Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up - False claim by accused to police that his car which was at scene of crime, had been stolen from him - requirement for direction as to lies - omission of such direction - no substantial miscarriage of justice

• provisio to s.353(l) Criminal Law Consolidation Act applied.

Evidence - admissibility and relevancy - Admissibility of selection by witness of photograph of accused as person similar to participant in the crime (a) where witness confirms the selection of Court and (b) where the witness does not so confirm. Alexander v R [1981] HCA 17; (1980) 145 CLR 395 discussed - dictum of Mason J a pp.432-3 applied; R v Barbaro and Ors (1993) 67 A Crim R 456 and R v Sutton (1990) 159 LSJS 96, applied. R v Birkby [1993] NZCA 188; (1994) 2 NZLR 38, not followed.

Solicitors for appellant: P R Dixon and Associates

JUDGE1 KING CJ This is an appeal against a conviction by verdict of a jury in the District Court of the crime of robbery in company.

In the early afternoon of Friday 17th February 1989 two employees of a company called Bramalco which carried on business at Pooraka, namely Stella Sparrow and Jim Lindner, went to the ANZ Bank branch on the corner of Main North Road and Baker Street Enfield. Ms Sparrow was the payroll clerk and she withdrew the sum of $7,476 for the purpose of the weekly pay. She placed the money in a calico bag and the two employees began to walk back to the car which was parked in Baker Street. Lindner's ten year old daughter Christine was in the car. As they walked along the side street towards the car, two men seized them. There was a struggle between Lindner and the two men. The two men seized the calico bag and entered a silver Holden Gemini motorcar. The registered number was SBC873. Lindner entered his car and followed the Gemini for a short distance. He then stopped and alerted police.

Ms Sparrow, Jim and Christine Lindner and another customer who saw something of the robbery namely George Mareitis, were subsequently shown photographs and slides by the police. Ms Sparrow viewed the slides by means of a projector. She looked at one set of twelve slides which did not include the appellant but included a slide of his brother. She also inspected another set of twelve slides in which slide number seven was of the appellant. When Ms Sparrow got to slide number seven she indicated that the person depicted in it looked familiar and was similar to a man who had been seated on the steps of the bank when she entered the bank. Lindner was shown the same slides and he picked out slide number seven in the second set as a person who could have been one of those involved in the robbery. Christine Lindner viewed the same slides. Detective Smalbil who showed them to her gave evidence that she selected the same slide and "said was similar to the person in the robbery and she was about 6 out of 10 sure that that was the person, or one of the persons." In her evidence in court, Christine Lindner could not remember whether she recognised any of the men in the slides. Mr Mareitis was unable to recognise any of the persons in the slides.

The Gemini motorcar was registered in the name of the appellant and the address was shown as 14 Clapton Street Elizabeth. On the 17th and 18th February Detective Smalbil and another officer visited that house but the appellant was not at home. On the first occasion they spoke to the appellant's mother and on the second occasion to his father. They left a calling card. On the 19th February the appellant spoke to Detective Smalbil on the telephone. The detective told the appellant that they had to see him in relation to the robbery and asked him to see them. He replied: "Yeah, my dad told me what it was about. I don't know anything about it. I'll tell you that now. My car was stolen. I'll come and see you but I want my solicitor there."

He said that his car "was knocked off from the Elizabeth Railway Station on Friday morning." He admitted ownership of the Gemini and said that it was still missing. He refused to say where he was. On the following day a message was left for the detective and no further contact was made by the appellant. Attempts to locate him by the police were unsuccessful. A warrant was issued and the appellant was arrested in August 1993.

On the day following the telephone conversation with the detective, the appellant called at Midland Motors at Blair Athol. He was accompanied by another man. The appellant said that he wished to buy a motorcycle and wished to trade in a 1977 silver Gemini car. A security register check disclosed, however, that the Gemini was not free of encumbrance and the deal did not proceeded. On the following day the 21st February, the appellant again called at Midland Motors and purchased a motorcycle for $999. He paid the purchase price in cash.

A man by the name of Leverington gave evidence that he had sold the Gemini to the appellant in December 1988. He also gave evidence that on or about the 25th February 1989, he reached an agreement with the appellant that he would take the car back because it had been discovered that it was encumbered, and would refund the purchase price. The keys of the car were left with the appellant's brother so that the car could be delivered up when Leverington made the payment. A short time later Leverington made the payment. He then obtained the keys and presumably the car. On 28th February, Detective Smalbil and another detective went to an address in Elizabeth Downs and spoke to Leverington and also to the appellant's brother Kevin Murphy. The Gemini car was at that address.

The appellant did not give evidence. It was argued by Miss O'Connor on behalf of the appellant that evidence had been wrongly admitted, that the charge to the jury was defective in that there were misdirections and non-directions, and that the verdict was unsafe and unsatisfactory.

Miss O'Connor argued that the judge erred in admitting the evidence of the selection of the photographic slide by Ms Sparrow, Mr Lindner and Christine Lindner. None of those witnesses purported to identify the person in the slide as a participant in the robbery. They could do no more than indicate that there was a similarity. Miss O'Connor argued that in the absence of a positive identification, the evidence was not probative and was therefore not admissible.

If the evidence of the selection of the photographic slide stood alone and were relied upon as identification evidence sufficient in itself to prove the charge, it might well be inadmissible as lacking in probative value. It could certainly be excluded in the exercise of the judge's discretion. This evidence was not, however, in the true sense identification evidence. None of the witnesses were able to identify the photographic slide of the appellant as that of a participant in the robbery. Nevertheless the evidence did possess, in my opinion, some evidentiary value. The fact that the three persons each selected, independently of one another, one slide out of twenty-four as a person similar in appearance to a participant in the robbery, was some evidence tending to support circumstantial evidence in the case implicating the appellant. In my opinion the evidence was probative and admissible and ought not to have been excluded in the exercise of the discretion. A further point was taken as to the admissibility of the evidence of the detective relating to the selection of the slide by Christine Lindner. The point that was taken was that in her evidence in court she did not verify the selection of the photo. It was argued that in these circumstances that the police officer's evidence as to the out of court selection of the photo was inadmissible. In Alexander v R [1981] HCA 17; (1980) 145 CLR 395, the court was divided as to whether evidence of an out of court identification was admissible where the identifying party did not give evidence of that identification. Of the three judges who expressed an opinion on the point, Gibbs CJ and Murphy J considered that such evidence was not admissible, but Mason J considered that it was. Mason J referred to R v Osbourne (1973) QB 678 and said at pp.432-3: "There, evidence was admitted from a police officer to establish that two witnesses had identified the accused at an identification parade when each witness at the trial was unable to recollect having made such an identification and one of the two witnesses was unable to identify one of the accused at the trial. The Court held that there was no reason in principle why the evidence should not have been admitted. The Court proceeded according to the view, which in my opinion is correct, that the reception of such evidence does not violate the hearsay rule or the best evidence rule. It is the act of identification that is relevantly in issue. An observer of the act may give evidence of it. Obviously the weight to be given to this evidence varies with the circumstances; its worth partly depends upon what is said by the witness who makes the identification. If he denies having made the 'out of court' identification, and gives reasons for departing

from that 'out of court' identification, evidence from a third party that he did so seems to have little value and should be rejected, as it was in Reg v McGuire (1975) 4 WWR 124, not perhaps on the ground that it is not evidence at all, but on the ground that its probative value is so slight as to make it valueless. If, however, as here, the recollection of the identifying witness is hazy through lapse of time, the

evidence of the third party may have value." The brief comment of Aickin J at p.437 may be read as an endorsement in toto of the reasons of Mason J. If that is so, there was an equal division of opinion on the point in the High Court. The case was decided on other grounds and all expressions of opinion on this point were in that sense obiter. The Court of Criminal Appeal of New South Wales in R v Barbaro, Pangallo, Romeo and Rovere (1993) 67 A Crim R 456 adopted the view of Mason J. In R v Sutton (1990) 159 LSJS 96 the identifying witness gave evidence that she identified the accused in a photograph but gave no detail of what occurred at the identification. The detective who showed her the photograph gave evidence of her words and actions at the time of the identification. This Court held that the evidence of the detective was admissible as to the matters to which he deposed because they "were part of the act of identification and part of the material upon which the jury was required to assess the genuineness of the identification and the confidence with which it was made."

If matters surrounding the act of identification can be proved notwithstanding that the identifying witness does not depose to them in court, there appears to be no reason in logic why they cannot be proved even though the identifier does not depose to the identification at all. A contrary view has been taken by the Court of Appeal of New Zealand in R v Birkby [1993] NZCA 188; (1994) 2 NZLR 38, but I think that this Court should adopt the view expressed by Mason J in Alexander's case.

Alexander's case was, of course, a case in which the witness had made an identification. The same principle would appear to apply, however, where, as in the present case, the witness can only speak as to similarity.

For completeness I should mention that, although the learned judge correctly told the jury that this was not an identification case and that it was to be decided upon the circumstantial evidence, he warned the jury against the dangers of identification evidence.

Miss O'Connor argued that the evidence of a salesman at Midland Motors of the purchase by the appellant of the motorcycle for cash was not probative and therefore not admissible. It seems to me, however, that the possession by the appellant of a substantial amount of cash shortly after the robbery has some probative value and is therefore admissible. The probative value may not be high, but it is strengthened by the fact that the appellant did not give evidence explaining the source of his funds.

Miss O'Connor criticised the judge's directions as to circumstantial evidence but I can see no substance in her complaint on that topic. Miss O'Connor further complained about the following direction of the learned judge: "In effect what the Crown is saying that the accused has avoided apprehension and says that you really can infer guilt from that conduct and that's another inference and another area that you have to take concern about. Before you can infer such a consciousness of guilt on the accused's action you must be satisfied that indeed by that absence he intended to flee and not just simply go about his affairs which may necessitate his absence and further that it was really the specific desire to escape the consequences of this charge and perhaps not escape the consequences of other wrongdoings or perhaps problems in his life. For instance, even perhaps being concerned about being wrongly accused of the crime. As I say, the Crown can lead that evidence but it's another matter where they are asking you to draw some inferences and clearly you must take care about that. If you are able on the whole of the evidence to exclude the possibility that there was any other reason for that then of course you may reach that conclusion but if you may well find that there are some matters that have to concern yourself with those deliberations then of course you will naturally take great care before accepting that is the inference to be drawn."

Miss O'Connor argued that there was no evidence that the appellant was avoiding apprehension and that that point should not have been left to the jury. There was evidence that the appellant indicated that he would contact the police but did not do so. No great detail was given of the police enquiries although Detective Smalbil gave evidence that his efforts failed to locate the appellant. The appellant gave no evidence explaining his whereabouts or why he had not carried out his stated intention to contact the police. I think that there was material from which the jury, if it saw fit, could infer that the appellant was making himself scarce.

Miss O'Connor complained about what she said was a misdirection of fact. After a period of deliberation the jury returned with a question: "Did the policeman in his description at the identification say that Kevin Murphy's (Tony's brother's) slide was in the set of slides viewed?"

His Honor discussed the question with counsel in the absence of the jury. During the discussion Detective Smalbil who was in the body of the court interposed "And the slide was of Colin Murphy, not Kevin Murphy." That interposition was not, of course, part of the evidence and could not be conveyed to the jury. When the jury returned His Honor read to them the relevant question and answer occurring during the detective's evidence. That included the statement that in the first set of twelve slides "there was also a slide of the accused's brother." His Honor added to the jury "The name of Anthony's brother was not mentioned but it is simply said in the first twelve there was a photograph of Anthony's brother." His Honor left the matter there. Miss O'Connor argued that His Honor should have stressed to the jury that they should not assume that the brother mentioned was Kevin Murphy. It might have been better if His Honor had done that. I cannot see, however, that it could possibly make any difference. There was nothing in the evidence in the case to suggest that Kevin Murphy was in any way involved in the robbery and the presence or absence of his photograph amongst the slides inspected could have no bearing on the case. His Honor's final word to the jury before they retired to consider their verdict was as follows: "If you accept what the Crown have said you will convict the accused. If you have a doubt about this man, whether he was involved, then clearly you have to exercise that doubt in favour of the accused."

Miss O'Connor contended that that amounted to a direction that if the jury accepted the truth of what the witnesses to the prosecution said, they must necessarily convict. He pointed out that as this was a circumstantial case, there remained the question whether the circumstantial evidence proved the charge beyond reasonable doubt or whether there was not rather a reasonable hypothesis open on the evidence which was consistent with innocence. I do not think that the jury would have understood the words complained of in the sense for which Miss O'Connor contended. His Honor had given clear and impeccable directions as to the onus of proof and as to how it applies in the case of circumstantial evidence. In the passage just quoted he was merely encapsulating the two sides of the case as a final word to the jury. The expression "what the Crown have said" would have been understood by the jury, as it was doubtless intended, as meaning the contention of the Crown that the circumstantial evidence proved the case beyond reasonable doubt.

Miss O'Connor argued that the summing up was fatally flawed by the omission of any direction as to the use which the jury could make of the appellant's false claim that the Gemini motorcar was stolen on the morning of the robbery. It is clear that that claim was a lie. He did not report the theft. He was still in possession of the car four days after the robbery when he sought to trade it in. He was still in possession of it a few days later when he restored it to his brother to complete the deal with Leverington. It was at the Elizabeth Downs address a few days later still when the police spoke to Leverington and Kevin Murphy.

The lie told by the appellant was a significant part of the circumstantial case presented by the prosecution and its significance had to be evaluated by the jury. In those circumstances, there was a need for the direction by the learned trial judge as to the circumstances in which a lie might be regarded as probative of guilt. Unfortunately there was no such direction. The learned judge, in the course of the summing up, referred in passing to the appellant's claim that the car was stolen and to the evidence of the prosecution that there was no report of such a theft. He did not, however, refer to the statement as a lie and did not engage in any discussion as to the use which the jury might make of it. The learned judge ought to have directed the jury that they could regard that lie as indicative of guilt only if they considered that the lie had been told because the appellant could not account for the presence of the Gemini at the scene of the robbery in a way which was consistent with his innocence or, to put it another way, that he told a lie out of a consciousness of guilt; Edwards v R [1993] HCA 63; (1993) 117 ALR 600. The failure to give this direction was undoubtedly a serious defect in the summing up.

As will appear from what I have said above, I am of opinion that all points raised on this appeal must fail except the complaint as to the failure of the judge to give an appropriate direction as to the significance of the appellant's lie concerning the theft of the car. A serious question therefore arises as to whether that failure has resulted in a substantial miscarriage of justice. There can be no doubt that the lie was a significant part of the case for the prosecution. On the other hand, it must have been obvious to the jury that the lie could only be inculpatory if it were told because the appellant feared the truth. It is difficult to imagine what explanation of the lie, consistent with the appellant's innocence, could exist. The appellant gave no evidence, and the jury would have had to speculate without the benefit of evidence as to what innocent explanation there might be. I do not think that, in the circumstances, the jury was called upon to do that. The obvious explanation of such a lie was that the appellant could not truthfully explain how his car came to be at the scene of the robbery without incriminating himself. In the absence of some evidence of an innocent explanation, there was no alternative for the jury to consider. Despite the importance of the topic and the complete omission of an appropriate direction, I have reached the conclusion that the proviso to s.353(1) of the Criminal Law Consolidation Act ought to be applied.

It is unnecessary to discuss in detail the submission that the verdict was unsafe and unsatisfactory. In my opinion there was a strong circumstantial case against the appellant and in the absence of evidence from the appellant explaining the incriminating circumstances, the verdict was virtually inevitable.

JUDGE2 PRIOR J I agree with the reasons published by the Chief Justice. The appeal should be dismissed.

JUDGE3 PERRY J In my opinion, this appeal should be dismissed. I am in substantial agreement with the reasons published by His Honour the Chief Justice. I would wish only to add some observations as to the evidence of the selection by the witnesses of the photographic slide of the appellant.

In my view, whether such evidence is described simply as circumstantial evidence or not, it is no less a species of identification evidence than evidence positively identifying the subject.

All such evidence is opinion evidence. A witness who states positively that he or she identifies the accused from a photo or slide is only offering an opinion in emphatic terms. The circumstances may suggest that the witness is in reality only reaching a conclusion having regard to points of similarity between the photo or slide and the subject. That conclusion may, depending on the circumstances, be less safe and accordingly of less probative value than an opinion by a witness that he or she is almost sure that the person depicted is the accused.

Skilled, trained observers may express themselves carefully in terms of degrees of certainty: an unskilled, perhaps unreliable lay witness may assert positive identification without qualification in circumstances which suggest that the evidence should be regarded with caution.

However such evidence is given, and however it is expressed, whether as positive evidence of identification or as an opinion as to similarities, it is for the jury to assess the probative value of the evidence in the context of the evidence as a whole. The trial Judge's discretion to exclude such evidence applies equally to both forms of expression. So-called evidence of positive identification may be excluded if inherently unreliable or lacking in probative value, whereas evidence of similarities may be highly probative and less likely to be excluded in the exercise of the discretion.

In this case, I agree with His Honour the Chief Justice that the evidence in question was both probative and admissible. There was no reason for its exclusion on any discretionary ground.