L v Police No. Scgrg-00-968

L v POLICE
[2000] SASC 426

Magistrates Appeal (Criminal)

1................ OLSSON J....... ............. This is an appeal against a conviction recorded by a magistrate, sitting as the Youth Court, against the appellant on a charge of intentional damage to property, contrary to s 85 (3) of the Criminal Law Consolidation Act 1935 (SA).

In his notice of appeal the appellant asserts that the conviction was unsafe and unsatisfactory. He complains that the learned magistrate fell into error in accepting the identification evidence of the witness Grabowski. It is pleaded that, in accepting the evidence of identification given by Grabowski, the learned magistrate failed to properly assess the accuracy of the identification evidence, upon a consideration of all the evidence.
It is to be noted that the appellant originally pleaded guilty to the charge in question, but was permitted to withdraw that plea. The matter then went to trial on oral evidence before the learned magistrate. Having reserved his decision, the learned magistrate later published full written reasons for the conclusions to which he came. As he correctly identified, the prosecution case largely rested on identification evidence given by Grabowski. He expressed himself as being satisfied beyond reasonable doubt of the accuracy of that evidence; and that it was the appellant who had caused the damage which was the subject of the relevant charge.
The evidence revealed that, about 5.45 p.m. on 11 November 1998, a young man named Daniel Woodley was driving a motor vehicle which he co‑owned with his father. That motor vehicle was in good repair, without any external panel or body damage. He had just previously pulled into the Shell Service Station at Fairview Park to re-fuel the vehicle. His evidence was to the effect that, having completed the refuelling, he drove the vehicle towards the exit to Hancock Road. As he did so, he became aware of some person calling out. He saw that person running towards his vehicle from the rear, on the passenger side.
Woodley told the learned magistrate that he saw Grabowski, who was sitting in the near side front passenger seat, wind down his window to speak with the approaching person. As that person got to the vehicle, it appeared that he was exhibiting an aggressive manner, whereupon Grabowski was seen by Woodley to attempt to wind up the window. Woodley said that the person attempted to grab Grabowski, who managed to wind the window up. Woodley did not clearly see the person concerned but said that, when the window was wound up that person commenced kicking and punching the vehicle, on the two near side passenger doors. He also punched it on the roof. Woodley managed to drive away. It was later ascertained that the striking of the vehicle had occasioned damage to the bodywork which would cost in excess of $1000 to repair.
I pause to note that Mr Lang, of counsel for the appellant, sought to contend that there was an inconsistency between the evidence of Grabowski and Woodley as to whether the window was wound down at any relevant stage. Reference was made to Grabowski’s testimony to the effect that the offender punched the glass of the closed window (T9). I do not think that there was any necessarily inconsistency. The two witnesses seem to have been referring to two different points in time.
Grabowski testified that he heard some person yelling or shouting and running towards the car, at what must have been about the same time as Woodley. He saw a person approaching the vehicle and exhibiting an angry demeanour. He told the learned magistrate that, when he first saw the person, the latter was about 5 metres away. He instantly recognised him as being the appellant. Grabowski said that he had attended primary school with the appellant and had actually been in the same combined years 6/7 classroom as him in 1992. Indeed, in that year, he had gone to the appellant's home with him on one or two occasions and had played a computer game there. He had also, for a time, attended the same High School during the same period as the appellant, when the latter commenced year 8. Grabowski further said that, after High School, he would see the appellant “every once in a while for the next couple of years in the Tea Tree Plaza Shopping Centre”, an assertion as to which he was never cross-examined. Immediately following the incident, the subject of the charge, Grabowski reported the identity of the offender to the police and was able to indicate the general location at which he lived.
I pause to record that, during the course of evidence, some debate occurred as to whether the correct address of the appellant was Shelley Street St Agnes or Shelley Street Tea Tree Gully. In my view, nothing turned upon this aspect. What was in issue was the correct definition of a suburb. Grabowski thought it was St Agnes, whereas there was a suggestion that it was in fact Tea Tree Gully. The two suburbs are, of course, contiguous. What was important was that Grabowski correctly identified the street and general location in which the appellant in fact lived.
I understood Mr Lang to suggest that the learned magistrate made no finding as to Grabowski attending at the appellant’s home. I do not think that this is correct. I took the learned magistrate to recite Grabowski’s evidence as to such attendance with acceptance (Reasons p 4). What he did not proceed to make a finding about was whether or not, on those occasions, the two lads played computer games (Reasons p 7).
A perusal of the transcript of the cross examination of Grabowski reveals that he was not shaken in relation to the evidence which he gave. He remained quite positive of the identification of the person who damaged the vehicle as being the appellant, a person well-known to him.
When questioned by the police following the incident, the appellant claimed that he could not remember anything that happened on the night in question. He reiterated that situation in cross examination. He said that it was not possible that he could have been out on the occasion in question, because he would specifically remember kicking somebody's car, if he did it. He initially denied that Grabowski had ever been to his home, or played the computer game referred to, although it seems to me that, in cross examination, he was, ultimately, not prepared to deny absolutely that Grabowski did go to his home. The appellant called his father as a witness to establish that, on the evening in question, he had been at home.
It seems apparent that the appellant did not inform his parents of his initial court appearances for some time after the event. It is not entirely clear as to when the appellant's father first became aware of what was being alleged against his son. He was, however, present at a record of interview conducted on 21 February 1999 ie a considerable time after the relevant incident. At that time the appellant denied to the police that he had any knowledge of the incident in question and said that he did not know where he was at the relevant time. There is no suggestion that, on that occasion, the father made any statement suggesting an alibi for his son. However, in giving evidence, he told the learned magistrate that, at some time after the record of interview, he had a recollection that, on 11 November 1998, which was Remembrance Day, the appellant had been home all the evening, at which time there had been a discussion of the involvement of the various members of the family in the armed services; and of the benefits which National Service had conferred on the father. He asserted that there would not have been an opportunity for the appellant to go to the service station area at the time of the incident.
In his published reasons for decision the learned magistrate carefully considered all of the evidence which had been placed before him, including that of the appellant’s father. He reminded himself at some length and in appropriate terms of the applicable authorities touching on the caution which needs to be taken in addressing identification or recognition evidence in a situation such as that before him.
He found that both Grabowski and the father had presented as good witnesses. Nevertheless, he said that he had no difficulty in finding that Grabowski was a witness of truth, accuracy and reliability on the issue of his identification of the appellant as the person who caused the damage to the motor vehicle. He arrived at that conclusion notwithstanding the seemingly positive memory of the father of the events of the night in question. As to this he commented:-
“However, taking all this evidence carefully into account, I still have reservations about the extent that Mr L... could account for all his son's movements in the early evening of 11 November.”
The learned magistrate said that he had no difficulty with the father's recollection about the significance of the date and the family’s involvement in military service and discussion of it that with the appellant. But, on the critical question of the time of the alleged offence, he entertained no doubt that Grabowski was correct in his assertion that the appellant was the person at the service station that caused the damage to the victim's car. On the whole of the evidence he did not accept that the father had such control over the appellant's movements on the date in question, so as to preclude the appellant from attending at the service station and causing the damage.
At the end of the day, having considered all of the evidence before him, the learned magistrate entertained no doubt that Grabowski's evidence was accurate and that the appellant was the offender. As to this he said:-
“Mr Grabowski recognised the defendant as a person that he was friendly with at primary school and recalled attending at the defendant’s home for after school activities. This witness gives telling detail of that friendship. It was, I find, no casual acquaintance. He even knew the defendant’s name and address! Moreover, Mr Grabowski further recalled seeing the defendant at Banksia Park High School and from time to time at Tea Tree Plaza Shopping Centre.
Mr Grabowski reported that he immediately recognised the defendant as he approached on foot the stationary motor vehicle and as the defendant had drawn attention to his approach by his loud boisterous voice. This opportunity permitted Mr Grabowski time to observe the defendant.”
On a careful reading of the transcript of evidence and reviewing the detailed reasons for decision published by the learned magistrate, there cannot be the slightest question but that this conclusion was both fairly open. It was one which was compellingly supported by the whole of the evidence.
As I understand the submissions of counsel for the appellant, they are to the effect that, because the appellant's father presented as an apparently good witness, the learned magistrate should have been left with a reasonable doubt as to the guilt of the appellant. This is, of course, a non sequitur, in terms of logic. The fact that the father presented as a good witness does not necessarily lead to a conclusion that all of the evidence given by him was accurate. As I understand the learned magistrate, whilst he did not reject the father as a witness of truth, he was nevertheless driven to the conclusion that the father must have been mistaken in relation to what had been the situation at the time of the commission of the offence. I construe his reasoning as indicating that, although the father presented as a genuine and honest witness, he may well have been the victim of ex post facto reasoning.
Bearing in mind that the appellant was well-known to Grabowski, it is scarcely surprising that the learned magistrate formed that view.
In the course of his submissions Mr Lang raised specific issues which merit separate comment.
First, he pointed to the evidence of Grabowski as to the latter referring to a year book photograph to determine whether the appellant was at High School with him. He argued that this was some evidence pointing to an unsatisfactory basis of recognition. The short answer to that criticism was the following excerpt of Grabowski’s evidence, which was implicitly accepted by the learned magistrate (T16-17):-
“Q.... I also suggest to you that since that time you have been looking in Year Books and speaking to the police and that has helped confirm in your mind that Scott Launer was the person.
A.No, you see I got the name from the face, not the other way around. As soon as he was approaching the car I instantly thought ‘Scott Launer’ because I recognised the characteristics, whereas I didn’t look in a Year Book, pick out a name and then assign an identity to it.
Q...... But for instance it was looking in the Year Book that led you to the conclusion you had seen him in high school, wasn’t it.
A.That’s right. Just to confirm.”
Second, he contended that the learned magistrate had been guilty of circular reasoning, in that, although he recognised that evidence of recognition was not to be assessed merely by reference to Grabowski’s presentation as a credible witness, nevertheless, that was in fact his final reasoning process.
There can be no doubt that the learned magistrate was well aware of the dangers, adverted to by King CJ in The Queen v Power (1989) 153 LSJS 186 at 188, of being over influenced by the positive character of Grabowski’s evidence, taken alone. Power’s case was not, it is to be noted, a recognition case, it related to an identification issue.
In the instant case the learned magistrate, having accepted Grabowski as a reliable and credible witness specifically reflected upon the facts that:-

.the appellant had been well known to Grabowski over a significant period of time;
.he instantly recognised the appellant when he first saw him and promptly reported that fact to the police;
.he had an adequate opportunity of effecting that recognition and based it on the appellant’s facial characteristics;
.an examination of the whole of the evidence reveals that there is nothing to suggest that the convincing evidence of Grabowski about a person well known to him was defective or questionable. Specifically he did not accept the father’s evidence as erecting a compelling alibi.

It is stating the obvious to say that it is not my function on this appeal merely to attempt a substitution of my assessment of the evidence for that of the learned magistrate, on the basis of the transcript. There is no indication of error on the part of the learned magistrate. On the contrary, it is perfectly obvious that he approached his task on the basis of a careful review of the whole of the evidence with the caution required where recognition evidence is in issue. Whilst it is true that there was no independent corroboration or verification of the recognition and no subsequent line up or photographic array, that is scarcely an end to the matter.
At the end of the day the evidence compellingly established that:-

.the appellant was well known to Grabowski. He attended Primary School with him, visited him at home and has since seen him from time to time at Tea Tree Plaza. As a matter of fact he was at High School for at least one year when the appellant attended there;
.the incident occurred in conditions of good light and visibility, with the offender at close quarters to Grabowski;
.it extended over sufficient time for Grabowski to have a good look at the offender;
.Grabowski recognised him instantly, promptly reported that fact to the police and has never since wavered in his identification;
.Grabowski presented as an excellent witness and was accepted on an issue in which credibility was in question as between him and the appellant concerning visitations to the latter’s home. (The issue of computer games was never resolved one way or another.); and
.the purported alibi given by the father was never articulated until long after the event and subsequently to the record of interview. On the face of it, the explanation for this was scarcely compelling.

I unhesitatingly reject the thesis that, despite the advantage of the learned magistrate in seeing and hearing the witnesses, it still remained the situation that a real risk that the appellant was mistakenly recognised and identified existed. In my view, bearing in mind the experience of the learned magistrate and his careful analysis of the evidence, considered in light of the applicable authorities, such a suggestion verges on the fanciful. With respect there is an aura of considerable unreality in the submissions now advanced on behalf of the appellant.
The case against the appellant was compelling and I am unable to perceive any reason of substance for questioning the conclusion come to by the learned magistrate. There is no solid basis for impugning either his reasoning or the conclusion to which he came.
The appeal must be dismissed.

[2000] SASC 426

30 November 2000