Baker v Penneyston
[2018] TASSC 8
•20 February 2018
[2018] TASSC 8
COURT: SUPREME COURT OF TASMANIA
CITATION: Baker v Penneyston [2018] TASSC 8
PARTIES: BAKER, Melanie (Constable)
v
PENNEYSTON, Jamie Alexander
FILE NO: 2130/2017
DELIVERED ON: 20 February 2018
DELIVERED AT: Hobart
HEARING DATE: 14 February 2018
JUDGMENT OF: Brett J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether appeal against an acquittal infringes rule against double jeopardy – Act expresses intention to abrogate the rule against double jeopardy in respect of a review of the dismissal of a complaint by a magistrate, including after a hearing on the merits – Court has jurisdiction to entertain a motion to review a dismissal of a complaint by a magistrate after a hearing on the merits.
Wilson v Brownells Ltd [1949] Tas SR 1; Davern v Messel (1984) 155 CLR 21, cited.
Justices Act 1959 (Tas), ss 107 and 116
Aust Dig Magistrates [1349]
Magistrates – Hearing – Evidence – Identification – Two police officers gave identification evidence that it was the respondent who was the driver of the vehicle – Circumstances of case gave need for caution – Open to magistrate to not be satisfied beyond reasonable doubt of the accuracy of the identifications – Motion dismissed.
Reg v Turnbull [1977] 1 QB 224; Trudgett v The Queen [2008] NSWCCA 62, cited.
Young v Lusted [2011] TASSC 22, 20 Tas R 98, considered.
Evidence Act 2001 (Tas), ss 116 and 165(1)(b)
Aust Dig Magistrates [1151]
REPRESENTATION:
Counsel:
Applicant: S Nicholson and M Carter
Respondent: F Cangelosi
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Salamanca Chambers
Judgment Number: [2018] TASSC 8
Number of paragraphs: 35
Serial No 8/2018
File No 2130/2017
CONSTABLE MELANIE BAKER v JAMIE ALEXANDER PENNEYSTON
REASONS FOR JUDGMENT BRETT J
20 February 2018
On 26 June 2017, Magistrate Marron heard a complaint which charged the respondent with several offences said to arise out of an act of driving by the respondent which occurred on 12 August 2016. The primary fact in issue was whether the respondent was driving the relevant vehicle. This was a necessary element in respect of each charge.
The only evidence adduced by the prosecution to prove this fact was the testimony of two police officers. Each officer gave evidence that he had known the respondent for some time and had recognised him as the driver of the vehicle during the course of the relevant events. There was no other evidence which was relevant to this issue. The respondent did not give or adduce evidence.
At the conclusion of the hearing, the magistrate determined that he was not satisfied that the charges had been proved, and dismissed the complaint. It is apparent from his brief reasons that he was not satisfied beyond reasonable doubt that the identification of the respondent by the police officers was accurate, and, accordingly, that it had been proved that the respondent was driving the vehicle at the relevant time. The applicant seeks a review of the decision to dismiss the complaint. There are four grounds of review contained in the notice. The first ground asserts that "on no reasonable view of the evidence, could the learned magistrate have failed to be satisfied beyond a reasonable doubt of the guilt of the respondent". The second ground directs the Court's attention to the identification evidence, and complains that the magistrate erred by rejecting the evidence of the police witnesses with respect to that evidence. This ground is clearly subsumed within the first ground, as that was the only live issue before the magistrate at the hearing. The final two grounds assert that the magistrate did not provide sufficient reasons for arriving at his decision, but those grounds were abandoned by counsel for the applicant at the outset of the hearing of the motion.
The respondent has raised a preliminary issue. The respondent argues that the motion is not competent in that a review of a decision of justices to dismiss a complaint after a hearing on the merits, as a result of a finding that the prosecution has not proved its case beyond reasonable doubt, is not authorised by the relevant provisions of the Justices Act 1959. I turn first to this argument.
Is a review of a dismissal of a complaint authorised by the Justices Act?
The gravamen of the respondent's argument is that an appeal against an acquittal in respect of criminal charges has historically been regarded by the common law as infringing, albeit indirectly, the rule against double jeopardy. That rule, simply stated, is that a person shall not face trial more than once for the same offence, and may plead an acquittal or conviction in bar in respect of any subsequent prosecution for that offence. Counsel for the respondent, Mr Cangelosi, submits that a statute ought not be construed as providing a right of appeal, which would, in effect, abrogate the rule against double jeopardy, unless the intention of the legislature to do so is clearly expressed in the statute. He argues that that intention is not so expressed in the Justices Act, and, accordingly, it should be construed as not affecting the operation of the common law rule. He acknowledges that in the past, Tasmanian courts at all levels have invariably accepted the right of the complainant to seek a review of the dismissal of the complaint, pursuant to s 107 of the Justices Act, but submits that the point has not been directly considered in any such case and, accordingly, that practice should not be regarded as authority for the existence of jurisdiction, where that jurisdiction does not actually exist.
The primary premises of counsel's argument, that a right of appeal against an acquittal after a hearing on the merits of a criminal charge, indirectly infringes the rule against double jeopardy, and that that rule should not be regarded as having been statutorily abrogated except by express clear words, can be accepted. This much was clearly stated by the Full Court of the Federal Court in Thompsonv Master-Touch TV Service Pty Ltd (No 3) (1978) 38 FLR 397, and the High Court in Davern v Messel (1984) 155 CLR 21.In the latter case, however, Gibbs CJ, with whom Wilson and Dawson JJ agreed, said in respect of the application of this principle to matters dealt with in the summary jurisdiction:
"A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted. In England this can be done on appeal by way of case stated: see Bracegirdle v Oxley [1947] 1 KB 349and Reg v Dorking Justices; Ex parte Harrington [1983] QB 1076, at pp 1081-1082. In Australia also the procedure of appeal by way of case stated has been held to be available to an aggrieved complainant: Kench v Bailey (1926) 37 CLR 375. In addition, however, there is available the more ample remedy of appeal by order to review, and in some of the Australian States an unsuccessful complainant may appeal by this means against the dismissal of a complaint by a magistrate or justices."
Further, Mason and Brennan JJ said, at 52:
"The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate: R v Weaver (1931) 45 CLR 321, at p 356, per Evatt J."
The fundamental difficulty with the respondent's argument is that the "trend of legislation" allowing a prosecution appeal from a dismissal of a charge by a court of summary jurisdiction, as noted by their Honours in the passages quoted above, is, in my view, reflected and expressed in the provisions of the Justices Act. Section 107(1) permits a person "who is aggrieved by an order of justices" to move the Supreme Court to review that order. Section 116 provides as follows:
"In this Part, unless the contrary intention appears, order includes conviction, dismissal of a complaint, determination, and adjudication."
The inclusion in the definition of "order" of the "dismissal of a complaint" would seem to expressly include a review initiated by the complainant in respect of such an order, within the jurisdiction of the court established by s 107. However, Mr Cangelosi argues that what is required before the legislation can be construed as abrogating the common law rule against double jeopardy, is specific reference in the legislation to a dismissal of a complaint after a hearing on the merits [my emphasis]. He supports this submission by noting that the rule relates specifically to that situation, and that the judicial pronouncements against construing legislation as abrogating the right require clear expression that the legislature has contemplated the effect of the legislation to abrogate the right, and has directed the legislation to that specific purpose.
While I do not disagree with the latter part of that submission, I am satisfied that the words of the section clearly express an intention to abrogate the rule against double jeopardy in respect of a review of the dismissal of a complaint by a magistrate, including after a hearing on the merits. Section 116 provides for an inclusive definition of the term "order" in respect of the operation of the Part dealing with motions to review and appeals. The clear intention of that provision is to set out categories of determination which are intended to be specifically included within the operation of the Part, without affecting the general words, but so as to remove doubt that the specified categories are so included. The reference to "dismissal of a complaint," without qualification, clearly evinces an intention on the part of the legislature to provide for prosecution appeals in all circumstances in which a complaint has been dismissed by a magistrate. The very fact that that category of determination has been incorporated into an inclusive definition establishes that the legislature has turned its mind to that question, and the absence of qualification makes it clear that the definition was intended to capture dismissal of a complaint in all circumstances, including after a merits hearing. Had the legislature intended to exclude such cases, it would have been a simple matter to qualify the definition accordingly.
The contention that Tasmanian courts have not previously considered the argument raised by the respondent in the context of whether a complainant may apply for the review of a dismissal of a complaint, is not correct. In Wilson v Brownells Ltd [1949] Tas SR 1, Clark J considered whether s 152(1), a predecessor of s 107(1) albeit that it provided for an "appeal to a judge", applied to a complainant in respect of the dismissal of a complaint after a hearing. His Honour noted, at 5, that:
"… it is settled by the highest authority that in the absence of very clear statutory language to the contrary a complainant whose complaint has been dismissed cannot (within the meaning of these expressions) feel or think himself aggrieved or be aggrieved."
He also noted that "there is no right of appeal unless it is conferred by statute". The legislation defined "order" in the same terms as s 116, to "include any conviction, dismissal of a complaint, determination, and adjudication". His Honour said of this definition:
"But I think the definition is obviously intended to declare what orders made by justices are to be subject to an appeal under ss 146, 152 and 153 and one of such orders is the dismissal of a complaint."
His Honour then turned to the question of whether a complainant could be regarded as a "person aggrieved", and concluded that in respect of the dismissal of a complaint, that could be the only rational meaning of the legislation.
Wilson v Brownells Ltd was referred to by Mason and Brennan JJ in Davern v Messel, as one of several examples of cases in which a court has "held that a statute expressed in general terms has conferred a right of appeal from a conviction [sic], relying on some indication of an intention to that effect". Their Honours clearly intended to refer to an appeal from a dismissal, because each of the cases referred to deals with that situation: Ryder v Freebody (1898) 24 VLR 429; Day v Hunter [1964] VR 845; Davies v Ryan (1933) 50 CLR 379; Beer v Toms; ex parte Beer [1952] St R Qd 116; Olsen v Paxino (1905) 22 WN (NSW) 199; Kench v Bailey (1926) 37 CLR 375, at pp 378-379; Malone v Smith (1945) 63 WN (NSW) 54; Platz v Osborne (1943) 68 CLR 133, at pp 141, 147; Keetley v Bowie (1951) 83 CLR 516, at p 518.
The construction adopted by Clark J and favoured by me, applies the plain and clear words of the provision. This acknowledgement of the clear meaning of the legislation provides a cogent explanation for the practice which has developed in the Tasmanian courts, which accepts the legitimacy of a prosecution appeal against the dismissal of a summary complaint, and the apparent lack of any prior challenge to that acceptance since Wilson v Brownells Ltd. I am satisfied that this Court has jurisdiction to entertain a motion to review a dismissal of a complaint by a magistrate after a hearing on the merits, and that the complainant is a "person aggrieved" by such an order for the purposes of such a motion. The motion in this case falls within that category.
The evidence
Det Sgt Conyers said in evidence that he had known the respondent for at least six years, had dealt with him a number of times, and was confident in his ability to recognise him.
At about 2pm on the day in question, Det Sgt Conyers was driving alone on the Tasman Highway. On the relevant section of the road, there were two lanes of traffic moving in his direction, and the speed limit was 110 km/h. Det Sgt Conyers was travelling in the left lane in an unmarked police vehicle at a speed "that was probably a little under" the speed limit.
The witness's testimony was that his attention was drawn to his right when a vehicle passed him in the right hand lane. He recognised the respondent immediately "with a mobile phone to his left ear". The vehicle passed him and he followed it for a distance of approximately 1.5 kilometres. He then "caught back up with the vehicle and once again noticed the defendant in the driver's side on the mobile phone". The vehicle was "back at the speed limit at that stage".
Det Sgt Conyers contacted a colleague, Det Sgt Smith, whom he knew was "aware of the defendant". Det Sgt Conyers told him that he had identified the respondent driving the vehicle and arranged with Det Sgt Smith that he would intercept the respondent's vehicle, in a different police vehicle.
Det Sgt Conyers followed the vehicle in question until he saw Det Sgt Smith's vehicle with lights and sirens activated. He "observed Det Sgt Smith looking at the defendant". When the vehicle approached Det Sgt Smith's vehicle, Det Sgt Smith, who was on an open telephone line with Det Sgt Conyers, said "that's him". The vehicle in question sped off and Det Sgt Conyers left the matter to Det Sgt Smith.
In cross-examination, Det Sgt Conyers said that on the first occasion that the vehicle had passed him, the respondent "actually looked at" him. The consequence was that he had seen his face from the front. He agreed with defence counsel that he had not included this information in his statutory declaration, or evidence-in-chief. Det Sgt Conyers maintained his assertion that, in any event, he had identified the respondent, notwithstanding that the respondent had a mobile telephone to his left ear.
Det Sgt Smith's testimony was consistent with that of Det Sgt Conyers. Det Sgt Smith also knew the respondent well and gave evidence that he recognised the respondent as the driver of the vehicle. This act of recognition took place as the vehicle came around a roundabout at a slow speed. Det Sgt Smith said that the driver and he looked at each other. At the time the vehicle "wasn't at any great speed". Det Sgt Smith maintained that he was certain that it was the respondent.
There was no other evidence relevant to the question of whether the respondent was the driver of the vehicle.
The magistrate's decision
The magistrate's decision was brief. It can be conveniently set out in full:
"In relation to the events of 12 August that evidence came from two police officers: Detective First Class Constable Bradley Conyers, and Sergeant Nicholas Smith. In this case the initial identification by Constable Conyers was incidental and unexpected. It could not have completely occupied the attention of the officer as he was driving at the time. In addition his observation was only of the driver's face and further limited by the fact that the driver had a mobile phone to his left ear. There was no evidence that linked Mr Penneyston with the vehicle either prior to or subsequent to the alleged offending driving, nor was there any evidence linking him to any person connected to the car.
Both officers gave evidence they identified Penneyston because they knew him from past dealings. Both gave evidence of the circumstances of their observation and I accept that police officers are so trained in observation. However, neither in Constable Conyers' statutory declaration or his evidence in chief was there any mention of exactly what aspect or part of the driver's body he saw. On the other hand Sergeant Smith gave evidence consistent with his statement that as he came round the roundabout that they exchanged glances. Sergeant Smith however had been alluded by Constable Conyers as to what he had observed, and the details of the car. And that he believed Mr Penneyston was the driver.
In those circumstances it is inevitable that there would be a degree of expectation as to the identity of the driver. Having considered the evidence and in particular matters to which I have referred and the warnings I must take into account with regard to identification evidence, I am not satisfied in relation to those charges. Those (indistinct word) are dismissed. (indistinct word)"
The arguments
The test applicable in respect of the determination of the ground of review in this case is not in dispute. As the ground asserts, I may only allow this motion if I am "satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent": Leonard v Newell [1983] Tas R 78 at 81, as cited by Porter J in Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454; Caccavo v Collins [2014] TASFC 7, 23 Tas R 384 per Pearce J at [8].
Ms Carter, who appeared as junior counsel for the applicant, argues that the evidence of the police witnesses was consistent and cogent. Each had an ample opportunity to observe the driver, and purported to recognise a person that he knew well. Relying on comments by Crawford CJ in Young v Lusted [2011] TASSC 22, 20 Tas R 98, Ms Carter asserts that the magistrate ought to have accepted that the police were trained observers and had provided reliable and persuasive identification evidence. She argues that it was not open to the magistrate, acting reasonably, to fail to be satisfied beyond reasonable doubt that the respondent was the driver of the vehicle.
Mr Cangelosi argues that the credit of Det Sgt Conyers, in particular, was affected by his failure to refer to having seen the face of the driver in his statutory declaration or evidence-in-chief. He argues that the magistrate correctly paid regard to matters which impacted on the reliability of the identification evidence, including the fact that each officer only had a brief opportunity to observe the driver, that Det Sgt Conyers was travelling at speed when the purported identification was made, and in the case of Det Sgt Smith, that his identification was tarnished by the fact that he had an expectation that the driver would be the respondent. Mr Cangelosi argues that the course taken by the magistrate was reasonably open to him.
Resolution
The danger associated with criminal proof which relies, in whole or in part, upon identification evidence is well established and documented: Davies and Cody v The King (1937) 57 CLR 170; Alexander v The Queen (1991) 145 CLR 395. The caution to be exercised by a tribunal of fact in respect of identification in criminal proceedings has received statutory recognition: the Evidence Act 2001, ss 116 and 165(1)(b).
The need for caution will still apply notwithstanding that the identification was by way of recognition of a person already well known to the identifier. In Reg v Turnbull [1977] 1 QB 224 at 228, Lord Widgery CJ said:
"Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."
In Trudgett v The Queen [2008] NSWCCA 62, Spigelman CJ, with whom Hulme and Latham JJ agreed, said at [29]-[31]:
"[29] Plainly, recognition evidence does not suffer from all of the defects of identification evidence. However, it does share with such evidence the danger that a witness will propound his or her conclusion with force and conviction. Furthermore, both forms are also likely to be given special weight by a jury, even where its reliability is dubious.
[30] Generally speaking, recognition evidence will be more reliable than identification evidence strictly so called. For example, the displacement effect and the rogues gallery effect would not appear to be material. That is not, however, sufficient to exclude it from the Dictionary definition and from s 116 as a category. Section 116 does not turn on any issue of reliability (cf s 165).
[31] In my opinion, the Crown submission, that recognition evidence does not fall within the definition of 'identification evidence' at all, should be rejected."
Viewed objectively, this was a relatively strong identification case. The danger of a mistaken identification was reduced because each police officer asserted that the respondent was well known to him. However, there was still a need for caution before that identification evidence was accepted. The reasons for that need for caution, in the circumstances of the case, included, in the case of Det Sgt Conyers, that he could only have had a relatively limited opportunity to observe the person, given that he was also controlling a motor vehicle that was travelling at 110 km/h, and the subject vehicle was overtaking him, and further, that part of the driver's face was obscured by a mobile telephone. In relation to Det Sgt Smith, it was reasonable for the magistrate to have regard to the fact that he also had only a brief opportunity to observe the driver of the vehicle, and further, the potential for his view of the driver to be influenced by the identification that had been communicated to him by Det Sgt Conyers. In reaching his conclusion that he was not satisfied that the charges had been proved, it was not necessary for the magistrate to make a positive finding that either police officer was mistaken or had given inaccurate evidence concerning the identification. It was not a matter of the magistrate choosing between the police identification being accurate, on the one hand, or being positively satisfied that it was inaccurate on the other hand. The only question for the magistrate was whether he was satisfied beyond reasonable doubt that the respondent was the driver of the motor vehicle. He could only be satisfied of that if he was satisfied beyond reasonable doubt that the identification by the police officers was accurate. In determining this question, he was required to take into account the special need for caution and the reasons for such caution, in the circumstances of the case. Further, the magistrate had the benefit of hearing and seeing the witnesses as they gave their evidence, which is an advantage not shared by this Court.
Having regard to those matters, I cannot conclude that the only reasonable view of the evidence available to the learned magistrate was that he must be satisfied beyond reasonable doubt of the guilt of the respondent. It was open to his Honour, in a case in which the only evidence relied upon by the prosecution was the identification evidence, to manifest the caution he was required to exercise by a failure to be satisfied beyond reasonable doubt of the accuracy of the identifications. It follows that the motion must fail.
Before I conclude, I should say something about the applicant's reliance on the decision of Crawford CJ in Young v Lusted. The applicant put that case to me as support for the proposition that a police officer ought be regarded as having expertise by reason of training and experience in the identification and recognition of offenders in cases such as this. A passage from that decision, at [27], was quoted in support of that contention:
"[27] No doubt police officers make mistakes, like all of us. Nevertheless, there was no error in taking into account the fact that the witness was a police officer. It was relevant to the probative value of the evidence. The magistrate was justified in having regard to the fact that a police officer who by reason of his rank had obviously had long experience as a police officer, would have greater training and experience for perceiving and remembering the features of a person under observation than many lay persons. The Inspector was likely to have been more aware than a lay person of the need to observe and retain a memory of his observations."
His Honour's comments must be seen in the context of that case. The issue for determination was whether a magistrate had correctly admitted the identification evidence. The quoted comments were directed at supporting the magistrate's assessment of the probative value of the evidence for the purposes of a determination under s 137 of the Evidence Act. The magistrate had indeed taken into account the "Inspector's characteristics, he's an experienced police officer, he is trained and experienced in perception and memory and the ability to make observations of this type …".
It is important to note that Crawford CJ's comments were directed at a conclusion that the factual findings of the magistrate in this regard were open to him. They related to matters of evidence relevant to the particular case, and in the context of a decision on the admissibility of evidence. They do not represent a principle of law which can be applied generally in other cases, irrespective of the evidence, or lack of it. It may well be that such an inference is open in a particular case. Indeed, in this case, the magistrate, who had been referred to Young v Lusted by the prosecutor, accepted "police officers are so trained in observation". It would be a serious error, however, to elevate the said comments to the status of a proposition of law or assumed fact, which can be applied in every case without reference to the evidence or circumstances of the case in question. Every case must be determined on the evidence presented to the court, in compliance with the provisions of the Evidence Act.
The motion is dismissed.
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