Tate (a pseudonym) v The King
[2023] VSCA 249
•19 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0130 |
| LEONARD TATE (a pseudonym)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of prejudice in the respondent’s trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
---
| JUDGES: | PRIEST and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 October 2023 |
| DATE OF JUDGMENT: | 19 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 249 |
| JUDGMENT APPEALED FROM: | DPP v [Tate] (Unreported, County Court of Victoria, 14 July 2023, Judge Gwynn) |
---
CRIMINAL LAW – Interlocutory appeal – Recklessly exposing emergency worker to risk by driving, reckless conduct endangering serious injury and associated charges – Identification evidence by police officer – Whether probative value of evidence outweighed by prejudicial effect – Whether prejudice capable of amelioration by directions – Leave to appeal against interlocutory decision refused.
---
| Counsel | ||
| Applicant | Mr A Malik | |
| Respondent | Ms S Borg | |
| Solicitors | ||
| Applicant | James Dowsley & Associates | |
| Respondent | Ms A Hogan, Solicitor for Public Prosecutions | |
PRIEST JA
TAYLOR JA:
Introduction
The applicant faces trial in the County Court on an indictment charging him with theft (two charges – charges 1 and 2); theft of a motor vehicle (one charge – charges 3); recklessly exposing an emergency worker to risk by driving (one charge – charge 4); recklessly causing injury (one charge – charge 5); reckless conduct endangering serious injury (one charge – charge 6); and handling stolen goods (two charges – charges 7 and 8).
In relation to charges 4, 5 and 6, the prosecution seeks to rely on the evidence of First Constable Sean Hendricks (for convenience, ‘Hendricks’) identifying the applicant as the driver of a Jeep Grand Cherokee motor vehicle (‘the Jeep’) at about 4.14 am on 27 July 2022 (‘the identification evidence’).
In pre-trial submissions made to a judge of the County Court, the applicant sought the exclusion of the identification evidence on two bases. First, he contended that the identification evidence was picture identification evidence within the meaning of s 115 of the Evidence Act 2008 (‘the Act’), and on that account inadmissible. Secondly (and in the alternative), the applicant contended that the identification evidence should be excluded under s 137 of the Act, since its probative value was outweighed by the danger of unfair prejudice to the applicant.
On 14 July 2023, the judge rejected both contentions advanced by the applicant and ruled that the identification evidence was admissible in the applicant’s forthcoming trial (‘the ruling’ or ‘the interlocutory decision’).
Pursuant to certification of the judge given that same day under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), the applicant seeks leave to appeal against the interlocutory decision on a single ground, formulated as follows:
The decision of the learned trial judge to admit visual identification evidence was not reasonably open, contrary to s137 of the Evidence Act 2008.
Particulars:
(a) The danger of unfair prejudice to the accused outweighed its probative value.
(b) The danger of unfair prejudice cannot be sufficiently ameliorated by directions.
As the terms of the proposed ground of appeal suggest, the applicant’s challenge to the ruling is limited to the judge’s failure to exclude the identification evidence under s 137 of the Act.
In our view, the applicant has failed to demonstrate that the interlocutory decision is attended by error. Leave to appeal must therefore be refused. Our reasons follow.
Factual background
When summarising the relevant evidence for the purposes of the ruling, the judge relied principally (although not exclusively) on a statement made by Hendricks, dated 2 August 2022. For the purposes of these reasons, we have largely drawn on the judge’s description of the facts.
On 4 March 2022, Hendricks was working with the Victoria Police Frontline Tactical Unit. With other police, he went to premises in Seaford in an endeavour to find a female, Maggie Lowater, who was subject to an outstanding arrest warrant. On arriving at the Seaford premises, Hendricks and the other police were met by Daryl Lowater, who answered the door.
Hendricks noticed another male standing behind Daryl Lowater and asked that person his name. That male, who was not wearing a shirt — it was a hot day — responded ‘Leonard Tate’.[2] Hendricks then asked Tate if he had any ‘outstanding matters’. Tate replied something to the effect of ‘nah, I just got released’. Hendricks remembers thinking that Tate must be a ‘proper crook’ if he had just got out of gaol.
[2]We have used a pseudonym in place of the name that the male gave Hendricks (which was the applicant’s real name).
Hendricks then checked his IRIS device — an electronic device issued to police which permits them to check whether a person has a criminal history — and confirmed that Tate was not wanted by police. He also confirmed Tate’s identity by the photo that automatically comes up ‘when you check a person who has previously had their photo taken by police’. Daryl Lowater said that Tate was his son, and Tate said of Lowater, ‘yeah, he’s my dad’. Hendricks thought it ‘a little unusual because they had different surnames’.
A few months later, at around 3.48 am on 27 July 2022, Hendricks and Senior Constable Rebecca Swan (‘Swan’), who were on patrol together in a police divisional van, were given the task over the radio of looking for two males reported to be looking into cars with torches in Aquarius Drive, Courageous Court and Admiral Court, Frankston. No description of the males had been given nor was there any mention of a make of car. Swan was the driver of the police vehicle and Hendricks was the observer. When they drove into Schooner Bay Drive they observed a Jeep parked on the right hand side of the road, facing in their direction, with the engine running and headlights on. Swan parked the divisional van, with its headlights on, ‘nose to nose’ with the Jeep.
Swan and Hendricks observed two males seated in the front of the Jeep. The driver’s side door of the Jeep had been wide open but closed as the two police approached. When Hendricks got out of the divisional van he yelled at the driver to ‘turn the car off’. The driver responded, ‘why?’. Hendricks then yelled, ‘turn the fucking car off’, prompting the driver to respond, ‘I can’t’. As Hendricks then walked towards the Jeep, the driver’s side window was down. Within a metre of the driver, Hendricks said, ‘turn the fucking car off’, but the driver simply stared back at him.
Hendricks claims that he was within ‘touching distance’ of the driver and got a good look at him. As soon as he looked at the driver, he realised that he knew him, but could not think of his name. He described the driver as male, of ‘slightly ethnic’ appearance – ‘maybe Southern European’ – with tanned skin, aged in his late twenties, and with a muscular build. His jaw or chin was ‘defined or pronounced’ and his eyes were ‘dark’. Hendricks noticed the driver was ‘very wide-eyed’ — Hendricks thought the eyes were brown — like he was ‘on alert’. The driver had ‘black eyebrows and black hair’ and was wearing a cap. Hendricks could see the hair between the top of the driver’s ears and the bottom of the cap. It was shaved quite short, possibly a ‘number one’, or even possibly skin. Hendricks also noticed the hair was longer at the back, describing it as ‘possibly a mullet’. It was similar in style to the hair that Hendricks had earlier observed on Tate in March. Hendricks was also able to describe the upper clothing worn by the driver and said that ‘he sounded Australian’. In his statement, Hendricks said: ‘As soon as I looked at the male, I realised I knew him. The feeling was instant, it sent a wave of adrenaline through my body. I couldn’t think of his name straight away, but I knew I recognised him’.
After Hendricks opened the driver’s side door of the Jeep and placed his hands on the driver in an attempt to remove him, the passenger yelled, ‘let’s go, drive, drive, drive’. The driver then reversed the Jeep, before accelerating away. Hendricks was dragged by the motion of the reversing vehicle but then managed to dive out of its path, hitting the right side of his body and head on the asphalt. The Jeep drove past him before reversing into a driveway, colliding with a parked vehicle. It then drove away.
Hendricks returned to the police vehicle and tried to remember the name of the driver. He remembered that he had seen the driver at a house in Seaford earlier in the year in February or March, and that it was a hot day. He also recalled that ‘the dad’s name was Daryl Lowater’. Hendricks stated:
In my head, I worked through how I knew the driver of the Jeep. I remembered that I had been to the house in Seaford where he was present earlier in the year. I remembered that his dad’s name was Daryl Lowater. So I searched Daryl Lowater on the IRIS device and then went through Daryl’s associates. I knew as soon as I saw the driver’s name I would recognise it. Daryl had about 30 associates and I scrolled through them. The name [Leonard Tate] immediately jumped out of me as the name of the person who was driving the Jeep.
The applicant’s submissions to the trial judge
In submissions to the trial judge, counsel for the applicant ‘conceded’ that the identification evidence had ‘substantial probative value’. The focus of counsel’s submissions was that there is a danger of unfair prejudice in admitting the evidence. Counsel submitted that Hendricks’ recollection of meeting Tate on 4 March 2022 is intrinsically linked to Tate’s answer to the question as to whether or not he had any outstanding matters being — ‘nah, I just got out of gaol’ — and Hendricks’ thinking as a result that Tate must be a ‘proper crook’. Any other reference points, counsel argued, are secondary, as it must be these aspects of their interaction that grabbed Hendricks’ attention.
Further, counsel argued, having regard to Hendricks’ limited opportunity to observe the driver of the Jeep on 27 July 2022, he purported to recognise Daryl Lowater’s son as the offender knowing the applicant had a criminal history (which he then confirmed by viewing a picture of Leonard Tate). In combination, all these factors may have contaminated his identification. Hendricks’ evidence cannot properly be tested without revealing to the jury all of the matters that might have influenced his purported identification. Challenging the identification evidence before the jury, and advancing the theory of contamination, will necessarily require the introduction of the applicant’s prior criminal history, an unfair prejudice which is incurable by direction. One aspect of the unfair prejudice is that a jury may impermissibly reason that a person with a prior criminal record is more likely to have committed the charged offences. Moreover, so counsel argued, it would be artificial for the prosecution simply not to rely on or refer to Leonard Tate’s reference to gaol, or Constable Hendricks’ viewing of Tate’s prior criminal history in March of 2022. No judicial direction, counsel submitted, could cure the high level of prejudice.
The ruling
In refusing to exclude the identification evidence under s 137 of the Act, after referring to relevant authorities,[3] the judge said (among other things):
As referred to earlier, it is conceded that the evidence First Constable Hendricks is able to give as to his identification of [Leonard Tate] on 27 July 2022, and his basis for it, has significant probative value.
…
In this instance the unfair prejudice submitted to outweigh that probative value, such that the identification ought be excluded, is said to arise from questions that may need to be asked of First Constable Hendricks as to his foundation for recognising [Leonard Tate] as the driver of the Jeep Cherokee on 27 July 2022, being in [Leonard Tate’s] comment on 4 March 2022 that he had only recently got out of gaol and to First Constable Hendricks accessing his prior history on 4 March 2022 leading him to conclude that [Leonard Tate] was a ‘proper crook’.
Given the Crown do not propose to lead that evidence, and my findings that the picture of [Leonard Tate] on the IRIS device is not, in effect, relevant to the identification, the ‘Rogues Gallery’ type risks are limited, if not eliminated. It would be a matter for defence as to whether or not to cross-examine on that point should the evidence be ruled admissible. Arguably, the less of an ‘anchor’ for First Constable Hendricks memory of 4 March 2022 the greater the furtive [scil, fertile?] ground for cross-examination and submission as to the failings of this evidence.
Whilst the reference to gaol and prior criminal history were part of First Constable Hendricks’ observations 4 March 2022, so was the approximate timeframe of the attendance at the Lowater residence, that it was the Lowater residence, its general location, the fact that it was a hot day, the appearance of [Leonard Tate] to have a mullet style haircut and, most importantly, the father-son relationship of Daryl Lowater to [Leonard Tate] which was the pivotal part of First Constable Hendricks’ identification of the offender on 27 July 2022 as ‘Daryl Lowater’s son’. This evidence of father-son relationship does not, in and of itself, reveal any criminal association.
I do accept that identification evidence is well known to have its ‘seductive quality’. If admitted, this can be addressed via judicial warning and direction as to the failings inherent in such evidence. Concerns raised in my view are not incurable by direction.
In this case, the probative value of the evidence capable of being given by First Constable Hendricks does outweigh the argued danger of unfair prejudice to the applicant and I do not propose to exclude the evidence.
[3]The judge referred to IMM v The Queen (2016) 257 CLR 300 (‘IMM’) and R v Dickman (2017) 261 CLR 601 (‘Dickman’).
The applicant’s submissions in this Court
In this Court, counsel for the applicant submitted that the trial judge erred in minimising the importance of Hendricks’ knowledge of the applicant’s criminal history, and that he had previously been in gaol, as reasons to remember him when Hendricks purported to identify the applicant as the driver of the Jeep. The judge thereby underestimated the prejudicial value of the evidence. That the applicant had recently been released from gaol, and that he had a significant criminal history which rendered him a ‘proper crook’, provided the anchors to Hendricks’ memory. Other matters — location of address, appearance of the applicant and relationship between the applicant and Daryl Lowater — were routine matters that would not have given Hendricks cause to subsequently remember the applicant.
Counsel for the applicant submitted that, in challenging the integrity of the identification evidence, the limitations Hendricks faced in making observations of the driver of the Jeep will be important. Testing the weakness of the identification process before the jury — so as to make good the proposition that this information coloured or contaminated the identification and eroded its integrity and reliability — will inevitably involve revealing to the jury that Hendricks was aware that the applicant was someone with a significant prior criminal history. Relying on Wilson,[4] counsel submitted that it is difficult to see how the identification evidence can effectively be tested without exposing to the jury the full import of the information which might be said to have influenced and weakened Hendricks’ identification. That involves placing before the jury highly prejudicial material that would not ordinarily be admissible.
[4]Wilson (a pseudonym) v The King [2022] VSCA 261, [114] (McLeish and Kennedy JJA and Kidd AJA).
Finally, counsel for the applicant submitted that it is no answer to suggest that the defence limit cross-examination to matters such as location, appearance and relationship. To do so, counsel submitted, ignores the argument that, by recognising the driver of the Jeep as ‘Lowater’s son’, Hendricks was influenced in that identification by his knowledge of the applicant as a ‘proper crook’. It also ignores the risk of the jury attaching undue weight to Hendricks’ identification from a position of being a professional investigator and having no doubt as to the correctness of his identification.
Discussion
In our view, the applicant’s proposed ground of appeal is devoid of substance.
Counsel for the applicant conceded, both before the trial judge and before this Court, that the identification evidence had ‘substantial probative value’.[5] That concession to a significant extent tells against the applicant’s challenge to the identification evidence, since, when weighing the probative value of the evidence against the danger of unfair prejudice for the purposes of the evaluative process under s 137, the identification evidence must be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.[6] In context, the concession that the identification evidence has substantial probative value is an acknowledgment that Hendricks’ evidence is both credible and reliable.
[5]Cf Dickman, 615 [44] (Kiefel CJ, Bell, Keane, Nettle and Edelman J).
[6]See IMM, 314–5 [47]–[52] (French CJ, Kiefel, Bell and Keane JJ).
In Dickman when dealing with the application of s 137 of the Act to identification evidence, the Court observed that unfair prejudice may be occasioned because the evidence has some quality which is thought to give it more weight in the jury’s assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence.[7]
[7]Dickman, 616 [48].
As we have mentioned, the applicant’s counsel in the present case submitted that the defence will be unable to challenge Hedricks’ evidence effectively without revealing that the applicant has prior convictions and has been imprisoned, thereby exposing his bad character and enlivening a risk of improper propensity reasoning. We do not accept that this is so. Indeed, we consider that, in the hands of a moderately skilled advocate, any frailties attending Hendricks’ evidence are capable of being exploited without revealing the full nature and extent of the applicant’s criminal history. Plainly, defence counsel will need to make a considered forensic decision as to the extent to which he (or she) seeks to explore any influence that Hendricks’ knowledge of the applicant’s criminal history might have influenced his evidence of identification. But in our view, Hendricks’ evidence of identification is capable of effective challenge without any need to reveal that the applicant had previously been in custody.
Moreover, as did the trial judge, we consider that any potential prejudice engendered by the evidence is capable of adequate amelioration by judicial direction. The potential prejudice identified in this case is not of such an order that it is likely to overwhelm the jury’s impartial consideration of the evidence. It must be accepted that the jury will follow any direction given by the judge designed to mitigate the prejudice (if any) that may arise.[8]
[8]Gilbert v The Queen (2000) 201 CLR 414, 425 [31] (Gleeson CJ); Huynh v The Queen [2020] VSCA 222, [44]; Qadir (a pseudonym) v The King [2023] VSCA 155 [35].
Conclusion
For these reasons, leave to appeal against the interlocutory decision must be refused.
---
0
8
0