Reihana-Browne v Police - [2021] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
REIHANA-BROWNE v POLICE
[2021] SASC 143
Judgment of the Honourable Justice Stein
17 December 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - EFFECT OF FAILURE TO WARN
The appellant was convicted of aggravated assault contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) following a trial in the Magistrates Court. The prosecution case was that the complainant was assaulted by the appellant in company with two other men. The offending was witnessed by the complainant’s friend, M.
A significant issue at trial was whether the identification evidence was sufficient to enable the prosecution to prove its case.
The Magistrate accepted the evidence of identification and convicted the appellant.
The appellant appeals his conviction on three grounds. The first ground is the Magistrate failed to give himself an appropriate direction in accordance with the principles in Domican v The Queen (1992) 173 CLR 555. The second ground related to an asserted use of a prior out of court statement of the complainant as corroboration. The third ground asserted error in the treatment of the appellant declining to give evidence.
Held, allowing the appeal on the first ground, quashing the conviction and ordering a new trial:
1. The Magistrate’s conclusion of guilt was based in part on witness M’s evidence.
2. In circumstances in which the Magistrate accepted the complainant’s evidence that he showed M a Facebook page and photograph of the appellant at the police station after the assault, this had the capacity to taint the subsequent photographic identification procedure and evidence of M identifying the appellant as the person delivering the second blow.
3. The Magistrate erred in failing to give himself a warning and review the identification evidence in the light of Domican v The Queen (1992) 173 CLR 555 and Strauss v Police (2013) 115 SASR 90.

Criminal Law Consolidation Act 1935 (SA) s 20(4); Magistrates Court Act 1991 (SA) s 42, referred to.
Domican v The Queen (1992) 173 CLR 555; Martin v Dept of Transport, Energy and Infrastructure [2010] SASC 141; Strauss v Police (2013) 115 SASR 90, applied.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531, considered.

REIHANA-BROWNE v POLICE
[2021] SASC 143
Overview

The appellant was alleged to have assaulted and thereby caused harm to the complainant on 4 November 2018 in the bathroom of the HQ nightclub in Adelaide, in the company of others.
A significant issue at trial was whether the evidence of identification was sufficient to enable the prosecution to prove its case. The Magistrate accepted the evidence of identification and convicted the appellant of aggravated assault contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The appellant appeals the conviction.
Background
The prosecution called three witnesses at trial. The complainant gave evidence. A witness and friend of the complainant, present in the bathroom at the time of the assault, gave evidence (I refer to this witness as “M”), as did the police officer to whom the initial report of the assault was made.
The following chronology is distilled from the transcript of the evidence at the trial.
Complainant report
On the evening of the assault, the complainant made a report at the Adelaide Police Station (“the Complainant’s First Statement”).[1] The Complainant’s First Statement included that “I got hit lots of times and had my arms up trying to protect my face. I don’t really remember who hit me or exactly what happened but I was on the ground”.[2]
[1] Transcript of Proceedings, Police v Reihana-Browne (Adelaide Magistrates Court, 19/6687, 9 June 2021), T5.4-5.
[2] Ibid T10.3-6.
M’s first statement
Witness M also provided a report on the evening of the assault (“M’s First Statement”).[3] M’s First Statement recorded that one of the men “said something like “if you stay you’re involved” and pretty quickly after that the guy lined up a punch with his right hand and punched [the complainant] in the face”.[4] M’s First Statement also stated “I jumped in and tried to protect [the complainant] and that guy and some others kept punching us both [...] I don’t know which of the guys were actually punching us or who hit me.”[5]
[3]     Ibid T23.17.
[4]    Ibid T26.27-29.
[5]     Ibid T26.30-34.
Complainant’s second statement
The complainant gave an addendum statement to the Police on 23 November 2018 (about three weeks after the incident) (“Complainant’s Second Statement”).[6] In the Complainant’s Second Statement, the complainant identified the appellant as the person who punched him.[7]
Trial
[6] Ibid T6.1-24.
[7] Ibid T11.38-T12.1-2.
Complainant evidence
The complainant gave evidence that, shortly after arriving at the HQ nightclub on the evening of 4 November 2018, he and his friend M attended the toilets. The complainant used a urinal and M used a cubicle. While the complainant waited for M to exit the cubicle, three men entered the bathroom. One of the men stood in front of the complainant. Another situated himself by the door and the third man stood to the side and to the back of the complainant. The complainant at trial referred to the man who stood in front of him as “Drew” (Drew being the appellant) and stated he knew Drew as he “worked with me for a couple of years for a company […]”.[8] The complainant gave evidence that the appellant said the complainant owed him money and the complainant replied that he did not. The complainant said that while he was facing the appellant, he was struck to the left side of his face by someone he did not see and then the appellant “rushed me and hit me and then that’s when I fell to the floor”.[9] The complainant said he was then repeatedly punched by the appellant and the other two men about 20 times for approximately 30 seconds. During the assault, the complainant rolled over to protect his face. I will refer to these events as the “Incident”.
[8] Ibid T4.4-6.
[9] Ibid T3.36-37.
The complainant received lacerations to his face, bruising to the back of his head and a cut lip. He gave evidence that he attended Wakefield Hospital after making the Complainant’s First Statement and received stitches to his lip and underwent scans of his head.[10]
[10] Ibid T5.27-28.
The complainant gave evidence that, when he was at the police station making the Complainant’s First Statement, he conducted a Facebook enquiry of the appellant and showed this to police and to M at that time.[11]
[11] Ibid T13.33-34; T16.12-14; T16.26-34.
The complainant gave evidence that the Complainant’s Second Statement was made after the complainant was told by his brothers that the best thing to do would be to “sit back and clearly write down exactly what had happened, to provide as much information to the police […]”.[12]
[12] Ibid T6.5-8.
M’s evidence
At trial, M gave evidence that the complainant was first struck to the head (by an individual who was not the appellant) and “then I saw [the appellant] strike him to the head.”[13] M continued, “as I stepped in I could see [the appellant] then strike [the complainant] and then I was struck, I think from behind, and was covering up myself. And then after that I felt being hit a few times. I ran to get help and then came back and saw [the complainant] was bleeding […]”.[14]
[13] Ibid T23.1-2.
[14] Ibid T23.10-14.
M said he did not know anybody there and “the only way was when we looked through Facebook, of the photos and clearly recognise [sic] them”.[15]
[15] Ibid T23.37-38 – T24.1.
M said he and the complainant looked through Facebook either before getting to the police station or maybe just after as they were in the waiting room at the hospital.
M gave evidence that he attended a photographic ID procedure (about four and a half months after the Incident) in which he selected a photo. He said the person he identified was the second person who struck the appellant. He said he could recognise the appellant from memory “for sure”.[16]
[16] Ibid T25.9.
Police officer’s evidence
The police officer who took both the Complainant’s First Statement and M’s First Statement gave evidence that he took “an initial statement” from the complainant and M.[17] He gave evidence that the complainant made a Facebook enquiry of the appellant on the night of the Incident and that the complainant showed this Facebook enquiry to him. That was to ascertain the spelling of the appellant’s surname.[18]
Cross-examination
[17] Transcript of Proceedings, Police v Reihana-Browne (Adelaide Magistrates Court, 19/6687, 21 June 2021), T35.28-30.
[18] Ibid T36.22-30.
Complainant
In cross-examination of the complainant at trial, counsel for the appellant asked the complainant the following matters in relation to the Complainant’s First Statement: [19]
[19] Transcript of Proceedings, Police v Reihana-Browne (Adelaide Magistrates Court, 19/6687, 9 June 2021 T10.1-35.
QAt para.6 of that statement it says ‘There was a guy directly next to Drew who took a swing at me and punched me in the face. I got hit lots of times and had my arms up trying to protect my face. I don’t really remember who hit me or exactly what happened but I was on the ground.’ Do you remember writing that.
AI remember the statement, yes.
QYou would have read it before you signed it.
AYes.
QIt distinctly says ‘I don’t really remember who hit me and exactly what happened, but I was on the ground.’
AI don’t know why that was recorded like that.
QYou signed the statement.
AAs I said, the main concern for me was to provide a statement for what had happened but then the main concern was getting to the hospital and I provided photos and a name and everything of the person who had hit me so I don’t know why it wasn’t recorded down as that was the person that hit me.
QThis is your signature at the bottom of this statement, isn’t it.
AYes.
QWhy would you sign something that you don’t agree to the contents of.
AMy main thing was to provide the statement so it could be recorded of what had happened but I wanted to get to the hospital as quick as I can in case there was any permanent damage that had been done.
QI understand that, but it says at para.6 ‘I don’t really remember who hit me and exactly what happened.’
AI don’t know why that wasn’t – that is written.
QThen why did you sign it.
AYeah, I understand that.
QWhy did you sign it if it was not true.
AA mistake.
Counsel then referred to the Complainant’s Second Statement, particularly the following statement: “I remember Drew coming towards me and punching me near my right eye.”[20] Counsel put to the complainant that the Complainant’s Second Statement was substantially different to the Complainant’s First Statement:[21]
QSubstantially different than what you said in your first statement, wouldn’t you agree. I mean your first statement says ‘I don’t really remember who hit me and exactly what happened but I was on the ground.’
AThat was just a brief statement.
QYou agree there is a substantial difference in between the versions of events you first gave at the time of the incident and a month after the incident.
AYes, on the paper, yes.
[20] Ibid T11.38-T12.2.
[21] Ibid T12.8-16.
Counsel for the appellant put to the complainant that the Complainant’s First Statement was the truth and the Complainant’s Second Statement was “entirely full of lies”. [22] The complainant denied this allegation.
[22] Ibid T18.11-16.
The complainant said he signed the statement because his main concern was to get to the hospital. The complainant gave evidence that the police officer said, because it was a traumatic event, “I suggest to you you sit back and you write down exactly what you remember and then if you need to provide that again, then you can do that again […]”.[23]
[23] Ibid T14.13-17.
Counsel for the appellant cross-examined the complainant on an asserted failure to give the police a description of the appellant after the Incident. The complainant responded that he did give a description of the appellant and provided a photo of him to police after the Incident. He said he did not know why that was not recorded in the Complainant’s First Statement.[24] Counsel for the appellant put to the complainant that he did his “own little investigation, as it were, going through Facebook and the like”. [25] The complainant said he knew the appellant and did not need to go through Facebook, but he did go through Facebook to provide the photo to the police officer. He accepted he was taking it on his own initiative to go through social media to find the persons he thought were responsible and to provide the information to the police. The complainant accepted that he showed M a photo of the appellant on Facebook at the police station.[26]
[24] Ibid T13.35-38; T16.14-16.
[25] Ibid T14.22-23.
[26] Ibid T16.26-28.
In re-examination, the complainant was asked whether or not he carefully read the Complainant’s First Statement. The complainant said he did read it but not as carefully as he probably should have. He said he was in pain and in shock at the time.[27]
[27] Ibid T20.11-16.
Witness M
In cross-examination, M was asked about M’s First Statement. M agreed he would have read it and made sure it was true before he signed it. Counsel for the appellant then cross-examined on M’s First Statement as follows: [28]
QNow I’m going to read to you from your statement para 5.
AYep.
QSorry para. 4 ‘I came next to Dimitri and one of the guys said something like “if you stay you’re involved” and pretty quickly after that the guy lined up a punch with his right hand and punched Dimitri in the face’. At para.5 ‘I jumped in and tried to protect Dimitri and that guy and some others kept punching us both I had a bit of a bruise and swelling in my right eye and my elbow’s a bit swollen. I don’t know which of the guys were actually punching us or who hit me’. Do you remember saying.
AYep.
QBit different to what you said today wouldn’t you agree with that.
ANo.
[28] Ibid T26.23-T27.1.
Counsel for the appellant cross-examined on asserted differences between M’s evidence in chief and M’s First Statement in relation to whether the individuals involved were all Caucasian. M did not agree there was any difference.
Counsel for the appellant referred to two subsequent statements given by M to the police (“M’s Subsequent Statements”). He put to M that in not one of M’s Subsequent Statements did M say that he saw the appellant punch the complainant in the face. M said he identified a photo, which was a photo of the appellant, and it was the appellant who assaulted the complainant.[29]
[29] Ibid T30.7-9.
Counsel for the appellant put to M that when he identified the photograph “what’s to say you just didn’t identify the person that you saw the Facebook photo of.”[30] M answered, “because I can distinctly recognise that face being the face of the person that assaulted my friend […]”.[31]
[30] Ibid T30.31-33.
[31] Ibid T30.34-35.
At the end of cross-examination, counsel for the appellant put to M that the evidence given in Court was an entire lie and that he simply identified the person whose photo he was shown on Facebook. M answered that he did identify that person as the appellant, being “Drew”, the person he saw on Facebook and the person who hit the complainant.[32]
[32] Ibid T32.27-29.
Police officer
The police officer who took the Complainant’s First Statement and M’s First Statement gave evidence.[33] The police officer said when the complainant initially reported the matter, he told him that the person who assaulted him was somebody he used to work with and he knew the person by the first name of “Drew” and the surname of “Reihana”. As the complainant was not sure of the spelling of the surname, he used his phone and looked up a Facebook profile to get the correct spelling of the surname.[34]
[33] Transcript of Proceedings, Police v Reihana-Browne (Adelaide Magistrates Court, 19/6687, 21 June 2021).
[34] Ibid T36.22-30.
In cross-examination, the police officer did not recall the complainant giving any description of his assailant. He recalled M giving him some information about a full sleeve tattoo or tattoos on the arm of one of the people in the group. The police officer confirmed he did not take down descriptive features because the assailant was known to the complainant.[35]
[35] Ibid T38.20-32.
Counsel for the appellant asked whether it was common for witnesses and complainants to provide details that do not end up in a statement. The police officer answered that it is common if someone presents information that is not necessarily relevant to the specific events, then it may not be included in their statement at the time.[36]
[36] Ibid T39.11-17.
Judgment of the Magistrate
The Magistrate found the prosecution had proved beyond reasonable doubt firstly, that an assault by the appellant occurred as described, secondly, that it occurred in company and thirdly, that others also assaulted the complainant and M and that the assault on the complainant caused harm. The charge was thus proved beyond reasonable doubt.
The Magistrate summarised the complainant’s evidence including a reference to cross-examination on the content of the Complainant’s First Statement. The Magistrate also summarised M’s evidence but did not expressly refer to cross-examination of M in relation to M’s First Statement.
The Magistrate summarised the evidence of the police officer and referred to the fact that the complainant used Facebook to ascertain the correct spelling of the appellant’s name. The Magistrate stated the police officer was not challenged in cross-examination in relation to this evidence.
The Magistrate stated the appellant elected to not give evidence nor call any evidence and no adverse finding could be made against him by choosing to do so. He continued to say: [37]
[…] The court however is disadvantaged in that it is not known what it is that he says happened. All that can be gleaned by the court is from cross-examination. It is of significance that D’s version of events, whatever they might be, was not put to either V or M. It was not disputed in cross-examination that D was present as alleged by the prosecution witnesses or that he had companions with him that were also involved in violence towards V and M. They were also not challenged that he threw a punch that struck V to the face or that others present were violent towards V and M. It was not suggested to either of them that a punch to the face as described was never delivered or that D did not deliver it. Further, no evidence of self-defence has been suggested.
[37] Police v Reihana-Browne, Adelaide Magistrates Court, 6 July 2021, file No. AMC-19-6687 at [15].
The Magistrate said the prosecution’s version of events was largely unchallenged other than for the assertion that, because of inconsistencies and omissions in the Complainant’s First Statement, the complainant and M’s evidence could not be relied upon beyond reasonable doubt.
The Magistrate’s reasoning for his conclusion is contained in paragraph 18 of his reasons:[38]
V asserts that the person who punched him was D. He confirms that on the first opportunity when reporting the matter to police. He confirms the spelling of D’s name from Facebook in the police officer’s presence. M says unequivocally that he recalls from his observations of the incident that it was the person he identified in the photographic identification. He concedes that he did not know the name of the person until shown by V on Facebook but he was at all times sure of the person he saw assault V. The fact that he was shown D’s picture on Facebook subsequently does not in my view, in this instance, cause doubt upon his identification of D and what he saw. In the case of V there can be no doubt, given that he knows D from prior work experience and identified him to Constable Nicholls by providing his name and spelling through a Facebook enquiry at the time of his original report to police, an assertion not contradicted by Constable Nicholls and not challenged in cross-examination. The prosecution version is therefore corroborated.
[38] Police v Reihana-Browne, Adelaide Magistrates Court, 6 July 2021, file No. AMC-19-6687 at [18].
Issues on appeal

There were three grounds of appeal as follows:
1. The learned trial Magistrate erred in the treatment of the identification evidence of the complainant and the witness M by:
1.1. Failing to give himself an appropriate Domican direction;
1.2. In the alternative, failing to comply with that direction (“First Ground”).
1A. The learned trial Magistrate erred by using a prior out of court statement of the complainant as “corroboration” of the complainant’s evidence at trial (“Second Ground”).
2. The learned trial Magistrate erred in the treatment of the appellant declining to give evidence by adopting a process of reasoning that had the effect of reversing the onus of proof (“Third Ground”).
General principles on appeal
An appeal to a single Judge of the Supreme Court against conviction is governed by s 42 of the Magistrates Court Act 1991 (SA). Such appeal is by way of rehearing.
White J in Martin v Dept of Transport, Energy and Infrastructure described the manner of rehearing as follows:[39]
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.
First ground of appeal
[39] [2010] SASC 141 at [38], referring generally to Fox v Percy [2003] HCA 22 at [25]-[29]; (2003) 214 CLR 118, 126-8 at [25]-[29]; Warren v Coombes (1979) 142 CLR 531 at 551.
Appellant’s submissions
The appellant accepted that it was not in dispute that the complainant was confronted by a group of men in the nightclub toilets, assaulted during the confrontation and suffered harm by reason of the assault. It was also not seriously in dispute that M witnessed part of the Incident which constituted the assault.
The appellant’s counsel submitted that the Magistrate could have convicted the appellant in two ways. Firstly, the Magistrate could have convicted by accepting the evidence of the complainant when he said that the appellant assaulted him. Secondly, the Magistrate could have used the totality of the evidence, which included the evidence of M, in combination with the evidence of the complainant, to reach conviction. The appellant’s counsel submitted that a central question was which pathway to guilt was taken by the Magistrate.
Counsel for the appellant accepted that no direction was required to be given by the Magistrate in relation to the evidence of the complainant because the complainant knew the appellant and thus was a recognition witness. However, in reliance on Domican v The Queen (“Domican”),[40] he submitted that M was an identification witness and therefore a direction was required.
[40] (1992) 173 CLR 555.
The appellant’s counsel submitted that the fact the complainant recognised the appellant made the evidence of M significant, as it had the capacity to assuage any doubt the fact finder might have had about the complainant’s evidence insofar as it related to the identity of his assailant.
Counsel for the appellant submitted that the only fair reading of paragraph 18 of the Magistrate’s reasons was that M’s evidence represented a significant part of the proof beyond reasonable doubt that the appellant assaulted the complainant. Therefore, a Domican direction was required. Counsel submitted that, as that direction was not given, the asserted error was established.
Counsel for the appellant relied on the decision of Peek J in Strauss v Police (“Strauss”).[41] Counsel’s references to Strauss included the relevance of the displacement effect, the risk of contamination of evidence by use of Facebook and the potentially seductive effect of a confident identification witness. He submitted that the matters in respect of which the Magistrate was obliged to direct himself were:
1. M did not know the appellant/assailant;
2. The opportunity M had to see and remember the assailant’s face was fleeting;
3. There were a number of people involved in the melee;
4. The photographic identification process was conducted four and a half months after the event;
5. Significantly, the complainant had told M the appellant’s name and showed M photographs of the appellant in the immediate aftermath of the assault.
[41] (2013) 115 SASR 90.
The appellant’s counsel submitted that being shown the photograph of the appellant gave M the answer to identification before M engaged in an identification procedure and before giving evidence. He submitted that, in those circumstances, M’s evidence as to the identity of the assailant was irrevocably tainted and his evidence was a mere repetition of what M had been told by the complainant.
Counsel submitted that the Magistrate’s failure to give himself any directions as to the potential frailties of M’s identification evidence was an error and was particularly important given the inevitability of contamination of M’s evidence by being shown Facebook photos of the appellant.
Respondent’s submissions
The respondent’s counsel submitted that there was no real argument that the identity of the appellant as the offender was in dispute and the evidence of M did not assume the significance of positive identification evidence as proving guilt in the manner contemplated by Domican.
Counsel for the respondent submitted that, in the context of the complainant’s recognition of the appellant, M’s evidence was not central to any finding of guilt and cross-examination of the complainant did not give rise to any conclusion the identification of the appellant was genuinely in dispute.
Counsel distinguished Strauss on the basis that the present case is in a different vein to “true” identification cases, the complainant and witness were not intoxicated, there was no evidence of insufficient lighting, M’s identification evidence was not solely based on Facebook and he also participated in an identification procedure. In those circumstances, the respondent’s counsel submitted that a Domican direction was not required.
Counsel for the respondent submitted that it was not suggested the complainant ever gave a prior inconsistent statement about the presence of the appellant at the scene. She submitted the prosecution’s evidence clearly established that the complainant identified the appellant as the person who assaulted him at the police station in the immediate aftermath of the offending. The complainant did not accept the accuracy of the Complainant’s First Statement and maintained he had told the police officer that it was the appellant who assaulted him and provided the police officer with a photograph. She submitted the complainant’s explanation for the Complainant’s First Statement was compelling as he was in pain and shock, he was told he should sit down and write exactly what he remembered and that he could do that again, and as he wanted to go to the hospital.
Authorities concerning identification evidence
In Domican, the High Court said:[42]
The foregoing statements are applicable to all criminal cases including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence. Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.
[42] (1992) 173 CLR 555 at 561.
The High Court set out factors by which the adequacy of the warning must be evaluated. These included matters such as the nature of the relationship between the identified person and the witness, the opportunity to observe the person identified, the length of time between the incident and identification and the nature and circumstances of the first identification. The High Court stated that the trial judge is not absolved from giving general and specific warnings concerning the danger of identification evidence because “there is other evidence, which, if accepted, is sufficient to convict the accused”.[43]
[43] Domican v The Queen (1992) 173 CLR 555 at 565.
The High Court indicated the jury must be directed on the assumption they may decide to convict only on the basis of the identification evidence. If there is a failure to give an adequate warning concerning identification, ordinarily a new trial will be ordered even where there is other evidence making a strong case.[44]
[44] Domican v The Queen (1992) 173 CLR 555 at 565-566.
In Strauss, Peek J reviewed in detail the authorities concerning identification evidence and the problems associated with such evidence, both traditionally and in the age of Facebook.
In Strauss, the victim was assaulted in a shopping centre carpark. On arrival at the carpark in a minibus with others, the victim left the minibus and was confronted by a group of men and assaulted by two of them. One of the witnesses at trial gave evidence that she, together with another person not called as a witness, had identified the accused from a photograph they located on Facebook. The day after the assault, the victim was told the accused was one of his assailants. The victim then found a photograph on Facebook and identified the accused from that photograph as one of his assailants. The victim and the witness who conducted the Facebook “investigation” did not take part in a formal photographic identification procedure. Statements were not taken at the scene of the assault and witnesses were not asked to provide a description of the assailants.
Justice Peek canvassed the stages by which the human brain processes visual stimuli, such as in witnessing an event. He explained in detail many of the deficiencies associated with traditional identification processes including suggestibility, foil bias, subconscious elimination of doubts and the displacement effect. The displacement effect may occur where a person is shown a photograph and their subsequent memory of the features of a person is altered by reference to the view of the photograph.
Justice Peek discussed the substantial increase in the risk associated with identification evidence in the context of Facebook. He stressed that the process of Facebook identification has significant issues for potential contamination of evidence. Such problems are said to be likely when a witness or victim searches Facebook using information they have, or think they have, to locate an offender.[45] Peek J pointed out that Facebook identifications have none of the safeguards associated with a properly conducted formal identification procedure.[46] Peek J continued to say that the position of identifying a person from group photographs on Facebook will be even worse when (as occurred in Strauss) a person is given the name of the asserted offender and then locates in Facebook a photograph tagging the asserted offender with a name. He continued to say:[47]
[…] If the appearance of that tagged man is not obviously inconsistent with a memory the person actually has of the actual offender, a “Facebook identification” is highly likely to follow.
[45] (2013) 115 SASR 90 at [35].
[46] (2013) 115 SASR 90 at [36].
[47] (2013) 115 SASR 90 at [37].
Justice Peek emphasised that where there may be a question of identity, taking a full description of the offender at the earliest possible time is absolutely critical, especially in the era of social media. The description is the benchmark against which subsequent identification evidence must be measured and should form the basis of the selection of persons for the identification parade or photographic identification procedure.[48] Peek J also pointed out the importance of carrying out a formal identification process as soon as possible in circumstances such as occurred in Strauss.[49] Peek J also referred to the dangers of overconfident witnesses in the context of identification evidence.[50] In Strauss, Peek J concluded the identification evidence was tainted and quashed the conviction.
[48] (2013) 115 SASR 90 at [47].
[49] (2013) 115 SASR 90 at [61].
[50] (2013) 115 SASR 90 at [124].
Consideration
In the present case, as the complainant recognised the appellant, no complaint is made by counsel for the appellant in respect of any need to give a Domican warning in relation to the complainant’s evidence. However, that does not end the issue. If the Magistrate’s conclusion of guilt is based in some part on the evidence of M, then the question of the manner and circumstances of M’s identification of the appellant must be considered.
The Domican principles apply to trials with and without juries and therefore apply to the Magistrate, if relevant. [51]
Did the Magistrate use M’s evidence in his conclusion of guilt?
[51] (2013) 115 SASR 90 at [158].
The Magistrate referred to the complainant’s evidence and the fact that the complainant confirmed that the appellant punched him when first reporting the Incident to police. The Magistrate referred to M as a “corroborating witness”[52] and that M “says unequivocally” that he recalled the appellant from his observation of the Incident.[53] The Magistrate says “the fact that he was shown D’s picture on Facebook subsequently does not in my view, in this instance, cause doubt upon his identification of D and what he saw.”[54]
[52] Police v Reihana-Browne, Adelaide Magistrates Court, 6 July 2021, file No. AMC-19-6687 at [2].
[53] Ibid at [18].
[54] Ibid at [18].
The Magistrate did not explain why he reached this conclusion.
The Magistrate continued to say that, in the case of the complainant, “there can be no doubt, given that he knows [the appellant] from prior work experience and identified him” to the police officer at the time of his original report.[55] The Magistrate referred to the fact that this assertion was not contradicted by the police officer and not challenged in cross-examination. The Magistrate concluded therefore that the prosecution version was “corroborated”.
[55] Ibid at [18].
The Magistrate did not expressly address the cross-examination on M’s First Statement. He referred in paragraph 17 to the prosecution evidence being largely unchallenged apart from “some inconsistencies and omissions in V’s first statement”. [56]
[56] Ibid at [17].
I consider a fair reading of paragraph 18 of the Magistrate’s reasons, in the context of the reasons as a whole, justifies the conclusion that the Magistrate reached his view of the appellant’s guilt on all of the evidence led by the prosecution. I do not read the reasons as supporting the submission put by counsel for the respondent that the Magistrate found the appellant guilty solely on the basis of the complainant’s evidence. It follows that M’s identification evidence formed part of the reasoning to guilt. It is, however, difficult to ascertain from the Magistrate’s reasons the extent to which M’s identification evidence formed part of the Magistrate’s reasoning to guilt.
Requirement for direction
The Magistrate accepted the complainant’s evidence that he showed M the Facebook page and photograph at the police station after the Incident. Thus, to use the words of Peek J in Strauss, there was a high degree of suggestibility inherent in the circumstances. This, together with the displacement effect, had the capacity to taint the subsequent photographic identification procedure and thus the evidence of M identifying the appellant as the person who threw the second punch.
Counsel for the respondent submitted that, even if it was accepted that the appellant did not hit the complainant (which was not conceded), the evidence was sufficient to establish beyond reasonable doubt that the appellant was present with others in instigating the attack on the appellant and at all times the complainant was consistent about the presence of the appellant at the scene. She submitted that, even if the appellant did not deliver the second blow, it was sufficient to establish he was present, in company, instigating the attack.
However, I do not understand that the prosecution case was run as one of joint enterprise and I was not taken to any materials to support that suggestion. Consequently, I consider the relevance of the identification evidence was as to the identity of the assailant who delivered the second blow and/or subsequent blows, rather than as to whether the appellant was present at the scene.
Strauss makes abundantly clear the dangers which can arise in relation to identification evidence. In the present case, M was a confident witness. Although there is no evidence that M was intoxicated or the lighting was poor, M nevertheless did not know the appellant prior to the Incident. The time in which he was able to see the appellant was short and was during a “kerfuffle” involving multiple people. The complainant showed M a photo of the appellant from Facebook soon after the Incident. The photo identification process occurred about four and a half months later, by which time M’s memory of the appellant’s appearance from the Incident itself, as opposed to seeing the photo, could well have been poor.
Given the rationale for a Domican direction and the matters to which I have referred above, I consider the Magistrate ought to have given himself a warning in accordance with Domican and carefully reviewed the identification evidence in light of Domican, Strauss and other relevant authorities.
There is nothing on the face of the reasons or implicit in them that would allow me to conclude that the Magistrate gave himself such a warning, or that he took into account any such warning in his approach to considering the evidence. The fact the Magistrate refers expressly to the Facebook identification and states that, “in this instance”, that evidence did not cause doubt upon M’s identification and what he saw, suggests that he considered a Domican warning unnecessary.
In view of this error, I allow the appeal in relation to the First Ground.
Both counsel accepted that the Magistrate could have reached a conclusion of guilt based on the evidence of the complainant alone, as he knew and recognised the appellant. Consequently, the appellant’s counsel accepted that if the conviction is quashed the appropriate order is a retrial. I therefore order a retrial.
In view of my conclusion on the First Ground, I do not propose to address the Second or Third Grounds of the appeal. However, I note that the Crown bears the onus of proof whether or not the accused gives evidence or chooses to exercise his right to silence. The Court is not disadvantaged by an accused putting the prosecution to proof without giving evidence to advance his or her version of events.
Orders
I allow the appeal.
I quash the conviction and I order a retrial of the appellant for the offence of Aggravated Assault Causing Harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).