Police v Dodd

Case [2004] SASC 91

POLICE v DODD

[2004] SASC 91

Magistrates Appeal

  1. GRAY J:               This is a prosecution appeal against the dismissal of a complaint.

  2. On 26 February 2002 Rodney Derek Dodd was charged with driving a motor vehicle whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control,[1] whilst there was present in his blood than the prescribed concentration of alcohol,[2] whilst he was not the holder of an appropriate licence and driving an unregistered and uninsured vehicle.[3] He was further charged with failing to indicate a change of direction in breach of Rule 92(1) of the Australian Road Rules.

    [1] Section 47 of the Road Traffic Act 1961 (SA)

    [2] Section 47b of the Road Traffic Act 1961 (SA)

    [3] Sections s74, 9 and 102 of the Motor Vehicles Act 1959 (SA)

  3. On 21 October 2003 a magistrate dismissed the charges on the grounds that the prosecution had not established an element of the offences beyond reasonable doubt.  The magistrate concluded that the prosecution had failed to prove that Rodney Derek Dodd was the driver of the vehicle. The driving was alleged to have taken place on 10 February 2002.

    Prosecution Case

  4. On the evening of 10 February 2002 Sergeant Jaunay observed a gold Sigma travelling along Highway 83 towards Copley.  Sergeant Jaunay believed that the driver was not wearing a seatbelt.  He followed closely in an unmarked police patrol vehicle.  The vehicle then moved into to a right hand turn lane.  An arrow marked the road surface indicating that it was a right turn only lane.  The driver disobeyed the arrow and continued straight ahead.  Shortly after the vehicle stopped and the driver left the vehicle.  Sergeant Jaunay approached the driver and spoke to him.

  5. The driver initially told Sergeant Jaunay that his name was Clive Derek Dodd.  Sergeant Jaunay doubted that the driver was being entirely truthful and said ‘Tell me your real name’.  The driver replied ‘Rodney Derek Dodd’.  The driver also supplied his date of birth and informed Sergeant Jaunay that he resided at Alberrie Creek, north of Marree.  Sergeant Jaunay smelt liquor on the driver and observed other signs of intoxication.  The driver accompanied him back the Leigh Creek police station.

  6. At the police station, Sergeant Jaunay conducted a breath analysis test and undertook checks on the vehicle and on the name Rodney Derek Dodd.  He discovered that the vehicle’s registration had expired.  He also discovered there was an outstanding warrant with respect to Rodney Derek Dodd.  The address and date of birth provided by the driver were the same as that contained in the police records concerning Rodney Derek Dodd.

  7. The driver’s breath analysis reading was 0.291 grams of alcohol per 100 millilitres of blood.  The driver signed the relevant documentation related to the breath analysis test.  The driver also signed Sergeant Jaunay’s notes.

  8. Sergeant Jaunay then telephoned Senior Constable Andrew Dale, the officer in charge of the Marree area.  At the time of the…

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Details
AGLC
Police v Dodd [2004] SASC 91
Case
[2004] SASC 91
Decision Date

CaseChat Overview and Summary

The case of Police v Dodd involved a dispute over the admissibility of identification evidence presented by the prosecution. The respondent challenged the decision of a magistrate who had excluded certain identification evidence, ruling it to be unfair. The appeal before the Court of Criminal Appeal was to determine whether the magistrate had erred in excluding the identification evidence from the trial. The court considered whether the magistrate had correctly applied the law regarding the admissibility of identification evidence, particularly in light of the specific circumstances of this case.

The court had to decide whether the magistrate had correctly exercised the judicial discretion to exclude evidence on the grounds of unfairness, and if not, whether the exclusion of the identification evidence resulted in a miscarriage of justice. The key issue was whether the magistrate had applied the correct legal test when considering the admissibility of the voice identification evidence and whether the evidence was directly relevant and had substantial probative value. The court examined the magistrate's reasoning and the application of relevant legal principles, particularly concerning the inherent dangers of identification evidence and the need for special caution when such evidence is disputed.

The Court of Criminal Appeal found that the magistrate had erred in excluding the identification evidence. The court concluded that the evidence was directly relevant to the primary issue at trial and had substantial probative value. The court noted that the dangers associated with identification evidence were significantly reduced in the circumstances of this case. Furthermore, the magistrate had imposed the wrong test when considering the admissibility of the voice identification evidence. The court held that the prosecution had established at least an arguable case that the driver of the vehicle was Rodney Derek Dodd, not Clive Dodd, based on the identification evidence and other corroborating details.

The Court of Criminal Appeal quashed the convictions and ordered a re-trial. The court held that the exclusion of the identification evidence resulted in a miscarriage of justice, as the prosecution had established an arguable case that the driver of the vehicle was Rodney Derek Dodd. The court emphasised the importance of correctly applying the legal principles regarding the admissibility of identification evidence and the need for special caution when such evidence is disputed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The statutory presumption was available to the prosecution and of itself established a case to answer. In any event, for reasons to be discussed, the magistrate erred in the rejection of the identification evidence.Identification Evidence The dangers associated with identification evidence are well known. The need to warn juries of the inherent dangers of identification evidence is well established. In Domican v The Queen[16] Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed:[T]he seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must given in criminal trials where identification is a significant issue. Whatever the defence and however the case is conducted, where evidence as to identification represents and 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.[16] Domican v The Queen (1991) 173 CLR 555 at 561 In Festa v The Queen[17] these concerns were reaffirmed. Kirby J commented:The strictures about the particular dangers of identification evidence must be obeyed because courts in this country, as elsewhere, have recognised dual features of identification evidence against which special protections are required in criminal trials. This is particularly, but not only, related to trials conducted before juries. The first feature is the propensity of incorrect evidence of identity, even given honestly and with assurance, to involve mistakes leading to serious miscarriages of justice. The second is the tendency for identification evidence to be given special weight, including in the mind of the jury. If accepted, such evidence will link the accused to the crime. No other evidence against the accused may then be needed. The link, once established, may be sufficient.[17] Festa v The Queen (2001) 208 CLR 593 at 643 It is well established that judicial officers are entitled to utilise a discretion to exclude evidence on the grounds of unfairness. [18] Unfairness may arise from the way the evidence was obtained or due to its minimal probative value. [19] It was not disputed by the prosecution that identification evidence should generally be treated with caution and consideration given to the potential risks of unfairness to an accused. [18] Alexander v The Queen (1981) 145 CLR 395[19] Alexander (1981) 145 CLR 395 at 601 per Gleeson CJ In this case the magistrate considered that a number of items of identification evidence should be rejected due to unfairness resulting from the suggested unprofessional way in which the evidence was obtained. It was submitted by counsel for the prosecution that the magistrate placed too great an emphasis on authorities with different factual circumstances when deciding to exclude the identification evidence presented by the prosecution. Counsel sought to distinguish R v Hallam and Karger[20] and R v Corley[21] on the facts.[20] R v Hallam and Karger (1985) 42 SASR 126[21] R v Corley (1995) 63 SASR 509

Decision

Reasons for decision

The handwriting evidence was admissible. Concerns as to its probative value were relevant matters for the magistrate to take into account when determining the weight to be given to this evidence.Conclusion The trial judge correctly identified the existence of a judicial discretion to exclude the identification evidence adduced by the prosecution. However, in the present case as the evidence was directly relevant to the primary issue at trial and had substantial probative value it should not have been excluded. The dangers and risks often associated with identification evidence were significantly reduced in the circumstances of this case. In any event the magistrate imposed the wrong test when considering the admissibility of the voice identification evidence. In summary the prosecution established at least an arguable case that:- the driver of the vehicle committed each of the offences alleged;-that when apprehended the driver first gave the name Clive Dodd. The driver’s physical description was materially different to the description of Clive Dodd. That description was provided by Senior Constable Dale who well knew Clive Dodd;- when challenged, the driver said his name was Rodney Derek Dodd;-the driver then provided an address that coincided with police records concerning the address of Rodney Derek Dodd;-the driver then provided a date of birth that also coincided precisely with the police records concerning the birth details of Rodney Derek Dodd;-Senior Constable Dale had known Rodney Derek Dodd for more than five years. As earlier observed he also knew Clive Dodd. He was familiar with both of their physical appearances and voices. He considered that Rodney Derek Dodd had a distinctive voice;-Senior Constable Dale provided a detailed physical description of Rodney Derek Dodd. That description matched the description of the driver then present with Sergeant Jaunay. It was a physical description that did not match the description of Clive Dodd;-Senior Constable Dale was well familiar with the voice of Rodney Derek Dodd. He recognised the voice of Rodney Derek Dodd when the driver spoke whilst Senior Constable Dale was on the telephone to Sergeant Jaunay. At that time the driver was in close proximity to Sergeant Jaunay;-the driver at the time of the telephone call confirmed the voice recognition of Senior Constable Dale by saying “oh Andy he knows me”;-10 days later Sergeant Jaunay bought Rodney Derek Dodd from Marla to the Leigh Creek Magistrates court as he had earlier arranged with Sergeant Jaunay;-the Cause List of that day included the name of Rodney Derek Dodd as a defendant;-Sergeant Jaunay was concerned that Rodney Derek Dodd the man whom he had arrested 10 days earlier and had identified would in fact meet up with Senior Constable Dale and travel to Leigh Creek Magistrates court. Sergeant Jaunay was aware of the difficulties in Rodney Derek Dodd otherwise arranging transport. He recognised Rodney Derek Dodd as one of the persons ariving with Senior Constable Dale. It was the same man that he had arrested 10 days earlier with respect to the driving offences and had released on bail in respect of the matter of the outstanding warrant;-the handwriting evidence provided some further support as to the identity of Rodney Derek Dodd.

Ratio Decidendi

Legal Principle Established

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