Davies & Cody v The Queen [1937] HCA 27; (1973) 57 CLR 170

Deering v The Queen (1986) 43 SASR 252

Hallim v Karger (1985) 42 SASR 126

Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534

Kirkpitkin v The Queen [1995] HCA 30; (1995) 69 ALJR 612

R v Bedford (1986) 28 A Crim R 331

R v Burchielli [1981] VicRp 61; [1981] VR 611

R v Clarke, unreported; Court of Appeal SCt of NSW; VC 9705745; 31 October 1997

R v Penny (1997) 91 A Crim R 288

R v Turnbull [1977] QB 224

Slater v The Queen [2000] WASCA 16

1 KENNEDY J: The applicant and Nathan Simm, on 14 February 2000, were jointly charged that, on 26 March 1999, at Broome, they stole from Frederick Kevin Collings with actual violence money the property of Frederick Kevin Collings and that they were in company with each other and others and that they were at the time armed with an offensive weapon, namely a knife, and that at the time they unlawfully wounded Frederick Kevin Collings. They were also jointly charged that on the same date, and at the same place, they, being in the place of Frederick Kevin Collings without his consent, being a place ordinarily used for human habitation, committed the offence of stealing and that they were in company with each other and others and that they were armed with an offensive weapon, namely a knife, and that they did bodily harm to Frederick Kevin Collings. The applicant and Simm both pleaded not guilty to each count. After a trial before a Judge and jury, each of the accused was convicted on both counts.

2 It was not in dispute that the offences had been committed. The only issue before the jury, so far as the applicant was concerned, came down to whether he was one of the offenders.

3 The evidence of Mr Collings was that, on the evening of 26 March 1999, he and a friend, Ms Martin, were alone in his house. At some stage in the evening, Ms Martin went into the bathroom to have a shower while Mr Collings went to do some work on his computer. A male person, about 5' 10" in height, came into the room where he was working. The intruder looked to be Aboriginal, but not a full-blood Aboriginal. He had a knife in his hand which Mr Collings described as having a wooden handle and a curved blade. The whole knife, he said, was about a foot long and the blade was about 8" in length. It was like a slaughtering knife or a skinning knife. The intruder had a jumper "or something" around his head. He later suggested it could have been a jumper or a windcheater. It came up to the point of his chin, but Mr Collings said that he could see his face "as plain as day". Later in his evidence he said he could see the intruder's face perfectly. He was wearing a lighter coloured shirt and darker pants. He made a demand for money. When Mr Collings told him he was getting nothing, he lunged at Mr Collings and stabbed him with the knife. He was then less than a metre away. At that stage, Mr Collings had been in the process of getting up from his chair. Four more intruders either then, or shortly before this, came into the room. They were all males, but they had a darker skin than the assailant. They were wearing balaclavas or something similar, with slits for their eyes. Mr Collings said that he saw that they had a couple of knives and a baseball bat. Later, he suggested that three or four of the five intruders had knives. However, he said that his assailant was the only person whose face he saw.

4 After he had been stabbed, Mr Collings threw the chair in which he had been sitting at the person who had stabbed him. He said that he never really took his eyes off that person. He was watching him because he had the knife. He then saw Ms Martin coming out of the shower. He picked up a table and rammed the intruders with it. He seized hold of Ms Martin and pushed her back into the bathroom, where he locked the door behind them. After the intruders had ransacked the house they left, taking various items of property from the house with them. In his cross-examination, Mr Collings indicated that the first person to enter the room was the only one of the five to get close enough to stab him. He also said that this person had no facial hair that he could see.

5 The evidence of Ms Martin conflicted to some extent with that of Mr Collings. It was certainly much less consistent than his evidence, but this can often occur when witnesses are endeavouring to recall dramatic events taking place over a short period of time such as occurred here.

6 Ms Martin said that, having heard people yelling for money and Mr Collings saying he didn't have any, she came out of the bathroom to see what all of the commotion was about. She saw Mr Collings and "five coloured guys", whom she thought were Aborigines. They were all wearing dark clothes and balaclavas. None of them had their faces uncovered, as far as she could remember. Two of them were near the front door, one was "sort of" towards her in the lounge area and two were behind him. She described the person who was closest to her as wearing a black T-shirt, black pants and a full-face balaclava. His face was covered to the extent that she could only see his eyes and nose. He was holding a knife, which she thought was a black handled kitchen knife, although she was not sure. She said that he was not much taller than she was, she being about 5' 3" in height. She noticed that two of the other persons each had a knife. She thought one of the knives may have been a fishing knife, and that the other may have been a penknife. The remaining persons could have had knives, but she did not notice them.

7 Ms Martin did not say that she actually saw anyone stabbing Mr Collings. She did refer to someone "attacking [Mr Collings] with a knife", but when she was asked what he actually did, she replied, "He was trying to stab [Mr Collings]". She was not sure whether the one who had been closest to her had been closest to Mr Collings. She was then asked about the manner in which the person said to be attacking Mr Collings was using his knife. Her response to this was, "He was just going for him, going towards him and that's when [Mr Collings] threw the table". Asked whether she saw Mr Collings throw a chair at the person attacking him, she replied that she only remembered his throwing the table. She was then asked again what she saw the person doing. She demonstrated what had happened, describing how he was going towards Mr Collings. When she was asked how close he was to Mr Collings, she replied, "I think he was on the other side of the table. He was trying to get around the table. That's when [Mr Collings] picked the table up and chucked it at them." At that time, she said, all the other people in the room were on the side of the table away from Mr Collings. When she was asked what Mr Collings then did, she said that he had yelled out to her to get back into the bathroom. She went straight back, she said, and added that she was only "kind of in the hallway for half a minute, if that". Mr Collings ran into the bathroom after her. He shut the door behind them and locked it. Ms Martin later climbed out of the bathroom window and telephoned the police. If Mr Collings' evidence was accepted by the jury, she was not in the room or in the hallway at the time of his stabbing. The evidence of Ms Martin and that of Mr Collings obviously differed somewhat in relation to the movements of the intruders around the house.

8 The applicant was subsequently identified by Mr Collings from a photoboard as the person who stabbed him. Detective W S Black's evidence was that he showed Mr Collings the photoboard on 2 April 1999. The photoboard contained photographs of 12 "dark skinned male persons". The board had been compiled by the Police Forensic Imaging Unit in Perth. Prior to showing the board to Mr Collings, he explained the procedure, informing him that the board contained pictures of 12 dark skinned male persons and asked him to look at each photograph individually and to look at all the photographs before making a decision on a particular person. He also informed Mr Collings that the person of interest or suspect may or may not be on the photoboard. He said that Mr Collings looked at the photoboard for approximately a minute or "maybe a little longer" before he said that the person who had stabbed him did not have a moustache at that time. The photoboard showed 12 males with moustaches. Detective Black then told Mr Collings that the photographs were historical photographs, that the facial hair of the persons in the photographs, and, in fact, their general hair, might differ from their present day look and that he was just to pay attention to their actual facial physical features. He then returned the photoboard to Mr Collings who, after looking at it for about another minute, identified the applicant's photograph as being that of the person who stabbed him. In cross-examination he said that when Mr Collings was looking at the photographs before he had been told to ignore the facial hair, he appeared to have been looking at two photographs in particular.

9 Mr Collings' evidence was that he made his identification of the applicant in under a minute. He claimed to have had no doubts whatever about his identification of the applicant.

10 In addition to the photoboard identification, there was evidence of an out of court admission by the applicant which, if accepted, could have placed him in Mr Collings' house when the offences were committed. At the relevant time, the applicant had been staying at the Roebuck Caravan Park in Broome. Shortly after the offences had been committed, a camper approached Mr G T Campbell, the manager of the caravan park, and handed him a cash box of the same colour and shape as that which had been taken from the complainant's premises. The box had been found in the caravan park. A few days later, Mr Campbell spoke to the applicant. The police had recently been to the caravan park and Mr Campbell asked the applicant what they were after him for. He replied, "They're trying to set me up for the bloke who got stabbed". Some days later, the applicant came to the manager's office and told Mr Campbell, "I've been charged with stabbing that bloke but don't worry about your rent". Mr Campbell expressed the hope that the applicant was not involved. The applicant replied, "I didn't do it". After a further brief discussion, the applicant said, "I was there, but I didn't do it". Mr Campbell's evidence was challenged in cross-examination by counsel for the applicant, it being put to him that the last mentioned conversation had never taken place. His response was, "I insist that that conversation - and it's quite clear in my mind because I was concerned about the young fellow". In the circumstances, the learned trial Judge appropriately directed the jury as to the applicant being an accomplice in the alternative to his being the principal offender. Of course, it is not known on which basis the jury found the applicant guilty.

11 Prior to the Crown case being opened, counsel for the applicant made a submission that the photoboard identification should not be admitted, primarily for the reason that the evidence of Mr Collings was that the person he identified on the night in question had no facial hair, but that the applicant's photo had been displayed on a photoboard containing the photographs of 12 young males, all with facial hair, and that Mr Collings had identified the applicant, who was shown in the photoboard with a moustache and a goatee. Presumably, the reference to Mr Collings was a reference either to his deposition or to his statement to the police. A second reason advanced was that Mr Collings had acknowledged that, on the night in question, the person he was identifying had clothing wrapped around his head while Ms Martin, who was in Mr Collings' house on that night, had given quite different descriptions of the persons with knives. A third reason related to the evidence of the police officers who had observed the process and who said Mr Collings had looked at the board for three to three and a half minutes before making his identification.

12 The learned trial Judge declined at that stage to rule the identification evidence inadmissible, but he indicated that it might be appropriate for counsel to renew his application at some later stage in the trial. It was in fact the learned trial Judge who subsequently raised the question of a voir dire during Mr Collings' evidence-in-chief. At the conclusion of the voir dire, his Honour admitted the evidence of identification by means of the photoboard on the ground that its prejudicial value did not outweigh its probative value.

13 The applicant has sought leave to appeal against his conviction on the following grounds:

"1. The learned trial Judge erred in law in admitting evidence of identification by means of a photoboard when the probative value of that evidence was outweighed by the prejudice it produced when there was no valid excuse or explanation for not arranging for an identification parade.

2. Alternatively, there was a miscarriage of justice arising from the admission of evidence of identification by means of a photoboard when:

(a) the complainant who made the identification agreed that the attacker was partially masked, another witness said he was wearing a full balaclava or had his face covered save for the eyes and nose;

(b) the complainant said the attacker was clean shaven and the photoboard tendered was of 12 young men with beards and moustaches (including the applicant);

(c) the offences occurred in Broome and the photoboard contained all Perth men - the applicant being the only one living in Broome;

(d) the complainant's evidence was inconsistent regarding the identification and inconsistent with the other witness to the incident;

(e) the police evidence was inconsistent with the complainant on voir dire regarding the identification process and inconsistent both on voir dire and trial with the complainant and their own earlier statements.

3. In directing the jury on the issue of identification evidence, the learned trial Judge erred, in that:

(a) ... he repeated counsel's arguments when he should have identified the weaknesses in the evidence independently and thereby giving independent judicial force to the inherent weaknesses in the evidence;

(b) he failed to isolate and identify the evidence of Ms Martin as to her description of the person who stabbed Mr Collings when that evidence could be reasonably regarded as undermining the reliability of the identification of the applicant by Collings;

(c) he failed to isolate and identify the evidence of "prompting" by the police when Collings could first not make an identification.

4. The learned trial Judge erred in failing to direct the jury specifically regarding the inadmissibility against the applicant of admissions made by the co-accused in a video record of interview."

14 As to ground 1, it has often been said both in this Court and in other courts in Australia, including the High Court, that identification parades are to be preferred to photoboard identifications. The reasons for this have frequently been explained. Nevertheless, it is also clearly the case that, subject to a trial Judge's exercising his or her discretion to exclude photoboard evidence, evidence of out of court identifications from photographs is admissible. The leading case on the subject is Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, in which Gibbs CJ, at 399, indicated that an identification parade was the most reliable method of identification. At 400 - 401, he continued:

"The value of holding an identification parade is not only that, if properly carried out, it provides the most reliable method of identification, but also that it is necessarily held in the presence of the accused, who is thereby enabled to observe, and later bring to light, any unfairness in the way in which the parade was conducted, or any weakness in the way in which the witness made the identification. However, as a matter of legal principle, it seems to me impossible to say that the admissibility of evidence of a prior act of identification depends on the fact that an identification parade was held. As a matter of law it would be equally admissible to prove that an identification was made by a witness who was shown a collection of photographs and selected one which he said was the photograph of the person concerned. There are, however, two grounds of objection to the proof of identification by means of police photographs. In the first place, the accused will of necessity be absent when the identification is made, and has no means of knowing whether there was any unfairness in the process or whether the witness was convincing in the way in which he made the identification. Secondly, the production in evidence at the trial of photographs coming from the possession of the police is very likely to suggest to the jury that the person photographed had a police record, probably for offences of the kind in question."

15 Gibbs CJ then went on to discuss the trial Judge's discretion to exclude evidence of photographic identification. At 402 - 403, he said:

"The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason "only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person" : Reg v Russell [1977] 2 NZLR at 28. If the trial judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case."

See also Mason J at 426 - 431. Aickin J agreed with Gibbs CJ.

16 Were there to have been an identification parade, which, as has been emphasised, is very much the preferred method of identification, it would have been essential to assemble a group of persons similar in appearance to the applicant. There was in the present case an explanation given by Detective Black, to whose evidence there was no significant challenge, as to why the method of identification took the form which it did. Having been asked in cross-examination why the other 11 persons whose photographs appeared on the photoboard did not come from Broome, he replied that he believed it was because the applicant originated from the southern half of the State and that all of the dark skinned people in Broome had a substantially darker complexion than the applicant. It might be observed, however, that Detective Black did not himself say, or acknowledge, that he knew that none of the other persons whose photographs were included in the photoboard came from Broome. He said that the photoboard was designed to be fair to the applicant and to show people of a similar description. When asked why every one of the 12 pictures on the photoboard was of a person with facial hair, Detective Black explained that this was by reason of the fact that the only available photograph of the applicant was one in which he had a moustache. In order to be fair to the applicant, he said, the other 11 photographs were of men with moustaches. It is, I consider, significant that Mr Collings himself raised the matter of facial hair, which would indicate that his assailant was not wearing a balaclava. Having regard to the necessity for the photoboard to contain photographs of people of a similar description and the difficulties which that presents in a town of the size of Broome and, in particular, having regard to the need to have photographs of persons with similar complexions, as explained by Detective Black. I would not uphold the first ground of appeal. There was, in my opinion, no requirement for the learned trial Judge, in the exercise of his discretion, to disallow the photoboard identification.

17 The second ground of appeal raises a number of points. The first, that Mr Collings, who made the identification, had agreed that the attacker was partially masked, distorts Mr Collings' evidence to which I have already referred. His evidence was that he could see his assailant's face "perfectly" and "as plain as day". The jumper or windcheater, he said, was around his assailant's face and came up only to the point of his chin. So far as the evidence of Ms Martin was concerned, it is far from apparent that she was describing the person who had stabbed Mr Collings. The evidence of Mr Collings was that he had been stabbed before she entered the room, and she herself did not say that she saw the stabbing. Her description of the person nearest her was of a person whose height was approximately 5' 3" and who was wearing a balaclava. The description by Mr Collings of his assailant was of a person who was 5' 10" in height, which was approximately the height of the applicant, and whose face was not obscured. Furthermore, the evidence of Mr Collings was that he never really took his eyes off his assailant. There is, in my opinion, no substance in ground 2(a).

18 In relation to ground 2(b), the jury, having been fully warned by the learned trial Judge as to the dangers of convicting on identification evidence where its reliability is disputed, and having had the benefit of seeing and hearing Mr Collings give his evidence, were entitled to accept that evidence. Accordingly, I would not uphold ground 2(b).

19 In relation to ground 2(c), regarding the photoboard containing all Perth men, as I have indicated, that was not, strictly, the evidence, but on the basis that it was, reasons for this were given by Detective Black, which reasons were not challenged. There was no suggestion that they were "mug-shots", or that there was any "rogues gallery" effect. I would not uphold ground 2(c).

20 In relation to ground 2(d) and (e), the inconsistencies, which were never clearly particularised, were of little consequence. I have already referred to the evidence of Mr Collings and to that of Ms Martin, and noted that it is far from apparent that the two were speaking of the same person. This was very much a matter for the jury to resolve. The suggested inconsistency between the evidence of Mr Collings and the evidence of the police appears to relate to the time taken for Mr Collings to select the photograph of the applicant from the photoboard. The police evidence was that Mr Collings took some three to three and a half minutes to select the applicant's photograph, whereas Mr Collings said he took less than a minute. Estimates of time frequently vary in such matters. A person concentrating on the task before him or her is often likely to believe that the time taken was less than the time estimated by one who is only observing the process, and there is nothing, in my view, to cast doubt upon the process in this case, particularly having regard to what was conceded, that, in the middle of the process, Detective Black made some suggestions to Mr Collings as to the way in which he should proceed after Mr Collings had drawn attention to the fact, which reinforces his credit, that the applicant had no facial hair except perhaps for a goatee which could have been concealed behind the garment around his face. An important aspect of this evidence is that it is consistent with Mr Collings' evidence that he had a good view of his assailant's face. It is inconsistent with the person identified by him as being the person whom Ms Martin described as one of the intruders who was wearing a balaclava, which allowed her to see only that person's eyes and nose.

21 Ground 3 raises an issue of the learned trial Judge's directions on the identification evidence. The leading authority on the necessity for the giving of a warning to the jury of the dangers presented by such evidence is Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. In their joint judgment, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said, at 561 - 562:

"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 551; Reg v Turnbull [1977] QB 224, at 228; Reg v Burchielli [1981] VicRp 61; [1981] VR 611, at 616-619; Reg v Bartels (1986) 44 SASR 260, at 270-271]. The terms of the warning need not follow any particular formula [Reg v De-Cressac (1985) 1 NSWLR 381, at 384; Reg v Finn (1988) 34 A Crim R 425, at 435-436]. But it must be cogent and effective [Reg v Dickson [1983] VicRp 19; [1983] 1 VR 227, at 230; Reid (Junior) v The Queen [1990] 1 AC 363, at 380]. It must be appropriate to the circumstances of the case [Reg v Aziz [1982] 2 NSWLR 322, at 328; Reg v Allen (1984) 16 A Crim R 441, at 444-445]. Consequently, the jury must be instructed "as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case [Smith v The Queen (1990) 64 ALJR 588, at 588]". A warning in general terms is insufficient [Kelleher v The Queen (1974) 131 CLR 551]. The attention of the jury "should be drawn to any weaknesses in the identification evidence [Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534, at 551]. Reference to counsel's argument 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 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."

"As the learned Acting Chief Justice [Kirby ACJ] pointed out, the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case Reg v Domican [No 3] (1990) 46 A Crim R at 446; Reg v Dickson [1983] 1 VR 230; Reg v Allen (1984) 16 A Crim R at 444-445. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence which, if accepted, is sufficient to convict the accused [see Reg v Bartels (1986) 44 SASR at 270-271; cf Reg v Goode [1970] SASR 69 at 77]. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused [see Reg v Gaunt [1964] NSWR 864 at 867]. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused."

22 Having regard to the broad nature of the grounds of appeal in relation to identification, it is desirable to set out the relevant portion of his Honour's very extensive and detailed directions to the jury, which were as follows:

"I come now, members of the jury, to speak to you about identification. Mr Campbell, the manager of the Roebuck Caravan Park, told you among other things that after the accused Collard had been charged by the police they had a conversation. I think it was the second conversation that he spoke about. He said in the course of that conversation Collard told him, "I was there but I didn't do it". Mr Campbell told you that conversation continued. He suggested to the accused Collard that he should dob in the bloke who did stab the other man. The accused Collard said, "I can't because it's family. I can't, my brother's got kids."

Now, it's a matter for you as to what you make of that. If you accept Mr Campbell's evidence - and of course that has been challenged, but if you accept Mr Campbell's evidence that that conversation took place, what does it mean? Was the accused man telling Mr Campbell that he was actually inside the house but that he didn't do the stabbing or was he saying something else? Did he go on to say that it was not he who stabbed Mr Collings but it was his brother, "brother" used in the strict term of someone having common parents or is it "brother" in the more extended term that sometimes the word is used. "I can't dob him in because it's family. My brother's got kids." Was he saying then that it was his brother who did the stabbing?

I mention that because you may think that there's a possibility of some likeness between the two which would have some bearing, perhaps, on identification. This is a matter of comment and only for you. Now, save for the evidence of Mr Collings, there is no other evidence, as far as I understand it, against Collard tending to show that he was at the house that night. So save for the evidence of Mr Collings who said it was Collard who stabbed him, save for the evidence of Mr Campbell who said that Collard told him he was there, it appears that there is no evidence against Collard tending to show that he was at the house last night. So that is why the evidence of those two men is so important.

Mr Collings said in effect, of course, Collard was not only there but he was the man who stabbed him. Campbell's evidence can't go that far. In fact if you accept that Collard did say what Mr Campbell said, Collard was saying, "I didn't stab him, my brother did", if that is the interpretation that you put on those words. So in the case of Collard the evidence of identification is important. It tends to show not only that he was there but also that he was the principal offender or a principal offender as I have used that term.

Now, members of the jury, you probably all appreciate that sometimes miscarriages of justice occur. When they do occur faulty identification is a major source of error and so there is a special need for caution on the part of juries or any other judicial officer before convicting a person in reliance upon identification. You must be careful, and there's a particular danger about identification. A mistaken person can be - a mistaken witness, put it that way, can be a convincing witness. Honest people can make mistakes. Honest people can be convincing but they can be mistaken.

So it's necessary to examine closely the circumstances surrounding the identification. Look first at what happened on the night in question. What opportunity did Mr Collings have to see the person that he later was asked - or later tried to identify. In considering that opportunity you might ask yourself, "How long did he have the man with the knife under his observation". Counsel have talked about that. Probably you will appreciate that there are very few of us who really are good at estimating time, how long it takes for certain things to happen. Sitting in a doctor's surgery time seems very slow. Sitting in a jury box sometimes you may think time passes very slowly, but when you're involved in something time passes very quickly, although not always. So you probably need to look with some scepticism as to estimates of time, particularly in relation to the time during which Mr Collings had the opportunity to look at the man in front of him.

Ask yourselves, "How close was the other man to him?" He must have been pretty close because he stabbed him. There was talk of a metre and it would seem that the other man was close to him for some time before the stabbing took place and after the stabbing took place, although that time, before and after, might well have been a fairly short time. What was the lighting? I don't recall any specific evidence as to what lights were on, but of course, Mr Collings told you that he was working on his computer or he was using his computer, in any event, and it seems that there was no difficulty in seeing that there were people there. Precisely how good the lighting was I can't remember from the evidence, but perhaps you can.

Another feature that you would need to take into account is this, that Mr Collings, as far as he was aware, it seems, had not seen the stabber before, so it was not a case of recognition of a friend, a relative or an acquaintance, or even someone who was known. It was truly a case of seeing someone who was apparently a stranger. Even when we think we recognise a friend or a relative sometimes we make mistakes. We go up in the street to speak to someone that you think you know and either before or after you start talking you realise it's not the same person at all, and the danger of identification of course is - or false identification is greater when the person is a stranger.

It's appropriate that you take into account the length of time that followed the event and the time when he spoke to the police officers. It seems that in this case he spoke to the police officers and gave a description of the man fairly soon after, because the photoboard was put together and presented to him I think six days after the event and he told the police about it, of course, long before then.

It's appropriate that you should consider any discrepancy between his description to the police officers of the man he saw and of the man in the photograph or indeed the accused in the dock. You will recall that Mr Collings agreed that he told the police officers that the man who stabbed him had short dark hair - presumably hair on his head. He had no facial hair. He had a jumper around his head which covered the point of his chin. The photograph which he identified as being a photograph of his attacker was of a man with a moustache and partial beard.

Mr Allanson [defence counsel] put to you also some of the difficulties with which a person identifying - or which Mr Collings would have had in identifying the person who attacked him. A number of significant features of the man were covered up - his ears, the point of his chin, all except apparently the facial features, and so Mr Collings did not have the benefit of seeing the entire head of the man. In this case the identification was made from a board of 12 photographs which is one of the exhibits. Now, identification from photographs has its limitations. Photographs usually, at least, are two dimensional only. Photographs are taken from a particular angle, in this case full face, but as Mr Allanson put to you, a face looks different from different angles and it might be that the angle of the face in the photograph was different from the angle of the face of the man when he was in front of Mr Collings.

Another problem about identification from the photoboard when that identification is made, as in this case, in the absence of the accused, is that there's no independent person there at the time who can draw attention to deficiencies in the process of identification. Mr Collard was not there so he's unable to put his version of what actually occurred when the identification was made. The only persons were, I think, the two detectives, Detective Black, Detective Prosser and Mr Collings himself. Then it is appropriate that you take into account what actually took place when the photo was selected by Mr Collings.

He had in front of him 12 photographs, each of men with darker coloured skin, each with a beard and a moustache, whereas he had thought, he told you, that the man in front of him had no facial hair. Was that really unfair to Mr Collard, the accused man Collard, or was it appropriate, because the detective told you that the only photograph available of the accused Collard showed him with a moustache and with a beard and so it was appropriate that the other photographs should have men wearing a moustache and a beard, otherwise, I suppose, the implication is that he would have stood out if the others had no facial hair. In any event, it's appropriate that you take into account the various comments that are made. If you find them helpful, well and good, if not, you use your own judgment.

Then there's some discrepancy, you may think, between the evidence of the police officers as to how long the identification took, some discrepancy between what was in the statement of each and what each of them said to you. In the statement each apparently said the time taken by Mr Collings to select the photograph was three to three and a half minutes, whereas the time at which they spoke in evidence was rather different, looking at the photographs first of all for a minute or a minute and a half and then saying, "Well, the man I saw had no facial hair", one of the detectives saying, "Look for the facial features" and then a further minute or a minute and a half before the selection was made. Now, is there anything significant about the difference in time? Does it tell you anything about the reliability of the evidence of the detectives or is it simply something that doesn't help you one way or the other? Matters for you, members of the jury.

It is true, of course, that Mr Collings identified the accused man Collard while he was in the dock. I think he was asked, "Is he the man?" and he pointed to him and that dock identification, as you appreciate, cannot be regarded as a great weight. One would clearly know from the witness box that the two men sitting in the dock are those two charged with the offence. Mr Collings had previously selected a photograph which he said was the photograph of his attacker and although photographs have their limitations, one would expect that the accused man Collard was not very different from the person in the photograph at least.

So dock identification might rule out an obvious error where the man in the dock had no resemblance whatsoever to either the man in the photograph or the man at the scene, but save for that you may think that dock identification is worth very little. That's all I propose to say about identification generally. Remember the warning that I have given, especially because identification is so important in relation to the accused man Collard for the reasons that I have mentioned."

23 His Honour then proceeded to consider the prosecution and the defence cases. As to the defence case, his Honour did not merely summarise counsel's submissions. He added to them and personally reinforced them to the extent that the jury would not have treated these passages as only dealing with the defence case and not having the authority of the trial Judge behind them. By way of example, in relation to Mr Campbell's evidence, having put to the jury the applicant's case that the alleged conversation with the applicant did not take place, that it was not the sort of conversation you would expect to take place between the applicant, a tenant of the caravan park, and the manager of the park, and that it was not the sort of conversation that you would expect a man who had just committed an offence to have had with a stranger who had no reason to be sympathetic towards him, his Honour clearly indicated that it was a matter for the jury, and that they should bear in mind their impression of Mr Campbell - did he impress them as being an honest man, and did he impress them as being the sort of man who could approach someone who had committed an offence and be given the sort of confidential information that he said Collard gave to him?

24 In the course of summarising the defence case, his Honour said:

"As to the events themselves in the house, you are reminded that there appear to be discrepancies in the description given by Mr Collings as to what happened and the description given by Ms Martin. Mr Collings told you that the man who stabbed him was in effect the accused man Collard who, we have been told, is a tallish man, 5' 9" or 5' 10" in height. Well, you have been able to see him and you might know whether or not that's accurate. Ms Martin, who came out of the bathroom, saw the men inside the lounge room, it seems, or the main room of the house, whatever it was, spoke of the man who was attacking Mr Collings as 5' 3" and wearing a balaclava with clothing of different colour from that worn by the accused man Collard - I am sorry, worn by the man who Mr Collings said had attacked him.

What does that discrepancy mean? Does it mean that here are two people describing something that happened and have simply got it wrong or does it cause you to doubt whether in fact the person who attacked Mr Collings was a tall man, someone who could have been the accused man Collard, or whether the person who attacked him was 5' 3" wearing a balaclava and clothing different from the man described by Mr Collings.

Then you have, of course, the two other parts of the evidence presented by the Crown which is of considerable significance insofar as Collard is concerned; that is, the evidence of Mr Campbell and the evidence of Mr Collings himself. Mr Campbell, I remind you, had conversations with Collard after the event and in the second of those conversations he told you that Collard said that he was there, that he didn't do it, and went on to say why he could not dob in who actually had done it."

25 This also went well beyond simply providing a summary of the case put forward for the defence and constituted a clear direction from his Honour. The suggestion that his Honour merely repeated counsel's arguments cannot be maintained. Following these passages, his Honour made it clear that he was reverting to his summarising of the defence case by saying: "On behalf of the accused Collard it's put to you that that conversation did not take place".

26 His Honour adopted a similar approach in relation to the manner in which counsel for the applicant dealt with the evidence of Mr Collings. He said:

"In the end, of course, you bear in mind those circumstances and various matters that I have pointed out to you, as I am obliged to do. You will approach the matter of identification with caution. I think, as Mr Allanson says, it really boils down to you asking yourselves with all of that in mind was Mr Collings right? Did he make an accurate identification despite the difficulties that have been touched upon? He saw only part of the other man's head, he said, not all of his face, and he was one man among five or six who did not have a balaclava on his head. He chose to disguise himself, it would seem, merely by covering up his ears, his forehead and above, except for some hair that Mr Collings said he saw, and covering also the bottom of his chin."

27 It needs to be emphasised again that Ms Martin's evidence was not that she saw Mr Collings being stabbed. A more detailed examination of her evidence would only have demonstrated the improbability of the two descriptions having been made of the same person. Paragraphs (a) and (b) of ground 3 cannot be sustained.

28 There is, in my opinion, no substance in paragraph (c) of ground 3, relating to the suggested prompting of Mr Collings by the police. This matter only arose when Mr Collings had pointed out that his assailant had been clean shaven. The evidence was not that Mr Collings could not make an identification. There is no suggestion in the evidence that the police said or did anything to instruct or persuade or lead Mr Collings to select a particular photograph. The evidence of Detective Black, who was not cross-examined as to any prompting, was that he had explained to the complainant that the photographs were historical and that some of the facial hair and the general hair might change and that Mr Collings was to pay particular attention to the general facial-physical features of the faces. The police evidence was then that he looked at the photoboard for approximately a minute after this discussion before identifying the applicant. He was certainly not, on the evidence, pointed in the direction of any particular photograph.

29 The fourth ground of appeal complains of an alleged failure to direct the jury specifically regarding the inadmissibility against the applicant of admissions made by the co-accused in a video record of interview. The Crown prosecutor, in his opening, correctly drew the jury's attention to the fact that the evidence of the statements by the applicant's co-accused, which made reference to the applicant's involvement in the home invasion, was not evidence against the applicant. The learned trial Judge carefully instructed the jury on this point. Prudently, he gave an initial instruction to the jury before Mr R J Steel gave his evidence as to the applicant's co-accused having told him that he had stabbed a "fellow" in a house invasion. His Honour said:

"Generally, the only evidence that is admissible is the direct evidence of witnesses; in other words, a witness tells you what he did, what he saw or what he heard and that's direct evidence. What someone else said to that witness generally is not admissible because it's hearsay. It's what someone else has said and that person isn't before you in the court.

Now, as with the law in so many cases, there are exceptions to that rule, and so a witness is allowed to tell you what an accused person has said on the basis that it might amount to an admission, and so the prosecution has asked this witness, Mr Steel, to speak to you about a conversation between him and the accused man Simm.

Now, insofar as that conversation might implicate Simm, that's evidence against him. Whether or not it's true is another matter and that's a matter for you, but in the course of that conversation, Mr Steele has told you that Simm mentioned Jay whom we know is Collard. Now, what Simm said to Mr Steel about Collard is part of the evidence relating to Simm but it's not evidence against Collard. You see, it's hearsay and it's not one of the exceptions in relation to Collard, so anything that you have heard as said by anyone outside the court in relation to Collard is admissible unless the evidence is that Collard has said it, and the only reason why you're hearing it is because it's part of the story, it's part of what, according to Mr Steel, Simm said about his role in the affair. It might bear upon Simm's case. It has no relationship to Collard's case. I hope that's clear. If it isn't at any stage, ask me or tell me about it and I will try it to explain it in a way that helps you more than this.

Mr Allanson [counsel for the applicant at the trial] properly has raised this at this particular stage and it might be that later in the course of the trial, someone else will speak about what Simm has said and if Collard is given a mention, of course, that again is not part of the case against Collard and you must not take it into account, and it might be that from time to time I will remind you of what is said, but I will try not to repeat myself in a tedious way."

30 When the police interview video with the applicant's co-accused, Simm, in which Simm made statements adverse to the applicant, was about to be played to the jury, the learned trial Judge said:

"Members of the jury, you will remember that yesterday I told you that what is said outside the court by someone is not evidence against anyone else. In the course of the interview that was recorded and you will be seeing the tape in just a minute, the accused man Simm speaks of the accused Collard. What he says - that is, what Simm says - might be evidence against him but it is not evidence against Collard and, when considering the case against Collard you must block this from your consideration."

31 Finally, when the sentencing Judge opened his charge to the jury, he said::

"It is important to remind you, because you have already been reminded of this - it's important to remind you that in arriving at [your] verdict you must take into account only the evidence relating to that particular accused man. You have had examples of evidence relating to the accused man Simm but not relating to the accused man Collard."

The jury cannot have been left in any doubt as to the restricted use which they could make of out of court statements made by the co-accused. In each case, they were directed immediately prior to the relevant evidence as to the use they could make of it. There is, in my opinion, no substance in this final ground of appeal.

32 To the extent that leave to appeal is necessary in this matter, I would grant that leave, but I would dismiss the appeal.

33 WALLWORK J: On 16 February 2000 and after a trial at which he had pleaded not guilty, the applicant was convicted of two offences. The first was that on 26 March 1999 at Broome, he and another person had stolen money from Mr Collings with actual violence whilst they were in company with others and armed with an offensive weapon, namely a knife and that at the time they had unlawfully wounded Mr Collings. The second offence was that at the same place and with another man the applicant and the other person committed the offence of stealing whilst in the company of others and armed with an offensive weapon, namely a knife, and that they did bodily harm to Mr Collings.

34 At the trial, counsel for the applicant had made an application to the learned trial Judge for an order that proposed evidence concerning the identification of the applicant from a photoboard, should be excluded. It was put by counsel for the applicant to the learned trial Judge, that Mr Collings intended to give evidence that after the relevant events he had identified the applicant from a photoboard which had contained photographs of 12 people, all with facial hair. The photograph of the applicant on the board showed the applicant with a moustache and a goatee beard.

35 It was put to the learned trial Judge that another proposed prosecution witness, a Ms Martin had, at the time the offences were committed, seen the offenders who were carrying knives. One was wearing a black full face balaclava and another was wearing dark clothing with his face covered, so that Ms Martin could see his eyes and nose.

36 It was submitted to the learned trial Judge that the evidence of the police officers who had observed the photoboard identification by Mr Collings of the applicant's photograph would be that it had been 3 to 3-1/2 minutes before Mr Collings had identified the photo of the applicant on the photoboard. It was said that a most important factor was that Mr Collings would say that the person he had identified had had no facial hair at the time of the incident; also that that person had had clothing wrapped around his head, although Mr Collings would say that he could see the offender's face. Ms Martin who had been present would say that one of the assailants was wearing a balaclava and the other had his face covered.

37 It was submitted to the learned trial Judge that in all the circumstances, the weight which could be attached to the identification from the photoboard was so slight that it would not outweigh the other prejudicial factors arising from the photoboard identification; that the identification evidence was so weak that it ought not be admitted because of its prejudicial effect, including the propensity that any photo on a photoboard would have to suggest that there was a reason why the police officers would have had the photograph of the accused man available.

38 Crown counsel told the learned Judge that Mr Collings had been shown two photoboards. On one, all 12 persons had a moustache and two or three of them had beards. In the other photoboard, all were clean shaven. In answer to that submission it was said for the applicant that the evidence of Mr Collings would be that the first board was shown to him and he had made the identification from that one. Later on he had been shown the second board.

39 After hearing evidence on the voir dire, the learned Judge said that identification by means of a board of photographs has inherent problems and that it is quite different from identification by means of a parade. However, his Honour said he did not believe that in this case the prejudicial value outweighed the probative value. He said it was essentially a matter of weight and a matter which was appropriate for a decision by the jury. His Honour gave no further reasons for allowing the identification from the photoboard into evidence.

40 At the hearing of this application the Court was told that the photoboard identification had occurred on 2 April 1999, which was some days after the relevant incident on 26 March 1999.

41 At the trial a police officer when asked if he had taken any other steps than a photoboard identification in order to see if Mr Collings could identify the offenders, answered: "No, there are no other methods available in Broome".

42 It was submitted for the applicant that in the absence of any reasonable explanation as to why an identification parade could not have been arranged the learned trial Judge should have taken that factor into account in exercising his discretion whether or not to admit the evidence of the photoboard identification.

43 When giving evidence before the jury a detective said that the relevant photographs on the board were "historical" photographs. Counsel for the applicant said that this evidence had indicated that the police had had the photos for a while and that they had not been taken for the purpose of the identification procedure. It was submitted that that fact could have indicated to the jury that the applicant was a person who had a criminal history.

44 It was submitted that the learned trial Judge had erred in the exercise of his discretion when admitting the evidence of the photoboard identification in that he had failed to pay sufficient regard to the fact that there had been no identification parade held and that no explanation or excuse had been offered as to why that had not been done; that since approximately 1980 there had been strong judicial warnings from the High Court concerning the dangers of the use of photoboard evidence and the risks that are associated with that type of evidence. Reference was made to Dawson v The Queen (1990) 2 WAR 458.

45 At 461 in Dawson, Malcolm CJ adopted the words of Gibbs CJ in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 401 where Gibbs CJ said that it was:

"... most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that witness should identify a person who is firmly suspected to be an offender."

"... as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the Judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason 'only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative whereby the witness can be asked directly to identify the suspected person': R v Russell (1977) 2 NZLR 20 at 28. If the trial judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case."

47 It seems obvious in this case that the police officers did not act in accord with the principles enunciated in the above words of Gibbs CJ. These words were adopted by the Chief Justice of Western Australia in Dawson (supra).

48 In this case, before the evidence of the photoboard identification was allowed into evidence, the learned trial Judge should have considered the effect of the other evidence which was to be relied on by the prosecution. His Honour was required to do this in accord with the words of Gibbs CJ which have been quoted and which are:

"A trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against an accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused."

49 It is also important for this Court to do that in order to comply with the words of Gibbs CJ that:

"The true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case."

50 In this case, the only substantial evidence against the applicant apart from the photoboard identification evidence, was that he had spoken to a Mr Campbell at a caravan park and allegedly had told Mr Campbell that he had been present on the occasion when the offence was committed, but had not stabbed the victim. Mr Campbell said he had then said to the applicant:

"I think that if you didn't do it, you had better dob in who did because you'll get off a lot lighter."

"Well, I can't because it's family. ... I can't. My brother's got kids."

52 Mr Campbell said that at the time the applicant had been extremely nervous and upset to the point where "I think he may have had tears in his eyes at that stage." (AB 41).

53 Another aspect to be considered is that in this case, if there was not a good reason for not holding an identification parade, other than an ignoring of the suspect's rights, that should have gone into the weighing process.

54 In the decision in Draper v The Queen [2000] WASCA 160, Kennedy J said at par 2:

"In particular, I would express my agreement with Murray J that evidence of the identification of an accused person by means of a photograph should only be led where it is unavoidable, and where another more preferable form of identification is not practicable. An accused person can himself observe how an identification parade is being conducted. That is not the case with a photoboard identification, when, in addition, no independent person is normally present to confirm the fairness of the process. This appears to me to be an important consideration when it comes to the issue of whether the evidence should be admitted."

"Evidence of identification from a photograph is clearly of less probative value and the courts are acutely conscious of the rogues gallery effect and the prejudice which may arise to an accused person from that source. It has long been said therefore that whilst such evidence may be admissible, it may in the particular circumstances of the case be excluded if it would be unfair to introduce the evidence in that form, or if in the particular circumstances of the case the prejudicial effect of the evidence would substantially outweigh its probative value. Whether that should have been held to be so in this case is impossible to consider without the nature of the evidence which would have been led being before us.

However it should be said that by reason of the above considerations, evidence of identification of a suspect by means of a photograph should only be led where it is unavoidable and where another more preferable form of identification is not practicable."

56 I refer also to the reasons for judgment in Penny v The Queen (1997) 91 A Crim R 288.

57 In this case other relevant facts which should have been considered by the learned trial Judge in exercising his discretion were that the victim had said that the person who had attacked him had had a jumper tied around his head and around his chin which must have excluded some of his face although Mr Collings told the learned Judge that "you could see his face as plain as day." There were also a number of other people who came into the home wearing balaclavas.

58 The evidence given by a police officer was that when he had shown the photoboard to the victim, he had:

"... indicated to him that some of the photographs may be old photographs and that the facial hair and even the hair features may differ from the present time and that he was to pay particular attention to the actual facial features. He looked at the photoboard again for a period of time and then indicated photograph number 3 as being the person that had stabbed him."

59 He said that Mr Collings had before that looked at the photoboard for approximately a minute before bringing up the question of the facial hair. Up to that point he had not identified the applicant.

60 With respect to the significance of the evidence of Mr Collings and of the applicant speaking to Mr Campbell at the caravan park after the relevant events, and to put it into its correct context, it is helpful to know that the learned Judge commented in his summing up as follows:

"Now, save for the evidence of Mr Collings, there is no other evidence, as far as I understand it, against Collard tending to show that he was at the house that night. So, save for the evidence of Mr Collings, who said it was Collard who stabbed him; save for the evidence of Mr Campbell who said that Collard told him he was there, it appears that there is no evidence against Collard tending to show that he was at the house last night. So that is why the evidence of those two men is so important. Mr Collings said in effect of course, Collard was not only there but he was the man who stabbed him. Campbell's evidence can't go that far. In fact if you accept that Collard did say what Mr Campbell said, Collard was saying 'I didn't stab him, my brother did', if that is the interpretation that you put on those words. So in the case of Collard the evidence of identification is important. It tends to show not only that he was there but also that he was the principal offender or a principal offender as I have used that term."

61 It can be seen that the photoboard identification was crucial to the prosecution case. Without it the applicant could not have been convicted of the charge.

62 It is my opinion that if the words of Gibbs CJ and those of Malcolm CJ, Kennedy and Murray JJ which are referred to earlier in these reasons, are applied to this case, the learned Judge erred in allowing the evidence of the photoboard identification to go to the jury. It was unfair to the accused in all the circumstances of this case, for the police officers

to apparently without good reasons, disregard his right to be identified in a properly recognised procedure.

63 With respect to the other grounds of appeal, I agree with the reasons of Kennedy J.

64 For the above reasons I would allow the appeal and order a new trial on the basis which is proposed by Miller J which is that the appellant should be retried on the two counts in the indictment on the basis that he aided both the robbery and the burglary. I agree that the retrial should be limited to that basis.

65 MILLER J: The applicant and another were charged that on 26 March 1999 at Broome they stole a sum of money from one Collings with actual violence. Circumstances of aggravation alleged were that they were in company with each other and others; that they were at the time armed with an offensive weapon, namely a knife; and that at the time they unlawfully wounded Collings. They were also jointly charged with an offence of without consent being in a place ordinarily used for human habitation, and there committing the offence of stealing. Circumstances of aggravation alleged were that they were in company; armed with an offensive weapon; and that they did bodily harm to Collings. The applicant and his co-accused pleaded not guilty to each count but were convicted.

66 Kennedy J has set out the evidence which was led at trial. It established that on the evening in question Collings and a Ms Martin were alone in the house of Collings. Ms Martin was in the bathroom whilst Collings was working on a computer. According to Collings, a male person about 5 foot 10 inches in height came into the room where he was working. This person appeared to be an aboriginal, although not a full-blood aboriginal. He was armed with a knife and had a jumper or something similar around his head. It was described as "coming up to the point of his chin". Collings claimed that he could plainly see the face of the man. It was this person who Collings said stabbed him with the knife. A number of other intruders had entered the house at or about the same time, all male and with darker skin that the first man. They were wearing balaclavas (or something similar), with slits for eyes and they too were armed. It was, however, only the intruder who had stabbed him whose face Collings had seen.

67 Ms Martin gave evidence that she observed what had happened. She said she came out of the bathroom and saw five coloured guys who she

thought were aboriginals. They were wearing dark clothes and balaclavas and all had their faces covered. The person closest to her was wearing a black t-shirt and had a full-faced balaclava, as a result of which she could see only his eyes and nose. This person was holding a knife, but she noticed others with knives, although different knives. She did not actually see anybody stab Collings.

68 Kennedy J has set out the circumstances in which Collings identified the applicant from a photoboard. He identified him as the person who had stabbed him. The photoboard was presented at the hearing of the appeal. It reveals 12 persons of aboriginal appearance ranging from dark to light skin. Collings endorsed on the back of the photoboard "I identify photo number 3 as being the person who stabbed me without a maustache (sic)". All 12 persons on the photoboard have moustaches and beards of one sort or another.

69 Kennedy J has also outlined the evidence independent of photoboard identification which was said to implicate the applicant. That consisted of the statement made by the applicant to one Campbell that "I didn't do it" and "I was there but I didn't do it". Campbell told the applicant that if he had not done it he should dob in whoever had done it. To this the applicant was said to have replied "Well I can't because it's family ... I can't. My brother's got kids." These statements of the applicant were equivocal. Even if they are to be taken as an admission that he was at the scene, they do not go so far as to place him inside the house, and nor do they implicate him in the stabbing of Collings. They in fact point to someone else as the primary offender.

70 The evidence of photoboard identification was of vital significance to the Crown in establishing that the applicant was the principal offender on the charge of robbery. The learned trial Judge ruled that the evidence was admissible and declined in the exercise of his discretion to exclude it on the basis of its prejudice to the accused outweighing its probative value. Kennedy J has set out in detail the directions given by the learned trial Judge on the question of identification. His Honour did point out the dangers inherent in faulty identification and identified where the dangers lay in the present case. However, when dealing with the question of the photoboard and identification from a photoboard, his Honour made no mention of the inherent shortcomings of photoboard identification, save for reference to the problem of there being no independent present person who might draw attention to deficiencies in the process of identification. Specifically, his Honour made no comparison between photoboard identification and the use of an identification parade for the purposes of identification.

71 In my view, the evidence of the photoboard identification was properly admissible for the reasons set out by Gibbs CJ in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 399. Mason J (at 430) made observations to like effect:

"In my opinion the Australian cases demonstrate that identification from police photographs is admissible evidence, that its probative value may be important, that the judge has a discretion to exclude it when he considers its prejudicial effect outweighs that value, and that directions may be given to ensure that unfair use is not made of the evidence. I follow them in preference to Wainwright (1925) 19 Cr App R 52 and the other English cases. The approach taken in the Australian cases to which I have referred accords with what this Court said in Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170, when it pointed out that 'in each case the question must be, not whether the identification has been conducted with propriety and fairness, but whether upon the whole evidence as it in fact existed when it came to be laid before the jury, and having full regard to the treatment of the matter at the trial, the actual verdict ought not to stand because a miscarriage of the kind described occurred'."

72 Gibbs CJ pointed out very clearly (at 399 - 400) the importance of arranging for an identification parade rather than the use of photoboard identification:

"The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime.

...

The value of holding an identification parade is not only that, if properly carried out, it provides the most reliable method of identification, but also that it is necessarily held in the presence of the accused, who is thereby enabled to observe, and later bring to light, any unfairness in the way in which the parade was conducted, or any weakness in the way in which the witness made the identification."

73 In Draper v The Queen [2000] WASCA 160 both Kennedy J (at [2]) and Murray J (at [29]) stressed that evidence of identification of accused persons by means of a photograph should only be led where it is unavoidable and where another more preferable form of identification is not practicable. Other cases are referred to by Wallwork J in Penny v The Queen (1997) 91 A Crim R 288, where his Honour pointed out that in Western Australia the Detective Training School notes under Identification Parades refer to the formal identification parade as the most effective and fair means of obtaining identification evidence. For some reason the practice of conducting identification parades for the purpose of identifying suspects seems to have been abandoned in Western Australia. At the hearing of this appeal counsel for the Crown conceded this to be the case. Why it is so is totally unexplained and in my view inexcusable in terms of police investigatory procedures. The time has come for the court to make it quite clear that the continued use of photoboard identification in lieu of identification parades is unacceptable.

74 In the present case the learned trial Judge exercised his discretion to admit the photoboard identification. His Honour considered that the prejudicial effect of the photoboard did not outweigh its probative value. As that was a discretionary judgment of his Honour and one peculiarly within his Honour's own province at the trial, I would not interfere with it.

75 However, I am of the view that there is substance in the ground of appeal that the applicant's conviction constituted a miscarriage of justice by reason of the identification evidence relating to the applicant being limited solely to that of photoboard identification. As was pointed out by Mason J in Alexander v The Queen (supra) (at 430), on appeal the question is whether the verdict ought to stand in circumstances where the identification evidence is limited to that of photoboard identification. The same was said by Brinsden J in Dawson v The Queen (1990) 2 WAR 458 at 476.

76 Having examined the identification evidence in this case, I am of the view that there were substantial deficiencies in the identification made by Collings. Most importantly, Collings contended that the applicant was masked only to the point of the chin and that he could see his face in full, whereas Ms Martin identified the person who must have been Collings' assailant as wearing a full balaclava and having his face covered save for eyes and nose. Further, the photoboard suffered from the defect that it showed 12 men with beards and moustaches, and yet Collings was quite clear that his assailant had no facial hair. To have identified a person with a beard and moustache as the person who had attacked him thus involved inherent difficulty. The photoboard also suffered from the deficiency that the only Broome resident on it was the applicant. All others came from outside Broome. This increased the possibility that Collings would identify the applicant, he being the only person on the photoboard who could have been seen by him in the town of Broome.

77 I have pointed out that the learned trial Judge gave no direction to the jury on the inherent shortcomings of photoboard identification when compared to identification parades. It was, in my view, essential that the trial Judge inform the jury that the safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group of persons the person whom he claims to have seen on the occasion of the crime. Gibbs CJ made it abundantly clear in Alexander v The Queen (supra) (at 399 - 400) that this is so, and although his Honour did not state that a trial Judge was under a duty to direct a jury to this effect, it seems to me implicit in his Honour's judgment that the jury should be told that an identification parade is the preferred method for identification and the most reliable method. The fact that it is held in the presence of the accused who is unable to observe and later bring to light any unfairness in the way in which the parade was conducted or any weakness in the way in which the witness made the identification is an essential aspect of the identification parade process: See Alexander v The Queen (supra) per Gibbs CJ at 400.

78 It would have been an easy thing for his Honour to have informed the jury that they were seriously hampered on the question of identification by the fact that the only method of identification used was the photoboard. Comparison between that process and the preferred process of the identification parade should have been made and the shortcoming brought home to the jury. In my view such a direction is required in all cases in which photoboard identification is used, unless for some exceptional reason an identification parade cannot be organised. I find it difficult to envisage that in a large town like Broome or in a city like Perth such an identification parade could not be organised. They were organised in years past, but for no explicable reason the practice has fallen into disuse.

79 I am of the view that the convictions of the applicant constituted a miscarriage of justice by reason of the shortcomings of the photoboard identification process and because the learned trial Judge omitted any reference in his directions to the jury to the preferable course of conducting an identification parade rather than a mere photoboard identification.

80 Although the grounds of appeal do not particularise the failure on the part of the learned trial Judge to bring to the attention of the jury the shortcomings of photoboard identification when compared with identification parade identification, ground 3 attacks the learned trial Judge's directions on the issue of identification generally. In any event, ground 2 contends that the conviction (sic - convictions) of the applicant were a miscarriage of justice by reason of the identification evidence adduced, and in my view that ground is well made out and a sufficient basis upon which to uphold the appeal and quash the convictions of the applicant. To the extent that leave to appeal is required, I would grant that leave. I would agree with Kennedy J that the other ground of appeal has no merit.

81 The Crown case was that the applicant was a principal offender but in the alternative an aider. The trial Judge gave the jury a full direction on what constituted aiding, and how the applicant might be convicted of both offences in the event that he was a party to what occurred. As his Honour put it, the Crown case was that "all of the men, and in particular the two accused, knew and intended not only to burgle the house in Pembroke Street, but to rob the man who lived there."

82 Unfortunately, the verdict by which the applicant was convicted on both counts does not indicate whether he was convicted as a principal offender or as an aider. In my view any conviction of the applicant on the basis that he was the principal offender must because of the shortcomings of the identification evidence be quashed. There can be no retrial in that regard. As a matter of fact the applicant could, on the night in question, have been in a place ordinarily used for human habitation. However, he was charged with committing an offence therein (s 401(2) Criminal Code), not entering such a place with intent to commit an offence therein (s 401(1) Code). The applicant could have aided others in relation to the stealing and the circumstances of aggravation, so that he would be deemed to have committed the offence alleged, and for that reason could be retried on this basis.

83 The applicant could therefore be retried on the two counts on the indictment on the basis that he aided both the robbery and the burglary, but this would in my view be the limit of the basis upon which he could be retried. I would therefore order a retrial limited in this way.