Kelly v The Queen
[2002] WASCA 134
•17 MAY 2002
KELLY -v- THE QUEEN [2002] WASCA 134
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 134 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:117/2001 | 3 APRIL 2002 | |
| Coram: | ANDERSON J STEYTLER J McKECHNIE J | 17/05/02 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | DAVID EDWARD KELLY THE QUEEN |
Catchwords: | Criminal law and procedure - Evidence Identification Accused presented alone to police officer for identification Whether evidence admissible Discretion to exclude No identification parade or photoboard Whether conviction unsafe |
Legislation: | Criminal Code (WA), s 611A |
Case References: | Alexander v The Queen (1981) 145 CLR 395 Bunning v Cross (1978) 141 CLR 54 Corke v The Queen (1989) 41 A Crim R 292 Davies and Cody v The King (1937) 57 CLR 170 Domican v The Queen (1992) 173 CLR 555 Festa v The Queen (2001) 76 ALJR 291 Huynh v The Queen [1999] WASC 45 Jones v The Queen (1997) 191 CLR 439 Kelleher v The Queen (1974) 131 CLR 534 M v The Queen (1994) 181 CLR 487 Nesbitt v Sutton [2001] WASCA 114 Pinta v The Queen [1999] WASCA 125 R v Hallam and Karger (1985) 42 SASR 126 R v Lam [2001] QCA 279 R v Preston [1961] VR 761 R v Turnbull, Whitby and Roberts [1977] QB 224 Roser v The Queen (2001) 24 WAR 254 Strickland v The Queen [2000] WASCA 79 Tyler & Ors (1993) 96 Cr App Rep 332 Chamberlain (No 2) (1984) 153 CLR 521 Plomp v The Queen (1963) 110 CLR 234 R v Easom (1981) 28 SASR 134 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KELLY -v- THE QUEEN [2002] WASCA 134 CORAM : ANDERSON J
- STEYTLER J
McKECHNIE J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Evidence - Identification - Accused presented alone to police officer for identification - Whether evidence admissible - Discretion to exclude - No identification parade or photoboard - Whether conviction unsafe
Legislation:
Criminal Code (WA), s 611A
Result:
Appeal dismissed
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Mr I D Hope
Respondent : Mr R E Cock QC
Solicitors:
Appellant : Ian Hope
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Alexander v The Queen (1981) 145 CLR 395
Bunning v Cross (1978) 141 CLR 54
Corke v The Queen (1989) 41 A Crim R 292
Davies and Cody v The King (1937) 57 CLR 170
Domican v The Queen (1992) 173 CLR 555
Festa v The Queen (2001) 76 ALJR 291
Huynh v The Queen [1999] WASC 45
Jones v The Queen (1997) 191 CLR 439
Kelleher v The Queen (1974) 131 CLR 534
M v The Queen (1994) 181 CLR 487
Nesbitt v Sutton [2001] WASCA 114
Pinta v The Queen [1999] WASCA 125
R v Hallam and Karger (1985) 42 SASR 126
R v Lam [2001] QCA 279
R v Preston [1961] VR 761
R v Turnbull, Whitby and Roberts [1977] QB 224
Roser v The Queen (2001) 24 WAR 254
Strickland v The Queen [2000] WASCA 79
Tyler & Ors (1993) 96 Cr App Rep 332
Case(s) also cited:
(Page 3)
Chamberlain (No 2) (1984) 153 CLR 521
Plomp v The Queen (1963) 110 CLR 234
R v Easom (1981) 28 SASR 134
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1 ANDERSON J: This is an application for an extension of time for leave to appeal and an appeal from judgments of conviction entered against the appellant in the District Court on 25 July 2001 in respect of one count of aggravated stealing of a motor vehicle and one count of aggravated grievous bodily harm.
2 The Crown case was that on 2 August 1998 the appellant and a co-offender by the name of Narrier had stolen a red Toyota Corolla belonging to a Ms McKinley from the driveway of her home and had driven it to Lake Street, Northbridge, where two constables tried to apprehend them. The Crown case was that the appellant was the driver and that he reacted to the attempted arrest by forcing the vehicle out of the line of traffic in which it was stationary by ramming the vehicles in front and behind, colliding with at least one off-street structure, and driving away at speed, in the course of which one of the police officers, First Class Constable Calleja, received a broken leg.
3 The principal prosecution witness was Senior Constable Gilbert. He gave evidence that on the night in question he was working in Northbridge with Constable Calleja in a marked police car when, at about midnight, he observed the Corolla turn left from Roe Street into Lake Street toward the police car and noted that there were two occupants, a driver and a front passenger both of Aboriginal descent, and both of whom appeared to be too young to hold drivers' licences. He gave evidence that "the driver certainly didn't appear to me to be old enough to have a driver's licence". He radioed the registration number to the communication branch of the Police Service and was informed that the vehicle had been reported stolen. By this time, the Corolla had passed the police car going in the opposite direction and Constable Gilbert gave evidence that he saw that it became stationary in traffic. His evidence was that Constable Calleja got out of the police car and ran in that direction and Constable Gilbert followed after securing the police car. Constable Gilbert's relevant evidence as to what happened thereafter is as follows:
"Did you notice anything else about them at that stage?---Well, I saw that they - they had different types of clothing on. Now I don't remember exactly what that clothing was but I remember that they were quite two distinctive male Aboriginal boys.
Do you know how long you were in the traffic looking at them?---At that stage?
(Page 5)
- Yes?---Well, they drove past. Like I said, the traffic was quite thick and they drove past so at that time it was only momentarily that I saw them.
(Passage omitted)
What did you do?---Well, that's when Constable Calleja - I looked behind to see where the car was and I could see that it was stuck in traffic at the corner of Lake Street and James Street. I could see the vehicle was about four to five cars back from the Stop sign and the traffic was moving very, very slowly. That's when Constable Calleja and I decided to try and get the driver out of the motor vehicle. Constable Calleja got out of our car first and ran off up the street and I locked up the police car or secured the police car and went up the street after him.
So you followed him up the street?---That's correct.
What happened then?---Well, by the time I'd got to the car Constable Calleja had actually overrun the car so that's when I approached sort of - from the rear right-hand side of the stolen vehicle on a bit of an angle and just as I got to the stolen car and I went to grab the driver's door handle, the driver of the vehicle turned around, saw me approaching and that's when he locked the door lock of the driver's door. So that prevented me from opening the door.
So what did you do then?---Well, the rear passenger door on that side was also locked and that's when the driver - that's when I tried to - I smashed the window of the motor vehicle to try and get the driver out.
Now, what did you use to smash the window?---I used the police baton - the police baton that I was carrying.
(Passage omitted)
When you struck the window, what happened?---It smashed fairly - - -
Do you know whether it affected the driver in any way?---Well, gave him a fright or appeared to give him a fright and that's
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- when he started to rev the engine and take off and that's when I tried to strike him with the baton.
So did you strike him with the baton?---I'm not too sure if I struck him or not. I'm not too sure if I made contact.
Once the window was smashed, did you get a view of the driver?---Yes. Yes, I was trying to reach in and pull him out.
What happened? What did he do?---Well, that's when he revved the engine and drove into the vehicle in front so I took a could of paces backwards. He then reversed into the car behind. He then drove into the car in front again and then he put it into reverse and spun the car around backwards onto the other side of the road onto the footpath and that's where he hit a planter box out of the front of a restaurant and that's when - - -
(Passage omitted)
So he struck that. What happened when he struck that?---He got stuck there. He couldn't get it back into gear.
Righto. If you would like to sit down again for a minute and just tell us what happened once he was stuck there?---Okay. He then was revving the engine a bit. For some reason he couldn't get it back into gear and that's when I again approached the stolen vehicle and that's when I again tried to get the driver out of the vehicle by using my baton. I was trying to strike him with the baton and I was reaching down, trying to pull him out as well. That's when I was - I was very close to him; I mean, only a matter of a couple of feet so I had a very good look at the driver and what he was wearing at the time."
4 There was evidence that Constable Calleja ran past the stolen vehicle, not recognising it because police communications had described it as blue, not red. However, when he heard the smashing of glass, Constable Calleja ran back, went to the passenger side and attempted to remove the passenger as Constable Gilbert was tackling the driver.
5 There was evidence that the stolen vehicle eventually was driven away at speed with Constable Calleja clinging to it. The Corolla side-swiped another vehicle, dislodging Constable Calleja in consequence of which his leg was broken.
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6 Constable Gilbert's evidence was that after attending to Constable Calleja, he went back to the police vehicle and radioed for urgent assistance. He then returned to the place where Constable Calleja was lying. In response to his call for assistance, Constable Kostopoulos and Constable Smith were alerted and observed the Corolla with its broken driver's window stationary in Roe Street and unoccupied. They then observed the appellant and Narrier trying to use a public telephone in a call box nearby. Constable Kostopoulos engaged them in conversation and, after some radio communication with headquarters, he arrested them both. By this time, another police vehicle had arrived and the two suspects were separated. Constable Kostopoulos and Constable Smith put the appellant in their vehicle and took him back to the scene where Constables Gilbert and Calleja were still waiting for ambulance assistance. Constable Gilbert's evidence about this is as follows:
"What happened next? What happened in the interim after that?---After that, well, I went back to Constable Calleja and waited there with him for a while and then it was approximately 20 minutes later, that's when police officers brought someone to me and I - - -
Who was this person?---Constable Kostopoulos was one of them - - -
Yes?---And I think it was Constable Smith - - -
Yes?---He was working with on that night, and I positively identified him as being the driver of the stolen vehicle at the time of the incident.
When you identified him, where was this - where was this person?---He was in the back seat of a police vehicle.
How were you able to differentiate him from other people as being the driver?---There was only two occupants in the motor vehicle. They were both male teenage Aboriginals. At the time I know that they both had different clothing on and I didn't get a good look at the driver - correction; I didn't get a good look at the passenger of the stolen vehicle, only momentarily. My concentration was focused on the driver and my object was to get him out of the stolen vehicle. I was very close to him, the lighting was good, unobstructed view of him, and I'm absolutely positive that that was the driver of the stolen vehicle at the time."
(Page 8)
7 Constable Gilbert gave evidence of three separate observations that he made of the appellant. The first was when he saw the Corolla being driven towards and past the police vehicle. He described the period of time in which he had them under observation on this occasion as "only momentarily that I saw them". The next observation that he made was immediately on his coming to the driver's side of the Corolla when he saw the appellant through the tinted window in the driver's seat. His evidence was to the effect that they were face-to-face. The next phase of his observation was after he had smashed the driver's window. There was then a period of between eight and 10 seconds when he was trying to get the appellant out of the vehicle, including by trying to hit him with his baton. He described the street lighting as very good and claimed to have a very clear and close sight of the appellant.
8 An important feature of the case is that it is not now in dispute that the appellant was one of the two persons in the stolen vehicle and that his companion was Narrier. There could not be any dispute about this. There was unchallenged expert evidence that the clothing of both young men, seized shortly after the incident, contained fragments of glass from the smashed driver's window.
9 The appellant's case on appeal is not that there was insufficient admissible evidence to prove that he was one of the two occupants of the stolen car, but that there was insufficient admissible evidence to prove that it was he who was the driver and therefore that it was he who was guilty of doing grievous bodily harm to Constable Calleja.
10 As to that, the Crown case depended almost entirely on the evidence of Constable Gilbert. There was no other direct evidence as to which of the two was the driver, although there was some reliance on circumstantial evidence which will be mentioned later.
11 On behalf of the appellant, it was submitted that the circumstances under which the identification of the appellant as the driver was made by Constable Gilbert was such as to render that identification evidence inadmissible, alternatively that the trial Judge should have exercised a discretion to exclude it.
12 In my opinion, the identification evidence was admissible. Counsel for the appellant, Mr Hope, submitted that on the authority of cases such as Davies and Cody v The King (1937) 57 CLR 170, R v Hallam and Karger (1985) 42 SASR 126 and Corke v The Queen (1989) 41 A Crim R 292 identification evidence obtained by police showing the accused
(Page 9)
- person alone to the witness is inadmissible as having no evidentiary value. I do not consider that the cases cited by Mr Hope go so far as to lay down a rule to the effect that such evidence is inadmissible in point of law. There are cases which stand as good authority the other way. In R v Preston [1961] VR 761, a householder arrived home to find his house being burgled. There was a confrontation and the burglar escaped. The householder reported the matter by telephone and an hour or so later the police brought the accused to the house and presented him, alone, for identification by the householder. There was evidence that the householder immediately made a positive identification by saying, "That is him". The court observed that this was a very unsatisfactory method of obtaining identification evidence because the suspect was visibly in police custody, but that, nevertheless, the evidence was admissible. The conviction was quashed due to the inadequacy of the trial Judge's direction on identification evidence, not on the ground that that evidence was inadmissible.
13 In Festa v The Queen (2001) 76 ALJR 291, witnesses to a bank robbery in which the appellant was allegedly involved were asked to attend a courthouse on the date fixed for the hearing of committal proceedings against the appellant and her co-accused. They were asked by one of the police officers, Detective Holmes, to let him know if they saw anybody fitting the description of the woman they had seen at the scene of the robbery because (as he told them) she "could possibly be here on the day". The appellant was the only woman at the courthouse who fitted the description which the witnesses had given to police. The three witnesses were positioned together at a point from which they could see people emerging from the courthouse lift. The appellant came out of the lift. One of the witnesses purported to recognise her. Another of the witnesses thought he was "about 75 per cent sure" it was her. The third witness said she "looked familiar". The High Court held that the identification evidence of these witnesses was admissible notwithstanding it was of low probative value.
14 As Gleeson CJ pointed out in Festa at par 15, the High Court had assumed the admissibility of such evidence in Davies and Cody v The King (supra), as weak as it was. The appeals in that case were allowed due to the deficiencies in the summing up. In Festa at par 51 and par 52, McHugh J said:
"But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be
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- deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
Nor is it an automatic ground of exclusion that the identification took place at a courthouse or after someone has suggested that a suspect may be present at a particular place. The courts have not gone so far as to say that a courthouse identification must be automatically excluded where a police officer or other person has suggested that the identifying witness should be on the lookout for the perpetrator of the crime at the courthouse. Such statements inevitably weaken the effect of the identification evidence. They are matters to be considered in determining whether the evidence should be excluded because its probative value is outweighed by its prejudicial effect. Of itself, however, a statement such as that made by Detective Holmes does not provide a ground of exclusion."
15 In Hallam and Karger v The Queen (supra) the South Australian Supreme Court (King CJ, Mohr and O'Loughlin JJ) also assumed that identification evidence of a taxi driver obtained by showing the two suspects to him in the company of police was admissible, although of low probative value. In that case, the only other evidence against the accused was confessional evidence, which the Court held should have been rejected on the grounds of unfairness arising out of the way in which the police investigations were conducted, so that the evidence as a whole was insufficient to justify the convictions. I think Mr Hope's best case is Corke v The Queen (supra) in which the Queensland Court of Criminal Appeal said of a complainant's identification evidence which had been obtained by the police bringing the complainant into confrontation with the appellant alone at the police station when it would have been a simple matter to arrange an identification parade (at 295): " … it would have been better to have excluded it completely". That seems to me to have been a statement made obiter dicta, as it was not necessary for the decision in the case. The conviction was quashed because of deficiencies in the summing up which did not adequately direct the jury as to the weaknesses in the identification evidence.
(Page 11)
16 In my opinion, insofar as the appeal rests on the contention that the identification evidence of Constable Gilbert was inadmissible, the appeal cannot succeed.
17 The next question is whether the evidence ought to have been excluded on discretionary grounds. As Gibbs CJ said in Alexander v The Queen (1981) 145 CLR 395 at 402 - 403:
"However a trial judge had a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of the opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused."
18 Generally speaking, the discretion will be enlivened if there is evidence of bad faith or impropriety in the identification process or if it is attended by sufficiently serious elements of unfairness: Nesbitt v Sutton [2001] WASCA 114 per Murray J at par 17 - 18. Where a much better or much safer method of identification was available but not used, and there was no explanation for not using it, that might be enough: Roser v The Queen (2001) 24 WAR 254, especially at par 87 and par 87.
19 In my opinion, it was open to the trial Judge to decline to exercise his discretion to exclude this evidence. There is no suggestion of impropriety or bad faith on the part of Constable Kostopoulos and Constable Smith. There were good operational reasons to separate the appellant and Narrier as soon as they were arrested on the street. It is the experience of this Court that this is standard procedure. As arresting officers, it is understandable that they should wish to confirm with Constable Gilbert as soon as possible that they had the same person he had tried to arrest some 20 minutes earlier. I am not persuaded that this provides a reason why the prosecution should be deprived of Constable Gilbert's identification evidence. It might have been better if both young men had been presented to Constable Gilbert together, but I do not believe the appellant lost any forensic advantage by the failure to adopt that procedure. It is not suggested that the two young men were so similar in appearance that Constable Gilbert may not have been able to distinguish between them or may have mistaken the one for the other.
20 As to the element of suggestiveness involved in the appellant being in police custody when brought to him, Constable Gilbert was not a lay bystander whose mind was likely to be affected by being shown the
(Page 12)
- appellant in the police car. He was the police constable who only 20 minutes before had obtained a clear, close-up, unobstructed view of the driver of the stolen vehicle whilst trying to get him out of the vehicle and arrest him.
21 Constable Gilbert relied not only on the visual impression he had obtained of the facial features of the driver, but also on the differences between the clothing worn by the two. Whilst he could not particularise the differences in his evidence at trial three years later, his firm evidence was that they were dressed in a distinctively different manner. This evidence was supported by the photographic exhibits depicting the appellant and Narrier on the night in question at the police station. An examination of these photographs - exhibits 28 to 32 (the appellant) and exhibits 33 to 36 (Narrier) - shows that they were, indeed, dressed in a distinctively different manner and were distinctive in appearance. Narrier had longish, curly hair, a moustache, short beard and an unshaven appearance. He wore a white, buttonless, short-sleeved, collarless top with a distinctive black neckband and a striking, black Nike emblem on the chest front. The appellant had short, straight hair, was clean-shaven and of boyish appearance. He wore a checked long-sleeved collared shirt, buttoned for the full length of the front. With the benefit of these photographs, I do not think the jury would have had any difficulty in accepting Constable Gilbert's evidence that the two young men were readily distinguishable and that he had no difficulty differentiating the appellant from Narrier.
22 Although he condemned the identification evidence, Mr Hope did not say what different identification procedure should have been followed other than to suggest that perhaps there should have been an identification parade or identification by the photoboard method. In my opinion, this was not a case in which any useful purpose would have been served by this. It is not in dispute that the appellant and Narrier were the only two occupants of the stolen vehicle so that the process of identification in this case was a matter of differentiating between them, or distinguishing the appellant from Narrier. In evaluating Constable Gilbert's evidence, the jury were not concerned with whether his impression of the driver's appearance was so true and so complete that he could recognise the driver in a line-up of or collection of photographs of persons of similar appearance; and it would not have advanced the appellant's case if Constable Gilbert had not been able to do so. This is because the jury were concerned with whether they could accept Constable Gilbert's evidence that he could distinguish the appellant from Narrier. These two processes of "identification" are quite fundamentally different. In an
(Page 13)
- ordinary identification case, evidence from a witness which went no further than to describe the offender as having been clean-shaven would not be evidence of positive identification and could not, of itself, convict the accused, but, in a case such as this, the evidence would convict the accused if the description both fitted the accused and positively excluded the only other person who could have been the offender.
23 It is true that Constable Gilbert could not say in what particular respects the two offenders were different in their appearance, but it would have been very surprising if he had been able to, having regard for the fact that, by the time of trial, three years had passed since the happening of the events about which he was giving evidence.
24 In my opinion, insofar as the appeal rests upon the contention that the identification evidence should have been excluded on discretionary grounds, it does not succeed.
25 The only other ground of appeal which was argued was that the conviction was unsafe and unsatisfactory because of the weakness in the identification evidence and the equivocal nature of the circumstantial evidence supporting the identification evidence.
26 In my opinion, the circumstantial evidence going to the issue of the identify of the driver was equivocal. Constable Gilbert gave evidence that he attempted to strike the person who was the driver after he smashed the driver's window and could not be sure whether he had made contact with his police baton, although he may have done. The appellant had a mark on his face which might have been explained by a blow from Constable Gilbert's baton, but there was evidence that Narrier's face was also marked. The marks on both faces might well have been caused by the backwards and forwards ramming which occurred as the driver extricated the vehicle from the line of traffic. There was also evidence that the vehicle collided heavily with a planter box on the sidewalk before speeding off.
27 Glass fragments were recovered from the appellant's clothing, but glass fragments were also recovered from Narrier's clothing. In my opinion, no inference is capable of being drawn from the fact that one set of clothing had more glass fragments remaining on it than the other set of clothing. It is impossible to say how the glass projected into the vehicle when it was smashed with the baton. It is not even possible to say from what remained on their clothing which of the two men received the larger shower of glass. The residue remaining on the clothing no doubt
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- depended, at least to some extent, on the steps taken by the wearer of that clothing to get rid of the glass fragments with which he had been showered.
28 However, I am not persuaded that the identification evidence was not of sufficient strength to sustain the conviction of the appellant on the basis that it was he who was the driver when Constable Calleja was thrown from the vehicle.
29 There are two grounds of appeal which plead that the Judge's summing up to the jury was deficient. No argument was presented in support of either of those grounds of appeal and this is understandable. I am not able myself to discern any deficiencies in the learned trial Judge's directions on identification evidence or circumstantial evidence.
30 I would grant the extension of time, but dismiss the appeal.
31 STEYTLER J: I have had the advantage of reading the reasons for decision of Anderson J. I agree with them. It seems to me that, for the reasons which he has given, Constable Gilbert's evidence of identification of the appellant was admissible and the trial Judge made no error in declining to exclude it on the grounds of unfairness. Nor, so far as grounds 4 and 5 are concerned, did the trial Judge make any error in the course of his directions to the jury. As to the ground of appeal which asserts that the verdict of the jury was unsafe or unsatisfactory, I agree with Anderson J that the circumstantial evidence going to the issue of the identity of the driver was equivocal. However, it seems to me, as it does to Anderson J, that Constable Gilbert's evidence was capable of acceptance by the jury. The jury was entitled to find, as it seems it did, that Constable Gilbert was an honest and reliable witness. While his opportunity to identify the driver of the vehicle was limited, and while the identification was made in difficult circumstances, the fact remains that Constable Gilbert was positive that the appellant was the person he identified. He had the opportunity to make an observation at very close range over a period of eight seconds in good lighting. It was, in my opinion, open to the jury to find that his evidence in that respect was both credible and sufficient.
32 I would consequently grant the extension of time but dismiss the appeal.
(Page 15)
McKECHNIE J:
Introduction
33 Identification evidence has troubled courts for more than a century because identification evidence often appears cogent and is generally given by a witness who is creditworthy and thus often persuasive. This can make the evidence dangerous because a believable witness may nevertheless may be honestly mistaken.
34 A number of special rules have been developed dealing with different aspects of the problems arising from identification evidence. It is important to remember that the rules deal with different aspects. Each case must be examined in the light of the particular issue with which it is concerned.
Issues in identification evidence
35 In dealing with identification evidence at trial, and also its subsequent examination on appeal, it is important to isolate the particular issue or issues raised in the evidence. Different issues have given rise to different rules.
(a) Initial observation at the crime scene
Brief observation by stranger
36 Brief observation of a suspect at a crime scene who is a stranger to the observer: This evidence is generally admissible as part of the circumstances surrounding the alleged criminal transaction even if the observer is unable to positively identify the suspect on a later occasion. The witness may give evidence of matters of similarity or dissimilarity between the suspect and the accused person. The exercise of a judicial discretion to exclude the evidence is enlivened. However, generally, the evidence is regarded as probative and admissible.
Observation of a suspect who is known to the observer
37 This is not evidence of identification but of recognition.
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Recognition and identification
38 There is a difference between recognition and identification. A suspect known to a witness may be recognised by that witness at a place which, for convenience, I will refer to as the crime scene. While examination is undertaken by the court as to the circumstances under which the recognition at the crime scene was made – sometimes very similar to issues of identification – other problems associated with identification are absent. The witness had had a prior opportunity to be familiar with the suspect.
39 Identification occurs when the witness does not know or recognise the suspect who is observed by the witness at the crime scene. In these circumstances there is a later opportunity to see the suspect and for the witness to compare the features of the suspect on that later occasion with their (the witness's) recollection of the person they observed at the crime scene.
40 This evidence is generally admissible. The conditions surrounding the observations at the crime scene may bear on the reliability of the evidence and may require a Judge to give both general and specific warnings to the jury on the dangers of recognition.
Good circumstances of observation of a suspect by a stranger
41 Where an observer has a good opportunity to observe the suspect at a crime scene, the evidence is generally admissible, subject to a warning by a Judge to a jury as to general and particular dangers in observation of the actions of strangers.
Observation by police officers
42 This is subject to the same general rules applicable to other witnesses though a trial Judge in directing a jury may make a factual observation to the jury that honest police officers are likely to be more reliable than the general public, being trained and less likely to have their observations and recollections affected by the excitement of the situation.
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(b) The subsequent identification
The reliability of the identification
43 This includes questions as to the time elapsed between the actual observation and subsequent identification and the effect the time might have had on the observer's ability to accurately bring the features of the suspect to mind.
44 If the initial observation was short and the time elapsed was long, the judicial discretion to exclude the evidence may be enlivened. In any event, a trial Judge is bound to direct a jury as to general and particular matters which may affect the identification.
The reliability of the identification of the suspect from a group
45 A properly conducted identity parade probably gives rise to the most confidence in an identification. A dock identification gives rise to the least. In between are a variety of identification methods which have received judicial consideration, including identification in a crowd, such as at a train station or shopping centre, identification outside or close to a court which the suspect may be attending, video recorded identification, photoboard identification, identification where the suspect is in company with police officers, identification where the suspect is alone, subsequent identification after the observer's prior exposure to news items on television, newspapers, photographs or artist's impressions, or photoboards.
46 Some of these methods when employed in a particular case may produce a result so lacking in probative value as to be inadmissible. Alternatively, the probative value may be so slight as to enliven the judicial discretion. Where there is some probative value in the evidence however the evidence is generally admissible.
Fairness
47 A further issue which arises in the identification process is the question of the fairness of that process.
48 The circumstances of the identification might be such as to cause a Judge to conclude that the lack of fairness in the identification process triggers a discretion to exclude evidence unfairly obtained in order to ensure that the accused has a fair trial.
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49 The public interest considerations in balancing the different factors involved in this discretion can, on occasion, be difficult. There is a public interest in the prompt apprehension of offenders so that, for example, the actions of police in showing a suspect to an observer, without any opportunity for comparison, may be appropriate, brought about by the exigencies of the moment. The use of photoboards is an important investigative tool but has the potential to affect the reliability of evidence, especially if the observer is given a later opportunity to visually identify a suspect. Where police action, or inaction, has failed to provide appropriate safeguards for the identification of suspects, the public interest might require the general rejection of evidence obtained without safeguards. There is more likely to be rejection of the evidence when there was a reasonable opportunity to obtain such evidence with safeguards. The continuing failure in this State for police to hold proper identification parades, or to routinely videotape identification procedures, is such an example. However, there is no general rule excluding evidence obtained as a result of such failure.
50 In every case involving fairness, the search is for a balance of competing public interest requirements. It is no part of the court's duty to dictate procedures to the police. It is very much the court's duty to ensure that a criminal trial is conducted according to law and, so far as is possible, is fair to accused and Crown.
51 What I have so far stated is the distillation of principle from a number of cases; Davies and Cody v The King (1937) 57 CLR 170; Kelleher v The Queen (1974) 131 CLR 534; Alexander v The Queen (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 76 ALJR 291; Roser v The Queen (2001) 24 WAR 254; Strickland v The Queen [2000] WASCA 79; Huynh v The Queen [1999] WASC 45; Pinta v The Queen [1999] WASCA 125; R v Hallam and Karger (1985) 42 SASR 126; R v Preston [1961] VR 761; Corke v The Queen (1989) 41 A Crim R 292; R v Lam [2001] QCA 279;(2001) 121 A Crim R 272; R v Turnbull, Whitby and Roberts [1977] QB 224; Tyler & Ors (1993)96 Cr App Rep 332; Bunning v Cross (1978) 141 CLR 54
52 I now turn to the application of the relevant rules to the present case.
The evidence in the present case in summary
53 The appellant was charged that:
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- "(1) On 2 August 1998 at Northbridge DAVID EDWARD KELLY stole a Toyota Corolla sedan motor vehicle registered number 7FI 284 the property of MARNIE LEE McKINLAY
AN THEN wilfully drove the motor vehicle in a manner that constituted an offence under section 60 of the Road Traffic Act 1974, namely reckless driving.
(2) AND FURTHER that on the same date and at the same place DAVID EDWARD KELLY unlawfully did grievous bodily harm to JASON CHARLES CALLEJA
AND THAT the offence was committed in the course of conduct that, under section 371A, constituted the stealing of a motor vehicle."
54 The appellant pleaded not guilty, stood trial in the District Court, and on 23 July 2001 was convicted.
55 Approaching midnight on 1 August 1998, Constable Calleja and Constable Gilbert were on duty in the Northbridge area. Two young Aboriginal men were noticed driving what was ascertained to be a stolen car. The officers activated the emergency lights on their vehicle, got out and ran towards the car. The driver refused to open the door and Constable Gilbert broke the glass of the driver's window with his baton. The car accelerated heavily and began to ram cars front and back. Constable Calleja mounted the bonnet of the car. When it jerked into gear, he rolled off the bonnet and tried to grab the passenger. His arm latched inside the car which sped off. He hung on. The driver of the car swerved to try and brush him off and succeeded in so doing. Constable Calleja broke his leg. This was a serious injury. Constable Gilbert attended to him.
56 A short time later, the appellant and another Aboriginal youth, Narrier, were seen at a phone box by another police officer. Glass fragments on their clothing provided strong circumstantial evidence that each of them had been in the stolen car. There was much more glass on Narrier than the appellant. The police officer took the appellant by car back to Constable Gilbert. Narrier was not there. Constable Gilbert identified the appellant as the driver of the car.
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Evidence as to the identity of the driver of the stolen car
57 The only evidence as to the driver's identity came from Constable Gilbert. Constable Gilbert's first observation was when he saw an old Corolla turn from Roe Street left into Lake Street. He became a bit suspicious of the occupants, due to their ages, and made a radio check. He was told the vehicle was stolen. He had a view of the occupants of the car whilst he was sitting in the vehicle. Constable Gilbert said:
"… I saw that there was two males who appeared to be teenagers, early teenagers. They didn't look old enough to me to be – to have a driver's - the driver certainly didn't appear to me to be old enough to have a driver's licence.
Did you notice anything else about them at that stage?---Well, I saw that they – they had different types of clothing on. Now I don't remember exactly what that clothing was but I remember that they were quite two distinctive male Aboriginal boys.
…
… they drove past. Like I said, the traffic was quite thick and they drove past so at that time it was only momentarily that I saw them."
58 Constable Gilbert then gave evidence of his observations when he approached the car:
"… the driver of the vehicle turned around, saw me approaching and that's when he locked the door lock of the driver's door …"
59 Constable Gilbert used his police baton to smash the driver's window. Both the appellant and Narrier were shown subsequently to have different facial injuries, each possibly consistent with being hit by a baton.
60 Constable Gilbert was not too sure whether he hit the person or not. He described how when the window was broken he was trying to reach in and pull the driver out. The driver then revved the engine, drove into the vehicle in front, reversed and hit a planter box after doing a u-turn. At that point, Constable Gilbert approached the car again trying to get the driver out of the vehicle by using his baton.
" … I was trying to strike him with the baton and I was reaching down, trying to pull him out as well. That's when I was – I was very close to him; I mean, only a matter of a couple of feet so I
(Page 21)
- had a very good look at the driver and what he was wearing at the time."
61 Constable Gilbert estimated the time of observation at eight seconds. His evidence was that there was nothing to obstruct his vision and the street lighting was very good at the time.
62 Twenty minutes later police officers brought someone to Constable Gilbert and he positively identified the appellant as being the driver of the stolen vehicle at the time of the accident. At the time the appellant was in the back seat of a police vehicle.
63 Constable Gilbert was asked how he was able to differentiate the person in the back of the car as the driver and he answered:
"There was (sic) only two occupants in the motor vehicle. They were both male teenage Aboriginals. At the time I know that they both had different clothing on and I didn't get a good look at the driver – correction; I didn't get a good look at the passenger of the stolen vehicle, only momentarily. My concentration was focused on the driver and my object was to get him out of the stolen vehicle. I was very close to him, the lighting was good, unobstructed view of him, and I'm absolutely positive that that was the driver of the stolen vehicle at the time."
64 In cross-examination Constable Gilbert agreed that in his deposition or statement he did not include any allusion to a description of clothing. He did not include a description of the driver in his written statement made prior to court proceedings. He confirmed that the passenger was a young Aboriginal male and that his clothing was quite distinctively different from that of the driver but agreed that nowhere in his deposition did he provide any description of the clothing of any person in the stolen car. He was cross-examined as to his subsequent identification and it was put to him on the basis that the person in the vehicle was young and Aboriginal and because he was already in custody, and a suspect, he identified him. He said: "That's not true. I only identified him as the offender because I positively identified him as being the driver". In re-examination he was asked:
"Were you able to differentiate between the passenger and the driver---I remember at the time that the two males, Aboriginal boys or people in the car, looked differently. They were
(Page 22)
- wearing quite distinctively different clothing and there's no way that I would have got them two confused."
65 No identification parade was held and no photoboard was prepared. The trial Judge was asked to exercise his discretion to exclude that evidence before the trial and he declined.
The grounds of appeal
66 The grounds of appeal were amended by leave and consequently there are no grounds 1 or 2.
Ground 3
"3. The Learned Trial Judge erred in law by admitting into evidence identification evidence suggestive of the accused as being the offender in circumstances whereby the purported circumstantial evidence was capable of providing competing inferences being inconsistent with guilt and consistent with the appellant's innocence."
67 I have set out the principles in some detail earlier in this judgment so that the particular power and discretion which the Judge in this case was called upon to exercise can be properly identified.
68 In the present case, the short time of observation by the police officer at the crime scene enlivened a discretion to exclude the evidence on the grounds that the prejudicial effect of the testimony outweighed any slight probative value it might possess.
69 Secondly, the circumstances of the subsequent identification raised the issue whether the identification of a single person in police custody at the time was sufficiently reliable so as to justify admission into evidence.
70 In breach of the rules for disposing of such matters at a pre-trial hearing under s 611A of the Code, counsel at trial waited until the jury had retired to select a foreman before raising the admissibility of Constable Gilbert's evidence of identification with the Judge. This was most unsatisfactory and put pressure on the Judge who had to urgently resolve an important question of evidence in circumstances where had the proper procedure been followed there would have been no urgency.
71 Counsel sought to have Constable Gilbert's evidence excluded by reliance on Davies and Cody.
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72 However, Davies and Cody was not a case of exclusion of evidence but of unsatisfactoriness of the verdict due in part to the trial Judge's failure to sufficiently warn the jury of the dangers of identification in the particular circumstances.
73 Although the power to exclude the evidence on the basis of its prejudicial effect might have been enlivened, counsel did not, in terms, ask the Judge to exclude it on that basis. In any event, the evidence was clearly probative and no basis for exclusion on the grounds of prejudice arose: Festa.
74 In my opinion, Healy DCJ was right to conclude that the issue was one of weight rather than admissibility and to allow the evidence.
75 The ground of appeal puts the objection to admissibility on a different basis and involves, with respect, a misconception of the roles of Judge and jury. The evidence was capable of providing proof of the offence. Whether competing inferences inconsistent with guilt were available to be drawn from the whole of the evidence was a matter for the jury not the Judge. Had the Judge excluded the evidence on the basis suggested in the ground he would have been wrong.
76 Counsel did not raise clearly as a ground for exclusion before the Judge unfairness in the identification process. If there was unfairness this may have led to the exercise of a discretion to exclude the evidence.
77 However, in the course of submissions on appeal counsel submitted that the Judge had a duty to consider unfairness and the discretion in any event and cited R v Hallam and Karger in support of the proposition.
78 I have some difficulty with that submission. There are some duties which so affect the fairness of a trial that if the Judge fails to discharge them a mistrial will result, even if the Judge had not been asked by counsel to exercise that duty.
79 However, there are many other matters which depend on counsel raising the issue to enliven the duty. The admission or rejection of evidence and the precise basis on which it should be admitted or rejected is one of these matters.
80 A Judge does not have to deal with every real or imagined possibility if counsel do not think the issue important enough to raise it.
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81 The exercise of a positive discretion to exclude admissible evidence on the grounds of public interest and fairness requires, as a trigger, a precise request for the exercise of that discretion. Had the submission been raised before him, the Judge would have been justified in rejecting it. There was no relevant unfairness or impropriety. The circumstances in which the identification was made are analogous to identification being made whilst police are in pursuit of a suspect. A serious crime had been committed. A suspect had been apprehended while Constable Gilbert was still at the scene. There was a clear public interest in ascertaining whether the appellant was a suspect or could be eliminated from enquiry.
82 It was important for the investigation of the crime, apparently just committed, that an identification be attempted. In the particular circumstances, no unfairness arose from the police action in bringing a suspect to Constable Gilbert.
83 The circumstances of the identification, however, remain relevant to the issue whether the identification was so dangerous that the verdict of the jury was unreasonable. Decisions taken in the course of an investigation may not be necessarily unfair but may lead to a lack of credible or reliable evidence at trial.
84 In this case an examination of the evidence would include for consideration the possible suggestibility if the identification occurred when only the appellant was present and in police custody, the lack of comparison with Narrier or with other people of similar age and build.
85 I do not consider that there was any impropriety in failing to wait for an identification parade or even for the preparation of a photoboard. The Judge did not err in failing to exclude the evidence on the grounds of unfairness. Furthermore, the evidence was of some probative value. Constable Gilbert had made an identification very shortly after the event when it might be expected that his earlier observation was clear in his mind. There was some probative value to the evidence, notwithstanding the limited circumstances of the initial observation and the subsequent possible deficiencies in the identification process.
The trial Judge's direction
86 Ground 4 and 5:
4. The Learned Trial Judge erred in law by failing to warn or adequately warn the jury of the dangers of convicting
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- on identification evidence suggestive of the appellant being the offender.
- 5. The Learned Trial Judge erred in law by failing to warn or adequately warn the jury of the dangers of convicting on purported circumstantial evidence where such evidence was equivocal in nature and capable of providing competing inferences to guilt being consistent with innocence."
87 The Judge's directions to the jury generally and specifically in relation to identification were, with respect, impeccable. I have not set them out because that course would unnecessarily inflate these reasons, although they are in many respects a model instruction to a jury. Much of his address to the jury dealt with identification evidence. He warned the jury about its dangers, analysed the evidence carefully, and directed the jury to have regard to specific matters of weakness in the identification evidence given at trial. These grounds are not made out.
Whether the conviction is unsafe and unsatisfactory
88 Ground 6:
"6. The jury erred in fact, on finding the appellant guilty of both charges when it was unsafe or unsatisfactory to do so in all the circumstances having regard to:
6.1 The lack of prior association between the observer and the observed person before the incident;
6.2 The brief opportunity to observe the occupants of the motor vehicle in the conditions prevailing at the time, and the nature and circumstances of the observation;
6.3 The presenting of the appellant singularly to the identifying witness when the witness knew the appellant was a suspect at the time;
6.4 The proposition that the faint mark on the appellant's face as being corroborative of identification evidence was speculative and unsupported by expert opinion, and being
(Page 26)
- equivocal in nature, made for an inference consistent with the appellant's innocence;
- 6.5 The lack of corroboration of identification evidence from other witnesses present at the scene at the time of the incident;
6.6 The lack of distinction in the description by the observer of the two occupants in the vehicle as evidenced in the observer's statement."
89 For the reasons given, I do not consider that the Judge made any error of law in failing to exclude the evidence or in his directions as to the use to which that evidence might be put by the jury. There remains for consideration, however, the question whether the verdict was unsafe or unsatisfactory.
90 This ground requires this Court to conduct an independent review of the evidence. In my opinion, the evidence clearly established that the appellant was one of the occupants of the car. The glass evidence, to which I have referred, is cogent evidence of this fact. However, as previously noted, a much greater quantity of glass was located on the clothing of Narrier than that of the appellant.
91 A photograph of the appellant tendered in evidence depicted a faint mark on his face. A photograph of Narrier depicted some swelling to his face. Constable Gilbert was not sure whether his baton made contact with the driver.
92 In my opinion the evidence of the facial mark is equivocal as to the identity of the driver. It could not safely be used to establish that the appellant was the driver. Nor does it particularly exclude the appellant or suggest that Narrier was more likely to be the driver. It is not a circumstance capable of use in drawing an inference of guilt against the appellant.
93 The question is whether in the circumstances the verdict is unsafe because of the brief opportunity for observation made by Constable Gilbert coupled with the circumstances of the subsequent identification in custody.
94 In M v The Queen (1994) 181 CLR 487 the High Court laid down a formula for determining whether a verdict is unsafe or unsatisfactory.
(Page 27)
- That formula was approved subsequently by a majority of the court in Jones v The Queen (1997) 191 CLR 439 at 451:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantaged in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence."
96 The appellant was unknown to Constable Gilbert. Although Constable Gilbert asserted that the lighting was very good it was nevertheless night time with street lighting and he was looking into a motor vehicle. His first observation was fleeting. His subsequent observation was at close range over a period he estimated as eight seconds.
97 This observation was undertaken at a time of stress. Stress may work in two ways. It may cloud the observer's ability to memorise the suspect's features or it may, on the other hand, imprint those features strongly into the observer's memory. There are defects in his later identification. These defects include the potential for suggestibility, the lack of a comparison with Narrier, the lack of a comparison with other persons of similar age and build. The evidence is clear that either Narrier or the appellant was the driver. A combination of all the defects in the
(Page 28)
- identification leads to the conclusion that there is a significant possibility an innocent person has been convicted. The evidence of the extremely brief observation by a stranger, coupled with subsequent nature of the identification, is such that the jury ought to have had a reasonable doubt as to the appellant's guilt.
98 As the Crown deliberately did not present its case on the basis that the appellant was a principal offender under the provisions of the Criminal Code s 7 or s 8, the consequence must be that the appeal is allowed, the verdict of the jury is set aside, the conviction is quashed and there is no order for a retrial.
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