Miller v Police - [2007] SASC 435

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MILLER v POLICE
[2007] SASC 435
Judgment of The Honourable Justice Gray
14 December 2007
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Appeal against conviction - appellant convicted of illegal use of motor vehicle and driving vehicle while unlicensed - Magistrate dismissed charge of unlawful possession of personal property on defence submission of no case to answer - defendant pleaded not guilty to all charges - whether Magistrate erred in exercise of discretion not to exclude the identification evidence of police officer - whether Magistrate's observations in respect of evidence of identity incorrect - directions to jury where reliance placed on identification evidence - whether risk of miscarriage of justice had occurred.
Held: Appeal dismissed - Magistrate did not err in declining to exclude identification evidence - no risk of miscarriage of justice.
Domican v The Queen (1992) 173 CLR 555; R v King (1975) 12 SASR 404; Festa v The Queen (2001) 208 CLR 593, considered.

MILLER v POLICE
[2007] SASC 435
Magistrates Appeal
GRAY J.

This is an appeal against conviction.
Wayne Ronald Desmond John Miller, the appellant and defendant, was charged with the offences of illegal use of a motor vehicle, driving a motor vehicle while unlicensed and unlawful possession of personal property. The offences were alleged to have occurred between 1 and 3 June 2006. The defendant pleaded not guilty to all charges. The trial proceeded before a magistrate.
At the conclusion of the prosecution case, the Magistrate upheld a defence submission that there was no case to answer on the charge of unlawful possession and dismissed that charge. The Magistrate convicted the defendant on the other two charges. This appeal is against those convictions. The issue at trial and on appeal was identity.
The Trial
The Prosecution Case
It was the prosecution case that on 2 June 2006 at about 10.00am, police officers from a Plain Clothes Tactical Unit were patrolling an area at Northgate when the defendant was observed to be driving a stolen gold-coloured Ford Fairmont on Mornington Terrace. The circumstances were as follows. The Ford Fairmont was being driven in the opposite direction to the police vehicle and by the time that vehicle had executed a U-turn, the Ford Fairmont had disappeared from sight and could not be located.
Constable Mothersole was seated in the front passenger seat of the police vehicle. He gave evidence that as that vehicle travelled west on Mornington Terrace at about 50 kilometres per hour, he observed a gold-coloured Ford Fairmont travelling toward them at about the same speed. As the vehicles passed, he took note of the male driver of the Ford Fairmont. He observed that the driver bore a resemblance to a man he had been actively looking for over the previous days. That man, Constable Mothersole claimed, was Wayne Miller. He had been shown photographs of Mr Miller from police records some ten days…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Miller v Police

Details

AGLC: Miller v Police [2007] SASC 435
Case: [2007] SASC 435
Decision Date: 14 December 2007

CaseChat Overview and Summary

In the matter of Miller v Police, the appellant was convicted of illegal use of a motor vehicle and driving without a license, while the Magistrate dismissed the charge of unlawful possession of personal property based on a no case to answer submission. The court was required to determine whether the Magistrate erred in declining to exclude identification evidence and whether the risk of a miscarriage of justice had occurred. The court held that the Magistrate's decision to reject the submission that the evidence be excluded, as a matter of discretion, was open to him and was the appropriate decision in the circumstances. The court found that the Magistrate adequately directed the jury about the possible unreliability of the identification evidence. The appeal was dismissed, and the convictions were upheld.

The court considered the inherent risk of error associated with identification evidence, including the risk of suggestibility and the displacement effect, as well as the risk of a different kind, which is sometimes called the rogues' gallery effect. The court concluded that the Magistrate did not err in declining to exclude identification evidence, and there was no risk of a miscarriage of justice having occurred. The evidence of the police officers provided ample support for the convictions, and the prosecution had proved each of the elements of the offences beyond reasonable doubt. The appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Magistrate’s decision to reject the submission that the evidence be excluded, as a matter of discretion, was open to him and in the circumstances was the appropriate decision. The Magistrate was in a position to weigh the evidence having regard to any questions that might arise as to its reliability.Inherently Weak Evidence In the case of a jury trial, where reliance is placed on identification evidence, a judge must adequately direct the jury about the possible unreliability of the evidence. The approach to be followed was described by the High Court in the joint judgment in Domican:[5]The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.[5] Domican v R (1992) 173 CLR 555 at 561-562 (footnotes omitted); see also Festa v R (2001) 208 CLR 394 at [64] (McHugh J) The observations of Gleeson CJ in Festa are also relevant:[6][6] Festa v The Queen (2001) 208 CLR 593 at [22] (footnotes omitted).There are two principal dangers associated with identification by means of selection from a group of photographs. These were discussed in Alexander. There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. But there is also a risk of a different kind. The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history. A similar risk arises where identification is made in circumstances suggestive of a criminal background, such as where a person is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions. This is sometimes called the rogues’ gallery effect. Because of the evidence as to the circumstances in which the photo-board shown to Mr Hill was prepared, that is not an issue in the present case. The first kind of risk concerns the probative value of the evidence. The second is a risk that the jury will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence. In that connection, some care is needed in the use of the term “prejudice”. Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused. But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.Hayne J commented:[7]As the reasons of McHugh J demonstrate, it may sometimes be convenient to distinguish between positive-identification evidence and evidence of similarities between the accused and the perpetrator of the crime. It is, however, important to recognise that evidence which the prosecution relies on, to demonstrate that it was the accused who committed the alleged crime, may take many forms. The convenience of classifying some or all of those different kinds of evidence should not be allowed to obscure the fundamental reasoning that underpinned this Court’s decision in Domican v The Queen. In particular, deciding where the boundaries between classes of evidence may lie must not obscure the purpose of what is now commonly called a Domican direction. As was said in the joint judgment in Domican: “Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. … [T]he jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’.” The warning must “isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence”. “The jury must have the benefit of a direction which has the authority of the judge’s office behind it.” The purpose of the warning is self-evident. It is to draw to the attention of the jury the difficulties in evidence which, because it is so seductive, has so often led to proven miscarriages of justice. Giving effect to that purpose does not depend upon, or require, the classification of evidence as positive-identification evidence or as evidence of similarities, as circumstantial or direct. The problem is more concrete than that. It is that witnesses may, with perspicuous honesty, give evidence that it was the accused they saw, or a person like the accused, or a person having particular physical characteristics (like those of the accused) and yet the painful experience of the law is that they may be mistaken. The duty of the judge is to draw the jury’s attention in every such case, where the reliability of the evidence is disputed, to how and why the evidence may not be reliable. The trial judge did not do this sufficiently at the appellant’s trial.[7] Festa v The Queen (2001) 208 CLR 593 at [217]-[218] (footnotes omitted).

Decision

Reasons for decision

GRAY J

It is difficult to determine how this defence evidence was probative. It is possible that it may have supported a suggestion that the defendant was at a friend’s house some distance away and therefore unlikely to have been driving in Northgate at the time suggested on the police case. This was the context in which the Magistrate used the description alibi. This was not a case of alibi, as an alibi requires independent evidence of the defendant being with another person at the time of an alleged offence and therefore not involved in the offence. The defendant did not call any independent corroborative evidence. In these circumstances, the reference by the Magistrate to alibi was of no particular moment. The submission of the appellant’s counsel that the Magistrate had somehow misunderstood the case or had inadequately addressed the defence case should be rejected.Conclusion The evidence of the police officers of the events and observations on both 2 and 3 June 2006 provided ample evidence to support the convictions. There is no risk of a miscarriage of justice having occurred. This Court’s review of the evidence confirms that the prosecution had proved each of the elements of the offences beyond reasonable doubt. This appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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