Herbert v Byrne

• Jurisdiction: Northern Territory
• Judge: Blokland J
• Judgment Date: 07 June 2018
• Neutral Citation: [2018] NTSC 37
• Court: Supreme Court
• Docket Number: FILE NO: 21717904 (LCA 52 of 2017)
• Date: 07 June 2018

[2018] NTSC 37

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Blokland J

FILE NO: 21717904 (LCA 52 of 2017)

Between:

Stephen Geoffrey Herbert

Appellant

and

Nicholas O'shea Byrne

Respondent

REPRESENTATION:

Counsel:

Appellant: P Coleridge

Respondent: L Hopkinson

Carr v The Queen (2000) 117 A Crim R 272 ; Davies v The King (1937) 57 CLR 170; Grbic v Pitkethly (1992) 65 A Crim R 12; Longmair v Bott [2010] NTSC 30; M v The Queen (1994) 181 CLR 487; Mills v Western Australia (2008) 189 A Crim R 411; Morluk v Firth [2017] NTSC 91; R v Murray (1987) 11 NSWLR 12; Sharrett v Gill (1993) 65 A Crim R 44; Winmar v Western Australia (2007) 35 WAR 159; Wurramarba v Langdon [2017] NTSC 5 referred to.

Evidence (National Uniform Legislation) Act (NT) s 116.

Local Court (Criminal Procedure) Act (NT) s 177(2)(f).

Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 12 ^th ed, 2016)

CRIMINAL LAW — appeal against conviction — evidence — whether conviction unsafe and unsatisfactory — appeal Court must review whole of evidence and ask whether trial judge should have had doubt as to guilt -evidence must be assessed realistically considering witness' vulnerabilities, expression, speech modes and responsiveness — some characteristics undermined reliability of witness' evidence including gratuitous concurrence — trial judge closely scrutinised sole witness' evidence — Murray direction given — nature of warning and considerations of reliability mitigatable in appropriate circumstances — factors relevant in assessing probative value of identification evidence enumerated — length and nature of witness' and appellant's acquaintance relevant — circumstances preceding and of assault made witness' evidence reliable — conviction not unsafe or unsatisfactory — appeal dismissed.

CRIMINAL LAW — appeal against conviction — evidence — whether trial judge failed to adequately direct himself on identification issue — no particular format needed for warning — trial judge warned himself — trial judge gave himself Murray direction — trial judge discussed circumstances diminishing witness' reliability with reference to risks of identification evidence — trial judge directed himself adequately — no substantial miscarriage of justice — appeal dismissed — Evidence (National Uniform Legislation) Act (NT) s 116 — Local Court (Criminal Procedure) Act s 177(2)(f).

CRIMINAL LAW — appeal against conviction — evidence — whether trial judge treated evidence of witness' prior statements erroneously — whether prior statement can support identification when identification key issue — representation evidence admissible to prove truth of representation and support witness' credibility — mistaken identification not cured by multiple identifying statements — representation relevant and had probative value in determining identification issue — representation made soon after assault reduced but did not eliminate risks of identification — appeal dismissed.

REASONS FOR JUDGMENT

(Delivered 7 June 2018)

Introduction and background

1 This is an appeal against a finding of guilt and conviction in the Local Court for one charge of aggravated assault. The circumstance of aggravation were that the victim was a female and the appellant was a male, that she suffered harm, was threatened with an offensive weapon, and was unable to effectually defend herself.

2 The broad facts were that the victim (MB) was drinking heavily with family members and eventually passed out in a park at Stuart Park. She was awoken by being hit with a rock repeatedly by a man she claimed was her ex-husband, the appellant in these proceedings. There was and is no issue MB was the victim of a serious assault. The principal issue is whether it was proven to the requisite standard that the assault was committed by the appellant.

3 There are three grounds of appeal. First, that the trial judge erroneously dealt with evidence of prior statements made by the victim. Second, that his Honour failed to direct himself or adequately direct himself on the issue of identification. The final ground is that the decision of the trial judge was unsafe and unsatisfactory.

The evidence before the Local Court

Evidence of MB

4 MB was the only witness called in the trial. Other people who were in the area at the time told police they heard what happened but did not see the incident. 1

5 MB told the Court that she and the appellant were married for eight years, had known each other for 19 years, and have four children together. 2 They separated in 2006 but had remained in contact since then. 3

6 On the evening of 9 September 2016, she was in Winnellie drinking cask chardonnay with family members and the appellant. 4 The group shared some three of four casks of chardonnay between six of them. They consumed

about half a cask each. 5 Around two hours later, MB, a person called Janice, another called Sophie, some family members and the appellant caught a bus travelling towards the city. While on the bus, MB shared a 600 millilitre water bottle filled with chardonnay with a friend. 6 The appellant and some of the other people in the group alighted at Stuart Park. MB remained on the bus until reaching the city, where she continued to drink from the bottle filled with chardonnay. 7 The chardonnay was from one of the four casks mentioned above. She could not remember how many times the bottle was refilled with wine. 8 Later on, she waited for a bus for around 20 minutes while drinking half of the 600 millilitre bottle filled with chardonnay. 9 She took the bus to the Stuart Park shops, during which time she and a friend (Gracie) who she had encountered on the bus, shared the remaining half of the bottle. 10 MB described herself as “a bit drunk” at that time. 11

7 Upon arriving at Stuart Park, MB searched for the appellant as she thought she “wanted to go to sleep beside [him]”. 12 She was not sure what time of the day or night it was. 13 She said she found him sleeping in a park lane near the pipeline, and that she fell asleep 1.5 metres away from him. 14 She did not say anything to him, and there was no one else in the vicinity at that time. 15

When asked in examination-in-chief how she knew she had found the appellant, she simply responded, “He was”, and agreed that she could see him clearly. 16

8 MB was awoken in the early hours of the morning by pain in her ribs. She said she saw the appellant with a large rock measuring approximately 20 centimetres standing close to her. 17 It was “a little bit dark” at that time, but there was nothing obstructing her view of the assailant. 18 She was feeling “a little bit sober” at that point. 19 Upon being asked how she knew the assailant was the appellant, she replied, “I know because I saw him,” and when asked again, because “He got close”. MB was then questioned about what she saw when he came close, to which she stated, “Saw Stephen”. 20

9 She said the appellant hit her again with the rock in the middle of her back and leg, and she told him to stop hitting her. 21 She tried to grab the rock from him, and he hit her on the right eye with the rock. 22 At this stage he was 20 centimetres from her. 23 He then threw the rock away, punched her on her hand, and left. 24 At no point during the assault did the assailant say anything to her. 25

10 MB suffered multiple facial fractures, injuries to both eyes, her mouth, the top of the head, left elbow, right pelvic area, ribs, and right lower back. 26 She was still unable to open her right eye over 24 hours after the assault. 27

11 In cross-examination, the following matters relevant to the quality of MB's recognition evidence were elicited. She had already drunk approximately half a cask of chardonnay by the time she went into the city, and was “very drunk”. 28 The group had drunk three casks of wine before departing for the city. 29 She did not know what time it was when she was searching for the appellant to pass out beside, but she stated she knew that her memory was not hazy then. 30 She and the appellant did not regularly sleep near the pipeline in Stuart Park, but other people do. 31 When they had slept there, it would not have been in the exact same place. The nearest light to the pipeline was at the Stuart Park shops, which are across the road, and there is a grassy area adjacent to the pipeline. 32

12 MB has a longstanding history of partial blindness in her right eye, a fact which is corroborated by medical records from her admission for the assault at the Royal Darwin Hospital. 33 She could see “two fingers” in the right eye, and her pupils appeared divergent (with the right eye not moving), both of

which she reported to medical staff as chronic. 34 When put to MB that the combination of the above elements made it possible that she had become confused about who was actually asleep on the ground near the pipeline, she said, “I'm not sure”, “I think it was him” and finally, “I'm sure it was him”. 35

13 Further, in cross-examination, MB agreed that it was still dark when she was awoken by the assault. 36 She also agreed that the manner of her awakening would have been confusing, and that she took a moment to realise what was happening. 37 Things happened very quickly, and she was still drunk at that point. 38 She also said she became dizzy. When MB spoke to police officers at approximately 8:30am on the morning of the assault, she was described as mumbling and difficult to understand, and appeared intoxicated. 39 She agreed she did not tell police she tried to grab the rock from the appellant. 40 She believed it was the appellant who attacked her, because he was the person she considered she had fallen asleep beside. 41 She did not get a good opportunity, if any, to see who her...