Solomon v QPS[2015] QDC 307

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was convicted of a number of offences associated with the driving of a vehicle, in the Magistrates Court at Hughenden on 17 March 2015 after a hearing on pleas of not guilty.

The appeal

2. [2]
   The appeal is against conviction. The sentence is not under review, although it had to be reopened on 27 March 2015 to correct a sentencing error made on 17 March 2015.

The issue

3. [3]
   The issue in the hearing was one of identification. The findings made by the magistrate on that issue alone are the subject of the appeal. The appellant did not contest the facts (other than the evidence of identification) in the prosecution case. His case was simply that he was not the driver of the vehicle.

The offences

4. [4]
   The offences were all allegedly committed on 22 October 2014, in Hughenden. The offences upon which the appellant was convicted were:

• unlawful use of a motor vehicle: s 408A(1)(A) Criminal Code (Qld);
• dangerous operation of a vehicle while adversely affected: s 328A(1) & (2)(A) Criminal Code (Qld);
• fail to stop: s 754(1) & (2) Police Powers and Responsibilities Act 2000;

and

• drive motor vehicle whilst over middle alcohol limit but under high alcohol limit: s 78(1F)(A) Transport Operations (Road Use Management) Act 1995.

Grounds of appeal

5. [5]
   the grounds of appeal are (as advanced on the hearing of the appeal):

1. (a)
   the magistrate’s findings were unreasonable or not supported by the evidence;

2. (b)
   the magistrate did not direct himself as to, or consider, properly or at all, the principles in relation to identification evidence;

3. (c)
   the magistrate failed to or failed to properly consider or have regard to the caution with which identification evidence is approached by the courts;

4. (d)
   the magistrate made errors of law; and

5. (e)
   the magistrate made errors of fact.

Sentence (after reopening and resentencing)

6. [6]
   On the charges of unlawful use of a motor vehicle; and dangerous operation of a vehicle whilst adversely affected, the defendant was sentenced to 12 months imprisonment with a parole eligibility date of 22 July 2015. He was disqualified from holding or obtaining a driver’s license for 12 months.

7. [7]
   On the charge of fail to stop the defendant was sentenced to 55 days of imprisonment. The term of imprisonment was concurrent with the 12 months imprisonment. He was disqualified from holding or obtaining a driver’s license for two years.

8. [8]
   On the charge of driving a motor vehicle whilst over the middle alcohol limit, the defendant was convicted but not further punished. However, he was disqualified from holding or obtaining a driver’s licence for 6 months [the sentence, that is the imposition of a disqualification where the appellant had been convicted but not further punished, was not the subject of appeal].

9. [9]
   The period of imprisonment (the head sentence of 12 months) was cumulative upon the sentence currently being served by the appellant (he having breached a parole order in respect of a previous sentence).

Factual matrix

10. [10]
    At about 11pm on 22 October 2014 the complainant, Ms Hengst, when she was in her backyard, heard her vehicle engine started in her driveway. She went to the front yard and saw it driven away. It then returned past her house on Beaconsfield Street and she saw it proceed in the direction of Earl Street and turn right, at speed. She gave no permission or authority for the vehicle to be used by another person. [That is the commencement of the unlawful use of a motor vehicle charge]. 

11. [11]
    Shortly after the vehicle was driven away Senior Constable Robertson (“Robertson”) arrived at the complainant’s home. The complainant’s vehicle was stationary at the end of Beaconsfield Street in front of the railway lines. Robertson drove the police vehicle in that direction and then stopped in the middle of the street with his vehicle’s red and blue lights, headlights, taillights, side light, spotlights and siren all operating. The complainant’s vehicle was driven back along Beaconsfield Street. It was observed to accelerate fast, appeared to collide with a parked car outside another house and then drive at Robertson’s vehicle which was stationary in the middle of the street. [That is the dangerous operation of a vehicle charge].

12. [12]
    It was directed to stop by Robertson, including his use of a hand signal. It veered to the left, passed the driver’s side of the police vehicle and turned right into Earl Street. It did not have its headlights illuminated and it did not stop. Robertson followed it for some distance but he lost sight of the complainant’s vehicle. [That is the fail to stop charge].

13. [13]
    The defendant was subsequently apprehended and had a breath test administered later in the evening, when he was at the police station in custody and had a blood alcohol reading of .148%. [That is the driving a motor vehicle whilst over the middle alcohol limit charge]. 

The evidence about identification

14. [14]
    The key witnesses for the prosecution were Robertson and Constable Gray (“Gray”). There was also some evidence from Ms Hengst.

Ms Hengst

15. [15]
    I have set out a little of the involvement of Ms Hengst in the factual matrix. She did not see the driver of her vehicle, nor give any identification evidence.

16. [16]
    However, she was asked about an item found in the vehicle, a blue cloth shoulder backpack. The backpack did not belong to her. I will say something further about this shortly.

Robertson

17. [17]
    Robertson, upon his arrival outside the complainant’s house, looked down the road and saw the silhouette of a vehicle that was pointed out to him by the complainant. He said it appeared as though it was a car turning at the end of the street. He could see it side-on initially and he could see a light, a reflection, in the front of the car. The vehicle then headed towards where he and the complainant were standing, along Beaconsfield Street. He could see the silhouette of the vehicle by reason of the lights at the railway lines behind it and “also available street lighting from nearby houses”. 

18. [18]
    Robertson then drove down the road about 100m to 150m and stopped in the middle of the road. Ms Hengst was standing in her driveway about five house blocks from Robertson’s police car when it was stationary in the middle of the road. The other vehicle was proceeding towards him. It disappeared from sight and suddenly something white came out on the road and he saw that it was a car [it was another vehicle that had been parked on Beaconsfield Street in front of another house, as he discovered later. He had lost sight of the vehicle for a period of time]. He activated his red and blue strobe lights, side alley lights, spotlights and siren and commenced to direct the vehicle, as it was seen coming towards him, to stop by extending his arm from the right hand side of the police vehicle. He said the vehicle was driving at perhaps 45km/h – maybe 50km/h – and the vehicle then proceeded straight towards the police vehicle.

19. [19]
    He observed the registration number of the vehicle as it got closer. When it was about 100m away (“it would have been at least five car lengths”) from the police vehicle, he said:

“I focused on the registration number initially to identify the car.  Once I got that, then I started focusing on the driver of the vehicle to make sure that I could get proper ID. Again, because of previous experience with evade police offences or fail to stop offences it’s imperative that we identify a driver”.

20. [20]
    Robertson said that “with all the lights activated on the vehicle and the spotlights I could clearly see the driver of that vehicle illuminated as [it] got within close range”. 

21. [21]
    The vehicle kept travelling straight towards the police vehicle and then, at the last minute swerved sharply to the left and veered around the driver’s side of the police vehicle. The driver’s side of the other vehicle was perhaps a metre and a half to 2 metres away from the driver’s side of the police vehicle.

Robertson said there were “two or three street lights” along Beaconsfield Street. He had never had any dealings with the appellant previously. Robertson said that he saw the driver was a male and was the only occupant of the other vehicle. He said the driver was aboriginal, in his mid-20’s and had a very distinctive haircut – very short, thick cropped hair – and a goatee beard and was wearing a green coloured tank-top or singlet.  Robertson said he would have had the driver under observation for at least three to five seconds, or four to five seconds and that:

“… as he actually came past I looked directly at his face and I noticed that he was actually grinning at me when he drove past… I have a very close opportunity to see his features.  He was well illuminated because of the side alley lights on the Police vehicle, as well.”

22. [22]
    He said that he had been in the traffic branch of the police and identification of drivers was:

“one of the big things that they push on us with a lot of our gathering of evidence and especially with an evade police offence and pursuits. It’s really forced home now that we don’t want to pursue so our priority is to identify who our driver is and that’s what I was focusing on to make sure I could get a good identification of that driver” and “with the amount of light those cars produce and how bright they are,… I literally – I can’t forget that face”.

23. [23]
    The headlights on the other vehicle were not illuminated and whilst he did a U-turn and followed the vehicle, he did not pursue it. He lost sight of it and then proceeded to conduct patrols around the town looking for it. At some point he came across the vehicle abandoned in the middle of an intersection. There was damage on the front passenger side corner and also down the passenger side and wheel arch. The driver’s side door was open and the headlights were illuminated. The keys were still in the ignition. He looked inside the vehicle and saw a lady’s wallet on the driver seat and it was opened. The glove box was open and its contents appeared to have been interfered with. He saw a blue shoulder bag or backpack on the front passenger side floor well.

24. [24]
    Robertson contacted Gray and told him he had found the vehicle and they made an arrangement to meet at that location. They confirmed that another vehicle had been struck by the subject vehicle on Beaconsfield Street. He and Gray conducted patrols in the course of which Gray told him, in response to Robertson describing the person he had seen driving the vehicle (which included a statement that the person had “a haircut that looked like Eddie Murphy… well rounded, very thick, short cropped haircut”) that the description of the driver of the vehicle seemed familiar to him and similar to the appellant. Gray also told Robertson the appellant’s name. 

25. [25]
    As a consequence of that conversation the police officers drove past the defendant’s residence in Alyss Street and saw a light in the lounge room that appeared to come from a television set and noticed that the front door was open. Robertson says he saw someone in the lounge room “duck down” and step to one side. The appellant’s residence was about 100m from where the abandoned vehicle was located. They did a U-turn and returned to pull up outside the appellant’s house. The light in the lounge room was no longer illuminated. They walked through the gate and approached the house. Robertson activated his mag-lite torch and shone it at the front of the house and saw a male person looking at him through one of the windows of the house and said he “immediately recognised that person as the driver of that vehicle that I’d seen driving along Beaconsfield Street”. The person then ducked down underneath the window edge. The officers entered the house and the appellant was lying face down on a bed. He was wearing a pair of shorts, but no shirt.

26. [26]
    The house was on stumps with steps leading up to the front door. Robertson had looked “straight up” and says he “saw the full face over the top of the window frame”.  He thought the person was either on his knees, on the bed or crouched down.  He said the person had “very distinct features” and that “his particular hairstyle and goatee beard – I hadn’t seen anyone else around town with that particular sort of appearance”. He could not recall if Gray had said anything to him when he had directed the torch at the window but said “if I said anything it would have been ‘that’s him’”. Robertson did not look for a green top or green singlet, nor did he find one.

27. [27]
    Robertson agreed that in his Statement of Witness he had not gone into great detail about what he saw, except to say it was unique or it was different. They had gone to the house as a result of the reference to the appellant’s name by Gray.

Gray

28. [28]
    Gray said that after attending the location where the vehicle had been found abandoned, he had a conversation with Robertson and they then proceeded to Alyss Street and went toward the front stairs of the appellant’s house. He said when the torch was directed at the window of the residence “the defendant [was] there for a couple of seconds, then he ducked down”.  He agreed that he had told Robertson that the location of the vehicle was “pretty close to where a Brendon Solomon lived” and that the description given to him was similar to the appellant. That was the reason they attended at the appellant’s house. Robertson had told him that “he had seen an indigenous male driving the vehicle”. When the window was illuminated he recalled Robertson saying words to the effect of “that’s him”.  He said that he saw the person from some part of his upper torso, it would seem, to the top of his head. [He indicated that by a movement, it seems, of his hands in the course of his evidence, but the indication was not otherwise described in words]. 

29. [29]
    Robertson had described the driver as looking “a little like Eddie Murphy”. He had said the driver had “short cropped hair, but it was fairly thick”. He could not recall whether Robertson had referred to a goatee or stubble or something along those lines as well. He considered that the description given by Robertson “did sort of describe the [appellant] in this case”.

Submissions and exchanges with the magistrate about identification

30. [30]
    The course of submissions made to the magistrate and his active interaction in the course of them, provide a useful yardstick against which to measure the matters referred to in his decision.

Prosecution

31. [31]
    The prosecutor provided a written submission. He referred to two cases: Winmar v W.A. (2007) 35 WAR 159 (relevant factors in identification) and Sutton [1978] WAR 94 (accuracy in identification of “casual acquaintances” in the context of cautious assessment) [both cases are cited in the Supreme and District Court Benchbook], the issue of credit of Robertson and the sufficiency of his evidence alone and without supporting evidence.

32. [32]
    The prosecutor said the circumstances of the identification of the defendant by Robertson were a clear unobstructed view of the face of the person who was clearly lit, in close proximity and was in view for several seconds. Only between 90 and 150 minutes had elapsed between the two identifications.

Defence

33. [33]
    Mr O'Dea submitted that a mistaken witness may nevertheless be convincing. The identification evidence was tainted because of Gray’s statement to Robertson and their visit to the appellant’s house. The magistrate responded that “the evidence wasn’t tested with any great vigour” and Robertson “goes into the house yard, shines a light into the window, sees the person he has seen in the car met the description of Robertson … a little while ago. He has not at that point been told by anyone who it is. It wasn’t said at that time by Gray, who knows Solomon, “that’s him”. That would certainly taint it but there is no evidence that that occurred. In fact there was evidence that it did not occur. Gray says he’s [Robertson] shone the torch … on the window and says, “that’s him”, before there’s any further conversation … with Gray.”

34. [34]
    The magistrate interrupted Mr O'Dea constantly and the submission was a series of argumentative statements led by his Honour. That is unfortunate, because Mr O'Dea never really, it seems to me, had the opportunity to articulate his submissions properly. Some degree of interruption is acceptable, but not to the extent that the transcript reveals in this case.

35. [35]
    The magistrate in one interruption said, “So he’s [Robertson] looking straight on, it swerves and then gets a side view on him and the fellow’s looking at him and the evidence of Robertson is that he was smiling at him” and then added, “So it suggests … a pretty good glance at him.”

36. [36]
    Mr O'Dea referred to Domican (infra). He provided a copy of the Supreme and District Court Bench Book direction on identification. He submitted that other evidence implicating a defendant may be highly relevant and his Honour said in response, “In this case … it’s not present” and added, “That’s not fatal.” Mr O'Dea submitted that it was “fatal” and that Gray “seems to have got it into his head … that because Solomon lived close and the car was found close by that he then became an immediate suspect”.

37. [37]
    He submitted that the officers had asked questions but did not immediately arrest the appellant and there was an inference there “that they weren’t sure of who they had”. 

38. [38]
    His Honour said that there was no evidence led of the conversations in the house. However, Robertson had been asked in cross-examination, “… you did not immediately arrest him, did you?” and had replied, “I had to ask him what his name and details were first. I asked him where he was that night, where he’d been”.  Robertson was then asked in cross-examination, “But you had already ascertained that he was the individual, didn’t you?” and had replied, “That’s correct, yep.”

39. [39]
    The cross-examination continued as follows:

40. [40]
    His Honour ended that line of questions by saying, “… the evidence [of conversation] isn’t being led. The evidence is not admitted. There is no point in going there. It was the subject of objection”. 

41. [41]
    His Honour in the course of Mr O'Dea’s submission said, “The inference is equally available … that he [the appellant] made certain admissions with respect to the conversation had about what happened earlier that night” and said he should ignore that conversation. Shortly after added, “Isn’t it equally clear that I can’t make any inference against your client?”

42. [42]
    Mr O'Dea said that Robertson “may well be an honest witness but he well be mistaken too” and that the officer’s observation “in the short, brief period of time may be incorrect.”

43. [43]
    His Honour concluded the submissions by Mr O'Dea by saying, “…. In assessing the evidence, I need to have regard to those matters outlined in the Bench Book and those matters outlined in the case of … Domican”.

Decision

44. [44]
    The magistrate referred to the instructions on giving directions in the Supreme and District Court Bench Book with respect to identification evidence. However, as may become apparent there were some deficiencies in the way in which he approached that task. I will deal with those further when the decision is discussed (infra). 

45. [45]
    His Honour correctly identified the identification issue as being dependent on his acceptance of the evidence of Robertson. He said that “the warning I should give myself in accordance with [the Bench Book directions] are the warnings that a jury would receive with respect to identification”. 

46. [46]
    His Honour summarised the evidence of both Robertson and Gray, referring to matters of strengths in the identification evidence. He was largely dismissive of the submissions about weakness and the identification evidence made by Mr O'Dea.

47. [47]
    His Honour made an observation which is somewhat curious, about any prior contact with Robertson with the appellant:

“Had the witness ever seen the defendant before?  He had not.  If only occasionally.”

48. [48]
    That statement is somewhat contradictory because it was unequivocally the case that Robertson had never seen the appellant before the night in question. Nevertheless, it seems to me that he was aware that Robertson did not know the appellant.

49. [49]
    Mr O'Dea had referred to the second identification as being tainted by Gray’s statements to Robertson prior to the police officers travelling to the appellant’s house. His Honour responded in his decision about that submission, in the following terms:

“The difficulty with that contention is that Senior Constable Robinson (sic) was not told by Constable Gray that the person he identified when he shines the light on him through the window and subsequently arrests was Solomon. The only compromise regarding the identification is that Gray directs Robinson to the house where Solomon lives.  He does not otherwise encourage the identification.”

50. [50]
    It seems to me that the magistrate has missed the point made by Mr O'Dea. I will say something further about this (infra) when I discuss the decision.

51. [51]
    His Honour in the decision also relied upon Robertson’s self-serving statements about the accuracy of his identification, having concluded that:

“in view of the positive and compelling evidence from Senior Constable Robinson (sic), I have established beyond reasonable doubt that the person Senior Constable Robinson (sic) saw that evening was the defendant and I find him guilty of the offences as charged”.

52. [52]
    His Honour said that Robertson’s “… entire focus was on seeking to identify the face or identify the person driving, given that it was unlikely that he would be able to pursue the vehicle, having regard to the police non-pursuit policy” and “he had every reason to remember the identity of the individual because he would not be able to chase him if he did not stop so he focussed his mind and his attention on remembering the face that he saw. It wasn’t a passing or coincidental observation. It was the determined observation of a police officer investigating an offence, conscious that identification would be a significant aspect of the prosecution against the defendant.”

53. [53]
    I will say something further about this (infra) when I discuss the decision.

Submissions made on the appeal

Appellant

54. [54]
    Mr Bassett submitted that the prosecution case depended entirely on the identification evidence of Robertson. He submitted that the evidence was not sufficient or was deficient. He referred to two purported identifications:

55. [55]
    On the street, the purported features of identification were as follows:

• a short time frame to make an identification – three or four to five seconds;
• a distance of 100m and the car travelling at, say 50km/h at most: the time would perhaps have been (on a simple arithmetical calculation) about seven seconds;
• it was night time and there were two to three streetlights in the street;
• the police vehicle was “lit up”: headlights on high beam, strobe lights flashing, side lights and spot lights on; and
• the appellant was not previously known to Robertson, but the description of the driver was unremarkable: aboriginal, mid-20’s, very distinctive haircut (very short, thick, cropped hair), a goatee beard and wearing a green tank-top or singlet.

56. [56]
    At the house, the points of identification were:

• Robertson gave a description of the driver to Gray and what he said is not entirely clear, however, Gray said that the description “sounded very familiar” to the appellant and that where the vehicle was found “pretty close” to where the appellant lived;
• Robertson and Gray went to the appellant’s house where an occupant was seen from ground level at a window, of what appears to be reasonably highset house, in the light beam of a torch from (as best as can be inferred from the evidence) “neck up and full face”, but momentarily it seems.

57. [57]
    Mr Bassett submitted that there was no other evidence implicating the appellant. He referred to the dangers of identification in the circumstances described in this case. He referred to cross-racial identification. He also described Robertson’s evidence as “pulling himself [as a credible witness as to identification] up by the bootstraps”.

58. [58]
    Mr Bassett submitted that the police investigation was inadequate. Confirmatory evidence of the purported identification was potentially available but not investigated: for example, finger printing of the vehicle at least; or if it or contents were fingerprinted then no latent fingerprints were found, given that the observations by Robertson of the interior of the vehicle were of a wallet on the driver’s seat, the glove box was open and the contents apparently interfered with, a backpack was in the front passenger side of the vehicle, the door handle of the driver’s door, which had been opened; and there having been no search for clothing at the appellant’s house.

59. [59]
    Mr Bassett submitted that the magistrate failed to apply the Domican principles and the warning about the dangers of identification and did not refer to specific weaknesses in his assessment of the identification evidence.

Respondent

60. [60]
    Ms Payne said there was no fingerprint evidence [no latent prints were located] and the absence of any search for or locating of a green shirt was “not fatal” to the prosecution case. She referred to the evidence about the hairstyle or haircut of the man seen by Robertson and to Gray’s statements after being given a description of the man Robertson had seen and his having said that he knew the person described as the appellant. She also referred to Domican and to cross-racial identifications. 

61. [61]
    Ms Payne submitted that the identification evidence was strong even in the absence of support (sic) from other evidence and that it was open to the magistrate to accept and rely on the evidence of Robertson about identification. 

The appeal process

62. [62]
    An appeal against is by way of rehearing on the original evidence given in the Magistrates Court: s 223 Justices Act 1886; and Scrivener v DPP (2001) 125 A Crim R 279.

63. [63]
    I am required to review the evidence and draw my own inferences and conclusions and thereby determine the relevant facts in issue from the evidence, giving proper deference to the magistrate’s view: Warren v Coombes (1979) 142 CLR 531, at 551; Fox v Percy (2003) 214 CLR 118, at [25]; Rowe v Kemper [2008] QCA 175, at [5].

64. [64]
    A finding of fact by the magistrate, based on the credibility of a witness, may only be set aside upon the appeal where incontrovertible facts or uncontested testimony demonstrate that the magistrate’s conclusions are erroneous, or where it is concluded that the magistrate’s decision was glaringly improbable or contrary to compelling inferences in the evidence on the summary hearing: Warren v Coombes (supra); Fox v Percy (supra); Devries v Australian National Railways Commission (1993) 171 CLR 472.

Discussion

65. [65]
    I requested the parties to provide the ‘Statements of Witness’ of both Robertson and Gray, because of the reference to them in the course of the hearing before the magistrate. There is no reference to the specific description given by Robertson, in his Statement. Nor is there any such reference in the Statement of Gray, even though he gave the description in re-examination - over objection by Mr O'Dea, who was not permitted to further cross-examine Gray about that matter – on the basis that Mr O'Dea had ‘opened the issue’ in his cross-examination, which I do not consider that he did. However, on my independent assessment of the evidence I am not able to regard any of that as fatal to the cogency of the evidence of identification.

66. [66]
    His Honour recognized that he should refer to the Supreme and District Courts Bench Book in assessing the evidence. He certainly referred to matters that he thought were strengths in the identification. Whilst he did not refer to the weaknesses in a way which set out those matters clearly, which is the preferable way of demonstrating the balancing exercise that is part of an assessment of identification evidence, they were nevertheless, it seems to me, referred to or inferentially considered by his Honour.

67. [67]
    In Domican v The Queen (1992) 173 CLR 555, the Full Bench of the High Court (Brennan J dissenting with respect to the particular circumstances of that case) wrote a number of statements [at 9] about identification evidence that provide guidance as to the correct approach in directing a jury or directing himself or herself:

“A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence” … and … “the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence” … and … “Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way”.

68. [68]
    Their Honours wrote [at 10] that such statements are applicable in all criminal trials “including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence”, and that:

“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.”

69. [69]
    A number of the special rules that the Court referred to have relevance to the case against the appellant, at [11]:

“… the judge must warn the jury as to the dangers of convicting on [identification] evidence where its reliability is disputed” … and “The terms of the warning need not follow any particular formula” … and … “it must be cogent and effective” … and … “it must be appropriate to the circumstances of the case” … and … “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’” … and … “the attention of the jury ‘should be drawn to any weaknesses in the identification evidence’”;

and, at [20]:

“… [the adequacy of the evidence] is evaluated by reference to the identification evidence and not the other evidence in the case.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 the accused”.

70. [70]
    In the case against the appellant there were several potential weakness in the identification evidence, not the least being the following:

• The brief period of time that Robertson had to see the driver;
• A reliance by the Magistrate upon the ‘training’ of a police officer to make an identification;
• An acceptance by the Magistrate of the certainty expressed by Robertson of the accuracy of his identification;
• The potential tainting of the confirmation of the identification by the information and direction given by Gray;
• An incorrect approach in drawing inferences and the lack of explanation in the decision;
• Cross racial identification; and
• The potential tainting of the Magistrate’s assessment by reason of his awareness of other evidence that may have implicated the defendant as the driver of the vehicle that was not led on the hearing.

71. [71]
    I will deal with each of those potential weaknesses:

The brief period of time that Robertson had to see the driver

72. [72]
    Pitkin v R (1995) 69 ALJR 612 was a case primarily about photo board identification. However, the High Court stated that “a person is not to be convicted of serious crime on the sole basis of verbal ambiguity”. Expressions such as “looks like”, “sort of” or “is similar” are not sufficient in photo board identifications and similarly not sufficient in other forms of visual identifications.

73. [73]
    In assessing the credit of Robertson, the usual approach applied. A witness may be honest enough, but otherwise may be mistaken or unreliable. This was a case where his credibility, in the sense of reliability, was in issue. However, I do not consider that his evidence was unreliable.

74. [74]
    The vehicle went past Robertson, who was seated in the driver’s seat of his police vehicle, quickly - the driver having driven at the police car and then veered past the driver’s side of the police vehicle. Whilst there were lights operating on the police vehicle that inferentially at least illuminated the other vehicle, the opportunity to see the driver would have been ‘fleeting’ at best. However, Robertson said in evidence that the driver looked at him and grinned. He also was able to say that the driver was an aboriginal and described his hair style [before he subsequently saw the appellant at the house].

A reliance by the magistrate upon the ‘training’ of a police officer to make an identification

75. [75]
    Police may regard ‘having a good look’ at a driver of a vehicle in circumstances such as in this case as an important investigative tool, but it does not make a police officer any more competent, accurate or reliable than any other observer who subsequently makes any visual identification of another person. Further, there was no evidence before the magistrate about the content, scope, duration or frequency of any such training or by whom it is delivered. It is wrong for police to claim some special skill per se in that circumstance or for a judicial officer to act on it as adding to the accuracy or reliability of identification evidence. Robertson’s evidence it seems to me was nothing more than he and other police having been told to try and ‘get a good look’ at the driver of a vehicle. I have ignored the evidence of Robertson about ‘training’ in my assessment of the evidence.

 An acceptance by the magistrate of the certainty expressed by Robertson of the accuracy of his identification

76. [76]
    Robertson believed that his identification of the appellant as the driver was accurate and he said as much. However, that self-supporting opinion is of no evidential value at all and a judicial officer should not draw on such statements as bolstering the accuracy and reliability of identification evidence. The evidence must be found elsewhere, in the objective facts and circumstances of the identification itself and that is the approach that I have taken in my own assessment of the evidence.

The potential tainting of the confirmation of the identification by the information and direction given by Gray

77. [77]
    It is not so much the case that Gray said anything at the second identification (at the appellant’s house) that encouraged Robertson to make what he self-describes as a ‘positive identification’ of the person in the house (the appellant) being the person who was driving the vehicle. The very fact that Gray directed Robertson to that house having informed him that the description given by Robertson was familiar to him and having said that he knew who the person was, in effect, is the point that Mr O'Dea was making: that is, the very fact that the officers went to the house after Gray’s statements to Robertson was that it would inevitably lead to a conclusion by Robertson that the person who occupied the house was indeed the person who had been driving the vehicle. Mr O'Dea’s point was that the very fact of driving to that residence in circumstances where Robertson did not know and had not previously met the person he had seen driving the vehicle, was capable of tainting the identifications made by him.

78. [78]
    As his Honour stated, had Gray said to Robertson “that’s him”, before Robertson said anything, this point would have been much more significant. Gray did not do so. I do not consider the fact that the officers went to the house at Gray’s suggestion, is of itself not fatal to the second identification.

Was there an incorrect approach in drawing inferences and a lack of explanation in the decision?

79. [79]
    In R v Feiloakitau [1993] QCA 522, the Chief Justice wrote, in the context of describing ‘identification evidence’, that:

“Evidence merely of proximity or other evidence of opportunity to commit an offence can be part of the circumstantial evidence in a case but may not by itself be probative. Other evidence which has conveniently been categorised as “circumstantial evidence of identity: (see Cross on Evidence 1991 edition, para. 1455) is to be distinguished from evidence usually called “identification evidence”.

80. [80]
    In Cross on Evidence, in the current loose leaf edition, that matter is expressed in the following way by the learned author:

“When there is no doubt that an act has been done, and the question is whether it was the act of a particular person, all relevant evidence is normally admissible in order to prove that fact.”

81. [81]
    It was open to the magistrate to take inferences from two factual circumstances. Firstly, the vehicle was found abandoned in a street close to where the appellant lived; and secondly, the appellant - the only occupant of the house it seems – was seen to move, furtively perhaps, inside the house as the police drove past, appeared at the window as they walked up to the front door and then ducked or moved below the window edge and was found on the bed feigning, it seems, sleep. That circumstantial evidence arguably separately supported the finding of guilt of the appellant. The inferences open to be drawn are, of course, adverse to the appellant. However, I do not think that these were circumstances that gave rise to equally competing inferences where, of course, one would have to be satisfied beyond reasonable doubt that the adverse inference overcame any other inference.

In his decision, the magistrate did not refer to the potential inferences, at least not overtly, in his finding of guilt of the appellant. However, it is open to me to have regard to those matters of inference, separately of course from the evidence of identification.

Cross racial identification

82. [82]
    In Feiloakitau, in a joint judgment, Mc Pherson and Pincus JJ wrote, at page 11:

“… the jury should have been warned that people find it more difficult to identify a person from another racial group than one from their own racial group. It should have been pointed out that this was, in the present case, a factor making the identifications less reliable, and that a person of e.g. European origin could not be expected to identify one of Aboriginal or Islander descent as easily as another European would be identified.”

83. [83]
    That statement is as apposite to the circumstance in this case as it was in Feiloakitau, albeit there were several other problematic issues with the identifications in that case.

84. [84]
    Whilst his Honour did not specifically refer to this issue, I have done so. I do not consider that it is as significant in this case because the description given by Robertson referred, for example, to observations other than mere facial features or simply ethnicity.

The potential tainting of the magistrate’s assessment by reason of his awareness of other evidence that may have implicated the defendant as the driver of the vehicle that was not led on the hearing.

85. [85]
    There was a conversation at the house between Robertson and the appellant. That evidence was objected to by Mr O'Dea and was not led (by agreement it seems, rather than by a ruling by his honour) in the prosecution case. I assume that it was considered to be inadmissible by the parties because the appellant was not warned that he did not have to answer questions and the conversation may have had another preliminary investigative purpose. The magistrate was aware of the fact of the conversation. He may have been aware of the content of the conversation. However, he said explicitly that he would have no regard to the conversation and stopped Mr O'Dea from going into that issue in cross-examination, although Mr O'Dea seems to me to have had another purpose in doing so. There is no basis upon which I could infer that the magistrate did not do what he said he would and I accept that he did ignore any knowledge he may have had of the content of the conversation that was adverse to the appellant, in making his decision.

86. [86]
    To the extent that I am appraised any of the matter, I adopt the same approach. I ignore the conversation.

 Resolution

87. [87]
    Whilst the manner in which his Honour dealt with the identification issue may be open upon critical analysis to some criticism, I nevertheless consider that he has adequately addressed the issue in his decision and that the finding that upon the evidence in the prosecution case the defendant was accurately and reliably identified as the driver of the vehicle in question was open to be made.

88. [88]
    The magistrate did not make his task any easier by adopting a combative approach to the cross-examination by and the submissions made on behalf of the appellant, by his lawyer. As much as I infer some degree of frustration on the part of his Honour, it was unnecessary for him to behave in that way. It certainly did not make my task in assessing the evidence on the appeal any easier.

89. [89]
    In addition there is ‘circumstantial evidence of identification’, as discussed above, that point to the guilt of the appellant.

 Powers on appeal

90. [90]
    On the hearing of the appeal I may confirm, set aside or vary the appealed order or make any other order in the matter as I consider just: s 225 Justices Act 1886.

Conclusion

91. [91]
    His Honour was not in error in his decision. Even if he had been, I would have confirmed the convictions of the appellant on my independent assessment of the evidence. The appeal should be dismissed and the convictions confirmed.

 ORDERS:

 1 Appeal dismissed.

 2 Convictions of the appellant in the Magistrates court at Hughenden on 17 March 2015 are confirmed.