Johnson v Giumelli [2003] ACTSC 58

3. The burglary and theft in respect of which the appellant was charged, was recorded on security cameras located at various positions within and outside the premises. The video tape from those cameras was in evidence in these proceedings. The offences occurred at about 3.00 pm in the afternoon and involved the removal of items from the storeroom in the premises.

4. At about the time of the offence Mr Scales, an employee of ARB, saw a person at the premises with whom he had a short conversation. At the time he was within a metre of the person and had a conversation which lasted 20 - 25 seconds. He described the man as having "sort of long darkish sort of hair", that he "had a baseball style cap on" and that his hair was "about shoulder length". He said that he had "on his right side a bit of a scar on his lip, looked to me like a cut or a burn or something. It's what I noticed, it was very distinct.". He estimated the size as "a centimetre, a centimetre and a half maybe". He said that he had "typically lighter coloured skin through the scar" and that his skin colour generally was "darker, dark skin, but not as in very dark. Just tannish dark sort of skin.". He said that the man was of "Aboriginal appearance". He also described facial hair "a little bit on the sides of the lips" and described it as extending from the top edge of the lips down to the base of his chin. He described the man as a similar build to himself and said that he was approximately 175 cm tall. He described the man's clothing.

5. Some four months later, Mr Scales was shown a series of nine images depicting the video photo images of the faces of different men. He selected the image of the appellant as the man he had spoken to at the premises on 27 September 2002. This identification was not attended, it would seem, with any degree of certainty. From the transcript of the conversation with the attending police officer he was asked -

Q9. Can you identify the person that you saw on Friday the twenty seventh of September two thousand and two, at Gladstone Street, Fyshwick that you described in your statement?

A I don't believe so, no, he's not on there. I'd like to take another look if that's okay.

(Video replayed)

Q10. Yep. Okay. How'd you go that time?

A I wrote down the ones I thought but it definitely wasn't him. Um [number six] has me a little con - sorta concerned but the fit that you know, the - the images aren't a hundred percent clear to pick out the things that I do remember on `im.

Q11. Did you want to see image number six again?

A Yeah, if that's okay, yeah.

(Image shown)

Q12. Okay if -

A He had something wrong with his right side of his lip, like it's been burnt or been cut or something and stitched back together wrong or something like that. It was kinda funny but like I said it's not a hundred percent clear to sort of pick that but -

Q13. Okay.

A `Cause his ... (indistinct) ...

Q14. As a percentage, what would you say the resemblance is of this person to the person that you saw on that day?

A I'd say probably a good fifty fifty percent that it was him.

Q15. Okay.

A Like I said, without at - you know, a clear image of - of his, you know, full facial features, it's - to be honest with you, it's very hard to say - to say yes that's definitely him or not.

Q16. Okay.

A But his moustache was sort of like his, like, you know, a little bit missing, especially around near his lip - his lip area.

Q17. Okay. Did any of the other images catch your eye or is it number six?

A No, it's pretty much number six that's sort of, you know -

No evidence was given of the features of the persons depicted in the other eight video photos. The identification also seemed to fix on one feature, one distinguishing feature alone, without reference to the other features to which the witness had deposed.

6. When Mr Scales gave his evidence at the trial he was permitted, over objection, to make an in-court identification of the appellant. After he had made that identification he was then asked in examination-in-chief as to the percentage resemblance that he had referred to when picking the video photo image. The questions and his evidence were -

Now, when you participated in this identification parade, you were asked, as a percentage what would you say the resemblance is of this person to the person that you saw on that day, and you answered, "I'd say probably a good 50 - 50% that it was him", what did you mean by that answer?---I meant that 50% - yes, it could be the gentleman but 50% - no, it couldn't be because the image wasn't that clear and I didn't want to falsely accuse somebody that I wasn't you know, 100% sure of, but I was - I had a doubt in my mind that - yes, that looked very, very similar to the gentleman that - that I'd spoken to that day.

What was it about the image that caused you to form the view that you couldn't be a 100% sure that it was the person that you'd seen on that day?---The top right-lip area wasn't 100% clear to - to distinguish that I'd noticed on the gentleman of the day.

All right. And had - seeing that person - or seeing a person in court today who you've identified as the man you saw on the 27 September, 2002, do you have any difficulty - or do you have any concerns about your ability to identify that person as being the person you see in court today?---There's no doubt in my mind that's the gentleman I spoke to on the day."

7. The other evidence upon which the prosecution relied was the vehicle used in the offence, images of which were also recorded on the security video. That vehicle, although a common make, having regard to its colour, markings and features, is almost certainly a vehicle that the appellant owned at the time. This was an important additional piece of evidence, but notwithstanding this, the prosecution case depended heavily upon the identification evidence given by the employee. The prosecution could not establish its case beyond reasonable doubt without some reasonably cogent evidence of the appellant's presence at the scene.

8. Objection was taken, at all points, to the giving of the identification evidence but it was admitted over those objections. At one stage, in admitting the evidence the Magistrate said -

... [M]y view is that the court in Pitkin [Pitkin v The Queen [1995] HCA 30; (1995) 130 ALR 35)] was saying that it has to be subject to careful scrutiny, certainly, but in Pitkin it was not inadmissible per se. And my view also in relation to the argument based on section 137 [of the Evidence Act 1995 (Cth)] in relation to this conversation, in relation to photo ID, is that it is something that goes into the mix and also has to be subject to careful scrutiny, but any prejudice that may go to the defendant can be cured by an appropriate direction to myself. (My emphasis.)

The finding in respect of the identification evidence

9. The Magistrate found the charges proved. In doing so, she said this about the identification evidence -

Another circumstance I can take into account is the evidence of Mr Wayne Scales, an employee of ARB. Mr Scales gave evidence that on 27 September 2002 he had a conversation with a man in the workshop area of the premises, an area that is not open to the public.

After viewing Exhibit 3, Mr Scales gave evidence that he is 100% sure the film is of the same person that he had the conversation with. In my view Mr Scales' description of the thief very well describes the defendant, even down to the facial hair and the very distinctive scar the defendant has on his upper lip.

Further, Mr Scales, when shown a number of photos by the informant, selected the photo of the defendant as the only one that was obviously of someone who had physical similarities to the thief. Although the witness was, through this process, unable to say with certainty that the defendant was the thief, this is yet another circumstance that I am entitled to take into account.

In light of the Magistrate's comment when she admitted the evidence, some expression of the matters which might affect the acceptance by her of this evidence was certainly called for, and not provided.

10. The appellant in this appeal contends that the Magistrate failed to expressly identify the weaknesses in the identification evidence and failed to expressly warn herself of the danger of convicting the appellant in light of those weaknesses. Section 116 of the Evidence Act 1995 (Cth) recognises the case of identification evidence a judge is to inform the jury that there is a special need for caution before accepting such evidence and the jury must be informed of the reasons for that need for caution, both generally and in the circumstances of the case. It was put by the defence, and conceded by the prosecution, that in circumstances where a tribunal is performing the functions of a jury, that there is a clear obligation on the part of the tribunal to "expressly warn" in respect of identification evidence. In Grbic v Pitkethly [1992] FCA 451; (1992) 38 FCR 95, Sheppard J said -

In a case tried without a jury, the tribunal will not usually reject the evidence, but it will be faced with the question whether, in the light of the totality of the evidence, it can safely conclude that it has been established beyond reasonable doubt that the crime was committed by the accused. In reaching its conclusion, the tribunal must give itself the appropriate warnings of the dangers inherent in identification evidence in cases where the accused was not previously known to the witnesses. It then needs to consider those warnings and to be sure that it has heeded them.

11. That passage was accepted and applied by Miles CJ in Sharret v Gill (1993) 113 FLR 316. It is apposite to this case.

12. In written submissions filed after I had first heard this matter, the appellant submitted that the following would constitute an appropriate warning -

(a) Special caution is necessary before accepting identification evidence because of the possibility that even completely honest witnesses may have been mistaken in their identification.

(b) 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 after innocent people have been convicted.

(c) The reliability of an identification of a person depends upon the circumstances in which the witness observed the person whom he or she has identified as the defendant and any one of those circumstances may possibly lead to error.

(d) In the present case the matters of relevant significance which may reasonably be regarded as undermining the reliability of the identification evidence by Wayne Scales are:

i. The man Mr Scales spoke to on 27 September 2002 was not previously known to Mr Scales.

ii. Mr Scales had a limited opportunity to look at the face of this man, the thief. He spent "roughly 20 seconds ... maybe 25 seconds" talking face to face with this man.

iii. This man, the thief, wore a baseball style cap which may have limited Mr Scales' ability to see the man's face.

iv. Mr Scales did not select the photo of the defendant from the police video photo board until some four months after the offence date.

v. Mr Scales' identification of the defendant from a video photoboard was equivocal. In any event, the inherent dangers of identification from photographs are notorious; photographs are a less reliable medium than direct identification; photographs render subsequent visual identification less reliable; whatever is said, the witness will be likely to assume that a photograph of the offender is present and will wish to assist police by finding it; the accused is absent from the process and cannot comment on the fairness thereof; there may, of course, be a suggestion of past criminal history conveyed by the photographic process;

vi. The "in-court" identification of the defendant by Mr Scales is prone to unreliability, and is insufficient to sustain a conviction. This is not only because the equivocal identification of the photograph of the defendant by Mr Scales rendered the subsequent "in-court" identification less reliable - but because, as the High Court said in Davies &Cody v R [1937] HCA 27; (1937) 57 CLR 170 at 182:

"if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial."

13. The respondent in this appeal concedes that this encompasses the nature of the warnings to which the Magistrate should have given express recognition. Subject to one matter to which I later refer, I agree that something along the lines that the appellant proposes was called for.

14. Notwithstanding that the respondent conceded in this appeal that the Magistrate had erred in not expressing these matters, the respondent nevertheless argued that the conviction may not necessarily be set aside, as an appeal court, after issuing the warnings to itself, may be left in no doubt. That was a formulation that Miles CJ in Sharret v Gill (supra) at 326 expressed. However, that was on the basis that he was conducting an appeal by way of rehearing and, presumably, for this purpose he was prepared to accept whatever findings of fact had been made by the Magistrate. His comments must also be read in light of the fact that he was satisfied that the observations of the identifying police constable in that matter, if the appropriate warnings had been given, would have left some doubt about the identification.

15. My attention has also been drawn to the decision of the Court of Appeal, Supreme Court of the Northern Territory in Tatam v Svikart [1999] NTSC 146 (unreported) in which Mildren J, in a case where identification warnings were not specifically addressed by a Magistrate, said at [10]-

It is clear from the judgment of the High Court in Domican v The Queen_, as well as other authorities to which we were referred, that once error has been established by the failure of the learned trial judge or the magistrate to give himself the appropriate warnings and to identify relevant weaknesses that need to be considered and taken into account, that amounts to a miscarriage of justice and therefore there can be no application of the proviso._

16. In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, Mason CJ, Deane, Dawson, Toohey, Gaudron, McHugh JJ concluded -

The case is not one where the Court of Criminal Appeal could conclude that the jury must inevitably have convicted the appellant despite the trial judge's failure to direct the jury to consider the specific weaknesses [in the identification evidence].

17. Because of this observation, it may be putting it too broadly as Mildren J did in Tatum v Svikart (supra) to imply that in no circumstance can there be no application of the proviso. It is, however, enough that the misdirection may well have affected the jury's verdict and that, in those circumstances, it cannot be said that there was no miscarriage of justice. That is the test which when adapted to the circumstances of a Magistrate's verdict, I adopt and apply in this case.

18. Amongst other things, the identification in this case by Mr Scales from the video photo, was not accompanied by the putting in evidence of the other photos from which he made his selection. I certainly do not consider that I am in a position to accept the observations made by Mr Scales without the benefit of hearing and seeing the evidence that he gave and weighing that against the appropriate warnings to be given in respect of his evidence. All that points to a requirement that, in order that the evidence be given proper consideration, a retrial should be ordered.

19. In the present case, not only is the in-court identification of such little weight, it effects the certainty expressed by the identifying witness. In Pitkin v The Queen [1995] HCA 30; (1995) 130 ALR 35 at 38, Deane, Toohey and McHugh JJ in referring to the dangers of identification from photographs said -

One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used. 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 photograph upon the witness' recollection of the actual appearance of the offender.

20. By leading an in-court identification from the identifying witness before achieving a satisfactory explanation of what the witness was saying at the time of the identification of the video photo weakens the value of both forms of identification. This is a matter which points not only to an additional warning as to this aspect being given, but it indicates why I am unable to conclude that absent that warning and the other suggested warnings, the Magistrate would have inevitably convicted in this case.

21. This conclusion makes it unnecessary to consider the argument put on sentence that s 375 of the Crimes Act 1900 (ACT) precluded the Magistrate from cumulating sentences so as to impose a sentence greater than two years. However, in the case argued on 1 July 2003 before this one (Crawford v Giumelli, SCA 19/03), the same point was taken by Mr Everson, who appeared as counsel in both cases. It is appropriate that I state my reasons why I would not uphold the point in this case as I did not uphold the point in the first case for the reasons which I now give.

22. Subsection 375 (10) of the Crimes Act 1900 (ACT) provides -

If the court disposes of a case summarily under this section and convicts the defendant of the offence, then, subject to subsections (11) and (12), but notwithstanding any other Territory law, the court may not impose a sentence of imprisonment exceeding 2 years nor impose a fine exceeding $5,000.

23. The argument referred to comments made by Miles CJ in Knight v Birch (1992) 106 FLR 109. The case with which Miles CJ was concerned was an appeal by way of order nisi to review Magistrates Court proceedings taken on behalf of an informant. The respondent had pleaded guilty in the Magistrates Court to 26 charges of theft, one charge of attempted theft and 26 charges of false accounting. On one of the charges of stealing, the respondent was sentenced to two years imprisonment suspended forthwith upon him entering into a recognisance. On another charge of stealing he was sentenced to 208 hours of community service. In all the remaining matters he was sentenced to the rising of the court. In dealing with the events in this case, Miles CJ remarked at 113 -

However, by virtue of s 447 (10) of the Crimes Act [now renumbered 375 (10)], the magistrate's decision to dispose of the cases summarily meant that the magistrate's sentencing powers were restricted and that he was not authorised to impose a sentence of imprisonment exceeding two years nor to impose a fine exceeding $5,000.

I take into account that two years imprisonment was the maximum which the magistrate was authorised to impose, and that the sentence was part of an aggregate sentencing structure in which the respondent was also ordered to perform the maximum number of hours by way of community service.

24. I do not consider that those passages support Mr Everson's proposition that s 375 (10) constitutes a bar to the cumulation of sentences beyond two years imprisonment for which Mr Everson contended. In that case, Miles CJ was dealing with one sentence of imprisonment which attracted the maximum. He was not concerned with cumulation of sentences and his remarks should be read only in the context of the matter before him.

25. In Seckold v Trembath [2001] ACTSC 45 (unreported, 1 May 2001) Spender J dealt directly with the point raised by Mr Everson here. It was his view (at [10]) in referring to s 375 (10) -

That subsection imposes a cap on the term that may be imposed in respect of "the offence". It does not, in my judgment, prevent a Magistrates Court from imposing cumulative sentences.

26. Mr Everson contended that the reference to "disposes of a case summarily" in the subsection includes all the matters at any one time before the court for summary disposition and thereby restricts the court to an overall sentence of imprisonment not exceeding two years. A reading of the scheme of summary disposal gives no support to construing the words in that way. The heading to s 375 is "Summary disposal of certain cases". In s 375 (7), the court accepts a plea of guilty to a charge and the court is of the opinion that the case can be disposed of summarily, it may act accordingly. The court is required by s 375 (8) to form an opinion about the case. It is that case with which s 375 (10) is concerned and that case is the charge before the court. I do not consider that Mr Everson's point has any substance.

27. Of course, where a Magistrate is confronted with a series of charges which may require an extensive cumulation taking the matter well outside what the legislature has regarded as the reasonable bounds of a Magistrate's jurisdiction, that may well be a matter for the Magistrates Court in forming its opinion under s 375 (8) as to whether or not a case can properly be disposed of summarily, but that is not this case.

28. I allow the appeal, set aside the convictions for burglary and theft and the breach of recognisance consequent thereon, and remit the proceedings in respect of those offences to the Magistrates Court for further hearing and determination.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the appellant: South Eastern Aboriginal Legal Service

Solicitor for the respondent: Director of Public Prosecutions (ACT)