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[1999] NTSC 54
Supreme Court of the NT
1999-05-18
Riley J
Original judgment source is linked above.
Tatam v Svikart [1999] NTSC 54
IN THE MATTER of the Justices Act
On 7 September 1998 Matt Anthony Tatam was convicted of assault in the
Court of Summary Jurisdiction. In relation to that conviction he was
sentenced to imprisonment for a period of nine months commencing on
7 September 1998. It was directed that the sentence be suspended after he
had served one month. His Worship specified that, for the purposes of s 40
of the Sentencing Act, a period of one year from the date of sentencing was
the period during which the appellant should not commit any other offence
punishable by imprisonment in order to avoid being dealt with under s 43 of
the Sentencing Act.
The events which gave rise to the conviction occurred on 31 January 1993 in
the vicinity of a nightclub in Cavenagh Street, Darwin. There was no
dispute that the victim, Peter Clifford Meredith, had attended the nightclub
on that night. It seems a person named Gary Young, who was described as a
"bouncer" at the nightclub, assaulted him. He was then escorted from the
premises. During the course of being removed from the premises he lost a
shoe and was insisting upon returning to recover that shoe. A different
person, who was also described as a "bouncer", then assaulted him. The
major issue for determination in the proceedings was whether th e assailant
on the second occasion was the appellant, Matt Anthony Tatam.
The prosecution case as to identification relied principally upon one witness,
Kristen May Richardson, who was a police auxiliary. On that night she was
present at the nightclub in her private capacity and she told the Court that
she witnessed the assault. The appellant was a "bouncer" at the premises
and Ms Richardson indicated she had seen him at the premises "probably
around 15 times" over a period of "four or five months, maybe a bit longer"
and was able to identify him as the assailant. She and her girlfriends had
noticed "he was a nice looking man" and they had commented on him being
a "spunk" or words to similar effect. She identified him on the night of the
assault and then in Court and she also gave evidence that she had previously
been able to identify him outside of the Court. This occurred away from the
particular courtroom in which the matter was heard. He was in the area of
the Office of Births Deaths and Marriages whilst she was having a cigarette
whilst waiting to be called to give evidence in the proceedings.
Mr McDonald QC appeared on behalf of the appellant and he identified the
grounds of appeal against conviction upon which the appellant relied as
that his Worship erred in failing to warn himself as to the dangers of
that his Worship erred in his application of the law with respect to
that his Worship "used and relied upon his observations of the appellant
in the court room so as to discredit the appellant's evidence in denial of
the charge without any notification of this to counsel acting on his
In addition Mr McDonald argued that in all of the circumstances the finding
of guilt was unsafe and unsatisfactory. The appellant also appealed against
In this matter the issue of identity was raised at the beginning of the hearing
and was always the major issue to be addressed. The dangers of
identification evidence were drawn to the attention of his Worship. He was
told that such evidence is "notoriously unreliable" and that his Worship
needed to "warn (himself) about the dangers of identification evidence". He
was referred to Craig v R [1933] HCA 41; (1933) 49 CLR 429; Davies and Cody v The King
[1937] HCA 27; (1937) 57 CLR 170; Kelleher v R [1974] HCA 48; (1974) 131 CLR 534; R v Burchielli
[1981] VicRp 61; (1981) VR 611. He was reminded that "even apparently honest witnesses
make mistakes and that's been proven time and time again".
Shortly after the submissions were completed his Worship provided an ex
tempore judgment. He did not repeat the matters of which he had just been
informed in relation to the danger of identification evidence and he did not
identify and warn himself in relation to particular dangers arising in this
In addressing the issue of identification his Worship referred to the "clear
and unequivocal evidence of Ms Richardson". He regarded her as "both
forthright and honest in giving her evidence". He indicated that he had
"absolutely no doubt ... that she was attempting to give an honest account of
"Not only did Ms Richardson say that she had previously seen the
defendant, she explained why she remembered him in evi dence,
mainly because he appeared to her to be a man of handsome
His Worship referred to the evidence of Ms Richardson that she "chased the
defendant upstairs" but lost him and that she saw the same person at 4am
speaking to a police constable. His Worship noted that this evidence "is
totally consistent with the story by Senior Constable Warren, who said he
did not find the defendant on the first occasion upstairs but came back
seeking a man of the same description as he sought before and immediately
His Worship referred to and relied upon the supporting testimony of Senior
Constable Warren and of a lay witness, Mr Grayson. Neither of the
supporting witnesses identified the appellant directly but rather provided
incidental support to the identification provided by Ms Richardson.
His Worship accepted the identification by Ms Richardson as being
The complaint of the appellant was that the learned Chief Magistrate failed
to warn himself as to the dangers involved in relying upon identification
The High Court addressed the issue of identification in Domican v The
Queen [1992] HCA 13; (1991-92) 173 CLR 555. That case involved circumstances where
there was a fleeting identification of an accused person made from a
distance and in difficult circumstances. Six members of the Court
(Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), in a joint
"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". The jury must have the benefit of a direction which has
the authority of the Judge's office behind it. It follows that the trial
Judge should isolate and identify for the benefit of the jury any
matter of significance which may reasonably be regarded as
undermining the reliability of the identification evidence."
Their Honours pointed out that the adequacy of a warning in an
identification case must be evaluated in the context of the identification
"The adequacy of the warning has to be evaluated by reference to the
nature of the relationship between the witness and the person
identified, the opportunity to observe the person subsequently
identified, the length of time between the incident and the
identification, and the nature and circumstances of the first
identification � not by reference to other evidence which implicates
In R v Bartels (1986) 44 SASR 260 Johnston J at 270 addressed the issue of
what warning was necessary to be given by a judge to a jury and he adopted
the following passage from the judgment of Wells J in R v Easom (1981)
"Where the person identified is well known to the witness, no more
than a few words may well suffice. Where, however, the conditions
in which the person questioned was seen presented difficulties to an
observer, the person was seen only a very short time, the
circumstances could well have induced heightened emotions in the
witness, or there is, in general, some other feature in the case that
casts a shadow over the witness' mental processes of observation,
retention, recollection or recognition, care must be taken to ensure
that the jury is brought to appreciate the dangers of giving too ready
an acceptance to evidence of later identification."
As was pointed out by Sheppard J in Grbic v Pitkethly (1992) 65 A Crim R
12, if a case is tried without a jury the tribunal must still give itself the
appropriate warnings as to the dangers inherent in identification evidence.
"... then needs to consider those warnings and to be sure that it has
heeded them. This does not mean it is to be overawed by them but it
The present case was not one of a fleeting identification of a person
previously unknown to the witness. The courts have recognised that there is
an important distinction to be drawn between the identification of a person
with whom the witness is familiar and that of a person with whom the
witness is not familiar: Marijancevic (1993) 70 A Crim R 272 at 276. In
that case Teague J noted that the care necessary to be taken with a witness
who identifies an accused or suspected person must vary according to the
familiarity of the witness with that person. He went on to say:
"The circumstance that identification evidence is given relative to the
face of a familiar person does not mean that there is no need for
caution. On the contrary, it is always necessary to have regard to the
He referred to Turnbull (1977) QB 224 where it was said:
"Recognition may be more reliable than identification of a stranger,
but even when the witness is purporting to recognise someone whom
he knows, the jury should be reminded that mistakes in recognition
of close relatives and friends are sometimes made."
In Davies and Cody v The King (supra) the High Court said (181):
"It is almost unnecessary to say that the amount of care and the
nature of the precautions which should be taken when a potential
witness is brought to identify an accused or suspected person must
vary according to the familiarity of the witness with that person. It
would be ridiculous, because the prisoner has been shown alone to a
potential witness, to deny the value or reliability of the identification
if the witness' knowledge of the prisoner arose from long and close
association or from every day intercourse in business affairs."
In Sharrett v Gill [1993] ACTSC 147; (1993) 65 A Crim R 44 Miles CJ dealt with a case of the
identification by a police officer of a person whom he had seen on
approximately six previous occasions and where he saw him fleetingly on
"That there were points of weakness in the identification evidence
cannot be overlooked. Perhaps the magistrate recognised them and
did approach the case with the proper caution. The difficulty is that
he did not say so. The combined effect of Grbic and Domican, as I
see it, is that the magistrate was required to search out the
weaknesses and then expressly warn himself of the various dangers.
This he did not do. Accordingly, the conviction would be liable to
be set aside as unsafe and unsatisfactory by a court sitting as a Court
In Parker v Espinoza (1996) 85 A Crim R 336 Anderson J said (340):
"In this case, counsel for the applicant submitted that the magistrates
decision that the applicant was the person attempting to steal the
vehicle in question, cannot stand because the magistrate failed
expressly to identify the weaknesses in the identification evidence
and failed to expressly warn himself of the danger of convicting the
In my opinion, supported as it is by Grbic v Pitkethly and Sharrett v
Gill, this submission should be accepted. I think the combined effect
of the cases to which I have referred is that the law now is that
judicial officers sitting without juries who are invited to convict an
accused person on the basis of identification evidence containing any
weaknesses must expressly recognise those weaknesses and must
expressly recognise the dangers of convicting on that evidence."
Mr McDonald, on behalf of the appellant, has identified the aspects of the
identification evidence that he submitted were weaknesses present in this
case and which needed to be specifically addressed by his Worship. These
Identification was in dispute and the appellant denied he was the
assailant from the outset and throughout the history of the matter.
There was only one eyewitness who purported to make a positive
There was no identification parade or use of photograph boards or
No notes from the police existed at the time of the trial as to any
initial description given by any witness as to the identity of the
assailant at the time of the first involvement of police.
The appellant said in his evidence and record of interview that he
was spoken to by police at around 2am and yet was not identified by
Ms Richardson was noted by his Worship to have, from time to time,
an "unusual" demeanour and that she "seemed to be on the side of
Despite Ms Richardson being a police auxiliary she did not advise
The description of the assailant's hair was different in her evidence
from the initial statement taken in 1993. When she signed her
statement she described the assailant's hair as "short dark hair", but
in her evidence in chief she described it as "short brown hair I'd say
shorter around the sides ... in a sort of a flat crew top".
Her evidence as to the location of the blow she saw inflicted upon
She failed to identify the red bow tie and red cummerbund the
She said the assailant looked like he was on drugs whereas Senior
Constable Warren denied that this was the case when he spoke to the
The appellant says that these were all matters in relation to which
his Worship should have provided himself a warning and he did not do so.
It is also said that his assessment of the witness, Ms Richardson,
concentrated upon her credit rather than upon the additional issues of
It will not always be necessary for a court to enunciate the fact that it has
provided itself with an appropriate warning in relation to matters of
identification evidence. The fact that such a war ning has been given and
heeded may be obvious from the surrounding circumstances eg where
counsel has addressed clearly on the issue and the court shortly thereafter
provides ex tempore reasons for decision consistent with the dangers having
However, the situation in this case is different. Although counsel raised with
his Worship some of the relevant authorities, neither counsel nor
his Worship specifically sought to identify the weaknesses in the
identification evidence including the sugg ested weaknesses that have now
been identified by Mr McDonald. There was no warning in relation to those
potential weaknesses. Further, his Worship did not address the possibility
of honest mistake. In light of the authorities discussed above, error
In the Northern Territory the fact that error has been identified does not
mean that the appeal automatically should be allowed and the conviction
quashed. Section 177(2)(f) of the Justices Act provides that the Supreme
"notwithstanding that it is of the opinion that the point raised in the
appeal might be decided in favour of the appellant, dismiss the
appeal if it considers that no substantial miscarriage of justice has
I have therefore conducted a review of the evidence myself. I have
attributed weight to the findings of his Worship regarding the credibility and
reliability of the various witnesses. I have then considered whether, on the
whole of the evidence before his Worship, a miscarriage of justice occurred
The case centred upon the identification of the assailant by Ms Richardson.
The suggested weaknesses and dangers in identification evidence have been
set out above. Do they give rise to any reasonable doubt as to the
It is clear from the reasons provided by his Worship that he regarded
Ms Richardson as both an honest and reliable witness. Her reliability was
supported by her previous familiarity with the appellant (she had seen him
"recently and regularly") and the attention she paid to him because of the
interest she and her friends had in this "man of handsome proportions". It
was also supported by the length of time she had to observe him on this
occasion, her proximity to him when she did observe him, the clear view she
had of him in a situation of good lighting and the close attention she was
paying to what was going on. In addition she was able to recognise the
appellant as the assailant again when he was spoken to by Senior Constable
Warren at about 4am on the same morning. Indeed, Senior Constable
Warren was able to identify the appellant from the description provided of
the assailant. The evidence of each of Senior Constable Warren, the
appellant and Ms Richardson confirms that the appellant was the person
interviewed by Senior Constable Warren at about 4am in circumstances
which are consistently described by each of these three witnesses.
Ms Richardson was also able to identify the appellant outside the court in
circumstances where she observed him from a distance of some 30 metres,
and when she was not prompted in any way as to his identity. Her evidence
There is further support for her identification in other matters which were
consistent with the identification. In particular the fact that the person who
committed the assault was a "bouncer", and that the other bouncers were
excluded by a process of elimination. This evidence was, in my opinion, not
sufficiently strong to support a positive identification of the appellant on its
own but amounted to support for the identification made by Ms Richardson.
Further, the appellant was, on his own evidence, in the vicinity at or about
the relevant time. He says that he saw the victim escorted down the stairs
by Gary Young, who he described as being blonde. The only other security
officer present at the front door at that time was Anthony, who was
described by the appellant as "a fairly solid Maori fellow with long hair".
Neither the appellant nor Ms Richardson identified any other security officer
as being present at the relevant time. The appellant said he went upstairs
and did not see the assault. That evidence was clearly not accepted by
I turn to deal with the specific matters referred to by Mr McDonald in his
submissions as being aspects of the identification evidence which he
submitted amounted to weaknesses in the present case. These matters are
The fact that identification was in dispute was clearly in the forefront of
everyone's mind at the time of the hearing. The evidence of identification
by Ms Richardson was strong and clear. The evidence of the appellant to
the contrary was able to be rejected for the reasons spelled out by
Although there was only one eye witness who purported to make a positive
identification, that identification was by a person who was "forthright and
honest" and gave "clear and unequivocal" evidence, in that regard. Save for
the evidence of the appellant there was no evidence which had the potential
to create any reasonable doubt regarding the identification made by
Although the case was described as one of identification, it was, more
precisely, one of recognition. In the circumstances of this matter there was
no need for an identification parade or any other form of identification
process to be undertaken and no prejudice resulted from the failure to
It was the case that the police notes were not available at the time of the
trial and the reasons for this were described. Although it was desirable for
such notes to have been produced and made available to the appellant, the
fact was that they were not available. The a bsence of the notes does not
serve to create any doubt as to the identification evidence. The
circumstances of the identification made by Ms Richardson at 4am on the
morning of the incident make it clear that the description provided by
The appellant gave evidence that he spoke with police at around 2am and,
accepting that to be so, he submits that it is significant that they did not
identify him by reference to the description. However, it is not clear
whether the police who spoke to the appellant at 2am had the full
description of the assailant provided by Ms Richardson. Constable Warren
says that he had a description at that time and when he searched he was
unable to locate anyone fitting the description. However he was able to
locate the appellant as a person fitting that description when he returned
some hours later. The only description which the appellant revealed as
being given to him at 2am was that the officers to whom he spoke "were
looking for someone with short hair". There is no dispute that the appellant
It is true that his Worship regarded Ms Richardson as having an unusual
demeanour and that he commented that she "seemed to be on the side of the
prosecution" but, for the reasons he expressed, his findings of credibility
and reliability were unaffected by those matters. Similarly the fact that
Ms Richardson did not advise the police that she had seen the appellant
before that night did not affect the conclusions reached by his Worship. She
said she did not provide that information because she was not asked the
question. This is entirely understandable when she was able to say who the
assailant was by virtue of a description. Mr McDonald did not seek to argue
The difference in the descriptions of the assailant's hair given by
Ms Richardson in 1993 and then in 1998 was not significant. Indeed the
descriptions, whilst differing in emphasis, are consistent.
The fact that her description of the position of the blow which she saw land
on the victim differs from descriptions provided by other witnesses, is to be
expected in the circumstances. Other witnesses were affected by alcohol
and one would be surprised if, in the circumstances of this matter, there was
complete uniformity of evidence in this regard. Reference to the
descriptions provided by the witnesses Richardson, Meredith and Grayson
suggests they are each describing a blow which is in approximately the same
area ie to the right hand side of the face. Mr Savy referred to the left hand
side of the face. Save for the evidence of Mr Savy I do not see any
significant discrepancy in the evidence of the witnesses. Such discrepancy
as might exist does not detract f rom the ability of Ms Richardson to provide
reliable evidence regarding the description of the person who was the
assailant. This observation also applies to her comment that the assailant
looked as though he was on drugs whereas Senior Constable Warren, who
spoke to the appellant two hours later, did not regard the appearance of the
appellant as being as though he was on drugs. The circumstances in which
Ms Richardson saw the assailant were such that he was in an agitated state,
bouncing up and down on his toes and about to inflict a blow to the head of
the victim. It would not be surprising if his appearance was different at that
Finally the appellant directs attention to the fact that Ms Richardson failed
to notice the red bow tie and red cummerbund the appellant says he was
wearing. Indeed she failed to notice a red bow tie or red cummerbund on
any of the security personnel present on that occasion. In so doing she was
not alone, both Mr Meredith and Mr Savy described the dress of the
"bouncers" as consisting of dark trousers and a white shirt and did not make
any reference to a tie or cummerbund. Assuming that the security personnel
were so attired, and I note that the only evidence to this effect was from the
appellant, whose evidence was not accepted by his Worship, it seems that
this fact failed to register with Ms Richardson. She did however record that
they were each wearing black trousers and a white shirt. To my mind this
possible failure of recall or observation, in the circumstances of this matter,
does not raise any doubt as to her capacity to identify the appellant as being
Bearing in mind the dangers associated with identification and recognition
evidence and the prospect of honest mistake, I am of the opinion that the
quality of the identification evidence in this matter was such as to exclude
any reasonable possibility of mistake. The evidence of identification was
clear and strong and came from a witness who was truthful and reliable. I
consider there has been no miscarriage of justice arising out of the matters
At the commencement of the hearing the appellant was given leave to add a
"That the learned Chief Magistrate erred in law in the manner in
which he used and relied upon his observations of the appellant in
the court room so as to discredit the appellant's evidence in denial of
the charge without any notification of this to counsel acting on his
The appellant relied upon one particular paragraph of the ex tempore reasons
delivered by his Worship. This paragraph was as follows:
"Mr Tatam, on the other hand, gave evidence quite fairly. I thought
he was very cool giving his evidence. He almost had a trained
appearance in the way he attempted to be very quietly spoken and to
turn to me on each occasion when he denied the fact of the assault.
His tenet in the box was somewhat different from his manner in the
court room and other times, when he appeared much more confident
It was said that his Worship relied upon these observations because, later in
his reasons, having addressed other faults he found in the evidence of the
"So having taken all those things into account, I accept the evidence
of Ms Richardson and the other prosecution evidence wherever it
conflicts with that of Mr Tatam, and in those circumstances I find
It was submitted that the learned Chief Magistrate relied upon his
observations of the appellant outside of the witness box and should have
drawn this to the attention of the parties so that they may have an
opportunity of answering or dealing with those matters: Minagall v Ayres
(1966) SASR 151; Jobst v Ingliss (1986) 41 SASR 399; Gaston and District
Hospital v Thamm (1987) 47 SASR 177; Government Insurance Office of
New South Wales v Bailey (1992) 27 NSWLR 304 and Marelic v Comcare
In my opinion a fair reading of the paragraph does not support the
interpretation placed upon it by the appellant. Taken at its highest
his Worship made an observation that whilst the witness was in the witness
box he was quietly spoken and deliberate and, when he was not in the
witness box, he was "more confident and assertive". This observation does
not in any way reflect upon the credit of the appellant and, further, was not
something which "fair play and commonsense" required that either party
have an opportunity to deal with. As I read the passage in its context within
the ex tempore reasons it was not a matter of "significant influence" upon
the decision and, indeed, it was merely a passing observation. The real
basis upon which the evidence of the appellant was not accepted was set out
in a separate paragraph in which his Worship spelled out the difficulties he
The test for determining whether a verdict is unsafe and unsatisfactory was
stated by a majority in the High Court in M v The Queen (1994) 181 CLR
487 as being whether, upon the whole of the evidence, the court is persuaded
that it was not open to the jury to be satisfied beyond reasonable doubt that
the appellant was guilty. In making this assessment the Court must pay full
regard to the consideration that the court below is the body entrusted with
the primary responsibility of determining guilt or innocence and has had the
benefit of having seen and heard the witnesses. See also Gipp v The Queen
I have reviewed the whole of the evidence (much of which is discussed
above) and I am not persuaded that this verdict was unsafe or unsatisfactory.
The appellant complains that in determining sentence the learned Chief
Magistrate erred by placing too much emphasis on deterrence and
insufficient emphasis on the rehabilitation of the defendant and says that the
sentence imposed was manifestly excessive in all the circumstances of the
The assault on the victim was quite serious in that the victim had already
been the subject of a serious assault and was particularly vulnerable. The
circumstances of the assault were such that it was unprovoked and quite
unexpected. It was inflicted by a person who was employed to ensure the
safety and security of patrons of the establishment. Rather than protecting
this patron the appellant attacked him. In the circumstances his Worship was
In addition the appellant could not claim the benefit of mitigating factors
such as co-operation, a guilty plea or remorse. In my opinion the sentence
was clearly within the expected range and by suspending most of the
sentence the prospects for, and desirability of, rehabilitation were given
# Tatam
Svikart \[1999\] NTSC 54
(1933) 49 CLR 429
(1937) 57 CLR 170
(1974) 131 CLR 534
(1986) 44 SASR 260
(1986) 41 SASR 399
(1987) 47 SASR 177
(1992) 27 NSWLR 304
(1993) 121 ALR 114
(1994) 181 CLR
487
(1998) 72 ALJR 1012