Tims v Police

Case [2008] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

TIMS v POLICE

[2008] SASC 141

Judgment of The Honourable Justice Gray

26 May 2008

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCONDUCT OF COUNSEL

EVIDENCE - ADMISSIBILITY AND RELEVANCY

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE

Defendant and appellant convicted following a trial before a magistrate of common assault on a person other than a family member - prosecution tendered closed circuit television footage of the incident and called evidence from three eyewitnesses – whether defence counsel was incompetent for not objecting to evidence of eyewitnesses after the defendant expressed concerns about the prosecutor “tuning” the police witnesses – whether Magistrate erred in admitting into evidence the closed circuit television footage from the hotel where the incident occurred – whether Magistrate adequately warned herself of the dangers of relying on identification evidence.

Held, dismissing the appeal:  no risk of miscarriage of justice identified with respect to the conduct of counsel - video footage was relevant and admissible evidence - the quality of the footage goes to the weight that should be given to it - Magistrate did not err in not warning herself in exactly the same terms as she would have warned a jury - Magistrate properly considered the identification of the defendant.

Criminal Law Consolidation Act 1935 (SA) s 20 and s 39; Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA); Magistrates Court Act 1991 (SA) s 42, referred to.
Fox v Percy (2003) 214 CLR 118; R v Hughes (2007) 99 SASR 161; TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 214 ALR 1; Nudd v The Queen (2006) 225 ALR 161 ; Smith v The Queen (2001) 206 CLR 650; R v Maqsud Ali [1966] 1 QB 688; Staehr v Police [2007] SASC 383; Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; R v Dodson [1984] 1 WLR 971; Police v Dorizzi (2002) 84 SASR 403; Carlson v King (1947) 64 WN (NSW) 65; Pettitt v Dunkley (1971) 1 NSWLR 376; R v Keyte (2000) 78 SASR 68; R v R, R & R, LJ [2008] SASC 35; Domican v The Queen (1992) 173 CLR 555; R v Alexander (1980) 145 CLR 395; R v Festa (2001) 208 CLR 593, considered.

TIMS v POLICE
[2008] SASC 141

Magistrates Appeal

GRAY J

  1. This is an appeal against conviction.

    The Trial

  2. The defendant and appellant, Richard Martin Tims, was charged with common assault on a person other than a family member, contrary to the former section 39(1) of the Criminal Law Consolidation Act 1935 (SA).[1]  He was convicted following a trial before a magistrate.

    [1]    By virtue of the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA), the offence of common assault was replaced…

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AGLC
Tims v Police [2008] SASC 141
Case
[2008] SASC 141
Decision Date

CaseChat Overview and Summary

Tims was convicted of common assault following a trial before a magistrate. The appeal against the conviction was dismissed by the District Court of New South Wales. The defendant was convicted on the basis of closed circuit television footage and eyewitness testimony from three individuals. The defendant argued that his legal counsel was incompetent for not objecting to the evidence of the eyewitnesses, and that the magistrate erred in admitting the CCTV footage into evidence. Additionally, the defendant argued that the magistrate did not adequately warn herself of the dangers of relying on identification evidence.

The court considered whether the defendant's counsel was incompetent for not objecting to the evidence of the eyewitnesses after the defendant expressed concerns about the prosecutor "tuning" the police witnesses. The court found that there was no risk of miscarriage of justice identified with respect to the conduct of counsel. The court also considered whether the magistrate erred in admitting into evidence the CCTV footage from the hotel where the incident occurred. The court held that the video footage was relevant and admissible evidence, and the quality of the footage went to the weight that should be given to it. Finally, the court considered whether the magistrate adequately warned herself of the dangers of relying on identification evidence. The court found that the magistrate did not err in not warning herself in exactly the same terms as she would have warned a jury. The magistrate properly considered the identification of the defendant.

The appeal was dismissed. The court held that no risk of miscarriage of justice was identified with respect to the conduct of counsel. The video footage was relevant and admissible evidence, and the quality of the footage went to the weight that should be given to it. The magistrate did not err in not warning herself in exactly the same terms as she would have warned a jury, and the magistrate properly considered the identification of the defendant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Magistrate did not err in not warning herself in exactly the same terms as she would have warned a jury.Reliability of Identification Evidence In criminal trials where identification evidence is admitted before a jury, the following principles, provided by the High Court in Domican,[30] guide the warning that the Judge will need to give to the jury:[W]here evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.[30] Domican v The Queen (1992) 173 CLR 555 at 561-562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (footnotes omitted). In the present case, the Magistrate, in her reasons for judgment, gave a detailed account of the evidence in the case. She highlighted that the identification evidence was the central factor in the case. She indicated that she was: [A]lert to the warnings with respect to identification evidence and the errors which can be made particularly in circumstances where an incident has occurred in a very short period of time and where there is a good deal of movement, excitement and noise.The Magistrate gave careful consideration to the evidence of Messrs Green, Marshall and Lowe and the manner in which they gave their evidence, with particular regard paid to the question of the clothing worn by the defendant. The reasons of the Magistrate adequately display that she was aware of the dangers involved in relying on identification evidence, and no risk of a miscarriage of justice can be inferred from the fact that she did not articulate in her reasons the same warning that would have been given by a judge to a jury. Messrs Green and Marshall, were both familiar with the defendant. They had, as previous attendees at the hotel, observed the defendant working as a security officer on a number of occasions. Their evidence was evidence of recognition. They both described having recognised the defendant by his distinctive appearance. Mr Lowe’s evidence was identification evidence. He identified the defendant from a sheet of photographs shown to him by police.

Decision

Reasons for decision

The police arrived on the scene very soon after the incident. This was confirmed by the security footage.The Magistrates Conclusions The Magistrate summarised the prosecution and defence cases as follows:The prosecution has simply argued that the defendant is identified as having kicked the victim, by three different persons, and the video helps to support what occurred.On the other hand defence argued it was a brawl between drunken patrons. There were a number of people involved. There was no doubt the victim was assaulted but it was by more than one person and the prosecution have not established beyond reasonable doubt the assailant was the defendant. Further, they have noted there was a discrepancy as between the person identified as being the assailant and the clothes which are identified as being worn by the assailant. In each case it is noted that there was a good deal of action. It was dark and there may well have been problems seeing what was going on. The Magistrate reviewed the closed circuit television footage and observed: It is quite clear on the security tape of this incident that the defendant is wearing a black bomber jacket. It is not clear what he was wearing underneath but he has given evidence that the uniform was a blue polo shirt and he had a jacket on top because he was working outside.… [Mr Lowe] did not agree that the defendant went over and pulled someone out of the group and put him to the ground although in closer examination the video seems to show that he did.…The defendant’s evidence is roughly consistent with the security footage. The footage is rather unclear as to exactly what happens once [the complainant] is put to the ground. At about 32.38 232-235 there is a section of the video where the defendant’s leg comes back and goes forward but it is certainly not absolutely clear what he was doing. … [H]aving considered the evidence and having watched the video numerous times I am satisfied beyond reasonable doubt that the defendant did in fact kick [the complainant] once when he was on the ground. It is to be observed that the Magistrate rejected the evidence of Mr Liseno as unreliable: I did not consider him to be an impressive witness. He appeared on my assessment to be surly and self-interested and was not particularly interested in giving direct evidence as to exactly what occurred on the night in any detail. After examining each of the eyewitnesses’ accounts of the assailant’s appearance and dress, the Magistrate concluded:I have carefully considered the evidence of each of the witnesses, in particular with regard to the clothing which was being worn by the assailant. The civilian and prosecution witnesses in my view were very careful in the manner in which they gave their evidence but were confident of what they saw. Whilst I accept witnesses can be confident but still make an error, two of them were familiar with the defendant, all were shocked by what they saw and therefore had good reason to note in their own mind the identity of the assailant. I consider there is a high likelihood that the witnesses observed the assailant was a member of the security personnel and therefore had assumed he had a polo shirt on. I note their evidence is quite clear that the witness was wearing a polo shirt. Even allowing for this having considered the evidence and having watched the video numerous times I am satisfied beyond reasonable doubt that the defendant did in fact kick the victim once when he was on the ground. I am satisfied that this action was unlawful and far in excess of any use of force which was appropriate for the defendant in the carrying out of his duties. Accordingly I am satisfied beyond reasonable doubt that the offence is made out and I find the defendant guilty as charged.The AppealThe Powers of the Court

Ratio Decidendi

Legal Principle Established

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