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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] SASC 37
Decision Date: 9 February 2006

CaseChat Overview and Summary

The appellant, Ahmedaziz, was convicted of indecent assault and appealed the conviction. The central issue before the court was whether the photographic identification procedure used was a justifiable alternative to a physical line-up. The appeal raised questions about the admissibility of identification evidence and the procedural fairness of the identification process.

The court examined whether the use of a photograph for identification met the requirements for reliability and fairness, considering the circumstances of the case. It assessed whether the conditions under which the photograph was taken and the procedure followed were sufficient to ensure the integrity of the identification process. The court balanced the need for a fair identification procedure with the practical constraints faced by law enforcement.

The court concluded that the photographic identification procedure was justified in the circumstances. It found that the procedure was reliable and fair, considering the specific facts of the case. The court held that the photographic identification procedure was an acceptable alternative to a physical line-up when a physical line-up was not practicable. The conviction was upheld, and the appeal was dismissed.

The final orders of the court were that the appeal against conviction was dismissed, and the original conviction for indecent assault was affirmed.

Orders