Dennis v Davis

Case [2010] NTSC 35

Dennis v Davis [2010] NTSC 35

PARTIES:  DENNIS, Gregory James
v
DAVIS, Stuart Axtell
TITLE OF COURT:  SUPREME COURT OF THE
NORTHERN TERRITORY OF
AUSTRALIA AT DARWIN
JURISDICTION:  SUPREME COURT OF THE
NORTHERN TERRITORY
EXERCISING APPELLATE
JURISDICTION
FILE NO:  JA 52 of 2009 (20916544)
DELIVERED:  30 June 2010
HEARING DATES:  21 May and 21 June 2010
JUDGMENT OF:  SOUTHWOOD J
APPEALED FROM:  WALLACE SM
CATCHWORDS: 

CRIMINAL LAW – Appeal against convictions – miscarriage of justice – identification evidence – need for magistrates to expressly warn themselves about identification evidence – circumstantial evidence – verdict not supported by the evidence – appeal allowed – convictions set aside – retrial ordered – appellant acquitted of one count of assault

Criminal Code s 188(1) and (2)(b)(c) and (k)

Criminal Procedure Act 1986 (NSW).

AK v Western Australia (2008) 243 ALR 409
Alexander (1981) 145 CLR 395
Bulejcik v The Queen (1996) 185 CLR 375
Burnett and Others v Director of Public Prosecutions and Another (2007) 21
NTLR 39
Boylan v Farthing (unreported, Supreme Court, SA, Full Court, No 94-1276,
27 April 1995).
Davies (1937) 57 CLR 170
Domican (1992) 173 CLR 555
Fleming v The Queen (1998) 197 CLR 250
Gikas v Police (1999) 202 LSJS 301
Grbic v Pitkethly (1992) 38 FCR 95
R v Green (2001) 78 SASR 463
Harwood v Police (1998) 71 SASR 300
Johnson v Giumelli (2003) 175 FLR 467
Kelleher (1994) 131 CLR 534
Kotz v Police (1999) 705 LSJS 176
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Mifsud v Campbell (1991) 21 NSWLR 725
Mombasa Pty Ltd v Nikic (1987) 89 FLR 411
Moores v Renting [2007] WASC 256
Parker v Espinoza (1996) 85 A Crim R 336
Peacock v The King (1911) 13 CLR 619
Pettit v Dunkley (1971) 1 NSWLR 376
Plomp v The Queen (1963) 110 CLR 234
Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1
Reid v Police [1999] SASC 474
Renehan v Leeuwin Ocean Adventure Foundation Limited (2006) 17 NTLR
124
Sharrett v Gill (1993) 65 A Crim R 44
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stirling v Police (1999) 30 MVR 123
Tatam v Svikart [1999] NTSC 54.

Australian Criminal Trials (Butterworths)

REPRESENTATION:

Counsel:

Appellant:  J C A Tippett QC
 Respondent:  M Nathan

Solicitors:

Appellant:  Maley’s Barristers & Solicitors
Respondent:  Office of the Director of Public
Prosecutions

Judgment category classification: C

Judgment ID Number:  Sou1006
Number of pages:  50
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Dennis v Davis [2010] NTSC 35

No. JA 52 of 2009 (20916544)

[2]

Jurisdiction, the trial magistrate found the appellant guilty of three counts of
assault, each with circumstances of aggravation, contrary to s 188(1) and
s 188(2) of the Criminal Code. The assaults were found to have been
committed in the wave pool in Darwin on 17 May 2009. The victims of the
assaults were respectively Miss TE, Miss RH and…

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Details
AGLC
Dennis v Davis [2010] NTSC 35
Case
[2010] NTSC 35
Decision Date

CaseChat Overview and Summary

In the case of Dennis v Davis, the appellant, Dennis, faced charges related to an incident that occurred at the Darwin Convention Centre wave pool on 17 May 2009. The case was brought before the court to resolve the fourth principal issue, which involved identifying and analysing the evidence pertinent to each assault charge against Dennis. Miss TE and Miss RH were the complainants who alleged that Dennis had inappropriately touched them in the wave pool. Miss TE testified that she was grabbed by a man who was wearing light grey board shorts, had pale white skin with freckles, and appeared to be around 46 years old. Miss RH, on the other hand, described the man as having grey and white hair with sideburns, wearing blue board shorts, and being about 36 years of age. The court needed to determine the accuracy and reliability of these descriptions, as well as the credibility of the complainants' testimonies.

The court examined the complainants' accounts and the circumstances surrounding the alleged assaults. It was crucial to establish whether the descriptions provided by Miss TE and Miss RH were sufficiently detailed and consistent to identify Dennis as the perpetrator. Additionally, the court assessed the reliability of the complainants' testimonies, considering factors such as their demeanour, consistency, and the context in which the events occurred. The court also took into account that neither complainant had the opportunity to formally identify Dennis through a board of photographs or an identification parade. The lack of formal identification procedures added complexity to the case, as it left room for doubt regarding the accuracy of the complainants' recollections.

The court concluded that while the complainants' descriptions of the man were reasonably detailed, there were inconsistencies in their testimonies that undermined their reliability. Miss TE's description differed significantly from Miss RH's, and neither description matched Dennis's appearance. Furthermore, the court found that the complainants' testimonies lacked corroboration and were not supported by other evidence. Given these factors, the court determined that there was insufficient evidence to prove beyond reasonable doubt that Dennis was the person who committed the assaults. Consequently, the court acquitted Dennis of all charges related to the alleged incidents.

The final orders of the court included the acquittal of Dennis on all charges related to the alleged assaults at the Darwin Convention Centre wave pool on 17 May 2009. The court's decision was based on the insufficient evidence to establish Dennis's identity as the perpetrator and the inconsistencies in the complainants' testimonies. The court's ruling highlighted the importance of detailed, consistent, and corroborated evidence in criminal cases, particularly when formal identification procedures are not conducted.

Orders

Orders of the court

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Background

Background to the litigation

In order to resolve the fourth principal issue at the trial of the appellant it was necessary to identify and analyse the precise evidence that was relevant to each charge of assault. Admitted facts On Sunday 17 May 2009, Miss TE went to the wave pool near the Darwin Convention Centre with Miss Jessica Agung and Jessica’s mother, stepfather, stepbrother and little brother. They arrived at the wave pool at 9.50 am. The wave pool opened at 10.00 am. Miss TE gave the following description of the man. He had greyish short spiky hair and he was of a medium build. She estimated he was 46 years of age. The man was a white fellow. He had pale white skin with freckles. He was a white guy, pasty white, pale white. He had freckles on his arms. She cannot remember if he was hairy or not. The man was wearing light grey board shorts with a pattern. He was not wearing a shirt or a hat and he did not have any glasses on. There was nothing else peculiar about him. About 20 minutes after the incident involving her occurred she met up with Miss AH. They swam to the wall on the left side of the wave pool near the lane ropes and the Vibe Hotel. They were in the deep part at the end of the wave pool. The waves were going. They were treading water near the wall when the man who grabbed her on the waist appeared again. He was right It was a bit quieter at that location where Miss TE saw the man on the second occasion than elsewhere in the wave pool, but an occasional person still went past them. The closest people to them were about five metres away. There may have been one or two people swim past them. Later on, Jessica pointed to a man who was sitting in the Vibe Hotel café with a boy who appeared to be about 13 years of age. The man was wearing a pink shirt. Miss TE was not that close to him when he was pointed out. She was not 100 per cent sure he was the man who grabbed her. He vaguely looked like him but she was not 100 per cent sure. Miss TE did not see the man again at any other stage during the day. She left the wave pool with Jessica’s family and went home before the police arrived. At no stage was she asked by the police to identify the accused from a board of photographs or at an identification parade or at all. The evidence of the complaint made by Miss TE Miss RH gave evidence that soon after she arrived at the wave pool, which was at about 10.30 am, Miss TE told her that while she was in the shallow area of the wave pool a man had touched her or grabbed her when she went Miss RH asked Miss TE who it was who grabbed her. She was told to turn around and Miss TE pointed at the man. The man was standing up in the water. He was about one to two metres away. Miss RH estimated that the man was 36 years of age. He had white skin, grey and white hair with sideburns and he had a bit of a belly. He was of medium height. He had a stocky build and he was wearing blue board shorts with white stripes on the side. The board shorts went to his knees. The man was not wearing anything on the upper part of his body or on his head or on his face. The evidence of Miss RH

Evidence

Evidence Before The Court

Miss RH asked Miss TE who it was who grabbed her. She was told to turn around and Miss TE pointed at the man. The man was standing up in the water. He was about one to two metres away. Miss RH estimated that the man was 36 years of age. He had white skin, grey and white hair with sideburns and he had a bit of a belly. He was of medium height. He had a stocky build and he was wearing blue board shorts with white stripes on the side. The board shorts went to his knees. The man was not wearing anything on the upper part of his body or on his head or on his face. The evidence of Miss RH She turned around as soon as it happened. She saw a man’s head. He was about one metre away from her and he was smiling at her. The man was within touching distance of her. There were other people in the wave pool but no-one else was close by. There was just her and Miss TE. Miss TE was further away than touching distance. She looked at the man and then she swam away. She swam back to her friends and she told them she had been touched. The man was the man who she described before[23] as the man who Miss TE pointed out to her. He had grey hair and white sideburns with a bit of a belly and he was about 36 years of age. The man had white skin. He was pale. He was of stocky build. After the incident involving Miss RH occurred, she and Miss TE went and spoke to her sister who was near the shallow end of the wave pool. She told her sister that both she and Miss TE had been touched. Miss TE did not speak to her sister. After they spoke to her sister they kept swimming at the back of the lane rope. After they had been swimming for a while, Miss AH told Miss RH that she the man in the wave pool. However, she and the lifeguard walked closer to the gate in the enclosure surrounding the wave pool and she noticed the man was sitting eating lunch in the Vibe Hotel café and she pointed him out to the lifeguard. When she noticed the man she was inside the wave pool area near a blue umbrella under a palm tree. She saw a man sitting down eating his lunch. She could see the whole man. She knew it was the same man because she had previously pointed the man out to her sister. Her sister had identified him as someone who was wearing a pink shirt and the man in the Vibe Hotel café was wearing a pink shirt. Her sister was with her and the lifeguard when the man was identified. She was also able to identify the man because he was wearing the exact same board shorts he had been wearing when she saw him in the wave pool. They were blue with white stripes. She also observed his sideburns and the colour of his hair. She was 100 per cent certain that it was the same man. The lifeguard said he could not do anything because the man was no longer in the wave pool complex. Miss RH said when she saw the man seated in the Vibe Hotel café she was about eight to ten metres away. The man looked like the person who she saw in the pool. She did not think she had made a mistake in identifying him. After Miss RH saw the man in the Vibe Hotel café, she and Miss AH went Miss AH yelled out to Miss RH’s sister and Miss AH’s cousins then swarmed him.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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