Phelps v Gothachalkenin

[1995] QCA 26

IN THE COURT OF APPEAL	[1995] QCA 026
SUPREME COURT OF QUEENSLAND

C.A. No. 348 of 1994.

Brisbane

[Phelps v. Gothachalkenin]

BRADLEY PHELPS

v.

SAUL GOTHACHALKENIN

Appellant

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Fitzgerald P.
Pincus J.A.

Dowsett J.

____________________________________________________________________

Judgment delivered 24/02/1995

Joint Reasons for Judgment of Pincus J.A. and Dowsett J.; Separate concurring
reasons of Fitzgerald P.

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APPEAL AGAINST CONVICTION DISMISSED

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CATCHWORDS:  CRIMINAL LAW - Conviction - whether identification based upon the complainant being shown a single suspect and identifying that suspect as the offender is sufficient to sustain a conviction - relevance of other direct and circumstantial evidence.

Davies and Cody (1937) 57 C.L.R. 170.

Alexander (1981) 145 C.L.R. 395.

Counsel:Mr S Hamlyn-Harris for the appellant.
Mr D Meredith for the respondent.

Solicitors:Legal Aid Office for the appellant. Director of Prosecutions for the respondent.

Hearing date:15/11/1994.
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 24/02/1995

The circumstances giving rise to this appeal are set out in the joint reasons for judgment of Pincus J.A. and Dowsett J. As their Honours point out, the ground of appeal is that the conviction is unsafe because of the circumstances attending the identification of the appellant as the offender.

The circumspection with which identification evidence must be treated is well-established, and the reasons are well-known and cogent. The courts' concern is to avoid a miscarriage of justice caused by a mistake which is easily made.

While the full vigour of that principle must be asserted, it is unlikely to be helpful to try to categorise the circumstances in which identification evidence will be accepted as reliable or rejected as unreliable. A qualification to that statement might be appropriate in relation to law enforcement activities. Police and any others in positions of comparable authority are required to treat suspects fairly, and this includes the use of reliable methods which minimise the risk of mistaken identification.

In my opinion, there is no adequate reason why the complainant's evidence should not have been admitted and acted upon in this matter. If a complaint, with a description of the offender, leads to the speedy apprehension in the immediate vicinity of a person meeting that description and the complainant observes those events, or sees the person apprehended in company with the person who apprehended him or her, the complainant's confirmation that the person apprehended is the offender does not give rise to an inherent risk of error.

I agree that the appeal should be dismissed.

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DOWSETT J.

Judgment delivered 24/02/1995

The appellant was convicted in the Magistrates Court of the offence of assault occasioning bodily harm and he now appeals on the ground that the conviction was unsafe; the point taken is that there was no adequate evidence identifying the appellant as the offender. The question in this case appears to be one of some general importance.

The evidence is relatively brief; we will summarise it, dealing with the witnesses in the order in which they gave evidence.

Bradley Phelps, a police constable, was called to the City Place Management Office in Cairns and spoke to S C Puckey, who complained of an assault. He then saw Mr G Congoo standing at the rear door of the office with the appellant. Phelps said that he and Puckey began to walk towards that door, but before they got there Puckey said "That's him". In response to further questions, Puckey said he was sure, "That's definitely him". Phelps told the appellant of a complaint that Puckey had been assaulted and the appellant said that "he'd seen him but he had not assaulted him". Phelps noticed that the appellant was drunk.

Puckey said that he was sitting on a wooden seat placed in a street when an aborigine, who was standing in front of him, hit him on the jaw and knocked him back onto the seat. Puckey said "Here, come back you black bastard", but the assailant walked away; Puckey "picked he was drunk because he was wobbling everywhere". He described the assailant as a black Aboriginal with a beard and "long hair - you know, bushy hair". He thought he had dirty looking light coloured clothes on.

Puckey's wife, who had been shopping at the time of the assault, came back to the complainant and the two went together and apparently complained to Congoo. Puckey gave Congoo a description of the assailant; Congoo said "I know him". Subsequently, Congoo brought the appellant along and Puckey identified him. In cross- examination Puckey said that he had his eyes on the assailant for "Only a few minutes - a few seconds" before he was struck. He also said, in effect, that by the time he straightened up after being hit, the assailant had turned and was walking away. He agreed that he saw the person's face for only a few seconds.

Congoo, a security officer with the Cairns City Council, said that a complaint of assault was made to him, together with a description of the assailant, and he said "I think I know the person who it is". He explained that he had seen such a man "in front of the bank about 20 minutes before". He confirmed that he had brought the appellant back and that the appellant had been identified by Puckey. In cross-examination Congoo agreed that he regarded the appellant as "a bit of a pest around the mall".

The appellant gave no evidence before the magistrate, who was satisfied with the identification evidence.

It should be added that the complainant is an old man and the evidence dealt to some extent with the question whether his eyesight was adequate to effect an identification; the appellant does not rely on that point or at least, does not treat it as a matter of importance. The argument is that, in general, an identification based upon the complainant being shown a single suspect and identifying that suspect as the offender is insufficient to sustain a conviction.

In Davies and Cody (1937) 57 C.L.R. 170 at 182 it was said that the view had

been accepted that:
"...if 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".

But in Alexander (1981) 145 C.L.R. 395 at 401 Gibbs CJ said that -

"...there is little support to be found in the authorities for the view that a conviction must necessarily be quashed if it is based on evidence that the accused was identified other than at an identification parade at a time when he had been charged or was definitely suspected...The judgment of this Court in Davies and Cody v. The King suggests that the proper approach is to consider whether the conviction can safely be sustained on the whole of the evidence".

The first part of this dictum may be difficult to reconcile with the passage we have quoted from Davies and Cody.

In Christie [1914] A.C. 545, a young boy who had allegedly been assaulted by the accused came into the presence of the accused almost immediately after the alleged incident. The way in which this occurred is important; the boy went out to play, but "came back screaming and with his dress disarranged;" his mother "took him across the fields and had a conversation with a man who was working there and...the prisoner was fetched back" (546). As the boy and his mother were approaching the accused, the boy said to his mother "That is the man, mum". A police constable who was on the spot asked the boy, "Which man?". In response the boy went up to the accused, touched him on the sleeve and repeated, "That is the man." At the trial the boy did not give evidence of his previous identification of Christie; however, the boy's mother and the policeman gave evidence of it, including the boy's statements that the accused was the man who had assaulted him. Such statements were held by the majority to be inadmissible, in the absence of the boy's own evidence as to his previous out-of-court identification of the accused. Had the boy given such evidence in court, both his evidence and that of the other two witnesses would have been admissible. No criticism was directed towards the act of identification, which was similar in character to that in the present case.

In Alexander (above) Gibbs C.J. cited Christie as authority for the view that where the identifying witness himself gives evidence of his own earlier act of identification, evidence as to that act by another person who was present at the time is also admissible (404). His Honour referred to the facts of the case and its result without apparent disapproval (405). Mason J. (as he then was) approved Christie in another context, not relevant here.

Similar questions have been considered in appellate decisions in this State. In Corke (1989) 41 A.Crim.R. 292, a man entered the female complainant's room at a holiday resort and committed offences. She had ample opportunity to observe him while he was in her room and she recognised him as a man whom she had seen about the resort previously. On the morning following the offences, she recognised him at breakfast and remarked on it to her companion. She again identified him, visually and by recognition of his voice, at a police station; he was brought to the complainant alone.

It was held that the identification at the police station should have been excluded altogether as having no probative value. Because of the admission of the identification at the police station, and inadequate warnings about the dangers of the method of identification, a new trial was ordered.

In Garlin (1991) 56 A.Crim.R. 195, there was circumstantial evidence implicating the appellant in the robbery of which he was convicted and he was also identified by an eyewitness. That person gave a description of the offender and was taken to a police station later on the same day, where she viewed two men in separate rooms and identified one as the offender. It was held that if the only identification of the appellant had been that given by the eye witness just mentioned, the conviction would have been unsafe (117, 201). The appeal was dismissed on the ground that there was other evidence supporting the conviction.

In Currie (C.A. No. 313 of 1990, 21 December 1990) the appellant was convicted of wilful exposure on identification evidence which included a selection from a group of photographs shown to the complainant some six weeks after the offence, and that, together with other circumstances, was held to render the conviction unsafe. We mention that decision principally because the magistrate took the trouble to distinguish it. His Worship, however, was not referred to other Queensland appellate decisions which, in our view, had greater relevance than Currie.

In Meadway (C.A. No. 285 of 1991, 1 April 1992), a decision of this Court, identification evidence was held to be inadequate in circumstances which do not need to be set out in detail. Corke was referred to with approval; Meadway is a strong example of a Court holding identification evidence to be insufficient to support a conviction.

We have noted that in a New South Wales decision in which the facts were rather similar to those in Garlin, an opposite result ensued: Pearsall (1990) 49 A.Crim.R. 439. That was an assault case where the first identification by the victim after the commission of the offence was, as in Garlin, at a police station. Also, as in Garlin, there were only two people shown to the victim; the difference is that in Pearsall there were two offenders, both of whom were shown and both identified. It was held by the New South Wales Court of Criminal Appeal that the evidence of identification was admissible and the court was not prepared to hold that it should have been excluded as a matter of discretion; in that respect, the case may be difficult to reconcile with Corke (above). The other identification evidence appears to have had weaknesses, but the court dismissed the appeal.

In the South Australian case of Hallam and Karger (1985) 18 A.Crim.R. 221, two taxi drivers were allegedly attacked by the appellants in separate incidents. One of the drivers said the police asked him to attend the shopping centre where the appellants had been arrested shortly after the incidents, although the police denied making this request. At the shopping centre the only people present were the police officers and the two appellants. The driver was asked whether the appellants were his assailants and he identified them as such. There was also an inconclusive in-court identification by both taxi drivers. King CJ held that the identification at the shopping centre was most unsatisfactory, it being virtually valueless, as 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" (224). His Honour held that there were serious questions of unfairness involved in the way in which the police procured the identification. He went on to say:

"Identification by confronting the victim with the suspect in circumstances which will 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." (225)

The present is a relatively minor case, but the principles applied to protect the accused must be at least as applicable in respect of major offences. If a person is grievously assaulted and the supposed offender is seized, brought back and identified immediately, is that identification admissible? There may well be no other evidence against him.

If a presumed offender is, as in the present case, brought to the victim shortly after the account of the offence for the purpose of identification, it would seem odd that the propriety of admitting that evidence and its weight should depend upon whether or not the person who brought the presumed offender for identification is a policeman. Here, that person was not a policeman and what Congoo did was a natural and sensible response to Puckey's complaint; to criticise Congoo on the ground that he should not have brought the appellant back for identification would be absurd. The same considerations would apply if, hearing shouts by a person claiming to have been robbed, some bystander tackled a person apparently running away from the place and brought him back to the victim; again, it would seem inappropriate to reject the evidence of identification, if identification ensued, on the ground of unfairness. But in such cases there would hardly be any point in holding a subsequent identification parade; on the appellant's argument, such identifications are irredeemably tainted at the outset.

It is our opinion that, whatever may be the position with respect to identifications arranged by the police, there is no general rule that an identification of the kind here in question must be excluded from the evidence, nor does it seem possible, rationally, to say that such an identification has no probative value.

The question remains whether the conviction was unsafe. Its correctness receives some support from the fact that, as appears not to be in dispute, the description given to Congoo matched that of the appellant; further, there is the admission by the appellant that he had seen the complainant and, lastly, - admittedly a point of slight weight - that the appellant was very drunk, as was the offender.

Although the Crown case was not very strong, it was uncontradicted. In our
opinion the conviction should not be set aside as unsafe. We would dismiss the appeal.