HACKETT v Police - [2015] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HACKETT v POLICE
[2015] SASC 62
Judgment of The Honourable Justice Parker
21 April 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - VISUAL IDENTIFICATION GENERALLY
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
Appeal against conviction for driving without a license, driving an unregistered vehicle, driving an uninsured vehicle, driving in a dangerous manner to escape police pursuit, driving without due care and driving in breach of a condition in a bail agreement. The appellant pleaded not guilty to all charges. The issue at trial was identity. The magistrate convicted the appellant based upon the identification evidence of two police officers who observed him entering and driving the car. The magistrate was not persuaded by the evidence of a defence witness that the car was lent to a person other than the appellant.
Whether an extension of time within which to appeal should be granted. Whether the magistrate did not adequately warn himself with respect to the dangers of identification evidence of the two police officers. Whether the magistrate did not give adequate reasons for rejecting the evidence of the defence witness. Whether the charge of driving without due care was duplicitous with the charge of driving in a dangerous manner to escape police pursuit.
Held (Parker J):
1. Extension of time within which to appeal granted.
2. Appeal allowed in respect of the conviction for driving without due care on the basis of duplicity.
3. Appeal dismissed in respect of the other five counts. The magistrate adequately warned himself of the matters which may reasonably be regarded as undermining the reliability of the police identification evidence. It was clear that the defence witness’ evidence did not raise a reasonable doubt in the magistrate’s mind as to the identity of the driver.
Motor Vehicles Act 1959 s 9(1), s 74(1), s 102; Criminal Law Consolidation Act 1935 s 19AC(1), s 19B(5); Road Traffic Act 1961 s 45; Bail Act 1985 s 17; Supreme Court Civil Rules 2006 r 281, referred to.
M, EG v Police [2007] SASC 128, distinguished.
Domican v The Queen (1992) 173 CLR 555; Grbic v Pitckethly (1992) 38 FCR 95; Strauss v Police (2013) 115 SASR 90; R v Burchielli [1981] VR 611; Liberato v The Queen (1985) 159 CLR 507, considered.

HACKETT v POLICE
[2015] SASC 62
Magistrates appeal (criminal):

PARKER J: This is an appeal against the conviction of the appellant by the Magistrates Court of driving without a license,[1] driving an unregistered vehicle,[2] driving an uninsured vehicle,[3] driving in a dangerous manner to escape police pursuit,[4] driving without due care[5] and driving in breach of a condition in a bail agreement.[6]
[1] Section 74(1) of the Motor Vehicles Act 1959.
[2] Section 9(1) of the Motor Vehicles Act 1959.
[3] Section 102 of the Motor Vehicles Act 1959.
[4] Section 19AC(1) of the Criminal Law Consolidation Act 1935.
[5] Section 45 of the Road Traffic Act 1961.
[6] Section 17 of the Bail Act 1985.
The appellant pleaded not guilty to all charges. The issue at trial was identity, ie whether the appellant was the driver of the vehicle in question. The grounds of appeal are that the magistrate did not adequately warn himself with respect to the dangers of identification evidence and gave inadequate reasons for rejecting the evidence of a defence witness. That would make the verdict unsafe and unsatisfactory. Duplicity was also raised in respect of the charge of driving without due care.
For the reasons set out below, I have allowed the appeal in respect of the conviction for driving without due care on the basis of duplicity and have dismissed the appeal in respect of the other five offences.
Extension of time within which to appeal
The magistrate delivered judgment on 28 March 2014. An appeal to a single judge of this Court needed to be commenced on or before 18 April 2014.[7] The notice of appeal was not filed until 30 July 2014. The explanation provided for the delay was that the appellant’s counsel at trial had left the employment of the appellant’s solicitors. The appellant had instructed his solicitors on 28 March 2014 that he wished to appeal. However, there were delays in obtaining a copy of transcript and in receiving a response to a request for funding from the Legal Services Commission. Transcript was requested on 2 April 2014 but not received until 2 May 2014. Funding was requested on 7 May 2014 and again on 18 June 2014 but notification that funding was not granted was not received until 16 July 2014.
[7] Rule 281 of the Supreme Court Civil Rules 2006.
Counsel for the respondent did not make any submissions in respect of the application for extension of time. In the circumstances, I find that the appellant’s delay in commencing an appeal was not unreasonable and did not occasion any real prejudice. I would grant an extension of time within which to appeal.
Background
It was alleged that on 5 April 2013 the appellant was seen sitting in a blue Ford sedan in the car park of the Aldinga shopping centre. The appellant left the vehicle and walked towards the direction of the shopping centre, returning shortly after. The appellant then drove out of the car park onto Pridham Boulevard. A police officer pulled in behind the appellant’s vehicle and activated the lights and siren. The appellant then drove off to escape and the officer was unable to apprehend him.
At trial, certificates from the Department of Planning, Transport and Infrastructure and the Registrar of Motor Vehicles were tendered by consent as evidence that at the time of the incident the appellant did not hold a driver’s licence and the vehicle was unregistered and uninsured. The prosecution called four police witnesses who gave evidence as to the particulars of the offending. The defence did not challenge their evidence except insofar as it went to identity. The magistrate made a finding that the driver was the appellant based upon the evidence of two of the police witnesses, Constable Halsall and Constable Round. The magistrate found that the purported identification of the appellant by the other two police witnesses could not be relied upon.
Evidence of Constable Halsall
Constable Halsall gave evidence that while he was off duty he was sitting in his private vehicle in the car park of the shopping centre. He saw in his right-hand side mirror a blue Ford sedan with distinctive white stripes park about 10 metres away. There were no other vehicles obstructing his view. He recognised the car as one he had seen several times previously and on which he had conducted a registration check several days earlier. He knew that while the appellant did not own the car it was often parked in front of the appellant’s house. He observed the driver through the car’s windscreen and recognised the driver to be the appellant.
Constable Halsall then made a phone call to the Aldinga police station. He turned his head over his shoulder and continued to watch the car through his rear windscreen for about 30 seconds. A police officer answered the call. Constable Halsall told him that he saw the appellant driving a vehicle he believed to be unregistered and uninsured and that the appellant was disqualified from driving. That call lasted about one minute. During that time Constable Halsall saw the appellant leave the car and walk towards the shopping centre. He observed the appellant in profile. When the appellant was out of sight and after the call was finished, Constable Halsall moved his vehicle to get a better view. He parked where he would have an unobstructed view of the car through his front windscreen about 20 to 30 metres away. About 10 minutes later he saw the appellant return from the same direction, this time facing directly towards him. He then observed the appellant enter the car and drive away. He was speaking to another police officer on the phone to relay his observations at this time.
Constable Halsall said in evidence that in the preceding three years he had conducted bail checks on the appellant at his home eight to twelve times. In cross-examination, he conceded however that the bail checks were brief and conducted at night time and it was possible that he went there only three to five times. He also gave evidence that on more than 10 occasions he had seen colour photographs of the appellant on intelligence sheets and computer generated intelligence reports.
Evidence of Constable Round
Constable Round gave evidence that he was at the Aldinga police station when he heard the report on the police radio that the appellant had been seen in a car at the Aldinga shopping centre. He took a police vehicle and parked in a driveway on the eastern side of Pridham Boulevard about 60 to 70 metres away from the blue Ford. Through binoculars he observed a man who he recognised to be the appellant walk to the car and enter it. That was for about 30 to 40 seconds, during which he had a view of the appellant’s complete face for about five to ten seconds. He then observed the appellant drive away.
Constable Round said in evidence that in the past year he had conducted two bail checks on the appellant at night time as the secondary officer. He also said that he had seen colour photographs of the appellant on intelligence bulletins about 30 to 40 times in the 12 months preceding the hearing (19 March 2014). In cross-examination, however, he was unable to give an answer when asked how many times he had seen the appellant’s photo prior to the incident. In re-examination he clarified that he had seen the appellant’s photo on an intelligence bulletin more than 10 times prior to the incident.
Constable Round also said that he had had dealings with the appellant when he worked as a correctional officer at Yatala and Cadell prisons from about 2001 to 2008. However, it was suggested in cross-examination that the appellant was not in prison at all during that period. No evidence was adduced as to whether the appellant was in prison during that period and the magistrate made no finding in relation to that issue.
Evidence of Ms Newham
The appellant’s former partner, Ms Newham, was the only defence witness. Her evidence was that on 5 April 2013 she was residing at the appellant’s home but had not seen him for several days. The blue Ford was parked in front of the house. The appellant’s daughter was the last registered owner of the car. She allowed a friend whom she knew as Lee to use the car to go and purchase some drugs for her. She did not know the last name of Lee or where he lived. She knew him through a mutual friend who had since been murdered. She had not seen Lee since.
In cross-examination Ms Newham was questioned about how the car came to be returned. She said that she did not know who brought it home but said that the appellant’s daughter was notified by the council of its whereabouts.
Magistrate’s reasons
The magistrate directed himself generally as to identification evidence:[8]
In my consideration of the evidence I direct myself specifically to the dangers of identification evidence and the need to approach such evidence with great caution. I am aware witnesses can make a mistake even when they are quite sure of their identification and that a number of such witnesses can all be mistaken and I warn myself of the dangers of suggestibility.
[8] At [20].
The magistrate acknowledged that, due to Constable Halsall recognising the car and its connection to the appellant before turning his attention to the driver, “the subsequent identification of the defendant as the driver may be tainted because it was the car which suggested to Constable Halsall the driver would be [the appellant]”. The magistrate also considered that because Constable Round had heard on the police radio that the driver of the car was the appellant there was “a real risk” he was “predisposed to the idea that the driver was indeed [the appellant]”. The brief time that Constables Halsall and Round had to observe the driver may have led them to merely confirm the predisposition that they had formed. For these reasons, the magistrate warned himself that he should “approach the prosecution evidence with caution” especially because Ms Newham said the car was being driven by another person.[9]
[9] At [21].
The magistrate also noted defence counsel’s submission that when Constable Halsall observed the driver he was trying to avoid being seen to be looking directly at the driver. He was also speaking on the phone. The magistrate also noted the submission that both witnesses had seen the appellant only on a few occasions at night during very brief bail checks.[10]
[10] At [19].
Nevertheless, the magistrate was satisfied that Constables Halsall and Round were familiar with the appellant and had made an uninterrupted observation for about 10 seconds without distraction.[11] The magistrate found that Constable Halsall had dealt with the appellant on eight to twelve occasions on bail checks and had seen photographs of the appellant on many more occasions. Constable Halsall’s identification of the appellant was “not a once off identification” and was “not made in the heat of a confrontation or a pursuit”.[12] The magistrate also found that Constable Round had had contact with the appellant four or five times and while he may have been expecting to see the appellant his observation of the appellant was “more than a fleeting observation of a person for the first time”.[13]
[11] At [26].
[12] At [24].
[13] At [25].
The magistrate considered that Ms Newham’s evidence was “clear and precise” and that she was “not exposed in cross-examination”. However, he found her evidence about the return of the vehicle to be “unconvincing”.[14]
[14] At [23], [27].
The magistrate then held:
[28] ... I do however prefer the evidence of Constable Halsall and Constable Round over that of Ms Newham, and I make the following findings beyond reasonable doubt.
Findings
[29] I find the blue Ford was driven by the defendant on 5 April 2013. I find the vehicle was not registered or insured. I find the defendant was not licensed at the time of driving. I find the defendant was positively identified by Constable Halsall and Constable Round. I find the defendant drove in a dangerous manner to escape police pursuit. I find he drove without due car and in breach of the terms of his bail. I find the charges proved beyond a reasonable doubt.
The appeal
Ground 1 — identification evidence
Counsel for the appellant submitted that the magistrate did not adequately warn himself as to matters undermining the reliability of the identification evidence of Constables Halsall and Round. Counsel for the respondent submitted that the magistrate correctly and carefully scrutinised those areas of the evidence where the witnesses could have been mistaken.
The legal principles are well established. A warning in general terms is insufficient. Where identification is a significant issue, the magistrate must isolate and identify any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. Those matters must actually be taken into account by the magistrate and not merely recited to pay lip service.[15] An appellate court asked to review a conviction on the ground that it is unsafe or unsatisfactory must give close attention to those matters, but in doing so must consider whether, in all the circumstances, the court below could safely have arrived at a conclusion of guilt.[16]
[15] Domican v The Queen [1992] HCA 13 at [11]; (1992) 173 CLR 555 at 561 – 562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Grbic v Pitkethly (1992) 38 FCR 95 at 107 – 108; Strauss v Police [2013] SASC 3 at [155] – [160]; (2013) 115 SASR 90 at 134 – 135.
[16] Grbic v Pitkethly (1992) 38 FCR 95 at 108.
Counsel for the appellant submitted that the magistrate did not adequately direct himself as to the danger that Constables Halsall and Round had prematurely identified the driver before having a clear view of him. Specifically, Constable Halsall recognised the car and its connection with the appellant before observing the driver in his car’s side mirror. By the time he had a clear view of the driver returning, he had already identified him in his mind as the appellant and called the police station. Constable Round had heard that the driver was the appellant on the police radio prior to his observation.
I reject that submission. The magistrate expressly turned his mind to the risk of Constable Halsall’s subsequent identification and Constable Round’s identification being tainted by preconception. The magistrate warned himself to approach the evidence with caution.
Counsel for the appellant contended that the magistrate also misdirected himself as to the police witnesses’ familiarity with the appellant. The magistrate could not have found that Constable Halsall had conducted eight to twelve bail checks on the appellant when the witness conceded in cross-examination that there could have been fewer, possibly only three to five, checks made. The magistrate also incorrectly referred to Constable Round having seen the appellant four or five times when his evidence was that he was present at only two bail checks. Furthermore, both witnesses’ prior observations had been made in different circumstances, ie at night time during very brief bail checks and viewing two dimensional photographs.
Counsel also contended that the magistrate did not acknowledge in his reasons that Constable Halsall’s initial identification had been made by looking in the side mirror of his car when the appellant was sitting inside a car and must have been observed through a windscreen. Constable Round’s observation was made through binoculars. Common experience suggested that those factors would make identification more difficult.
While those matters are capable of affecting the reliability of an identification, I consider that they are not in the circumstances of such significance that I cannot be satisfied the magistrate could safely have arrived at a conclusion of guilt. As counsel for the respondent submitted, the magistrate approached the identification with express caution. After noting the brevity and circumstances of both witnesses’ observations, the magistrate was nonetheless satisfied that they were not fleeting observations. The witnesses had had an unobstructed view of the driver for at least five to ten seconds. The magistrate also noted the defence counsel’s complaint about the bail checks being brief and conducted at night time. While the witnesses may have had fewer dealings with the appellant than the magistrate had indicated, this is not sufficient to give rise to a miscarriage of justice.
Counsel for the appellant also submitted that the magistrate did not sufficiently direct himself that two defective identifications do not necessarily support one another[17] and instead considered the combined effect of the identification evidence of Constables Halsall and Round. The danger of relying upon one defective identification to support another is greater where that identification has been tainted by suggestion drawn from the other.
[17] R v Burchielli [1981] VR 611 at 621.
I reject the contention that the magistrate considered the combined effect of both witness’ identification evidence. It is a tenuous assertion that when the magistrate said “I find the defendant was positively identified by Constable Halsall and Constable Round” he was not satisfied as to each of their identifications individually. Furthermore, as counsel for the respondent noted, the magistrate had warned himself that even a number of honest and confident witnesses can all be mistaken.
Ground 2 — inadequate reasons for rejecting evidence of Ms Newham

Counsel for the appellant submitted that the magistrate gave inadequate reasons for rejecting the evidence of Ms Newham that the appellant was not the driver. The basis for that submission was that the magistrate did not reject her evidence but instead stated that he preferred that of Constables Halsall and Round. Counsel asserted that preferring one witness over another is insufficient to establish guilt beyond reasonable doubt. The appropriate question for the magistrate was whether the evidence of Ms Newham gave rise to a reasonable doubt as to the identity of the driver. Counsel submitted that the magistrate could not have rejected her evidence about lending the car to a person other than the appellant after he found her evidence to be clear and precise and not exposed in cross-examination. The magistrate provided no reason for rejecting her evidence beyond finding her evidence about the return of the car to be unconvincing.
Counsel for the appellant relied upon Liberato v The Queen[18] and M, EG v Police.[19] In Liberato,[20] Brennan J (as he then was) said:
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.
[18] [1985] HCA 66; (1985) 159 CLR 507.
[19] [2007] SASC 128.
[20] [1985] HCA 66 at [11]; (1985) 159 CLR 507 at 515.
In M, EG v Police,[21] the Full Court considered Liberato and the line of authority which followed and held that the statement of Brennan J extended to trial by judge alone. M, EG concerned a conviction for causing death and injury by negligent or reckless driving. The trial judge said that he preferred the evidence of one witness over three others in relation to the manner in which the vehicle veered during the incident. The witness gave evidence directly conflicting with that of the other witnesses in relation to an issue of fact that was significant to whether or not the driver could be found to have driven negligently or recklessly. In the circumstances, the Court held that a trial judge must “go further than to have a mere preference for a witness’ evidence relied on to support the prosecution case”.[22] The judge must be satisfied about the witness’ account beyond reasonable doubt.
[21] [2007] SASC 128 at [32] – [44].
[22] Ibid at [64].
M, EG can be distinguished from this case. The evidence of Ms Newham, if accepted, could only establish that she had lent the car earlier in the day to a person other than the appellant and that it was returned some significant time later when the appellant’s daughter was notified by the council of its whereabouts. I reject the appellant’s submission that the magistrate was required to reject Ms Newham’s evidence in its entirety beyond reasonable doubt or that the possibility that the car fell into the appellant’s hands after being lent to another man needed to be put by the prosecution at trial. After considering Ms Newham’s evidence, the magistrate expressly found that he was satisfied beyond reasonable doubt that Constables Halsall and Round had positively identified the appellant. It was clear that Ms Newham’s evidence about lending the car did not raise a reasonable doubt in the magistrate’s mind as to the identity of the driver at the time of the incident. This provided a sufficient basis for the magistrate to make a finding of guilt.
Ground 3 — verdict was unsafe and unsatisfactory
Counsel for the appellant submitted that as a result of the cumulative effect of the errors outlined in grounds 1 and 2 that the verdict was unsafe and unsatisfactory. This ground of appeal must fail with grounds 1 and 2.
Ground 4 — duplicity
At the hearing of the appeal, counsel for the appellant submitted that the conviction for driving without due care was duplicitous with the conviction for driving dangerously to escape police pursuit. I granted leave to file an amended notice of appeal. By way of written submissions in reply, the respondent conceded that the conviction for driving without due care should be quashed. Section 19B(5) of the Criminal Law Consolidation Act 1935 provides that driving without due care is an alternative verdict to driving dangerously to escape police pursuit. Counsel contended that the evidence at trial supported a verdict of driving dangerously to escape police pursuit but not a separate conviction of driving without due care. I accept those contentions and would quash the conviction for driving without due care.
Conclusion
I grant the appellant an extension of time within which to appeal. I allow the appeal in respect of the conviction for driving without due care and order that that conviction be quashed. I dismiss the appeal in respect of the other five counts