Tatam v Svikart [1999] NTSC 54

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)

28 SASR 134:

"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

[1993] FCA 599; (1993) 121 ALR 114.

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