Reihana-Browne v Police

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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

  1. 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.

  2. 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

  3. The prosecution called three…

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Details
Case
[2021] SASC 143
Decision Date

CaseChat Overview and Summary

Reihana-Browne appealed against his conviction by the Magistrates Court for aggravated assault. The appeal centred on the sufficiency of the evidence of identification by two witnesses. The Crown called three witnesses: the complainant, a friend of the complainant, and a police officer. The friend of the complainant had identified the appellant in a photographic identification procedure, and the police officer had received a statement from the complainant that he identified the appellant as the person who had assaulted him. The appellant argued that the Magistrate erred in failing to give himself a warning and review the identification evidence in light of Domican v The Queen and Strauss v Police.

The court held that the Magistrate’s conclusion of guilt was based in part on witness M’s evidence. 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. The Magistrate erred in failing to give himself a warning and review the identification evidence in the light of Domican and Strauss. The appeal was allowed, the conviction quashed, and a new trial ordered.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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].