Police v Silk
[2009] SASC 52
•27 February 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SILK
[2009] SASC 52
Judgment of The Honourable Justice Nyland
27 February 2009
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - PRIOR VISUAL IDENTIFICATION
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Prosecution appeal against dismissal of charges - only issue at trial whether respondent was driver of car involved in police pursuit - whether police officer mistaken in purported identification of respondent - consideration of identification evidence - distinction between recognition and identification evidence.
Held: No error in approach taken by Magistrate in assessment of evidence - appeal dismissed.
Criminal Law Consolidation Act 1935 s 90AC(1); Motor Vehicles Act 1959 s 91, referred to.
R v Calides (1983) 34 SASR 355; Davies and Cody v R (1937) 57 CLR 170, applied.
POLICE v SILK
[2009] SASC 52Magistrates Appeal
NYLAND J: This is a prosecution appeal against the dismissal of charges. The respondent was charged on information with five offences. The first count related to contravening a condition of a bail agreement. On 22 September 2008, the respondent appeared before a Magistrate in the Magistrates Court at Elizabeth and pleaded guilty to that charge, which was then dismissed without further penalty, the time spent in custody having been taken into account.
The respondent pleaded not guilty to the remaining counts on the information, which were eventually set down for trial in the Elizabeth Magistrates Court on 22 September 2008. Count 6 on the information, which was a charge of unlawful possession was withdrawn. That left four counts which alleged driving offences on two separate dates. Count 2 alleged that on 24 September 2007 at Craigmore, with the intention of escaping pursuit by a police officer, the respondent drove a motor vehicle in a culpable and negligent manner or recklessly or at a speed in the manner which was dangerous to the public, contrary to s 90AC(1) of the Criminal Consolidation Act 1935. Count 3 alleged that on the same date, the respondent drove a motor vehicle on a road, namely Yorketown Road, while he was disqualified from holding or obtaining a licence, contrary to s 91 of the Motor Vehicles Act 1959.
Count 4 on the information was a further charge of driving a motor vehicle in a culpable or negligent manner or recklessly or at speed or in a manner which was dangerous to the public to escape pursuit by a police officer, that offence being alleged to have occurred on 25 September 2007. Count 5 alleged that on the same date, the respondent drove a car while he was disqualified from holding or obtaining a licence. Counts 2 and 4 as originally charged alleged circumstances of aggravation but those counts were amended at trial to be basic and not aggravated offences.
It was an agreed fact that on 24 and 25 September 2007, the respondent was disqualified from holding or obtaining a driver’s licence. The only issue at trial was whether the respondent was the driver of the car which was involved in the police pursuit on the dates alleged. The prosecution alleged that on each of the dates in question, police witnesses had observed the respondent driving a motor vehicle.
The prosecution called in support of their case three police officers, namely, Constable Larkin, Constable Burke and Senior Constable Pike. The respondent was unrepresented at the hearing but gave evidence in which he maintained that he was not the driver of the car on either occasion and that the police had been mistaken in their purported identification of him.
At the conclusion of the evidence the learned Magistrate, having considered the circumstances surrounding the identification of the respondent as the driver of the vehicle on each date, said that she was left with a doubt as to whether the police had correctly identified the respondent. She was unable to say where the truth of the matter lay and therefore found the respondent not guilty and dismissed the charges against him.
The prosecution has appealed against that judgment to the extent that it is asserted that the learned Magistrate erred in dismissing Counts 4 and 5 of the Complaint and that she should have found that the prosecution had proved beyond reasonable doubt that the respondent was the driver of the vehicle on 25 September 2007.
The evidence of Constables Larkin and Burke related to Counts 2 and 3 on the information, that is the offences alleged to have taken place on 24 September 2007. There is no appeal against the dismissal of those charges however, so it is unnecessary to examine their evidence.
Senior Constable Pike was the only prosecution witness as to Counts 4 and 5. He gave evidence as to his observations on 25 September 2007. He said that at about 11.46 am he was stationary at the intersection of Kinkaid Road and Midway Road at Elizabeth East and he saw a white Holden Commodore sedan pass him and continue to travel south west on Midway Road. He said he recognised the driver of the vehicle to be a person he knew as Mark Silk. He remembered thinking at the time that Silk was disqualified from driving, so he turned left from Kinkaid Road to Midway Road to follow the Commodore. He said that as he did so, the Commodore accelerated away. Senior Constable Pike activated the lights and siren to catch up with the vehicle. After a period of time, however, he lost sight of the vehicle, but two members of the public indicated the direction which had been taken. He again saw the Commodore when he was on Blackburn Road as the Commodore drove past him in the opposite direction. Senior Constable Pike said he looked at the vehicle and again saw that Mark Silk was driving the vehicle. Senior Constable Pike then did a U-turn and activated the lights and siren. He again lost sight of the Commodore for a short period of time as the road went to the right, but after a bend in the road he once more saw the Commodore. He said that at that stage all the doors to the vehicle were closed. He then said:
I saw the accused on the driver’s side of the vehicle. He ran around the front of the vehicle and I saw another male from the passenger side of the vehicle. They both ran and jumped the fence of the house which the Commodore was in front of and the third person from the vehicle – I saw them run, head south and go over another fence of the adjoining house.
The Magistrate asked Senior Constable Pike whether he saw the person, who he said was the respondent, and the second male get out of the car and jump the fence. Pike responded that he had not actually seen the respondent get out of the car, but repeated that when he first saw the Commodore the doors were closed, that he saw the respondent on the driver’s side of the vehicle and that the respondent ran around the front of the vehicle. He said another person ran from the passenger side of the vehicle and they then ran together and over the same fence. It also appeared that a third person ran from the car to the fence. Senior Constable Pike said he went to the car which was rolling backwards slowly. He applied the hand brake and then radioed for other officers to attend to block off the area. After some time, the respondent and the second male were located in a nearby house, crouched behind the refrigerator in the laundry.
When cross-examined by the respondent about anything in his appearance which had assisted in his recognition, Senior Constable Pike said there was nothing the first time, but he just recognised the driver as being Silk. He said however that when the car went past him in Blackburn Road, he noticed the colour of his hair, which he described as “red or ginger”. A photograph of the respondent taken on 25 September 2007, after his arrest, was admitted in evidence and showed the respondent to have very short hair that was still visibly red. The learned Magistrate commented, however, that he was not the only red-haired man in the Elizabeth area.
At the conclusion of the prosecution case, the learned Magistrate found that there was a case to answer. The respondent then gave evidence. The respondent was not prepared to say what he was doing on 24 September 2007 as he did not know what he was doing that many months ago. He did however maintain that he had not been the driver of the vehicle on 25 September 2007. He agreed that he was in the car but said he was a passenger in the front seat. Originally, there had been six people in the car, but then there were three. He said the car was not his and he had never driven it, but everyone used to drive it. It was described as a “communal car”. He said that the other two people who got out of the car at the end were Aboriginal, but of the others who had previously been in the car, two had blond hair. He said that when the car stopped, he ran away because everyone else was running. He said he was in breach of his home detention bail at that time and had removed his electronic bracelet. The prosecutor put to him that he had run away because he wanted to escape being captured, but the respondent said he ran due to fright.
In her reasons for judgment the learned Magistrate accepted that Senior Constable Pike honestly believed that he had correctly identified the respondent as the driver of the car and said he gave his evidence in a straightforward manner without embellishment. In considering this matter, the learned Magistrate was mindful of the need to consider identification evidence carefully. She referred to the circumstances of identification and the length of time during which the driver of the car had been observed. She also referred to the fact that Pike had known the respondent previously. In this regard, Senior Constable Pike’s evidence as to his previous dealings with the respondent was:[1]
Quite a few times over the years, dating right back it would have to be the year 2000, maybe before that, and I’ve spoken to him several times in relation – that he had a relationship with a female person when he lived at Elizabeth Vale and also when he was younger and living at Elizabeth Downs I spoke to him numerous times.
[1] Transcript p 30.
When Senior Constable Pike was asked whether there were any particular features that he could draw out as part of the identification of the respondent, he said:[2]
… The sun wasn’t shining on the accused or anything like that. He was in shadow and he was in the vehicle but I could still see his face quite clearly and recognise him straight away as Mark Silk.
[2] Transcript p 31.
In her reasons, the Magistrate mentioned that this was a case of recognition, but directed herself that even in such a case, mistakes can take place. The distinction between recognition and identification evidence was recognised in Davies and Cody v R. In that case, the High Court said in a joint judgment:[3]
It is almost unnecessary to say that the amount of care and the nature of the precautions which should be taken when a potential witness is brought to identify an accused or suspected person must vary according to the familiarity of the witness with that person. It would be ridiculous… to deny the value or reliability of the identification if the witness’ knowledge of the prisoner arose from long and close association or from every day intercourse in business affairs.
[3] 1937 57 CLR 170 [181].
That does not of course mean that a witness cannot be mistaken when claiming to recognise a person they have known from a previous occasion and the learned Magistrate correctly warned herself as to that matter. Counsel for the appellant submitted however that despite her reference to recognition evidence, the learned Magistrate had approached the matter on the basis of this being an identification case, as she appeared to have based her inability to reach a conclusion on the short length of time that Senior Constable Pike had observed the driver of the car. The appellant submitted that the learned Magistrate gave insufficient weight to the recognition evidence of Senior Constable Pike, together with his evidence that he had observed the respondent driving the car on two separate occasions and that on each occasion had recognised him straight away. He also referred to the evidence that on the second occasion, there were three people inside the car, one of whom was the respondent, and the other two of Aboriginal appearance. Given the marked dissimilarity of appearance between the three occupants together with the evidence of Senior Constable Pike that he had dealt with the respondent on numerous occasions in the past, counsel submitted that it was unlikely that his recognition of the respondent as the driver would be wrong.
Although the learned Magistrate referred to Senior Constable Pike’s observation of the respondent at the driver’s side and front of the car the appellant submitted she did not appear to have given any or sufficient weight to that aspect of the evidence in reaching her conclusion. The appellant submitted that the evidence of Senior Constable Pike as to his observation of the respondent on the driver’s side of the car a short time after the car had passed him, as well as the fact that Pike was obliged to apply the hand brake to stop the car rolling backwards, constituted strong circumstantial evidence that the occupants of the car had left it in a hurry. That supported the conclusion that the respondent had exited the car on the side on which he was seen, that is the driver’s side, and was therefore the driver.
The evidence of Senior Constable Pike as to his prior knowledge of the appellant is relatively brief. There is no evidence as to how often or in what particular circumstances he had dealt with the respondent on occasions prior to the date in question. He acknowledged that there was nothing in particular about the appearance of the appellant, which had assisted him in recognising him. The learned Magistrate was mindful of the dangers in recognition/identification evidence and warned herself accordingly and in my opinion did not confuse the two tests. The Magistrate was aware of the evidence of Senior Constable Pike that the person he identified as the respondent came from the driver’s side of the vehicle and around the front of the car. The Magistrate had the advantage of hearing the respondent give evidence and assessing his demeanour. Although she did not make a specific finding as to the credibility of the respondent, his denial on oath that he was the driver of the car, combined with the short period of time during which Senior Constable Pike had the appellant under observation on each occasion, one being when the driver’s face was in shadow and in a moving vehicle, was enough to cause her to have a doubt about the matter and therefore dismiss the charges.
These were ex tempore remarks delivered by the learned Magistrate at the conclusion of the evidence. Although they are reasonably concise, they appear to cover all relevant matters. The learned Magistrate reminded herself that the prosecution bore the onus of proof. Having considered all of the evidence, which would have been fresh in her mind, she was unable to say where the truth lay.[4] I am not persuaded that there was any error in the approach taken by the learned Magistrate in her assessment of the evidence. The appeal is therefore dismissed.
[4] R v Calides (1983) 34 SASR at p 355.