New South Wales Court of Criminal Appeal CITATION : R v Tahere [1999] NSWCCA 170 revised - 05/07/99 FILE NUMBER(S) : CCA 60005/99 HEARING DATE(S) : 23 June 1999 JUDGMENT DATE : 23 June 1999 PARTIES : Regina v Addis TAHERE JUDGMENT OF : Spigelman CJ at 1; Studdert J at 38; Adams J at 39 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0374 LOWER COURT JUDICIAL OFFICER : Job DCJ COUNSEL : J S Stratton (Appellant) P G Berman (Crown) SOLICITORS : T A Murphy (Appellant) C K Smith (Crown) CATCHWORDS : Evidence - in-court identification - Evidence Act 1995 s114 ACTS CITED : Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) CASES CITED: Taufua, unreported, NSWCCA, 11 November 1996 DECISION : Appeal allowed; Order a new trial IN THE COURT OF CRIMINAL APPEAL 60005/99 SPIGELMAN CJ STUDDERT J ADAMS J Wednesday 23 June 1999 REGINA v Addis TAHERE The appellant was charged with using an offensive instrument (a car) with intent to prevent lawful apprehension contrary to s33B of the Crimes Act 1900 (NSW). The Crown case was that the appellant was the driver of the vehicle and the only issue in the case was the identification of the appellant as the driver. Among various identification evidence was an in-court identification of the appellant. Held (By the Court): Section 114 of the Evidence Act applies to an in-court identification: Taufua, unreported, NSWCCA, 11 November 1996 applied. On the basis of the material before the Court the Crown has not established that at the time of the trial or at a time reasonable proximate to the time of the trial "It would not have been reasonable to have held" an identification parade. Section 114(2) thus renders the in-court identification evidence inadmissible. Notwithstanding the trial judge's direction that the jury would give the evidence "little weight", a miscarriage of justice occurred. The cumulative effect of the evidence going to identification was sufficient to sustain a conviction. A new trial should be ordered. ORDERS 1 Appeal allowed. 2 Order a new trial. ********** IN THE COURT OF CRIMINAL APPEAL 60005/99 SPIGELMAN CJ STUDDERT J ADAMS J Wednesday 23 June 1999 REGINA v Addis TAHERE JUDGMENT 1 SPIGELMAN CJ: The appellant was charged in the District Court at Newcastle for the offence of using an offensive instrument with intent to prevent lawful apprehension contrary to s33B(a) of the Crimes Act 1900. He pleaded not guilty but after a trial before a jury was convicted. 2 The offensive instrument was a motor vehicle. The incident occurred during a police chase during which a vehicle was deliberately reversed into the pursuing police vehicle. The only real issue at the trial was whether the appellant was the driver of the motor vehicle. 3 At the end of the car chase the vehicle that was being pursued stopped and three persons, two men and a woman, were observed to run from the vehicle. One was apprehended, a Ricky O'Brien. He had been observed to leave the car from a rear seat. 4 The Crown case was the appellant had been the driver of the vehicle. Of central significance to this appeal is the body of evidence which was adduced to establish this proposition. 5 The two police officers who had been engaged in the vehicle chase were Senior Constable Coleman and Senior Constable Savage. Senior Constable Coleman said that he saw the driver of the vehicle - a silver Honda sedan - whom he described as a male person with long black hair. He later said that when the three persons were running from the vehicle he noticed that one male, relevantly the driver, was wearing a dark top and jeans and had shoulder length black hair and dark skin. 6 Senior Constable Savage described the driver as a man with long dark hair and a dark complexion and that this was the person whom he saw get out from the driver's seat of the vehicle after it had stopped. 7 A short time later Senior Constable Coleman was patrolling with Senior Constable Ryan when he saw a number of police standing together with a male person in Leonora Parade, which was reasonably proximate to the abandoned car. He observed that the person was of similar appearance to the driver of the silver Honda. He then escorted the appellant to Wallsend Police Station. 8 Senior Constable Coleman answered in the affirmative to a question stating that the person "was of similar appearance to the person you had seen running from the silver Honda earlier?" The evidence he had earlier given was that the person was "wearing a dark top and jeans and had shoulder length black hair and dark skin". Senior Constable Coleman was not cross-examined, either about his description of the driver or about the circumstances in which he concluded within a short time of the occurrence that the appellant "was of similar appearance". The jury was entitled to infer that, at that time, the appellant answered the description both in terms of appearance and dress. 9 Constable Kendros also gave evidence that at about 7.20 that morning he was travelling in a northerly direction along Parkhill Road. This is an area to the north-east of the point at which the car had been abandoned, somewhat further to the north-east than Leonora Parade. 10 At about 7.20 that morning Constable Kendros said he saw a male person about 180 cm tall with long straight dark hair, dark coloured skin of Pacific Islander appearance. He gave evidence the person was wearing a black shirt with white jeans and joggers. He said shortly thereafter he saw the same person who he had seen at Parkhill Parade. That was in Leonora Parade where he, with Senior Constable Holmes, approached the man. A little while later they were approached by a person identified in the questioning as Detective Senior Constable Cox and he said that he handed over custody of the man to Detective Senior Constable Cox. On the basis of the interconnection between this and Detective Senior Constable Cox's evidence, it is plain that the person whom Constable Kendros had identified in Parkhill Parade, and later in Leonora Parade, was the appellant. 11 A Mr Robert Wall gave evidence. He saw the three persons leave the vehicle. He described the person who got out of the driver's side as having dark skin, like an Islander, being fairly tall, with long black hair. He confirmed the police evidence that three persons got out of the car, two males and a female. He was shown an identification video, but was unable to identify any of the people. 12 Mrs Hitchcock, another nearby resident of Compton Street, which is to the north of the place at which the car was abandoned and to the west of Parkhill Parade, said she had a conversation with someone who had jumped over the fence from her back yard into her front yard. She described the person as having dark skin and very long hair down to his shoulders. She was shown an identification video of seventeen faces, but she did not recognise a face. 13 Her husband also provided a description. He identified the appellant during the course of his evidence in court. The evidence of Mr Matthew Hitchcock was as follows: "Q. Are you referring to a particular man who you saw on that day? A. Yes. Q. Can you see him in this Court? A. Yes I can. OBJECTION Q. Mr Hitchcock, you see the gentleman who was in your front yard here in this Court room? A. Yes I do. Q. Where is he? A. Where, sitting over there. Q. You're referring to the accused in the dock? A. Yes." 14 Mr Hitchcock went on to describe the person he had seen on the night as wearing a grey shirt and either dark grey or black jeans, being of medium build, medium height, with dark skin colour and black long hair and described the person as "possibly an Islander". 15 Mr Hitchcock was cross-examined to the effect that he had been shown a video of some seventeen faces and had not been able to identify the appellant from that video. 16 Other evidence linking the appellant to the car involved fingerprints in the vehicle which were identified as those of the appellant. 17 Detective Senior Constable gave evidence. He had conducted certain police investigations following the car chase. The appellant had agreed to blood and urine samples being taken from him at the John Hunter Hospital on that day. Furthermore, the appellant had agreed to participate in an identification parade. Detective Senior Constable Cox gave the following evidence: "Q. ... You were concerned about an ability to obtain a number of persons of sufficiently similar appearance? A. Yes. Q. To conduct a line-up that was fair? A. Yes, it would not have been fair to place the accused in a line-up at that time. We couldn't find a sufficient amount of persons similar to himself so that he wouldn't stand out in any line-up or in an identification parade. Q. What's the normal procedure in relation to gathering people to participate - or what do the police do? A. Depending - it always goes on time. It always goes on the time of day as well. It can be more beneficial to be evening rather than day time but the police basically check local hotels, local areas where there may be people gathering and things along those lines in an attempt to obtain some people that are willing to come along and go into an identification parade. That was done but unfortunately we just couldn't obtain similar people." 18 An electronic record of interview was conducted by Detective Senior Constable Cox with the appellant. That interview was tendered in evidence. The appellant admitted some knowledge of the vehicle. He said he knew it was owned by a person with whom he was acquainted. He also said he had been in the car that morning for a short period. That evidence could explain the presence of his fingerprints. He also said that he had been dropped off in an area which he described as Christo Road, and that seems to be an area somewhat to the south or south-east of Leonora Parade, where he was eventually apprehended. 19 The person who fled from the car and was apprehended by the police, Ricky O'Brien, gave evidence. Originally, in a statement to the police, he had identified the appellant as the driver of the car. He withdrew this assertion in his evidence. He asserted the driver was a Mr Paul Ho. He was cross-examined by the Crown on the basis of his prior inconsistent statement and he was also cross-examined by counsel for the appellant. His Honour made several remarks about the weight of this in his summing-up, but it is not necessary to refer to it in full. However, during the course of his summing-up his Honour Judge Job emphasised that the jury had to be satisfied beyond reasonable doubt that the appellant was the driver of the vehicle. 20 His Honour informed the jury: "So special caution is necessary before accepting identification evidence because of the possibility that even completely honest witnesses may be mistaken in their identification ... ... The common experience of the criminal courts over the years both here in Australia and overseas has demonstrated that identification evidence, however honestly given, may turn out to be unreliable. There have been some notorious cases over the years in which completely honest evidence of identification has been demonstrated to be wrong even after innocent people have been convicted. The reliability of the identification of a person depends upon the circumstances in which the witness observed the person whom he or she has identified as the accused and that any one of those circumstances may possibly lead to error. 21 His Honour then referred to the evidence of Mr Hitchcock and said, in the course of his summing-up to the jury: "You must approach all identification evidence with special caution." 22 He said with respect to the evidence of Mr Hitchcock, referring to it as an in-court identification: "The accused is sitting in a special spot in the Court. You might think that when somebody has come to court and if he is asked about who it was his eyes would immediately light upon the person who was in the centre of the Court in an area which is called the dock. So I direct you that you should give little weight to in-court identification of such a nature but it is still a matter for you. But I direct that you should give little weight to such identification. You heard it, you saw how it was done and it is a matter for you." 23 His Honour also referred to the evidence of Mr O'Brien, his prior inconsistent statement in the cross-examination, and outlined a number of the matters going to his credit and said: "These are factual matters for you, members of the jury, but obviously his evidence would be completely unreliable you might think. That is not a direction at all, members of the jury, it is a matter for your own commonsense having heard what he said." 24 In conclusion, his Honour also referred to the Crown submissions that a circumstantial case existed, in these terms: "The Crown put to you is it likely that a person of similar appearance to the accused would be seen by Mr and Mrs Hitchcock, by Mr Wall getting out of the car, by the police in the car, if it was not the accused? He said there is something distinctive about him." 25 The first two grounds of appeal concern the in-court identification by Mr Hitchcock. The appellant put, alternatively, that his Honour erred in admitting the in-court identification or, alternatively, he erred in not discharging the jury after the in-court identification. 26 The appellant relied on s114 of the Evidence Act which provides: "114(2). Visual identification evidence adduced by the Prosecutor is not admissible unless: (a) an identification parade that included the defendant was held before the identification was made; or (b) it would not have been reasonable to have held such a parade; or (c) the defendant refused to take part in such a parade; and the identification was made without the person who made it having been intentionally influenced to identify the defendant." 27 The issue argued before this Court was whether or not (b) was satisfied: Was it reasonable not to hold that identification parade? This Court has held that s114 applies to an in-court identification (Taufua, unreported, NSW CCA, 11 November 1996 at 6-8). 28 Subsections (3), (4) and (6) of s114 are also material: "114(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account: (a) the kind of offence, and the gravity of the offence, concerned; and (b) the importance of the evidence; and (c) the practicality of holding an identification parade having regard among other things: (i) if the defendant failed to co-operate in conduct of the parade - then the manner and extent of, and the reason (if any) for the failure; and (ii) in any case - to whether the identification was made at or about the time of the commission of the offence; and (d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification. (4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held. ... ... (6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identification." 29 I have outlined above the evidence of Detective Senior Constable Cox that it was impracticable to obtain enough people of similar appearance to permit a fair identification parade to have been conducted on the evening of the offence. At a subsequent point in his evidence, he also indicated he had had some similar difficulty some sixteen days after that evening. 30 It would have been open for the trial judge to have found, on the basis of the evidence of Detective Senior Constable Cox, that it would have been unfair to the appellant to hold an identification parade at that time and accordingly that the conclusive presumption found in s114(4) applied. However, this was not the relevant question. 31 The issue of visual identification evidence arose during the course of the trial. There was no evidence before the Court that the particular circumstances of unfairness present on the night of the offence, or any other basis for a finding of unreasonableness, were also present at a time reasonably proximate to the trial. 32 Counsel for the appellant submitted that it did not appear that his Honour turned his mind to the question of whether or not it was reasonable to hold an identification parade. There is no transcript before this Court of the submissions made when the objection was taken to the in-court identification. Nor is there a separate judgment on this matter. On the basis of the material before this Court, the Crown has not established that at the time of the trial or at a time reasonably proximate to the time of the trial: "It would not have been reasonable to have held" an identification parade. On that basis, s114(2) operates in accordance with its terms and the visual identification evidence was not admissible. 33 The only issue in the case was the identification of the appellant as the driver. The evidence on this matter was disparate. None of it had the force and clarity of the in-court identification by Mr Hitchcock. Notwithstanding his Honour's direction that the jury would give it "little weight", in my opinion a miscarriage of justice occurred. 34 Ground 3 of the appeal was that a conviction could not be sustained on the evidence and accordingly that this Court should exercise its discretion and direct a verdict of acquittal. 35 In my opinion, the cumulative effect of the various aspects of identification are such as could be accepted by a jury to establish beyond reasonable doubt that the appellant was the driver of the vehicle. Even without direct identification evidence, there is a circumstantial case which could be accepted. There is evidence of similarity of appearance, a connection with the car, and physical proximity to the site at the relevant time. 36 The appellant has served twelve months of an eighteen months minimum term. That is a matter which is sometimes taken into account in exercising the discretion as to whether or not there should be a new trial. However, in my opinion, whether or not this appellant should be tried again is a matter that should be left to the prosecution authorities. This is not a case in which the Court should direct a verdict of acquittal. 37 Accordingly, the orders I propose are appeal allowed. Order a new trial. 38 STUDDERT J: I agree with the Chief Justice. 39 ADAMS J: I also agree. 40 SPIGELMAN CJ: The orders are as I have indicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.