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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v COGHLAN

Details

AGLC: R v COGHLAN [2010] SASC 131
Case: [2010] SASC 131
Decision Date: 7 May 2010

CaseChat Overview and Summary

In the matter of R v Coghlan, the appellant sought to appeal against his conviction on charges of aggravated assault and dangerous driving to escape police pursuit. The appellant was convicted following an incident in which he failed to stop his vehicle when motioned by police officers to do so at a police inspection point, nearly hitting one of the officers in the process. The police officers later identified the appellant at the police station using a police database. The appellant argued that the trial judge failed to exercise the discretion to exclude the identification evidence and did not adequately warn the jury about the dangers of convicting on the basis of that evidence.

The primary legal issues in this case were whether the trial judge failed to exercise the discretion to exclude the identification evidence and whether the trial judge failed to adequately warn the jury about the dangers of convicting on the basis of that identification evidence. The appellant contended that the identification evidence was inherently unreliable and that the trial judge should have excluded it. Additionally, the appellant argued that the trial judge did not adequately warn the jury about the dangers of convicting on the basis of that identification evidence.

The court found that the trial judge did not err in failing to exclude the identification evidence, as there was no basis for doing so. The court also found that the trial judge adequately warned the jury about the dangers of convicting on the basis of identification evidence. The court held that the identification evidence was reliable and that the trial judge's directions to the jury were sufficient. The court found that the appellant's convictions were safe and satisfactory.

The appeal was dismissed, and the convictions were upheld. The court found no error in the trial judge's handling of the identification evidence and considered the convictions to be safe and satisfactory. The court did not find any merit in the appellant's arguments and dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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