DISTRICT COURT OF QUEENSLAND
CITATION:
Hendrey v Bowdern [2017] QDC 240
PARTIES:
COLIN SCOTT HENDREY
(appellant)
v
CONSTABLE DION BOWDERN
(respondent)
FILE NO/S:
D95/15
DIVISION:
Criminal
PROCEEDING:
Appeal pursuant to s 222 Justices Act
ORIGINATING COURT:
Ipswich Magistrates Court
DELIVERED ON:
6 October 2017
DELIVERED AT:
Ipswich
HEARING DATE:
3 March 2016
JUDGE:
Horneman-Wren SC DCJ
ORDER:
1. Appeal allowed.
2. Set aside the conviction and sentenced imposed on 3 November 2015.
3. Enter a verdict of not guilty.
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST CONVICTION –where appellant convicted after a summary trial of one charge of trespass – where appellant contends that the conviction was unsafe and unsatisfactory – where appellant contends that the sentence imposed was excessive – where the magistrate failed to adequately consider identification evidence – where the prosecution did not establish the identification of the appellant as the offender beyond reasonable doubt – where appeal allowed – where a not guilty verdict entered
CRIMINAL LAW – APPEAL AGAINST SENTENCE – where appellant sentenced to four months imprisonment which was to be served cumulatively upon two suspended sentences – where parole eligibility date set – where appellant contends that the sentence imposed was excessive – where magistrate erred in not setting a parole release date – where conviction set aside as not guilty verdict recorded
COUNSEL:
Mr J Thomas (solicitor) for the appellant
Ms E Kelso for the respondent
SOLICITORS:
McMillan Kelly Thomas Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent
Introduction
On 3 November 2015 the appellant, Colin Scott Hendrey , was convicted after a summary trial of one charge of trespass in that he unlawfully entered the yard of a dwelling at 5 Sprengler Street, East Ipswich. He was sentenced to four months imprisonment which was to be served cumulatively upon two suspended sentences which the learned magistrate activated in full. Those sentences were a one month sentence imposed on 18 September 2014, wholly suspended for an operational period of 18 months, and a four month sentence imposed on 31 October 2014 which had been suspended after one month also for an operational period of 18 months. The activated suspended sentences were ordered to be served concurrently with each other. The appellant was thus sentenced to a total period of seven months imprisonment. A parole eligibility date was fixed at 4 January 2016, that is, after two months in custody. He was granted appeal bail the day following his conviction and has thus spent one night in custody.
The appellant appeals to this court against both his conviction and the sentence. He contends that the conviction was unsafe and unsatisfactory and the sentence excessive.
For the reasons which follow, the appeal should be allowed, the conviction set aside, and a verdict of not guilty entered.
The case against the appellant
Four witnesses were called in the prosecution case. Two gave evidence concerning the identification of the appellant as the offender. The third was the investigating police officer whose evidence was essentially restricted to proving two photo boards. One of the witnesses had identified the appellant from one of those photo boards. From the other photo board the other witness had failed to identify the appellant as the offender, and had identified another person.
The fourth witness was the occupant of the premises who was called to establish that whoever was in the yard of the premises did not have her permission to be there.
Mr Matthew Payne, lived in the neighbourhood of the premises at which the trespass was alleged to have occurred. Between 8.30 and 9.30pm on 8 January 2015 he was outside his house having a cigarette when a lady from two houses away called out to him that a person was jumping fences. In his evidence he identified that lady as Mrs Browne. He went to the back of his house and at that time he saw someone in his next door neighbour’s backyard, crouched down amongst bamboo. He put a flashlight on the person who then “took off running. Jumped the fence, the back fence”.
As to what he saw of the person, Mr Payne said:
“I didn’t get a good look at his face. But I, - I realised I knew the clothes he was wearing.”
He described the clothes as:
“They were the denim jeans – he had white socks on, shoes, a red – red hoodie jumper.”
He then qualified the description of denim jeans as being denim shorts which were black in colour. He described the shoes as white in colour.
He also identified the person as having tattoos. When asked about where those tattoos were located, he said that they were on the person’s legs and on his arms.
He said that the person took off running “through the house behind the backyard”. He described himself running out of his own yard and down the road to try and cut the person off, but there was no one around, so he went back to his house.
He said it was then that he was talking with Mrs Browne “out the front”. He said then:
“And what happened while you were talking with Mrs Browne? The young gentlemen come walking down the road, huffing and puffing, and we confronted him, asked him what he was doing in the street at this time of the night in a – a street with elderly people in it.
Yep? And then he said that he was going to his girlfriend’s house at number 17, but number 17 was up the end of the street where he was coming from. Number 1 was where he was going to, and he – I said – we asked him, “What are you doing in the street?” He said, “I’m not doing anything. I’m not doing nothing wrong,” and he started getting agitated, and – and then I seen a police car around the corner and I was going to go and yell out to them to come up, and I took a couple of steps and that’s when he took off running, and I chased after him, and jumped in a white four wheel drive and took off 100 miles an hour at us, and – and that’s when I chased after this four wheel drive, and I notified the detectives that were there, and they took off after the four wheel drive.”
When asked how he knew the male person walking back down the street to be the same person he had seen in the yard, Mr Payne nominated the denim shorts and the tattoos. The magistrate then asked “And what clothing was the person wearing that was walking down the street?”
Before he answered, the prosecutor repeated his Honour’s question.[1]
[1]An examination of the transcript suggest that the prosecutor was inexperienced. On a number of occasions the learned magistrate advised the prosecutor as to how to go about things in the proceeding.
Mr Payne responded:
“The red jumper was gone, but the denim – the denim jean shorts were the ones that keep – got my eyes. They were the same ones that I had seen.”
He was then asked whether there was anything else, and he was prompted with, “the footwear or socks?” to which he responded “The socks. The same socks that I seen, and the shoes”. Then, without objection, he was asked if he saw in the courtroom the person he had seen that night. He identified the appellant.
Mr Payne was then shown a photo board. He identified it as a photo board which he previously had been shown by police when he attended the police station. He identified his signature on the reverse side of the photo board and that he had written the number 11, identifying the person who he had picked. It is not controversial that photograph number 11 was a photograph of the appellant. The photo board was then tendered. That photo board was dated 9 March 2015.
In leading the evidence about the photo board, the prosecutor stated that there was a recording of the photo board interview. The prosecutor said “I’m happy to play that if your Honour would like to see it”.
His Honour said “It’s up to you”.
The prosecutor then said “I suppose it doesn’t take us any further in relation to – I’m happy if my friend would like to see it for totality”.
Mr Thomas, who appeared for the appellant both at the trial and on the appeal, said, “I’m not concerned to have it played, your Honour. I have no particular requirement [indistinct] it is”. In the event, the prosecutor indicated that he (or she) was content to rely on the photo board and the interview was not played. For reasons which I will develop later, it is regrettable that the interview was not played.
When cross-examined by Mr Thomas, Mr Payne stated that when he saw the person in his neighbour’s backyard he was 10 to 12 meters away. Until he shone his flashlight on the person he could effectively see just a silhouette.
When asked if he could recall what the tattoos were of, he said “I’m pretty sure that there was a dragon on his leg”.
He said that the tattoo of a dragon was something he saw when he was shining the torch.
He said that the person he later saw walking down the street was the same person and that was because the black denim shorts, white socks and shoes “basically matched the same is (sic) what I seen”.
He was then asked:
“And you certainly didn’t get a look at the person’s physical features, their face or anything, on the first occasion?”
To this question Mr Payne responded “No”.
After Mr Thomas concluded his cross-examination the magistrate asked:
“Did the person you see walking down the street have the same dragon tattoo on his leg?”
Mr Payne replied “Yes”. The magistrate then asked “Any re-examination or anything arising from that?” The prosecutor said “No”, and the witness was excused. No response to his Honour’s enquiry as to whether there was anything arising is attributed to Mr Thomas.
The prosecution then called Mrs Browne. She gave evidence of being at the front of her home and having seen an unmarked police car come “flying up” the street and of two police officers having “jumped out of the car and went to the house two doors down, shining lights, and then all of a sudden they just turned around, jumped in the car, came into my driveway, reversed and went back down to Jacaranda Street”.
Having alerted her husband and told him to lock the back door, she heard “Matty” and went down to him. “Matty” is quite evidently Matthew Payne. She said that she told him that something was going on and he went to check his yard. He returned a couple of minutes later, running, and said that there was “A guy next door to me, which is down from him. There’s a guy with a red hoodie and black shorts, and Matty took off after him”.
She then said:
“I just watched Matty go – run down Jacaranda Street, and then he came back and we were just talking and then a couple of minutes later we saw someone start walking down towards us from the train – from the train tracks down towards us.”
When asked if she could recall what the man looked like she replied “Can I point out?”. The magistrate said “yes” and she said “to the man there”. An apparent reference to the defendant. She confirmed that he was the same male as she saw on the night with the exception that he had (apparently on the earlier occasion) facial hair. Mrs Browne described the male on the night as having worn “A yellow button up shirt, not a t-shirt, it’s like a dress shirt with some emblem on – on it, and black shorts, white socks. He had tattoos, but I can’t remember where the tattoos were, and sneakers, I think. I’m not sure. Shoes.”
When asked whether she could recall what the tattoos were of, she said “Maybe a dragon”. She said she thought the tattoos were located on the person’s right leg.
She said that she and Matty approached the male. She had a security torch on her phone which she “Virtually put in his face”. She asked what he was doing in the street and he said he was “Going to his girlfriend’s place down number 17, which – he was pointing towards Jacaranda, but actually 17 is back towards the train station on your right”. She said that this was the direction from which he had come.
She then described some further conversation, which included informing him that the police had been called. A police car was seen going up and down Jacaranda Street, which “Matty went to try to pull up”. She was standing with the man and he “did a runner”.
Mrs Browne was then shown a photo board which she identified as having been signed and dated by her on 24 May 2015. She confirmed that she had selected photograph number 3. When asked if there were any particular reason for her doing so she said “Because I felt it was the man was – on that night”.
It is uncontroversial that the person selected by Mrs Browne was not the appellant.
Constable Bowdern was then called. His evidence, as I have already observed, was essentially to prove the photo boards. He also gave evidence of having Mr Payne give a comfit.
In respect of the photo board shown to Mrs Browne, the following exchange took place as to whether a photograph of the defendant was included amongst them:
“BENCH: Well, unless I’m wrong, it wouldn’t seem that the defendant was on the photo board shown to Mrs Browne.
PROSECUTOR: He was, yes.
BENCH: Really?
PROSECUTOR: No. Your Honour, the second photo board conducted with Mrs Browne, she didn’t pick the offender. The first one
BENCH: Is he even on there?
PROSECUTOR: He is, your Honour. Yes.
BENCH: Are you sure? Go ahead.
WITNESS: Thank you.
BENCH: He’s on – I see him on the first one. I don’t see him at all on the second one.”
At the conclusion of the Constable’s evidence-in-chief his Honour observed “It doesn’t look like him to me”.
The only cross-examination of the Constable was in respect of the comfit. The officer did not have a copy of it, saying “I haven’t relied on it as evidence”. That, with respect, rather misses the point. Had it been provided to the defence, or produced at trial, it may have formed a basis for challenging the identification by Mr Payne of the defendant on the photo board. It may have been that his description of the person who he saw on the night, as reflected in the comfit, was very different to the image he selected in the photo board such as would raise doubt about that identification. However, that point was not taken by Mr Hendrey either on the trial or the appeal.
The appellant elected to neither give nor call evidence. The prosecutor’s submissions were extremely brief. They commenced:
“PROSECUTOR: Your Honour, I don’t think I will take the matter any further. I just ask your Honour to consider the witnesses given – or the evidence given by the witnesses”
There was then the following exchange between the magistrate and the prosecutor:
“BENCH: Well, I’m not surprised that Ms Browne didn’t pick him on the photo board because that photo doesn’t look anything like him at all.
PROSECUTOR: Your Honour, I will admit that I looked at it and I struggle to find him. But I can assure you that is a picture of the defendant.
BENCH: Well, the officer said it was but he wasn’t helping anybody by picking one that doesn’t look like the defendant much.
PROSECUTOR: No, your Honour. I guess in terms of photo boards, I guess it was well done in that regard. Obviously it was hard to pick him and
BENCH: Well, I don’t know why he picked the second – a different photo. I mean, generally they just use the same photo with all of the witnesses.
PROSECUTOR: Yes, your Honour. They do. I’m not sure why they chose a different photo but it is what it is, I suppose. Your Honour, I don’t intend to take it any further than that.”
That was the totality of the prosecutor’s submissions.
Mr Thomas commenced his submissions by saying:
“Well your Honour is left with, in my respectful submission, a troubling issue in respect of identification.”
To this, his Honour responded “Really? Why?”
There was then the following exchange:
“MR THOMAS: There are two witnesses, both who, when speaking to police, identified two separate individuals on photo boards.
BENCH: Yes. But we just – you’ve seen the pictures. Even at this distance of about a dozen feet, I wouldn’t have picked the defendant as the second photo – in the second photo board but I certainly would have picked him in the first one. So I don’t know why the police chose a photo that – where he’s pulling a face and that’s right up close like that.
MR THOMAS: Well, whatever the decision making process of the police officer who elected to include those particular photographs on the photo board, the photo board identification ---
BENCH: But Ms Browne ID’d him here, for what that’s worth. Her description is exactly the same as Mr Payne’s of the offender apart from the yellow shirt. Same tattoos, same place, same lies about where he was going and a positive ID on the photo board from Mr Payne. So why would I have any doubt about ID at all?
MR THOMAS: Well, firstly in relation to the evidence of identification, the comments made by the person who was intercepted or spoken to by the two witnesses on the side of the road doesn’t bear, in my submission, on the identification of that person. Your Honour is correct in the sense that both of the witnesses gave evidence that the person that they spoke on the side of the road had tattoos on their leg and they both described a dragon tattoo on their leg. And both of the witnesses identified the defendant sitting at the bar table today. In my respectful submission, when coming before the court charged with an offence of this nature, an identification made in the dock – sorry, in the witness box of the defendant at the bar table is ---
BENCH: But we’ve got a positive ID from the photo board.
MR THOMAS: Of one. And then in relation to the other, an identification of someone else entirely.
BENCH: A very poor photo ---
MR THOMAS: Well, that’s ---
BENCH: --- of the defendant. But ---
MR THOMAS: That’s ---
BENCH: But, you know, whether that’s not – that’s not sufficient for me to have any doubt about Mr Payne’s evidence.
MR THOMAS: Mr Payne’s evidence is evidence of identification of person number 11 who the police officer indicated was the photograph of the defendant. That’s right.
BENCH: And I recognise him in the photo anyway. So even without the police officer’s evidence ---
MR THOMAS: That’s right.
BENCH: --- I was happy with it.
MR THOMAS: Your Honour has made what comments you made in respect of this photograph used on the second photo board. It’s not for me to make comment about my view of that photograph. But in my respectful submission, it looks sufficient like the defendant. It would be available to a witness to identify them as the defendant.
BENCH: It doesn’t look like him to me. That’s – I mean, I couldn’t recognise him either. So I’m not surprised she couldn’t.
MR THOMAS: So that leaves your Honour with a situation where your Honour has formed that view based on the photograph as you see it. But it leaves your Honour with a position where you’ve got the defendant – whether number 6 looks like – sorry, the defendant or not, the person identified by the second witness is number 3.
BENCH: But that’s not the extent of her evidence.
MR THOMAS: And that’s coupled with an indication that the person at the bar table was the person she saw on the night. And that, in my respectful submission, in the context of the trial conducted today is entirely unreliable.
BENCH: It’s still not the extent of her evidence.
MR THOMAS: It’s not the extent of it. Her evidence of identification is ---
BENCH: She sees the same fellow, obviously, in the same street at the same time as Mr Payne, same clothes, same tattoos, same tattoo on his leg. I don’t imagine there were too many blokes running around Spengler Street at 9 pm that night with dragon tattoos on their legs. And Mr Payne has positively ID’d him on a photo board some months later.
MR THOMAS: Yes.
BENCH: That’s fairly good identification evidence.
MR THOMAS: And Mrs Browne has positively identified someone else altogether ---
BENCH: Yes. Well ---
MR THOMAS: on a photo board.
BENCH: --- that’s all right. That doesn’t mean that that creates any doubt in my mind about the identity, particularly when one of the witnesses has got it spot on.
MR THOMAS: Well, your Honour, the situation is that in my respectful submission, that creates a doubt. It must create a doubt because you’ve two witnesses who positively identify two entirely different people.
BENCH: Well, it doesn’t create a doubt in my mind because all of the other evidence – it’s all perfectly cogent, perfectly believable, perfectly reliable. I don’t think the photograph in the second photo board looks anything like the defendant, as I’ve said a number of times. So I’m not surprised she didn’t get it. But everything else she said matches exactly what Mr Payne has said and he has positively identified the defendant as the person. And ---
MR THOMAS: The ---
BENCH: So I don’t have any doubt about the identification.”
The magistrate’s decision
The learned magistrate commenced his reasons by observing that the onus was on the prosecution to prove the elements of the offence beyond reasonable doubt and observed that “Obviously, as it turned out, this is an identity case”.
His Honour’s reasons then proceeded as follows:
“I’m satisfied on the evidence of Mr Payne particularly, who positively identified the defendant’s photograph in a photo board, saw him in the backyard of 5 Spengler Street, identified the clothes he was wearing – black denim shorts, white sock – tattoos, particularly a dragon tattoo on the leg, a red hoodie and white shoes. Then chased after him when he ran and then several minutes later he says the same person came walking down Spengler Street huffing and puffing. And having regard to the fact that the defendant had just been running, that is a fact in my view, an objective fact, consistent with the circumstantial identification case at that point in time.
The person he spoke to in the street lied about where he was going, in my view, pointing down towards Jacaranda Street saying he was going to number 17, which was in fact back behind the way he had just come. The person who came walking down the street, Mr Payne said, was wearing the same shorts he had seen on the person in the backyard, same shoes, same socks, same dragon tattoo on the leg. The chances that there were two people with a dragon tattoo on the leg wearing the same shorts, shoes, socks and other tattoos at the same time of night – exactly the same time of night exactly the same street, huffing and puffing, having just been running is so low as to be not even worth considering any further, in my view.
The evidence of Ms Brown, notwithstanding her failure to identify the defendant on the photo board she was shown – and I’ve already made the observation that a very poor selection was made with respect to the photo she was asked to identify with that case. Even with the defendant sitting 10 feet in front of me I can’t recognise him in that photo board. Her description of the person that came up to them in the street was, apart from the additional fact that he was wearing a yellow button up shirt – was otherwise the same as that of Mr Payne, including the dragon tattoo on the leg. It included the same lie about where the defendant said he was going and I’m satisfied in the circumstances it was a lie, having regard to Ms Brown’s evidence about the fact that number 17 was back behind the defendant from the way he had come and where he was indicating he was going to was in the entirely opposite direction to where he was purportedly saying he was going.
This is a case where the evidence as a whole and the conclusion to be drawn from it determines the matter of identification. Having regard to the evidence as a whole, I’m not satisfied either by the fact that it was night time and the fact that Ms Brown identified the wrong person on a photo board is sufficient to raise a reasonable doubt in my mind as to the accuracy and cogency of Mr Payne’s identification of the defendant as the person he saw in the backyard of 5 Spengler Street. Accordingly, I’m satisfied beyond reasonable doubt that the defendant was that person and accordingly find him guilty of the charge.”
His Honour’s reasons were delivered ex tempore and immediately following the close of submissions. There was no indication in the transcript that his Honour adjourned at all to consider his reasons. Those reasons were delivered at 10.56am, the hearing having commenced at 10.03am.
Whilst his Honour’s reasons were delivered as a distinct part of the proceeding, they followed immediately the conclusion of the hearing and, in my view, flowed on from observations and comments which he had made in the course of hearing submissions. Those observations and comments which his Honour made extended, on more than one occasion, to his expressing, in a concluded way, that he was left with no doubt about the identification of the defendant. The expression of those concluded views occurred prior to his Honour hearing all of the submissions which were being made for the defendant.
As his Honour’s reasons as set out above demonstrate, he referred back to certain observations concerning the identification evidence which he had made in the course of the hearing, and incorporated those observations in his reasons. Ordinarily, an appellate court would look only to the court’s published reasons rather than to any comment made by the judicial officer in the course of the hearing. This is because the judicial officer’s view as expressed in the course of the hearing may, upon review of all the evidence and submissions, lead the judge to determine the matter differently to even firmly stated views. Furthermore, comments made by a judge in the course of hearing submissions may not reflect even a tentative view held by the judge, but may be simply a testing of the arguments being advanced by counsel.
However, there may be some circumstances in which it will be proper to look to the comments and observations expressed by the judicial officer in the course of the proceeding. In Director of Public Prosecutions v Thompson,[2] Gray P, Penfold and Buchanan JJ said:
“Observations made by judges in the course of a hearing are not judicial pronouncements. Unless they involve some ruling (for example upon a question of admissibility of evidence) or are explicitly incorporated in a judgment as explaining the reasons for judgment or the outcome of a trial (as sometimes happens in a busy trial court in the course of the giving of an ex tempore judgment), observations made during the course of argument are not to be regarded as final, conclusive or dispositive, no matter how firmly they might appear to be expressed in the course of argument. A judge may, on reflection, choose not to rely upon views expressed during argument, may have been persuaded by a response made by counsel, may, on reflection, have modified any view earlier expressed, or may not regard it as necessary to proceed upon some particular view of the facts or the law in order to dispose of the matters calling for decision.”
[2][2009] ACTCA 19 at [8].
In my view, the comments made by his Honour in the course of hearing the argument in this matter fall within the exceptional circumstances identified in that passage. As already observed, the comments immediately preceded the delivery of the ex tempore judgment. There was no reflection upon those issues undertaken by the magistrate between hearing the argument upon them and then determining them. His comments included expressions of a concluded view on the central issue in the trial; which view was confirmed immediately in the delivery of his oral reasons. He also incorporated aspects of those observations by direct reference in the reasons.
I have, therefore, set out those comments earlier in the reasons and shall refer to some of those comments and observations made by his Honour.
The parties’ contentions on appeal
The appellant submits that the court would be satisfied that the magistrate was not sufficiently careful in acting on identification evidence. Whilst that magistrate was not addressed on the principles in Domican v The Queen,[3] he was required to warn himself in those terms, and the court would not be satisfied that he did so.
[3](1992) 173 CLR 555.
The appellant acknowledged that the magistrate did not refer to the dock identification of the defendant in his reasons, but submits that this court would be cognisant of the strong caution required and the dangers of using that type of identification.
However, both in his written submissions, which had been prepared by Mr Kissick of counsel who did not appear on the hearing, and in the oral submissions made by Mr Thomas, the appellant submits that the real issue was the reversal of the onus of proof by the magistrate. This relates to the magistrate’s comments concerning the absence of evidence from the appellant (defendant) and the ease with which the presence of a dragon tattoo upon him could have been rebutted by such evidence.
The appellant also submits that the magistrate rejected any doubt which may have existed because Mrs Browne identified an entirely different person on the basis that he himself could not identify the appellant from the photo board shown to her. He submits that this may have been of assistance to the court if Mrs Browne had simply failed to identify anyone as the offender, but that this was not the case. She had positively identified a completely different person.
The respondent submits that it was open for the magistrate to conclude that the male person Mr Payne saw in the yard was the same person that he and Mrs Browne spoke to shortly afterwards on the street. Ms Kelso of counsel for the respondent points to a number of aspects of the evidence which she says made such a finding open to the magistrate.
Ms Kelso also submits that it was not suggested to Mr Payne that he was mistaken or wrong in identifying that the man on the street was the same person as that who Mr Payne had seen in the yard.
The respondent submitted that it was open on the evidence for the magistrate to be satisfied beyond reasonable doubt that the male person seen by Mr Payne on those two occasions was the appellant based upon Mr Payne’s photo board identification of him. The respondent submitted that it was not suggested to Mr Payne that he was anything less than certain, and referred also to the dock identification which had been made without objection. Ms Kelso submitted that Mr Payne’s positive dock identification merely related to “the previous correct identification process”. She submitted that, as such, it was consistent with the statement of the Northern Territory Court of Criminal Appeal in Murdoch v The Queen[4] that:
“…dock identifications are not usually permitted, other than as confirmatory of an acceptable prior out-of-court identification.”
[4](2007) 167 A Crim R 329.
As to Mrs Browne’s evidence, Ms Kelso referred to her selection of a person other than the defendant in the photo board exercise as being “qualified” by her statement in evidence that she had selected that person “because I felt it was the man that was, on that night”. Ms Kelso referred to the fact that no recording of the photo board was played and that Mrs Browne was not cross-examined.
Ms Kelso also referred to Mrs Browne’s dock identification of the appellant, again without objection.
The respondent referred to the magistrate’s indication that the quality of the photograph of the defendant in the photo board shown to Mrs Browne was of unlike appearance to him, and that this indication was made after he had seen the photo board and had the opportunity to view the appellant in court. It was submitted that his own comments with respect to that could appropriately be taken into account by him in assessing the reliability and preference which he afforded to Mr Payne’s identification.
Ms Kelso submitted that there was nothing in the magistrate’s comments to suggest that he was “unduly swayed or gave consideration to the court identification made by Mrs Browne”.
Ms Kelso referred to the lengthy exchange between the magistrate and Mr Thomas about the extent of the identification issue, much of which I have set out above, and submitted that “the magistrate was entitled to prefer the evidence of one witness over the other and to be satisfied, beyond reasonable doubt”.
As to the asserted reversal of the onus of proof, Ms Kelso accepted that the magistrate’s statements that whether the appellant had a tattoo on his leg could have been easily rebutted were incorrect and that the onus remained on the prosecution. However, she submitted that there was nothing in the reasons to suggest that his Honour’s comments in that regard instructed his decision to convict the appellant, and that he was entitled to find the appellant guilty on the evidence before him.
Consideration
In Kelleher v The Queen,[5] Gibbs J said of cases in which identification is in issue and the witness is not familiar with the appearance of the accused:
“It is now well recognized that grave miscarriages of justice are liable to occur in criminal cases by reason of the fact that witnesses, however honest and careful, may make mistakes in identification, particularly where the person identified was unknown to the witness before the commission of the crime. Experience, including recent experience, has shown that such miscarriages can occur even when all the precautions provided by the law as safeguards against mistaken identification have been fully observed. It is therefore obviously necessary that at a trial where the evidence implicating the accused is evidence that he was identified by a witness or witnesses who were not previously acquainted with him, both judge and jury should be constantly alert to guard against the possibility that the evidence may be mistaken and an innocent man convicted.”
[5](1974) 131 CLR 534 at 550-551.
His Honour went on to say:
“However, it seems to me that although it is perfectly true that the adequacy of a summing up can only be decided in the light of the circumstances of the particular case, and that where a warning is necessary no particular form of words is required, it is in practice generally desirable that where the case for the prosecution includes evidence of visual identification by a person previously unfamiliar with the accused, an appropriate warning should be given to the jury, since jurors may not appreciate as fully as a judge may do, or even at all, the serious risk that always exists that evidence of that kind may be mistaken.”
In Domican v The Queen,[6] the joint judgment of their Honours, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, spoke of the “seductive effect” of identification evidence having “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 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 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.”
[6](1992) 173 CLR 555 at 561.
Although those statements were made in respect of jury trials and the need for specific warnings to be provided to juries, they are also apposite to a matter tried by Judge alone as to the matters of which the judicial officer, as the trier of fact, must himself or herself be aware in considering such identification evidence.
The magistrate made no reference to the serious risk of identification evidence being mistaken or to the dangers of wrongful conviction upon it. A close consideration of his Honour’s reasons indicates that he was not mindful of them in resolving the issue of identification in this matter. Such consideration of the reasons suggests that the seductive effect of Mr Payne’s identification of the appellant distracted his Honour from a full and proper analysis of it, and its limitations, both inherent and actual, in proving the appellant to be the offender.
His Honour reached his state of satisfaction beyond reasonable doubt as to the identification of the appellant as the man who Mr Payne saw in his neighbour’s yard very quickly as expressed in the course of hearing submissions, and before their conclusion. In doing so, it is apparent from the reasons that his Honour saw indicia of reliability in aspects of the evidence which were really not pointers to reliability at all.
At the commencement of the relevant passages from the magistrate’s reasons set out above, his Honour stated his satisfaction as to the identification of the appellant, particularly on the evidence of Mr Payne. In fact, other than the purported dock identification by Mrs Browne, there is no evidence other than that of Mr Payne from which he could be satisfied of identification. However, from what the magistrate said later in his reasons, he was not aware that it was only Mr Payne’s evidence, not particularly Mr Payne’s evidence, which could have satisfied him of that issue.
In explaining the aspects of Mr Payne’s evidence that caused him to be satisfied beyond reasonable doubt of the appellant as the offender, the magistrate identified the fact that Mr Payne had identified the clothes the person had been wearing, the tattoos and particularly the dragon tattoo on the leg. He also identified the fact that Mr Payne had chased after the person seen in the yard and that several minutes later he saw the same person walking down Sprengler Street “huffing and puffing.”
His Honour then had “regard to the fact that the defendant had just been running”, and considered that to be “an objective fact, consistent with the circumstantial identification case at that point in time”.
The magistrate’s expression that the defendant had just been running suggests that the magistrate had already concluded that it was the defendant who had been seen in the yard, and that his process of reasoning was, therefore, that the person later seen huffing and puffing must have been the defendant. That process of reasoning was erroneous. The magistrate was required to consider what, if any, evidence established beyond reasonable doubt that the person encountered in the yard was the defendant. It might readily be accepted that the person seen in, and chased from, the yard was the puffed person who walked down the street shortly thereafter. However, that merely establishes that whoever that person was, he was the one encountered on both occasions by Mr Payne. None of it goes any way toward establishing the identity of that person as the appellant.
Next, the magistrate referred to the person Mr Payne spoke to having lied about where he was going, on the basis of No. 17 being behind where he had just come from. It may readily be accepted that the person encountered on the street lied about his reason for being there. It may readily be inferred that he did so because he was the person who, minutes before, Mr Payne had disturbed in his neighbour’s yard. However, the fact that whoever was disturbed in that yard later appeared on the street and lied about his reason for being there in no way goes toward establishing that it was the appellant.
Next, the magistrate referred to the fact that the person on the street wore the same shorts, shoes and socks and had the same dragon tattoo on the leg. If one pauses there to ask “The same as who?” the answer can only be “The same as the person in the yard”. The answer cannot be the same as the defendant; unless there was evidence of the defendant having those clothes or such a tattoo.
The magistrate then made his observations about the likelihood of there being two people with a dragon tattoo, dressed the same, huffing and puffing having just been running. That may be accepted; but it proved nothing in identifying the appellant as that person.
The magistrate then turned to consider the evidence of Mrs Browne. His Honour commenced his consideration of her evidence by saying “Notwithstanding her failure to identify the defendant on the photo board she was shown – and I’ve already made the observation that a very poor selection was made, with respect to the photo she was asked to identify with that case”. This was his Honour’s incorporation in his reasons, by reference to them, of those earlier observations made in the course of hearing submissions about the deficiency which he considered was inherent in the photograph of the defendant in Mrs Browne’s photo board.
The errors in his Honour’s reasoning are apparent.
First, his Honour referred to Mrs Browne’s “failure” to identify the defendant, rather than her having identified another person. Inherent in the characterising it as a failure on Mrs Brown’s part to identify the defendant rather than as an identification by her of someone else is a presumption that it was the defendant who she ought to have identified, because he was the person she saw on the night, but that she failed to do so. His Honour then provided the explanation as to why she so failed. That explanation was his Honour’s own subjective view of the adequacy of the photograph of the defendant supplied for his identification. It presumes that a better (in the magistrate’s subjective view) photograph would have resulted in Mrs Browne, correctly, identifying the defendant rather than the person who she did identify.
The magistrate then expanded upon his explanation for Mrs Browne’s failure to identify the defendant by saying that even with the defendant sitting ten feet in front of him, he could not recognise him on the photo board. Apart from the magistrate’s impermissible substitution of his own process of identification for that of the witness in the trial, his Honour misconceived the photo board identification process. The process was one by which a witness who had seen a person at night, under torch light, on one occasion, was asked if she could recognise that person from amongst a group of 12 photographs which may, or may not, include a photograph of the person seen on the night. It was not a process by which a person (the witness or the magistrate) could recognise the defendant in the dock, as he appeared that day and almost a year later, under lights, as the person depicted in one of the photographs on the page.
The error in the magistrate’s approach to this issue is clear from the number of occasions on which his Honour expressed his view as to the deficiency in the photograph, and the way in which he expressed it. Variously he:
· Said the photograph on the photo board didn’t look like the defendant at all – so he wasn’t surprised that Mrs Browne didn’t pick him;
· Said that the officer wasn’t helping anyone by picking a photo that doesn’t look like the defendant much;
· Described the photograph as a very poor photograph of the defendant;
· Said that the photo of the defendant on the photo board “doesn’t look like him to me – I mean, I couldn’t recognise him either. So I’m not surprised she couldn’t”;
· Said that he didn’t regard Mrs Browne’s photo board identification “as materially affecting the credibility of her evidence, because, as I say, I wouldn’t have recognised him on that photo board either. It was a very poor choice of photo by the police, I have to say”;
· Observed that “well, he’s sitting right in front of me, and I still wouldn’t recognise him on that photo board”.
The magistrate’s reference in submissions to his not regarding Mrs Browne’s credibility as being materially affected is relevant to what his Honour next said about her evidence in his reasons. Again, however, it demonstrates his misunderstanding of what use could properly be made of her evidence.
His Honour observed that apart from her reference to the man she met on the street wearing a yellow shirt, her description of him including the tattoo was the same as Mr Payne’s.
His Honour seems to have viewed the consistency of description of the man on the street as between Mr Payne and Mrs Browne as establishing her as a witness of credit, notwithstanding her failure to identify the appellant in the photo board. This too was an erroneous approach. First, the fact that Mrs Browne did not identify the appellant in the photo board, and in fact identified another person, did not diminish her credibility. The only way that the Magistrate could have seen it as such was if he presumed that it was the appellant who was the person seen on the street that night. That his Honour does appear to have presumed that is apparent from other comments which he made to which I shall come shortly.
Secondly, consistency as between the description of the person on the street given by Mr Payne and Mrs Browne is, of itself, unremarkable. It is also largely irrelevant to the central issue of identification.
It is unremarkable because the evidence is simply that they met the same person at the same time. That they should describe him in a consistent manner is to be expected. It is largely immaterial because Mrs Browne describing the person she met in terms similar to Mr Payne goes no further to proving that the person who she was describing was the appellant than does Mr Payne’s evidence about the similarities between the persons in the yard on the street; which is not at all. It’s only relevance is that it otherwise pointed to Mrs Browne’s credibility and reliability, which may have been relevant to her photo board identification.
The significance of Mrs Browne’s evidence is that she, as an otherwise credible witness, did not only not identify the appellant in the photo board, but she identified someone else. At no point is his reasons did the magistrate consider the fact that another person was identified by Mrs Browne. That fact should have been considered by the magistrate. Particularly, it should have been considered as to whether it caused him to have doubt about Mr Payne’s identification of the appellant. The magistrate considered only what he described as Mr Browne’s failure to identify the appellant; that is her failure to provide a second identification supportive of Mr Payne’s. Having explained why that had occurred by reference to his own opinions about the photo board photograph, the magistrate simply put Mrs Browne’s evidence to one side. He did not deal at all with her identification of another person.
The same observations can be made about the next aspect of Mrs Browne’s evidence commented upon by the magistrate which was that it included reference to the “same lie” told by the man on the street about why he was there. Consistency between her version of the conversation and Mr Payne’s version of it is entirely unremarkable. They were parties to the same conversation. It is immaterial as to proof of the appellant as the offender, other than perhaps enhancing Mr Browne’s credit and reliability.
The failure of the magistrate to consider the identification by Mrs Browne of another person in its proper context was an error in his consideration of the issue of identification. Without such proper consideration his Honour’s statement that he had regard to the whole of the evidence was wrong. His Honour did not consider the whole of the evidence.
Also, his Honour’s finding that it was “the evidence as a whole and the conclusion to be drawn from it determines the matter of identification” was wrong insofar as it was a statement of why it was that identification was established beyond reasonable doubt. The whole of the evidence was not considered, and the use which could me made of much of that which was considered was misunderstood.
The magistrate should have understood that the only evidence which tended to prove that the person on the street was the appellant was Mr Payne’s photo board identification, and to a much lesser extent his dock identification of the appellant. The magistrate needed to weigh against that the identification of Mrs Browne of someone else.
It was not, as has been submitted by the respondent on the appeal, a matter of the magistrate preferring Mr Payne’s evidence as to the identification because Mrs Browne had qualified that she had selected the other person because she had “felt” that it was him. The magistrate did not resolve the evidence on that basis. Even if he had, he would have been wrong to have done so.
The recordings of the photo board interviews were not in evidence. They could have been. The fact that the defence did not require them to be put in evidence is not to the point. The onus was on the prosecution. It chose what evidence to adduce. As the magistrate correctly observed when the prosecution had said that it was happy to play the interview with Mr Payne, whether it did so was a matter for the prosecution.
The qualification, if it be one, offered by Mrs Browne was not offered at the time of her selection of the image on the photo board. It was offered at the hearing. However, even if it be assumed that it was a qualification such that it did not amount to a positive identification,[7] all that would mean is that it would not be evidence, of itself, capable of satisfying a finding of guilt of the person so identified. It would not erode the fact that the appellant was not selected and the other person was. That was what was relevant in this case.
[7]See Pitkin v The Queen (1995) 69 ALJR 612 at 615-616.
I have already mentioned that his Honour appears to have presumed that it was the appellant who was the person in the street that night. That his Honour did so emerges from other parts of the exchange with Mr Thomas during submissions.
At one point during the discussion of Mrs Browne having identified a different person, the magistrate said that was not sufficient for him to have any doubt about Mr Payne’s evidence of identification and said:
“And I recognise him in the photo anyway. So even without the police officer’s evidence, I was happy with that”.
That statement suggests that the magistrate was content to approach the issue on the basis that he himself could identify the defendant, who he had seen in court, amongst the photos on the photo board and, in that way, be satisfied as to identification. That is an entirely erroneous approach. It is the same erroneous approach which caused him to explain why Mrs Browne would not have identified the appellant on her photo board.
Being able to identify, for himself, that the appellant was in Mr Payne’s photo board is entirely irrelevant. It is a known fact that the appellant was one of the persons whose image was on the photo board. It in no way tends to prove that the appellant was the offender seen by Mr Payne in the yard or the man on street that night.
That the magistrate presumed the appellant to be the offender, however, is even more apparent from another statement made shortly afterwards, again the context of Mr Thomas having referred to Mrs Browne’s positive identification of someone different. His Honour said:
“That doesn’t mean that that creates any doubt in my mind about the identity, particularly when one of the witnesses has got it spot on”.
The reference to Mr Payne getting it “spot on”, can only be understood as a reference to Mr Payne correctly identifying the offender as the appellant. It presumes that the appellant was the offender, and that when Mr Payne picked him he got it “spot on”.
This amounts to a removal of the presumption of innocence. The issue is whether Mr Payne’s photo board identification, when taken with all the other evidence, proved beyond reasonable doubt the identity of the appellant as the offender. It was not that the selection of the appellant was “spot on” so as to confirm his presumed guilt. It was not a case in which there was other evidence which tended to implicate the appellant as the offender.
Something should be said of the dock identifications.
Mr Payne’s dock identification could fall within the confirmatory category discussed in Murdoch v The Queen. There had been a prior out of court identification. However, his Honour did not refer to either dock identification in his reasons. He did not refer to Mr Payne’s dock identification in the course of hearing submissions. It was only Mr Payne’s photo board identification to which his Honour referred.
In Pitkin, the High Court spoke of the dangers of subsequent direct identification when there had been an earlier photographic identification in these terms:
“In that regard, once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the witnesses’ recollection of the actual appearance of the offender”.
The standard bench book directions on dock identifications identify the very real dangers associated with that form of identification. Particularly the realisation that it is the accused present in court who is alleged to have committed the offence.
With those matters in mind, I would not find that the dock identification of the appellant by Mr Payne is evidence upon which I would act in finding the appellant guilty.
The dock identification by Mrs Browne does not fall within the confirmatory category referred to in Murdoch. She had not made an out of court identification of the appellant. To the contrary, she had identified someone else. The fact that she had done so, and then purported to identify the appellant in court, rather highlights the very real dangers associated with dock identifications. It should be given no weight at all.
The final issue is whether the magistrate reversed to the onus of proof. The relevant exchange from which the submission emerges is as follows:
“BENCH: And he has positively asserted that the same tattoo was on the leg.
MR THOMAS: Later on.
BENCH: No, that he
MR THOMAS: Earlier in the peace. Yes. Yes. That’s right. And – and
BENCH: And it’s not contradicted.
MR THOMAS: It’s not contradicted. It was put to him, and he
BENCH: There’s no – there’s no – no evidence from your client that he doesn’t have a tattoo of a dragon on his leg, and he’s in a position to have given that evidence – has elected not to.
MR THOMAS: Yes.
BENCH: So I’m left with the prosecution evidence.
MR THOMAS: Yes.
BENCH: And if, in fact, your client didn’t have that tattoo on his leg then, I would have thought, a dragon tattoo on his leg was very easily rebutted.
MR THOMAS: The – the – I can only make the submissions I’ve made. Your Honour has heard the evidence. Your Honour will make what assessment of the evidence that you will. I have made submissions
BENCH: That’s a fair point, isn’t it? If he doesn’t have a dragon tattoo on his leg, it’s very easily rebutted, isn’t it?
MR THOMAS: Yes. Yes. But it’s not for the defendant, of course, to
BENCH: No.
MR THOMAS: It’s for the prosecution to prove their case, and
BENCH: But it’s a fair observation.
MR THOMAS: Yes.
BENCH: If he doesn’t have a dragon tattoo on his leg, it’s very easily – it could have very easily been rebutted, and that would have been the end of the case.
DEFENDANT: I don’t have one.
MR THOMAS: Well
BENCH: So, in the absence of any contradictory evidence, there is only the evidence of the prosecution witnesses, and my assessment of their reliability and their credibility.”
It is to be noted that the magistrate returned to the issue of the defendant not having rebutted the presence of a tattoo on his leg when he easily could have done so, even after Mr Thomas had raised the issue of the prosecution bearing the onus, and his Honour’s apparent acknowledgment of that. His Honour returned to the issue by stating “But it’s a fair observation”.
His Honour then observed that in the absence of any contradictory evidence, there was only the evidence of the prosecution witnesses and his assessment of their reliability and credibility. Having made that observation during argument, his Honour should have dealt in his reasons with the complete lack of evidence in the prosecution case linking the appellant with either the clothing, or more importantly the tattoos.
His Honour had, in that exchange during submissions, identified an evidentiary gap in the prosecution case. However, he failed to consider that gap in his reasons. Rather, he referred to the evidence of Mr Payne and Mrs Browne about clothing and tattoos as though it somehow linked the appellant as the offender which, for reasons already expressed, it did not. All it did was link the person in the yard with the person on the street.
Given his Honour’s failure to address the identified gap in the prosecution case in his reasons, and given his comments about the appellant’s failure to adduce evidence on the issue, which comments were repeated even after the prosecution’s onus had been raised, even though it was not referred to in his reasons I cannot exclude that his Honour filled that gap by reference to the appellant’s failure to fill it. That is a reversal of the onus of proof.
However, even if not viewed as a reversal of the onus of proof, it was an evidentiary gap in the prosecution case which resulted in Mr Payne’s identification of the appellant as being the only evidence by which he could be linked to the offence. That, together with Mrs Browne’s identification of an entirely different person, ought to have left the magistrate with a reasonable doubt as to the identification of the appellant as the offender.
Disposition
For all these reasons, the magistrate erred in his conviction of the appellant. The conviction must be set aside.
This court is in as good a position as the magistrate to make findings, including the drawing of inferences, in this matter.[8]
[8]Warren v Coombes (1979) 142 CLR 531 at 551.
Having conducted a full review of the evidence and submissions before the magistrate, I am of the opinion for the reasons already explained, that the prosecution did not establish the identification of the appellant as the offender beyond reasonable doubt. A verdict of not guilty should be entered.
The appeal against sentence
The appeal against sentence can be dealt with briefly. Because the conviction should be set aside and the verdict of not guilty entered no sentence is to be imposed. However, for completeness I should address the issue.
In her written submissions, Ms Kelso concedes that the magistrate erred in fixing a parole eligibility date rather that a parole release date. The appellant was entitled under the Penalties and Sentencing Act to have a parole release date fixed. It is, therefore, conceded by the respondent that this ought be rectified, so that the sentence accords with the requirements of s160B(1) of the Penalties and Sentencing Act. The respondent contends that the sentence should otherwise be affirmed.
The fixing of a parole eligibility date rather that a parole release date constitutes an error in the exercise of the sentencing by the magistrate. As such the sentence would be required to be set aside and the appellant resentenced by this court.
Had the appeal against conviction been unsuccessful, I would have resentenced the appellant to the two months imprisonment on the trespass count. I would have activated each of the suspended sentences and ordered them to have been served concurrently with each other. It would, however, have been appropriate to order the sentence for the trespass to have been served cumulatively upon the activated suspended sentences. I would have ordered the appellant be released on parole immediately.
Orders
1. Appeal allowed.
2. Set aside the conviction and sentence below.
3. Enter a verdict of not guilty.