. and on the second occasion at about 11.20 p.m. She said on the second occasion she went down to see what the dog was barking about. She said she heard some mumbling voices and that "they sounded male, deep". She said that the voices seemed to be coming from the south of the house in which she was living "near the footbridge". She said there were only two mumbling voices that she heard.
30 She said that about 20 minutes after this she heard a loud thud and then some more thuds "like a vehicle had hit something". She said the noise was very loud and indeed "our house shook". She said that after the sound of the second thud she and her sister went to investigate. She rendered what assistance she was able to to injured people. She said that while she was on the footpath - it seems shortly after she first went down there - "two young boys came towards me along the footpath and yeah asked - stood next to me and asked me what had happened". She said this would have been a minute or two after the sound of the last thud. She said she recognized one of the boys, a tall boy named Shane McDougall. She said he was about 16 years of age and had "brown, blondy brown hair just past chin length." She said it was longish hair, about collar length. She said that both boys were wearing caps at the time. She said the other one was a bit shorter and had red hair and he was of a more solid build than McDougall and he was wearing a cap as well. She estimated his age at about 14 or 15 years. She said she did not know who he was. She said that McDougall asked what had happened and she replied that she did not know but that there had been an accident. She said that the red haired boy then said "They should go and call an ambulance" and "I said to them not to worry about it", that her sister had already gone and called an ambulance. She said that the red haired boy repeated "We should go and get an ambulance" and she repeated that her sister had already gone to get one. She said she had seen the large rock in the drain which passed in front of their house and that she had also examined the area next morning and found that there was a large rock removed from a culvert nearby. She identified a rock which was tendered as an exhibit as the rock that she had seen in the drain.
31 She told counsel for the appellant in cross-examination that she recognized Shane McDougall because he used to live in the house "across the road from" her. Precisely what "road" or when he used to live across it from her house was not pursued. She confirmed in cross-examination that she had spoken with both McDougall and the red haired boy within a minute or so of going out to investigate the accident and she reaffirmed what the red haired boy had said. Interestingly she was asked in cross-examination:
She said she was away about five minutes in an effort to get the police.
32 She said that she later saw the two boys heading in a northerly direction towards the accident site. At that time they were south of the bridge. However, she said that after the accident occurred she had first seen them coming from the north. It was only after the ambulance had taken the injured people away that she saw the boys coming from the south side of the bridge. She confirmed in cross-examination that it was while her sister was away arranging for an ambulance that she had spoken to the McDougall boy and the red haired boy. Towards the end of her cross-examination counsel for the appellant repeated:
33 Rochelle Brimblecombe gave evidence that on the night in question she finished working at the Edmonton Service Station about 50 yards removed from her house at about 10 p.m. At that business there was a security camera - videotape recording persons entering the station. She walked home from work. She said she knew the boy McDougall and also the appellant. They were both regular customers at the service station where she worked. She said she knew another young man named Dwayne who was about 18 to 20 years of age. She said she thought that the appellant K was about 18 years of age. She said that on the evening of the collision the appellant came into the service station where she was working. He came into the shop with a girl she knew as Sarah "and a few other kids". She could not say what time it was but it was dark and some time before she finished work for the evening. The appellant and apparently some of the "other kids" bought some groceries "like confectionery". She knew Sarah because she was living in the house next door to that in which she and her sister Melanie Brimblecombe lived. After returning home she returned to the service station to give the girl then on duty an alarm device, she then returned home. She said that she noticed that a guard dog that she and her sister had, became disturbed a couple of times. On the last occasion the dog went downstairs and she followed it. This would have been shortly after 11 p.m. When she looked towards the roadway she saw McDougall and the appellant K then walking down the road towards the service station in a southerly direction. She said they were talking together in "just mumbles". Eventually she lost sight of them. About ten to fifteen minutes later the guard dog commenced to bark again. She again ran outside to see what had disturbed the dog and she said that "I could hear mumbles again". She said that those "mumbles" appeared to be made by males.
34 Eventually quietness again prevailed. There was no loud music or indeed any noise at all. She was talking with her sister when she heard a series of loud noises at the front of the house. This occurred about ten minutes after she had last entered to the house having investigated noises downstairs. She then heard noises that sounded as if a car had hit something. Eventually there was "one big final bang and our house shuddered". She said she went straight to the source of the noise and saw that a car had come to rest in a neighbour's yard. When she arrived some other people were present and an adult asked her to get an ambulance; she immediately went to the service station and telephoned for one. After that she returned to the scene of the collision and noticed a rock lying in the gutter. She identified that rock in Court. She said that although she recognized some other people immediately after the accident she was not sure whether she saw the appellant. Later in the evening she saw the boy McDougall with somebody else but she was not sure who that person was.
35 In cross-examination she agreed that the appellant left the service station around 9.30 p.m. and she said that she did not know where he went. She did say she overheard a conversation between the appellant and another boy to the effect "I'll meet you at the tennis courts" and "we'll see you over there".
36 She confirmed again in cross-examination that some time after 11 p.m. on the night in question she saw the appellant and the boy McDougall walking past her residence in a southerly direction. She agreed in cross-examination that she had looked at videos taken on the service station's security system and that she had observed that at 11.17 p.m. the attendant at the service station served McDougall. She agreed that the video recording device at the service station showed that she had run into it to telephone for an ambulance at 11.35 p.m.
37 The critical witness for the Crown case was Susan Gresham. She said that on the night in question she was driving a car in which she and her husband were travellilng in a northerly direction. She said that as she approached the southern side of Edmonton she found that she was following a station wagon travelling at about 60 kph in the same direction. She said that she was travelling a couple of car lengths behind it. Between 11 p.m. and midnight the car she was following had just gone over the bridge at Collinson Creek in Edmonton when "it hit something on the road, lifted up and sparked and swerved off the road and hit a tree". She said that she slowed down and pulled off the road as soon as she could and ran straight back towards the car that had collided with the tree. She said that her husband Dane Gresham ran off to get an ambulance. She said that when she arrived at the scene the car had started to catch fire and she was anxious to get the injured passengers out of it as soon as possible. Having done that she decided she would get some blankets to put over the injured people and at this stage she met a young girl who identified herself as Sarah. She said she went with Sarah up to her flat. She identified the building that she went to as number 91 - one apparently adjacent to the Brimblecombe sisters. She said that when she initially talked to the girl Sarah she was "just standing there at first just - I don't know shock". Mrs Gresham said that she pressed upon the girl the urgency of getting some blankets. She said:
"I had to grab her arm because she was standing there and I grabbed her and started running towards the house and we got to the stairs and as we're nearly at the top of the stairs she shot out in front of me to go inside the house".
38 She said that she followed the girl into the house and saw two boys in the house aged about 15 or 16. She said that as she entered the house it appeared that those boys were "trying to get out the back door". She said that she went in to a bedroom with the girl Sarah where they obtained some bed clothes. She described each of the two boys that she had observed briefly as she went for the blankets. She said:
"The first one was shorter and had spiky short hair - and a bit of a chubby face and bright eyes and the second one was taller and had dark shoulder length hair and browny olive skin."
She said that the boy described as the short one with the short spiky hair said to her:
"I'm sorry, I'm sorry. I didn't mean this to happen."
39 She said he also asked what injuries the people involved in the accident had suffered. She said that eventually she collected some bedsheets and went down to attend the injured people near the car which had collided with the tree. She rendered what assistance she could and shortly an ambulance arrived on the scene. She said that when she arrived back with the sheets after her conversation with the youth she later identified as the appellant she endeavoured to cover one of the injured persons and then her husband called her over to another passenger who had lost her arm. It was at this stage that the ambulance arrived. She said she saw the injured people being put in the ambulance and then noticed the boy (later identified as the appellant) to whom she had spoken shortly before. She said:-
"He was behind the back of the car with a group of other boys, teenagers and he called out to me and I turned around and I seen them all and he was just asking me more of what was wrong with the people, what injuries they had and he said 'Do you remember me helping you out with that lady' and then I remembered who he was, what he had said and I saw that he was the boy inside the house and I remembered what he said and I got very angry then."
40 She said that no young people had given any assistance to remove anybody from the burning car. She said she did not see that young man again that night.
41 In cross-examination Mrs Gresham agreed that it was on 8 March 1997 (about a week after the accident) that she gave to the police a description of the young man who had spoken to her while she was up in the house getting sheets and presumably a statement as to what he had then said to her. In cross-examination she agreed that in the statement she then gave to the police she had said:-
"One of the males was very short. He had really short spiky hair. It is hard to say what colour it was because it was so short. He had chubby cheeks."
She agreed that it was that same boy to whom she had spoken a little later in the evening.
42 She agreed in cross-examination that on 24 July 1997 she had gone to the police station and had there been shown a photo board from which she had selected the photograph of the appellant. The identification that she then performed had been video-taped and it was placed before the jury. All this was done at the request of counsel for the appellant. After the videotape had been played counsel for the appellant continued in cross-examination:-
"Q. Mrs Gresham I just want to put it to you that the young man sitting behind me K was not the young man that spoke to you in the house or outside that particular night.
43 In re-examination the Crown prosecutor had Mrs Gresham prove the photo board from which she had identified the appellant as recorded on the videotape which had been tendered by counsel for the appellant and played before the jury. She had signed that photo board.
Mr Dane Gresham gave evidence that on the night in question:
"as we came past the Shell Service Station -- I saw the left hand side of the vehicle leap in the air probably two or three feet. When it came back down on the road it chopped to the left, jumped the gully and hit a tree."
"I saw a white flash through the windscreen. As we kept going and as I followed the car I saw that it was a rock as it landed in the gully on the left."
He said that he pointed out to the police officer where he had seen the rock land and that was the rock which was tendered as Ex. 1 - the Crown case being that it was that rock that the appellant either alone or with the assistance of another person had deliberately placed on the carriageway. He said that his wife pulled the car up quickly and he ran back to the damaged vehicle and asked generally if anybody was hurt but receiving no answer presumed that the occupants of the motor vehicle were hurt and he went off to look for a telephone. He said that there was a flat "in a house" near where the car came to rest and that this was the only place he could see with lights on. He identified the house he went into from a photograph tendered. He called loudly for somebody to ring for an ambulance but was unable to attract the attention of people inside. He said "basically they all stood there and looked at each other". He said that as far as he could tell there were a number of people sitting around what appeared to be a kitchen table. He recalled that both he and his wife later gave assistance to the injured passengers of the motor vehicle involved in the collision.
44 An important part of his evidence upon which the Crown relied related to the conversation which he said he observed his wife have with a young man he identified as the appellant near the site of the collision. He said:-
"After I think everyone was in the ambulance and the ambulances were leaving she'd apparently run to the same flat to get some sheets or blankets or something and she said she had to take them back to a girl she was quite well still in shock I presume but reasonably calm. I'd noticed her talking to this girl and there was a young bloke sort of hovering around and he said something to her and she got very agitated. So I mean she's a very easily agitated woman my wife but yes she got very agitated and I sort of went over and grabbed her and led her away."
He said that the agitation was directed "at the young fellow" whom he described in the following terms:-
"He's fairly short, had a round sort of face, short cropped strawberry blond hair."
He said that he did overhear conversation between his wife and this young man.
"I think I heard him say that he had helped her get the old lady's legs out of the car."
He said that it was then that his wife became very agitated and said something like:
He said that his wife calmed down a little after he led her away.
45 Mr Gresham under cross-examination by counsel for the appellant said that when he spoke to police officers on 8 March 1997 he recalled the appearance of the boy to whom his wife had been speaking near the car on the night of the accident. His evidence in cross-examination was:
"Q. And when you gave that description to the police that was what was in your mind's eye at the time as the person who'd been pointed out by your wife.
46 Under further cross-examination by counsel for the appellant Mr Gresham agreed that almost five months after the collision and his observation of the appearance of the young man whose conversation with his wife had agitated her on the night of the collision, he was invited by police officers on 24 July 1997 to look at a photo board. He agreed that a videotape had been taken of what he said when he viewed this board and identified the appellant as the young man to whom his wife had talked. Counsel for the appellant then called for that videotape of the photo board identification and tendered it.
47 In the course of the photo board identification Mr Gresham is recorded as saying:
"Yeah I think that's the fellow my wife pointed out."
He said in evidence that the photograph he selected was that of the boy whom his wife had pointed out to him on the evening of the accident.
48 Preferring the security of dock (buttressed by the presumption of innocence) to the predictable (and unpredictable) dangers of the witness box where exculpatory evidence would be exposed to the rigours of cross-examination, the appellant elected to give no evidence and to call no evidence.
49 As a consequence of adopting this course, the evidence led by the Crown remained uncontradicted and the jury no doubt keeping in mind cross-examination of Melanie Brimblecombe, presumably upon the detailed instructions of the appellant, concerning inter alia the events of the evening in question including conversations that she had had with him concerning calling the police to the scene, were left to evaluate the reliability of the recognition/identification by Mrs Gresham of the appellant as the boy who made the admission when she spoke to him near the scene of the collision within ten minutes or so of it being made without the assistance of any evidence from anybody else.
50 Examination of the video record of the photo identification by Mrs Gresham indicates that the photo board containing photographs of twelve young men (including the appellant) which was tendered by the Crown Prosecutor was examined by her for about 20 seconds before she pointed to Photograph No. 8 - that of the appellant - and observed "this one looks like him but I'm not positive". She then commented "I think his face looked a lot fatter".
51 An examination of the video record of the identification of the appellant by Mr Gresham shows that he looked at a photo board containing a dozen photographs of the same young men shown on the photo board seen by his wife. However on that photo board the appellant's photograph had been changed from the position on the photo board shown to his wife (No. 8) to number 6 position.
52 Mr Gresham studied the photo board for about 12 seconds and then pointing to No. 6 photograph said:
"Yeah I think that's the fellow my wife pointed out -- that said he tried to tell her he was helping her to take a lady out of the car --
53 It is clear that each of the Gresham's gave a statement to police officers within about a week of Mrs Gresham's recognition/identification of the appellant on the night of the collision as the boy who made the admission.
54 It is clear in my view that Mrs Gresham recognized/identified a young man at the scene of the collision as the young man who was, perhaps ten minutes earlier, in the house when she accompanied the girl Sarah to collect blankets to cover the persons seriously injured in the collision and made the statements that the Crown relied upon to prove his involvement in placing the rock on the carriageway which caused the collision.
55 The importance of the recognition/identification of that young man at that time is that it long preceded the photo board identification which for some reason was made nearly five months later. For understandable reasons the Crown did not attempt to put that photo board identification before the jury. It was decided by counsel for the appellant to do so, presumably to achieve the perceived forensic advantage of demonstrating to the jury that five months after her first identification of the young man at the scene of the accident she could not be "positive" that the photograph of the appellant to which she pointed was one of the young man who made the admission to her but was only a photograph of "one looking like him" and thus her reliability as a witness was open to challenge.
56 Presumably the jury when the photo boards were placed before them by the Crown prosecutor were able to see that Photograph 8 on the photo board given to Mrs Gresham and Photograph 6 on the board given to Mr Gresham were indeed photographs of the appellant in the dock before them. The circumstances in which each chose the same photograph from photograph boards never previously seen by them were obviously relevant in assessing the reliability of the recognition/identification evidence of each.
57 Perhaps that is why counsel for the appellant then invited if not pressed Mrs Gresham to make a dock identification. One can only suppose that if Mrs Gresham had replied that she could not be sure that the appellant in the dock was the young man to whom she had spoken in the house within minutes of the collision that would have made it difficult if not impossible for the Crown to prove its case of criminal negligence against him.
58 The evidence of Mr Gresham in my view strongly supports that of his wife who said that when she spoke to the young boy at the scene of the collision she then recognized/identified him by her mental processes as being the same person as had made the admission to her ten minutes earlier when she had accompanied Sarah into the house in which he and another boy were present together for the purpose of obtaining coverings for the injured passengers of the car on the footpath outside the house. That was the occasion of Mrs Gresham's first recognition/identification of the boy who had made the admission. Undoubtedly it was open to the jury to infer that the second contact she had with the boy probably assisted to fix more firmly in her mind his identifying features.
59 The evidence of Mr Gresham does not of course purport to identify directly the appellant shown on the photo board as the person who made the admission to his wife. His evidence only identifies the appellant as the boy with whom his wife had a disagreement at the scene of the collision when she became very agitated because she then recognized him (according to her evidence) as the boy who had ten minutes earlier made a statement capable of being construed as an inculpatory admission that he had been involved in acts causing the collision.
60 Neither Mr nor Mrs Gresham had previously seen the photo boards from which each selected the appellant's photograph. Mrs Gresham selected his photograph as a photograph of the boy who had made the inculpatory admission within minutes of the collision, who was the same boy as the one to whom she had spoken which led to her agitation ten minutes later.
61 Mr Gresham on the other hand identified the appellant only as the boy with whom he had observed his wife have a discussion which led to her agitation within ten minutes or so of the collision.
62 I would view the evidence of Mr Gresham as supporting that of his wife strongly to the extent that by his photograph board "identification" he was able to identify the appellant as the boy to whom his attention was drawn when his wife recognized/ identified him as the boy who had made the inculpatory admission ten minutes or so earlier in the evening within a minute or so of the motor vehicle collision with the tree taking place.
63 The Judge's summing up lasted for about 40 minutes. Upon the jury's retirement, no re-directions were sought. The learned trial Judge pointed out to the jury that the criminal negligence of a person who placed the stone on the roadway leading to the collision was not really in issue. What was in issue was whether it was the appellant who did that. The evidence relied upon to show it was the appellant was the admission of his involvement that was made by a young boy to Mrs Gresham. The jury were directed in traditional terms as to the necessity for being satisfied that the words were said and that they were true and that they truly did inculpate the young man who said them. However, his Honour pointed out to the jury that the significant issue for them to determine was whether they were satisfied beyond reasonable doubt that indeed it was the appellant who had said those words to Mrs Gresham and a good deal of the summing up dealt with this issue. I will select only some of the many passages that dealt with this point. I mark those passages asserted to be unnecessary and likely to lead the jury into error. In the course of his summing up the learned trial Judge said:
"A challenge has been made to the suggestion that K was the person who used those words. The only evidence that the words were said comes from Mrs Gresham. You have to accept beyond reasonable doubt that those words were used. Is she accurate in her identification that K was the person who spoke the words in the house? And the person who spoke to her again soon after at the accident scene? She had not seen him before that night. She has seen him since in connection with this case. You must be satisfied beyond reasonable doubt that she got the identification right.
Mistaken identification has been the most common documented cause of miscarriage of justice. There are a number of documented cases where in fact people who have been later found to be innocent have been convicted on identification evidence. The experience of the court is that mistakes can be made in identification and experience has shown that even where a number of witnesses make the identification there can still be a mistake.
The reason identification can be seen to be so persuasive even though mistaken is because the identifying witness is usually honest. And whether honest or not that witness believes quite firmly that the identification is correct.
So in this case as we say in all cases involving identification you must approach evidence of the identification with a great deal of caution and care --
(And it is an endeavour to minimize that risk of wrongful conviction based on (identification evidence that the High Court of Australia has laid down (guidelines for police to follow in identification. These include suggestion that (at the earliest possible opportunity a witness should be asked to take part in (an identification parade. That is often believed to be the safest way most (satisfactory way of ensuring that a witness' identification is correct. That is (not always possible to arrange. And if it is not practicable the Court has (suggested that witnesses be asked to look a display of 12 or more (photographs of persons similar in appearance to an accused person. And then (if a witness selects a photograph of the accused person and that has happened (in this case then the prosecution may rely upon that type of evidence as an act (of identification."
64 His Honour did not point out to the jury that in fact it was counsel for the appellant who put before them the photo board identification of the appellant by both Mr and Mrs Gresham. It would be unsurprising, the appellant having placed that material before the jury, if the Crown did not attempt to draw some support from it. However, it appears to have been no part of the Crown case initially at any event, even to refer to the photo board identification of the appellant some five months after his alleged conversation with Mrs Gresham.
"The guidelines followed by the police recognize that the use of photographs is inherently less reliable than personal identification --
(And I daresay each of you have seen photographs of yourselves or close (family members or friends and you say 'well that really doesn't look like the (person I know'. So photographs can be less reliable.
Another possible source of error in identification of a photograph or even of direct personal identification is that if the person believes that the person under suspicion is amongst the photographs then psychologically they are more likely to pick out (one) who looks like the offender as being the offender."
In this case the person who spoke to Mrs Gresham was a stranger to her. The fact that she was upset by his later comments to her might make her notice more sharply his appearance. But again you have to consider the whole of the circumstances, the horror of the scene, the horror of the efforts on helping those who were the victims.
The prosecution relies on Mrs Gresham's identification of the photographs of K in the photo board some five months later. That was used to see whether her identification was correct. The identification by Mr Gresham was again some five months later. His attention was drawn to the person who Mrs Gresham identified so he's simply following the lead which she gave.
In the end result my direction is that in identifications the evidence going to identification must be scrutinized carefully and the circumstances of the identification looked at and the question ultimately is are you satisfied beyond reasonable doubt that the identification was correctly made".
(Does Mrs Gresham's comment at the time of the identification which you (heard on the video, 'He looks like the person. I thought he had chubbier (cheeks' or words to that effect. You can play the video again if you cannot (recollect the words. Does that give an indication that she is honestly trying to (be sure about her identification? You might add that to what I said of people (who are familiar with you too, whether they are always good likenesses.
66 His Honour dealt with Mrs Gresham's observation recorded on the video tape when she performed the photo board identification exercise. He asked rhetorically:
"Does that give an indication that she is honestly trying to be sure about her identification? You might add that to what I said of people who are familiar with you too whether they are always good likenesses".
67 Referring to the dock identification that Mrs Gresham was invited by counsel for the appellant to make his Honour said:
"You have the evidence of Mrs Gresham in court that K was the man she spoke to on that night. You heard Mr McCreanor suggest to her that she was mistaken about the identification. She said she was not. Her evidence was quite positive. Again you should be aware Mrs Gresham has had the opportunity to see K during the time that she was giving evidence here and at the Magistrates Court at the preliminary hearing. The identification of a person under suspicion while that person is in court is also evidence that must be taken with great caution.
So all these matters have to be considered by you. The gap in time starting with the very circumstances in which she makes the original identification, was it such that she would be certain about the looks of the person she was talking to given the nature of the conversation? You have to take into account the gap in time before the identification was taken at the photo board, the nature of that identification. The longer the gap of courses the greater risk of error.
You take into account the various descriptions which counsel have read out to you from evidence but if you wish me to read out the descriptions which Mrs Gresham gave which the witness Brimblecombe gave and Mr Gresham gave I am quite happy to do that but they are basically fresh in your mind. And you have to be satisfied beyond reasonable doubt that the identification was accurate.
The matter of Mrs Gresham's identification in terms of her description given to the police some days after the incident the terms of that have been read out to you by Mr McCreanor - you can have them read out again if you wish. Mr McCreanor has drawn your attention to that description, to the evidence about the hair, the way it conflicts or the way he suggests it conflicts with what Sergeant Thompson said. You may or may not think it conflicts. That is entirely a matter for you.
You have to consider the accuracy of that identification evidence in the context of the whole of the evidence which you accept. The Crown case depends upon your acceptance of Mrs Gresham's identification as being accurate. If you have a doubt, that is a doubt based on reason about that identification that really is the end of the matter and you would have the responsibility to acquit.
If on the other hand you accept as accurate beyond reasonable doubt Mrs Gresham's identification then it is open to you to convict and those remarks apply to each of the three charges."
68 No complaint was made about the reference to "a doubt based on reason" having regard to the context in which that observation was made and the directions generally given to the standard of proof.
69 His Honour canvassed with the jury the evidence of various eye witnesses as to the times when the appellant and the other young boy McDougall were seen before and after the collision. No objection to that part of the summing up was taken on appeal.
70 After a retirement of two hours the jury returned a verdict of guilty on all three counts.
71 Upon my examination of the evidence the Crown case presented to the jury could not be described as overwhelming. Essentially it was a case based upon circumstantial evidence and evidence of opportunity but critical to its success was proof that a boy of 15 to 16 years of age made the statement to Mrs Gresham to which she swore shortly after the collision; that that statement amounted to an inculpatory admission; that the boy had been involved in causing the collision; and most importantly that Mrs Gresham had correctly identified the appellant as the boy who had made that inculpatory admission.
72 The defence was conducted understandably with a view to shaking the reliability of the identification evidence of Mrs Gresham. It must have been for that reason that the photo board identification exercises by both Mrs Gresham and Mr Gresham were placed before the jury on behalf of the appellant. It must have been thought that the reservations displayed by both in not categorically identifying the photograph of the appellant on the respective boards could be used to advantage in attacking the reliability of the identification made on the night of the collision. Similarly the dock identification made by Mrs Gresham at the invitation if not indeed, demand of counsel for the appellant must have been sought hopefully to elicit from her either directly or by change of demeanour in answering the question some reluctance to state positively that the appellant was the boy that she had spoken to. This was a forensic ploy adopted by counsel for the appellant who had had the opportunity to observe Mrs Gresham giving evidence before the jury and also of course had had the opportunity to observe the way in which she made the photo board identification five months after the event. That must have occurred about ten months before date of trial. Unfortunately for the appellant Mrs Gresham, far from admitting the possibility that she might be in error in her identification staunchly and positively affirmed that her identification was correct.
73 The learned trial Judge was left with the task therefore of summing up to the jury not merely on the careful scrutiny to which identification evidence must be subjected but also on the care which must be taken in evaluating photographic identification evidence and as well of course the care with which dock identification must be considered.
74 In my view the learned trial Judge dealt with all these matters at great length and no complaint really is made as to the substance of the directions that he gave. No re-directions were sought when the jury retired. The complaint now made that some comments in the course of his directions (which I have marked) were "unnecessary" and such as "to lead the jury into error" in my judgment is without substance when they are considered in the context of the stress laid upon the caution necessary in evaluating the reliability of the recognition/identification evidence of Mrs Gresham.
75 It is clear that records of interview were taken from the appellant but these were excluded upon a pre-trial directions hearing relating to the conduct of the trial. No mention was made of their existence before the jury. It is impossible to say whether they contained any exculpatory material.
76 When the evidence in the case closed, the jury was left only with the evidence called by the Crown which I have already analyzed. There was nothing to suggest that the appellant had ever denied having the conversation with Mrs Gresham to which she swore. There was nothing to suggest that he was not at the material time in the room in the flat where Mrs Gresham said she had the conversation with him. There was no evidence from anybody to cast any doubt on the honesty or reliability of either Mr Gresham or Mrs Gresham in the evidence which they gave identifying the appellant.
77 In Pitkin when he was arrested ten months after the commission of offences with which he was charged and later convicted, the appellant did in fact deny any involvement in either offence. He stated that he was unable to remember his movements on the day the offences were committed. There was no in-court identification. Apparently the appellant made an unsworn statement from the dock to the effect that at the time the offences were committed he in fact had long hair. One of the identifying witnesses described the offender as having "very short" hair "like a crewcut". At p. 614 it was observed in the judgment of the Court:
"That meant that the prosecution case against the appellant ultimately rested upon the fact that Ms Vella who had seen the offender, identified three photographs of the appellant with the comment 'this looks like the person'.
78 As it was conceded on behalf of the appellant in this Court the circumstances of identification in this case are quite different from those in Pitkin. Furthermore the first identification of Mrs Gresham made within ten minutes or so of the conversation she had with the appellant was made long before she and her husband were invited to look at the photo boards five months after that conversation for the purpose of seeing if they could still recognize/identify from any of the photographs the features of the boy they had seen on the night of the collision.
79 I am unpersuaded that the conviction of the appellant was unsafe and unsatisfactory. I would dismiss the appeal against conviction.
80 With respect to the appeal against sentence by the Attorney-General it is my view that upon convictions for manslaughter, grievous bodily harm and a negligent act causing bodily injury to a number of people where the basis of all offences was criminal negligence going so far as to require punishment, sentences imposed upon a child 15½ years of age when he committed those offences requiring only three months detention with a three year probation order becoming operative no doubt upon discharge from detention are manifestly inadequate.
81 Pursuant to s.303 of the Criminal Code and s. 121(3) of the Juvenile Justice Act the maximum period of detention that could be imposed upon the applicant for manslaughter having regard to his age was ten years detention - on the basis that the offence could not be properly characterized as "heinous". With that characterization the maximum penalty would be 14 years.
82 On this appeal it was not argued that the offences were "heinous".
83 With respect to the grievous bodily harm conviction pursuant to s.320 of the Criminal Code and s.121(2) of the Juvenile Justice Act the maximum penalty was seven years detention.
84 With respect to negligence causing bodily harm, pursuant to s.328 of the Criminal Code and s.120(1)(f) of the Juvenile Justice Act the maximum penalty that could be imposed was one year detention.
85 I have outlined sufficiently the circumstances of the offences when dealing with the appeal against conviction. The respondent to the Attorney-General's appeal was involved with one or more people in placing a large rock on a well-trafficked part of the Bruce Highway in the night-time. It was placed there intending to cause a motor vehicle to collide with it - putting both the vehicle and occupants at risk of damage and injury the extent of which was quite unpredictable; it may have led to a multi-vehicle collision causing many deaths and much more serious injury. In this case by chance the consequences of the criminal negligence of the child were less horrendous than they may have been. Predictably a motor vehicle did collide with it and one passenger in the car was killed and another one had her arm torn off. Three other occupants of the car suffered various lesser injuries.
86 The learned sentencing Judge observed that the respondent had not previously come to the notice of the law, that he ordinarily lived at home with his parents although at the time of the offence he was apparently living in his grandfather's house. His Honour had regard to observations in a pre-sentence report and observed that a period of imprisonment was required because the offence was "morally offensive to the community".
87 A pre-sentence report had been prepared in accordance with s.110(1) of the Juvenile Justice Act to assist the Court when imposing sentence.
88 It appears from the report that the child was arrested on 22 May 1997 (about 3 months after commission of the offence) and placed in the Cairns Watch house. When he appeared in the Childrens Court on 23 May 1997 he was refused bail. A bail application was successful on 27 May 1997 when he was released on his own undertaking. It was observed that at date of sentence on 9 June 1998 the child would have spent five days in custody attributable only to the offences of which he was convicted.
89 The child left school in 1996 and thereafter "worked consistently both in the concreting industry and as a packer in a supermarket". At the time of preparation of the report the child was working with his stepfather as a concreter's labourer.
90 It is observed that the child's parents "are very committed to him and will continue to support him regardless of the outcome of the proceedings.
91 At the time he was interviewed for the report the child maintained that he was innocent of the offence. There is no suggestion of any remorse on his part. The inculpatory statement he made to Mrs Gresham which undoubtedly led to his conviction, I would regard merely as the effect of a hopefully mitigating excuse for conduct acknowledged to be blameworthy.
"Should K be placed under a probation order the Department would as a matter of course consider such programmes as victim awareness counselling, counselling regarding offending behaviour, further assistance with employment and job training."
93 In the course of the report relating to the power of the sentencing Judge to make a detention order it is observed:-
"Detention would clearly satisfy the justice requirements regarding these offences but it appears that detention may do little to reduce or curtail further offending in the community. If detained K would participate in a range of programmes and activities: however it is believed that specific rehabilitative programmes developed in the community are more productive in preventing recidivism than incarceration away from the community and away from the child's family."
"If your Honour feels that a detention order is warranted in this instance it is respectfully requested that consideration be given to s.165 of the Act which states that a Court may make a detention order against a child only if the Court after considering all other available sentences and taking into account the desirability of not holding a child in detention is satisfied that no other sentence is appropriate in the circumstances of the case."
94 Submissions were contained in the report relating to the making of an immediate release order under s.177 of the Juvenile Justice Act.
"K and his family have been to a large extent ostracized by the local community and Ms Russ has been discharged from fulltime employment due to K being charged with the offences".
96 Although the Crown case was consistent with the accused being only one of a number of children or young people responsible for the death and injury caused to occupants of the car it seems that it was not possible to obtain relevant statements from any other young people. Apparently there were claims of privilege. It was only the statement made to Mrs Gresham that arguably amounted to evidence of the appellant's involvement in causing the collision.
97 It is clear that there was community outrage at the serious injuries inflicted upon innocent people by the deliberate acts of the child which brought about the collision for the only conceivable purpose of his entertainment and amusement and/or those of his other youthful associates.
98 In my view a sentence of an effective three months detention with a period of three years probation is quite insufficient to mark community disapproval of the offences of which the child was convicted or to deter other people of the appellant's age and background from committing such types of offences. Indeed for the survivors of the lady killed and for the other lady who lost her arm as the result of the collision and indeed for the other elderly persons all of whom seem to have suffered lasting and painful injuries the penalties imposed in my view are so light as to cause those victims of the child's malicious behaviour and members of the community generally to be understandably aggrieved. The tragic effect of their injuries on the life remaining for the lady who lost her arm and her significantly injured husband who is dependent upon her is recorded in the victim impact statement placed before the sentencing Judge.
99 In spite of the observation in the pre-sentence report that "detention may do little to reduce or curtail further offending in the community" it is my view that courts of justice dealing with offences of this kind must impose condign sentences which are designed to deter other like minded or motivated people from committing similar types of offences. In my judgment nothing would be more likely to fail to discourage such dangerous and malicious conduct on the part of adolescents than the imposition of such lenient sentences as those against which the Attorney-General appeals. To characterize the offending behaviour of the child as a mere "childish prank" or as merely "mischief" that adolescents of his age sometimes get up to but "grow out of" as they approach or attain their majority in my view fails to address the necessity of imposing sentences of a kind designed to deter the commission of like offences in an attempt at least to protect unsuspecting members of the community against harm inflicted upon them indiscriminately by malicious people - even if they be "only" children. Section 4(a) of the Juvenile Justice Act in my view makes deterrence one of the "general principles" upon which the imposition of sentences on children is to be based.
100 The Juvenile Justice Act in fact provides for maximum periods of detention of children which are significantly less than the maximum periods of imprisonment to which adults would be liable for the same offences.
101 Undoubtedly the scheme of the Juvenile Justice Act is to treat children with much greater leniency for even serious criminal offences than that with which adults would be treated. That is reflected in the maximum sentences specified for the various offences of which the appellant was convicted to which I have referred.
102 I can find no warrant in the terms of the Juvenile Justice Act to justify the reduction to an almost token level of the sentence imposed upon 15½ year old child for offences involving the malice and serious consequences of these offences.
103 It is my view that deterrence of other children of similar age, whether or not associates of this child, from committing similar sorts of offences is in accord with general principles for the exercise of sentencing discretion which are not irrelevant when a court must impose a sentence on a child for serious criminal offences of these kinds.
104 There must be a judgment reached in fixing a penalty which attempts to balance considerations of the age of a child who exhibits moral irresponsibility and immaturity which may have motivated his or her intentional and malicious behaviour on the one hand and on the other, the need for efforts to be made when imposing punishment to make available as far as reasonably possible opportunities for counselling and rehabilitation directed towards that child overcoming his or her anti-social attitudes. The scheme of the Act is designed to give assistance to the rehabilitation of a child convicted of serious offences. However a child convicted of offences of the sort for which this child was sentenced ought not be regarded as a victim of the punishment imposed by the criminal justice system. The real victims in respect of whom that system must impose punishment for these offences were the elderly people who were killed and maimed and injured by the malicious conduct of that child as they went peacefully about their own affairs proceeding down the well-trafficked Bruce Highway at Edmonton. They and the community generally are entitled to see the imposition of retribution appropriate to the blameworthiness and criminality of the child having regard to his age and experience. The terms of the Juvenile Justice Act itself ensure that because the offender is a child, the maximum penalty which may be imposed is fixed significantly below the level which might be imposed upon an adult.
105 For the Crown it is contended that the range of sentence appropriate on the facts of this case is from two to three years detention.
106 Finally it was the submission on behalf of the Attorney-General that a period of two years detention should be imposed in this case.
107 I find it difficult to conceive of more culpable conduct on the part of a 15½ year old youth which could lead to more serious consequences, which would not be characterized as "heinous" under s.121(3) of the Juvenile Justice Act, and thus attract a maximum sentence of 14 years detention than that under consideration in this case. Both Counts 1 and 2 are for serious offences as defined in s.8 of the Juvenile Justice Act.
108 In my view the minimum head sentence appropriate for this manslaughter offence (keeping in mind also the grievous bodily harm offence) - which attracts under the relevant legislation a maximum penalty of ten years - should be within the range of from 5 to 6 years detention.
109 In the absence of further persuasive submissions from counsel I would have allowed the appeal against sentence. I would have set aside the sentences imposed. I would have imposed a sentence of five years detention on the count of manslaughter and four years detention on the count of grievous bodily harm, those periods to be served concurrently. I would have made no recommendation with respect to release. The appellant would then have been be released after serving 70 per cent of that time - i.e. after serving 3.5 years of the five year detention order unless a specific recommendation for release after serving 50% or more of that time is made under s. 188(2). I can find no "special circumstances" in this case to justify making an order under s. 188(2). In light of the decision reached on sentence by the other members of this Court, however I have not sought further submissions.
110 With respect to the negligent act causing bodily harm charge, in my view, the appropriate sentence is one of detention for six months to be served concurrently with the sentences imposed upon Counts 1 and 2.
111 The period of five days spent in pre-sentence detention and the period of three months detention already served under the sentence against which the Attorney-General has appealed should be treated as or deemed to be detention already served under the sentences imposed by this Court.
112 I would recommend that upon release from detention the appellant be supervised and counselled with a view to discouraging him from any predilection he may have to engage in further anti-social activity putting the safety of members of the community at risk, and to ensuring compliance with any conditions imposed to achieve that end by the Chief Executive under pain of revocation of the release order under s. 191(1).