R v Leroy and R v Graham [2000] NSWCCA 302 | Case summary

The appellant Graham also seeks leave to appeal against sentence on the following grounds: Ground 1 : The sentences imposed by the learned sentencing judge are manifestly excessive. Ground 2 : The learned sentencing judge erred in failing to fix an appropriately adjusted additional term in relation to the offence of maliciously inflict grievous bodily harm after holding that special circumstances under s 5(2) of the Sentencing Act existed. Ground 3 : The learned sentencing judge erred in making the sentence for the offence of maliciously inflict grievous bodily harm cumulative upon the sentence for the offence of affray. Ground 4 : The learned sentencing judge erred in effectively increasing the minimum term to be spent in custody by the appellant by failing to make the sentences upon the two offences concurrent. 10 In substance there are two issues in the conviction appeals: (a) Whether the identification evidence ought to have been admitted at all, and (b) Whether having regard to the alleged deficiencies in the identification evidence, there has been a miscarriage of justice in the sense that the verdicts are unreasonable and cannot be supported by the evidence, or to use the language formerly in vogue, the verdicts are unsafe and unsatisfactory. 11 The trial commenced with an application on behalf of the appellants to exclude the identification evidence. Essentially the application was based on s 114 of the Evidence Act 1995 and upon the power to exclude unfairly prejudicial evidence (s 137). 12 As a result of the application a voir dire examination was held. Mr Jude, Det Sen Const Cahill, Ms Tunks, Det Carroll and Sgt Lee gave evidence concerning the process of identification. 13 I have already described the circumstances in which Mr Jude took the photographs and the identifications were subsequently made. Ms Tunks indicated that she had directed Mr Jude to take a photograph of Leroy but Mr Jude did not recall this occurring. These photos were then shown to twelve other persons who were at the Club at the time of the incident who marked on separate photocopies those persons they said where involved. Some months later police obtained photos of all the members of the Cambridge Park Football team and compiled them into an array which was also later shown to witnesses. 14 The officer in charge of the investigation (Det Cahill) said that he considered conducting an identification parade was impractical. He referred to the fact that there were thirteen potential witnesses, local people could be recognised, some of the suspects were not known by name until weeks later, and because of his size and physique, Leroy would be difficult to match in a fair array. 15 On 16 March 1999 his Honour determined that the evidence was admissible and indicated he would publish his reasons during the trial; which he did on 26 March. 16 In his judgment his Honour noted that counsel for each accused conceded that it was not reasonable to have expected the police to have attempted to hold an identification parade prior to Monday 24 February given the number of witnesses to be interviewed, the number of persons involved in the incident, the limited police resources and the time available. His Honour concluded that two witnesses, Mr Jude and Ms Tunks did not identify the appellants from photographs shown to them by police, but rather identified them at the football matches on the Sunday, and later confirmed their identification using the photographs taken by Mr Jude. In those circumstances there was no point in having them identify those persons in a line-up as there was the risk that they would then merely be identifying the person they saw at the football. His Honour also accepted the evidence of the police officer in charge of the investigation that it was in the circumstances, not reasonable to attempt an identification parade. In relation to Graham the evidence from Det Cahill was that he was unaware of his involvement until he was nominated from the photographs, and even then he remained unaware who he was until 8 March 1997. His Honour also refused to exclude the evidence under s 137. He observed that the photographs were a considerable improvement on the use of the photographs from police files and noted that none of the witnesses had given a description of the various persons involved prior to looking at the photographs, but said that this could adequately be covered by directions to the jury. 17 On the appeals, only Leroy relied on s 114 of the Evidence Act, although both appellants relied on s 137. Section 114(2) renders inadmissible, visual identification evidence adduced by the prosecution unless an identification parade has been held, or it would not have been reasonable to hold such a parade, or the defendant has refused to take part in a parade, whilst subs (3), without limiting the matters which may be taken into account in determining whether it was reasonable to hold an identification parade, specifies a number of matters to be taken into account including: ( a) the kind and gravity of the offence concerned, (b) the importance of the evidence, (c) the practicability of holding an identification parade having regard among other things to whether the identification was made at or about the time of the commission of the offence, whilst subs (4) provides that it is presumed that it would not have been reasonable to hold an identification parade if it would have been unfair to the defendant for such a parade to have been held. 18 I agree with the learned trial judge in respect of the witnesses, Mr Jude and Ms Tunks. Those witnesses identified the appellant Leroy at the football matches on the Sunday afternoon and there was consequently no point in having an identification parade for them at a later time, as the objection could then be validly made that they may be picking out the person they recognised at the football rather than the person they saw involved in the fracas at the Club early on the Sunday morning. 19 As to the other witnesses, it was Monday before the police had any other suspects which they got from Mr Jude's photo identification and, apart from Johnstone and Leroy (in the case of Graham 8 March 2000), it was some further time before they had names for all such suspects, but by the Monday, they had all returned to the Penrith area. It would therefore have been necessary to transport all the witnesses to the Penrith area or, if they were willing to travel and willing to take part in an identification parade, to transport the suspects to Forster. Apart from the logistical difficulties it would therefore have taken considerable time to arrange an identification parade and it was, in my view, clearly preferable to have the identifications done promptly, albeit from photos, whilst the images of those involved were more likely to be fresh in the minds of the identifying witnesses, than to wait some weeks for an identification parade by which time the witnesses' memories of the images would probably not be so accurate. 20 The police also claimed that there would have been additional difficulties in holding an identification parade in the Forster/Tuncurry area because the alleged offenders were known to be "out-of-towners" and so the witnesses who might recognise local persons in the line-up would automatically exclude such persons. This problem I believe could have been overcome by including in the line-up persons from Taree or beyond; but the other objections referred to above are, in my opinion, valid; and it must be borne in mind that the touchstone in s 114(2)(b) is whether it would not have been "reasonable", not whether it would not have been "possible" to have held an identification parade. 21 The appellant Leroy's main complaint seems to be that he was not put in a identification parade with the alleged co-offender Johnstone whom it was claimed was of similar build and appearance, where witnesses might have been unable to distinguish between the two of them; but Johnstone had left town suddenly and presumably would not have been prepared to take part in an identification parade and, later on when invited to, in fact declined to do so; and as they were both suspects, it would have been appropriate to have separate identification parades for each of them. 22 The Crown case was not that it was Leroy or Johnstone that had been involved in the fracas and had assaulted Mr Woods, but that it was both of them. Johnstone had also been charged, but was granted a separate trial. 23 For these reasons I consider his Honour was correct in ruling that in the circumstances of this case it would not have been reasonable to hold an identification parade. 24 As to the application by each of the appellants to have the evidence excluded pursuant to s 137, that section, unlike the previous law, does not confer a discretion on the trial judge, but where the conditions of the section are satisfied, i.e. its probative value is outweighed by the danger of unfair prejudice to the accused, the judge must refuse to admit the evidence: R v Blick [2000] NSWCCA 61 at [20]. 25 Both appellants complain in particular about the failure of the police to obtain descriptions of the alleged offenders promptly after the events of the Sunday morning and at least before they were shown the photographs. This has been described as of "high importance": R v Clout (1995) 41 NSWLR 312 at 321. See also R v (Kerrie) Clarke (1997) 97 A Crim R 414 at 430, R v Moody (CCA - 1 April 1997). 26 Early descriptions are important because they enable the tribunal of fact to test the identification made with the description given shortly after the event, and defence counsel are able to cross-examine and address on any discrepancies which may appear. Needless to say, any descriptions given after the witness has identified a suspect either from an identification parade or from photographs is useless as it is essentially a description of the person who has already been identified. However, in none of the cases referred to, and I am not aware of any others, was the conviction upset because the identification evidence had not been excluded by reason of the fact that no description of the alleged offender had been obtained from witnesses before identification was made. Clout involved the identification of a semi-trailer; in Clarke the judge had failed to give the warnings required by ss 116 and 165 and in Moody the conviction was found to be unsafe and unsatisfactory on the whole of the evidence, including not only the delay in obtaining descriptions, but also inconsistencies in such descriptions as were obtained. 27 His Honour took the view that this deficiency did not of itself compel exclusion of the identification evidence, but could be addressed by detailed directions to the jury on the subject, which directions he subsequently gave. 28 Various other objections were made as to how the identification evidence was unfairly prejudicial to the appellants. On behalf of Leroy objection was taken to the sequence of the photographs in Ex. C and the photocopies, it being suggested that photograph no. 1 shows him prominently at the left of the photo whereas most of the other players depicted in such photo were shorter and darker, and that he is shown in a higher proportion of the photos (in fact he is shown in four of them), and in this context also he relies again on the failure to hold an identification parade. 29 The appellant Graham relies on the submission that he is the only Aboriginal shown in the photographs and the only person with a goatee beard. In fact, there are at least one, and probably two, other persons of dark complexion consistent with being of the Aboriginal race and whilst Graham is the only one who has a goatee beard, it seems he was the only member of the Cambridge Park teams who had such a beard, its significance in the identification of the appellant did not become apparent until much later in the trial during the cross-examination of Mr Drummond. 30 We were again referred in this context to Blick, another case where only one person with a goatee beard was shown, but that case is clearly distinguishable in that a description had been obtained which included a reference to a goatee beard and when the collection of photographs was prepared for the witness to examine the suspect's photo was the only one of a person with a goatee beard and it gave the impression of having been substantially cut down for the purpose of the identification examination, whereas here the photos were taken of different persons, they were not police mug shots, they were taken in casual surroundings, from different angles, they showed people in different postures (sitting, standing etc) and none of the photos suggested criminality. I have examined the original photos and do not consider that there is anything about them which would suggest to a prospective witness that any particular person or persons should be identified. 31 In the case of the appellant Graham he was not a suspect until the witnesses identified him from the photographs. Once this happened, there was the same danger that if an identification parade were held the witnesses would be identifying the person they had seen in the photographs rather than the person they had seen involved in the fracas at the Club early on Sunday morning. 32 At the time his Honour ruled on the admissibility of the identification evidence, he was also aware of two other pieces of evidence, namely a statement by the appellant Leroy made at the police station early on the morning of 23 February in which he said he was there in the melee but claimed he was trying to break up the fight; and that after a doorman hit him, he hit him back. This material placed him in the area at the relevant time. There was also a statement from Stephen Stanford, to which further reference will be made later. He was a member of one of the Cambridge Park teams and said that when shown photograph no. 6 he marked one of the guys who was "kicking somebody". He thought his name was "Graham". This was not evidence from a stranger but recognition by an acquaintance. In the trial he denied this evidence and was treated as an unfavourable witness, but that was later. 33 The identification evidence was not without its deficiencies, particularly in the failure of the police to obtain descriptions of the alleged offenders prior to the identification process, and accordingly the jury required careful directions and the appropriate warnings; which they subsequently received; but I am not satisfied that the probative value of such evidence was outweighed by the danger of unfair prejudice to the appellants; and consequently it ought not to have been excluded by reason of s 137. Indeed the highly probative nature of such evidence will become apparent later in this judgment when I consider the grounds of appeal against conviction which in effect assert that the verdicts were unreasonable and cannot be supported by the evidence. 34 Before turning to that I should refer to a further ground contained in the written submissions on behalf of Graham, namely that the trial judge having permitted the Crown to lead evidence of the statement of the witness Stephen Stanford referred to above, refused to limit the use of such material under s 136 of the Evidence Act when requested to do so, and instructed the jury that such material could be used by them as evidence of the fact that the appellant kicked a staff member on the floor and was pulled off by Mr Stanford. 35 In the light of the judgment of this Court in R v Adam [1999] 47 NSWLR 267, Mr Greenhill SC did not press this ground. I understand that special leave to appeal has been granted by the High Court, but no date has yet been fixed for the hearing of such appeal. See also R v GAC (CCA - 1 April 1997). 36 I turn now to consider the submissions that the verdicts are unreasonable and cannot be supported by the evidence. 37 Mr Warren Woods, the Club employee who told the group to leave at closing time, said there were a lot of people around him at that time, and that there was a "big bloke" who was in front of him, waving his hand in front of his face and pretending to head butt him two or four times, stopping about six inches from his face. He told him to "rack off" but the person was laughing at him. He said the person in front of him was three to four inches taller than he was and described him as having "short, blonde hair, short cropped sort of hair". He said he received a punch to the head and then a lot of punches, he covered himself up and then there were blows coming from everywhere. He remembered next that he was on the ground being kicked. He lost one of his eyes, the floor of his orbital was fractured, he said that his neurologist had told him that he had about 25% brain damage to memory retention. On 25 February he marked Leroy's photographs from those taken by Mr Jude and said that he was pretty sure that that was the person who was head butting and moving his hands in front of his face. He also marked Graham's photographs, and said he remembered him being in the foyer, and he was worried about him, but he did not see him hit anybody. 38 Darrell Duncum, another employee of the Club, gave evidence that he had heard Warren Woods asking "a large chap" to finish his drink and not take any outside but that such person started arguing with Mr Woods. He then saw him head butt Mr Woods and start to hit him. He ran down to grab that person by pushing him out towards the front doors but at that time he was bashed and kicked by other people in the same group. He said there was another large chap who was standing in front of him, challenging him to a fight, which he declined. He described that person as six foot or more with very short spiky blonde coloured hair. He said that person hit him in the face and he was bleeding, his jaw was cracked and eleven of his teeth were broken. He denied offering his assailant any violence. After that he saw that person challenge his colleague Jason McCarthy and saw him leaning forward and head butting McCarthy. On 26 February he marked the appellant Leroy's photograph as the person who had punched him in the face and head butted McCarthy. 39 Jason McCarthy said that he saw a large crowd of patrons and a few of the security guys in what appeared to be a scuffle, he went over to assist a colleague, Mick Smythe, who was in a scuffle with a "large guy", whom he described as being around six foot with short hair. That person challenged him and put his fists up but McCarthy put his hands above his head as the person tried to head butt him. He said that he went to the football field on the Sunday and saw some of the people from the Cambridge Park team who had been at the Club the previous night, including the person who had head butted him there and on 26 February went to the police station and examined the photos taken by Mr Jude. He said the person who tried to head butt him looked like the appellant Leroy. 40 Mr Jude said that he saw Mr Darrell Duncum being punched to the right side of the head by a tall well built short cropped blonde person whilst he was standing there with his hands by his side. He described going to the football field the following day and taking photos of the Cambridge Park team and he later identified the appellant Leroy in the photos as the person he saw hit Darrell Duncum. 41 Douglas Lawson, a security officer at the Club described the person who had punched Mr Duncum as a "big solid chap probably six foot one, perhaps could have been a bit higher with stocky build and good footballing physique. He was distinctive as to his size". He marked Leroy's photograph as the person who struck Mr Duncum. Later in his evidence he also said that this person was in the original melee, near Mr Woods in the foyer but he could not say exactly what he was doing, although he indicated that he was acting violently. 42 Michael Smythe, a barman/doorman said that he arrived at the Club after the fight was under way, he helped to move people outside and tried to stop others re-entering. He said that at that time Mr Woods had already been assaulted and was lying at the reception desk. He said he was confronted by two large men and struck by another. He gave the description of the man who struck Mr Duncan as six foot three, wearing a horizontally striped shirt with an emblem, with blond, cropped hair. Exibit D shows that on the evening in question, Leroy was wearing a horizontally striped shirt with an emblem and had blond cropped hair. On 24 February he went to the police station and identified persons from photographs. He said that it was the appellant Leroy who hit Mr Duncum just after he was hit. He also identified the appellant Graham's photograph of being of a person involved in a scuffle around Mr Duncum. He said he was wearing dark glasses and pushing and shoving and egging the others on to fight. He also described the person who charged him as having a grey polo shirt on and having dark hair, a description which Ex. 1 shows is consistent with being Corey Johnstone. 43 Ms Deborah Tunks, bar attendant gave evidence that she identified the appellant Leroy as the person who punched Warren Woods. She had seen him in the Club during the evening and had served him and had noted that he was so prominent that she could not forget him. He was probably the largest person there. She attended the football the following day and identified him at the game and asked Mr Jude to include him in the photos. She said that she spoke to him whilst he was at the bar. 44 Ms Unger said she saw the attack upon Mr Woods after it commenced, at the time he was being kicked near the reception desk but she could not identify anyone involved in that incident. She did identify the photo of the appellant Leroy as the person she saw hitting Mr Woods and other staff members, including Mr Smythe, Mr Duncum and Mr Rosser but there is no suggestion that Mr Leroy ever struck Mr Rosser and the jury were invited to view her evidence with some scepticism. 45 Geoffrey Drummond said that he saw the whole incident involving Mr Woods from its commencement to its conclusion. He intervened to help pull persons off Mr Woods and was himself thrown at one stage to the wall near a super draw bin but he went back again to assist Mr Woods and saw him at the reception desk being kicked by four persons whom he believed were part of the original group. He wrestled and jostled with such persons as he tried to get help for Mr Woods. He said staff were trying to eject people through the front door and whilst that was happening he saw two persons come back into the Club and kick Mr Woods again as he was lying at the reception desk. On 25 February he attended the police station and was shown the photographs taken by Mr Jude. He identified Mr Leroy in three of the photographs as being one of the persons punching Mr Woods at the outset of the attack upon him and he chose Mr Graham as one of the persons who ran back from the air lock to kick Mr Woods and he saw him kick him on two occasions. 46 Stephen Stanford, previously referred to, was a member of the Cambridge Park A-grade team. He had known Johnstone and Leroy for some time and he also knew Colin Graham, but not for very long. He gave evidence that he was at the Club on the night in question and was pretty drunk but he saw some of the staff members punching Corey Johnstone and Johnstone retaliating. He also punched someone himself, and as a result was charged by police in relation to that and dealt with by the Court. He said he could not remember Colin Graham being in the foyer at the time but his Honour gave leave to the Crown to cross-examine him pursuant to s 38 of the Evidence Act on the basis of the statement he made to police on 23 April 1997 and he agreed that that statement signed by him contained the following passages: "The fight turned into a thing where people started to break it up by pulling people away. I saw a couple of the C-graders kicking one of the staff. I don't know which staff member. I was shown photograph no. 6. I marked one of the guys. I think his name was Graham. He was one of the C-graders who I pulled off and was kicking somebody."

The contents of the statement therefore became evidence of the facts and was relied upon by the Crown as evidence against Graham. Detective Carol gave evidence that he had seen the witness mark the relevant photograph as identifying the appellant Graham. 47 In a recorded interview with police on 8 March 1997 and in his evidence at the trial, the appellant Leroy denied head butting Mr McCarthy but admitted he punched Mr Duncum although claiming he did so in self defence, and in his recorded interview and in his evidence at the trial, the appellant Graham admitted that he was in the vicinity of the incident but denied being a participant in any attack upon any club staff members. 48 There was accordingly positive identification of the appellant Leroy as being involved in the affray (count 1) from Jude, Smythe, Lawson, Duncum, Woods and McCarthy. In addition Deborah Tunks identified the appellant Leroy as a person who punched Mr Warren Woods and so did Mr Drummond (count 2), whilst Duncum, Jude, Lawson and Drummond identified him as punching Duncum (count 3); but perhaps the most telling evidence against this appellant was his own. He admitted that he punched Mr Duncum but claimed that he did it in self defence. The jury by its verdict rejected his assertion that he did it in self defence, so on his own admission he was clearly guilty of assaulting Duncum, and in view of the injuries suffered by Duncum this was sufficient to convict him of assault occasioning actual bodily harm. That evidence of itself was also sufficient to implicate him in the affray. It was well open to the jury to be satisfied of his guilt on all 3 counts. 49 As regards the appellant Graham there was direct evidence from Mr Drummond identifying him as the person who was kicking Mr Warren Woods whilst he was on the ground (count 2). There was also the evidence of Mr Stanford, and the jury were entitled to act on what appeared in his statement as confirming the evidence of Mr Drummond to that effect, and Douglas Lawson identified him as one of the persons whom he "believed" was involved in punching and kicking Mr Woods when he was on the ground. In addition there was evidence from Mr Woods and Mr Smythe that Graham was in the area and involved in the affray. In my view it was open to the jury acting reasonably to be satisfied beyond reasonable doubt of his guilt on counts 1 and 2. For these reasons I am of the view that both appeals against conviction should be dismissed. 50 In relation to the application by Graham for leave to appeal against sentence, his Honour so structured the sentences imposed so that he is to serve a total minimum term of 2 years and 9 months with an additional term of 18 months, having found that there were "special circumstances" within the meaning of s 5(2) Sentencing Act 1995. 51 The applicant Graham was born on 31 July 1978 so he was 18½ at the time of the offences. He had prior findings of guilt for high range PCA, break and enter with intent and assault occasioning actual bodily harm. He is of Aboriginal descent. His parents separated when he was very young and he was raised by his mother but continued to have regular contact with his father. He left school after completing his school certificate at the age of 16 years and was doing an apprenticeship as a brick layer until his employer's business closed, since when he had been employed as a storeman for 12 months, and his employer indicated that he was well respected and highly thought of. He was supported by a number of references attesting to his good character and reliability. He agrees that he had been drinking excessively on the night of the incident and was affected. 52 The main thrust of Mr Greenhill's submissions was that the sentences should not have been made cumulative, and that the additional terms should have been 2 years instead of 18 months with a corresponding reduction in the minimum term. I am not persuaded by either of these submissions. In my view, having regard to the judgments of the High Court in Pearce v The Queen [1998] HCA 57 and acknowledging the principle of totality, this was an appropriate case to impose cumulative sentences. The appellant Graham was not only involved in the assault on Mr Woods but was also involved in the general affray using violence and threatening persons at the scene to fear for their personal safety, and to have made the sentences concurrent would have resulted in fact in no sentence being imposed for the affray. In regard to the sentence for maliciously inflict grievous bodily harm it needs to be borne in mind that this was a very serious offence, kicking a person when he is on the ground, particularly when acting in concert with others. People have died from such attacks and the ferocity of the attack can be seen from Mr Woods injuries, namely the loss of one of his eyes, the fractured bones and 25% brain damage to memory retention. 53 Notwithstanding the applicant's previous good character (although he did have one prior conviction for assault occasioning actual bodily harm), his youth and the references furnished, I am not persuaded that the sentences imposed were outside the range of a proper sentencing discretion. We were invited to adjust the relationship between the minimum and additional terms by reducing the minimum term by 6 months and adding the corresponding amount to the additional term, but this would merely be fiddling with the sentence, and that is not the function of this Court. There is no application for leave to appeal against sentence in the case of Leroy. 54 In my opinion both appeals against conviction should be dismissed. The appellant Graham should have leave to appeal against the sentences imposed, but such appeal should also be dismissed. 55 SIMPSON J: I agree with the orders proposed by Dunford J and with his Honour's reasons. -----------------

R v Leroy and R v Graham

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Judgment (14 paragraphs)

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