McLeod v Police

Case [2019] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

MCLEOD v POLICE

[2019] SASC 69

Judgment of The Honourable Justice Stanley

8 May 2019

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING

Appeal against a conviction imposed by a magistrate for the offence of trafficking in cannabis contrary to s 32(3) of the Controlled Substances Act 1984 (SA).

The charge against the appellant arose as follows. On 6 September 2017 in Coober Pedy, police conducted a search of a man named Gene Kroll and seized a bag suspected of containing cannabis. After questioning Mr Kroll as to where he had purchased the cannabis, police attended an address where it was known that the appellant lived. At that location further cannabis was located in press seal bags as well as numerous empty press seal bags. Following a trial before a magistrate, the appellant was convicted of the offence.

On appeal, the appellant contended that the magistrate erred in his treatment of the evidence of Mr Kroll, including by accepting the in-dock identification of the appellant by Mr Kroll. The appellant further contended that the magistrate erred in his interpretation of the non-provision of forensic evidence as well as the criminal concepts of possession and reasonable doubt. 

Held:

1.  The magistrate erred in accepting Mr Kroll’s in-dock identification of the appellant. The in-dock identification was not essential to the magistrate’s finding that it was the appellant who sold the cannabis to Mr Kroll from her place of residence.

2.  None of the appellant’s grounds of appeal had been made out.

3.  Appeal dismissed.

Controlled Substances Act 1984 (SA) s 4, s 32(3); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Sch 1; Magistrates Court Act 1991 (SA) s 42, referred to.
R v GNN (2000) 78 SASR 293, distinguished.
Alexander v The Queen (1981) 145 CLR 395; R v Preston (2013) 116 SASR 522; SAPOL v McLeod Judgment of Magistrate Oates delivered 20 December 2018; The Queen v Hallam & Karger (1985) 42 SASR 126, discussed.
Corfield v Police [2017] SASC 170; Fox v Percy (2003) 214 CLR 118; Jones v Dunkel (1959) 101 CLR 298; Police (SA) v Rosales [2017] SASC 118; R v Baftiroski [2018] SASCFC 83; R v Taylor [2014] SASCFC 112; R v Saleh [2017] SASCFC 75, considered.

MCLEOD v POLICE
[2019] SASC 69

Magistrates Appeal

STANLEY J:

Introduction

  1. The appellant was found guilty after a trial in the Magistrates Court of the offence of trafficking in cannabis contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). The appellant appeals against the conviction.

    Nature of the appeal

  2. This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA). The nature of an appeal pursuant to s 42 is by way of rehearing, which requires the court to consider the evidence before the magistrate…

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McLeod v Police [2019] SASC 69
Case
[2019] SASC 69
Decision Date

CaseChat Overview and Summary

In the case of McLeod v Police, the appellant, McLeod, contested the decision of the Magistrates Court of South Australia. McLeod was found guilty of trafficking in cannabis and appealed the conviction to the Supreme Court. The primary issue for the court was whether the magistrate erred in accepting an "in-dock" identification of the appellant by the witness Kroll, which was the sole evidence identifying McLeod as the seller of cannabis. The appellant argued that this identification was unreliable and should not have been admitted as evidence.

The court examined the principle that an "in-dock" identification, where the witness identifies the accused for the first time in the courtroom, is generally of little value due to the risk of misidentification. The court referred to previous case law, including Alexander v The Queen and The Queen v Hallam & Karger, which highlighted the dangers of such identifications. The court also noted R v Preston, where it was held that an "in-dock" identification is only appropriate if there has been a prior positive identification. In McLeod's case, there was no prior identification, making the in-dock identification the only evidence linking McLeod to the crime, which was deemed valueless.

The Supreme Court found that the magistrate should have recognised the valueless nature of the in-dock identification and disregarded it, even though no objection was raised during the trial. The court concluded that this error was significant, as the in-dock identification was the only evidence incriminating McLeod. Despite this error, the court dismissed the appeal, finding that the other evidence sufficiently supported the conviction.

The final orders of the court were to dismiss the appeal, upholding McLeod's conviction for trafficking in cannabis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I am satisfied it is convenient to proceed in that way. Ground 5: the magistrate erred in accepting evidence of an “in-dock” identification of the appellant by the witness Kroll The appellant submits that the only evidence that identified her as the person who sold the bag of weed to Mr Kroll was his identification of her in the dock during the trial. No objection was taken at the trial to this process of identification. The magistrate accepted Mr Kroll’s in-dock identification of the appellant. He erred in doing so. In Alexander v The Queen[4] Gibbs CJ said:[5]Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused. The reasons for this were explained in Davies and Cody v. The King. In particular there is the danger that the witness will too readily come to believe, without any true recollection, that the man charged is the man whom he had previously seen, particularly if his own memory has become dim and there is some resemblance between the two men. The courts in England and Australia have long recognized the danger of acting upon evidence of identification made in those circumstances. [Footnotes omitted].[4] [1981] HCA 17, (1981) 145 CLR 395. [5] [1981] HCA 17, (1981) 145 CLR 395 at 399. In The Queen v Hallam & Karger[6] King CJ said:[7]Identification by confronting the victim with the suspect in circumstances which tend to suggest to the victim that the suspect is under suspicion is a virtually valueless form of identification which should be resorted to only in the most exceptional situations. [6] (1985) 42 SASR 126.[7] (1985) 42 SASR 126 at 130. In R v Preston[8] David J said:[9]There may be cases where an in-dock identification is appropriate, but only where there has been some form of positive identification on a previous occasion and the in-dock identification merely relates that previous identification to the case at hand. [In this case] there was no previous positive identification, merely evidence that amounted to a piece of circumstantial evidence. Therefore, the only positive identification led as part of the prosecution case against the appellant was that in-dock identification. The evidence is clearly valueless and, if objected to at the time, should have been excluded.[Footnotes omitted].[8] [2013] SASCFC 69, (2013) 116 SASR 522.[9] [2013] SASCFC 69 at [34], (2013) 116 SASR 522 at 527-528. It is immaterial that the appellant’s counsel did not object to the admissibility of this evidence before the magistrate. Once the evidence was led, the magistrate should have directed himself that it was valueless and he would ignore it. So much is conceded by the respondent. However, the respondent does not concede that the in-dock identification was the only evidence in the trial which incriminated the appellant as being the person who sold cannabis to Mr Kroll.

Decision

Reasons for decision

In effect, the appellant submits that the magistrate erred in finding that the charge was proved beyond reasonable doubt. This is really just a rolled-up plea encompassing the other grounds of appeal. For the reasons rejecting those grounds, I also reject this ground.Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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