Bellchambers v Police - [2007] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BELLCHAMBERS v POLICE
[2007] SASC 184
Judgment of The Honourable Justice Sulan
23 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF
Appellant convicted of assault occasioning actual bodily harm - Magistrate considered both identification and circumstantial evidence - whether Magistrate gave sufficient consideration to the weaknesses in the identification evidence - whether it was open to the Magistrate to consider the identification and circumstantial evidence cumulatively - whether the Magistrate gave sufficient weight to the evidence which supported the position that the appellant had an alibi - held, dismissing appeal, the Magistrate gave detailed reasons for his conclusions and no error was demonstrated.
Criminal Law Consolidation Act 1935 s 40, referred to.
Domican v The Queen (1992) 173 CLR 555; R v Bennett (2004) 88 SASR 6; R v Coxon (2002) 82 SASR 412; R v Story (2004) 144 A Crim R 370; R v Turner (2000) 76 SASR 163, discussed.

BELLCHAMBERS v POLICE
[2007] SASC 184
Magistrates Appeal

SULAN J:
The appellant was charged with assault occasioning actual bodily harm, contrary to s 40 of the Criminal Law Consolidation Act 1935. He pleaded not guilty and was tried before a Magistrate. The Magistrate found the appellant guilty, recorded a conviction and imposed a fine of $1500. The appellant appeals his conviction.
Facts
It is necessary to set out in some detail the facts in this case. I begin by recounting the facts that were admitted or established by evidence that was not disputed before the Magistrate.
The assault took place in a car park situated between Coglin Street (to the east) and Market Street (to the west) in Adelaide (“the car park”). On the northern boundary of the car park, there was a pathway that connected Coglin Street and Market Street. The car park was managed by a company called Park Fast Pty Ltd (“Park Fast”).
Users of the car park were required to display a valid ticket within their vehicle. Tickets were obtained from a vending machine located in the car park. Another company, Adelaide City Fines Pty Ltd (“ACF”), was contracted by Park Fast to monitor the use of the car park. If ACF staff found a vehicle using the car park that did not have a valid ticket displayed, they would place an infringement notice on the vehicle. The effect of an infringement notice was to require the owner of the vehicle to pay a fine to Park Fast.
In some instances, a metal clamp would be attached to a wheel of a vehicle that did not have a valid ticket displayed. The clamp was attached by a padlocked chain. When a clamp was attached, a notice would be placed on the vehicle advising the owner that the clamp had been applied, and that it could be removed once the owner had telephoned ACF, paid a fee of $110 to ACF and complied with certain formalities.
The appellant was the owner of a red Toyota Celica motor vehicle. On Thursday 14 April 2005, he parked the vehicle in the car park. It was parked adjacent to the pathway, facing north. The appellant left the vehicle without displaying on it a valid ticket. He then attended Passatempo, a restaurant on Gouger Street, where he was casually employed.
Between 7 May 2004 and 14 April 2005, ACF had placed 13 infringement notices on the appellant’s Celica for failure to display a valid ticket whilst parked in the car park. At some time on 14 April 2005, ACF placed a clamp on a rear wheel of the Celica.
At the time of the incident, Mr Afonso was employed as the Operations Manager of Park Fast. On the morning of Friday 15 April 2005, he received a telephone call informing him that two men were acting suspiciously in relation to the Celica. Mr Afonso attended at the car park.
After arriving at the car park, Mr Afonso approached two men who were near the Celica. One man, “the accomplice”, was holding bolt cutters. The other man, “the assailant”, was using an air compressor to put air into one of the Celica’s tyres. There was a brief discussion between Mr Afonso and the two men. The assailant then punched Mr Afonso on his left jaw. As a result of the assault, Mr Afonso sustained two fractures to his jawbone.
The prosecution case was that the appellant was the assailant. The prosecution led evidence from two witnesses: Mr Afonso, the victim, and Mr Berresford, who was a passer-by. In addition, there was circumstantial evidence linking the appellant to the assault.
Grounds of appeal
The grounds of appeal are:
1. The Learned Special Magistrate erred in his consideration of the legal onus of proof and in finding that the prosecution had discharged the legal onus upon it.
2. The Learned Special Magistrate erred in failing to provide adequate reasons for his judgment.
3. The Learned Special Magistrate erred in his assessment of the alleged identification evidence of the witness Beresford.
4. The Learned Special Magistrate erred in his assessment of the alleged identification evidence of the witness Afonso.
5. The Learned Special Magistrate erred in his assessment of the effect of the evidence of the witnesses Hopper and Howard. Instead of finding that that evidence, even taken alone, gave rise to a reasonable doubt, the Magistrate engaged in impermissible speculation in an attempt to explain away the exculpatory evidence of those witnesses.
6. The Appellant seeks permission to amend the grounds of appeal upon receiving a copy of the transcript of the trial.
The appellant submitted that the Magistrate had made “fundamental errors” in two aspects of the case: first, in the assessment of the identification evidence of the witnesses Berresford and Afonso. Secondly, the appellant submitted that the Magistrate had erred in his assessment of the evidence of the witnesses Howard and Hopper, which in the appellant’s submission either established a complete alibi or at least a reasonable doubt about the identification of the appellant as the assailant. I will address first the Magistrate’s assessment of the identification evidence. In order to address the appellant’s submissions in relation to this issue, it is necessary to set out the evidence upon which the Magistrate relied in finding the appellant guilty.
Identification evidence
The witness Berresford was returning to his car, which was parked in Coglin Street, at about 9:30 am on 15 April 2005. He walked along the pathway on the northern boundary of the car park. As he did so, he observed two men near the Celica. He observed that all the tyres of the Celica were flat and there was a clamp attached to one of its wheels.
Berresford saw that one of the men was using an air compressor to inflate a tyre. This was connected to the car’s cigarette lighter. The front door of the vehicle was open to enable the compressor to be connected to the cigarette lighter. The other man appeared to be trying to remove the wheel clamp.
Berresford continued along the path. There was a sign displaying information about the car park, including a contact telephone number. Berresford used his mobile telephone to ring this telephone number. Afonso answered the telephone call, and Berresford explained what he had seen to him. Telephone records indicated this call was made at 9:37 am.
Berresford participated in a photo identification on 13 September 2005. After initially considering another photograph, Berresford identified the appellant as the man who was pumping the tyres of the vehicle.
The Magistrate considered that the hesitation of Berresford was explicable on the basis that the other photograph was “considerably similar” to that of the appellant. Further, the Magistrate noted that while Berresford had only a limited opportunity to view the men in the car park, the men were behaving unusually, and Berresford had “obviously [taken] a keen interest in what he observed… [and] clearly took the view that the two males were acting suspiciously”. The initial observation had taken place in daylight and Berresford’s view of the men was unobstructed. The Magistrate found that Berresford was “a truthful and reliable witness”.
The Magistrate approached differently the evidence of the witness Afonso. The Magistrate stated:
Whilst I generally regarded Mr Afonso as a credible witness, I felt from time to time in his evidence that he came to Court with an unshakable belief in the guilt of Mr Bellchambers. This led to an unwillingness by Mr Afonso to contemplate any suggestion which he perceived to be inconsistent with his unshakable belief as to Mr Bellchamber’s guilt and a tendency, therefore, to be unnecessarily wary and suspicious of some of the questions and propositions put to him in cross-examination.
…
I hasten to add, that I am not suggesting for a moment any blatant endeavour on the part of Mr Afonso to pin the crime on Mr Bellchambers regardless of the truth of the matter, and the sincerity of Mr Afonso’s belief in the guilt of Mr Bellchambers is not to be doubted.
I am merely alluding to my detection of a subtle wariness and defensiveness on the part of Mr Afonso at some points in his cross-examination.
Afonso was present on 14 April 2005 when the clamp was applied to the wheel of the Celica. Early on 15 April 2005, he attended the car park in the course of his rounds and observed that the clamp had been removed but the chain and padlock were still attached to the wheel. The padlock showed signs of an attempt to remove it.
Afonso was only a short distance from the car park when he received the telephone call later in the morning from Berresford. Afonso drove immediately to the car park, where he parked his vehicle and approached the Celica. He saw two males, one of whom (the assailant) was using a compressor to put air in a tyre and the other of whom (the accomplice) was attempting to remove the padlocked chain using bolt cutters.
The accomplice saw Afonso approach and said to him: “did you fucking clamp this vehicle?”, to which Afonso responded that he had not. The assailant then said: “get the fuck out of here”, and immediately thereafter punched Afonso on the jaw.
Afonso retreated and began walking towards Gouger Street. He turned and saw that the assailant was following him. When he reached Gouger Street he began to walk back to the car park. He saw that both men who had been near the Celica had left the area. The Celica was still in the car park, but the chain had been removed from its wheel.
Afonso then made a number of telephone calls. The Magistrate recounted that there was disparity between the Telstra records of the calls and Afonso’s recollection of the order in which they occurred. The Magistrate found that Afonso was mistaken, and found that the first telephone call Afonso made after the assault was to an ACF patrol operative. Consequently, the Magistrate found that the assault must have occurred between 9:37:01 am, when Berresford made the call to Afonso, and 9:38:59 am, when Afonso made the call to the ACF patrol operative.
The Magistrate noted that Afonso had good reason to remember the appearance of the assailant and that the initial observation occurred in daylight. However, the Magistrate also drew attention to the fact that the incident occurred very quickly, that Afonso’s attention was directed to the accomplice and that the assailant approached Afonso from the side rather than directly towards him.
There were two subsequent occasions on which Afonso identified the appellant as the assailant. On 12 May 2005, Afonso saw the appellant’s Celica parked in Market Street. Afonso stated that he saw the assailant working as a waiter in Passatempo, but did not go into the restaurant. In cross-examination, Afonso gave evidence that he had merely been passing by when he observed the appellant at Passatempo. However, he had previously stated in an affidavit that he was searching the area to find his assailant. The Magistrate concluded that Afonso was in fact searching for the assailant. Nevertheless, Afonso was able to identify the appellant during his search to find his assailant.
On 12 September 2005, Afonso took part in a photographic identification. After initially stating that he could not make a selection from the photographs shown to him, he identified the photograph of the appellant as being that of the assailant. Afonso explained that he had not recognised the appellant initially because the photograph showed the appellant with a different hairstyle to that on the day of the assault.
Circumstantial evidence
In addition to the evidence of identification, evidence was led from two witnesses, Patricia Howard and Doreen Hopper, with whom the appellant worked at Optus in a building located on the corner of Pulteney Street and Flinders Street.
Hopper gave evidence that in April 2005 she worked at a desk adjacent to the appellant. She swore an affidavit on 6 September 2005. Hopper did not recall the time at which the appellant arrived for work on 15 April 2005. She gave evidence that he was usually punctual, and their mutual supervisor, Howard, was extremely vigilant and strict in relation to punctuality. Hopper also provided an email which was sent by the appellant at 9:25 am on 15 April 2005 in which he apologised to Hopper, Howard and other staff for being late in arriving to work at Optus that day and explained that it had been due to ‘unforeseeable circumstances’.
Howard gave evidence that she was the team manager at Optus responsible for supervising Hopper and the appellant, amongst others. The prosecution tendered two affidavits of Howard by consent, which were admitted as part of her evidence. In the affidavits Howard stated that the appellant had commenced work at 9:00 am on 15 April 2005, which was after his appointed starting time of 8:00 am. She stated that the appellant had been due to have a morning break that day between 9:30 and 9:45 am. However, she said that she could not confirm whether the appellant had taken a break that day, although she would have documented the fact if the appellant had returned late from the break. There was no such record, nor was there a record of whether the appellant had in fact taken his morning break on 15 April 2005.
Howard gave evidence that on the morning of 15 April 2005 she received a telephone call from the appellant in which he said that he was experiencing car trouble and may be late that day. She observed him arrive at 9:00 am, after his rostered starting time of 8:00 am.
Howard said that soon after signing her first affidavit, she had a conversation with two other Optus employees, Tony Andonis and James Wood. They were discussing the reason for Detective Hubbard, a police officer, having attended at Optus on 5 July 2005. Howard stated that Andonis raised the subject of a conversation that had taken place between Howard and the appellant on 15 April 2005, which caused Howard to recollect the conversation. Howard did not advise Detective Hubbard of this further recollection until September 2006.
Howard described the discussion in the following way, as recounted by the Magistrate:
Basically it wasn’t with Adrian personally, it was just a few people standing around and he was saying that his car had been clamped. I don’t even know what a car clamping is, so they were saying it means you can’t move your car because of the tyres and that was it, I didn’t… we weren’t conversing about anything else it was just about the fact that the car was clamped and then I said ‘you know, you shouldn’t really be taking a break, you’ve basically arrived at work’ so he had his cigarette and then went back upstairs.
The Magistrate considered that if he were to accept unqualified the evidence of Howard and Hopper, it would mean that the appellant telephoned Howard at some time prior to 9:00 am to report that he would be late as he was experiencing ‘car trouble’; the appellant arrived at Optus at 9:00 am; the appellant sent an email to some co-workers at 9:25 am; and finally the appellant had his morning break at 9:30 am, concluding with Howard admonishing the appellant and the appellant appearing to return to work.
The Magistrate identified that if this timetable were accepted, then a question arose as to whether it was possible for the appellant to have left the Optus building following the “admonishment” conversation in sufficient time to be the person observed by Berresford in the car park just prior to 9:37 am. The Magistrate considered whether the evidence of Howard as to the appellant’s presence at the Optus building raised a reasonable doubt that the appellant was the assailant.
The Magistrate concluded that no such doubt was raised. He considered that it would have been possible for the appellant to travel by car between the Optus building and the car park after he had left the group at the morning break and before the assault occurred. On this point, the Magistrate noted that on Afonso’s evidence, the clamp had been the subject of an unsuccessful attempt to remove it early in the morning of 15 April 2005, and that the appellant was late to work that morning citing “car trouble”. The Magistrate also noted that in his initial interview with the police on 27 June 2005, the appellant did not give an accurate account of his arrival time at Optus on 15 April 2005, stating that he had commenced work at “probably about 8 am”. The Magistrate concluded that the appellant had deliberately given a false impression of his movements on 15 April 2005 to the police.
Submissions of appellant in relation to identification evidence
Counsel for the appellant submitted that the Magistrate had reasoned that the appellant was the owner of the vehicle, he had driven it to the car park the night before, he had seen that it was clamped and therefore only the appellant would have sought to remove the clamp. Counsel contended that the fact that the appellant was the registered owner of the vehicle, that he had parked in the car park the night before and seen that it was clamped were items of circumstantial evidence.
Counsel submitted that circumstantial evidence could not be relied upon where the “central plank of the case” was identification evidence. He said:
It’s my submission you can’t have a piece of circumstantial evidence if the central plank of your case is identification evidence. If it’s identification by say process of circumstantial evidence such as a jacket, fibres, glass fragments or whatever then I accept that. That would then be an appropriate piece of circumstantial evidence, but here if you put aside the identification evidence because that’s a separate exercise altogether. If you put aside the identification evidence all you’ve got is the fact that this man was the registered owner. He’d parked the car there the night before and seen it was clamped.
…
So if one looks and says yes, well that’s a starting point for an investigator, it’s a good starting point to say let’s see where the owner was and what he was doing, I accept that. But the only reliable, well the only purported reliable plank in the prosecution case is identification evidence then all that goes out the window. Because the prosecution can’t put, can’t bolster the identification of it by saying well it must have been him because he was the owner, because it could have been a look-a-like and that’s the very flaw about which courts caution people.

Counsel drew attention to what he contended were weaknesses in the identification evidence. He submitted that the Magistrate had reminded himself in general terms about the inherent fragility of identification evidence without giving himself the requisite warnings about the particular weaknesses in the evidence before him.
In relation to Berresford, counsel submitted that although the witness may have been honest and reliable as the Magistrate found, he might nevertheless have been mistaken. He stated that there had been a long delay between the incident in April and the identification in September. He noted that the witness accepted that he had had a limited opportunity to observe the assailant’s features. He noted that the witness had said that he could not be 100% certain of the identification from the photographs. I observe that the witness selected the appellant’s photograph from the identification photographs shown to him, despite the similarities between the appellant’s photograph and another. Counsel submitted that even when the witness was observing the assailant and the accomplice, this was for the purpose of seeing what they were doing and determining what action to take, rather than specifically noting appearances. Again, I observe that, although the witness’s attention was initially drawn by the conduct of the appellant and his accomplice, the witness nevertheless had an ample opportunity to observe the appellant’s features.
Counsel for the appellant suggested that the witness Berresford, who gave evidence that he often ate breakfast in the market, may have merely been identifying a person he recognised from around the market area rather than identifying the assailant. That suggestion was rejected by the Magistrate.
In relation to Afonso, counsel submitted that the witness was scared at the time of making the initial observation and had looked “surreptitiously” at the assailant and the accomplice. Counsel noted that Afonso had not identified the appellant beyond saying that the photograph he was shown resembled the assailant. Following the hearing of the appeal, the parties provided an agreed transcript of Afonso’s identification. After initially stating: “I can’t make a selection from these”, Afonso identified the appellant and stated: “This is the person that hit me”.
Counsel suggested that Afonso was concentrating on the accomplice, who was holding the bolt-cutters, rather than the assailant. He submitted that there was only a limited opportunity for identification in any event. He was dazed after the hit, thus affecting any identification at that point. The assailant approached him from the side. Counsel suggested that Afonso might merely have recognised the appellant from seeing him at the car park on another occasion. All of these submissions have force. Nevertheless, the Magistrate rejected them and came to a positive conclusion about identification.
Counsel also referred to a purported in-court identification in both his written and oral submissions. I do not consider that this was of great moment, nor did the Magistrate rely upon it.
It was counsel’s submission that each identification had to be evaluated separately rather than weighed cumulatively.
Submissions of respondent in relation to identification evidence
Counsel for the respondent submitted that the Magistrate had advised himself of many of the limitations in the identifications. In response to the suggestion that not all of the deficiencies in the evidence had been specifically addressed by the Magistrate, the respondent submitted that the Magistrate had noted the inherent dangers in identification evidence.
In relation to Berresford’s evidence, the respondent submitted that he did have a sufficient opportunity to observe the two men; further, he had a particular reason to pay attention to what they were doing. Counsel submitted that the fact that Berresford had stated he was looking into the assailant’s eyes and was unable to describe whether the assailant had facial hair did not mean that he had not had an opportunity to see the assailant’s face. Counsel submitted that Berresford’s statement during the identification parade of photographs was sufficient to amount to an identification.
The respondent submitted further that Afonso had two opportunities to observe the assailant – before and after the assault – and that was sufficient. Counsel conceded that the witness was looking for the assailant in the vicinity of Gouger Street at the time of the Passatempo identification. Counsel submitted that there would have been many people in the vicinity of Gouger Street at the time, although the appellant gave evidence that he was one of only a few men working at Passatempo. There was no evidence as to the number of people in the vicinity at the time the witness saw the appellant, although counsel submitted that there was nothing drawing the witness to Passatempo in particular. Counsel agreed that this identification was of greater weight than the identification from the photographs. Nevertheless, the witness was adamant that he was identifying his assailant rather than the person he saw in Passatempo.
Submissions of appellant in relation to evidence said to provide an alibi
Counsel submitted that the evidence of Howard and Hopper established an alibi for the appellant at the time of the assault. Counsel submitted in the alternative that when that evidence was considered in light of the deficiencies in the identification evidence, it at least gave rise to a reasonable doubt. Counsel suggested it was implausible that the appellant would be at work at 9:25 am, as evidenced by his email, and 9:30 am, as evidenced by his presence at the morning break, and would then leave to attend at the car park by 9:37 am for the assault to occur at 9:38 am before returning to work, and that Howard would not notice him missing at 9:45 am, which was the scheduled completion time of the break.
Submissions of respondent in relation to evidence said to provide an alibi
Counsel for the respondent submitted that there was no error in the evidence of Hopper. In relation to the evidence of Howard, counsel conceded that if it were to be accepted, there would be a limited opportunity for the appellant to have committed the crime. However, counsel submitted that the Magistrate had dealt with the evidence of Hopper and Howard in his reasons and that the Magistrate had not erred in finding that their evidence did not give rise to a reasonable doubt.
Relevant authorities
In R v Turner,[1] Mullighan J made comments about the use of identification evidence and circumstantial evidence. Mullighan J stated:
Assuming there is evidence of identification fit to be considered by the jury, the correct approach is for the jury to reach a conclusion about that evidence without considering the other evidence in the case: see Domican v The Queen (1992) 173 CLR 555 at 565. However, if the evidence is less than a positive identification, such as where the witness says the accused “looks like” or “is similar to” the offender, that evidence may be used as circumstantial evidence but not as evidence of identification.[2]
[1] (2000) 76 SASR 163.
[2] R v Turner (2000) 76 SASR 163, 183.
That interpretation of Domican could be seen as supporting the submissions advanced by counsel for the appellant. However, subsequent authority in this Court has rejected that interpretation,[3] or stated that the comments of Mullighan J must be considered in the context of the case and jury directions before him.[4]
[3] See, eg, R v Coxon (2002) 82 SASR 412, 419.
[4] See, eg, R v Coxon (2002) 82 SASR 412, 422.
In R v Coxon,[5] Prior J considered that Domican was not authority for the proposition that the consideration of the identification evidence must be made without reference to the circumstantial evidence. Rather, Domican required that the adequacy of the identification evidence warning be assessed by reference solely to the strength of the identification evidence. Prior J stated:
Thus while the adequacy of a warning given to a jury about acting upon identification evidence is assessed without reference to any circumstantial evidence, once the warning is given a jury may use circumstantial evidence as support for the correctness of the identification made.[6]
[5] (2002) 82 SASR 412.
[6] R v Coxon (2002) 82 SASR 412, 418.
Lander J in Coxon expressed the test differently, but to the same effect:
It is the intention of the direction which Domican requires that the jury will assess the positive identification evidence without regard to any other evidence in the trial, whether direct or circumstantial.
However, after the jury has assessed the evidence in accordance with the Domican type direction the jury is at liberty to use that evidence, whether it is direct or circumstantial evidence, along with any other direct or circumstantial evidence in the case to arrive at its verdict.[7]
[7] R v Coxon (2002) 82 SASR 412, 423.
Gray J similarly was of the view that the jury was entitled to consider “the totality of the evidence”, and to consider the identification evidence together with the circumstantial evidence.[8]
[8] R v Coxon (2002) 82 SASR 412, 424.
In R v Story,[9] the position was considered again. Gray J discussed at length the distinction between positive identification evidence and circumstantial identification evidence. Gray J discussed the authorities regarding the admissibility of identification evidence, and the special warnings that may be required. He then said:
If identification evidence is relevant it is admissible subject to the general discretion to exclude. Once admitted the evidence forms part of the body of evidence to be considered by the jury in its totality when considering their verdict.[10]
[9] (2004) 144 A Crim R 370.
[10] R v Story (2004) A Crim R 370, 386.
Although Doyle CJ and Perry J had different views about the adequacy of the directions regarding identification evidence in that case, they agreed with the reasons of Gray J in other respects.
The use of identification evidence and circumstantial evidence was considered again in R v Bennett.[11] Gray J observed that once admitted, identification evidence forms part of the evidence to be considered by the jury. He went on to consider, as a separate question, whether a jury is entitled to consider circumstantial identification evidence in deciding whether to accept the positive identification evidence.[12]
[11] (2004) 88 SASR 6.
[12] R v Bennett (2004) 88 SASR 6, 28-9.
Doyle CJ and Perry J refrained from expressing any concluded view on this latter question, although Perry J did propound some relevant principles. Doyle CJ stated:
There is no reason to doubt that, ultimately, the jury must consider any identification evidence along with the other evidence in the case, in deciding whether they are satisfied beyond reasonable doubt that the accused is guilty. The question is whether before doing so the jury should first consider the reliability of the identification evidence in isolation.[13]
[13] R v Bennett (2004) 88 SASR 6, 19.
It is clear from the authorities that there is no remaining dispute about the use of identification evidence, once properly admitted, and once its weight has been assessed. The trier of fact may use it in conjunction with the circumstantial evidence.
There is still a question as to whether a trier of fact must consider the reliability of the identification evidence in isolation. However, that question is not of any significance in the present case. The Magistrate did consider the identification evidence of the witnesses Afonso and Berresford in isolation from the remainder of the evidence, which was the approach that was more favourable to the appellant.
A trier of fact must have regard to the evidence as a whole. If such evidence includes direct identification evidence and other circumstantial evidence pointing to a defendant as the offender, the court is required to consider all the evidence. The weight to be given to the evidence will depend on the circumstances of each case. Equally, if there is circumstantial evidence pointing to someone other than the defendant, then this may lessen the force of the direct identification and may result in the court having a reasonable doubt.
In addition to the circumstantial evidence I have recounted above, there was also the evidence of two witnesses supporting the identification of the appellant as the assailant. The Magistrate was entitled to have regard to all the evidence. I reject the appellant’s contention that the Magistrate was not entitled to use circumstantial evidence in addition to identification evidence to conclude that the appellant assaulted Mr Afonso. The Magistrate gave himself the warnings about the dangers inherent with identification evidence. I am satisfied that the Magistrate took sufficient care before relying upon the identification evidence.
Discussion
I note the appellant’s concern about the manner in which the Magistrate dealt with the identification evidence of Afonso and Berresford. I note that the Magistrate had reservations about the evidence of Afonso in particular. The Magistrate was critical of the manner in which Afonso gave evidence and, in addition to reminding himself generally of the fragility of identification evidence, also noted many of the weaknesses in the particular identification in this case to which the appellant referred.
The identification of the appellant by Afonso in the restaurant was strong evidence. Assuming that Afonso was looking for the appellant in the vicinity of the car park he was, nevertheless, not directed to any particular business premises or any person. It was a spontaneous identification in circumstances where the witness had no reason to identify a particular person as being his assailant, except for the fact that the presence of the Celica in the car park indicated that the owner of the vehicle might have been in the general vicinity. The appellant drew attention to some perceived deficiencies in the second identification, in which the witness Afonso selected the appellant’s photograph. In my view, this second identification is weakened by the fact that it could be argued that the witness was selecting the image of the person he had seen in the restaurant rather than his assailant. Nevertheless, the first identification was compelling evidence of the appellant’s involvement.
It is not necessary for a Magistrate to deal specifically with every criticism of a witness’s evidence. I consider that there is no basis for finding that the Magistrate erred in his consideration of the identification evidence of the witnesses Berresford and Afonso.
There was circumstantial evidence that supported the conclusion that the appellant was the assailant. The appellant was the registered owner of the motor vehicle. He had, over a course of time, parked in the car park many times without a ticket and had acquired 13 tickets as a consequence. He had parked at the car park on 14 April 2005, without displaying a ticket, as a consequence of which his vehicle was clamped. The appellant was aware that his vehicle had been clamped, having returned to it on 14 April 2005 after he finished work. The appellant was late to work on the morning of 15 April 2005, citing car trouble. The witness Afonso noted that someone had already tampered with the vehicle clamp before 9:00 am. The persons at the car at the time of the assault appeared to have a key to the car. Further, the witnesses Howard and Hopper observed the appellant arrive at work at 9:00 am, after his designated starting time of 8:00 am. At that time, the appellant’s car was in the car park. It was open to the Magistrate to conclude that the appellant was at the car park attempting to remove the clamp and chain.
The accomplice, in the presence of the assailant, confronted Afonso and asked him if he had clamped the car, which suggested that the persons at the car were not random individuals attempting to interfere with the car. Further, the fact that the persons at the car had in their possession an air compressor and were in the process of inflating one of the flat tyres suggests that they were aware, prior to attending the car park, that the car had flat tyres and that they were not strangers interfering with the car.
The Magistrate considered carefully the evidence of the witnesses Howard and Hopper, which in the appellant’s submission supported the position that the appellant was in the vicinity of the Optus building at the time of the assault. Nevertheless, he concluded that he was satisfied beyond reasonable doubt that the appellant assaulted Mr Afonso. The Magistrate saw and heard the witnesses.
The Magistrate considered that after the assault, the appellant could have been driven back to work by the accomplice, arriving at or near enough to 9:45 am. It was open to the Magistrate to conclude that the appellant’s absence from work was not noticed. The Magistrate emphasised that in her first affidavit, Howard was not able to confirm whether the appellant had taken a fifteen-minute break. After reflecting upon the affidavits and evidence of Howard, the Magistrate concluded that her evidence did not raise a reasonable doubt that the appellant was the assailant.
In my view, the reasoning of the Magistrate was not “impermissible speculation”, as contended by the appellant in his grounds of appeal. Rather, the Magistrate was merely demonstrating why the evidence of Hopper and Howard did not provide an alibi for the appellant and, in his view, why it did not give rise to a reasonable doubt that the appellant was the assailant.
The Magistrate correctly reminded himself that the appellant bore no onus of proof and that it was for the prosecution to establish beyond reasonable doubt that the appellant was the assailant. The Magistrate was satisfied beyond reasonable doubt that the appellant was the assailant, having regard to the identification evidence of Berresford and Afonso and taking into account various items of circumstantial evidence, including the fact that the person using the compressor had access to the interior of the Celica and the illogicality of persons with no proprietary interest in the vehicle attempting to remove from it the clamp.
In my view, there is no basis for finding that the Magistrate failed to give adequate reasons for his judgment. The Magistrate explained clearly which evidence he accepted and his reasons for accepting it, as well as explaining why he did not consider that the evidence of Howard and Hopper gave rise to a reasonable doubt. No error in the Magistrate’s reasoning has been demonstrated.
Conclusion
No basis has been demonstrated for this Court to interfere with the findings. I would dismiss the appeal.