34 The gist of counsel's submission, as I see it, was as follows: Faulkner's evidence was so obviously irreconcilable with the evidence of Esler that it must have been rejected. With its rejection would go Faulkner's identification of the applicant. It must have been rejected because Faulkner had been badly beaten up, whereas Esler had not. It followed that the latter's account was to be preferred - or at least that Faulkner's account could not be a vehicle for a finding to the criminal standard that the applicant had committed the offences with which he was charged. It must also have been rejected because, in his first police interview, Faulkner had said nothing to indicate that Esler had been attacked by anyone but Hillis. Those matters must have been drawn to the jury's attention in the course of the identification direction. It was not enough that the physical or mental state of Faulkner at the time when he made the critical observations had been highlighted by the judge in a manner favourable to the accused; or that the judge had referred, when summarising the evidence, to inconsistencies in the evidence of Faulkner and Esler pertaining to the applicant in a manner favourable to the applicant, and extensively to the cross-examination of Faulkner.
35 In my opinion, in all the circumstances there was really nothing to that submission. There is no doubt that his Honour alerted the jury to the dangers of identification evidence. When directing upon identification he highlighted the issue of Faulkner's mental state at the critical time. He referred also, though elliptically, to the change in Faulkner's account of the assault upon Esler. When summarising the evidence he drew attention to the differences, as he saw them, in the evidence of Faulkner and Esler concerning the applicant.
36 Further, it is simply not the case that to find the applicant guilty it was necessary to accept the critical evidence of Faulkner in its entirety and reject the critical evidence of Esler in its entirety. The whole incident evidently took place in a short period of time, and within a quite confined area. The thrust of Faulkner's evidence was that the assault upon Esler commenced from behind when the latter was at the ambulance attempting to call for help. Esler's evidence was that the assault upon him commenced from behind when he was at the ambulance having got off a quick call for help. From that point there was a difference in the evidence of the two men. Faulkner gave evidence that blows were struck whilst Esler was still at the ambulance. But Esler gave evidence that blows were struck as he came to Faulkner's assistance and himself went to ground. In a quick-moving situation, it seems to me quite unreal to suggest that the jury must have accepted the pertinent evidence of either of Faulkner or Esler in its entirety, and that Faulkner's physical and mental state at the time meant that it could not have been his evidence - this putting paid to his identification of the applicant.
37 Also susceptible of consideration by the jury, I should add, was evidence which very strongly suggested that, if there was a second attacker, it was the applicant; whilst the jury was well-entitled to conclude that the remark attributed to the applicant by each of Faulkner and Esler had been made before the substantial attack upon Esler.
38 Seventh, apart from the delay in Faulkner viewing the photoboard, of which his Honour made mention, there is the fact that identification was made by reference to police photographs. According to counsel's submission, citing R. v. Burchielli,[2] the judge erred in not specifically warning the jury as to the danger of convicting upon identification from police photographs.
39 In Burchielli, Young, C.J. and McInerney, J. held that the trial judge had not (adequately) explained "that identification from police photographs is undesirable." There was a particular significance to that circumstance in that case. In the present case, however, each of Faulkner and Esler independently identified the same photograph from amongst a photoboard of 12 men. Esler's identification was not in doubt. Faulkner gave no evidence of seeing the man whom he identified on any occasion other than the occasion when he observed Esler being struck. He was not cross-examined to suggest that he had seen the applicant at a later stage in the affair, and that his identification, even if correct, was misplaced as to time. In the event, it appears to me that the judge's failure to give the warning mentioned by counsel was not of significance in the particular circumstances of the case. It is really surplusage, but I note in any event, that in fact Faulkner and Esler identified all four assailants from photoboards, and that in no other instance was identification by that method sought to be put in doubt.
40 Eighth, counsel at trial took no exception to his Honour's charge as to identification. That circumstance is not decisive. But as authorities show, it is not without significance.
Submissions upon Ground 2
41 The task for an appellate court where an applicant contends that jury verdicts were unsafe and unsatisfactory is set out in M v. The Queen[3].
42 According to the submissions of counsel for the applicant, a properly instructed and reasonable jury must have concluded that Faulkner's account could not be relied upon to establish the applicant's guilt beyond reasonable doubt. That was because Faulkner's evidence was relevantly irreconcilable with the evidence of Esler; and the evidence of the latter must have been considered reliable.
43 Further according to counsel's submissions, the evidently erroneous jury verdict was explicable by deficiencies in the judge's charge.
44 The case had called for a clear and full direction about inconsistencies in the accounts given by Faulkner and Esler; and about the critical change in Faulkner's account of events. The charge had failed to deal with those matters adequately.
45 Counsel raised another matter under cover of Ground 2. He submitted that in order for the conduct relied upon by the Crown in proof of counts 1 and 2 not to be identical - in which case the applicant ought not to have been convicted on both counts[4] - it was necessary that the jury must have found that a blow or blows struck by the applicant had caused Esler actual injury. A properly instructed jury, counsel contended, could not have found that matter proved to the criminal standard.
Resolution of Ground 2
46 Putting to one side, for the moment, the submission last-mentioned, the applicant's argument essentially focused upon the same subject-matter, though with a necessary change of emphasis, as the subject-matter of Ground 1. In my opinion, that argument should be rejected.
47 The jury, in order to find the applicant guilty, needed to be satisfied that he had been observed by Faulkner striking Esler. For reasons previously explained, that was mainly a question whether Faulkner had seen Esler being struck by two men, or by one man only. In answering that question the jury must obviously have considered Faulkner's failure to mention the applicant's involvement when he made his first statement to the police, his mental and physical state when he witnessed the attack on Esler, and such differences as there were in his account of that assault and the account given by Esler.
48 Concerning the first of those three matters, Faulkner gave an explanation for his failure to mention the applicant's involvement at the outset which invited the jury's assessment of his credibility. The jury was directed what use it could make of a prior inconsistent statement. It evidently decided the credibility issue in Faulkner's favour. I see no reason why the jury was not well-placed to make that assessment.
49 The second and third of those matters can be dealt with together. There is no doubt that Faulkner had been significantly assaulted before he witnessed the assault on Esler. He was vigorously cross-examination about the effects of the assault vis a vis his capacity to reliably perceive what he claimed to have seen. His responses to the questions asked, and his assertion that he had "very vivid pictures in [his] mind of what actually happened" raised a plain issue for the jury's determination. The jury was not compelled, absent some decisive reason to the contrary, to reject critical aspects of Faulkner's evidence. For reasons previously discussed, such differences as there were in the evidence of Faulkner and Esler did not provide such a decisive reason.
50 This should be added. In considering an attack upon a verdict that the same was unsafe and unsatisfactory, the circumstance that an accused person did not give evidence may be taken into account.[5] But it has not been necessary for me to consider the application of that circumstance in this case. The attack made on the jury's verdict was otherwise unpersuasive.
51 I turn to the argument founded on Sessions. It was not the subject of a discrete ground of appeal; and it ought to have been, if it was to be raised. That said, in my opinion there was nothing to the point. The case against the applicant was run as one of conduct in concert. The jury was so instructed. The applicant's case was not that he had not acted in concert. It was that he had not acted at all. There was no debate but that Esler had been injured. It was an irresistible conclusion that he had suffered such injury in the assault from behind of which both Faulkner and he gave evidence. That evidence showed that Esler had been struck on a considerable number of occasions. Having regard to the injuries which he was shown to have sustained, it was an inevitable conclusion that not all the blows had caused him injury. As Nettle JA pointed out in argument, the blows which caused injury, in all the circumstances, established the count of intentionally causing injury; whilst the blows which did not cause injury, in all the circumstances, made good the count of affray. Conduct in concert having been a non-issue, in the event that the applicant was found to have been involved in the attack on Esler, it mattered not whether the applicant had himself struck blows fitting both categories.
Orders
52 In my opinion the application for leave to appeal against conviction should be dismissed.