R v Harradine - [2008] SADC 107

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARRADINE
[2008] SADC 107
Reasons for the Verdict of His Honour Judge Tilmouth
26 September 2008
CRIMINAL LAW
EVIDENCE - IDENTIFICATION EVIDENCE - IDENTIFICATION IN PRECINCT OF THE COURT
The accused was charged with two separate robberies. Two witnesses purportedly identified him during separate photo-board procedures, the accused having declined to participate in an identification parade. One also purported to recognise him in a chance view outside the courtroom. Discussion as to the proper use of such evidence.
Held: As there was a reasonable doubt as to the reliability of the identification evidence, the accused was entitled to verdicts of acquittal.
Observations on the undesirability of identification witnesses for the prosecution being left in the vicinity of the courtroom.
Craig v The King (1933) 49 CLR 429, applied.
R v Gorham (1997) 68 SASR 505, discussed.
Alexander v The Queen (1981) 145 CLR 395, considered.

R v HARRADINE
[2008] SADC 107
Preliminary

Two robberies are alleged to have been committed over successive days in late 2007, in two disparate suburbs of Adelaide. The critical question for determination in this case is if the accused was accurately identified as a participant in one or both.
George Stanley Harradine was presented on an information dated 25 February 2008. He pleaded not guilty in this Court on Tuesday 29 July 2008, to five charges. These concern two events, the first occurring on Monday 28 May 2007 in Wilson Street, Queenstown near its junction with Victoria Street. This incident comprises a charge of aggravated robbery with respect to the witness T S (count 1) and an attempted robbery with respect to his companion, R D (count 2).
The third, fourth and fifth counts, concern events of the following day, shortly after midnight, Tuesday 29 May 2007 at Pasadena, a southern suburb of metropolitan Adelaide. These charge an aggravated robbery of R D (count 3), an attempted aggravated robbery of D M (count 4) and using a motor vehicle without the consent of the owner (count 5).
As to that latter, the prosecutor conceded in his opening there was no evidence against Mr Harradine, as to the necessary knowledge of the vehicle being stolen. Accordingly no evidence was directed to this during the course of the trial. That being so, a finding of no case to answer was made at the close of the prosecution case and a verdict of not guilty duly entered with respect to that count. This course was not opposed by the prosecutor.
The case against Mr Harradine hinges on identification evidence. In respect of counts 1 and 2, it is dependent on the evidence of T S, and in relation to counts 3 and 4, on the evidence of R D. In each case Mr Harradine declined to participate in a line-up, so in each instance the purported identification came through means of photo board procedures.
The trial proceeded as a trial by Judge alone. Although no formal order was made to that effect beforehand, the defect was remedied by a formal order on the second day of the trial, and by, in effect, starting the hearing afresh[1].
[1] T81-83.
Evidence counts 1 and 2
T S gave evidence that at about 10 pm on the Monday evening in question, he and two friends, the brothers R and M D, were walking in the area of Victoria and Wilson Streets, towards Old Port Road, when a silver-coloured small four-wheel drive pulled up behind them. Through opened windows the occupants shouted “give us your wallet … and stuff like that”, which he tried to ignore. He then heard the doors opening and started running, calling out to his friends to do likewise. Three or four people got out of the car and commenced chasing them, repeating “give us your wallet”.
One managed to grab the back of T S’s hood and tried to burn him with a cigarette, repeating “give us your money or I’ll burn you”. T S kept running but was tripped. This occurred about fifteen metres from the car. After tripping, T stood up to see three men in front of him as he described, one on the left, one in the middle and one on the right. Another chased R D. Again he was threatened “give us your wallet”. He responded “no, I don’t have anything on me”. The man in the middle, who was wearing a baseball hat, frisked him, whilst a wallet was taken from his back pocket by the one on the right. He was punched a couple of times by the men on his left and on his right.
At this point, to quote his evidence, he “just ducked under them somehow, I don’t know how, and I started running again and I got away just up to the Old Port Road when I called the police”.[2] He described the person in front, as of aboriginal appearance, a bit shorter than his 5’ 9”, probably seventeen or eighteen years old and “a bit stocky”. His hair was “just black curled – I am not too sure …”, of normal length. He also said this man was the one who first grabbed him from behind. He also remembered he was wearing gold chains around his neck and that he had a moustache, and wore a longish white top, a short-sleeved tee shirt type top and jeans.
[2] T25 L26-28.
On 15 June 2007, T S attended at the Holden Hill Police Station where, in the presence of Detective Aland, he viewed twelve photographs, as a result of which he “picked out the middle person”. This was not the accused. Indeed a photograph of the accused was not contained in that set of photographs at all. He repeated the exercise on 31 August, by viewing a folder containing the photographs of twelve “youngish” aboriginal men. He indicated photograph no 7, a photograph of the accused, as to which he was “pretty certain”. He could not say in evidence if this was that man to the left, or to the right of him[3]. The video recording of this procedure Exhibit P1, shows merely that he was asked to see if he could identify a “person involved” in the incident. He was not then asked which one no. 7 was, or about the roll he played.
[3] T35 L36-38.
T S described the man on the left as being probably eighteen years of age, about 5’ 9” (his height), skinnier build than the centre man, and could say nothing about his hair, except that he had a little more facial hair than the middle man. He could only recall that he wore jeans. As to the aboriginal man on his right, he considered him to be seventeen or eighteen years of age (he said all three were about that age), probably the same height as the one to his left and of the same body build. He had curly hair, fairly short, about an inch long, which he described as “normal length for hair”. There were no other distinguishing features.
This first incident occurred in a suburban street in the vicinity of Old Port Road, Queenstown, late in the evening. T S described the scene as “fairly dim but there are some street lights around the area … a couple but not many”[4], including one about fifteen or so metres away on a corner, “pretty close to where it all happened”[5]. When asked whether he was able to see their faces, he responded “yes and no… like, some of them were pretty visible, like at times, but then when they were all around me, I couldn’t really say I just saw them that clearly”[6]. He said this all took place “probably for only a minute”[7]. Otherwise he did not see them before or afterwards. He said his wallet was taken. It contained $155 in notes and $6 in coins, as well as various cards. These are reflected in the particulars of the charges.
[4]    T31 L21-27.
[5]    T31 L27-38.
[6]    T31 L34 – T32 L2.
[7]    T32 L6.
So far as the elements of the offence on count 1 are concerned, on this evidence there is no doubt these have been made out. Clearly T S was robbed under threat, and clearly the three or four aboriginal men (probably four) were acting in concert with each other. This might have been by way of pre-concert agreement, but the situation was undoubtedly one in which the participants, whoever they were, were present during the commission of the robbery, three of them at least participated physically in its execution, each one intentionally helping and encouraging the others by their words and actions, including turning the car around, coming up to and carolling T S as they did, to effect the robbery.
When it comes to the evidence on count 2, both brothers R D and M D gave evidence consistent with that given by T S. R D told the court he was chased down the street. The assailants were screaming “give us your wallet” give us your wallet”. The one chasing him, tried to grab him by the left arm, which he shrugged off, ripping his jacket in the process. Following this he ran to Old Port Road. There he noticed T S calling the police, as he overhead the conversation. This forms the basis of the attempted robbery on count 2. Once again there is no doubt about the elements of that offence being satisfied on this evidence, or that the offenders had embarked upon an attempt to rob R D: R v Collingridge[8].
[8] (1976) 16 SASR 117.
Evidence counts 3 and 4
So far as the third and fourth charges are concerned, these relate to the alleged robbery of the witness R M, and of the attempted robbery of the witness D M, respectively. The former gave evidence that in the early hours of Tuesday the 29 May 2007, he was leaving his home in a taxi driven by the latter, when a light grey vehicle pulled up across the driveway, blocking their exit. He got out to see what was happening. As he approached the vehicle, a person from the passenger side rear emerged and another came from the other side, approaching him from the left and right respectively. The one on the left ran straight towards him, punching him on the left jaw, rendering him unconscious for a short period of time, causing him to fall on his back. Someone then was felt to be “rummaging” his belt. Two telephones were taken, one a mobile phone and one a cordless house phone. This evidence forms the nub of the charge on the third count.
There is no reason to disbelieve this account. It is supported in material respects by the taxi driver. Clearly the elements of this offence are proven, that is the use of threats and force to execute the dishonest theft of the two telephones by a number of men, at least two, acting in concert. Again this may have been by way of pre-concert agreement, even if formed shortly beforehand, commencing with the deliberate act of blocking the exit, or each aiding and abetting the other to execute the robbery.
The same analysis applies to the elements of the fourth count in relation to the attempted robbery of the taxi driver. As will be seen, clearly the hooded offender wanted to dishonestly steal any money he might have had with him, and the others were complicit in this, for the same reasons. He spoke of reversing from the driveway and seeing a light grey shiny medium size four-wheel drive pulling up and blocking his exit. He saw his passenger, getting out and through a rear view mirror “fists flying and a scuffle”. He also saw him fall to the ground and noticed there were at least two or three other people “there and fighting”.
He then described one of them, wearing a hood pulled down, come to and open the front passenger door demanding “give me money, mother fucker”. D M was trying to locate an alarm button under the dashboard at this time. He drove two and a half metres or so forward, causing the door to shut. The same offender again opened the door and again made the same demand. At this his attacker then closed the door. D M activated the central locking system on his cab. As his attacker proceeded to stand in front of his taxi, he reversed into the four-wheel drive “because I had tow bar on the end and then I just smashed into their car”.
It appears the offenders immediately drove off, parking about 50 metres up the road, stopping for 10 or 20 seconds. This afforded D M the chance to write down the registration of the vehicle, which was given to Detective Aland. It was a silver Honda CRV, registration number XNA-722, reported as stolen. This evidence, which there is no reason to doubt, proves the elements of the offence of attempted robbery in relation to D M. Quite clearly the hooded male had embarked upon an attempt to rob him: R v Collingridge[9].
[9] Above.
D M did not give evidence of much consequence so far as the identity of any of the persons involved, other than his passenger that evening. He described his attacker as “hooded”, less than 25 years old with a clean cheek and brownish hair, looking “more like Aborigine”. He added this man was about 165 centimetres or a little taller, and the jacket with the hood was a light grey colour. He did say however, as did R M, that the area in that vicinity was “very very lit”.
Mr Harradine the accused, gave evidence denying he was one of the Aboriginal men involved in either incident. He did say, and he was not challenged in cross-examination, that he was six foot tall, weighed 60-65 kilos and was of slim build. This accords with his physical appearance. He also deposed, again without challenge, that his appearance in May 2007 was as shown in the photograph D7, a photograph taken of him in September of that year. It was another photograph, Exhibit D8 taken in November 2006, that was used in both photo-board procedures, and which exhibits a quite different appearance to that shown in D7. The latter shows closely cropped straight hair, whereas the former is longer and curly. He was born on 10 May 1989, so he would have just have turned 19 years, as of these events.
Counts 3 and 4 – identification evidence
Turning to the incident involving R M at the bottom of the driveway of his home, he said there was sodium street lights near the front of his house, one approximately 7 metres away. He was asked “can you describe the person to your right side that’s also approaching you?”. He volunteered, “I had a good look and I’m sorry but it was the accused”[10]. Following several further questions, when asked as to the nationality of the man to his right, he responded[11]:
... at the time that didn’t occur to me but I certainly recognise facial features – the accused’s nose, profile of nose and mouth, and just position of – just position general.
This evidence of courtroom identification, although admissible, is of itself, of no probative value: Alexander v The Queen[12], R v Demeter [13], R v Gorham[14].
[10] T63 L30.
[11] T64 L21-24.
[12] (1981) 145 CLR 395 at 426.
[13] (1995) A Crim R 462 at 468.
[14] (1997) 68 SASR 505 at 508.
R M said he had an opportunity to look at the men approaching him from either side several times, only for “around 2 seconds”. The person to his right he described as dark skinned, “late teens at least 5’ 7” to 5’ 8” in height, not bulky”[15]. As the hood was over the top of his head he could not see facial hair. He estimated being 2-3 metres “maximum” from him and as having a good chance to observe the profile “as he rounded the end of the car towards me”[16].
[15] T65 L6 -8.
[16] T65 L33-34.
On the 16^th June 2007 just after 9pm, R M was shown a series of 44 photographs at the Holden Hill Police Station. He picked number 8, the photograph of the accused taken in November 2006. When indicating this, he appeared considered and his selection was unqualified. At this time he was merely asked, as T S was, if he could identify a “person connected” with the incident. He indicated the photograph simply as “being a person involved in the matter”[17]. Under cross-examination he emphasised that “the nose stands out to me more than anything ... the face is emblazoned, there’s nothing that stands out outside the ordinary for me”. He asserted remembering “that person very clearly”[18].
[17] Exhibit P4.
[18] T70 L26-28, T71 L3.
R M was particularly pre‑emptive in his desire to identify the accused. This is very evident from the passage quoted earlier, which was particularly unresponsive to the actual question then being asked, which related to the person’s nationality. During evidence-in-chief, when asked whether he was of the belief that he would recognise that person to his right again, he responded “I wasn’t sure to be honest, but when I saw the picture and then again for the second time or third time, yeah very sure”[19].
[19] T65 L22-24.
As it transpires, on the first morning of the trial, he was seated outside the courtroom (courtroom number 8 in the Way Building) waiting for the case to be called on. At one point he saw through the doorway of the court for a split second, a side-on view of the accused, who was waiting in court for his counsel. R M said “I saw the fellow in the dock for a split-second across the doorway on a side angle, and in the instant I saw him, the recollection was extremely firm”[20]. He professed to seeing “a flash as he walked past the doorway” which “reminded me of the attack, it was emblazoned on my mind from the incident”[21].
[20] T70 L34-36.
[21] T71 L6-L11.
Detective Aland, who was sitting nearby at the time, indicated to both counsel that R M was seated about 7 metres from the courtroom door, to the east along the northern wall, opposite the court exit. He added that a person in that position would not be able to see Mr Harradine seated at the back of the court. But of course R M saw him pass, through the small window in the court room door. Detective Aland indicated that he had himself, seen Mr Harradine seated at the rear of the court at the same time.
The evidence of R M in relation to this issue was somewhat elusive. At first he said he could see the accused through the narrow glass door of the courtroom, very close to the door, when the “accused walked past the door very briefly”[22]. In fact just before giving that evidence he said “I saw the fellow in the dock for a split second across in the doorway on a side angle and, in the instant I saw him, the recollection was extremely firm”[23]. The following exchange took place later, under cross-examination:[24]
Q.      I want to put this specifically to you; when you saw him this morning in this courtroom he wasn’t with any other Aboriginal men. Do you agree with that.
A.    No, I don’t know. Once I had seen this particular person and the memory was rekindled in a very spectacular fashion, that was the end of my concern. Whether there were other people in the room or around him at the door, as the persons pass the door –
Q.    In any event, it’s seeing the accused today in court this morning that’s made you confident – that’s improved your confidence about the selection of the photograph you made.
A.    It all came to me very, very clearly and, once I saw him in the mug book, I knew I could confidently identify that person again.
[22] T71 L19-21.
[23] T70 L34-36
[24] T73 L37-74 L13.
R M went on to express that this was the first time he experienced anything like this in his life; “... I couldn’t believe the power of recollection until today ... it was amazing, it really was ... I’ve been known to be a good recaller of faces but until I actually was in this situation – I’m very impressed with my recollection. I’m a hundred percent certain”[25]. After being released from giving evidence, as he walked from the witness box past the dock, he turned slightly towards the accused and proffered “Thanks for a lot of grief mate. Thank you very much”[26]. As mentioned Mr Harradine gave evidence denying his involvement in these events.
[25] T74 L35 – 75 L5.
[26] T79 L14-14, and refer R v White (1987) 49 SASR 154 at 161.
Identification evidence – the legal principles
The evidence of Detective Aland, was that Mr Harradine was offered, with respect to each of the two clusters of charges, the opportunity to participate in a line-up, which he declined. Such evidence is admissible to explain why an identification parade was not conducted: R v McCarthy & Ryan[27] and R v Tapatu[28]. Of course, the accused had a fundamental right to not participate in such an identification parade and the exercise of that right does not in any way lead to the conclusion that he was guilty: R v Reeves[29].
[27] (1993) 71 A Crim R 395 at 404.
[28] [2005] VSCA 256 at [10].
[29] (1992) 29 NSWLR 109 at [115].

Although not wanting to be critical of anyone, it is a great pity that a situation arose putting the accused in jeopardy of further identification in the precincts of the court. It is of course one difficult to avoid, given the configuration of the Way building. Where cases are likely to turn on identity evidence, prosecutors would be well advised to take special measures designed to ensure such situations do not come about, or at least to reduce the risk that they do. Because of the inherent problems in this kind of evidence, it has been held that police officers should avoid having a witness identify a suspect entering a court building: R v Wright[30], R v Gorham [31], or arranging for a witness to identify the suspect from a small group: R v Turner[32], R v Williams[33], Festa v R[34], R v Bedford[35].
[30] (1991) 60 A Crim R 215 (Tas).
[31] Above.
[32] (2000) 76 SASR 163; [2000] 113 A Crim R 160.
[33] [1983] 2 VR 579.
[34] (2001) 208 CLR 593 at [26], [78] and at [157]–[160].
[35] (1986) 5 NSWLR 711; 28 A Crim R 311 at 314–315.
Nevertheless, when this does happen, the evidence is admissible, subject to the discretion to exclude: R v Easom[36], R v Burchielli[37]; Grbic v Pitkethly[38]. Once admitted, a careful analysis of the evidence and its possible shortcomings is required, as in R v Gorham[39]. Equally, as Duggan J emphasised in that case, it is “important to know the details of any conversation which might have taken place at the time of the identification between the witness and police officers’ and for that reason it is a pity that the police officers in each instance, did not attempt to ascertain exactly which participant the witness was purporting to identify”.
[36] (1981) 28 SASR 134.
[37] [1981] VR 611.
[38] (1992) 38 FCR 95. 110 ALR 577
[39] (1997) 68 SASR 505 at 508–510.
Each verdict on this information has to be determined according to the evidence admissible in relation to each charge separately, and that charge only. Given the findings already made, findings not disputed by either counsel, the only remaining question and really the central question agitated at the trial, is the weight to be given to the evidence “identifying” the accused as a participant in the two separate events. Before analysing that evidence, it is necessary to apply the legal principles attending evidence of that kind. This is truly a case of identification strictly so called, as neither witnesses purported to have known Mr Harradine beforehand.
Evatt and McTiernan JJ pointed out in Craig v The King[40], that an act of identification is a complex transaction. It involves a witness purporting to have observed the offender, impressed that upon his mind, sufficiently retaining that impression uncontaminated by extraneous considerations and it is important to bear this in mind when assessing the evidence.
[40] (1933) 49 CLR 429 at 455.
Both critical witnesses T S and R M were honest, but were they reliable? As the High Court has indicated so forcefully in Domican v The Queen[41], the evidence of honest witnesses may be entirely convincing and thereby “seductive”, so that the factors which may affect the reliability of their identification, must be closely examined.
[41] (1992) 173 CLR 555 at 561-562.
In this context, the joint judgment of Evatt and McTiernan JJ in Craig v The King[42] is instructive:
In criminal cases, where the only real issue is the identity of the accused with the person who was performing some apparently innocent act at a time long before the trial, all the surrounding circumstances have to be carefully considered, for we at once enter what has been described as that branch of proof "so notoriously delicate as proof of identity." A short consideration will demonstrate the truth of this description.
An honest witness who says "The prisoner is the man who drove the car," whilst appearing to affirm a simple, clear and impressive proposition, is really asserting: (1) that he observed the driver, (2) that the observation became impressed upon his mind, (3) that he still retains the original impression, (4) that such impression has not been affected, altered or replaced, by published portraits of the prisoner, and (5) that the resemblance between the original impression and the prisoner is sufficient to base a judgment, not of resemblance, but of identity.
It therefore became necessary, in the present case, to pay attention to the following circumstances:--(1) Whether the witness was a stranger to the driver of the car, (2) whether the driver had any special peculiarities which, at the time, impressed themselves upon the witness, (3) the length of time which elapsed between December 14th and (a) the time when the witness first described the driver or (b) the time when the witness saw the accused person, (4) the description of the driver given by the witness before seeing the prisoner, and (5) the circumstances under which the prisoner was first seen and identified by the witness as the driver.
These of course are by no means exhaustive considerations.
[42] Above at 445-446.
In the case of T M, the opportunity to observe his assailants was effectively over no more than a minute’s duration, during which three of them were at relatively close range. On the other hand, he admitted it was quite dark and he told the police shortly afterwards he was not able to furnish any description of the offenders, other than the man in the centre.
In fact when interviewed in the back of a police car at the scene sometime shortly after 10.30pm that evening, he gave a woman police officer a description in some detail of the man in the centre, but as to those to his left and right, he told her[43]:
I can’t give much of a description of the other males as it was dark and not very well lit, and the guy with the black hat was all over me.
[43] T44 L7-10, T121 L13-15.
When it came to the photo identification procedure, the video of that (Exhibit P1) shows he carefully reviewed the photographs and then made an unhesitating selection. The general description given by T S not inconsistent with the personal characteristics of the accused (except perhaps as to height) including build, colour of hair in particular, although that is of little probative value apart from that. Mr Harradine described himself as slim, 6 foot tall and weighing 60 – 65 kilograms, a description conforming, as mentioned already, with outward appearances.
Prosecution counsel pointed to the fact that despite the apparently poor conditions, T S was able to positively identify another offender, Mr Agis who later pleaded guilty in the Youth Court to involvement in the count 1 offence, as the man in the centre. Ordinarily a plea of guilty by an accused, would not be admissible in the trial of another: R v Fowler[44] and R v Cowell[45]. There may be limited exceptions to this principal, as in R v Byron[46].
[44] (1985) 39 SASR 440 at 448-449.
[45] (1985) 24 A Crim R 457 at 50 (NSW).
[46] (1988) 145 LSJS 141 at 145.
It is well established that a jury may use circumstantial evidence to support evidence of identification: R v Coxon[47]. As was noted in Domican v The Queen[48]:
The Court of Criminal Appeal thought that the case was a borderline one which did not, however, require intervention by the Court. Kirby ACJ said that appellate courts must not overlook the practical circumstances of the trial, the role of counsel's addresses and the capacity of the jury to remember the evidence and see it in its entirety: Reg v Domican [No 3] (1990), 46 A Crim. R, at p 446. But, for his Honour, the most significant matter was that the identification evidence did not "stand alone in linking the appellant to the crime": (1990) 46 A Crim. R, at p 447. He pointed out that there was "the whole series of evidence relating to the green Mazda car, an orange Falcon vehicle belonging to friends, the belated report of the theft of the Mazda car, the coherent direct evidence of Mr Patience and, for what it is worth, the inculpating evidence of Mr Many and Mr Heuston". His Honour said that the "direct and circumstantial evidence identifying the appellant with the crime is very strong indeed". His Honour also relied on "the fact that the thrust of the appellant's attack on Mrs Flannery's evidence at the trial was not that she had been mistaken in identifying the appellant but that her evidence was false".
As the learned Acting Chief Justice pointed out, the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case: ibid, at p 446; Reg v Dickson, [1983] 1 VR, at p 230; Reg v Allen (1984), 16 A Crim. R, at pp 444-445. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused: See Reg v Bartels (1986), 44 SASR, at pp 270-271; cf Reg v Goode, [1970] SASR 69, at p 77.
[47] [2002] SASC 165.
[48] Above at 173 CLR 555 at 564-565.
However the identification of one witness, cannot support the identification of another: R v Weeder[49] and R v Breslin[50], so that logically just because T S made a correct identification of Mr Agis, that has no bearing on his capacity, or the reliability of the identification of the photograph of Mr Harradine. In point of fact he had a much better opportunity of seeing and observing Agis, than he did with respect to the two men standing either side of him and his original description of Agis was much more precise.
[49] (1980) 71 Cr App R 228 at 231.
[50] (1985) 80 Cr App R 226 at 230.
Mr Tonkin, counsel for Mr Harradine, applied for the exclusion of the photo-board identification by the witness T S, on the basis that the accused was not furnished an effective opportunity to participate in a line-up and because of unfairness to him, in that a dated, rather than a contemporary photograph was used in the process. As to the latter, that is really a question of weight. Furthermore a contemporary photograph might have been criticized as being too suggestive.
As to the former, Detective Aland spoke to him on 17 June and suggested a line-up to him, certainly with respect to another investigation. When asked about this exchange by his counsel, Mr Harradine responded[51]:
[51] T149 L5-19.
Q       Did he ask you about a line-up parade.
A       Yes.
Q       Did he say what that was in relation to.
A       The North Park Shopping Centre. He said there was witnesses outside driving around or something.
Q       At North Park.
A       Yes.
Q       What did you decide, if anything.
A       I just said ‘No, I’m not going to do it’.
Q       Why did you decide you didn’t want to do it.
A       Because I had no legal advice. I had no lawyer. My mate was telling me to jump out the car. He was saying ‘You want me to ring legal rights?’. And I told him ‘Yes’ but before I said that, he told me to jump out the car.
In light of these answers, it is patently clear he would have refused to participate in any line-up in the circumstances then present, so that whether or not he was specifically requested to do so in relation to the Queenstown investigation, is simply beside the point
Counts 1 and 2 - analysis
Analysing carefully the evidence of T S and bearing steadily in mind the dangers referred to, the conclusion must be that as honest as he was, and as apparently reliable as he appeared to be, the fact that he had little opportunity to notice the particular characteristics of the men to his left or right, that he was unable to give a succinct description of either very soon after, and that he frankly conceded to the police as well as in his evidence that it was a relatively dark street, and given that the focus of his attention was squarely on Agis, the court is simply unable to remove a reasonable doubt, reasonably arising on the evidence, that the accused has been safely identified by him. The only verdicts in relation to counts one and two, are therefore verdicts of not guilty.
Counts 3 and 4 – analysis
Turning to the evidence of R M, the opportunity to see his assailants was stronger in the sense that the lighting conditions were far better, but they were significantly weaker in the sense that the time to observe was very short, occurred under circumstances of confusion and no doubt fear and apprehension. He was also momentarily knocked unconscious. It is stronger in the sense that he was shown not 12 but 44 photographs and like T S, after a careful perusal, R M did not hesitate or equivocate when pointing to the accused.
But his evidence was unsatisfactory as to who did what and which actor, precisely, he was identifying, as to the following cross-examination reveals[52]:
[52] T76 L18 – T78 L38.
Q       The man to your left, can you describe that person, the one that punched you.
A       Yes, he was shorter, a shorter fellow and had a moustache. And he was right at my face, very close to me, with obviously his fist connected with my jaw.
Q       He wasn’t wearing anything over his head.
A       No.
Q       And you are quite sure he had a moustache.
A       I’m sorry, that particular incident, I’m being focused more on the other – the other person with this particular incident.
Q       You’ve been more focused on the person that didn’t hit you rather than the one that did.
A       For me, the other incident is over. For me it is anyway. I’m in court today for the other guy on the right-hand side.
Q       I see. Can you describe the third male that got out of the vehicle.
A       No.
Q       Was he wearing anything over his head.
A       I can’t describe it at all. I recall there was at least three figures, two that I saw clearly. The third one, I had no chance to look at.
Q       Did you tell the police that the male who hit you was wearing a grey-hooded jumper.
A       That was the person on the right-hand side.
Q       The person on your right-hand side wasn’t the man that hit you.
A       The person on the left hit me, yes, that’s right.
Q       So the man with the grey-hooded jumper didn’t hit you.
A       The guy with the grey-hooded jumper was on my right-hand side and there was no impact, that I recall.
Q       Did you give this description of the person, when you gave a statement to the police officer at Pasadena on 29 May: ‘The male who hit me was of Aboriginal appearance, aged in his mid 20s, approximately 190 cm tall, slim build, with a moustache. He was wearing what looked like a grey-hooded jumper. I believe if I saw this male again who hit me I could identify him’.
A       The only person that hit me was the fellow from the left-hand side, that I recall.
…
Q       On the last page of that statement you said this: ‘The male who hit me was of Aboriginal appearance, aged in his mid 20s, approximately 190 cm tall, slim build with a moustache. He was wearing what looked like a grey-hooded jumper’. Do you remember giving that description.
A       I remember signing that statement, that’s right, yes.
Q       That was a description you gave to Moulds on 29 May.
A       I believe so.
Q       Is it possible that seeing two or three strange men suddenly for a brief period, that the images of all three have combined into one.
A       I have the face in my mind very clearly of the guy who hit me from the left, and of the other fellow who came around from the right-hand side of the car towards me on my right.
Q       So when you said –
A       It was probably more accurate than would have been. The situation has re-run through my mind hundreds of times since the episode last year.
Q       Mr Mitchell, I have no doubt that it’s had a significant impact on you but isn’t this the case: that when you gave evidence today you said it was the man without the grey-hooded top who punched you.
A       I didn’t say he didn’t have a top. I just said the guy on the left punched me.
Q       There was only one hooded jumper that you saw being worn.
A       That’s right.
Q       Your recollection today is that it was not the man with the hood that punched you.
A       The guy on the left punched me and I don’t know what he had on.
The problem in this and the other evidence referred to or quoted above, from the point of view of the prosecution, is that whilst not doubting his honesty, R M was over willing to volunteer the conclusion that he safely identified the accused, which does no more than demonstrate the inherent dangers referred to in the case law. Furthermore, there was the ever-present danger that what he saw through the court door was tainted by the ‘displacement effect’, induced by seeing the photograph and recognising that person again: Alexander v The Queen[53]. The fact remains that there is very little underpinning this conclusion, to enable the evidence to be assessed or treated as reliable. As mentioned, R M gave a vague description at the time and he did not mention then, or indeed during the photo identification procedure, the particular characteristics which seem to so much influence his later positive identification from the court environs, particularly the facial attributes centring around the nose and the profile of the accused.
[53] (1981) 145 CLR 395 at 409.
That evidence bore all the hallmarks of retrospective reconstruction. Bearing in mind the particular matters averted to by Evatt and McTiernan JJ in Craig (above), at the end of the day, the Court finds the evidence of R M although honest, is unreliable in respect of identification. Therefore the court necessarily entertains a reasonably doubt as to the purported identification of the accused Mr Harradine as one of his attackers. As mentioned above, the matter is taken no further by the evidence of D M. There must be a verdict of acquittal in relation to counts 4 and 5 accordingly.
Conclusion and verdict
The Court finds T S was a reliable and honest witness, but it cannot in the above circumstances remove the reasonable possibility that he was mistaken when purporting to identify the accused Mr Harradine. For his part R M was an honest but an unreliable witness when it came to the evidence of identification, so that proof beyond reasonable doubt as to Mr Harradine’s involvement is not satisfied. These are not, however, findings of innocence, just that the prosecution has failed to prove its case.
The verdicts of the Court therefore are in relation to counts 1, 2, 3 and 4 on the information, the accused George Stanley Harradine is found not guilty of each. As mentioned, count 5 was dismissed, there being no case to answer. Verdicts will be entered accordingly.