(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Hinton)
16 November 2017
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
Appeal against conviction for two counts of rape following trial by jury. At trial there was no dispute that the rapes had occurred; the sole issue was whether the appellant was the rapist.
At issue on appeal is whether the Judge was required to warn the jury, either in accordance with s 34AB of the Evidence Act 1929 (SA) or the common law, in relation to evidence given by the complainant identifying the man who raped her as the driver of a cream Commodore who had driven past her on three occasions shortly before the offending occurred.
Held (per Stanley J, Kourakis CJ and Hinton J agreeing): Appeal dismissed.
1. The circumstances of the case did not require a “full” Domican warning. The complainant’s evidence identifying the driver of the cream Commodore as the man who raped her did not represent a significant part of the proof of the appellant’s guilt. Nor did the prosecution case depend wholly or substantially on the accuracy of that evidence. Standing alone, the complainant’s evidence did not prove the appellant’s guilt but was merely evidence of a circumstantial fact. As such, the directions were sufficient and any problems which the complainant’s evidence presented were capable of being evaluated by the jury on the basis of those directions (at [48]).
2. Section 34AB represents an attempt by the Legislature to codify the common law test for ascertaining when a Domican warning should be given. Accordingly, the direction is only required where positive identification evidence is given of the identity of a person alleged to have committed an offence, not where evidence is given that merely has a tendency to identify a person alleged to have committed an offence. It does not follow that s 34AB(3) only applies where identification evidence consists of evidence obtained from a witness identifying the accused from a line up or photo array. A direction pursuant to s 34AB(3) was not required (at [52] to [55]).
3. In any event, a reasonable jury, properly instructed, would inevitably have convicted the appellant even if the evidence of the complainant identifying the driver of the Commodore as her attacker was disregarded (at [63]).
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Smith [2017] SASCFC 153
Case
[2017] SASCFC 153
Decision Date
CaseChat Overview and Summary
This appeal concerned the appellant, R, and the respondent, the Crown. The dispute arose from the appellant's conviction for rape, with the central issue on appeal being whether the trial judge was obligated to provide a specific warning to the jury regarding identification evidence. The case was heard by Kourakis CJ, Stanley and Hinton JJ.
The legal issues before the court were twofold: firstly, whether the complainant's identification of the appellant as her attacker, based on her observations of him driving a vehicle on three occasions prior to the offence, constituted "evidence of the identity of a person" within the meaning of section 34AB(3) of the *Evidence Act 1929* (SA); and secondly, if it did, whether this provision mandated the trial judge to inform the jury of the need for caution when considering such evidence, both generally and in the specific circumstances of the case.
The court, in dismissing the appeal, reasoned that the complainant's identification evidence, while relating to the appellant's identity, did not fall within the scope of section 34AB(3) in a way that compelled a mandatory warning. The court found that the identification was not based on a formal identification parade or a similar procedure, and that the circumstances of the observation, while relevant, did not trigger the specific warning requirement under the Act. Furthermore, the court applied the proviso, concluding that even if a warning had been omitted, a reasonable jury, properly instructed, would inevitably have convicted the appellant, thus no substantial miscarriage of justice had occurred.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The issue on the appeal is whether the judge was required to issue a warning to the jury in relation to evidence given by the complainant identifying the man who raped her as the driver of a motor vehicle who had driven past her on three occasions shortly before the offending occurred.Factual background The prosecution case was that near midnight on 25 January 1994 the complainant was raped by the appellant in a public toilet behind shops on Military Road, Largs North. The prosecution case was that, at the time of the rapes, the complainant was 14 years old. On the night of the offending, she was walking from her home to the residence of her mother’s partner. She walked along Strathfield Terrace, Taperoo, and into Military Road. As she was walking, she observed a cream coloured Commodore sedan pass her three times. On the first occasion, the vehicle was on the other side of the road travelling quite slowly in the opposite direction. The interior light of the vehicle was on and she was able to observe the male driver. On the second occasion it came from the other direction. The interior light was still on. At the same time, there was another older man walking in the same direction on the footpath behind her. The car was travelling very slowly. As the vehicle passed, the driver appeared to look at the complainant and wave. By this time, the older man had passed the complainant and was slightly ahead of her. When the vehicle passed her on the third occasion, it again came from the opposite direction to which she was walking. This time, the interior light was not on and the driver did not appear to look at her or gesture towards her. The vehicle was not travelling as slowly as before. The complainant gave evidence that she did not see the vehicle stop or anyone get out of the vehicle at any point on Military Road. However, some time later she heard footsteps behind her and turned to look to see who was there. The complainant gave evidence that she saw a male who she recognised as the driver of the vehicle walking towards her. She said this person caught up with her near a block of shops, which included the Regent deli behind which was located a toilet, grabbed her and dragged her down an alleyway into a toilet cubicle where he assaulted her and raped her. He then left. The complainant made her way to a nearby public phone booth and telephoned her mother. Her mother arranged for somebody to pick her up. Once the complainant returned to her mother’s home, police were called and she was taken to the Queen Elizabeth Hospital and examined by a doctor. The complainant described the rapist as being about 35 to 40 years old, about five feet 10 inches tall with dark, messy, straggly hair which was not very long. He had a small moustache, not quite shaven, dark hair on his chest with a little bit of grey in it, and a mediterranean olive complexion. He had a clear Australian voice with no accent. She did not recall any scars on his face. At the appellant’s trial, it was an agreed fact that he was associated with a cream or white coloured Commodore, with a South Australian registration number SOV-484. Police had observed the appellant getting into this vehicle on 12 February 1994. On the following day, he was spoken to by police while sitting in the driver’s seat of this vehicle.
Evidence
Evidence Before The Court
Section 34AB provides:34AB—Identification evidence(1)In a criminal trial, evidence of the identity of a person alleged to have committed an offence is not inadmissible, and is not to be excluded, merely because it was obtained other than by means of an identity parade involving a physical line-up of persons.(2)In a criminal trial, evidence of the identity of a person alleged to have committed an offence obtained by means of an identity parade is to be excluded unless—(a)—(i)an audio visual record of the identity parade is made and kept in accordance with the regulations; and(ii)if the regulations prescribe procedures for the conduct of an identity parade—the identity parade is conducted in accordance with the prescribed procedures; or(b) the judge is satisfied that the interests of justice require the admission of the evidence despite the failure to comply with paragraph (a).(3)In a criminal trial where the identity of a person alleged to have committed an offence is in issue, the judge must, if evidence of the identity of the person is admitted, inform the jury—(a) of the need for caution before accepting identification evidence; and(b) of the reasons for the need for caution, both generally and in the circumstances of the case.(4)In giving any such information, the judge is not required to use any particular form of words but may not suggest that identification evidence obtained from an identity parade by any means other than by a physical line-up of persons is inherently or intrinsically less reliable than evidence obtained from an identity parade by such means.(5)To avoid doubt, this section does not—(a)make evidence admissible that would otherwise be inadmissible; or(b)affect the court's discretion to exclude evidence.(6)In this section—identity parade means a contemporaneous presentation (whether by a physical line-up or by means of images) of a number of persons to a witness for the purpose of identifying a person. The critical provision is s 34AB(3). This is the provision which imposes a mandatory requirement on a judge to inform the jury of specified matters where evidence of the identity of a person is admitted in a criminal trial where the identity of a person alleged to have committed an offence is in issue. At issue is whether s 34AB(3), in the circumstances of this case, compelled the judge to inform the jury of the matters set out in placita (a) and (b). The answer turns on whether the evidence of the complainant is “evidence of the identity of a person” within the meaning of s 34AB(3). That answer depends upon the proper construction of s 34AB(3). That involves a consideration of the text, context and purpose of the provision.[34] [34] Plaintiff M70/2011 v The Minister for Immigration and Citizenship & Anor [2011] HCA 32 at [50], (2011) 244 CLR 144 at 177; Certain Lloyds Underwriters v Cross [2012] HCA 56 at [23]-[24], (2012) 248 CLR 378 at 388-389; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50 at [184], (2016) 91 ALJR 177 at 211.
Decision
Reasons for decision
In these circumstances I consider that a reasonable jury, properly instructed, would inevitably have convicted the appellant even if the evidence of the complainant identifying the driver of the Commodore as her attacker is disregarded.Conclusion I would dismiss the appeal HINTON J: I agree with Stanley J for the reasons he gives that in the circumstances of this case neither the common law nor s 34AB(3) of the Evidence Act 1929 (SA) required the trial Judge to give the jury an identification warning. I also agree with Stanley J as to the application of the proviso. Given that the appellant did not give evidence at his third trial, this Court is in no different position to the jury to assess what weight to attribute to the evidence he gave in his first two trials as read to the jury. The defence DNA transfer hypothesis depended upon accepting the appellant’s evidence in the first trial as to the nature of his relationship with a woman by the name of Linda as amounting to a reasonable possibility. At the relevant time Linda was a prostitute. At the beginning of their relationship he would wear a condom when they engaged in sexual intercourse, but not long into the relationship he ceased to use condoms. Exactly when in point of time the relationship commenced and when the appellant ceased using a condom is not clear on the evidence. In his second trial, defence counsel, who was the same counsel as at the first trial, led no evidence from the appellant in chief as to whether he was in a sexual relationship with any particular woman at the time of the alleged rapes. In cross-examination the appellant referred to his girlfriend at the time as being Sonia, with whom he had been in an on-and-off relationship between 1991 and 1996. He said nothing about Sonia having intercourse with other men around the relevant time. Thus the defence DNA transfer hypothesis raised in the appellant’s third trial not only depended upon accepting the appellant’s evidence in his first trial as amounting to a reasonable possibility, but doing so despite the very different evidence he gave in his second trial. There is nothing in the evidence that allows this Court to accept the appellant’s evidence in his first trial as giving rise to a reasonable possibility over that in his second trial. In addition the factual basis upon which the DNA transfer hypothesis depended was not established. It was put by defence counsel to the forensic scientist called by the prosecution as follows:[41]Q.If I could take you through those assumptions once more Dr … . The first assumption is that A is a male who has unprotected vaginal intercourse with a female B. A ejaculates into B’s vagina. Within 12 hours of that event B has unprotected vaginal intercourse with C, another male, while A’s semen is still in B’s vagina. C does not ejaculate, or if he does he captures his ejaculate or emits it in such a way that it doesn’t get onto the surface of his penis. Then C, within 12 hours of that last event, has vaginal intercourse with another female D. C does not ejaculate into D’s vagina and, again, it’s unprotected vaginal intercourse, in other words, without the use of a condom. So I’ll ask you the question again. Would the transfer of A’s sperm to D’s vagina through this chain of interactions be a plausible scenario.A.It’s plausible. I don’t know how plausible, but it could happen.[41] Transcript, 19 June 2017, p 219.