Re Roger David Cheney v R [1991] FCA 37; 28 FCR 103 - FCA 1991 case summary — Zoe

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Re Roger David Cheney v R [1991] FCA 37; 28 FCR 103

[1991] FCA 37

Federal Court of Australia|1991-02-19|Before: Mr P, Doussa J

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Source facts

Court

Federal Court of Australia

Decision date

1991-02-19

Before

Mr P, Doussa J

Source

Original judgment source is linked above.

Judgment (110 paragraphs)

[1]

Re Roger David Cheney v R [1991] FCA 37; 28 FCR 103 (19 February 1991)

[2]

[1991] FCA 37; 28 FCR 103

[3]

Criminal Law - appeals against convictions for sexual assaults without consent - issue of identification central at trial - whether evidence should be received on the appeal "as fresh evidence" - whether the evidence could with reasonable diligence have been available at trial - whether the alleged fresh evidence raised a significant possibility that the jury, acting reasonably, would have acquitted the appellant - whether "similar fact" evidence led by the accused was admissible to establish similarities between the crimes charged and other sexual attacks in the area in respect of which the accused set up an alibi - whether admissibility dependent on "striking similarity" - whether evidence of photo identification admissible - whether verdict unsafe or unsatisfactory - whether an order that a victim's evidence be taken "in camera" under s.76D of the Evidence Ordinance 1971 (ACT) should be accompanied by a warning to the jury - whether the Crown should have been given leave to call a police officer in reply to prove a previous inconsistent oral statement by a witness for the defence - the procedure to be followed to prove a previous inconsistent statement of a witness admissible under s.61 of the Evidence Ordinance discussed - direction by trial judge as to use to which prior inconsistent statement could be put - whether no miscarriage of justice notwithstanding irregularity at trial.

[34]

14. The evidence relied on to support the "hypnosis point" was also inconclusive. It is unnecessary to explore the expertise of Mr Gibson to give the evidence which was adduced from him. Although his expertise was criticised by counsel for the respondent on the ground that it was based on academic theory rather than clinical experience, a witness may be qualified as an expert on the ground of academic study in the relevant discipline, and Mr Gibson's expertise was sufficiently established in this way for this Court to receive his expert opinion on the assumption that it was otherwise admissible. No evidence was adduced in opposition to Mr Gibson's opinions. But those opinions do no more, in my view, than raise the abstract possibility that evidence of identity given after hypnosis by the victim of a sexual attack might be unreliable. As I understand Mr Gibson's evidence, the concern which he voices is that if the hypnotist was not scrupulous to avoid leading questions and comments which could unwittingly implant a suggestion about a fact, there is a risk that something said by the hypnotist could make the evidence of the witness given thereafter unreliable on matters to which the leading questions or suggestion related. (See para.5 of Mr Gibson's affidavit sworn 16 July 1990). Mr Gibson had the benefit of viewing a video tape of the hypnosis session involving the victim. Whilst he considers the video tape to be a less than perfect record as it does not fully record the total conversation between the hypnotist and the victim at times when she was not under an hypnotic trance, he cannot relate anything said or done by the hypnotist to any particular aspect of her later identification evidence in a way that would suggest that the identification is likely to be unreliable. It is significant that at the time of the hypnosis the appellant was not a suspect for the crime. In my opinion, the evidence of Mr Gibson in combination with all the other evidence does not lead to the conclusion that a verdict of guilty by a jury acting reasonably on proper instruction would be unsafe or unsatisfactory.

[42]

21. The evidence sought to be relied on by the appellant as to the circumstances of the sexual attacks on 2 July 1988 was for the most part strictly not in admissible form. Evidence given in other proceedings by the victims of the other crimes was proffered to the court. The victims were not called. This is perhaps understandable as those victims were young girls, and at the time of the hearing of the appeal the trial of another person charged with crimes concerning the young victims was to take place. I pass over the difficulties which confront the appellant arising from the form in which the fresh evidence has been put forward. It is contended that the evidence from the other proceedings shows striking similarities between the crimes on the two dates. In particular it is said that each occurred in the hours of daylight, in a public place not far from dwelling houses. Each victim was "seized" and taken to a secluded place. The attacker in each instance covered his head with an item of clothing. The attacker in each case was described as about 6 feet tall. The victims noted some peculiarity in the attacker's voice. The attacker withdrew from the scenes of the crimes without being observed to do so by the victims. At some stage during the attacks the attacker was perceived by the victims to have a flaccid penis. At first glance this catalogue of apparent similarities is impressive but on scrutiny, insofar as scrutiny is possible on the information before the Court, these alleged points of similarity are hardly distinctive of one person. There are however two other matters of alleged similarity which have greater potential to be distinctive, namely that in each attack a victim alleges that the attacker obscured her vision with an article of blue and white cloth, and in each attack clothing of a victim revealed stains which tested positive to seminal acid phosphatase activity without evidence of spermatozoa in the relevant stains. Again, the information on these matters before the Court does not permit any close scrutiny of the degree of similarity between the attacks. These points of similarity have not been the subject of investigation during the legal proceedings which have taken place. The points of alleged similarity were not known at the time of the appellant's trial and were passed over. The possibility of a close degree of similarity cannot be ruled out, but against that possibility it is clear from the information before the Court that there are other circumstances of the attacks which are markedly different. The attack on the victim of the crimes with which the appellant was charged was a particularly forceful and violent one, and the victim was a mature adult woman. The other attack was of a quite different character upon two very young girls. The sexual acts allegedly performed by the attacker in each instance were also different.

[44]

23. I return now to ground 2 which alleges that the learned trial judge erred in admitting the evidence of the victim purporting to identify the appellant from a group of photographs. After the investigating detectives alighted on the appellant as a suspect he declined a request to take part in an identification parade. In these circumstances the use of a photo board was appropriate. The victim was shown a board on which were affixed photographs of 12 men. She identified that of the appellant. The attack on the admissibility of that evidence rests mainly on a narrow point. It is contended that because the photograph of the appellant showed him in a different pose to the subjects of the eleven other photographs that fact drew attention to him. The appellant was shown positioned so that his body was slightly side on with his face turned towards the camera. All the other men were positioned so that their bodies and faces were directly facing the camera. In my opinion the appellant's complaint is without substance. If the minor difference in pose were perceived to be significant by the victim, which I think is most unlikely, the position of the appellant was likely to suggest that the photograph was not one taken for the purpose of a police identification, in contrast with others on the board. The striking feature of the photo board is the close similarity of various features which are common between the appellant and several other men whose photographs are included. I am unable to discern anything about the photo board which was liable to suggest the appellant as the police suspect or which was otherwise unfair. It is also contended that as the victim had undergone hypnosis this may have made her selection of the appellant unreliable. I am unable to think why that should be so, and the evidence of Mr Gibson does not raise this as a real possibility. In my opinion the victim's evidence of identification was rightly admitted. An identification based on photographs of course carries with it the risks always inherent in this type of identification which the High Court discussed in Alexander v. The Queen [1981] HCA 17; (1981) 145 CLR 395. The risks were highlighted in this case by the limited opportunities which the victim had to see her attacker's face, as her attacker covered her head during most of the attack. The identification evidence required careful direction to the jury; such direction was duly given.

[58]

That section is found within Part XA of the Ordinance which was introduced by the Evidence (Amendment) Ordinance (No.2) 1985. Part XA contains a package of provisions which revised procedural law relating to the trial of sexual offences. There is no requirement in the Ordinance, where a direction is given under s.76D, that any explanation or warning be given to the jury. It is left to the trial judge to decide in the circumstances of the case what, if any, explanation is required. In the instant case when the prosecutor announced that he proposed to call the victim, the learned trial judge said "I direct that the evidence of this witness be taken in camera, would you please make an order". The prosecutor asked that the victim's husband be exempted, and he was. The clerk then announced "All persons are commanded to leave the hearing of the court". There is nothing about this course of events which would suggest to the jury that any unusual procedure was being adopted, or that the victim had in some way attracted the sympathy of the court. The jury of course would have noted that the direction applied only whilst the victim was giving evidence, but as ordinary members of the community, they would have readily understood that the court was cleared because of the intimate and embarrassing nature of parts of the victim's evidence. There is no reason to think that the jury might have accorded the victim's evidence any special weight because it was taken in camera. Had the learned trial judge entered on an explanation as to why the direction had been made, that would have drawn attention to the fact that a special procedure was being invoked for the victim. Any attempt to give a warning of the kind contended for by the appellant potentially could have led the jury into confusion as to how they should give appropriate weight to the victim's evidence. In my view the learned trial judge wisely followed the course which he did. There is no basis for the challenge in ground 5, and in any event no complaint was made to the trial judge at the time about the course which he followed.

[86]

"Evidence which is admissible by reason of s.18 is technically

capable of being led in rebuttal but subject to the discretion of

the trial Judge, which is applicable to all rebuttal evidence in

accordance with the principle set out more recently in Killick v.

R. [1981] HCA 63; (1981) 56 ALJR 35; 37 ALR 407. Briefly stated, it

emphasises the dangers of unfairness to the accused caused by the

admission of rebuttal evidence so that it should be allowed only

when the Crown could not have reasonably anticipated its need, and

then only in respect of a serious and material point and where the

probative value of the evidence is strong. The section does not

provide any statutory right to call such evidence exclusive of the

discretion and does no more than make that evidence admissible in

a proper case: R. v. Ghion (1982) Qd R 781. Unlike Killick v.

R. (supra) and a number of other cases where the evidence could

have been led in the Crown case, the relevant evidence here could

not of its very nature be called until after the defence case.

The position in such a case was left open in Parker v. R. (1982)

41 ALR 576; but it was held in R. v. Neville (1985) 2 Qd R 398

that where ss.18 and 101 had operation so that the Crown sought to

lead evidence in rebuttal of a prior inconsistent statement of a

defence witness the considerations which were relevant in Killick

v. R. (supra) had application in competition with the factor of

the inability of the prosecution to call the evidence any earlier.

How the discretion will be exercised will depend upon the relative

strength of the probative force of the evidence as to the real

issues for the jury and the possible prejudicial effect of

rebuttal evidence in general, together with any other relevant

factors. On these considerations in the present case, because of

the casual nature of the conversation in issue, and consequently

because the result is more a question of credit of a witness than

of direct evidence relating to the offence, in general principle

it was not of such probative force as to justify its being allowed

in rebuttal."