Identification

Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ (would allow the appeal)

1. The appellant, Thomas Christopher Domican, was convicted by a jury in the Supreme Court of New South Wales of shooting at Christopher Dale Flannery with intent to murder him. The appellant contends that the trial judge misdirected the jury on the issue of the identification of the gunman by failing to give specific warnings concerning various features of the evidence of an eyewitness to the shooting. He also contends that the Court of Criminal Appeal erred in holding that, although the trial judge's directions on identification fell short of the standard required by certain decisions of that Court, the direct and circumstantial evidence identifying the appellant with the crime "remained to remove any concern that the lack of specificity in the judge's warnings about identification evidence was such as to result in a mistrial". This Court has already granted the appellant special leave to appeal against his conviction. In our opinion, the appeal should be allowed.

2. At about 5.50 pm on 27 January 1985, a gunman suddenly fired about 30 shots from an Armalite rifle in the direction of Mr Flannery as he and his wife were walking in the driveway of their home. The gunman was sitting in a green car parked at the front of the driveway. The Flannerys took cover behind the front of their car. A bullet went through Mr Flannery's hand as he pushed Mrs Flannery's head down. When the shooting stopped, she looked up and saw a man in the driver's seat of the car attempting to disconnect "a long square part of the gun". She said that she "just kept on watching him and he just kept on pulling at it and then when he couldn't get it out, after - I don't know how long it was - he just drove off". At the trial of the appellant, Mrs Flannery claimed that the gunman appeared to be wearing a wig and false moustache although, when first interviewed and in subsequent statements, she had not suggested that he was disguised. She also said that some weeks after the shooting she saw the gunman, without the wig or moustache, driving a milk truck near her home. Some time later she and her mother saw the appellant sitting in an orange Ford Falcon sedan at the end of her street. He ducked as they approached. The letters of the number plate were "HHI". A police officer gave evidence that in March 1985 he had seen an orange Ford Falcon sedan "HHI 627" parked outside the appellant's home. Mrs Flannery said that in April 1985 she recognised the appellant as the gunman after seeing him interviewed on four television programmes. But it was not until some months later that she informed the police that the appellant was the gunman. Indeed, in May 1985 she said she could not identify the gunman.

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8. The learned trial judge gave the jury a very full direction on the dangers of acting on identification evidence. In particular, he instructed them that there were four important matters to be considered: whether the witness had previously known the person identified; how good an opportunity the witness had to get a clear picture of the person identified; how long had elapsed between the event and the first identification; and what were the circumstances and nature of that first identification. The appellant makes no complaint about the adequacy of these general warnings and instructions. But he contends that his Honour's directions on identification were inadequate because he failed to draw the jury's attention to a number of alleged weaknesses in the evidence of Mrs Flannery. In the Court of Criminal Appeal (1) Domican (No. 3) (1990) 46 A Crim R 428, Kirby A.C.J., who gave the leading judgment, recorded ten matters in respect of which the appellant claimed that his Honour should have given "specific warnings" in relation to "particular dangers" (2) ibid., at pp 444-445. Reg. v. Lowery (No.3) [1972] VicRp 109; (1972) VR 939, at p 948. "desirable" for the trial judge to have drawn these matters to the attention of the jury (3) ibid., at p 445. It is unnecessary to set them out.

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10. The foregoing statements are applicable to all criminal cases including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence. 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.

11. Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed Kelleher v. The Queen [1974] HCA 48; (1974) 131 CLR 534, at p 551; Reg. v.Turnbull (1977) QB 224, at p 228; Reg. v. Burchielli [1981] VicRp 61; (1981) VR 611, at pp 616-619; Reg. v. Bartels (1986) 44 SASR 260, at pp 270-271. The terms of the warning need not follow any particular formula Reg. v. De-Cressac (1985) 1 NSWLR 381, at p 384; Finn (1988) 34 ACrim R 425, at pp 435-436. But it must be cogent and effective Reg. v. Dickson (1983) 1 VR 227, at p 230; Reid (Junior) v. The Queen (1990) 1 AC 363, at p 380. It must be appropriate to the circumstances of the case Reg. v. Aziz (1982) 2 NSWLR 322, at p 328; Allen (1984) 16 ACrim R 441, at pp 444-445. Consequently, 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" Smith v. The Queen (1990) 64 ALJR 588. A warning in general terms is insufficient Kelleher (1974) 131 CLR, at p 551. The attention of the jury "should be drawn to any weaknesses in the identification evidence" ibid. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it Davies and Cody v. The King [1937] HCA 27; (1937) 57 CLR 170, at pp 182-183. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

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14. It is apparent, therefore, that the circumstances in which Mrs Flannery saw and came to identify the gunman raise serious doubts as to the reliability of her identification. Moreover, parts of her evidence were proved to be unreliable. She appears to have seen only one person in the car, yet the witnesses who saw the green car leave the scene shortly after the shooting said that there was more than one person in the car. Furthermore, she described the car as a green Jaguar, a make of car with which she was familiar. She also claimed to have seen the appellant jogging near her home at a time when it was proved that his leg was in plaster.

Brennan J (would dismiss the appeal)

4. I do not understand the last sentence in this passage to mean that every argument which defence counsel could reasonably urge to impugn the reliability of identification evidence must be put by the trial judge to the jury as a weakness in the evidence which makes it dangerous to act on that evidence without corroboration. Provided a warning is, in the circumstances of the particular case, sufficient to alert the jury to the dangers of acting on the particular identification evidence given in the case Reg. v. Easom (1981) 28 SASR 134, at p 145, followed in Reg. v. Manh (1983) 33 SASR 563, at pp 568-569; see also Allen (1984) 16 A Crim R 441, at p 445., the trial judge has performed his or her duty. To require a trial judge to do more is, in my respectful view, to require the judge to trespass upon the function of the jury and to impose upon the judge a burden which will seldom be capable of discharge. A trial judge is not required to identify and to point out to the jury all the weaknesses which time, reflection and remoteness from the trial reveal to the collective mind of the Court of Criminal Appeal. Trial judges can give a warning sufficient to alert the jury to the dangers without teasing out of the evidence all the weaknesses which may appear on subsequent reflection. I would respectfully adopt what Young C.J. said in Reg. v. Haidley and Alford: [1984] VicRp 18; (1984) VR 229, at p 230. See also Vincec (1990) 50 A Crim R 203, at p 207

Deane, Toohey and McHugh JJ

1. The appellant, Mr Kirk Pitkin, was convicted in the District Court of New South Wales of one count of stealing and of another count of allowing himself to be carried in a motor vehicle without the consent of the owner. An appeal to the New South Wales Court of Criminal Appeal (Hunt CJ at Common Law, Smart and Levine JJ) on the ground that the convictions were unsafe and unsatisfactory was unanimously dismissed. At the request of both parties, the present appeal, which is from the judgment of the Court of Criminal Appeal, was heard immediately after the grant of special leave. The appeal was allowed, the order of the Court of Criminal Appeal dismissing the appeal to that court was set aside and in lieu thereof it was ordered that the appeal to that court be allowed and the appellant's convictions be quashed. The Court indicated that it would subsequently publish its reasons for making those orders. This we now do.

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3. Ms Clarke did not see the offender's face. To quote her, she "(j)ust saw the back of him running away". The only description she could give of the offender was that he had "short hair", was of "slight build" and wore "a T-shirt and a pair of football shorts". She said that she "estimated from his build" that he was "probably around about his twenties" but added that she "couldn't ... honestly say how old he was" since she "didn't see his face".

4. On the day in question, Ms Michelle Vella was at the Rooty Hill shopping centre. On three separate occasions she observed a man who was clearly the offender. On the first occasion, Ms Vella observed the offender for "about two or three minutes" from a distance of about fourteen to fifteen metres. He was "jiggling" a piece of blue tape "between" the driver and passenger doors of a parked green car, while another man waited in a red Holden Commodore next to the green car. The two apparently became aware of the fact that Ms Vella was watching them. The offender entered the red Holden Commodore and they drove away. Approximately twenty minutes later, Ms Vella saw the red Commodore double-parked outside the Jewels Foodbarn. She saw the offender leave the car and enter the supermarket. Shortly afterwards, she saw him run out of the supermarket "with a lady's handbag". He got into the passenger seat of the red Commodore and the car "sped off". Ms Vella made a note of the registration number of the car which, as has been indicated, turned out to have been stolen earlier in the day. Ms Vella's description of the man was "having short brown hair, light brown", "medium build", "wasn't very tall", "mid-twenties", "Australian", "black football shorts" and a "white T-shirt" with "red striping across it". His hair was "very short", "like a crew-cut".

5. About half an hour after the incident, Ms Vella was shown a number of photographs by police at Mt Druitt Police Station. She picked out three photographs of the appellant. Those photographs had been taken on three different dates, the closest being some three and a half months before the date of the alleged offences. Ms Vella's evidence was that, when she picked them out, she said: "This looks like the person that I seen take the lady's handbag." A police witness who gave evidence of Ms Vella's selection of the three photographs said that he "didn't record" what Ms Vella had said but that it "could have been something like: "This looks like the person that I seen."

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7. In other words, the evidence implicating the appellant was confined to evidence of Ms Clarke's and Ms Vella's verbal descriptions of the offender and his clothes and of Ms Vella's selection of the three photographs. It could not be seriously suggested - and was not argued - that the verbal descriptions - "Australian", "short light brown hair", "slight" or "medium" build, not "very tall", "twenties", "football shorts" and "T-shirt" - positively identified the appellant as the offender. That meant that the prosecution case against the appellant ultimately rested upon the fact that Ms Vella, who had seen the offender, identified three photographs of the appellant with the comment "This looks like the person".

8. Obviously, the fact that an accused person "looks like" a person who in fact committed a crime is, of itself, insufficient to sustain a conviction of that accused of that crime. Yet, prima facie, the evidence led against the appellant in the present case went no further than that. Once it is accepted that the appellant "looks like" the offender, Ms Vella's selection of three photographs of the appellant with the comment "This looks like the person" prima facie proves nothing more than what she said. In that regard, there is no significance in the fact that Ms Vella selected three photographs rather than one. All that establishes is that there were at least three photographs of a person, the appellant, who looked "like" the offender.

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14. In the present case, the words used by Ms Vella in selecting the three photographs did not, as a matter of literal meaning, amount to positive identification. They were plainly consistent with an intention by Ms Vella to indicate nothing more than that the person depicted in the three photographs looked like the offender whom she had seen. It may well be, as Levine J speculated, that Ms Vella did intend to convey, by the words that she used, that the person depicted in the photographs actually was the offender. It may also well be, as Hunt CJ at Common Law suggested in his judgment, that the phrase "that looks like" was used in a colloquial sense by Ms Vella and was "certainly capable in (the) circumstances of asserting an identification of the appellant". Nonetheless, the plain fact remains that the words used by Ms Vella were consistent with an absence of positive identification. That being so, the evidence of her selection of three photographs was, of itself, incapable of sustaining a finding by a reasonable jury that the appellant was, in fact, the person who stole Ms Clarke's handbag and was driven off in the stolen vehicle. In the absence of any evidence by way of explanation or elucidation of Ms Vella's words and of any other evidence implicating the appellant, the convictions were necessarily unsafe and unsatisfactory.

Hunt CJ at CL

At 1

The appellant (Neil Heuston) was found guilty by a District Court jury of one charge of armed robbery and another of sexual intercourse without consent. Judge Kinchington QC imposed a total sentence of sixteen years, consisting of two cumulative minimum terms of penal servitude for nine and four years and an additional term of three years.

The Crown case was that the appellant was one of four men disguised with balaclavas who forced their way, armed, into the isolated property of Stephen and Deborah Mulholland at Bowraville during the evening of 15 September 1992, where they stole about $9000 in cash, a quantity of cannabis and a number of firearms. Mr Mulholland was assaulted on a number of occasions. Mrs Mulholland was sexually assaulted by the appellant by the digital penetration of her vagina. Threats were made in relation to their safety and the safety of their children in the event that the crimes were reported to the police.

At 2

The first ground of appeal asserts that the judge erred in leaving to the jury the evidence of Mrs Mulholland as to her identification of the appellant as the man who sexually assaulted her. The evidence which she gave was that she had met the appellant (identified by Mr Mulholland as having occurred some eighteen months earlier) when the appellant had attended their property to complete a transaction with her husband. She had been in the kitchen when the appellant arrived. It was daytime, and she saw him in the yard. He could have been there for an hour. When he arrived, he had looked over at her and said: "G'day darlin', how you going darlin'?" His voice was high pitched, although softly spoken. His manner was so totally offensive to her that she had not forgotten the incident. Mrs Mulholland said that, when the man who subsequently sexually assaulted her entered her bedroom and as soon as he started speaking, she immediately recognised the voice and knew who he was. At one stage he had said "Shut up darlin'. I'm not going to hurt you darlin', everything's going to be all right", and "Shut up darlin', I'm not going to hurt the kids I said", and "Why don't you put something pretty on for me darlin'?" He also spoke about other matters. She was at that stage unable to put a name to that person, it was (she said) on the tip of her tongue. After the men left, she had kept saying that she knew who it had been who had sexually assaulted her, and her husband had said "It was the Heustons". She immediately knew that it was Neil Heuston (the appellant) in her room that night.

At 8

The second ground of appeal asserts that the directions given by the judge on the question of identification were inadequate. In support of this ground, counsel now appearing for the appellant has pointed to a number of matters which, it is submitted, the judge should have drawn to the attention of the jury as weaknesses in the evidence upon the issue of identification. Reliance was placed upon what was said to that effect in Domican v The Queen. Many of the matters so pointed to were in fact referred to by the judge, but none of the others now pointed to was the subject of any application to the judge at the conclusion of the summing up or during the course of it. This circumstance led to considerable debate as to the extent to which a trial judge is obliged to go beyond the matters argued in the case, and helpful written submissions were supplied after the conclusion of the hearing upon this appeal.

At 10 and 11

The obligation imposed upon the trial judge arises wherever identification represents a "significant" part of the proof of guilt of an offence. That obligation must be observed even where there is other evidence which, if accepted, is sufficient to convict the accused. If it is reasonably possible for the jury to convict solely upon the identification evidence, the warning and the direction must be given upon the assumption that the jury may do so. If, of course, it is not reasonably possible for the jury to do so, they should normally be directed that they must not convict solely upon that evidence. Even in such a case (where the jury could not reasonably convict solely upon the identification evidence), it may be that identification will still form a sufficiently "significant" part of the proof of guilt (for example, as corroboration of an accomplice's evidence) to require directions as to weaknesses in that evidence, but that is a matter to be considered in relation to the facts of the particular case.

It is not sufficient for the judge simply to repeat as such the arguments which counsel have put. In Domican v The Queen, the High Court said: "The jury must have the benefit of a direction which has the authority of the judge's office behind it. " Earlier, in Davies and Cody v The King, the High Court had stressed that it was necessary for the judge to give "the weight of his judicial authority" to the warning as to the dangers involved in identification.

Smart J

At 4

Secondly, the applicant complains that the identification directions given by the judge were inadequate. The principles as gathered in R v Domican 175 CLR 554 at 561-562 and 564 are: (1) Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. (2) The warning must be cogent, effective and appropriate to the circumstances of the case. (3) A warning in general terms is insufficient. The jury should be alerted to any weaknesses (or what may reasonably be regarded as weaknesses) in the identification evidence. (4) Reference to counsel's arguments is insufficient. The judge himself should give the relevant directions isolating and identifying for the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. (5) The judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on the identification evidence.

In his submissions counsel for the appellant urged this court to go further and hold that the judge must agree and assert that those factors which may reasonably be regarded as weakening the identification evidence were indeed matters which did weaken the identifications and which the jury were bound to accept weakened the identifications. These submissions were based on this passage in the joint judgment of Phillips CJ and Eames J in R v Radford 1993 66 A Crim R 210 at 218: "His Honour did list, appropriately, a range of factors which may have affected the identifications but in our opinion the directions as to those matters, although careful and thorough, did not, in the main, amount to the judge's personal identification of factors which weakened the evidence of identification and thus the force of the judicial warning was diminished. With only one or two exceptions the learned trial judge merely stated, often in general terms, the assertion of the applicant as to factors which may have lessened the reliability of the identification. The jury would have gained no sense that the judge was agreeing and asserting that those factors were indeed matters which did weaken the identifications and which the jury were therefore bound to accept weakened the identifications. It is that degree of involvement in relating the facts of a case to the dangers of wrong identifications that is now required as a result of the judgment in Domican."

At 7

I agree with Hunt CJ at CL that the identification directions in the present case were adequate. I also agree that r.4 of the Criminal Appeal Rules applies where the legal representatives of the accused do not seek any amending or further directions as to identification.

McInerney J

I have read the draft Judgment of the presiding Judge and agree with his conclusion that the appeal should be dismissed for the reasons he has expressed.

Gleeson CJ (the ID evidence, whilst weak, was correctly admitted. The directions on ID were insufficient. Nonetheless, the overwhelming case means the conviction should stand)

1. The nature of the case against the appellant appears from the reasons for judgment of Kirby J and Callinan J. I will confine my remarks to the first three grounds of appeal. For the reasons given by Kirby J, I agree that the remaining grounds have not been made out.

2. Grounds 1, 2 and 3 are as follows:

"1. The failure to exclude the evidence of the witnesses James, Ogilvie, Fyffe and Hill who purported to directly identify the appellant has resulted in a miscarriage of justice.

2. The admission of the evidence of James, Ogilvie, Fyffe and Hill who purported to directly identify the appellant, as circumstantial evidence, has resulted in a miscarriage of justice.

3. The trial judge's directions in relation to eye witness identification and voice identification evidence were inadequate."

3. In my view, ground 3 has been made out, but not grounds 1 and 2.

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5. Direct evidence is evidence which, if accepted, tends to prove a fact in issue. Here, the fact in issue was whether the appellant was one of the two people who took part in bank robberies at Biggera Waters on 27 May 1996 and at Paradise Point on 13 June 1996. (The charges, of course, had to be considered separately.) Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred. The evidence of the first three of the four named witnesses was circumstantial. If accepted in full, it tended to prove that the appellant was, at the time of each bank robbery, near the scene of the crime, in the company of a male, and associated with a car of the kind used in the robbery. If those facts were established, they could form part of the basis for an inference that the appellant was one of the robbers. Even if those three witnesses had all said that they knew the appellant, saw her clearly, and recognised her, that would have been circumstantial, not direct, evidence of her participation in the robbery.

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9. The fourth witness, Mr Hill, was a hairdresser who worked near the bank at Paradise Point. He was at work on 13 June when the robbery occurred. He saw a woman, who was one of the robbers. She had layered hair and an olive complexion. On 18 August 1996, he was shown by the police a board containing a number of photographs. He said that the persons depicted in photographs 6, 8 and 11 had the same hair and skin type as the woman he had seen on 13 June. The appellant was depicted in photograph 6. This was not evidence that "directly identified" the appellant. It was some evidence that the appearance of the appellant was consistent with the appearance of the female seen at Paradise Point participating in the robbery. It should be added that there was evidence before the jury as to when and how the photo-board had been prepared. It was prepared after the appellant had been charged.

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22. There are two principal dangers associated with identification by means of selection from a group of photographs. These were discussed in Alexander. There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. But there is also a risk of a different kind. The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history. A similar risk arises where identification is made in circumstances suggestive of a criminal background, such as where a person is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions. This is sometimes called the rogues' gallery effect. Because of the evidence as to the circumstances in which the photo-board shown to Mr Hill was prepared, that is not an issue in the present case. The first kind of risk concerns the probative value of the evidence. The second is a risk that the jury will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence. In that connection, some care is needed in the use of the term "prejudice". Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused. But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.

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25. The Court of Appeal was right to reject the argument that the evidence referred to in grounds 1 and 2 should have been excluded, and that its reception resulted in a miscarriage of justice.

Ground 3: directions

The Court of Appeal acknowledged that, although the trial judge gave lengthy and detailed directions about many of the risks associated with identification evidence, there were at least two respects in which his directions and warnings were inadequate. One was that he failed to warn the jury of the dangers of voice identification of the kind made by Mr James. The other was that he did not warn the jury adequately of the dangers involved in the acts of identification made at Southport by Mr James and Ms Ogilvie, who were sitting near one another, and whose recognition of the appellant, who was said to be "one of few women seen coming into the court that day", might have been influenced by combining their respective impressions and reactions. The Court of Appeal pointed out that these matters were strongly emphasised to the jury by counsel for the accused. Nevertheless, the judge should have dealt with them, and added the weight of his authority to the need for caution.

McHugh J (the ID evidence, whilst weak, was correctly admitted. The directions on ID were insufficient. Nonetheless, the overwhelming case means the conviction should stand)

31. In my opinion, the learned trial judge erred in his directions concerning the identification evidence and in admitting the tools of trade evidence, but in no other respect. Despite these errors, the case against Ms Festa was so strong that a reasonable jury, properly directed, would have convicted her on the admissible evidence.

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51. But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.

52. Nor is it an automatic ground of exclusion that the identification took place at a court house or after someone has suggested that a suspect may be present at a particular place. The courts have not gone so far as to say that a court house identification must be automatically excluded where a police officer or other person has suggested that the identifying witness should be on the lookout for the perpetrator of the crime at the court house. Such statements inevitably weaken the effect of the identification evidence. They are matters to be considered in determining whether evidence should be excluded because its probative value is outweighed by its prejudicial effect. Of itself, however, a statement such as that made by Detective Holmes does not provide a ground of exclusion.

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54. Most cases concerned with identification evidence are cases of positive identification. That is to say, cases where a witness claims to recognise the accused as the person seen on an occasion that is relevant to the charge. Positive-identification evidence may be used as direct or circumstantial proof of the charge. A positive identification of the accused is direct evidence of the crime when it identifies the accused as the person who committed one or more of the acts that constitute the crime in question. A positive identification is circumstantial evidence when its acceptance provides the ground for an inference, alone or with other evidence, that the accused committed the crime in question. A witness gives direct evidence of the charge when she testifies that the accused ordered her to hand over the takings. A witness gives circumstantial evidence of the charge when she testifies that the accused was the person who ran out of the bank immediately after other evidence proves it was robbed.

55. Positive-identification evidence has often proved to be unreliable. This Court has insisted that where identification evidence, direct or circumstantial, represents a significant part of the proof of guilt of an offence, trial judges must warn juries not only of the potential unreliability of that evidence but also of any particular weaknesses in the evidence, in the case being tried.

56. Unfortunately, another class of evidence is sometimes called "circumstantial identification evidence". It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.

57. When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence.

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65. In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. Because circumstantial identification evidence is usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasions for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positive-identification evidence.

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76. In the present case, the trial judge gave fairly extensive general directions on the identification evidence. But his directions did not sufficiently draw the jury's attention to the weaknesses in the evidence of the individual witnesses, in accordance with the principles set out in Domican and developed in subsequent cases. Ms Festa's challenge to the specificity of the directions relates primarily, as it did before the Court of Appeal, to:

(1)         the trial judge's directions on the "court house identifications"; and

(2)         the directions on Mr James' voice identification.

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124. In the present case, even when the evidence of the court house identifications and of the presence of the guns and ammunition in the unit are put aside, the case against Ms Festa was overpowering. No reasonable jury could fail to convict her.

Kirby J (the ID evidence should not have been admitted. The directions on ID were insufficient. Nonetheless, the overwhelming case means the conviction should stand)

161. The exclusion question: The trial judge enjoyed, as he recognised, a discretion to exclude the foregoing identification evidence, or any part of it, from the jury's consideration if its probative value were outweighed by the prejudice, danger or unreliability associated with it. By reason of the objections taken for the appellant at the trial, it was open to the judge to reject all of the court identification evidence or part only, such as the courthouse identification. The judge exercised his discretion against the applications. The Court of Appeal did not consider that an error had been established. Specifically, that Court noted that the trial judge had accepted that the evidence was "not very strong" and amounted to no more than "purported identification" of the appellant. Most of the Court of Appeal's consideration in this respect was addressed to the next issue, namely the warnings that were necessary in light of the "poor quality" of the identification evidence which "on its own [did] not take the Crown case much further". The reasons for rejecting the complaint about the admission of the evidence in the first place appeared to come down to the recognition that the trial judge had a discretion and had expressed the opinion that the identification evidence was simply part of the "circumstantial" case which the prosecution built against the appellant and the co-accused.

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164. These and like principles have been expressed in many cases. In my opinion, they ought to have been applied in this case by the trial judge and the Court of Appeal. Although it is true that the identification evidence, once admitted, has to be considered as part of the entirety of the evidence in the case, and in that sense may become part of the "circumstantial evidence" offered against the accused, an objection to the admissibility of identification evidence cannot be met by simply categorising it as just another piece of the circumstantial evidence, part of the "jigsaw" as it were, and thus sufficiently addressed by appropriate warnings. If that were so, all identification testimony would be tendered as "circumstantial evidence".

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169/ To the extent that the evidence was weak, it was incapable objectively of adding greatly to the weight needed to outweigh the distinct prejudice to the appellant of asking persons at a courthouse, in effect, to identify as the female offender, the only possible female in the vicinity who could qualify for such identification. To use the words of King CJ in Hallam and Karger, such evidence was "virtually valueless" in terms of probative weight. But potentially it was highly prejudicial. Having regard to the Manual, it ought not to have been procured, still less tendered at the trial. Once tendered, the objection to its reception ought to have been upheld. The trial judge and the Court of Appeal erred in deciding otherwise.

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180. The result was that the instruction to the jury about the dangers of identification evidence fell short of the requirements established by this Court. The appellant has therefore also made good her second ground of appeal.

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212. In the circumstances of such evidence, viewed in its totality, the suggestion that the appellant was simply not inquisitive is impossible to accept. Because of her flight, she offered no explanation of her own at the trial, compatible with innocence, such as infatuation. Although she was not bound to give evidence, the lack of any evidence necessarily meant that the case went to the jury on the compelling basis established by the prosecution. The case against the appellant was therefore irresistible. Her conviction was inevitable.

213. It follows that the mistakes made in admitting the worthless courthouse identification evidence and in failing to provide adequate and specific directions to the jury on the dangers of the identification evidence, did not, in the result, cause a substantial miscarriage of justice actually to occur. The conviction of the appellant is therefore confirmed. However, the case stands as a warning of the need for continuing vigilance in the reception of identification evidence at trial, the provision of proper and detailed warnings related to the evidence when such evidence is received and the attention required by appellate courts to ensure that the stringent requirements of Australian law concerning identification evidence are fully complied with.

Hayne J (the ID evidence, whilst weak, was correctly admitted. The directions on ID were insufficient. Nonetheless, the overwhelming case meant the conviction should stand)

216. For the reasons given by Gleeson CJ the evidence of the witnesses Mr Fyffe, Ms Ogilvie, Mr James and Mr Hill was admissible and the trial judge is not shown to have erred in refusing to exclude it. I also agree, however, that the trial judge did not sufficiently draw to the attention of the jury the weaknesses in the evidence of voice identification given by Mr James and in the evidence given by Ms Ogilvie and Mr James of their recognising the appellant at the Southport Courthouse.

217. As the reasons of McHugh J demonstrate, it may sometimes be convenient to distinguish between positive-identification evidence and evidence of similarities between the accused and the perpetrator of the crime. It is, however, important to recognise that evidence which the prosecution relies on, to demonstrate that it was the accused who committed the alleged crime, may take many forms. The convenience of classifying some or all of those different kinds of evidence should not be allowed to obscure the fundamental reasoning that underpinned this Court's decision in Domican v The Queen. In particular, deciding where the boundaries between classes of evidence may lie must not obscure the purpose of what is now commonly called a Domican direction…

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218. Giving effect to that purpose does not depend upon, or require, the classification of evidence as positive-identification evidence or as evidence of similarities, as circumstantial or direct. The problem is more concrete than that. It is that witnesses may, with perspicuous honesty, give evidence that it was the accused they saw, or a person like the accused, or a person having particular physical characteristics (like those of the accused) and yet the painful experience of the law is that they may be mistaken. The duty of the judge is to draw the jury's attention in every such case, where the reliability of the evidence is disputed, to how and why the evidence may not be reliable. The trial judge did not do this sufficiently at the appellant's trial.

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221. Despite concluding, as I do, that evidence was wrongly admitted at the appellant's trial and that insufficient directions about the weaknesses in the evidence of identification were given, I agree with the conclusion reached by the other members of the Court that the case against the appellant was so strong that there has been no substantial miscarriage of justice.

Callinan J (the ID evidence should not have been admitted. The directions on ID were insufficient. Nonetheless, the overwhelming case means the conviction should stand)

245. I would accept that there is force in the appellant's criticisms of the conduct of those who were responsible for the failure to conduct a proper identification parade and who caused or permitted the witnesses to discuss the identity of the appellant and her appearance before they had all given evidence at the appellant's trial. So too, the departures from the strictures of the manual should be condemned. In addition, the trial judge did, inaccurately, refer to all of the identification evidence as circumstantial evidence. The consequences that flow from that are matters which I will discuss in due course.

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258. If anything, however, the misdescription here of some of the identification evidence may have favoured the appellant by the suggestion implicit in it that it fell short of being directly probative of the ultimate fact in issue. It certainly in no way caused the trial to miscarry or deprived the appellant of a fair chance of acquittal.

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261. I do not regard the misdescription of some of the evidence as circumstantial evidence as a material misdirection. On numerous occasions during his summing up, the trial judge warned the jury of the need for them to exercise great care in considering the circumstantial evidence, and specifically, that part of it which his Honour may have been, immaterially as I have held, so misdescribing.

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268. In my opinion, notwithstanding that points raised by the appeal might be decided in favour of the appellant, particularly the failures of the police officers to act lawfully or properly in relation to the identification of the appellant, no substantial miscarriage of justice actually occurred in the circumstances of this case.

Wood CJ at CL and Howie J

1. On 2 October 2001, the appellant was placed on trial, before Justice Kirby and a jury, charged with the murder of his wife Kristine Anne Rose. To that charge he entered a plea of not guilty. On 16 November 2001, the jury returned a verdict of guilty. He now appeals against that conviction but not against the sentence imposed which, when adjusted for pre sentence custody, was effectively one of imprisonment for 14 years with a non parole period of 10 years.

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Ground 11

The judge erred in giving in effect a 'Domican type direction ... in relation to ... Mr Dawson, who gave evidence that he saw a woman he identified as the deceased at a time when on the Crown case, the appellant had already murdered her.

283. The evidence and circumstances giving rise to this ground of appeal are set out in the judgment of Smart AJ which we have had the benefit of reading in draft. The relevant passages from the trial and Kirby J's summing up are set out by his Honour as are the definition of "identification evidence" contained in the Dictionary to the Evidence Act and s 165 of that Act. We will not lengthen this judgment further by setting them out here.

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293. We can see no policy reason for limiting the requirement for a warning about the unreliability of identification evidence to that which falls within the definition of "identification evidence". The particularly persuasive nature of evidence falling within that definition, to which Smart AJ refers, is met by the warning required under s 116. There are many occasions when evidence of identification will assume importance in both a criminal and civil trial, yet it will not fall within the scope of "identification evidence". The fact that this particular area of identification generally has been emphasised by the Commission and thus is specified in s 165(1)(b) as well as s 116, does not lead us to the view that other potentially unreliable identification evidence should be excluded from the operation of the section.

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295. But, even if we were wrong in the view we take of the scope of s 165(1), s 165(5) makes it clear that the trial judge has a residual power to give a warning to a jury, or to inform them about some matter where the judge believes it is necessary to do so in the interests of justice. If the particular evidence under consideration does not fall within the scope of s 165(1), the trial judge has power to give a warning or provide the jury with information although there is no requirement to do so. In our view it was open to Kirby J to conclude that in fairness to the Crown the jury should be alerted to the general difficulties involved evidence of the nature of that given by Mr Dawson.

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297. In the case of evidence of a person other than the accused, and in circumstances where the evidence favours the accused, there would be good reason for the trial judge to temper the warning and information given to the jury in respect of that evidence. Clearly there would be no basis for the trial judge to warn the jury that mistaken identification has led to erroneous convictions. Generally speaking it would not be necessary for the trial judge to caution the jury in terms of s 165(2)(c) although we would not hold that such a caution could never be given. In our view, what Kirby J said to the jury about the evidence of Mr Dawson in the summing up was appropriate. Although we do not believe that it was correct for the trial judge to tell the jury, the day after Mr Dawson's evidence was given, that, in respect of identification evidence, "caution must be exercised in dealing with such evidence when you come to address it", we do not believe that in the circumstances of this particular case that remark might have led to a miscarriage of justice in light of what his Honour said to the jury in the summing up many days later.

Smart AJ

314. The facts and circumstances are set out in the joint judgment of Wood CJ at CL and Howie J. I agree with what they have written except as to Appeal Ground 11.

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343. Thus I would reject an approach that the Court should regard all visual identification evidence as being of a kind that is unreliable but refuse the request for a warning because the evidence is exculpatory, that being a good reason for not giving the warning. The first step is to decide whether exculpatory identification evidence is of a kind that is unreliable. I do not agree that it is. If I am wrong in that view and have defined the category of unreliable evidence too narrowly, it would be necessary to consider whether there is good reason not to give a warning. The fact that the evidence is exculpatory would be a good reason. In most cases the difference in approach will not affect the result.

Gleeson CJ and Hayne J (would dismiss the appeal)

1. The appellant was convicted of robbery in company with wounding, and kidnapping. The victim, Mr Schembri, gave evidence that, on the evening of 19 January 1999, he met four men of Indian or Sri Lankan appearance in a hotel. At his invitation, they accompanied him back to his flat. There, after a brief interval, all four of them set upon him, wounded him, robbed him, took him from his flat at knife-point and attempted to force him into a car with a view to taking him to an automatic teller machine. Mr Schembri said that the time between arriving at the flat and leaving seemed about 15 or 20 minutes. In cross-examination he said that four to five minutes elapsed between his arrival at the flat and the commencement of the attack. It was suggested to Mr Schembri in cross-examination that the violence commenced later than he indicated, but he adhered to his evidence that he was attacked only a few minutes after he arrived at his flat, and rejected the proposition that half an hour or more elapsed between his arrival at the flat and his being taken out to the street.

2. The prosecution case was conducted as one of joint criminal enterprise; the case did not depend upon assigning to the appellant any particular individual role in the events that occurred. The trial judge, in his summing-up, told the jury:

"The Crown says you will be satisfied beyond reasonable doubt that at all relevant times the accused was present when the acts described by Mr Schembri took place and therefore he is jointly responsible with the other three men [for] the robbery and wounding of Mr Schembri and also the taking [him off] from the unit for an advantage to themselves ...".

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7. That was the background against which the appellant came to give his version of events in evidence. He did not challenge the fingerprint evidence. He did not deny that he was the man in photograph No 8. He did not deny that he and three other men had gone back with Mr Schembri to his flat on the evening in question. However, he said that he had left the flat and returned to his home before any violence occurred.

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10. The trial judge did not give, and was not asked to give, any directions or warnings about the identification evidence. His failure to do so was the subject of a ground of appeal in the Court of Criminal Appeal. All three members of the Court (Meagher JA, Dowd and Kirby JJ) rejected that ground. The relevant principle was taken to be that stated by this Court in Domican v The Queen:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed." (emphasis added)

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14. As framed, the ground appears to accept the factual premise upon which the Court of Criminal Appeal based its conclusion, but asserts that s 116 of the Evidence Act required a warning. Under pressure of argument, that position was modified.

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19. If read literally, and apart from its statutory context, s 116 could be taken to mean that a judge is always required to inform the jury that there is a special need for caution before accepting identification evidence whenever identification evidence has been admitted, even if the reliability of the evidence is not in dispute. That would be absurd. If a witness claims to have seen an accused at a particular place on a particular occasion, and the truth of that assertion is not questioned or in any way put in issue, then ordinarily there is no special need for caution before accepting the evidence. The common law principle, expressed in the passage from Domican quoted above, contains the obvious qualification that the warning is to be given where the reliability of the evidence of identification is disputed. The same qualification is implied in s 116; if it were otherwise the provision would offend common sense.

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22. To give s 116 a literal meaning would produce a consequence that is wholly unreasonable. The statutory requirement to give the jury certain information is to be understood in the light of the adversarial context in which the legislation operates, and the nature of the information the subject of the requirement. So understood, the provision means that the information referred to is to be given where the reliability of the identification evidence is disputed.

McHugh and Gummow JJ (would dismiss the appeal)

38. When no re-direction concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice. No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is "reasonably possible" that the failure to direct the jury "may have affected the verdict". In the present case, the judge was not required to give one of the directions that the appellant now claims should have been given - a direction as to identification evidence. And although we think that it would have been better for the judge to give a direction concerning the other matter - a direction as to lies - the appellant has failed to establish that there is a reasonable possibility that such a direction would have affected the verdict. Accordingly, no miscarriage of justice has occurred.

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53. The obligation imposed by s 116 must be read in the context of the adversarial system of criminal justice. It is not to be supposed that, in enacting that section, the legislature intended that juries be given directions concerning identification evidence when identification was not an issue. It is not to be supposed that the legislature intended a trial judge to give a direction that was not relevant to the issues in the case. Not only would it be a waste of curial time and effort but the giving of an irrelevant direction would be likely to confuse the jury who understandably would be puzzled as to what significance the direction had.

Callinan J (would allow the appeal on the basis that identification was in issue)

90. The question is however whether as a matter of practical reality s 116 of the Act should, and can be given an invariably mandatory construction and application. Although it is true that there are numerous cases in which there is an issue about identification, there are also many in which there is not. Numerous instances of the latter were referred to in argument: for example, when a complainant gives evidence that the accused assaulted her at a certain time and place, her evidence, placing him at the scene of the crime and connecting him with it, would answer the dictionary definition of identification evidence even though the real issue may be as to consent, or mistake, and have nothing to do with identification in fact. Sometimes, an accused, appreciating that the evidence of identification is beyond dispute, will be content to have it adduced in a leading form. Nonetheless the Crown may be bound to tender the evidence to establish an element of the offence, or simply as part of the proof that the accused committed it. Sometimes the Crown will not even know whether identification is in issue until the defence case has commenced or has almost ended, particularly in New South Wales in which, remarkably, there appears to be no practice of requiring an accused to indicate in an opening speech which witnesses are to be called, or even the nature of the defence.

91. These matters argue against a universally mandatory construction of s 116 of the Act. The Law Reform Commission Report commending the enactment of the Act throws no light upon the reason for the expansive language chosen although the words "special need for caution" appear to have been used in the first instance in the case of R v Turnbull. Despite that, Turnbull is discussed by the Commission in terms which acknowledge the existence of a relevant dispute before a cautionary direction need be given, the section as drafted does not reflect that requirement. The reference to "disputed identification evidence" in the report may also be misleading because the dispute will usually be about identification, and not the evidence of it which may be clearly relevant and therefore indisputably admissible.

92. I have formed the opinion that s 116 should not be given a reading which requires a special precautionary direction unless there is a relevant issue of identification, for three reasons. First, the use of the word "admitted" instead of "tendered" or "received" tends to suggest a dispute with respect to identification, and therefore a controversy on the evidence about it. Secondly, the use of the words "special need for caution" implies that there is something in the case in relation to identification which calls for the special treatment of the evidence of identification: if there were no issue about it there would not be a need, let alone any special need for caution.

93. Thirdly, because s 116(1)(b) of the Act draws attention to the circumstances of the case, it is to those that regard must be had. And if in the circumstances of the case identification is not disputed, then a direction counselling caution about it, would seem to a jury to be bizarre.

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95. It may be accepted, as Meagher JA in the Court of Criminal Appeal held, that the principal question that was litigated at the appellant's trial was whether there were three assailants or four. It may also be accepted that once the appellant was confronted with the fingerprint evidence he was bound to, and did concede that he had at some relevant time been in Mr Schembri's flat. Even so, I do not think that it can be said that there was no issue of identification sufficient to attract a cautionary direction of the kind which s 116 of the Act on its proper interpretation requires. There remained an issue whether the appellant was a person who was present when the offences, involving as they did, the further assault in the street, were committed. As to that matter there was conflicting evidence from the neighbours. In my opinion the trial judge should therefore have given a direction that there was a special need for caution in accepting the evidence of Mr Schembri that there were four, rather than three men in the street who were assaulting him: and, further, even though the appellant had admitted that he was present at the flat before any assaults were committed, because Mr Schembri was unable to say with clarity which of the persons present committed each assault, the jury should be cautious in dealing with Mr Schembri's evidence that four men assaulted him in the flat. Because of the continuing nature of the conduct of the assailants, any doubt engendered by a precautionary direction with respect to their number in the street might well have affected the minds of the jury as to the appellant's presence in the flat when the assaults were committed there. There was accordingly a dispute about the identity of the appellant as an assailant in both the flat and the street, although not about his identity as a person present at the flat after leaving the hotel. In my view the appellant has made out his first ground of appeal.

Studdert J

2. The appellant stood trial in the District Court at Newcastle charged with armed robbery at a bank in New Lambton on 21 June 2002. The jury found him guilty, and he was sentenced to imprisonment for six years, with a non parole period of four years.

3. There is no application for leave to appeal against sentence and the appeal concerns the decision of the trial judge to admit certain evidence. The two grounds of appeal are these:

“(i)         the learned trial judge erred in admitting the evidence of identification by Kerrie-Ann Wood;

(ii)          the learned trial judge erred in admitting the CCTV surveillance photographs.”

4. The critical factual issue for the jury at the trial was the identification of the offender, of whom photographs were taken by the bank’s security cameras whilst he was at the counter in the bank, as he left the counter, and as he was passing through the front doors of the bank when leaving it. Those photos were admitted into evidence, and hence the second ground of appeal. After the photos were developed, a police officer sent one of them to the media, and on 27 June 2002 the Newcastle Herald published that photo with an accompanying article. The appellant’s sister saw the published photo and the article, claimed to recognise the appellant and notified the police.

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6. Four witnesses to the robbery participated in photo identification parades. None of them selected the appellant’s photo as being the photo of the robber. The four witnesses were two tellers working in the bank at the time, a sales consultant who was present in the bank and a 12 year old boy who saw a person running from the bank. One of the tellers was the teller who dealt with the offender.

7. The appellant gave evidence at the trial. He denied committing the crime. He had no specific recollection as to what he was doing on the day of the robbery but at about that time he was doing some work at his father’s house. He said he had not worn a blue denim jacket for ten years.

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16. In Smith Gleeson CJ, Gaudron, Gummow and Hayne JJ considered the identifying evidence of the police officers was irrelevant but their Honours went on to remark that the decision in Smith did not mean that it would never be relevant for a witness to give evidence that the witness recognised who was depicted in a photograph. Their Honours said (at paras 13-15)…

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18. Unlike the police officers in Smith, Ms Wood had grown up with her brother and had an ongoing association with him. The witness had the advantage, not shared by the jury, of the long time opportunity, which she asserted, of observing her brother and of noting his characteristics, his stature, his stance, his facial features, and the manner in which he wore his jacket, which the witness claimed was so familiar to her. Hence the evidence which Ms Wood was able to give and did give satisfied the requirement of relevance.

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22. Whilst I consider that the evidence of Ms Wood was relevant, it does not necessarily follow that it was properly admissible. It is necessary to determine the character of the evidence: was it evidence of fact or was it opinion evidence? If it falls into the latter category, then s 76 rendered it inadmissible unless it came within one of the specific exceptions to the opinion rule.

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31. For the reasons I have expressed earlier, I consider the evidence that the appellant’s sister was able to give was in a different category from that of the police officers in Smith. Whilst recognising the blurred boundary between fact and opinion to which Kirby J referred in the passage cited above, it seems to me that the nature of the relationship between the appellant’s sister and the appellant, together with her opportunity in that relationship to become familiar with his stature, his stance and his facial features, was such that Ms Wood’s evidence identifying her brother is to be regarded as direct evidence that the person shown in the photograph was her brother. If this conclusion is correct, it becomes unnecessary to consider ss 76 and 79 of the Evidence Act.

...

40. The submission is here made, however, that because the jury had the evidence of Ms Wood identifying the subject of one of the photos, the risk arose that the jury might give unwarranted weight to its process of evaluation of the photographs and that this risk should have led to the exclusion of the photographs. Section 137 of the Evidence Act would have called for the exclusion of the photos only if their probative value was outweighed by the danger of unfair prejudice. In my opinion, the probative value of the photos here warranted their introduction into evidence.

Kirby J

43. I agree with Studdert J.

Howie J

44. I agree with Stuiddert J

Spigleman CJ

1. On 25 August 2006 the appellant was found guilty after trial by jury of one charge of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. At the trial there was no dispute that the complainant had been sexually assaulted. The only matter in dispute was whether or not the appellant was the offender.

2. There is only one ground of appeal as follows:

“The trial miscarried by reason of the learned trial judge failing to direct the jury in relation to the dangers of identification evidence as required by s 116 of the Evidence Act 1995.”

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6. The evidence at trial by the complainant was that she had been sexually assaulted by a person who had been introduced to her by the name of “Adam”. Her evidence was that the offender went into the house with her and assaulted her there. She ran out after the assault distressed and crying. She described the person but did not identify him. She was never asked to identify the person by the procedure of a photographic array or by an identification parade or in court.

7. Critical evidence in the case against the appellant came from witnesses who said that it was he who went into the house with the complainant and who emerged from the house at about the same time as her. The Crown contends that each of those witnesses knew the appellant by name. One of the witnesses said that he had introduced the appellant to the complainant by the name of “Adam”, although he knew it was not his name.

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19. The Crown submissions assert that evidence by a person who knows the accused well is not “identification evidence” within the statutory definition. Such evidence is often called “recognition evidence”.

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22. This approach is consistent with how each judgment construed s 116 in Dhanhoa. I refer particularly to the reliance on the adversary system as a significant part of the context, qualifying a strict literal application of the words. (See Dhanhoa at [20], [22], [53].)

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30. Generally speaking, recognition evidence will be more reliable than identification evidence strictly so called. For example, the displacement effect and the rogues gallery effect would not appear to be material. That is not, however, sufficient to exclude it from the Dictionary definition and from s 116 as a category. Section 116 does not turn on any issue of reliability (cf s 165).

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50. In the present case, the evidence about the appellant’s entry into, and departure from, the house during the course of the party did not require a direction. First, like the evidence of the introduction discussed above, this is indirect evidence of ‘presence’ and s 116 is concerned with direct evidence. Secondly, his presence “at or about” the time of the offence was not in issue.

Hulme J

53. I agree with Spigelman CJ.

Latham J

54. I agree with Spigelman CJ.

Allsop P

1. I agree with Kirby J.

Kirby J

2. Jamie Wayne Lee Aslett (the appellant) was tried before a jury in the District Court at Parramatta in respect of four charges, each said to have been committed on 29 May 2006…

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3. Mr Aslett pleaded not guilty to each count. After a short trial, the jury returned a verdict of guilty in respect of all charges. On 8 May 2008, the appellant was sentenced to an aggregate term of 8 years 6 months with a non parole period of 6 years. The earliest date upon which Mr Aslett will be eligible for parole is 9 November 2013.

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15. Once released, the complainant went to a Thai restaurant which was nearby and made a 000 call. The call was made at 11.20 pm and was recorded. As she spoke to the operator, she looked through her purse and discovered a photo identity card. The recorded conversation was in these terms: (Exhibit C)

“XIAN: He even left his licence here with me.

Operator: You’re joking. Does it look like him?

XIAN: I didn’t see him but the name is Jamie Wayne Lee, it’s a photo card.”

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18. The security guard from the Tollgate Hotel was called to give evidence. Indeed, it was his evidence which is said to give rise to the errors which are the subject of this appeal. When giving evidence, he made an in-court identification, which I will shortly describe. Before going to that evidence, I should refer to an aspect of the police investigation, which is relevant to the security guard’s testimony.

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29. The conviction appeal identified two grounds as follows:

Ground 1: The trial miscarried owing to the failure of the Judge to discharge the jury on the application of trial counsel following the in-court identification by Mr Bozkent, the security guard, of the appellant whilst he was in the dock.

Ground 2: The trial Judge erred in failing to give adequate directions in relation to the identification evidence.

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36. When the security guard was called, he gave an answer, identifying the accused who was then in the dock. The transcript is as follows: (T 26: 5.11.07)

“Q. And while talking to those men, trying to calm them down, did you notice anything or any one approaching?

A. Just this gentleman behind you was coming up to the pub and – “

37. Counsel for the appellant, in the absence of the jury, made an immediate application for a discharge. He referred to the in-court identification and said this: (T 31: 5.11.07)

“... In my submission it can’t be overcome by any directions and so what we have before the jury is a witness, a very crucial Crown witness, purporting to identify this man in court.”

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42. His Honour ruled that he would not discharge. He did not provide reasons. The jury was brought back. No direction was given concerning the in-court identification. Rather, counsel for Mr Aslett was then invited to cross examine.

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49. Was the evidence admissible? Absent compliance with the conditions of s 114(2) of the Evidence Act 1995 (which required an identification parade subject to certain exceptions, which were not demonstrated), the evidence was not admissible (R v Taufua (unreported, NSWCCA, 11.11.96) (Priestley AP, James and Barr JJ); R v Tahere [1999] NSWCCA 170, per Spigelman CJ at para [32]). The evidence was not led by the Crown. It was volunteered by the security guard. However, when considering the discharge application which immediately followed, it was not recognised that the evidence was inadmissible.

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57. I believe that the jury should have been discharged. I would find error. The evidence was inadmissible. It had little probative value. It was highly prejudicial. It went to the heart of the matter in contest, namely the identity of Mr Aslett. The evidence changed the entire complexion of the case from a circumstantial case to a case with direct evidence of Mr Aslett’s involvement. There was, I believe, the risk of a substantial miscarriage of justice unless the jury was discharged.

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67. His Honour then gave what may be termed “general directions on identification”, warning that it may be unreliable, such that special caution was required. He added that such a warning was given in every case where identification was disputed (SU 18). His Honour then said this in relation to the in-court identification of the accused: (SU 18)

“In the context of the identification of this accused by Mr Bozkent in court however, you were asked to take into account the fact that he did not recognise him from photographs taken in the identification process only a short time after the offences. You can also take into account the fact that when an accused is sitting in the dock, as he was at the time of that identification, certain assumptions might be made on the part of the person identifying them, merely because he is sitting in the dock.”

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74. Finally, and contrary to the submission made by the Crown in address, the in-court identification was of no value on the issue of identification. It was to be contrasted with an identification parade, which is the usual means by which identification evidence is introduced. In R v Adamson (unreported, NSWCCA, 26.11.92), Gleeson CJ said this, referring to identification parades: (at 3)

“... in an ordinary identification parade, steps are taken to ensure that the suspect does not stand out from the group in which he is placed. The persons involved in the parade should so far as possible consist of persons who resemble the suspect in height, general appearance and position in life. ...”

Johnson J

82. I agree with Kirby J.