MAJCHRAK v Police - [2005] SASC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MAJCHRAK v POLICE
Judgment of The Honourable Justice Anderson
5 April 2005
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - TESTIMONY AS TO BELIEF IN IDENTITY
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
Appeal against conviction for three counts of assault - incident occurred early in the morning of New Year's Day - the victims were members of the same family - several people attacked the victims in an area of low light - query if appellant was identified at the scene - identification evidence otherwise weak and inconsistent - danger of evidence being tainted as witness identified appellant while he was being spoken to by police - failure of Magistrate to properly consider the strength or weakness of the identification evidence - held: convictions unsafe - convictions quashed - appeal allowed.
Davies and Cody v The King (1937) 57 CLR 170, discussed.
Kelleher v The Queen (1974) 131 CLR 534; Alexander v The Queen (1981) 145 CLR 395; Festa v The Queen (2001) 208 CLR 593; R v Corley (1995) 63 SASR 509; R v Hallam and Karger (1985) 42 SASR 126, considered.

MAJCHRAK v POLICE
[2005] SASC 121
Magistrates Appeal

ANDERSON J This is an appeal against three convictions. The appellant was found guilty by a Magistrate on five counts. Counts 1, 2 and 3 involve assaults, with count 1 involving an assault occasioning actual bodily harm. Counts 4 and 5 relate respectively to behaving in an offensive manner in a public place, and hindering a police officer in the execution of his duty.
The incident giving rise to the charges occurred early on New Year’s Day 2003 at Morgan. Those allegedly assaulted by the appellant were members of the same family. For the purpose of setting the scene, I set out a description of the events from the reasons of the learned Magistrate:
“7     The evidence from the Nadebaums is that Kenneth and his wife, Lorraine had travelled from their residence at Port Augusta to Morgan to spend and celebrate New Year’s Eve 2002 with their son, Scott and his wife Sally and their children. They had all been out on Sally’s parents’ river houseboat for the whole of that New Year’s Eve, returning to Morgan just after midnight on 1 January 2003.
8      There had been a street party in Morgan to celebrate New Year’s Eve and quite a few people, estimated at about 800, had gathered in the street adjoining the Terminus and Commercial Hotels. On their return from the boat trip, Sally wanted to catch up with some friends before retiring for the night. So Kenneth, Lorraine, Scott and herself stopped at the Commercial Hotel. They noted that it was just before closing time as the bar persons had called for ‘last drinks’. They had a few drinks there and chatted with some people and then made their way home on foot along Eighth Street, Morgan which runs between the two hotels in question, and then turned into First Street which runs behind the Terminus Hotel.
9      Whilst walking along First Street, they heard the noise of a group of revellers near some motel units and a laneway behind the Terminus Hotel. As it turned out, this group of revellers consisted of the defendant and a group of his friends, who had travelled from Adelaide on 31 December 2002 and had engaged in water sports on the river all day long, and then had stayed on and joined in the Town’s street party celebrations for New Year’s Eve. They all occupied the motel units at the rear of the Terminus Hotel.
10     Whilst the Nadebaums were walking along First Street, Scott and his mother Lorraine had a verbal disagreement which appeared to attract the attention of some people in the group of revellers mentioned above, and comments emanating from that group seemed to attract the ire of Scott Nadebaum. He thereupon approached the group, against the advice of his father, Kenneth and what followed after that was a very volatile and traumatic scene for the whole family.
11     Scott was surrounded by the group, assaulted and knocked to the ground and continuously kicked whilst on the ground. Kenneth, his father went to his aid to stop the fight, and he too was viciously set upon, knocked to the ground and repeatedly kicked all over his body; suffering severe injuries to his head, face and body, which resulted in him being admitted to the Waikerie Hospital for some four days.
12     Sally and Lorraine Nadebaum also rushed to their aid, and Sally seeing her husband and father-in-law on the ground, threw herself on top of them to try and protect them from the kicks and she herself was kicked several times in the rib area.”
It was the prosecution case that it was the appellant who was one of several people involved in the attack on the victims. The attack took place in an area of very poor lighting. That made it particularly difficult to identify people, and likewise the number of people involved in the general scuffle made it difficult to identify any particular culprits.
The learned Magistrate spent some time in his reasons assessing the evidence of identification, and also directing himself in relation to the correct approach to identification. The major complaint made by the appellant in this court is that although properly directing himself as to the correct approach to identification evidence, the learned Magistrate in effect paid only lip service to the relevant decisions in his application of the law to the facts. It was submitted that what the learned Magistrate did was a “perfunctory or half-hearted repetition of a formula” to use the words of Gibbs J in Kelleher v The Queen (1974) 131 CLR 534 at 551.
In relation to count 1, Lorraine Naderbaum gave a description of a person who was one of two persons kicking her husband whilst he was on the ground, as being “dressed in white clothing or very light coloured clothing”. She also identified the other person as being “in dark clothing, long sleeve top, and by the feel of him he had partially cropped hair”. The prosecution alleged that the person in white or light-coloured clothing was the appellant.
There was limited evidence before the learned Magistrate in relation to any particular features of the perpetrator. In particular, there were no descriptions relating to facial features, height and build, but only a description of his clothing from Lorraine Naderbaum, and some limited evidence from her daughter-in-law, Sally. The witness, after making sure that her husband was in the hands of the ambulance personnel who attended, then went up to one of the police officers and told the police officer that the person then speaking to the police officer was the ringleader.
The victim’s daughter-in-law, Sally, was also a witness. When she saw what was happening she tried to jump on top of the victims in an attempt to prevent the kicking which was taking place. She gave a description which was based on her position in the middle of the melee. The description was:
“One guy had a … white top on. I thought it was like a DADA brand name top. It had something on the front and [he] had a baseball cap on backwards.”
She also observed that the baseball cap was red and that, “he was one of the persons kicking.”
When asked where the man was kicking, the witness said:
“Just in the pack, I don’t really know, I was down there, I couldn’t see exactly who was kicking who because there was just feet going everywhere.”
In her evidence, she also said:
“I am pretty sure he had Japanese tattoos, or some kind of – I don’t know exactly if they were Japanese, some sort of characters on his arm. No, I don’t know – just the face, I think I remembered. I did see one other guy that was lurking in the shadows, but I didn’t see him properly.”
Counsel for the appellant, Mr Edwardson, attacked the identification made by this witness on the basis that it was common ground that the appellant did not have tattoos of any kind. The description of tattoos had also been part of the witness’s statement to the police given shortly after the incident. In that statement, she said:
“The one person I can clearly remembering (sic) kicking myself and Ken [the victim of count 1] was a male of average height with muscular build. He was clean-shaven wearing a plain white t-shirt, no collar, possibly a brand name emblem on the front. He had a red coloured baseball style cap, which was on backwards and I can also remember that he had some type of Japanese type letters tattooed on his arms.”
In addition, it was asserted during cross-examination that this witness told the police officer, when she went up to him concerning a group which was down the road that, “those people down there have beat up my husband’s father”. The witness responded by saying, “I don’t recall saying that, but possibly.” That was at a time when she spoke to the police officer who, at that stage, was speaking to the appellant. It is suggested that it is a rather odd thing to say if indeed she was identifying the appellant as being the main person involved in the assault on her father-in-law. I agree that it is an unusual way to describe things, if the person standing next to the police officer was in fact one of the group involved in the assault.
The police officers could really add nothing to the identification evidence. The only police officer who could say anything at all which contributed to the question of identification was Officer Hastings who, when cross-examined, agreed that when he approached the disturbance he could see people kicking people on the ground. He agreed in cross-examination that had he observed the appellant as being one of those persons, he would have recorded that fact in his notes. He did not record the fact in his notes. It is suggested therefore that at that time the appellant was not one of the persons involved.
I was referred to the decision of Davies and Cody v The King (1937) 57 CLR 170 which involved the identification by a witness of a person who was then in police custody, and in the dock in court. In their joint judgment, Latham CJ, Rich, Dixon, Evatt and McTiernan JJ held, at 182:
“[I]f a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial.”
In reaching that view the court said, at 181-2:
“A witness who is taken by the police for the purpose of seeing whether he can identify a person who is in custody in relation to a particular crime has in his mind a recollection or impression of the person whom he saw, or, it may be, heard, at the scene of the crime or in relation to some matter which is connected with the crime. The recollection probably relates to the appearance of the person, and possibly to his mode of standing, moving, or speaking or some other characteristic. It is important that this recollection should not be overlaid or in any way affected by suggestions that a particular person in custody is either the person previously seen by the witness or is the person suspected of or charged with the crime. Moreover, inspection of a photograph of the person in custody before viewing him naturally tends to impress on the mind the characteristics shown in the photograph, so that the witness, however honest he may be, tends to identify the person in custody with the person shown in the photograph rather than with the person whom he himself saw previously.
Similarly, if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him.”
In Alexander v The Queen (1981) 145 CLR 395, Gibbs CJ said at 399:
“In theory the manner in which an accused was identified out of court goes to the weight rather than to the admissibility of the evidence.”
However, the Chief Justice also acknowledged a general discretion to exclude evidence of identification where its prejudicial effect outweighs its probative value. He said, at 402-403:
“The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has 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 opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.”
Even though the evidence may be weak, it should not necessarily be excluded. See Festa v The Queen (2001) 208 CLR 593 where McHugh J said at 609:
“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 deprived of the use of relevant but weak evidence. Any 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 court house 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 court house 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 court house. Such statements inevitably weaken the effect of the identification evidence. They are matters to be considered in determining whether 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.”
In this matter, there were several aspects which rendered the evidence of identity of the appellant open to question. He was previously not known by any of the witnesses. The opportunities those witnesses had to see him at the time of the incident were very limited. The lighting in the area was very poor. The identification related more to items of clothing than facial or other physical features, and two of the witnesses saw the appellant in the presence of a police officer shortly after the incident. Added to this is one witness’s clear mistake in identifying the appellant by her reference to tattoos.
This was, in my view, a case where the evidence of these witnesses was properly admitted. However, the weakness of the evidence causes me to believe that the comments in Davies and Cody at 182 are relevant here. The court in commenting on the danger of conviction where the identify of the accused is not supported by other evidence said:
“Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe.”
The complaint the appellant makes is that the learned Magistrate, having set out the principles relating to the dangers of identification evidence, fails to give any reasons for showing that he could be satisfied beyond reasonable doubt that the appellant was correctly identified.
I have set out the difficulties as I see them in acting upon the identification evidence in this case. Apart from the lighting, the number of people generally at the scene, the mistake by one witness and the other factors already mentioned, the important aspect, namely, that the evidence of two key witnesses was potentially tainted, should have been discussed in the reasons.
In R v Corley (1995) 63 SASR 509 Duggan J, in not dissimilar circumstances, spoke of the danger of honest witnesses being mistaken and indicated that the danger of such mistakes is the rationale behind the cautious approach required in relation to identification evidence.
Here that danger, in my view, was real, given that the person identified was being spoken to by a police officer which potentially tainted the evidence.
Again in The Queen v Hallam and Karger (1985) 42 SASR 126, King CJ was dealing with the situation of a witness who saw two accused in the company of police officers and then identified them as his assailants. King CJ said at 129:
“The learned trial Judge was mistaken in his belief that there was no discretion to exclude the identification evidence. There were grounds for such exclusion in the present case which require careful consideration and evaluation. Quite apart from any question of unfairness arising out of the circumstances in which the appellants were in the presence of the police at the One Stop Shopping Centre, to which reference will be made later, the circumstances attending Roberts’ identification at the shopping centre were most unsatisfactory. The element of suggestion involved in the two young men being in the company of the police was great and there were no other civilians present to provide any element of selection. An identification made in such circumstances is virtually valueless: Davies and Cody v The King. The circumstances surrounding Warncken’s identification of Karger were even more unsatisfactory. He first identified Karger at the preliminary hearing in the Magistrates Court. Before doing so he was told by one of the detectives, he thought Detective Romans, where the dock was situated in the courtroom and where the accused would be and was told that he would be asked to identify them. When identified by him at the preliminary hearing and at the trial, Karger was, of course, in the dock. Reference to this type of identification was made in the judgment of Gibbs CJ in Alexander v The Queen.” (footnotes omitted)
The learned Magistrate in this case sets out the identification evidence and directs himself correctly to approach that evidence with great caution. He then cites some of the relevant cases and sets out the principles.
It seems to me that his Honour then decides that the appellant’s evidence is unsatisfactory – in short, he does not believe him. However, he fails to deal with the strength or weakness of the identification evidence. It is not sufficient to reject, as he did, the appellant’s version of events because he must go on and find that the prosecution has proved its case beyond reasonable doubt.
I do not believe this was a strong case on identification. I further do not believe that the learned Magistrate directed himself to the dangers of the evidence being tainted and in my view the convictions in relation to the first three counts, without adequate reasons, are unsafe.
I therefore allow the appeal and quash the convictions in relation to counts 1, 2 and 3. There was no argument presented on counts 4 and 5 and those convictions will stand.