JAMES v Police - [2007] SASC 213

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JAMES v POLICE
[2007] SASC 213
Judgment of The Honourable Justice Kelly
14 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Appeal against conviction - intruder seen running from premises, chased and arrested nearby - whether the magistrate erred in treating the case as one of continuous observation - whether discrepancies in descriptions of intruder cast doubt on identification evidence and rendered verdict unsafe - whether magistrate had regard to irrelevant matters.
HELD: evidence sufficient to satisfy a court beyond reasonable doubt of appellant's guilt - no error identified - appeal dismissed.
R v Thomas 11 December 1996, unreported, judgment no. S5911, distinguished.

JAMES v POLICE
[2007] SASC 213
MAGISTRATES APPEAL

Kelly J: This is an appeal against the finding of a Magistrate that on 28 August 2005 the appellant was unlawfully on premises at Port Noarlunga South. The appellant complains that the Magistrate’s verdict is unreasonable and unsupported by the evidence.
Three particular grounds were identified. The first, that the Magistrate failed to address the very obvious differences in the description of the offender with the appearance of the appellant. The second, that the Magistrate identified a key witness as honest, direct and truthful, yet dismissed his description of the offender which was markedly different to that of the appellant. The third, that the Magistrate’s finding of guilt was based on the preference of one prosecution witness over that of the appellant and that she thereby reversed the onus of proof.
Whether a verdict of guilty is unreasonable and cannot be supported, having regard to the evidence, is a question of fact which an appellate court must decide by making its own independent assessment of the evidence. It is necessary for the court to consider whether upon the whole of the evidence it was open to the trier of fact to be satisfied beyond reasonable doubt of the accused’s guilt.
In determining this appeal then it has been necessary for this court to review all of the evidence before the Magistrate and to reach a conclusion about whether it was open to the Magistrate to be satisfied beyond reasonable doubt of the appellant’s guilt on the basis of the evidence.
The evidence
The prosecution led evidence from a Mr Reid and Ms Potter, who lived with two children at 32 Fremantle Road, Port Noarlunga South. For some time prior to the night in question they had been disturbed by an intruder outside the house, inside the perimeter of their yard. Mr Reid called the police but being dissatisfied with the police response to the complaint, employed a private security service to try and catch the intruder.
On 28 August 2005 he again saw an intruder outside the house, kneeling and looking through the window to the girl’s bedroom. Mr Reid immediately telephoned the security service and within minutes a number of security officers drove to the vicinity of 32 Fremantle Road. Meanwhile Mr Reid observed the intruder jump the fence and run away in the direction of a park diagonally opposite. At the same time one of the security officers, a man named Zahra, arrived outside 32 Fremantle Road. He too observed a man, dressed in denim jeans and light coloured sneakers, jump the fence at 32 Fremantle Road and run towards the park.
Mr Reid kept the male person in his sight for the whole of the time after he saw him jump the fence at 32 Fremantle Road until he was arrested by the security officers in Esperance Road not far away, but for two to three seconds when he lost sight of him after he had actually crossed the road and as the first security car arrived. His next view of him was when he was running back along Fremantle Street, chased by the security guards.
Mr Zahra, the first security guard who arrived in response to Mr Reid’s call, saw a male jump the fence at 32 Fremantle Road and run towards the park. He described the man who jumped the fence as wearing blue denim jeans with light coloured sneakers. Mr Zahra observed the man running towards the park, then change direction and double back starting to head down Fremantle Road in an easterly direction. This witness said he lost sight of the man for about five to ten seconds before seeing him again, running in the easterly direction along Fremantle Road.
There were other witnesses called, including the partner of Mr Reid and another security officer who arrived almost at the same time as Mr Zahra and police officers who arrested the appellant in Esperance Road. However, the prosecution case as to the identification of the appellant as the intruder, was almost wholly dependant on the observations of Mr Reid and Mr Zahra. It was in the light of that evidence that the Magistrate made the following comment:
I consider that the case is less about identification than about the observations of Mr Reid of the intruder’s whereabouts and the fact that he was kept in sight with only the briefest interruption until caught.
The arguments advanced by the appellant on the first ground of appeal centred on what was claimed to be markedly different descriptions given of the intruder compared with the actual appearance of the appellant when arrested. It was said that that, taken in combination with the fact that neither Mr Zahra nor Mr Reid had the man in their sight for the whole of the period of time from first sighting him to when he was arrested, makes it unsafe to conclude that the man arrested was in fact the intruder.
The claim that both witnesses gave markedly different descriptions of the man seen running away, compared with the actual description of the appellant, is not borne out by a close examination of the evidence. In fact, Mr Reid identified the intruder as slightly heavier and taller than himself, in his early to mid twenties and of Caucasian appearance. At the trial he conceded that he was not sure about the age and the man could have been as old as thirty. Mr Reid was a couple of inches shorter than the appellant and weighed one or two stone less than the appellant’s stated weight. It was true that the description of the footwear worn by the intruder on the night in question was somewhat at odds with the brown sneakers he was actually wearing. However, Mr Reid’s evidence was that he was unclear whether the shoes he described were worn on that night or another night.
I consider it to be significant that both Mr Zahra and Senior Constable Bratchell, both of whom were present when the appellant was arrested that night, described the appellant in similar terms. In particular, both described him as Caucasian and in Constable Bratchell’s case, she added that he had an olive complexion. As it happened, the appellant was present at the hearing of his appeal.
There is nothing in the evidence to suggest that the discrepancies between the descriptions of the witnesses and the appearance of the appellant are so markedly different as to cast doubt on the reliability of either Mr Reid’s or Mr Zahra’s identification of the appellant as the intruder. In any event, the Magistrate was alive to the problems associated with the identification of the appellant as the intruder. That much is obvious from the fact that in her remarks she dealt with each and every one of those factors said to affect the reliability of the evidence of both Mr Reid and Mr Zahra.
The complaint that the Magistrate reversed the onus of proof is not borne out by an examination of her remarks. It is obvious that she correctly understood the onus of proof. In the course of her findings as to the credit of the witnesses, she made findings, as she was required to do, about the appellant’s credit. In her remarks she highlighted the pertinent weaknesses and inherent improbabilities in the appellant’s evidence. That does not mean that she reversed the onus of proof. She simply rejected the appellant as a witness of truth. Conversely, she accepted the prosecution witness, Mr Reid, as a witness of truth and in the end, after examining the various discrepancies in his evidence, accepted that as to essential matters his evidence was also reliable.
The appellant’s defence was that he was simply doing laps around the park for exercise on his way to join his wife at Moana South. When he heard the commotion in Fremantle Road he panicked and ran away. There were, as the Magistrate observed, a number of inherent implausibilities in the evidence of the appellant and it does not surprise me that Her Honour rejected the appellant as a witness of truth.
In my view, the Magistrate was correct in treating this case as other than an “identification case” in the usual sense. Even so, as I said, the Magistrate was alive to the problems associated with the identification of the appellant as the intruder. She concluded that effectively the intruder was under continuous observation from the moment the intruder jumped the fence at 32 Fremantle Road until his arrest a few minutes later. In respect of Mr Reid, he lost sight of the man for two to three seconds. Mr Zahra allowed for a five to ten second gap in his view as he left his motor vehicle. The Magistrate’s attitude was that both witnesses were correct in their assertion that the same man was observed throughout.
I consider that the Magistrate’s finding of continuous observation was justified in this case. It is of particular relevance to note that this incident occurred at about 9.15pm in a very narrow geographical area and within a timeframe of seconds, perhaps minutes. This was not a case like the facts in R v Thomas[1]. In that case, witnesses observing events in a park were distracted by having to serve customers or by returning inside their premises for one reason or another, in addition to the fact that there were numerous other people in and around the park.
[1] 11 December 1996, unreported, judgment no. S5911.
I consider that on the facts established in this case, the Magistrate was entitled to conclude, as she obviously must have, that the continuity of the observations of both Mr Reid and Mr Zahra was sufficient to ensure that there was almost no possibility of a mistake being made.
As to the complaint concerning the Magistrate’s comment about the presence of the appellant’s wife in the courtroom, and the fact that she did not give evidence, I observe that this comment was made in the context of the Magistrate’s summary of the course of the trial. As such it appears to be no more than a recitation of historical facts. There is no indication that the Magistrate has relied on that fact to draw any conclusions about the evidence which was tendered.
There is nothing in the evidence or in the Magistrate’s remarks to suggest that Her Honour has taken into account any irrelevant matter. I do not consider that there is any substance in this ground of appeal either.
Conclusion
In the light of my own independent assessment of the evidence, I consider that it was open to the Magistrate to be satisfied beyond reasonable doubt of the appellant’s guilt on this charge. There has been no error of fact or law which might suggest that the trial miscarried. For these reasons I would dismiss the appeal