Solomon v QPS - [2015] QDC 307

DISTRICT COURT OF QUEENSLAND

CITATION:

Solomon v QPS [2015] QDC 307

PARTIES:

BRENDON SOLOMON

(Appellant)

and

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

TD 109/2015

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Hughenden

DELIVERED ON:

01 December 2015

DELIVERED AT:

Townsville

HEARING DATE:

29 October 2015

JUDGE:

Durward SC DCJ

ORDER:

1 Appeal dismissed.

2 Convictions of the appellant in the Magistrates Court at Hughenden on 17 March 2015 are confirmed.

CATCHWORDS:
LEGISLATION:
CASES:

CRIMINAL LAW - EVIDENCE – IDENTIFICATION – WARNINGS – OTHER EVIDENCE IMPLICATING DEFENDANT - where the sole issue at trial was identification - where defendant identified by police officer as driver of stolen motor vehicle passing a stationary police car at speed at night – where police car had headlights, sidelights and flashing strobe lights activated – where defendant said to have looked at police officer as he passed – where police officer did not know defendant and had not seen him before – where the defendant was an indigenous person - where 90 minutes later police officer visits defendant’s house after being told that the description supplied to a police colleague who knew the defendant ‘seemed like’ the defendant – where the stolen vehicle was located in a damaged condition in vicinity of defendant’s house - where a person briefly appearing at an elevated window of the house as police approached the building was identified by torch-light by the first police officer as the driver of the vehicle – where the person occupying the house was the defendant – whether in the circumstances of the first identification there was sufficient evidence – whether in the circumstances of the second identification the first and second identifications were tainted by the information and direction given by the police colleague – whether the magistrate applied the correct reasoning to identification evidence – whether the magistrate focused on purported strengths of the identifications and did not take into account or sufficiently take into account weaknesses in the identifications – whether magistrate gave impermissible weight to self-supporting assertions of certainty of identification in the course of evidence at the hearing – where there was other inferential evidence implicating the defendant - whether magistrate could have been satisfied BRD of the guilt of the defendant on the basis of the evidence of identification.

Justices Act 1886 sections 222, 223 and 225;

Domican v The Queen (1992) 173 CLR 555; R v Feiloakitau [1993] QCA 572; Pitkin v R (1995) 69 ALJR 612; Scrivener v DPP (2001) 125 A Crim R 279; Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; Rowe v Kemper [2008] QCA 175; Devries v Australian National Railways Commission (1993) 171 CLR 472.

COUNSEL:

EG Bassett for the Appellant.

Ms A Payne for the Respondent.

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the Appellant.

Office of the Director of Public Prosecutions for the Respondent.

The appellant was convicted of a number of offences…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Solomon v QPS

Details

AGLC: Solomon v QPS [2015] QDC 307
Case: [2015] QDC 307
Decision Date: 01 December 2015

CaseChat Overview and Summary

Solomon v QPS involved a case where the defendant was convicted based on identification evidence. The defendant, Solomon, was alleged to be the driver of a stolen vehicle. The case hinged on two identifications made by a police officer. The first identification occurred when the officer observed the defendant driving the stolen vehicle at night, passing by his stationary police car with its headlights, sidelights, and flashing strobe lights activated. The officer testified that Solomon looked at him as he passed. The second identification occurred when the officer visited Solomon's house 90 minutes later after receiving a description that matched Solomon. Upon approaching the house, the officer identified Solomon from an elevated window using a torchlight, stating that he was the driver of the stolen vehicle. The defendant argued that the identifications were unreliable due to the circumstances and that they were tainted by subsequent information provided by another police officer.

The legal issues before the court included whether the evidence of identification was sufficient, whether the second identification was tainted by the information provided by another officer, and whether the magistrate applied the correct reasoning to the identification evidence. The court considered whether the magistrate appropriately weighed the evidence and whether there were any significant weaknesses in the identifications. Additionally, the court examined whether the magistrate correctly considered other inferential evidence implicating the defendant, such as the vehicle being found near Solomon's residence and his furtive movements inside the house when the police arrived.

The court found that despite some criticisms of the magistrate's handling of the identification evidence, the overall reasoning was sound. The court held that the magistrate adequately addressed the identification issues and concluded that the identifications were reliable and supported by other evidence. The court also noted that the magistrate had properly disregarded an inadmissible conversation that occurred between the police and the defendant. Consequently, the court confirmed the convictions made by the Magistrates Court.

ORDERS:
1 Appeal dismissed.
2 Convictions of the appellant in the Magistrates Court at Hughenden on 17 March 2015 are confirmed.

Orders

Orders of the court

1 Appeal dismissed.

2 Convictions of the appellant in the Magistrates Court at Hughenden on 17 March 2015 are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In Cross on Evidence, in the current loose leaf edition, that matter is expressed in the following way by the learned author: It was open to the magistrate to take inferences from two factual circumstances. Firstly, the vehicle was found abandoned in a street close to where the appellant lived; and secondly, the appellant - the only occupant of the house it seems – was seen to move, furtively perhaps, inside the house as the police drove past, appeared at the window as they walked up to the front door and then ducked or moved below the window edge and was found on the bed feigning, it seems, sleep. That circumstantial evidence arguably separately supported the finding of guilt of the appellant. The inferences open to be drawn are, of course, adverse to the appellant. However, I do not think that these were circumstances that gave rise to equally competing inferences where, of course, one would have to be satisfied beyond reasonable doubt that the adverse inference overcame any other inference. In Feiloakitau, in a joint judgment, Mc Pherson and Pincus JJ wrote, at page 11: That statement is as apposite to the circumstance in this case as it was in Feiloakitau, albeit there were several other problematic issues with the identifications in that case. Whilst his Honour did not specifically refer to this issue, I have done so. I do not consider that it is as significant in this case because the description given by Robertson referred, for example, to observations other than mere facial features or simply ethnicity. There was a conversation at the house between Robertson and the appellant. That evidence was objected to by Mr O’Dea and was not led (by agreement it seems, rather than by a ruling by his honour) in the prosecution case. I assume that it was considered to be inadmissible by the parties because the appellant was not warned that he did not have to answer questions and the conversation may have had another preliminary investigative purpose. The magistrate was aware of the fact of the conversation. He may have been aware of the content of the conversation. However, he said explicitly that he would have no regard to the conversation and stopped Mr O’Dea from going into that issue in cross-examination, although Mr O’Dea seems to me to have had another purpose in doing so. There is no basis upon which I could infer that the magistrate did not do what he said he would and I accept that he did ignore any knowledge he may have had of the content of the conversation that was adverse to the appellant, in making his decision. To the extent that I am appraised any of the matter, I adopt the same approach. I ignore the conversation. Whilst the manner in which his Honour dealt with the identification issue may be open upon critical analysis to some criticism, I nevertheless consider that he has adequately addressed the issue in his decision and that the finding that upon the evidence in the prosecution case the defendant was accurately and reliably identified as the driver of the vehicle in question was open to be made.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Solomon v QPS [2015] QDC 307
PARTIES:	BRENDON SOLOMON (Appellant) and QUEENSLAND POLICE SERVICE (Respondent)
FILE NO/S:	TD 109/2015
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Hughenden
DELIVERED ON:	01 December 2015
DELIVERED AT:	Townsville
HEARING DATE:	29 October 2015
JUDGE:	Durward SC DCJ
ORDER:	1 Appeal dismissed. 2 Convictions of the appellant in the Magistrates Court at Hughenden on 17 March 2015 are confirmed.
CATCHWORDS: LEGISLATION: CASES:	CRIMINAL LAW - EVIDENCE – IDENTIFICATION – WARNINGS – OTHER EVIDENCE IMPLICATING DEFENDANT - where the sole issue at trial was identification - where defendant identified by police officer as driver of stolen motor vehicle passing a stationary police car at speed at night – where police car had headlights, sidelights and flashing strobe lights activated – where defendant said to have looked at police officer as he passed – where police officer did not know defendant and had not seen him before – where the defendant was an indigenous person - where 90 minutes later police officer visits defendant’s house after being told that the description supplied to a police colleague who knew the defendant ‘seemed like’ the defendant – where the stolen vehicle was located in a damaged condition in vicinity of defendant’s house - where a person briefly appearing at an elevated window of the house as police approached the building was identified by torch-light by the first police officer as the driver of the vehicle – where the person occupying the house was the defendant – whether in the circumstances of the first identification there was sufficient evidence – whether in the circumstances of the second identification the first and second identifications were tainted by the information and direction given by the police colleague – whether the magistrate applied the correct reasoning to identification evidence – whether the magistrate focused on purported strengths of the identifications and did not take into account or sufficiently take into account weaknesses in the identifications – whether magistrate gave impermissible weight to self-supporting assertions of certainty of identification in the course of evidence at the hearing – where there was other inferential evidence implicating the defendant - whether magistrate could have been satisfied BRD of the guilt of the defendant on the basis of the evidence of identification. Justices Act 1886 sections 222, 223 and 225; Domican v The Queen (1992) 173 CLR 555; R v Feiloakitau [1993] QCA 572; Pitkin v R (1995) 69 ALJR 612; Scrivener v DPP (2001) 125 A Crim R 279; Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; Rowe v Kemper [2008] QCA 175; Devries v Australian National Railways Commission (1993) 171 CLR 472.
COUNSEL:	EG Bassett for the Appellant. Ms A Payne for the Respondent.
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Service for the Appellant. Office of the Director of Public Prosecutions for the Respondent.