TA & O’Neill

[2022] NTSC 91

CITATION:TA & O’Neill [2022] NTSC 91

PARTIES:TA
  

v

O’NEILL, Julie Ann

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  Appeal from LOCAL COURT exercising Territory Jurisdiction

FILE NO:LCA 17 of 2022 (22126887)

DELIVERED:  2 December 2022

HEARING DATE:  16 November 2022

JUDGMENT OF:  Burns J

CATCHWORDS:

EVIDENCE –IDENTIFICATION – Appeal against conviction – intentionally or recklessly causing harm to property – throwing a thing at a vehicle giving rise to a danger of harm to a person in the vehicle – reliability of identification evidence – recognition evidence – unsafe and unsatisfactory – appeal upheld.

Criminal Code Act 1983 (NT)

Evidence (National Uniform Legislation) Act 2011 (NT)

Police Administration Act 1978 (NT)

Transcript of Proceedings, Police v TA (Northern Territory of Australia Local Court, 22126887, 22126880, Judge Oliver, 1 March 2022)

M v The Queen (1994) 181 CLR 487 referred to

REPRESENTATION:

Counsel:

Appellants: J Henderson

Respondent:  D Jones

Solicitors:

Appellants:NT Legal Aid

Respondent:  Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Bur2215

Number of pages:  27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

TA v O’Neill [2022] NTSC 91
LCA 17 of 2022 (22126887)

BETWEEN:

TA

Appellant

v

O’Neill, Julie Ann

Respondent 

CORAM:    Burns J

REASONS FOR JUDGMENT

(Delivered 2 December 2022)

Introduction

1. The appellant was charged with 3 offences arising out of an incident at Knuckey’s Camp, Knuckey’s Lagoon on 3 September 2021. Those charges were:

   · Count 1: intentionally or recklessly causing damage to property, namely, a Northern Territory Police Vehicle, contrary to section 241(1) of the Criminal CodeAct 1983 (NT) (Criminal Code).

   · Count 2: throwing a thing, namely, a milk crate, at a Northern Territory Police vehicle, which gave rise to a danger to a person in the vehicle, namely, Senior Constable Matthew Unwin, contrary to section 180A of the Criminal Code.

   · Count 3: hindering Sergeant Dale Motter-Barnard, a member of the Police Force, in the execution of his duty, contrary to section 159 of the Police Administration Act 1978 (NT).

2. On 1 March 2022, the appellant entered pleas of not guilty in the Youth Justice Court in Darwin to Counts 1 and 2, and a plea of guilty to Count 3. A contested hearing on Counts 1 and 2 commenced in the Youth Justice Court on 1 March 2022 and then continued on 14 June 2022. The primary Judge found the appellant guilty of Counts 1 and 2 on 8 July 2022, publishing written reasons the same day.

3. The appellant now appeals from his conviction on Counts 1 and 2. The grounds upon which the appeal came to be argued are:

   Ground 1:the findings of guilt were unsafe and unsatisfactory.

   Ground 2:the primary Judge erred in using impermissible tendency reasoning.

   Ground 3: the primary Judge erred in failing to direct herself on the risk of the “displacement effect” and on the risk of contamination regarding the identification evidence.

4. Upholding the appellant’s appeal on Ground 1 would entitle the appellant to an acquittal on both charges. Success on Grounds 2 or 3 would not entitle the appellant to acquittals, but would potentially lead to the charges being remitted to the Youth Justice Court for rehearing. The appellant submitted that this Court has a discretion not to remit the charges to the Youth Justice Court, and that this Court should exercise its discretion in the appellant’s favour. The potential differences in the disposition of this appeal depending on which (if any) of the grounds upon which the appellant was to succeed make it appropriate to commence by considering Ground 1.

   Ground 1 – unsafe and unsatisfactory verdicts

5. The principles governing an appeal in which it is alleged that a verdict was unsafe and unsatisfactory are not contentious. I take the correct principles to be those enunciated in M v The Queen,[1] where the majority of the High Court (Mason CJ, Deane, Dawson and Toohey JJ) said, at 493:

   Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

   (Footnotes omitted).

6. Later, at 494, the majority continued:

   In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

   (Footnotes omitted).

7. While these passages are directed towards a verdict rendered by a jury, the same principles apply when considering whether a verdict delivered by a judicial officer sitting without a jury is unsafe and unsatisfactory.

   The prosecution case

8. It is now appropriate to set out briefly the nature of the prosecution case against the appellant. I will, later in these reasons, refer to the evidence in more detail. The two charges to which the appellant entered pleas of not guilty arose out of an incident that occurred in the early hours of the morning of 3 September 2021. At about 3:00am that morning, a delivery truck was stolen from the Puma Service Station at Berrimah by a young person who I will refer to as AL. He was the only occupant of the vehicle. Shortly after the vehicle was stolen, police commenced a pursuit. One of the vehicles involved in the pursuit was driven by Detective Senior Constable Unwin.

9. By 3:10am the pursuit had entered the Knuckey Community. While inside the Community, Detective Unwin was initially driving the secondary pursuit vehicle. The stolen truck driven by AL tried to ram both Detective Unwin’s vehicle and the primary pursuit vehicle. After a couple of minutes, Detective Unwin took the lead position as the primary pursuit vehicle. Shortly after taking up that position, Detective Unwin conducted a U-turn in a cul-de-sac within the Knuckey Community as he pursued the stolen truck. A person threw a milk crate at Detective Unwin’s vehicle as he was conducting the turn. The milk crate hit the front passenger side of the bonnet of Detective Unwin’s vehicle, causing damage. Detective Unwin identified the appellant as the person who threw the milk crate. Detective Unwin continued the pursuit of the stolen truck for a short time before those involved were instructed to withdraw from the pursuit and cordon off the Knuckey Community. This series of events, from the time that the stolen truck entered the Knuckey Community until police withdrew to form a cordon around the Community may be referred to as the First Incident.

10. At about 3:10am, AL drove the stolen truck out of the Knuckey Community via the single entry/exit road. Police had deployed a tyre deflation device which punctured the tyres of the stolen truck as it exited the Community. The truck did not stop. Police again pursued the stolen truck, but at low speeds of 15 – 30 km/h.

11. At about 3:45am, the stolen truck re-entered the Knuckey Community. Three separate police vehicles pursued the truck into the Community, including the vehicle driven by Detective Unwin. There was a protracted pursuit within the Community at low speed until the truck stopped in front of House 19. AL alighted from the truck and was arrested by police. As police were arresting AL, the appellant approached and intervened. The appellant was then also arrested. The appellant was arrested at about 3:55am. The series of events from the time that the stolen truck re-entered the Community until the appellant was arrested may be referred to as the Second Incident.

    The evidence of Detective Unwin

12. In the proceedings in the Youth Justice Court, Detective Unwin was the principal prosecution witness. The sole issue on which the defended charges proceeded to hearing was the identification of the appellant as the offender. Detective Unwin had been a member of the Northern Territory Police Force for about 15 years. He testified that at about 3:10am, he heard a police radio notification of a robbery at the Puma Service Station at Berrimah. Using an unmarked police vehicle, he began driving in that direction. He subsequently heard a further police radio notification that the stolen truck had gone into the Knuckey Community, so he drove there and fell in behind a marked police vehicle in the pursuit of the stolen truck. The marked police vehicle was, at that time, the primary pursuit vehicle and the unmarked police vehicle driven by Detective Unwin was the secondary pursuit vehicle.

13. During the pursuit, Detective Unwin said, his vehicle and the primary pursuit vehicle were nearly rammed by the stolen truck on multiple occasions. During the course of the pursuit, his vehicle ended up becoming the primary pursuit vehicle and he commenced calling a risk assessment over his radio at that time. In cross examination, Detective Unwin explained that a “risk assessment” is:

    …a constant running commentary of what’s happening. It allows the other members to know exactly what’s going on, the movements of the – you know, the suspect vehicle and police vehicles. Conditions such as pedestrians, other traffic. And it also goes back to the pursuit controller to determine whether, you know, as the pursuit controller, they can determine whether the risks and, you know, outweigh the – the, you know, the rewards to continue with the pursuit. So there’s a lot of factors. It’s just an ongoing commentary of what’s happening.[2]

14. In cross examination, Detective Unwin agreed that at or about the time that he made the identification of the appellant as the person who threw the milk crate at his vehicle, he was holding his police radio, providing information to other police officers about the pursuit and about issues relevant to their safety and the safety of the public, was involved in a pursuit in which the stolen van had attempted to ram police vehicles, including Detective Unwin’s vehicle, on multiple occasions and was focusing on his driving.

15. Shortly after Detective Unwin’s vehicle became the primary pursuit vehicle, Detective Unwin observed a male, who he identified as the appellant, throw a milk crate at his vehicle. Detective Unwin testified that he heard the impact of the milk crate on the side of his vehicle. At that time he was continuing to provide a risk assessment. This incident occurred outside a house located between Houses 19 and 20 in the Knuckey Community. Detective Unwin testified that at that time he was conducting a U-turn to fall in behind the stolen truck. He said that there were streetlights in the area. Detective Unwin also said that the headlights of his vehicle illuminated the male as they traversed that person during the U-turn. Detective Unwin said that he was able to clearly see the male person, that the person was holding a milk crate, and the person throwing the milk crate at his vehicle. Detective Unwin said that he saw the male person for “a couple of seconds” at that point. The male person was not wearing a shirt or shoes, but was wearing black shorts. At that point, the male person was standing by himself, separate from other people in the area. The male person was initially about 25 m from Detective Unwin, but this distance decreased to around 12 – 15 m at the time that the milk crate was thrown. At the time that Detective Unwin was undertaking the U-turn, his police vehicle was travelling at about 10 km/h.

16. Detective Unwin was asked about his dealings with the appellant prior to 3 September 2021. He gave the following evidence:

    I want to talk to you now, officer, about how it is that you say that you know [the appellant]. You say that you recognised him on that night. Can you tell the court when it is that you say you first would have come to know [the appellant]?---- There’s probably been a lot of incidents but a couple that I can remember – there was two separate incidents at Karama. One of the times was, I was the arresting member for [the appellant] for a violent disturbance that had spilled out from the Karama Tavern and the other time the – was when [AL] was arrested, I was an attending member for that one as well. And a lot of the other [appellant’s] family were there and I’d had, you know, dealings or reason to speak to [the appellant] and the rest of the family members at that incident. So, that was just within – I guess the sort of six to ten months preceding this incident. There was another job that I attended at another house in Knuckey Camp with – involving a disturbance with neighbours that lived at another house there. So that was the three times that I can think off the top of my head.

    And so you said that it was, sorry, just for clarity, the six to ten months preceding this incident you’d had interactions? ---- Yes, approximately yeah.

    And what would be the length of time that those interactions might last, if we’re talking for example about the arrest, how long would those interactions last? ---- That one was probably – I was probably tied up with that one for about 40 minutes I’d say because somebody had been stabbed in that incident and there was a lot of people to speak to and I remember just – and also trying to calm the other family members who wanted to become involved, that actually I think travelled to the Karama Tavern after the incident and trying to involve themselves in that incident and we were trying to keep them calm, so that was quite a lengthy one. And the other one with the arrest of [AL] was also a similar type of thing. It involved someone with a knife as well. So, yeah, I’d say 40 minutes of that incident as well. 40 minutes to an hour.

    And so when we’re talking about these interactions that you’ve had with [the appellant], did you have conversations with him or did you just observe him? ---- I was the arresting member for [the appellant] at one of those and then the other ones were just conversations and observations.[3]

17. Detective Unwin said that the appellant had light facial hair and a distinctive sort of fluffy hair style. He described the visibility in the area where he observed the male person as “quite good even though it was night time”. He stated that this was the result of the combination of the streetlights, the headlights and emergency beacons of his vehicle, and the headlights of other police vehicles. In cross examination, Detective Unwin did accept that there may have been shadows on people in front of his car during the pursuit. In cross examination, Detective Unwin agreed that the memorable features of the person holding the milk crate were that they were wearing black shorts, not wearing a T-shirt and had fluffy hair. Detective Unwin agreed that after the appellant had been arrested on the morning of 3 September 2021 he was able to observe that the appellant had light facial hair, was wearing black shorts and was not wearing a shirt.

18. While being pursued by police vehicles in the First Incident, the stolen truck did laps of the Community and continued to attempt to ram police vehicles. The watch commander, who was the pursuit controller, directed the police pursuit to disengage and moved into a cordon position around the Community. Detective Unwin stated that he subsequently, and from his position in the cordon, saw the appellant in the vicinity of the stolen truck and talking to AL. Detective Unwin stated that he also observed the appellant yelling at police cars, but it was unclear from Detective Unwin’s evidence whether this was said to have occurred during the First Incident or the Second Incident.

19. Detective Unwin was asked whether he had seen other people “outside throughout the pursuit”. Detective Unwin replied:

    Yeah, there was other members of the [appellant’s] family. It was mostly females. At the conclusion I saw [RA] outside House 19, he was just inside the gate of the premises. But he was the only other male apart from [the appellant] and [AL] that came out from that house as far as I saw.[4]

20. In cross examination, Detective Unwin clarified this answer by saying that he was referring to people that he saw after the arrest of the appellant and AL.

21. After the appellant was arrested on the morning of 3 September 2021, Detective Unwin agreed that he had asked the appellant his name, and that he had momentarily forgotten the appellant’s name.

    The evidence of Officer James Blyth

22. Officer Blyth attended the Knuckey Community in the early hours of 3 September 2021 responding to an unrelated complaint. He was in company with Senior Constable Easton in a marked police vehicle. As they were leaving the Community they received a radio message about the theft of a truck from the Puma Service Station in Berrimah. As they left the Community, they saw a truck matching the description of the stolen truck driving past them. This was the truck driven by AL. As I understand it, the stolen truck did not enter the Community at that time. Officer Blyth and Senior Constable Easton pursued the stolen truck. They were subsequently joined in that pursuit by Detective Unwin in the unmarked police vehicle.

23. After a period of time, the stolen truck entered the Knuckey Community and the First Incident took place. After the First Incident occurred, Officer Blyth and Senior Constable Easton continued in the pursuit of the stolen truck until it returned to the Community and the Second Incident occurred. Officer Blyth estimated that the entire period from when he was first informed over the radio of the robbery until AL was arrested was at least 50 minutes.

24. Officer Blyth stated that he did not see anything in relation to a milk crate and Detective Unwin’s vehicle. The following question and answer is recorded relating to Officer Blyth’s observation of other people in the area of the pursuit within the Knuckey Community:

    And when you were within Knuckey’s Camp on both occasions, or I think potentially three occasions, but at least on the two occasions after the pursuit had started, did you see other people in the camp?---- I saw people by House 19, but I couldn’t tell you who they were because I wasn’t really focused on them – like, just as you drove past, I saw people there.[5]

25. Officer Blyth testified that he was aware on the morning of 3 September 2021 that two people were arrested after the stolen truck was stopped after the Second Incident. He was aware that one of those arrested was AL, but he did not know the identity of the second person until he was back at the police station.

26. In cross examination, Officer Blyth accepted that the people that he saw outside House 19 could have included men.

    Other police evidence

27. Senior Constable Peter Chapman gave evidence that he was the driver of one of the police vehicles involved in the pursuit of the stolen truck on 3 September 2021. He completed a statutory declaration of his involvement in these events, which was tendered in the Youth Justice Court by consent. It is clear that Senior Constable Chapman did not see the person who threw the milk crate at Detective Unwin’s vehicle. Senior Constable Chapman also gave brief evidence in which he stated that he had not recognised the appellant as being present during the events until such time as the appellant was arrested for attempting to interfere in the arrest of AL. He recollected that when the appellant was arrested, the appellant was wearing a pair of shorts.

1. Senior Constable Dale Mottar-Barnard was with Senior Constable Chapman during the events of 3 September 2021. The only evidence that he was able to give relating to the appellant was that the appellant had attempted to interfere with him as he was arresting AL. In oral evidence, Senior Constable Mottar-Barnard said that he had identified the appellant as standing with his mother outside a house within the Knuckey Community during the Second Incident, that is, the second time that the stolen truck had entered the Community. Senior Constable Mottar-Barnard gave evidence that he had had extensive dealings with the appellant prior to 3 September 2021.

2. Recordings from body worn video from a number of police officers were tendered at the hearing in the Youth Justice Court. All of the body worn video recordings related to the Second Incident and, in particular, the arrest of AL and the appellant.

   No case for the appellant

3. The appellant did not give evidence, or call any evidence, in the proceedings in the Youth Justice Court.

   The primary Judge’s decision

4. As I have already observed, after hearing submissions at the end of the case, the primary Judge reserved her decision. She delivered her decision, with written reasons, on 8 July 2022. It is necessary to set out at some length the findings of the primary Judge concerning identification of the appellant and her reasons:

   [8]     Sergeant Mottar-Barnard gave oral evidence, and his statement was also tendered. He said that he saw [the appellant] the second time the truck drove into the community – he and his mother Patricia were out the front of a house. He said he drove past them 3 or 4 times during the pursuit around the community and they were standing on the road out the front of houses numbered either 21 or 19 in the cul-de-sac and were yelling. He described this as angry motions to police but also recalled that Patricia was yelling to [AL] to hand himself over to police.

   [9]     He recognised [the appellant] because he had had multiple dealings with him. He described him as being a distinctive figure being tall and quite slim and that he has instant recognition of him, he could “pick him from a crowd”. He was in no doubt that the person he saw was [the appellant]. He had an unobstructed view of [the appellant] and Patricia because of his lights and he had his window down. [The appellant’s] face was not covered.

   ………..

   [12]   Senior Constable Blyth gave evidence that he was earlier at Knuckey’s Community that night having attended to a “domestic at House 19”. No one came out so he was leaving the location with his partner when he received a call about a truck being stolen from the Puma Station at Berrimah. He saw the truck as they got to the gate and followed it onto the Stuart Highway joining three other vehicles in pursuit (Unwin, Robson and Motter-Barnard). He did not see the milk crate thrown at Unwin’s vehicle but heard the report of that on the police radio.

   [13] Senior Constable Blyth agreed in cross examination that it was possible that some people at House 19 could have been men. It is not clear from his evidence whether his vehicle had previously exited Knuckey’s Community and returned to the vicinity when hearing the of (sic) the pursuit around it and then followed the truck as it exited or whether he was present inside the community during the first pursuit. It may be inferred that if his vehicle had been inside Knuckey’s Community during the first pursuit, he would have referred to this in his evidence. The concession that there may have been other men present is not of great assistance because the timeframe for his observation is unclear.

   [14] Senior Constable Chapman was stationed outside the community during both pursuits around it but had pursued the truck when he had left the community. He entered after the truck had been stopped. He saw [the appellant] attempt to interfere with the arrest of the male on the ground and saw him taken into custody. He confirmed in his evidence that at the point of arrest [the appellant] was wearing shorts and no shirt. He was not certain of footwear….Like other officers he knew [the appellant] during his work with the Trident team over several years or more.

   ……….

   [16] Detective Unwin gave evidence that he joined the pursuit after hearing a broadcast that the vehicle had entered the Knuckey’s Community, and as he was close by he went straight there and entered the pursuit as the secondary vehicle but as the truck was actively trying to ram both himself and the other police vehicle he ended up becoming the primary pursuit vehicle.

   [17]   He said he saw [the appellant] throw a grey milk crate at his vehicle which impacted it. When he saw [the appellant], he was holding the milk crate and was dressed wearing black shorts, no shirt and no shoes. Detective Unwin described [the appellant] as having “light facial hair and you know – a distinctive sort of fluffy hairstyle”. His vehicle was pointed directed (sic) at [the appellant] when he saw him with the crate. There was nothing between his vehicle and [the appellant] who was initially about 25 m away but at the time the crate was thrown he was approximately 12 – 15 m away. He said the crate was a grey milk crate with plastic mesh sides. He saw [the appellant] had it in his hand and go to throw it. He did not see it hit the car but heard the impact of the crate on the front of his car.

   [18]   Detective Unwin said he was outside the front of the house between 19 and 20 when he first saw [the appellant]. At the time the crate was thrown, his vehicle was pointed directly at him with normal lights and emergency beacons of. Importantly, he said there were other people around but where [the appellant] was, there was no one else. Detective Unwin estimated that at the time his car was hit by the crate he was only travelling at about 10 km/hr. He said that during the pursuit around the community after the crate was thrown, he saw [the appellant] numerous times. He described him as “yelling at police cars and that…”.

   ……….

   [20]   When asked in cross examination if he could be mistaken as to his identification of [the appellant] he said:

   “No, I saw him several times over the night; so, is not only on the basis of knowing his name, but from his description, from the prolonged observation of the goings on there, I was confident that it was him that threw the police – the milk crate. It was the same person that I was putting into the cage after he was arrested for hindering police.”

   [21]   He was asked whether there were other people outside during the pursuit. He said there were other members of the [appellant’s] family, mostly females. At the end of the pursuit he saw [RA] outside House 19 – just inside the gate of the premises and he was the only other mail apart from [the appellant] and [AL] that came out of the house as far as he could see. Mr [RA] was described as being [the appellant’s] grandfather, at least 60 years old and being a short man and a larger build. He remembered that he was wearing a shirt and pants but did not remember the colour. Other than [the appellant] and [RA] he did not see any other men during the incident.

   ……….

   [24] Detective Unwin was asked how it was that he could recognise [the appellant]. He said he there (sic) had probably been a lot of incidents involving [the appellant] but a couple that he remembered were at Karama. The first incident went for about 40 minutes, and he was the arresting member of [the appellant]. On the second occasion [the appellant] was present along with other family and he had reason to speak to [the appellant] and other family present. That incident he estimated was for about 40 minutes to an hour.

   [25] There was a third occasion he remembered when he attended a disturbance at Knuckey’s Camp. These interactions took place about 6 to 10 months prior to the current matter.

5. The primary Judge referred to the provisions of the Evidence (National Uniform Legislation) Act 2011 (NT), noting that when identification evidence was being considered warnings must be given because of the special need for caution that must be applied before accepting such evidence. The primary Judge noted that identification evidence includes recognition evidence, being evidence that the witness was able to identify a person because of past familiarity with them. The primary Judge then stated:

   [31] As has been many times observed, that although recognition of a person may be more reliable than strictly called identification evidence “even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” There is a special need for caution before accepting the evidence of identification, including recognition evidence as such evidence may be unreliable. The circumstances around the identification must therefore require careful examination. Each case turns on the particular circumstances that occurred.

   [32]  There is no suggestion that Detective Unwin was anything other than an honest witness, but it has been submitted that his evidence of identification of [the appellant] as the person who threw the crate cannot be accepted beyond a reasonable doubt. The circumstances of his identification must be considered including, as required by section 165, any factors that may cause it to be unreliable and the weight that may be attributed to it in the particular circumstances in which the identification was made.

   [33]   The observation that [the appellant] was present was made not only at the time the crate was thrown but his presence and involvement during the pursuit was observed by Detective Unwin at other times during the pursuit. Other offices also noted [the appellant’s] presence and what might be described over all as some active involvement as opposed to him being a mere observer.

   [34]   Sergeant Motter-Barnard recognised both [the appellant] and his mother Patricia out the front of the house 19 or 20 during the second pursuit. That is the vicinity from which the crate was thrown, and he described them as yelling. Like Detective Unwin he said he immediately recognised [the appellant] because he had dealt with him in excess of 10 times. He said that [the appellant] has distinctive features which caused him to have instant recognition of him, he could “pick him from a crowd”. He was in no doubt that the person he saw was [the appellant].

   [35]   Sergeant Motter-Barnard’s evidence is of some significance because it supports the view not only that [the appellant] was present, at least during the second pursuit, but also that the conditions (lighting, speed etc) made it possible during both pursuits to identify persons present as Detective Unwin had done during the first pursuit around the community.

   [36]   [The appellant] has distinctive features as described both by Detective Unwin and Sergeant Motter-Barnard, particularly his height and head. No-one else meeting the description has been identified as being present by any witness or is seen on the extensive body worn footage of various offices that has been tendered. There is one other younger man who seems to have appeared after the end of the pursuit, but he is wearing somewhat different clothing (dark T-shirt, shorts and thongs) to that described as being worn by [the appellant] (shorts and no top) by Detective Unwin and he is pushing a baby pram. He briefly speaks with one of the officers after the pursuit has ceased in a calm and polite manner.

   [37]   The speed of the pursuit has some relevance to the reliability of the identification of [the appellant]. The truck and police vehicles were travelling at a slow speed making it easier for someone to be identified rather than would be the case in a high-speed pursuit where an officer’s focus would more likely be substantially on his/her control of the vehicle rather than observing surroundings. Detective Unwin described his observation as having an unobstructed view, with lights, both headlights and beacons on and his windows down. It is noted that nevertheless the truck was trying to ram vehicles which might affect at times in the pursuit and observation of other things happening.

   [38]   Detective Unwin’s ability to describe the milk crate in detail supports his evidence that he had a clear view of [the appellant] when the crate was thrown. If he could see the crate clearly when it was about to be thrown, then his view of the person throwing it would also be clear. He was very close to the person throwing the crate, estimating a distance of only 12-15 metres.

   [30]   Detective Unwin made an immediate complaint to Sergeant Robson at the scene that [the appellant] had thrown a crate at his vehicle.

   [40]   Detective Unwin was familiar with [the appellant] from previous interactions with him, two at least which the described were over a reasonably lengthy time.. I have been careful to warn myself that the evidence of the multiple interactions that [the appellant] has had with police go only to the issue of identification and not as to any propensity he might have to commit offences.

   [41]   [The appellant’s] intervention at the arrest of [AL] supports a view of and the evidence given as to his engagement and anger during the pursuit.

   ……….

   [43]   It should not be ignored that the identification occurred during what was a dangerous police pursuit with the truck driving in an erratic manner trying to ram various police vehicles, circumstances that might affect the general power of observation of other things happening around that. However, it is noted that Detective Unwin is an officer who has served with the police for over 15 years and whose powers of observation in a stressful situation would be expected to be somewhat greater that a member of the general public. His body worn footage depicts a person who is rather calmly recording the events (which he described as a “risk assessment”) for the benefit of others and the pursuit controller as he conducts the pursuit.

   [44]   As previously observed if it had been a high-speed pursuit greater caution would be applied to the accuracy of observations, however it was not and the speed of Detective Unwin’s vehicle at the relevant time the crate was thrown was estimated at only 10 km/h then speeding up to around 15 km/h as he took the turn.

   [45]   The only evidence of other men present is of [the appellant’s] grandfather and the gentleman who appears to have come out after the pursuit. A significant part of Detective Unwin’s evidence is that there was no-one else close by to [the appellant] when the crate was thrown.

   [46]   In cross examination it was put to Detective Unwin that it was at the point when he was escorting [the appellant] that he came to the conclusion that the person he had seen earlier in the night throwing a crate was [the appellant]. This questioning arose out of a viewing of tendered body worn footage (BWF) in which it was put that Detective Unwin did not appear to know the name of [the appellant] when he is being put into the police van saying “I can’t remember, what’s his name?” Detective Unwin said that what he was doing was confirming his identity and gave an example of how hospitals confirm patients’ identities by asking them that even though they have ID bands attached. This explanation does not entirely sit with the response that has been referred to on the BWF which does seem to question [the appellant’s] identity. However, although the audio is not overly clear, after [the appellant] replies with his first name, a voice that seems to be that of Detective Unwin repeats [the appellant’s] name in full.

   [47]   Even if the officer did not at the time of arrest remember [the appellant’s] name, it does not necessarily diminish the “identification” evidence which is recognition evidence. It is entirely possible, and perhaps not that uncommon that a person can be recognised even when their name has never been known to the person identifying them. Commonly people recognise others from their dealings with them – the person at the checkout in the supermarket, the weekly market stallholder, the doctor’s receptionist amongst others, are all common day-to-day examples of immediate recognition where the name of the person is not and perhaps never is known.

   [48]   Having fully considered all of these matters I am satisfied beyond a reasonable doubt that [the appellant] was the person who through the crate at Detective Unwin’s vehicle. I find him guilty of charges 1 and 2.

   Consideration

6. I have gone to the trouble of setting out so much of the primary Judge’s reasons because, firstly, it is my obligation in considering an appeal ground alleging that verdicts are unsafe and unsatisfactory to conduct a real review of the evidence placed before the primary Judge and the primary Judge’s reasons. Secondly, I propose making some observations about the reasons given by the primary Judge which will be more readily understood if those reasons are set out.

7. The primary Judge, quite properly, considered the extent to which Detective Unwin was previously familiar with the appellant such that Detective Unwin could, as he asserted, identify the appellant as the person who threw the milk crate at his vehicle. At [24] and [25] of her reasons, the primary Judge refers to evidence given by Detective Unwin of three particular prior incidents Detective Unwin was able to recall which were said to involve the appellant. Based upon the evidence of Detective Unwin, the primary Judge noted that the first prior incident extended over 40 minutes and involved Detective Unwin arresting the appellant. The second prior incident was estimated to have extended over about 40 minutes to an hour. The third prior incident simply involved a disturbance at Knuckey’s Camp. This evidence led the primary Judge to state, at [40] of her reasons, that Detective Unwin’s previous dealings with the appellant “were over a reasonably lengthy time period”. I do not think this finding was reasonably open to the primary Judge. Unfortunately, Detective Unwin was not closely questioned in examination in chief about the extent of his dealings with the appellant during those prior incidents, or as to other relevant circumstances which may have affected the reliability of Detective Unwin’s identification of the appellant during those prior incidents. It may be safely inferred that the person arrested by Detective Unwin during the first of those prior incidents was the appellant, but even so the primary Judge was not provided with information as to the extent and nature of Detective Unwin’s dealings with the appellant on that occasion.

8. At [33] of her reasons, the primary Judge referred to observations made by both Detective Unwin and other police officers in which they identified the appellant as being present during “the pursuit”. It is important to understand that Detective Unwin did not purport to identify the appellant as being present during the First Incident in the Knuckey Community except when he purported to identify the appellant as the person who threw the milk crate. The other identifications of the appellant all identified him as being present during the Second Incident in the Knuckey Community. The evidence does not permit me to determine what period of time elapsed between Detective Unwin’s purported identification of the appellant as the person who threw the milk crate during the First Incident and the subsequent identifications of the appellant as being present during the Second Incident in the Knuckey Community. This is a problem for the prosecution to the extent that they rely upon the appellant’s presence during the Second Incident as circumstantial evidence supporting the identification made by Detective Unwin as the person who threw the milk crate during the First Incident. The greater the period of time which elapsed between those events, the less weight can reasonably be given to that circumstance in supporting the evidence of Detective Unwin. The prosecution held the onus of proof of the appellant’s identity as the person who committed the offences, so that any uncertainty about that period of time can only work against the prosecution.

1. At [36] of her reasons the primary Judge states that both Detective Unwin and Sergeant Motter-Barnard described the appellant as having distinctive features, particularly “his height and hair”. In fact, Detective Unwin referred to the appellant’s hair as a distinctive feature, but Sergeant Motter-Bernard did not. Conversely, Sergeant Motter-Bernard referred to the appellant’s height as a distinctive feature, but Detective Unwin did not.

2. The fact that Detective Unwin was able to describe the milk crate that was thrown at his vehicle (primary Judge’s reasons at [38]) is capable of supporting the proposition that the lighting in the area where this occurred was sufficient to allow him to make that observation. On the other hand, Detective Unwin’s ability to describe the crate “in detail” also suggests that his focus during the critical seconds when his vehicle’s lights traversed the offender was not solely on the appearance of the offender.

3. Having viewed the body worn video, it does not assist in identifying the appellant as the person who threw the crate at Detective Unwin’s vehicle during the First Incident. This is not surprising, as the body worn video was not activated until after the conclusion of the First Incident.

4. At [13] of her reasons, the primary Judge discounts the evidence given by Senior Constable Blyth that there may have been men outside House 19 at some point during these events. The prosecution sought to bolster its case by adducing evidence intended to suggest that there was only one young male who fitted the appellant’s physical description seen at the scene of the First and Second Incidents at the Knuckey Community on the morning of 3 September 2021. The primary Judge discounted Senior Constable Blyth’s evidence because it was not clear from his evidence whether he was referring to observations made during the First Incident or the Second Incident. With respect, this was not a reason to discount his testimony. Any difficulty arising from a lack of clarity in Senior Constable Blyth’s evidence was a problem for the prosecution, not the defence. The proposition which the prosecution sought to establish could only be weakened if he could not be established by the prosecutor that there were no other males present, and particularly young males, at the time of the First Incident.

5. There can be no real doubt that Detective Unwin honestly believed that the person who threw the milk crate at his vehicle during the First Incident was the appellant. Shortly after this incident, Detective Unwin told other police that the appellant had thrown a milk crate at his vehicle. This does not bolster Detective Unwin’s identification, but merely confirms that Detective Unwin formed the belief at the time that the milk crate was thrown at his car that the appellant was the person who threw it.

6. It is accepted that Detective Unwin was an honest witness. It is also clear that he was personally confident about his identification of the appellant. The level of confidence of a witness in their identification is not an unfailing indicator of the reliability of the identification.

7. While there is circumstantial evidence which, to some extent, supports the identification of the appellant by Detective Unwin, that evidence has its limitations. The undeniable fact that the appellant was present in the Knuckey Community during the Second Incident is circumstantial evidence supporting Detective Unwin’s identification of the appellant in the First Incident. The weight to be given to that circumstance is tempered by the lack of clarity regarding the time which elapsed between Detective Unwin’s identification of the appellant in the First Incident and observations made of the appellant’s presence during the Second Incident. The fact that only a small number of males were seen in the vicinity of the Second Incident, and no-one physically resembling the appellant, has little weight in supporting Detective Unwin’s identification of the appellant in circumstances where there is evidence that other males may have been present during the First Incident and the evidence does not rule out the reasonable possibility that one or more of those males may have borne a resemblance to the appellant.

8. At the end of the day, the identification of the appellant as the person who threw the milk crate depends on the reliability of the identification made by Detective Unwin. That identification was the result of a glimpse of the offender in the lights of Detective Unwin’s police vehicle which lasted for a couple of seconds. At the time, Detective Unwin was driving a police vehicle in pursuit of a stolen truck which was attempting to ram pursuing police vehicles, albeit that Detective Unwin’s vehicle was travelling at a low speed at the time he saw the offender. In addition, Detective Unwin had responsibility for communicating, by way of a risk assessment, a running commentary on the pursuit by radio to the pursuit controller. The dangers involved in an identification in those circumstances are obvious. Additionally, the evidence regarding Detective Unwin’s prior interactions with the appellant was not cogent.

9. There is certainly a great deal of suspicion raised by the evidence that the appellant was the offender, but I am satisfied that no reasonable tribunal of fact could have been satisfied beyond reasonable doubt on the evidence that the appellant was the offender. Ground 1 is upheld and the convictions imposed by the primary Judge are set aside.

   The other grounds of appeal

10. Because of the conclusion that I have reached on Ground 1, it is unnecessary to consider Grounds 2 and 3.

    Conclusion

11. The appeal is upheld and the convictions recorded by the primary Judge are set aside. Verdicts of not guilty are substituted.

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[1](1994) 181 CLR 487.

[2]Transcript of Proceedings, Police v TA (Northern Territory of Australia Local Court,

22126887, 22126880, Judge Oliver, 1 March 2022) (Transcript) 31.

[3]Transcript 20.

[4]Transcript 20.

[5]Transcript 36.