Ground 1: Refusal of application to discharge.
32 The Crown opened the case before the jury, describing the events of that evening. The assumption was made that Mr Aslett was in the back seat and his companion was the driver. That, no doubt, was a reasonable assumption on the material then available, since the security guard had seen the driver and had then not identified Mr Aslett when shown his photograph. The prosecutor said this: (T 7: 5.11.07)
"... the Crown says that one of the persons got into the driver's seat and another one, the accused, got into the rear seat. There is various demands for the money and phone and she was searched."
33 The Crown then provided the jury with an outline of the case against Mr Aslett in respect of the aggravated indecent assault, again describing the actions of the person in the back seat, not those of the driver: (T 7: 5.11.07)
"The Crown says that while the accused was searching her the accused ran his hands over the complainant's buttocks and breasts ... "
34 The Crown later added these words, again describing the actions of the person in the back seat: (T 7: 5.11.07)
"At one stage the Crown says the accused placed his hands over the complainant's eyes and nose and she could feel material on his hands and the Crown says that that's indicative that the accused in the back seat was wearing gloves and the Crown says that is important because there was forensic or scientific examination of the car and no fingerprints were found."
35 According to the Crown, only the driver left the vehicle. The back seat passenger remained with the victim.
36 When the security guard was called, he gave an answer, identifying the accused who was then in the dock. The transcript is as follows: (T 26: 5.11.07)
"Q. And while talking to those men, trying to calm them down, did you notice anything or any one approaching?
A. Just this gentleman behind you was coming up to the pub and - "
37 Counsel for the appellant, in the absence of the jury, made an immediate application for a discharge. He referred to the in-court identification and said this: (T 31: 5.11.07)
"... In my submission it can't be overcome by any directions and so what we have before the jury is a witness, a very crucial Crown witness, purporting to identify this man in court."
38 The debate on the discharge then began. It included the following exchange: (T 31/32: 5.11.07)
"HIS HONOUR: I might be a bit confused but isn't it your case that the accused was in the back of the car and remained in the back of the car throughout.
CROWN PROSECUTOR: No, our case is the accused is the driver your Honour. There's something I have to correct on my opening but --
HIS HONOUR: Well then I was totally confused.
CROWN PROSECUTOR: That was based on your Honour that I said the person groped her, sorry touched her breasts and buttocks and that turned out to be the person in the passenger seat. But your Honour I'll have to correct that in front of the jury ..."
39 His Honour repeated that he was confused because he thought "it was the other way round". The Crown prosecutor then said this: (T 32: 5.11.07)
"I think I may have gotten myself confused when the witness herself said that she was touched on the breasts and buttocks by the person sitting next to her ..."
40 But the Crown, wrongly, wished to take full advantage of the identification. He said this: (T 32: 5.11.07)
"CROWN PROSECUTOR: ... Well your Honour it's very interesting in fact had he picked the photo, the person from the photo identification array, your Honour would have had to have warned the jury about the fact that photos are only two dimensional, that mistakes are made. He comes back into court and sees the person in full 3D. It wasn't a line-up, it was a photo array, just not enough and it's a matter for the jury in the end what they make of the fact that when looking at photos he couldn't pick someone but when he saw him alive and in the flesh he was able to say - "
41 Counsel for the accused then responded in these terms: (T 33: 5.11.07)
"WILLIAMS: -- cases such as Alexander and the long line of cases warn of in court identification, particularly your Honour where there has been a lack of identification at another time.
HIS HONOUR: I would have thought it helped you.
WILLIAMS: In my submission it doesn't. Because a witness sitting here and saying the man sitting behind you Mr Crown is the -"
42 His Honour ruled that he would not discharge. He did not provide reasons. The jury was brought back. No direction was given concerning the in-court identification. Rather, counsel for Mr Aslett was then invited to cross examine.
43 On this appeal, attention was drawn to Crofts v The Queen (1996) 186 CLR 427, where Toohey, Gaudron, Gummow and Kirby JJ identified the issue on an application for discharge in these terms: (at 440/441)
"... No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event tht occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? ..."
44 In Qoro v Regina [2008] NSWCCA 220, Johnson J (Giles JA and Hall J agreeing) summarised the issue in these words:
"29. The failure to discharge a jury is not a ground of appeal in itself. The appeal is against conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question on appeal is whether there was such a high degree of necessity for the jury's discharge on 7 September 2006 that the failure to order such a discharge has resulted in a mistrial... Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. This Court must decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice: Crofts v The Queen at 441."
45 These statements of principle assume that reasons have been given by the trial Judge for his or her refusal to discharge. That is plainly desirable, either at the time of the ruling or soon thereafter.
46 Here there were no reasons. One must go to the transcript to determine what the trial Judge's reasons were. The Crown, in its submissions, encapsulated those reasons, as they emerged from the transcript, in these words: (CS: para [20])
"... It can readily be inferred from the remarks of his Honour that he concluded the evidence was relevant, admissible and there was little danger of unfair prejudice to the appellant, indeed, quite the opposite. ..."
47 Assuming that to be a sufficient statement of his Honour's reasons, it may be said at once that the evidence was certainly relevant. The only issue in the trial was the issue of identity. The security guard, in the evidence which provoked the discharge application, identified Mr Aslett as the person who sought entry to the hotel, a red Ford Mondeo vehicle waiting in the carpark.
48 In Crofts v The Queen, the Court drew attention to the "seriousness of the occurrence in the context of the contested issue", when referring to the matter which provoked the discharge application. Here, the in-court identification was plainly serious. Indeed, it transformed the Crown case. The case opened, and the case Mr Aslett expected to meet, was a circumstantial case. The Crown sought to draw the inference that Mr Aslett was involved in these offences from a combination of circumstances. On paper, the security guard appeared to be a witness who assisted Mr Aslett. He had been shown a good photograph of him five weeks after the incident, yet he failed to identify him. He also provided a description of the person he dealt with to the police. That description, in some respects, did not match Mr Aslett, as I will later describe. Once the security guard identified Mr Aslett in court, the Crown case appeared immeasurably stronger. He became a witness unmistakably adverse to Mr Aslett, as his counsel recognised. The suggestion by his Honour that his evidence "helped Mr Aslett" was, with respect, clearly wrong. Certainly there was a contradiction in his evidence. However, the contradiction was between his expected evidence, where he was not able to identify Mr Aslett from photographs, and his evidence in court, where he said he could, having seen him in the flesh.
49 Was the evidence admissible? Absent compliance with the conditions of s 114(2) of the Evidence Act 1995 (which required an identification parade subject to certain exceptions, which were not demonstrated), the evidence was not admissible (R v Taufua (unreported, NSWCCA, 11.11.96) (Priestley AP, James and Barr JJ); R v Tahere [1999] NSWCCA 170, per Spigelman CJ at para [32]). The evidence was not led by the Crown. It was volunteered by the security guard. However, when considering the discharge application which immediately followed, it was not recognised that the evidence was inadmissible.
50 The Crown suggested that it could be inferred that his Honour saw "little danger of unfair prejudice to the appellant, indeed the opposite". Unfair prejudice, in this context, meant prejudice arising from the likelihood that the jurors may give the evidence more weight than it deserved, or that it may divert the jurors from their task (Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, per McHugh J at 609, para [51]).
51 The dangers of identification evidence are well known. They were described in Domican v The Queen [1991-1992] 173 CLR 555 in the following terms by Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ: (at 561)
"... the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue."
52 In-court identification has been recognised as presenting danger in an acute form. In Davies & Cody v The King [1937] 57 CLR 170, the Court (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ) said this: (at 182)
"Similarly, if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question ."
(emphasis added)
53 In Alexander v The Queen [1980-1981] 145 CLR 395, Mason J made the following comment: (at 426/7)
"... Traditionally it has been accepted that a witness identifies the accused at the trial as the person whom he observed at the scene of, or in connection with, the crime. This 'in court' identification, sometimes described as primary evidence, is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial circumstances conspire to compel the witness to identify the accused in the dock . ..."
(emphasis added)
54 Gleeson CJ, in Festa v The Queen (supra), made the following statement, although he recognised that there was no absolute rule that such evidence must be rejected: (at 399)
"18. Of all forms of identification evidence, one of the most notoriously dangerous is in-court identification, which is usually performed in circumstances that strongly suggest the answer that is ultimately given. Even here, however, there is no absolute rule requiring rejection of such evidence; and there may be circumstances in which it is appropriate to allow it. ..."
55 The security guard did not know the appellant. He was not identifying someone with whom he was familiar. He had been shown an array of photographs by the police some time before he gave evidence, which included a photograph of Mr Aslett. There existed, in these circumstances, the danger described as "the displacement effect". In Alexander v The Queen, Stephen J said this: (at 409)
"... there is the 'displacement' effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting."
56 The trial Judge, in determining that the matter should proceed, did not advert to these issues or recognise the prejudice associated with them. If the trial were to proceed, it was important that the jury be immediately told that the in-court identification was of no value on the identification issue (as the witness must inevitably point out the person who is on trial), that being a direction suggested by the bench book. It was also important that such a direction should be repeated and emphasised in the summing up. However, no such directions were given.
57 I believe that the jury should have been discharged. I would find error. The evidence was inadmissible. It had little probative value. It was highly prejudicial. It went to the heart of the matter in contest, namely the identity of Mr Aslett. The evidence changed the entire complexion of the case from a circumstantial case to a case with direct evidence of Mr Aslett's involvement. There was, I believe, the risk of a substantial miscarriage of justice unless the jury was discharged.
58 The trial had just begun. The security guard gave evidence on the first day. There was little inconvenience in starting again. Further, the Crown case, as described during the debate on the discharge application, was a different case from that opened. Indeed, it appears that the change occurred opportunistically, once the security guard made his in-court identification, as the Crown recognised the advantages arising from it. The trial Judge said that he was confused. The Crown acknowledged error in his opening. It was most unsatisfactory. It was also unfair. The change by the Crown added to the risk of miscarriage and the need for a discharge.
59 The Crown, on this appeal, relied upon the proviso in the event of error. It is useful to consider Ground 2 and the course of the trial when dealing with the issue of whether the accused lost the chance of an acquittal fairly open to him.