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[2004] WASCA 61
Court of Appeal (WA)
2004-04-02
Miller J, Wheeler J, Heenan J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : AL-HASHIMI -v- THE QUEEN [2004] WASCA 61
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law and procedure - Evidence - Dock identification - Admissibility of - Adequacy of trial Judge's directions in relation to - Similar fact evidence - Admissibility of - Directions in relation to
Migration Act 1958 (Cth), s 233(1)(a)
Respondent : Commonwealth Director of Public Prosecutions
Cita and Lamaha v The Queen [2001] WASCA 5; (2001) 120 A Crim R 307
Collard v The Queen [2000] WASCA 417
Demeter v R [1995] 2 Qd R 626
Grbic v Pitkethly [1992] FCA 451; (1992) 38 FCR 95
Jamal v R [2000] FCA 1195; (2001) 182 ALR 307
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
Mundarra Doolan Smith v R [2001] HCA 50; (2001) 206 CLR 650
R v Ampi Hungan [2000] NTSC 84
R v Boyle (1987) 34 A Crim R 202
R v Britten (1988) 51 SASR 567
R v Gee [2000] NSWCCA 198; (2000) 113 A Crim R 376
R v Hennessy [2001] NSWCCA 36
R v Kadem [2002] WASCA 133; (2002) 129 A Crim R 304
R v Kirby [2000] NSWCCA 330
R v Oancea (1990) 51 A Crim R 141
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Smith [1999] NSWCCA 317; (1999) 47 NSWLR 419
Roser v The Queen (2001) 24 WAR 254
Rutu & Ladjilu v Dalla Costa [1997] NTSC 81; (1997) 139 FLR 265
Winning v The Queen [2003] WASCA 245
1 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Miller J. I agree with those reasons and have nothing to add.
2 MILLER J: The appellant was convicted in the District Court at Perth on 26 March 2003 of an offence contrary to the provisions of s 233(1)(a) of the Migration Act 1958, commonly referred to as "people smuggling". The terms of the count of which the appellant was convicted were:
"Between 21 November 2000 and 16 December 2000 at Kuala Lumpur in the Republic of Malaysia, Sabah Mohammed Hashem AL-HASHIMY took part in the coming to Australia of a non-citizen, namely Sardar Qadir SALEH, under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of the Migration Act 1958, contrary to paragraph 233(1)(a) of the said Act."
3 This count was one of four counts on an indictment faced by the appellant. Each count was in similar terms but related to the alleged "people smuggling" of different persons on or between different dates. On two counts the appellant was found not guilty by direction and on one, not guilty by verdict of the jury.
4 From his conviction on the second count on the indictment the appellant originally appealed on five grounds. At the hearing those grounds were reduced to three as follows:
"1. The learned trial Judge erred at law in permitting the dock identification of the Applicant to be made by the witness SALEH.
2. The learned trial Judge erred in her direction relating to the use of dock identifications by the jury.
3. ...
4 The learned trial Judge erred in law in permitting the evidence of Memar, Arkawasi and Dartash to be used as similar fact evidence.
5. ..."
5 In relation to the count upon which the appellant was convicted, the learned trial Judge allowed one Saleh, the person alleged to have been assisted by the appellant in entering Australia, to identify the appellant by means of a dock identification. Before this was done, an extensive voir dire took place in which Saleh's evidence of identification was thoroughly tested and at the conclusion of which the learned trial Judge ruled that evidence of dock identification was admissible.
6 However, the learned trial Judge made her ruling a provisional one, making the following statement:
"It may well be, at the end of the day, if the effect of the witness's evidence is only to the effect that he thinks that Abu Haidar is the accused, that that is not sufficiently probative to allow the matter to go to the jury but as I said, at this stage I will exercise my discretion to allow the crown to call the evidence so that matter can be properly the subject of evidence before the jury."
7 I would only say that a "provisional" ruling such as this creates a potential problem. If the learned trial Judge allowed the evidence to go to the jury and then decided against its admissibility, the trial would presumably have required to be aborted. The proper course in my view was for the learned trial Judge to rule the evidence admissible or not admissible.
8 As it happened, the evidence given by Saleh at the voir dire and before the jury transpired to be almost exactly the same.
9 Although at the hearing of the appeal counsel for the appellant concentrated on the evidence given at the voir dire, it is more appropriate to look at what evidence was given at trial when considering its admissibility.
10 Saleh began his evidence by testifying that he was a Kurd from Iraq. He had contacted a smuggler named Abu Ibrahim in Iraq who organised paperwork for him to get to Iran and eventually to Australia. For this he paid Ibrahim $3500. A passport was made up for him in Iran (an Iraqi passport) and thereafter Saleh flew from Teheran airport in Iran to Malaysia, arriving at Kuala Lumpur on 21 November 2000. There he met a man who stated that he was Abu Haidar - although this name was not given by the man until the day after they had met.
11 Saleh testified that when he met Abu Haidar at Kuala Lumpur airport, Haidar asked him "are you the person come from Saide Mahdi", to which he replied "yes". It was daylight at the time and Haidar and Saleh left the airport together.
12 When Saleh was asked what "line of sight" he had of Haidar (a question clearly based upon the judgment in R v Turnbull [1977] 1 QB 224) Saleh said:
"What was the quality of your line of sight of him? --- I cannot exactly describe what he is look like then because is more than 2 years now.
MOEN, MR: Could I get that repeated? I just missed that, your Honour.
PLUMMER, MR: If you could repeat that answer please? --- I cannot exactly describe because it's more than 2 years now.
What's your - how close was he to you when you met him? --- He was the front of me like now.
Did anything get in the way of you looking at him? --- No.
How well do you remember this man? --- 45 years old and he's look like a family man.
How well do you remember him, Mr Saleh? I remember him very well and I recognise him now. --- Of course I remember him because he come three or four time to us and I pay him money.
Why do you remember how tall was he, Mr Saleh? --- Roughly - is not very tall, 170, 75, something like that.
What language did you speak to him in? --- A little bit Arabic.
What did his face look like? --- Like Arabic face and he missing some hair.
Anything else, Mr Saleh? --- A bit fat. His hair is two colours, it's got a bit of white in it, and he wearing glasses.
What do you mean by 'a bit of white'? --- You know when a person get a bit old, he get a bit of a white colour, bluey."
13 Saleh testified that he was taken by Haidar from the airport in a landcruiser. At the time Saleh was in the back seat of the vehicle and Haidar in the front. He was asked what he saw of Haidar during the journey and said:
"During the journey could you see Abu Haidar? --- No, only just. I can see him from the back.
How long did that journey take? --- Roughly 1 and a half hours to 2 hours.
How many times did you see Abu Haidar's face during that car trip? --- I did not see full of his face, only I saw one side of his face because he did not turn the whole face."
14 Upon arrival at Kuala Lumpur, Saleh was taken to a villa where Haidar lived. He stayed with Haidar and his family consisting of a wife and two children. He gave a full description of these children.
15 Saleh said that the day after his arrival Haidar came to him and told him that he would be going to Indonesia, that the way would be safe and that he would have to provide $1000 to Haidar. He was told that he would be taken to Indonesia by boat and that the journey would be three or four hours. This conversation was said to have lasted between 10 and 15 minutes and at a time when it was dark. As to the identification of Haidar, Saleh said:
"During this conversation how far was Abu Haidar from you? --- There is roughly of course another five or six people between us. It's nearly 2 metres.
How well could you see him on this occasion? --- Of course I see him 100 per cent."
16 There was a further conversation between Saleh and Haidar on the night upon which the journey occurred. This conversation was said to have taken seven to eight minutes and was inside a house where it was light. As to his identification of Haidar, Saleh said:
"How close were you to Abu Haidar? --- Of course inside in one room, nearly 2 metre.
How good was your line of sight to him? --- Opposite him exactly."
17 Saleh testified that he then left Malaysia and travelled to Indonesia. He summed up his sightings of and discussions with Haidar as follows:
"How many times in total in Malaysia did you see Mr Abu Haidar? --- Three or four time completely, full.
I beg your pardon? --- three, four time I saw him completely, in full.
How many other occasions when you didn't see him completely in full? --- Only I think that time when he picked us up from airport I just saw one of his face, not completely.
How well do you remember this man, Mr Saleh? --- I remember him well. I remember him.
Why is that? --- Because I saw him."
18 After the learned trial Judge had ruled that a dock identification could be made by Saleh, the following evidence was given:
"PLUMMER, MR: Mr Saleh, you've been giving evidence about a person you know as Abu Haidar Would you recognise the man if you saw him again? --- Yes.
Why do you say you would recognise him? --- Because I saw him before three or four time.
Do you see Mr Abu Haidar today? --- Yes.
Where have you seen him today? --- Inside the court.
Where inside the court, Mr Saleh? --- It's over there, that side.
So where are you indicating, Mr Saleh? --- It's over there.
Mr Saleh is indicating the accused man.
Why do you say that is Abu Haidar, Mr Saleh? --- Because I saw him first in Malaysia when he organise my paperwork.
How sure are you, Mr Saleh? --- I'm completely sure it's Abu Haidar."
19 There was extensive cross-examination of Saleh on his identification of the appellant as being one and the same as the man Abu Haidar. In particular, he was cross-examined about the fact that at a preliminary hearing he had said that he was 70 per cent sure that the man in the dock was Abu Haidar. He accepted that he had said this but elaborated upon it in the following way:
"You chose the words 70 per cent, didn't you? Yes, or no? --- Yes.
Why are you now 100 per cent sure? --- Of Course, now is the five, six time I have been seeing him how and last time I saw him - this time I see him. Of course this time I will say it's him.
...
So what's changed in your view that this person is Abu Haidar to be 100 per cent? What's changed? --- From the last time I saw him in the court on 3 September and this time as well and three times before I saw him, it be collect for as altogether and now I'm really sure is him.
Why didn't you say that on the last time, that you were really sure it's him? --- Last time is a bit different to this time.
Why is last time a bit different to this time? It was closer to the time you saw Abu Haidar? --- I never been in court in my life. Of course between the time I saw him in court might made something different or whatever. They are smugglers. No-one can understand them."
20 This answer highlights one of the well-recognised problems with dock identification. The compounding effect of a witness seeing the accused person in the dock on prior occasions is generally recognised as creating the problem that the witness will more readily identify the person in the dock: see Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 at 181 - 182; Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 399.
21 There was other cross-examination in relation to Saleh's ability to recognise the person with whom he dealt in Malaysia. Saleh's memory of the man whom he met was extensively tested. It is unnecessary to quote passages from the cross-examination but it was firmly put to Saleh that the person in the dock was not in fact the person to whom he had been introduced as Abu Haidar and that Abu Haidar was a different person altogether.
22 When evidence is given by a witness identifying an accused as the person whom he saw at the scene of a crime or in circumstances connected with a crime, that evidence will be of very little value if the witness has not seen the accused since the events in question, or is asked to identify him for the first time in the dock. Dock identification is therefore often regarded as the least satisfactory form of identification evidence. It was put by Gibbs CJ in Alexander v The Queen (supra) at 399 as follows:
"Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused. The reasons for this were explained in Davies and Cody v The King. In particular there is the danger that the witness will too readily come to believe, without any true recollection, that the man charged is the man whom he had previously seen, particularly if his own memory has become dim and there is some resemblance between the two men. The courts in England and Australia have long recognized the danger of acting upon evidence of identification made in those circumstances. It has accordingly become established practice for a witness to be asked to identify the accused at the earliest possible opportunity after the event and for evidence to be given of that act of identification."
23 However, there is a sharp distinction between cases in which identification of an accused person is made by way of dock identification where the witness saw the accused person only fleetingly at the scene of the crime or in circumstances connected with the crime, and in circumstances where the accused person is someone who is known to the witness. In the latter case, the evidence is not evidence of identification but of recognition.
24 In R v Kelly [2002] WASCA 134; (2002) 129 A Crim R 363, McKechnie J (although dissenting in relation to the ultimate question whether identification evidence was of sufficient strength to sustain a conviction), set out the distinction between the two. His Honour said at 371 - 372:
"Introduction
Identification evidence has troubled courts for more than a century because identification evidence often appears cogent and is generally given by a witness who is creditworthy and thus often persuasive. This can make the evidence dangerous because a believable witness may nevertheless be honestly mistaken.
A number of special rules have been developed dealing with different aspects of the problems arising from identification evidence. It is important to remember that the rules deal with different aspects. Each case must be examined in the light of the particular issue with while it is concerned.
Issues in identification evidence
In dealing with identification evidence at trial, and also its subsequent examination on appeal, it is important to isolate the particular issue or issues raised in the evidence. Different issues have given rise to different rules.
(a) Initial observation at the crime scene
Brief observation by stranger
Brief observation of a suspect at a crime scene who is a stranger to the observer: This evidence is generally admissible as part of the circumstances surrounding the alleged criminal transaction even if the observer is unable to positively identify the suspect on a later occasion. The witness may give evidence of matters of similarity or dissimilarity between the suspect and the accused person. The exercise of a judicial discretion to exclude the evidence is enlivened. However, generally, the evidence is regarded as probative and admissible.
Observation of a suspect who is known to the observer
This is not evidence of identification but of recognition.
Recognition and identification
There is a difference between recognition and identification. A suspect known to a witness may be recognised by that witness at a place which, for convenience, I will refer to as the crime scene. While examination is undertaken by the court as to the circumstances under which the recognition at the crime scene was made - sometimes very similar to issues of identification - other problems associated with identification are absent. The witness had had a prior opportunity to be familiar with the suspect.
Identification occurs when the witness does not know or recognise the suspect who is observed by the witness at the crime scene. In these circumstances there is a later opportunity to see the suspect and for the witness to compare the features of the suspect on that later occasion with their (the witness') recollection of the person they observed at the crime scene.
This evidence is generally admissible. The conditions surrounding the observations at the crime scene may bear on the reliability of the evidence and may require a judge to give both general and specific warnings to the jury on the dangers of recognition.
Good circumstances of observation of a suspect by a stranger
Where an observer has a good opportunity to observe the suspect at a crime scene, the evidence is generally admissible, subject to a warning by a judge to a jury as to general and particular dangers in observation of the actions of strangers."
25 In the present case, Saleh's evidence was not evidence of brief observation of a suspect at a crime scene. Nor was it evidence of observation of a suspect known to the observer in the sense of a history of a relationship between the two persons. Saleh's evidence was closer to that of an observer who had a good opportunity to observe the suspect (the appellant) in the course of a number of meetings between Saleh and the suspect in Kuala Lumpur.
26 McKechnie J went on to deal with the preferred circumstances in which identification might be made. His Honour said (at 372 - 373):
"(b) The subsequent identification
The reliability of the identification
This includes questions as to the time elapsed between the actual observation and subsequent identification and the effect the time might have had on the observer's ability to accurately bring the features of the suspect to mind.
If the initial observation was short and the time elapsed was long, the judicial discretion to exclude the evidence may be enlivened. In any event, a trial judge is bound to direct a jury as to general and particular matters which may affect the identification.
The reliability of the identification of the suspect from a group
A properly conducted identity parade probably gives rise to the most confidence in an identification. A dock identification gives rise to the least. In between are a variety of identification methods which have received judicial consideration, including identification in a crowd, such as at a train station or shopping centre, identification outside or close to a court which the suspect may be attending, video recorded identification, photoboard identification, identification where the suspect is in company with police officers, identification where the suspect is alone, subsequent identification after the observer's prior exposure to news items on television, newspapers, photographs or artist's impressions, or photoboards.
Some of these methods when employed in a particular case may produce a result so lacking in probative value as to be inadmissible. Alternatively, the probative value may be so slight as to enliven the judicial discretion. Where there is some probative value in the evidence, however, the evidence is generally admissible."
I respectfully adopt McKechnie J's formulation of the relevant issues in relation to identification evidence.
27 In the present case, the evidence given by Saleh was that he had seen the accused person on a number of occasions. Although he knew him by a different name, he had no reservations in identifying him in the dock as the person whom he had met in Kuala Lumpur and with whom he dealt in relation to his travel to Australia. It was certainly not a case of fleeting observation of a suspect at a crime scene and later identification of that suspect in the dock. It was closer to the case described by McKechnie J as "good circumstances of observation of a suspect by a stranger". That is, Saleh had a number of meetings with the person whom he recognised in the dock as Abu Haidar and, notwithstanding the contentions of counsel for the appellant, had, in my view, ample opportunity to become familiar with his appearance. His identification of the appellant in the dock as one and the same as Abu Haidar, came some two years after the event and was questionable to the extent that he had previously described his identification of him at a preliminary hearing as a 70 per cent certainty. This contrasted with that of 100 per cent certainty at trial. However, the circumstances put the identification into a different category from that which generally renders dock identification so suspect.
28 The learned trial Judge ruled the evidence to be of probative value and thus admissible. She declined to exercise the discretion she had to exclude the evidence on the basis that it was prejudicial to and/or unfair to the accused.
29 In my view, the learned trial Judge was correct to conclude that the evidence of Saleh was probative and therefore admissible. Further, I am of the opinion that it cannot be said that her Honour erred, in the exercise of her discretion, to decline to exclude the evidence on the grounds of its prejudice, unfairness or unreliability. I am therefore of the view that the first ground of appeal cannot be made out.
30 The directions required of a trial Judge in a case in which the central issue is identification are well established. They were set out by the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 561 - 562 as follows:
"... 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 given in criminal trials where identification is a significant issue.
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 p551; 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-Crassac (1985) 1 NSWLR 381, at p 384; Reg v Finn (1988) 34 A Crim R 425, at pp 435-436). But it must be cogent and effective (Reg v Dickson [1983] VicRp 19; [1983] 1 VR 227 at p 230; Reid (Junior) v The Queen [19990] 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; Reg v Allen (1984) 16 A Crim R 441 at pp 444-45.) 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 at p 588.) A warning in general terms is insufficient (Kelleher v The Queen (supra). The attention of the jury 'should be drawn to any weaknesses in the identification evidence' (Kelleher v The Queen (supra)). 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."
31 It is important to note from this passage that the High Court stressed the need for a trial Judge to isolate and identify for the benefit of the jury any matter of significance which might reasonably be regarded as undermining the reliability of the identification evidence and to do so with "the authority of the Judge's office" behind it.
32 The basic submission made by counsel for the appellant in this case is that the learned trial Judge's directions to the jury failed to sufficiently emphasise the weakness of the identification evidence and failed to isolate and identify matters of significance which could reasonably be regarded as undermining the reliability of that evidence.
33 However, in my view, a careful reading of the learned trial Judge's directions to the jury on the subject of identification, which encompassed many pages of transcript, demonstrate this submission to be incorrect.
34 The learned trial Judge began by warning the jury of the danger of convicting an accused person on the basis of disputed identification evidence and the reasons why that was so. Her Honour was no doubt conscious of the decision in R v Harrison (1987) 29 A Crim R 213, where Franklyn J stressed that the guidelines set out by the Court of Appeal (UK) in R v Turnbull (supra) (at 228) are applicable to trials in the State of Western Australia where identification is in issue and the Crown case depends wholly or substantially upon the identification by a person or persons who are strangers to or only casual acquaintances of the person identified. (My emphasis). His Honour pointed out (at 227) that although only guidelines, the Turnbull guidelines "highlight the areas of danger out of which a miscarriage might occur".
35 It seems to me that a careful reading of her Honour's directions to the jury reveal that her Honour followed the guidelines which, in R v Harrison, Franklyn J (at 227) summarised as follows:
"(1) The trial judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications.
(2) He should instruct the jury as to the reason for the need for such a warning and make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can be mistaken.
(3) He should direct the jury to closely examine the circumstances in which the identification by each witness came about, including such matters as whether the witness had seen the accused before and discrepancies in appearance between the description given and the accused's actual appearance.
(4) He should remind the jury of any specific weaknesses in the identification evidence.
(5) He should take care in directing the jury as to the support for an identification which may be derived from the rejection of an alibi.
(6) He should tell the jury that the absence of the accused from the witness-box cannot provide evidence of anything, although they may take into account in assessing the quality of the identification evidence that it was uncontradicted by evidence from the accused himself."
36 In the present case, as I have already mentioned, the learned trial Judge in this case began her directions with the warning contained in the first guideline. She told the jury that there was a danger in convicting the accused on the basis of disputed identification evidence and accordingly, there was a special need for caution before doing so.
37 Her Honour then went on to give a direction in accordance with the second guideline, pointing out the need for the warning and stressing the fact that a mistaken witness can be a convincing one.
38 Her Honour then directed the jury in accordance with the third guideline, pointing out that the accused had been identified by way of dock identification, not only by the witness Saleh but by a number of other witnesses. Her Honour contrasted dock identification with identification by identification parade or even photoboard identification, and stressed that dock identification was regarded as the least reliable. Her Honour highlighted the reasons why this is so and in this respect, complied with the fourth guideline. Her Honour pointed out three specific weaknesses in the dock identification:
(1) When the witness identified the accused there was only one male of middle eastern appearance in the courtroom and thus the identification did not test the ability of the witness to identify the accused from a range of similar looking people.
(2) Because the accused was sitting in the dock there was a natural tendency, if not compulsion, for a witness to identify the offender as the person who was sitting in that position.
(3) The dock identification was held after the witnesses had seen the accused at some earlier time and there might well be a natural tendency to replace the image of the offender (the person they knew as Abu Haidar) with the image of the accused as they had seen him in the dock on a previous occasion.
39 Her Honour then went on to stress the shortcomings in the identification evidence of Saleh by reason of the fact that he had on a previous occasion stated that he was only 70 per cent sure that the accused was the offender, whereas when in Court he said that he was 100 per cent sure that he was the offender. As her Honour pointed out, one of the reasons why he said he had changed in this respect was because he had seen him on earlier occasions in Court.
40 Her Honour then stressed that the jury should look at the identification by each witness separately and they might find one more reliable than another. She gave a direction that a defective identification cannot support another defective identification saying, "Two wrong identifications do not make a right one".
41 Her Honour then went on to deal with the relevance of similar fact evidence to identity and I shall come to this later.
42 Other matters relative to identification were the subject of her Honour's direction. They included a comparison of identification by dock identification with that of identification parade. There was reference to the fact that careful consideration had to be given to the circumstances in which the identifications were made by each of the witnesses called by the Crown who identified the accused, with particular reference to the circumstances in which each of those witnesses had come to observe Abu Haidar at the time of the events in Kuala Lumpur.
43 Her Honour then indicated to the jury that she would draw to their attention some of the issues relating to the number and extent of the observations that each witness said they had of the person they knew as Abu Haidar. She went through the testimony of Saleh and pointed out the circumstances in which Saleh had come to observe Abu Haidar in considerable detail. She then turned to other witnesses who had been called by the Crown as witnesses of "similar fact" and who had also identified the accused person as the person they met and knew as Abu Haidar in Kuala Lumpur. They were Memar Arkawazi and Dartash and in relation to each of these persons clear and positive directions were given by the learned trial Judge were given as to the circumstances in which the meetings occurred and any shortcomings that existed in relation to them.
44 After making short reference to the rival positions of the Crown and the defence on the issue, her Honour reverted again to the question of the time lapse that had occurred since the identifications made by the witnesses had taken place. She pointed out that all initial identifications were made late in the year 2000, apart from that of Al Mosawi who said that he had met the accused person in February/March 2001 and Dartash, who said he had seen him once in Indonesia. Her Honour then drew to the attention of the jury matters raised by the defence as going to the shortcomings in identification made by each of the witnesses, and concluded her directions on the question of identification by saying:
"So, members of the jury, that is all that I wish to say in relation to the issue of identification and you may rely upon the identifications of the crown witnesses but before you do so you must have regard to the warnings I have given you about the dangers of relying upon such evidence."
45 The end result of her Honour's directions was, in my view, that there had been compliance with the Turnbull guidelines (the fifth and sixth of those guidelines being irrelevant), and sufficient isolation and identification for the benefit of the jury of matters of significance which might reasonably be regarded as undermining the reliability of the identification evidence. Further, the direction had, on any view of it, the authority of the Judge's office behind it. In this sense the learned trial Judge's directions comply with the requirements set out in the passage in Domican v The Queen, to which I have previously referred.
46 Counsel for the appellant identified a number of areas in which it was contended the learned trial Judge had failed to sufficiently emphasise the weakness of the identification evidence. They were:
(a) Failure to explain sufficiently Saleh's certainty of identification jumping from 70 per cent to 100 per cent.
In my view there is no substance in this contention, as the learned trial Judge dealt with this point clearly and unambiguously.
(b) Failure to point out to the jury that the witness Memar had only seen the applicant once since the transactions in Malaysia, that occasion being at the preliminary hearing.
It was apparent from the learned trial Judge's directions to the jury that Memar, who said he had had approximately five meetings with Abu Haidar, had not seen him again until he saw him at the preliminary hearing in Perth.
(c) Failure to refer the jury generally to the identification witness of the other witnesses without pointing out any weaknesses in that evidence.
Her Honour traversed the evidence of each of the witnesses other than Saleh and pointed out issues for the jury which might lead them to question the reliability of that evidence. Specific reference was made to the number of occasions upon which the meetings had occurred, where they had occurred, for what period of time they had occurred, and (in the case of Dartash) there was specific reference to vagueness on his part in relation to the number of times that he contended he had seen the appellant.
(d) Failure to isolate matters of significance which might be regarded as undermining reliability of the identification evidence and in particular,
(i) evidence of witnesses about another people-smuggler called Abu Haidar in Malaysia;
(ii) failure of witnesses to notice a mole on the applicant's right ear;
(iii) the possibility that witnesses were basing their descriptions of Abu Haidar on the appearance of the accused in Court.
47 In my view, none of these complaints have merit. There was clear evidence that there was another Abu Haidar in Malaysia who was engaged in people-smuggling, but the evidence established that this person was undoubtedly a person different in identity from the appellant. Indeed, in the appellant's own testimony, he admitted that there was another Abu Haidar who was Iraqi with a slight Lebanese accent, whereas the appellant himself had an Iraqi accent. The appellant admitted that the other Abu Haidar was a heavy smoker, whereas he was not. The appellant admitted that the other Abu Haidar had said nothing about having any children in Malaysia. It was, in my view, unnecessary for the learned trial Judge to suggest to the jury that failure to notice a mole on the applicant's right ear was of any significance. This issue was raised with the appellant in cross-examination and it appears from the transcript that a person looking front on at the appellant would not see any mole in his ear. Nothing in my view turns on this small detail.
48 Finally, I can see no basis for the criticism of the learned trial Judge's directions on the basis that she failed to say the witnesses were basing their descriptions of Abu Haidar on the appearance of the accused in Court. Her Honour gave a quite adequate direction about the dangers of dock identification generally, including the problem of a natural tendency to replace the image of the offender seen earlier with the person seen in the dock.
49 The only suggestion I would make for improvement of the learned trial Judge's directions to the jury on the subject of identification evidence in this case is that her Honour might more clearly have specified where it was that she was herself isolating and identifying, for the benefit of the jury, matters of significance which might reasonably be regarded as undermining the reliability of the identification evidence.
50 It would, in my view, be advisable for a trial Judge to state to the jury words to the following effect:
"Members of the jury, I have summarised for you the evidence of each of the witnesses on the issue of identification. I have also summarised for you the submissions of the Crown and defence respectively in relation to strengths and/or shortcomings in relation to that evidence.
It is, however, essential that I should myself isolate and identify for you matters of significance which you might regard as undermining the reliability of the identification evidence. In this respect, what I say to you is my own view of the evidence. It is, of course, entirely for you to consider what I have to say, weigh it up and reach your own view in relation to the matter. However, it is because of the problems associated with identification evidence and the special need for caution to be taken by a jury before convicting the accused in reliance on the correctness of identification evidence, that I independently direct you of weaknesses which I think the identification evidence reveals."
51 However, for the reasons that I have given I consider that in the present case the learned trial Judge's directions to the jury on the subject of identification evidence were quite adequate and I can see no substance in the second ground of appeal.
52 In this case the learned trial Judge allowed the prosecution to call similar fact evidence. It was evidence from the three witnesses Memar, Arkawazi and Dartash of identification of the appellant as the person whom they had met in Malaysia in the course of a people-smuggling operation which led to their transit from Iran to Malaysia to Indonesia, and on to Australia in a similar manner to that of the witness Saleh.
53 The detail of the identification evidence in relation to each of the witnesses was as follows:
"Mr Memar, the person you know as Abu Haidar, can you see that person in this room? --- Yes.
I beg your pardon? You said yes? --- Yes.
Where is that person? --- He is sitting over there with the tie and suit and he wearing glasses.
Thank you. For the transcript Mr Memar has indicated the accused man. Now, Mr Memar, why do you say that? Why do you say that man is Abu Haidar? --- Because I know him. I remember his face completely.
How confident are you, Mr Memar? --- Very confident.
Why are you confident, Mr Memar? --- Because my brain is telling me."
"PLUMMER, MR: Mr Arkawazi, where is the person you say is Abu Haidar? --- Can I point at him?
JENKINS DCJ: Yes, you can.
PLUMMER, MR: Mr Arkawazi is indicating the accused man. How sure are you, Mr Arkawazi? --- Because I saw him and I met him, I know."
"The person you know as Abu Haidar, Mr Dartash, do you see him today? --- Yes.
Where, Mr Dartash? --- There beside that man, wearing glasses.
For the transcript, your Honour, Mr Dartash is identifying the accused man.
Yes? --- Is it okay if I put my hand up?
Yes? --- That guy over there, he wearing tie there, black pants under the jacket and glasses.
Thank you. Your Honour, Mr Dartash has described the clothes worn by the accused man.
Mr Dartash, how sure are you that that is the Abu Haidar you dealt with in Malaysia? --- I saw him 10 to 12 time. We talked about life, he talked about God, we talked about the travelling, we talked about family, we talk. How come, if you have a friend 10, 15 days see him, of course. I recognise himself. To us he is a good friend that I will have no trust."
54 It is important to note that this evidence was led without objection from the defence. It was the subject of discussion before her Honour in the absence of the jury when the Crown prosecutor made it clear that it would be part of the prosecution case and no objection was taken to it by counsel for the accused.
55 When the Crown prosecutor opened the case there were then four counts faced by the accused and as the prosecutor put it, effectively four trials running together. The prosecutor told the jury that it would be suggested to them that they could take into account the evidence of each of the four complainants, the subject of each of the four counts, in relation to each individual count by reason of (the fact that) "the similarities in their stories disclose that (the appellant) was involved in a course of business, that being the business of people smuggling".
56 In Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, Mason CJ, Deane and Dawson JJ (at 482 - 483) set out the circumstances in which similar fact evidence (disputed as it was here) might be relevant to prove the commission of the acts charged. Their Honours said:
"Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged (Boardman [1975] AC at pp 452, 458-459; Sutton (1984) 152 CLR at pp 556-557; Hoch (1988) 165 CLR at p 295). The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused (Hoch (1988) 165 CLR at p 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984) 152 CLR at p 564). See also Harriman (1989) 167 CLR at p 602). Here 'rational' must be taken to mean 'reasonable' (see Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at p 634; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at p 252) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle."
57 As no objection was raised in this case to the admission of the similar fact evidence, the learned trial Judge was not called upon to question whether the probative force of the evidence outweighed its prejudicial effect. However, the question arises by reason of the fourth ground of appeal. Notwithstanding the fact that no objection was taken to the admission of the evidence at trial, if the admission of the evidence constituted a miscarriage of justice, it would be necessary to allow the appeal on that ground: see Gipp v The Queen (1998) 194 CLR 106 per Gaudron J at [18].
58 It is often said that the criterion for the admissibility of similar fact evidence is the strength of its probative force and that the strength lies in the fact that the evidence reveals striking similarities with the case against the accused person. In Pfennig v The Queen, Mason CJ, Deane and Dawson JJ referred to this aspect (at 482) in the following way:
"(In Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294) Mason CJ, Wilson and Gaudron JJ said:
'Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force ... That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.'
This passage should not be understood as asserting that 'striking similarities' or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case."
"Acceptance of the statement of principles stated above means that striking similarity, underlying unity and the other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics."
59 A case in which similar fact evidence involved evidence of identification of the accused was Tweedie v The Queen [2003] WASCA 282. There, similar fact evidence was led from a number of complainants to the effect that the accused person had, at a particular beach in Rockingham, indecently assaulted one or other of the complainants and as time went on, committed a number of sexual offences of increasing seriousness, including indecent assaults and sexual penetration of a number of different women in the beach front at Coogee, Hamilton Hill, Warnbro and Waikiki. It was contended that there was a similarity in the facts in that each of the indecent assaults or sexual penetrations occurred on or near the beach, in each case the women were alone on the beach at the time and in each case they were grabbed from behind by a person who, in most cases, they had not seen. Two of them, however, indicated that they might have seen the person who later attacked them. In each case the complainant described the attacker as naked, although in one case the perpetrator was said to be wearing a beanie at the time of the offence. The Crown thus submitted that bearing in mind that there were a number of complainants, the descriptions of the attacker in each case in terms of such things as weight, height and other descriptors, were remarkably similar. The case was different from the present case in the sense that none of the complainants was able to identify the accused person as the perpetrator and thus no positive identification was made.
60 Malcolm CJ, Murray and Wheeler JJ considered that the evidence of similar fact in the case was compelling and the learned trial Judge was entirely correct in admitting the similar fact evidence by reason of the fact that any prejudice to the accused person was far outweighed by the probative value of the items of identification evidence, in the context of the similar fact evidence.
61 A useful discussion of the difficulties posed by the use of similar fact evidence where there is an issue as to the identity of the accused, is contained in "Cross on Evidence" (J D Heydon) (6th Australian ed) at [21180] as follows:
"The difficulties posed by the use of similar fact evidence where there is an issue as to the identity of the accused have led the English Court of Appeal to make the following general statement (R v McGranaghan [1995] 1 Cr App R 559 at 573 (CA)):
if a defendant is charged with two offences and the circumstances and features of the offences are said to be so similar that evidence of one offence is admissible in support of the identification of the defendant as the perpetrator of the second offence, the jury should be directed to consider first whether, disregarding the similarity of the facts, the other evidence is sufficient to make them sure that the defendant committed offence number one. Only if they are so sure is evidence of similarity admissible to prove that the defendant committed offence number two. An identification about which the jury are not sure cannot support another identification of which they are also not sure however similar the facts of the two offences may be. The similar facts go to show that the same man committed both offences not that the defendant was that man. There must be some evidence to make the jury sure that on at least one offence the defendant was that man.
This passage, which is redolent of the much-criticised 'rules' against mutual corroboration, appears, if sound, to create a special regime for identification evidence. But the present is not the only field in which that is true. The passage has since been said to be relevant to the question whether 'in deciding that the defendant committed offence A the jury can have regard to evidence that he also committed offence B. This involves proof not only of similarity, but that the defendant did in fact commit offence B' (R v Downey [1995] 1 Cr App R 547 at 552 (CA)). A different question is 'whether identifications of the appellant by several victims can be used cumulatively once the jury is satisfied that other evidence shows all the offences to have been committed by one man', and it is capable of being answered 'Yes', even though, taken alone, the evidence of each identification falls short of proving that the person identified was the defendant in each instance (R v Barnswell [1995] 2 Cr App R 491 at 497 (CA), applying R v Downey [1995] 1 Cr App R 547 at 552 (CA). R v Downey was preferred to R v McGranaghan in R v Grant [1996] 2 Cr App R 272 (CA)). The English Court of Appeal has since denied that there is any special rule in this field for identification evidence."
62 The decision in Tweedie v The Queen (supra) makes it clear that at least in this State there is no special rule in the field of similar fact evidence relating to identification evidence.
63 The similar fact evidence led in the present case did contain elements of "striking similarity and underlying unity". This striking similarity or underlying unity was outlined by the Crown prosecutor in submissions made to the learned trial Judge prior to addresses to the jury. The prosecutor highlighted these factors:
(1) All witnesses met and dealt with a person by the name of Abu Haidar in Kuala Lumpur, Malaysia, and in each case they were either taken to or met at their accommodation by Abu Haidar.
(2) All witnesses were sent by boat from Malaysia to Indonesia and apart from Memar, who was initially to be sent to New Zealand, onwards to Australia.
(3) In Indonesia each of the witnesses was to be met by another person who would then take him to Australia.
(4) All witnesses, except Al Mosawi, described Abu Haidar as having a wife and three children and of a particular physical description.
(5) In most cases, the witnesses paid money to Abu Haidar who spoke in Arabic or Farsi, a middle-eastern language.
64 The prosecutor went on to describe in detail the evidence to be given by each of the witnesses of the description of Abu Haidar and of the meetings and arrangements that were made.
65 At the conclusion of the Crown case, counsel for the accused made a submission that there was no case to answer on any of the counts then on the indictment. That submission was successful in relation to two of the counts, but that left counts (2) and (4) outstanding. As I have already pointed out, there was a verdict of acquittal in relation to count (4).
66 In the course of her Honour's reasons in relation to the no-case submission, she noted the similar fact evidence, pointing out that in consideration of the no-case submission it was necessary to look at the similar fact evidence upon which the Crown relied. Her Honour said:
"It seems to me to be inherent in (the defence) submission that it's acknowledged that taken at its highest that evidence is capable of constituting evidence that could prove that the similarities between the experiences of the other witnesses with the person they knew as Abu Haidar the similarities between the experiences of Mr Al Mosawi and Mr Saleh are so striking that the offences could not be the work of two different people ie the offender must be the same person.
I note in this respect that there are three other witnesses who were called, that is Dartash, Arkawazi and Memar who have each identified the accused as being the person they knew as Abu Haidar. And it seems to me that must also be the case because that evidence was led without objection which also tends to show that the accused acknowledged that that evidence taken at its highest was relevant for the purposes of proving that the similarities were so striking that the offences could not be the work of two different people.
Mr Plummer has addressed me about those similarities and I am not going to repeat them. Certainly by the time the case gets to the jury it is going to be necessary for the similarities and the evidence given in respect of each witness to be identified with much more particularity, but nonetheless I do accept that taken at its highest at least some of the matters that Mr Plummer spoke of are sufficient to show that the similarities between the transactions are so striking that they could not have arisen by coincidence and that they demonstrate that they are the work of the same person.
That evidence therefore is evidence that can go to prove the identification of the offender in respect to counts 2 and 4."
67 Counsel for the appellant submits that the learned trial Judge erred in allowing the similar fact evidence to go before the jury. It was submitted that evidence of the transactions given by the witnesses Memar, Akarwazi and Dartash were not so strikingly similar as to justify the admission of that evidence for five main reasons:
"(1) although all witnesses were going to Malaysia from Iran, their initial contact with people smugglers and the information they are initially given is quite different;
(2) the amount of money paid varies widely. AL MOSAWI gives no evidence of money being paid; MEMAR refers to a substantial amount of money being paid, $9,700 (AB 212). SALEH refers to $1,000 being paid (AB310); ARKAWASI refers to $2,000 (AB 464); AL-JEBORI refers to paying $600 (AB 483);
(3) the places and circumstances of the various witnesses' accommodation in Malaysia varied widely;
(4) although all witnesses went from Malaysia to Indonesia by boat, their routes to their departure points and their routes to Indonesia varied widely;
(5) the names of the other persons involved varies widely - SALEH describes HASHAN AYOUB assisting the Applicant; AL MOSAWI describes SAIDE MEHDI; DARTASH describes HUSSEIN."
68 I am unable to accept that these matters told against the admissibility of the similar fact evidence. It seems to me that it was inevitable in the scheme of things that the people smuggling operation would vary in some detail from case to case. For example, in relation to the first submission made, there was likely to be different information given to the different witnesses by different persons in the people smuggling operation. Likewise, in relation to the second submission, the amount of money paid by each of the respective witnesses was likely to differ according to their means and with whom they dealt. The fact that the witnesses had different accommodation in Malaysia and went from Malaysia to Indonesia by different points of departure and via different routes, and that there were different assistants to Abu Haidar, are hardly surprising. In any criminal venture the modus operandi is hardly likely to be identical. That would only increase the risk of detection.
69 I can therefore see nothing in the submissions made on behalf of the appellant that there was a lack of striking similarity or underlying unity in the evidence of the witnesses called as to similar fact. Indeed, to the contrary, I am of the view that that striking similarity and underlying unity was present in each case.
70 It is finally submitted by counsel for the appellant that it was wrong for the learned trial Judge to rely upon consistencies in the description of the various witnesses of Abu Haidar in deciding whether or not to admit the similar fact evidence. I do not understand this submission. It is the very fact of striking similarity or underlying unity in the description of the person with whom the witness has dealt and the circumstances in which they came to deal with him which, in my view, justified the admission of the evidence.
71 Although no challenge was taken to the directions given by the learned trial Judge on similar fact evidence, I should say that the directions given were entirely appropriate in every respect. In particular, her Honour stressed that it was for the jury to decide whether or not there were features which were so strikingly similar in relation to each case that the evidence could be relied upon. The jury was told that in considering that course they should have regard to all of the evidence concerning each particular charge and consider the dissimilarities between the transaction, as well as the similarities. Her Honour reviewed the common features of the evidence of the witnesses relied upon by the Crown and gave a very strong direction that before the jury could consider how the evidence of similar fact might be used to convict the accused on one of the counts on the indictment, the jury must ask themselves whether they were satisfied beyond reasonable doubt that the evidence was true and reliable and not concocted or fabricated or merely mistaken. If not satisfied that it was truly reliable, they should proceed no further in the use of their evidence in their deliberations.
72 I am unable to accept that the evidence in relation to similar fact evidence was improperly admitted. In my view it was admissible and I can see no basis upon which the learned trial Judge should, in the exercise
of her discretion, have excluded it as unduly prejudicial or unfair to the accused person.
73 For these reasons I would dismiss all grounds of appeal.
74 EM HEENAN J: I have had the advantage of reading in draft the reasons for decision of Miller J. I agree with his Honour's conclusions that this appeal should be dismissed.
75 I only wish to make some additional observations in relation to the fourth ground of appeal by which the appellant challenges the admission at the trial of similar fact evidence from three witnesses, Memar, Arkawazi and Dartash, that each had dealt with the accused in Malaysia as a people smuggler involved in their attempts to reach Australia. This evidence was tendered and admitted as part of the case for the prosecution to identify the accused, Al-Hashimi, as the people smuggler who committed the offence under s 233(1)(a) of the Migration Act 1958 involving the attempt by Sardar Qadir SALEH to enter Australia which was the subject of the indictment. There was never any suggestion that the dealings of the appellant with those three witnesses constituted any part of the offence for which he was being tried.
76 Importantly, as Miller J has set out, there was no objection at the trial on behalf of the appellant to the admission of that evidence of these three witnesses. The purpose for which the evidence was adduced, and relied upon by the prosecution, was to identify the accused as the person who had committed the crime charged, that is involving the travel to Australia of the non-citizen Saleh, by providing the basis for an inference that the same person who had assisted the three witnesses in their efforts to come to Australia was the person who had assisted Saleh. By positively identifying the person who had assisted those three witnesses in Kuala Lumpur the prosecution asserted that the identity of the person who assisted Saleh was thereby established.
77 On this basis, therefore, the admissibility of the evidence of the three witnesses depended, in my view, upon it being shown that there was a sufficiently probative case to establish that the person who assisted the efforts of the three witnesses to get to Australia in contravention of the Migration Act 1958 was the same person who assisted Saleh on the occasion referred to in the indictment. The prosecution attempted to establish that connection by pointing to several alleged similarities between the efforts to assist the three witnesses by the accused and the efforts of the person with whom Saleh dealt.
78 The reception of that evidence necessarily discloses that the accused was involved in people smuggling activities in Malaysia involving each of those three witnesses of a kind which involved the commission of other offences against s 233(1)(a) of the Migration Act similar to the offence with which he was charged. Therefore, the question of the justification for the admission of this evidence depends on a full appreciation and application of the rules relating to similar fact or propensity evidence as they have developed in many cases since the celebrated dictum of Lord Herschell in Makin v Attorney General for New South Wales [1894] AC 57 at 65 and reviewed in the House of Lords in DPP v Boardman [1975] AC 421. These have been considered in a cluster of recent decisions of the High Court of Australia including Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108; Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580; Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528; Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292; Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590; Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1; Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593.
79 It is only in exceptional circumstances that similar fact or propensity evidence can be adduced because of the danger that a jury or other tribunal of fact may wittingly or unwittingly adopt a process of reasoning leading to the conviction of an accused person on the basis that his or her prior criminal conduct or other unlawful conduct reveals a tendency pointing towards the accused being guilty of the particular offence then being tried. The law insists upon guarding against the prejudicial effect of the disclosure of prior criminal or unlawful conduct by requiring some logically probative connection between that past conduct and the offence charged.
80 One helpful explanation of the policies and principles behind the law relating to this area can be found in the judgment of McHugh J in Festa v The Queen (supra) at 62 where his Honour said:
"The Anglo-Australian law of evidence does not permit a crime to be proved by reference to the criminal or discreditable propensity of the accused except in those rare cases where that propensity has a specific connection with the crime. In Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 485, Mason CJ, Deane and Dawson JJ said that to be admissible propensity evidence 'needs to have a specific connection with the commission of the offence charged'. Later, their Honours said (at 488) that it was necessary 'to find something in the evidence or in its connection with the events giving rise to the offences charged which endows it with a high level or degree of cogency'. Absent evidence of such a connection, the rule is that stated in Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1 at 16 by Dixon CJ:-
'It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused.' "
81 Accordingly, in the present instance where the "similar fact" evidence was adduced for the purpose of identifying the accused as the offender who committed the offence charged in the indictment it is vitally important to examine the use to which the proposed evidence is sought to be put, in order to determine its admissibility. This is especially so in this particular case where the proposed similar fact evidence disclosed not only other offences of the accused but offences of the same kind with which he was charged at his trial. Because of this the risk of the evidence being used by the jury as showing a tendency to commit this particular offence was very real and the risk of prejudice equally so.
82 The prejudicial effect in admitting the evidence from the three witnesses describing the accused's involvement in people smuggling activities with each of them, plainly, is the risk that the jury might reason that because the accused was shown to have been an active people smuggler on some scale in Malaysia when they each met and had dealings with him, he had a predisposition towards people smuggling activities and, for that reason, it could be inferred that he also committed the offence of people smuggling on a different occasion, being the one the subject of the indictment and involving a different person, Mr Saleh. So to reason would, in my view, offend the principles which exclude the admission of general propensity evidence or other similar fact evidence which is based upon the general character of the accused as revealed from other occasions. Consequently, if there is some different justification for the admission of this evidence it becomes a matter of fundamental importance to ensure that the jury was directed that it could not make use of the evidence so adduced to reason towards, or to infer, the guilt of the accused on the basis of that propensity.
83 To be admissible, evidence of this nature must involve some more specific connection with the crime alleged against the accused in the indictment. How this specific connection is to be recognised and its presence or absence determined depends very much on the particular use to which the evidence is to be put and the issues arising at the particular trial. In the present case the prosecution sought to use this "similar fact" evidence to identify the accused as the perpetrator of the crime charged. It attempted to do this by establishing that the accused was the person directly involved in the three other episodes of people smuggling and in which the three witnesses were involved. It can be taken in the present case that this was established on the facts to the requisite standard of proof and it does not appear to have been disputed. However, even if that had been disputed the evidence may be admissible on the basis that, if accepted, it would then lead on to establish the specific connection with the crime charged essential for the admission of that evidence.
84 The next step in the process for determining the admissibility of this evidence is the evaluation of the contention by the prosecution that there were sufficient similarities between the conduct of the accused in dealing with the three witnesses and the commission of the offence charged to render it possible for the jury to conclude, to the requisite degree of proof, that it was the same person who committed all offences thus identifying the accused as the person who committed the offence charged. It is upon this link in the chain of proposed reasoning that the sufficiency of the connection between the evidence sought to be adduced and the crime alleged must be determined.
85 In a note by Mirfield in (1990) 106 LQR 199 entitled " 'Similar Facts' in the High Court of Australia" there is an observation that in the cases in the High Court of Australia since Markby [1978] HCA 29; (1978) 140 CLR 108 there has been a discernable tension between those Judges who take the view that the first part of Lord Herschell's famous statement in Makin [1894] AC 57 at 65 (supra) has unqualified force even after DPP v Boardman [1975] AC 421 and those who do not. According to the author, for the former, the disposition chain or mode of reasoning is forbidden (see Lord Hailsham in Boardman [1975] AC 421 at 453), while, for the latter, it may permissibly be relied upon, but only where the probative value of the evidence in question exceeds its prejudicial effect. In Australia the former view has been expounded by Gibbs CJ in Sutton v The Queen (supra) at 533; by Mason CJ and Dawson J in Thompson [1989] HCA 30; (1989) 169 CLR 1 at 15 - 16. The same approach is taken by McHugh J in Festa (supra). This explains how Toohey, Gaudron and McHugh JJ, in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, held that the evidence of the use of drugs by the accused and the evidence of his prior dealings contained in his letters (being only some of the challenged evidence admitted against him at his trial) should have been excluded. Toohey and McHugh JJ concluded that no substantial miscarriage of justice had occurred by the wrongful admission of that particular evidence.
86 Another approach which also emphasises the need for the evidence disclosing other offences to have a specific connection with the crime alleged, is the emphasis placed in the cases on the need for it to have a high probative standard to justify the admission of such evidence in the exceptional case (see Boardman and Sutton (supra)). In many instances this leads to the adoption of the striking similarity test for the admission of the evidence, although that does not appear to be an indispensable requirement. In Sutton v The Queen (supra) Brennan J said (at 549):
"Striking similarity between the alleged similar fact and the fact to be proved inferentially is a frequent, but not the only, indication of that cogency or probative force which is required if the evidence is to be taken out of the primary exclusionary rule: see Perry (1982) 150 CLR at 586-7, 593, 604-5, 609-10."
"It is not, I think, a case in which any one circumstance common to the various offences was sufficiently striking to eliminate any reasonable possibility of coincidence. Rather it was the accumulation of common circumstances which had that effect. It is, of course, possible to consider each similar fact in the context of other similar facts and conclude that, looked at together, mere coincidence is not a reasonable hypothesis but be unable to reach that conclusion viewing each set of similar facts separately. Despite some suggestions to the contrary in the court below, Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580 did not require each set of similar facts in that case to be regarded separately in order to arrive at their probative value; it was merely that the impugned evidence, even when viewed in the context of other evidence, did not have the required probative force."
Such is the breadth of the application of the rule relating to the admission of similar fact evidence and its potential significance that it is perhaps unhelpful to search for, or to insist upon, rules of general application. This is because so much will depend upon the significance of the particular evidence proffered in an instant case with regard to the issue there in controversy. In DPP v P [1991] 2 AC 447 the House of Lords decided that striking similarity is not absolutely necessary for such evidence to be admissible and that sufficient probative value to outweigh any potential prejudicial effect can exist for other reasons. It had been submitted (for the DPP) that where identity is in issue it is likely that striking similarity of method or circumstance of commission (a "signature") will be required but not so where the issue is whether an offence occurred at all. Lord Mackay of Clashfern LC, speaking for the House, said (at 460) that it is not appropriate to single out "striking similarity" as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another, but that:
"Obviously, in cases where the identity of the offender is in issue, evidence of a character sufficiently special reasonably to identify the perpetrator is required ... "
Lord Mackay acknowledged that similar fact evidence offered to prove identity is of such significance that its probative value could only be established if it were sufficiently special. The Lord Chancellor said [1991] 2 AC at 460 - 461:
"Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle."
This focus on the context of the proposed evidence in any particular trial also means that its probative effect, and hence its admissibility, may depend upon the facts in issue in the particular trial, so that, for example, similar fact evidence may have greater probative value in proving identity than in proving intention so that if identity is admitted the evidence should be excluded - see the illustration by Dawson J in Harriman v The Queen (supra) at 602 and also the situation in R v Yuille [1948] VicLawRp 11; [1948] VLR 41.
87 There are many examples of similar fact evidence being admitted for the purpose of identifying the accused with the crime charged. Many of these cases can be found in a helpful article by R Pattenden, "Similar Fact Evidence and Proof of Identity" (1996) 112 LQR 446. In R v O'Meally [No 2] [1953] VicLawRp 7; [1953] VLR 30, in a trial for murder, evidence which showed that parts of the proceeds of a number of robberies were found at the scene of the murder and that other parts of the proceeds were found in the possession of the accused was held to have been rightly admitted. In R v Straffen [1952] 2 QB 911 it was established that the accused shared a characteristic with the author of the crime, namely strangling little girls in a peculiar fashion.
88 It is, therefore, necessary to apply these principles to the question of admissibility of the similar fact evidence in this case from the three other witnesses who, in the course of other people smuggling operations dealt with the accused in Malaysia believing him to be named Abu Haidar. The similarities between the experiences of these three witnesses, which were said to be so striking as to allow their evidence to be admissible at this trial have been set out fully by Miller J. As his Honour points out, on the no case submission on this issue the learned trial Judge said:
"Mr Plummer has addressed me about those similarities and I am not going to repeat them. Certainly by the time the case gets to the jury it is going to be necessary for the similarities in the evidence given in respect of each witness to be identified with much more particularity, but nonetheless I do accept that taken at its highest at least some of the matters that Mr Plummer spoke of are sufficient to show that the similarities between the transactions are so striking that they could not have arisen by coincidence and that they demonstrate that they are the work of the same person."
89 In this regard it is necessary to recall that the details of the offence alleged against the accused was that he was engaged in assisting persons in Malaysia to make or to attempt to make an entry into Australia contrary to the provisions of the Migration Act at a time when, as is now notorious, there are large numbers of persons ostensibly fleeing Middle Eastern countries, notably Iraq and Iran, seeking eventual entry to Australia or New Zealand.
90 Several of these suggested striking similarities in this case do not seem to me to be so peculiar as would, by themselves, justify the admission of this evidence. In this category I would place the evidence about the witnesses paying money to the person whom they dealt with and the fact that he spoke in Arabic or Farsi. Obviously the services of the people smuggler, whoever he was, must come at a cost and there does not seem to be anything special about the fact that the people smuggler would speak Arabic or Farsi, languages which many, if not most, of people fleeing Iraq or Iran would be expected to speak. Nor does it seem remarkable that the persons who were assisted were sent on by boat from Malaysia to Indonesia. That is simply another step in their journeys towards an obvious destination and the fact that they travelled by boat rather than by air can readily be explained by a desire to avoid close scrutiny by authorities at airports and/or perhaps the absence or shortcomings of travel documents which the emigrants held.
91 Far more significant to my mind, however, is the evidence that each of the witnesses was taken to, or met, at their accommodation by a man giving his name as Abu Haidar and that two of the witnesses described this man as having a wife and three children and being of a particular physical description which, although not precise, matched that of the accused. Further, there was evidence that there was another person active in the trade of people smuggling in Malaysia known as Abu Haidar but that he was a different man and spoke Arabic with a Lebanese accent. Consequently, the evidence as adduced was that the accused, under the name Abu Haidar, assisted the three witnesses in the course of people smuggling operations in Malaysia, that he met them at the airport or at their place of accommodation, that he was not the Abu Haidar in Malaysia who spoke with a Lebanese accent, that he had a wife and three children and that he was the accused. This was at a trial where it was the case for the prosecution that a man in Malaysia under the name of Abu Haidar had met Mr Saleh in Kuala Lumpur, had taken him to his home, that this Abu Haidar had a wife and two children and was also identified by Mr Saleh as the accused.
92 The question is whether the existence of these various similarities is sufficient, either alone or in combination, to justify the admission of the evidence of the three witnesses who described their dealings with the accused under the name Abu Haidar on the other occasions. Initially I had some reservations about this because I do not consider that any one of the alleged features is so "strikingly similar" or special as to justify the reception of the similar fact evidence on that test and, with respect to others who have a contrary opinion, I remain of that view. However, it seems to me that the accumulation of the alleged similarities, but particularly those relating to the personal characteristics of the people smuggler and his domestic associations described by all the witnesses means that, collectively, they show a sufficient degree of probative force to justify admission.
93 The latent and unstated premise behind the production of this evidence, and its reception at the trial, is that it is unlikely that there would be more than one person matching the general description of the accused, and of an appearance leading to his positive identification by all the witnesses, including Saleh, who was living in Kuala Lumpur under the name Abu Haidar, with a wife and two children engaged in the business of assisting for payment persons of middle eastern origin and speaking Arabic and Farsi at about the time when these events occurred. Just how strong such an inference may be and whether it should be drawn or not are plainly questions for the jury after proper direction about the necessary standard of proof and the purpose for which the evidence may be used.
94 I am inclined to regard this evidence as having some probative force and therefore being admissible although the probative force could not be regarded as being particularly strong. Nevertheless, the evidence was probative on the issue of identity and it was for the jury to consider what use could be made of it. The absence of objection to the reception of the evidence is significance because the learned trial Judge was not called upon to consider whether its probative force was outweighed by its prejudicial effect so as to lead to the exclusion of the evidence. The omission to make the objection at the trial does not prevent it now being raised on this appeal nor such a ground being upheld. If this Court were to conclude that there was a significant possibility that an innocent person had been convicted then this Court would be bound to act to set aside a verdict based upon that evidence - M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494 cited by Gaudron J in Gipp v The Queen (1998) 194 CLR 106 at 114.
95 However, I am not persuaded that this evidence was wrongly admitted or that, had objection been taken on the ground that its prejudicial effect would have outweighed its probative value, the evidence should have been excluded. In my view this is a difficult case rather near the borderline but the learned trial Judge was plainly attentive to the tests for the admission of the evidence and there is no reason to conclude that her Honour was unaware of her discretionary power to exclude the evidence if she considered that its prejudicial effect would outweigh its probative value, nor that her Honour was in error in any way in declining to exercise her discretion to exclude that evidence in this case. For this reason I would reject the appellant's fourth ground of appeal.
96 In relation to all other aspects of the case I am in agreement with the reasons for decision of Miller J and, accordingly, I too would dismiss this appeal.
Al-Hashimi
The Queen [2004] WASCA 61
(2002) 209 CLR 339
(1992) 38 FCR 95
(2001) 182 ALR 307
(1936) 55 CLR 367
(2001) 206 CLR 650
(1988) 51 SASR 567
(1999) 199 CLR 270
(1999) 47 NSWLR 419
(2001) 24 WAR 254
(1997) 139 FLR 265
(1937) 57 CLR 170
(1981) 145 CLR 395
(1992) 173 CLR 555
(1974) 131 CLR 534
(1986) 44 SASR 260
(1985) 1 NSWLR 381
(1990) 64 ALJR 588
(1995) 182 CLR 461
(1911) 13 CLR 619
(1963) 110 CLR 234
(1998) 194 CLR 106
(1988) 165 CLR 292
(1978) 140 CLR 108
(1982) 150 CLR 580
(1984) 152 CLR 528
(1989) 167 CLR 590
(1989) 169 CLR 1
(2001) 208 CLR 593
(1961) 106 CLR 1
(1994) 181 CLR 487