Wurramarba v Langdon [2017] NTSC 5

Trudgett v R [2008] NSWCCA 62; (2007) 70 NSWLR 696; Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272; Clarke v The Queen (1997) 97 A Crim R 414; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; Reg v Turnbull [1977] QB 224; Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272, applied.

Longmair v Bott [2010] NTSC 30, distinguished.

Appellant: North Australian Aboriginal Justice Agency

Respondent: Office of the Director of Public Prosecutions

Wurramarba v Langdon [2017] NTSC 5

[1] This is an appeal against guilty findings and convictions on a charge of driving whilst disqualified and a related traffic offence. The offending was alleged to have taken place on 14 September 2015. The appellant argues that the magistrate erred in accepting evidence of identification (in this case, recognition) given by a single police witness. The appellant contends that the magistrate "failed to direct herself appropriately in relation to identification evidence".[1] As a separate ground, the appellant contends that, in all of the circumstances, the finding of the magistrate was unsafe and unsatisfactory.[2]

[2] On 17 March 2016, the appellant stood trial in the Court of Summary Jurisdiction after entering pleas of not guilty to the following charges:

Count 1 - being a person who was disqualified from holding a driver's licence, drove a motor vehicle, namely Toyota Land Cruiser, on a public street, namely Umbakumba Road, Groote Eylandt.

Count 2 - drove a vehicle, namely Toyota Land Cruiser, on a road, namely Umbakumba Road, Groote Eylandt, and failed to obey a direction given to him for the safe and efficient regulation of traffic by a police officer.

Count 3 - drove a vehicle, namely a Toyota Land Cruiser, on a road, namely Umbakumba Road, Groote Eylandt, at a speed over the speed limit, namely 100 km/hour, where the speed limit applicable to that length of road was 80 km/hour.

[3] The hearing was brief. Senior Constable Pardon ("Pardon") was the sole witness for the prosecution. Relevant to count 1, a certificate was tendered which confirmed that the appellant was disqualified from holding a driving licence as at 14 September 2014.[3] The appellant did not give evidence. The magistrate found the appellant guilty of count 1 and count 2, but not guilty of count 3. The case was then adjourned to the following day. On 18 March 2016, the appellant was convicted on the first two counts and sentenced to an aggregate six months imprisonment, to be suspended after he had served two months. The magistrate fixed an operational period of two years. The conditions of the partially suspended sentence imposed by her Honour included supervision for the first six months.

[4] The appellant subsequently entered into a recognizance to prosecute an appeal to this Court and was granted bail on 18 March 2016.

Prosecution case in the Court of Summary Jurisdiction

[5] On 14 September 2015, at approximately 9.15 am, Pardon was driving a police vehicle slowly through the Katherine Aviation Car Park when a white Troop Carrier passed his vehicle, travelling in the opposite direction. Pardon was driving at a speed of five to ten km/h. At the time the Troop Carrier passed, it was three or four metres away from Pardon. Pardon said in evidence, "Our driver's side windows passed each other as they would on the road". Pardon did not recall whether the driver's side window of his vehicle was wound up, but he believed that it was. He was unable to say whether or not the driver's side window of the Troop Carrier was wound up or otherwise. At the time the vehicles passed one another, Pardon identified the appellant as the driver of the Troop Carrier and executed a U-turn, intending to follow and stop the appellant's vehicle.

[6] By the time Pardon caught up with the Troop Carrier it had turned onto the road leading in the direction of Umbakumba. Pardon turned on his vehicle's red and blue flashing lights and, when the driver of the Troop Carrier did not respond, Pardon turned on the police sirens, switching between two different siren sounds. Pardon had now reached a speed of 100 km an hour, but he decided to end the pursuit because he considered it was not safe to engage in a pursuit at speeds of 100 km an hour or more in an 80 km/h zone.[4]

[7] The first ground of appeal requires examination of the identification evidence given by Pardon. The following transcript extracts provide a relevant summary:

I first met the defendant about a month after I arrived at Groote Eylandt. That was on board a vessel that started sinking, it was taking on water and we started a search and rescue, they put out a call for other boats. They eventually made it back to Groote Eylandt, a few hundred metres north of Dugong and we went down there. Laban was on board and two other ... adult males.[5]

I first met or observed Laban on 30 December 2013, about a month after I arrived at Groote Eylandt. I received a call that he was on a boat that belonged to a friend of his ... that called us to say the vessel is in distress. .... They had safely made it to shore ... it was about 500 metres north of the Dugong Beach Resort. We went down there and met them. That was the first time I saw Laban and we stayed around while they recovered the boat safely enough for the night.[6]

How else do you know the defendant?---It's quite a small community. He is quite a prominent man out there. ... Everyone knows Laban Wurramarba, he's - I guess he's one of the TOs [traditional owners] if you will. ... I see him coming and going. ... I know a lot of people very well out there, it's not a large community. I'm out there every day for work, often three or four times.[7]

When you say you see him coming and going, how do you see him? Where do you see him?---I see him driving around. I see him sitting on his verandah at his house. I often go to his house - not often - I've been to his house on several occasions. People often say when we're looking for someone, for example 'Oh, have you seen Jimmy?' And they'll say, 'Jimmy's been sleeping at Laban's house' and we'll go to Laban's house and like you learn to identify the houses and the people and some sort of common knowledge. It's community policing I guess. ... You just get to know people.[8]

... are you able to say on average each of your working weeks about how often you might see him or speak to him?---Okay, on average probably once every month to two months, but over a period of two years that's quite a few times.[9]

That's from either attending his house and asking him if he's seen someone, or that someone telling a story about him or mentioning his name ... seeing him maybe departing or arriving at an airport - just the general - I make it my business to - to know people in the community.[10]

So what made you think it was the defendant driving the vehicle?---Well, I know - I know Laban. I've seen him lots of times over a couple of years and as I said, it was not - not a very big community and I like - I get to know people. I make it my business.[11]

How can you be sure, constable, that it was Laban driving?---I can - I'm - there's no doubt in my mind that it's Laban. I've - later I conducted (inaudible) came over and said to Trudy 'That's Laban' as I conducted the U-turn. I - it's hard to explain how I knew - I knew it was Laban ... .[12]

No, I'm - I'm sure it was him and I'm sure that (inaudible) I just - I saw his face, I recognised him, I wasn't guessing. So I don't know how to ... elaborate further. Yes. He was only a couple of metres away at slow speed, yeah. But it's hard to elaborate further. I just looked and saw Laban and recognised him as Laban Wurramarba, a name that I was very familiar with.[13]

So how did we get to the point in court with Laban being charged?---Yeah, so during the course of this shift Trudy and I conducted checks on Laban's licence, which really was disqualified and ... over the next couple of weeks I tried to find Laban, which proved difficult. I eventually found him and served him with a notice to appear and asked him some questions regarding what happened on this shift.[14]

Is it fair to say - or is true - that you have only ever met Mr Wurramarba in a professional capacity?---Yes.

And when you spoke of the first time that you met with Mr Wurramarba, which was in relation to a boat that had been in distress, Mr Wurramarba was not the only person that that was there on that day?---No, that's right.

And you didn't directly speak with Mr Wurramarba?---I don't recall if I spoke with him or not - it's a couple of years ago. We were there for quite a long time. ... [15]

Before you came to Groote Eylandt in November 2013, you had never met Mr Wurramarba?---No, that's correct.

He's not someone that you ever spent very much time with?---No.

You've never spent any time with him in a non-professional capacity?---That's correct.[16]

Would you say that the most significant interaction - most memorable interaction - was the first time that you met Mr Wurramarba?---I'd say it is regarding this matter.

And so obviously you're never fished with Mr Wurramarba?--- No.

You've never played on similar sports teams?--- No.

And you've said that you've heard that name a lot?---Yes.

So you do not know Mr Wurramarba well?--- I do know him well in a professional capacity. I don't hang out with him on my days off.[17]

Would you agree that there is nothing special or distinguishing about the way that Mr Wurramarba looks?---No I don't agree with that.

Would you agree that Mr Wurramarba is an Aboriginal male of largish build?---Yes.

And would you agree that there are a significant number of Aboriginal males of large build on Groote Eylandt?---Yes.

Would you agree that there are a large number of people on Groote Eylandt who have a similar build to Mr Wurramarba?---Yes.

Would you agree that there are no distinctive piercings or markings on Mr Wurramarba?---No piercings (inaudible).

No distinctive scars?---There's no scars that I identify Laban as being Laban by, no.[18]

You said that you were the driver of the police car?---Yes.

So as a driver you obviously have to watch where you're going?---Yes.

So not 100 per cent of your focus was on another car in the car park?---Well, we were driving through the car park quite slowly, say between five and 10 kilometres an hour, somewhere around walking to a slow jog. ... Yeah, we were going at a slow speed in a wide open dirt car park and I don't believe there were any other cars moving or close to us at that time and he was holding a similar speed to us so it was definitely safe for me to look out my side window for quite an extended period of time.

If the two cars are driving and they're driving past each other the period of time would have been limited to seconds, correct?---Yes.

You couldn't see very much of the person who was driving the car, in terms of you couldn't see much of their body?---Nothing from sort of belly down.

Was the person who was driving the car wearing a hat?---No.

What kind of sunglasses were they?---Um, they were pretty small and sleek and frame in the lens and they had gold ply.[19]

Was the person wearing a shirt?---Yeah, I believe he was.

Could the collar have been up?---I guess so, if it had one.

Do you remember whether the shirt was long sleeved or short-sleeved?---I can't remember.

And you don't remember whether the troop carrier's windows were up?---Yeah, I don't.[20]

And when you spoke to Mr Wurramarba [on 24 October] you cautioned him?---Yes.

And you asked him a number of questions about this?---Yes.

And he told you, when you asked him 'Why didn't you stop for police', "It wasn't me, I'm telling you"?---That sounds close ... Yeah, that's correct.[21]

After the incident ... the information that you put in your statement about who it was does not include a description?---No, that's correct.

So, although you are very certain that it was Mr Wurramarba, you could be mistaken about who was driving the car, couldn't you?---No.

There are situations where, do you agree, where people mistake even people that they know very well?---Yes.

So you could be mistaken about who was in the car?---No, I don't believe so.

And you only saw the driver with the two cars passing each other for a short period of time?---Yes.[22]

[8] The prosecutor's re-examination was very brief. However, she managed to elicit very relevant evidence in relation to the proposition put in cross-examination (and rejected by Pardon) that there was "nothing special or distinguishing" about the appellant's appearance:

When my friend said to you that he doesn't have any distinguishing - is not distinguishing looking, would you agree or not agree?---I disagree.

You disagree. So why did you disagree?---Um, I think he is quite distinctive looking.

How?---The shape of his head, the shape of his nose is quite distinctive, the way he's got grey through his hair, his haircut is always similar to the one he has now, the general jaw line - the shape of his head, mainly.[23]

Submissions to the magistrate - identification evidence

[9] The prosecutor referred in closing submissions to Pardon's evidence as to how he recognised the appellant, including Pardon's evidence in re-examination in which he described the appellant's distinctive head shape and facial features.[24] The prosecutor referred to the fact that the two drivers were only three to four metres apart when their vehicles passed, travelling at walking speed albeit in opposite directions. She submitted that there were no distractions at the time, that Pardon "got a good look at [the appellant's] face through the window and was able to identify him and recognise him in an instant".[25]

[10] In her closing address, defence counsel referred to the "inherently unreliable nature of identification evidence",[26] even where the identification evidence was 'recognition evidence'. She urged the magistrate to give herself a direction to "mark the evidence with great care". She invited the magistrate to bear in mind the factors identified by Blokland J in Longmair v Bott[27] which, in her Honour's view, had rendered erroneous in that case the acceptance of identification evidence beyond reasonable doubt. Defence counsel sought to minimize the number and 'quality' of prior occasions of personal interaction between Pardon and the appellant. She also made a submission as to the suggested limited opportunity which Pardon had to observe and identify the appellant on 14 September 2015.

[11] In an apparent attempt to deal with Pardon's evidence in re-examination, extracted in [8] above, defence counsel submitted as follows:

The person had on sunglasses. The fact that Mr Wurramarba had a haircut which is similar to the person, on Senior Constable Pardon's evidence, to the person driving the car, in my submission is not sufficient for your Honour to make a finding beyond reasonable doubt. ...[28]

He was unable to give any distinguishing [features] in terms of there were no distinctive piercings or scars and he agreed that Mr Wurramarba is of similar build to many people on Groote Eylandt.[29]

[12] The attempted dismissal of Pardon's evidence in relation to the appellant's haircut overlooked Pardon's evidence about the pattern of the appellant's greying ("the way he's got grey through his hair") being a distinctive feature. Moreover, defence counsel made no submissions in relation to the main distinctive features ultimately described by Pardon: the shape of the appellant's head, nose and jaw line, referred to in [8] above. Pardon had said that those features made the appellant "quite distinctive looking". In this context, defence counsel's reference to the absence of distinctive piercings or scars was of limited relevance, because the witness had not based his identification on any such matters. Similarly, whether Mr Wurramarba was of a similar build to other men on Groote Eylandt was largely irrelevant in circumstances where the appellant was seated in his vehicle and Pardon had identified him on the basis of head and facial recognition, not general physical build.

[13] There are two relevant statutory provisions: s 116 and s 165 Evidence (National Uniform Legislation) Act. I set out below the section or those parts which are presently relevant:

(1) If identification evidence has been admitted, the judge is to inform the jury:

(a) that there is a special need for caution before accepting identification evidence; and

(b) of the reasons for that need for caution, both generally and in the circumstances of the case.

(2) It is not necessary that a particular form of words be used in so informing the jury.

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

[14] Defence counsel submitted that it was appropriate for the magistrate to give herself a warning under s 165 Evidence (National Uniform Legislation) Act.[30] She also submitted that the magistrate should give herself "another direction, and that is to mark the evidence with great care".[31] Although counsel did not expressly refer to s 116 Evidence (National Uniform Legislation) Act, the latter submission corresponds with the expression "special need for caution" which appears in s 116(1)(a).

[15] At common law, a distinction was often drawn between the evidence of identification coming from a witness who did not know the accused prior to observing the relevant events, and such evidence from a witness who knew the accused prior to the relevant events. The first category was said to be 'true identification evidence', and the second 'recognition evidence'. Notwithstanding that somewhat simplistic subdivision, it was understood that the level of care required on the part of courts to avoid mistake or prejudice varied according to the level of the witness's previous familiarity with the accused.[32] It was also understood that identification evidence was of variable quality. A series of decisions over many years highlighted the deficiencies of identification evidence, much of the case law related to the dangers of identification evidence given by witnesses who were not previously acquainted with an accused.[33] The majority of the High Court in Domican v The Queen[34] made the following statement in relation to the obligations of a trial judge where identification evidence was "a 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. ... 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.

[16] The courts understood also the similar dangers of recognition evidence.[35] Although recognition evidence might not suffer from all of the defects of true identification evidence, "it does share with such evidence the danger that a witness will propound his or her conclusion with force and conviction."[36] In Carr v The Queen, Blow J (Cox CJ agreeing) said as follows:[37]

As Boardman and Turnbull illustrate, "recognition" cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times of their alleged crimes. It would therefore be illogical to hold that a warning as to the dangers of mistaken identification of the sort discussed in Domican need never be given in a recognition case. Obviously, such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend on all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at about the time of the crime.

[17] The definition of 'identification evidence' in the Evidence (National Uniform Legislation) Act is sufficiently broad to include both identification and recognition evidence.[38] It may be noted that the requirements of s 116 and s 165 differ from, and in certain respects are stricter than, the directions required by Domican.[39] For example, the decision in Domican required that a warning be given where identification evidence represented a significant part of the Crown case. The Evidence (National Uniform Legislation) Act does not differentiate on the basis of the extent to which the identification evidence forms part of the prosecution case. The additional protection given by the Evidence (National Uniform Legislation) Act was explained by Hunt CJ at CL in Clarke v The Queen:[40]

The approach of the Evidence Act ... is far more effective in bringing home to the jury the degree of caution which has to be taken in relation to identification evidence than a direction merely that it is dangerous to convict upon that evidence. In my opinion, the requirements of the Act provide far greater protection against the risk (or the danger) of miscarriages of justice than the common law. I am satisfied that the nature of the warning which is now required to be given in relation to identification evidence is dictated by ss 116 and 165 of the Evidence Act rather than by the decision of the High Court in Domican, although a judge is still permitted to add the Domican formulation if thought appropriate in the particular case.

[18] The requirements of the common law, as to the need for the trial judge to give appropriate warnings to the jury of the dangers inherent in identification evidence, apply also to criminal cases tried without a jury.[41] There is no reason to take a different view under the statutory evidence regime in the Northern Territory. This appeal was argued on the basis that the magistrate was required to comply with both s 116 and s 165 Evidence (National Uniform Legislation) Act. In the circumstances I intend to decide the appeal on that basis. However, I have some doubt as to whether s 165 does apply to judge-alone trials in the Northern Territory, because s 165(2) commences with the words, "If there is a jury ...", which suggests that the judge's obligation is not engaged if there is no jury.

[19] Both s 116 and s 165 Evidence (National Uniform Legislation) Act assume that the identification evidence has been admitted.[42] Both sections require the judge to inform or warn the jury about the need for caution. Although the expression "special need for caution" is used in s 116(1)(a) and "need for caution" is used in s 165(2)(c), the inclusion of the word "special" in s 116(1)(a) does not add anything material to the expression "need for caution". The significance of the word "special" was explained by Hunt CJ at CL in Clarke v The Queen as follows:[43]

It should be noted that both sections refer only to a "need for caution" although s 116 gives emphasis to the need being a "special" one. The "special" nature of the need for caution in relation to identification evidence relates to the seductive effect of that evidence, which the High Court in Domican said had frequently led to proven miscarriages of justice and which (in turn) had obliged the appellate courts to lay down "special" rules in relation to the directions to be given in criminal trials where identification is a significant issue.

[20] It should be noted that there are differences between the two sections. Unlike s 116, s 165 applies only where a party requests.[44] However, once triggered, s 165 is arguably stronger in its terms, in that it requires a warning as to the possible unreliability of identification evidence, and requires the judge to inform the jury of matters that may cause the evidence to be unreliable.[45] It is probably implied in s 116 that the judge's explanation of the "need for caution" would refer to the possible unreliability of the evidence and to the matters that may cause the evidence to be unreliable, but s 165 expressly requires such warning and information. Another express requirement of s 165 (not found in s 116) is that the jury be warned of the need for caution in relation to the weight to be given to identification evidence, further to the need for caution in deciding whether to accept such evidence.

[21] In most if not all cases where identification evidence is admitted, compliance by a judge with the requirements of s 165 Evidence (National Uniform Legislation) Act would also satisfy the requirements of s 116 of the Act. The appellant's written and oral submissions did not differentiate, but were apparently directed at the magistrate's asserted failure to comply with s 165 in not giving herself "any directions as to what factors in this case may make the identification evidence unreliable".[46]

The magistrate's approach to the identification evidence

[22] As mentioned above, defence counsel had addressed the magistrate in detail, as summarized in [10] and [11], and had referred her Honour to the requirements of s 165 and s 116 Evidence (National Uniform Legislation) Act, as well as to a number of authorities including Reg v Turnbull and Longmair v Bott.[47] It appears that the magistrate was well aware of the possible unreliability of the identification evidence given by Pardon,[48] and of the need for caution before accepting such evidence from the single prosecution witness.

[23] Her Honour's instruction to herself was as follows:[49]

In this case the prosecution brings a case based on identification and the identification is provided by one witness. I accept that, although the evidence is provided as 'recognition evidence', it is still in the circumstances of this case to be categorised as identification evidence and therefore the warning about the possibility of the evidence being unreliable must be heeded.

Those warnings are effectively that people who give identification evidence are honest witnesses, [but] may still be mistaken in their identification evidence, and the reason why warnings have to be given and heeded [is] because it might otherwise be the case that because a witness comes across as very honest and truthful and believable in their evidence, it might be that someone simply accepts their evidence based on that, without scrutinising it carefully in relation to the possibility of mistake, and identification evidence is one of those areas of evidence where the experience of courts is that honest witnesses can be mistaken.

So, before accepting identification evidence, as the trier of fact, I have to look at it very carefully. I have to look at the circumstances, the circumstances surrounding the knowledge that Senior Constable Pardon had of the defendant as well as the circumstances on the day in which the identification is said to have been made.

[24] It is tolerably clear from the magistrate's statements extracted in [23] that she informed or reminded herself of the need for caution before accepting the identification evidence given by Pardon. Her Honour did not specify "special need for caution", the term used in s 116(1)(a), or "need for caution", used in s 165(2)(c), but both s 116 and s 165 expressly provide that no particular form of words is required.

[25] In the first paragraph extracted in [23], the magistrate clearly warned herself about the possibility that the identification evidence given by Pardon was unreliable. In the second paragraph, her Honour warned herself of the need to carefully scrutinise the evidence on account of the possibility that the witness was mistaken.[50] Her Honour reminded herself of the danger that an apparently honest and truthful witness might still be mistaken in giving identification evidence. Her Honour also reminded herself about the collective experience of the courts in relation to witnesses who are honest and apparently truthful, but still mistaken. In the third paragraph, her Honour outlined her intended approach to assessing the reliability of the identification evidence, having regard to (1) the prior circumstances which were said to have enabled reliable recognition at the time of the alleged offending and (2) the circumstances in which recognition took place at the time of the alleged offending. I interpret the magistrate's words, "the knowledge that Senior Constable Pardon had of the defendant", as referring to the witness's familiarity with, and not simply prior knowledge of, the appellant. This is made clear by her Honour's several references subsequently to the witness's familiarity with the appellant and the circumstances in which he developed such familiarity.[51]

[26] Following her introductory remarks, the magistrate considered the degree of Pardon's familiarity with the appellant, the circumstances in which Pardon previously had dealings with the appellant and the nature of such dealings, and the circumstances in which Pardon observed the appellant at the time of the alleged offending. The transcript of her Honour's reasoned consideration is set out below:

The knowledge that Senior Constable Pardon had of the defendant apparently arose shortly after he was stationed to Groote Eylandt - about one month - a month after, he attended an incident involving the recovery of a boat. There were three persons associated with that boat. He was in their presence for a period of time, apparently it was a reasonable period of time, and one of those persons was the defendant in these proceedings, Laban Wurramarba.

So the evidence of Senior Constable Pardon is that he became familiar with Laban Wurramarba shortly after he arrived on Groote Eylandt.

He continued to have that familiarity reinforced over the next one year and nine to ten months, in a number of ways. First of all it was a name that was known to him, and came up from time to time because Laban Wurramarba is a prominent person in or on Groote Eylandt.

Senior Constable Pardon said that, in policing the community, he would see Laban Wurramarba on not unregular occasions. He knows the house of Mr Laban Wurramarba. He has seen Mr Laban Wurramarba sitting on the verandah of his house. He has been to that house to make direct enquiries of Mr Laban Wurramarba in relation to matters that he is investigating and in relation to people that he has been seeking. He has seen Mr Laban Wurramarba driving around in the community.

He said as a police officer of a small community he made it his business to know people in the community including, as I understood it, Laban Wurramarba.

In relation to the frequency with which he saw Laban Wurramarba, he said that it was once every month or two months - approximately - since he had been on the island.

In those circumstances, I accept that Senior Constable Pardon, as he said, knew Laban Wurramarba as a person in the community - as a prominent person in the community that he would go to from time to time in order to make enquiries in relation to carrying out his duties and I accept that he knew him in that capacity and was familiar with his appearance and maintained that familiarity over a year and nine to ten months since he was (inaudible) in the community.

The particular day in question, Senior Constable Pardon said that he was driving slowly into the Katherine Aviation car park at about 9.15 am. He said that he was driving about 5 to 10 kilometres per hour. There were no other cars moving about when he was in the car park other than a single vehicle which was driving slowly in the opposite direction and they passed each other. He said that, because they were driving slowly, he had an opportunity to look without being distracted at the other driver and he said that, as they passed, he saw and recognised the driver as Laban Wurramarba.

The distance between the two vehicles, he said, was about three to four metres, it was day time and although he could not recall whether the windows were up or down, there was no evidence that anything was obstructing the view between the two vehicles as they passed slowly in the car park.

He said that he immediately recognised Laban Wurramarba as the driver. He conceded that Laban was wearing sunglasses, which he described, but that in my view did not obstruct his ability to observe and identify the person driving that vehicle.

He conducted a U-turn and then I heard the evidence of the car that he was following accelerating away and taking a left turn in a way which Senior Constable Pardon [said] caused him sufficient concern to back off. I will come to the actual driving part in a moment. I just want to stick with the identification evidence at this stage.

During the course of the shift, checks were conducted in relation to Laban Wurramarba and it was discovered that he was disqualified from holding or obtaining a licence at the relevant time. And then, follow up work was done in order to secure that information by way of certificate.

In relation to Senior Constable Pardon's evidence, he said, 'I saw his face. I recognised him. I wasn't guessing. He was only a couple of metres away. I looked and saw Laban and recognised him.'

In my view, given the length of time that Senior Constable Pardon had been familiar with and known Laban Wurramarba and given the number of times and circumstances in which he had seen him over the ... 18 months or so that he had been policing Groote Eylandt, and given the opportunity to observe on the day, the short distance between them, the fact that it was day time, I am satisfied beyond reasonable doubt, even having given myself the identification warnings, that - and I accept the evidence of Senior Constable Pardon that he did, in fact, see Laban Wurramarba as the driver on that day.

[27] Sub-section 116(1)(b) requires that the judge inform the jury, not only that there is a special need for caution before accepting identification evidence, but also "the reasons for that need for caution, both generally and in the circumstances of the case". The appellant does not contend that the magistrate failed to inform herself of the need for caution before accepting Pardon's identification evidence, or that she failed to inform herself of the reasons for the need for caution generally. However, there remains an issue as to whether the magistrate failed to inform herself of the reasons for the need for caution "in the circumstances of the case".[52]

[28] Similarly, s 165(2)(a) requires that the judge warn the jury that the identification evidence may be unreliable. The appellant does not contend that the magistrate failed to do that. I am satisfied that the magistrate gave herself an appropriate unreliability warning, and also that her Honour substantially complied with s 165(2)(c), in that she expressed the need for caution and the consequent need to examine the evidence very carefully.

[29] The appellant's essential criticism of the magistrate's decision is set out below:

"Whilst the Magistrate gave herself generalised directions in relation to identification evidence, the content of the direction lacked the specificity required in relation to the facts of the matter, rather, the direction was just a recitation of the evidence with a finding of guilt."[53]

"The learned Magistrate did not give herself any directions as to what factors in this case may make the identification unreliable, rather, made comment that it is generally accepted that identification evidence can be unreliable. The learned magistrate did not direct herself in an appropriate [manner] given the facts of the matter, in particular, what may or may not make the evidence reliable. This failure to comply with the second limb of the mandated direction constitutes an error of law."[54]

[30] On my understanding, the criticism that "the content of the direction lacked the specificity required in relation to the facts of the matter" is a reference to s 116(1)(b). In effect, the appellant contends that the magistrate did not fully inform herself of the reasons for the need for caution in the circumstances of the case. The reference to the "second limb of the mandated direction" is a reference to s 165(2)(b). The appellant contends that the magistrate (as judge) failed to inform herself (as jury) of specific 'unreliability matters'.

[31] Although the magistrate referred generally to the matters which might have caused the evidence to be unreliable (risk of honest mistake in recognition, and circumstances 'on the day' which may have adversely affected reliable recognition of the appellant), the complaint on appeal is that the magistrate did not expressly list for herself at the outset the following specific 'unreliability matters': (1) previous instances of contact between Pardon and the appellant may have been insufficient to result in the degree of familiarity required for adequate recognition; (2) limited opportunity for identification on the day, given that Pardon and the appellant were in separate vehicles travelling (albeit slowly) in the opposite direction to one another, such that the time for recognition was only a matter of seconds; (3) identification was made by reference to facial features only, not the whole body; (4) identification may have been made more difficult by the fact that the driver's side windows of both vehicles were not 'wound down', and (5) the appellant was wearing sun glasses.

[32] On the appellant's contention, even if the magistrate carefully considered the evidence relating to the 'unreliability matters' in [31], her Honour erred in law by not informing herself of those matters in advance of her consideration of the evidence.

[33] Counsel for the respondent submits that the magistrate was "not mandated to specify what may, or may not, make evidence reliable".[55] If that submission means that the magistrate was not required to inform herself of matters which may have caused Pardon's identification evidence to be unreliable, the submission is contrary to s 165(2)(b) of the Act. The respondent also submitted that the magistrate was required to comply with s 116 and s 165 of the Act before accepting such evidence, with which I agree. However, I do not see how the magistrate could have complied with s 165 without (as judge) informing herself (as jury) of the matters that may cause the identification evidence to be unreliable, at a point in time before the magistrate (as jury) considered the identification evidence for the purpose of determining whether such evidence could be accepted to prove the guilt of the appellant beyond reasonable doubt.

[34] In my judgment, the magistrate erred in law. Although it must be acknowledged that compliance with s 165(2)(b) is a question of degree, it is apparent that her Honour did not fully comply with the requirement to inform herself of the 'unreliability matters' in relation to Pardon's identification evidence before considering and making findings on that evidence. There was a partial failure to comply with the statutory requirement. Moreover, although the appellant did not specifically refer to s 116(1)(b) in the submissions set out in [29], I have concluded that the magistrate did not fully inform herself of the reasons for the need for caution "in the circumstances of the case" before considering and making findings in relation to Pardon's evidence.

[35] I turn to consider whether the proviso in s 177(2)(f) Local Court (Criminal Procedure) Act should be applied, taking account of the ground of appeal which I have found has been made out. I need to consider whether any substantial miscarriage of justice has actually occurred. There is no rigid formula to determine what constitutes such a radical or fundamental error as to preclude the application of the proviso.[56]

[36] Whereas, in a jury trial, the reasoning of the tribunal of fact is not revealed, the position is quite different in a judge alone trial. There it is possible for an appeal court to examine the judge's reasons, not only to see whether the judge has properly informed and directed himself or herself in accordance with law, but also to assess the effect on the judge's decision-making of a misdirection or failure to direct. It is possible to ascertain from the judge's reasons how the judge has considered and dealt with the relevant evidence.

[37] In the present case, the magistrate's reasons, set out in [26] above, show that her Honour dealt thoroughly with the identification evidence. The quality of her Honour's consideration of the evidence was not apparently reduced or adversely affected as a result of her incomplete instruction or explanation to herself. I have reached this conclusion because of the way in which the magistrate first listed 'unreliability matters' for herself, as explained in the first sentence of [31] above, and because of the way in which the magistrate then analysed and considered the identification evidence in the manner revealed in the transcript extract at [26] above. Her Honour's approach was as though she had warned/informed herself in relation to the unreliability matters raised by defence counsel, and was taking heed. She scrutinized the evidence carefully. On my analysis, having devised the approach she intended to take, as explained in [22] - [25], the magistrate dealt with all of the matters which may have caused Pardon's identification evidence to be unreliable (s 165) or which may have raised the need for caution in accepting Pardon's identification evidence in the circumstances of the case (s 106).

[38] In the circumstances, I am satisfied that there was no substantial miscarriage of justice. Therefore, notwithstanding that the first ground of appeal has been decided in favour of the appellant, I do not allow the appeal on that ground.

[39] The appellant contends as an additional ground of appeal that the evidence before the magistrate was insufficient to prove beyond reasonable doubt that he was the driver of the Toyota vehicle observed and pursued by Pardon.

[40] Specifically, counsel for the appellant argues that the witness's recognition was based only on his observations of the appellant's facial features, and not his body shape or height, or some other unique features; that Pardon's sighting of the driver of the Toyota vehicle was extremely brief; that Pardon was "some distance away"; and that Pardon's past dealings with the appellant were not "at the higher end of the scale of recognition" and did not go beyond brief interactions; and that cross examination is a limited tool in testing a witness's capacity to recognise a face such that honesty or certainty on the part of a witness is to be given only limited weight.[57]

[41] It is true that cross examination may be a limited tool for testing a witness's capacity to recognise a face. However, the appellant's submission fails to take into account that the only identified issue with Pardon's evidence was the identification itself. Otherwise, the circumstances in which he made the identification on the day were not in dispute. Here I refer to the facts that both vehicles were being driven slowly, in daylight hours; the drivers (Pardon and the appellant) were only three or four metres away from one another when the vehicles passed; and Pardon had the opportunity to observe the appellant for some seconds. Pardon identified the appellant immediately. The appellant's submission also fails to take into account the appellant's distinctive features described by Pardon, referred to in [8] and [12] above.

[42] Counsel for the appellant also argues that no witness corroborated Pardon's evidence of recognition of the appellant; further that there was no other corroborative evidence, for example, evidence of the appellant being arrested at or near the location of the alleged offending. Those matters may be accepted.

[43] The ultimate question for this Court on appeal is whether it was open to the magistrate to be satisfied of the appellant's guilt beyond reasonable doubt. In M v The Queen,[58] the majority said:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. ...

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained in the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. ... the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

[44] It is not sufficient for the present appellant to show that there was material which the magistrate might have considered sufficient to preclude satisfaction of guilt beyond reasonable doubt. As Hayne J said in Libke v The Queen (Gleeson CJ and Heydon J agreeing):[59]

... the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. ... It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

[45] Although there was material which might have been taken by the magistrate to be sufficient to preclude satisfaction of guilt beyond reasonable doubt, in my opinion the evidence was not such that the magistrate must have entertained a reasonable doubt about the appellant's guilt.

[46] Counsel for the appellant also argues that the subject of this appeal "sits squarely within" the facts and circumstances considered by Blokland J in Longmair v Bott,[60] and that that somehow resolves the issue in this appeal in the appellant's favour. I reject this argument. It is true that common to both Longmair v Bott and the present appeal is that recognition evidence was given by a police officer whose honesty was not questioned. The issue in both appeals was/is the reliability of the evidence of the police witness, not his credit. However, an analysis of the reasons of Blokland J reveals major factual differences between the two cases. Her Honour at [24] identified the factors which, in her judgment, made acceptance of the identification evidence erroneous. Those factors were that the viewing conditions were poor in terms of the brief exposure duration between the police witness and the alleged offender; that the distance between them was approximately 15 to 20 metres initially and then greater; the initial viewing took place while the police witness was still driving a motor vehicle; the alleged offender was wearing a 'hoodie' over a substantial part of his face; the recognition was based on facial features in circumstances where there was nothing distinctive to differentiate the alleged offender from others in a large group; the alleged offender's face was further obscured for part of the time by iron bars; the witness was observing large numbers of other young persons at the same time he was observing the alleged offender; and the identification took place in circumstances where the police witness had concerns for his own safety and damage to the police vehicle. Blokland J referred to the fact that the police witness was fatigued, which was not in itself significant but which "when added to the less than ideal circumstances of the identification" led her Honour to the conclusion that error had occurred in the magistrate's finding beyond reasonable doubt that the police witness had accurately identified the appellant in that case.

[47] The identified facts in Longmair v Bott and the facts in the present appeal are obviously different, and it is not necessary to labour them further to identify the differences. It is clear that the subject of this appeal does not "sit squarely within" the facts and circumstances in Longmair v Bott.

[48] The second ground of appeal must therefore fail.

[49] The appeal is dismissed.

[3] Exhibit E1, transcript 17 March 2016 p 7. Pursuant to s 119(c)(ia) Motor Vehicles Act (NT), the certificate was prima facie evidence of disqualification.

[4] Transcript 17 March 2016 p. 6.4, p 6.7.

[10] Transcript 17 March 2016, p 4.9 - 5.1.

[16] Transcript 17 March 2016 p 12.9 - 13.1.

[17] Transcript 17 March 2016 p 13.8 - 14.2.

[18] Transcript 17 March 2016 p 14.4 - 14.8.

[19] This answer, as transcribed, makes little sense.

[20] Transcript 17 March 2016 p 15.5 - 16.6.

[21] Transcript 17 March 2016 p 17.8 - 18.2.

[22] Transcript 17 March 2016 p 18.4 - 18.6.

[26] In response to the magistrate's observation that s 165 Evidence (National Uniform Legislation) Act (NT) described identification evidence as "evidence of a kind that may be unreliable", not evidence which is inherently unreliable, defence counsel re-phrased her submission to say that identification evidence is "evidence that is of a kind that great care needs to be taken when dealing with it" - see transcript 17 March 2016, p 23.1.

[27]Longmair v Bott [2010] NTSC 30 at [24].

[30] Transcript 17 March 2016 p 20.9, p 21.3.

[32] Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 at 181.

[33] See for example, Craig v The King [1933] HCA 41; (1933) 49 CLR 429 447 - 8; Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170; Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534; Domican v The Queen (1992) 173 CLR 555.

[34] Domican v The Queen (1992) 173 CLR 555 at 561.9 - 562.4, citations omitted. The majority continued to identify a number of significant weaknesses in the identification evidence, including that, at the time of the relevant shooting, the witness did not know the alleged gunman. It was a true identification case. The witness did not identify the gunman for approximately nine months, and at that time identified him from altered photographs. Moreover, the witness had by then seen the alleged gunman on television on a number of occasions. Additional weaknesses identified were that the gunman was some distance away from the witness, who was hiding behind a vehicle. The witness was in a state of shock at the time because approximately 30 shots had been fired in her direction. The witness's opportunity to observe the gunman was described as "fleeting".

[35] See, for example, R v Boardman [1969] VicRp 17; [1969] VR 151; Reg. v Turnbull [1977] QB 224; Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272; R v Spero [2006] VSCA 58; (2006) 13 VR 225.

[36] Trudgett v R [2008] NSWCCA 62; (2007) 70 NSWLR 696 at [29], per Spigelman CJ.

[37] Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272 at [60] per Blow J, Cox CJ agreeing at [1].

[38] Evidence (National Uniform Legislation) Act, Dictionary, Part I. In Trudgett v R [2008] NSWCCA 62; (2007) 70 NSWLR 696 at [31], per Spigelman CJ (Hulme J and Lathan J agreeing) rejected a submission made by the Crown at [19] that recognition evidence does not fall within the definition of "identification evidence".

[39] Trudgett v R [2008] NSWCCA 62; (2007) 70 NSWLR 696 at [28].

[40] Clarke v The Queen (1997) 97 A Crim R 414 at 427, per Hunt CJ at CL.

[41] Grbic v Pitkethly [1992] FCA 451; (1992) 65 A Crim R 12, per Shepherd J at 24; Sharrett v Gill [1993] ACTSC 147; (1993) 65 A Crim R 44 at 49; Parker v Espinoza (1996) 85 A Crim R 336 at 340; Longmair v Bott [2010] NTSC 30 at [17].

[42] Expressly in the case of s 116 and impliedly in the case of s 165.

[43]Clarke v The Queen (1997) 97 A Crim R 414 at 427, per Hunt CJ at CL.

[44] I put to one side the interpretation issue, raised in [18] above, as to whether s 165 applies to judge-alone trials in the Northern Territory.

[45] In this respect, the Evidence (National Uniform Legislation) Act reflects the majority's statement in Domican v The Queen, extracted in [15] above, as to the need to "identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

[47] Reg v Turnbull [1977] QB 224; Longmair v Bott [2010] NTSC 30. Neither decision dealt specifically with the law in the Northern Territory post the Evidence (National Uniform Legislation) Act .

[48] Transcript 17/03/2016, p 22.9, p 24.9.

[49] Transcript 17/03/2016, p 22.9, p 24.9.

[50] The case-specific warning which her Honour gave herself was probably also sufficient to satisfy the requirement of a single witness direction, which requires that the jury be told to carefully scrutinize the evidence of a witness who is the sole prosecution witness before convicting on the basis of that witness's evidence: R v Murray (1987) 11 NSWLR 12 at 19; see also Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162 at [21], [25] - [26]. The appellant argued that the magistrate erred in law in failing to give a Murray direction, but it was not a ground of appeal as such.

[51] The case-specific warning which her Honour gave herself was also sufficient to satisfy the requirement of a single witness direction, which requires that the jury be told to carefully scrutinize the evidence of a witness who is the sole prosecution witness before convicting on the basis of such evidence: R v Murray (1987) 11 NSWLR 12 at 19; see also Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162 at [21], [25] - [26]. The appellant argued that the magistrate erre in law in failng to gicve a Murray direction, but it was not a ground of appeal as such.

[56] Fleming v The Queen (1998) 197 CLR 250 at [39], per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.

[58] [1994] HCA 63; (1994) 181 CLR 487 at [7] and [9], per Mason CJ, Deane, Dawson and Toohey JJ.

[59] [2007] HCA 30; (2007) 230 CLR 559 at [113].

[60] Longmair v Bott [2010] NTSC 30.