Hirst v Police - [2006] SASC 244

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HIRST v POLICE
[2006] SASC 244
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice White)
23 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - ADMISSIBILITY - GENERALLY
Appellant convicted by magistrate of four offences of indecent assault, four offences of indecent behaviour and one offence of gross indecency on joint trial - appeal to single judge dismissed - appellant applied for leave to appeal to Full Court proposing new grounds of appeal - leave to appeal on new grounds granted - offences committed by a jogger along bitumenised track in a section of River Torrens Linear Park - most offences committed in the presence of young women - offending included various acts of exposure and assault - Crown case at trial based upon complainants identifying appellant through photographic identification procedure - appellant denied involvement in offences - magistrate treated evidence on each count as being relevant to the other counts on account of striking similarities between the offences - magistrate concluded same person committed all offences and that appellant was that person - whether magistrate erred in not considering certain alibi evidence - whether magistrate erred in ruling that evidence on the various counts was cross-admissible on all counts - whether striking similarity between all offences allowing for inference that same person committed all offences - whether striking similarity between certain groups of offences allowing for inference that same person committed that group of offences - found, only first group of offences had striking similarities sufficient to permit such an inference - evidence as to remaining groups and counts did not satisfy any test of cross-admissibility - these offences should have been tried separately - discussion of proper approach to use of similar fact evidence in the event that the first group of offences are retried together - if established that same person committed all offences and independent witnesses identify an accused, trier of fact entitled to reason that chances of mistake so remote that identifications must be accurate - Held: appeal allowed, convictions set aside and retrials ordered with first group of offences to be tried together and all other offences to be tried separately.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - IDENTIFICATION FROM PHOTOGRAPHS
Whether regard should be had to evidence that complainants picked out photograph of appellant in deciding whether offences or a combination of them were committed by same person - where some complainants positively identified appellant while others merely commented on similarity of features with appellant - whether identifications establish relevant fact that offender was a person who looked very similar to appellant - discussion of differences between identification evidence and evidence descriptive…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] SASC 244
Decision Date: 23 August 2006

CaseChat Overview and Summary

In the case of Hirst v Police, the appellant was convicted by a magistrate of multiple offences of indecent assault, indecent behaviour, and gross indecency, committed along a bitumenised track in River Torrens Linear Park, Adelaide. The convictions were appealed, and the appellant subsequently applied for leave to appeal to the Full Court, proposing new grounds for appeal. The appeal was allowed, and the convictions were set aside, with retrials ordered. The key issues in the appeal revolved around the admissibility of evidence and the magistrate's handling of similar fact evidence. Specifically, the court had to determine whether the magistrate erred in not considering certain alibi evidence, in ruling that evidence on the various counts was cross-admissible on all counts, and in inferring that the same person committed all offences based on their striking similarities.

The Full Court concluded that the magistrate's decision to treat evidence from all counts as cross-admissible was not justified, except in relation to the first group of offences. The court found that the evidence regarding the remaining groups and counts did not meet any test of cross-admissibility and that these offences should have been tried separately. The court also considered the proper approach to the use of similar fact evidence in the event that the first group of offences are retried together. It was noted that if it could be established that the same person committed all offences and independent witnesses identified the accused, the trier of fact would be entitled to reason that the chances of mistake were so remote that the identifications must be accurate. The Full Court allowed the appeal, set aside the convictions, and ordered retrials, with the first group of offences to be tried together and all other offences to be tried separately.

The court further examined the issue of identification evidence, specifically whether the complainants' identifications of the appellant's photograph should be considered in deciding whether the offences were committed by the same person. The court held that it was inappropriate to rely on material inherent in the process of identification when deciding whether the offences were committed by the same person. The court also considered the alibi evidence presented by the appellant and found that the magistrate's assessment of this evidence was not incorrect. The final orders of the court were that the appeal against the single judge should be allowed, the order dismissing the appeal from the magistrate set aside, and in lieu thereof, there should be an order that the appeal from the magistrate be allowed, the convictions set aside, and retrials ordered, with the first group of offences tried together and all other offences tried separately.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I should add that, in the event that the appellant was found guilty of one or more of the offences in the first group, I do not think the circumstances would be such as to render the evidence on that count or those counts admissible in relation to the counts in the second and third groups.The alibi evidence Before stating my conclusions on the main grounds of appeal, it is appropriate to refer to complaints made by the appellant’s counsel concerning alibi evidence led at the trial. The defence put forward alibi evidence for the fourth, fifth and sixth offences.Fourth offence E said the incident occurred at about 3.00 pm on the weekend of the 14 and 15 June 2003. The appellant said he was away for the weekend in Reynella. Friends gave evidence that he was in Reynella on Saturday 14 June. The appellant’s friends also gave evidence that he left Reynella at about 1.30 pm on the Sunday. One of the friends said it could have been as late as 2.00 pm. The appellant said he went running later in the day at about 4.00 or 5.00 pm, but explained that this was on the basis that this is the time at which he usually goes for a run. It is not inconsistent with the evidence of the appellant’s friends that he was in the course of his run at 3.00 pm. The magistrate found that the appellant could have gone running earlier than the time stated by him.The fifth offence S said that the offence took place at about 4.40 pm on 29 June 2003. The appellant said he went out for a run on this day. He said it could have been around 4.00 or 5.00 pm. The appellant’s mother, Mrs Hirst, said she remembered the appellant going out running on that day, but that it would have been around 5.00 or 5.20 pm. She said she was home when he went out and she gave her estimate of the time by reference to other events which she recorded in her diary on that day. The evidence of the appellant does not provide him with an alibi, but it was necessary to consider whether Mrs Hirst’s evidence did so.The sixth offence G said the incident took place at about 1.30 pm on 5 July 2003. The appellant said his parents were due to arrive at the home of his uncle and aunty on that evening at 6.00 pm. The appellant said he remembered waiting for his parents to finish using the bathroom as they were preparing to go out. The effect of his evidence is that he left for his run at about 5.30 pm. Mrs Hirst said he was home all day. However, she did say she left the house to do some shopping between about 12.00 noon and 1.30 pm. She said she was away for an hour or an hour and a half. The magistrate observed that, during cross-examination, the appellant conceded that he had no specific recollection of the date in question and that he was guessing as to the times. According to the appellant’s argument this summary of the evidence is wrong in that this was the appellant’s evidence in relation to the incident on 29 June 2003. Mr Peek has complained that the magistrate failed to consider the evidence of the appellant’s friends in relation to the fourth offence. However, as has been pointed out, their evidence was not inconsistent with the appellant returning home in time to be on his run at the time of the offence.

Decision

Reasons for decision

DOYLE CJ DUGGAN J WHITE J

The issue discussed in R v Turner (2000) 76 SASR 163 and R v Bennett (2004) 88 SASR 6 as to whether identification evidence is to be assessed in the context of the evidence as a whole, or separately from that evidence, was mentioned in passing in the course of argument. Again, there is no requirement to address that issue in the present case.Conclusion The magistrate appears to have concluded that the evidence on each count was admissible in relation to the other counts. He did so because of what he perceived to be striking similarities, underlying unity and the pattern of offending. In my view, that conclusion was not justified, except in relation to the first group of offences charged. It follows, that inadmissible evidence of a prejudicial nature was employed by the magistrate in the assessment of each count, including those counts which, in my view, could have been tried together. For these reasons, the appeal against the single judge should be allowed and the order dismissing the appeal from the magistrate set aside. In lieu thereof, there should be an order that the appeal from the magistrate be allowed, the convictions set aside and retrials ordered. The assessment of the evidence requires an evaluation of the identification evidence in each case and this cannot be undertaken effectively by an appeal court which has not had the advantage of assessing the witnesses. There is no reason why the four offences in the first group which I have identified should not be tried together. However, in light of these reasons the other counts should be tried individually. I agree with the orders proposed by Duggan J. I also agree with his reasons. There is nothing which I wish to add.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, DUGGAN J, WHITE J

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