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) and s 270A of the Criminal Law Consolidation Act 1935.
The Crown case was that in the early hours of the morning of 19 March 2003, Barry Davies, who lived with his wife and their two children at 15 Barritt Street, Elizabeth Downs, was disturbed while asleep in his bedroom by noises at the bedroom window.
The bedroom is at the front of the house. The window was open to a distance of almost 60 centimetres, where it was locked in position. A wire flyscreen was fitted externally.
On hearing the noises, Mr Davies woke up and jumped out of bed. As he got out of bed, he noticed a shadow at the window. He went to the window and pulled back the curtains. He then noticed a man standing outside the window, between one or two metres away. The man appeared to be cutting the screen outside the window.
There is a street light in front of the house. Mr Davies evidence was that he was able to see the intruder clearly for eight to ten seconds. I will call that the first sighting.
At first the intruder appeared not to see him and continued cutting the window screen, but after Mr Davies called out, he ran off down the driveway and then down Barritt Street.
Mr Davies, still in his underpants, ran off after him. He eventually caught up with the person he believed to be the intruder, in the street. [The second sighting.]
He asked the man what he was doing, whereupon the man responded by calling him a “sicko”. Embarrassed at still being in his underpants, Mr Davies then ran back home. After dressing, he gathered up his dog and mobile phone, and quickly went out into the street again in pursuit of the intruder.
His evidence was that he saw the man he believed to be the intruder about 200 metres away in a side street, and that as he followed, the man turned into a park known as Argana Park. [The third sighting.]
At this stage, Mr Davies rang the police on his mobile phone and gave a description of the man.
Police arrived in a patrol car very soon afterwards. They apprehended another young man who happened to be in the street nearby. But Mr Davies told the police officers that this was not the man.
As Mr Davies was walking back to his house, he decided to cut across Argana Park. He again saw the person he believed to be the intruder standing in the park .[The fourth sighting.]
Mr Davies then approached the man again. He was positive it was the same man. When he was about 30 metres away from the man, he called out, “Hey, you”. Mr Davies evidence was that the man then turned around and said, “Oh, fuck, not you again”.
Mr Davies then tried to restrain him. The man broke free and ran off, but became tangled in cricket nets. Mr Davies took hold of him but the man slipped out of his t-shirt and ran off. Soon afterwards, he was caught by the police who were still in the vicinity.
The man, who was identified as the accused, was interviewed. He denied that he had attempted to enter Mr Davies’ house.
His explanation for being in the vicinity at the time is that he had been spending time as a part-time carer of his invalid mother, and had gone into the park to sit on a bench in the shelter to have a spell and to smoke a cigarette.
At the trial, attention focused on the evidence of the identification of the intruder.
The appellant gave evidence and maintained that he had not entered the premises. He said that he had gone from his mother’s house to Argana Park, and that in doing so, he had not entered Barritt Street.
The appellant pursues one ground of appeal only, which is as follows:
“The trial miscarried, in that the learned Trial Judge failed to give an adequate warning, in relation to the dangers arising from the identification evidence of the witness Davies, and in particular, failed to point out to the jury, the reasons for the warning, the very short period of observation, the likelihood that the face of the offender was in shadow, the fact that the view of Davies was impeded by the curtain and flyscreen, the fact that Davies had just woken up, the present [sic] in a nearby street, of a person who in a general way, matched the description of the offender, and the possibility that the identification was not based on a view of the offender at the window, but on observations of the applicant, in the street, and was thus an unreliable reconstruction.”
I turn now to the evidence given by Mr Davies as to his purported identification of the appellant.
As to what I have described as to the first sighting, his evidence was that the area in front of the bedroom window was very well lit by the street light which was in front of his house. He said that the light lit up all of the front yard.
His evidence as to the state of the lighting was confirmed by one of the police officers, Constable Wallwork. The latter said that Mr Davies’ front yard was “... quite well lit. There is a street light directly out the front on the street, so it lights up the entire front yard”.
Inside the bedroom, the lights were off. As I have said, Mr Davies’ evidence was that he had the intruder under observation for between eight to ten seconds while he appeared to be cutting the screen. Although he was a little sleepy when he arose from his bed, he said that he was fully awake by the time he reached the window. He said that he had “ordinary 20/20 vision”.
During the course of his evidence in chief, Mr Davies gave the following description of the man he saw through the window:
“Q.Could you describe for the court the person that you saw manipulating the flyscreen wire at the front of your home.
A.Yes. He was in his 30s, he had a goatee beard.
Q.How tall.
............
A.Probably about my height, five, five six, five seven.
Q.What sort of hairstyle or colour did he have.
A.He had brown hair and it was parted to the side.
Q.How long would the hair have been.
A.It could have been collar length hair.
Q.Could you see this person’s face fairly clearly.
A.Yes, I could.
Q.Was there anything distinctive about his face.
A.No, just the goatee beard and the age, I thought, and that’s about it.”
He went on to say that the man was wearing dark clothing and that as he ran off down the driveway he noticed that he was wearing black track suits pants with a wide white stripe down both legs. He was wearing a dark t-shirt which was either black or dark blue.
As for the second sighting, Mr Davies’ evidence was that the same distinguishing features, including the facial features, the goatee beard, the age of the man and the clothing, were apparent when he spoke to him in the street.
The third sighting was at a distance, which, as I have said, he estimated to be about 200 metres. The street was lit with street lights, and he could see the white stripe on the track suit pants reflecting the light, but apparently not much more.
As for the fourth sighting, being the sighting in Argana Park, Mr Davies was positive that the description of the man he confronted matched what he had first seen when the intruder was outside the window and running off down the driveway.
As for the other man apprehended by the police, Mr Davies’ evidence was that this person was much younger, about 18 years of age, with a shaved head. Although he was wearing dark clothing, there were no white stripes on his pants.
Mr Davies was cross examined at length as to his identification of the intruder, but he consistently maintained that he was certain that the intruder was the accused.
In the course of his evidence, the appellant conceded that he was wearing black track suit pants with a stripe down the side which he described as a “silver” stripe about 2 centimetres wide. He described the stripe as shiny or reflective. The appellant said in evidence that the only other person whom he saw at the relevant time was Mr Davies, and that he did not see anyone else in the street.
Constable Wallwork said that he was the first police officer to arrive at the scene in response to Mr Davies’ call, and that when he eventually saw the appellant after he was apprehended, he matched the description which had been given by Mr Davies. Constable Wallwork’s evidence was:
“He [the appellant] matched the description. Initially what I saw was the track suit pants with the wide stripe extending down the side of the leg, the wide white stripe, about 30 years of age, which was what I was told was roughly the age of the male, and a goatee beard which also was given to me as the description .... He matched the description in every respect of what I was told, yes.”
The trial judge gave a lengthy direction to the jury as to how they should approach the question of identification. No criticism of her direction was voiced by either counsel at the trial.
During the course of her direction she told the jury that they should scrutinise carefully the evidence of Mr Davies as to his purported visual identification of the accused. She went on to say:
“I must point out that experience has shown that it is possible that a responsible witness whose honesty is not in question and whose powers of observation may have been quite adequate can be positive in an identification yet, through human fallibility, can be mistaken in his or her visual identification.
In such a case as the present, where the visual identification by the witness is critical, and where the witness did not previously know the accused, you must have no doubt in your minds about the accuracy and reliability of Mr Davies’ visual identification before you can convict the accused on that evidence.”
The trial judge went on to suggest to the jury that they might focus on a number of matters, including to what extent the accused was previously known to the witness, and what opportunity the witness had for an accurate observation, that is, “the view the witness has of the person; what the state of lighting was; how close they were; and the general scene”.
She directed the jury to take into account Mr Davies’ state of mind, including any question of “stress and composure”, and she emphasised that it was the sighting at the window which the jury should consider in allowing for those considerations.
She reminded the jury that at the time of the identification Mr Davies had been awoken out of sleep in the early hours of the morning. She continued:
“You have had the opportunity to observe the demeanour of Mr Davies as he gave evidence and you have heard a number of police witnesses questioned about his demeanour and his composure on the night in question. As I said, you have also heard a lot of evidence about the lighting and the nature of the curtains that were hanging in the bedroom. All of these things may or may not affect the view you take and affect the reliability of his observations, and you will, undoubtedly, take all that into account when considering whether you are prepared to rely on the identification evidence given by Mr Davies identifying the accused as the person who committed the crime in question.”
The trial judge repeated, in the context of summarising the defence case, that the risk of error was much greater when the person to be identified was a stranger.
She concluded the directions on the question of identification with the following observations:
“Now while I am required to alert you, as I have, to the dangers of acting on identification evidence, I must, however, say that if, after careful consideration and examination of the evidence of Mr Davies in relation to the identification and if, after paying due heed to the warning which I have given you, you are satisfied beyond reasonable doubt of the correctness of the identification of the accused by Mr Davies, of course, you are entitled to act on that evidence of identification, and I repeat what I said earlier: there is nothing in any of the directions which I have given you which is inconsistent with you using some plain old fashioned commonsense in this trial.”
The authorities make it clear that where there is disputed identification evidence, the trial judge is obliged to warn the jury of the particular dangers associated with such evidence.[1]
[1] See, for example, Domican v R (1992) 173 CLR 555, Festa v The Queen (2001) 208 CLR 593 and R v Story (unreported) CCA judgment No [2004] SASC 32, 13 February 2004.
As it was put by Mr Muscat in the course of his submissions on behalf of the respondent, a warning cast in general terms will not be sufficient. It is necessary for the trial judge to isolate and identify for the benefit of the jury those matters which impact upon the reliability of, or any weaknesses in, the identification evidence. Furthermore, the warning must be tailored to the circumstances of the particular case and carry with it the authority of the trial judge.
In Story,[2] I said:
“13.... as is made clear in ... Domican[3] and Festa,[4] there is no set form of words which should be used in every case. The content of the direction should be tailored to the circumstances of the case.
14.All that is required is that the direction should incorporate a warning of sufficient stringency to ensure, so far as is possible, that the jury appreciates the need for caution in evaluating the relevant evidence, and that any particular deficiencies or weaknesses in the identification evidence are identified and explained.
15.If the identification is weak, the terms of the warning should be correspondingly stronger.”
[2] (Supra) par 13 and par 14.
[3] (Supra) 173 CLR per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 561-562.
[4] 208 CLR at 645.
It was common ground that the prosecution case depended entirely upon Mr Davies’ visual identification of the appellant as the offender.
The trial judge gave a strong and clear warning of the dangers associated with Mr Davies’ evidence of identification. Her general admonition to scrutinise the identification evidence carefully was coupled with a more particular elaboration of the point, which descended into detail as to the particular factors which needed to be considered, such as the state of the lighting and the opportunity which Mr Davies had to see the intruder.
The only cause for concern which I have entertained as to the adequacy of her direction was with respect to the issue of “reconstruction”, as the appellant describes it in his notice of appeal, or, as it is sometimes called, the “displacement” effect.
In the circumstances of this case, there was a risk that Mr Davies unconsciously assumed that the person whom he saw in the street on what I have described as the second sighting, was the person whom he had seen through the bedroom window.
The situation is, of course, a little complicated in that the appellant denies that he was ever in Barritt Street. But if he was lying as to that, the possibility of displacement in the sense in which I have explained it, existed.
However, the risk of the displacement effect operating depends to some extent upon the adequacy of the opportunity for an accurate identification to be made in the first place. The weaker the initial identification and the stronger the subsequent identification, the greater the risk of displacement.
Here, Mr Davies maintained throughout that he had a good opportunity to see the appellant in the first place. The objective features, to some extent, tended to confirm this, more particularly the length of time he had the appellant under observation, the short distance between them at the time, what on all accounts appears to have been good lighting conditions in Mr Davies’ front yard and the further opportunity he had to see the intruder as he made off down the drive, before turning into the street.
Although it might have been better if the trial judge had specifically referred to the displacement effect, her summing up as to identification was, in all the circumstances, sufficient.
As I have already pointed out, there was no complaint from counsel as to her summing up, at the trial.
I would dismiss the appeal.
WHITE J: I agree in general with the reasons of Perry J and his proposed outcome for this appeal.
Like Perry J, I consider that it would have been preferable if the trial Judge had given a warning about the possibility of displacement in Mr Davies’ identification of the appellant. The possibility of displacement or “reconstruction”, as counsel at first instance had described it, was part of the defence case. It was put to Mr Davies in cross-examination that his identification of the appellant at the house (the first sighting) was based upon his observations of another person at the second or third sightings. Mr Davies denied the suggestion. He was confident of his identification because of the good view he had of the intruder at the first sighting, and because each of the subsequent sightings had been made within 20 minutes.

The possibility of displacement was also part of defence counsel’s final address to the jury.
In these circumstances it would have been preferable for a warning about the possibility of displacement in the identification to have been given by the trial judge.
However, bearing in mind the good opportunity which Mr Davies had to make the identification at the house at the time of the first sighting, and the absence of complaint by counsel at trial as to the adequacy of the trial Judge’s direction, I am satisfied that the directions in her summing-up with respect to identification were sufficient.
I would dismiss the appeal.