Police v Teague - [2012] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v TEAGUE
[2012] SASC 143
Judgment of The Honourable Justice Peek
24 August 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE
Appeal against conviction – defendant convicted by Magistrate of two counts of property damage contrary to s 85 Criminal Law Consolidation Act 1935 – offender repeatedly drove into two vehicles intentionally – prosecution case relied upon evidence of Ms R who recognised the driver as the appellant.
Whether Magistrate had sufficient regard to the infirmities of the prosecution case – whether the prosecution evidence was strong enough to sustain a guilty verdict in all the circumstances.
Held: appeal dismissed - Ms R asserted to both the police at the scene, and in Court, that she had a clear view of the driver when he rammed her car and that she recognised him as the appellant – Magistrate carefully scrutinised Ms R’s evidence – Magistrate adequately warned himself of dangers of relying on identification or recognition evidence.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 85, referred to.

POLICE v TEAGUE
[2012] SASC 143
Magistrates Appeal

PEEK J. Appeal against conviction pursuant to s 42 Magistrates Court Act 1991.
Introduction
The defendant was convicted by a Magistrate of two counts of property damage contrary to s 85 Criminal Law Consolidation Act 1935. There was no dispute that a person did intentionally damage a Holden Commodore S980 AFO (the Commodore sedan) and a Holden utility VKR 878 (the Holden utility) by deliberately and repeatedly driving a third car, a yellow utility (the yellow utility), into the Commodore sedan which in turn was forced into contact with the Holden utility, thus causing significant damage to both vehicles (the subject incident).
At the time of the subject incident on the evening of 20 May 2010, both damaged vehicles were parked parallel to each other in the front yard of a house at Hillbank (the Hillbank premises), the home of Ms M. The positions of the vehicles at rest and their damage are clearly shown in photographs tendered as exhibit P1.
The prosecution case
The prosecution case against the appellant relied upon the evidence of Ms R, the owner of the damaged Commodore sedan, who observed the incident from just after the first impact. Her evidence as to the movements of the yellow utility and how the damage was caused is supported by the forensic and photographic evidence. Further, the appellant does not dispute that the deliberate and repeated nature of the driving inevitably led to a finding that the driver of the yellow utility had the required mental intent for the offences charged. However, the important point in the case is that the evidence of Ms R is the only evidence which identifies the appellant as that driver.
Ms R’s observations on 20 May 2010
Ms R gave evidence that on the evening of 20 May 2010 she drove to the Hillbank premises in her Commodore sedan, together with her partner Mr W and her eight year old son to visit her then friend, Ms M. She arrived after dark and parked her Commodore in the position referred to above. Shortly after arriving, while standing in the kitchen near the window, she heard the noise of a car revving in front of the house and then a loud bang. She opened the curtains and saw a yellow utility reverse back into the Commodore and then drive forward. It was about eight metres from her at this point. She saw two persons in the yellow utility and was at that stage only able to recognise the passenger, Mr S who she knew as the estranged partner of her friend Ms M. She had known him for five or six months and had seen him often over that period.
Ms R, with the others, ran to the front porch and saw the yellow utility being driven into her vehicle again. She stated that she could see the driver through the passenger’s window (which was down) past the passenger at a time when the yellow utility was two car lengths away from her. She identified the driver as the appellant and was positive as to that identification.
Ms R stated that she had the appellant under observation for about a minute in total, making it clear that this was an estimate only. She stated that there was a spotlight on the wall next to the front door which was on and illuminated the scene quite well. (This spotlight can be seen in photo 6 of P1, although it was not illuminated at the time that the photograph was taken.) She said that the yellow utility was about two car lengths away from her when she saw that the driver was the appellant.
After ramming into her vehicle, the yellow utility drove off out of sight but then about 30 seconds later drove past the house on the opposite side of the road and the driver yelled something through the window as he went past about 15 metres away from her. Ms R could not remember what was said but stated that she recognised his voice as that of the appellant.
Police were called immediately after the incident by one of the persons at the house and took statements, including a signed handwritten statement from R.
Ms R gave evidence that at the time she was a close friend of Ms M and had known her for 15 or 20 years but since this incident Ms M had reunited with Mr S and she is no longer friendly with her. As matters turned out, Ms R was the only civilian witness to give evidence.
Ms R’s familiarity with the appellant prior to 20 May 2010
Ms R gave evidence that she had known the appellant well for about a week prior to 20 May 2010 and during that week had seen him four times, including one occasion at Ms M’s house when they spent quite a few hours together. Once she had been in a vehicle with him as well as Mr S and Ms M.
The yellow utility
The yellow utility was not registered to the appellant and cannot be connected to the appellant by any records. However, Ms R gave evidence that she recognised the yellow utility during the incident from having seen it about three times during the one week period prior to the subject incident. She had seen it at the appellant’s premises at Mofflin Road when she accompanied Ms M on a visit there (to see the appellant’s female partner) and had also seen it when the appellant had come around to the Hillbank premises to collect some plates.
The case for the appellant at trial
In a brief police interview, the appellant denied being the driver of the yellow utility. He admitted knowing Ms M through Mr S. In answer to the allegations, he stated:
Interview over. Thanks. I don’t want to hear it. I’ve never owned a ute. I’ve never had J S in a ute and well done for the set up that they’ve just put me through.
The interview was then terminated.
The appellant did not give evidence at trial. The case for the appellant was that Ms R’s evidence lacked both credibility and reliability.
The case for the appellant on appeal
There were a number of grounds of appeal but counsel for the appellant submitted that they all came down to the questions of whether the Magistrate had sufficient regard to the infirmities of the prosecution case and whether the prosecution evidence was strong enough to sustain a guilty verdict in all the circumstances. Attention was drawn to certain aspects of the evidence and cross-examination at trial. Briefly they were as follows.
The appellant emphasised that Ms R agreed that she had convictions for illegal use and theft in 2000. The Magistrate paid due regard to that matter.
The appellant submitted that Ms R had stated at trial that she was at the kitchen window near the fridge when she first heard a noise whereas the notes record her as stating to police that she had been standing near a computer in the lounge when she first heard the noise outside. Ms R explained in cross-examination that the lounge room and kitchen were one open place with no door between them, that the computer was located between the kitchen and lounge and that she was standing close to both the computer and the kitchen fridge. She explained that she was later standing at that very same position (at the request of the police officer) when she gave her statement.
The appellant submitted that there was no mention in Ms R’s statement that the windows of the utility were down. Ms R explained that the police did not ask her any questions about that. Indeed, Ms R emphasised this as a general matter going to various suggestions that matters had not been referred to in her statement – “They asked the questions, I answered the questions”.
The appellant submitted that the spotlight was off by the time that police arrived and there was no mention in Ms R’s statement that the spotlight had been on at the time of the incident. Ms R’s response was that it was not she who had turned the light off, and that she was quite shaken up at the time. Again, although not explicitly stated in this immediate context, the flavour of Ms R’s cross-examination was that she was simply answering the questions that the police officer put to her.
The appellant submitted that Ms R told police that she had known the defendant for about two months as opposed to only one week as she stated in Court. However, Ms R explained that she had indicated that she may have seen the defendant before that period but that it was only in the week before the incident that he had become known to her and that it was the meetings during this week that she relied on. It is also to be noted that this difference is not evocative of a witness trying to bolster her evidence of identification by exaggerating her degree of familiarity with the subject person.
The appellant submitted that during cross-examination as to the number of occasions when she saw the appellant, Ms R referred to an occasion two days before the subject incident when she alleged that the appellant assaulted her by strangling her in an argument over house keys. This had not been led in evidence-in-chief and nor did it appear in the statement Ms R gave on 20 May 2010 in relation to the present charges. When questioned as to why this allegation was not mentioned there, she said that she had definitely told police about that incident and that there would be another police record of that. She was quite emphatic about that. Counsel for the appellant at trial elected not to call for such records and not to pursue that matter further. I should add for completeness that it is quite clear that the Magistrate did not improperly use this evidence as indicating a propensity to use violence or in any other impermissible fashion.
The appellant submitted that when cross-examined about the appearance of the appellant, Ms R had stated that she could not say what he had been wearing and was unable to say whether he was wearing a hat or not. However, a careful reading of Ms R’s evidence shows that she was asserting that she no longer remembered what he had been wearing, and was also unable to remember whether he was wearing a hat or not, the incident having occurred two years before her giving evidence at trial on 7 May 2012. This falls well short of a demonstrated inability to describe such matters at the time of, or shortly after, the incident. It must be remembered that Ms R was asserting both to the police at the scene, and in Court, that she had had a clear view of the driver of the yellow utility from the front porch when he rammed her car and again when he returned a short time later to drive past the house and that she recognised him as a particular person whom she knew, namely the appellant. In those circumstances, she was not attempting to describe him or his clothing. Accordingly, whether she can remember his manner of dress some two years later (that not being a matter upon which she relied for her initial identification) is of little importance.
The Magistrate’s reasons and decision
His Honour correctly delineated the two main questions to be addressed concerning Ms R: “First, is she honest in giving that evidence and, secondly, could she be mistaken.”
As to the matter of her honesty, his Honour concluded:
I have had regard to the way in which R gave her evidence. I take into account that she has been guilty of dishonesty offences in the past and that she is someone who is capable of being dishonest when it would suit her interests. Even so, I have no doubt that R honestly believes that it was the defendant who was responsible. She was clear, convincing and unwavering in her evidence. In my assessment, she was honest in giving her evidence.
Before coming to that conclusion, his Honour carefully scrutinised Ms R’s evidence. I have independently carried out that same task and have had regard to all of the matters that might bear upon her credibility, including those referred to by counsel for the appellant. By reference to the written evidence, I come to the same conclusion as his Honour. Additionally, of course, the Magistrate had the advantage of seeing the witness which I did not.
As to the second matter, that of the reliability of Ms R’s evidence of identification, his Honour rightly differentiated this critical matter from the previous question of credibility or honesty. The Magistrate was well aware that the most honest and confident witness may be completely wrong and that demeanour or confidence of a witness cannot safely be relied upon in relation to a question of reliability of identification. Indeed, the Magistrate had little advantage over the Appellate Court in relation to this second question of reliability. That being said, I do not detect any error in his Honour’s approach or conclusions. His Honour clearly warned himself in relation to the dangers of relying on identification evidence and noted that while they are particularly important in relation to the identification of strangers, they are also relevant to asserted recognition of known persons. As his Honour observed: “Mistakes in recognition of close relatives and friends are sometimes made.”
It is clear that his Honour was well aware of the salient considerations. He proceeded to examine in close detail R’s evidence and the circumstances surrounding her observations. After doing so he concluded:
I have considered the matters which may have led R to be mistaken. In my view there was sufficient light, the driver of the vehicle was in view for sufficient time and the driver was sufficiently close for R to make a reliable identification. I accept her evidence that the spot light on the porch was shining at the relevant time and that the area in front of the house was illuminated by that light. There was nothing done to obscure the identification of the driver or his passenger. Indeed, the repeated ramming of R’s vehicle show that they both wanted to attract the attention of R and the others in the house and send a message of some description to them.
I agree with his Honour’s approach to the evidence and the conclusions to which he came. It is unnecessary on this occasion to undertake an examination of the relevant authorities or to consider the required nature and content of the warnings and directions that may otherwise be required in a jury trial or in a case heard by a judicial officer which involves a witness with less prior familiarity with an accused person than Ms R had in the present case. In the particular circumstances of the present case, I consider that his Honour’s warnings and directions were sufficient.
Disposition of the appeal
As noticed above, the matters argued on the appeal came down to the contentions that the Magistrate had insufficient regard to the infirmities of the prosecution case and that the prosecution evidence was not strong enough to sustain a guilty verdict in all of the circumstances. I reject the appellant’s contentions for the reasons given above. Beyond this, other matters were only faintly referred to by the appellant, if at all. Having considered all of the grounds of appeal, I find that there is no merit in any of them.
Accordingly, the appeal is dismissed.