R v Engel No. Sccrm-98-263, Sccrm-98-264 Judgment No. S69

R v ENGEL
[1999] SASC 69

Court of Criminal Appeal: Millhouse, Prior and Duggan JJ

PRIOR J This is an appeal against conviction and sentence. The appellant was found guilty by verdict of a jury of armed robbery.
The prosecution’s case was that the appellant entered a pharmacy on the corner of West Terrace and Waymouth Street, Adelaide, on 4 January 1998 and demanded money from one of the assistants, holding a knife close to her throat. The assistant, Ms Mazzantii, gave the robber $300 from a cash register till. Her evidence was that she thought that person had been to the pharmacy before. She gave a brief description of him as being about 22 years of age, five foot ten inches in height, thin build, with blonde crew cut hair. She said he was wearing black track suit pants with purple and green on them, a track top, mainly black with white in the chest area, a black baseball hat and white joggers. Some twelve days later, she was asked to identify the robber by looking at a booklet of twelve photographs. She then identified a photograph of the appellant as the closest of those photographs to the offender. She relied upon the eyes and facial features observed in the photograph to give that opinion.
Another person working in the pharmacy was out the back at the time of the robbery. Having heard a male voice say, “This is a hold up”, he looked up to see his colleague, Ms Mazzantii, by the till with a man he described as about six feet tall, wiry, slim, muscular in build, clean shaven, and wearing a black tracksuit. Ms Mazzantii’s colleague saw the robber run out through the doors of the pharmacy. He followed and saw him go north along a passageway outside the shop. Knowing where the robber’s path would lead him, he ducked around another way. He reached a nearby alleyway to see the robber sitting down in that alleyway taking his tracksuit pants off. The man ran up to the offender. There was a struggle. The robber broke free, fleeing up the alleyway towards West Terrace. The shop assistant jumped up to see the offender run along West Terrace and turn across, into a car park, to run east up Currie Street after crossing the car park. The car park was between two premises, one of which was a flower shop. The assistant gave up the chase after he saw the robber running in the direction of Currie Street. He returned to the alleyway and took possession of the track suit pants. He noticed a baseball hat close to where the robber had been seen taking off his track suit pants. The assistant also looked at photographs on the same day as Ms Mazzantii. The appellant had refused to participate in a line up once arrested. This witness said he was not sure whether any of the photographs shown to him contained a photograph of the offender. He identified three photographs as possibly being a photograph of the offender. None of those three photographs was a photograph of the appellant.
The proprietor of the flower shop gave evidence of seeing a man running, flat out, coming across from the front of the premises to the south of his flower shop and running north towards Currie Street. The flower shop proprietor was not aware of anyone else pursuing this man. However, his description was consistent with this person being the same person as had escaped the assistant just before. The flower shop proprietor described the person he saw as a man in his early twenties, about six foot tall with medium build, fair complexion, short hair, wearing a light coloured top, and dark bottom. The flower shop proprietor was not sure whether the dark bottom was shorts or long pants. His evidence was that when he looked to see who else was about, the only persons he noticed were a couple near the Edinburgh Castle Hotel, east of him, on the corner of Currie Street and Gray Street. Gray Street is the first street which runs between Currie and Waymouth Streets, east of West Terrace. The flower shop proprietor went up to a dead end street known as Clifton Place. He saw no-one there but whilst he was doing that, he noticed a police vehicle turning into Currie Street and proceeding to the next street turning off Currie Street, before Gray Street.
In the police car were Constables Roberts and Barton. Roberts’ evidence was that when parked on the corner of Currie Street and West Terrace he saw a male person running very fast across the car park between the flower shop and the premises on the southern side of the car park. He saw this person run east along the southern footpath of Currie Street. As no-one was following the person he and his partner pursued him in the police car. They saw that person cut through the car park and run down Currie Street to turn into Kings Court, the second street to run south off Currie Street, east of West Terrace. By the time the police car was in Kings Court no-one was to be seen. The police car proceeded into a small dead end street running off Kings Court. The patrol car turned first to the right and then turned to the east of that street. There was a car park there. Roberts says the same man he had seen running from behind the flower shop was at a fence between the car park and the Edinburgh Castle Hotel’s backyard. The fence was a latticework fence some two and a half metres high. It led on to a carport roof behind the hotel. Roberts saw the man scale the fence and run along the carport roof. Roberts had got out of the police vehicle. When he got to the fence he called out to the male person. That person reappeared, running towards Roberts along the carport roof. Roberts said the man looked down at him, then turned and went back along the carport roof. Roberts ran back to the police vehicle and drove back into Currie Street.
Constable Barton had got out of the police vehicle and run to the corner of Currie Street and Gray Street, to keep a lookout. A police cordon was set up. No-one was located from that. However, a track suit top consistent with that described by Ms Mazzantii was found in Albert Street, at the rear of premises, next door to an accommodation house known as Chipps’ Accommodation. Chipps faced Waymouth Street, just west of Gray Street. It was but a short distance from the pharmacy. There was evidence from an occupant of that accommodation house, Mr Franklin, that the appellant had been known to him as a resident at Chipps for the past two weeks. He said that at about half past one on the day of the robbery he heard a loud banging noise on a fence which was at the back of the accommodation house, fronting onto a side lane. Franklin’s evidence was that that iron fence was secured by a chain and padlock. The appellant did not dispute that he had jumped over the fence at the time when Franklin heard the noise. He said he was simply returning from a jog. Heated from that, he had taken off his top by the time Franklin saw him in the courtyard inside that fence.
Other police officers were called into the investigations. They included Constables Naslik and Brownridge. They were unable to get anyone to answer when they first made enquiries at Chipps’ Accommodation. It was after this that Brownridge located the blue and white tracksuit top in the back street. Naslik and Brownridge returned to Chipps to observe someone knocking on the door. A woman came along. She spoke to the police officers then unlocked the door. The officers entered and spoke to the caretaker’s wife before going to room number 4. No-one answered. They made some further enquiries of the woman who had let them in. They then went back into the street meeting up with Barton and Roberts on the corner of Currie and Gray Streets. Brownridge returned to Chipps’ Accommodation and again knocked on the door of room 4. He saw the appellant in that room. The appelland denied knowing anything about the robbery, saying he had been for a run. He said he had been wearing a pair of black shorts, a heavy blue tee shirt and white sneakers. Brownridge noticed fresh grazes on the appellant’s right arm. The appellant said he received those in training at kick boxing a few days ago. The appellant agreed to Brownridge’s request that he wait and speak to a detective about the matter.
The detective who came in connection with the robbery enquiries was Detective Huppatz. He spoke to the appellant. The appellant denied knowing anything about any robbery. Huppatz noticed the grazes to the skin on his right arm. The appellant repeated the explanation he had given for that injury to Brownridge just before. He denied being involved. Huppatz says that he did not consider he had sufficient information to justify charging the appellant. He asked him whether he was willing to participate in an informal attempt at identifying the robber. The appellant agreed. Constable Roberts was then asked to go into a courtyard where up to fifteen people, including the appellant, were and to see whether he was able to recognise the man he saw on the carport roof behind the hotel again. Roberts did so identifying the appellant from amongst the people in the courtyard of Chipps’ Accommodation.
In this appeal it is said that the trial judge erred in allowing Roberts’ evidence of identification of the appellant to go to the jury at all. A complaint is also made of the directions given to the jury about Roberts’ identification of the appellant. The jury’s verdict is said to be unsafe and unsatisfactory because it depends upon the reliability of the identification evidence of Roberts and what Ms Mazzantii said about one of the photographs shown to her later in January 1998. Against this, there was the sworn evidence of the appellant denying his involvement in the offence, the lack of identification of the appellant by the other person from the chemist shop, the flower shop proprietor or Constable Barton. It was also said that it was significant that neither the knife used in the robbery nor any money obtained were located in connection with the appellant.
In rejecting the application to exclude Roberts’ evidence the trial judge said that if Roberts’ identification evidence “had been the major part of the prosecution case against the accused” he probably would have excluded it for unfairness. His Honour said that the lack of a photograph of the line up group and a proper description of all the participants deprived Roberts’ identification of much of its cogency. His Honour said that a group photograph should have been taken before the identification was attempted, particularly as a professional photographer was readily available to the police. His Honour cited Murphy v The Queen[1] and said that it was the authority for the view that, “different questions of unfairness arise if the evidence of the identification is admitted for the limited purpose of establishing a strand of circumstantial evidence which is to be one among a number of other such strands.” His Honour held that there was no sufficient unfairness to the appellant to exclude Roberts’ identification evidence, “provided it’s only put to the jury as a strand of circumstantial evidence and on the basis that strong warnings are given to the jury against its use for any other purpose”. His Honour said, that on the material then before him, there were a number of other strands of circumstantial evidence, “possibly pointing to the accused being the robber and in the context of those, I do not consider there is unfairness to the accused in the prosecution relying on another strand constituted by the identification by Roberts albeit that in itself, that may not be particularly cogent and strong evidence.”
[1] (1994) 62 SASR 121
It is significant that Roberts went to the accommodation house within 90 minutes of the robbery occurring. Plainly, the enquiries then being pursued were part of what has been described as the investigative stage. The appellant was not “directly suspected”[2]. The “detection process” was not over but well in train[3].
[2] Alexander v The Queen (1980) 145 CLR 395 at 402
[3] Ibid at 410, 417 and 436
Authority makes plain that identification ought to be conducted by way of a properly conducted identification parade where the purpose of identification is evidentiary rather than investigative[4]. In R v Britten[5], King CJ saw no impropriety in police conduct in that matter given that at the time of the identification conducted in that case the police had no evidence against the appellant. Here, suspicions, certainly, were aroused but the credibility findings made by the trial judge in this case affirm that the investigative stage was still on foot and that Huppatz, in particular, felt that he should not allow time to pass or pursue further enquiries against the possibility that Roberts could assist in either including or excluding the appellant from the police enquiries at that time. The reasons given by the trial judge might have been more accurately expressed if His Honour had said that there was no impropriety in the procedures taken by Huppatz and the discretions to exclude evidence on the grounds of unfairness, public policy or because of some impropriety in procedures, were not properly invoked. It really was not a proper point of distinction to say that the discretion to exclude for unfairness would have been exercised if Roberts’ identification evidence was “the major part of the prosecution case against the accused” as much as that the authority cited would uphold a refusal to exercise the discretions to exclude because the police enquiries were still at the investigative stage. The appellant was not a clear and definite suspect. No arrest had been made[6]. The police enquiries were not to be judged as critically as they would have been had the trial judge found that the appellant was, then a definite suspect.
[4] Alexander, supra, R v Deering (1986) 43 SASR 252 and R v Britten (1988) 51 SASR 567 at 569
[5] (1988) 51 SASR 567
[6] R v Deering (1986) 43 SASR 252 at 253
The reliance of the trial judge upon Murphy was more appropriate. That was a case where the selection of a photograph of the accused, as being similar to one of a number of robbers, was evidence “tending to support circumstantial evidence in the case implicating the appellant”[7]. That evidence was not admissible as a positive identification sufficient in itself to prove the identity of an offender. It was, nonetheless, probative and admissible as such. So here, the evidence of Roberts was admissible as evidence for the jury’s consideration in conjunction with the other evidence tending to establish that the appellant was the robber. Roberts’ evidence, of course, could only be some evidence of identifying the appellant as a person seen to be running from the vicinity of West Terrace and Currie Street into back streets and onto the hotel carport roof immediately after the robbery. It was not direct or testimonial evidence but only circumstantial evidence[8]. The evidence of Roberts was admissible as some evidence of the appellant being the robber. This was not like Pitkin[9], a case where a less than positive act of identification was the only evidence touching upon the identity of a particular offender. Roberts’ evidence was properly admitted as part of the detection process. Different considerations would have applied to the exercise of discretions to exclude this evidence had the identification made by Roberts occurred when the detection process was at an end. Difficult though it may be to distinguish or keep apart the investigative process from the evidentiary in some cases, this was not one of them[10]. The admission of this evidence did not whittle down what was said by the High Court in Alexander’s Case, Domican’s Case[11] or, cases in this Court such as R v Hallam[12] and R v Deering[13],[14]. The first ground of appeal fails.
[7]      Murphy v R (1994) 62 SASR 121 at 124
[8]      Shephard v The Queen (1990) 170 CLR 573 at 579
[9]      Pitkin v The Queen (1995) 69 ALJR 612
[10]     See Stephen J in R v Alexander (1980) 145 CLR 395 at 408
[11]     Domican v The Queen (1992) 173 CLR 555
[12] (1985) 42 SASR 126
[13] (1986) 43 SASR 252
[14]     R v Hamood (1987) 46 SASR 340 at 351
One of the other grounds of appeal is that, in any event, the trial judge erred in directing the jury that the evidence of identification of the appellant as the robber by Constable Roberts was a strand of circumstantial evidence. It was said that the trial judge should have directed the jury that it was dangerous to act upon Roberts’ evidence of identification and further direct them in relation to the particular features of Roberts’ evidence which necessitated that warning.
Early in his summing up, the trial judge told the jury that the case for the prosecution depended, to some extent, upon the evidence of two witnesses, who claimed “at least to some extent to have identified the accused as the robber.” His Honour then said that the jury should approach evidence of identification with particular caution, giving the jury then the kind of warnings that are appropriate with respect to an alleged positive act of identification of a person not previously known to a witness. He referred to the need to carefully examine the circumstances in which an identification was alleged to be made. He referred to the significance of how long a witness had the person said to be identified under observation, at what distance and, in what light. He also referred to the period of time elapsing between the observations of a person identified and the subsequent identification relied upon. His Honour emphasised that photographic identification may not be an entirely reliable means of identification.
His Honour then said something about circumstantial evidence, telling the jury that, in a circumstantial evidence case, the question for the jury was whether, from the whole of the facts as the jury found them to be, the jury could reason that the guilt of an accused had been proved. It is plain that the prosecution presented its case to the jury as a case depending upon circumstantial evidence as opposed to a case where any witness was able to make a positive identification of the appellant as the robber. Neither the evidence of Ms Mazzantii or Roberts could do that nor was it put to the jury that it could.
After explaining to the jury that there were six elements of the offence that had to be proved beyond reasonable doubt, the trial judge referred again to identification evidence. With respect to the evidence given by Ms Mazzantii, His Honour reminded the jury of his earlier remarks and then summarised the effect of her evidence, pointing out to the jury that it was important to appreciate that Ms Mazzantii did not positively and unequivocally identify the person shown in a particular photograph as the robber. His Honour asked the jury to bear in mind the fact that this witness thought she had seen the appellant on an earlier occasion in the shop but reminded them that that was only a casual sighting and that she was certainly not familiar with the appellant. His Honour specifically invited the jury to consider whether Ms Mazzantii could have unconsciously and mistakenly concluded that, because the photograph she selected was of someone she thought she had seen in the shop and because she thought she had seen the appellant before in the shop, she put the two together and concluded, in her own mind, that it was the appellant who she had seen at the time of the robbery. His Honour emphasised that the opportunity to observe the robber was but brief. On the occasion the subject of the charge, he invited the jury to consider whether shock or surprise may have adversely affected her memory and her identification evidence. That being said, the trial judge said that if the jury were prepared to place any weight on the evidence of Ms Mazzantii, the jury could use it as a strand of circumstantial evidence in combination with such other strands of circumstantial evidence as the jury might accept in deciding, on the whole of the evidence, whether it was proved that the appellant was the robber.

The trial judge then turned to direct the jury with respect to what he described as “the identification evidence of Constable Roberts.” His Honour correctly told the jury it was for the jury to say what, if any weight, it placed on Roberts’ evidence that he identified the appellant as the person whom he had chased earlier that afternoon. His Honour said there were major problems about the reliability of this evidence and specifically referred to the fact that Roberts never got very close to the man he was chasing. He said that his only face on view of the man was when the man was on the roof of the carport, some fifteen metres from Roberts when, Roberts had, on his own evidence, an opportunity to observe that man front on for a second or less. As His Honour so clearly put it, “A second or less is a very short time. Fifteen metres is a significant distance.” His Honour put to the jury that perhaps Roberts did not get a sufficiently good look at the man’s distinctive features to enable him to be in a position to make any particularly reliable subsequent identification of him. Then His Honour dealt with what was described as “a line up in the courtyard of Chipps”. He referred to the absence of any photograph of the persons in the courtyard saying that the jury would have been assisted in assessing what weight it could place upon the appellant being picked out had that occurred. He spoke of the evidence about the nature of the line up as being fairly vague, reminding the jury that one of the residents of the accommodation house thought there were only six or seven males in the group. Roberts said there were about fifteen and Huppatz, that there were thirteen with at least one female being amongst those in the courtyard. The absence of anyone in the group who might fairly be described as similar in appearance to the appellant was said to be a factor the jury should not overlook in considering whether or not Roberts could have been mistaken in what he said about the appellant being the man on the carport roof. His Honour put it to the jury that it might well think that the line up exercise did no more than confirm the accuracy of what Brownridge had already been told by the caretaker, that the appellant was the only person then staying at Chipps who fitted the general description of the offender.
His Honour said that there were obviously such difficulties with Roberts’ evidence that it would be impossible for the jury to rely on this evidence alone in finding it proved that the appellant was the robber. In that respect, of course, Roberts was never in a position to prove anything more than that the appellant was seen to be running from an area where the robbery had occurred. Nevertheless, the trial judge did tell the jury that, depending on its view, Roberts’ evidence could “constitute a strand of circumstantial evidence which the jury might use in deciding what it could infer about the identity of the robber.” However, His Honour suggested to the jury that, at best, for the prosecution, it could not be a particularly strong strand of circumstantial evidence.
In those directions I think the trial judge was not erring in any way adverse to the appellant. Roberts’ evidence was properly described as a strand of circumstantial evidence. I reject the suggestion that the evidence required a direction to the jury that it was dangerous to act upon Roberts’ evidence at all. Likewise, I do not accept that the directions he gave were insufficient. The trial judge gave a full warning of the kind called for when evidence of identification represents a significant part of the proof of guilt of an offence. In what His Honour said, he more than discharged the obligation imposed upon him.[15] The jury was left in no doubt that neither the evidence of Mazzantii nor Roberts alone could prove the identity of the robber. Both gave evidence that had to be scrutinised closely before being capable of being used in conjunction with other circumstantial evidence to prove the appellant was the robber.
[15] Domican v The Queen (1992) 173 CLR 555 at 561-562
That leaves the third ground of appeal. It is said that the verdict is unsafe and unsatisfactory. I agree with the submissions of counsel for the respondent, that the prosecution case was a strong one. The evidence before the jury was properly admitted. The appellant was plainly disbelieved by the jury insofar as he gave an innocent explanation for his return to his accommodation, with injuries said to be incurred at kick boxing. The medical and other evidence was strongly against this. The fact that neither knife nor money was recovered against the appellant does not make the verdict unsafe or unsatisfactory. The fact that other witnesses to the events surrounding the robbery were unable to make a positive identification of the appellant is nothing to the point either. The appeal against conviction should be dismissed.
As for the appeal against sentence, the appellant was sentenced to six years’ imprisonment with a non-parole period of three years. True it is that the offence lacked sophistication or planning. True too, that the appellant is relatively young and his prospects of rehabilitation could be seen as good. Nevertheless, in accordance with many decisions of this Court, the sentence imposed could not be said to be manifestly excessively nor could the non‑parole period be complained of. It is plainly a moderate proportion of the head sentence. The head sentence is well within the range considered by this Court to be appropriate for this type of offending[16]. I would dismiss the appeal against sentence as well.
[16] See R v Rook (19 June 1998, S6738, unreported)

[1999] SASC 69

25 March 1999