Wheeler v Police

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHEELER v POLICE
Judgment of The Honourable Justice Gray
21 April 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Appeal against conviction - appellant found guilty of driving in a manner dangerous to the public, driving without consent of the owner and driving without an appropriate licence - issue at trial and appeal was identity of driver - recognition evidence of police officer only identification evidence - appellant willing to participate in identification parade but no parade conducted - appellant denied driving the vehicle - magistrate accepted police officer's evidence and found that appellant was driver - extension of time sought.
Extension of time granted - consideration of dangers associated with identification evidence - whether obligation to conduct identification parade - consideration of adequacy of the identification evidence - adequacy of reasons.
Held - no error established - no basis to interfere with magistrate's findings of fact - magistrate's findings open on the evidence - appeal dismissed.
Road Traffic Act 1961 (SA) s 46; Criminal Law Consolidation Act 1935 (SA) s 86A; Motor Vehicles Act 1959 (SA) s 74, s 141, referred to.
Domican v The Queen (1991) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; Police v Warren [2000] SASC 285; R v King (1975) 12 SASR 404; Craig v R (1933) 49 CLR 429; R v Deering (1986) 43 SASR 252 ; R v Preston [1961] VR 761; Papps v Police (2000) 77 SASR 210; Sun Alliance Insurance Ltd v Massoud [1989] VR 8, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"recognition evidence"

WHEELER v POLICE
[2005] SASC 156
Magistrates Appeal
GRAY J:
Introduction

This is an appeal against conviction.
Michael David Wheeler, the appellant and defendant, was charged with driving in a manner dangerous to the public,[1] driving a motor vehicle without the consent of the owner[2] and driving without an appropriate licence.[3] On 12 November 2004, following a trial before a magistrate, convictions were recorded on all counts.[4]
[1] Section 46 of the Road Traffic Act 1961
[2] Section 86A of the Criminal Law Consolidation Act 1935
[3] Section 74 of the Motor Vehicles Act 1959
[4] A count a driving without due care was charged in the alternative to the charge of driving in a manner dangerous. It was withdrawn at the time of conviction on the primary charge.
The Prosecution Case
In support of the charge of driving without consent of the owner, the prosecutor tendered an affidavit of Joseph De Innocentis, who deposed that he was the owner of a blue 1989 Ford Telstar sedan which had been stolen from Unley on Tuesday 18 February 2003. He reported his car as stolen. On the following day he received advice from the police that his vehicle had been located. In due course he identified the vehicle.
Senior Constable Jason Charles Epps and Acting Senior Sergeant David John Brazel gave evidence that on 18 February 2003, from about 10.48 pm onwards, they were involved in a high-speed pursuit of a blue Telstar sedan. They had been driving in an unmarked police vehicle when Constable Epps observed the Telstar travelling at a speed that he believed exceeded the speed limit. He accelerated and pulled alongside the Telstar, that had stopped at traffic lights at the intersection of South and Richmond Roads.
Constable Epps observed that the driver was not wearing a seatbelt. Sergeant Brazel wound down the front-passenger window and spoke to the driver. As he did so, Constable Epps leant across, looked at the driver, and recognised him as Michael Wheeler. He based his recognition upon the fact that he had previously seen photographs of Mr Wheeler. Constable Epps acknowledged that prior to the night of the pursuit he had not seen Mr Wheeler in person. However, he said that he had seen numerous photographs of Mr Wheeler, both black and white and colour. These photographs were contained in intelligence packages provided by the police department.
Constable Epps’ evidence included the following:
Q.So prior to this incident are you able to say approximately how many times you would have viewed a photograph of the defendant.
A.Probably in the hundreds of times. Mostly because in my workplaces at times his photograph may have been posted on a billboard.
Q.Are you able to recall how long before this incident you viewed a photograph of the defendant.
A.Yes, it was only a matter of a week or two prior to that in which I was tasked to put together certain paperwork and whilst putting that paperwork together I viewed the photographs of Mr Wheeler.
Q.Prior to this incident had you ever had a viewing of the defendant in the flesh.
A.No, I had never physically met him.
Q.When you first recognised the defendant what did you do.
A.I immediately notified my partner who the person was.
Q.How did you do that.
A.Basically said to him ‘That’s Michael Wheeler’ and asked him to get him to pull over so I could speak with him.
...
Q.Can you recall the street lighting at that time.
A.Yes, South Road is well lit.
Constable Epps informed Sergeant Brazel at the time that he recognised the driver of the Telstar as Michael Wheeler and asked him to instruct the driver to pull over. Sergeant Brazel did so. The lights went green. The driver pulled left onto South Road and the Telstar stopped 50 to 100 metres from the Richmond and South Road intersection. The police vehicle stopped to the rear of the Telstar. Sergeant Brazel alighted and moved towards the stationary Telstar. As he approached, the Telstar drove away. Pursuit then ensued.
During cross-examination Constable Epps gave the following evidence:
Q.What was the driver wearing.
A.I do not recall.
Q.Was the driver wearing any head gear.
A.No, he had no head gear on and his hair was very short – may be number three or number four, cropped hair cut.
…
Q.You only had a quick sort of glance, didn’t you.
A.I was focusing on his head. I was looking into his eyes.
Q.Looking into his eyes.
A.Correct.
Q.What colour were the eyes.
A.Dark.
Q.What colour was the hair.
A.Basically dark black.
Q.That part of Richmond Road is not particularly well lit, is it.
A.I would say that it is well lit.
Q.I suggest to you that Richmond Road to the west of South Road is not a very well lit road.
A.I would disagree strongly.
...
Q.What did the passenger look like.
A.I only got a glancing look at him to say that he was a male maybe late teens, early 20s. I didn’t recognise him.
Q.Whilst you are looking at the driver you would have been able to see the passenger as well.
A.Yes, but the driver was closer and he was in my focus.
Q.So you only had a pretty quick look at the driver, didn’t you.
A.No, it was a number of seconds, enough to gain recognition.
Q.A couple of seconds.
A.Yes, it was the period we spoke to him and then told him to pull over.
Q.Over a few seconds.
A.It wasn’t minutes that’s for sure.
Q.A couple of seconds. You nodded, are you happy with that.
A.That it’s a couple of seconds?
Q.Yes.
A.I didn’t time it. I was happy that it was long enough for me to recognise who the person was and ask him to pull over.
Q.As you told radio communications you believed that the driver was Michael Wheeler.
A.That’s correct.
Q.And like all police they are capable of mistakes, aren’t you, of error.
A.I was quite happy it was Michael Wheeler.
Q.So you are capable of error.
A.I believe everyone is.
Q.And you could be wrong.
A.No, I don’t believe I’m wrong.
Q.So you don’t believe you are wrong.
A.If I had the slightest doubt that I thought I may have been incorrect I would not have submitted a file for this matter to appear in court.
...
Q.In the Telstar. You only had a brief glance.
A.I glanced probably what was a few seconds and given the proximity less than a couple of metres, I was quite certain that it was him.
...
Q.I suggest to you that you made a mistake as to the identity of the person driving the car that day.
A.No. I am 100% certain.
Q.100%.
A.Yes.
Q.Absolutely no room for error.
A.Correct.
There was no issue that the Telstar was driven throughout the pursuit in a manner dangerous to the public. It travelled at high speed. It collided with a roundabout at an intersection, narrowly missing another vehicle. The Telstar went through a red light at another intersection. Having regard to the manner in which the Telstar was being driven, the police terminated the pursuit.
Constable Ernesto Della Sala and Detective Senior Constable Roderick Brian Huppatz gave evidence that some nine days later, on the morning of 27 February 2003, they arrested Mr Wheeler outside the Elizabeth Magistrates Court.
The two officers interviewed Mr Wheeler about the driving incident that had occurred on 18 February 2003. Mr Wheeler denied being the driver of the Telstar and referred to the case as being one of “mistaken identity”. Detective Huppatz asked Mr Wheeler whether he was prepared to participate in a formal identification parade. He said that he was. Mr Wheeler was also asked this question on a further occasion and again he agreed. However, notwithstanding his agreement, an identification parade did not take place.
Constable Epps gave evidence that in the course of his duties as a police officer he was involved from time to time in the compiling of circulars and information relating to persons of interest. A week or two prior to the incident the subject of the charges, he had been asked to put together certain paperwork, and whilst completing that paperwork had viewed photographs of Mr Wheeler. During January and February of 2003, he had placed two colour photographs of Mr Wheeler on a billboard at the office where he worked. A variety of circulars, including photographs of Mr Wheeler, were tendered as exhibits at the trial.
In support of the charge of driving without an appropriate licence, the prosecutor tendered an extract from the entry in the Register of Licences and a certificate pursuant to section 141 of the Motor Vehicles Act 1959 (SA) certifying that Mr Wheeler was not, on 18 February 2003, the holder of any specified class of driver’s licence.
On the unchallenged evidence of Constable Epps and Sergeant Brazel, the vehicle was driven in a manner which was dangerous to the public. The vehicle was stolen. The driver did not have the consent of the owner. If Mr Wheeler was the person driving the vehicle, the charge of driving without an appropriate licence was also established.
Defence Case
The issue at trial was identity. The defence case was that Mr Wheeler was not the driver. Mr Wheeler gave evidence. He denied that he was the driver. He said that he did not commit the offences. He could not say where he was on 18 February 2003 because of the time that had elapsed.
Counsel for Mr Wheeler submitted to the magistrate that Constable Epps may well have honestly believed that the person whom he saw driving the Telstar was Mr Wheeler. However, counsel submitted that it would be dangerous to find the charge proven, given the circumstances under which Constable Epps made the purported identification, as well as other aspects of the case. Those aspects included Mr Wheeler’s immediate protestations of “mistaken identity”, his willingness to participate in an identification parade that was not subsequently held, and the fact (emerging out of cross-examination of Constable Epps) that when the vehicle in question was located it was fingerprinted and also DNA-swabbed. Fingerprints or DNA identifying Mr Wheeler were not located in the Telstar.
The Magistrates Reasons
The magistrate acknowledged the dangers of acting on identification evidence where there was no other evidence that connected an accused with the commission of an offence. In particular, the magistrate observed:
I have considered various of the cases where issues of identification have been discussed in recent times.
I refer to Domican v The Queen (1991) 173 CLR 555 at 561, as per Mason CJ, Dean, Dawson, Toohey, Gaudron and McHugh JJ:
‘The seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue. Whatever the defence and however the case is conducted, where evidence as to identification represents a 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.’
In this matter, as magistrate, I am in effect both judge and jury.
In Festa v The Queen (2001) 208 CLR 593, at 643 Kirby J stated:
‘The strictures about the particular dangers of identification evidence must be obeyed because courts in this country, as elsewhere, have recognised dual features of identification evidence against which special protections are required in criminal trials. This is particularly, but not only, related to trials conducted before juries. The first feature is the propensity of incorrect evidence of identity, even given honestly and with assurance, to involve mistakes leading to serious miscarriages of justice. The second is the tendency for identification to be given special weight, including the mind of the jury. If accepted, such evidence will link the accused to the crime. No other evidence against the accused may then be needed. The link, once established, may be sufficient.’
Other cases to which I have referred include Alexander v The Queen (1981) 145 CLR 395; The Queen v Power (1989) 153 LSJS 186; Robinson v Marsh [1991] SASC 3091; Wayne Phillip Keane v SA Police [1993] SASC 4292 and Police v Dodd [2004] SASC 91.
...
I bear in mind that the onus of proof rests upon the prosecution to satisfy the court beyond reasonable doubt that the accused is the person who was the driver of the vehicle. I bear in mind that the only evidence linking the defendant with the driver of the vehicle is the identification evidence of Epps.
Earlier in his reasons, the magistrate had observed:
Counsel for the accused, Mr Vadasz, has drawn my attention to particular aspects of the evidence given by the two arresting police officers, and has drawn my attention to certain aspects of the record of interview which he submits demonstrate that his client has not been treated fairly. In particular, Mr Vadasz points out that when interviewed his client referred to the case as a case of ‘mistaken identity’. He makes the point that at the first available opportunity his client did not merely deny the offence or refuse to answer questions, but in addition made the positive assertion, the effect of which was that the police must be mistaken. Secondly, Mr Vadasz draws attention to the record of interview wherein Police Officer Huppatz asked the accused whether he was prepared to participate in a formal identification parade. The accused indicated that he was prepared to participate in such an identification line-up. He was asked this question twice, and on both occasions he responded that he was willing to take part in a ‘line-up’.
...
Mr Vadasz therefore puts it that it would be dangerous to convict, given the inherent difficulties associated with the acceptance of identification evidence. He says that it would be particularly dangerous to convict this defendant, given that tests upon the vehicle for fingerprints and DNA did not reveal anything which connected Wheeler with the vehicle. He says that I should bear in mind that his client immediately protested his innocence when confronted by the police. He submits that it is a case where his client indicated his willingness to participate in a police line-up and he suggests that fairness demanded that the defendant should have been placed in a line-up with Police Officer Epps asked to seek to identify him in that context.
However, the magistrate formed a favourable view of Constable Epps as a witness, accepted his evidence and concluded:
Here we have a police officer, whose evidence I accept, that he had seen a number of photographs of Wheeler over several years prior to this incident, and more significantly, that in January and February 2003 that he had compiled an information pack relating to Wheeler and including photographs of Wheeler. I accept and find that the police vehicle driven by Epps pulled alongside a blue Telstar vehicle. I accept that the distance separating Epps from the driver of the was only a few metres. I accept and find that Epps had a clear view of the driver and looked into his eyes. I accept that the time in which this happened was only a few seconds, but I am satisfied that it was long enough for Epps to have made, as he says he did, a reliable identification. I find that, as the police prosecutor put it, he ‘recognised’ that driver as the person Wheeler whose photographs he had seen, and with whose face Epps was very familiar.
It should be noted that the defendant gave evidence. He denied that he was the driver of the vehicle on the night in question. He said that he had no association with that vehicle at all. He could not say where he was or what he was doing on 18 February 2003 but I accept that this is not surprising bearing in mind that the trial took place in July 2004.
I am satisfied beyond reasonable doubt that Michael David Wheeler was the driver of the Ford Telstar vehicle owned by De Innocentis and driven on 18 February 2003 without the consent of De Innocentis the owner of that vehicle, that it was driven in a manner dangerous to the public by Wheeler who was not the holder of an appropriate licence at the time. All charges against this defendant are made out.
The Appeal
Grounds of Appeal
The grounds of appeal were that the magistrate:
-erred in finding beyond reasonable doubt that Mr Wheeler was the driver of the vehicle;
-gave inadequate consideration to the circumstances of the purported identification and failed to direct himself adequately regarding the difficulties inherent in the circumstances of the identification situation at bar;
-placed too great a weight on his favourable view of Constable Epps as a witness;
-placed inadequate weight on the criticisms of the prosecution case put on behalf of Mr Wheeler; and
-gave inadequate weight to Mr Wheeler’s evidence on oath denying that he was the driver.
Extension of Time
Counsel for the defence sought an extension of time. Mr Wheeler was sentenced on 25 November 2004. By letter dated 26 November 2003 Mr Wheeler’s solicitor wrote to the Legal Services Commission seeking funding for the appeal. The Legal Services Commission granted funding by letter dated 7 December 2004. The letter contained a Fees Remission Certificate to enable the filing of the Notice of Appeal. Mr Wheeler was unable to afford the filing fee.

Counsel for the respondent did not object to an extension being granted. In the circumstances, it is appropriate to grant an extension.[5]
[5] Police v Warren [2000] SASC 285
Adequacy of the Magistrates Reasons
During the course of the appeal, discussion took place as to whether the magistrate had adequately explained his reason for the rejection of Mr Wheeler’s evidence. The magistrate’s reasons demonstrate that he preferred the evidence of Constable Epps’ to that of Mr Wheeler. As the magistrate was satisfied beyond reasonable doubt about the accuracy and reliability of Constable Epps’ evidence, it followed that he must have rejected Mr Wheeler’s evidence.
In Papps v Police,[6] following a lengthy review of the authorities, the court concluded that the failure of a magistrate to give adequate reasons for a decision was an error of law. The Court referred with approval[7] to the following statement of Gray J in Sun Alliance Insurance Ltd v Massoud[8]:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:-
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
[6] (2000) 77 SASR 210
[7] Papps v Police (2000) 77 SASR 210 at 219
[8] [1989] VR 8 at 18
Counsel for the respondent submitted that the evidence of Mr Wheeler was simply that he was not the driver and that he had no recollection of where he was on that occasion. The magistrate found Mr Wheeler’s lack of recollection of where he may have been to be understandable. The magistrate had Mr Wheeler’s denial on oath to consider when weighing and assessing the evidence of Constable Epps.
Counsel for Mr Wheeler appeared to suffer no embarrassment or difficulty in presenting his submissions on the appeal and in making the points that it is contended gave rise to reasonable doubt. The court has been able to identify and address the issues of identify without difficulty. In the circumstances there has been no inadequacy in the reasons of the magistrate. The cause for concern that arose in Papps does not arise in the present case.
Dangers associated with the identification evidence
The identification evidence of Constable Epps was of a type that has been described as “recognition evidence”. As early as 1933, Evatt and McTiernan JJ in Craig v R noted that:[9]
An honest witness who says “The prisoner is the man who drove the car,” whilst appearing to affirm a simple, clear and impressive proposition, is really asserting: (1) that he observed the driver, (2) that the observation became impressed upon his mind, (3) that he still retains the original impression, (4) that such impression has not been affected, altered or replaced, by published portraits of the prisoner, and (5) that the resemblance between the original impression and the prisoner is sufficient to base a judgment, not of resemblance, but of identity.
[9] (1933) 49 CLR 429 at 446
In R v King,[10] Hogarth ACJ, Mitchell and Zelling JJ discussed the process of “recognition evidence” and observed:[11]
Recognition constitutes a mental process whereby one person, by observation, is able to establish to his own satisfaction the identity of another person. In doing so he no doubt takes into account the general physical characteristics of the person who he is recognising. But a complete catalogue of these personal characteristics, if supplied to a stranger, would be insufficient to enable that stranger to achieve the same act of recognition. At most he could say that the person at whom he is looking could be the man to be recognised, in that the description fits him. He could not say “it is the man”; and it is evidence of the last category which constitutes recognition; it is that type of evidence of which the cases speak when they refer to evidence of identification. It is that type of evidence which the law requires, in certain circumstances, to be accompanied by a warning to the jury.
[10] (1975) 12 SASR 404
[11] (1975) 12 SASR 404 at 410
In the case of a jury trial, where reliance is placed on identification evidence, a trial judge must adequately direct the jury about the possible unreliabilities of the evidence. The approach to be followed was described in Domican as follows:[12]
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.
[12] Domican v R (1992) 173 CLR 555 at 561-62; see also Festa v R (2001) 208 CLR 394 at [64] (McHugh J)
The present case was heard before a magistrate as the trier of fact. As earlier observed, the magistrate warned himself as to the dangers inherent in accepting the evidence of Constable Epps. The magistrate referred in his reasons to the dangers of convicting on recognition evidence, in particular, the risk of mistake, and the potential for a witness to give evidence honestly and convincingly despite that mistake. He referred to the authorities including Domican and Festa that discuss in depth those dangers and identified factors which might affect the consideration of the identification evidence in the circumstances of the particular case. As Counsel for the respondent pointed out, the magistrate could hardly have been unaware of the difficulties associated with identification evidence for they formed the basis of the defence case.
Identification Parade
Counsel for Mr Wheeler submitted that an identification parade should have been conducted. It was not disputed that Mr Wheeler agreed to take part in such a parade. It was said that this was a matter that should carry considerable weight when considering whether the magistrate was satisfied of guilt beyond reasonable doubt.
It is unnecessary to determine whether the evidence of Constable Epps should have been excluded, as Mr Wheeler made no application for exclusion. However, the failure to conduct a parade is still a relevant matter to be taken into account in determining whether the evidence was adequate to support a conviction beyond reasonable doubt.
Constable Della Sala provided the following explanation for not conducting an identification parade when cross-examined:
Q.    Did you organise a formal identification.
A.    No, I didn’t.
Q.    Any reason why not.
A.I felt it wouldn’t be a fair ID only because the only other witness was a police officer and would have had access to a photograph of Mr Wheeler.
Q.What in the interim period.
A.Yes.
Q.So you thought the identification parade potentially could be contaminated, is that what you’re saying.
A.What I’m saying is it wouldn’t be fair for your client so in fairness to your client we didn’t run one.
Q.Well, it might have been fair if neither police officer could identify him, wouldn’t it. I mean he offered to go in one.
A.Yes, he did.
Q.It might have exonerated him.
A.Well anything’s possible.
Q.That’s the whole idea of the line up to either eliminate a suspect, or identify the suspect.
A.It can work either way I agree.
Q.Exactly so it would hardly be unfair if he was eliminated.
A.Well, that’s – you can say that, yes.
Q.I can. I mean he’s lost that chance, hasn’t he.
A.Well, as I explained to the court under the circumstances I was looking at what was fair for your client and I believed that running the ID parade wouldn’t have been fair.
Q.Didn’t you trust Mr Epps or Mr Brazel not to check a few photographs in the interim.
A.Well, I’m not aware of what they might have seen or what they might have you know – what’s hanging in their office at work or whatever so I was only acting in fairness to your client.
Counsel for the respondent submitted that there was no obligation to conduct an identification parade in the circumstances of this case. Counsel referred to the following passage from R v Preston:[13]
There is no rule of law that the evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning must be given; it all depends on the circumstances of the case before the court.
Counsel contended that the situation was no different to that of a victim who knows and recognises their attacker. It was said that there is no obligation in those circumstances for an identification parade to be conducted, even where the evidence is disputed. That is so, counsel said, for the reason that the witness would select the person that they have recognised.
[13] [1961] VR 761 at 762
Counsel for the respondent’s submission overlooks the fact that by failing to conduct the identification parade, the police denied Mr Wheeler a real opportunity to test Constable Epps’ recognition. There was no way of establishing that Constable Epps would inevitably have selected Mr Wheeler at an identification parade. Although Constable Epps was able to identify Mr Wheeler in court, the dangers of recognition in those circumstances are well known and the magistrate correctly gave no weight to the in-court identification.
The significance to be attributed to a failure to conduct an identification parade has generally been discussed in cases where a suspected accused has been denied the opportunity to participate in an identification parade, but where photographic or other identification is available to implicate the suspect. In R v Deering King CJ observed:[14]
The law is clear that evidence of identification obtained by means of inspection of photographs is legally admissible evidence. … There exists a discretion to exclude that evidence, however, where its admission would be unfair to the accused, or where in the interests of wider public policy the court deems its proper to exclude the evidence because of some impropriety in the procedure by which it has been obtained. The courts have emphasized in a number of cases the superiority of identification by means of identification parade over identification by means of inspection of photographs. …
Where there is a clear and definite suspect or where an arrest has been made the proper procedure to be followed is for the police to arrange an identification parade if the suspect or arrested person is prepared to participate in such a parade.
The problem is not so much the superiority of one form of identification to another, but the inability of the appellant to test Constable Epps’ recognition evidence.
[14] (1986) 43 SASR 252 at 253
Adequacy of the evidence
In the present case, the question is whether the evidence was adequate to support a conviction beyond reasonable doubt. This Court must review the evidence for itself and determine whether such a conclusion was open to the magistrate.
As earlier observed the only evidence linking Mr Wheeler to the incident the subject of the charge was that of Constable Epps. The magistrate formed a favourable view of Constable Epps, referring to his evidence as “unshaken”.
Counsel for Mr Wheeler submitted that whilst the evidence of Constable Epps may have been described by the magistrate as “unshaken”, there were aspects of the case that were capable of casting doubt on the purported identification. Although he had seen various photographs of Mr Wheeler, Constable Epps had never met Mr Wheeler in person. The identification took place at night. In order to observe the driver, Constable Epps had to look around Sergeant Brazel. The Telstar, the subject of the incident, was fingerprinted and DNA-swabbed. No fingerprints or DNA evidence identifying Mr Wheeler were located. Mr Wheeler agreed on two occasions to participate in an identification parade. No parade took place. Mr Wheeler gave evidence on oath that he was not involved in the incident.
In cross-examination, it was put to Constable Epps that he only had “a pretty quick sort of glance” at the driver. Constable Epps rejected this suggestion and said that he had an opportunity to observe the driver for a number of seconds, enough to enable recognition. When it was put that he might have made a mistake as to the identity of the person driving the car that day, his response was that he was “100% certain”. Constable Epps acknowledged in evidence that he was capable of error, but said:
If I had the slightest doubt that I thought I may have been incorrect, I would not have submitted a file for this matter to appear in court.
As earlier observed, Constable Epps gave evidence that he recognised the driver of the Telstar as being the same person shown in photographs that he was familiar with. Identification took place at the time of the offending. This was, on the prosecution’s case, recognition evidence. The question for the magistrate was whether he was satisfied beyond reasonable doubt of the accuracy of the identification said to be made by Constable Epps.
There were a number of factors to be considered by the magistrate when weighing and assessing Constable Epps’ evidence. These include: the general circumstances; the time at which Constable Epps made the observations; the distance between Constable Epps and the driver of the Telstar; any obstructions to Constable Epps’ view; the lighting conditions; and whether or not Constable Epps was weakened in cross-examination.
Constable Epps’ evidence was to be considered having regard to Mr Wheeler’s evidence and his denial of having been the driver. Another matter to be considered and weighed was Mr Wheeler’s willingness to participate in an identification parade and the failure of the police to conduct such a parade. However, as earlier observed counsel for the appellant took no objection to the admissibility of the evidence of photographic recognition, notwithstanding the failure of the police to conduct an identification parade. Mr Wheeler did not make an application to exclude this evidence as a matter of discretion.
Counsel for Mr Wheeler raised these concerns during the course of the trial, both in cross-examination and during his address. The magistrate’s reasons demonstrate that he considered each of the matters raised by the defence. The magistrate reached the conclusion that he was satisfied that it had been proved beyond reasonable doubt that Mr Wheeler was the driver of the Telstar.
This is not a case where the magistrate preferred the evidence of one witness to another. As earlier observed the magistrate was impressed by Constable Epps’ evidence, accepted it and acted upon it. This was a course open to the magistrate as the trier of fact. The magistrate was entitled to bring in a verdict of guilty upon his acceptance of Constable Epps’ evidence and his rejection of Mr Wheeler’s evidence. The magistrate was satisfied beyond reasonable doubt by Constable Epps’ evidence that Mr Wheeler was the driver of the Telstar. The other elements of the charged offences had been established and were not in issue.
A review of the evidence demonstrates that it was open to the magistrate to reach the conclusion that Mr Wheeler was the driver beyond reasonable doubt. No error of law has been identified. The magistrate in his reasons demonstrated an awareness of the risks associated with recognition evidence. He properly directed himself as to the matters to be addressed to guard against those risks. It has not been demonstrated that the magistrate had regard to any immaterial consideration or failed to have regard to any relevant matter. His conclusions were not glaringly improbable. No basis has been shown to interfere with his discretionary findings.
Conclusion
There is no reason to doubt the correctness of the magistrate’s conclusion that identity was proved beyond reasonable doubt.
This appeal is dismissed.

[2005] SASC 156

21 April 2005

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Admissibility of Evidence

Recognition Evidence

Unreliable Evidence