R v COGHLAN - [2010] SASC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COGHLAN
[2010] SASC 131
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Kelly)
7 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING
Appeal against conviction - appellant convicted of aggravated assault and dangerous driving to escape police pursuit - driver motioned by police to pull vehicle over at police inspection point - driver did not stop vehicle and almost hit a police officer as he drove off - police officers later made photographic identification of the appellant at the police station using police database - police officers did not take notes of the description of the driver until after identifying appellant on database - one police officer verbally identified the appellant on the computer database in the presence of the other two officers - whether the trial Judge failed to exercise discretion to exclude identification evidence - whether the trial Judge failed to adequately warn the jury about the dangers of convicting on the basis of that identification evidence.
Held: appeal dismissed - the evidence was admissible and the Judge was not obliged to exclude it on a matter of discretion - witnesses were cross-examined at length to determine the reliability and accuracy of their observations - identification was made a short time after the offence was committed - trial Judge gave sufficient warning to jury.
Alexander v The Queen (1980) 145 CLR 395; Domican v R (1991) 173 CLR 555; Festa v R (2001) 208 CLR 593, applied.

R v COGHLAN
[2010] SASC 131
Court of Criminal Appeal: Vanstone, David and Kelly JJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons of Kelly J.
DAVID J: I agree the appeal should be dismissed for the reasons given by Kelly J.
KELLY J:
Introduction
The appellant appeals against convictions for aggravated assault and dangerous driving to escape police pursuit after a trial by jury on 2 December 2009.
The issue on appeal relates to the identification evidence led at the trial and the trial Judge’s directions concerning that evidence.
The appellant complains that the verdicts of the jury are unsafe and unsatisfactory by virtue of the dangers inherent in the evidence of identification by the three main prosecution witnesses of the appellant as the offender, coupled with the failure of the trial Judge to adequately warn the jury about the dangers of convicting on the basis of that identification evidence.
Background
The prosecution case against the appellant was that on 28 July 2007 at about 1.30 am he was observed driving a motor vehicle on Payneham Road, Felixstow.
On duty at that time conducting a vehicle licence and defect station on Payneham Road were Constable Scarce, and Probationary Constables Taylor and O’Donnell. Constable Scarce had been a police officer for approximately five years, Probationary Constable Taylor for about three and a half months and Probationary Constable O’Donnell for about four months.
As the vehicle, a white sedan approached the police officers Constable Scarce stepped onto the roadway holding a police issued torch and motioned for the driver of the sedan to stop.
The white sedan slowed down and as it did Constable Scarce observed the driver’s face. He then heard the engine accelerate and the white sedan drove straight at him. He had to jump to his right to avoid being hit. Constable Scarce was upset and shocked after the incident.
At the same time the probationary police Constables Taylor and O’Donnell were standing nearby. Taylor said in evidence that if Constable Scarce had not moved he would have been struck by the vehicle. O’Donnell saw the white sedan spin its wheels when it was about 20 metres away from him. At that time he observed the face of the driver. He was so focused on the driver that he did not notice Scarce stepping onto the road or jumping out of the way. The sedan then executed a u-turn and travelled in the opposite direction east on Payneham Road. The sedan was pursued by Scarce in an unmarked police vehicle. He eventually lost sight of the white sedan somewhere along OG Road before North East Road. At that time he was travelling at 100 kilometres per hour and he estimated the speed of the white sedan to be in the vicinity of 120 kilometres per hour. The speed limit for that road was 60 kilometres per hour.
The three police officers returned to the Norwood Police Station arriving there at about 2.00 am. They immediately commenced inquiries as to the registered owner of the white sedan. The police determined that the registered owner was associated with an address of Dyott Avenue, Hampstead Gardens, being one street north‑west of where Constable Scarce last saw the vehicle.
At the police station the three police officers together viewed photographs accessed by the police computer of males associated with the registered owner. Scarce was the first police officer to identify the photograph of the appellant as the driver exclaiming “That’s him”. That identification took place in the presence of the two probationary constables as they stood around the computer. The evidence was that Constable Scarce had looked at one or two photographs before he viewed the photograph of the appellant.
There was other evidence led at the trial. On 28 July 2007 at 8.00 pm, some 19 hours later, Constable Scarce with three other police officers went to the address in Hampstead Gardens. As they approached the house the registered owner identified herself to Constable Scarce. Then a male came out onto the front porch. Constable Scarce said he immediately recognised the male as the driver of the white sedan. The appellant then turned around, ran straight into the house and attempted to leave via the back, where he was apprehended by the other police officers.
The appellant at the time of his arrest was not wanted by police for any questioning in relation to any other matter and there were no warrants in existence for his arrest. The prosecution led evidence of the attempted escape by the appellant at the time of his arrest as evidence of flight.
At the trial all of the police officers were permitted to refresh their memories from notes which they made the same evening. In Constable Scarce’s case he did not commence writing the notes until after he had identified the photograph of the appellant on the computer. Constable O’Donnell’s notes were also made after he had viewed the photograph of the appellant on the computer. In the case of Constable Taylor it is unclear but it appears that he began writing his notes contemporaneously with identification of the photograph of the appellant and continued writing notes after that.
The appellant gave evidence in his defence and called three alibi witnesses. The jury acquitted the appellant of the more serious charge of aggravated creating risk of bodily harm. However, he was convicted for aggravated assault and dangerous driving to escape police pursuit.
Appellant’s submissions on appeal
At the outset, counsel for the appellant conceded that the evidence of identification by the three police officers Scarce, O’Donnell and Taylor was admissible. The appellant complains however of the failure of the trial Judge in the exercise of his discretion to exclude that evidence in the light of its inherent dangers. He put that such were the dangers associated with the evidence that it must have been excluded upon a correct exercise of discretion.
The particular matters identified by the appellant as undermining the reliability of the identification evidence are what is said to be a number of defects in the procedures adopted by the police in their investigation of the matter and their subsequent identification of the photograph from the police computer of the appellant as the driver.
These matters include the fact that Constable Scarce only looked at two, possibly three, single photographs of other men, who bore no resemblance to the appellant before identifying the single photograph of the appellant as the driver. All three police officers were present at the time when Scarce identified the photograph of the appellant as the driver. None of the officers made notes of the driver’s description prior to the act of identification at the Norwood Police Station in front of the computer. Both Scarce and Taylor were permitted to refresh their memories from notes they made after identifying the appellant’s photograph. In these circumstances the appellant says there was no opportunity for the jury to assess the spontaneity and reliability of the purported recognition by all three police officers as they stood around the computer at the police station. These difficulties were compounded by the fact that at least one of the witnesses, Taylor, did not purport to positively identify the appellant and conceded in evidence that he could have been mistaken. His evidence was that the photograph “looks like him”, referring to the driver.
It was said that Constable Scarce as the victim of the offence should have handed over the investigation of the matter to others. In addition a more formal identification either by line-up or by virtue of a photographic array should have occurred in the case of each of the three police officers. The identification by Taylor and O’Donnell was irretrievably contaminated by virtue of the fact they were both present when Scarce exclaimed “That’s him”. The appellant submitted that at the time when Constable Scarce began searching the police computer looking for any known associates of the registered owner of the white sedan, the appellant was a suspect. The rationale for that argument seems to lie in the fact that the appellant’s name was included in a list of persons associated with the registered owner of the white sedan.
All of these matters combined, it was said, should have led the trial Judge to exclude the evidence on the basis that there was irretrievable contamination which made it so inherently dangerous that no directions could overcome the dangers.
Discussion
These criticisms must be evaluated in the light of the events which unfolded in a very short space of time on the night in question. The offending occurred at a time when three uniformed police offices, none of them particularly experienced, were on traffic duties late at night. They did not arrive back at the Norwood Police Station until 2.00 am. One of them, Constable Scarce, had been placed in a particularly frightening situation by being nearly run over.
At that stage all the police had was the registration number and colour of the vehicle involved. That registration number quickly led to a number of males associated with an address at which the registered owner of the vehicle was also connected. Contrary to the appellant’s submission, I do not consider the fact that the appellant’s name was included in a list of names of males apparently associated with that address leads to the conclusion that at that stage the appellant was a suspect in any relevant legal sense. In my view the investigation by the police was still at the preliminary investigative stage at the time when Constable Scarce saw the appellant’s photograph on the computer.
There has been no suggestion of any impropriety or any illegality on the part of any of the investigating police officers. Nor in my view could there be. The suggestion that the officers could have and should have handed over the investigation of a matter like this to others at 2.00 am does not take into account the practical exigencies of the matter. Nor should there be any criticism made of police using photographs in order to identify a suspect at the preliminary stage of an investigation.
The fact that none of the police officers made notes of the description of the driver before viewing the appellant’s photograph on the computer and that all three of them were present at the same time when the identification was made, is unfortunate. However, the critical question is whether those defects notwithstanding, the evidence of identification had sufficient weight to go before the jury.
The observations of Gibbs CJ in Alexander v The Queen (1980) 145 CLR 395 at 402 - 403 are relevant to this question:
The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused…
…If the trial judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case.
The trial was not a lengthy one. The identification of the appellant as the driver of the vehicle was the central issue for the jury’s consideration at the trial. The identifying witnesses Scarce, O’Donnell and Taylor, together with three other officers present at the arrest of the appellant were the only prosecution witnesses. The cross‑examination of each of the identifying witnesses was in the main focused on the reliability and accuracy of their observations both at the time when they observed the driver and the circumstances later when they identified the appellant’s photograph from the police computer. The identification of the appellant was made within less than one hour of the offence being committed. Counsel did not point to any prejudicial effect associated with the evidence, other than its probative value.
In these circumstances I consider that the evidence of the three identifying police witnesses was admissible, and the trial Judge was not obliged to exclude that evidence in the exercise of his discretion. I would add, that whilst it is not determinative of the issue of its admissibility, it did not occur to experienced counsel at the trial to apply for the exclusion of the identification evidence.
That leads to the second issue which arises, being whether the trial Judge’s directions about the identification evidence were in all the circumstances adequate.
The trial Judge’s directions on the identification evidence
The trial judge commenced his directions on identification with a general warning about the dangers of identification evidence. The direction he gave was one commonly given by trial judges when identification is an issue at a trial. However, during the course of giving that general direction the trial Judge made some specific observations relating to the opportunity Constable Scarce had to observe the driver of the vehicle on the roadway. He then referred to the fact that no photographic array or police line-up had been carried out:
Criticism has been made of the failure to conduct a line-up or photographic identification by having a series of photographs for the identifying witness to look at to see if he can identify the suspect. However, you should bear in mind that in this case there is no suspect until someone has seen a photograph. After they have seen the photograph, there is not much point in having a line-up or a photographic identification because the criticism will be made ‘Well all they are doing is identifying the person they have already identified in the photograph’. - the same criticism that Mr Allen made about the identification at the house later on. ‘Well he’s only identifying the person in the photograph. He’s not identifying the person in the car’. So once the photograph had been shown there was not much point in a line-up or a photographic array.
For the reasons I have mentioned until such time as there was a suspect, there is no point or there is no-one to have in a line-up, or an array. On the other hand, you will have to bear in mind there is something in what Mr Allen said that it would be better, and a better type of an identification, if it could be done in a line-up or a photographic array.
When summarising the prosecution case the trial Judge again referred to the fact that there had been no line-up or photographic array and summarised the prosecution position about that:
The prosecution case is that there was no point in having a line-up or putting the accused’s photograph in a series of photographs for the identification to take place, because at the early stage they did not know who any suspects were and, after the photograph had been seen and a suspect identified, there was no point in it, because by that time the criticism would be made ‘Well, all you are doing is identifying the person that you saw in the photograph, you are not identifying the person that you saw in the car’.
As to the suggestion that Constable Scarce was in shock and that that may have affected the quality of his identification, the prosecution point out that he is a police officer and his job is to be able to give evidence after being in frightening or heated situations. Also the prosecution would say that the identification was made within a very short time of the incident having occurred, not days or weeks or months later.
The prosecution case is that all three officers, having made the identification from the photographs or the computer screen, how amazing that the person identified should be the husband of the registered owner of the vehicle? The prosecution say that not only do they have a good identification by three separate officers of a person who was admittedly associated with the vehicle, but also that the alibi does not stand up to scrutiny.
Later, in the context of discussing the defence case he again referred to the problems associated with the identification by the three officers.
The defence case is in part to say - look at the direction that you have been given on law on the issue of identification, the dangerousness of relying on identification evidence. They point out that three people can be mistaken. They point out that there was no lighting, save the street lighting. The defence point out that the only view the police officers would have had of the accused was either through the windscreen or through a side window of the car at night. The defence would point out that the matter rapidly became emotionally charged due to the sudden fear engendered in Constable Scarce, and this may have affected the ability of witnesses, in particular Scarce, to maturely and calmly make an identification.
The defence point out the fleeting time available for recognition; one second, three seconds. The defence say, whether or not a line-up or a photographic array had become of no value because the witnesses had already seen the photograph, the fact of the matter is that the best test of an identification is one of those two methods, and it was not used here. They point out that truthfulness of the officers is not to the point. They may well be truthful, but the question is: are they accurate. Can you be satisfied beyond reasonable doubt of their accuracy in identification?
The defence case is that someone, when they were looking at photographs together, probably Constable Scarce, said ‘That is him’ and the other witnesses may have had their minds polluted from a fair identification assessment by Constable Scarce saying ‘That is him’. Or at the very least they may have had their own identifications firmed up, they might have become surer, by virtue of someone else saying ‘That is him’ when they are all looking at the photographs, probably together.
The defence says there is nothing unusual or idiosyncratic about the appearance of the accused to make any identification memorable. The defence case is it would be quite unreliable to rely on these identifications made in fleeting circumstances in the car. The defence point out that there are inconsistencies between the various police officers concerning the lane the car was travelling in, the lane Scarce was standing in, and the speed of the vehicle. These inconsistencies, the defence pointed out, may not disclose untruthfulness on the part of the officers, but it might disclose inaccuracy on the part of the officers.
Discussion

A convenient starting point to consider the adequacy of the trial Judge’s instructions to the jury about the defects in the identification evidence in this case is the High Court decision in Domican v R (1991) 173 CLR 555. That case is the authority for the proposition that wherever evidence as to identification represents any 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.
The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed as to the factors which may affect the consideration of the identification evidence in the circumstances of the particular case. A warning in general terms is insufficient. The attention of the jury should be drawn to any weaknesses in the identification evidence. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. (See Domican v R (supra) per Mason CJ, Dean, Dawson, Toohey, Gaudron and Hugh JJ at 561 – 562).
In Festa v R (2001) 208 CLR 593 the High Court again considered the nature of the warning a trial judge is required to give about identification evidence when its reliability is challenged. In the course of his judgment with which the plurality agreed McHugh J said at [80]:
Directions concerning the weaknesses in individual cases need follow no particular formula. It is sufficient if the jury receive directions that give them a sufficient understanding of the potential weaknesses in the particular evidence put before them, as opposed to weaknesses generally inherent in identification evidence. The directions must ensure "that the jury understands the possible weaknesses in identification evidence and the need for it to take particular care in its use".
[Footnote omitted]
Here the significant matters which affected the reliability and accuracy of the identification evidence given by the three police officers can be summarised as follows:
·The circumstances in which the original observation of the driver was made by each of the officers, including in particular the limited opportunity each had to observe the face of the driver.
·None of the three witnesses made any notes of the description of the driver prior to the identification of the photograph of the appellant on the computer.
·The fact that only a limited selection of photographs, perhaps as few as three, were used to try and identify the driver and those photographs were of males of quite different description to the appellant.
·The fact that two of the witnesses O’Donnell and Taylor, were present when Scarce identified the appellant from a photograph on the computer and uttered words to the effect of “That’s him”.
·The fact that all three made an identification of the appellant virtually simultaneously in those circumstances, which might have caused one or more of them to cast aside any doubts they had.
With respect to the last matter identified it might be observed that at least insofar as Taylor was concerned it did not have that effect.
They were the critical features on which the appellant relied to submit that the evidence was contaminated to such an extent that the identification evidence of the three police officers was dangerous, and which at the very least, called for very strong and clear directions from the trial Judge in accordance with the principles enunciated in Domican.
The trial Judge’s directions to the jury generally about the dangers associated with the identification evidence contained a specific reference to the circumstances in which the officers observed the driver. In particular the trial Judge referred to the traumatic nature of the event, the lighting, the limited opportunity for observation of the driver’s face and in doing so highlighted that each officer had between one to three seconds to view the driver. He then referred specifically to the fact that no photographic identification or line-up had taken place in the usual way. Then, after referring to the fact that the identification of the police officers occurred in circumstances where one or more of the three officers said “That’s him”, the Judge posed the question to the jury, that they should consider whether that may have polluted the minds of the witnesses from making what he described as a fair and accurate identification.
After referring to the prosecution’s explanation for why no line-up or photographic array had been carried out the trial Judge then concluded his general instructions to the jury about identification by cautioning them to bear in mind that there was something in what defence counsel said, that it would have been better, that is, a better type of identification, if it were made in a line-up or by photographic array.
Later in the context of summarising the respective cases for both the prosecution and the defence the trial Judge again referred to the key features of the identification evidence which affected its reliability.
The criticism that the trial Judge did not refer to the problems associated with the fact that none of the police officers made notes of the description of the driver until after the photographic identification had been made is valid. However, that particular matter was explored in some detail in cross‑examination of each of the three police officers, as were the circumstances of their original observations on the roadway and later in the evening when they were examining the photographs on the police computer in order to try and identify a suspect. The lack of contemporaneous notes was related to the issue of contamination. That issue was dealt with by the trial Judge even though he did not refer specifically to the lack of contemporaneous notes.
Each of the key matters relied on by the defence including the issue of contamination, as matters which significantly undermined the reliability of the identification evidence, were referred to by the trial Judge both in his general instructions to the jury and later when summarising the respective cases for the prosecution and the defence.
The terms of the general warning to the jury about the dangers of the identification evidence were of particular relevance to the facts of this case in the sense that this was a case where three witnesses claimed confidently to recognise the offender after only the briefest observation.
Even so it would have been preferable if, when giving the warning about the identification evidence, the trial Judge had dealt with the particular problems with the identification evidence which arose here in the same detail as he later did when summarising the respective cases for the prosecution and the defence. As the High Court in Domican said reference to counsel’s arguments is insufficient. However, the fact is that the trial Judge did refer to the critical features of the identification evidence which might be said to undermine its reliability, albeit briefly, in the context of his initial warning to the jury on that evidence.
It might also have been more helpful to the jury if the Judge had explained just why a photographic array and or a line-up is a more reliable method by which to identify a person. However in spite of the valid criticisms which can be made of the Judge’s summing up in this case, I do not consider that the Judge failed to alert the jury to the critical weaknesses in the identification by the police.
For these reasons I would dismiss the appeal.