Sasha Grbic v Glen Thomas Pitkethly Sca [1991] ACTSC 101 (18 November 1991)

SUPREME COURT OF THE ACT

SASHA GRBIC v. GLEN THOMAS PITKETHLY
S.C.A. Nos. 90 - 91 of 1991
Criminal Law - Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Law - evidence - identification evidence - no identification parade - whether in-court identification admissible in summary proceedings - sufficiency of evidence - no new issue of principle.

Appeal - interference with magistrate's findings of fact - functions - functions of appellate court - no new issue of principle.

Alexander v The Queen [1981] HCA 17; (1980) 145 CLR 395

HEARING

CANBERRA
18:11:1991

Counsel for the Appellant: Mr R.G. Thomas

Solicitors for the Appellant: Pappas J. Attorney

Counsel for the Respondent:

Solicitors for the Respondent: Director of Public Prosecutions

ORDER

The appeal be dismissed.

The convictions and the orders of the Magistrate be confirmed.

There be no order as to costs.

DECISION

This is an appeal from convictions in the ACT Magistrates Court on a charge of unlawfully inflicting grievous bodily harm and a further charge of assault occasioning actual bodily harm, offences contrary to ss.54 and 59 respectively of the Crimes Act 1900. In the words of the Magistrate, the prosecution case was "that the defendant and another person had launched an unprovoked attack on a group of young men who were minding their own business in Civic near the Private Bin Club in the early hours of the morning of 21 January 1990".

2. The person who suffered grievious bodily harm was Jeremy William Ransford Marples and the person who suffered actual bodily harm was Stephen Kenneth McElhinney. A charge involving an assault on a third person, Matthew Jeremy Montgomery, was dismissed, as Mr Montgomery gave evidence that it was not the appellant but the other man who carried out the assault and there was insufficient evidence of complicity on the part of the appellant. In the matters under consideration the only issue was whether the prosecution evidence was sufficient to identify the appellant as the person who assaulted Marples and McElhinney. Six witnesses who were present at the scene gave evidence identifying the appellant in court as that person.

3. The Magistrate observed that there was a failure by the police concerned to hold an identification parade or line up in accordance with Australian Federal Police instructions and the observations by members of the High Court in Alexander v The Queen [1981] HCA 17; (1980) 145 CLR 395 about the desirability of holding a line-up as the most reliable method of identification. An accused person is not obliged to take part in such a procedure and where, as in the present case, the person was never arrested, all the police can do is to invite the person to participate. There can be no failure on the part of the police if the person declines to do so. There was, however, no such invitation in the present case.

4. The Magistrate went on in his reasons to advert to the danger of in-court identification. He referred to "the dangers of dock identification" when the mere presence of the dock in the courtroom draws the eyes of the witness to the person in the dock and tends to associate that person with the person whom the witness is seeking to identify. The Magistrate expressed the view that as there was no dock in the courtroom then "the great danger of dock identification" did not exist. He added that "in-court identification" is something of which the court must be conscious and to which the court must give very careful and anxious consideration because of the dangers associated with that type of identification.

5. The Magistrate went on to mention other factors that led him to accept the evidence of the various witnesses on identification and it is not necessary to set those out at this stage.

6. The particular matters raised by way of appeal are as follows.
Prior knowledge of appellant

7. None of the witnesses knew the appellant before the night in question, and their absence of prior knowledge was a factor which tended to weaken the prosecution case. The Magistrate took this into account.
Opportunity to observe

8. The Magistrate considered that the lighting in the vicinity of the assault was reasonably good, that the witnesses had sufficiently substantial time, about three minutes, to keep the offender under observation and that they were sufficiently proximate, within a few metres to the events in question, to be in a position to observe what was going on. All this contributed to the acceptability of the evidence that the assailant was the appellant.
Conflicting testimony

9. The Magistrate considered that the internal conflict in the evidence of the various witnesses and the conflict on various aspects amongst them relating to particular matters such as the scar or mark on the assailant's face, the ring or rings he was said to be wearing on his fingers and an ear-ring he was said to be wearing in his ear did not affect the weight of the testimony of the witnesses so as to leave him in doubt as to the essential question of identity. It is submitted on behalf of the appellant that these conflicts should have left the Magistrate in doubt or alternatively should leave this Court in doubt.
Demeanour

10. The Magistrate was clearly impressed by the way in which the six witnesses gave their evidence and took into account their admissions that they had talked about the matter since it had happened. As I understand it, it is submitted on behalf of the appellant that the advantage that the Magistrate had in seeing and hearing the witnesses is outweighed by other factors.
Defence Evidence

11. The appellant and his mother gave evidence. The appellant raised the question of his prior good character, to which the Magistrate had regard. The appellant who had voluntarily reported to police in May 1990, some four months after the event, when apparently he had heard that he was under suspicion, gave evidence that he was not involved in any incident like that described by the prosecution witnesses. He was not able to say exactly where he was on the night in question, and called no alibi evidence. The Magistrate did not draw any adverse inference from the absence of alibi evidence, since it was consistent with the appellant's case that he had had his attention drawn to the night in question so long afterwards that it was reasonable that he could not give a precise account where he was at the time. However, he conceded that he did usually go to the Private Bin on Saturday nights and that it was possible that he was in the vicinity of where the incident occurred at the time it occurred. However, it was no part of the appellant's case that the witnesses had him confused with some other person who had been in the vicinity at the time of the assault. His mother gave evidence that she had never ironed for the appellant a shirt like that described by the prosecution witnesses and that he had hair of a different length from that described by the witnesses. The appellant gave similar evidence on these matters. The Magistrate took all these matters into account before deciding that he accepted the evidence of the prosecution witnesses on identification and therefore rejected that of the appellant. It was not necessary for him to reject the evidence of the mother on any crucial or substantial factor.
Errors of law

12. It was submitted that the Magistrate wrongly admitted the identification evidence. I reject the submission. There may be cases where the probative value of identification evidence is so low, that the evidence should be excluded from the consideration of the jury in a criminal trial. Such cases occur where the witness had little opportunity to observe the person at the time of the events and there is an in-court identification of the accused, which is the first identification by the witness since those events. However, that consideration is of little practical importance in a summary proceeding before a magistrate. If the evidence is excluded, it will only be excluded after it has been drawn to the magistrate's attention and after the magistrate has given it some conscious consideration. In a criminal trial evidence of this nature is not excluded because it is inadmissible but because of the risk of the inordinate prejudicial effect it might have in the eyes of a jury. Where the prosecution is before a magistrate, or before a judge alone, the evidence is properly admissible and it is for the magistrate or judge sitting as the tribunal of fact to give it the weight it deserves. In the present case it may be that the Magistrate over-estimated the magnitude of dangers associated with the identification of a person in a dock when compared to those of identification in a court without a dock (the dock being a structure no longer in use in the Australian Capital Territory). However, his remarks on dock identification were immediately followed by his express reference to "in-court identification" and the need for awareness of the dangers of such identification and for very careful and anxious consideration of it. In my view, the Magistrate correctly approached the question of so-called dock identification as a more dangerous form of in-court identification. The Magistrate gave himself adequate warning of the risks associated with identification in court by the six witnesses of the appellant as the assailant and it cannot, in my view, be said that his decision was vitiated by failure to take those risks into account. I should mention that it was submitted on the appeal that only five of the six witnesses identified the appellant as the person who carried out the acts constituting the two offences but, in my view, there is no substance in that submission.
Errors of fact

13. Counsel for the appellant has referred to numerous aspects of the evidence which it is submitted either display error on matters of fact on the part of the Magistrate or which should convince this Court on appeal that the conviction should not stand.

14. At the outset it must be said that although the appeal is a rehearing on the evidence before the Magistrate, this Court will defer to the Magistrate's primary findings of fact on matters which are affected by the advantage the Magistrate had of seeing and hearing the witnesses and forming his own conclusions as to their veracity and reliability. Although an appeal court is considered to be in as good a position as the court below in drawing inferences from the primary facts there found, the present case is one in which inferences are of little substantial significance. The case is a classic one of weighing up the evidence of eye-witnesses as to what they observed happening. The Magistrate had the further advantage of seeing and hearing the appellant himself. It was up to the Magistrate as the tribunal of fact to decide which witnesses he accepted and which he rejected or which parts of the evidence of a witness he accepted and which parts he rejected. This Court will interfere with his decision on matters of that nature only if they are inherently implausible or contrary to accepted facts or to other clearly established facts. The numerous inconsistencies between the witnesses were, in my view, as in that of the Magistrate, of a minor nature and the decision of the Magistrate that those inconsistencies did not deter him from accepting the witnesses on the matter in issue, namely the identification of the assailant, must be respected. Of course it is true, as it was submitted on behalf of the appellant, that a tribunal of fact must never confuse weight of evidence with the number of witnesses, but it is abundantly clear that the Magistrate did not fall into that error. Furthermore, it is, in the light of the submissions, worth observing that the force of the evidence of an impressive witness is not to be reduced because it is supported by the evidence of another impressive witness or any number of other impressive witnesses.

15. One further matter deserves attention and it is that a witness, Warren McIlwain, who like the others had never seen the appellant before the night in question, gave evidence that he saw the appellant two weeks later in the Belconnen Mall and then a couple of days after that at the Private Bin Club outside which the assault took place. He did not see him again until the court case on 18 April 1991, nearly a year later. Mr lcIlwain did not report these sightings to the police and his identification of the appellant in court may or may not have been affected by his memory of the person he saw after the attack, which person may or may not have been the appellant. That was something to which the Magistrate adverted in his judgment. In my view, it did not stand in the way of his ultimate conclusion on the issue of identification.

16. In my view, the Magistrate was quite entitled, after taking into account in particular the dangers of in-court identification, to conclude that it was the appellant who attacked the two men on the night in question and to find him guilty on the charges of which he was convicted. The appeal is dismissed and the convictions and the orders of the Magistrate are confirmed. I make no order as to the costs of the appeal.