R v Murray

COUNSEL : GP Craddock - Appellant RA Hulme - Crown SOLICITORS : TA Murphy - Appellant SE O'Connor - Crown CATCHWORDS : Criminal Law; Identification; Photographs; Cross examination improper DECISION : Appeal dismissed.

60065/98 NEWMAN J STUDDERT J HULME J

NEWMAN J STUDDERT J HULME J

IN THE COURT OF CRIMINAL APPEAL No: 60065/98

NEWMAN J STUDDERT J HULME J Friday, 17 December 1999 REGINA -v- James Francis MURRAY JUDGMENT 3 HULME J: In this matter the Appellant, as I shall refer to him, was convicted on 27 September 1995 before Her Honour Judge Backhouse and a jury of one count of, on 20 December 1991 in company with Deborah Krekelberg, robbing Andrew Daley and Navette Stockings of a portable telephone and a motor vehicle. The jury did not reach agreement on a second count alleging that the Appellant assaulted Constable Ian Pryde in the execution of his duty.

4 On 10 November 1995 the Appellant was sentenced to imprisonment for a minimum term of 2½ years commencing on 25 August 1995 and an additional term of 2½ years commencing on 25 February 1998. 5 By "Notice of Appeal" dated 8 February 1998 the Appellant has sought to appeal against his conviction and sentence and applied for an extension of time within which to do so. Absent an extension of time, the period limited for instituting an appeal is, by virtue of s10 of the Criminal Appeal Act, 28 days. In the Notice the sole complaint made concerned some of the evidence given in his trial relating to his identification. Amended Grounds of Appeal dated 29 January 1999 state that it is intended to rely upon the following grounds:- Her Honour erred in admitting evidence that Daley and Stockings had identified the Appellant from photographs.

Her Honour erred in allowing certain questions to be put by the Crown Prosecutor to the Appellant during his cross examination. 6 During the hearing counsel for the Appellant was allowed to reformulate this second ground as:- "The questioning by the Crown Prosecutor of the Applicant, as to whether the Crown witnesses had fabricated evidence, had motives to lie and whose evidence must be coincidental, has given rise to a miscarriage of justice." 7 By Notice of Abandonment dated 11 February 1999 the Appellant abandoned any claim to appeal against the severity of his sentence. 8 In written submissions dated 18 May 1999 the Crown made the point that the Appellant had tendered no evidence in support of his application for an extension of time and, citing R v Lawrence & Ors (1980) 1 NSWLR 122 and R v Unger (1977) 2 NSWLR 990, submitted that:- "Where any considerable delay (in the filing of a notice of appeal) has occurred exceptional circumstances will be required before the appeal is permitted to proceed." 9 Subsequently the Appellant swore an Affidavit dated 8 September 1999, in which he annexed what he asserted was a copy of an earlier Notice of Appeal dated 28 September 1995 and a note, apparently from the gaol authorities, that he had received dated 1 November 1995 recording "inmate Murray 101994 has already appealed on this convictions". [sic] The copy Notice of Appeal does bear an imprint of a stamp of the NSW Department of Corrective Services indicating that the document was received by the Eastern Region Inmate Records section on 6 October 1995. It would seem that the document was not received by the Court and the note from the goal authorities may have been inspired by other appeals the Appellant had lodged. He would seem to have lodged and prosecuted appeals against other convictions on 29 October 1993, 10 December 1993 and 31 October 1996. 10 In his Affidavit the Appellant asserts that in 1997 he became concerned at not receiving any correspondence from the Court of Criminal Appeal in connection with this matter although he had received documents relating to other matters before this Court. This concern presumably inspired the notice of 8 February 1998. 11 Apart from certain statements the Appellant has made concerning inquiries he made some time after becoming, as he has said concerned in 1997, there is nothing to indicate any activity on the part of the Appellant in this matter between 28 September 1995 and 8 February 1998. Were it not for the copy of the Notice of Appeal dated 28 September 1995, the imprint thereon and the note of 1 November 1995, I would take the view that no extension of time should be granted. However, in light of those documents which indicate that the Prisoner timeously sought to exercise his rights of appeal, the Court should grant him an extension of time. 12 The document of 28 September 1995 contains complaints additional to those in the Appellant's notice of 29 January 1999, including complaints concerning the circumstances of his legal representation and complaints about the failure of the Crown to call certain witnesses. The passage of time since 1995 would make it difficult if not impossible to investigate those matters in any reasonably satisfactory manner and, given the extent of the Appellant's inaction after 1995, I would be disposed to condition an extension of time so as to permit reliance only on the grounds advanced in the document dated 29 January 1999. However, as those and the reformulation of the second are the only grounds sought to be relied on, any question of conditioning the extension of time does not arise. 13 To the first of the grounds referred to in that document, viz. that "Her Honour erred in admitting evidence that Daley and Stockings had identified the Appellant from photographs", I now turn. 14 By reason of Clause 9 of Schedule 2 of the Evidence (Consequential and Other Provisions) Act 1995, the identification provisions of the Evidence Act 1995 do not apply. The principal authority stating the previous law relevant to the topic of identification from photographs is Alexander v R (1980) 145 CLR 395 to which the trial Judge was referred. In that case it was laid down that:- "The Australian cases demonstrate that identification from police photographs is admissible evidence, that its probative value may be important, that the Judge has a discretion to exclude it when he considers its prejudicial effect outweighs that value, and that directions may be given to ensure that unfair use is not made of the evidence",

and that (on appeal), "In each case the question must be, not whether the identification has been conducted with proprietary and fairness, but whether upon the whole of the evidence as it in fact existed when it came to be laid before the jury, and having full regard to the treatment of the matter at the trial, the actual verdict ought not to stand because a miscarriage of the kind described occurred."

The passages quoted are taken from the Judgment of Mason J, with whose reasons Aickin J, agreed. Observations of Gibbs CJ at p 402-403 are to similar effect. 15 In the second of the passages just quoted, Mason J is himself quoting from a earlier decision of the High Court in Davies & Cody v The King (1937) 57 CLR at p180-181 where it is apparent that by "miscarriage of the kind described" the court was referring to a miscarriage of justice because a "failure has occurred in observing the conditions … essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled". 16 The showing of photographs to Mr Daley and Ms Stockings had been effected by a Detective Bevan, in the case of Mr Daley on 9 January 1992, and in the case of Ms Stockings, on 14 January 1992. At those times the circumstances bearing on the appropriateness of the police taking that course were as follows. 17 On 28 December 1991 at about 4.15pm a Constable Pryde had occasion to speak to the driver of a white Nissan Skyline sedan bearing a registration plate SAJ-760 stopped at some traffic lights and directed the driver to pull over to a place a little further down the street. The car did not do so and Constable Pryde had recorded brief details of the event, including the registration number of the vehicle and a description of the driver in his notebook. On or about 28 December 1991 a net-mail message was circulated over the police communications system. Detective Bevan gave evidence that prior to 9 January 1992 he had a description given by Constable Pryde circulated through the police computer network. 18 Constable Pryde also ascertained that the vehicle was registered in the names of Ms Stockings and Mr Daley. 19 On 29 December 1991, following a request that they do so, Ms Stockings and Mr Daley attended Liverpool Police Station. On seeing them, Constable Pryde realised that they had not been in the vehicle on the previous day. Constable Pryde was told that the car had been stolen. It appears that Ms Stockings first said that she did not know who had taken the car but when challenged told Constable Pryde that it had been taken by Miss Krekelberg and others. Ms Stockings did not then name even by his Christian name, the Appellant nor that she had met him on previous occasions or that he had returned to her place after the theft. She did however provide a somewhat detailed description of him in the course of a statement she gave to Constable Thirsten. Constable Pryde took a statement from Mr Daley which also contained a description of the person with the gun but in which Mr Daley said that he did not know the man's name. 20 In the week commencing 30 December 1991 Detective Bevan had conversations with Mr Daley and Ms Stockings. Ms Stockings gave him the name Jim Murray. 21 A video tape showing a photograph of the Appellant and photographs of 14 other persons, [all with moustaches] was then apparently prepared. At about 11.00am on 9 January 1992 Constable Pryde and Mr Daley went together to Kings Cross Police Station. Constable Pryde was first shown the videotape and he identified the man in frame No 7 as the person who had been driving the white Nissan on 28 December. 22 Then, in Constable Pryde's absence, Detective Bevan showed the video tape to Mr Daley who also indicated photo No. 7. 23 On 14 January 1992 Ms Stockings was shown the video at Kings Cross Police Station and recognised one of the men's faces as the person with the gun on 20 December. Ms Stocking thought she picked out No. 7 as that person. 24 On 17 January 1992 Constable Pryde made his own statement. He said that in making it he was not influenced by what Mr Daley had told him. 25 Both on 9 and 14 January when the video was shown, Detective Bevan knew where the accused was - apparently in custody. 26 Questioned as to why a line-up had not been held, Detective Bevan said that prior to the time Constable Pryde looked at the video, he did not know that the Jim Murray on the video was the person he was looking for and even after Constable Pryde's identification, there were a number of factors playing on his mind. One was that the accused had been met on 2 or 3 prior occasions and his identification was more a case of recognition. (The evidence of Ms Stocking was that the Appellant had visited her home on at least 2 occasions with Mr Krekelberg prior to the theft and on one occasion afterwards. The evidence of Mr Daley was that he had seen the Appellant on at least one prior visit.). 27 There was further evidence bearing on the identity of the Appellant. A Constable Hansen who was with Constable Pryde on the 28 December also identified the Appellant when shown the video in late January 1992. On 6 January, a Mr Sharpe, who was the manager of a branch of McDonalds, also identified a photocopy of a faxed photograph of the Appellant as a person he had seen on 26 December 1991 in a white Datsun car the registration number of which included the letters SAJ. 28 The Appellant gave evidence. So far as is presently relevant, it was to the effect that he was not at the house of Mr Daley and Ms Stockings at the time any theft occurred and indeed, had never met either of them. Also before the jury was evidence of the descriptions which the witnesses had given of the Appellant on various occasions. It is unnecessary that I detail these but it must be recognised that there were inconsistencies between them and between these descriptions and what seems to have been the Appellant's appearance in court and as described both by the Appellant and a witness called on his behalf. 29 Exception to the admission of the photographic identification was taken at the trial. Judge Backhouse recognised that she had a discretion whether to admit the evidence and detailed a number of matters advanced on behalf of the Appellant:- "The basis for the exclusion of the evidence of Andrew Daley was that:- The accused was a suspect. He was known to the police by name. The Accused had previously been identified by others. (This is a reference to Constable Pryde, Mr Sharpe and a Mr Gordon who did not give evidence before the jury.) Police, that is Constable Bevan and investigating police were aware that the accused was in custody at Long Bay Gaol. That there was no impediment or difficulty in conducting a line up. Police failed to conduct a line up in circumstances it was reasonable to do so. The accused was never offered the opportunity of participating in a line up. The accused never refused to participate in a line up and the accused was in custody since 3 January 1992 and this was known to the police." 30 Undoubtedly these matters provide grounds for the view that an identification parade would have been a preferable method for Detective Bevan to employ, assuming the Appellant had been willing to participate in one. However, in the circumstances understood by Detective Bevan that both Mr Daley and Ms Stockings had prior acquaintanceship with the offender, it is not difficult to understand his decision to pursue the course he did. But in any event, as the statements of the law above make clear, that is not the issue. 31 At the time Mr Daley saw the video containing a photograph of the Appellant, Constable Pryde had identified the Appellant as involved with the vehicle the subject of the charge. Subject to the fact that he did not know the full registration number, so had Mr Sharpe. Ms Stockings had identified the offender to Detective Bevan as a Jim Murray. Descriptions of the person who was involved with the stealing or recent driving of the vehicle thereafter had been provided by Mr Daley and Ms Stockings and, despite some inconsistencies, these amounted to reasonable, albeit insufficient on their own, descriptions of the offender. And apart from the fact that the police presumably had access to the photographs depicted on the video, there was no evidence or suggestion that the identification of the Appellant by Mr Daley, based on his observation of the video, was corrupted by anything that had gone before. 32 The fact that the police had access to a photograph of the Appellant provides some ground for Mr Daley, Ms Stockings and the jury thinking, or at least wondering whether, that the Appellant must have had a criminal record of some sort. However, I would not regard that as sufficient to justify rejection of the identification of the Appellant. 33 Although by the time Mr Daley saw the video tape, Ms Stockings had provided a description and the name of "Jim Murray", the fact that the same video tape as that seen by Mr Daley and Constable Pryde was viewed by Ms Stockings some days later is a matter of concern. Given the relationship between Ms Stockings and Mr Daley, it would have been the easiest thing in the world for him to have informed her during the intervening period that he had identified photograph number 7. Both Ms Stockings and Mr Daley were cross-examined on the topic. Mr Daley denied that he had made any mention of the video tape to Ms Stockings in this period. She, on the other hand, said that he both mentioned seeing a video tape and identifying someone, but that he did not tell her the number of the person he identified. 34 Nevertheless, when all of these matters are taken into account, I am not persuaded to the view that in the matter of Mr Daley or Ms Stocking's identification a "failure has occurred in observing the conditions … essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled". 35 I turn to the second ground of appeal. The passage of the Crown prosecutor's cross examination of the Appellant in which the questions to which exception has been taken is as follows:- Q You say you've never met Nevette Stockings? A I have never met Nevette Stockings. Q You've never met Andrew Daley? A Never met Andrew Daley. Q You've never set eyes on Mr Sharpe? A No I haven't. Q You were never in the car when Pryde and Hansen were there in Moore Street, Parramatta? A Well it was a bit of an impossibility, I was in - Q Liverpool? A Sorry. It was a bit of an impossibility since I was in Parramatta at 4 o'clock. Q Nevette Stockings and Andrew Daley, I suggest to you that you had met them prior to 20 December 1991? A I had never met them before. I'd never seen Andrew Daley or Nevette Stockings prior to being charged with these charges. Q I suppose you say that you never met them on 20 December? A No, I never met them at all. Q That you never met Nevette Stockings a couple of days later? A No I was not - Q You'd never met her at all? A Never. Q Never had any dealings with her that you know of? A No. Q Never given her any reason to hold a grudge against you or - A No, none at all. I'm not an Aboriginal. Have a look at me. Q You see Mr Murray, you're suggesting aren't you that Nevette Stockings is fabricating this whole story against you isn't she? A Well she's not actually fabricating it against me, she's obviously mistaken. She didn't stand up here and say "That's the man over there, that's the man that done it". You've got a black and white photostat copy of a photograph there and I'm not an Aboriginal, I don't have dark hair. I don't have a dark moustache and I haven't got olive skin. So let's be a little bit realistic about something. Q But you say that it's a complete fabrication on her part isn't it? A Well, it is if she points to me and says it's me. Maybe the girl's mistaken, I don't know. Q You say the same thing about Andrew Daley? A That's right, I've never met him either. Q See you heard him testify that he'd met you prior to the twentieth? A I heard him testify that he'd met the man in that black and white photostat copy of a photograph, that facsimile of a photograph. Q Well the photo's a photograph of you isn't it? A Well perhaps it is and perhaps it's not, I don't know. But you know - Q You heard Mr Daley say he'd met you again on the twentieth, if "meet" is the correct word when he claims that you hit him over the head twice with a revolver - sorry, a hand gun, a pistol? A That's ridiculous because I told you I was not - I don't know Andrew Daley. I've never hit Andrew Daley with a gun. Q What, you would say I suppose, he's fabricating that too? A I don't know if he's fabricating it or he's fantasising, I don't know what he's doing. But that's pretty - to hit someone over the head with a gun mate, I've been hit in the head with a bit of wood and I've got about 12 stitches in my head, you know what I mean. I'd hate someone to hit me over the head with a big gun the size - like that, you know what I mean. Q Well, you say you've never met Mr Daley? A No, I've never met him. Q Never set eyes on him to your - A Never set eyes. Q To your knowledge he's never set eyes on you before all this happened? A I don't believe so, no. Q It follows does it not that he's got no grudge against you? A Well he couldn't have. Q According to you he's never heard of you? A That's right. Q Mr Sharpe, he got it wrong too I suppose? A Well it's the same thing. He's obviously mistaken. He didn't sit here and say, "That's the man over there". He sat here and pointed out a black and white photostat copy, a poor description of a person it is. It could be any one. Q Const Pryde? A Const Pryde's a police officer. Q Well you say he got it all wrong I suppose? A Well it's obvious he has isn't it? Q Mr Hansen, he got it wrong too? A Well it's obvious he has too. Q You say you've not given any one of those people any reason to harbour a grudge against you or want to do you down unjustly? A I couldn't, I don't know the people. Q It was just a big coincidence that they've all identified you in association with a white Nissan Skyline? A Well it's just - you know they haven't identified me. They've identified a facsimile of a black and white photostat copy of a photograph. Q Yes, and you heard Det Bevan say - A That that's a facsimile photostat copy of me. Q Yeah. A Where did it come from?" 36 In accordance with numerous authorities, albeit most of recent origin, the questions directed to whether the Appellant had given other witnesses reason to hold a grudge against him and whether the allegations of other witnesses were fabricated, and a co-incidence should not have been asked - see e.g. Palmer v R (1998) 193 CLR 1, R v Rich (1988) 102 A Crim R 165, R v Gilbert (unreported, CCA, 10 December 1998). Questions whether other witnesses had "got it wrong" offend an elementary rule of cross-examination - R v Praturlon (unreported, CCA, 29 November 1985) As remarks of the majority in Palmer v R (at p 7-8) indicate, such questions have a tendency to focus a jury's attention on irrelevancies and speculation. 37 Indeed, counsel appearing for the Crown before this Court conceded that the questions were inadmissible. He did not seek to rely on the fact that during the trial no objection had been taken to the questions, recognising that the offending nature of similar questions had led the courts on numerous occasions to set aside convictions in cases where such questioning had occurred. He submitted however that in the circumstances of this case, the Court should apply the proviso to the s6 of the Criminal Appeal Act on the ground that there had been no substantial miscarriage of justice. 38 There are obvious difficulties with that submission when the person being cross-examined is an accused in a criminal trial. As was said in R v Rich, to which decision I was a party (at p 170):- "Very relevant to the jury's consideration was its assessment of the appellant's credibility. That assessment involved not only what was said in answer to each question, but how the appellant said it, together with the total impact of the cross-examination. One of the objects of cross-examination is to "rattle" a witness so as to have a jury disbelieve him or her no matter what the answers are. The transcript suggests that the cross-examination of the appellant was vigorous. There were clear benefits to the cross-examiner in the impermissible questions that were asked, quite apart from the terms of the answers. This Court is quite unable, from the printed page, to distil the consequences of those impermissible questions." 39 However, it is not inevitable that such questions will preclude "a proper assessment of the credibility of the Crown witnesses or of the accused or from applying the principles as to the burden and standard of proof" - R v Baker [1999] NSWCCA 277 where there is a very full discussion of the topic. 40 As to these matters, there was no criticism of the summing up. The jury were told correctly what their obligations in respect of these matters were - in the case of the burden and standard of proof, often. Her Honour does not seem to have referred to the objectionable questions or answers in response, even when summarising the cases of the Crown or Appellant. 41 In R v Rich this Court was concerned at the impact of the offending questions and the answers to them in the context of the total cross-examination and took the view that it was unable to distil the consequences of the impermissible questions. In R v Praturlon the Court felt able to conclude that there was no basis for concern that the appellant there had suffered prejudice from them. In my view the same conclusion can and should be drawn in this case. Although this Court's judgement must be made on the printed page without the benefit of seeing the Appellant in the witness box, the firmness and terms of his answers, both those I have quoted and others, satisfies me that no prejudice or possibility of prejudice arose from the questions. 42 In that connection, it was submitted that the answer commencing "Well she's not actually fabricating it against me, she's obviously mistaken" was a concession which may have unfairly hurt the Appellant's interest. Although not specifically mentioned in argument, the answer to the effect that Mr Sharpe was mistaken could found a similar argument. However, those answers cannot be taken in isolation and within the half page after the first of these, the Appellant made it clear that he was not excluding fabrication. In any event, for one of the reasons which makes questioning of the type under challenge objectionable - that an accused cannot see into the mind of another witness - in the context of the whole passage no reasonable juror could possibly have taken note of any opinion of the Appellant whether the witnesses, particularly Mr Daley and Ms Stockings, were mistaken or fabricating. 43 Not only that, it was the Appellant's case before the jury that Mr Daley and Ms Stockings were fabricating. Evidence was called on his behalf from 2 witnesses that, shortly before the 20 December 1991, Mr Daley had left the vehicle with a repairer where it remained until both Mr Daley and Ms Stockings picked it up on 24 December. 44 Finally, although this would be of little or no weight of itself, the offending questions were only 11 in number. They were contained within some 2½ pages of the 23 which the Appellant's cross-examination occupied. His evidence-in-chief occupied a further 9 pages. Addresses commenced at page 444 of the transcript and although some of the previous pages were devoted to matters dealt with in the absence of the jury, the vast bulk record evidence given. Her Honour's summing up to the jury and some legal argument which occurred in the middle of it occupied over 190 further pages. The trial commenced on 11 September 1995, the evidence continued up to and including part of 20 September 1995. Her Honour's summing up commenced before lunch on 21 September and concluded late in the afternoon of Monday 25 September 1995. Albeit they occurred during the evidence of the Appellant, the offending questions were but a very minor portion of the trial. 45 Thus, I am satisfied that although the Appellant should not have been cross-examined as he was, there was no substantial miscarriage of justice and the appeal should be dismissed.

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