Nesbitt v Sutton
[2001] WASCA 114
•12 APRIL 2001
NESBITT -v- SUTTON [2001] WASCA 114
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 114 | |
| Case No: | SJA:1238/2000 | 29 MARCH 2001 | |
| Coram: | MURRAY J | 12/04/01 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | GEORGE NESBITT JAMIE PETER SUTTON |
Catchwords: | Criminal law and procedure Evidence Evidence of identification by photograph Whether evidence rightly excluded in the exercise of discretion Whether evidence sufficient to require answer to prosecution case |
Legislation: | Nil |
Case References: | Alexander v The Queen (1981) 145 CLR 395 Collard v The Queen [2000] WASCA 417 Draper v The Queen [2000] WASCA 160 Grvic v Pitkethly (1992) 38 FCR 95 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Parker v Espinoza (1996) 85 A Crim R 336 Pinta v The Queen [1999] WASCA 125 Sharrett v Gill (1993) 113 FLR 316 Yarran v The Queen [2001] WASCA 52 Burr v Strickland, unreported; SCt of Tasmania; 26 October1995 Dawson v The Queen (1990) 2 WAR 458 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NESBITT -v- SUTTON [2001] WASCA 114 CORAM : MURRAY J HEARD : 29 MARCH 2001 DELIVERED : 12 APRIL 2001 FILE NO/S : SJA 1238 of 2000 BETWEEN : GEORGE NESBITT
- Appellant
AND
JAMIE PETER SUTTON
Respondent
Catchwords:
Criminal law and procedure - Evidence - Evidence of identification by photograph - Whether evidence rightly excluded in the exercise of discretion - Whether evidence sufficient to require answer to prosecution case
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr D J Matthews
Respondent : Mr M D Cuerden
Solicitors:
Appellant : State Crown Solicitor
Respondent : Hammond Worthington
Case(s) referred to in judgment(s):
Alexander v The Queen (1981) 145 CLR 395
Collard v The Queen [2000] WASCA 417
Draper v The Queen [2000] WASCA 160
Grvic v Pitkethly (1992) 38 FCR 95
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Parker v Espinoza (1996) 85 A Crim R 336
Pinta v The Queen [1999] WASCA 125
Sharrett v Gill (1993) 113 FLR 316
Yarran v The Queen [2001] WASCA 52
Case(s) also cited:
Burr v Strickland, unreported; SCt of Tasmania; 26October1995
Dawson v The Queen (1990) 2 WAR 458
(Page 3)
1 MURRAY J: On 2 December 1999 two teenage girls, a Ms Clark and a Ms McDonald, were walking home after attending the Applecross Senior High School, which is situated in Ardessie Street, Ardross. After crossing Ardessie Street they walked down a laneway to Riseley Street. As they did so, they saw a male person on a bicycle. He was initially facing in the same direction as they were walking, some metres ahead of them, but he turned his bicycle around and rode towards and past them.
2 A little later, having walked along Riseley Street, a little way in Glencoe Road and a short distance in Barrisdale Road, a person who appeared to be the same cyclist rode his bicycle past them from behind on the opposite side of the road. Having got some distance ahead of them he did a U-turn and rode his bicycle back towards them on the same side of the road as that upon which they were walking. As he rode past them he masturbated his erect penis, which they could see exposed out of the left leg of his shorts.
3 Eight days later on 10 December 1999 an investigating police officer, Detective Thompson, attended at the high school. He was enquiring into allegations from a number of female students about incidents of behaviour similar to that described above. He had with him a photoboard which contained 12 photographs of male persons, all casually attired or apparently dressed in singlets or t-shirts. In some cases, only the head of the individual was visible, in others the photograph was of the head and shoulders of the subject. A number of girls were shown the photographs. Included among them was Ms Clark. She identified the person depicted in photograph no 5 as being the person who exposed his penis to her on 2 December.
4 The respondent, however, had already been charged with the offence and admitted to bail upon a complaint that he "wilfully and obscenely exposed his penis in a public place, Barrisdale Road", contrary to s 66(11) of the Police Act 1892 (WA). The complaint was tried before a Magistrate in the Perth Court of Petty Sessions on 13 and 14 November 2000. The prosecution case was presented on 13 November and following that the learned Magistrate heard argument from the prosecuting sergeant and defence counsel as to the admissibility of the photoboard identification and the question whether it should be excluded in the exercise of his Worship's discretion, even if admissible.
5 The learned Magistrate gave his decision upon those submissions on the following morning. His Worship relied on the High Court decision in
(Page 4)
- Alexander v The Queen (1981) 145 CLR 395 and particularly upon the judgment of Gibbs CJ at 402 -403 where his Honour said:
"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. In a case such as the present it seems to me proper for a trial Judge, in deciding how he should exercise his discretion to take into consideration that it is the duty of police officers investigating the crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason 'only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person': Reg v Russell [1977] 2 NZLR 28."
7 His Worship noted that the photograph was of a person viewed from the front, showing his face but having no particular facial features which might strengthen identification. His Worship thought that, particularly having regard to the evidence of Ms Clark about the fact that the offender
(Page 5)
- was wearing a bicycle helmet and dark glasses, he could accord the evidence of identification "little weight overall". And yet his Worship thought that the evidence would be gravely prejudicial and so upon that ground he concluded that it would be unfair to admit the evidence and in the exercise of his discretion he excluded it.
8 His Worship apparently had no more time on 14 November to complete the trial and so the matter was adjourned to 4 December. On that date defence counsel submitted that the respondent had no case to answer. The test upon which to judge such a submission was held in Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 to be whether the evidence led by the prosecution, taken at its highest, is capable of establishing the guilt of the defendant beyond reasonable doubt, including in a circumstantial evidence case such as this was, whether the primary facts, being considered at their strongest from the point of view of the prosecution, could, upon the entirety of that evidence, be held to be capable of sustaining an inference of guilt beyond reasonable doubt. It is to be noted that in a circumstantial evidence case the tribunal of fact may only infer guilt from the primary facts established by the evidence if that is the only inference reasonably open on the evidence: Draper v The Queen [2000] WASCA 160; 9 June 2000 per Murray J, with whom Kennedy and Wallwork JJ agreed, at par [41] - par [43].
9 His Worship, having heard argument and considered his decision over the luncheon adjournment, held that for the reasons he then expressed he was satisfied that the evidence would not sustain the inference of guilt against the respondent beyond reasonable doubt. He therefore upheld the submission and dismissed the complaint.
10 In his reasons the learned Magistrate naturally focused upon the evidence as to the identity of the offender other than that by way of Ms Clark's photoboard identification which had already been excluded from the evidence. His Worship reviewed the evidence given by Ms Clark and Ms McDonald. He said their description of the offender could fit a large percentage of the population. He mentioned that Ms Clark only noticed the offender as he approached on his bicycle from about 2 to 3 metres ahead of her. Her referred to the clothing that the offender was wearing, the glasses, the helmet and observed that there was nothing in the clothing which appeared to be extraordinary or unusual. As to the bicycle being ridden by the offender, his Worship noted that the description given by Ms Clark would not match the colour of the respondent's bicycle.
(Page 6)
11 So far as Ms McDonald was concerned, his Worship noted that the description of the shirt worn by the offender would not match the shirt which on the evidence the respondent wore when cycling.
12 His Worship noted that the respondent had made no direct admission of guilt. When interviewed by investigating police he had made some remarks which, in his Worship's view, "certainly created suspicion", but which he considered were "not compelling." Therefore, there being no direct evidence of guilt, his Worship appreciated that the case was circumstantial and having regard to the difficulties in relation to the description of the offender and matching that to the respondent to which his Worship had previously referred, he concluded that the evidence put at its highest would not support the inference of guilt beyond reasonable doubt.
13 The complainant's appeal, brought by leave granted by this Court, is upon the following grounds:
"(a) The learned Magistrate erred in law in refusing to admit evidence of the identification of the Respondent by the witnesses Clark and McDonald as the person who exposed his penis to them at the date and place alleged in the complaint; and
(b) The learned Magistrate erred in fact in finding that there was a reasonable doubt that the Respondent was the person who exposed his penis to the witnesses Clark and McDonald at the date and place alleged in the complaint."
- The only quibble that I would have with the grounds, so far as their formulation is concerned, is with the characterisation of the error asserted in ground (a) as an error of law. It is not in fact suggested that the learned Magistrate misconceived the nature of his discretion to exclude evidence or his task in dealing with the objection to the admission in evidence of the photoboard identification. The error, if any, was an error of fact in the exercise of the discretion to exclude the evidence, and the evidence with which the court was then concerned was that of Ms Clark, not also that of Ms McDonald.
14 As to ground (a), it is to be noted that this was not, of course, a trial by jury. The Magistrate was the finder of fact. Whilst he might therefore appropriately direct himself to the unsatisfactory features of the photoboard identification, and whilst his Worship retained the important discretion to exclude the evidence on the ground of unfairness, in a case
(Page 7)
- where his Worship found no impropriety in the process of identification of such a nature as to weaken it beyond the undesirable features of photoboard identification generally it is difficult to discern upon what ground the evidence might be excluded.
15 The question was addressed by the Full Court of the Federal Court in Grvic v Pitkethly (1992) 38 FCR 95. At 103 Sheppard J said:
"In a trial before a jury it will be appropriate in some cases for the trial Judge to reject the evidence of an identification because of its unsatisfactory nature. That does not seem to me to be an appropriate course in a trial without a jury. The evidence is admissible. It is a question of the weight and significance that it is to be given at the end of the case."
- What seems to me to be a slightly different point of view was expressed by Higgins J at 120:
"If there had been a jury, of course, the weight of the proposed identification evidence could have been explored on the voir dire. A trial Judge would then have been obliged to determine whether the probative value of the identification evidence was outweighed by the unfair prejudice inherent in such evidence. That procedure is, of course, an unnecessary one when the tribunal of fact as well decides the admissibility and weight of the evidence and must explain its reasons for its decision. The learned Magistrate did not misunderstand the nature and effect of the identification evidence. He was entitled to accept it if, despite an appreciation of the dangers of accepting such evidence, he found it sufficiently persuasive."
17 The Court of Criminal Appeal has recently on a number of occasions expressed its concern about the apparent, almost invariable, reliance by the police upon photoboard identification rather than the use of processes such as a formal identification parade which enable the accused person to participate in the process and which may result in the witness making an identification directly of the person said to be the offender. The greater
(Page 8)
- cogency and weight of such a process has been referred to, and the greater fairness of the process, properly conducted, than the use of photographs is manifest. The use of photographic identification may clearly give rise to discretionary exclusion of the evidence if the process is in any way mishandled or if, despite the process being well handled by investigating police, it is seen by the court to have elements of unfairness attendant upon it, including that aspect of the discretion which will lead to the exclusion of evidence the probative value of which is substantially outweighed by its prejudicial effect, at least if the case is one being tried by a jury.
18 I was referred to statements of that kind in the context of jury trials, made in Pinta v The Queen [1999] WASCA 125; 17 August 1999, Collard v The Queen [2000] WASCA 417; 21 December 2000 and Yarran v The Queen [2001] WASCA 52; 2 March 2001. In Draper I made the comment:
"I would have thought that in the light of such observations, oft repeated by this and other Courts, it would be a counsel of prudence for an investigating police officer to follow the course suggested, thereby maximising the prospect that admissible evidence of identification, not liable to be excluded in the exercise of judicial discretion, will be obtained."
- It should not be thought that in a trial before a Judge or Magistrate sitting alone, the danger of exclusion of admissible evidence by reason of the unfairness attendant upon its admission it is not present.
19 However, in this case, it seems to me, with respect, that the learned Magistrate did err in the exercise of his discretion to exclude the evidence of identification. The matters to which his Worship referred were matters concerned with the cogency and weight of the evidence. They were matters properly to be considered by the tribunal of fact dealing with evidence admitted before it and in my view provided no ground for the exercise of the discretion to exclude such evidence. If its probative value was properly found to be slight, then the prejudicial effect of the evidence did not remain great, but was correspondingly reduced. The evidence always had a prejudicial effect which matched its probative value as direct evidence of the guilt of the respondent.
20 Apart from the matters concerned with the short period of time for recognition, the wearing of the helmet, the sunglasses and the "big grin", towards the end of her cross-examination Ms Clark agreed that it was possible that she was mistaken in her identification of the person depicted
(Page 9)
- in photograph no 5 as the offender. She was brought back to the point in re-examination and was asked why she picked the man in photograph no 5. She said she recognised him. When asked how strong was that recognition she said, "Fairly strong." To my mind that weakened the probative value of the evidence substantially.
21 Against that background I turn to the second ground of appeal and the question whether the learned Magistrate erred in fact in not being persuaded of guilt beyond reasonable doubt. In my opinion, in view of my conclusion about the error in respect of the identification evidence, the ground cannot be addressed in the terms in which it is formulated. Ground (a) having been made out, in my opinion the appropriate course would be to set aside the acquittal and remit the matter to a different Magistrate for re-hearing. I would take that course unless, as provided in the Justices Act 1902 (WA), s 199(1)(b), I consider that I should "dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if [I consider] that no substantial miscarriage of justice has occurred". In my opinion, to address that issue, it is necessary that I consider whether upon the whole of the evidence led at trial the same result would inevitably have followed, or whether the court acting reasonably might have been persuaded of guilt beyond reasonable doubt.
22 I have commented upon the unreliability and lack of cogency in Ms Clark's evidence about the photoboard identification. She also described the offender as being about 30 with white skin, of slim build, not far off 6 feet tall, clean shaven with black hair. He was wearing black running shorts with a blue t-shirt with the word "Addidas" written across the chest in white letters. She identified a shirt of that description which had been taken from the respondent. She said that was the shirt, but it is clear that by that she meant that the shirt produced in court looked the same.
23 The bicycle the offender was riding was a mountain bike with straight handlebars and it was "a brownish colour". There was red writing on what she described as the main bar of the bike. She was shown a photograph of a mountain bike apparently owned by the respondent. It is a metallic silver in colour and on the forward diagonal bar the word "giant" is written in orange lettering. Nonetheless, when shown the photograph Ms Clark said it was similar to the bike ridden by the offender in its colour and the wheels and she described the writing visible in the photograph as being the same red.
(Page 10)
24 I have mentioned that when cross-examined Ms Clark displayed uncertainty about the clarity of her recognition of the person depicted in photo no 5. As to the bike, Ms Clark agreed that when she made her statement to the police, the offender's bike was originally described as black and that was corrected to dirty brown which, she agreed, did not match the colour of the bicycle shown in the photograph. Finally, she said of the bicycle depicted in the photograph that it did not look like the bicycle ridden by the offender. The frame was the same, but not the colour. Finally, she said that she did not remember, and what precisely it was about the bicycle that she did not remember she did not make clear, even in re-examination.
25 The next prosecution witness was Ms Clark's young friend, Ms McDonald. She described the offender as wearing a navy blue or black sports top. She thought it had the word "Addidas" written on it. He was wearing loose basketball shorts of a dark colour and white sneakers. He was in his late twenties, early thirties, skinny with white skin, dark brown hair and clean shaven. She could not remember him wearing anything on his head or face. He was smiling.
26 She described his bicycle as a silvery metallic mountain bike with black handles. She could remember nothing else about it. She was not permitted to give evidence that she saw the offender in a public corridor of the court. His Worship had ruled that evidence to be inadmissible, a ruling which is not contested on the appeal. She does not appear to have been shown the photograph of the respondent's bicycle while giving her evidence in chief, but when cross-examined she agreed that she had been shown it out of court by the prosecuting sergeant.
27 She was then shown the photograph of the bicycle and she accepted that in her statement she had merely described the bicycle as being of a light colour. She accepted that she had not been able to recall the colour, but said that she now thought it was a silvery colour, having been shown the photograph upon which she was relying. She agreed that what she said about the bicycle having black handles also had not been mentioned in the statement and was something she had noticed depicted in the photograph.
28 Further, she agreed that she had not mentioned in the police statement that she thought the word "Addidas" was written on the shirt. She agreed that that may have been something which had been mentioned in conversation later with her friend. In the end her evidence was that she
(Page 11)
- only really took notice of the offender for the last couple of metres as he approached the two girls and when he exposed himself.
29 Two police officers gave evidence. They were Detective Thompson and Detective Hayes. Their evidence was that after receiving a complaint on the day in question, 2 December 1999, they travelled in the area looking for a male person riding a bicycle. They stopped the respondent. He was riding his bicycle in Alexander Road, very near his home in McCallum Avenue and not far from the location in Barrisdale Road where the offence was committed. That place was really just on the opposite side of the Applecross Senior High School, from the position where the respondent was located. They stopped him and, as is already evident, noted that he was wearing a blue t-shirt with Addidas written across the chest in white, black shorts, white running shoes, a bicycle stack hat and sunglasses. They told him why they had stopped him, but allowed him to leave after taking his name and address.
30 Shortly afterwards, the officers received a telephone call giving them further information. They went to the respondent's home and spoke to him there, telling the respondent that they had received information that the offender for whom they were searching had been wearing clothing identical to that worn by the respondent. He was cautioned and invited the police officers into his home where he told them that he had just been for a ride around the block because he was on holidays, something he often did. The following exchange then occurred:
"I said 'Jamie, I know this may be out of character for you, but the witnesses know what they saw. Let's sort it out'. He said 'Can they be mistaken?'.
I said 'Jamie, we have two young girls who saw a man riding a pushbike showing his dick. I don't think that is the sort of thing they would make up, do you?'. He said 'I suppose not'.
I said 'Can we sort this out?'. He said 'Look, I don't wear underpants because I don't like to, and maybe when I was riding around, someone has seen me. My girlfriend is always telling me off. When I sit down at home, it flops out'.
I said 'So it's possible these girls have seen your penis?'. He said 'I heard some girls giggling when I was riding near the alleyway near Riseley Street, but I don't know if they saw it. I did a U-turn and went back the other way'."
(Page 12)
- The respondent was taken by the officers to a nearby police station where he participated in a videotaped interview during which I assume no admissions were made, because although what was described as the relevant portion of the interview was played to the court below, no transcript of that material was provided on appeal and I was not referred to any part of the questions and answers there recorded.
31 In my opinion, upon that evidence, the acquittal was productive of no substantial miscarriage of justice. The evidence was not, I think, reasonably capable of establishing the guilt of the respondent beyond reasonable doubt.
32 There was no direct evidence of guilt in the form of admissions. Of course there was the very odd statement made by the respondent that, coincidentally, he did not wear underpants so it might have been that when he was riding around someone saw his penis "flop out", but such an occurrence was nothing like the incident described by the girls who saw the offender masturbating his erect penis and looking at them with a broad grin as he did so. The respondent did not admit that he had been in Barrisdale Road, although he put himself very close to that location by saying that he was riding near the alleyway near Riseley Street. He said he heard girls giggling and so did a U-turn and returned in the direction from which he had come. He did not say he saw any girls. In my opinion his statements were very peculiar indeed, but I do not think it was possible to rely upon them as an admission of guilt.
33 The only other direct evidence was that of his identification by Ms Clark, but in this regard I am inclined to agree with the learned Magistrate that the difficulties inherent in the process as a result of the short period of time during which Ms Clark was able to observe the offender, the concealment of the offender's full face and particularly Ms Clark's concession of uncertainty and the possibility of error, would make it impossible to hold that evidence to be persuasive of guilt beyond reasonable doubt.
34 That left only the circumstantial evidence by way of the descriptions given by the girls of the offender and his bicycle, in relation to which there were differences between them and differences between their evidence and what they respectively told the police in their initial statements. It was not surprising that that should be so. There appears to be nothing particularly distinctive about the appearance of the offender or his bicycle. In my opinion, it was not possible on that evidence to exclude the possibility that the respondent was unfortunate that he lived in the area, habitually rode his bicycle in the area and was doing so on the
(Page 13)
- afternoon when the offence was committed, using a similar type of bicycle and wearing similar clothing to that worn by the offender.
35 The learned Magistrate in dismissing the complaint, implied that he was deeply suspicious and that had the appropriate standard of proof of guilt been on the balance of probabilities, he would have convicted. Indeed his Worship suggested to the respondent that if he had a problem of a kind which might produce behaviour of the sort witnessed by the two girls, now was the time to deal with it and to seek appropriate help. In my opinion, for the reasons expressed above, this appeal should be dismissed, despite what I have held to be the error made by the learned Magistrate in respect of the exclusion from evidence of the photoboard identification.
3
8
1