Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Identification evidence - Identification from photographs - Police photographs - Admissibility.

Evidence Act 2001 (Tas), s137.

R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326, followed.

Judgment Number: [2006] TASSC 89

DIRECTOR OF PUBLIC PROSECUTIONS v MICHAEL STUART JOHN LYNCH

4 There shall be a new trial of the respondent on counts 1 and 2 of the indictment filed on 7 March 2006.

DIRECTOR OF PUBLIC PROSECUTIONS v MICHAEL STUART JOHN LYNCH

5 I agree with the reasons for judgment of Blow J and the orders he proposes.

DIRECTOR OF PUBLIC PROSECUTIONS v MICHAEL STUART JOHN LYNCH

6 This application concerns the admissibility of photo identification evidence. The respondent was tried on two counts of indecency contrary to the Criminal Code, s137(a). It was alleged that on two occasions he pretended to masturbate when naked and in public view. Count 1 related to an alleged incident on 4 November 2004, and count 2 to another at or about the same place on 8 November 2004. An eye witness gave evidence as to count 1, but no identification evidence was led from her. The prosecution case in relation to both charges depended on the evidence of an eye witness to the second alleged crime, a 14 year old girl, Miss Pasalic. The Crown sought to lead evidence of her identification of the respondent from a police photoboard containing twelve photos. The evidence was objected to. The learned trial judge conducted a voir dire and decided to reject the evidence. The respondent was acquitted on both counts. The applicant has applied for leave to appeal in relation to both acquittals pursuant to the Criminal Code, s401(2)(b).

7 The learned trial judge gave brief oral reasons for rejecting the photo identification evidence at the conclusion of the voir dire on 4 April 2006. At the conclusion of his ruling, there was a short adjournment. Upon his return to the bench he said that he would write reasons for his ruling and publish them at a later time. The respondent was acquitted later that day. The applicant filed notice of this application the following day, 5 April. Notice of such an application has to be filed within seven days after an acquittal: Criminal Code, s407(3)(b). His Honour published written reasons for the ruling exactly four weeks after the ruling, on 2 May 2006. The applicant submitted that the written reasons were not the reasons that the learned trial judge had in mind at the time of his ruling; that the real reasons for the ruling were the ones expressed by him at the trial; and that we should therefore have no regard to the written reasons.

8 In Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at 1610, Gleeson CJ, McHugh and Gummow JJ said:

"To suggest that a trial judge has not properly considered a party's case is a serious charge. Such a suggestion should be accepted only when the record of the trial or other evidence persuasively suggests that the judge failed to discharge that paramount judicial duty."

Here, it is suggested that his Honour gave an important ruling without considering all the matters be referred to in his written reasons, and later sought to rationalise his ruling by publishing those written reasons. That suggestion is a very serious one.

9 In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, which concerned a collision between a van and a horse, and a finding of a trial judge based on credibility, Gleeson CJ, Gummow and Kirby JJ said at 132:

"No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another."

10 In his written reasons, the learned trial judge dealt with topics not mentioned in his oral reasons. However, there is nothing in his written reasons that is inconsistent with anything he said in his oral reasons. It would have been desirable for the written reasons to have been published much earlier than they were, but I have no reason to doubt the honesty of the learned trial judge in asserting that the written reasons were his reasons for rejecting the impugned evidence.

11 I have come to the conclusion that the outcome of this application should be the same, whether the written reasons are taken into account or not. No argument was presented to us as to whether the trial judge was functus officio when he published the written reasons, nor as to the status of reasons for a ruling published after the conclusion of the proceedings against the respondent. In the circumstances, I will consider both the oral and written reasons given by his Honour for the rejection of the evidence.

12 Miss Pasalic gave evidence on the voir dire that on 8 November 2004 at about 4pm she was walking home when a man jumped out in front of her, nude. She said that she froze; that he was about three metres away; that she did not look at his groin; that she turned around and ran home; and that she did that because she was scared and confused. She said that the man was white; that his face was chubby; that he had a hairy chest; that he had light bluish eyes; that he was wearing a black beanie; that she estimated he was about 38 to 40 years old; and that he was 170 centimetres tall. There was evidence that on 16 February 2005 a police officer showed her a photoboard containing twelve colour photographs of men, and that she then identified one of the photos as a picture of the man she saw, and signed that photo. Miss Pasalic said she was 95 per cent sure that it was the person she saw, and that that was because the man was wearing a black beanie and she did not see his hair. Under cross-examination she said that the beanie covered the man's ears; that it covered some of his forehead; that it came close to his eyebrows; and that it came some way down the back of the neck. None of the men in the photographs were wearing beanies. She said she had not seen the man in question before or after the day in question. The photo showed a mark or mole on the respondent's right cheek, but Miss Pasalic said that she did not see such a mole or mark on the man on the day. When cross-examined about the day she was shown the photoboard, she said that the police officer asked her to identify the man, and said that, if he was not on the photoboard, that was fine.

13 A statutory declaration made by a Detective Senior Constable Callinan was tendered by consent on the voir dire. He declared that he spoke to the respondent on 8 November 2004, and that the respondent then denied any involvement in the matter, and declined to allow a search for the beanie. The declaration suggests that the respondent also refused to provide a photograph of himself.

14 The police officer who showed the photoboard to Miss Pasalic was Detective Rowe. It appears from her evidence that she obtained an order under the Forensic Procedures Act 2000, s8(1)(b)(ii), apparently permitting the photographing of the respondent, on 14 December 2004; that she took him to Hobart Police Headquarters on 11 January 2005 and photographed him there; and that it was the photograph taken on that occasion that Miss Pasalic identified on the photoboard on 16 February 2005. Apparently the tempo of the police investigation was affected by Detective Rowe taking leave, and by the pressure of other work. Detective Rowe gave evidence that, before showing the photoboard to Miss Pasalic, she told her that she was going to show her a photoboard depicting twelve males, and that the male she had seen may or may not be on that photoboard. She said that Miss Pasalic looked at the photoboard and almost immediately pointed out the respondent. She said she asked Miss Pasalic, out of 100 per cent, how sure she could be that it was the photo she chose, and that she said, "Ninety-five per cent ... because when the incident happened the male was wearing a beanie." Under cross-examination she said that she offered the respondent an opportunity to take part in an identification parade; that he declined; that that offer was made on the day she took the photograph; and that she could not remember whether she made the offer before or after taking the photograph.

Evidence Act 2001, ss135 and 137

15 In his oral reasons for rejecting the evidence of the identification by Miss Pasalic of the photograph of the respondent, the learned trial judge said:

"The problem is that although the witness was able to make an identification from one of the photographs proffered, my conclusion is that the prejudicial value of that, given that it forms a central part of the prosecution case, indeed without it the prosecution case is seriously weakened, that the prejudicial effect of that identification and the formal identification outweighs the probative value."

His written reasons also involved a weighing up of "probative value" and "prejudicial effect".

16 The objection to the photo identification evidence was apparently communicated to the learned trial judge in chambers, and not in open court, with the result that the words used by counsel when objecting have not been transcribed. That should not have happened. The objection was a very important part of the trial. The whole of the trial should have been open to public scrutiny: Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495. However it is clear enough that the objection must have been to the effect that there was something prejudicial about the identification evidence which outweighed its probative value, and that it should therefore be excluded.

17 The relevant provisions of the Evidence Act 2001 are ss135 and 137. They read as follows:

"135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

"137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

18 Section 137 does not confer a discretion. The use of the word "must" indicates that it gives the trial judge no discretion. It requires an evaluation and comparison of the probative value of the evidence and the danger, if the evidence were to be admitted, of unfair prejudice to the accused person. The identical section in the New South Wales legislation was considered by that State's Court of Criminal Appeal in R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326, in which Sheller JA, with whom James and Dowd JJ agreed, said at 332 - 333:

"When an application is made by a defendant pursuant to s137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion ...

Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected."

19 At common law, a trial judge had a discretion to exclude evidence whose probative value was outweighed by the risk of unfair prejudice to the accused. See, for example, Alexander v R [1981] HCA 17; (1981) 145 CLR 395 at 402 - 403. Despite s137 having done away with any discretion in cases to which it applies, it is clear from comments made by the learned trial judge at the beginning of his oral ruling, and in pars21, 22 and 24 of his written reasons, that he thought the power to exclude the photo identification evidence was discretionary. When an objection is taken at a criminal trial to the effect that there is something prejudicial about a piece of evidence which outweighs its probative value, the trial judge should ordinarily first consider whether s137 makes the evidence inadmissible. That is because no question of the discretionary exclusion of the evidence under s135(a) can arise if s137 makes the evidence inadmissible. The learned trial judge did not refer to s137 in his written reasons, though he did mention it once during counsel's submissions. It may be that he overlooked it, or that he misunderstood what it required.

20 However, as I understand the applicant's submissions, his principal complaint is not that the learned trial judge erred in overlooking s137, or in thinking he had a discretion when he did not, but that his Honour misunderstood the nature of the prejudice or potential prejudice with which ss135 and 137 are concerned, and therefore erred in the performance of the "weighing exercise" that he undertook. Since his Honour excluded the evidence, rather than purporting to exercise a discretion not to exclude it, I do not think it matters if he wrongly thought that s137 conferred such a discretion.

21 The term "probative value" is defined in the Evidence Act, s3(1), as follows:

"'probative value' means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue".

22 The principal matters relevant to the assessment of the probative value of the photo identification evidence were as follows:

* Miss Pasalic's evidence as to the opportunity she had to observe the alleged offender, particularly as to the time of day (4pm), the distance to him (about three metres), her emotional state (upset, scared and confused), the duration of the encounter (apparently very short), and the wearing of the beanie.

* The evidence of the description given by Miss Pasalic of the alleged offender following the incident, which apparently was consistent with the respondent being the man she saw.

* The fact that there was no identification parade.

* The evidence as to Miss Pasalic identifying the respondent's photograph, and the speed and certainty of that identification.

* The appearance of the men in the twelve photos. (All are caucasian males apparently between about 30 and 60 years old. The photos are all in colour.)

* The fact that the identification was from a photograph, which did not permit Miss Pasalic to observe the respondent's height or build.

* The unchallenged, uncontradicted evidence of Miss Pasalic and Detective Rowe to the effect that Miss Pasalic was told that the man she saw might or might not be depicted in the photographs, and that it was fine if she was unable to identify anyone from the photographs.

* The evidence that Miss Pasalic did not know the respondent and had not seen the alleged offender before or after the alleged incident.

* The evidence that Miss Pasalic did not notice a mark or mole on the right cheek of the man she saw.

* The fact that there was an interval of 100 days between the alleged encounter on 8 November 2004 and the identification from the photographs on 16 February 2005.

23 Section 137 requires a trial judge to assess "the danger of unfair prejudice" to the defendant, ie the danger that the admission of particular evidence will result in unfair prejudice to the accused. Similarly, s135(a) requires a trial judge to evaluate "the danger that the evidence might ... be unfairly prejudicial to a party". I find it difficult to imagine a situation in which the slightly different wording of the two sections could result in a situation where evidence is held to be admissible despite s137 but is excluded pursuant to s135(a) because of a danger that it might be unfairly prejudicial to an accused person. On the facts of this case, the danger of unfair prejudice to the respondent within the meaning of s137 and the danger that the evidence might be unfairly prejudicial to him within the meaning of s135(a) are identical concepts.

24 I turn to the assessment of the danger of unfair prejudice to the respondent. It is important to note that s137 uses the word "unfair". All evidence that tends to incriminate an accused person is prejudicial to that person. The section is concerned not with prejudice per se, but with unfair prejudice. To understand the term "the danger of unfair prejudice" in s137, it is useful to have regard to the Australian Law Reform Commission's Interim Report No 26, Evidence, Vol 1, par644, which includes the following:

"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."

25 In Festa v R [2001] HCA 72; (2001) 208 CLR 593, which concerned the common law discretion to exclude evidence whose prejudicial effect outweighed its probative value, McHugh J said at 609 - 610:

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

26 In that case at 602, Gleeson CJ said the following as to dangers associated with photo identification evidence:

"There are two principal dangers associated with identification by means of selection from a group of photographs. ... There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. But there is also a risk of a different kind. The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history. A similar risk arises where identification is made in circumstances suggestive of a criminal background, such as where a person is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions. This is sometimes called the rogues' gallery effect."

27 Neither of those risks was present in this case since Miss Pasalic said she had not seen the respondent before or after the alleged incident, and the evidence would have revealed that the police did not have the respondent's photo until January 2005. The Crown needed to lead evidence from Detective Rowe to prove that the identified photo was one that she took of the respondent in that month. There was available evidence that that photo was taken weeks after the alleged crimes, and that the respondent lived near the scene of them. There was no need for the jury to receive evidence that he had refused to provide a photo, nor that an order had been obtained authorising the compulsory taking of the photograph.

28 The only possible danger was that the jury might have given the photo identification evidence more weight than it deserved. The acceptance of identification evidence has often led to proven miscarriages of justice. Judges are therefore required to give juries detailed warnings of the risks of relying on identification evidence: Domican v R (1992) 173 CLR 55; Evidence Act, ss116, 165(1)(b), 165(2). In R v Marshall [2000] NSWCCA 210; (2000) 113 A Crim R 190 at 192, Spigelman CJ, with whom Heydon JA (as he then was) and James J agreed, said:

"The prejudice often associated with identification evidence is that, although mistaken, it is frequently given with great force and assurance by the person who made the identification. These are matters about which witnesses frequently refuse to admit the possibility that they might have erred and, accordingly, give evidence in a particularly definitive form."

29 In his oral reasons, the learned trial judge rejected a submission that Miss Pasalic's age made her "more susceptible to misdescription". He accepted that the probative value of the evidence was adversely affected by the brief period during which she said she saw the man, her emotional reaction, the wearing of the beanie, and the delay between November and February.

30 His Honour referred to the fact that another witness to be called at the trial was unable to make a positive identification from the same photoboard. In my view that fact did not adversely affect the probative value of the evidence of the identification of the respondent by Miss Pasalic. If the other eye witness had identified the respondent when shown the photoboard, the evidence against him would have been stronger, but that is beside the point.

31 His Honour then went on to state his conclusion that the prejudicial effect outweighed the probative value, in the terms that I have already quoted. He did not say anything further as to the nature of the prejudice, or possible prejudice, that he perceived.

32 His Honour's written reasons contained material relating to the "displacement effect" and the "rogues' gallery effect", as well as material relating to the evils of dock identifications and identification from a single photograph. That material related to dangers that did not arise in this case. His Honour also referred to comments made in a number of cases relating to identification parades. He made this comment:

"There was no evidence that the accused had been properly advised of a safer and more verifiable procedure in the form of an identification parade. Such a procedure could have been offered before the exercise of a statutory power and detention. The evidence was of a 'least preferred' nature."

33 The last sentence in that passage referred to the photo identification evidence. It is true that evidence of a properly conducted identification parade, if available, would have been preferable. However I do not think it was appropriate to characterise the available evidence by use of the words "least preferred" since it was evidence of identification from twelve colour photographs without prompting, and without suggestion that the alleged offender was depicted in one of the photos. Despite all the matters that I have referred to that adversely affected the probative value of the evidence, the evidence in question was nowhere near the bad end of the spectrum of identification evidence that courts encounter. There was no evidence that the advantages of an identification parade were not explained to the respondent, nor was there any evidence that he was unaware of those advantages. In my view the question whether the advantages of an identification parade were explained to the respondent is irrelevant to the assessment of the danger of unfair prejudice. That is because there is no reason to think that evidence as to whether or not those advantages were explained to him could lead a jury to attach undue weight to the photo identification evidence, or to become inflamed and diverted from their task. Evidence as to the fairness or otherwise of a police investigation could be relevant to the exercise of the s135 discretion, but only if a finding were made that the probative value of the impugned evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused. In that context, the burden of proving facts material to the exercise of the exclusionary discretion conferred by s135 rested on the respondent as the party seeking the exercise of that discretion. Since the respondent bore that onus and did not adduce any evidence as to whether he had been advised of the advantages of an identification parade, it was wrong for the learned trial judge to take into account in the respondent's favour the fact that there was no evidence of him having been advised by the police of those advantages.

34 The Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW) both contain sections relating to visual identification evidence (s114) and evidence of identification by pictures (s115) which the Tasmanian Parliament chose not to include in the Evidence Act (Tas). Under s114, visual identification evidence adduced by a prosecutor is not admissible unless an identification parade that included the defendant was held, or it would not have been reasonable to have held one, or the defendant refused to take part in one. Under s115(2), picture identification evidence adduced by a prosecutor is not admissible if the pictures suggest that they are pictures of persons in police custody. Under s115(5), prosecution picture identification evidence is not admissible if the defendant was in police custody when the pictures were examined unless the defendant refused to take part in an identification parade, or the defendant's appearance had changed significantly from when the offence was committed, or it would not have been reasonable to have held an identification parade including the defendant. Under s115(3) and (4), prosecution picture identification evidence is not admissible if the defendant was in police custody when the pictures were examined, and the picture of the defendant was made before he or she was taken into police custody, unless his or her appearance had changed significantly since the offence was committed, or it was not reasonably practicable to make a picture of the defendant after he or she was taken into custody. Under s115(8), there is an exception whereby a prosecutor may adduce picture identification evidence to contradict or qualify picture identification evidence adduced by a defendant.

35 Plainly ss114 and 115 are intended to promote the use of identification parades and reduce the use of photo identification evidence so that, as far as is reasonably possible, juries will be presented with identification evidence of the most reliable kind. Since those sections were not adopted by the Tasmanian Parliament, the proper course in this State, when there has been no s138 objection on the basis of impropriety, is to evaluate the probative value of the photo identification evidence without taking into account the fairness of the investigation. It is relevant that evidence of identification at a properly conducted police identification parade would have been more highly probative. But the fairness or otherwise of the police investigation is irrelevant to the weighing exercises required by s137 and s135. In treating the impugned evidence as evidence of a "least preferred" nature, his Honour erred.

36 His Honour also took into account the fact that the identification of the photo by Miss Pasalic was not recorded in such a way as to permit examination of the reliability of her identification, referring to "the potential for wrongful conviction and abuse of power". However Miss Pasalic was a witness independent of the police, and his Honour said in his oral reasons that he was satisfied that she was an honest witness. The only power that any police officers exercised was the power to detain and photograph the respondent under the Forensic Procedures Act. Those matters all compel a conclusion that there was no real risk of an abuse of power, nor of anything significant having gone unrecorded on the day that Miss Pasalic identified the photo. Had there been any such risk, that would have been very relevant to the assessment of the probative value of the impugned evidence. But in the circumstances, I think his Honour erred by attaching undue weight to the fact that the identification of the photo by Miss Pasalic was not recorded.

37 At the beginning of the trial, counsel for the respondent applied for the two counts in the indictment to be severed. That application failed. In his written reasons for rejecting the photo identification evidence, his Honour said the following:

"The State had successfully resisted an application for severance. No criticism attaches to counsel for either the intended use of the evidence or the opposition to severance. But the two matters weigh in favour of the accused in any discretionary exercise."

38 The "two matters" must have been (i) the Crown's intention to rely upon the photo identification evidence in relation to both counts on the indictment; and (ii) the Crown's opposition to the unsuccessful severance application. However the course taken by the Crown in relation to that application was completely irrelevant to the weighing exercise required by s137 and s135. Further, the fact that the evidence of a positive identification by Miss Pasalic in relation to count 2 was intended to be used as a piece of circumstantial evidence as to count 1 neither lessened the reliability of Miss Pasalic's evidence nor increased the danger of the jury giving it undue weight. I do not think the photo identification evidence has significantly less cogency in relation to count 1 than count 2. If the respondent was the man that Miss Pasalic saw on 8 November, it is most unlikely that a different naked man also pretended to masturbate in public at the same place four days earlier. In my view his Honour erred by taking into account the Crown's opposition to the severance application and its intention to rely upon Miss Pasalic's evidence in relation to count 1.

39 In his written reasons, the learned trial judge undertook an evaluation of the cogency of the photo identification evidence. In the course of that analysis, his Honour said this:

"The makeup of the photoboard itself might have enhanced the process of displacement and/or caused her [Miss Pasalic] to select the accused by a process of exclusion or elimination."

(i) Since Miss Pasalic did not know the respondent and had not seen the alleged offender before or after the alleged crime, there was no possibility of any process of displacement, let alone the enhancement of such a process.

(ii) Since there was unchallenged and uncontradicted evidence from both Miss Pasalic and Detective Rowe to the effect that the detective told Miss Pasalic that the man she had seen might or might not be in the photos, there was no reason to suspect that Miss Pasalic might have undertaken "a process of exclusion or elimination".

(iii) There was nothing unsatisfactory about the photoboard. It cannot be said that any of the men depicted in it were so unlike the respondent that their photos should not have been included. There were twelve colour photographs. There was nothing about the layout that might have encouraged Miss Pasalic to select the photo of the respondent.

40 His Honour went on to undertake an evaluation of the likely effectiveness of a direction to the jury as to the need for caution in relation to the identification evidence. When identification evidence has been admitted, the Evidence Act, s116(1), requires a trial judge to inform the jury that there is a special need for caution before accepting identification evidence, and of the reasons for that need for caution, both generally and in the circumstances of the case. His Honour wrote this:

"I could not see how the matter could be remedied by the 'appropriate' direction as suggested by prosecuting counsel. General directions would have been provided as to the risks of identification, but could not have been 'doubled' in the case of events of 4 November. The combination of a circumstantial case with direct identification might have been compelling, and in the words of Cox CJ in Gatty (supra) at par12:

'... the use of [the] material would be so prejudicial as to constitute unfairness which no amount of detailed directions could be sure to counteract'."

41 His Honour was referring to R v Gatty [2001] TASSC 9. That case concerned the armed robbery of a shop. Cox CJ exercised the common law discretion to exclude evidence as to the identification of the accused by the victim of the robbery. A police officer showed the victim a photoboard containing twelve full face photographs of men. The victim picked the photograph of the accused as very similar to the offender, but said that she could not be sure, and asked if the police had any side-on photographs. The police officer later showed her another photoboard with the profiles of twelve men on it, ten of them being men whose photos appeared on the first photoboard. The victim identified the accused as looking exactly the same as the offender. She said she was willing to involve herself in an identification parade, but the police instead arranged for her to see the accused at a shopping centre. By chance, she saw him on the way to the shopping centre. She made a positive identification of him at the shopping centre. Obviously that was a case in which both the displacement effect and the rogues' gallery effect were very significant. The displacement effect might have led to a positive identification when the witness viewed the second photoboard, and when she saw the accused in the flesh. The rogues' gallery effect was particularly strong because of the second photoboard showing profile photographs. Cox CJ said at par9, "Evidence of that board would be highly prejudicial to the accused because the probability is overwhelming that a jury would conclude that all persons on it were adversely known to the police." Since neither the displacement effect nor the rogues' gallery effect could have been significant in this case, Gatty should be distinguished as a case that turned on its own facts.

42 Section 116 requires not just directions as to identification evidence, but a warning. It requires both general directions and directions specific to each case in relation to the need for caution. Contrary to the conclusion of the learned trial judge, the giving of an appropriate s116 warning in relation to count 1 was not impossible. Had the impugned evidence been admitted, the appropriate course would have been to warn the jury of the special need for caution in relation to identification evidence, to explain all the factors that made caution necessary in relation to the evidence of the identification by Miss Pasalic, to give a routine direction as to circumstantial evidence relating to count 1, and to give a routine direction as to coincidence evidence relating to count 1. Since the respondent's guilt in relation to count 2 was an essential part of the Crown's case in relation to count 1, it would have been necessary to direct the jury that they needed to be satisfied beyond reasonable doubt that the respondent was guilty on count 2 before it could be open to them to find him guilty on count 1: Shepherd v R [1990] HCA 56; (1990) 170 CLR 573. Formulating the necessary directions and warnings would not have been unusually difficult. The factors relevant to the reliability of the identification evidence, which I have listed above in a series of dot points, would not have been hard to explain, nor would the danger of giving the identification evidence more weight than it deserved. In my view his Honour erred in reaching a conclusion to the effect that any direction to the jury as to the need for caution in relation to the identification evidence was likely to be ineffective.

43 If the photo identification evidence had been admitted, the danger of unfair prejudice, whilst present, would not have been great, in my view. The only danger was the danger that the jury would attach undue weight to that evidence. That is a danger that is always present when identification evidence is adduced. The displacement effect and the rogues' gallery effect presented no danger in this case. The critical question is whether the danger of unfair prejudice outweighed the probative value of the evidence. The probative value of the evidence was adversely affected by a number of factors, particularly the fact that an identification parade was not conducted, and the delay of 100 days before Miss Pasalic inspected the photoboard. But in my view the only reasonable conclusion in all the circumstances was that the danger of unfair prejudice was so low that it did not outweigh the probative value of the evidence. I think that the learned trial judge reached the opposite conclusion because of the errors that I have referred to. I conclude that his Honour erred by rejecting the photograph identification evidence.

44 Under the Criminal Code, s401(2)(b), this Court has a discretion to grant or refuse leave to appeal against the acquittals of the respondent. His counsel did not submit that leave should be refused. Different views have been expressed as to the appropriate test when considering such an application for leave: R v Jenkins [1970] Tas SR 13 per Crisp J at 16; R v Jessup [1974] Tas SR 64 per Nettlefold J at 89 - 96. In my view this application raises questions of general importance as to the weighing exercise required by s137, the proper assessment of the probative value of photo identification evidence, and the proper assessment of the danger of unfair prejudice when such evidence is admitted. According to either of the tests formulated in the cases I have referred to, this must be an appropriate case for the granting of leave.

45 Counsel for the respondent submitted that if, contrary to his submissions, the rejection of the identification evidence involved error, this Court should "apply the proviso", ie, dismiss the appeal pursuant to the Criminal Code, s402(2). That subsection reads as follows:

"(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

46 The proviso is ordinarily considered in appeals against convictions. In the present context, we could conclude that "no substantial miscarriage of justice has actually occurred" only if we were satisfied that, had the photo identification evidence been admitted, the jury would or should have entertained a reasonable doubt as to the guilt of the respondent. The question for us is therefore the same sort of question as was considered by the High Court in such cases as Chidiac v R [1991] HCA 4; (1991) 171 CLR 432 and M v R [1994] HCA 63; (1994) 181 CLR 487. The difference is that we have to consider together the evidence that was heard on the voir dire but rejected, and the evidence that was adduced before the jury. To some degree the photo identification evidence lacks probative force in various respects that I have already discussed. However the evidence relied on by the Crown would need to be substantially weaker or substantially less reliable before an appellate court could properly conclude that a jury ought to have entertained a reasonable doubt. For example, in Carr v R [1988] HCA 47; (1988) 165 CLR 314, guilt depended almost entirely on an unsigned but disputed admission to the police. In R v Ralph and George (1988) 37 A Crim R 202, the only evidence against the accused was the uncorroborated evidence of an accomplice who was a convicted criminal, an admitted liar and perjurer, and someone capable of clever deception. In M v R (supra), the uncorroborated evidence of the complainant was inconsistent with medical evidence, there was a lengthy delay in the making of her complaint, and there were a number of inconsistencies with circumstances clearly established by the remaining evidence. If the jury had received the impugned evidence and convicted the respondent on each of the relevant counts, those matters would not have led me to conclude, after making full allowance for the advantages enjoyed by the jury, that there was a significant possibility that an innocent person had been convicted. It follows that I do not consider that this is a case in which, the respondent having been acquitted on both counts, no substantial miscarriage of justice has actually occurred.

47 For these reasons I would grant leave to appeal, allow the appeal, set aside the acquittals, and order a new trial of the respondent on counts 1 and 2 on the indictment filed on 7 March 2006.

DIRECTOR OF PUBLIC PROSECUTIONS v MICHAEL STUART JOHN LYNCH

48 I have had the opportunity to read the reasons for judgment of Blow J with which I agree.

49 I would also grant leave to the Crown to appeal, allow the appeal, set aside the acquittals of the respondent on 4 April 2006 and order there be a new trial of the respondent on the counts on the indictment dated 7 March 2006.