DURYEA v Police - [2006] SASC 54

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
DURYEA v POLICE
Judgment of The Honourable Justice Bleby (ex tempore)
21 February 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - GENERALLY
Appellant convicted of the offence of being on premises for an unlawful purpose - s 17 of the Summary Offences Act 1953 (SA) - Question of identity - Evidence of recognition led at trial - Recognition evidence contested - Whether the Magistrate erred making findings of fact - No grounds to disturb the Magistrate's findings of fact - Appeal dismissed.
Summary Offences Act 1953 (SA) s 17, referred to.
Fox v Percy (2003) 214 CLR 118, applied.
Festa v The Queen (2001) 208 CLR 593, considered.

DURYEA v POLICE
[2006] SASC 54
Magistrates Appeal: Criminal

BLEBY J (ex tempore) This is an appeal against a conviction in the criminal division of the Magistrates Court. The appellant was charged that on 6 November 2004 at Regency Park, he was on premises at 608 Grand Junction Road for an unlawful purpose, contrary to s17 of the Summary Offences Act 1953.
The premises were those of the appellant’s former employer, where the appellant had worked as a forklift driver. He was dismissed on 28 January 2004. The premises were those of a container depot, warehouse and rail freight loading depot. The offence took place at about 1.45 am
The issue at trial was the identification of the appellant as the offender.
The two principal witnesses for the prosecution were Paul Nihill and his step-son, Christopher Greenwood. Both were employees of the proprietor and were at work at the time, although Nihill had left the employment at the time of giving evidence. They identified the appellant as one of the intruders to whom they gave chase when they saw them. The appellant was well known to Nihill through their employment. He was known as Rob or Robbie. Nihill gave evidence that he got within two or three feet of the appellant and said, “Robbie, what are you doing here?” to which the person replied, “I’ve come to see you and Mattie”.
Nihill said that the person referred to him by name as Paul, and that he understood the reference to Mattie to be a reference to Matt Newman, another employee of the company known to both Nihill and the appellant. Nihill told the person to leave, but instead of going to the main gates, he went in the opposite direction to the perimeter fence where a hole had been cut and where he saw the other person whom he did not recognise.
Greenwood had only commenced employment with the company after the appellant’s termination. He said he had seen the appellant at the premises on six or seven occasions and had been introduced to him by name. He had seen the appellant talking to Matt Newman. In general, Greenwood’s evidence supported that of Nihill, but there were differences in detail. There may well have been some elements of unintended reconstruction. They were giving evidence over a year after the events. He deposed to a conversation between the appellant and Nihill as being between two persons who knew each other, and he recognised the person as the appellant.
The appellant in evidence denied that he had been at the premises that night. He was unable to explain where he had been other than by reference to his usual practice on a Saturday night. He had been interviewed by police some 24 days after the alleged offence.
In his statement to the police on the day of the offence, Greenwood described the person seen as being about 20 years of age, 70 kgs, 175 cm tall, caucasian, slim build with an olive complexion. He said: “He had short, nearly shaved dark brown hair and a small goatee beard. He was wearing cream coloured baggy cargo pants, a big bulky black jacket and a black baseball cap on”. During the course of his evidence he also said that notwithstanding that the person was wearing a cap, he could see below the cap that he had short dark hair.
Mr Nihill described the person on the night in question as wearing a dark top, white running shoes and moleskin or cargo trousers. He said in cross-examination that he was not wearing a cap and that he was bald, meaning that his head was shaven.
The defendant’s evidence was that whilst he had worked at the company in question, he had, for a time, had a shaven head, but he said that after leaving the company he had let his hair grow. He said that on 6 November 2004, he was not bald, but had a head of hair, although he did not suggest it to be long hair. He said he did not ordinarily wear a cap. The description of the appellant of the hair on his head was supported by video evidence of his police interview some 24 days later.
In his address at the trial, counsel for the appellant attacked the veracity of the two main prosecution witnesses because of the differences in their description of the person seen and other differences, compared with the evidence of the appellant who, it was submitted, was not shaken in cross-examination.
Although the Magistrate considered Greenwood not to be as good a witness as Nihill, he accepted his evidence to the effect that the conversation took place and that it could only have been between people who knew each other. He found that account “convincing and believable”. He also accepted Greenwood’s evidence that he had met the defendant, a fact which the defendant denied.
The Magistrate described Nihill as “an excellent witness”. He gave reasons for that. He regarded Nihill as a truthful and reliable witness whose evidence he should accept.
Of the appellant, the Magistrate said he did not find, in some particular respects, the defendant’s evidence to be satisfactory or believable. He was intelligent and clever but was not a patently honest and believable witness.
Evidence was also given by the three civilian witnesses for the prosecution as to damage to tarpaulins on railway trucks in the yard noticed that night, although the description of the damage was not identical. Greenwood’s evidence was accepted that he had tied the apparently undamaged tarpaulins down shortly before the intruders were seen. They were first seen in the vicinity of the railway trucks.
From that evidence and no doubt from the evidence of their withdrawal via the damaged perimeter fence, the Magistrate inferred that the intruders had caused the damage and were therefore on the premises for an unlawful purpose.
The appellant appeals against the findings of the Magistrate on the contested evidence, particularly of Nihill and Greenwood.
It is well established that an appellate court will only interfere with findings of fact based on the credibility of witnesses when incontrovertible facts or uncontested testimony demonstrate that the primary judge’s conclusions are erroneous, or where the findings were glaringly improbable, or contrary to compelling inferences in the case: Fox v Percy.[1] In this case there were no incontrovertible facts or uncontested testimony which require a conclusion different from that of the Magistrate. Nor were his findings glaringly improbable or contrary to compelling inferences in the case.
[1] (2003) 214 CLR 118.
The fact that two prosecution witnesses gave slightly different descriptions of the person they saw that night, does not undermine the Magistrate’s findings as to the identification of the appellant. It is not surprising that one year later, when asked to describe the person they saw, they included elements of his description as they remembered the appellant from earlier occasions in their association, but which were not accurate descriptions of how the appellant in fact looked in the dark on the occasion in question.
What was important in the identification process was the evidence of the conversation given by both witnesses, which could only have been of a conversation with a person known to Nihill. The Magistrate was entitled to place the weight that he did, along with other reasons he gave for accepting the versions of Nihill and Greenwood, on that evidence.
It was a case not of doubtful identification, but one of recognition of someone known to both witnesses. The evidence did not suffer the difficulties identified by the High Court in Festa v The Queen.[2]
[2] (2001) 208 CLR 593.
Although Mr McShane said all he could in support of the appeal, there is no basis on which the Magistrate’s findings of fact can be disturbed. The appeal is dismissed.