1

BRIEF TO COUNSEL

APPEAL AGAINST CONVICTION BY LYNNETE BRODWYN

BOBART

BACKGROUND TO BRIEF

On 26 May, 2011, in Brisbane District Court, Lynette Brodwyn Bobart was sentenced

to six years imprisonment and disqualified from driving for four years, following her

conviction by a jury of one charge of dangerous operation of a motor vehicle causing death

while recording a blood/alcohol concentration of 0.253, on 25 April 2009, at Beachmere, near

Caboolture.

On 2 March, 2012, the Queensland Court of Appeal dismissed her appeal against

conviction.

Counsel is briefed herewith to advise on prospects for a further appeal.

OVERVIEW OF FACTS

It is not disputed, and was in fact formally admitted for the purposes of trial 1, that on

the day in question (Anzac Day, 25 April, 2009), a red 4WD containing the Appellant

(hereafter “Lyn”) and her partner Gary Ball (hereafter “Gary”) caused the death of the victim

Peter Bray when it collided head on with his motorcycle on Moreton Terrace, Beachmere.

The approximate location of this impact is marked at “A” on the Google map which

accompanies this brief. The subsequent conduct of the trial by defence counsel Mark

Johnson was such that no material challenge was raised to the allegation that the driving

which caused this death was „dangerous‟ in law.

The principal issue in the case was the identity of the driver of the 4WD, and this was

emphasised by the trial judge in his directions to the jury 2. It is not disputed that after a

lengthy drinking session in the Beachmere Tavern and elsewhere on the morning of 25 April,

Lyn and Gary left the Beachmere Tavern (located at “B” on the Google map), walked across

Beachmere Road and entered the 4WD (registered to, and normally driven by, Lyn) which

they had earlier that day parked across the road in a space adjacent to a service station

(marked “C”). The vehicle was then reversed out of its parking space, and driven out onto

Beachmere Road, which it followed for a short distance in a roughly easterly direction to the

intersection of Beachmere Road and Moreton Terrace, which is controlled by a traffic island.

The vehicle then turned right (south), and was being driven on the wrong side of Moreton

Terrace (i.e. in the northbound lane in a southerly direction) when it collided with the

1T1-17, line 11; T3-3, line 21. 2T3-3, line 49.

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motorcycle. The evidence of the police witness PRICE3 establishes the timing of this

collision at a few minutes before 2.30 pm.

Approximately 30 minutes elapsed before PRICE (a Sergeant in the Forensic Crash

Unit) arrived at the accident scene. Police witnesses WOODMAN and JOHNSON arrived

some 15 minutes after the accident (at 2.45pm), by which time the ambulance and fire

services were in attendance, and were attending to the victim. WOODMAN and JOHNSON

began directing traffic around the accident scene, and were later joined by SEDDON and

Beavis (not a witness), who assisted WOODMAN and JOHNSON in the processing of Lyn

and Gary.

It seems that WOODMAN had already established that Lyn and Gary had been the

occupants of the 4WD when he received information from “witnesses at the scene” that Lyn

had been the driver 4. When he spoke to them both together, and asked who had been driving

the 4WD, Gary said that he had, and Lyn denied that she had 5. Because of this conflict of

information, and because both Gary and Lyn were displaying the usual indiciae of

intoxication, WOODMAN breathalysed them both, and both tested positive.

While Gary is reported as having remained calm throughout all this, it is alleged that

Lyn became aggressive towards WOODMAN when asked to submit to a breath test, and

positively hysterical and aggressive when told that she was being detained for further BAC

testing. She had to be physically restrained more than once prior to being transported back to

Caboolture Police Station 6. She continually denied having committed any offence, and this

attitude continued even when she was further tested at the police station, and informed that

she was being charged. Gary, on the other hand, claimed to have been the driver of the 4WD

on every occasion when he was askedby WOODMAN 7.

Following Lyn‟s arrest and charge, Gary sought independent legal advice from a

solicitor who was not connected in any way with Lyn‟s case. At trial, there was a

considerable degree of blame-shifting regarding the fact that it was October 2010 (i.e. 18

months after the event, and 12 months after the committal hearing) before Gary was able to

give a statement to PRICE, who had become the Arresting officer in Lyn‟s case 8. Likewise,

Gary insisted that he had never been invited to give a statement to the DPP 9, although it was

put to him in cross-examination 10

that he had ignored an invitation to meet with the Crown

Prosecutor on the Monday of the week of the trial. This conflict of evidence could have a

crucial bearing on a possible ground of appeal – see below. In the event, Gary was called as

a witness for the defence, and cross-examined by the Crown, but never shifted from his

assertion that he had been the driver of the 4WD on the day of the fatal collision.

3T1-18, line 10. The witness Billy-Lee JOHNSON, at Para. 13 of his original statement, claims to have made a

000 call at 2.19pm. 4 His formal statement in this regard conflicts with his testimony at trial – see below. 5T2-15, line 31; this is confirmed by JOHNSON, T2-41, line 51 onwards. 6T2-16, line 12 onwards; T2-27, line 21 onwards; T2-42, line 1 onwards. 7T2-21, line 59. 8T2-84, line 28 onwards; T2-87, line 32 onwards. 9T2-86, line 15. 10T2-89, line 39 onwards.

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Arising from all of this, there appear to be six potential grounds of appeal, two of

which have already been rejected by the Queensland Court of Appeal.

1. The unreliability of the eye-witness evidence against Lyn;

2. The adequacy of the trial judge‟s directions to the jury re. that identification;

3. The decision by the trial judge not to require the Crown to call Gary as a witness;

4. The evidential significance of Gary‟s confession.

5. The use of „fresh‟ evidence from enhanced CCTV footage of the 4WD entering

Beachmere Road shortly before the fatal accident, which arguably depicts Gary as

the driver.

6. The use of „fresh‟ evidence from the „000‟ call made immediately after the

accident, which directly contraverts the evidence of the witness COUPE.

These grounds are considered below, but not in that order.

THE UNRELIABILITY OF THE EYE-WITNESS EVIDENCE THAT LYN WAS THE

DRIVER

All the direct evidence tending to prove that Lyn was driving the 4WD at the time of

the impact came from two civilian eye-witnesses to the crash itself, and its immediate

aftermath. These witnesses were JOHNSON and HANNAH:

1. Billy-Lee JOHNSON

Billy-Lee Johnson (“BLJ”), an unemployed male who was 17 at the date of the

accident,appears to have identified Lyn as the driver of the 4WD to the police witness

JOHNSON 11

. He had witnessed the accident itself, and he described in his original

statement to police how he and his friend, the witness HANNAH, had been walking south

down Moreton Terrace, on the northbound lane between the outer white line and the gutter,

and had just reached a point across the road from the bus stop when his attention was

attracted to a girl standing at that bus stop. A motorcycle approached from his right, and had

just about drawn level with him when he claims to have seen the red 4WD “cut the corner” at

the roundabout intersection with Beachmere Road and proceed “on the wrong side of the road”

towards him, travelling south.

He describes (at Paras.7 & 8) how the 4WD and the motorcycle collided. He then

claims to have seen the 4WD come to rest on top of the motorcyclist, then reverse back

approximately 4 metres before finally coming to a halt. He estimates (Para. 9) that at this

stage he was standing “about 10 metres from where it happened”. If all of this is literally true,

then he was very lucky not to have become a victim of the accident himself, and he would

11BLJ‟s police statement, Para. 19, sworn three days after the accident. This seems to be corroborated by A

JOHNSON‟s own police statement, at Para. 8. Her colleague WOODMAN, in Para. 19, claims to have been

informed of Lyn‟s identity as the driver by “witnesses at the scene”, which may, of course, include A

JOHNSON herself.

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have been looking back towards the roundabout (i.e. in a northerly direction) when he claims

to have seen the occupants of the 4WD alight from it.

He further describes a woman in her 30s or 40s, wearing blue jeans and a white shirt,

get out of the 4WD on the driver‟s side12

. This would have been the left-hand side of the

vehicle, as he was looking at it, since the vehicle was facing towards him. He also describes

a man alighting from the passenger seat, “30 to 40 years old, slightly taller than the lady . . . ”,

wearing blue jeans and a shirt. BLJ further describes the woman (at Para.11) running to a

unit block at the junction of Beachmere Road and Moreton Terrace, and claims (in Paras.11

& 12) to have seen the man walk over to her, and to have heard him say to her words to the

effect of “Don‟t worry about it, don‟t worry about it”. He adds “They were only standing a

few metres away from where I was at this time”, although he makes no reference to having

moved any further towards the junction from where he had been at the time of collision,

which on his own estimate (see above) was “about 10 metres” further down the road from the

impact point. In short, he claims to have heard this conversation from at least 10 metres

away, even though, as he adds at Para.12, “By this time a lot of people were crowding

around”.

BLJ further confused things at the committal hearing 13

, when he seemed to recall that

the male “was at the units first”, and that during the time period when he had originally

claimed to have obtained a clear view of the female alighting from the driver‟s seat, he had in

fact been running with the witness HANNAH towards the injured motorcyclist while at the

same time dialling 000. His estimate was that this occurred over a five second period, and

that when “we got there, other people started getting there”. The general impression one

gains from his committal evidence is of a noisy and confused scene immediately after the

accident, and this is confirmed if one listens to the recording of the 000 call made by a female,

in the background of which can be heard a good deal of noise and confusion. He further

agreed to a suggestion by the cross-examining solicitor 14

that his “primary focus” was on

“the gentleman” 15

.

Significantly, he went on – after confusing everyone regarding which side of the 4WD

the female alighted from16

– to add 17

that the 4WD finished up “lined up with the units”, and

that the motorcycle was “in front of the units”. It is also significant that when asked about

the male, he was unable to describe him, but could add18

that “he was calm”, but19

that “the

12This is a reasonably accurate description of Lyn; his description of Gary is not so convincing, but it is not

contested that Gary was the other occupant of the 4WD. 13C1-16, entire page. 14C1-17, line 3. 15Taken in context, this must have been a reference to the motorcyclist. 16 Including himself. When it was pointed out to him that he had used a pen which he had with him in the

witness box to point to the passenger side of the car as being the side which the woman had alighted from, he

claimed to have been confused because he had friends in Melbourne who had left-hand drive cars. This strongly

suggests (to me anyway) that he was not recalling events from his actual memory, but had been told that the

female was the driver. 17C1-19, lines 9 & 10. 18C1-19, line 43. 19C1-20, line 1 onwards.

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lady was going off her chops at some other lady – swearing at her, threatening her”. He was

unable to recall anything else that had been said 20

because “I was too busy paying attention

to the accident”. As a result, he did not confirm the reference in his original statement to the

man telling the woman not to “worry about it”. He also 21

deviated from his original

statement when he confirmed that he saw the 4WD for the first time after the accident, and

did not turn round and see it until after he heard the noise of the collision. Likewise, of

course, he had said nothing in his original statement about Lyn having “gone off her chops”

at another female.

He performed no better at the trial. He first of all conceded 22

that he had not seen the

4WD negotiate the traffic island at the junction, and only became aware of the accident when

he heard the crash 23

. He was not able to describe either of the people who alighted from the

4WD, although he maintained his assertion that it was a female who got out of the driver‟s

side, and a male who left the passenger side shortly afterwards, and joined the female at the

unit block, telling her “Don‟t worry about it”24

. He further confirmed that he began a 000

call, but then handed his mobile phone over to “the lady from the fish and chip shop” that he

had attended earlier 25

. He then described an incident in which “one of the ladies that were

there” 26

, in response to a question from someone else, identified Lyn as having been the

driver of the 4WD, in response to which Lyn “wanted to belt this other lady”, but was

restrained by “a guy” 27

. This is further considered below, in connection with the statement

of the witness COUPE.

When cross-examined regarding his crucial error at the committal hearing regarding

which side of the 4WD Lyn alighted from, BLJ admitted that he had made a mistake, but

when his attention was drawn to the committal hearing, he added 28

“To tell you the truth, I

can‟t remember that far back”. This was of course 18 months previously, but the trial was

taking place over two years after the event, and his memory would presumably be even more

hazy. But he continued to insist that Lyn got out of the left-hand side of the car as it was

facing him 29

.

When asked in cross-examination to estimate the distance across the court room, BLJ

estimated it at 20 metres 30

, and maintained that opinion even when told that it was more like

10 metres. If he was that accurate in his recollection of the accident scene, then he was only

5 metres from the impact when it happened.

20C1-20, line 9. 21C1-22, line 40. 22T1-28, line 20. 23T1-26, line 49. 24 T1- 28 & 29 generally. 25The witness COUPE. In his original statement (Para.13), he claimed to have handed his phone to a male. It

transpires that COUPE was using a cordless extension to her own shop phone; see page 8 below. This makes

BLJ‟s statement unreliable on another point which can be externally verified. 26T1-30, line 11. In his original statement (Para. 15) he identified this female as the one from the fish and chip

shop, presumably the witness COUPE 27T1-30, line 31. 28T1-31, line 52. 29T1-34, line 52. 30T1-46, line 35.

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It may be worth pursuing the fact that at the committal hearing31

this witness claims

that on the evening prior to the accident, he had some involvement with the police “because

they came to get me missus”, who “ran away from home and I didn’t know”. This may have

made him pre-disposed to co-operate with the police in the drafting of his witness statement

three days later.

2. Jesse Frank HANNAH

Jesse Frank Hannah (“JFH”)was aged 18, and unemployed. He was walking with the

witness B.L.JOHNSON, and also witnessed the accident itself. He claimed in his original

statement 32

to have actually seen the 4WD cut the corner as it passed through the traffic

island, and hit the motorcycle. He confirmed that the 4WD stopped on top of the

motorcyclist, even though he had finished up at the side of the road. Immediately afterwards

“there was a lot of yelling and people trying to make phone calls” 33

, and he claims34

that

while he was looking at the injured motorcyclist, he looked at the 4WD and saw a woman

sitting in the driver‟s seat whose description matches Lyn‟s. The passenger sitting next to her

matches Gary‟s description, although JFH seems to recall that he was wearing a brown shirt.

They both remained in the vehicle “for a few minutes”, then the female walked over to the

back of the unit block, followed by the male, who “brought her back to the other side of the

units” 35

.

Crucially, in Para.11 of his original statement, JFH claims that he heard the woman

yell words to the effect that “I‟ve just killed someone” 36

, and appeared agitated. When “the

lady from the fish and chip shop” asked the female if she was alright, “the lady who was

driving the car started screaming at her and tried to have a swing at her. Some people held

her back”. He also recalls 37

that when someone asked who had been the driver of the 4WD,

“a number of people, including me and Billy” pointed to Lyn. It seems to have been this

witness who informed the police witness JOHNSON that Lyn had been driving the 4WD 38

.

At the committal hearing, he estimated the distance between himself and BLJ and the

point of impact as 5 metres 39

. He testified 40

that when the accident happened, BLJ was

making a call on his mobile phone, then he told the person on the other end that he‟d call

them back, and immediately dialled for an ambulance. He himself joined a group of people

who pulled the motorcycle off the victim, but before they had begun to do so, the male

31C1-5, line 11. 32Para. 6. This statement was sworn on the same day as BLJ (three days after the accident) and given to the

same officer. One hopes that they were separated at the time. 33Para.9. 34Para. 10. 35Para. 10. 36N.B. that the witness B L JOHNSON makes no reference to this, nor does JFH corroborate BLJ‟s allegation

that the man told the woman “not to worry abut it”. 37 Para.13. 38 Para. 16. 39 C1-35, line 29. 40 C1-36, line 22.

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“almost immediately jumped out” of the 4WD 41

. In an interesting part of his committal

testimony42

, JFH appears to state that the driver hopped out of the car and went over to the

units and joined the passenger. In answer to the next question, he replies that “he almost

immediately jumped out”, the inference being that the driver was the male.

Confusingly, he then goes on 43

to describe the female alighting from the driver‟s seat,

and the male passenger remaining where he was, with the passenger door open, while “she

walked around the car” 44

. The male joined her, and they walked over together45

to the units,

where the female from the car was “ranting and raving”. He added 46

that “she was trying to

pick a fight with everyone . . . Just yelling “I didn‟t do it, I didn‟t do it” – and then a minute

later she said “Woops, I just killed another person”.

At trial, 47

in what have been another unconscious slip of the tongue, and while

describing the movement of the 4WD down the wrong side of the roundabout, JFH stated that

“hewas coming . . . ”. He then repeated his evidence that the driver was the female, and that

she got out of the driver‟s seat “pretty frantic, pretty shooken up, angry . . . ” 48

. He further

described the male leaving the passenger seat, and added 49

that the male came round the

front of the 4WD and took the female over to the units. When asked if he heard any

conversation between the two of them, he confirmed 50

that the female said “something like

„Woops, I killed a person‟”. He also estimated the distance between the accident and where

he and BLJ had been standing as no more than two metres 51

.

In cross-examination, he became confused regarding whether BLJ had been talking on

his mobile or sending a text message immediately before the accident 52

. When it was

pointed out to him that in chief he had made no reference to Lyn saying “I didn‟t do it, I

didn‟t do it”, whereas he had mentioned it at the committal hearing, his response was “I have

a really bad memory” 53

. Later 54

, he agreed that he probably did hear Lyn denying any

liability for the accident.

41C1-36, line 51. 42C1-40, line 41 onwards. 43C1-38, line 3. 44C1-38, line 6. She would only have been required to walk “around the car” if she had been the passenger! In

his evidence (T2-94, line 52), Gary confirmed that he “just hopped out of the car, went round, embraced Lyn . . .

“, which contradicts JFH’s version of events. 45Compare this with BLJ‟s assertion that the female went over to the units first, and was joined by the male a

short while later. 46C1-38, line 18 onwards. 47T1-50, line 19. 48T1-51, line 19. 49T1-51, line 32. 50 T1-51, line 48. 51T1-52, line 28. In cross-examination (T1-61, line 20), he agreed that the distance might have been as long as

15 metres. 52See, generally, T1-54. 53T1-62, line 31. 54T1-64, line 10.

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Of some potential interest is the fact that during the course of his cross-examination,

this witness revealed 55

that he had received counselling as the result of the trauma he

experienced from witnessing the accident.

There was also some indirect evidence relied on by the Crown at trial, which was

consistent with Lyn having been the driver of the 4WD. In each case, the evidence consists

of statements allegedly made by Lyn which are not corroborated by any other witness, and in

one instance can be proved not to have been made.

3. Crystal Ann COUPE

Crystal Ann Coupe (“CAP”) was the 26 year old proprietor of the fish and chip shop

located on the north-west corner of the roundabout at the intersection of Beachmere Road and

Moreton Terrace. It is marked “D” on the attached Google map.

When her cousin and employee CAMERON saw the accident from the front of the

shop, she raced back in and asked CAP to call the ambulance, which she did56

. It is

presumably her voice which can be heard on the „000‟ transcript. In her statement to police 57

,

she described her role in attempting to assist the dying motorcyclist. Of particular

significance is Para.6 of that statement, in which she describes how, when asked by the 000

operator to find out if anyone from the 4WD was injured, she yelled out into the crowd which

had gathered around the victim if the 4WD driver was OK. A woman answering Lyn‟s

description then approached her with the words “Do you want a go, what‟s your problem, I

was driving”. The woman was becoming more aggressive towards her when a man came

between them, sat the woman down on the ground, and told CAP to go away.

CAP was not required as a witness at the committal hearing, but she testified at the

trial, and basically repeated what was in her statement 58

. The 000 call recording was not

played to the jury, and she was not cross-examined by defence counsel.

We now have the transcript of the 000 call which CAP (presumably) made, and the

responses of the 000 operator. The total length of the recording is 8.04 minutes, and – as

noted in Para. 7 of CAP’s statement – she handed the phone to someone else 3.36 minutes

into the call. During those 3.36 minutes, at the prompting of the 000 operator, she may be

heard asking (at 1.03 mins)those around her “Who was driving the four wheel drive?”

There is a brief silence of no more than 2 seconds, and she then informs the 000 operator

“The person who was driving the four wheel drive is gone”. Throughout this entire period,

she is at the motorcyclist’s side, and relaying resuscitation advice from the 000 operator to

55T1-58, line 12 onwards. 56The number given by the person who called “000” was 54968539, which is the land line to COUPE‟s shop

phone. She then ran down to the accident scene with her cordless phone extension; as emerges below, it is

significant that the recording of the 000 call can be proved to be that made by COUPE. 57Sworn on 13 July, 2009, some ten weeks after the event. 58T1-73 generally.

9

those working to revive him. There was clearly neither the time nor the opportunity for her to

have been approached by Lyn, as suggested.

This clearly contradicts both her police statement and her trial testimony, and

constitutes “new” evidence which was not made available at the trial

4. Geoffrey BOWE

Geoffrey Bowe (“GB”) witnessed the accident from inside the fish and chip shop, but

could not identify the driver of the 4WD directly. The significance of his evidence relates to

what he saw both before and after the accident. Before the accident, he claimed 59

to have

seen two people (presumed to have been Lyn and Gary) in the Beachmere Tavern, and later

walking down Beachmere Road. As they walked along, Lyn appeared to drop something,

and she was so unsteady on her feet that Gary was forced to steady her by holding onto her

hips.

After the accident, he claimed60

to have been looking down at the injured motorcyclist

when Gary came up behind him, grabbed the motorcyclist by the shoulder and asked him if

he was OK. GB goes on 61

to state that by this time he had been joined by two young men who

had earlier been in the fish and chip shop. These were presumably BLJ and JFH62

, although

neither of them make any reference to this incident in their statement or testimony.

Even more curiously, his original statement 63

regarding Lyn‟s subsequent actions was

elaborated on in a significant way at trial. His original statement states merely that he saw

Lyn and “the girl from the takeaway” in what he called “a verbal altercation”, without being

more specific. At trial 64

he added that he heard Lyn say to the girl “It wasn‟t my fault. He

came out of nowhere”.In cross-examination 65

GB agreed that his original statement had not

been as specific as his oral testimony regarding what Lyn is alleged to have said, and he

attempted to explain that away 66

with the explanation that his memory had improved over

time. He also made the interesting concession 67

that although he had given police his details

at the scene of the accident, he had not been asked for a statement until 11 months later 68

.

Even more intriguing is the identity of “the girl from the takeaway” to whom he had

been referring, neither of whom (COUPE or CAMERON – see below) made any specific

reference to such a conversation. The person in question must, by inference, have been

59Statement, Para. 4; T1-75, line 20. 60Statement, Para. 8; T1-77, line 3. 61Statement, Para. 9. This point did not come out at trial. 62At T1-80, at line 21, he confirmed under cross-examination that the two men to whom he was referring were

the two who had earlier given evidence that day. 63Para.10. 64T1-77, line 28. 65T1-81, line 50. 66T1-82, line 40. 67T1-82, line 60. 68His statement was sworn on 19 March, 2010, and had obviously not been available at committal.

10

COUPE, since she (along with a junior who was not a witness) was the only one serving

behind the counter when GB‟s partner ordered fish and chips immediately before the accident 69

. However, she makes no reference to any conversation with Lyn after she handed over her

mobile phone to another woman at the scene, and walked back to her shop to wash the blood

off her hands. At trial, however 70

, GB claimed that the girl in question was one who no

longer, at that time, worked at the takeaway, and that fits the witness CAMERON, who

remained in the shop while her employer COUPE crossed the road to the accident, and makes

no reference to any conversation with Lyn. To confuse matters even more, GB appears to

have agreed 71

that the girl to whom he was referring was the one who had just left court after

testifying, who was COUPE.

There is also additional eyewitness evidence contained in witness statements which

did not form part of the Crown‟s case against Lyn, but which counsel should be made aware

of.

5. Matthew James KORHECZ

Matthew James Korhecz (“MJK”) gave a statement to police on 17 July, 2009, i.e.

some three months after the accident, even though he had given police his details on the day.

He was an 18 year old who had just alighted from a bus on the southbound side of Moreton

Terrace with his then girlfriend, who was presumably one of the several girls being perved on

by BLJ and JFH. In his original statement, he described the head-on collision between the

motorcycle and the 4WD, and he was one of those who ran to assist the motorcyclist.

In Para.6 of his original statement, he recalls seeing Lyn and Gary alight from the

4WD, although he claims to have no recollection of which of them had been behind the

wheel. He then allegedly saw the two of them “walk up beside a house” (presumably the

units), then “I saw the female punching the wall and heard her saying “I think I‟ve just killed

a man””. He also describes Gary leaning against the house, with a cut on his forehead. In

Para. 7, he claims that his girlfriend went over to calm “them” down, and that he could still

hear Lyn “screaming out words”, although he could not make out what they were. This

girlfriend was never asked for a statement by the police, although MJK claims 72

that the

police “spoke to her briefly”. Counsel might wish to acquire a statement from her, as part of

our “fresh” evidence .

At the committal, he conceded 73

that he had made “an educated assumption” that Lyn

and Gary had been the two occupants of the car because “there was no one else around”.But

69CAMERON (Para. 4 of her Statement, sworn three days after the accident) claims to have been having a

smoke outside at this time. 70T1-81, line 13. 71T1-81, line 20. 72C1-50, line 32. PRICE (T2-67, line 15) claims to have spoken to her, and that “. . . she said she never saw

anything”. 73C1-54, line 40.

11

in cross-examination he made no reference to any specific confession by Lyn; the closest he

got was to say 74

that Lyn and Gary “were actually like talking”.

At trial 75

, he testified that when Lyn and Gary went over to the units, they seemed to

be arguing with each other, but “I wasn‟t quite clear what was being said”. He also

confirmed that he asked his girlfriend to go over to them and make sure that they were OK.

Defence counsel wisely elected not to cross-examine this witness.

6. Renee Jessica CAMERON

Renee Jessica Cameron (“RJC”) was, on the day of the collision, employed by her

cousin, the witness COUPE, as an assistant at the fish and chip shop on the corner 76

. Her

original statement was signed on 28 April 2009, three days after the accident, and describes

how she witnessed the accident from where she was standing outside the fish and chip shop,

having a smoke. She immediately ran back inside the shop, and asked COUPE to call an

ambulance. She recalls COUPE running outside with a phone, while she (RJC) took over

serving duties in the shop.

In Para. 7 of her statement, she recalls “a female with blonde hair” reaching inside the

4WD via the rear driver‟s side door, then retrieving something that looked like a blanket from

the rear of the 4WD, which she used to cover something in the rear of the vehicle. She then

carried on serving customers. At the committal 77

, she confirmed that she was standing on

the pavement outside the shop when she saw this. She also added 78

that the female she saw

came from the group of people standing around the motorcyclist.

At trial 79

, she added that after “the blonde woman” went to the back of the 4WD, “a

lady with brown hair run across the street to grab a blanket”. Under cross-examination, she

had a further memory extension, and informed the court 80

that immediately after the accident,

when she turned to ask COUPE to call an ambulance, she saw “a gentleman with brown hair ”

near the driver‟s door of the 4WD. This was only for “a flash of a second”, immediately after

the accident, and the driver‟s door was open at the time, and the man had one leg still in the

vehicle.

All these inconsistencies and uncertainties in the statements identifying Lyn as the

driver were relied upon in her unsuccessful appeal to the Queensland Court of Appeal in

October, 2011. In its judgment issued on 2 March of this year, the Court ruled that it had

been open to the jury to find Lyn guilty beyond reasonable doubt on the totality of the

74C1-55, line 17. 75T2-7, line 4. 76By the date of the trial, she was employed at the BP Morayfield servo. 77C1-46, line 40. 78C1-47, line 2. 79T1-69, line 3. 80T1-69, line 51.

12

evidence which it heard, and to regard Gary‟s evidence as “unconvincing” 81

. Fraser JA 82

referred to the well-established principle of “jury advantage”, under which an appeal court

will not lightly overturn a decision by a jury which has had the opportunity to decide on

witness credibility in the witness box by reference to factors such as their demeanour.

To this extent, there can be no further ground of appeal. However, in his directions to

the jury 83

, the trial judge advised them that they could find support for the eye-witness

identification of Lyn as the driver from:

“ . . . statements said to have been made by [her] at the scene, and her conduct at the

scene . . . [including] her aggressive response to the young woman who was asking “Are the

drivers of the red car okay?” . . . if you accept that she gave the aggressive response that

there’s evidence of, is [it] only consistent with her being the driver, or is it equally consistent

with her being the passenger and feeling defensive about her partner having been the driver?”

(emphasis added).

The jury were clearly being invited to regard the allegation that Lyn behaved

aggressively towards the witness COUPE as in some way making the eyewitness

identification of JOHNSON and HANNAH more reliable. Careful listening to the “000”

recording now reveals that no such exchange took place, and that COUPE was of the belief

that the occupants of the 4WD had left the scene at that point.

This issue is further considered below.

THE ADEQUACY OF THE TRIAL JUDGE’S DIRECTIONS TO THE JURY

REGARDING THE EYE-WITNESS IDENTIFICATION

It is trite law that whenever eyewitness identification is “a significant factor” in the

Crown‟s case, the jury should be given what is now known as a “Domican Direction”, not

only regarding the hazards of the identification process generally, but any specific points of

concern arising in the case in hand 84

. The appropriate Direction to be given in such

Queensland cases is now to be found in the Queensland Benchbook, No. 49.1, a copy of

which is briefed herewith.

Before summing up to the jury, the trial judge engaged with both counsel on the issue

of whether or not to give such a Direction. Noting 85

that defence counsel had addressed the

jury on the basis that the case was “an identification case”, the trial judge raised his doubts as

to whether or not a Domican Direction was really required. Defence counsel emphasised the

traumatic circumstances in which JOHNSON and HANNAH came to believe that the female

had alighted from the driver‟s side of the 4WD, JOHNSON‟s two mistakes at the committal

81At [30]. 82At [31]. See MFA v R (2002) 213 CLR 606, at 623. 83T3-17, line 44; 18, line12; 19, line 12. 84Domican v The Queen (1992) 173 CLR 555. 85T3-22, line 15.

13

hearing, the fact that each of them was looking back at the 4WD on the incorrect side of the

road, the fact that HANNAH erroneously believed he had seen the 4WD cut the corner

immediately prior to the accident, and the fact that both witnesses then focused their attention

on the victim.

The trial judge 86

responded that:

“I struggle to see that it’s like an identification case. They’re not nominating

a person as a person; they’re simply saying . . . . that the defendant was one of

the two people in the car.”

Defence counsel 87

insisted that the essential issue was the identification of the person

who got out of the driver‟s side of the 4WD, emphasising the point that Lyn and Gary were

wearing identical lower clothing, and that the tops they were wearing were “not dissimilar”.

At this point, defence counsel cited The Queen v Zullo88

, to which further reference is made

below.

The trial judge continued to insist 89

that “I struggle to see how that really fits”, but

undertook to “have a look at” Zullo before directing the jury. When invited to address the

issue, Crown Counsel agreed 90

that a Domican Direction was not strictly necessary, because

“ . . . it is not an identification case as such, because the only choices that these two men have

is, it was either a man or a woman”. His Honour repeated 91

his undertaking to “. . . have a

look at what really is required in the morning”.

In the event, the trial judge seems to have followed the Benchbook requirements for a

Domican Direction fairly faithfully 92

. However, given the peculiar circumstances of this

case, it may not have been sufficient. It was not in dispute that Lyn and Gary were the only

two people in the 4WD, and that they had both, at some stage shortly after the collision,

alighted from different sides of the vehicle. They were also wearing similar clothing, which

seen only fleetingly would have given the appearance of being dark trousers and light tops.

Seen some feet apart from each other, their height difference would not have been so obvious

as it would have been had they been standing together. There was also the “reinforcement

effect” of seeing both of them standing by the unit block shortly after the event – if one adds

to that the questionable evidence of Lyn‟s alleged behaviour after the event, saying things

consistent with her having been the driver, then both JOHNSON and HANNAH would have

felt more confident in stating that the person they saw leaving the driver‟s seat wearing dark

trousers/jeans and a light top was Lyn. They only had a fifty per cent chance of being wrong.

86T3-23, line 43. 87T3-24, line 2. 88[1993] QCA 208; [1993] 2 Qd R 572. 89T3-24, line 12. 90T3-27, line 45. 91T3-28, line 2. 92See, generally, T3-20 to T3-24.

14

Significantly, in his original police statement JOHNSON claimed 93

that the woman

ran over to the unit block, and that the man walked over after her, whereas at the committal

hearing 94

it was his recollection that the male reached the units first. Apart from this

inconsistency, he clearly never saw the two together until after they reached the unit block.

Other doubts regarding his ability to distinguish clearly between them are raised by the fact

that he describes Gary 95

as only “30-40 years old, slightly taller than the lady that was in the

car”96

, and having “a cut or something on his forehead”. No-one else refers to Gary having

any sort of injury. By the date of the trial, he was unable to describe either Gary or Lyn

beyond the fact that they were male and female 97

, although he now recalled that the female

had reached the unit block first 98

.

Likewise, there was much in the evidence of the witness HANNAH which called for

special warning to the jury. First of all, his original police statement 99

refers to Gary and

Lyn still sitting in the 4WD by the time that a crowd had gathered round the accident victim 100

, and he describes Gary wearing “a brown shirt, three quarter length jeans and shoes” 101

.

Other discrepancies in this witness‟s evidence are also considered at p. 7 hereof.

Given all of this, it is to be doubted whether or not the trial judge‟s direction to the

jury regarding the identification evidence was adequate. Given that he began with the belief

that“I struggle to see that it’s like an identification case” (see above), he appears simply to

have given a generalised warning regarding the dangers of relying upon eyewitness

identification, without itemising those factors in the case which might give rise to concern.

Likewise, he merely repeated what defence counsel had said regarding the unreliability of the

evidence of JOHNSON and HANNAH, without giving the jury “ . . . the benefit of a

direction which has the authority of the judge‟s office behind it” 102

.

In Domican103

, the majority of the High Court held that:

“A trial judge is not absolved from his or her duty to give general and specific

warnings concerning the danger of convicting on identification evidence

because there is other evidence, which, if accepted, is sufficient to convict the

accused104

. The judge must direct the jury on the assumption that they may

93Para. 11. 94C1–16, line 5. 95Statement, Para. 11. 96Even on the basis of his own evidence, he can only have formed this opinion during the “reinforcement‟ period

when they were standing at the unit block, the only time he saw them standing together. 97T1-29, lines 10-20. 98T1-28, line 48. 99Para. 10. 100N.B. that JOHNSON has them alighting from the vehicle almost immediately afterwards. 101Neither of these would have been visible until after Gary alighted from the 4WD, further confirming the

“reinforcement effect” argument. 102

Domican, per the majority at 562, citing Davies and Cody v The King (1937) 57 CLR 170, at 182-3. 103 At 565. 104In his summary in the instant case, the judge relied, inter alia, on COUPE‟s evidence that Lyn had impliedly

identified herself as the driver of the 4WD. As is explained above, that evidence may now be discredited.

Similarly, there was no support from COUPE for the evidence of the witness BOWE that Lyn said to her “It

wasn‟t my fault. He came out of nowhere”. All the remaining evidence regarding what the trial judge described

15

decide to convict solely on the basis of the identification evidence. If the trial

judge has failed to give an adequate warning concerning identification, a new

trial will ordinarily be ordered even when other evidence makes a very strong

case against the accused”.

THE DECISION BY THE TRIAL JUDGE NOT TO REQUIRE THE CROWN TO

CALL GARY AS A WITNESS

From the outset of the trial, before the jury was even sworn, defence counsel was

insisting that the Crown call Gary as a witness, and Crown counsel was equally firm in

refusing to do so. The issue was debated before the trial judge 105

.

It was clearly in Lyn‟s forensic interest that the Crown call Gary, since then it would

not be allowed to cross-examine him in the way that it subsequently did. Additionally, as a

witness produced by the Crown, Gary would have appeared more neutral to Lyn‟s cause, and

not someone she had arranged to bring along solely in order to get her acquitted.

Additionally, since Gary was the only witness which the defence was obliged to call, it lost

the forensic advantage of being able to make the final closing address to the jury, thereby

having “the last word” in a case in which the eyewitness evidence was so confusing.

The law on when the Crown must call a witness is quite complex, but the leading

High Court authority is still The Queen v Apostiledes 106

. It was held in that case that it is for

Crown Counsel alone to bear the responsibility of whether or not to call a particular witness,

and that while the trial judge may question Crown Counsel as to the reasons for their decision

not to, they need not do so, and are not required to adjudicate on the matter between counsel.

At the close of the Crown case, the trial judge may invite Crown Counsel to reconsider their

original decision, but may not direct them to call a particular witness, or call the witness

themselves except in “exceptional circumstances”.

However, the trial judge may make “such comment as he thinks appropriate” about

the effect which the refusal to call a particular witness would appear to have had on the

course of the trial. Additionally, a decision by Crown Counsel not to call a particular witness

will only justify quashing a conviction if, “when viewed against the conduct of the trial taken

as a whole, it is seen to give rise to a miscarriage of justice”107

.

The issue normally arises in the context of a witness not being called at all, with the

result that their evidence is lost to the jury108

. It is not so common for the issue to arise when

defence counsel is obliged to call the witness, but this is what happened in Apostilides. The

two witnesses in that case, called by the defence, and then cross-examined by the Crown,

as Lyn’s “conduct at the scene . . . . supporting [the Crown’s] case that [Lyn] was the driver of the car” came

from JOHNSON and HANNAH themselves, and clearly cannot be relied upon as corroborating their

identification. 105T1-4 to T1-14. 106(1984) 154 CLR 563. 107Apostiledes, at p. 575, per curiam. 108As, for example, in State of Western Australia v Martinez [2006] WASC 114; R v Smart (Ruling No. 4) [2008]

VSC 89, and R v Nguyen [2009] SASC 91.

16

gave evidence of the friendly and inviting behaviour of an alleged rape victim to her alleged

rapist immediately prior to the alleged rape. In cross-examination by the Crown, one of these

witnesses admitted to a previous conviction for conspiracy. A Full Court of the Supreme

Court of Victoria held that the accused had been “unduly prejudiced in the conduct of his

defence”, and that a substantial miscarriage of justice had occurred as the result of the

accused losing the right to cross-examine the witnesses, and the exposure of the witnesses to

cross-examination by the Crown. It ordered a new trial, and the High Court refused special

leave to appeal.

So far as concerns the grounds upon which the Crown will be justified in not calling

“. . . a person whose name appears on the indictment” 109

, the unanimous High Court in

Apostilides made the following observations 110

:

“A decision . . . must be made with due sensitivity to the dictates of fairness

towards an accused person. A refusal to call the witness will be justified only

by reference to the overriding interests of justice. Such occasions are likely to

be rare. The unreliability of the evidence will only suffice where there are

identifiable circumstances which clearly establish it; it will not be enough that

the prosecutor merely has a suspicion about the unreliability of the evidence.

In most cases where a prosecutor does not wish to lead evidence from a

person named on the indictment but the defence wishes that person to be

called, it will be sufficient for the prosecutor simply to call the person so that

he may be cross-examined by the defence and then, if necessary, be re-

examined.” (emphasis added).

It was known to the authorities within the same hour as the accident that Gary was

claiming to have been the driver 111

. Yet it was some 18 months after that accident that the

Arresting Officer (PRICE) got round to interviewing him 112

. Likewise, the Crown would

have been advised at least six months prior to trial that Gary was claiming to have been the

driver, yet no statement was taken from him by the DPP, and Crown Counsel appears never

to have even attempted to speak to him prior to trial (see p.2 of this brief).

Despite this, Crown Counsel resolutely declined to call Gary as a witness, even

though he could clearly add to the totality of the evidence which the jury would hear.

Arguably, the reason for that decision was that Gary‟s evidence would throw a spanner in the

109This is, in Queensland terms, simply a witness who is listed on the Crown list of witnesses, which Gary was

not. However, it is submitted that this technical point in no way justifies the decision made by the Crown in this

case. 110At 576. 111WOODMAN, Statement Para. 19; C1-60, line 24; T2-10, line 42. ALANA JOHNSON, Statement Para. 9;

C1-69, line 43; T2-41, line 53. PRICE, C1-83, line 24; T2-64, line 29. The statements of WOODMAN and

JOHNSON would of course have been passed to the Crown as part of the committal depositions, along with

transcripts of their committal evidence. 112T2-64, line 45. There was a good deal of finger-pointing as to why it took so long. However, by this stage the

committal hearing was well past, having been held in October, 2010. It is not known whether or not his

statement was passed to the DPP.

17

Crown‟s theory of the case. The entire matter was thrashed out at the start of the trial, prior

to the jury being sworn in 113

. The position of defence counsel was 114

that:

“. . . . if the Crown want the jury to return a verdict and give the

community[an] answer to the question about whether it has been proved, it is

incumbent upon the Crown to produce all the evidence. It’s not just a bit of

additional evidence, it is very important and contemporaneous evidence as

to . . . some facts of great relevance”.

The Crown‟s position was summarised as follows 115

:

“I have formed the view that Mr Ball is not a credible and truthful witness.

There is no independent objective evidence that supports what he says. He is

an unwilling Crown witness, he failed to attend at a conference organised for

this morning. He’s had no contact with me at all and in my submission in

light of his relationship with the accused, the interests of justice demand that

he be subject to cross-examination by the Crown in this trial”.

Crown Counsel cited, in support of her submission, the case of Richardson v The

Queen116

, omitting to mention that in that case, the witness whom the Crown had declined to

call had been described at the committal hearing 117

as “. . . not a very convincing witness . . .

a very real issue arises as to her credibility”.

By contrast, Gary had maintained since the day of the accident that he had been the

driver, and had made considerable efforts to give a statement to the Arresting Officer PRICE 118

, who conceded in cross-examination 119

that “It was quite clear that he was a potential eye-

witness”. There was considerable discussion between the trial judge and counsel 120

, just

before lunch on the second day of the trial, as to whether or not Gary was an “unwilling”

witness for the Crown, and when it was submitted by defence counsel 121

that it could not be

said that Gary was “unwilling” after he had given a statement to the police, and attended

court under a subpoena, the trial judge observed 122

that “. . . .the reason . . . that he‟s not

being called by the Crown is not so much that he‟s an unwilling witness, but that a decision

has been made about his reliability and credibility”.

At this point, the trial judge seemed to be under the impression that Crown Counsel

had already spoken to Gary, but was corrected on this point by defence counsel 123

. He also

pointed out to the judge that what Crown Counsel had earlier referred to as “lack of co-

113T1-4 to T1-14 generally. 114T1-5, line 21. 115T1-11, line 50. 116(1974) 131 CLR 116. 117As reported at 118. 118T2-84, line 28. 119T2-64, line 38. 120T2-70 onwards. 121T2-71, line 2. 122T2-71, line 12. 123 T2-71, line 40.

18

operation” was more a matter of “lack of communication” between the DPP‟s office and

Gary, to which the judge responded 124

“But the reasons that were placed on the record early

in the trial about why he isn‟t being called were much broader than that”.

Immediately after this debate, Crown Counsel indicated that her case was closed 125

.

In accordance with what was laid down in Apostilides (see above), the trial judge should then

have at least considered requiring her to call Gary, and make him available for cross-

examination by defence counsel, subject to her right to re-examine. What in fact happened

was that defence counsel was obliged to call Gary as a defence witness, and allow him to be

subjected to cross-examination by Crown Counsel.

Gary was, in the event, called by the defence, as their only witness. He described how

he and Lyn were drinking for the whole morning of Anzac Day, then were walking past the

4WD which they had left in an area “outside what was then the IGA” 126

, when they decided

to drive the short distance back to Lyn‟s house. Gary testified that he had the keys at this

point, and that they got into the 4WD and drove away, following which “the accident just

happened” 127

. He testified that he and Lyn got out of the car, embraced, and then walked

over to the unit block at the side of the road and waited for the police to arrive 128

. He told

the police that he had been the driver, and remembered later being breathalysed at the police

station.

His recollection was 129

that he had tried “many a times” to contact the Arresting

officer PRICE in order to make a statement, and that he had been obliged to get his own

independent solicitor to set up the meeting. He finally succeeded in doing so in October 2010,

and we have a copy of the ROI he gave at that time. He confirmed during that interview that

he had been the driver, despite the fact that by then his independent solicitor had advised him

that he might receive 8 years imprisonment 130

.

Gary denied ever receiving a request to attend the DPP‟s office 131

, and went on to say

that he had been “left a message” to be at the courthouse at 8.30 (presumably on the first day

of the trial), but that there had been no reference to any meeting with the DPP, and he had

been sitting in the courthouse, on the same level as the trial court, for the two days of the trial,

during which time he had seen PRICE, but (by inference) had not been approached by anyone

else. That was the extent of his examination in chief.

The Crown Prosecutor seemed at pains, in cross-examination, to justify her decision

not to call Gary as a Crown witness by suggesting that he had been unwilling to meet with

her. This goes from T2, page 87 to T2, page 90, during the course of which Gary denied

having any clear recollection of the evidence given at Lyn‟s committal hearing, which he had

124T2-71, line 51. 125T2-74, line 59. 126T2-82, line 55. 127T2-83, line 2. 128 T2-2-83, lines 7-10. 129T2-84, line 27 onwards. 130T2-86, line 9. 131T2-86, line 18.

19

attended, but confirmed that it was after the committal that he finally got his solicitor to

arrange a meeting with PRICE. The Crown Prosecutor also made much of the fact that Gary

had not approached her at any stage during the trial, even though he had no reason to know

who she was 132

. He emphatically denied being unwilling to speak with her133

, and in the

circumstances it is difficult to see how she could have formed the opinion that he was an

unreliable witness, apart from the fact of his relationship with Lyn, and the fact that she must

have known that he would claim to have been the driver. Arguably, it was an attempt to

suppress relevant evidence, but at the very least her stance enabled her to cross-examine

Gary, which she did to good effect.

She first of all picked him up on his very first assertion that he had the car keys in his

pocket when he and Lyn parked the 4WD, when in fact he had told PRICE that Lyn had the

keys 134

. He corrected this by explaining that he had thrown the keys into Lyn‟s bag 135

.

In an interesting exchange 136

, Gary asserts that in the CCTV footage of the 4WD

being driven from where it had been parked, he could clearly identify himself getting into the

driver‟s seat, and Lyn “walking past the back of the truck” to get into the passenger seat. He

insisted on that, even though it was put to him that “you can‟t identify anyone on the DVD”.

It is arguable that someone with a memory of what actually took place could more easily

recognise both himself and his companion on even a blurred image, whereas others might

have difficulty in doing so. Further reference is made to the CCTV footage below.

Gary claimed to have no recollection of Lyn dropping anything on the roadway prior

to their getting into the 4WD 137

. He claimed to have no real memory of how the accident

happened 138

, but he did recall that he and Lyn walked away from the 4WD together to wait

at the side of the road by the unit block 139

. He had no recollection of any incident when he

was told to move away from the victim, but conceded that he might have been too drunk to

remember it 140

. He went on to confirm that they were both upset by what had happened, and

that Lyn was hysterical, and screaming, but denied that she was aggressive towards anyone.

He also denied having told Lyn “Don‟t worry about it” 141

.

Specifically, he had no recollection of the alleged incident in which Lyn behaved

aggressively towards COUPE when she asked who had been the driver of the 4WD142

.

Interestingly, he referred to the fact that while he and Lyn were standing at the flats, people

132T2-90, line 3 onwards. In re-examination, at T2-101, line 48, he confirmed that he only realised who the

Crown Prosecutor was when she began cross-examining him. There certainly seems to have been no attempt by

her to either identify or locate him for the purpose of an interview. 133T2-90, line 42. 134T2-92, line 12. This at least proves, if proof were necessary, that the Crown Prosecutor had received a copy

of Gary‟s interview with PRICE. 135T2-92, line 9. 136T2-93, line 40 onwards. 137T2-93, line 13. 138T2-94, line 30. 139T2-95, line 2. 140T2-95, line 30. 141T2-95, lines 38-52. 142T2-96, line 30.

20

began pointing at Lyn and saying “It‟s her - it‟s her car” 143

. There is, of course, a world of

difference between the assertions “It’s her car” and “She was the driver”, but this may have

been misinterpreted by others in the trauma of the incident..

Gary denied firmly any suggestion that Lyn said “I‟ve killed another person” 144

, and

he had no recollection of her claiming “It wasn‟t my fault – he came out of nowhere” 145

. He

conceded that he did not admit to having been the driver until the police arrived 146

, but made

the interesting addition that he had spent 15 minutes explaining what had happened to “the

police lady” 147

. He denied the obvious allegation that he was only giving his evidence in

order to protect Lyn 148

.

In her closing address to the jury 149

, Crown Counsel made a misleading statement in

which she claimed that Gary “ . . . agrees at one point that he has seen the DVD footage from

the servo and he can‟t make himself out getting into the driver‟s seat of the vehicle, and then

when I put it to him that he had told the police he could, he changes his evidence and says he

can see it. . . . . It speaks volumes, I‟d suggest, for the untruths he‟s willing to tell because

you cannot see who gets into the driver‟s seat of the passenger seat of the vehicle”.

If you examine Gary‟s actual testimony on this point 150

, Crown Counsel asked him

vague and misleading questions which, depending upon how you read his answers, might be

thought to be a change of evidence on his part. But the jury would have had only the vaguest

memory of this exchange, and they were being misled into believing that this was a good

example of “the untruths” that Gary had told the court.

It would seem that the jury had some lingering uncertainty over Gary‟s evidence,

because after they had retired, they came back to the trial judge with a request to have a large

part of his evidence read back to them, from the point at which he and Lyn left the pub to the

time after the collision when the police arrived. This was done 151

.

The issue of the crown‟s refusal to call Gary, and the forensic disadvantage which this

imposed on the defence, was not raised on appeal. The Queensland Court of Appeal‟s only

comment on Gary‟s evidence as a whole was 152

that “The verdict reveals that the jury did not

accept Mr. Ball‟s evidence.”

THE EVIDENTIAL SIGNIFICANCE OF GARY’S CONFESSION

143T2-97, line 10 144T2-97, line 50 onwards 145T2-98, line 3 onwards. 146T2-98, line 45. 147T2-99, line 53. This was presumable A JOHNSON, but she makes no reference to it in her statement. 148T2-101, line 3. 149T3-18, line 45. 150T2-93, line 20 onwards. 151T3-44 to T3-62. 152At [28].

21

At no stage during the trial did either the trial judge or counsel consider the evidential

significance of what amounted to a “third party confession” by Gary. However, the law in

this area would seem to have been settled in R v Zullo153

, in which it was held that a third

party confession (which was not, however, given on oath at trial, but was repeated by

someone who had heard it being made) was “simply a piece of evidence to be considered

along with the rest, in the jury‟s task of determining whether the [accused‟s] guilt had been

proved”. The trial judge in Lyn‟s case would seem to have given an appropriate direction to

this effect to the jury 154

, and there would seem to be no avenue of appeal here.

THE NEED FOR “FRESH” EVIDENCE FOR ANY NEW APPEAL

Before any new appeal may be lodged, there is a need for Lyn to point to “fresh”

evidence which was not reasonably available at the time of trial, but which might have

resulted in an acquittal. The most recent definition of “fresh” evidence in Queensland comes

from the very recent QCA case of R v Spina155

, in which President McMurdo defined it 156

as

“. . . . evidence which either did not exist at the time of the trial or which could

not then with reasonable diligence have been discovered”

It is distinguished from “new or further evidence”, which, by contrast is evidence

which was available at trial or could with reasonable diligence then have been discovered.

The traditional approach until 2005 was that approved in Gallagher v The Queen157

and

Mickelberg v The Queen158

, namely that a conviction might be overturned if, in light of both

the fresh evidence and the evidence at trial, a jury acting reasonably would have acquitted. In

Mallard v The Queen 159

, the High Court took a somewhat broader approach and

acknowledged that in exceptional cases it might be appropriate to admit “new or further”

evidence which is not strictly speaking “fresh” in the legal sense, so as to avoid a miscarriage

of justice.

The contemporary approach of Queensland courts prior to Mallard may be found

succinctly expressed by Thomas J in Condren160

in the following terms:

“Ultimately this Court must have regard to three bodies of evidence:

(a) the evidence given at trial;

(b) the fresh evidence given during the first appeal, having regard to. . . . any

different effect it might be given having regard to the additional evidence

now available;

153[1993] Qd R 571 @ 575; [1993] QCA 208. This authority was cited by the Crown in Lyn‟s appeal. 154T3-38, line 25. 155[2012] QCA 179 – 29 June, 2012. 156At [32] . 157(1986) 160 CLR 392. 158(1989) 167 CLR 259. 159(2005) 224 CLR 125. 160(1990) 49 A Crim R 79 @ 82.

22

(c) the further evidence heard by this Court.

The net effect of all this is that in any further appeal application, Lyn may rely not

only upon the uncertainty regarding the eyewitness evidence which formed the nucleus of her

original appeal, but also any new evidence which might be available, whether it is strictly

speaking “fresh” or not. This could be crucial in Lyn‟s case, should arguments be raised that

certain items of our new evidence (e.g. the actual “000” recording) could have been led at

trial. The argument will then be (per Mallard) that the sum total of all this uncertainty

amounts to a reasonable prospect that had the jury heard it all, they would have acquitted.

There are two major items of evidence which may certainly be regarded as “new”.

The actual content of the “000” call by COUPE

It will be recalled from p.8 of this brief that although COUPE claims to have been

aggressively approached by Lyn when she asked who had been the driver of the 4WD, after

being requested by the paramedic on the other end of the 000 call to ascertain whether the

driver of the 4WD required medical assistance, when one listens to the recording of that call

there is not only no such angry response from Lyn, but not even enough time for it to have

occurred before COUPE assures the paramedic that “The person who was driving the four

wheel drive has gone”.

The 000 tape was not played to the jury, and presumably had not been listened to by

defence counsel, because COUPE was not cross-examined so as to bring out this stark

rebuttal of her allegation against Lyn. During her closing address to the jury 161

, Crown

Counsel cited COUPE‟s evidence as one of those items which supported the wobbly eye-

witness evidence of JOHNSON and HANNAH. The same point was made by the trial judge 162

when addressing the jury. Had the jury been allowed to know that the 000 tape did not

back up COUPE‟s damning evidence against Lyn, they might not have placed as much

reliance on the eye-witness identification of Lyn as the driver.

The CCTV footage

Throughout the trial, it was taken as a “given” that the CCTV footage of the 4WD

being driven away from where it had been parked did not reveal who had been the driver. As

Crown Counsel put it, in her closing submissions to the jury 163

,

“You can look at it to your heart’s content but it does not demonstrate who

was driving the vehicle, and it’s not something that I would suggest that you

would place any great reliance upon . . . . because it is simply so unclear”.

Sergeant PRICE explained in his evidence 164

that he had done everything in his

power to try to enhance this footage, and that even using the specialist computer equipment in

161T3-15, line 11 onwards. 162T3-18, line 11. 163T3-17, line 41. 164T2-61, line 40 onwards.

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police headquarters did not make the images much clearer. Defence counsel tried, in cross-

examination, to get PRICE to agree that certain features could be made out, including the

colour of the shirt of the driver and the fact that the driver did not have shoulder-length hair,

but this was successfully objected to by Crown Counsel on the basis that it was for the jury to

determine what they could see in the footage, and not the witness 165

.

In his judgment in Lyn‟s first appeal, Fraser JA 166

noted that:

“It is apparent from the evidence and addresses at the trial that the CCTV

footage in evidence shed no light upon the question whether the appellant or

Mr Ball was the driver”.

Another attempt was made by the members of the QCA themselves to get a better

view of the footage using the equipment at police headquarters, but they reported 167

that:

“The CCTV footage did not shed any light upon the identity of the driver. The

quality of the images was too poor to make any reliable determination about

identifying features, including the length of the driver’s hair or the colour of

the driver’s clothing”.

GROUNDS FOR A FURTHER APPEAL?

It would seem from the above that any new evidence regarding what can be

established from the CCTV footage would constitute important “fresh” evidence. The

attempts at identification from the footage thus far have been purely visual, and it may be that

considerable assistance might be obtained by something more scientific, such as

measurement of overall body bulk, relative features such as hair length, and something along

the lines of torso morphology.

Less than a week ago 168

, the QCA handed down a judgment in a “fresh” evidence

appeal involving photographic evidence 169

. This concerned the expert opinion of a specialist

in scientific and forensic photography (“Dr. S”) on whether or not photographs taken of a

knife found at a murder scene depicted an overlay of blood over soot. This issue was crucial

to whether or not S was guilty of the murder or manslaughter of his estranged wife. The

potential expert testimony of Dr. S had been excluded from trial following a voir dire in

which he had conceded that the opinion he had reached after studying a JPEG file photograph

was inevitably less accurate than if he had viewed the image from the “raw file”, which was

not available to him by the time of the voir dire. The trial had proceeded on the basis of the

jury being allowed to view the JPEG photograph, although the Crown had also relied heavily

on the evidence of a police forensic witness who had examined the original knife. S had been

convicted.

165Legally, this would seem to be correct – see Smith v The Queen (2001) 206 CLR 650. 166At [14]. 167Per Fraser JA, at [19]. 168On 29 June of this year. 169R v Spina, note 154.

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At the appeal hearing, the defence tendered reports from Dr. S which were essentially

the same as he would have given at trial, and were favourable to S‟s version of events. It was

argued that this evidence was “fresh”, in the sense that it had not been before the jury because

the judge had excluded it on the ground that Dr. S had not been able to ensure that the JPEG

file was an accurate extension of the “raw” image. This raw image had obviously been

available at the date of the trial, but Dr. S had not been able to examine it because he had

been instructed late in the case, for reasons beyond the control of defence counsel. However,

the QCA concluded that the “evidence” could have been discovered by the defence at the trial

“with reasonable diligence” on their part if they had acted more swiftly in retaining Dr. S‟s

services and arranging for him to view the raw photographs. It was therefore not “fresh”

evidence.

The QCA then went on to consider whether or not they should receive the reports of

Dr. S. in order to avoid a miscarriage of justice 170

. They concluded that the jury themselves

could have seen, from the photographs on the JPEG file, that there was a blood overlay on the

soot on the knife blade, but might have been more readily persuaded of that fact had they

heard the evidence of Dr. S. However 171

:

“In essence, the new evidence in this case amounts to little more than an

enhancement of the evidence contained in [the JPEG photographs] which was

emphasised to the jury by the appellant’s counsel at trial”.

The QCA then went on to conclude that even after reviewing the evidence led at trial

along with the new evidence from Dr. S, there was still a “convincing” prosecution case, and

the appeal was dismissed.

The QCA in this case regarded the issue which they had to determine as being the

same as they had been required to consider in R v Main172

. The factual issues in this case are

closer to the present matter, in that the QCA, on a Governor‟s Pardon Reference, was being

asked to consider the significance of enhanced CCTV footage. M had been convicted of the

robbery of a pharmacy partly on the eye-witness identification of her as a former customer by

the pharmacist whom she held up, P. P specifically stated in his evidence that he had been

able to identify her because of her eyes, although it had been alleged by the defence that the

relevant CCTV footage might have been thought to show her wearing sunglasses at the

relevant time. There was also other evidence tending to link M with the crime 173

The defence subsequently had the images enhanced, and they were described by the

QCA as being “of superior quality to that available to [M] at trial”. Even then, in the Court‟s

opinion, they only showed that the robber was “probably” wearing sunglasses at the time. An

earlier appeal court had upheld the conviction on the ground that the trial judge had

adequately administered the Domican Direction.

170Presumably on the basis of Mallard. 171At [46]. 172(1999) 105 A Crim R 412. 173This took the form of similar clothing, and items which could have come from the robbery, found at M‟s

house.

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The Court cited Gallagher174

and Mickelberg175

for approaching the issue in the

following way:

“Even if it is accepted that the enhanced images were not available at the trial

and that they provide apparently credible evidence, the test for this Court . . . .

involves a consideration of what influence the new evidence might have had

upon the jury if it had been available at the trial.

Citing the additional evidence, the fact that P was identifying someone he knew as a

former customer, and the additional fact that the robber might have briefly removed the

sunglasses for a time, President McMurdo 176

concluded that even with the enhanced

photographs, there was “. . . . neither a significant possibility nor a likelihood that a

reasonable jury would have acquitted [M] had the enhanced images been before it at trial”.

The remaining appeal judges concurred.

These two cases are mentioned because they are likely to be cited by the Crown in

any further appeal by Lyn. However, they may be distinguished from Lyn‟s case.

In Spina, Dr. S‟s opinion evidence was based on the same photograph which the jury

had seen, and had been able to form their own opinion on. Likewise, in Main, the Court was

concerned with an enhancement of a photograph which defence counsel had already

suggested to the jury showed M wearing sunglasses. Even if the jury had agreed with that

(which is all that the enhancements confirmed), they had enough other evidence on which to

convict, and they had considered that possibility in reaching their verdict.

Lyn is not seeking to have a further enhancement of an existing photograph placed

before the Court, but a scientific analysis of what is depicted on the CCTV footage. If that

analysis shows that the person driving the 4WD was Gary, then the eyewitness evidence of

JOHNSON and HANNAH is proved to be wrong, and the jury would have had nothing on

which to base a conclusion that Lyn was the driver other than some vague and

uncorroborated allegations of statements she may or may not have made which may or may

not have implied that she had been the driver.

Put another way, if scientific analysis suggests that Gary was the driver, then Lyn

cannot have been. Physical evidence of who was behind the wheel overrides any suspect

eyewitness identification. Even if it may be argued that this is not “fresh” evidence, in that

the defence might have commissioned the scientific testing ahead of the trial, the authority of

Mallard is such that the Court must consider it if the alternative is a miscarriage of justice.

David Field

6 July, 2012

174Note 156. 175Note 157. 176At [21].

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