Mark Anthony Malogorski v Harris [2012] NTSC 20


PARTIES: Mark Anthony Malogorski




Darren James Harris






FILE NO: 21116611












EVIDENCE identification - identification from photographs admissibility


APPEAL appeal against finding of Magistrate Magistrate erred in dismissing charge appeal dismissed





Appellant: D Morters

Respondent: E Armitage



Appellant: Office of the Director of Public Proscutions

Respondent: North Australian Aboriginal Justice Agency


Judgment category classification: B

Judgment ID Number: Ril1205

Number of pages: 7







Malogorski v Harris [2012] NTSC 20

No. 21116611





Mark Anthony Malogorski





Darren James Harris







(Delivered 27 March 2012)


[1]       On 25 May 2011 the victim in these proceedings, Ms N, was assaulted by a male person. The respondent was charged with the offence and subsequently pleaded not guilty to a charge of aggravated unlawful assault. The matter came on for trial in the Court of Summary Jurisdiction and, on 8 December 2011, the respondent was found not guilty. The Crown appeals against the finding.

[2]       At the hearing there was no dispute that the victim had been assaulted in the manner she described in her evidence. The only issue was whether the prosecution had established beyond reasonable doubt that the respondent was the assailant.

[3]       The offending occurred in the early hours of the morning of 25 May 2011. Ms N was at a nightclub in Darwin. Whilst dancing, she met a young man who said his name was Adam and they spent time together on the dance floor. When the nightclub was closing the two left together and walked down Mitchell Street talking as they went. At the Daly Street car park they were "close and touching". However the young man began to say things that disturbed Ms N and he was acting strangely. She decided to leave and started to do so. The man then beat her. He tripped her and then squeezed her neck. He punched her with his hands and kicked her with his feet. She was screaming. He stopped when a street sweeper drove by. He then took his penis from his pants and exposed himself to her. Ms N left the area and, at 5:27 am, called police. At about 5:52 am the respondent was arrested as he walked along the road some 300 metres from the Daly Street car park.

[4]       The Crown case was that the respondent was the assailant. In support of that proposition the prosecutor pointed to various items of evidence.

[5]       In the course of her evidence Miss N was asked about the night. The following exchange took place:

Did you speak to any men while you were there? --- Yeah, I speak with him.

Ms N then pointed to the respondent in the courtroom.

[6]       Ms N was asked to describe the man who had assaulted her and she provided a description in relation to which the learned Magistrate observed:

... the physical description that (Ms N) gives is largely similar to the defendant when he is arrested, except that the hat that he has in his possession is white with black writing, not black with white writing; and his shorts were not grey, but were blue denim.

The Magistrate said of the description provided by Ms N that it "mostly fits, but not completely".

[7]       The Crown relied upon the finding by the Magistrate of the presence of the respondent in the nightclub on that night which was established by the records of the nightclub. The Crown also relied upon the fact that the respondent was arrested in the area approximately 27 minutes after Ms N was assaulted.

[8]       In dismissing the charges the Magistrate referred to the oft repeated warnings regarding identification evidence. Her Honour said of the in court identification that it was "spontaneous" but that the respondent "was the only man apart from the prosecutor in court". Her Honour correctly gave little weight to that identification.

[9]       The Magistrate went on to conclude:

Viewing all of the evidence before me, and those matters that I have particularly highlighted in my findings, in light of the finding that he is and was and comes to Court as a young man of good character, I am not able to find beyond reasonable doubt that he was the man who assaulted (Ms N) and thus I dismiss the charges against him.

Ground 1

[10]     The first complaint of the appellant was that the Magistrate erred in law by excluding evidence of a photo board identification made by Ms N. When shown the board containing 12 photographs Ms N identified photograph seven, being a photograph of the respondent, as the assailant.

[11]     The concern of the Magistrate focused upon the nature of the photo board rather than the identification made by Ms N. Her Honour considered the complaints made on behalf of the respondent as to the photographs included on the board noting that:

The defendant raises the differences in facial features of the people on the photo board, particularly the absence or otherwise of a moustache in many of the photos. I have the photo board before me, in fact the exact photo board that was shown to (Ms N). Clearly all of the people in that photo board are male, all have dark hair, had tanned or dark skin and they are roughly, give or take five years or so, the same age. Only two are without facial growth that can be seen from the photos. Six are with what I would call definite moustaches and four with what I would call moustache like stubble.

[12]     The Magistrate went on to say:

I have viewed and carefully considered the exact same photo board that was shown and signed by (Ms N). In my view the probative value of that identification in the circumstances is low despite (Ms Ns) quickness and self certainty. Only two of the images in the photo board do not have facial hair that can be seen from the photo. Of course the unfairness if the evidence was to be admitted is substantial. I am thus bound to reject that evidence and I do not admit the evidence of identification from the photo board into evidence.

[13]     It was submitted that her Honour, in expressing herself to be "bound to reject" the photo board identification posed the wrong test. At trial her Honour had been referred to R v Blick[1] where the Court of Criminal Appeal of New South Wales dealt with the application of s 137 of the Evidence Act (NSW) which provides that, in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. In such a case Sheller JA said "there is no residual discretion" and the evidence must be rejected.[2] There is no such provision in the Northern Territory legislation at this time. However it is not disputed that a trial judge in the Northern Territory has a discretion to exclude evidence if the strict rules of admissibility operate unfairly against the accused. As Gibbs CJ observed in Alexander v The Queen:[3]

It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.

[14]     The appellant submitted that the learned Magistrate proceeded on the basis that there was a mandatory requirement for exclusion of the evidence in this jurisdiction whereas there existed a discretion to exclude the evidence as identified in Alexander v The Queen.[4] In my opinion a fair reading of the reasons reveals the Magistrate did exercise a discretion to reject the evidence. Her Honour delivered ex tempore reasons immediately following detailed submissions placed before her by counsel. In the course of those submissions there was repeated reference to the evidence being excluded in the exercise of a discretion. The basis upon which the discretion should be exercised was addressed in detail and reference was made to appropriate passages from Alexander v The Queen. The reference to R v Blick was by way of example of a case similar to that under consideration. It involved a photo board where only one photograph was of a person with a goatee beard in circumstances where the witness had given a description of the offender as having a goatee beard. The evidence was excluded.

[15]     In my opinion, in excluding the evidence, her Honour was exercising a discretion. Her Honour expressed the view that the probative value of the identification evidence in the circumstances was "low" and the unfairness to the respondent if the evidence was admitted was substantial. It is not surprising that in those circumstances the Magistrate rejected the evidence.

[16]     If I am wrong in my conclusion and the Magistrate proceeded on the basis that she did not have a discretion to exclude the evidence then, in any event, the appeal should be rejected because the proper exercise of the discretion must have led to the same conclusion. No substantial miscarriage of justice has actually occurred.[5]

Ground 2

[17]     The remaining ground of appeal was that the Magistrate erred by considering the circumstantial evidence in isolation. It was submitted that the case was largely circumstantial and that the Magistrate considered the evidence in a piecemeal fashion. It was submitted that her Honour failed to consider the cumulative effect of the evidence and looked at various pieces of evidence in isolation rather than considering the circumstantial evidence in its entirety. The appellant listed a series of items which, it was submitted, detracted from the prosecution case and were not considered in the context of all of the circumstantial evidence available for consideration.

[18]     A review of the ex tempore reasons for decision provided by the learned Magistrate does not support the submission of the appellant. In the reasons the matters relevant to the circumstantial case were individually identified. The Magistrate made observations regarding some of those matters and not others. The matters which caused concern were the subject of the more detailed observations. Her Honour then went on to conclude:

Viewing all of the evidence before me, and those matters that I have particularly highlighted in my findings, in light of the finding that he is and was and comes to Court as a young man of good character, I am not able to find beyond reasonable doubt that he was the man who assaulted (Ms N) and thus I dismiss the charges against him.

[19]     It is apparent from those observations that the Magistrate considered all of the evidence placed before the Court and reached conclusions based upon that evidence. In my opinion the submission that the whole of the evidence was not considered has not been established.

[20]     I see no error on the part of the learned Magistrate. The appeal is dismissed.

[1] (2000) 111 A Crim R 326.

[2] (2000) 111 A Crim R 326 at [20].

[3] [1980-81] 145 CLR 395 at 402.

[4] See also Festa v R (2001) 208 CLR 593.

[5] Section 177(2)(f) Justices Act.