Gooda v Burrows
[2020] ACTSC 187
•8 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gooda v Burrows |
Citation: | [2020] ACTSC 187 |
Hearing Date: | 8 July 2020 |
DecisionDate: | 8 July 2020 |
Before: | Murrell CJ |
Decision: | Appeal allowed. All verdicts of guilty set aside and substituted with verdicts of not guilty. |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Whether verdict unreasonable – Identification evidence |
Legislation Cited: | Crimes Act 1900 (ACT) s 318(2) Evidence Act 2011 (ACT) ss 116, 165 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20(1) |
Cases Cited: | Burrows v Gooda (ACT Magistrates Court, Acting Chief Magistrate Theakston, 1 April 2020) ED v The Queen [2019] ACTCA 10 M v The Queen (1994) 181 CLR 487 |
Texts Cited: | Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020) |
Parties: | Nicholas Brian Gooda (Appellant) Scott Lindsay Burrows (Respondent) |
Representation: | Counsel J de Bruin (Appellant) C Wanigaratne (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 19 of 2020 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Acting Chief Magistrate Theakston Date of Decision: 1 April 2020 Case Title: Burrows v Gooda Court File Number: CC 12730 of 2019 CC 12732 of 2019 CC 12733 of 2019 |
MURRELL CJ
Introduction
In the Magistrates Court, the appellant pleaded not guilty to charges that he had committed the following offences on 27 November 2019:
(a)Count 1: Dishonestly drive motor vehicle without consent, contrary to s 318(2) of the Crimes Act 1900 (ACT);
(b)Count 2: Drive in a way dangerous, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT); and
(c)Count 3: Drive motor vehicle with prescribed drug in oral fluid, contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT).
On 1 April 2020, Acting Chief Magistrate Theakston (the Magistrate) found that the appellant was guilty of all offences.
The appellant appealed against the findings of guilt on the ground that they were unsafe and unsatisfactory.
The appeal
An appeal pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) is by way of a rehearing. The question is “whether, upon the whole of the evidence, it was open to the jury [or in this case, the Magistrate] to be satisfied beyond reasonable doubt that the accused was guilty”: ED v The Queen [2019] ACTCA 10 at [43], referring to M v The Queen (1994) 181 CLR 487 at 494–495.
Although the appeal was framed as an appeal on the basis that the verdicts were unsafe and unsatisfactory, as recently explained by the Court of Appeal in Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33, the real issue is whether the verdicts were unreasonable, and for that reason resulted in a miscarriage of justice.
As there was no issue about the credibility of the critical witness, Senior Constable Burrows (in the sense that it was accepted that he was trying to tell the truth and was “certain” about his evidence), this Court is in almost as good a position as was the Magistrate to consider whether the officer’s evidence should be accepted beyond reasonable doubt, or whether, on the other hand, there was a reasonable possibility that he was mistaken.
Crown case
The Crown case was that, on the night of 27 November 2019, the appellant was the driver of a stolen vehicle in which two other people (Ms Monaghan and an unknown male) were passengers. The vehicle was driven in a dangerous manner.
At the hearing, the defence conceded that the vehicle had been driven dangerously and that the car had been stolen. The only issue was the identity of the driver.
There was no dispute that the appellant was an occupant.
Evidence
On 27 November 2019, Senior Constable Burrows was conducting mobile patrols of ACT suburbs on a marked police motorcycle.
At about 10:40 PM, he observed a vehicle travelling over the speed limit of 80 kilometres per hour. He activated emergency lights and a siren, and he signalled the vehicle to stop. The vehicle failed to stop. The officer noted the registration of the vehicle and broadcast those details on the police radio. At this point, Senior Constable Burrows had not clearly seen who was driving the vehicle.
Senior Constable Burrows decided that he would not continue to pursue the vehicle closely. However, he followed it at a greater distance and observed that it was driven very dangerously. At one point, it crossed to the wrong side of the road and, at another point, it travelled through a red light, narrowly missing another vehicle.
In response to the radio message, Senior Constable Bishop positioned himself to intercept the stolen vehicle and was able to deploy a tyre deflating device which eventually brought the vehicle to a stop.
Senior Constable Burrows, who was still following, braked his vehicle, engaged the clutch, and brought the vehicle to a halt about five metres behind the stolen vehicle. He switched off the motorcycle, removed the key and radio cord, and dismounted. Senior Constable Bishop's vehicle was to the left of Senior Constable Burrows' motorcycle and slightly behind it.
While stopping the motorcycle and dismounting, Senior Constable Burrows saw three doors of the stolen vehicle open simultaneously. In evidence, he said that a male exited the driver's side of the stolen vehicle. The male was of Aboriginal appearance, approximately six feet in height, and wearing no shoes. He was wearing shorts and a black shirt with a large white motif on the front. Another thin male wearing a dark hooded jumper and trousers exited the front passenger door. A woman (later identified as Ms Monaghan) exited the rear door on the driver's side, stopped, turned towards the officer and placed her hands above her head.
Senior Constable Burrows said that the appellant ran away, jumped over a gate or fence and was then joined by the other male, who also ran away. He radioed something to the effect of “two males on foot, heading in an easterly direction from McFarlane Burnett Avenue”.
Senior Constable Bishop said in evidence that he had observed a male wearing black shorts and a black t-shirt exit from the driver's door, and a male wearing long, dark coloured pants, a dark hooded jumper and joggers exit from the passenger door. A female exited from the rear door on the driver's side. In a contemporaneous broadcast, he said of the two males, “one of them is wearing a t-shirt”.
He did not record the description of the male whom he said had been in the driver's seat in his notebook and he could not recall what Ms Monaghan was wearing. Nevertheless, Senior Constable Bishop also expressed certainty about who had exited what door of the vehicle. The description that he gave in evidence was informed by CCTV images that he had later seen. For that reason, the Magistrate placed very limited reliance upon his evidence.
Senior Constable Bishop placed handcuffs on Ms Monaghan. She was wearing a light-coloured hooded jumper.
The appellant was apprehended a short distance away. He was wearing shorts and a black top with a large white motif. He was not wearing shoes.
The other male was not apprehended.
Senior Constable Burrows' evidence appeared to have been based on a statement that he made on 31 December 2019. Alternatively, it may have been based on his recollection of events about six months prior to giving evidence. Senior Constable Burrows had not had previous dealings with the appellant. However, he expressed “100 per cent” certainty that the appellant had exited from the driver's door.
Fingerprints matching the appellant's fingerprints were located on the rear passenger side window of the car. Fingerprints matching those of another male were found on the exterior rear passenger side window. Fingerprints matching those of Ms Monaghan were found on the exterior rear driver's side door of the vehicle and on the rear-vision mirror of the vehicle.
DNA strongly matching that of Ms Monaghan was found on the driver's controls of the vehicle, including the steering wheel, the gearstick and the handbrake of the stolen vehicle.
There was CCTV footage of the vehicle entering a service station in Weston at about 10 PM, 40 minutes prior to the incident. A person wearing shorts, a black jumper and shoes exited the back passenger door of the vehicle, put fuel in the vehicle, and returned to the vehicle using the same door. The vehicle left the service station. A person wearing a light-coloured hooded jumper was in the driver's seat at the time. From the CCTV footage, it is unclear whether there was a passenger in the front passenger seat.
Magistrate’s decision
At T76–77, his Honour said:
I also give myself a direction that I need to approach this question as to identification very, very carefully. I direct myself to note that it’s not uncommon for witnesses to be very certain as to what they understood they saw but to also be wrong and that in this circumstance where essentially the evidence will rely upon one witness, that is Senior Constable Burrows, that I need to consider that evidence very, very carefully as a lot turns on that assessment of that evidence.
In the circumstances, I am satisfied beyond reasonable doubt that the defendant was one of the two men who alighted from the vehicle …
…
I take into account the possibility that Ms Monaghan may have been the driver the vehicle. It appears that perhaps she was the driver of the vehicle at the time the vehicle pulled into the service station and collected fuel but that is not necessarily inconsistent with there being a change of driver and in the circumstances as put before me, I accept the evidence of Constable Burrows, that he had a very clear opportunity to view the person who alighted from the vehicle and that the male who alighted wearing the shorts and the top with a motive and he was not wearing shoes did, in fact, alight from the driver’s side of the vehicle from the driver’s side door. I make that finding, taking into account the fact that Senior Constable Burrows did not know the defendant. What was occurring occurred very quickly. It was night although there was lights on and I accept the fact that the motorcycle lights illuminated the right-hand side of the car.
Appellant’s submissions
The appellant highlighted the following circumstances:
(a)Earlier on the night in question, the appellant was not driving the vehicle. Ms Monaghan was apparently driving the vehicle, as indicated by the CCTV footage at the service station and the fingerprint and DNA evidence.
(b)Prior to the apprehension of the appellant, no police officer provided a description of the person who had alighted from the driver's door.
(c)There was no evidence that linked the appellant with the front or steering mechanism of the vehicle. The forensic evidence linked Ms Monaghan to the driver's seat.
The appellant submitted that the Magistrate should not have discounted the reasonable possibility that Senior Constable Burrows was mistaken as to the identity of the driver.
Consideration
Identification evidence is evidence of a kind that may be unreliable: see ss 116 and 165 of the Evidence Act 2011 (ACT).
In Odgers’ Uniform Evidence Law (15th edition), the author identifies factors that may require consideration when determining the reliability of identification evidence: at 988–990. Relevantly to this case, they include:
(a)Whether the witness had any prior familiarity with the subject;
(b)That if a subject is from a different racial group to the witness, this may reduce the value of the witness' identification evidence;
(c)The circumstances of the perception, including the period of perception, the type of attention, the distance from the subject, the lighting conditions and any stress experienced by the observer;
(d)The nature of the description given by the witness when the subject is first described and when the subject is first described;
(e)The procedures adopted in relation to identification and whether they suggest, explicitly or implicitly, that the subject is the offender; and
(f)Any risk of displacement, e.g. by being told certain things or being shown certain things.
In this case, Senior Constable Burrows had no prior familiarity with the appellant.
I assume that the officers were Caucasian. The appellant was of Aboriginal background. It is unclear whether the other male in the vehicle was also of Aboriginal background.
The period of perception was an instant, while the three persons hurriedly exited the vehicle. The three persons exited from three different doors of the vehicle, so presumably the attention of the observer was focused on more than one person.
Ms Monaghan was said to have exited from the right side of the vehicle, from which the appellant was also said to have exited, giving rise to possible confusion between the person who exited the front door and the rear door of that side of the vehicle.
Senior Constable Burrows was close to the activity, in that he was five metres from the vehicle. The angle of his observation is not entirely clear; he was observing from the rear of the vehicle. The lighting conditions were not ideal. There was lighting from the headlights of the police vehicles, although it was night.
Senior Constable Burrows would have been somewhat distracted either at or immediately prior to the relevant instant of time, in that he had slowed and stopped his motorcycle and had had to disengage his key and his radio connection. Also, as he freely admitted, at that point he was feeling adrenaline from the chase.
It would appear likely that the identity of the driver was first described on 31 December 2019, when Senior Constable Burrows made a police statement. The lapse of time was significant, given the brevity of the observation in question. The contemporaneous description (i.e. that given at the time that the men were running from the vehicle) was not helpful in relation to identifying the appellant as the driver.
The evidence does not disclose that processes were adopted that were designed to make identification more objective, such as a photograph parade or a parade of persons. It is not clear whether there was or was not a risk of displacement. It may be relevant that the appellant was the one male who was apprehended created a risk of displacement, although I am not prepared to find that.
The combination of the above considerations, but particularly the brevity of the observation of a person of whom Senior Constable Burrows had no prior knowledge, and the obvious opportunity for there to be confusion between the two persons who exited the right side of the vehicle (one of whom was Ms Monaghan, a person who had very shortly beforehand been the driver of the vehicle) creates a reasonable doubt about the appellant's guilt.
The appeal is allowed. The verdicts of guilty are set aside and I substitute verdicts of not guilty.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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