(2016) 92 NSWLR 161
Pemble v The Queen [1971] HCA 20
124 CLR 107 Pitkin v The Queen (1995) 69 ALJR 612
(1995) 80 A Crim R 302
Category: Consequential orders
Parties: Prosecution: NSW Police
Source
Original judgment source is linked above.
Catchwords
(2016) 92 NSWLR 161
Pemble v The Queen [1971] HCA 20124 CLR 107 Pitkin v The Queen (1995) 69 ALJR 612(1995) 80 A Crim R 302
Category: Consequential orders
Parties: Prosecution: NSW Police
Judgment (2 paragraphs)
[1]
Judgment
The court was to give its verdict in this matter today. Following a close review of the transcript the court has decided not to give a verdict at this stage of proceedings. What follows are the court's reasons for decision for taking that course.
The essential reason that the court is taking this course stems from the court's overriding obligation to ensure a fair trial according to law. In order to explain why this course has been taken it is necessary to first set out the nature of that overriding obligation and then articulate how the obligation applies in this case. Put briefly, the court has an obligation in this case to ensure that the provisions of the Evidence Act 1995 as they pertain to identification and opinion evidence are properly considered and that the issue of identification is adequately ventilated by the parties.
A leading statement of the principle that a criminal court has an overriding obligation to ensure a fair trial can be found in Fullagar J's observations 64 years ago in the High Court decision of Mraz v The Queen (1955) 93 CLR 493 at [514]. His Honour said:
[E]very accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law.
R v Berrier [2019] NSWLC 12 | Case summary | Zoe
In Dietrich v The Queen (1992) 177 CLR 292 at [326] Deane J said in a passage that has been much quoted since:
"Strictly speaking, the requirement that the trial of a person accused of a crime be fair, being a legal one, is encompassed by the requirement that such a trial be in accordance with law. Nonetheless, it is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law."
The appellate courts have grappled with the question of just how interventionist a court should be in the adversarial and accusatory setting of a criminal trial. The answer given by the appellate courts has not always been the same. Often the answer is understandably influenced by the facts of each individual case and the forensic decisions of the parties. And judicial views on the subject have differed in the same case. For example in Doggett v The Queen (2001) 208 CLR 343 the plurality (Gaudron, Callinan and Kirby JJ) held that a judicial direction known as a Longman warning should have been given to the jury to secure a fair trial and to avoid a miscarriage of justice even though a direction had not been requested by defence counsel. The minority Justices, Gleeson CJ and McHugh J, delivered strong dissenting judgments.
The question of how interventionist a trial judge should be has arisen in the context grounds of appeal concerning the admission or rejection of evidence under the Evidence Act. Gleeson CJ and Hayne J in Dhanhoa v The Queen (2003) 217 CLR 1 said at [20]:
"The Evidence Act applies in an adversarial context. It is the parties, and their counsel, who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection. It is the duty of the prosecution, in its case, to lead the whole of the evidence to which the accused is required to make answer. It will often appear, in the course of a defence case, that some, perhaps much, of that evidence is not in dispute. In that event, it will be appropriate for a judge to point that out to the jury."
The Court of Criminal Appeal in Perish v R [2016] NSWCCA 89; (2016) 92 NSWLR 161 (Bathurst CJ, Hoeben CJ at CL and Bellew J) at [271]-[272] referred to the statement of Gleeson CJ and Hayne J in Dhanhoa v The Queen (2003) 217 CLR 1 at [20] above and held as follows:
[271] This statement, particularly the comment that it is for the parties to choose the evidence to which they will take objection, lends support to the conclusion contended for by the Crown.
[272] Second, nothing we have said relieves the trial judge from his or her overriding obligation to ensure a fair trial according to law: Pemble v The Queen [1971] HCA 20; 124 CLR 107 at [18]-[20]; James v The Queen [2014] HCA 6; 253 CLR 475 at [24]. To the extent necessary, this obligation would extend to requiring the trial judge on his or her own motion to exclude inadmissible evidence, the effect of which would deny a fair trial, and in other circumstances to direct the jury not to take account of a particular piece of evidence which would have been rejected had objection been taken.
As quoted above the court at paragraph [272] made explicit reference to two High Court decisions: Pemble v The Queen and James v The Queen. The Justices in the latter case not surprisingly referred to the former. In James v The Queen (2014) 253 CLR 475 the court was considering the issue of the role of a trial judge in relation to leaving alternative verdicts to the jury. French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ at [24] in a plurality judgment referred to "the trial judge's obligation to ensure the fair trial of the accused." The Justices continued:
"That obligation was explained by Barwick CJ in a frequently cited passage in Pemble v The Queen:
'Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.'"
In Kapanadze v R [2017] NSWCCA 69 the Court of Criminal Appeal returned to the issue of how interventionist a trial judge should be in the context of the admission and rejection of evidence. Hoeben CJ at CL, Walton J agreeing and RA Hulme J agreeing in additional judgment said at [57]:
….subject to the overriding obligation to ensure a fair trial according to law, there is no obligation on a trial judge to reject evidence of his or her own motion when no objection is taken and the accused is legally represented (R v FDP [2008] NSWCCA 317; 74 NSWLR 645 at [16] ff; Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at [66]; Penza and Di Maria v Regina [2013] NSWCCA 21 at [194] - [199]; Poniris v R [2014] NSWCCA 100; Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89 at [261] - [263]).
It cannot be doubted that a Magistrate presiding over a summary hearing has the same common law obligation of ensuring a fair trial as a trial judge presiding in a trial for a charge dealt with on indictment. A Magistrate, like a trial judge, must ensure that a defendant receives a fair trial according to law as articulated in the High Court and Court of Criminal Appeal cases referred to above. In DPP (NSW) v Merhi [2019] NSWSC 1068 at [31] Johnson J explained the role of a Magistrate in a summary hearing. His Honour said:
The Magistrate in this case had effectively been sitting as the trial Judge in a summary hearing of a criminal charge.
In this case the defendant is charged with serious criminal offences. The conduct for each offence is alleged to have occurred on 31 October 2018. The prosecution allege that the defendant used an offensive weapon, being a motor vehicle, with intent to prevent his lawful apprehension by ramming a vehicle into a police vehicle. That offence is found under s 33B (1)(a) of the Crimes Act and carries a maximum penalty of 12 years imprisonment. The court has a jurisdictional maximum of 2 years imprisonment and/or 100 penalty units. The defendant is also charged with an offence of police pursuit - of not stopping and driving dangerously. It is alleged that he drove a vehicle knowing the police officers were in pursuit and that he was required to stop and that he did not stop the vehicle and then drove the vehicle in a manner dangerous to others. That offence is found under s 51B (1) of the Crimes Act and carries a maximum penalty of 3 years imprisonment and an automatic licence disqualification of 3 years. The court has a jurisdictional maximum of 2 years imprisonment. The defendant is also charged with a third offence of driving a motor vehicle during a disqualification period (second offence). That offence carries a maximum penalty of 12 months imprisonment and/or 50 penalty units and an automatic licence disqualification of 1 year.
The defendant's trial occurred over two days being 9 September 2019 and 15 October 2019. On the first day, before any evidence was called, the court asked the parties what were the issues in the case. Mr Noronha for the defendant replied "Relatively straightforward, your Honour, identity…." The prosecutor then thanked his friend and said "…that would be a major issues [sic] in the case. I imagine it would rest largely on that." (See pages 1-2 of the Transcript). As the parties foreshadowed, and as the evidence emerged, the central issue in the case is whether the prosecution has proved beyond reasonable doubt that it was the defendant driving the vehicle at the time of the alleged charges.
The prosecution rely on the evidence of two police officers, Senior Constable Michael Brown and Constable Mitchell Aitken who were called in its case. Each gave evidence that they were selected to participate in a strike force targeting high-risk driving behaviour. It was called Task Force Puma. They were assigned a number of case files as targets. According to the testimony of Senior Constable Michael Brown the task of the officers was to become familiar with the targets. This included acquiring knowledge in relation to each target including their habits, movements, residence and occupation (see Transcript of 9 September 2019 at p 3). Each officer gave evidence that the defendant was one such target.
Broadly the prosecution case is that on the day of the alleged offences the two officers were parked in a police vehicle near the defendant's known residence. The vehicle used in the offences alleged was on the property. Senior Constable Michael Brown testified that he recognised the defendant on the property and saw the defendant enter the vehicle later involved in the pursuit (See Transcript of 9 September 2019 at 4). He testified that the vehicle exited the property and drove past the secreted police vehicle. He observed through the front windscreen of the vehicle a person - in his words - "who I know to be [the defendant]." (See Transcript of 9 September 2019 at 4) Constable Mitchell Aitken testified that he saw a person who closely matched the description of the defendant on the property and that he recognised the defendant in the vehicle when it drove past (See Transcript of 9 September 2019 at p 22). The prosecution case is that the first two alleged offences occurred when the officers pursued the driver of the vehicle. This was when a police pursuit commenced. It is not in dispute that whoever was driving the vehicle rammed the police vehicle. The vehicle reversed toward it at high speed and impacted the front of the police vehicle. The collision caused significant damage to the police vehicle (see photograph of the police vehicle tendered as Exhibit 2 in proceedings). The officers got out, assessed the damage, and re-entered the vehicle. It is not in dispute that the police pursuit continued and the driver of the vehicle drove into a winery and through a paddock containing rows of vines. It is not in dispute that the driver then abandoned the vehicle and eventually got away by fleeing on foot. But essentially the prosecution case relies upon what it says is recognition evidence of the two police officers of the defendant on the property and later as the vehicle drove past.
The defendant gave evidence in his case and raised alibi. He denied driving the vehicle on the day of the alleged offences. He testified that he was doing renovations on a house of a friend called Patricia Hardy in Heathcote in the southern suburbs of Sydney. That person was not called in his case. The defendant also called in his case Tammy Marrilow who at the time was the defendant's partner. She was at the property on the day the police were watching. She testified the defendant was not there prior to the date and after the date of the alleged offences.
After all the evidence had been adduced the parties made closing submissions. In his closing address the prosecutor made clear that the prosecution was relying upon s 79 of the Evidence Act to use the evidence of each of the police officers as recognition evidence. The prosecutor submitted that the recognition evidence of each officer could be accepted as ad hoc opinion evidence. The prosecutor referred the court to the Court of Criminal Appeal decision of Nguyen v R [2017] NSWCCA 4. In that case the court held that it was permissible for a police officer to give evidence that he recognised the voice of the appellant on a surveillance tape. The court in Nguyen v R [2017] NSWCCA 4 confirmed a line of cases which held that in appropriate cases police officers can be ad hoc experts. The prosecutor submitted in this case that as a consequence of the task force file on the defendant that the officers could recognise the defendant using the material in his case file. In short each was an ad hoc expert as that expression is used in case law in relation to s 79.
In his closing address the defendant's solicitor submitted that neither officer had made a positive identification of the defendant. It was submitted that the closest they got was that the person resembled or was similar to the defendant. It was not clear whether the submission was a reference to the High Court decision of Pitkin v The Queen (1995) 69 ALJR 612; (1995) 80 A Crim R 302. That case was not referred to by the defendant's solicitor. In Pitkin v The Queen an eyewitness said, when selecting a photograph at the police station, "This looks like the person that I seen." The High Court held that the words used by the eyewitness in the police station were consistent with an absence of positive identification. In Pitkin v The Queen there was only one ground of appeal - that the convictions were unsafe and unsatisfactory. There was no ground of appeal concerning the admissibility of the evidence. The High Court allowed the appeal immediately after the special leave application. The court quashed the appellant's convictions.
In this case the defendant's solicitor submitted that the authority relied upon by the prosecutor of Nguyen v R [2017] NSWCCA 4 could not "trump" the need for positive identification of the defendant. The defendant's solicitor submitted that the task force was the first-time the two officers had had any dealings with the defendant. And the prosecution had also not made clear in its case which photographs or pictures were used as part of the case file. The defendant's solicitor also submitted that looking at photographs prior to identification can prejudice a witness. Again it was not clear whether this was a reference to an admissibility issue raised in the High Court decision of Alexander v The Queen (1981) 145 CLR 395.
The closing submissions of the defendant's solicitor then focused on all the circumstances surrounding the purported recognition of the defendant by the two officers.
A number of observations can be made concerning the course of the trial:
1. The defendant is facing very serious criminal charges which carry substantial maximum penalties of imprisonment.
2. At the outset the parties defined the central issue in the trial to be identification of the driver and whether the prosecution could prove beyond reasonable doubt that the defendant was the driver of the vehicle for the offences alleged.
3. During the course of the trial there was no mention at any stage - especially during the evidence of the two police officers - of the provisions in the Evidence Act. This included Part 3.9 "identification evidence," Part 3.3 "opinion evidence" or the provisions relating to visual identification evidence. There was no objection to the admissibility of the evidence of either police officer.
4. In the absence of any challenge to the admissibility of the evidence during the trial the prosecutor's closing address was directed to why the evidence of the two officers was admissible and the legal basis for that conclusion (explained above).
5. In his closing submissions the solicitor for the defendant appeared to raise questions relating to the admissibility of the evidence of the two officers although as stated above this is not entirely clear. What is known is that he did not object to the reception of the evidence during the course of the trial. In his closing address he sought to convince the court that the evidence of the two police officers did not amount to positive identification and should be disregarded.
6. The court reserved its judgment following the closing submissions. It is clear that the closing submissions included a mixture of submissions concerning admissibility and use of evidence and the probative value of the evidence that had been admitted.
7. Given the central issue in the trial the court can discern no forensic or tactical reason on the part of the defendant's solicitor why the law in relation to identification evidence and opinion evidence in the Evidence Act would not be considered.
Hoeben CJ at CL's proposition in Kapanadze v R [2017] NSWCCA 69 at [57] that "…subject to the overriding obligation to ensure a fair trial according to law there is no obligation on a trial judge to reject evidence of his or her own motion when no objection is taken and the accused is legally represented" may be accepted. However in this case the overriding obligation of the court to ensure the defendant receives a fair trial according to law requires the court to at least raise for consideration for the parties how the provisions found in Part 3.9 "identification evidence" including the provisions relating to visual identification evidence and Part 3.3 "opinion evidence" apply in this case. It bears repeating that the central issue in the trial is whether the defendant was the driver of the vehicle for the offences alleged. But none of these provisions were raised during the course of the trial.
It would have been inappropriate for the court to enter the fray during the course of the proceedings when the evidence was adduced by the prosecutor. That is clear from the appellate court statements in Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at [20] and Kapanadze v R [2017] NSWCCA 69 at [57] quoted above. But the issue in the case has well and truly crystallised. This is not a case where the court should have rejected evidence on its own motion when no objection had been taken. A much less interventionist approach is required. It is a case where the court should discharge its obligation to ensure that the defendant receives a fair trial according to law and that the central issue in the case is properly ventilated by the parties in an adversarial and accusatorial setting.
It is essential that both parties be given an opportunity to directly address the issue of how the provisions of the Evidence Act apply to the evidence given by the two officers. The Supreme Court has repeatedly held that Magistrates must afford each party to proceedings procedural fairness. See DPP v Kirby [2017] NSWSC 1754 at [52] and most recently DPP (NSW) v Merhi [2019] NSWSC 1068 at [31], [40]-[44].
It is for these reasons the court did not deliver a verdict today. The court will re-list the matter for further submissions at a time which ensures that each party is given a fair opportunity to respond to the request.
The court's overriding obligation to ensure a fair trial according to law requires that the matter is to be re-listed for the parties to make submissions concerning how the provisions in the Evidence Act particularly Part 3.9 "identification evidence" including the provisions relating to visual identification evidence and Part 3.3 "opinion evidence" apply to the evidence adduced by the prosecutor.
[2]
Amendments
04 November 2021 - Case title amended
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Decision last updated: 04 November 2021