Bullman v Debnam - [2010] ACTSC 97

MELANIE BULLMAN v DANIEL VICTOR DEBNAM [2010] ACTSC 97 (13 September 2010)

APPEAL – failure to challenge admissibility of evidence in Magistrates Court – wish to save time in Magistrates Court not an excuse sufficient to justify raising admissibility on appeal.

EVIDENCE – whether identification evidence was evidence of opinion or evidence of fact – identification of witness’s own remembered observation with later observation not opinion evidence.

EVIDENCE – whether failure to hold identification parades deprived defendant of chance of acquittal – considerations in whether to hold identification parade – nature and circumstances of witnesses’ observations – scope for accused person changing appearance in relevant respects – no obligation to hold identification parade if any result would be unreliable.

EVIDENCE – whether treatment of identification evidence resulted in unsafe and unsatisfactory verdict – whether evidence should have been excluded as unfairly prejudicial – whether Magistrate was sufficiently aware of potential unreliability of identification evidence – prosecution required to establish defendant’s guilt beyond reasonable doubt, not required to disprove defendant’s evidence beyond reasonable doubt.

Evidence Act 1995 (Cth), ss 114,114(2)(b),114(3),137

Magistrates Court Act 1930 (ACT), s 216

Evidence Act 1995 (NSW), Pt 3.3, s 76

Alexander v The Queen (1981)145 CLR 395

Bradley John Murdoch v The Queen [2007] NTCCA 1

Liberato v The Queen (1985) 159 CLR 507

M v The Queen (1994) 181 CLR 487

R v Adam Drollett [2005] NSWCCA 356

R v Williams [1983] 2 VR 579

Smith v The Queen (2001) 206 CLR 650

Australian Law Reform Commission, Evidence, Report No 26, volume 1 (1985)

Odgers S, Uniform Evidence Law (Thomson Reuters: 9^th ed, 2010)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 10 of 2009

Judge: Penfold J

Supreme Court of the ACT

Date: 13 September 2010

IN THE SUPREME COURT OF THE )

) No. SCA 10 of 2009

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MELANIE BULLMAN

Appellant

AND: DANIEL VICTOR DEBNAM

Respondent

ORDER

Judge: Penfold J

Date: 13 September 2010

Place: Canberra

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Counsel be heard on whether any consequential orders are required.

Introduction

1.Melanie Bullman was convicted on 3 February 2009 of one count each of exceeding the speed limit, failing to have her seatbelt properly adjusted and fastened, and furious driving. She was fined on each count, and on the furious driving count was disqualified from holding or obtaining a driver licence for three months. She has appealed against her convictions.

Background

2.The charges were laid as a result of an incident in which a car belonging to the appellant, being driven by a woman, and carrying no passengers, was stopped by police conducting speed checks on Parkes Way under Commonwealth Avenue Bridge around 9.45 am on 26 November 2007. Police had recorded the car travelling at 100 kph in an 80 kph zone, and flagged it down.

3.Constable Daniel Debnam approached from the median strip to within two metres of the driver’s side window, which was down, and directed the driver to pull over. He had a clear view of the driver, whom he described as a female with solid build, long brown hair, a bit scruffy or messy but not overly curly, a round face with heavy make-up, especially eye make-up, that looked like the night before’s make-up, and wearing a dark-coloured top. The conversation lasted about 10 seconds, and Constable Debnam recalled looking straight at the driver while talking to her.

4.Instead of complying with Constable Debnam's direction to move into the left lane, the driver accelerated, and the car sped away at high speed along Parkes Way and turned left onto Coranderrk Street. A police car pursued the car from Parkes Way but lost sight of the car on Coranderrk Street. Several members of the public observed the car, and its driver, as the car travelled along Coranderrk Street, through the intersection with Constitution Avenue, and into the car park of an apartment complex. One of them spoke to the driver after she got out of the car, and two others saw a woman leaving the car park shortly afterwards.

5.When police located the appellant’s car, they found it unlocked with the windows still down, and inside the car they found a handbag and purse containing various forms of identification in the appellant’s name; they included a passport and other photographic identification, as well as a Medicare card and membership cards for several clubs.

6.At about 2:50 pm that day, the appellant went to the City Police Station seeking to report her car stolen, but Constable Debnam, who was called out to speak to her, refused to accept the report. He told her that he believed her to have been the driver of the car, and asked if she had any way of corroborating her claim that the car had been stolen, but no such information was provided. Her clothes, hair and make-up differed from those of the woman earlier seen driving the car; her hair was clean and tidier and had been “combed or changed somehow” and her make-up was fresh. Despite this, Constable Debnam believed he could identify her as the woman he had earlier observed.

7.Constable Debnam conceded at the Magistrates Court hearing that once he saw the photographic identification documents, he formed the opinion that the person identified by those documents was the person he had seen driving the car. This was despite the fact that the hair of the woman shown in the passport photograph was straight and the photographed woman had a somewhat heavier build than the driver of the car, whom he had described as of solid build.

8.At the hearing in the Magistrates Court, Constable Debnam and three members of the public gave oral evidence, and statements by several other witnesses were admitted. Only Constable Debnam identified the appellant as the driver of the car; other witnesses who had observed the car and driver gave general descriptions of the driver, which were generally consistent with Constable Debnam's description. The Magistrate did not comment directly on any similarity between the witnesses’ descriptions and the appellant’s appearance, but did so indirectly when he noted the “extraordinary coincidence” that the thief whom the appellant said had stolen her car was a female of about the same age and description as the appellant.

9.The appellant also gave evidence, in which she denied having been the driver of her car when it was seen by police, and said that the car, with her handbag on the seat, had been stolen from her driveway on the morning of the incident.

The appeal

10.The grounds of appeal were initially specified as follows:

(a)the learned Magistrate erred in the admission and consideration of identification evidence;

(b)the appellant lost a chance of acquittal due to the respondent’s failure to hold an identification parade;

(c)the convictions were unsafe and unsatisfactory.

11.However, in the course of the appeal hearing counsel canvassed several different arguments, and at times seemed to change his mind about what he was really arguing. I have attempted to make some sense of counsel's arguments in order to be able to respond to them, but in doing so I have not followed the arguments exactly as counsel made them.

Appeal ground (a): Error in the admission and consideration of identification evidence

12.The appellant’s submissions can be summarised as follows:

(a)The identification relied on by the prosecution was Constable Debnam's “recognition” of the woman shown in the photographic identification documents as the woman he had spoken to for 10 seconds some two or three minutes earlier.

(b)This was not in fact identification evidence but opinion evidence and accordingly inadmissible on the authority of R v Adam Drollett [2005] NSWCCA 356 (Drollett).

13.The appellant’s counsel had some difficulty articulating the appeal ground based on what he said was the inappropriate use of “opinion evidence”, but in argument it emerged along the following lines:

(a)When the informant found abandoned the car he had previously seen during the traffic stop, with the handbag in it, he formed the opinion that the most recent driver of the car and the owner of the handbag were the same person.

(b)Having formed this opinion, he then found the photographic identification of the appellant in the handbag, and formed the further opinion that the owner of that identification was the person who had been driving the car when he originally pulled it over. In counsel’s words, “any similarity between that person in that photograph and the person who was driving leads to error”.

14.There are several flaws in this argument.

15.First, the informant’s view about the link between the driver who had abandoned the car and the owner of the handbag found in the car seems to have been an inference drawn by the informant in the course of his investigation, rather than an opinion of which he was giving evidence. The identification he relied on was his identification of the person shown in the photographic identity documents (and in due course the person he saw at the police station) as the person he had seen driving the car that he had pulled over for speeding. There was no “opinion evidence” involved. If Constable Debnam had, for instance, found a handbag containing only non-photographic identification and had sought to draw a link between the owner of the handbag and the most recent driver of the car in reliance on his opinion that the most likely person to abandon a handbag in a car is the owner of the handbag, then there would have been an issue about opinion evidence, but it would not have been an issue in the nature of the particular issue that was considered in Drollett.

16.The “opinion evidence” in Drollett was of a different nature, being evidence given by a Corrective Services Officer that a person shown on CCTV film of a melee in a prison yard was the accused. The officer had not witnessed the part of the incident depicted in the film; Simpson J (McClelland CJ and Rothman J agreeing) said at [56] and [57]:

Mr Stephens was not giving evidence that the footage represented what he had observed and which therefore illustrated his account of the event. The footage represented an event which he had not personally observed, except for a very small portion. When he purported to identify the appellant on the footage, he was not doing so by reference to something he had observed or of which he could give oral evidence that was illustrated by the film. Here the primary evidence was the film footage. Mr Stephens’ evidence was no more than an educated interpretation of what was depicted in the footage

It was, therefore, opinion evidence.

17.As opinion evidence it was inadmissible under s 76 of the Evidence Act 1995 (NSW) because it was not covered by any of the exceptions set out in Part 3.3 of that Act.

18.In this case, Constable Debnam’s evidence was of the similarity between the person he saw at the traffic stop and the person depicted in the photographs he saw shortly afterwards.

19.The lack of a real dividing line between evidence of opinion and evidence of fact (into which category admissible identification evidence generally falls) is mentioned in Drollett at [53]. Clearly, the identification of a remembered observation (of a person or image) with a later observation (also of a person or image) includes an element of opinion, but it will be an opinion that is not available to be formed by anyone except the person making the identification by comparing previous and current images in his or her mind. In contrast, the comparison of two immediately available images, such as a person sitting in court and film of a person committing an offence, can generally be done by anyone, including a jury, and in such a case evidence of a witness’s opinion about the result of the comparison is either irrelevant, or it is inadmissible opinion evidence (those two approaches were taken by different members of the High Court in Smith v The Queen (2001) 206 CLR 650).

20.I am satisfied that Constable Debnam’s identification of the appellant as the driver of the car he had pulled over was identification evidence rather than opinion evidence.

Appeal ground (b): Failure to conduct identification parades

21.It was conceded on behalf of the appellant that s 114 of the Evidence Act 1995 (Cth) (in particular s 114(2)(b)) would not have required the conduct of an identification parade to test Constable Debnam's capacity to identify the appellant, because of the effect on him of finding the photographic identity documents.

22.However, counsel argued that identification parades should have been held for one and possibly two or three of the civilian witnesses who, he said, “had a clear view of the driver”. None of the witnesses concerned (Mr Forster, Ms De Rooy and Ms Quinn) gave identification evidence before the Magistrate; they only gave descriptions of the woman they saw, so there was no argument that the failure to hold an identification parade rendered any of their evidence inadmissible under s 114.

23.Rather, the argument was that if identification parades had been held and the witnesses had failed to identify the appellant as the woman they saw, that evidence would have had to be put before the Magistrate and that in turn would have raised doubts about the reliability of Constable Debnam's identification of the appellant. Thus, the appellant’s counsel argued, the appellant lost a chance of acquittal because no evidence of the witnesses’ failure to identify her in an identification parade, which was a real possibility in the circumstances, had been put to the court.

The evidence of Mr Forster

24.Mr Forster saw the car being driven at what he thought was excessive speed along Coranderrk Street. When the car turned into the car park he stopped his car and walked into the car park to confront the driver. His evidence of his encounter with the driver was as follows:

And did you have a clear view of the driver?---Yes, she was only, you know between 5 and 10 metres away. It was an uninterrupted view. There was no cars in between because we were at the other side of the car park.

And how would you describe the driver?---What, physically or - - -

Yes?---Yes, I think she was, you know, sort of between, you know, mid-20s to 30, around that. I’m not that good with ages. But dark hair, fairly heavily set but not - not, you know, overweight but definitely not skinny.

And you said something to her?---Yes, I said to her, you know, “What do you think you’re doing?”

And did she say anything?---She said - I can’t recall the exact words but something to the effect of, “My boyfriend’s,” - she was on the phone. I don’t know whether she was actually talking to somebody but - - -

On a mobile phone?---maybe just ringing or somebody had rung her, I don’t know. And she said, “My boyfriend’s chasing me.” And whilst I was walking over to her I could hear a police car come, you know, in front of Glebe Park there and then turned and went up the side street, not sure of the name of it, or that’s where it sounded like. And I said - and I said to her, “Are you sure it’s not the police chasing you?” Or, “I think it may be the police chasing you.”

And then what did she do?---She just didn’t answer, just turned and, you know, walked away. Not ran away but walked away very quickly towards - into the Boolee Street exit of the apartments and I didn’t see her after that, I don’t know.

Now, when you were having this brief conversation was the driver stationary or was she still moving?---No, she was stationary. She turned around to look at who was talking to her.

So you got a clear view of her face?---Yes.

...

Did you notice whether the driver was wearing makeup or - - -?---I would have thought not. Didn’t look as though the driver was going to an office job or something like that, just looked as though she was in casual attire and was - - -

25.Mr Forster was not cross-examined on this evidence.

26.It is apparent that Mr Forster gave a description of the woman he spoke to that was generally consistent with the informant’s description (apart from his comment about her make-up), but did not purport to identify the appellant as the woman he saw. He did not give identification evidence. Section 114 is therefore not directly applicable in a consideration of whether an identification parade should have been held. However, the s 114(3) matters that are relevant to the reasonableness of not conducting an identification parade are usefully considered.

27.Those matters are as follows:

(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:

(a) the kind of offence, and the gravity of the offence, concerned; and

(b) the importance of the evidence; and

(i) if the defendant failed to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and

(ii) in any case—to whether the identification was made at or about the time of the commission of the offence; and

(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.

The kind of offence and its gravity (s 114(3)(a))

28.As indicated by the maximum penalty for each offence, none of the offences concerned is a serious offence in the overall scheme of things. The penalties imposed were the maximums for the speeding and seat belt offences, but the penalty imposed for furious driving was relatively light (a $400 fine compared with a maximum penalty of $11,000 and 1 year’s imprisonment). The licence disqualification was an automatic consequence of the appellant’s conviction for furious driving.

29.None of the offences seem to me to be sufficiently serious to justify an expectation that an identity parade should be conducted, especially for a witness who had only a very brief encounter with the offender.

The importance of the evidence (s 114(3)(b))

30.A positive identification by Mr Forster would not have been unhelpful to the prosecution, but in my view, a failure by Mr Forster to identify the appellant in an identification parade would not have established anything. In expressing this view I note that, although he said he had a clear view of her face at one point during the brief conversation, Mr Forster was unable to describe the driver of the car in anything but the most general terms, and his very brief conversation with the driver was conducted at a distance of 5 to 10 m.

The practicality of holding an identification parade (s 114(3)(c))

31.The appellant was not invited to take part in an identification parade, so there is no basis for a finding that she would have failed to co-operate. I note the description in the police statement of facts of the appellant as “agitated and belligerent” during her visit to the City Police Station, and also that she declined to take part in a Taped Record of Interview; but I cannot rule out the possibility that she might have been more co-operative if she had been offered an opportunity to take part in an identity parade, and had been advised by her lawyer that a failure to identify her would possibly weaken the police case against her.

The appropriateness of holding an identification parade (s 114(3)(d))

32.There was no prior relationship between Mr Forster and the appellant such as to render an identification parade inappropriate. However, as mentioned, Mr Forster gave only a very general description of the driver, which would have made it difficult to find other sufficiently similar participants for an identification parade. In particular it should be noted that all aspects of Mr Forster's description other than age range and build could easily have been changed in the course of several hours, let alone several days. If, at an identification parade organised by reference to Mr Forster's description, the appellant had presented with tidy straight blonde hair and fresh but distinctive make-up, the identification parade would have been at best worthless.

Conclusion – argument relating to Mr Forster

33.Having regard to the matters mentioned in s 114(3) of the Evidence Act, I consider that it would not have been reasonable for police to have tried to conduct an identification parade for Mr Forster. Where, because of the nature and circumstances of the witness’s observations, it is quite likely that a particular witness would not find it easy to identify the real offender anyway, there would be reason to believe that whatever result an identification parade produces would not be reliable. I cannot see that police are obliged to conduct an identification parade in such circumstances.

Other witnesses

34.Two other civilian witnesses saw the driver of the car in a situation in which an identification might have been feasible. Ms De Rooy and Ms Quinn, who saw the driver from a second floor balcony overlooking the car park concerned, gave evidence. Ms De Rooy said:

And while you were sitting there what did you hear? What happened?---First of all I heard sirens and that went on for about a minute and that sort of alerted you. And then about a minute or two later a red car came around the corner of the apartments and - very fast, and went into the underground parking and a few seconds later a person - a woman got out of the car and ran towards Boolee Street.

Now, this person who got out of the car, this female driver - well, firstly, did you see anyone else get out of the car?---No, no.

Now, about how far away do you think you were from the driver?---Look, I - 50, 100 metres, 75 metres.

And I notice you’re wearing glasses today?---Yes.

Do you need glasses to see, like, long distance? Yes, I do, yes.

Did you have your glasses on that morning?---I think if they weren’t on they would have been on when I heard the sirens because they were out on the table with me with the coffee, so - - -

So you had them on - - -?---And I know - yes, yes. - - -when you saw the driver? ---I think so, yes.

How would you describe the driver from what you can remember, what you saw?---a woman with dark brown hair, longish wearing a blue skirt and - yes.

Build ...(indistinct)... ?---You know, I really can’t describe the build. I just remember seeing the woman alight - well, she didn’t - I didn’t see her alight from the car but I saw her alight from the car park running. And the dark - long, dark brown hair. I’d say average build. Certainly wasn’t fat but - - -

HIS HONOUR: Sorry, I missed the last bit?---Certainly wasn’t fat but - yes.

MR WANIGARATNE: Did you get a view of her face at all?---No, no. The distance was too - and really, she was running towards Boolee Street so she had her back to me.

Now, was it running or was it fast walking or - - -?---It was running.

Did you notice if she was carrying anything?---No, I didn’t. Didn’t.

And while she was running away from the car did you keep a constant watch?---Yes, yes.

And then did you see her disappear off somewhere?---Yes, she disappeared around the corner of the apartment and that, I believe, was Boolee Street, and then came back again and had a look and the second time she disappeared I didn’t see her after that.

35.Ms Quinn’s evidence was as follows:

And around about this time, about 10 am, you saw something?---Yes, we heard sirens and then saw a red car come in via - I think it’s Coranderrk Street, something like that.

Yes, Yes?---Come in the driveway of the units and park under the - under the tennis courts.

Now, the car, was it driving quickly or slow?---Very quickly.

And you saw the car park somewhere?---I didn’t actually see it park because the tennis courts were there and the woman had parked at the end of the undercover.

Did you see anyone come out of the vehicle?---Not actually see her out of the vehicle but the same person a little bit later near Boolee Street and coming in and out of the entrances as though she was trying to hide.

Now, the glasses you are wearing today - - -?---Same glasses.

Yes, you were wearing - - -?---I always wear them, yes.

Yes, and you wear them to see long distances?---Yes.

Now, how would you describe the person who you saw was walking away from the vehicle?---Physically?

Yes?---Shoulder length hair, around about to here, dark hair, wearing a dress or either a top and a skirt, I’m unsure about that. And just looking very frightened and - - -

Did you get a view of her face at all?---Yes, I did, as she was driving past and also at a distance and then later at the police station.

And did you notice anything else about her? Not really, no.

36.Counsel for the appellant said in his written submissions that:

The primary evidence for the Prosecution was the evidence of the informant. The other witnesses had seen the driver in more reliable circumstances but were not asked to identify the driver. This was highly prejudicial to the appellant and she lost a chance of acquittal.

37.It is not clear to me that the civilian witnesses saw the driver in “more reliable circumstances” than those experienced by Constable Debnam, and the greater reliability of those circumstances was not articulated by counsel.

38.Constable Debnam may well have been expecting some kind of negative reaction from the driver he had pulled over for speeding, as well as needing to remain conscious of his own safety. Mr Foster was, without the authority of a police officer, volunteering for a likely confrontation with a person whose behaviour had already indicated to him a disinclination to comply with the law and community expectations to drive in a responsible manner. It may be that the two women made their observations in a less highly-charged environment than either of those men.

39.On the other hand, the two women were quite a long way (on the second floor, and according to Ms De Rooy 50 to 100 m away) from the driver they observed leaving the car park. Both of them admitted to needing glasses for distance vision, although it seems that both of them were wearing their glasses at the time. Neither of them had any direct encounter with the woman, or even an opportunity to observe her at close quarters.

Conclusion – argument relating to other witnesses

40.Having regard to circumstances of their observations of the driver, and the generality of the descriptions given by the two women, I consider that there would have been even less reason to hold an identification parade in relation to Ms De Rooy than there was in relation to Mr Forster, and no basis at all for asking Ms Quinn to observe an identity parade.

Conclusion – failure to conduct identification parades

41.I note in this context that any identification parade would have taken hours, and perhaps more likely days or weeks, to organise, whereas Constable Debnam’s identification was made within a few minutes of his encounter with the driver of the car. Neither an identification of, nor a failure to identify, the appellant at such an identification parade would have carried nearly as much weight as Constable Debnam’s almost immediate identification.

42.Furthermore, given the circumstances outlined, even if identification parades had been held for one or more of the civilian witnesses, there is no basis to assume that a failure by one or more of those witnesses to identify the appellant would have led to an acquittal in the Magistrates Court. I can see no basis for finding that the failure to conduct identification parades for the civilian witnesses deprived the appellant of a real chance of acquittal.

Appeal ground (c): Unsafe and unsatisfactory verdict

43.M v The Queen (1994) 181 CLR 487 (at 493) sets out the test for whether a verdict should be treated as unsafe or unsatisfactory; the question in this case was whether upon the whole of the evidence it was open to the learned Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.

44.There were two separate elements to counsel’s argument that the verdict was unsafe or unsatisfactory.

Need to exclude evidence or give unreliability direction

45.First, counsel argued that the verdicts in this case were unsafe and unsatisfactory because:

(a)either Constable Debnam's identification of the appellant as the person who was driving her car when it was recorded speeding on Parkes Way should have been excluded because its probative value was outweighed by the danger of unfair prejudice to the appellant (s 137, Evidence Act), or the Magistrate should at least have directed himself that the evidence was unreliable; and

(b)in the absence of the identification evidence, or if that evidence had been subject to an unreliability warning, the prosecution case could not have been made out beyond reasonable doubt.

Exclusion of evidence because of unfair prejudice

46.In arguing that the identification evidence should be excluded, counsel submitted that the probative value of the identification evidence was not high, first because identification evidence is generally recognised as potentially unreliable and secondly because the value of Constable Debnam's identification of the person shown in the appellant's photographic identity documents as the driver of the car was further reduced by his expectation that the driver of the car was the owner of the handbag that had been abandoned in the car. The identification evidence’s arguably low probative value was, counsel said, outweighed by the danger of unfair prejudice to the appellant.

47.I am satisfied that Constable Debnam’s identification of the driver of the car as the person shown in the photographic identification documents was not irrertrievably compromised by his opinion about the likely owner of the handbag. Rather, it was equivalent to Joanne Lees’ spontaneous identification of Bradley Murdoch as her attacker when she saw a photograph of him on an internet site that she had visited for a different purpose. In Bradley John Murdoch v The Queen [2007] NTCCA 1, the Northern Territory Court of Criminal appeal said at [77] to [81]:

The learned trial Judge clearly recognised that any knowledge that Ms Lees may have had, at the time of spontaneous recognition, of the fact that the appellant was a suspect in relation to the events at Barrow Creek was a less than ideal situation. However, he considered that, given ultimate appropriate directions and warnings, whether the spontaneous recognition was reliable or whether it was adversely affected by the circumstances, including any content of the article read by Ms Lees, were essentially questions of weight for the jury.

That was a view to which he was properly entitled to come. Having regard to what he accepted was the spontaneity of the recognition, the potential for unfair prejudice did not outweigh the considerable probative value of the evidence. The learned trial Judge was justified in declining to exclude it in the exercise of his discretion.

Applying the test enunciated in Alexander, this was not a situation in which the learned trial Judge ought necessarily have been compelled to the conclusion that the evidence proposed to be led was of little weight, as well as grossly prejudicial to the accused person. Moreover, the directions that he gave the jury in relation to the evidence in question were appropriate to the situation and would have ensured that the jury reviewed and weighed the material before them in a correct and balanced fashion.

It was submitted on behalf of the appellant that, in concept, the situation was akin to and no different from a situation in which a police officer had approached Ms Lees, provided her with the information contained in the web site article, produced the relevant photographic image and then posed to her the question “Is that the man you saw on 14 July 2001?”.

We disagree. In Williams, the subject person was seen to be a person obviously in custody being taken into the court room. The present appellant was known to be in custody and under suspicion of the Barrow Creek offences. However, the crucial common feature of Williams and the present case was the sudden, unexpected and incidental appearance of the person/image in the focus of the witness and the unsolicited and spontaneous reaction of that witness to what was observed.

48.Counsel struggled to explain the nature of the unfair prejudice, even after being referred to the description of “unfair prejudice” given by the ALRC (see Australian Law Reform Commission, Evidence, Report No 26, volume 1 (1985) at 957, quoted in Odgers S, Uniform Evidence Law (Thomson Reuters: 9^th ed, 2010) at [1.3.14740]) as follows:

There is some uncertainty over the meaning of “prejudice”. But, clearly, it does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have.

49.What counsel seemed to be submitting was that without evidence of a failed identification attempt by Mr Forster, the Magistrate was at risk of giving more weight to Constable Debnam's identification than he should have. The unfair prejudice was that the informant’s evidence would have been given too much weight by the Magistrate, because its probative value was not able to be tested by a comparison with any evidence that might have been obtained from an identification parade involving Mr Forster.

50.Having regard to my conclusion at [33] above about whether Mr Forster should have been asked to observe an identification parade, I cannot see that this submission adds anything to the argument that the identification evidence should have been excluded.

51.Accordingly, I reject counsel’s submission that s 137 required Constable Debnam’s evidence to be excluded.

Warning about unreliability of evidence

52.In relation to his claim that the Magistrate should have warned himself about the unreliability of identification evidence, counsel said in written submissions:

The consideration was whether the Prosecution had established guilt beyond reasonable doubt and the obvious defects in identification of the driver and the unreliability of the prosecution evidence could not be not be bolstered or reinforced by analysis of the Appellant’s defence. The onus of proof does not shift and it always remained with the Prosecution. The approach taken by the Learned Magistrate in assessing and applying the evidence was inconsistent with the burden and standard of proof resting on the Prosecution and his Honour’s verdicts were consequently unreasonable.

53.The transcript shows, however, that that his Honour put a lot of effort into considering the significance and reliability of the identification evidence, and there is no basis on which I could find that he misdirected himself. At the same time he noted that the appellant's evidence had been full of “extraordinary coincidence”, “fanciful explanation”, and differences from what she had told police, and said: “I do not accept her as a truthful witness”. He concluded:

The police officer’s observations of the defendant were consistent with the observations of the other persons who saw the woman drive into the Monterey Apartments but in a more general sense. The time of the initial observation was not long. There was no criticism about the informant’s eyesight or any other characteristic that impeded his ability to observe the driver.

The informant is a trained police officer serving some four years with the AFP. It was only a few minutes of interval, that is two to three minutes, as he indicated in re-examination, between the observation of the driver and the viewing of the photograph of the defendant on the card and in the passport. The circumstances of the observation were not ideal however I accept that the officer did make a positive identification of the defendant.

I am satisfied in all the circumstances of the case that the driver of the motor vehicle on 26 November 2007 was Ms Bullman at the time [it] was initially stopped by the police, and she remained the driver until she alighted from that vehicle in the Monterey Apartments some minutes later.

54.I reject counsel’s argument that the identification evidence by itself could not have been sufficient to make out the prosecution case beyond reasonable doubt. The next step in counsel’s argument was that the evidence could not be raised to the necessary standard by “analysis of the Appellant’s defence”; in argument this emerged as covering both the Magistrate’s impression of the appellant when she gave evidence and an analysis of the content of her evidence. Because I have rejected the first step in this argument, that next issue does not arise.

55.Once there was evidence before his Honour that could establish the prosecution case beyond reasonable doubt, all that was necessary was that neither the appellant’s evidence, nor any other evidence, raised a reasonable doubt in his Honour’s mind.

Not enough to “prefer” the prosecution evidence

56.Counsel’s second argument that the verdicts were unsafe and unsatisfactory relied on Liberato v The Queen (1985) 159 CLR 507, which he said was authority for the proposition that “it is not enough to ‘prefer’ the evidence of the Crown over that of the defence”, but also for the proposition that “the defence case (if any) must be negated beyond a reasonable doubt”.

57.The first proposition is uncontroversial, but it is not clear that the second proposition is well-founded or at least that it applies in the way counsel sought to have me apply it. Certainly some kinds of defence cases, such as a claim of self defence, must be negated, but if counsel’s submission meant that the prosecution should have called evidence, for instance, that the appellant’s car had not been stolen on the morning of the incident, that submission must be rejected. In Liberato v The Queen, Brennan J said at 515:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

58.I do not understand Brennan J to have been saying that the prosecution must itself lead evidence to refute the defence case beyond reasonable doubt; rather, what is required is that there is evidence that the court accepts that establishes all the elements of the offence, and nothing that raises a reasonable doubt in the mind of the fact-finder about any of those elements.

59.It seems to me that the Magistrate was entitled to accept the prosecution evidence that the appellant was the person driving her car when it was pulled over, and if the appellant’s evidence did not raise any reasonable doubt about the prosecution evidence in his Honour’s mind, then he was entitled to be satisfied beyond reasonable doubt of the appellant’s guilt.

Conclusion – whether verdicts were unsafe or unsatisfactory

60.I can see no basis for saying that the verdicts of the Magistrate were unsafe or unsatisfactory.

Failure to challenge evidence in Magistrates Court

61.The identification evidence now objected to by the appellant was not challenged at the hearing. Since I have found against the appellant on the substantive arguments, it is unnecessary to consider whether the appeal grounds relating to the admissibility of the identification evidence should have been heard in any case.

62.However, I note that counsel for the appellant said that there was no tactical reason for the defence’s failure to object to the admission of the evidence. Rather, counsel explained, he refrained from objecting to that evidence because he wanted to save time by replacing arguments about admissibility with arguments about reliability and the use of the evidence. Without knowing why counsel saw it as particularly important to save time in this case, I cannot see that a decision to discard an available argument at the original hearing in order to save time provides any excuse for failing to raise that argument, or any justification for seeking to raise the argument on appeal.

Order

63.For the reasons set out above, the appeal is dismissed.

64.Under s 216 of the Magistrates Court Act 1930, the enforcement or execution of the Magistrate’s orders has been stayed by this appeal. I will hear counsel about whether I need to make any orders to take account of the effects of that stay.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 13 September 2010

Counsel for the applicant: Mr P Bevan

Solicitor for the applicant: BevanSnell Lawyers

Counsel for the respondent: Ms J Campbell

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 29 September 2009

Date of judgment: 13 September 2010