James Berrell v Constable Fg Gill [1993] ACTSC 33; (1993) 113 FLR 333 (16 April 1993)

SUPREME COURT OF THE ACT

JAMES BERRELL v CONSTABLE F.G. GILL
No. SCA 125-9 of 1992
Number of pages - 10
Criminal Law
[1993] ACTSC 33; (1993) 113 FLR 333

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Criminal Law - Evidence - Identification evidence - Need for warning - Failure to consider same - Decision unsafe and unsatisfactory.

Criminal Law - Evidence - Failure to call owner of vehicle - Jones v Dunkel.

Mifsud v Campbell (1991) 21 NSWLR 725

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

R v Apostolides (1984) 58 ALJR 371

Grbic v Pitkethley [1992] FCA 451; (1992) 110 ALR 577

HEARING

CANBERRA, 30 March 1993
16:4:1993

Counsel for the Appellant: Self

Counsel for the Respondent: Mr G Plath

Instructing solicitors: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:
1. The appeal be upheld.

2. The convictions and penalties be set aside.
3. The informations be dismissed.

DECISION

HIGGINS J On 7 September 1992 the appellant appeared before Special Magistrate Bannister to answer six charges.

2. Those charges arose out of two incidents. The first, in point of time, occurred on 26 February 1992. Constable Francis Gerald Gill, the informant and respondent to this appeal deposed, and his Worship accepted, that at about "4.59pm" he was travelling east on Heysen Street, Weston. He was off duty and riding his motor cycle. About 50 metres ahead was a large yellow truck.

3. Approaching the intersection of Heysen and Devonport Streets, the truck crossed onto the incorrect side of Heysen Street, crossing double unbroken lines, over a distance of 40 metres. It then completed a right turn and crossed back to the correct side of the road in Devonport Street.

4. The respondent followed. The truck travelled east along Devonport Street and then onto Launceston Street. Near Melrose Drive, the road widened into two lanes. The respondent pulled alongside the truck and looked at the driver. He also made a mental note of the registration number of the truck, YUS 006. He then stopped at a carpark and made a written note of the registration number, type of vehicle and the time, date and place of the offences he had observed.

5. On Friday, 28 February 1992, about 12.25pm, the respondent was on mobile patrol in the Dickson area, travelling south along Badham Street. He saw the same truck travelling north. He caused it to stop in Davenport Street. He then said,

"I approached the vehicle, an International truck, and spoke to
the driver, the male person I recognised as being the same person
driving the truck two days earlier, whom I now know as James
Thomas Berrell."

6. The appellant was asked about the current registration of the vehicle. He produced evidence that he had just taken the vehicle through a registration check. It had failed. He said he was going to the "shopfront" at Civic to obtain a permit to drive it. The respondent was advised by radio that the registration had expired on 10 January 1992. The appellant agreed that he was aware of that.

7. He was then asked,

Respondent: "Apart from this occasion, have you
driven a vehicle since 24.1.92?"
Appellant: Yes.
Respondent: Was one of those occasions on
Wednesday this week?
Appellant: Probably, I don't know what time."
Respondent: At 4.59 pm on Wednesday, 26 February,
you were observed to make an incorrect (sic)
right turn in Heysen Street, Weston and also
to cross double unbroken lines in the same
street. It was also obvious the vehicle was
unregistered at the time. Do you have
anything to say about those matters?
Appellant: No, I wasn't driving the truck then."

8. The appellant maintained his denial when the allegations were repeated and put to him separately.

9. The respondent at no stage told the appellant that he had seen him driving or recognised him as the driver of the truck on 26 February 1992.

10. Before the learned Special Magistrate, the appellant represented himself. He did suggest to the respondent that he had not admitted driving the truck during 1992. Indeed, if the respondent is correctly recorded, the appellant's suggestion was correct.

11. The respondent did say, in answer to questions from his Worship, that the appellant had told him that the truck was owned at all relevant times by a "Mr James Tallent".

12. The respondent did not indicate the length of time for which he had the driver of the truck under observation on 26 February 1992. However, it was clearly a short time, although probably not "fleeting". He could not recall with any certainty how the driver was dressed. The circumstances of his recognition of the appellant were described by the respondent in the following terms,

"I recognised the vehicle as being the one involved in the
incident two days previous (sic) and wanted to speak to whoever
was driving it to try and ascertain who was driving it the two
days before, and when the defendant got out of the vehicle I
recognised him as being the same man driving (the) vehicle two
days before."

13. He rejected a suggestion that he could have been mistaken.

14. The appellant gave evidence on oath. He said he told the respondent that he was, on 28 February 1992, taking the truck to be registered on behalf of a friend of his (presumably that was Mr Tallent).

15. He also said, although the respondent had given no evidence of it,

"He (the respondent) then asked me what the owner of the truck
looked like and I informed him that he was a bearded chap and he
then said to me that, "Well, it couldn't have been him driving
the truck" ..."

16. The appellant denied having driven the vehicle on 26 February 1992 in the following terms,

"I certainly wasn't driving the vehicle that year - before that
day. I informed the constable that I'd been driving the vehicle
in the previous year. On occasions the vehicle had been lent to
me or I had been employed by Mr Tallent to drive the vehicle.
But during - as I questioned the constable I do not recall saying
that I drove the vehicle."

17. It was the appellant's case that the respondent had mistakenly identified him as the driver of the truck on 26 February 1992.

18. In view of the papers obtained by the appellant from the Motor Registry showing he was in the process of obtaining a permit, the charges relating to 28 February 1992 were dismissed. In relation to the other four matters, his Worship's remarks were extremely brief.

19. He said,

"However, on the other charges (that is, those relating to 26
February 1992) I have no doubt whatsoever, Mr Berrell, that you
were driving the vehicle; none whatsoever. The evidence is
plain and I am bound to comment, as I am permitted to do, on your
failure to call any evidence to exculpate you from this
situation. Indeed, Mr Tallent provided you with a defence to the
two last charges. It would have been a simple matter to require
him to be here to give you a defence to the other four ..."

20. The appellant was then convicted and fined a total of $1,010.00.

21. Of course, it is obvious that the learned Special Magistrate accepted the respondent's evidence and rejected that of the appellant. It is not, however, clear why he did so.

22. Having regard to the obligation on a judicial officer to give reasons for his or her decision, reasons which extend to recording the critical findings of fact and the evidence upon which those findings were based (see Mifsud v Campbell (1991) 21 NSWLR 725), it may be inferred that his Worship considered that the appellant's failure to call corroborative evidence was his reason for rejecting the appellant's evidence.

23. Of course, a failure to call an available corroborative witness can justify an inference that such witness would not support the case for the party by whom that witness should have been called (see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). However, that conclusion is not mandatory and requires a careful evaluation of the circumstances in which that reasoning process is to be applied. It must also be considered in the context of the onus and standard of proof in criminal cases.

24. In the present case, the appellant was unrepresented. It is clear from his answers to questions from the learned Special Magistrate concerning the fact he had not called Mr Tallent that he had no appreciation of the consequences of not having asked Mr Tallent to attend. He did not, it seems, understand that it would help his case to do so.

25. It was common ground that the appellant had told the respondent, on 28 February 1992, that Mr Tallent was the owner of the truck. The respondent did not seek to interview Mr Tallent, so far as can be ascertained. It was open to the prosecution to have done so and called his evidence. It could validly be said, in my view, that, as the prosecution was aware of the nature of the defence from the outset, it had just as much an obligation as, in theory, did the appellant to call Mr Tallent as a witness. It certainly had more access to experienced legal advice.

26. If Mr Tallent had proved, in the opinion of the prosecution, to be unreliable, he need not be called (see R v Apostolides (1984) 58 ALJR 371). Fairness would have required the Prosecutor to have made the witness available to be called by the appellant.

27. However, if, as appears to be the case here, the prosecution did not even bother to interview the owner, it must raise a serious doubt as to the weight of the prosecution case. His Worship did not advert to that aspect of the matter.

28. Further, this was an identification case. Police officers have no greater or lesser value as identification witnesses than anyone else.

29. As was pointed out by the Full Court of the Federal Court in Grbic v Pitkethley [1992] FCA 451; (1992) 110 ALR 577, identification evidence has to be properly adduced and tested. In this case, there was no evidence of any contemporaneous record of a description of the appellant. The subsequent description and recognition evidence followed the encounter between the appellant and respondent on 28 February 1992.

30. Clearly, the respondent would be predisposed to think that any person, resembling the driver he had seen on 26 February 1992, driving the same truck, would be the same person. It follows that, by itself, it was always unsafe and unsatisfactory to rely on the disputed identification of the appellant as the offending driver as sufficient for conviction. In fact, his Worship relied on an apparently insufficient reason for rejecting the evidence of the appellant.

31. It was, in my opinion, doubly necessary in this case for corroborative evidence to be obtained, supporting the inference that it was, indeed, the appellant driving the vehicle on 26 February 1992. Before accepting the uncorroborated evidence of recognition, the learned Special Magistrate was obliged to remind himself of the dangers of convicting on the uncorroborated evidence of identification of a stranger.

32. That obligation is not, of course, any the less (or greater) when the witness is a police officer.

33. His Worship demonstrated in his reasons no appreciation of this requirement. Indeed, his comment concerning the appellant's failure to call Mr Tallent suggest that he regarded the appellant as having some onus to disprove the prosecution case. If that was his view, he was, of course, in error.

34. In the circumstances, in my view, the findings of guilt were unsafe and unsatisfactory. Indeed, they were, in my view, a denial of natural justice to the appellant. If, as his Worship found, the appellant should have called Mr Tallent, his Worship should have offered the appellant, who was unrepresented, an adjournment to enable him to call Mr Tallent. His Worship failed to do so. Indeed, it does not seem to have occurred to him that he had any obligation to do so.

35. In the circumstances, it follows that the decision to find the appellant guilty of the offences with which he was charged was unsafe and unsatisfactory. It was also contrary to natural justice. The appeal is upheld, the convictions and penalties are set aside.

36. Given that the prosecution did not choose to corroborate, or attempt to corroborate, the respondent's evidence it is not appropriate to send the matters back for rehearing. On the prosecution evidence there is necessarily a reasonable doubt. The informations are dismissed accordingly.

37. I will hear the parties as to costs.