R v Sarandoglou No. DCCRM-99-608
[2000] SADC 66
•1 June 2000
Daniel John Sarandoglou
[2000] SADC 66
Judge David Smith
Criminal
On the 17th March 2000, upon his arraignment, Daniel John Sarandoglou pleaded not guilty to the offence of selling methylamphetamine contrary to s.32(1)(c) of the Controlled Substances Act 1984. The particulars of the offence are that he, on the 24th August 1998 at Adelaide, knowingly sold methylamphetamine, a drug of dependence, to another person.
The Application
The accused applied pursuant to Rule 9 to exclude the identification evidence of Constable Orlando Gollop firstly, because the procedure was so flawed that it rendered the identification unsafe and unfair and secondly, because its probative value is slight and is outweighed by the likely prejudicial effect on the accused. Further, the accused sought a ruling that Constable Gollop be prevented from identifying the accused in Court on the same grounds.
Counsel for the accused indicated that if the application to exclude the evidence of identification fails, then the accused will plead guilty as charged.
The accused’s application amounts to a contention that in the exercise of the Court’s discretion the identification evidence should be excluded because it is unfair to the accused, (ie more prejudicial than probative) and/or its admission would be contrary to public policy, (ie procured in breach of established procedures recognised by or required by the law) (see R v Hallam & Karger (1985) 42 SASR 126; R v Deering (1986) 43 SASR 252 per King CJ at p253; Alexander v R (1981) 145 CLR 395 per Gibbs CJ at 402, 403). In the circumstances of this case, if I excluded the out of Court identification evidence of Constable Gollop it would follow that I should also refuse to allow any “in dock” identification because there is no other evidence identifying the accused as the seller; (see R v Britten (1988) 51 SASR 567; R v Coleman (1987) 87 FLR 175).
The onus is upon the accused to establish, on the balance of probabilities, facts which justify the exercise of discretion in his favour on either of the above two grounds (see R v Collins (1976) 12 SASR 498 at 308-9; R v Lee (1950) 82 CLR 133; Wendo v R (1963) 109 CLR 559).
I turn to the evidence upon the hearing on the voir dire and my findings.
Hearing on the voir dire
The evidence on the voir dire consisted of the declarations together with oral evidence from Constables Orlando Gollop, Jonathon Jackson and Stephen Norman.
The events, the subject of the charge, took place in Hindley Street some time after 10.15 pm on the 24th August 1998. At that time, Constable Orlando Gollop (hereinafter referred to as “Gollop”), had been a police officer for only three months. He was off-duty that evening and had been to a movie in company with a friend at the Greater Union theatre complex on the northern side of Hindley Street. The film finished at about 10.15 pm and he walked in company with his companion, Andrei Gostin, in an easterly direction on Hindley Street towards King William Street. When about 70 metres east of the cinema complex, still on the northern side of Hindley Street, a male person alleged to be the accused, approached Gollop, and after asking him and obtaining from him a light for a cigarette said; “Do you want to buy some Wizz?” In response Gollop said; “No thanks”.
There is no debate that “Wizz” is the street name for amphetamine or more particularly methylamphetamine. Gollop said that he stood with this person for a minute to a minute and a half. There was street lighting and also lighting from numerous neon signs in the area. Gollop said that generally the lighting was “fairly good”. Gollop then walked to a nearby telephone booth on the northern footpath of Hindley Street. Whilst doing that he kept the person, alleged to be the accused, under surveillance. He observed this person smoking a cigarette and walking back and forth on the northern footpath of Hindley Street in the vicinity of a shop later called Hot Rock. From the phone booth Gollop telephoned his girlfriend. The telephone was not one of those located in a closed booth but was open and only partially sheltered. Whilst on the telephone for about 10 minutes, Gollop kept the person, alleged to be the accused, under observation. Only 5‑10 metres separated them during this time. Gollop insisted that the lighting was good. He described this person as follows:-
male
Caucasian;
5’10” or 5’11”;
long brown shoulder length hair slightly wavy;
thin build;
65 kilograms;
three days growth on his face though not a beard;
very thin face;
wearing a top which had horizontal black and white stripes on it over which he was wearing a black leather jacket;
black jeans;
black and white running shoes; and
Celtic pendant hanging around his neck
Gollop said that after 10 minutes this person then crossed to the southern footpath of Hindley Street and after walking west, entered Rio’s nightclub.
Gollop finished his telephone call, arranged to meet his friend later at Timezone, and walked to the Hindley Street police station where he reported what had happened. He provided a description of the man who had approached him. Gollop said that he walked quickly to the police station and would have taken only a minute to get there from the phone booth. Constables Jackson and Norman were called from upstairs in the police station and Gollop spoke to them and again provided a description of the man who approached him. Gollop then accompanied Jackson and Norman in a police vehicle which travelled westward down Hindley Street. At the Metropolis nightclub, from the rear of the police vehicle, Gollop indicated the accused as the man who had earlier approached him standing with a number of other persons both male and female. The police vehicle executed a “U” turn and parked near the corner of Hindley Street and Victoria Street. Gollop watched what then took place from his vantage point in the back of the police vehicle. He saw that Norman and Jackson had accosted the wrong man, and he saw that the accused had left the group and was walking off in a westerly direction down the northern footpath of Hindley Street. Gollop alighted from the police vehicle and indicated the accused to Jackson and Norman who then ran down the street and apprehended the accused. Gollop identified the accused in Court as the man who initially approached him in the street and who was later apprehended.
In cross-examination on the voir dire, Gollop said that the longest time between the initial approach to him and the apprehension of the accused would have been 35 minutes. He also agreed that the only record he made of the description of the person who initially approached him, was when he prepared his declaration on the computer later in the evening at the Hindley Street police station. Gollop resisted the suggestion that he was mistaken when he identified the accused at the Metropolis nightclub as being the man who initially approached him.
Constables Norman and Jackson gave evidence. They said that Gollop spoke to them at the Hindley Street police station at about 10.55 pm and, inter alia, described to them the man who had offered amphetamine to him but that they did not record the description. Rather, after looking at some surveillance videos, they set out in the police vehicle to attempt to locate this man. They deposed to the fact that after initially approaching “the wrong man” they apprehended the accused and upon searching him found a small clear plastic bag containing a small amount of white powder which was, it is conceded, methylamphetamine.
Both Norman and Jackson identified the accused in Court as the person they arrested that evening. Jackson said that as far as he knew, no record of the description of the man who attempted to sell amphetamine to Gollop was taken down by anyone in the Hindley Street police station. Norman said that before the apprehension, Gollop told him that the seller of amphetamine was wearing black pants and a black and white t-shirt. Norman said that the accused, when arrested, was indeed wearing such a t-shirt.
Such was the evidence on the voir dire. Save for the challenges in cross-examination, the evidence of the three officers was uncontested by other evidence. I accept the truthfulness of the narrative deposed to by the three officers and putting aside for the moment the issue of whether or not the identification evidence is so unsafe as to require exclusion, I find the circumstances to be as set out above.
The legal principles - the parameters of the discretion
The legal principles applicable to the receipt of identification evidence are now well established. They have evolved from the experience of the law that miscarriages of justice can, and have, occurred because of honest but mistaken evidence of identification; (see Alexander supra per Gibbs CJ at 403). A formal identification parade, properly conducted, is the most desirable method of obtaining a safe and accurate identification. At 399, 400 in Alexander, Gibbs CJ said:-
“The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime. If an identification parade is held for that purpose, it goes without saying that precautions must be taken to ensure that no prompting, suggestion or hint is given to the witness that any particular member of the group is the suspect.”
(See also R v Hallam and Karger supra and R v Deering supra.)
However, the case of Alexander makes it clear that evidence of identification by means other than a parade will not necessarily result in an exclusion of that evidence or a quashing of any conviction, even if the accused had been charged or was definitely suspected, and even if an identification parade could have been arranged; (see Alexander per Gibbs CJ at 401.5). Rather, the absence of a properly conducted identification parade raises questions not of admissibility of the alternative means of identification, but of the weight and sufficiency of such evidence. For instance, an identification made out of Court, by use of photographs produced by the police, or as in this case, by Gollop returning to the scene of the crime and picking out the alleged seller from a group of people on the footpath, is clearly relevant and admissible. What must be decided, given the absence of the ideal method of adducing such evidence, is whether such relevant and admissible evidence is wanting in weight or sufficiency and should be excluded because the strict rules of admissibility would operate unfairly against the accused; (see Alexander per Gibbs CJ at 401, 402; R v Bouquet (1962) SR (NSW) 563 per Sugarman J at 568; R v Bagley (1926) 3 DRL 717 per McDonald CJA at 719; R v Russell (1977) 2 NZLR 20 per Richmond P at 27; R v Deering (supra) King CJ at 255).
So the discretion is enlivened by the absence of an identification parade and the focus of the Court’s attention will then be the weight and sufficiency of the alternative means of identification taking into account, of course, any prejudicial effect. It is also clear from Alexander, per Gibb CJ at 403, that a trial judge, in the exercise of this discretion, can take into consideration that investigating police officers have not arranged an identification parade and the reason for not doing so. In R v Hamood (1987) 46 SASR 340 at 341 King CJ said that “alternative forms of identification should not be resorted to ... except for substantial and defensible reasons”. That view if it amounts to saying, that if there is no “substantial and defensible reason” for not having a parade, then the alternative form of evidence is to be excluded; would appear to be a considerable advance on, and not supported by, what was said by the majority justices in Alexander.
What then are the parameters of this discretion?
In Alexander at 402 and 403, Gibbs CJ articulated the discretion in the following terms:-
“... a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason “only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person”: Reg. v. Russell [1977] 2 NZLR at p.28. If the trial judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case”.
In the New Zealand case of R v Russell (supra) which was referred to with approval not only by Gibbs CJ, but also by other of the Justices in Alexander, Richmond P at 27 said:-
“... the real question in all cases is whether or not the trial judge ought to have exercised in favour of the accused his discretion to exclude admissible and relevant evidence on the ground that its prejudicial effect is out of proportion to its true evidential value, or on general grounds of “unfairness”.”
Also in R v Deering (supra) King CJ articulated the discretion. At 253 he said:-
“the law is clear that evidence of identification obtained by means of inspection of photographs is legally admissible evidence. I refer to Alexander v The Queen (supra), per Gibbs C.J. at p. 400. There exists a discretion to exclude that evidence, however, where its admission would be unfair to the accused, or where in the interests of wider public policy the court deems it proper to exclude the evidence because of some impropriety in the procedure by which it has been obtained.”
...
“Where there is a clear and definite suspect or where an arrest has been made the proper procedure to be followed is for the police to arrange an identification parade if the suspect or arrested person is prepared to participate in such a parade. If that procedure is not followed it gives rise to a discretion in the trial judge to exclude the evidence of identification by other means and that discretion will be exercised having regard to all relevant factors including, of course, the public interest in ensuring that persons who have committed crimes are convicted and punished for those crimes.”
At 255 King CJ also said:-
“In a case such as the present the judge is required to balance any unfairness which might result to the accused person from the use of photographs as well as the importance of courts insisting that the police observe proper investigatory procedures on the one hand against on the other hand the public interest in ensuring that guilty persons are bought to justice.”
The Exercise of Discretion
So at the risk of being obvious, I need to consider in the exercise of my discretion, the justification for evidence of identification by means other than an identification parade, and the weight and sufficiency of that evidence balanced against any likely unfairness and prejudice to the accused.
The accused complains that the identification procedure was flawed. I do not agree. The identification of the accused at or near the Metropolis nightclub took place in the initial investigatory stage or the pre-detection stage of the case as opposed to the evidentiary process or post-detection phase; (see Alexander per Stephen J at 408, 409; R v Deering (supra) per King CJ at 254, 255 for an explanation of the distinction). At the time Gollop, Norman and Jackson set out down Hindley Street, there was no available suspect, and so no prospect of arranging an identification parade. The police officers returned to the scene of the crime with Gollop so that they could know whom they should arrest. To suggest, as it was done faintly here, that Gollop should have given a full description to Norman and Jackson, then left it to them to comb Hindley Street and its environs to locate a person or persons answering Gollop’s description and then arrange a line-up, is to ignore the realities and urgency of a criminal investigation such as this. The authorities do not impose such an impractical requirement.
The circumstances surrounding the apprehension of the accused near the Metropolis nightclub were in some respects similar to the informal line-up which occurred in the case of R v Hamood (1987) 46 SASR 340. In that case the police arranged for the alleged victim of a rape to attend a bar in the Highlander Hotel where she identified the alleged rapist from amongst the patrons of the Hotel. The Court of Criminal Appeal held that such an informal identification parade was a satisfactory alternative means of identifying the accused. I accept, in making this comparison with Hamood, that the number of people in the “informal line-up" at the Metropolis nightclub could have been as low as five, two of whom could have been women.
In the urgent circumstances which prevailed in this case, and given the complete absence of a suspect, the police officers had no practical choice.
Therefore, I am satisfied, that in the circumstances, Gollop’s identification of the accused at the Metropolis nightclub amounted to a satisfactory alternative means to identify the suspect. It goes without saying that a parade after the arrest would have been a fruitless exercise.
It now remains to weigh the probity and sufficiency of the evidence of identification against its prospects of unfairly prejudicing the accused so as to deny him a fair a trial.
Counsel for the accused, Ms McCrohan, contended that Gollop’s opportunities to see the person who attempted to sell the amphetamine to him, were fleeting, fragmented and discontinuous. She contended that as a consequence there was a prospect that a displacement effect may have arisen. That is, Gollop had an imperfect picture of the seller in his mind and because the accused was somewhat similar in appearance, Gollop became mistakenly convinced that the accused was the seller. In particular, Ms McCrohan contended that Gollop subconsciously associated the accused with the person who had approached him earlier. Further, Ms McCrohan contended that the displacement effect and generally the unreliability reliability of Gollop’s identification was compounded by the lack of any recorded description of the seller prior to the apprehension of the accused at about 10.55 pm. In this respect, she relied upon R v Corley (1995) 63 SASR 509. Finally, Ms McCrohan seemed to be contending that the displacement effect was further aggravated by the fact that Gollop, the identifying witness, also undertook the role of investigating police officer. This mixing of roles has been criticised in a number of cases to which I was referred, in particular, R v Hayles (1990) 54 SASR 549 per Jacobs ACJ at 551.
In my view, Gollop had ample opportunity to see the seller. The lighting in the area was good. At the first encounter, Gollop stood at arms length to the seller for a minute or so. Then having rejected the offer to purchase some “Wizz”, Gollop moved to the telephone booth and for 10 minutes or so he kept the seller under observation. During this time, Gollop and the seller were only five to 10 metres apart. He saw him finally walk across Hindley Street and enter Rio’s nightclub. Within approximately 20 minutes, Gollop returned to the scene where he unhesitatingly identified the accused to the police officers, Norman and Jackson, to the extent of intervening when they approached “the wrong man”. Upon searching the accused, Jackson and Norman found a small quantity of amphetamine. This evidence is highly probative. Apart from the unwavering evidence of Gollop, that the man who attempted to sell him some “Wizz” was the man whom he indicated to Norman and Jackson a mere 20 minutes or so after leaving his company, the finding of the amphetamine is consistent with the fact that the accused was the earlier seller.
I turn now to the additional matters which Ms McCrohan says impinge upon the probative value of this evidence.
Firstly, the case of Corley is not authority for the fact that where there is a gap between the original observation and a later identification, the absence of a note or recorded description in the gap will be fatal to the admission of the evidence. Duggan J, who was the Judge in Corley, explained his decision in a subsequent case of Thomas Unreported Supreme Court Judgment No. S5911 dated 11 December 1996. At 5 of the judgment His Honour referred to Corley in the following terms:-
“In Corley’s case there were a number of unsatisfactory features about the evidence of identification and much of the confusion could have been prevented by the timely recording of details by the police officers.
............
The evidence in Corley’s case was excluded, not because the police officers did not take appropriate notes, but because the evidence was open to confusion and ambiguity, a situation which might have been avoided if the events had been properly recorded.”
It follows from what I have found above, that Corley is factually distinguishable on the grounds that the identification evidence here is not ambiguous or confusing. Distinguishable is probably not the appropriate word since the absence of a relatively contemporaneous record of the description is but one matter which is a consideration in the exercise of the discretion.
I now turn to whether or not Gollop did assume the role of investigating police officer to the detriment of the probative value of his identification of the accused.
Ms McCrohan suggested that Gollop became the investigator by “going to the police station and instigating a confrontation by going with the police in the car and by pointing out to them the person he thought he saw earlier”. She added that the police officers in the cases of R v Hayles (supra) and R v Dalcorobbo (1989) 151 LSJS 457 were in just that situation.
In the case of Hayles the appellant was convicted by jury of attempting to obtain money from an insurance company by falsely pretending that his vehicle had been stolen from a hotel carpark and damaged as a result of the driving of the thief. A Constable Poynter lived in the street where the accident occurred and he confronted the driver who eventually ran off. The Constable was off‑duty at the time. Nonetheless, he conducted a later interview with the appellant during which he rejected the appellant’s contentions that he was not the driver, and insisted that he had recognised him as the driver. The Constable also arranged a photographic identification by a neighbour in the street named, Mr Duif. The appellant, after the accident, upon learning that it was alleged that he was the driver, himself went to the street and spoke to, amongst others, the same Mr Duif who made the photographic identification. It was alleged that this visit to the street preceded the photographic identification, and if that was so, it would undoubtedly have tainted Mr Duif’s later photographic identification. Further, another neighbour, Mrs Shaw, deposed to the fact that the appellant was not the driver. Finally, there were a number of alibi witnesses who were unshaken in cross-examination as to their evidence that the appellant was elsewhere at the material time. At trial there was no application to exclude the evidence of the purported identification of Constable Poynter. However, the Court of Criminal Appeal allowed the appeal, quashed the conviction, and substituted a verdict of acquittal. The verdict of acquittal was substituted, rather than an order for re-trial, because it was the view of the Court that there are a number of unsatisfactory “loose ends" in the Crown case, including in particular, the role played by Constable Poynter and his purported identification evidence which perhaps should not have been admitted at all. At 550, 551 Jacobs ACJ said:-
“In the first place, it seems to me that if, on a new trial, objection were taken to the evidence of the purported identification of the appellant by Constable Poynter a serious question would arise as to whether such evidence should be admitted at all. I would not wish to be unduly critical of Constable Poynter, in view of his limited experience, but it is wholly unsatisfactory for a police officer who is a purported identification witness to assume the dual role of the officer conducting the investigation. As counsel for the Crown frankly conceded in argument, “there is no question that someone in Poynter’s position should go to the CIB and say “this is what this case is about, I am a witness, I should identify this man ... there is no question that that should be done as a matter of prudence”, and let the CIB take over.”
It can be seen immediately that there is no comparison between the roles played by Constable Poynter in Hayles and Gollop in this case.
The other case relied upon by Ms McCrohan is Dalcorobbo. It has some features similar to Hayles. Because of the threshold view I take about this contention it is unnecessary for me to set them out.
I agree with counsel for the DPP, Mr Muscat, that Gollop did not, in fact, assume the role of investigator. He remained in the background merely indicating the accused to Norman and Jackson at the Metropolis nightclub, and then that same night preparing his declaration. There are none of the worrying features about his purported identification of the accused as existed in Hayles and to a lesser extent in Dalcorobbo. It’s notable for instance that he did not participate in the formal interview of the accused in this case. In fact, as Mr Muscat pointed out, Constable Gollop did no more than an ordinary civilian witness.
Conclusion
Accordingly, for the above reasons I dismiss the application and rule as follows:-
that the identification of the accused at the Metropolis nightclub by Constable Gollop be admitted in evidence on the trial; and
that the Crown be at liberty to lead from Constable Gollop, an in Court identification of the accused.
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