R v WENZLAFF - [2004] SASC 233

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WENZLAFF
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)
6 August 2004
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - TESTIMONY AS TO BELIEF IN IDENTITY
The appellant was convicted following a trial in the District Court on a charge of attempted aggravated serious criminal trespass in a place of residence - in the early hours of the morning, the occupant of a suburban house was roused from his sleep by a noise at the window of his bedroom - he went to the window and saw the face of a man trying to cut the wire screen - the man fled and the householder gave chase - the householder maintained in evidence that he had several further sightings of the intruder in the street and finally in a nearby park where he was arrested by the police - the appellant denied that he was the intruder and challenged the evidence of his identification, which depended solely on the householder - held on appeal that the trial judge gave adequate directions to the jury as to the dangers associated with the identification evidence, although it might have been better if she had referred to the possibility of the "displacement" effect and given a stronger warning generally - appeal dismissed.
Domican v R (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; R v Story [2004] SASC 32, 13 February 2004, CCA, considered.

R v WENZLAFF
[2004] SASC 233
Court of Criminal Appeal: Doyle CJ, Perry and White JJ

DOYLE CJ: I have had the advantage of reading the reasons prepared by Perry J.
I am in general agreement with his reasons for dismissing the appeal.
In my opinion it would have been preferable for the Judge to tell the jury that mistakes have been made in the past, and that miscarriages of justice have occurred, as a result of honest witnesses making a mistaken identification. That is a somewhat stronger warning than the Judge gave. I consider also that it would have been better if the Judge had referred to what Perry J refers to as “the displacement effect”, although it is understandable that she failed to do so, neither counsel having raised it with her.
Nevertheless, I consider that taken as a whole the directions to the jury adequately brought home to the jury the need for particular care in considering the identification evidence, and adequately brought to the jury’s attention the particular matters that called for their consideration.
For those reasons I agree that the appeal should be dismissed.
PERRY J The appellant appeals by leave against his conviction in the District Court following a trial before a judge and jury on a charge of attempted aggravated serious criminal trespass in a place of residence, contrary to s 170(2)…

Grounds of appeal

[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.

Continue reading R v WENZLAFF

Details

AGLC: R v WENZLAFF [2004] SASC 233
Case: [2004] SASC 233
Decision Date: 6 August 2004

CaseChat Overview and Summary

In the matter of R v Wenzlaff, the appellant was convicted in the District Court on a charge of attempted aggravated serious criminal trespass in a place of residence. The facts of the case involved the occupant of a suburban house being roused from his sleep by a noise at his bedroom window. Upon investigation, the householder saw a man attempting to cut the wire screen and subsequently gave chase. The householder claimed to have had several further sightings of the intruder, culminating in his arrest by the police in a nearby park. The appellant contested his identification as the intruder and challenged the reliability of the householder's testimony, which was the sole basis for the identification evidence.

The legal issues at hand revolved around the admissibility and reliability of the householder's identification testimony, and whether the trial judge adequately directed the jury on the potential pitfalls of such evidence. The court had to determine whether the householder's identification was sufficiently reliable to warrant conviction, and if the trial judge appropriately cautioned the jury about the inherent risks associated with identification evidence.

The court concluded that the trial judge had given adequate directions to the jury regarding the dangers associated with the identification evidence, although it was noted that a reference to the "displacement" effect could have been beneficial, and a more robust warning might have been appropriate. Despite these observations, the court held that the trial judge's directions were sufficient for the jury to properly evaluate the householder's identification testimony. Consequently, the appeal was dismissed, and the conviction was upheld.

The final orders of the court were to dismiss the appeal, thereby affirming the conviction of the appellant for the charge of attempted aggravated serious criminal trespass in a place of residence.

Orders