Wayne Phillip KEANE v SA Police No. SCGRG93/1547 Judgment No. 4292 Number of Pages 8 Criminal Law and Procedure

[1993] SASC 4292

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law and procedure - particular offences - unlawful use of motor vehicle - appellant appealed against conviction by a Magistrate on a charge that he unlawfully drove a motor vehicle without first obtaining the consent of the owner - vehicle removed from the driveway of the house of the owner in the early hours of the morning - son of the owner ran into the street and grappled with a person attempting to re-start the car before he drove off - the son recognised the driver as a man he had previously seen at a nearby railway station - several months later the son caught sight of the same man at a restaurant in the city and called the police who charged him with the of fence - issue of identity the only ground of defence - held that the Magistrate's conclusion that the son's evidence of identity was clear and sufficient to justify a conviction was not tainted by error - observations as to the effect of the defendant filing to give evidence at a summary trial. Criminal Law Consolidation Acts.86a. Domican (1992) 173 CLR 555; Kelleher
(1974) 131 CLR 534; May v O'Sullivan (1955) 92 CLR 654 and Taylor v Hayes
(1990) 53 SASR 282, considered.

HRNG ADELAIDE, 14 September 1993 #DATE 29:11:1993
Counsel for appellant:     Mr G. Lang
Solicitors for appellant:    Aboriginal Legal Rights
   Movement Inc
Counsel for respondent:     Ms M. Panagiotidis
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 PERRY J This is an appeal against a conviction by a Magistrate constituting the Adelaide Magistrates Court on a charge that the appellant on 9 December 1992 at Prospect drove a motor vehicle on a road, namely, King Street, Prospect, without first obtaining the consent of Maria Woodforde, the owner of the vehicle, contrary to s.86a of the Criminal Law Consolidation Act 1935. 2. At the trial, the complainant called only one witness, Steven Rex Woodforde ("Woodforde"), the son of the owner of the vehicle. As well, the complainant tendered the signed statements of two police constables. 3. At the conclusion of the complainant's case, counsel for the appellant submitted that there was no case to answer. Upon the learned Special Magistrate's rejection of that submission, the matter was adjourned to another day. On the resumption of the hearing on that day, the appellant did not give or call any evidence. After hearing submissions, the learned Special Magistrate gave ex tempore reasons for judgment supporting his conviction of the appellant. He thereupon sentenced the appellant to imprisonment for three months, but suspended the sentence upon the appellant entering into a bond to be of good behaviour for two years, with a condition as to performance of community service. 4. The only issue in the case was as to the identification of the appellant as the offender. As to that issue, the complainant relied solely upon the evidence of Woodforde. 5. Woodforde's evidence was that the car in question, a Holden Commodore sedan, was owned by his mother, but that prior to the offence he was the last to use it. When he had finished with it, which was on the evening preceding the offence, he parked it in the driveway of his parents' home. He left the car locked and secured. At about 5 am the next morning, while he still asleep in bed, he was woken up by what he described as the "sound of the car being started constantly, over and over again". 6. He thought it might have been his father moving the car, but as it was earlier than would be likely if that was so, he got up. Looking through the front door he saw the car parked in the street, still with the sound of someone attempting to start it. 7. Thinking that it nonetheless might be his father who was in it, he walked out to the street, and up to the car. He looked through the driver's window only to find that it was not his father who was attempting to start the car. He grabbed the person's arm, but the latter yelled out, and somehow or other got the car started, whereupon he proceeded to drive off down the street, disappearing from sight as he turned into Regency Road. 8. Woodforde then ran inside, raising the alarm. He and his father took off in another car, and drove up and down Regency Road for about 15 minutes, but could not locate the Holden. 9. A little later in the morning, at about 8 am, following a call from the police, Woodforde found the car abandoned in the front yard of a house property in a street near Islington railway station, which was not far from his parents' home. About a quarter of a tank of petrol was missing, sufficient to sustain a journey of about 50 kilometres. He described "mud all over the car". The driver's side door had been forced, and the ignition lock had been interfered with. 10. Woodforde's evidence was that when he went out onto the road and approached the person attempting to make off with the car, he recognised him as a person he had seen on three or four occasions at the Islington railway station while he had been waiting for a train. Those occasions had occurred over a period of about four years. He did not know the name of the person, but had said "hello" to him on those occasions. He informed the police that the person "looked Aboriginal, he was Aboriginal", that he had a bony nose and a "bit of" a moustache, and that he would recognise him again. 11. As to the natural lighting conditions at the time he observed the person in the car, his evidence was that it was "starting to get light, I think". There were street lights on in the street, "so it was pretty light". He said that when he reached the car he was "virtually leaning against the door", and that the driver's side window was open, with the result that he saw him at close quarters. He thought that he had the person under observation in that situation for about three seconds before he drove off. 12. Woodforde neither saw nor heard anything further about the matter until about 11.30 pm on 29 April 1993. On that night, he was working as the manager of a Hungry Jack's restaurant in Rundle Street, Adelaide. He saw a group of people walk into the restaurant, one of whom he recognised as the man who had been in the car. He rang the police. Ten minutes later the police turned up, but by then the person had left the restaurant, although one of his party had remained behind. The police left, proceeding in the direction in which the person had left the restaurant. 13. After the police had gone, the person came back into the restaurant, whereupon Woodforde phoned the police again. This time the police arrived while the person was there, and he pointed him out to the police. There were about ten or twelve people in the restaurant at the time. 14. The police spoke to the person, whom they identified as the appellant. According to the written statement of one of the police officers, Constable Neely, he approached the appellant, and after explaining that he had been "implicated by a witness of having stolen a car", invited him to come outside, which he did. When it was then put to the appellant that a complaint had been made "from a bloke who states you were the one who stole his mother's car some time ago", the appellant said, "No,it wasn't me, you've got the wrong fellow. I don't steal cars". He was then cautioned and arrested on the charge now in question. When asked his current home address, the appellant, pointing to the street, said, "Look around .... this is it". No doubt in consequence of that, the complaint indicates that he is of no fixed place of abode. 15. In the other police statement, Constable Elsworthy stated that he accompanied Constable Neely when he came to the restaurant and arrested the appellant. His statement is confirmatory of the circumstances described in Neely's statement. 16. In his ex tempore reasons for judgment, the learned Special Magistrate, after summarising the evidence of Woodforde and the course of the proceedings before him, went on to say:
    "This case depends entirely, almost, on the evidence of the
    victim's son and it is a case of identity. Therefore, I must
    warn myself about the dangers of acting in identity cases,
    particularly where there is no corroboration of the identity of
    the defendant. In this case, as Mr Ranger, who appeared for the
    prosecution, pointed out, the victim's son was quite clear in
    his evidence of identity. In fact, he was rock solid and wasn't
    shaken in cross- examination. I agree with Mr Ranger's
    submission that the identification in Hungry Jacks was of a type
    of an informal line up, and probably was better than a formal
    line up, because the person seeking to identify the defendant
    did not know the defendant wold have been present in the group
    who entered Hungry Jacks. In a formal line up, I think I can
    take judicial notice of the fact that a person who is attempting
    to identify a person who has committed a crime knows the
    offender is one of the persons in the line up. I should refer to
    the fact that the witness said he only saw the person who was
    driving the car for about three seconds. I must say that's a
    very short time for him to grab the arm of the driver of the
    vehicle, for the driver to scream out at him, then to start the
    car and commence to move the car. I believe he actually observed
    the person driving the vehicle for somewhat longer than three
    seconds. Naturally, I have to take into account it was not
    daylight at the time, there were street lights operating but the
    interior of the car was not lit. I also must take into account
    that the identification was not of a stranger to the victim's
    son, but a person whom he had seen, he says, and that was not
    contradicted, three or four times over the past few years,
    principally at the train station. The person in the vehicle,
    therefore, if I accept Steven's evidence was not unknown to him,
    but was a person whom he had seen in the area." 17. The learned Special Magistrate then went on to observe that the appellant had not given evidence, and that as he put it: "The only matter that I have to support his case that he wasn't the person driving the car is his denial of the offence to Constable Neely." 18. He commented that it was not a denial on oath, and went on to observe: "Therefore I have to compare a denial not on oath with the sworn evidence before the Court by the victim's son." 19. After warning himself against the dangers inherent in identification evidence, he went on to say:
    "The evidence in this matter on identity is quite clear.
     It is clear the defendant was a person who was known to the
    victim's son and there was no contradiction of that fact in
    evidence, nor is there any evidence setting up an alibi. In
    addition, I take into account the further identification in
    Hungry Jacks which I have said was a type of line up but more
    difficult than a line up, because the witness did not know that
    the offender would have been in the group of persons that
    entered Hungry Jacks on the day in question. I was very
    impressed with the victim's son as a witness. The prosecution
    case is not disputed on oath. There is sufficient evidence on
    identity for me to be satisfied beyond reasonable doubt that the
    defendant was, in fact, the person in the car on the morning in
    question, and there can be no doubt that he was the person in
    Hungry Jacks. I therefore find the charge proved beyond
    reasonable doubt." 20. The appellant advances some twelve grounds of appeal. They are as follows:
    "1. The Learned Special Magistrate erred in that he failed,
    to properly or adequately warn himself as to the dangers
    inherent in the identification evidence specific to this
    particular case.
     2. The Learned Special Magistrate erred in implying that he
    could draw any inference from the appellant's perceived
    inability to explain why the witness Stephen Woodforde had
    identified him.
     3. The Learned Special Magistrate erred in placing undue
    emphasis on the fact that the identifying witness "was not
    shaken" in cross examination, and in failing to direct himself
    that even an honest and convicted witness could be mistaken.
     4. The Learned Special Magistrate erred in finding that the
    identification in Hungry Jacks was probably better than a formal
    line up.
     5. The Learned Special Magistrate erred in making reference to
    ten or twelve persons entering Hungry Jacks at the time the
    witness purported to identify the appellant, when the evidence
    of the witness refers to the appellant entering in a group of
    three or four people.
     6. The Learned Special Magistrate erred in placing undue
    emphasis upon the assertion of the identifying witness that he
    had seen the appellant prior to the taking of the car, subject
    of the complaint.
     7. The Learned Special Magistrate erred in stating that, in a
    formal line up a person who is attempting to identify a person
    who has committed a crime knows the offender is one of the
    persons in the line up.
     8. The Learned Special Magistrate erred in extrapolating upon
    the apparently clear evidence of the identifying witness that he
    had the culprit under observation for only three to four
    seconds, and in stating that he believed that the witness had
    observed the culprit for a longer period, without any direct
    support for this belief arising from the evidence.
     9. The Learned Special Magistrate erred in finding that the
    evidence on identify was quite clear.
     10. The Learned Special Magistrate erred in implying that any
    further weight could be ascribed to the prosecution evidence due
    to the fact that the appellant did not adduce evidence of alibi.
     11. The Learned Special Magistrate erred in finding that the
    only matter in support of the appellant's case was his denial of
    the offence to Constable Neely and in any event implying that
    the appellant had some onus to rebut the assertions of the
    identifying witness on oath.
     12. The finding of the Learned Special Magistrate was against
the weight of the evidence." 21. As to ground 1, the obligation upon a trial Judge to warn a jury as to the dangers of convicting on disputed identification evidence was confirmed and emphasised in the recent decision of the High Court in Domican (1992) 173 CLR 555. No doubt in the case of a Magistrate sitting alone, he should give himself or herself the same warning as might be given to a jury. 22. In my opinion, the learned Special Magistrate clearly warned himself adequately as to the dangers inherent in accepting the identification evidence. He expressly said so at two places in his ex tempore reasons. Identification was the only issue in the case, and during the course of his reasons he directed himself to the various matters which might be thought to have thrown doubt upon the reliability of Woodforde's evidence in that respect. 23. It should be noted, however, as was pointed out by Gibbs J, as he then was, in Kelleher (1974) 131 CLR 534, that the requirement for a warning is more apparent in the case of a witness who has identified someone "he did not previously know", and that an appropriate warning should be given to the jury "where the case for the prosecution includes evidence of visual identification by a person previously unfamiliar with the accused ....." (131 CLR at 551). 24. Here, although Woodforde's observations of the person at the railway station whom he thought was the appellant had not been frequent, and were made over a relatively long period of time, the learned Magistrate was entitled to allow as a factor going to the reliability of the evidence of identification the fact that Woodforde recognised the appellant as someone he had seen and spoken to before. This disposes also of ground 6, as in my opinion, not only is it wrong to suggest that the learned Special Magistrate erred in placing "undue emphasis" upon the fact that Woodforde said that he had seen the appellant before, but the learned Special Magistrate was entitled to take that into account positively in assessing the reliability of the witness's evidence. 25. As to ground 2, I do not think that the reference by the learned Special Magistrate to the fact that the appellant "could not explain" why Woodforde had identified him was other than a remark in passing. The making of that comment is no reason to doubt the decision which the learned Special Magistrate reached. 26. Grounds 3, 8 and 9 all relate to the question of the correctness of the assessment by the learned Special Magistrate of Woodforde's evidence of identity. 27. Woodforde was cross-examined at some length. The Magistrate was clearly entitled to conclude from the manner in which Woodforde gave his evidence and from his own observations of the witness, that his evidence was sufficiently reliable to justify a conclusion of guilt. It was not inconsistent with his finding as to the reliability of Woodforde's evidence that he observed that he may well have had the person in the car under observation for a longer period than three to four seconds. It is notoriously difficult for witnesses to offer a reliable estimation of short intervals of time. Grounds 4, 5 and 7 relate to the observation of the appellant in the restaurant. The remark by the learned Special Magistrate that identification in the restaurant "was probably better than a formal line up" was unnecessary in the sense that it was not essential to the evaluation of the reliability of that evidence that any comparison be made between it and an identification parade. Be that as it may, however, I see nothing in the remarks made by the learned Special Magistrate as to this aspect of the matter to suggest that he was doing other than according to the evidence of the identification in the restaurant the weight which he thought, in all the circumstances, it deserved. His reference to ten to twelve persons entering Hungry Jacks at the time was in error, as it was only three or four persons who entered together with the appellant, but bearing in mind that the reasons were given ex tempore, I see nothing to shake one's confidence in the Magistrate's findings by reference to that slip. 28. Grounds 10 and 11 may be considered together. The indication by the learned Special Magistrate that the appellant did not adduce evidence of an alibi does not, when considered in context, amount to an indication that he was taking that fact into account adversely to the appellant. I agree with the observation by Ms Panagiotidis for the respondent in her helpful submissions, when she said that "he simply comments on the matter in the course of reflecting on all of the evidence available to him". I do not consider that the Magistrate's observation that the only matter in support of the appellant's case was his denial of the offence to Constable Neely indicates error. He was entitled to take into account that the defendant had not given evidence before him; see May v O'Sullivan (1955) 92 CLR 654 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ at 658:
    "Unless there is some special statutory provision on the
    subject, a ruling that there is a "case to answer" has no effect
    whatever on the onus of proof, which rests on the prosecution
    from beginning to end. After the prosecution has adduced
    evidence sufficient to support proof of the issue, the defendant
    may or may not call evidence. Whether he does or not, the
    question to be decided in the end by the tribunal is whether, on
    the whole of the evidence before it, it is satisfied beyond
    reasonable doubt that the defendant is guilty. This is a
    question of fact. In deciding this question it may in some cases
    be legitimate, as is pointed out in Wilson v Buttery (1926) SASR
    150 for it to take into account the fact that the defendant has
    not given evidence as a consideration making the inference of

    guilt from the evidence for the prosecution less unsafe than it
    might otherwise possibly appear: cf. Morgan v Babcock and Wilcox
per Isaacs J (1929) 43 CLR 163 at 178." 29. I have no doubt that the Magistrate kept well in mind the overall onus of proof on the complainant, and reached his decision with due regard to that onus. 30. Ground 12, that the finding of the learned Special Magistrate was against the weight of evidence, has not been made out. I have reached the same conclusion as the learned Special Magistrate, after independently reviewing the evidence, while bearing in mind the advantage which the Magistrate had in assessing the reliability of Woodforde's evidence. (See Taylor v Hayes (1990) 53 SASR 282. 31. Before parting with the matter, I should say that, although not made the subject of an express ground of appeal, the Magistrate said when dealing with the recovery of the vehicle: "The vehicle was found later that day near the Islington train station, which is near the defendant's residence at the time." 32. There was no evidence given as to the appellant's place of residence, and it is not clear how the Magistrate came to make that observation. As I have said, the complaint gave the address of the appellant as "no fixed place of abode". 33. However, there is nothing in the reasons to suggest that the Magistrate placed any great reliance, if any, on that observation in accepting Woodforde's evidence of identification. It is that evidence which was central to the case. 34. I have not paused to deal expressly with every argument advanced by Mr Lang in support of the appeal, but after considering everything which he has put, in my opinion, there is no reason to interfere with the conviction. 35. The appeal is dismissed.