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 earlier.
Constable Mothersole gave evidence that the distance separating the vehicles as they passed was about 15 to 20 feet. He had a view both through the front windscreen and the driver’s side window of the driver of the Ford Fairmont. He estimated that his opportunity to view the driver was limited to about 1 to 2 seconds. He described the driver as a male Caucasian with short cropped hair, a goatee beard and wearing round blue tinted sunglasses.
At the time, Constable Mothersole made a statement to the other officers in the police vehicle, the substance of which was that the driver of the Ford Fairmont was Mr Miller. Constable Mothersole immediately conducted a stolen vehicle search, which revealed the Ford Fairmont to be stolen. It was at this point that the police vehicle executed a U-turn in an attempt to locate the Ford Fairmont. The other officers in the police vehicle did not make any observation of the driver of the Ford Fairmont.
The following day, 3 June 2006, Constable Mothersole was on patrol with Senior Constable Smith and Constable Sherman in the Northfield area. The course of their patrol took them in the vicinity of Meryl Avenue, Northfield to a house and occupants well known to the police. The gold Ford Fairmont observed the previous day was parked in front of 8 Meryl Avenue. The officers saw a man walking away from the vehicle, up the driveway of 8 Meryl Avenue and then disappearing from sight. This observation did not allow any identification of that man.
Constables Smith and Sherman approached the front door of the premises. They were delayed by the occupants in their entry to the house on the premises. Following entry they conducted a quick search of the house and then proceeded to the rear yard.
In the meantime, Constable Mothersole had taken up a position at the rear of a neighbouring property. He observed a person’s head “bob up” from a garden at the rear of 8 Meryl Avenue, in Justin Avenue. He recognised that person as Wayne Miller. At about the same time, Constable Smith was in the back yard of 8 Meryl Avenue when he also saw a person next door apparently hiding in the back yard. He recognised that person as Wayne Miller.
The defendant agreed to leave the premises and was apprehended by Constable Mothersole. At that point, Constable Mothersole further recognised the man as Wayne Miller.
It was the prosecution case that the evidence of the officers should be accepted, and if accepted would prove beyond reasonable doubt each of the elements of the charged offences. It was not challenged that, at the relevant time, the defendant did not hold a driver’s licence.
The defendant gave sworn evidence at the trial. His case was that he was not driving the gold Ford Fairmont on 2 or 3 June 2006 and that his presence near that vehicle on 3 June 2006 was a mere coincidence. It was accepted that he was the person hiding in the back yard. The defence case was that the identification evidence was flawed and that at the very least a reasonable doubt as to his guilt arose.
The Magistrate’s Findings
The Magistrate in the course of his reasons turned his attention to relevant authorities with respect to identification:
I am mindful of the warnings about identification evidence as set out in Alexander v The Queen (1979) 145 CLR 395 and in particular that ‘Identification is notoriously uncertain’, and that police officers are as susceptible to frailties of human weakness in relation to identification as any lay person may be.
I am also mindful of the decision of Domican v The Queen where it was stated:-
‘Where evidence as to identification represents a 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.’
I bear in mind that the onus of proof rests with the prosecution to prove beyond reasonable doubt that the defendant was the person driving the Ford motor vehicle.
Having made these observations, the Magistrate then continued:
I also bear in mind that the only evidence linking the defendant with the driver of the vehicle in question was the identification evidence of Mothersole and that the defendant has at all times protested his innocence. I have carefully considered the evidence of Senior Constable Mothersole. I accept his evidence that he had seen photos of the defendant over several days prior to his observations on 2 June. I accept that the observation lasted only for a few seconds. I accept that the distance separating Mothersole from the driver of the stolen Ford was only a few metres and that he had a clear view of the driver.
I am satisfied that it was long enough for Mothersole to have made a reliable identification. I accept that he recognised the driver as the defendant, Miller whose photos he had seen previously. The defendant denied that he was the driver of the vehicle, and that he had not been anywhere near the Northgate area on the date in question. By way of alibi, he had been at a friend’s house at Hope Valley. But no friend was called to give evidence to corroborate that.
The other circumstantial evidence which I believe is of some relevance is the fact that the defendant was apprehended on 3 June in the vicinity of 8 Meryl Avenue where the same stolen motor vehicle happened to be parked. I believe to be more than mere coincidence that Mothersole observed the driver of the stolen motor vehicle in Northgate the previous day whom he recognised as Miller, and then on the following day, 3 June 2006, the same car was found in close proximity to where the defendant was apprehended.
The Magistrate found that both charges were proved beyond a reasonable doubt.
The Appeal
Counsel for the defendant submitted that the Magistrate erred in the exercise of his discretion not to exclude the identification evidence of Constable Mothersole. Further, it was submitted that if the evidence was correctly admitted, its inherent weaknesses were such that it was of insufficient weight to support the convictions. It was argued that in these circumstances, the verdicts were unsafe and unsatisfactory and against the weight of the evidence.
A further submission was advanced in regard to the observations of the Magistrate with respect to the evidence of an alibi. It was said that this observation was incorrect and appeared to have influenced the Magistrate in reaching his conclusions. It was said that this was a further reason for the Court to conclude there was a risk of a miscarriage of justice having occurred.
Admissibility
In King,[1] Hogarth ACJ, Mitchell and Zelling JJ discussed the process of “recognition evidence” and observed:[2]
Recognition constitutes a mental process whereby one person, by observation, is able to establish to his own satisfaction the identity of another person. In doing so he no doubt takes into account the general physical characteristics of the person who he is recognising. But a complete catalogue of these personal characteristics, if supplied to a stranger, would be insufficient to enable that stranger to achieve the same act of recognition. At most he could say that the person at whom he is looking could be the man to be recognised, in that the description fits him. He could not say “it is the man”; and it is evidence of the last category which constitutes recognition; it is that type of evidence of which the cases speak when they refer to evidence of identification. It is that type of evidence which the law requires, in certain circumstances, to be accompanied by a warning to the jury.
[1] R v King (1975) 12 SASR 404.
[2] R v King (1975) 12 SASR 404 at 410.
The evidence of recognition in the present case was relevant and probative evidence. There was little difficulty in assessing the weight of the evidence. The circumstances of the recognition were clearly established and the risks associated with reliability were readily identifiable. The Magistrate through his reasons demonstrated his awareness of the relevant authorities and the dangers of acting on evidence of this nature.
In Festa,[3] Gleeson CJ discussed the distinction between admissibility and the weight or sufficiency of evidence of identity:
[3] Festa v The Queen (2001) 208 CLR 593 at [14].
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury’s verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration. It is not enough to say that it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence.
McHugh J was of a similar opinion:[4]
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. 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.
...
The judicial discretion to exclude evidence in criminal cases applies to circumstantial identification evidence as much as it does to positive-identification evidence. When a trial judge is asked to exclude circumstantial identification evidence on the ground of unfairness, the judge must examine its probative value and its prejudicial effect (if any). In Alexander v The Queen — a case of positive-identification evidence from photographs — Gibbs CJ said:
“[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.”
...
In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. Because circumstantial identification evidence is usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasions for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positive-identification evidence.
[4] Festa v The Queen (2001) 208 CLR 593 at [51], [63], and [65] (footnotes omitted).
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).

The present case was heard before a magistrate as the trier of fact. As earlier observed, the Magistrate demonstrated in the reasons for judgment his awareness of the dangers inherent in accepting the evidence of Constable Mothersole. The Magistrate referred to the dangers of convicting the defendant on recognition evidence. In particular, the Magistrate identified the risk of mistake, and the potential for a witness to give evidence honestly and convincingly despite that mistake. He referred to the authorities including Domican and Festa that discussed in depth those dangers and identified factors which might affect the consideration of the identification evidence in the circumstances of a particular case. As counsel for the respondent pointed out, the Magistrate could hardly have been unaware of the difficulties associated with identification evidence, for they formed the basis of the defence case.
As earlier observed, the Magistrate also placed emphasis on other evidence in the case. The events of 3 June 2006 were relevant and probative. The Magistrate was entitled to have regard to those events. In particular, the close physical proximity of the defendant to the gold Ford Fairmont and the officers’ recognition of the defendant on this occasion were relevant and significant features. The officers’ recognition was made from the photographic records, in particular, the same or similar records to those used by Constable Mothersole the previous day. The officers’ recognition on this occasion was accepted to be a correct recognition. This evidence provides strong support to Constable Mothersole’s recognition evidence on 2 June 2006.
My review of the evidence has confirmed that each of the findings made by the Magistrate were open to him. In my view they were appropriate findings to be made.
Another Matter
During evidence-in-chief, the defendant raised his presence on 2 June 2006 at the home of a friend. The apparent relevance was to establish some form of alibi. However, the defendant said that the time of his arrival at the friend’s home was about lunchtime on 2 June 2006. This was about two hours after the police sighting at Northgate earlier in the day.
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.