Hirst v Police - [2005] SASC 201

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HIRST v POLICE
Judgment of The Honourable Justice Gray
2 June 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - IDENTIFICATION FROM PHOTOGRAPHS
Appeal against convictions - appellant convicted on four counts of indecent assault, four counts of indecent behaviour and one count of gross indecency - offending involved acts of indecency and assault committed against young women on numerous occasions at a public park in suburban Adelaide - Crown case at trial based upon identification evidence provided by the complainants - identification evidence included evidence adduced through photographic identification procedure - appellant appealed conviction on grounds that magistrate erred in failing to exclude photographic identification evidence and this amounted to a miscarriage of justice - consideration of photographic identification procedure employed - consideration of nature of identification evidence - discussion of dangers associated with use of photographic identification evidence - consideration of cross admissibility of identification evidence between counts - held: photographic identification ought to be considered in the context of the evidence as a whole - magistrate correctly directed himself to the dangers associated with the evidence - findings of the magistrate open on evidence - appeal dismissed.
Criminal Law (Consolidation) Act 1935 (SA) s 56, s 58; Summary Offences Act 1953 (SA) s 23(1)(a), referred to.
Domican v The Queen (1992) 173 CLR 555; Alexander v The Queen (1981) 145 CLR 395; Hoch v The Queen (1988) 165 CLR 292; Sutton v The Queen (1984) 152 CLR 528; Rowald v Police (2001) 79 SSR 569; Davies and Cody v The Queen (1937) 57 CLR 170; Festa v The Queen (2001-02) 208 CLR 593 at 603; Hallam v Karger (1985) 42 SASR 126; R v Wenzlaff [2004] SASC 233; R v Deering (1986) 43 SASR 252; Pitkin v The Queen (1995) 69 ALJR 612; Knight v Brown (2004) 183 FLR 137; Chamberlain v The Queen (1984) 153 CLR 251, considered.

HIRST v POLICE
[2005] SASC 201
Magistrates Appeal
GRAY J
Introduction

This is an appeal against conviction.
The appellant, Benjamin Craig Hirst, faced trial[1] on four counts of indecent assault,[2] five counts of indecent behaviour[3] and one count of gross indecency.[4] The appellant pleaded not guilty to all counts and a joint trial proceeded before a magistrate. The issue at trial was identification.
[1] Other charges were not pursued
[2] Contrary to section 56 of the Criminal Law (Consolidation) Act 1935 (SA)
[3] Contrary to section 23(1)(a) of the Summary Offences Act 1953 (SA) (Offence now contained in section 7 of the Summary Offences Act)
[4] Contrary to section 58 of the Criminal Law (Consolidation) Act 1935 (SA)
On 1 December 2004 the appellant was convicted of four counts of indecent assault,…

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: [2005] SASC 201
Decision Date: 2 June 2005

CaseChat Overview and Summary

In Hirst v Police, the appellant appealed against his convictions for multiple counts of indecent assault, indecent behaviour, and gross indecency, which arose from incidents occurring in a suburban Adelaide park. The Crown's case relied heavily on the identification evidence provided by the complainants, including photographic identification procedures. The appellant argued that the magistrate erred in not excluding the photographic identification evidence, which he claimed resulted in an unfair trial and a miscarriage of justice.

The legal issues central to the appeal were whether the magistrate correctly exercised his discretion in not excluding the photographic identification evidence, and whether the magistrate's failure to do so led to an unsafe and unsatisfactory verdict. Additionally, the court examined the cross-admissibility of the identification evidence across the various counts and whether the magistrate properly considered the dangers associated with such evidence.

The court held that the photographic identification evidence should be considered in the context of the overall evidence presented. It found that the magistrate had correctly directed himself to the inherent dangers of such evidence and that the magistrate's findings were open based on the evidence presented. The court concluded that the magistrate's decision not to exclude the photographic identification evidence did not lead to a miscarriage of justice, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant advanced the following grounds of appeal:- The magistrate erred in not exercising his discretion to exclude the photographic identification evidence especially taking into account:· Reasons given regarding the lack of identification parade and photographic identification;· No explanation was given during the trial as to why photograph number 4 in exhibit P22 was not included in subsequent photo identification procedures;· The magistrate based his guilty verdicts on the photographic identification evidence.- The magistrate’s decision not to exercise his discretion and exclude such photographic identification led to:· Unfairness and prejudice to the appellant;· Unsafe and unsatisfactory verdicts of guilty;· Miscarriage of justice.- The magistrate erred in not ruling that there was no case to answer or alternatively erred in not directing himself to return verdicts of not guilty on all counts:· The magistrate erred in rejecting as a reasonable possibility the proposition that the person first picked out by one of the complainants from a number of photographs, exhibit P22, was the offender.Cross-Admissibility of the Identification Evidence It was the prosecution case that the trial involved a number of complainants giving evidence of offences of a similar nature involving the same assailant. However, the prosecution did not seek to describe the case as a “similar fact case” as that term was used by the High Court in Sutton.[8] Rather, it was the Crown case that there was an underlying unity in the offending conduct, a similarity in the pattern, style and circumstances of the offending, that justified the charges being heard together.[9] [8] (1984) 152 CLR 528[9] Hoch v The Queen (1988) 165 CLR 292; R v Liddy (2002) 81 SASR 22 These unifying features included: the nature of the offence (often a brief conversation followed by indecent exposure and/or masturbation); the location of the offences (Linear Park); the time the offending took place (afternoon or evening); the description of the assailant given by each of the complainants (the assailant in every case was jogging and wearing jogging clothes); the descriptions of the assailant’s voice; the descriptions of the assailant’s shorts, (dark blue); and the descriptions of the assailant’s hair (dark brown with blond tips/streaks). On the Crown case, the one assailant was responsible for all offences. This conclusion was supported by the evidence of each complainant. This support came from the photographic identification of the appellant by the complainants, together with their general descriptions. It was appropriate for this body of evidence to be used in regard to the determination of each complaint. In addition to this body of evidence, the similarities in the modus operandi of each count gave rise to an inherent unlikelihood that the identity of the offender in each count would be different. It was open for the magistrate to conclude that the assailant was the appellant.

Decision

Reasons for decision

At trial the appellant described his usual running attire as including a white baseball cap, t-shirts that were either white, black, navy blue or grey and a Timex watch. The appellant’s mother gave evidence that when running the appellant would usually wear, dark navy blue shorts with a white panel on each side, various t-shirts - white, dark navy one with a v-neck and a Nike logo, black with grey panels over the shoulder - a white hat; and a running watch. The appellant’s father described the appellant’s usual running attire as dark coloured shorts, dark coloured t-shirt or sometimes a white t-shirt and a white cap. The appellant said that for a period during 2003 he had blond tips in his hair.The Magistrate’s Conclusions As earlier observed, on 1 December 2004 the appellant was convicted of four counts of indecent assault, four counts of indecent behaviour and one count of gross indecency. The magistrate found the appellant not guilty on one count of indecent behaviour. That count related to a complainant MLM. The magistrate observed:[MLM] came forward after having seen the media release and the composite photograph and reported that incident to the police. I note that her evidence about the offender involved in that incident does not fit the defendant’s characteristics and also the description given by the other victims. She did not see what the person was doing in the bushes except that his hand was on his crotch and seemed to be stroking something. She was not able to positively identify the person from photographic identification. I therefore conclude that the offence ... has not been made out and I dismiss the charge. The magistrate identified a key issue at trial as follows:On the evidence before me it is quite plausible that the defendant was running along the Linear Park on the dates and the times in question. However, the question is, was he the male jogger responsible for the events the subject of the various charges? The identification evidence relied upon by the prosecution was the subject of the following comment:The only evidence to that effect is the evidence of the victims, and in particular, their identification of the defendant - made sometime after the events – from viewing the photographic packs of 12 photos. The prosecution’s case is based entirely on the description provided by the victims of the person involved in each of the offences and their photographic identification of the defendant as that person.The description of the clothing worn by the offender on each occasion is inconclusive, save that on each occasion, the person in question wore jogging apparel. The description of the physical characteristics of the offender and the voice fit the defendant, but again per se would not be conclusive. What we have left is the photographic identification. The prosecution would allege that on every occasion the victims have picked the defendant from a photographic identification process as the perpetrator of the offences in question.

Ratio Decidendi

Legal Principle Established

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