Hudson v The Queen
[2013] NSWDC 287
•20 December 2013
District Court
New South Wales
Medium Neutral Citation: Hudson v R [2013] NSWDC 287 Decision date: 20 December 2013 Before: Cogswell SC DCJ Decision: Conviction appeal allowed.
Catchwords: CRIMINAL LAW - Appeal against conviction - grounds for interference - evidence of lighting condition reduces cogency of strong identification evidence given by police officer - circumstantial evidence not tested - appellant's version possible - reasonable doubt about appellant's guilt. Legislation Cited: Crimes Act 1900 (NSW), s 51B(1).
Crimes (Appeal and Review) Act 2001 (NSW), s 20(1).Category: Principal judgment Parties: Luke Hudson (Appellant)
Regina (Respondent)Representation: Solicitors:
P Herrald (Appellant)
K Stanley, Office of Director of Public Prosecution (NSW) (Respondant)
File Number(s): DC 2012/00385338
Judgment
At 12:45 am in the morning of Saturday 3 November 2012 a police officer saw a car trying to run a red light here in Queanbeyan, indeed very close to this courthouse. She pursued the car with her lights on to a place where the car stopped. A passenger got out followed a few seconds later by the driver. They both ran away. The police officer later identified the passenger and the driver. The driver was charged as a result of that identification with an offence against s 51B(1) of the Crimes Act 1900 (NSW): not stopping during a police pursuit and driving at speed. The driver defended the case but the magistrate who heard the case was satisfied of his guilt and convicted him.
The driver - whose name is Luke Hudson - has appealed to the District Court against the conviction which was entered by his Honour Magistrate Bone in the Queanbeyan Local Court on 14 October 2013.
Following the usual procedure I have read the relevant parts of the transcript and the exhibits which were before his Honour and I have had the benefit of written and oral submissions by Mr P Herrald who appears for Mr Hudson and oral submissions by Ms K Stanley who appeared for the respondent to the appeal who is the Director of Public Prosecutions. Magistrate Bone delivered written reasons for his Honour's decision and the legal representatives of both parties agreed that his Honour had accurately summarised the evidence.
I should say a little more about the case. After the police officer - who was Senior Constable Stoddart - had seen the two men escape she stayed with the car. Later she was alerted about an address not far away in Queanbeyan. She went to the address and saw Luke Hudson. As soon as she saw him she claimed that he was the driver. He denied that. His account which he gave in evidence before his Honour was that he had been drinking at a local hotel with a friend of his named Mr Kitchen. He accepted the evidence that they left at about 12:30 am, perhaps a minute or two earlier. He said that he then walked home. It was at his home that Senior Constable Stoddart saw him and asserted that he was the driver. He said that the walk home had taken about 15 minutes, a little less. He actually said in evidence that he had timed the walk and it was about 12½ minutes. His drinking companion, Mr Kitchen, said in evidence that he had separated from Mr Hudson after they left the hotel and gone to another friend's place, a Mr Hourigan. As it happens Senior Constable Stoddart's evidence is that she identified Mr Hourigan as the passenger in the car which she had pursued. Mr Hourigan confirmed that Mr Kitchen had joined him and they then both went for a walk and turned up at Mr Hudson's home when the police were there.
Mr Hudson asserted in his evidence, as indeed he had to the police, that when he got home after the hotel he laid down on a couch, dozed off, was woken by the barking of the dog, looked and realised that a car he had been using was being stolen. He ran after it down the street but it got away. He gave up the pursuit, returned to the house and sat down and the police turned up. He immediately denied when it was put to him by Senior Constable Stoddart that he was the driver of the car that it was he who was driving. The car that he said was stolen was the same car that Senior Constable Stoddart had pursued. The car belonged to a person who lived at the place to which Mr Hudson had returned. It was not in fact his home but a place he was staying during the week. He stayed there with Mr Kitchen and Mr Kitchen's partner. Mr Kitchen's partner was away in Queensland but she had given permission for Mr Hudson to use her car in her absence. He used it to drive to and from work.
Ms Stanley argued that her case comprised three components. The first was the identification evidence by Senior Constable Stoddart. The second comprised various pieces of circumstantial evidence. The third was the proposition that the evidence given by Mr Hudson as well as by Mr Kitchen and Mr Hourigan should be rejected. Of course she needed to make that last submission because I have to reject at least Mr Hudson's evidence before I can be satisfied beyond reasonable doubt of his guilt.
Turning to the identification evidence, it was strong in my opinion. When it is tested against the kinds of factors which a judge will alert a jury to in giving a direction about identification evidence (in compliance with cl 3-050 of the Criminal Trial Bench Book) it holds up favourably. Although Mr Hudson was a stranger and the opportunity to see him was limited and there was no evidence of the state of the lighting apart from the blue and red police lights on top of the car, the witness Senior Constable Stoddart focused her attention on the driver of the car and it was a significant, not a casual sighting. There was an aspect which impressed itself upon her, namely that the driver had red or fair hair. Although obviously under some stress and pressure at the time, the observing witness was a trained police officer. Circumstances that may be particularly stressful to a lay person - namely a pursuit in a car - will not be as stressful for a trained police officer. The training will include observations about a person's appearance. The police officer also saw Mr Hudson about half an hour later and immediately asserted that he was the driver.
Turning now to the circumstantial evidence, the circumstances relied upon by Ms Stanley were these. Mr Hudson had the key to the car in his pocket, or in his possession. This itself was not unusual because he was allowed to drive the car. But the key was bent. It was appropriately put to him by one or other of the police officers that it was bent because he had removed it in a hurry from the ignition when he got out of the car after being pursued by Senior Constable Stoddart. He denied this and said that it was always bent. There was some evidence given of an opinion that the bent key would not work to operate the car. However that proposition was never tested by inserting the bent key in the possession of Mr Hudson in the ignition, to see whether it started the car.
Senior Constable Stoddart also broadcast a description of the driver of the car over the police radio and her broadcast description coincided generally with the appearance of Mr Hudson which was captured by closed circuit television at the hotel where he had been drinking with Mr Kitchen earlier in the evening. When the police caught up with him at the place where he was staying, he no longer had a dark top but had a football t-shirt which he had taken off and discarded nearby. The police case is that he had also taken off any dark clothing which he had earlier worn at the hotel and when he was driving the car. A third piece of circumstantial evidence relied upon by Ms Stanley comes from telephone records. There were put in evidence records of the use of Mr Hudson's mobile phone. That showed a call to Queanbeyan Taxis at 12.28 am. That coincided with the evidence of Mr Kitchen and was not denied by Mr Hudson. Mr Hudson said that Mr Kitchen had borrowed his (Mr Hudson's) phone to make the call. The Queanbeyan Taxis records indicate that the taxi turned up, but there was no show on behalf of the caller. That is consistent with Mr Hudson and Mr Kitchen saying that they walked in their respective directions.
However, what Ms Stanley says is particularly incriminating is that over the next three quarters of an hour or so, Mr Hudson's phone records show that there are half a dozen or so calls to the phone of Mr Hourigan. It will be recalled that the police assertion is that Mr Hourigan was the passenger in the car which was pursued by Senior Constable Stoddart. The calls were generally less than a minute but one of them was for nearly eight minutes and occurred at about 1:00 am. Ms Stanley suggested that there was clearly a conversation between the person she asserted was the driver and a passenger of the car in the time after they had escaped from the car. There were about two or three calls which fall into that category and occurred after 12:45 am.
Another piece of circumstantial evidence relied upon by Ms Stanley is that Mr Hudson was himself in the vicinity at the time and he had the opportunity and access to the car. Finally she relies upon evidence of the police that when they were approaching the house where Mr Hudson was staying they in fact passed him on the road. They did not stop him because at that time they did not think that his appearance matched the description that had been broadcast by Senior Constable Stoddart. There was some basis for that opinion. The point made by Ms Stanley is that Mr Hudson - who was then heading back to the house after what she said was a pursuit of the stolen car - did not flag down the police and report the stolen car. Mr Hudson himself says that he had his head down and did not see the police.
The third limb of Ms Stanley's case is that I should reject the evidence of Mr Hudson as well as the evidence of Mr Kitchen and Mr Hourigan. She says their evidence was generally unreliable because they acknowledged that they had all been drinking a lot. But she particularly emphasised that acceptance of Mr Hudson's account would mean that he had to get from the hotel to the house where he was staying very quickly and go through the process of lying down and being awoken, all before the first sighting of the car at 12:45 am. She also pointed out that the evidence given by Mr Hourigan and Mr Kitchen was inconsistent in that the accounts given by them did not exactly coincide.
His Honour, in his judgment, regarded the identification evidence as "insufficient to prove that they are one and the same person". His Honour went on to observe that history is riddled with instances of mistaken identity. His Honour was of course complying with a direction which a jury, and I myself, must comply with in determining this case myself without a jury. As the direction says, I need to exercise "special caution", "because of the possibility that a witness may be mistaken in their identification of a person accused of a crime". I must consider very carefully the circumstances and any particular features that may render the identification evidence unreliable. As I have already said, it seems to me that a number of the features of the identification by Senior Constable Stoddart point to the process being reliable.
However I do take into account that there is no explicit evidence about the state of the lighting. Ms Stanley urged me to apply commonsense and conclude that the police car headlights would have been on. I do not accept that submission. Whilst I think it is likely that the headlights were on I do not know where they were facing. Indeed the evidence suggests that the police car, for tactical reasons, was pulled up at an angle to the other car. I have not been taken to any evidence about street lighting. So I am in a position where there was a sighting at night time but no evidence about the light available to the observer apart from the flashing police lights. That means I have to be particularly cautious about the identification.
So far as the circumstantial evidence is concerned, I note that the force of the evidence about the bent key is reduced by the fact that it was never tested. Mr Hudson asserted that he could drive the car with a bent key. The police assert that the likely explanation for the key being bent is it being pulled in a hurry from the ignition. The fact that that proposition was not tested must count against the prosecution. It is true that the general descriptions of the driver of the car coincide with how Mr Hudson appeared in the hotel but, as Mr Herrald points out, they were in very general terms. The relevance of the telephone calls between Mr Hudson and Mr Hourigan depend of course on whether Mr Hourigan was the passenger in the car. I am not satisfied that he was the passenger in the car, then the call records lose their probative significance. I will return to that shortly.
It is true that Mr Hudson was in the vicinity and had the opportunity to commit the crime but they are the product of where he was living and his behaviour that night rather than being particularly incriminating circumstances. As I have said, Mr Hudson gave evidence, as did Mr Kitchen and Mr Hourigan. His Honour did not make a finding about the demeanour of any one of those witnesses. In other words, it seems that I have no significantly less advantage in assessing the credibility of their evidence than his Honour did. Here I must bear in mind that I would direct a jury in a case where an accused gives evidence that I must effectively reject the evidence before I can find the accused guilty. Even though I may have reservations or doubts about the evidence, if I think that there is a reasonable possibility that the accused's evidence could be true, then that reasonable possibility of truth represents a reasonable doubt.
In this case I do have significant reservations about Mr Hudson's evidence but he made no concessions in the cross examination that he was subjected to. His evidence held up. Some aspects were unsatisfactory. His Honour observed at one stage that it was not helpful when many of his answers were "I don't know". As Mr Herrald frankly acknowledged, the timing upon which his client's account depends is very tight. He had to get himself home in 10 or 15 minutes and lie down and then have the car stolen for it to turn up in town at 12:45 am. Nevertheless, as Mr Herrald points out, although tight, it is possible.
There are aspects about Mr Hourigan's and Mr Kitchen's evidence which are unsatisfactory. They were appropriately and fairly called as witnesses by the prosecution. It may be the case that they were therefore not subject to as vigorous cross examination as they may have otherwise been. There were inconsistencies between their evidence, but both acknowledge that they were talking about a period of time in the early hours of the morning when they had both been drinking. Neither of them made any concessions.
Having set out the components of the prosecution case as I just have, I have to say that I am left with a reasonable doubt about Mr Hudson's guilt. The identification evidence is strong but there is an aspect to it, namely the lighting, which reduces its cogency. The circumstantial evidence has some force but the key was not tested and Mr Hourigan gave an account in sworn evidence which was innocent. I am not of the view that I can reject Mr Hudson's evidence out of hand. So in deciding this case, those two aspects of jury directions - namely about identification and evidence given by an accused - have assumed importance.
I appreciate that it was a serious traffic offence and that much effort has gone into the investigation and the prosecution by the police. Nevertheless for the reasons which I have given I am left with a reasonable doubt about Mr Hudson's guilt. I propose to allow his appeal.
Accordingly the formal order which I make is this. Under s 20(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) I determine this appeal against conviction by setting aside the conviction.
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Decision last updated: 24 February 2014
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