Police v Dodd

POLICE v DODD
[2004] SASC 91
Magistrates Appeal

GRAY J: This is a prosecution appeal against the dismissal of a complaint.
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)
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
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.
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.
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.
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.
Sergeant Jaunay then telephoned Senior Constable Andrew Dale, the officer in charge of the Marree area. At the time of the telephone call the driver was sitting close to Sergeant Jaunay at the same table. Sergeant Jaunay spoke to Senior Constable Dale. He was primarily concerned about an outstanding warrant and whether he could bail the driver with respect to the outstanding warrant matter. Sergeant Jaunay also asked Senior Constable Dale whether he would be able to assist with transport to the Leigh Creek Magistrates court at a later date if the driver was to be released on bail.
Senior Constable Dale recalled that Sergeant Jaunay also asked whether Senior Constable Dale knew Rodney and Clive Dodd. Senior Constable Dale told Sergeant Jaunay that he knew both men well and provided a detailed description of Rodney Derek Dodd. Senior Constable Dale provided:
[H]aving known Rodney for a long time I describe him as having short dark curly hair, slight build, about my height. He is a fairly expressive person, fairly happy. Talks quite rapidly. He at that time he had a fairly droopy, almost a Mexican moustache, has curly hair, dark eyes. He is about forty years of age and he comes across as quite, a very active person, very friendly, very chatty, sort of blustery when he talks and expresses himself a lot with his hands. I always remember he has he has fairly long fingers. He has quite expressive hands and a very distinct voice.
During the conversation between Sergeant Jaunay and Senior Constable Dale the driver said ‘Oh, Andy knows me’. Senior Constable Dale heard this statement and recognised the voice as that of Rodney Derek Dodd. He told Sergeant Januay ‘That’s Rodney’. Senior Constable Dale described Rodney Derek Dodd’s voice in evidence:
He has got a happy, larrikin sort of voice when he talks. When he talks he is fairly rapid and how you put it, it is rapid and sometimes it can be cut off at the end when he says something, cut it off a bit, almost like he is excited.
Senior Constable Dale gave evidence that Rodney Derek Dodd was served with a summons to attend court on 20 February 2002. He recalled reminding Rodney Derek Dodd of this court appearance and of arranging his transport to the Leigh Creek courthouse.
On 20 February 2002 Sergeant Jaunay waited outside the Leigh Creek Magistrates court for Senior Constable Dale to arrive. Although Sergeant Jaunay had requested that Senior Constable Dale collect Rodney Derek Dodd and transport him to court on that day, he was not certain that this would eventuate.
Senior Constable Dale arrived at the Leigh Creek Magistrates Court accompanied by Rodney Derek Dodd and a number of other persons. Sergeant Jaunay recognised one of the passengers leaving the vehicle. He recognised that man as the same man who had said he was Rodney Derek Dodd, the man whom he had bailed on the matter of the outstanding warrant.
At trial, the prosecution called Senior Constable Simon Riddel. He witnessed Rodney Derek Dodd sign a bail agreement. This signature was tendered as part of the handwriting identification evidence. He was also asked whether the man he observed sign the document was present in court. He replied ‘yes’ and indicated Rodney Derek Dodd.
It was the prosecution case that Rodney Derek Dodd was the driver of the vehicle apprehended on 10 February 2002.
Issues on Appeal
On appeal counsel for the prosecution submitted that a statutory presumption contained section 175(1)(i) of the Road Traffic Act arose and the allegation that Rodney Derek Dodd was the driver of the vehicle was proved in the absence of evidence to the contrary.
The prosecution advanced two primary grounds of appeal:
- the magistrate erred in dismissing the complaint on the basis that identity could not be established beyond reasonable doubt and in ruling certain identity and description evidence inadmissible;
- the magistrate disregarded the evidentiary presumption in section 175(1)(i) of the Road Traffic Act.
The Trial
At trial counsel for Rodney Derek Dodd did not, in the course of the prosecution case, object to the admissibility of any of the prosecution evidence. No submissions were advanced that any of the prosecution evidence should be excluded as a matter of discretion. The magistrate admitted all the prosecution evidence. At the close of the prosecution case the magistrate ruled that there was a case to answer.
In the circumstances, the need for any reference to the statutory aid to proof contained in section 175(1)(i) of the Road Traffic Act did not arise. The evidence led by the prosecution, once admitted, clearly made out a case to answer with or without the aid of the statutory presumption.
Following the magistrate’s finding of a case to answer, the matter was adjourned. When the matter resumed, counsel for the respondent raised for the first time a challenge to the admissibility of the identification evidence.
Respondent’s Case
Counsel for the respondent submitted to the magistrate that the conduct of the police officers in the collection of the identification evidence gave rise to unfairness. It was said that there were photographic and fingerprinting facilities available for the purpose of recording the identity of an apprehended person and that these facilities were not used. It was contended that Sergeant Jaunay ignored all reliable forms of recording the identity of the apprehended man, despite the fact that this identity had been in question from the outset. No notes were made by Sergeant Jaunay of his conversation with Senior Constable Dale. It was argued that the telephone identification evidence was of little weight due to the following factors:
-Sergeant Jaunay did not testify about the identification procedure which allegedly took place. Senior Constable Dale’s evidence was therefore uncorroborated;
-There was inconsistent evidence as to the purpose of the conversation. Sergeant Jaunay stated that the call was made to discuss the warrant, whereas Senior Constable Dale said that the call was primarily to verify the identification of the person Sergeant Jaunay had apprehended;
-There was room for error in identification evidence by description, particularly when describing another race;
- No notes of the details of the conversation were made; and
-The description Senior Constable Dale gave of Rodney Derek Dodd was vague and could equally apply to many other Aboriginal men.
It was submitted that in light of these circumstances, the telephone identification was unfair.
The voice recognition was also described by counsel for the respondent as unfair. It was contended that as Senior Constable Dale only heard four words spoken by the person apprehended and the voice was heard in the background, there was clearly room for mistake. It was further submitted that Aboriginal people in the region had a distinctive way of speaking and that for a non-aboriginal person it may be difficult to distinguish one Aboriginal voice from another.
It was submitted that the out of court identification by Sergeant Jaunay was unfairly prejudicial to the respondent due to the dangers of suggestibility. It was contended that Sergeant Jaunay’s evidence was clouded by his expectation that he would see Rodney Derek Dodd at the court house. In these circumstances, it was possible that Sergeant Jaunay took a glance at the man exiting the vehicle and assumed it was Rodney Derek Dodd and the same man he had apprehended for the driving offences. It was said that Sergeant Jaunay’s observations were vague and inconclusive, no notes were taken of this procedure, the observation was made from a distance and in circumstances where Sergeant Jaunay may not have been paying attention.
Counsel for the respondent also criticised the reliability of the handwriting evidence. Only two samples were provided by the prosecution and these samples were not identical. It was said that as an expert had not been called, there were considerable dangers associated with relying on the evidence to prove identity. It was further submitted that the in-court identification by Sergeant Jaunay was of little significance due to the highly suggestive circumstances. It was said that the evidence was more prejudicial than probative and was correctly excluded by the magistrate.
Unusual Trial Procedure
The course adopted by counsel for the respondent raised procedural difficulties. Many of the complaints about the identification evidence were not put to police witnesses. There was no challenge to Senior Constable Dale’s account of his telephone conversation with Sergeant Jaunay. Senior Constable Dale was not challenged about the voice recognition evidence and Sergeant Jaunay was barely challenged about the identification of Rodney Derek Dodd at the Leigh Creek Magistrates Court. No challenge was made to the admissibility of the identification evidence during the prosecution case. There was no submission opposing the ruling that there was a case to answer.
As will be discussed later, after the ruling of a case to answer the magistrate considered all of the evidence of identification to be inadmissible. He exercised his discretion to exclude the identification evidence with the exception of the hand writing evidence. However, it does not appear that the prosecution was given the opportunity to re-open its case. No attention by either counsel or the magistrate was given to the statutory presumption. It should be noted that the prosecutor was a police officer and was without legal qualification.
Magistrate’s Findings
The magistrate dismissed the charges against the respondent. He concluded that the prosecution had failed to establish the identity of the driver beyond reasonable doubt. He went further and concluded that there was not even an arguable case on the question of identity.
The approach taken by the magistrate to the identification evidence is not entirely clear. The magistrate appears to have excluded all of the identification evidence in the exercise of his general discretion based on a suggested unfairness to the respondent. The magistrate described Sergeant Jaunay’s telephone conversation with Senior Constable Dale and subsequent description as ‘inadequate and unprofessional’ and excluded this evidence on the grounds of unfairness to the respondent. The magistrate also excluded the voice recognition evidence of Senior Constable Dale, observing that evidence by voice recognition is to be regarded with great scepticism.
The magistrate further held that the identification of Rodney Derek Dodd at the Leigh Creek Magistrates court raised issues of suggestibility. It was found that it “would be unfair to the respondent for the court to accept and rely on that evidence”. The magistrate concluded that this evidence should be excluded.
The magistrate was not satisfied that the two samples of handwriting presented by the prosecution established the identity of the driver:
While there are some similarities between those samples, looking at just those two samples in isolation, I am left in a state of some doubt as to whether the same person signed both documents.
I consider, in any event, that the handwriting evidence is of little weight.
The magistrate then gave himself a direction in accordance the principles outlined by King CJ in R v Prasad.[4]
Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by a judge and jury. I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking gin weight and reliability that no reasonable tribunal could safely convict on it.
The magistrate then concluded:
Having regard to the whole of the evidence, after exclusion of the identification evidence, I think that the evidence is of such little weight and is so unreliable that any reasonable jury, properly instructed, would not bring in a verdict of guilty.
[4] R v Prasad (1979) 23 SASR 161 at 163
Statutory Presumption
Section 175(1)(i) of the Road Traffic Act provides:
(1) In proceedings for an offence against this Act, an allegation in a complaint that—
…
(i) a specified person was the owner, operator, person in charge or driver of a specified vehicle,
is proof of the matters so alleged in the absence of proof to the contrary.
As earlier observed on appeal counsel for the prosecution submitted that, by virtue of the presumption in section 175(1)(i), the allegation that Rodney Derek Dodd was the driver of the vehicle was proved in the absence of evidence to the contrary. Counsel for the appellant submitted that on the issue of identity the onus of persuasion rested on Rodney Derek Dodd. The standard of proof required was the balance of probabilities.[5]
[5] Cazzol v Fuss (1988) 6 MVR 350 at 351 per O’Loughlin J
The magistrate made no reference to the statutory presumption contained in section 175(1)(i). On appeal, counsel for the prosecution accepted that at trial the prosecution did not draw attention to the statutory presumption. However, it was submitted that there was no abandonment or election not to rely on the section.
Counsel for the respondent submitted that at no stage did the prosecutor refer the magistrate to the presumption in section 175(1)(i). It was said that had the defence been aware that the prosecution sought to rely on the presumption, it would have led evidence to displace the presumption.
The effect of the presumption
Consideration of the statutory aid to proof gives rise to two preliminary questions: can the statutory presumption can be abandoned; and may circumstances arise where it is unfair for the prosecution to rely on such a presumption?
An issue has arisen as to what is meant by the phrase ‘proof to the contrary’ appearing in section 175(1)(i). Does a defendant carry an evidentiary onus to establish on the balance of probabilities that he was the driver? Or does a defendant need to lead evidence to show that there is a reasonable doubt on the issue.
In R v Hugh ex parte Devanny[6] Dixon J considered the proper approach to the construction of a statutory aid to proof:
Sec. 30R (1) of the Crimes Act provides that in a prosecution of the present description the averments of the prosecutor contained in the information shall be prima facie evidence of the matter averred. It is to be noticed that this provision, which occurs in a carefully drawn section, does not place upon the accused the onus of disproving the facts upon which his guilt depends but, while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, provides, in effect, that the allegations of the prosecutor shall be sufficient in law to discharge that onus.
[6] R v Hugh ex parte Devanny (1932) 48 CLR 487 at 507
There is no suggestion in section 175(1)(i) that the legislature intended to reverse the ultimate onus of proof.
In Crawford Nominees v Fitzsimmons[7] the court considered the application of the statutory aid to proof found in section 144(2) of the Road Traffic Act 1961 (SA) which provided:
In any proceedings for an offence under this section, an allegation in a complain that a person name therein was the owner, person in charge or driver of a vehicle therein referred to on a date therein specified shall be deemed to be proved in the absence of proof of the contrary.
In Crawford Nominees, the prosecution had not relied upon the statutory presumption. No reference was made to that sub-section in the magistrate’s reasons. The magistrate found the prosecution case proved beyond reasonable doubt.
[7] Crawford Earthmovers v Fitzsimmons (1972) 4 SASR 116
Hogarth and Walters JJ considered that pursuant to the section containing the statutory presumption the facts alleged in the complaint must be taken to be proved unless disproved on the balance of probabilities by evidence for the defence. Walters J observed:
Upon the interpretation which I place upon s. 144(2), I think the allegation in a complaint that the defendant was the owner of the motor vehicle creates a presumption stands as a compelling presumption until its weight is met by proof to the contrary. In other words, the presumption, arising by virtue of the section, takes the place of proof until it is removed by probative matter which is introduced by the defendant and arrests its operation. The burden of adducing probative matter sufficient to discharge the presumption and to overcome the fact presumed rests upon the defendant. That burden of adducing probative matter sufficient to discharge the presumption and to overcome he fact presumed rests upon the defendant. That burden, however, is merely a persuasive one, requiring no more than proof on the balance of probabilities. In my opinion, therefore, the presumption holds good until it is contradicted, explained or outweighed by the total mass of probative matter adduced against it. But the defendant may remove the legal consequences attached to the presumption by coming forward with credible evidence which entitles him to have the issue of ownership decided in his favour.[8]
[8] Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116 at 158

Bray CJ observed:
There is authority for the proposition that, when a statutory provision directs that an allegation or averment should be deemed to be proved in the absence of proof to the contrary, what is meant by proof of some set of facts a further fact or facts shall be deemed to be proved in the absence of proof to the contrary, what is meant by proof to the contrary is evidence to the contrary capable of raising a reasonable doubt in the mind of the tribunal and that once such evidence has been given the statutory presumption is displaced and the issue remains to be resolved on ordinary principles relating to onus of proof.[9]
[9] Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116 at 133
The opinion of Bray CJ appears to accord with the views of Dixon J in Devanny. Those views are not inconsistent with the approach taken by Hogarth and Walters JJ.
Section 175(1)(i) should be construed in accordance with the analysis of Dixon J in Devanny. The averment in the complaint that Rodney Derek Dodd was the driver was prima facie proof of that averment. The section does not place upon an accused the onus of disproving the facts upon which guilt depends. The prosecution is left with the onus, initial and final, of establishing the ingredients of an offence beyond reasonable doubt. However the section provides in effect that the averment of the prosecutor as to the identify of the driver shall be sufficient in law to discharge that onus.
Can the statutory presumption be abandoned?
It was contended by the respondent that the prosecution was precluded from relying upon the presumption by the conduct of the prosector at trial. It was submitted that the prosecution made a deliberate decision not to rely upon the presumption. Oral and written evidence relating to identity was tendered and the prosecution did not indicate to the court that it intended to rely on the presumption, including during closing submissions on the Prasad application.
In Merrall v Samuels[10] Wells J discussed a statutory presumption under a previous subsection of the Road Traffic Act 1961. The case involved a dangerous driving charge. The only issue at trial and on appeal was the identity of the driver. The prosecution relied on the presumption contained in s175(1)(f) which provided that:
(1) In proceedings for an offence against this Act an allegation in a complaint-
…
(f) that any person was at a time specified in the complaint the driver or rider of any vehicle or animal –
shall be prima facie evidence of the matters so alleged.
[10] Merrall v Samuels (1971) 2 SASR 378
The prosecution also called evidence to support its case that the defendant was the driver of the vehicle. Counsel for the defendant called evidence disputing this. The magistrate at trial had rejected the evidence called by counsel for the defendant. On appeal, counsel for the defendant submitted that the magistrate had misdirected himself regarding the presumption and misused the evidence.
Wells J observed that the correct statement of the law regarding the statutory presumption could be found in the judgment of Bright J in Considine v Lemmer.[11] Bright J observed that the presumption could apply despite the introduction of evidence by either side. However, it was said that if the evidence adduced raised doubt as to the issue of identity, that doubt could not be cured by the presumption. Wells J summarised Bright J’s observations as follows:
A statutory presumption that fact A is prima-facie proof of fact B is in no way impaired by reason only that some evidence has been led that is relevant to the existence or non-existence of fact B; the operation and effect of that presumption will depend finally upon the tendency and weight of the evidence led as to fact B in all the circumstances of the case.[12]
[11] [1971] SASR 39
[12] (1971) 2 SASR 378 at 382-3
The statutory aid to proof contained in section 175(1)(i) is not capable of being abandoned by the prosecution. It is a statutory presumption that operates according to its terms. It forms part of the general law to be addressed by a trial court. As Dixon J observed in Devanny the averment is sufficient, as a matter of law, to discharge the onus.
Can circumstances arise where it is unfair for the prosecution to rely on the statutory presumption?
It is a different proposition to suggest that circumstances may arise rendering it unfair for the prosecution to rely on the statutory presumption.
In Crawford Earthmovers Bray CJ and Walters J took the view that as the prosecution had not relied in the lower court on the statutory presumption it was precluded from doing so on appeal. Bray CJ reasoned:
As at present advised, I think, then, that it is not open to the respondent to rely on s. 144(2) before us, since the case, in my view, was fought in the lower Court without reliance on it and our task is to see if on the whole of the admissible evidence and on nothing else it would have been proper to find beyond reasonable doubt that the appellant was the owner of the vehicle at the relevant time.[13]
[13] (1972) 4 SASR 116 at 133
In Mancini v McCallum[14] White J discussed the question of whether the prosecution was precluded from relying upon the statutory presumption. The statutory aid to proof relied upon provided:
In proceedings for an offence against this Act an allegation in a complaint- …(f) that any person was at a time specified in the complaint, the owner, the person in charge, the driver or rider of any vehicle or animal-shall be proof of the matters so alleged in the absence of proof to the contrary.
Counsel for the defendant in Mancini submitted that as the prosecution called evidence on the issue of the identity of the driver it had elected to abandon the benefit of the statutory aid to proof. White J observed:
The next question is whether the prosecution elected to abandon the benefit of s. 175(1)(f) by its conduct at the trial. In Costello’s case, Blair CJ and Macrossan SPJ said:
“In the course of this prosecution before the Police Magistrate, the prosecution apparently deliberately refrained from relying on s. 149 supra, and was so seized with the conclusiveness of his case as to set about positively proving each essential in the complaint against the defendant. Before us, the respondent relies most strenuously upon s. 149, but does not deny that the defendant was at no time called upon, expressly or by implication, to discharged a burden of proof, and he may well have been lulled into a sense of false security by the way in which the prosecution was conducted. There is no better settled rule of practice than that parties are bound by the way they conduct themselves and their cases at the original hearing.”
That passage was cited with approval by Bray CJ in Crawford Earthmovers. According to the headnote, Bray CJ was joined by Walters J to form a majority view that the prosecution was in fact by its conduct precluded from relying on the statutory aid to proof. However, the headnote does not reflect the substance of what Walters J said at p. 159, where it is clear that his Honour specifically left the question of election open. Indeed, his Honour was doubtful whether the introduction of a body of evidence in that case made any difference at all to the right of the prosecution to rely upon the statutory aid.[15]
[14] (1983) 33 SASR 582 at 584
[15] Mancini v McCallum (1983) 33 SASR 582 at 587
Where the prosecution conducts its case in such a way as to lead the defence to believe no reliance will be had on the statutory presumption, and the defence acts to its detriment as a consequence, it may be unfair for the prosecution to subsequently rely on the presumption. Such a situation may arise when as White J said ‘the defendant … may well have been lulled into a false sense of security’.
The Statutory Presumption in the Case at Bar
It was submitted by the respondent that if the prosecution were now at liberty to rely on the presumption, prejudice would be caused to the respondent. It was said that no evidence was called by the respondent concerning the identity of the driver as a direct result of the conduct of the prosecution’s case. However, there was no suggestion that the prosecution had deliberately misled the defence. Further, there was no evidence that the prosecution positively asserted no reliance on the statutory aid to proof.
In the unusual circumstances of the present case, the prosecution were in a position to understand there was no issue as to having made out an arguable case on identity by virtue of the finding of a case to answer. The prosecution evidence was barely challenged. There was no application to exclude any of the Crown evidence during the prosecution case. It was not surprising in these circumstances that the prosecutor made no reference to the statutory presumption.
There was no evidence that the respondent relied on any representation by the prosecution when conducting its case, or that it would be unfair for the prosecution to subsequently refer to the presumption. To the contrary, it could be said it was unfair to the prosecution, having made out a case to answer on the basis of virtually unchallenged evidence of identification, to be disadvantaged by the ruling on admissibility after the close of the prosecution case.
In any event if this appeal were to be allowed and the matter remitted for rehearing the respondent would be able to call evidence on the question of whether Rodney Derek Dodd was the driver. Subject to any issue about costs thrown away no relevant prejudice would arise. This is particularly so where at trial no objection was taken to the prosecution evidence during the prosecution case and no substantive challenge was made to that evidence in cross examination.
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
Hallam and Karger involved the robbery and assault of two taxi drivers. The two accused were spoken to by the police at a shopping centre. The police sent for one of the taxi drivers to attend the shopping centre. When the driver arrived, the only persons present were the police officers and the two accused. The driver was asked by the police whether the two accused were the assailants and he said that they were. A voir dire hearing was conducted to discuss the admissibility and reliability of this identification evidence, however the trial judge did not exclude the evidence. On appeal, it was held that the trial judge had a discretion to exclude evidence on the basis of unfairness and that the proper method of identification by witnesses was for the police to conduct an identification parade. It was held that the identification evidence provided by the driver at the shopping centre was of little evidential value. King CJ observed:
Identification by confronting the victim with the suspect in circumstances which tend to 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. [22]
[22] R v Hallam and Karger (1985) 42 SASR 126 at 130
R v Corley involved an identification of an assailant by a witness at a police station. The witness pointed to man on the street close to the police station and the identification was made on this basis. The court in Corley was highly critical of the identification procedures relied upon in that case. The respondent referred to Duggan J’s observations in Corley:[23]
In cases such as this care must be taken to take the description or details of the alleged offender as soon as possible and for them to be recorded. … I realize that in a case such as this it would be unrealistic to expect the record be made immediately, but it would appear that no record was made at any time by the sergeant and so many of the details of this crucial incident were vague and uncertain.
It is important not to lose sight of the fact that it is the act of identification which is led in evidence and, in light of the dangers of identification evidence, it is all important to provide the court with an accurate account of these circumstances if that is reasonably possible.
[23] R v Corley (1995) 63 SASR 509 at 510-11
In the present case, the magistrate failed to distinguish between the inappropriate identification procedures relied upon in Hallam and Karger and Corley and the approach taken by Sergeant Jaunay.
The dangers of suggestibility were minimal in the present case. The identification evidence arising from the contact between Sergeant Jaunay and Senior Constable Dale raises for consideration Dale’s familiarity with both Clive and Rodney Dodd, his ability to provide a detailed description of Rodney Derek Dodd, and the use of the description by Sergeant Jaunay to confirm his previous identification of the driver as Rodney Derek Dodd.
At the time of apprehension, Sergeant Jaunay was in no doubt that the person he accompanied back to the police station was the driver of the vehicle. As earlier observed, Sergeant Jaunay telephoned Senior Constable Dale to discuss his concerns related to bailing the man he apprehended who he believed to be Rodney Derek Dodd. This belief was justified by the fact that driver had given the name of ‘Rodney Derek Dodd’ and had provided an address and date of birth that matched the details held by the police for Rodney Derek Dodd.
As the officer in charge of Marree, Senior Constable Dale was familiar with many members of the Alberrie Creek community. He had known Clive and Rodney Dodd for about four years and frequently saw and spoke to them. He was able to describe not only Rodney Derek Dodd’s physical appearance but also indicate his body language and personality.
It was obvious from the unchallenged evidence given by Senior Constable Dale that the apprehended driver’s identity was also discussed during this telephone conversation. Although Sergeant Jaunay did not recall the detail of this conversation, Senior Constable Dale provided a detailed description of Rodney Derek Dodd. Senior Constable Dale was well acquainted with Rodney Derek Dodd’s distinctive voice. He was able to recognise this voice over the telephone. Senior Constable Dale’s description and recognition of Rodney Derek Dodd was confirmed by the information provided by Rodney Derek Dodd himself. This evidence was unchallenged. By the end of this discussion, Sergeant Jaunay had resolved any outstanding issue of identity that may have existed and was satisfied that the man he apprehended was Rodney Derek Dodd.
There was no need for Sergeant Jaunay to engaged in other identification procedures such as finger printing as there was no doubt in his mind as to the identity of the offender. There was nothing unfair about the process followed. The driver was not denying that he was Rodney Derek Dodd, to the contrary, he told Sergeant Jaunay that ‘Andy [Senior Constable Dale] knows me’. This was to admissible evidence. Its probative value could be addressed by the magistrate having regard to established warnings associated with identification evidence. There was no relevant unfairness.
Court Visual Identification
Further evidence of identification adduced by the prosecution related to the visual identification by Sergeant Jaunay of Rodney Derek Dodd as he left the vehicle driven by Senior Constable Dale at the Leigh Creek Magistrates court. Counsel for the respondent submitted that this evidence was correctly excluded on the grounds of its highly suggestible nature.
In Davies and Cody[24] the High Court made the following observations in relation to the dangers of suggestibility:
…A witness who is taken by the police for the purpose of seeing whether he can identify a person who is in custody in relation to a particular crime has in his mind a recollection or impression of the person whom he saw, or, it may be, heard, at the scene of the crime or in relation to some matter which is connected with the crime. The recollection probably relates to the appearance of the person, and possibly to his mode of standing, moving, or speaking or some other characteristic. It is important that this recollection should not be overlaid or in any way affected by suggestions that a particular person in custody is either the person previously seen by the witness or is the person suspected of or charged with the crime.
[24] (1936-37) 57 CLR 170 at 181 - 182
As earlier observed, the dangers associated with suggestibility and identification evidence were also discussed in Hallam and Karger. The comments of the courts in Davies and Cody, Alexander and Hallam and Karger were reaffirmed more recently by the High Court in Festa v The Queen.[25] Gleeson CJ articulated the risks associated with suggestibility:
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.
[25] (2001-02) 208 CLR 593 at 602-3

Counsel for the appellant submitted that the dangers of suggestibility described in the authorities were minimal in the present case. Sergeant Jaunay was an experienced police officer. He had considerable opportunity to pay close attention to the physical features of Rodney Derek Dodd at the time of apprehension. Further Sergeant Jaunay had previously identified Rodney Derek Dodd as the driver of the vehicle and no longer held any concerns in regards to identity.
At the time of apprehending Rodney Derek Dodd, Sergeant Jaunay had concerns about releasing him on bail due to the outstanding warrant. Having allowed police bail, Sergeant Jaunay remained concerned as to whether Rodney Derek Dodd would be able to obtain transport from Marree to Leigh Creek to attend court. On the day of the court hearing, Sergeant Jaunay was concerned to ascertain whether Rodney Derek Dodd had arrived. He was not concerned about the identity of the man he had apprehended 10 day earlier. He had already positively identified that man as Rodney Derek Dodd. Identity was not at issue at in the mind of Sergeant Jaunay. The evidence of the events at Leigh Creek were admissible and its probative effect was to be weighed and considered. No unfairness of process arose. Any issues of suggestibility could be dealt with by the magistrate when weighing the evidence.
Totality of Evidence
As observed in R v Smith[26] identification evidence is admissible in accordance with and subject to the ordinary evidentiary rules. Identification evidence is relevant and admissible if it has a tendency to prove a fact in issue. Once admitted the evidence forms part of the total body of evidence to be considered by the trier of fact.
[26] R v Smith (2001) 206 CLR 650 at 653 - 654
In Festa[27] Gleeson CJ addressed the topic of the totality of the evidence before a jury:
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.
[27] (2001) 208 CLR 593 at 599
Voice Identification
As earlier observed, while speaking to Sergeant Jaunay on the telephone, Senior Constable Dale recognised the voice of Rodney Derek Dodd.
Counsel for the appellant submitted that the use by the magistrate of the phrase ‘great scepticism’ in relation to the treatment of the voice identification evidence was misplaced. The appellant contended that the magistrate erred in accepting that there is a principle of law requiring evidence of voice identification to be treated with “great scepticism”. It was submitted by the appellant that the correct approach is to consider evidence of identity carefully and cautiously and note factors likely to affect its reliability.
The criteria for the admissibility of voice recognition evidence by has been the subject of recent discussion in R v Bueti.[28] Doyle CJ observed:
…[T]here is no reason in principle, in my opinion, why the admissibility of evidence of identification by voice recognition should be treated as subject to rules peculiar to that type of evidence. The admissibility of such evidence should depend upon the principles that generally regulate the admissibility of evidence. That is not to deny, of course, that those principles must be applied with reference to the particular nature of the evidence under consideration. Bulejcik v The Queen was not concerned with voice recognition of the type involved here. It was a case in which the jury was invited to compare the sound of a voice recorded on a tape with the voice of the accused that they themselves heard in court. But there is nothing in that decision to support the view that evidence of voice recognition is subject to peculiar rules. I am content to adopt and apply what Brennan CJ said in Bulejcik v The Queen, the essence of which is indicated by the following passage (at 382):
‘Evidence of identification by voice recognition is not a distinct category of evidence, though its probative value may oftentimes be dubious and will vary according to the circumstances of each case. The test of its admissibility must be, in my opinion, one of degree. The prescription of particular conditions of admissibility is not supported by any principle of the law of evidence.’
[28] (1997-98) 70 SASR 370 at 379
The magistrate imposed a test of “general scepticism”. This was an incorrect test. It represented a gloss on the usual test. Voice recognition evidence is subject to the usual rules that govern identification evidence.
In the present case, the voice recognition had probative value. Senior Constable Dale was ‘very familiar’ with Rodney Derek Dodd’s voice. He had known Rodney Derek Dodd for about five years, had frequently spoken to him and was able to provide a detailed description of his voice. In these circumstances, the voice recognition was admissible. The conditions in which the words were heard are relevant considerations for the magistrate to take into account when determining the appropriate weight to be given to the evidence. However those conditions do not render the evidence to be of slight or minimal value. In the circumstances the words “Andy knows me” by the person with Sergeant Jaunay were significant.
Handwriting Identification
The prosecution also sought to rely on a comparison of signatures on a bail document and on the breathalyser operator’s statement. The bail document was signed ‘Rodney Derek Dodd’ and the statement ‘R Dodd’.
At trial, counsel for the prosecution invited the magistrate to exercise his power under section 30 of the Evidence Act 1929 (SA) which provides:
Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court as evidence of the genuineness or otherwise of the writing in dispute.
Section 45A(3) of the EvidenceAct is also of relevance:
For the purposes of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy and any relevant matters.
The High Court considered the application of this section in Adami v The Queen[29]
Section 30 of the Evidence Act, 1929-1957, which is founded on s. 8 of "Denman's Act", i.e. Criminal Procedure Act, 1865 and on s. 27 of the Common Law Procedure Act, 1854 provides that a comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings and the evidence of the witnesses respecting the same may be submitted to the Court as evidence of the genuineness or otherwise of the writing in dispute. Blackburn J. seems at one time to have considered that the provision could not be used without the assistance of witnesses, expert or otherwise, as to the handwriting but this is not now regarded as correct. What the provision made possible was the use of a writing inadmissible in evidence except for the sole purpose of providing a standard of comparison of handwriting. That formerly could not be done. But after the adoption of these provisions, in a case of a disputed writing or writings, a writing not otherwise relevant to the issue became admissible for the purpose of providing a standard of comparison of handwriting. It was necessary that the writing so to be used as a standard should be properly proved to the satisfaction of the judge to be the handwriting of the party concerned.
[29] (1959) 108 CLR 605 at 616
In R v Burns & Collins[30] Prior, Debelle & Williams JJ considered the potential dangers associated with handwriting identification evidence adduced by lay witnesses and observed:
In Adami v The Queen (1959) 108 CLR 605 the High Court held that s 30 of the Evidence Act 1929 permits persons who are not experts to express opinions as to comparisons of handwriting. A person who is not an expert may express an opinion as to whose hand wrote a document by comparing the document with documents proved to be in the hand of an identified person: Adami v The Queen at 617 – 618 and (at first instance) (1959) SASR 81 at 87; R v Mazzone (1985) 43 SASR 330 at 339. Plainly, the weight of the evidence might depend on whether the comparison is made by an expert or by a lay witness. In any event, whether evidence is given by an expert or other witness and even in the absence of evidence, the ultimate question whether the disputed handwriting is that of the accused is a question of fact for the jury to decide. In Adami v The Queen there was no expert evidence of handwriting. The jury were asked to compare the handwriting in question with the handwriting on other documents which were admitted to be documents on which the accused had written. The High Court held that it was proper for the jury to compare the handwriting for themselves and draw inferences as to the identity of the maker of the documents. Thus, the comparison of the handwriting in this trial was a proper question to leave to the jury in the absence of expert or other evidence.
When persons other than experts give evidence of comparisons of handwriting or when the jury is being asked to compare handwriting, it is appropriate that the trial judge should warn the jury of the care which should be taken before drawing conclusions: Daley v The Queen (1979) Tas R 75; R v Leroy [1984] 2 NSWLR 441 at 446; R v Mazzone (supra) at 340 – 342. The nature and extent of the warning will depend upon the facts and circumstances of each case: …
[30] R v Burns & Collins (2001) 123 A Crim R 226 at 240-1
Counsel for the respondent contended that the magistrate was correct in his cautious consideration of the handwriting evidence adduced without expert assistance.
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.
In addition to the above, the statutory presumption operated and was sufficient in law to discharge the onus on the prosecution. A case to answer had been established.
There was no breach of any due process in the obtaining of the prosecution evidence. No issue of public policy arose. There was nothing unfair about the evidence. At the time of apprehension the driver acknowledged his name as Rodney Derek Dodd. He provided particulars of his address and date of birth. Those particulars matched existing police records. There was positive identification by description in the interchange that took place between Senior Constable Dale and Sergeant Jaunay. The driver acknowledged that Senior Constable Dale knew him. In these circumstances the occasion for fingerprinting and photographing did not arise. It is unrealistic and unduly technical to criticise Sergeant Jaunay on this account.
The evidence concerning the events at the Leigh Creek Magistrates court did not occur in circumstances of any unfairness. At this time identity was not an issue in the minds of the police officers. The matter of Rodney Derek Dodd was in the court list. As arranged Rodney Derek Dodd attended Leigh Creek with Senior Constable Dale and was observed by Sergeant Jaunay.
There was no proper basis for the identification evidence to be excluded in the exercise of the unfairness discretion. The evidence was relevant and highly probative. The risk of suggestibility was minimal. The magistrate was well able to bring to account any dangers associated with the evidence.
In any event, the statutory presumption contained in s175(1)(i) of the Act remained available to the prosecution as a matter of law and made out a case to answer on the question of the identity of the driver.
The magistrate was correct to admit the evidence of identification. The magistrate erred when, after the close of the prosecution case and the finding of a case to answer, he excluded the identification evidence. The evidence was not so unreliable or of such little weight that it should have been rejected. It was cogent and probative evidence. The magistrate was well able to consider the issues of suggestibility and any other concerns as to weight that may arise. The evidence made out a case to answer on the issue of identity. The evidence together with the statutory presumption satisfied the onus on the prosecution.
The appeal is allowed and the matter remitted to the Magistrates Court for rehearing.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
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)
4      R v Prasad (1979) 23 SASR 161 at 163
5      Cazzol v Fuss (1988) 6 MVR 350 at 351 per O’Loughlin J
6      R v Hugh ex parte Devanny (1932) 48 CLR 487 at 507
7      Crawford Earthmovers v Fitzsimmons (1972) 4 SASR 116
8      Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116 at 158
9      Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116 at 133
10    Merrall v Samuels (1971) 2 SASR 378
11 [1971] SASR 39
12 (1971) 2 SASR 378 at 382-3
13 (1972) 4 SASR 116 at 133
14 (1983) 33 SASR 582 at 584
15     Mancini v McCallum (1983) 33 SASR 582 at 587
16     Domican v The Queen (1991) 173 CLR 555 at 561
17     Festa v The Queen (2001) 208 CLR 593 at 643
18     Alexander v The Queen (1981) 145 CLR 395
19     Alexander (1981) 145 CLR 395 at 601 per Gleeson CJ
20     R v Hallam and Karger (1985) 42 SASR 126
21     R v Corley (1995) 63 SASR 509
22     R v Hallam and Karger (1985) 42 SASR 126 at 130
23     R v Corley (1995) 63 SASR 509 at 510-11
24 (1936-37) 57 CLR 170 at 181 - 182
25 (2001-02) 208 CLR 593 at 602-3
26     R v Smith (2001) 206 CLR 650 at 653 - 654
27 (2001) 208 CLR 593 at 599
28 (1997-98) 70 SASR 370 at 379
29 (1959) 108 CLR 605 at 616
30     R v Burns & Collins (2001) 123 A Crim R 226 at 240-1

[2004] SASC 91

26 March 2004