R v Hutchison No. SCCRM 92/822 Judgment No. 4074 Number of Pages 13 Criminal Law Evidence

[1993] SASC 4074

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN(1), COX(2), DEBELLE(3) JJ

CWDS
Criminal law and procedure - evidence - confessions and admissions - Appeal against conviction for murder - challenge to admissibility of conversation between appellant and police officer by reason of delayed caution - challenge before trial judge restricted to assertion that police officer made up his mind to arrest the appellant before questioning - further argument based on Van der Meer v The Queen (1988) 62 ALJR 656; R v Dolan (1992) 167 LSJS 300 and R v Webb and Hay (1992) 168 LSJS 256 and asserting that the police officer must have had reasonable suspicion of guilt before commencing interview not raised before trial judge - relevant to the exercise of the discretion that the interview took place before the above cases were decided - R v Machin (unreported decision of Cox J 9/7/93) referred to - held evidence properly admitted. Admissibility of a further conversation considered - criticism of continued questioning in face of refusal to answer - R v Stafford (l976) 13 SASR 392 and R v Ireland (1970) 44 ALJR 263 referred to.
Criminal law and procedure - jurisdiction, practice and procedure - Request to judge to disqualify himself after he had made a ruling reflecting on credibility of a witness at the trial - trial by judge alone - analogy with summary trials in Magistrates' Courts - discussion as to appropriate course of action for court to take - R v Masters and Others (1992) 26 NSWR 450; Australian National Industries Ltd v Spedley Securities Limited (In Liquidation) (1992) 26 NSWLR 411; Furnell v Betts 20 SASR 300 at 302 and R v Liverpool Juvenile Court Ex parte R. (1988) l AB 1 at 10 discussed. Trial judge was correct in refusing to disqualify himself.
Criminal law and procedure - evidence - Description of physical characteristics of a person not amounting to a positive identification - warning as to dangers of indentification unnecessary R v King 12 SASR 404 followed.

HRNG ADELAIDE, 16 June 1993 #DATE 30:7:1993
Counsel for appellant:     Mr S Tilmouth QC
   with Mr R Armour
Solicitors for appellant:    Armour and Co
Counsel for respondent:     Ms A Vanstone
Solicitors for respondent: Director of Public
   Prosecutions

ORDER
Appea; dismissed.

JUDGE1 DUGGAN J The appellant has appealed against his conviction for murder after a trial by judge alone. It was alleged at the trial that the offence took place on 13th January, 1990 at Kilburn. The evidence led against the appellant was mainly circumstantial in nature. The appellant is now 40 years of age. The victim, Mitchell Reed, was 17 at the time of his death and had no fixed place of abode. According to the Crown case the appellant invited the victim to his house where the youth was attacked with an iron bar. He died some days later from head injuries received during the assault. 2. At the time of the incident the appellant was living alone in a house at 84 Marmion Avenue, Kilburn. Shortly after 10.00 pm on Saturday 13th January, 1990 he arrived in a taxi at his parents' house at Ferryden Park. He told his father that someone had been bashed at his house. The appellant's father and sister then proceeded to the appellant's house where the deceased was found slumped unconscious in a chair in the lounge room. The police were called. There was blood on the deceased's face and in his hair. Nearby was a pinch bar with blood and hair adhering to it. 3. The victim was taken to the Royal Adelaide Hospital. He died five days later. It would appear from the evidence led on behalf of the Crown that he had been struck on the head at least three times with a blunt instrument. This resulted in extensive compound skull fractures and brain damage which eventually led to death. As I have said, the prosecution case was based principally on circumstantial evidence. Apart from the finding of the victim's body in the appellant's house in the circumstances which I have described, there was evidence from the appellant's sister that he telephoned her after his arrest and told her that he had met the victim in Rundle Mall; that they had a drink in a hotel; and that they then went in a taxi to the Blair Athol Hotel. The account given by the appellant's sister is vague and she was subsequently declared hostile. It is not clear from her version what happened after the arrival at the Blair Athol hotel. 4. The appellant's next door neighbour, Mrs Hoskin, was called by the Crown. There is a challenge to the learned trial judge's acceptance of the evidence which this witness gave and it will be necessary to refer to her evidence in more detail later in these reasons. She said that on the Saturday at about 11.30 am she had seen the appellant and another man walking around a corner in Marmion Avenue. The other person had light coloured hair, he was shorter than the appellant and he was of stocky build. The witness said that between 4.00 and 4.30 pm that afternoon she saw the same two men get out of a taxi which stopped in Marmion Avenue and they then went into the appellant's house. They were carrying what appeared to be cartons of beer. According to observations made at the post-mortem examination the victim weighed 54 kilograms, was 1.72 metres in height and had "mixed brown hair". Finally, in an interview with Detective Stapleton, which is also challenged, the appellant is alleged to have said "It was him or me, self defence". The appellant did not give evidence at the trial, nor was any evidence called on his behalf. 5. It was conceded by counsel for the appellant at the trial that whoever inflicted the injuries on the victim did so with an intention either to kill him or at least to inflict grievous bodily harm. The main issue in dispute was the identity of the assailant. The learned trial judge found that the circumstances established beyond reasonable doubt that the appellant committed the offence. In making this finding the judge concluded that the circumstances did not admit of any reasonable hypothesis consistent with the appellant's innocence. His Honour found that there was insufficient evidence to raise a reasonable possibility that the appellant was acting in self defence. 6. The first matter argued on behalf of the appellant was the admissibility of the interview conducted by Detective Stapleton. This witness said that he arrived at the appellant's house after 11.00 pm on 13th January, 1990. He spoke to other police officers at the home and then went with the appellant's father and Detective Barr to Mr Hutchison senior's house at Ferryden Park where he saw and spoke to the appellant. According to his evidence the conversation proceeded as follows:-
    "I said 'Ian, my name is Stapleton, this is Detective
    Barr. We are from Holden Hill CIB. We understand a serious
    assault occurred at your house at Marmion Avenue, Kilburn
    tonight, and we would like to talk to you about it?' He said
    'Is he dead?' I said 'No. But he is in a very serious
    condition.' He said 'It was him or me, self defence.' I said
    'Are those the clothes you were wearing when you got here
    tonight?' He said 'Yes, I haven't even got my shoes', and he
    indicated to me that he had thongs and socks on his feet.
    He said 'What am I being charged with?' I said 'At this
    stage you are not being charged. We would like you to come
    with us back to the house to see if we can work out what
    happened?' He said 'I'm not saying anything without a
    lawyer'. I said 'Who is your lawyer?' He said 'Wooley.' I
    said 'Is that Tim Wooley?' He said 'I don't know his name,
    from Sykes Bidstrup.' I said 'That's fine. We'll give him a
    ring. Do you have his phone number?' He said 'No. That's
    only during the day.' I said 'We'll try to contact him if
    you like?' He said 'No.' I said 'Ian, I am now arresting you
    for this assault tonight, and now I am going to give you
    your rights. I have to tell you that anything you say will
    be taken down and may be given in evidence in court. Your
    rights are: 1. You are entitled to make a telephone call in
    the presence of a member of the police force to a nominated
    relative or friend, to advise that relative or friend of
    your whereabouts. Do you want to make a telephone call to
    anyone?' He said 'No.' I said 'You are entitled to have a
    solicitor, relative, or friend present at any time while in
    custody when you are being interviewed by police. Do you
    want anyone present when we speak to you?' He said 'No.' I
    said 'What about your father?. Do you want him present?' He
    said 'No.' I said 'If English is not your native language
    you are entitled to have an interpreter present to assist
    you. Do you want an interpreter?' He said 'No. I can speak
    English.' I said 'You are entitled to refuse to answer any
    questions while in custody, unless required by law.' He said
    'What does that mean?' I said 'It means that you don't have
    to answer any questions unless required by any law. I will
    tell you if there are any questions that you are required by
    law to answer, okay?' He said 'Yes.' I said 'Have you got
    any other clothes here? We're going to have to take the
    clothes you've got on.' He said 'No. They are back there.
    I haven't been here for six months.' I said 'We'll get some
    clothes for you on the way past. We'll go to your house,
    and then to Holden Hill Police Station.' He said 'I'll come
    with you. I won't resist you in any way.'" 7. Immediately prior to Detective Stapleton giving this evidence his Honour granted an application by the defence counsel for a voir dire hearing. Stapleton was cross-examined by defence counsel on the voir dire and it was put to him that he went to the house of the appellant's father with a view to arresting the appellant. Stapleton denied that allegation. He was then asked questions about his knowledge, before interviewing the appellant of a statement taken by Detective Barr from the appellant's father. He agreed that Barr had told him what Mr Hutchison senior had said, namely, that the appellant had come to his house that evening and told his father "I think I've killed someone. His head's been bashed in". I should explain that Mr Hutchison senior was declared hostile on the application of the prosecution while he was giving his evidence at the trial and he did not give evidence of this statement alleged to have been made to him by the appellant. Nevertheless, Detective Stapleton was in possession of the information before the interview with the appellant and he was also aware of the fact that a badly beaten man had been found at the appellant's home. 8. After defence counsel had elicited these matters from Detective Stapleton on the voir dire hearing there was an outburst from the appellant and the following exchange then took place:-
    "Mr Boucaut: ... I am asking your Honour to exclude
    some evidence that my learned friend has opened on.
    His Honour: On what ground?
    Mr Boucaut: On the ground that it is unfair to the
    accused for you to receive that.
    His Honour: Why?
    Mr Boucaut: Because the evidence, I suggest, indicates
    that necessarily he must have been going there to arrest
    the accused.
    His Honour: But he says he wasn't.
    Mr Boucaut: Well, that is a matter for your Honour to
    rule on.
    His Honour: I will rule on it now if you want me to rule
    on that now.
    Mr Boucaut: As your Honour pleases.
    His Honour: I believe him. He didn't go there with the
    intent to arrest the accused." 9. There was then a further outburst from the appellant after which the discussion continued:-
    "Mr Millsteed: I take it Mr Boucaut has no submissions
    on the voir dire?
    Mr Boucaut: Well, your Honour has ruled.
    His Honour: I have ruled on that. I didn't consider
    that he went there with the intention to arrest him." 10. Mr Tilmouth QC for the appellant argued that the interview should have been excluded by the learned trial judge in the exercise of his discretion. He contended that the judge should have inferred from the evidence that, before commencing the interview, Stapleton must have intended to arrest the appellant or at the very least that he suspected the appellant of involvement in a serious assault. In either event, said Mr Tilmouth, the usual caution should have been administered to the appellant before the interview proceeded. Mr Tilmouth relied upon the judgment of Mason CJ in Van der Meer v The Queen
(1988) 62 ALJR 656 at 661 and the decisions of this court in R. v Dolan (1992) 167 LSJS 300 and R. v Webb and Hay (1992) 168 LSJS 256. 11. In my view no criticism can be made of the trial judge's decision not to exclude the appellant's answers by reason of the fact that the caution was not administered earlier. It is clear from the passages which I have set out above that the application was based on the assertion that Stapleton had made up his mind to arrest the appellant before he questioned him. The assertion was denied by Stapleton. The trial judge made a specific finding accepting the witness on the issue. There is nothing to suggest that the trial judge was wrong in making that finding. 12. As I have said, however, Mr Tilmouth's argument went further. He claimed that the objective evidence demonstrated that Stapleton must have had a reasonable suspicion as to the guilt of the appellant in respect of an assault. If that was the case then, according to the law as it now stands in this State, the caution should have been administered at the outset. But whilst recognising that the objective facts relied upon by Mr Tilmouth would be of considerable significance in determining the officer's state of mind, the fact remains that this issue was not raised before the trial judge. Stapleton was not questioned about his state of mind in this respect; nor was the trial judge asked to consider the issue. In answer to a question from his Honour the defence confined the issue to the question of intended arrest. 13. Whereas a trial judge should take account of all relevant circumstances when considering whether it is appropriate to exclude evidence on the basis of unfairness, the judge in the present case could hardly be expected to decide upon a matter touching the witness's state of mind in the absence of any questions asked of the witness relative to that aspect and in the further absence of any argument on the point. Mr Tilmouth argued that the appellant's counsel at the trial may have been distracted from his task by the appellant's outbursts in the course of evidence and argument on the voir dire hearing. However the court has not been provided with any evidence to this effect and, in any event, it seems unlikely that experienced counsel would have been so affected. 14. Even if the matter had been argued before the trial judge, the fact that the interview took place before the decisions in R. v Dolan and R. v Webb and Hay brought the law to its present stage of development would have been an important consideration to be taken into account in the exercise of the discretion to exclude the conversation from evidence. As Cox J pointed out in a ruling in R v Machin (unreported 9th July, 1993) only Mason CJ expressed the test in the terms subsequently adopted in South Australia and prior to 1992 the police in this State could not be criticised for failing to anticipate that the law was going to develop in the way in which it did. 15. In my view this ground of appeal must fail. Objection was taken at the trial to a further conversation between Stapleton and the appellant which the police officer said took place after the appellant was taken from his father's house to his own house at Kilburn. This conversation commenced shortly after midnight. The appellant and Stapleton were waiting outside the house while Detective Barr collected items of clothing inside. The appellant commented on the number of police officers in the vicinity and when Barr came back to the car the appellant asked if he had got his shoes. Barr said that he had and the appellant said "The boots are his, the black pull-on boots by the front door". These were comments volunteered by the appellant and, in all the circumstances, I do not think that their exclusion was warranted on the grounds of unfairness. However Stapleton then asked the appellant: "Do you know the name of the other person?" The appellant did not answer the question and Stapleton went on: "Have you got any blood on you?" The appellant said: "I don't know I've got broken ribs. I fell over at a Christmas party and broke my ribs at the back." 16. In my view the last two questions should not have been asked. In the face of the indication by the appellant that he did not wish to answer questions without a lawyer being present, the police officer was not justified in exploring these matters relating to the offence in the absence of the appellant's solicitor. Continued questioning in the face of a refusal to answer further questions or an intimation that the suspect wishes to have a solicitor present during the questioning has been deprecated by this court over many years. (Lenthal v Curran (1933) SASR 248 at 260; R v Evans (1962) SASR 303; R v Stafford (1976) 13 SASR 392.) In a number of instances (and the questions and answers with which I am presently dealing are an example) the questioning will be inadmissible for another reason, namely, that it is simply not probative of any issue in the trial. (R v Ireland (1970) 44 ALJR 263.) 17. Although I am of the view that the questioning after the intimation that the appellant did not wish to answer questions in the absence of his solicitor should have been excluded, I am satisfied that no miscarriage of justice has resulted from its admission. The answers given could not have had any effect on the mind of the trial judge in finding the charge proved. I should add that a later answer by the appellant suggested that he did not want anyone present while he was being interviewed. However this comment should not have been taken as overriding his former clear refusal to say anything without a lawyer to advise him. Mr Tilmouth placed some reliance on the fact that the police officer asked the appellant to read and sign the record of interview. I cannot see any reason why a person in the appellant's position should not be asked to sign an interview up to the point where he has declined to answer further questions. Apart from the fact that there may be admissible questioning prior to the refusal, the court should be provided with reliable evidence of the dealings between the person interviewed and the police including the fact of the refusal to answer. I can see nothing unfair in the invitation by the police to the interviewee to confirm the discussion up to that point of time in the investigation. 18. My comments on the importance of police officers desisting from continued questioning in the circumstances outlined above are also subject to the duty of a police officer under s.79a(3) of the Summary Offences Act, 1953 to inform a person who has been apprehended of his or her rights under s.79a(1) and to administer the warning referred to in s.79a(3)(b). It goes without saying, however, that the provision of this information must not be used as an occasion for asking questions about the matter under investigation in the face of an earlier refusal by the person apprehended to answer questions. 19. Ground 16.2 of the grounds of appeal is in the following terms:-
     "16.2 By ruling in the manner referred to in ground
    16.1 hereof the Learned Trial Judge, sitting alone without a
    jury prematurely, and before having heard argument on the
    matter, expressed views about the credibility of Detective
    Stapleton, whose evidence was in issue (see pp 222, 239) to
    such an extent that a fair minded observer might entertain a
    reasonable apprehension that his Honour might not bring an
    impartial and unprejudiced mind to the case. The applicant

    contends that the ruling at that stage vitiates the trial.
    (The applicant refers to R v Watson. Ex parte Armstrong
(1976) 136 CLR 248 at 258- 263, Vakautau v Kelly (1989) 167
    CLR 568 and Livesey v NSW Bar Assoc. (1983) 151 CLR 285.)" 20. This ground identifies a difficulty involved in the hearing of criminal matters by judge alone. But whereas trial by judge alone is a relatively recent procedure in this State the same problem has always been present in summary trials before magistrates. It was argued that in the circumstances of this case the learned trial judge should have disqualified himself in accordance with the principles relating to bias discussed in the cases referred to in the ground of appeal. 21. I agree with Miss Vanstone for the respondent that it is important at the outset to acknowledge the distinction between the cases relied upon by Mr Tilmouth and the circumstances of the present case. The usual situation in which bias on the part of a judicial officer is raised involves circumstances existing prior to the judicial proceeding which is the cause for the complaint or application for removal. And whereas it may happen that disqualification from sitting is rendered necessary or desirable by reason of events occurring at the trial itself, the cases must be rare in which this consequence results from a ruling which, although it reflects on the credibility of a party or witness, is nevertheless required at that stage of the trial. The distinction between reliance on a pre-existing ground for disqualification and events arising in the course of a trial is well illustrated by R v Masters and Others
(1992) 26 NSWR 450. One of the appellants in that case was awaiting trial in the District Court when the Crown applied for revocation of his bail. The application came before the judge who had been assigned to preside at the trial. The appellant gave evidence on the application and was found by the judge to be a most unsatisfactory witness. The judge also found that he probably committed certain offences whilst on bail. Two unsuccessful applications were made to the judge to disqualify himself from the hearing of the original matter. 22. The case of Australian National Industries Ltd v Spedley Securities Limited (In Liquidation) (1992) 26 NSWLR 411, an authority relied upon by Mr Tilmouth in the present case, was cited to the Court of Criminal Appeal. Their Honours, after making some criticisms of the Spedley case, continued (p 472):-
    "We are not persuaded that the interpretation of
    apprehended bias now adopted by the Court of Appeal is
    correct. Even if our opinion be incorrect, the decision of
    the Court of Appeal in Australian National Industries Ltd v
    Spedley Securities Ltd (In Liq) is, in our view, clearly
    distinguishable in the particular circumstances of this
    case. It was concerned with the situation where the judge
    was to hear a different (albeit, related) action in which
    there arose the same issue of fact and the credit of the
    same witness which he had already decided against one party.
    That is not the present situation. Dunford DCJ heard the
    application to revoke the appellant's bail because he was
    the judge who was to hear the trial in which the appellant
    was involved. This was an appropriate pre-trial motion to
    be heard by the trial judge. We do not accept the
    submission on behalf of Richards that a judge would be
    obliged to disqualify himself from continuing with a
    criminal trial because, in deciding the admissibility of
    evidence after a voir dire examination in which the accused
    gave evidence, he had expressed views critical of the
    accused's credit and because it was likely that he may have
    to determine later in the case another issue involving the
    credit of the accused on either a further voir dire
    examination or when imposing sentence. Such a proposition
    makes nonsense of the judicial system. We do not pause to
    consider whether that is so because the principle of
    apprehended bias does not operate so as to require the judge
    to be disqualified during the course of the one trial or
    because such a case falls within the somewhat uncharted
    exemption afforded for necessity: Livesey v New South Wales
Bar Association (1983) 151 CLR 228 at 300. We see no
    distinction between the situation where the decision in
    question is made on a voir dire examination during the trial
    and the situation where the judge has in a pre-trial motion
    decided an issue against an accused which may well arise
again for his decision in the trial itself." 23. I respectfully agree with this view and in my opinion it can be applied to the case of trial by judge alone where the judge may be required to make rulings during the trial based on evidence heard in the course of a voir dire examination in addition to making findings of fact on the question of guilt. In the present case the judge was asked to make a ruling by the defence on the admissibility of the statement to Stapleton. It would seem likely that the action of disqualifying himself at that stage would achieve no more than to place another judge in the same position in the event that a similar objection to the evidence was taken at a second trial. 24. This is not to deny the existence of any difficulties arising by reason of the dual function exercised by a judge sitting without a jury. As I have said, the problem has always been present in summary trials. In Furnell v Betts 20 SASR. 300 Wells J said (302):-
    "Naturally no difficulty or embarrassment is caused
    where a trial is conducted before judge and jury; the judge
    decides, in the absence of the jury, whether to receive the
    evidence, and, if received, the jury determines its weight.
    But, from time to time, I have observed signs of confusion
    and uncertainty in some Courts of summary jurisdiction over
    their proper role in these circumstances, and it is
    necessary that I should speak plainly. Magistrates are, by
    the nature of their qualifications, training, and
    experience, both competent and entitled to listen to
    information or evidence that, for reasons subsequently found
    to be valid, ought to be and is discarded, and thereafter to
    dismiss it from their minds and to decide a case or make an
    adjudication as if that information or evidence had never
    come to their notice: compare the judgments of Mayo J and of
Hogarth J in Evans v F. (1964) SASR. 130, especially at pp
    133 and 134, and 146 to 148. It seems to me, therefore,
    that it would preclude a thorough exploration of the issues
    for a Magistrate to feel inhibited or uneasy if he is asked
    to receive and consider information or evidence that he may
    subsequently reject. He must receive and consider it de
    bene esse and be prepared later, if he must, to exclude it
    from his mind." 25. There will be many cases in which the ruling as to admissibility can be left for decision at the conclusion of the case. If that is possible in cases which might occasion embarrassment by reason of express or implied views as to credibility, it will be desirable to follow that course instead of ruling on the matter during the trial. (Baker v Samuels (unreported 10 July, 1979 Hogarth J) But there will be other cases in which the ruling should be made at an earlier point in the trial. In Ladlow v Hayes (unreported 11 March, 1983) Walters J said:-
    "Moreover, it seems to me that a party to a case has
    the right to know what evidence he has to meet. It could be
    that he would necessarily be embarrassed in the conduct of
    his case if the court were to decline to rule at once on an
    objection taken to admissibility. If the ruling were not
    then given, he might be denied the means of knowing whether
    or not he would be compelled to meet the evidence objected
    to, or what form his cross-examination on that evidence
    should take. In this context, I think I may apply the rule
    stated by Philip J in International Harvester Co. (Aust.)
Pty Ltd v McCorkell (1962) QR 356, where the learned judge
    observed - in a statement with which Mansfield CJ concurred (at
    358-359):
    'The general rule is that a party is entitled to have
    questions of admissibility determined as they arise; of
    course a judge may take time to consider any objection but
    the determination must not be delayed to the prejudice of
    any party. However, it is the duty of a party who may be
    prejudiced by such a delay to demand a timely
    determination.'" (Extracts from the above cases are set out
in Ward and Kelly, Summary Justice paras 9008 and 9009.) 26. Another example of a situation where an earlier ruling is desirable is provided by Goff LJ in A.D.C. (An Infant) v Chief Constable of Greater Manchester (unreported decision of a Divisional Court (15 March, 1983 referred to in R v Liverpool Juvenile Court Ex parte R (1988) QBD 1 at 9:-
    "I recognise that in very many cases it would indeed
    be proper for justices to deal with the issue of
    admissibility of a confession before the close of the
    prosecution case. To give a very simple and perhaps extreme
    example, if the only evidence before justices is the
    evidence of a confession and nothing else, then as a matter
    of common justice the justices ought to deal with the issue
    of the admissibility of that confession as a preliminary
    point, before the close of the prosecution case, so that the
    defendant can then decide whether to make a submission of no
    case to answer." (See also F. v Chief Constable of Kent
(1986) Crim LR 557.) 27. In the United Kingdom hearings on the admissibility of confessional material are now regulated in some respects by statute. If it is alleged that the confession was involuntary the magistrate must hold a trial within a trial and the defendant is entitled to a ruling upon admissibility before or at the end of the prosecution case. (R v Liverpool Juvenile Court Ex parte R. (1988) 1 QB 1 at 10.) In the present case the appellant's counsel sought a ruling during the prosecution case and in all the circumstances I think it was a proper exercise of the discretion to accede to that request. The ruling which was made could not be regarded as sufficient reason for the trial judge to disqualify himself. It is my view that the requirements of the administration of justice would not have been served if the judge had disqualified himself. Apart from the procedural considerations to which I have referred the comments made by Mason J in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352 are pertinent:-
    "It needs to be said loudly and clearly that the ground
    of disqualification is a reasonable apprehension that the
    judicial officer will not decide the case impartially or
    without prejudice, rather than that he will decide the case
    adversely to one party. There may be many situations in
    which previous decisions of a judicial officer on issues of
    fact and law may generate an expectation that he is likely
    to decide issues in a particular case adversely to one of
    the parties. But this does not mean either that he will
    approach the issues in that case otherwise than with an
    impartial and unprejudiced mind in the sense in which that
    expression is used in the authorities or that his previous
    decisions provide an acceptable basis for inferring that
    there is a reasonable apprehension that he will approach the
    issues in this way." 28. Finally it should be noted that defence counsel did not make application for the judge to disqualify himself, a consideration which of itself is fatal in the circumstances of the present case. It is also relevant to bear in mind that the fact that the judge may be placed in the position of deciding a matter such as this during the prosecution case might well be a consideration to be taken into account when electing to be tried by judge alone. 29. In order to deal with the next ground of appeal it is necessary to return to the evidence of Mrs Hoskin. The trial judge said that her description of the man with the appellant "more or less matched that of the deceased". He went on to refer to her evidence that the man she saw in the morning was the same person she saw later in the day. He said: "In that she was probably mistaken and I place no reliance on that part of her evidence but I accept her evidence as to what she saw during the afternoon." 30. Mr Tilmouth argued that the comment that the description more or less matched that of the deceased was not justified. I have already referred to the description of the victim which is to be found in the pathologist's evidence. The description given by Mrs Hoskin was very limited. Mr Tilmouth drew attention to the witness's statement that the man was stocky. It was argued that this did not tally with the description of the deceased in the evidence. Whether that is so or not is, perhaps, a matter for debate. The trial judge was not suggesting that there was anything even remotely approaching an identification of the man with the appellant and in my view there was sufficient similarity to justify the judge's comment. 31. Then Mr Tilmouth argued that it was not open to the trial judge to say that the witness was probably mistaken about the morning sighting but correct as to the incident later in the day. The witness's sighting of the men during the morning was very brief. She saw their backs as they turned around a corner when walking away from her. She did not see them come out of the house. The later sighting appears to have been more extensive. The witness said she saw them get out of the taxi which was parked on the opposite side of the road and walk across the road towards the side on which the houses of the appellant and the witness were situated. She then saw them climb the front fence of the appellant's house. It is of significance in the light of other evidence that the appellant was coming home with another man at this time. Irrespective of whether it was the same man or not the witness's broad description applied to the man she saw on the latter occasion. The sighting ties in to a certain extent with the evidence of the appellant's sister to which I have referred. And, of course, the victim was found at the location later in the evening. I can see nothing to fault the trial judge's reasoning as to this evidence. 32. Mr Tilmouth suggested that the evidence had to be treated with the special care appropriate in cases of identification of strangers and he referred to Domican v The Queen 173 CLR 555. Mr Tilmouth argued that the trial judge should have reminded himself of the warning as to the dangers of acting on identification evidence. In my view this argument is misconceived. The witness gave evidence of observations of certain physical characteristics, but did not claim to identify the person with the appellant. The distinction between these two types of evidence was made in the joint judgment of this court in R v King 12 SASR. 404 at 410 where their Honours said:-
    "What McLoughlin did was to describe certain physical
    characteristics of a tall, fair-haired young man whom he saw
    on the premises at the block of flats shortly before the
    robbery. At no time has he purported to identify the
    appellant as being that young man. He has at no time
    professed to recognise that young man. In Craig v The King
(1933) 49 CLR 429, Evatt and McTiernan JJ (in their
    dissenting judgment) discuss the question. They said: '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'. We think it
    is clear from the last proposition, No. (5), that their
    Honours are referring to identification in the sense of
    recognition. Recognition constitutes a mental process
    whereby one person, by observation, is able to establish to
    his own satisfaction the identity of another person. In so
    doing he no doubt takes into account the general physical
    characteristics of the person who he is recognising. But a
    complete catalogue of these personal characteristics, if
    supplied to a stranger, would be insufficient to enable that
    stranger to achieve the same act of recognition. At most he
    could say that the person at whom he is looking could be the
    man to be recognised, in that the description fits him. He
    could not say 'it is the man'; and it is evidence of the
    last category which constitutes recognition; it is that type
    of evidence of which the cases speak when they refer to
    evidence of identification. It is that type of evidence
    which the law requires, in certain circumstances, to be
    accompanied by a warning to the jury. ... It seems to us
    that McLoughlin's evidence was not evidence of this
    character at all. He described a man who he at no time
    purported to identify. His evidence was of observed
    physical characteristics; and it was for the jury to assess
    the value of his evidence on this topic in the same way as
    it would value any ordinary statement made in evidence. We
    think that no special warning was required to be given by
    the learned trial Judge in these circumstances." 33. In my opinion there was no error in the learned trial judge's approach to Mrs Hoskin's evidence. 34. The next matter argued concerns the evidence of the appellant's father and sister. Both witnesses were declared hostile after they had given the major part of their evidence-in-chief. The learned trial judge said in his reasons for decision that he formed an unfavourable view of them as witnesses and that he relied on their evidence only where it was supported by other evidence or by other events. Mr Tilmouth argued that there was no such independent support for the evidence which each gave on certain matters and which his Honour accepted. 35. In the case of the appellant's sister the learned trial judge accepted her evidence that during a telephone conversation she had with the appellant on 15th January, 1990 the appellant said that on the previous Saturday he had made the acquaintance of the deceased in Rundle Mall; that they had left the city in a taxi together; and that they had gone to a hotel to purchase liquor. In my view this evidence was supported by Mrs Hoskin's observations. 36. Mr Tilmouth then pointed to his Honour's acceptance of Mr Hutchison senior in the following paragraph:-
    "Nothing is known of events in the accused's home until
    about 10 p.m. that evening. He then arrived by taxi at his
    father's house. He borrowed money to pay off the taxi.
    What he told his father is not clear. Suffice to say that
    he gave his father to understand that someone had been
    'bashed' at his house and that that person was still there.
    No other evidence is available as to what was said between
    them other than a suggestion by the accused that his father
    ring the accused's sister, who lived nearby, to accompany
    him to the accused's house. Mr Hutchison senior and his
    daughter drove to Marmion Avenue in his car. He went into
    the house by the back door which he said he found unbolted.
The accused had earlier given him a key to the house." 37. This evidence of Mr Hutchison is supported by what the police observed at his son's house and the fact that he rang them from the house to report his findings. Furthermore they found the appellant at the house of his father. In my view it was not unsafe for the trial judge to accept these parts of the evidence of the two witnesses. 38. Finally it was argued that the verdict was unreasonable and could not be supported having regard to the whole of the evidence. I have assessed the evidence in the light of the views which I have expressed above as to admissibility and by reference to the approach which an appellate court is required to take when considering a submission of this nature (see Morris v The Queen (1982) 163 CLR 454.) I have reached the conclusion that it was open to the trial judge to be satisfied beyond reasonable doubt of the appellant's guilt. 39. In my view the appeal should be dismissed.

JUDGE2 COX J In my opinion this appeal should be dismissed. I agree with the reasons that have been prepared by Duggan J.

JUDGE3 DEBELLE J I agree with the reasons of Duggan J and with the orders he proposes.