S (A Child) v Harris - [2017] WASCA 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: S (A CHILD) -v- HARRIS [2017] WASCA 118

CORAM: MAZZA JA
BEECH JA
HALL J

HEARD: 14 JUNE 2017

DELIVERED : 26 JUNE 2017

FILE NO/S: CACR 61 of 2017

BETWEEN: S (A CHILD)
Appellant
AND
IAN MARK HARRIS
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
File No  :SJA 1087 of 2016

Catchwords:

Criminal law - Appeal against conviction - Appeal from single judge - Identification evidence - Displacement effect - Whether magistrate imposed requirement for expert evidence

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D Hunter
Respondent: No appearance

Solicitors:

Appellant: Legal Aid (WA)
Respondent: No appearance

Case(s) referred to in judgment(s):

Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Wimbridge v The State of Western Australia [2009] WASCA 196
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159

REASONS OF THE COURT: The appellant, a juvenile, was convicted in the Children's Court of four offences relating to the driving of a motor vehicle. He appealed against those convictions to a single judge of the Supreme Court. That appeal was dismissed. He now seeks leave to appeal against that dismissal: s 9, s 17(2), s 18 Criminal Appeals Act2004 (WA).
At trial, the only issue was identification. Two police officers gave evidence that the appellant was the driver of a vehicle that they pursued. It was submitted that this evidence was unreliable because the officers had seen a photograph of the appellant after the car chase and before they identified him at the police station. Their identification evidence was said to have been affected by the displacement effect, that is, the possibility that the officers' memories of the driver had been displaced by memories of the photograph.
There is one ground of appeal. In effect, it is that the magistrate erred by imposing a requirement for expert evidence before considering the possible impact of displacement and the primary judge erred in not so finding. The appellant's contention is that the magistrate, in referring to the fact that no expert evidence regarding displacement was led, effectively used that as a reason for not considering displacement. A similar ground was dismissed by the primary judge.
For the reasons that follow, the ground of appeal has no reasonable prospect of succeeding. Leave in respect of it should be refused, with the consequence that the appeal is dismissed: s 9(3) Criminal Appeals Act.

The charges

The appellant was charged that, on 7 March 2016 at Bunbury, he:
1)wilfully drove a motor vehicle in a manner that was, having regard to all the circumstances, dangerous to the public or any person and in circumstances of aggravation, namely he was driving the vehicle to escape pursuit by a member of the police, contrary to s 60(1) Road Traffic Act 1974;
2)drove a motor vehicle whilst not authorised to do so, contrary to s 49(1)(a) Road Traffic Act 1974;
3)failed to stop the vehicle he was driving when directed to do so, in a circumstance of aggravation, namely whilst escaping pursuit by a police officer, contrary to s 44 Road Traffic (Administration) Act 2008;
4)used an unlicensed vehicle, contrary to s 4(2) Road Traffic (Vehicles) Act 2012.

The evidence

At trial, the prosecution called three witnesses - the two police officers and a man from whom the appellant had purchased the car. The appellant and his mother gave evidence for the defence.
Chad James Donovan gave evidence that in March of 2016 he had sold a black Mitsubishi Lancer. He described the person who had purchased the car as having blond hair, being of mid height or a little bit above and being not chubby, but not small. He said he handed the vehicle over one evening and was paid a total of $219.50 in 50 cent pieces that were contained in a white tub. He thought that the day on which the car was handed over was a Saturday because it was a long weekend and he needed the money for a trip that he took to Greenbushes. He identified the car from photographs that were taken by police in circumstances that will be referred to later. In cross‑examination, it was put to Mr Donovan that he could have delivered the car on Monday, 7 March 2016. He rejected this suggestion and said that he was 'firm' that it was the preceding Saturday (ts 7 ‑ 9).
First Class Constable Allan James Glover gave evidence that on 7 March 2016 he was on duty with First Class Constable Ian Mark Harris. They were in a police vehicle conducting patrols in the Bunbury area. Constable Harris was the driver of the police vehicle. At about 1.30 pm they were driving south on Koombana Drive. As they approached traffic lights, Constable Glover noticed a dark blue Mitsubishi Lancer with registration 1BXJ759 sitting stationary on a cross‑street waiting to turn right onto Koombana Drive. As the police car passed the other vehicle, Constable Glover had a 'good, long look' at the driver. He said that he had a clear view. There was only one person in the vehicle and the distance between them was less than 5 m. At the time the police vehicle was travelling at approximately 40 to 50 km per hour (ts 11 ‑ 12).
Constable Glover described the driver of the other vehicle as appearing to be 'very young' and having 'very distinctive blond, spiky hair at the front and a chubby face'. The driver sat very low in the driver's seat, giving the appearance of being short and young. Constable Glover entered the registration number into the in‑car computer which alerted the officers to the fact that the vehicle was unregistered and that the registered owner was under licence suspension. The police conducted a U‑turn and, at the same time, the traffic lights turned green for the other vehicle which accelerated away heavily at high speed. A police pursuit ensued with the police reaching a speed of approximately 126 km per hour in a 60 zone in their efforts to intercept the other vehicle (ts 11 ‑ 12).
At one stage, due to a build‑up of traffic, the police approached within 20 m of the other vehicle, which then turned right onto Forrest Avenue. At this point the driver of the other vehicle looked back over his right shoulder and Constable Glover said that he again 'saw the same, chubby, young face and distinctive blond, spiky hair'. Shortly after this, the officers changed positions as Constable Glover is a pursuit‑qualified driver. The pursuit continued, with the other vehicle continuing to drive in a dangerous manner, including driving along a verge and on the wrong side of the road, causing several vehicles to swerve and take evasive action. At this point, the officers considered that the driver's actions were highly dangerous to public safety and aborted the pursuit. The other vehicle disappeared from sight in a cloud of dust and debris (ts 12).
Constable Glover said that, the following day, inquiries were conducted with the registered owner which established that the vehicle had been purchased by the appellant. Mr Donovan provided the police with the address of the person to whom he had sold the vehicle. When the police looked up the address on the police database, a small photograph of the appellant was displayed. Constable Glover said that he recognised the photograph as being the person he saw driving the vehicle the previous day. He later attended the address and found the vehicle parked behind a high fence. The registration plate had been removed. Photographs were taken of the vehicle in situ. These were the photographs shown at the hearing to Mr Donovan. The chassis number of the vehicle was searched on the police database which confirmed that the vehicle registration number was 1BXJ759 (ts 12 ‑ 13).
The appellant was not at home when police attended. Arrangements were made with his mother for him to attend at the police station in her company later that day. Later that day, Constable Glover had finished work and was walking out the front door when he saw the appellant with his mother. He said that he immediately recognised the appellant as the driver of the vehicle at the time of the pursuit. He noted that the appellant had blond hair and his fringe appeared longer than the rest of his hair, but was brushed back onto the top of his head, giving what he described as a spiky look. He said that the appellant was very young, short and chubby in the face (ts 13).
Constable Glover was cross‑examined as to the circumstances of his observations of the driver of the vehicle. He said that the first time he saw the driver as they passed him he was the passenger in the police vehicle and 'got to have a good, long look' (ts 16). He accepted that the second occasion was of shorter duration, but that he was confident that he saw the driver. In regard to the photograph, Constable Glover said that, whilst it looked like the person that was in the car, it appeared to be an older photograph. He said that he only looked at the photograph briefly and because it 'fitted what I believe I saw' it led to further inquiry. It was put to him that when he saw the appellant at the police station he recognised him from the photograph. Constable Glover said that he did not think of the photograph at this time. Rather, he recognised the appellant as the person he saw in the vehicle. He noted that the appellant's appearance in the photograph was different in that he had long, wavy hair. He denied identifying the appellant on the basis of the photograph and rejected the suggestion that he was mistaken in his identification of the appellant as the driver of the vehicle (ts 20 ‑ 21).
Constable Harris was initially the driver of the police vehicle. He gave evidence that he had a clear view of the driver of the other vehicle as they passed at the traffic lights. He estimated the distance between the police vehicle and the other vehicle as being less than 5 m. He said that the driver appeared very young with distinctive blond spiky hair and a chubby face. He also saw the driver on the second occasion when the driver looked back as he was being pursued. Constable Harris said that he again saw 'the same chubby, young face and the distinctive blond spiky hair'. His evidence regarding the police chase was materially the same as that of Constable Glover (ts 25).
Constable Harris said that the following day, when inquiries were made regarding the vehicle, he saw a photograph of the appellant contained within police intelligence holdings and recognised him as the driver of the other vehicle. He took photographs of the vehicle at the appellant's home and made arrangements with the appellant's mother for them both to attend the police station for the purpose of an interview. When they arrived later that day, Constable Harris met and spoke with them in the reception area. He said that the appellant was 'clearly the person who was driving the car at the time of the incident' (ts 26).
In cross‑examination, Constable Harris was asked whether his first opportunity to view the driver of the other vehicle was a 'very quick glance'. He said that because the police vehicle was travelling reasonably slowly and there were no other vehicles in front, he was able to look to his left and view the other driver for four seconds. He denied that his view was impeded by Constable Glover sitting in the passenger seat. He accepted that when he saw the photograph he recognised the driver, or at least it 'looked very similar to the driver' (ts 28). It was put to Constable Harris that when he saw the appellant at the police station he recognised him from the photograph. He said that he recognised the appellant as the person he saw driving the car, not as the person in the photograph (which he did not consider) (ts 30).
Both the appellant and his mother gave evidence at the trial. It is sufficient for present purposes to note that the appellant denied that he was the driver, though he accepted that he had purchased the car from Mr Donovan. However, he claimed that the car had only been delivered to him on the evening of Monday 7 March (ts 45 ‑ 46). The appellant's mother said that she could not give an account of the appellant's movements on that day. However, she said that the first time she saw the car was after she had returned from the beach on the evening of 7 March, when it was parked in the driveway (ts 52).

No case submission

At the end of the prosecution evidence, defence counsel made a submission that the appellant had no case to answer on the charges. The submission was to the effect that the identification evidence was 'fatally compromised' because the officers had viewed a photograph of the appellant. It was submitted that the likelihood of displacement was such that the identification evidence could be accorded little or no value.
The magistrate noted that whether displacement was a factor would depend upon the whole of the evidence in a particular case. In rejecting the submission, her Honour referred to Wimbridge v The State of Western Australia [2009] WASCA 196 and Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395. Her Honour noted that in Wimbridge, a witness had prepared an identikit image and had then, a short time later, selected the appellant from a photoboard. No expert evidence was before the court in that case to suggest a mechanism by which the displacement effect could have occurred in the circumstances described. That lack of expert evidence was noted by Wheeler JA in Wimbridge. The magistrate then referred to the case of Alexander and the 'well‑known displacement effect reducing the reliability of later identification' (ts 37).
Her Honour noted that the suggestion of displacement in this case arose from the police officers viewing the photograph during the course of their inquiries. She said that the risk of displacement had to be seen in the context of the particular evidence in this case. In this regard, her Honour referred to the evidence of the police officers, including their descriptions of the driver, the fact that both officers viewed the driver on two occasions and that their descriptions were consistent, that subsequent inquiries with the registered owner established that the appellant had purchased the vehicle and that the vehicle was found at the appellant's address. She noted that both police officers independently identified the appellant when they saw him at the police station, that this occurred within 24 to 36 hours of the incident and that both officers were unshaken in cross‑examination. Her Honour concluded by saying that there was more than one piece of evidence which proved that the accused was the driver of the vehicle and that she was not satisfied that the displacement effect had occurred in the circumstances of this case.

The magistrate's reasons

The magistrate gave oral reasons for convicting the appellant on all charges at the conclusion of the trial.
In regard to the date that the appellant came into possession of the car, the magistrate said that she found that the evidence of the appellant and his mother to be vague and unsatisfactory. She rejected their evidence that the vehicle was purchased on 7 March 2016 and delivered to the house later that day and that the appellant's mother did not see the vehicle until she returned to the house at about 6.30 pm. She accepted the evidence of Mr Donovan that the car was purchased and paid for on the previous Saturday evening.
In regard to the identification evidence of the police officers, her Honour noted that both officers were steadfast in saying that they had a clear view of the driver. They provided consistent descriptions and both maintained that they identified the appellant from their observations of the driver and not from any viewing of the photograph. Her Honour said that the evidence given was honest and credible and can be relied upon. Her Honour then referred to the possibility of displacement raised by the defence and said:
To the extent that the displacement principle may apply in this case, again, there was limited cross‑examination on this point, and no expert evidence of the effect, if any, that the principle may have in this case.
But, in any event, both officers were steadfast in cross‑examination that their identification of the accused was firstly from their observations of him in the vehicle on 7 March 2016, and their observations of the accused on 8 March 2016 at the police station rather than from their viewing of the photograph as part of the inquiries made to identify the person driving the Lancer.
Whilst it is apparent the officers had a conversation about their observation of the accused in the photograph, in my view, it was in the context of pursuing a line of inquiry after receiving information from Mr Donovan. Both officers said the accused's hair in the photograph was slightly different to the accused's hair at the time. Thereafter, the attendance at the address in Carey Park located the Lancer.
Therefore, notwithstanding the weakness in First Class Constables Glover and Harris's evidence in identifying the accused and the case that must be taken in making findings with respect to identification, I am satisfied and I find beyond reasonable doubt that First Class Constable Glover and First Class Constable Harris positively identified the accused as the person driving the Lancer during the course of the pursuit on 7 March 2016, and that neither officer was mistaken in his identification of the accused.
Furthermore, their evidence must also be seen in the context of other evidence upon which I am also satisfied was credible and truthful, namely that Mr Donovan sold the Lancer to the accused on Saturday and not Monday. The vehicle was sold unregistered to a person described as blond‑haired, a bit chubby and mid height, a very similar description given by the two officers (ts 64 ‑ 65).
The reference in that quote to the weaknesses in the police evidence is a reference to the short period of time and the circumstances in which the police officers observed the appellant at the time of the incident.

Primary judge's reasons

There were four grounds of appeal before the primary judge. Three of those were not pursued on this appeal and do not need to be referred to. The remaining ground (ground 1) was worded differently to the ground brought in this court. However, in oral submissions on the hearing of this application for leave to appeal, counsel for the appellant confirmed that both grounds were intended to raise the same contention, that is that the magistrate erred in determining that expert evidence was required in order to evaluate the displacement effect in relation to the evidence of the two police officers. The primary judge rejected this ground. He said that when the magistrate's observations regarding expert evidence were read in context, she was merely making a neutral observation that no expert evidence had been led, bearing in mind that expert evidence can be led in some cases: Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159. His Honour said that the magistrate was essentially summarising the state of the evidence in the case, she was not stating that there was a requirement for expert evidence.

Relevant law

The principles regarding identification evidence are well established. This includes the warnings that should be given where the reliability of identification evidence is in dispute: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. One of the dangers that should be the subject of warning is the vulnerability of identification evidence to suggestion. This includes the possibility that a person may substitute a memory of an image of someone seen elsewhere for a hazy recollection of an offender: Winmar [13].

The displacement effect was referred to in Alexander (at (409), (426) and (436)). In that case a witness, having first picked an accused person from photographs, later purported to identify that person at an identification parade. The risk was that 'at the parade' the witness might be identifying the accused not as the person seen at the time of the offence, but as a person previously identified in a photograph.
There is no necessity for expert evidence to be called at a trial in order for the risk of displacement to be considered. The displacement effect is well recognised and needs to be considered wherever the possibility is raised on the evidence. Evidence that the witness has viewed a photograph of the accused between the time of the incident and the time of the identification is sufficient to raise displacement as a consideration. In a jury trial, such evidence will require an appropriate warning. However, what significance the possibility of displacement has in a particular case will depend on the evidence and is a matter for the finder of fact. If, on the other hand, as was the case in Wimbridge, the witness did not view a photograph of the accused, and did not otherwise see the accused, prior to the identification, the absence of expect evidence may have significance for whether the evidence raises the possibility of displacement (see Wimbridge [35] ‑ [37]).
To say that there is no necessity for expert evidence is not to say that expert evidence cannot be led on this issue, simply that it is not required. Expert evidence was adduced, on appeal, in Winmar. Where such evidence is led it is a relevant matter to take into consideration in assessing the risk of displacement.

Merit of the appeal

It is important to assess the magistrate's reasons as a whole and take into account that they were delivered orally and immediately following the hearing. It is not appropriate to take comments out of context or to approach oral reasons with an eye keenly attuned to the perception of error.
There can be no doubt that the magistrate was conscious that the central issue was identification and that the appellant challenged the reliability of the two police officers. The possibility of displacement was raised on the evidence and in oral submissions both at the no‑case stage and in closing submissions.
The magistrate was required to consider whether she was satisfied beyond reasonable doubt that the appellant was the driver. This in turn required consideration of whether the reliability of the police evidence was affected by the possibility of displacement. Her Honour expressly considered this possibility.
In canvassing the relevant evidence, her Honour noted that there was no expert evidence as to displacement in this case. That was an entirely accurate observation. However, the appellant asserts that this was more than a mere observation, but rather the expression of a requirement.
It would appear that the appellant is suggesting that the magistrate was saying that in the absence of expert evidence she would discount the possibility of displacement. That interpretation is not reasonably open. It is not what the magistrate said, nor could that inference reasonably be drawn from the whole of her remarks.
Fatal to this contention is the fact that immediately following her Honour's reference to the fact that there was no expert evidence, she considered the possibility of displacement in the circumstances of this case. She analysed the evidence of the police witnesses and explained why, notwithstanding their viewing of the photograph, she was satisfied beyond reasonable doubt that their identification evidence was reliable. That is reinforced by her Honour's introductory phrase 'But, in any event, … ' (ts 64).
In oral submissions to this court, the appellant pointed to aspects of the magistrate's reasons in rejecting the no case submission, contending that they reveal the error asserted in the ground of appeal. That submission must be rejected. Nothing in the magistrate's reasons for dismissing the no case submission reveals error.
Further and in any event, it is to the magistrate's reasons for convicting the appellant that attention must be directed. For the reasons already given, the magistrate did not make the error asserted by the appellant.
There is no merit in the ground of appeal. The magistrate did not err and the primary judge was correct in so concluding. In these circumstances, leave to appeal should be refused.

Orders

1.Leave to appeal refused.
2.Appeal dismissed.