DPP v Mark Daniel SMILLIE

Allen & Saffron (1989) 43 A Crim R 1 Festa v The Queen (2001) 76 ALJR 291 R v Clarke (1997) 97 A Crim R 414 CASES CITED: R v Ilioski [2006] NSWCCA 164 R v Marshall (2000) 113 A Crim R 190 R v Mendoza [2007] VSCA 120 R v Pretorius [2007] QCA 432 Smith v The Queen (2001) 125 A Crim R 10

TEXTS CITED: Odgers - Uniform Evidence Law 8th Edition

Ms. M. Shields for the Director of Public Prosecutions REPRESENTATION: Mr. C. Murnane of the Legal Aid Commission for and with the accused.

The evidence of identification is so unsatisfactory that the accused should be discharged. Therefore, the formal orders I made are: ORDERS: (1) I am of the opinion that the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence; however (2) For the reasons set out above, I am not of the opinion that there is a reasonable prospect of a reasonable jury, properly instructed would convict the accused of an indictable offence; and accordingly (3) The Accused is discharged in respect of the charge of Break and Enter and Commit the Serious Indictable Offence of Assault Occasioning Actual Bodily Harm that is before the Court.

The accused stands charged with the five matters set out above. The most serious of the charges is Sequence 1, i.e. the Break and Enter and Commit Serious Indictable Offence, namely, assault occasioning actual bodily harm. This matter is strictly indictable because of the nature of the serious indictable offence that is alleged to have been committed. The remaining four mattes are purely summary matters. However, the difficulties faced by the Crown with the issue of identification will also be present with the four summary charges. I had intended to give this decision on 19 April 2010; however, the transcript of the evidence of the two witnesses called at committal did not come to hand until the afternoon of 15 April 2010.

In this matter it is uncontroversial that shortly after 11pm on 6 May 2009 a male broke into the premises at 350 Stephen Street, Albury. Ms. Katherine Doogood, one of the new tenants at those premises disturbed the intruder when she heard rattling at the rear of the house. She said to the intruder, "what are you doing in my house, you're breaking into my house". The intruder replied, "Oh shit, wrong house". The intruder grabbed Ms. Doogood on the right forearm, scratched her and pulled her into the door. The intruder then fled from the scene. The live issue in the matter is that of identification.

The other tenant at 350 Stephen Street was Mr. Shannon Laurenceson, Ms. Doogood's partner. At about 11pm on 6 may 2009 Mr. Laurenceson left the Stephen Street premises in order to return to the house previously occupied. At the time he left he noticed to males on Mate Street (the old Hume Highway), one was a block up and the other was at the side fence of the Stephen Street premises.

Mr. Laurenceson maintains that the male that was near the side fence was wearing a grey jumper, with a dark blue hat and grey track pants or light blue jeans. The person appeared to have difficulty standing by himself. Upon returning to the Stephen Street premises, Ms. Doogood said to Mr. Laurenceson, "we just had our first break and enter, a male about 6 foot, 6 foot 2, weighs about 85-100kg. Ms. Doogood went on to tell her partner that the male had a grey jumper and white hat and the jumper was ripped down the middle and that the male had dark hair.

Mr. Laurenceson maintains that Ms. Doogood gave him the physical description after he asked the question, "What did he look like?" Ms. Doogood however, maintains that it was Mr. Laurenceson who initially volunteered the physical description in that he said to her, "Was it him, blue hat, grey jumper, he was on the corner when I left".

After the complaint was made to him, Mr. Laurenceson drove away in the hope of locating the person. He found a male answering the physical description at the APCO Service Station in Mate Street. Incidentally, Ms. Doogood worked at that Service Station. Mr. Laurenceson described the man he saw at the Service Station as wearing a grey jumper that was ripped and a white hat that had a little black symbol at the front. He maintained that this was one of the men that he had seen in the street earlier in the night. He confronted the man who denied any involvement in the offence.

Ms. Doogood in her statement of 7 May 2009 (paragraph 5) describes the male who she disturbed as 6 foot tall, sold build, wearing a navy blue cap, light grey jumper that had a hood, grey tracksuit pants and black shoes. He was unshaven and had stubble on his face. He had dark hair under the cap. She also maintains, "He didn't look up at me once".

On 7 May 2009 Ms. Doogood and Mr. Laurenceson went to the APCO Service Station where they viewed the security footage taken at the premises the night before. This fact does not appear in the statements made by Ms. Doogood on 7 May or 11 May. Indeed, it is not until 24 September 2009 that a statement is made wherein Ms. Doogood details her viewing of the security footage. She maintains in that third statement, "I went into the APCO the next day and looked at the surveillance footage. I saw the man who broke into my house and attacked me on the footage. He was wearing the same things, and I was sure it was him. I was positive it was him as he had a shirt ripped from where I had grabbed him. There is not doubt in my mind that the man who went into the APCO about 10 minutes after attacking me is the man that attacked me".

On 11 May 2009 Ms. Doogood and Mr. Laurenceson were in the CBD of Albury. She got out of the car and maintains that she recognised the man who she had disturbed at her house the previous week. She said to Ms. Laurenceson, "Babe, I think that's the guy who broke in". Both then walked after the man. Mr. Laurenceson, who incidentally works in the security industry stopped the accused and said, "Do you remember me from the other night. You broke into my house". The accused said, "Oh fuck". Mr. Laurenceson took hold of the man and the police were called. Ms. Doogood maintains that the man had the same or very similar clothing at the time. She maintains that the man was wearing a white hat on 11 May, but he was wearing a blue hat on the night of 6 May.

Ms. Doogood says in her statement on 11 May (second statement - paragraph 7, page 2), "He was the guy who was under my door and grabbed me, I have no doubt. He had the same white hat on and the same top". The added emphasis is mine, as it is curious indeed that she was say the man was "wearing the same white hat", when in her earlier statement she says that the intruder was wearing a blue hat.

Constable Probst was one of the officers who became involved in the matter. The accused who had been held initially by Mr. Laurenceson was taken to the Albury police station and processed. He declined to be interviewed. It seems that police never attended the scene at the Stephen Street address on 6 or 7 May.

It is apparently not disputed that it was the accused who was at the APCO service station on the night of 6 May, and further it is apparently not disputed that it was the accused who was approached by Mr. Laurenceson at that service station on 6 May and again in the Albury CBD on the afternoon of 11 May.

Limited cross-examination of Ms. Doogood and Mr. Laurenceson was permitted at committal, particularly in the context of them viewing the security footage at the APCO service station.

Ms. Doogood spoke to a member of staff who was able to work the necessary electronics to display the security footage. The footage was "fast forwarded" until "we saw him (p. 4 l. 42). Ms. Doogood viewed the footage for 4 or 5 minutes. It was replayed 2 or 3 times, each time for 3 or 4 minutes. She was about 2 metres from the screen on which the footage was being played, the screen being approximately 34 x 27 cms (she indicated that the monitor on the bench was about the same size as the one on which she saw the footage). Ms. Doogood conceded that the only reason she knew that the accused had been at the service station was because of what Mr. Laurenceson had told her. At p. 5 lines 26-7 she conceded that she left the room with a good idea of what Mr. Smillie (accused) looked like.

Mr. Laurenceson attended the APCO Service Station with Ms. Doogood on 7 May and watched the footage with her. He only watched it the once. A still photograph was taken from the footage, which is exhibit 5 in the committal proceedings. Mr. Laurenceson maintains that the clarity of the footage that he saw was comparable with the still.

It was put to Mr. Laurenceson, that the grey jumper being worn by the accused was ripped in the course of the confrontation between him and the accused. The answers at pages 11 and 12 on this subject are in my view significant. He initially said, "I believe it was done beforehand". His belief was based on what he was told by Ms. Doogood. He then maintained that he could say "for certain" that the jumper was not ripped in the confrontation. When asked how he could do that he said, "I actually saw him previously in my premises. He was hanging around my back fence".

On this aspect of the evidence, even accepting the first part of the last quoted answer was a slip (Mr. Laurenceson did not actually see the intruder on the premises); it was at 11pm at night. It is unlikely in the extreme that any one would have been able to definitely determine that there was a rip in a jumper from a moving car in the dark, even allowing for some ambient light and light from the headlights.

Mr. Laurenceson then went on to say that he saw the jumper was ripped when he got to the service station. Further, he could see that clearly when he got out of his vehicle (p. 12 lines 6 -11). A little later Mr. Laurenceson agreed with the proposition that the accused had his back to him he Mr. Laurenceson pulled up. He was then asked, "So you couldn't have seen the front of his jumper where you say it was ripped" (page 12 line 43). He replied, "When I pulled up in the driveway, he turned around".

The cross-examination continued on the issue of the confrontation. Initially Mr. Laurenceson maintained that the accused was trying to pull away (page 11 line 16). He was asked at p. 13 line 23, "And he was trying to pull away?" to which he replied, "No, I don't believe he was". The following questions and answers were then given (page 13 lines 36 - 44):

Q: So I take it that a moment ago you were either being truthful under oath or you weren't. What is it? A: I believe that he was trying to move away but I had him held. Q: He was pulling away from you and that's when the jumper was ripped. A: No it wasn't. Q: You can't say that with any certainty can you? A: Yes I can. 20. He then went on to deny the proposition that he was insisting on the jumper being ripped because of seeing it on the footage.

21. The next issue pursued was the description given to Mr. Laurenceson by Ms. Doogood. Mr. Laurenceson maintains that Ms. Doogood told him that the intruder was wearing a white hat. Ms. Doogood however, maintains that the intruder was wearing a blue hat.

22. No reading of the transcript will reveal what an unsatisfactory witness Mr. Laurenceson was in fact was. Mr. Murnane in his submissions put to me that Mr. Laurenceson was someone who "would say anything". That was certainly the impression with which I was left at the conclusion of his evidence. I would urge anyone reviewing this decision to actually listen to the recording of the evidence as it was given in order to fully appreciate the manner in which the evidence was given.

23. Clearly, any jury hearing this matter would need to be given very strong warnings as to the unreliability of identification evidence in accordance with sections 116 and 165(1)(b) of the Evidence Act 1995. The general warning would be to the effect that there is special need for caution before accepting the identification evidence from Ms. Doogood and Mr. Laurenceson, and that innocent people have been convicted upon honestly mistaken evidence - see R -v- Clarke (1997) 97 A Crim R 414. Further, on this aspect McHugh J. in Festa -v- The Queen (2001) 76 ALJR 291 at [55] said:

"Positive identification evidence has often proved unreliable. This Court has insisted that where identification evidence, direct or circumstantial, represents a significant part of the proof of guilt of an offence, trial judges must warn juries not only of the potential unreliability of that evidence but also of any particular weaknesses in the evidence, in the case being tried".

24. In a similar vein, Kirby J. in Festa at [160] said: "One of the common deficiencies of identification evidence is that it can often reflect unconscious projection by the witness of what he or she wants or expects to see, hear or otherwise perceive. This is clearly established in respect of visual recognition".
25. Further, there would need to be a strong warning given on the unreliability of photographic identification. Kirby J. in Smith -v- The Queen (2001) 125 A Crim R 10 (at p. 23) at [55] said:

"However, even relatives can make mistakes of identification form photographs. The accuracy of such identification testimony may depend upon the quality of the photograph; the clarity of the lighting at the scene; whether there is a frontal, or sideways, or rear depiction of the features of the subject; the eyesight of the examiner; the length of time that the photograph is examined; external indicia of familiarity in the print; the degree of physiological or psychological arousal at the time of perception and so on. Most people have, at some stage in their lives, mistaken the identity of a person as a family member or someone they know well. How much greater is the chance of error in identification where it is done from a photograph and the photograph relied upon is not of a well-lit studio portrait of a close family member or friend (where testimony might properly be accorded the status of fact rather than opinion), but the somewhat imperfect representation in a bank security photograph of a scene where the subject of the photography is taking pains to disguise, or hide, his or her appearance".

26. Still further, the jury would need to be given further warnings specific to the case. Ms. Doogood disturbed the intruder. She identified him principally from clothing, noting that in her initial statement she said that the intruder "did not look up at me once". She had the intruder under observation for a limited period of time in circumstances where she would have been highly distraught. Mr Laurenceson saw two people in the vicinity. There is the issue of the descriptions given as to the colour of the hat. Neither Ms Doogood nor Mr Laurenceson had any prior familiarity with the accused.

27. On this last issue Hunt AJA (Adams & Latham JJ agreeing) said in Ilioski [2006] NSWCCA 164 at [68]:

Identification evidence given by a witness who has some familiarity with the person said to have been present at the relevant time and place is generally (and reasonably) thought to be more reliable than the evidence of a witness who identifies a complete stranger as the assailant.

28. In my opinion there would need to be a particularly strong warning any jury on the issue of the manner in which the identification from viewing the security footage was undertaken. There is nothing within the evidence to suggest that there was other person(s) of similar characteristics to the accused, or for that matter any other persons at all in the vicinity at the time the footage was recorded. There was certainly no record taken of the identification conducted from viewing the security footage.

29. The learned author of Odgers Uniform Evidence Law 8th Edition at p. 541 notes that a relevant factor might be "the greater the degree of suggestion, explicit or implicit, to the effect that the person subsequently identified is the offender (or is a person suspected to be the offender) the greater the risk of error". It seems to me that this is a very real issue in this case. Odgers cites the Queensland case of R -v-Pretorius [2007] QCA 432 as authority. McMurdo J. said at [34]-[36]: On each count the issue for the jury was one of identification. The jury had to be satisfied that it was the appellant who had assaulted the complainant. It was necessary for the trial judge then to isolate and identify any matter of significance affecting the reliability of the identification evidence. [16] There was a real prospect that, as the three complainants stood together on the beach near where Mr Thornton spoke to the appellant, the identification by a complainant was influenced by the identification by another complainant. [35] That was the first identification by Pamela McGrath and Angela Kay. Paula McGrath had first identified the appellant when she and the young lifesaver went into the water to find him. That tended to make her evidence of her identification on the beach relatively more reliable. Still there was the possibility that she had influenced one or both of the other complainants. And the jury may have thought that her evidence was more reliable because the others had also identified the appellant. It was necessary then for the jury to have a clear direction as to the prospect that the identification by one complainant had contributed to the identification by one or both of the others. [36] So much was rightly conceded by Mr Byrne who then argued for the application of the proviso. [17] However, the proviso cannot be applied. The respondent gave evidence which denied the complaints. And as Jerrard JA points out, the complainants were mistaken in relation to at least one matter, in their evidence that it was the appellant who was in the driving seat of the car by which he left the scene. In these circumstances, not having seen the witnesses give their respective accounts, I could not be persuaded of the appellant's guilt.
30. The decision in Pretorius was unanimous, however, each of the bench gave separate reasons. Neither Gerrard nor Holmes JJA said anything to the contrary.
31. However, it is my opinion that the real difficulty the prosecution has to overcome in this matter is the displacement effect. That is, the witnesses in any subsequent identification are identifying the person they saw in the security footage rather than, in the case of Ms. Doogood, the person who was at the Stephen Street premises on the night of 6 May. The "displacement effect" was an issue in the decision of the Court of Criminal Appeal in R -v- Marshall (2000) 113 A Crim R 190 at 194 (at [27]-[29]) Spigelman CJ (Heydon JA and James J agreeing) said:

"Perhaps even more significantly, the evidence at trial, but not before the trial judge on the voir dire, created the situation which is often referred to as a 'displacement effect'. As indicated above, Mr. Sams had himself seen two or three photographs of the accused that morning. It is of some significance for present purposes that he did not identify the appellant from those photographs. Of determinative significance, in my opinion, is the possibility that when Mr. Sams made the identification of the appellant at the police station, he was in fact recalling, no doubt subconsciously, the features of the photographs he had been shown that morning, rather than the features of the person who had committed the robbery. This is, of course, the displacement effect.

This is a clear example of the dangers of identification evidence. It has been identified in numerous authorities. I give one example. In Alexander (1981) 145 CLR 395 at 409 Stephen J said: 'Lastly, there is the 'displacement effect'. Having been shown a photograph, the memory of it may be more clearly retained that the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting'. 32. Kirby J. also referred to the "displacement effect" in Festa at [160]: "One of the common deficiencies of identification evidence is that it can often reflect unconscious projection by the witness of what he or she wants or expects to see, hear or otherwise perceive. This is clearly established in respect of visual recognition". 33. In R -v- Mendoza [2007] VSCA 120 at [36] Vincent JA (Eames & nettle JJA agreeing) said:

In the circumstances, the potential for misidentification by this witness must be regarded as, at least, real. In particular, there can be seen to be a risk of wrong identification by reason of what has been termed the displacement effect and the possible contamination of her recollection as a consequence of her discussions with Ms Corpus. As Mason J stated in Alexander v R[11]- "Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed." 34. Both Ms. Doogood and Mr. Laurenceson are certain as to their identification. Spigelman CJ (Heydon JA [as his Honour then was) & James J. agreeing) said in R -v- Marshall (2000) 113 A Crim R 190 at [15]-[16]: The prejudice often associated with identification evidence is that, although mistaken, it is frequently given with great force and assurance by the person who made the identification. These are matters about which witnesses frequently refuse to admit the possibility that they might have erred and, accordingly, give evidence in a particularly definitive form. It appears that his Honour was impressed by the way Mr Sams gave the evidence of identification and indeed made reference to Mr Sams' demeanour. However, it is the experience of the Court with respect to identification, that demeanour can be misleading. 35. There is other circumstantial evidence available to the Crown, in particular, the fact that the accused was in the general vicinity of the time. However, the effect of this evidence in my opinion is significantly blunted by the discrepancies between Ms. Doogood and Mr. Laurenceson on the descriptions. It would also seem to me that the usual warning to a jury on circumstantial evidence would need to be given. The test to be applied 36. Section 62(1) of the Criminal Procedure Act, 1986 provides: "The magistrate must take the prosecution evidence in accordance with Division 3 and must determine whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence". 37. Section 64 provides: "When all the prosecution evidence and any defence evidence have been taken in committal proceedings, the Magistrate must consider all the evidence and determine whether or not in his or her opinion, having regard to all the evidence before the Magistrate, there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence". 38. Gleeson CJ (in dealing with now superseded but very similar legislation), in Allen & Saffron (1989) 43 A Crim R 1 said at p. 4:

"Under the constitutional arrangements which operate in this community it is for a jury to resolve disputed questions of fact that arise when a person is charged with an indictable offence. The extent of the qualification to that principle which is embodied in (the section) depends upon the magistrate's confidence in his ability, in particular circumstances, to predict the likelihood…that a jury will reach a particular decision". 39. Clearly, in proceeding to make the determination that s. 64 of the Criminal Procedure Act requires me to do, I must pay proper regard to the constitutional principle that the then Chief Justice mentioned. 40. Samuels JA in Saffron said at p. 6: "As he (a reference to Priestly JA who gave the leading judgment) has pointed out the learned Magistrate could scarcely have made an estimate of the effect which the evidence was likely to have upon the mind of a jury without assessing its impact on his own. The magistrate is in terms required to make a forecast of the assessment which an hypothetical jury, reasonable and properly instructed would make of the credibility and acceptability of oral and documentary evidence". 41. It is significant that s. 64 of the Criminal Procedure Act refers to the "reasonable jury, properly instructed". It is my opinion based on the words of the section, and fortified by that part of the judgment of Samuels JA extracted above that in coming to a determination pursuant to s. 64 of the Act I have full and proper regard to the directions that the "properly instructed jury" would need to receive. That is why I spent some time and effort in setting out the directions that would need to be given to the hypothetical jury in this case.

42. Priestly JA said at p. 15 in Saffron: "It seems to me inescapable that in attempting to assess the effect of evidence on a hypothetical reasonable jury a magistrate must be influenced by his own reaction to that evidence. I find it hard to conceive any psychological process by which a person hearing evidence could arrive at a conclusion about the effect of that evidence on hypothetical, that is, non-existent persons without the intermediate aid of his own reaction to that evidence".
43. Earlier in Saffron Gleeson CJ observed at p. 4: "The extent of the qualification to that principle which is embodies in (the then applicable section) depends upon a magistrate's confidence in his ability, in particular circumstances, to predict the likelihood…that a jury will reach a particular decision".
44. Although it is not relevant to the test as set out in s. 64 of the Criminal Procedure Act 1986, and as a matter of observation only, I indicate that had I been determining this matter to finality, taking into account all of the warnings and directions that I would been required to give myself, in particular those warnings as to the unreliability of identification evidence, particularly the issue of the "displacement effect", in circumstances of there being another male in the very near vicinity at the time of the offence, I would have no hesitation in coming to the conclusion that the prosecution had not proved the guilt of the accused beyond reasonable doubt.

While I have a transcript of the evidence of Ms. Doogood and Mr. Laurenceson I do not have a transcript of the submissions. I do, however, have a reasonably comprehensive note of them. Mr. Murnane on behalf of the accused submitted that although s. 130 of the Criminal Procedure Act 1986 prevented me from excluding the identification evidence (and in my view also having the effect of not being able to consider the discretions in sections 135 and 137 of the Evidence Act 1995), the evidence is so unreliable, of such little weight and of such little probative value that I would come to the conclusion that no reasonable jury properly instructed would be likely to convict the accused of an indictable offence. Mr. Murnane submitted very forcefully that Mr. Laurenceson was a person who would have impressed as someone who "would say anything". I agree with that submission.

Mr. Murnane went on the submit that what Ms. Doogood in particular was doing was substituting the person she saw on the video security footage for the person that she actually saw in the premises. It is my view that there is very real issue of the "displacement effect" in this case. Indeed, in my opinion so much of an issue when taken with the other difficulties faced by the prosecution that the accused should be discharged. Those other difficulties include the inconsistencies between Ms Doogood and Mr. Laurenceson as to the description of the clothing.

Further, it was in effect submitted that any circumstantial evidence such as the jumper being ripped does not strengthen the case, particularly, when the evidence of Mr. Laurenceson as to what occurred at the service station is taken into account. Mr. Murnane reminded me of the warnings that would need to be given to any hypothetical jury in this matter.

The Crown's representative maintained that it was an appropriate case for consideration by a jury. It is, in effect, the Crown argued for a jury to decide the matter after they had been given the appropriate warnings. It was argued that the alleged discrepancies are not fatal to the Crown case, and to some extent can be explained by the dynamics of the situation in which the witnesses found themselves, in particular, Ms. Doogood disturbing the intruder.

Ultimately, I am of the opinion that the submissions made on behalf of the accused are made good. The evidence of identification is attended by so many difficulties, the principal of which must be the displacement effect. There are discrepancies between the descriptions given. The warnings to any hypothetical jury in this case would need to be very extensive and very strong. I accept that the charge under consideration is very serious. I also accept that the events of the night of 6 May 2009 would have been extremely frightening and distressing to Ms. Doogood.

However, for the reasons given, I am of the opinion that the evidence of identification is so unsatisfactory that the accused should be discharged. Therefore, the formal orders I made are:

(1) I am of the opinion that the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence; however (2) For the reasons set out above, I am not of the opinion that there is a reasonable prospect of a reasonable jury, properly instructed would convict the accused of an indictable offence; and accordingly

(3) The Accused is discharged in respect of the charge of Break and Enter and Commit the Serious Indictable Offence of Assault Occasioning Actual Bodily Harm that is before the Court.

Gordon Lerve Magistrate Albury Local Court 14 May 2010.

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