R v Story No. DCCRM-02-890

R v Justin Raymond Story
[2003] SADC 134
Judge Clayton
Criminal

The accused, Justin Raymond Story, was charged on information with assault with intent to rape, contrary to section 270B of the Criminal Law Consolidation Act 1935. He pleaded not guilty and made applications pursuant to rule 9 of the Supreme Court Criminal Rules for the exclusion of certain evidence. The applications were considered at hearings on the voir dire.
Rule 9 Notice Dated 19 June 2003
Paragraph 1 of this notice was conceded by the prosecution and need not be considered.
In paragraph 2 the applicant sought to exclude evidence of the purported identification of the accused to the police by Johanna Bottrall and Peter William Worsley on the morning of Saturday 15 December 2001.
In paragraph 3 the accused sought to exclude from the evidence the descriptions of the offender contained in the declaration statements of Alecia Emma Were, Johanna Carmen Bottrall and Peter William Worsley.
Finally, in paragraph 4 the accused sought to exclude from the evidence the description of the offender allegedly given to an unknown security officer by Ms Bottrall. At the conclusion of the hearing on the voir dire Mr Charman acknowledged that there was no evidence falling within that category and he conceded that paragraph 4 of the application had no merit (T429-18). Therefore, I need not deal with it.
The Evidence
The victim, Alecia Were, had been at Shenanigan’s, an Irish Pub, at the Marion Shopping Centre, with friends. She left the premises and was refused re-entry because the staff believed she was intoxicated. She waited in a courtyard adjacent to Shenanigan’s and other entertainment venues. She was upset that she was not allowed back in and she was not able to tell her friends what had happened. Whilst waiting in the courtyard a man approached her and spoke with her. She told him what had happened and asked to be left alone. The man said that he did not want to go away. Ms Were tried to ignore him and waited for her friends.
Ms Were said that she got a good look at the man who spoke with her. She noticed his face. He had glasses and a sort of mousey brown short hair. She said she did not like the look of him and that he looked a bit weird and creepy so she really did not wish to talk to him. She did not take note of his clothes.
When she realised that her friends were not coming out of the hotel she decided to walk home. She descended a set of stairs and headed east towards the traffic lights at the intersection of Diagonal and Sturt Roads.
The events which occurred are recorded on the security video system of the Marion Shopping Centre. Still photographs have been printed from the frames of the video tapes.
Cameras photographed Ms Were approaching the top of the stairs at 1:07:39, descending the stairs at 1:07:43 and then walking through the bus interchange area in an easterly direction towards the intersection of Sturt and Diagonal Roads at 1:08:05.
The still photographs also show a male person following a number of metres behind Ms Were. They show the male person approaching the top of the staircase at 1:07:43, descending the stairs at 1:07:53, standing at the foot of the stairs at 1:08 and standing alongside a lamp post in the bus interchange area at 1:08:27.
As Ms Were headed in the direction of Diagonal Road a person came up next to her. She recognised him as the same person who had spoken to her earlier in the courtyard. They had a conversation. She asked him to leave her alone. He refused. She asked again and he refused again. She started to worry as she was walking further away from the shopping centre. She yelled “Just leave me alone”, and started running back towards the bus interchange area.
After she turned and ran a person chased her from behind. She was grabbed around the waist and dragged to the ground. She was grabbed across the chest and the strap of her top was grabbed. Her pants were grabbed and they fell to her knees. She said she managed to get away and commenced running. She ran to the bus interchange area where there were other people.
Johanna Bottrall said that she and Peter Worsley had spent the evening at Charlton’s Pool Hall. Shortly prior to 1.15 am they left by descending the stairs and walking to the taxi bay which is adjacent to the bus interchange area. The still photographs show them walking towards a seat by the taxi bay at 1:14:31. They had to wait for a taxi. While they were waiting, Ms Bottrall saw the silhouettes of a man and a woman towards the end of the bus ramp. She thought they were mucking around. She heard screaming and then heard a woman say “Stop, stop, stop”. The noise got louder. The man put his arms around the woman’s waist and dragged her towards the area underneath a ramp which led up to the first floor of the car park. Ms Bottrall realised that the woman was serious and she got up with Mr Worsley and started walking towards the couple. As they walked towards the ramp the woman ran towards them and into Peter Worsley’s arms in hysterics.
A man then came out from the dark under the ramp and casually walked across the bus station and interchange area onto Sturt Road. The man looked at Ms Bottrall and casually went on. Ms Bottrall said she was about seven to ten metres away from him. She said the lighting was reasonably good because she could see his face.
Ms Bottrall abused the man and told him that she would call the police. He just looked at her and walked away. He did not respond to anything that she said.
Ms Bottrall said she saw his full face and that she was able to see his hair. She also saw his clothing but that was a secondary glance.
She continued to yell abuse at him as she watched him walk away down the road.
Her description of the person to the Court was that he had glasses, a shaved head, his hair seemed to be brown, he was of medium build, he was wearing a red t-shirt, cargo pants and boots. His glasses were round.
Mr Worsley said he was waiting on the seat by the taxi stand. He heard a woman screaming. Ms Bottrall and he got off the seat and walked east towards where the scream came from. He walked five or so metres down the footpath towards the couple and saw a woman being grabbed by a man. The woman was facing towards Mr Worsley and Ms Bottrall and the man was standing behind her with his hands around her waist. The woman was kicking and screaming quite violently, trying to break free, which she did, and stumbled towards where Mr Worsley and Ms Bottrall were standing. The man walked away south towards Sturt Road. Mr Worsley did not maintain continuous observation of the man because he was worried about the woman who was hysterical.
Mr Worsley said it was quite dark, the lighting was not very good but he was able to see shorts and very thick framed glasses and very short hair. He said the shorts were very obvious and the person was wearing what looked like a t-shirt although he could not be sure from the distance. Mr Worsley looked at his face and saw thick glasses.
Mr Worsley and Ms Bottrall comforted Ms Were.
The still photographs show the three of them walking west through the bus interchange area towards the entertainment venues at 1:23:34. Mr Worsley walked up the stairs to the courtyard area. He is shown in the courtyard area at 1:23:55. Shortly afterwards, Ms Bottrall and Ms Were climbed the stairs at 1:24.
Mr Worsley went ahead to report the matter. Ms Bottrall comforted Ms Were by a semi-circular planter box in the courtyard. Ms Bottrall gave a description of the attacker to a security guard who broadcast her description on the radio. A police officer took the details relating to Ms Bottrall and Mr Worsley. Ms Were was so distraught that she was unable to communicate with the police in any meaningful way.
A police officer requested Ms Bottrall and Mr Worsley to wait in Charlton’s Pool Hall, to give more details to the police. The couple headed towards Charlton’s Pool Hall. Ms Bottrall said that she then saw “The man that I had seen previously downstairs with the policeman”, “The man that I saw walk off from under the ramp”, “The man who walked off from attacking the girl”.
Ms Bottrall said she was with Peter Worsley, that she walked towards the pool hall and there was the man whose description she gave on the radio with a policeman being questioned. She said she pointed to him and said “That’s him”. She said she saw his face and knew it straight away and she yelled obscenities at him again. Mr Worsley shuffled her inside and they went into Charlton’s Pool Hall and waited. When she spoke to the police later she said that the accused was the person that she had seen downstairs.
The identification of the accused by Ms Bottrall is shown in still photographs taken at 1:35:28, 1:35:38, 1:35:40.
Mr Worsley remembered seeing the assailant standing outside the pool hall with the police. He said the man that he had recognised as attacking the girl was standing at the top of the stairs just outside of Charlton’s with a few police around him. He remembers Johanna Bottrall yelling at the man as they walked towards Charlton’s Pool Hall.
The accused is depicted in the courtyard where he was talking with a police officer in a number of still photographs commencing at 1:31:05. The police officer was Constable Holmes who had been summoned to the area by the Westfield Marion security staff. Constable Holmes had been advised that there had been an assault in the lower car park and that the suspect was inside Charlton’s Pool Hall. With Constables Wood and Frukacz he attended at the scene and spoke to the security staff outside of Charlton’s. On arrival the security officers told him who the witnesses were, who the victim was and where the suspect was.
Constable Holmes entered Charlton’s Pool Hall, approached the suspect (the accused) and requested to speak to him outside because of the loud music inside. They went outside to the courtyard at the top of the stairs and talked there. That is illustrated by the still photographs. The accused gave his name and address.
Constable Holmes described the accused as being slim to normal build, early 20s, short hair, wearing thick glasses, a red t-shirt and large baggy shorts which were long and extended down past the knees. Constable Holmes gave evidence of Ms Bottrall’s identification of the accused. There is no evidence to suggest that he had arranged for the identification to take place.
Constable Holmes also identified the accused as the person shown in the still photographs following Ms Were when she left the courtyard area to go downstairs. He said that the accused is the person shown in photographs taken 1:07:43, 1:07:45, 1:07:53 and 1:08:27. Later, still photographs at 1:22:24 and 1:22:25 show a person who looked like the accused returning to the bus interchange area from the taxi rank. Constable Holmes said the person looked like the accused because of the clothing, the size, stature and the hair.
The accused was interviewed by Detective Dawkins at his home on 3 March 2002. The accused handed Detective Dawkins a red t-shirt and a pair of green cargo shorts. The accused was then interviewed at the Sturt Police Station and spoke of the events on the night in question. He had been to Shenanigan’s. He was asked whether he talked with any women and said :
“Talked to one while I was in there. That one that went from across the car park ‘cause I went to go home the long way.”
He said he was wearing a red t-shirt and cargo shorts which were those produced to Detective Dawkins. He saw the girl walking across the car park towards Diagonal Road. He said he would walk her home and that was all he could remember. Her response was no. He was not sure what the woman did then. He was asked whether he grabbed the girl and said no.
The Application in paragraph 2 of the Rule 9 Notice - The Purported Identification of the Accused on the Morning of Saturday 15 December 2001
This part of the application is concerned with the identification of the accused by Ms Bottrall and Mr Worsley in the courtyard in front of Charlton’s Pool Hall. The grounds for the exclusion of this evidence are :
“(a)The identification took place while the Applicant was standing alone being questioned by police about his alleged involvement in the offence.
(b)The police moved the Applicant from Charlton’s pool hall for the purpose of interviewing him about the offence. The police regarded him as a suspect. The police were aware that eye witnesses to the offence were in the vicinity. The position of the Applicant, isolated and alone in the company of police officers, rendered the identification useless and unfair. It powerfully suggested to potential identification witnesses that the person being spoken to by police must have been the offender. The actions of the police officers contaminated the identification process. It also deprived the Applicant of an opportunity to participate in a properly constituted and procedurally fair formal identification parade.
(c)It is submitted therefore that the identification of Bottrall and Worsley were unsafe and fatally flawed and should be excluded in the exercise of the Court’s discretion to avoid a miscarriage of justice.
(d)The probative value of the identification evidence is outweighed by its prejudicial effect.”
The accused attacks the identification evidence because it was made in circumstances where the accused was in the presence of police officers.
On the topic of the identification of an accused person in custody, the High Court said in Davies and Cody v The King (1937) 57 CLR 170 at page 182 :
“…, if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question.
….. if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial.”
In Alexander v The Queen (1979) 145 CLR 395 the High Court said at 399 :
“In theory the manner in which an accused person was identified out of court goes to the weight rather than to the admissibility of the evidence.”
The Court also said in Alexander at page 400 that it was not possible to say that as a matter of legal principle the admissibility of evidence of a prior act of identification depended on the fact that an identification parade was held. Gibbs CJ said at page 401 that Davies and Cody v The King suggested that the proper approach is to consider whether the conviction can be sustained on the whole of the evidence. His Honour referred to the dissenting judgment of McDonald CJA in The Queen v Bagely (1926) 3 DLR 717, who regarded the question of as one of weight rather than one of admissibility. His Honour noted that a trial Judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. He said :
“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 an honest but mistaken evidence of identification. …”
The accused relied upon the decision of the Supreme Court in The Queen v Hallam and Karger (1985) 42 SASR 126. In that case, two accused were in the presence of police officers at a shopping centre. The victim of a robbery was asked whether the two persons in the presence of the police officers were his assailants. He identified them. There was no attempt at identification by an identification parade or by selection of photographs. The Court determined that the identification evidence should be excluded. King CJ said at page 129 :
“There were grounds for such exclusion in the present case which require careful consideration and evaluation. Quite apart from any question of unfairness arising out of the circumstances in which the appellants were in the presence of the police at the One Stop Shopping Centre, to which reference will be made later, the circumstances attending Roberts’ identification at the shopping centre were most unsatisfactory. The element of suggestion involved in the two young men being in the company of the police was great and there were no other civilians present to provide any element of selection. An identification made in such circumstances is virtually valueless : Davies and Cody v the King.”
The Chief Justice also said :
“It should be emphasised that the proper method of procuring evidence of identification is by the identification parade. Identification by selection of photographs is open to grave objections and should be resorted to only where unavoidable. That method may be unavoidable, during the course of an investigation, where there is no definite suspect or where the suspect will not consent to an identification parade. If it has to be resorted to, it must be recognised as the inferior form of identification which it is, for the reasons emphasised by the High Court in Alexander’s case. Identification by confronting the victim with the suspect in circumstances which tend to suggest to the victim that the suspect is under suspicion is a virtually valueless form of identification which should be resorted to in only the most exceptional situations.”
The Chief Justice continued at page 130 :
“Whatever the reason for the course of action taken, the result is that identification obtained in such circumstances had virtually no evidentiary value.”
In Hallam and Karger the trial Judge had ruled that the identification evidence was a matter for the jury, that is, it was a matter of weight rather than admissibility. The trial Judge had ruled that he had no discretion to exclude identification evidence on the grounds of unfairness. On the appeal the Chief Justice held that the learned trial Judge was mistaken in his belief that there was no discretion to exclude the identification evidence. He held that there were grounds for exclusion based upon unfairness. His Honour said at page 130 :
“There were, in my opinion, serious considerations of unfairness to the accused, arising out of the way in which the police conducted the investigation and procured the identification, and also of undue prejudice by comparison with the slight, indeed almost negligible, evidential value of the identification evidence calling for the attention of the learned Judge in exercising his discretion to exclude the evidence.”
It therefore becomes necessary to identify the precise evidence which is attacked by the applicant and to consider the way in which that evidence was obtained and whether the admission of that evidence would operate unfairly against the accused. Specifically, was the identification of the accused by Ms Bottrall and Mr Worsley tainted by the fact that at the time the accused was in the presence of police officers. If it was, was that a consequence of a failure of the police officers to take some precaution which was reasonably available to guard against miscarriages of justice.

In the present case, there are various criticisms of the overall way in which the police conducted the investigation, but the real question was whether any of those criticisms gave rise to any relevant unfairness to the accused.
The complaint that there had been a breach of police standing orders, by itself, takes the matter nowhere.
In Hallam and Karger, there was no voir dire hearing which enabled the circumstances of the identification to be investigated. When apprehended by the police officers the appellants were possible suspects, but no more. That was one reason why the Court determined that the identification in the circumstances described had virtually no evidentiary value. In the present case, evidence on the voir dire has established the circumstances in which the identification evidence under attack was obtained.
The primary question on the present application is not whether the accused had been identified, but whether the proposed evidence was so unfair or unreliable that it should be excluded. The grounds relied upon by the accused pick up the comments of the Supreme Court in Hallam and Karger referred to above (paragraph 41).
In his opening on the voir dire Mr Charman complained that identification was unfair because the accused had been taken out of the pool hall, held “in a ring fenced area by at least one police officer for a considerable period of time”, and the two witnesses Bottrall and Worsley were taken past.
That complaint was not made out by the evidence. The evidence established that it was fortuitous that Ms Bottrall and Mr Worsley happened to be in the courtyard at the same time when Constable Holmes was speaking with the accused.
The still photographs suggest that the attack on Ms Were took place at about 1:16. They show that the identification of the accused by Ms Bottrall took place at 1:35:28 seconds, that is, approximately 20 minutes after the attack.
Unlike Hallam and Karger, Ms Bottrall and Mr Worsley had not been taken to an area where the accused was being held by the police. It was a coincidence that they happened to be in the courtyard at that time. They had not been asked to identify the accused. The identification was voluntary and spontaneous upon their sighting the accused. They had not been made aware that the accused was in the courtyard. Ms Bottrall and Mr Worsley had not been given any reason to believe that the person speaking to Constable Holmes, or indeed any particular person, was a suspect. Furthermore, it was a most positive identification. Ms Bottrall was in no doubt about whom it was that she saw. Hallam and Karger can therefore be distinguished on its facts.
Constable Holmes gave evidence of his reason for removing the accused from Charlton’s Pool Hall. He wished to interview the accused in a less noisy area. Constable Holmes did not arrange for any identification to take place in the courtyard; it just occurred.
In my opinion, there was nothing unfair about the conduct of the police officers.
Mr Charman asked me to balance the probative effect of the evidence against its prejudicial effect. The evidence is highly probative. I cannot see how the events which occurred are prejudicial to the accused as a result of any unfairness.
Mr Charman was critical of the fact that his client was never offered an identification parade. Having regard to the way in which his client was identified by Ms Bottrall and Mr Worsley, a subsequent identification parade would have been farcical.
The cases do make it clear that an identification parade is the preferred method of identifying an accused. However, the accused does not, as Mr Charman submitted, “have a right” to an identification parade. See Alexander at page 100. More importantly, the process which was being undertaken at the time was not one of identification. Ms Bottrall and Mr Worsley just happened to be in the same location as the accused. Once Ms Bottrall and Mr Worsley had in fact identified the accused, any identification parade was rendered otiose.
Mr Charman observed that Ms Bottrall, Mr Worsley and Ms Were all walked past the accused when he was sitting on the stairs and did not recognise him. The fact that Ms Bottrall and Mr Worsley did not notice the accused when they passed him on the stairs (still 1:23:55) does not detract from the fact that they unreservedly identified him later.
A question arises as to what use can be made of the video and still photographs on the application to exclude evidence of the identification on the night. The video tapes and still photographs were admitted into evidence on the hearing of the voir dire, although, subsequently, there was an application to exclude them from the evidence at the trial. Can the evidence of Ms Bottrall and Mr Worsley be bolstered by other evidence?
The prosecution, submitted that I should consider the accused’s record of interview with Detective Dawkins when considering the veracity and reliability of the prosecution witnesses on the issue of identification. It was put that while the accused did not admit the offending he had placed himself in circumstances very similar to those described by the victim. His statement to Detective Dawkins placed the accused at the venue prior to the attack.
Mr Charman, for the accused, submitted that the application was not a case to answer on behalf of the accused. He submitted that the interview of the accused by Detective Dawkins is independent of whether the prosecution witnesses’ evidence was unsafe. He submitted that the record of interview was irrelevant to the issues on the voir dire.
There is some merit in that submission. The issue on the voir dire was whether certain evidence should be excluded, not whether the evidence, as a whole, established the identification of the accused.
The prosecution submissions raised the question of whether evidence which, when standing alone is considered unreliable so that it should be excluded, can be bolstered by other admissible evidence. Specifically, can the identification of the accused by Ms Bottrall and Mr Worsley be bolstered by the video tape, the still photographs and the accused’s statement to Detective Dawkins.
In some cases, the answer will depend upon the basis for the exclusion of the evidence. If it is sought to exclude evidence because it was obtained illegally, such evidence must be excluded and can not be bolstered by other evidence. But if the evidence is sought to be excluded because of alleged unreliability, the reliability of the evidence in question may need to be considered in context. It may become a question of weight. While the earlier cases suggest that it was just a question of the weight that should be given to the evidence under attack, Hallam and Karger shows that it can be a matter of admissibility.
Mr Charman referred me to the reasons of Gibbs CJ in Alexander v The Queen where he said at page 403 :
“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 account that it is the duty of police officers investigating crimes 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. …”
Mr Charman argued that there was an element of recklessness or negligence on the part of the police officers in allowing the accused to be in the courtyard at the same time as two potential witnesses. He said he stopped short of submitting “it was a deliberate set-up” but he did submit that the police officers should have done considerably more. He submitted that there was an obligation on the police officers to perform their duties better (T377-26). The alleged recklessness or negligence goes to the admissibility of the identification evidence rather than its weight.
In my opinion, there was nothing reckless or negligent about the way in which Constable Holmes and the other officers took the accused into the courtyard for the purpose of interviewing him. The accused was not taken into the courtyard for the purpose of identification. The events which occurred had not been planned.
Mr Charman submitted that I should exercise my discretion to exclude the evidence on the basis that its probative value was outweighed by the prejudicial value to the accused such that the accused would not get a fair trial. He submitted that is not dependent upon the conduct of the police officers but is dependent upon the circumstances which prevail at the time.
In order to deal with that submission it is, in my opinion in this case, unnecessary to consider the evidence as a whole but only necessary to consider the circumstances in which the identification was made. Ms Bottrall said she had a full view of the accused’s face at the scene of the attack. She said that when she saw the accused in the courtyard she recognised him straight away. That identification was made only twenty minutes after the attack had taken place. In my opinion, there is no reason to exclude that evidence because of any unfairness or unreliability.
Mr Charman submitted that the evidence of Ms Bottrall was utterly unreliable and that it is completely tainted by the fact that there is no independent objective evidence of the identification prior to Ms Bottrall seeing the accused in the custody of the police. I do not accept that submission. Importantly, there is no evidence to suggest that her identification was contributed to by the fact that the accused was in the custody of the police. Ms Bottrall identified the accused on the basis that he was the person whom she had seen less than half an hour earlier. The identification of the accused was a voluntary act on her part. It was not contrived. The same comments also apply with respect to the identification by Mr Worsley.
Mr Charman has criticised the description that Ms Bottrall gave the police officers of the attacker when she was interviewed on 8 March 2002. If there was any inconsistency that was, in my opinion, inconsequential. What is significant is that Ms Bottrall positively identified the accused less than half an hour after the offence had occurred. It is that identification which forms the basis of the prosecution case. Any inconsistency in a description given three months later in March can not detract from the spontaneous identification made 20 minutes after the attack.
The identification was not obtained illegally. In my opinion, there was nothing unfair about the circumstances in which the identification was made. As I have stated, the identification by Ms Bottrall and Mr Worsley was made shortly after the alleged offence was committed, it was spontaneous and unsolicited and was not attended by any doubt.
There is no basis to exclude the evidence for the reasons that the evidence was excluded in Hallam and Karger, namely, that it was procured in circumstances that were unfair.
I therefore do not need to resort to the other evidence such as the interview with Detective Dawkins or the photographic evidence. It is not necessary for me to decide whether the prosecution can bolster the evidence under attack. I do not think the evidence was tainted simply because the accused was seen in the company of a police officer or because of the conduct of the police officers.
In any event, I am not convinced that the accused’s statement to Detective Dawkins or the photographic evidence provides significant corroboration of the identification of the accused as the attacker. There is no doubt that the accused was at Marion on the night. The issue is whether he was the person who attacked Ms Were. The statement and the photographic evidence do not deal with that particular issue.
I reject the application in paragraph 2, because in my opinion, the grounds for exclusion of the evidence are not made out.
The Application in paragraph 3 of the Rule 9 Notice - Application to Exclude from the Evidence the Descriptions Contained in the Declaration Statements of the Prosecution Witnesses Were, Bottrall and Worsley
The grounds for this application are :
“(a)The descriptions of the offender offered by the prosecution witnesses Bottrall and Worsley approximate the appearance of the Applicant when he was being spoken to by police in the presence of each of the witnesses. The police had the opportunity and should have recorded the witnesses descriptions before speaking to the Applicant. They failed to do so for reasons which are not explained. Indeed the witnesses descriptions of the offender were not recorded by police until at least two and a half months after the alleged offence and subsequent to having seen the Applicant alone in the company of the police. It is therefore impossible to assess whether the recorded descriptions are the witnesses actual memory of the offender or their memory of seeing the Applicant in the company of police.
(b)In the case of the description given by the alleged victim Alecia Were, the witness has provided police with three inconsistent accounts of the appearance of her attacker. According to the police incident report the witness was “unable to give an description of the offender or explain what he was wearing”. In a statement provided to police on 23^rd December 2001 the witness described her attacker as “176 cm in height, thin build, short brown hair, approximately 20 years of age. I am unable to recall what the male person was wearing”. In her declaration statement dated 8^th March 2002 the witness described her assailant as “Caucasian, in his early 20s, about my height which is about 170 cm or may be a bit taller, slim build, he wore glasses and had mousey brown hair. I don’t remember what he was wearing”. The Applicant was wearing glasses when first spoken to by police on the morning of the alleged offence. Security footage obtained from the Westfield Marion Shopping Centre was seized by police on the morning of the offence. It depicts a various times the alleged victim, the Applicant and the police speaking to the Applicant. It is understood that the alleged victim has been shown the video tape by police. It is submitted that the inconsistent accounts of the victim’s description of her assailant may have been influenced by her viewing of the video surveillance tape.
(c)In the circumstances it is submitted that the Court should exclude the evidence of description in the exercise of its discretion.
(d) The probative value of the evidence is outweighed by its prejudicial effect.”
An application to exclude evidence of the description of the accused may have had more substance if the witnesses had not seen the accused between the time of the offence and the time when they gave their description. In my opinion, the fact that the witnesses saw the attacker again shortly after the offence so that their recollection was reinforced, is more likely to improve the reliability of their evidence, rather than make the evidence unreliable.
There is no evidence that Ms Were saw the accused when he was being spoken to by the police. There is, therefore, no basis for excluding her evidence on the ground set out in paragraph 3.1(a).
So far as paragraph 3.1(b) is concerned, any inconsistency in the accounts given to the police by the victim go to weight rather than admissibility. In my opinion, the matters set out in sub-paragraph (b) do not provide any basis for excluding the evidence.
Significantly, Ms Were did not actually identify the accused as her attacker. Her evidence does not more than make a comparison between the person who spoke to her in the courtyard and the person who later attacked her as she was walking away from the Marion Shopping Centre.
So far as Mr Worsley is concerned, the evidence does not establish that his description of the accused was tainted by the fact that he saw the accused when he was being spoken to by the police. In my opinion, there is no reason to exclude Mr Worsley’s description of the attacker as being unfair.
Mr Charman submitted that I must look at all the circumstances of the identification. He said that the circumstances of the first identification, at the scene, were such that there must be grave concerns about the probative value of that identification because of the objective circumstances given the darkness and the distance. They are matters which go to weight rather than admissibility.
Mr Charman criticises the evidence of Ms Were because she was very drunk. That was the evidence. However, as I have mentioned, she did not identify the accused. Her evidence goes no further than saying that the person who attacked her was the same person who had spoken to her in the courtyard. Both at the time of the initial conversation in the courtyard and at the time of the conversation preceding the attack, Ms Were was very close to the other person and in a position to make observations about that person. The fact that she was intoxicated goes to the weight of her evidence rather than admissibility.
So far as Ms Bottrall and Mr Worsley are concerned, they made a positive identification of the accused about 20 minutes after the offence had been committed.
To suggest that evidence of the subsequent descriptions by Ms Bottrall and Mr Worsley in March should be excluded because their recollections of the accused may be coloured by the fact that they saw the accused in the presence of police officers is a secondary matter. The primary identification occurred on the night. The descriptions in March are, in a way, a memory test conducted about 2 ½ months later. The fact that the police failed to record the witnesses descriptions of the person who was actually standing in front of them on the night is not, in my opinion, a reason to exclude their later descriptions of that person.
The Further Application by the Accused for the Exclusion of Photographic Evidence Pursuant to Rule 9
On 7 July 2003 Mr Charman orally applied for the video tape and the stills which flow from the video tape to be excluded from evidence. He said that application was on the same balance of probative against prejudicial evidence. Mr Charman said that because of the gaps in the tape and the quality of the video and because of the doubt about the use that the jury would be able to put the tape to, it is of very little probative value.
The oral application was formalised by a written rule 9 notice filed on the 8 July.
The notice sought the exclusion from the evidence of the video tape and the still photographs that had been taken from the video tape. The grounds which were relied upon were :
“(a)That the tapes and still photographs are of such poor quality that they are incapable of assisting this Honourable Court [see evidence of witnesses generally on Voir Dire]
(b)That the tapes, for technical reasons, do not provide a continuous vision of the occurrences of the 15^th of December 2001 in that
i)The cameras [Charlton’s and Bus Interchange] that provide the footage on the consolidated video are only two of sixteen cameras that randomly download images onto a master tape
ii)That the 16 cameras download images on a random basis and therefore there are gaps in the footage when the cameras other than the Charlton’s and Bus Interchange cameras are laying images down …..
iii)That the Charlton’s and Bus Interchange cameras do not cover the entirety of the relevant courtyard area
(c)That the footage selected by Bails, at the direction of Dawkins, was limited to the footage that followed the witnesses Bottrall, Worsely, Were and the Applicant
…..
(d)That the videotape and stills represent a person capable of being presumed to be the Applicant in such a manner that a jury could draw incorrect adverse factual conclusions from the videotapes and stills
(e)That the probative value of the videotape and the stills is outweighed by the prejudicial effect”

So far as ground (a) is concerned, I do not accept that the tapes and still photographs are of such poor quality that they are incapable of assisting the Court.
So far as the ground (b) is concerned, the fact that the tapes do not provide continuous vision is inconsequential. Both the tapes and the still photographs provide images which supplement the oral evidence of the witnesses in a most graphic way.
So far as ground (c) is concerned, counsel for the accused had the entire footage made available to him. If the selection of footage by Mr Bails at the direction of Mr Dawkins was incomplete, that matter could have been easily cured. However, the footage selected by Mr Bails does provide images which are relevant and speak for themselves.
So far as ground (d) is concerned, the fact that adverse factual conclusions from the video tapes and stills might be drawn is not a reason for excluding them from the evidence. I am not satisfied that any factual conclusions that may be drawn are incorrect or unfair.
So far as ground (e) is concerned, I do not accept that the probative value of the video tape and stills is outweighed by the prejudicial effect. The tape and stills are not prejudicial to the accused because of any unfairness.
Mr Charman submitted that the overall tape does not reflect what happened on the night in question accurately. He said it is difficult to see what use the jury could make of it (p 433). I reject that submission. Because of the gaps in the tape it is not a continuous record of what happened. However, there is nothing to suggest that those images which were recorded are not accurate.
So far as the use of the video tape and stills generally is concerned, I have been referred to what the High Court of Australia said in Smith v The Queen [2001] HCA 50. The majority, Gleeson CJ, Gaudron, Gummow and Haine JJ, said it was a question for the jury whether a person standing trial was the person shown in photographs. The Court observed that the police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors, or for that matter some member of the public who had been sitting in the Court observing the proceedings (reasons, paragraph 9).
The Court observed that if it was suggested that the appearance of an accused at trial differed from the accused’s appearance at the time of the offence, evidence from someone who knew how the accused looked at the time of the offence that the picture depicted the accused as he appeared at that time would not be irrelevant. Similarly, if it was suggested that there was some distinctive feature revealed by the photographs (as, for example, a manner of walking) which would not be apparent to the jury in court, evidence of both that fact and the witness’ conclusion of identity would not be irrelevant (paragraph 15).
In this case, the accused had allowed his hair to grow and presented a different image to the Court from that which was shown in the video tapes and was described by the witnesses.
More relevant to the present case is the decision of Gray J in The Police v Dorizzi and Others [2002] SASC 82. That was a Crown appeal against a Magistrate’s decision to dismiss an information for want of prosecution. The Crown case relied upon the admissibility of video footage recorded by the very security system which provided the video tapes under attack in this case. The Magistrate excluded the evidence at a hearing on the voir dire. Gray J reviewed the authorities dealing with video tape evidence. He held that the weight that should be afforded to video tape evidence can only be assessed after viewing the particular tape. His Honour said that the degree of clarity and quality of the images are factors which go towards weight (paragraph 40). He said that even if there are only a few frames which clearly show an assailant, that may be sufficient for the purpose of identification (ibid). His Honour concluded :
“45. The tapes were undoubtedly relevant, probative and admissible. No prejudice has been identified. Matters of completeness and quality go to weight. There is no unfairness that would lead to the exclusion as a matter of discretion.”
I apply, with respect, His Honour’s comments to the video tapes and stills in the present case.
Mr Dorizzi subsequently made an application to Gray J for leave to appeal from his decision allowing the appeal from the decision of the Magistrate. The Full Court (Doyle CJ, Perry and Lander JJ) granted leave to appeal which was restricted to a ground which did not impinge upon the reasons of Gray J with respect to the video tape and the film.
Decision
For the reasons set out above, I dismiss the applications contained in paragraphs 2, 3 and 4 of the accused’s rule 9 notice dated 19 June 2003.
I also dismiss the application made by the accused’s rule 9 notice dated 8 July 2003.

[2003] SADC 134

5 September 2003