BRADY v POLICE No. SCGRG-00-9 [2000] SASC 35

Supreme Court of SA|2000-02-24|Before: Duggan J

Judgment No. [2000] SASC 35

On Appeal from PORT AUGUSTA MAGISTRATES COURT (MS R HAYES SM)

The prosecution alleged that the victim, Phillip Orr, was assaulted in the early hours of 20 February 1999 while he was standing outside his house at 55 McSporran Crescent, Port Augusta. Mr Orr gave evidence that while he was speaking to the father of his next door neighbour he saw a young woman walking down the street outside his house crying and swearing. He spoke to the woman and said "Would you mind keeping it down a bit? There is [sic] people trying to get to sleep". He said the woman then abused him and swore at him. He said she then called out "Hey, this white cunt is getting smart with me". Mr Orr turned to where she was facing when she called this out and he saw three men walking down the road. They were about two houses away when he first saw them. The man to whom Mr Orr had been talking at the time he first saw the woman then jumped in his car and drove off. Mr Orr said that the three men approached him. In his evidence he described what happened:

"A One man came up and said 'Are you giving my missus a hard time?' and I said 'No, I was just asking her to keep it down a bit' and he said 'You were giving my missus a hard time, weren't you?' and he poked his chest out into my chest, chested me. While he was doing that, there was another person, another one of the group, fossicking around the letterbox area where I have got rocks placed, he must have been picking up a rock. Q Then what happened? A Then I woke up in hospital."

Mr Orr was treated at the Port Augusta Hospital and subsequently at the Royal Adelaide Hospital. There was a laceration above his right eye, a further laceration above the right upper lip and abrasions to both shins. An x-ray revealed a fracture of the right side of the mandible.

There was no attempt at trial to see whether Mr Orr could identify the appellant as the person or one of the persons responsible for the attack on him. The prosecution case was based upon circumstantial evidence. The starting point for that case was the identification by Mr Orr of the young woman. He purported to identify her from a series of photographs. The photograph which he picked was that of Kristy Strangways. There was evidence that, at the time of the alleged offence, Ms Strangways and the appellant were living together in a sexual relationship. This was then linked to the comment by the man who confronted Mr Orr to the effect that the victim was "giving my missus a hard time". Furthermore, there was evidence that the defendant, Kristy Strangways and a number of other people were present at a party at 65 McSporran Crescent that evening and that they left at a time which, on the Crown case, was consistent with the group of them walking past the victim's house at about the time of the assault. There was evidence that Kristy Strangways showed signs of being upset shortly before leaving the party. Finally, there was evidence which, on the prosecution case, supported the inference that Kristy Strangways and the appellant went to nearby premises after the incident and arranged for a taxi to pick them up.

The appellant did not give evidence at the hearing.

The learned magistrate concluded that the circumstantial evidence, when considered in its entirety, established proof of the commission of the offence by the appellant beyond reasonable doubt.

The grounds of appeal against conviction are as follows:

"Ground 1 That the Learned Stipendiary Magistrate erred in failing to exclude the photographic identification of Kristy Strangways in that:- (a) it was unfair to the Appellant to admit the evidence in circumstances where the police had failed to follow the proper procedure of holding an identification parade; and (b) its admission into evidence was contrary to public policy. Ground 2 That the Learned Stipendiary Magistrate's finding of guilt proved beyond reasonable doubt was against the weight of the evidence and was unsafe and unsatisfactory."

In relation to the first ground it was argued on behalf of the appellant that the investigating police officers should have held an identification parade in order to determine whether Mr Orr could identify the appellant. The failure to do so, it was said, should have led the exclusion of the photographic identification of Kristy Strangways. The relevance of the failure to place the appellant in an identification parade to the admission of the evidence of the witness Kristy Strangways is not readily apparent. However, there is a more obvious reason for rejecting the argument now advanced. This argument was not put to the learned magistrate; nor were any questions asked of the police witnesses as to why an identification parade was not held in order to determine whether the appellant could be identified. There could well have been a valid reason for not holding an identification parade. It is impossible on the evidence to determine the matter one way or the other. There is no evidence upon which to base a finding that there was any unfairness on the part of the police officers in this respect which would be relevant to the exercise of the discretion to exclude the evidence. As no basis for the exercise of the discretion on this ground has been established the argument must be rejected.

The next argument advanced on behalf of the appellant was that the evidence of the photographic identification of Kristy Strangways should have been excluded on public policy grounds. Before dealing with the details of the argument which was advanced, it is necessary to refer to the history of this identification. Kristy Strangways was 16 years of age at the time of the incident. She is of Aboriginal descent. Detective McIntyre was the investigating police officer. He said in evidence that shortly after the alleged offence he discussed with Kristy and her parents the possibility of her taking part in a physical identification parade in order to determine whether Mr Orr could identify her. He said that he did not consider that she was a suspect, but the identification was relevant to the circumstantial evidence case upon which the prosecution hoped to rely. Detective McIntyre said that at first Kristy and her parents agreed to such a parade and he then negotiated with the local high school to see whether he could arrange for a group of girls similar in appearance to Kristy to take part in the parade. He said he spoke to the school principal on two occasions but endeavoured to contact him on a number of other occasions without success. He said that it was difficult to locate Kristy over this period. It was not until 29 June 1999 that Detective McIntyre located her and she then told him she did not wish to take part in a line-up. He was then placed in the position of having to organise the photographic identification procedure which took place on 10 July 1999. This was when Mr Orr identified Kristy's photograph.

Mr English, for the appellant, argued that the delay in arranging the identification procedure was an important consideration which should have led to the exclusion of the evidence. In considering this argument it is important to have regard both to the conduct of the investigation and the fact that the identification was made some months after the alleged offence. I accept that the organisation of a physical line-up in these circumstances posed a number of difficulties. Kristy was only 16 years of age and it was somewhat unusual for the police to have to go to the local school to organise a parade involving other girls of similar age and the same race.

Furthermore, it appears that the Director of Public Prosecutions was of the view that Kristy should have been treated as a suspect, whereas the detective disagreed with this view. Then there was the difficulty of keeping in contact with the girl and the fact that she changed her mind about the parade. Despite these problems, I think more could have been done to expedite the procedure and this consideration is of some relevance in the exercise of the discretion. To this must be added the period of the delay. The more pertinent question is the fact and effect of the delay. Mr Orr made quite a positive identification and he appears to have had no difficulty in making that identification. Of course that does not guarantee the accuracy of the identification. But, after considering all matters relevant to the exercise of the discretion, I am of the view that the learned magistrate did not err in admitting the evidence. Once admitted it had to be treated with caution, but I do not accept the argument that it was wrongly admitted.

In reaching this conclusion I have also taken into account Mr English's argument that an independent police officer should have conducted photographic identification. Whilst agreeing that it is sometimes preferable for this to occur, I do not regard it as being of any particular relevance in the exercise of the discretion in the circumstances of the present case.

The second ground of appeal states that the finding of guilt was against the weight of the evidence and that it was unsafe and unsatisfactory. In support of this ground Mr English returned to his criticisms of the identification evidence. I have referred to the delay of over four months between the incident and the identification procedure. It is an important consideration which requires close attention in the assessment of the probative value of the evidence. It was a photographic identification with the well known shortcomings of that evidence as compared with a physical line-up. The incident was at night, although there was artificial overhead street lighting. Mr Orr did not know Kristy Strangways. He was under stress and he was rendered unconscious as a result of the incident. He had the young woman under observation for a relatively short period of time after he noticed her and spoke to her. Mr English criticised some aspects of the photographic procedure, but in my view this procedure was conducted fairly and Detective McIntyre was able to provide a reasonably detailed account of what took place including what Mr Orr said when he identified the photograph.

I am satisfied that the learned magistrate took these considerations into account. Furthermore I do not think that the identification evidence was so unsatisfactory as to give rise to concern about its accuracy. When considered against the background of the other evidence in the case, I think the learned magistrate was entitled to rely upon it. Of course, she could not do so without taking into account the potential dangers of acting upon evidence falling into this category.

The identification evidence was essential to the prosecution case, but it did not stand alone. The magistrate was entitled to have regard to the fact that the appellant, Kristy Strangways and some male companions, went to the Milera house which was in the same street as Mr Orr's house on the evening in question. There was evidence from which it could be inferred that their group left the Milera house late in the evening at a time consistent with the general time period when, according to Mr Orr, the assault took place. There was also evidence that Kristy was upset whilst at the Milera house. Finally there is the relationship between the appellant and Kristy which would render it appropriate for him to refer to her in the terms used by the man who approached Mr Orr. I do not think that very much reliance can be placed on the evidence which was used to support the suggestion that Kristy and the appellant went to the Coulthard house after the incident to order a taxi. On the other hand, however, the evidence does not support, as a reasonable possibility, the suggestion by Mr English that another group from the party travelled past Mr Orr's house and were responsible for the assault.

I have reached the conclusion that the finding of guilt was not unsafe or unsatisfactory. In my view there was evidence to support the finding.

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