AHMEDAZIZ v Police - [2006] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
AHMEDAZIZ v POLICE
Judgment of The Honourable Justice Duggan
9 February 2006
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Appeal against conviction for indecent assualt - whether photographic identification procedure justified in lieu of physical line-up.
Evidence of complainant that photograph `looks like' offender - evidence not to be used as positive evidence of identification, but as an item of circumstantial evidence.
Pitkin v R (1995) 130 ALR 35; Murphy v The Queen (1994) 62 SASR 121, applied.
R v Hamood (1987) 46 SASR 340, discussed.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CHARACTER AND PREVIOUS CONVICTIONS - EVIDENCE OF GOOD CHARACTER
Discussion as to relevance of good character of appellant and whether magistrate correctly applied relevant principles.
Appeal dismissed.
The Queen v Trimboli (1979) 21 SASR 577, applied.

AHMEDAZIZ v POLICE
[2006] SASC 37
Magistrates Appeal

DUGGAN J. The appellant was convicted by a magistrate of indecently assaulting a woman at Holden Hill on 6 June 2004. He has appealed against conviction.
The complainant told the court that, at approximately 6.00 am on 6 June, she hired a taxi at a rank in Hindley Street. She said it was a Yellow Cab. Although she had been drinking earlier in the evening, she said she was sober when she got into the taxi. She instructed the driver to take her to her home at Holden Hill. According to the complainant, the driver told her during the journey that she was beautiful and asked her if she had a boyfriend or husband. She was sitting in the front passenger seat and she said that, as they travelled along, the driver was trying to take hold of her hand.
The complainant said they arrived at her home at approximately 6.15 am. She attempted to hand the driver $20.00 for the fare, but he said he would not accept money. She then put the money on the console. The complainant said she attempted to leave the taxi, but the driver grabbed her by the hair. She struggled, but he started kissing her and he attempted to put his tongue inside her mouth. At one point, he placed his hand on her breast and stomach on the outside of her clothing. She said she hit him across the head and he let go of her. She left the taxi and went to the front of the house.
The complainant said that, before she entered the house, she recorded the registration number of the taxi on her mobile telephone. The number was 852. She said that at this time she was also banging loudly on the door and calling out for her nephew, who was baby-sitting her children.
When she got inside she noticed that the driver remained in the parked taxi. She rang Yellow Cabs and gave the operator the number of the vehicle. She was told it had not been registered with Yellow Cabs for 12 months. She was advised to ring the Office of Public Transport and give them the number. She also recorded the number again, this time in her diary.
She then rang the police. She was told that not much could be done over the telephone because the computers were down. She was told to come into the Holden Hill Police Station later and make a statement.
The complainant made a statement at the Holden Hill Police Station on the following day. She said she was told to go away and find the name of the taxi driver and return to make a formal complaint.
The complainant also rang the Office of Public Transport. After reporting the incident she was told the matter would be investigated.
The complainant did not hear from the Office of Public Transport and she then spoke to her brother-in-law who was a serving police officer. He told her to report the matter to the Holden Hill Police Station, which she did on 18 June 2004. It was not until 5 August 2004 that the investigating detective was given the incident report. The police investigation commenced on that date. The appellant was spoken to by the police on 14 August 2004. He denied the allegations. It is not in dispute that he was the driver of a Yellow Cab registered number 852 on a night shift which ended on the morning on which the incident is alleged to have occurred.
The appellant agreed to take part in a line-up and Detective Webber attempted to arrange for persons of similar appearance to the appellant to participate in a parade. The appellant is of Kurdish origin. Detective Webber said he went to Tea Tree Plaza on two occasions and also to the Adelaide Airport looking for people similar in appearance to the appellant. He said he also spoke to police officers who frequented Tea Tree Plaza in the course of their work and provided them with a photograph of the appellant with a request to assist in finding men of similar appearance. He also spoke to an officer from the Holden Hill Police Station who is of Middle-Eastern descent and asked for his assistance. He agreed he did not seek assistance from any Middle-Eastern community groups.
Detective Webber said that, in the light of these difficulties, he arranged for a photographic identification procedure to take place. A folder containing 12 photographs was prepared and shown to the complainant on 1 October 2004. She indicated the appellant’s photograph and said “Looks like – looks similar to six. Can’t say that’s definite”.
The complainant described the driver as having dark hair, a moustache and a goatee beard. She said his hair was straight. According to her description, he was in his late 40s and was wearing a black leather or leather look-a-like jacket. He was of “olivey-type complexion” and was of “Arabic appearance”. She said he was of medium build and spoke with what sounded like a heavy French accent.
Detective Webber described the appellant’s appearance at the time of his arrest when giving evidence at T99:
I describe him as male person, what I would call middle eastern appearance. Very much average build, of similar height to me, maybe a fraction shorter. Dark hair, with an olive complexion. He had a moustache and what I call a goatee beard, which is defined, limited to the chin area, wasn’t particularly long, it was trimmed. Reasonably well-spoken. Seemed to speak and understand English quite well. Neatly, casually dressed.
The police officer said the appellant’s hair was “a little bit wavy”. A black jacket of a similar description to that given by the complainant was found during a search of the appellant’s home.
Counsel for the appellant conceded that the description given by the complainant was consistent with the appellant’s appearance. However, he pointed out that the appellant was 37 years of age and did not have a French accent. He also noted that the appellant had wavy hair.
There was evidence that the taxi was equipped with a global positioning system (GPS) which enabled its position to be ascertained within certain limits. The records of this electronic system established that the driver of the taxi registered number 852 accepted a tasking at 6.28 am on 6 June, but rejected it at 6.31 am.
The tasking was to pick up a passenger at Unit 6, 73 Collins Street, Broadview. The GPS established that the taxi was 5.2 kilometres away from this address at the time of the acceptance and subsequent rejection of the tasking. The complainant’s house was 5.2 kilometres from the Broadview address. It must be acknowledged that any position situated on an arc of 5.2 kilometres from the Broadview address was also consistent with the location of the taxi. However, although the basis for the evidence was not altogether clear, the manager of the Yellow Cab company who explained the operation of the system went further and said that the location from which the taxi signalled was in the north, north-east area of Adelaide.
On the hearing of the appeal, issue was taken with the magistrate’s observations at [16] of his reasons:
The electronic records provided to the court indicated that taxi plate number 852, also known as car 85, accepted a job via the electronic system at 6.28 a.m. on 6 June 2004, but then rejected it almost immediately at 6.31 a.m. and the tracking system pinpointed taxi 852 being in the north-eastern suburbs, incorporating the Holden Hill area at the time. This indicated that taxi 852 was in that general area of Holden Hill at about the time that CF alleged she was dropped off at home. That of course does not prove that the defendant was driving the taxi in question at that time.
Complaint was made of the comment that the system “pinpointed” the taxi as being in the north-eastern suburbs, incorporating the Holden Hill area. Obviously, the magistrate did not intend the term “pinpointing” to be understood in a literal sense. I do not think it was misleading to refer to the taxi as being in the “general area of Holden Hill” at the relevant time.
That having been said, however, I think the effect of the evidence could have been expressed in another way which more appropriately underlined its significance as an item of circumstantial evidence. Instead of referring to the general area, I think it would have been more appropriate to stress what I have already pointed out, namely, the fact that the taxi was 5.2 kilometres from the Broadview address, the same distance which separated the complainant’s house from that address. Although there were no doubt many other premises along the line of the arc, the coincidence established by the evidence is of considerable relevance when taken into account with the rest of the circumstantial evidence.
The way in which the evidence was dealt with by the magistrate could not have resulted in a miscarriage of justice.
The appellant agreed that he was the driver of the taxi with the registered number 852 for the evening and early morning shift on this occasion. He said that, usually, he returns the taxi at 6.00 am and sometimes before that. He said that he is sometimes five or ten minutes late, but no later than that because of concern for his wife. He recorded in his logbook that the shift ended at 6.05 am. According to the evidence, the appellant’s wife was overseas at the time of the alleged offence.
The appellant said it would have been impossible for him to have accepted a job at 6.28 am because this would not have enabled him to get the taxi back in time for the end of the shift. The driver who took over from the appellant on this day, Mr Fardi, gave evidence that he was a neighbour of the appellant. He gave evidence of a practice which had developed in the handing over of the taxi when the appellant’s shift ended and his shift began. He said that when the appellant finished his shift he would leave the taxi out in front of his home. He said his usual shift was from 6.00 am to 6.00 pm, but he could not remember this particular shift. He agreed that he could have commenced his shift some time between 6.00 am and 7.00 am, or even later. He could say from the logbook that he drove the taxi on this day. He did not record the times he started and finished the shift.
The logbook indicated that his first job on this occasion was from Modbury to Tea Tree Gully. This might have involved him being on the arc previously referred to, but the crucial question is when that would have taken place, if it occurred at all. Admittedly, the appellant recorded his finishing time as 6.05 am, but his credibility was in issue.
Furthermore, it is common ground that Mr Fardi did not fit the description of the driver which was given by the complainant, and it was not suggested to him in evidence that he was the person responsible for the alleged assault of the complainant.
Objection was taken at the trial to the evidence that the complainant indicated the appellant’s photograph at the time of the photographic procedure and said “Looks like – looks similar to six. Can’t say that’s definite”. The defence applied to have this evidence excluded in the exercise of the court’s discretion. It was argued that the failure to conduct a line-up should have resulted in the exclusion of the evidence of the photographic procedure. The magistrate admitted the evidence. It was argued on appeal that he erred in this respect and, in the alternative, that he failed to warn himself of the dangers of acting on the evidence.
The magistrate acknowledged the existence of the discretion to exclude the evidence and he referred to a number of cases relevant to the exercise of the discretion. In particular, he noted King CJ’s observation in R v Hamood (1987) 46 SASR 340 at 341 that identification procedures other than identification parades should not be resorted to except for substantial and defensible reasons. He considered the evidence led by the prosecution as to why a line-up was not held.
In my view, it is to be inferred from the magistrate’s reasons, coupled with the fact that he admitted the evidence, that he reached the conclusion that there were substantial and defensible reasons for conducting the photographic procedure instead of an identification parade at which the appellant was present. As I have said, he referred in his reasons to the views expressed by King CJ in Hamood’s case on the approach which the court should take in such circumstances.
After considering the evidence, I have reached the view that this finding was open on the evidence.
However, there is one matter which requires comment. The magistrate concluded his discussion on admissibility by saying:
However, the photographic identification evidence was not the only evidence that the prosecution relied on to establish its case against the defendant. It has been emphasized by the High Court in Festa v The Queen (2001) 208 CLR 593 that courts should consider the evidence as a whole when determining the admissibility of identification evidence.
In Festa v The Queen (2001) 208 CLR 593 it was pointed out that evidence which falls short of positive identification is to be considered having regard to the whole of the evidence: 208 CLR at [11]. Gleeson CJ went on to say at [14]:
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility.
It is difficult to know what the magistrate meant when he said that the evidence as whole had to be considered when determining the admissibility of identification evidence. It is appropriate to consider questions of admissibility against the background of other evidence in the case. However, the strength of other evidence in this case could not be used to bolster the case for admitting the challenged evidence. The task before him was to consider the exercise of the discretion to exclude the evidence, bearing in mind the fact that no identification parade had been held following the intimation of the appellant that he was prepared to take part in such a procedure.
As I have said, I am not sure how the magistrate used the evidence as a whole in exercising the discretion. However, I am of the view that the circumstances did not warrant the exclusion of this evidence.
Furthermore, I reject the submission that the magistrate misapplied the evidence or failed to appreciate its limitations. Phrases such as “looks like” or “looks similar” must not be taken any further than what those words convey: Pitkin v R (1995) 130 ALR 35 at 37. Such evidence, of itself, is insufficient to sustain a conviction. It is not evidence of positive identification, but may tend to support a circumstantial case against a defendant: Murphy v The Queen (1994) 62 SASR 121 at 123-4.
The magistrate appears to have recognised this distinction. He referred to Pitkin’s case and commented that, in the present case, as in Pitkin, there was no positive identification of the appellant. He added that the evidence was not capable, by itself, of sustaining a finding of guilt. Towards the end of his reasons he referred to “the evidence of identifying a photo of the defendant as the assailant”, but I would regard that as no more than indicating a looseness of language in summarising the evidence. The magistrate made it clear that this was not a case involving positive identification.
Another ground of appeal complained that the magistrate erred in failing to direct himself on the relevance of evidence of the appellant’s good character. My attention was drawn to the following evidence given by the appellant:
QAre you involved in any community activities?
AYes, as soon as I came to Australia I was working with the Australian Kurdish Association and I was a member of managing the community but actualised [sic] it down because I been so busy you know to do these things but still, I still do voluntary things for the community and help especially those families they just arrive and I am member, President of Kurdish Radio Community and I was publishing Kurdish magazine. I also – I was doing interpreting as well, translation.
QAre you able to tell the court whether or not you have a criminal record?
AOf course I don’t.
Counsel for the appellant also referred to evidence given by the appellant that he was not the sort of person who would commit such an offence.
Mr Aziz, the owner of the taxi, gave evidence that he did not think the appellant would commit an offence of this nature. Mr Fardi gave the following evidence:
QHow would you describe his character to the court?
AAs a personality?
QGenerally, his reputation?
AHe is a really family man. He is good person and I know him for nine, 10 years and I have never seen him like this, any bad way, not even angry, or he has always been a good respectful person whenever they see us.
QIs it fair to say he is a person of good character?
AExtremely, yes.
In The Queen v Trimboli (1979) 21 SASR 577, King CJ said that it was desirable to direct juries on the relevance of evidence of good character. He said at 578:
No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.
In the present case, the magistrate made the following observations at [43]:
The defendant is 38 years of age and is married with three children. He is of Kurdish descent and is currently doing a PhD at Adelaide University and has lived in Australia for some 10 years. He is and has been extensively involved with the Kurdish community both with Kurdish radio programs and Kurdish newspapers, and he has no criminal record whatsoever. He categorically denied the charges when interviewed by the police on 14 August 2004 and has continued to deny them to date.

In my view, it is clear that the magistrate recognised the significance of both the lack of a criminal record and what might be considered as some evidence of good character demonstrated by the appellant’s involvement in his community. It would have been preferable if specific reference had been made to the two aspects to which the evidence was relevant, but I am of the opinion that the magistrate paid sufficient regard to the evidence of good character and there is no possibility that a miscarriage of justice arose by reason of inadequate recognition being given to that evidence.
Mr Katsaras, for the appellant, put forward a number of other matters in support of his argument that the finding of guilt is unsafe and unsatisfactory. First, he said that the complainant might have made a mistake about the number of the taxi. He pointed out that, when she recorded the number on her mobile telephone, she put in the letters “TAWG” instead of “TAXI”. He also referred to an inconsistency in the evidence relating to the circumstances in which she entered the house and spoke to her nephew who was inside. She said he let her in to the house, whereas he said he woke up when she came into the house and said she was going to telephone the police.
The question as to whether the complainant correctly recorded the taxi number was very much a matter of fact for the magistrate. Furthermore, the fact that there was a taxi of that number at a relevant point on the arc; that it was a Yellow Cab; and that the description she gave of the perpetrator was reasonably consistent with the appearance of the appellant, were all matters which lent support to the prosecution case that she accurately recorded the number.
I have referred to the fact that the complainant said the perpetrator was wearing a black leather or leather look-a-like jacket, and that a jacket of that description was found during the search of the appellant’s home. The appellant denied wearing the jacket during the relevant shift. Mr Katsaras pointed out that there was no evidence of the jacket being shown to the complainant to see if she could identify it. However that may be, the evidence was relevant to the extent that the appellant was in possession of a jacket of a similar type to that described by the complainant. The magistrate did not attach any further and unwarranted significance to this evidence.
Other criticisms were made of the magistrate’s findings in relation to the records of the drivers as to their starting and finishing times and the evidence as to their usual practice in handing over the taxi from one driver to the other. However, I agree with the magistrate’s assessment that these records and the evidence as to what occurred on this occasion lacked detail and accuracy. I reject the criticisms of the manner in which the magistrate dealt with this evidence and the evidence as to the finishing and starting times of the shifts worked by the appellant and Mr Fardi.
I return to the identification issue. The complainant did not identify the appellant. She said only that the appellant looked similar to the perpetrator, but that she was not definite.
The magistrate admitted this evidence and took it into account as an item of circumstantial evidence. However, even if the evidence should have been excluded, I am confident that its use could not have led to a miscarriage of justice. In my view, the evidence which was of far greater relevance was the description which the complainant gave of the driver and the extent to which the appellant matched that description. The comment which she made during the identification procedure added little, if anything, to this evidence.
Furthermore, I think the evidence as a whole amounted to a strong case against the appellant. If the complainant was accurate in observing and recording the number of the vehicle, then the assault, if it took place, could only have been carried out by the appellant or Mr Fardi. Mr Fardi did not answer the description of the perpetrator and it was not put to him in evidence that he assaulted the complainant.
The appeal will be dismissed.