Criminal law and procedure - Evidence - Identification - Whether magistrate failed to adequately take into account problems in identification - Good character - Whether character should have been mentioned - Courts and judges - Duty to state principles - Duty to take warnings into account

Magistrates Court Act 2004 (WA), s 31

1 McKECHNIE J: The appellant was charged with one count of assault occasioning bodily harm arising out of an incident Friday evening, between 22/23 September 2006, at the Riverton Gardens Hotel. This was a night on which the Dockers played in their first final and the complainant attended to watch the game. During the course of the evening he was assaulted causing tenderness and slight bruising over the left cheek bone and tenderness over the bridge of the nose. In due course the appellant was charged with the offence and stood trial on 29 June 2007. In a video record of interview, and in his evidence to the magistrate, he denied the offence. The sole evidence linking him to the crime was the evidence of two witnesses who identified him as the assailant.

2 The magistrate convicted the appellant. From that conviction he appeals.

4 The first identification witness called was Ms Wright who was aged 34 years at the time of trial. She attended with the complainant and others, including the complainant's son, Brodie Lewis, to watch the game. Following the game they left the area where the television was and headed to the outdoor garden area to have a few drinks. During the evening she drank about six or seven full-strength beers. She described the incident which was the precursor to the assault:

I was outside and we had just all bought each other a beer. Stephen picked up a middy which was on the table which we thought was his. Two young guys came up, one with blond hair, one with dark hair, started complaining about the beer, saying it was his. We argued that it wasn't his and I offered to give him my - I had a Crownie at the time - a Crown lager. I offered to give him my beer and he refused it. He said that he wanted his beer which was the one that Stephen Lewis had in his hand. We had a bit of an altercation, a couple of mouthfuls of words and they left each other and walked away. (t/s 7, 8)

5 Later she went into the toilet. As she came through the doors back into the garden area, the youth jumped up onto a ledge about two foot high. He leaped off the ledge and hit the complainant, smashing him across the side of his face. The witness was about three metres away and had a clear view with nothing obstructing it. Afterwards the youth ran off to his group of mates and started laughing. Three months later, on 19 December 2006, following a request from police, she attended the Cannington Police Station and identified photo number 7 from a digiboard. Photo number 7 was a photograph of the appellant. In cross-examination she described the two men who approached the complainant. One was blond hair, skinny and six foot six inches tall, wearing a white shirt. The other male had brown hair and slightly shorter and skinny. It was the blond-haired person saying 'That is my beer'. The person who struck the complainant was of average height, dark brown, long dreadlocks with a dark tan wearing a creamy-yellow shirt, dark eyes and medium build. She denied knowing that Brodie Lewis had seen someone at a garage and denied speaking to Brodie Lewis about the matter around about 18 or 19 December 2006. She was asked at the police station if she saw anybody she could identify and there was no obligation to identify anybody in the group.

6 The other identification witness was Brodie Lewis who is 23. During the evening he drank possibly seven or eight beers. He saw people he knew - Jarrod Quaif, Paul Anderson and Jarrod Quaif's brother Rhys. There were other people in the group but he did not know their names. He witnessed the incident in relation to the beer. He went inside to get himself another drink, walked outside and 'seen a bloke jump off the ledge and king-hit my dad'. He was about five or six metres from the incident and described his view as 'pretty good'. 'There was a tree right in the middle but it was to the side of that so yeah, it was pretty good.'

7 He described the person on the ledge as 'having dreadlocks, skinny, a whitey T-shirt he had on, light-coloured'. He had seen him before during the evening drinking out in the beer garden.

8 On Thursday, 12 October 2006 at about 7.00 am as Brodie Lewis was going to work he saw the man who hit his father getting fuel at the Peak Service Station. He was driving a white Commodore and he wrote down the registration number and gave it to his father.

9 On 18 December 2006 Brodie Lewis attended the Cannington Police Station and was shown a digiboard. He identified number 7 who was the appellant. This was the same digiboard later shown to Ms Wright. Common practice is to use different digiboards but this practice was not followed.

10 In cross-examination he said that he had known three of the males from the group from when he went to school and there was a male in the group who was under six foot tall, slim build with dreadlocks with a white T-shirt. He said that he had seen this male at another time at Jarrod Quaif's house, although he did not know his name. He agreed that the person who saw at the hotel in the previous month was the person at the service station getting some petrol. He denied speaking to Ms Wright about the matter. At the service station he was not close, three or four bowsers away, approximately 10 metres. He recognised him straightaway.

11 The appellant was interviewed on 23 October 2006. There was some confusion in the questioning about the offence, it being suggested by the police that it was the Friday night before the grand final night. The appellant said that he went most Friday evenings to the hotel to the bottle-o. He did go to the hotel on Fridays and to the beer garden. He steadfastly denied being in any fight where someone had got their jaw or cheek bone broken; that being what was suggested. His general position was that he was unable to recall the particular night. He could have been at the hotel, although not around midnight, but otherwise would have been at his house, or in Fremantle; but at all times denied the incident.

12 The appellant gave evidence that he had been working for two to three years, was 21 years old and had no criminal record. He did not know Paul Anderson or Rhys Quaif and had never been to the hotel with Quaif. He responded in the same manner to Jarrod Quaif and had never been to his house. He said that the hotel is the only hotel in Lynwood: 'It is a nice pub that we all go to':

I used to go there every Friday after work, to the drive-through bottle-o, not actually into the place. Just on my way home.

What about in the hotel?---Yeah. We usually go in there for a few games of pool and a counter meal.

13 He had seen other people with dreadlocks - about three or four at one time. He had never seen anyone described as blond-haired, skinny and about six foot six. He said they were all around his height, about five-fivish. On the night of 22/23 September he was watching the football game with his mates but he could not remember whether it was at his house or his mate's house. He normally drinks bourbon although he does drink beer on occasions in the summertime.

14 Following addresses by the prosecutor and counsel the magistrate gave oral reasons for her decision. The magistrate summarised the evidence of the video record of interview:

So bearing in mind that some of the questions were misleading in that video record of interview the accused says he goes to the pub - that pub, most Fridays after work.

It should be noted that in the video record of interview he said that he goes mostly every Friday through the driveway. He gave a fairly non-committal answer to a statement that he regularly attended the hotel by a police officer.

His evidence in court is slightly different from his evidence on the record of interview in relation to his habit, as he said on the record of interview, of going to that hotel every Friday night at that time after work. What he says in court is that he goes through the drive-through which is a bit different from going to that hotel.

16 This is not quite fair on the appellant. In answer to early questions from the officers, who themselves had confusingly placed the evening as the Friday night before the grand final, he said that he attended the hotel 'mostly every Friday when I knock off work. I do go there and drive through the bottle-o'. In answer to the following question he said:

I go to the pub not every day but I go every say, week or so, and I go once or twice in the last couple of weeks.

17 It was therefore incorrect to say that his evidence in court was different.

18 The magistrate warned herself about identification as follows:

I have to have regard to a number of factors in determining whether the identification evidence should be given sufficient weight in all the circumstances. They include the amount of opportunity to observe. Any prior identification. The length of the observation of the incident and any particular features that the accused might have had, and particular identifying features, and a number of other aspects. (ts 44)

19 The magistrate then dealt with the evidence of Ms Wright saying:

That is a fairly detailed description of what happened. A person of average height, dark brown dreadlocks, medium build. The third witness, Brodie, describes the person in a similar way.

20 I interpose to say the witness described the assailant as wearing a creamy yellow shirt, dark eyes, medium build, dark brown long dreadlocks with a dark tan. Brodie Lewis described the person as under six foot tall, skinny build with dreadlocks, wearing a whitey T-shirt. The magistrate placed considerable weight on Brodie Lewis's evidence partly because he had seen him (the assailant) earlier in the night so it was not a case of seeing the appellant or the assailant once only for a few seconds. The magistrate said:

He might have been mistaken about the names of some of the people or whether he had seen him at one of the houses of one of these people earlier on but that night, in a group, some of whom he believed he knew, dreadlocks, he is the person running around the ledge and smashes his father in the face. So he had a prior opportunity that night to see this person, identifies the person. The identification fits the description of the accused whom he subsequently and not quite three weeks later immediately recognises out of the blue in a service station when he was not even out there looking for somebody, instantly knew that this was the person.

The accused's evidence that he usually drinks at the hotel every Friday night, that is in the record of interview, and drinks in the beer garden. This is where this incident happened. And he often goes to the Peak service station which is where he was recognised as the person from the hotel. He kind of steps back from that in court. He says he just drives through the bottle shop which, when he was talking in a general way, was not what he said on the record of interview. (ts 46)

21 The magistrate was satisfied beyond reasonable doubt on the evidence of the witnesses.

1. The learned Magistrate erred in that her Honour did not properly direct herself as to the dangers inherent in photoboard identification.

(a) The learned Magistrate failed to warn herself as to the 'displacement effect' in circumstances where one witness had seen the appellant between the alleged incident and the subsequent photoboard identification;

(b) The learned Magistrate failed to give herself any warning as to the dangers of recognition evidence;

(c) The learned Magistrate failed to warn herself that two identifications from photoboards do not necessarily support each other.

(d) The learned Magistrate filed to warn herself as to the effect of intoxication on the reliability of identification evidence.

In addition the learned Magistrate is not required to mention all the factors that affect her reasons; it is simply not practical in this jurisdiction: Nevermann (1989) 43 A Crim R 347.

23 The appellant's counsel appears to accept this statement saying at par 12 of the submission:

It has been said that due to a the number of cases heard in the Magistrates Court an appeal court should not be unduly critical and the court will examine whether the intellectual process revealed by the Magistrate's [reasons] demonstrates that overall, the Magistrate understood and applied the law properly. Nevermann (1989) 43 A Crim R 347; Garrett v Nicholson [1999] WAR 226.

24 There are two points to be made. The first is that I do not consider Nevermann (1989) 43 A Crim R 347 is authority for the proposition contended for by the respondent. Secondly, if it is, it has been overtaken both by statute and High Court authority.

25 In Nevermann the point in issue was not reasons for a judgment of conviction but reasons for sentencing which were described as 'extremely brief'. Malcolm CJ said:

It is not necessary for full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a Court of Petty Sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly without being developed in any detail. (350)

26 Significantly, after reference to authorities, Malcolm CJ continued:

It is enough if the sentencing Judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate.

27 Malcolm CJ did not say that a magistrate is not required to mention all factors that affect the reasons. Moreover, nothing that Malcolm CJ said in relation to reasons for sentence can have any application on the issue whether a magistrate has adequately expressed reasons for conviction.

28 In the present case, the magistrate's reasons are adequate in the sense that she has properly exposed her reasoning process. That is not the point. The grounds of appeal suggest that she has failed to take into account certain matters and thereby committed appellable error. If there is such a deficiency, the fact that the court might be busy, as it is, and the fact that the magistrate is a careful and competent magistrate, as she is, does not overcome the deficiency. And I do not regard Nevermann as authority to the contrary. Nevermann cannot be regarded as a form of judicial putty to fill in textual deficiencies in reasons for decision.

29 I turn to the second point. A magistrate's duties are now set out in the Magistrates Court Act 2004 (WA) s 31:

Judgments, content of:

(1) The Court's reasons for a judgment in a case -

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

30 While the word 'only' is used in s 31(1)(a) and s 31(1)(b), the principal requirement is the need to identify the law the court has applied. In that respect the Magistrates Court Act is similar to the Criminal Procedure Act 1986 (NSW) s 133(2):

(2) A judgment by a judge in any such case must include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case the judge is required to take the warning into account in dealing with the matter.

31 In Fleming v The Queen [1998] HCA 68; 197 CLR 250, the court was concerned with the application of the Criminal Procedure Act (NSW) s 133 to an appeal on a trial by single judge alone. The court held that the section is not satisfied merely by a bare statement of the principles of law the judge has applied and the findings of fact the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. Furthermore, the court said:

However, as we have said, an animating principle which lies behind the requirements of s 33 (sic) is that criminal justice not only be done but also be seen to be done. The judgment must show expressly or by necessary implication that the warning was taken into account. If the judgment does not do so a breach of s 33(3) has occurred. It is no answer that the trial judge is an experienced judge who is well aware of the requirement of a warning but that he or she must have taken a warning into account. [37]

That the various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction but that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies the principle of law. [32]

33 The number of negative statements in this paragraph make the sense a little obscure but in essence the court is saying that the requirement to give a warning is a principle of law.

34 Although the Magistrates Court Act s 31, unlike the Criminal Procedure Act (NSW) s 133(3), does not require in express terms that a magistrate take a warning into account, the High Court in the passage just quoted has indicated that a warning is a principle of law within, in my view, the terms of s 31(1)(b) of the Magistrates Court Act. If that principle of law, a warning, is not identified in the reasoning then there may be appellable error notwithstanding s 31(2).

35 The only evidence against the appellant was identification evidence. His account was not inherently implausible and, as I have endeavoured to indicate, the account given in court was not materially different from the account given on the record of interview. He was a person of good character, at least in the sense that he had no previous convictions. There was no evidence of bad character.

36 In my opinion, the magistrate's warnings about the dangers of identification evidence were insufficient in the circumstances. In the case of Ms Wright she had one brief opportunity to observe a person in a moment of heightened stress due to the assault on her friend. She was not asked to recall the person until some three months later. A witness may be honest and convincing yet unreliable.

37 In the case of Mr Brodie Lewis, the magistrate conceded the possibility that he may have been mistaken about seeing the assailant at the home of one of the men on an earlier occasion. Yet it was not Brodie Lewis's evidence that he was mistaken. Moreover, it was important evidence in relation to recognition because otherwise the only opportunity for recognition occurred having observed somebody in the hotel earlier that night.

38 Brodie Lewis's observation some weeks later is clear and definite. The subsequent identification of the photograph on the digiboard called, at the least, for a warning that the witness may be displacing the identification of the assailant with the identification of the person he saw at the service station.

39 This case required a warning of the type set out in Harrison (1987) 29 A Crim R 213 at 227 as follows:

(1) The trial judge should warn the jury of the special need for caution before convicting the accused in reliance of the correctness of the identification or identifications.

(2) He should instruct the jury as to the reason for the need for such a warning and make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can be mistaken.

(3) He should direct the jury to closely examine the circumstances in which the identification by each witness came about, including such matters as whether the witness had seen the accused before and discrepancies in appearance between the description given and the accused's actual appearance.

(4) He should remind the jury of any specific weakness in the identification evidence.

Franklyn J set out other matters but these seem to be the relevant ones.

40 In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 the court said:

Nevertheless, the seductive effect of identification evidence has 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 the 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. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. (561 - 562) [case citations omitted)

41 Translated into a trial by a magistrate without a jury, in a case such as the present where identification evidence is the only evidence, it is necessary for the magistrate to set out in detail warnings in relation to the special nature of identification evidence and those matters which might weaken the identification evidence. There should be reference to the possibility that a mistaken witness can be convincing and that there is not necessarily, to use a colloquial expression, strength in numbers. The magistrate of course should then act on the warnings and explain why, after taking account of the warning, the evidence satisfies the magistrate.

42 In my opinion, the case called for warnings of this type and the magistrate's failure to do so has led to appellable error.

1. The learned Magistrate erred in that her Honour failed to have any regard to the evidence of good character given by the appellant.

43 It is common ground that the magistrate did not refer to the evidence of character. Here the appellant was relevantly of good character in that he had no previous convictions. He was entitled to have this taken into account at the least in the assessment of his evidence. It is true that it will not be an error of law in every case to fail to remind a jury (or in Magistrates Courts the failure to mention and take into account) of evidence of good character, but that does not mean that the good character of an accused can always be ignored. In some cases the failure to take into account good character can amount to an error of law.

44 The law relating to character evidence has recently been the subject of decision in Donaldson v The State of Western Australia [2007] WASCA 216 per Buss JA at [63] - [80]. It is a matter of discretion whether a good character direction is given by a judge or referred to in the reasons of a magistrate. Consequently, failure to give a direction or make a referral does not inevitably mean that error has occurred.

45 In the present case, while such a referral would have been prudent, the failure to do so is not an error.

46 For these reasons the appeal succeeds on ground (1) with the result that the conviction is set aside. The evidence of identification is not so weak that a conviction following a trial in which a magistrate has taken due account of the warnings necessary would be unsafe. Therefore, I order a retrial and remit the matter back to the Magistrates Court for that purpose.