PAWEL BENISZ v COMMISSIONER OF POLICE [2023] SASCA 56

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE KIMBER) SCCRM-22-155 Appellant: PAWEL BENISZ Counsel: MR W MICKAN - Solicitor: HARRY PATSOURIS (PATSOURIS & ASSOCIATES) Respondent: COMMISSIONER OF POLICE Counsel: MR W AMBROSE - Solicitor: CATHERINE NOLAN (CROWN SOLICITOR’S OFFICE) Hearing Date/s: 22/05/2023 File No/s: SCCRM-22-012313 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BENISZ v POLICE [2023] SASCA 56 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David) 1 June 2023 CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - IDENTIFICATION BY STRANGER CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - ADMISSIBILITY CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE Following a trial before a magistrate, the applicant was convicted of two offences, namely failing to stop for a red traffic light, contrary to rule 56(1)(a) of the Australian Road Rules (Count 1), and refusing to comply with all reasonable directions of a member of police in relation the requirement to submit to an alcotest, contrary to 47E(3) of the Road Traffic Act 1961 (SA) (Count 3). The prosecution case at trial in relation to Count 1 relied upon evidence from a witness to the effect that he recognised a man getting into the driver’s seat of a vehicle as a man he had seen earlier in a Services SA centre. The witness then saw that vehicle drive through a red light. There was no issue at trial that the man seen earlier in the SA Service centre was the applicant. However, the applicant challenged whether the witness’ evidence was sufficient to establish his identity as the driver of the vehicle when it failed to stop for the red light. The applicant appealed his convictions on Counts 1 and 3 to a single Judge of this Court. That appeal was dismissed. In his application for leave to appeal to this Court, the applicant confined his challenge to Count 1. In his single proposed ground of appeal, he contends that the evidence of the prosecution witness was not sufficient to sustain the Judge’s conclusions beyond reasonable doubt that the man he saw -- 1 of 14 -- in the Services SA centre was the same man he saw get into the car, and that this man was driving the vehicle when it failed to stop for a red light. Held, (per the court), refusing permission to appeal: 1. No error has been established in the Judge’s reasoning or conclusion, and his finding that the applicant was driving the car when it failed to stop for a red light was correct. 2. The proposed appeal is not reasonably arguable. Australian Road Rules (SA) s 56(1)(a); Magistrates Court Act 1991 (SA) s 42; Road Traffic Act 1961 (SA) s 47E(3); Summary Offences Act 1953 (SA) s 74AB(2)(b), referred to. Alexander v The Queen (1981) 145 CLR 395; Barry v Police (2009) 197 A Crim R 445; Benisz v Police [2022] SASC 120 [2022] SASC 120; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593, considered. -- 2 of 14 -- BENISZ v POLICE [2023] SASCA 56 Court of Appeal – Criminal: Lovell, Doyle and David JJA 1 THE COURT: Following a trial before a magistrate, the applicant was convicted of offences of failing to stop for a red traffic light (Count 1),1 and refusing to comply with all reasonable directions of a member of police in relation to the requirement to submit to an alcotest (Count 3).2 He was not found guilty of a third offence, namely providing a false answer in response to a question as to the identity of a driver.3 2 Speaking generally, Count 1 related to a vehicle which failed to stop at a red light on Smart Road, Modbury. At issue in the trial was whether the prosecution had proved that the applicant was the driver of the vehicle which failed to stop. The prosecution case in this respect relied upon evidence given by Mr Beaumont- Holmes. 3 Count 3 arose in the context of an attendance by Constable Cruikshank at the applicant’s home later the same day. During the course of Constable Cruikshank’s attendance, the applicant refused to submit to an alcotest, a request having been made pursuant to s 47E(1) of the Road Traffic Act. At trial the applicant contended that Constable Cruikshank’s evidence in support of Count 3 should be excluded. 4 The Magistrate having convicted him of Counts 1 and 3, the applicant appealed to a single Judge of this Court. He ultimately relied upon three grounds of appeal. The first two grounds challenged the adequacy of the Magistrate’s reasons in relation to Count 1, and the sufficiency of the evidence to sustain his conviction on that count. The third ground challenged the Magistrate’s refusal to exclude Constable Cruikshank’s evidence in support of Count 3. 5 The Judge dismissed the applicant’s appeal. In dismissing grounds 1 and 2, the Judge accepted that the Magistrate’s reasons were, in one respect, inadequate. However, having undertaken his own independent review of the evidence, the Judge was satisfied that the evidence established the applicant’s guilt of Count 1 beyond reasonable doubt. 6 The applicant now seeks leave to appeal to this Court. Whilst he initially sought to raise a ground that challenged the Judge’s decision to uphold his conviction on Count 3, this ground was abandoned. The applicant confined his proposed appeal to one ground, challenging only the conviction on Count 1. 1 Contrary to rule 56(1)(a) of the Australian Road Rules. 2 Contrary to s 47E(3) of the Road Traffic Act 1961 (SA). 3 Contrary to s 74AB(2)(b) of the Summary Offences Act 1953 (SA). -- 3 of 14 -- [2023] SASCA 56 The Court 2 7 The applicant’s sole ground of appeal is that the Judge erred in that his reasons and intermediate factual findings do not support a conclusion beyond reasonable doubt: • that the man seen by Mr Beaumont-Holmes in the Service SA centre was the same man he saw outside and who then entered the driver’s seat of the vehicle; and • that the man seen by Mr Beaumont-Holmes enter the driver’s seat of the vehicle was driving when the vehicle failed to stop for a red light. 8 In essence, the applicant contends that the evidence of Mr Beaumont-Holmes was not sufficient to sustain the Judge’s findings in relation to these two issues. 9 The application for leave to appeal was referred for hearing as on appeal. The evidence of Mr Beaumont-Holmes 10 Mr Beaumont-Holmes’ evidence was that at about 2.00pm on 15 March 2019, he was at the Service SA centre in Modbury. He was there for “some sort of renewal of licences” or something like that. He was sitting two or three rows from the front of the waiting area. 11 Mr Beaumont-Holmes recalled seeing a man, two or three rows in front of him, who “seemed groggy and couldn’t hold himself up properly on his chair”. He was slumped over and looked like he was asleep. Mr Beaumont-Holmes thought that the man was intoxicated. 12 Mr Beaumont-Holmes recalled a number being called, but that no-one approached the service counter. Another person, sitting near the man, pointed out a ticket on the floor. The man picked up the ticket and approached the counter. 13 When asked how long he was observing the man for in the Services SA centre, Mr Beaumont-Holmes said “I can’t remember, but it would’ve been at least a few minutes” while waiting to be served. 14 After finishing his business at the Service SA centre, Mr Beaumont-Holmes left the building and crossed the road, heading towards Tea Tree Plaza where his car was parked. As he did so, he saw the man he had seen in the Service SA centre crossing the road at the same time. When at the driver’s-side door of his car, Mr Beaumont-Holmes heard “some keys or something hitting the ground”. He turned around and saw the man getting into the car that was parked next to his. It was parked with its passenger door next to the driver’s door of Mr Beaumont- Holmes’ car. 15 When asked how he formed the opinion that this man was the man he had seen in Service SA, Mr Beaumont-Holmes said “I just recognised him, he was sitting in there a minute before.” When pressed in cross-examination as to the time -- 4 of 14 -- [2023] SASCA 56 The Court 3 that had passed between seeing the man in Service SA and in the carpark, he said that he was not able to say. However, he said he was certain that it was the same man, and that he did not think it could have been someone else who looked like the man he had seen. He added that it was the man he had seen “only minutes earlier”. 16 Mr Beaumont-Holmes said that he saw the man get into the driver’s seat of his car. He saw him sitting on the edge of the driver’s seat, but with his feet still on the pavement. He did not see anyone else in the car, and did not recall seeing anyone else near the vehicle at the time. 17 Mr Beaumont-Holmes reversed his car and then drove out of the carpark. As he did so, he saw the man’s car pull out behind his car, and driving directly behind him. He saw the other car when he was only about 40 metres from where he had parked, explaining that “the vehicle was already right behind us at that stage so yeah it was that person’s pulled out seconds after” he had. He observed that the car was swerving a bit. When he made this observation, the other car was about 15 to 20 metres behind his, without any other vehicle or anything else to obstruct his view. 18 Mr Beaumont-Holmes said that as he exited the carpark and turned left onto Reservoir Road, he thought that the man was going to drive around his car, but then “at the last minute he tucked back in behind” his car. They drove along Reservoir Road, and as they came to a roundabout and turned left onto Smart Road, the man’s car pulled out into the right hand lane and passed his car. He said that it seemed that the driver of the other car was in a hurry. 19 Mr Beaumont-Holmes did not suggest that he saw who was driving the other car. When asked whether he was able to see the driver of that car whilst they were on Reservoir Road, he said that he could not. 20 As they were approaching some traffic lights at a pedestrian crossing, he saw the lights turn red. He saw an elderly woman about to cross the road, and fearing that she might be hit he sounded his horn. The other car he had been observing drove straight through the red light, but missed the woman. Other evidence 21 The prosecution evidence at trial included a DVD containing CCTV footage from the Service SA centre at the relevant time. Mr Beaumont-Holmes was shown this footage and pointed out the man he observed in the waiting area, and his own location a few rows away. 22 Another file on the same DVD contained footage of the same man leaving the Service SA centre, and crossing the road, only a few seconds ahead of Mr Beaumont-Holmes. However, as there was a dispute as to whether this file was tendered, or at least as to whether the applicant had notice of its tender, and it was -- 5 of 14 -- [2023] SASCA 56 The Court 4 not explicitly relied upon before the Magistrate or the Judge, we do not propose to make use of it on this appeal. 23 The prosecution tendered various documents by way of formal proof of matters, including an affidavit from an employee working at the Service SA centre on the day in question which established that the applicant was served at 2.07pm. 24 The prosecution evidence included oral evidence from Constable Cruikshank, who attended the applicant’s home about an hour after the vehicle had driven through the red light. As there is no longer any challenge to Count 3, it is not necessary to summarise that evidence. However, it is relevant to note that when Constable Cruikshank asked the applicant who had been driving his vehicle at about 2.15pm, when it went through the red light on Smart Road, his response was that it may have been his son. This conversation was recorded through Constable Cruikshank’s body camera, with the footage obtained from that camera tendered at trial. The applicant’s son was not present at the applicant’s home, and the applicant was not sure where he was. Constable Cruikshank formed the opinion that the applicant was intoxicated. 25 No evidence was called in the defence case. The issues 26 In relation to Count 1, there was no dispute at trial that the prosecution witness, Mr Beaumont-Holmes, saw a vehicle fail to stop at a red light on Smart Road, Modbury. The only issue was whether the applicant was driving. 27 On this issue of the identity of the driver, there was no dispute that the applicant was at the Service SA centre at the time Mr Beaumont-Holmes was there, and in particular that he was served at about 2.07pm. There also does not seem to have been any dispute that the man pointed to by Mr Beaumont-Holmes in the CCTV footage from the Service SA centre was the applicant. 28 The issues at trial were confined to whether the man Mr Beaumont-Holmes saw in the carpark was the same man he saw in the Service SA centre, and whether the same man was driving the car when it drove through a red light. The Magistrate’s reasons 29 The Magistrate’s reasons in relation to Count 1 were brief. His Honour said that he was persuaded by the evidence of Mr Beaumont-Holmes that the applicant was the driver of the vehicle. He said that he considered Mr Beaumont-Holmes to be a reliable witness and was satisfied that the man he saw getting into a car was the same man he saw in the Service SA centre. 30 Indicating that he was aware of some of the difficulties potentially associated with the reliability of identification evidence, his Honour added: -- 6 of 14 -- [2023] SASCA 56 The Court 5 According to defence Mr Beaumont-Holmes evidence is ‘dangerous and seductive’ according to the principles of identification evidence given by witnesses before a jury. Defence refers to the principles stated in Alexander v The Queen and Festa v The Queen. I remind myself of the principles stated in those cases and of the inherent unreliability which comes from factors such as the time gap between seeing the offender and subsequent identification, the ‘displacement effect’ where a witness substitutes the memory of the person they saw commit the crime and the photograph shown to them, whether the opportunity for observation was ‘fleeting’ and the presence of suggestibility. Mr Beaumont-Holmes’ observations do not suffer any temporal disadvantage or displacement effect and the opportunity to make observations was not in any way ‘fleeting’. 31 The Magistrate concluded that he was satisfied that the applicant was the driver of the vehicle and that he failed to observe the lights at the pedestrian crossing and drove through the crossing against a red light. He therefore found Count 1 proved beyond reasonable doubt. The Judge’s reasons 32 On appeal before the Judge, the applicant complained of both the adequacy of the Magistrate’s reasons, and the sufficiency of the evidence to support the findings he made. 33 The Judge held that the applicant’s complaint as to the adequacy of the Magistrate’s reasons was made out in one respect.4 Even accepting that the man observed by Mr Beaumont-Holmes in the Service SA centre was the applicant, and that the man he observed getting into the car in the carpark was the same man, the Magistrate did not explain how he reasoned from this conclusion to his finding that the applicant was the driver at the time the vehicle drove through the red light. Given that the man did not remain continuously within Mr Beaumont-Holmes’ observation between the time he saw him get into the vehicle and when the vehicle went through the red light, and the applicant’s statement that the driver was his son, the Magistrate erred in not making any reference to this issue. 34 However, referring to the reasons of Kourakis J (as he then was) in Barry v Police,5 the Judge explained that even though a failure to give adequate reasons was an error of law, it did not necessarily result in an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) being allowed. It being an appeal by way of rehearing, the Judge was required to undertake his own independent review of the evidence. There will be some cases where it will not be possible or appropriate for the appeal court to make findings on the written record of the evidence, with the result that the appeal should be allowed. If, however, notwithstanding the error of law in failing to give adequate reasons, the appeal court is able, after its own review of the evidence, to be satisfied that the decision below was correct, then the appeal should be dismissed. 4 Benisz v Police [2022] SASC 120 at [25]. 5 Barry v Police (2009) 197 A Crim R 445 at [9]-[10], [30]; Benisz v Police [2022] SASC 120 at [28]- [29]. -- 7 of 14 -- [2023] SASCA 56 The Court 6 35 In undertaking this appellate task of reviewing the evidence, the Judge commenced by making some general observations as to the reliability and credibility of Mr Beaumont-Holmes’ evidence:6 The Magistrate found Mr Beaumont-Holmes was a reliable witness. I proceed on the basis that assessment was made on the content of his evidence and his demeanour. I have read his evidence. It reads coherently. There is nothing within his evidence that appears to detract from its reliability. I also proceed on the basis that Mr Beaumont-Holmes was a credible witness. Although the Magistrate made no express finding about credibility, it was not suggested at trial, nor on appeal, he was not credible. Further, there is nothing in my review of the evidence of Mr Beaumont-Holmes which might suggest an absence of credibility. 36 Noting that there was no real dispute about this issue, the Judge said he was satisfied beyond reasonable doubt that the man Mr Beaumont-Holmes saw in the Service SA centre was the applicant.7 37 The Judge then explained why he was satisfied beyond reasonable doubt that the man Mr Beaumont-Holmes saw in the carpark was the man he had seen in the Service SA centre:8 The next issue is whether the appellant was the same man seen by Mr Beaumont-Holmes outside the office. Mr Beaumont-Holmes did not know the appellant, increasing the risk of mistake. Nonetheless, as I have said, Mr Beaumont-Holmes had reason to pay attention to him in the office [because he was visibly intoxicated] and said he had been observing him for ‘at least a few minutes’. Further, Mr Beaumont-Holmes’ evidence was consistent with the break in observation inside and then outside being brief. As for what happened outside, there is no suggestion Mr Beaumont-Holmes might have lost sight of the man between his first sighting of him outside and reaching the respective vehicles. The evidence of Mr Beaumont-Holmes is evidence requiring careful evaluation. He purported to recognise outside of the office a man previously unknown to him. His observation in the office may have been over as little as a few minutes and it is not clear he was observing him continuously in that place. There is a real risk of an honest witness like Mr Beaumont-Holmes giving evidence in a convincing way but nonetheless being mistaken, despite being unshaken in cross-examination. There is a danger of assumption and displacement. Nonetheless, like the Magistrate, I am satisfied beyond a reasonable doubt that the two men were the same. Only a short period of time had passed between the observations inside and outside the office and while inside the office, Mr Beaumont- Holmes had reason to pay attention to the man he saw in the office as he was intoxicated. 38 The next issue was whether the man Mr Beaumont-Holmes saw in the carpark was the man driving the vehicle that drove through the red light. The Judge commenced his analysis of this issue by noting that Mr Beaumont-Holmes’ evidence was that he had seen the man enter the driver’s seat of the vehicle; and that in cross-examination he had rejected the suggestion that the man might have got into some other part of the vehicle. He said that he recalled seeing the man sit 6 Benisz v Police [2022] SASC 120 at [30]. 7 Benisz v Police [2022] SASC 120 at [31]. 8 Benisz v Police [2022] SASC 120 at [32]-[33]. -- 8 of 14 -- [2023] SASCA 56 The Court 7 on the driver’s seat, with his feet still on the pavement outside of the car. The Judge accepted this evidence beyond reasonable doubt.9 39 The Judge explained that from that point, the issue became whether the evidence excluded any reasonable possibility that the applicant moved from his position in the driver’s seat, allowing the vehicle to have been driven by someone else. The Judge said that this possibility fell to be evaluated in light of the following matters: the failure of Mr Beaumont-Holmes to see anyone else, the time which passed before the vehicle moved away, where another person who became the driver might have been, and the exculpatory statement of the applicant to the effect that his son was the driver.10 40 The Judge only attached limited significance to the failure of Mr Beaumont- Holmes to see anyone else in, or near, the vehicle. The Judge considered that Mr Beaumont-Holmes’ attention appeared to have been on the applicant, and that he had no reason to be looking for anyone else in or near the vehicle.11 41 The Judge considered it more significant that, on the evidence of Mr Beaumont-Holmes, there was limited opportunity for anyone else to have entered the driver’s seat and commenced driving:12 Significantly in my view, the evidence of Mr Beaumont-Holmes permits of very limited opportunity for another person to have entered the driver’s seat and put the vehicle in motion. Mr Beaumont-Holmes said the vehicle ‘pulled out behind us’, was ‘pulling out immediately after us’ and pulled out of its park ‘seconds after we have’. Further, if there was another person available to drive the car, there is no obvious reason why that person would not have been in the driver’s seat when the appellant arrived at the vehicle. On the evidence, in particular how soon after the appellant’s arrival at the car it then left, any other potential driver must have been waiting for the appellant and ready to leave. That being so, one would expect them to have been in the driver’s seat, particularly given how quickly the vehicle left. 42 The Judge addressed the exculpatory statements made by the applicant when spoken to by Constable Cruikshank:13 That they were not statements on oath did not mean they had no weight. The respondent must exclude that the statements might have been honest and reliable. As the statements were recorded and the recording tendered at trial, I am in as good a position as the Magistrate to evaluate the statements. Having viewed the recording, I have drawn nothing from the demeanour of the appellant nor from the way he spoke. 9 Benisz v Police [2022] SASC 120 at [34]. 10 Benisz v Police [2022] SASC 120 at [35]. 11 Benisz v Police [2022] SASC 120 at [35]. 12 Benisz v Police [2022] SASC 120 at [35]. 13 Benisz v Police [2022] SASC 120 at [36]. -- 9 of 14 -- [2023] SASCA 56 The Court 8 43 Drawing these threads together, the Judge found beyond reasonable doubt that the man Mr Beaumont-Holmes saw enter the driver’s seat was the man driving the vehicle went it ran a red light:14 Having accepted Mr Beaumont-Holmes as both an honest and reliable witness and having considered the whole of the evidence, including the statements of the appellant to Constable Cruikshank about his son having driven, I am satisfied beyond a reasonable doubt the appellant was driving the vehicle at the time of Count 1. While Mr Beaumont-Holmes did not see the appellant put the vehicle in motion, nor later see the driver and say it was the same man he had seen earlier, given how quickly the vehicle left as described by Mr Beaumont-Holmes, I am satisfied beyond a reasonable doubt that no other person entered the driver’s seat before the vehicle drove away. From that point, there was no opportunity for another person to become the driver before the driving the subject of Count 1. I am satisfied beyond a reasonable doubt that the exculpatory statements to Constable Cruikshank were false. 44 The Judge found that Count 1 had been made out, and dismissed the appeal against the applicant’s conviction for that Count. 45 The Judge concluded the relevant part of his reasons by observing “as a matter of completeness” that it was relevant that the driving observed by Mr Beaumont-Holmes was consistent with the driver being intoxicated. Mr Beaumont-Holmes described the vehicle as “swerving” as it left the carpark, and his evidence that the vehicle was driven through a red light was consistent with its driver not paying attention, being slow to react, or being prepared to take risks, because he was intoxicated. When considered in combination with Mr Beaumont- Holmes’ evidence (supported by the CCTV footage) that the man in the Service SA centre was behaving in an intoxicated manner, and the evidence of Constable Cruikshank that the applicant was intoxicated when he spoke to him about an hour later, this was further circumstantial evidence in support of the prosecution case that the applicant was the driver at the time of Count 1. However, the Judge said that because this evidence of intoxicated driving was not a matter that had been relied upon by the prosecution or Magistrate, he had not taken it into account. The appeal to this Court 46 As mentioned at the outset of these reasons, the applicant’s proposed ground of appeal challenges two findings made by the Judge. In particular, he contends that the Judge erred in finding beyond reasonable doubt: • that the man seen by Mr Beaumont-Holmes in the Service SA centre was the same man he saw enter the driver’s seat of a vehicle (the first issue); and • that the man seen by Mr Beaumont-Holmes enter the driver’s seat of the vehicle was driving that vehicle when it failed to stop for a red light (the second issue). 14 Benisz v Police [2022] SASC 120 at [37]. -- 10 of 14 -- [2023] SASCA 56 The Court 9 47 It may be accepted that it was necessary for both of these issues to be proved beyond reasonable doubt. However, for the reasons that follow, the applicant has not demonstrated any error in the findings made by the Judge on these two issues. The first issue 48 In challenging the Judge’s finding on the first issue, the applicant relies both upon the general dangers associated with identification evidence, as well as various features of the evidence given by Mr Beaumont-Holmes on this first issue. 49 As to the former, the dangers of identification evidence are well known. As Mason J said in Alexander v The Queen:15 Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed. 50 Similar references to the dangers inherent in identification evidence, and its potentially seductive nature, appear in the reasons of the High Court in both Domican v The Queen16 and Festa v The Queen.17 51 Whilst some of the dangers mentioned in these cases were relevant here, it is significant that the evidence given by Mr Beaumont-Holmes was not the typical situation where a witness, some time after their initial observations of a person, identifies the defendant (for example, in the dock, in an identification parade or from an array of photographs) as the person they saw on that earlier occasion. 52 Here, Mr Beaumont-Holmes did not purport to directly identify the applicant. He merely gave evidence of observations he made of an intoxicated man in a Service SA centre and of a man, whom he recognised as the same man, getting into a car a short while later. Whilst this was circumstantial evidence relevant to the proof of the identity of the driver who ran the red light, it was not identification evidence in the usual sense. 53 Assessment of the reliability and weight of Mr Beaumont-Holmes’ evidence required consideration of some of the dangers associated with identification evidence (such as the vagaries of human perception, the risk of assumptions, and limitations associated with the opportunity for the relevant observations to be made). However, it did not give rise to other dangers that often arise with identification evidence (such as the risk of suggestion from the mode of identification, the risk of substitution or displacement from other images seen by 15 Alexander v The Queen (1981) 145 CLR 395 at 426. 16 Domican v The Queen (1992) 173 CLR 555 at 561. 17 Festa v The Queen (2001) 208 CLR 593 at [64]. -- 11 of 14 -- [2023] SASCA 56 The Court 10 the witness,18 and the lapse of time before the identification is made and fallibility of human recollection). 54 In any event, there is no reason to think that the Judge, in undertaking his independent review of the evidence in relation to the first issue, overlooked the inherent dangers that may be associated with evidence of the type adduced from Mr Beaumont-Holmes. The Judge made express reference to these dangers (at [33]). 55 As to the alleged frailty of Mr Beaumont-Holmes’ evidence on this first issue, the applicant emphasises the following features of his evidence: • the applicant was not known to Mr Beaumont-Holmes; • Mr Beaumont-Holmes only observed the applicant for a limited period of time in the Service SA centre, and did not give any evidence of his physical attributes (such as his clothing or facial features). His evidence was confined to observing that he was slumped over in his chair as though asleep, and that he appeared to be intoxicated; • Mr Beaumont-Holmes’ evidence was confined to a bald assertion of the conclusion that the man he saw getting into the vehicle was the man he had seen in the Service SA centre (“I just recognised him, he was sitting there a minute before”). He did not explain what it was about this man’s appearance that led him to so conclude; • there was a break of unknown duration between the observations Mr Beaumont-Holmes made in the Service SA centre and the carpark; and • Mr Beaumont-Holmes’ evidence as to the latter was not clear as to the duration of the observations he made in the carpark (although they seem to have been fleeting), and the extent to which he had a clear line of sight. 56 We acknowledge that these features of Mr Beaumont-Holmes’ evidence were all relevant matters to be weighed in forming a conclusion as to the first issue. But we do not think that they are matters that the Judge overlooked, or that otherwise provide a basis for impugning his conclusion. 57 The Judge referred to the fact that Mr Beaumont-Holmes did not know the applicant, noting that this increased the risk of mistake (at [32]). On the other hand, the Judge made the valid point that the applicant’s unusual behaviour in the Service SA centre meant that Mr Beaumont-Holmes had a reason to pay attention to him (at [32]-[33]). Further, Mr Beaumont-Holmes’ observations of the applicant in the Service SA centre were more than fleeting; he observed the applicant for “at least a few minutes” (at [32]). While Mr Beaumont-Holmes said 18 There is no evidence that Mr Beaumont-Holmes was shown the CCTV footage of the Service SA centre until he had given his relevant evidence in chief. -- 12 of 14 -- [2023] SASCA 56 The Court 11 that he was seated a few rows behind the applicant, the CCTV footage makes it plain that he was seated diagonally behind the applicant with a clear view across to the applicant. 58 It is true that Mr Beaumont-Holmes’ evidence to the effect that he recognised the man in the carpark as the man he had seen in the Service SA centre was in the form of a conclusion or assertion. He did not give any detail as to what it was about the man he saw in the carpark that enabled him to drawn this conclusion. Whilst Mr Beaumont-Holmes’ evidence may have carried greater weight had he described the features of the man or his clothing that enabled him to draw this conclusion, we do not think his failure to do so significantly reduced the weight of his evidence. The reliability of his evidence was not impugned by any cross- examination as to the process by which he formed the conclusion he did. 59 We do not attach much weight to the complaint of lack of specificity as to the gap in timing between Mr Beaumont-Holmes’ observations of the man in the Service SA centre and the man getting into the vehicle. At one point Mr Beaumont-Holmes said that he could not say how much time had passed. However, read in the context of his evidence as a whole, it is clear that he meant that he could not be precise. He referred elsewhere in his evidence to having seen the man “a minute before”, and “only minutes earlier”. It is clear from the evidence as a whole that there was only a short period of time – perhaps a few minutes at most – between the observations Mr Beaumont-Holmes made. The Judge correctly observed that there was only a brief or short period between the observations (at [32]-[33]). 60 As for the observations made by Mr Beaumont-Holmes in the carpark, while he did not specify the length of time for which he observed the man, the general effect of his evidence was clear. His observations were relatively brief, although probably more than fleeting. As for his line of sight, it is apparent from Mr Beaumont-Holmes’ evidence that he was at the driver’s door of his car, and that the man he observed entered the driver’s door of the car parked next to him (with its passenger door adjacent to the driver’s door of his car). While the man’s car was between them, there was no suggestion of anything else impeding Mr Beaumont-Holmes’ line of sight. 61 In our view, the applicant has not identified any basis for impugning the Judge’s approach or conclusion in relation to the first issue. In any event, having undertaken our own independent review of the evidence, as required on an appeal by way of rehearing, we are satisfied that the Judge’s conclusion was correct. Mr Beaumont-Holmes’ evidence established beyond reasonable doubt that the man he saw in the carpark was the same man he had seen a few minutes earlier in the Service SA centre. As there was, and is, no dispute that the man Mr Beaumont- Holmes observed in the Service SA centre was the applicant, it follows that the evidence established beyond a reasonable doubt that the man he saw in the carpark was the applicant. -- 13 of 14 -- [2023] SASCA 56 The Court 12 The second issue 62 The applicant’s challenge to the Judge’s finding on the second issue was linked to his challenge to the finding on the first issue. 63 He argued that the Judge’s finding in relation to the second issue was dependent upon his finding in relation to the first issue; that without that finding on the first issue, there was no evidential basis upon which to find that the man driving at the time the vehicle went through the red light was the man who had been in the Service SA centre. Whilst this may be accepted, it does not assist the applicant in circumstances where we have rejected his challenge to the Judge’s finding in relation to the first issue. 64 The applicant argued that the quality of the identification evidence was not such that it constituted a proper basis upon which to reject the applicant’s exculpatory statements. However, once again, this argument does not assist the applicant in circumstances where we have held that the quality of that evidence was sufficient to sustain the finding in relation to the first issue. 65 To the extent the applicant seeks to make an independent challenge to the Judge’s finding on the second issue, we do not think there is any merit in that challenge. We have set out the Judge’s reasoning in relation to this issue. We agree with his Honour’s reasons and conclusion. Conclusion 66 In our view, the applicant’s proposed appeal is not reasonably arguable. We refuse permission to appeal. -- 14 of 14 --