Young v Lusted

[2011] TASSC 22

[2011] TASSC 22

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Young v Lusted [2011] TASSC 22

PARTIES:  YOUNG, Joseph Reg
  v

LUSTED, Gary

FILE NO/S:  1032/10
DELIVERED ON:  20 May 2011
DELIVERED AT:  Launceston
HEARING DATE:  20 April 2011
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Criminal Law – Evidence – Identification evidence – Admissibility – Generally – Presentation of single suspect – Whether probative value of evidence was outweighed by the danger of unfair prejudice to the defendant.

Evidence Act 2001 (Tas), s137.

Festa v R (2001) 208 CLR 593, applied.

Aust Dig Criminal Law [2928]

Criminal Law – Evidence – Identification evidence – Modes of identification – Presentation of single suspect – Whether probative value of evidence was outweighed by the danger of unfair prejudice to the defendant – Whether evidence wrongly admitted.

Evidence Act 2001 (Tas), s137.

Davies and Cody v R (1937) 57 CLR 170; Alexander v R (1981) 145 CLR 395; R v Burchielli [1981] VR 611; Festa v R (2001) 208 CLR 593, referred to.
Aust Dig Criminal Law [2931]

REPRESENTATION:

Counsel:
             Applicant:  S J N Brown
             Respondent:  J P Ransom
Solicitors:
             Applicant:  Grant Tucker
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2011] TASSC 22
Number of paragraphs:  30

Serial No 22/2011
File No 1032/2010

JOSEPH REG YOUNG v GARY LUSTED

REASONS FOR JUDGMENT  CRAWFORD CJ
  20 May 2011

1. A complaint charging the applicant with driving while disqualified, dangerous driving, evading police and refusing a breath analysis was found proved by a magistrate.  The applicant was convicted, sentenced to four months' imprisonment and disqualified from driving for two years and a 12 month probation order was made.  He has moved the Court to review the convictions on grounds raising the inadmissibility of identification evidence. 

1. A voir dire was conducted to determine the admissibility of such evidence by Inspector Darren Hopkins.  The magistrate ruled that it was admissible.  The hearing then continued.  The officer's evidence was used, along with other evidence, to find the charges proved. 

1. The first ground of the motion is that the magistrate erred in fact and in law when he ruled that the probative value of the evidence of Inspector Hopkins outweighed the danger of unfair prejudice to the defendant.  See the Evidence Act 2001, s137. That misstated what was found. It was that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the applicant. The difference is of no consequence to the outcome of the motion. The ground also asserted error in failing to refuse to admit the evidence. The second ground of the motion is that the magistrate erred in giving undue weight to the identification evidence due to the fact that the identifying witness was a police officer.

The evidence on the voir dire

1. Inspector Hopkins was the only witness called.  In issue at the hearing was his identification of the applicant.  I will summarise his evidence. 

1. At about 6.30pm he was driving a marked police car to attend a meeting at State Emergency Service Headquarters on Hobart Road, Youngtown.  It was a fine clear day.  He heard a radio message requesting officers to look out for the applicant who was believed to have been involved in a family violence incident.  The message said that he might be driving a black Ford Falcon with a particular registration number. 

1. Six to seven minutes later, Inspector Hopkins observed the Falcon approaching along Hobart Road.  It turned into Lockhart Street and he followed.  The car accelerated to an excessive speed and turned right into Napier Street and left into Victoria Street without indicating on either occasion.  There was only one person in the Falcon. 

1. It stopped diagonally in the middle of the intersection of Victoria and Dundas Streets.  Inspector Hopkins pulled up alongside its driver's side.  The vehicles were 30 centimetres apart and facing in the same direction.  The drivers were level with each other.  The Inspector looked through the open passenger window of the police car directly at the driver, who was not more than two metres away.  He was not sure if the driver's window of the Falcon was up or down.  He raised his left hand indicating to the driver to stop and mouthed words to the effect of "stay where you are".  The driver looked directly at him and appeared to mouth "okay".  The Inspector could clearly see him.  He did not know him.  The driver had a goatee beard.  The rest of his face appeared to have about three or four days' growth, almost giving an impression of a full beard.  The man was in his mid-20s, had dark hair, a relatively round face, dark eyes and was wearing a dark T-shirt. 

1. The cars were alongside each other for 10 to 15 seconds.  The Falcon then drove forward around the police car into Dundas Street.  The Inspector followed the Falcon for a short time, but because it was being driven dangerously he decided to give up the chase.  He notified radio despatch services that he had last seen the vehicle heading down Hobart Road in a southerly direction.

1. Inspector Hopkins then attended his meeting nearby.  About 10 or 15 minutes later, a police officer interrupted the meeting to ask him to step outside and look at something in the back of a police car.  It was clear to him that he was being asked to see whether a person in the rear of the car was the one driving the Falcon.  From five metres away in the State Emergency Headquarters' car park, he immediately recognised the person as the driver.  He had a "strong reaction" that it was the same person.  It was a reaction similar to one when looking through photos of suspects and one "jumps out at you".  The person he identified in that way was the applicant.

Submissions to the magistrate concerning admissibility

1. Counsel for the applicant submitted to the magistrate that the evidence of identification by Inspector Hopkins should be excluded under s137 because its probative value was outweighed by the danger of unfair prejudice to the applicant. He referred to the well-known dangers of convicting on the basis of identification evidence and said that evidence of identification of a person as an offender when he or she is sitting in the back of a police car is frequently tainted.

1. The prosecutor argued there was no danger of unfair prejudice to the applicant.  She referred to the evidence of Inspector Hopkins that he had a full face view of the driver for some seconds and that his subsequent identification occurred only 10 to 15 minutes later.  (In fact, the Inspector's evidence was that he had 10 to 15 seconds in which to observe the driver when alongside him and that the identification of him in the police car occurred 20 or 30 minutes later.)

1. The prosecutor also referred to the Inspector's evidence that he positively identified the applicant.  She conceded that if the witness had been a civilian it might have been unfair to the applicant to use the evidence, but argued that was not the case when the witness was a police officer who had lengthy service. 

The magistrate's ruling

1. The magistrate said he had regard to the special need for caution in the Evidence Act, s116, with regard to identification evidence. He held that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the applicant. His Honour continued:

"In reaching that conclusion I have taken into account a number of circumstances including the characteristics and appearance of the defendant as described to me by Inspector Hopkins, the circumstances in which he saw the defendant, which in my view led his perception to be heightened as a consequence of the warning he had been given about the need to be on the lookout for the driver of the vehicle and the fact that his observations of that person took place after he had been following that vehicle and when he was very much on the alert to make observations of what he was seeing at the time.  I take into account the Inspector's characteristics, he's an experienced police officer, he is trained and experienced in perception and memory and the ability to make observations of this type, and the time between his initial perception of the person in the vehicle and the time that he was asked to identify that person was short and that leads me to conclude that he was able to make observations within a relatively short time during which there was limited opportunity for either his memory or perception of what he'd earlier seen to fade or alter. 

In all of the circumstances therefore in my view the probative value is not outweighed by the unfair prejudice to the defendant.  I am mindful, of course, that were the observations to have been made in different circumstances by – perhaps by a lay person, asking a person to identify another when that person is seated in the back of a police vehicle, has potential to cause prejudice, but in the circumstances of this case my view is that the probative value of the evidence is not outweighed by that prejudice and I rule the evidence to be admissible."

Was the probative value of the evidence outweighed by the danger of unfair prejudice to the applicant?

1. It was submitted by counsel for the applicant that there was no evidence of the training and experience of Inspector Hopkins to justify the findings that he was an experienced police officer and trained and experienced in perception and memory and to make observations of the type made.  That submission was correct.  However, any error in that regard was not made the subject of a ground of the motion to review and I am sure that all the magistrate was doing was drawing an inference from the Inspector's rank that he had that training and experience.  The inference was reasonably open. 

1. The magistrate erred at one point (not quoted above) when he said he had a discretion whether to exclude the evidence under s137. The section required him to exclude the evidence if its probative value was outweighed by the danger of unfair prejudice to the applicant. However, the error would not require the upholding of the motion, if it was the subject of a ground of review. Because the magistrate found that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the applicant, the evidence was not inadmissible under the section.

1. Counsel for the applicant submitted that evidence that a witness identified a single person presented to the witness is one of the weakest forms of evidence of identification, of low probative value and highly prejudicial to a defendant.  He relied on Davies and Cody v R (1937) 57 CLR 170, Alexander v R (1981) 145 CLR 395 at 399, R v Burchielli [1981] VR 611 at 621 and 622 and the judgment of Kirby J in Festa v R (2001) 208 CLR 593 at pars[157] – [169].

1. Those cases are not of great assistance to the applicant. They were all common law cases and did not concern a statutory provision similar to s137. Further, the majority in each of the appellate courts that decided those cases did not hold that the identification evidence in question was incorrectly admitted, although they concluded there were weaknesses about its probative value. Further, they were all cases of appeals from convictions following a trial by a jury and not from convictions by a legally trained judicial officer without a jury.

1. In Daviesand Cody the questions considered by the court were whether the jury's verdict was unsafe and whether the trial judge gave an adequate warning to the jury about the need for caution when considering evidence of identification.

1. Alexander concerned identification by witnesses from photoboards containing about a dozen photographs.  The majority held there had been no error by the trial judge in admitting the evidence, notwithstanding an argument that it would operate unfairly against the accused person.  At 399, Gibbs CJ made the point that in theory the manner in which an accused person is identified out of court goes to the weight rather than to the admissibility of the evidence. 

1. In Burchielli a witness had identified the accused person when he was sitting in the back seat of a police car 20 days after the witness claimed to have seen him commit the alleged crimes.  The conviction was overturned because of the failure of the trial judge to give an adequate warning to the jury about the evidence and not because it should not have been admitted, although that question was mooted. 

1. In Festa Kirby J was in dissent.  The majority thought that the evidence of identification in that case was admissible and that its probative value outweighed any prejudicial effect on the accused person.  The identification of her was made by three witnesses at a court four months after the commission of the alleged crimes.  At 599, Gleeson CJ made the point that if evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration.  It is not enough merely to say that it is "weak". 

1. The question that falls for my decision is whether the magistrate erred in law or in fact when he admitted the evidence.  That necessarily requires consideration of whether the magistrate erred in law or in fact when he determined that its probative value was not outweighed by the danger of unfair prejudice to the applicant.  I am not persuaded that such an error occurred.

1. Beyond doubt there is often considerable weakness in evidence that a witness identified an offender after witnessing a crime in circumstances where the offender alone was presented to the witness to see if the identification could be made. To determine the admissibility of such evidence for the purposes of s137, the probative value of the evidence must be considered and compared with the danger of unfair prejudice to the accused person.

1. In Festa at 609 – 610, McHugh J said:

"But the weakness of relevant evidence is not a ground for its exclusion.  It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence.  And evidence is not prejudicial merely because it strengthens the prosecution case.  It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task."

1. In this case a jury was not involved in the decision-making process.  Instead a legally trained magistrate had that task, one who until his recent appointment as a magistrate was an experienced defence counsel in the criminal jurisdiction.  It was unlikely that his Honour would misuse the evidence, far less likely than a jury would have done.

1. In the course of determining that the evidence would be admitted, his Honour had regard to the potential for unfair prejudice to the applicant and to the instruction his Honour would need to give himself under s116 if he admitted the evidence, that is the instruction that there was a special need for caution before accepting the evidence and of the reasons for that caution, both generally and in the circumstances of the case. His Honour referred in detail to Inspector Hopkins' evidence of his identification. He found that its probative value was increased by the fact that the Inspector had been alert to the need to observe the driver's features and that the subsequent identification of the applicant when he was in the police car was made within a short time later, during which there was less chance that his memory or perception would have faded or altered than might have been the case if the identification was made a considerable time later.

1. No doubt police officers make mistakes, like all of us.  Nevertheless, there was no error in taking into account the fact that the witness was a police officer.  It was relevant to the probative value of the evidence.  The magistrate was justified in having regard to the fact that a police officer who by reason of his rank had obviously had long experience as a police officer, would have greater training and experience for perceiving and remembering the features of a person under observation than many lay persons.  The Inspector was likely to have been more aware than a lay person of the need to observe and retain a memory of his observations. 

1. For those reasons, I conclude that the magistrate correctly decided to admit the evidence. 

1. Although it is not determinative of the question whether the evidence should not have been admitted, I mention that it was not the only evidence that led the magistrate to conclude beyond reasonable doubt that the applicant was the driver of the Falcon.  That evidence included the following.  When Inspector Hopkins first saw the Falcon on Hobart Road it was approaching him from the direction of Perth, where the applicant lived.  It was not long after the Inspector lost sight of the vehicle that the applicant was found nearby and arrested by Constable Greenwood, following which he was placed in the police car.  When Constable Greenwood found him he was walking from Hobart Road along Lockhart Street, the route the Falcon had followed not long before when it was followed by the Inspector.  The applicant was the owner of the Falcon.  Constable Greenwood's description of his physical appearance strongly coincided with Inspector Hopkins' description of the driver. 

1. The motion to review will be dismissed.