R v Rowlands [2005] VSCA 255

Statement of the case

3 This is an application by Ivan Rowlands for leave to appeal against convictions for affray (one count - count 1) and causing injury intentionally (one count - count 2) which were entered after trial in the County Court in November 2004[1].

4 There are two grounds of appeal, which are as follows:

"1. The trial miscarried by reason of the learned trial judge's having failed adequately to direct the jury on the identification evidence of the witness FAWKNER (sic). In particular, the judge erred by not, inter alia, adequately or at all, and with his imprimatur:

(a) relating his directions to the evidence;

(b) drawing the jury's attention to the weaknesses in the evidence;

(d) isolating and identifying for the jury those matters which, reasonably assessed, were capable of undermining the reliability of the evidence; and

(e) directing that identification from police photographs is undesirable and may be such as to make it dangerous to rely upon.

2. The verdicts of the jury were unsafe and unsatisfactory, since a properly instructed and reasonable jury ought to have had a reasonable doubt about the guilt of the applicant."

5 The applicant was presented on the two charges of which he was convicted. At the trial, only two witnesses were called viva voce for the Crown, John Faulkner and Hugh Esler. By consent, the prosector read a doctor's statement into evidence. The accused man did not give evidence. Neither did he call any witnesses.

6 The gist of the prosecution case was as follows: in the early hours of Saturday 20 September 2003 two ambulance officers, Messrs Faulkner and Esler, were called to attend an emergency at an address at Bacchus Marsh. It had been reported that a man had fallen from a first-floor balcony and was unconscious. On attending, the ambulance officers began to treat the injured man, William Hillis. He became fractious. Two bystanders, Douglas Smith and Luke Renouf, intervened. Faulkner was punched by Hillis, who had recovered to some extent; and was punched and knocked to the ground by Renouf. Esler was struck from behind. Eventually the two ambulancemen were able to retreat. Faulkner was observed to have, and was treated for, a cut underneath his left eye, loss of three teeth and damage to a fourth. Esler was observed to have a laceration to the bridge of his nose and multiple soft tissue injuries to the scalp.

7 Three other men certainly involved in the fracas were Douglas Smith, William Hillis - the putative patient - and Luke Renouf. Each of Hillis and Renouf pleaded guilty to offences before another judge. Smith died prior to trial.

8 According to the Crown case, the applicant was also involved in the fracas. Specifically, he was one of two men whom Faulkner claimed he had seen assault Esler. The case against the applicant was that he had acted in concert with the other accused men in striking Esler.

9 Concerning the applicant, each of Faulkner and Esler gave some evidence. Faulkner said that, having been struck by Renouf a number of times, and tackled to the ground, he was somewhat dazed. As he was attempting to get up, then being some five - six metres from the ambulance, he saw two people, Hillis and the applicant, hitting into Esler's head and shoulders. They were attacking him from behind. At that stage Esler was standing at the driver's door of the ambulance. He was, the witness thought, attempting to call for assistance. Before the applicant laid into Esler, the witness heard him asking "which one, which one?" The assault went on, it could have been, for five or 15 seconds. The witness then made his way back to the ambulance. Esler assisted him to get into the vehicle. Later the witness made a photo identification of the applicant. He had not observed the applicant at the scene before he saw him hitting into Esler. The persons whom he had seen at the outset were Hillis, Smith and Renouf.

10 Cross-examined, Faulkner made a number of concessions as to the extent to which the assault upon him had left him dazed, hazy, confused, and disorientated. He conceded that on prior occasions he had spoken of having probably been unconscious for a short period. He conceded also that in his first police statement, made only a few days after the incident, he had only mentioned Hillis striking Esler; and that he had first mentioned the applicant's involvement in the assault, in writing, in a police statement made on 23 November 2003 - that is, two months after the incident; although, he said, he had recalled that involvement some time earlier.

11 Faulkner also said in cross-examination that he thought Esler had tackled Renouf to stop the latter's assault upon him, and that Esler had then returned to the ambulance. He agreed, however, that Renouf had still been trying to hit him when he witnessed the assault on Esler. He denied that the effect of the ambulance floodlight had been to interfere with him seeing exactly what was going on. He said that, when he was back in the ambulance, he did not see the applicant.

12 Esler's account of the incident did not coincide in some respects with the evidence given by Faulkner. Much was sought to be made of the differences by counsel for the applicant on the appeal; and apparently by counsel at trial.

13 Esler said in examination in chief that, Hillis having became fractious, and having struck him in the stomach, Renouf began to accuse Faulkner of punching Hillis, and then laid hold of Faulkner. The witness, alarmed, went to the ambulance in order to call for help. As he got a call off, he saw Renouf punching Faulkner "quite viciously to the face." At that stage he, the witness, was grabbed from behind, and pulled away from the ambulance with such violence that the microphone, which was still in his hand, was ripped out of the ambulance's radio receiver. He then attempted to go to Faulkner's assistance, but went to ground, being hit from behind "quite a few times" on the back of his head and his back by a person or persons whom he did not see. The person(s) assaulting him must have been between him and the ambulance. A little later - I interpolate, the assault upon him had presumably ended - he returned to the ambulance and got in. He observed that Faulkner had got to his feet and was trying to get back to the ambulance. Then the witness decided to retrieve a portable radio, which was on the ground a metre or so from the ambulance. As he got out of the vehicle he was confronted by four men - Renouf, Smith, Hillis and the applicant. The applicant was particularly aggressive, threatening to punch the witness's eyes out. Before making the threat, and grabbing the witness by the coat, the applicant -

". . . initially, . . .was talking to his mates, yelling something to the effect of which one, which one did it."

14 Cross-examined, the witness confirmed that he felt as if he was being pulled from the ambulance, but that he was not struck until he was on the ground. He estimated the time from when he went to the ambulance to make a call for help until he went to assist Faulkner as probably "well less than a minute." From the time he first saw Faulkner struck in the face until he tackled Renouf was "very quick ... I don't know, maybe 30 seconds or so." He confirmed that he had not seen the applicant before returning to the ambulance, and assisting Faulkner to do so. He was not cross-examined to suggest that his identification of the applicant had been mistaken. The cross-examination was relevantly directed to the question when he had first seen the applicant.

15 I have shortly described the general circumstances of the incident giving rise to the charges laid against the applicant, and the gist of the evidence led against him. It is next convenient to say something about the mechanics of the trial. It began, in substance, after the luncheon adjournment on 22 November 2004. It continued the next day, although the court did not sit until just after 11.30 am. The evidence concluded some time after noon. Addresses commenced after the luncheon adjournment. They were evidently brief. Then followed the judge's charge which was completed by a little after 3.30 pm. The jury returned its verdict at 5.22 pm, having been back in court to hear a question answered, and further directions given, between 4.07 and 4.22 pm. In all, the jury deliberations occupied about one and a half hours.

Submissions upon Ground 1

16 Although counsel for the applicant dealt first with Ground 2 in his oral submissions, I begin with Ground 1. Almost all the matters raised by counsel in support of Ground 2 were also agitated in connection with Ground 1; and Ground 1 asserts specific error.

17 Counsel submitted, in support of ground 1, that save for the identification evidence of Faulkner and Esler there had been no evidence placing the applicant at the scene, still less evidence that he had assaulted Esler. Reliability of the identification had been challenged. The judge had given an inadequate charge as to identification. He had not said enough to impress upon the jury a number of weaknesses in Faulkner's identification evidence. Thus, that -

• Faulkner had been dazed, groggy, and may have lost consciousness, in the critical period.

• Faulkner had been looking in the direction of the ambulance floodlight at the critical time.

• There had been considerable delay in Faulkner viewing the photoboard.

• The identification had been made from a photoboard.

• The judge had erred by not specifically directing the jury as to the dangers of convicting upon identification from police photographs.

• The judge ought to have explained that even honest and convincing witnesses may be mistaken, particularly where their opportunities for observing a suspect are limited.

• The judge ought to have explained that two defective identifications did not support one another.

• The judge ought to have highlighted Faulkner's failure to make mention of the applicant in his statement of 23 September 2003.

• The judge ought to have highlighted inconsistent evidence given by Faulkner and Esler concerning the applicant.

19 According to the respondent's submissions concerning Ground 1 -

• The trial was conducted on the basis that if the jury found that the applicant was present when the affray took place then it was conceded that he had been involved in it.

• The trial proceeded on the basis that Esler had suffered injury. The question was whether the applicant had inflicted injury on Esler. The Crown case was that he had acted in concert with others in doing so.

• The evidence given by Faulkner and Esler was reconcilable, given particularly that there were many commonalities and that, in a short-lived incident, it would be artificial and unrealistic to expect that the perceptions and evidence of two witnesses would be identical.

• The pertinent directions were adequate in the circumstances of a trial of short duration, in which the relevant direction of law was followed by an analysis of the evidence which focused on criticisms raised for the applicant.

• There had been no application for a relevant re-direction.

Resolution of Ground 1

20 In my opinion, the first ground has not been made out.

21 As the trial proceeded, it was not in contest that at a late stage the applicant had been present at the scene of the affray and woundings. Esler was not cross-examined to suggest the contrary. It was not suggested that his photoboard identification of the applicant was in doubt. It was uncontroversial that neither Faulkner nor Esler had seen the applicant at the outset. It was also uncontroversial that each of Hillis, Smith and Renouf had been present at the outset. Further, Smith was previously known to each of Faulkner and Esler, Hillis was (partly) wearing a cervical collar by the time that Esler was attacked, and Renouf was assaulting Faulkner immediately prior to (if not at the time of) the assault on Esler. Further again, there was no evidence that anyone except Hillis, Smith, Renouf and the applicant, along with the two ambulance officers, had been present at any stage of the affray or its immediate aftermath.

22 The Crown case, then, really amounted to this: if the jury accepted Faulkner's evidence that he had seen Esler being assaulted by two men, one of whom was very identifiably Hillis, the overwhelming probability was that the second attacker had been the applicant. That was so because -

• Renouf was probably occupied attempting to strike Faulkner.

• Smith was known to Faulkner.

• Faulkner had identified the applicant, albeit belatedly. He had selected the same photograph as Esler. The effect of his evidence was that he had only seen the applicant once - that is, when the latter had been attacking Esler.

23 So viewed, the Crown case was largely a circumstantial one. There is no complaint that a direction in that connection was not given.

24 If one treats the case, however, as one which turned upon identification evidence, I am not at all persuaded, in the circumstances of the particular trial, that the charge was deficient. It was not a model charge. Some of the applicant's attacks upon it were not without foundation - although others, in my opinion, were without any merit. But overall, particularly bearing in mind the close temporal connection between the judge's directions upon the law and his summary of the evidence, the matters about which there was some room for complaint were, I think, sufficiently addressed.

25 Concerning the various matters raised by counsel's submissions, I make these observations: First, the judge certainly did focus upon Faulkner's state at the time when he observed a person whom he identified as the applicant attacking Esler. He did so, briefly but to the applicant's advantage, in the course of his direction as to identification evidence:

"Some people under stress, have their powers of observation increased, others blank out and have their powers diminished, which is likely to happen in this case. You have heard the evidence, you have heard what the witness, particularly Mr Fawkner (sic) said about his state."

Then, in summarizing the evidence, his Honour referred extensively to concessions made by Faulkner as to his physical and mental state at the critical time.

26 Second, the judge did refer to what counsel contended was a weakness in Faulkner's identification of the applicant caused by him looking in the direction of the ambulance floodlight at the time. His Honour said this:

"What opportunity for accurate observation existed? What was the light like? You may remember there were some questions asked and there is evidence there about floodlights, and what the effect of the floodlights were."

27 That reference was not as extensive as it might have been. But any fair summary of the evidence introduced at that point would not have assisted the applicant; for Faulkner had rejected the suggestion that the effect of the ambulance floodlight had been to impair his vision of the scene.

"You were looking straight into a spotlight? - - - No, it's a floodlight, more of a floodlight that a spotlight.

I suggest to you that it would make it very difficult to see exactly what's going on? - - - No, I suggest it doesn't."

28 Third, the judge gave a standard direction that even honest and convincing witnesses may be mistaken in their identification of persons, particularly when their opportunity for observing such persons is limited. He drew attention to the relevance of matters such as the state of the lighting, the period of observation, what part of the person identified had been seen, the impact of any distracting activity, the state of the person making the observation.

29 The applicant complains that the direction was not set in context. In part that is so. That is, his Honour did not identify pertinent evidence relating to each of the aspects just mentioned. But he did address, as I have already noted, the matter which was most addressed at trial - Faulkner's physical and mental state at the critical time; and as well the state of the lighting. Again, though it is a different point, his Honour did mention in his charge Faulkner's estimate of the duration of the attack on Esler - that being the period in which he observed the man whom he identified as the applicant.

30 Fourth, in my opinion there was nothing to the submission that the judge should have directed the jury that two defective identifications did not support one another. Esler's identification of the applicant was not in dispute. That did not in itself make good Faulkner's evidence identifying the applicant as a man who assaulted Esler. But there was nothing defective in Esler's identification.

31 Fifth, contrary to counsel's submissions, the judge did address, in the course of his directions about identification, Faulkner's failure to make mention of the applicant in his first police statement. His Honour did so elliptically, but in the context of a short trial the point could hardly have been lost on the jury. Thus -

"What time elapsed between the initial observation of the subject and the identification later? You may recall here that there is was (sic) statement made to the police officers investigating soon after the event, and then two months' later."

32 The applicant complains that his Honour's failure to squarely address the issue was compounded by a "belated and inadequate direction as to prior inconsistent statements". His Honour was asked by counsel for the applicant to give a prior inconsistent statement direction. He did so. There was no exception. There is no ground of appeal attacking the direction. The submission has all the hallmarks of a makeweight. His Honour's direction was not a model, but I do not think that it was misleading.

33 Sixth, there were, as I have already noted, some variations in the account of events given by Faulkner and Esler. The judge did not comment upon those variations in the context of his directions concerning identification. On the other hand, his Honour later highlighted, in a way favourable to the applicant, his perception of the evidence of Faulkner and Esler insofar as it pertained the applicant -

"[Esler] certainly gave you very clear and precise evidence of his observations of Mr Rowlands and when he believed he was first there, what he was doing. The only consistency that I saw between the observations made by Fawkner, (sic) and the observations made by Esler, about the accused man, Rowlands, was the calling out: 'Which one, which one?' Apart from that I do not believe they were consistent, that is my view. But that is my comment, not yours. It is not my task to make a determination about what the truth of the matter is, it is very much your function."

Again, his Honour emphasised the non-contributory aspect of Esler's evidence.

" ... [counsel] on behalf of his client says, it was not me, I was not there relies heavily, I would suggest, this is my comment to you, on the evidence of Esler himself. He cannot say who did it, did not see who did it, and he identifies him in the way that you heard in that witness box about where he first was when he first saw him after the event when he was driving off in the ambulance."

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.

[1] The applicant was sentenced, after a plea in mitigation, on 27 January 2005, to a total effective sentence of 20 months' imprisonment with a non-parole period of 12 months. A declaration was made in respect of pre-sentence detention. I note these matters for completeness only. They are of no relevance to the appeal.

[2] [1981] VicRp 61; [1981] V.R. 611 at 621.

[3] [1994] HCA 63; (1994) 181 C.L.R. 487. Counsel for the applicant relied upon the judgment of Mason, C.J., Deane, Dawson and Toohey, JJ. at 494 - 5. Semantic differences in the formulations of the majority and minority in that case were discussed by Nettle J.A. in R. v. Saad [2005] VSCA 249, his Honour concluding that the question to be decided, in substance, is whether the jury was bound to have a reasonable doubt as to the guilt of the accused. See at [4].

[4] Counsel relied upon s.51 of the Interpretation of Legislation Act 1984, R. v. Sessions [1998] 2 V.R. 304 at 312 per Hayne, J.A., Pearce v. R. (1998) 194 C.L.R. 610, and R. v. Langdon [2004] VSCA 205.

[5] R. v. Neilan [1992] VicRp 5; [1992] 1 V.R. 57, at 67; R. v. Doherty [2003] VSCA 158; (2003) 6 V.R. 393 at [27], 409-410, per Winneke, P.