Festa v R [2001] HCA 72; 208 CLR 593; 185 ALR 394; 76 ALJR 291

High Court of Australia|2001-12-13|Before: Callinan JJ

For the reasons given by Kirby J and Callinan J, the case against the appellant was so strong that, although ground 3 has been made out, there was no miscarriage of justice. The appeal should be dismissed.

McHUGH J. After a trial by jury in the District Court of Queensland, Ms Brunetta Festa and her co-accused, Renton, were convicted on charges of armed robbery and unlawful use of vehicles. The charges against Ms Festa related to two armed robberies on the Gold Coast, the first committed at the Biggera Waters branch of the National Australia Bank on 27 May 1996, the second at the Bank's Paradise Point branch on 13 June 1996[17]. A man and a woman were identified as committing those two robberies. The central issue at their joint trial was whether Renton was that man and Ms Festa that woman.

. The identification evidence. Were the circumstances in which four witnesses identified Ms Festa such that the trial judge should have rejected their evidence?

. The identification directions. If all or some of the identification evidence was admissible, did the trial judge adequately direct the jury concerning the deficiencies in that evidence?

. The tools of trade evidence. Was evidence of the discovery of weapons and ammunition in Renton's unit admissible?

. The tools of trade directions. If the evidence concerning the weapons and ammunition was admissible, did the trial judge err in directing the jury as to the use that they could make of the evidence?

. The association direction. Did the trial judge err in directing the jury as to the use that they could make of Ms Festa's association with Renton?

. The effect of the proviso. If the trial judge erred in admitting evidence or directing the jury, should the appeal be dismissed on the ground that no substantial miscarriage of justice has occurred?

In my opinion, the learned trial judge erred in his directions concerning the identification evidence and in admitting the tools of trade evidence, but in no other respect. Despite these errors, the case against Ms Festa was so strong that a reasonable jury, properly directed, would have convicted her on the admissible evidence.

On 3 May 1996, Renton was released from prison. While imprisoned, he wrote letters to Ms Festa, who lived in a unit at Runaway Bay ("the Kangaroo Avenue unit") with a man named Con Christef and her young child. Renton had got her address from a relative of Christef. Shortly after his release, Renton contacted her at that unit. The first of the armed robberies - in relation to which Renton alone was charged - occurred at the Morningside branch of the National Australia Bank, five days after his release from prison.

Eleven days after the Morningside robbery, Renton leased a unit ("the Pine Ridge Road unit") under the name of Donald White, paying the landlord $1,160 in cash. Ms Festa was a regular visitor to the unit, for which she had a set of keys; on at least one occasion she used the swimming pool at the units. She told police that she went shopping with Renton "every day", that he did not have a girlfriend, and that he did not know anyone else "down here". She also admitted to knowing that Renton was stealing cars and to "driving him around". The Crown relied on the association between Ms Festa and Renton to prove that she was the woman taking part in the bank robberies at Biggera Waters and Paradise Point.

After Ms Festa and Renton were arrested, police officers conducted a search of the Pine Ridge Road and Kangaroo Avenue units. They found $2,800 cash at the Pine Ridge Road unit, including a large number of $5 notes. When Ms Festa was arrested, she was carrying $850 cash in her wallet, including 25 $5 notes. The variety of denominations in which the money was found was consistent with it having been stolen from the banks.

The Pine Ridge Road unit had various items of new furniture and electrical equipment. Cash receipts indicated that some items had been bought or paid for on 22 May 1996, 14 days after the Morningside robbery. A receipt found at the Kangaroo Avenue unit indicated that one "D White" - a man answering Renton's description - had paid a deposit of $4,300 in cash for a yellow Toyota sedan. That car had been parked outside the Pine Ridge Road unit. Renton and Ms Festa were in it on 19 June 1996 shortly before they were arrested.

Police officers also found numerous items in the two units which, in the words of the Court of Appeal, were "not a common concomitant of suburban life among law-abiding members of the community". Guns were discovered in the Pine Ridge Road unit. There had been little, if any, effort to conceal them - one was lying across a chair in the lounge room. The guns had been purchased on 17 June 1996, four days after the last robbery. Police officers also found various types of ammunition, some of which did not match any of the guns found but did match the type of firearms described by witnesses as being used in the robberies[18]. Other items found in the Pine Ridge Road unit included a sledge hammer - a sledge hammer had been used in the Biggera Waters robbery - a made-up poster of Renton with the caption "Armed robber eludes police again", an instruction manual for a radio scanner that was found in the yellow Toyota and an earpiece matching a scanner left at the scene of the Biggera Waters robbery.

Other objects found in the units belonged to owners of vehicles that were stolen and used in connection with the robberies and were the subject of the unlawful use counts. Items belonging to a Mrs Sutton, the owner of a white Mazda sedan, were found in the Kangaroo Avenue unit, in Christef's gold-coloured Mercedes (regularly used by Ms Festa and frequently seen outside the Pine Ridge Road unit) and at a service station in Runaway Bay that Ms Festa frequented. Property belonging to a Mr Pilbeam, the owner of a red Laser sedan, was found in the Mercedes and at the service station.

Mrs Sutton's Mazda sedan was taken from a car park on 9 June 1996; Mr Pilbeam's Laser sedan was taken from where he had parked it on 6 June 1996. Four of the cars taken and used in the robberies had had their ignition locks removed prior to being "hot wired". Other cars had scratch marks or damage to the ignition consistent with attempts to do so. Police officers found an implement capable of being used for that purpose in the Pine Ridge Road unit.

The cars belonging to Mrs Sutton and Mr Pilbeam were seen by witnesses on 13 June 1996 in circumstances proving or at least strongly suggesting that they were used in the Paradise Point robbery. In fact, the male robber rammed Mrs Sutton's Mazda into the doors of the bank. He fled from the scene in Mr Pilbeam's Laser, driven by a woman. One witness saw a loaded shotgun in the Laser. Twelve gauge shotgun cartridges were found in the Laser when it was recovered. Before, during and after the robbery, witnesses saw a man and woman loading a bag or bags into or out of one or both of these and other vehicles, including the gold-coloured Mercedes. The Court of Appeal said that it was a fair inference that the man and woman were changing from one car to another in order to avoid detection or pursuit.

Witnesses to the robberies also asserted that the two participants used disguises. Police officers found a can of hair and wig sheen, two wig stands and a set of instructions on the use of disguises at the Pine Ridge Road unit, along with a bottle of spirit gum remover. The can of wig sheen and the bottle of spirit gum remover had Ms Festa's fingerprints on them.

In support of the charges, the Crown also relied upon the evidence of four witnesses who identified Ms Festa as being present in circumstances that indicated that she was involved in the robberies and in the unlawful use of the vehicles with which she was charged. Three witnesses, Mr Fyffe, Ms Ogilvie and Mr James, identified her as being present in circumstances indicating that she was involved in the Biggera Waters robbery. Mr Hill, the other witness, identified her as being present near the scene of the Paradise Point robbery.

On the day of the Biggera Waters robbery, Mr Fyffe twice saw a man and a woman acting suspiciously near his home. On the first occasion, they were in separate cars. On the second occasion, they were in the same car. Although he identified Renton from a photoboard as the man he had seen, he could not identify the woman he had seen from the books of photographs that he was shown. Those books did not include any photographs of Ms Festa. In October 1996 at the Southport Court House, however, he identified her as the woman driver whom he had seen on the day of the robbery.

While Ms Ogilvie was sitting in her parked car near the Biggera Waters Shopping Centre on the day of the robbery, she saw a man and a woman driving the same cars as Mr Fyffe had seen. Upon parking their cars one behind the other on the opposite side of the street to Ms Ogilvie, the man and the woman proceeded to take things out of one car and put them into the other. They then drove off together in the second car. Ms Ogilvie was a hairdresser. She was certain that the woman was wearing a wig. She also thought that the woman was wearing a dark green tracksuit. At the Southport Court House in October 1996, Ms Ogilvie identified Ms Festa as the woman she had seen.

On the day of the robbery, a woman parked her car - of the same make and colour as one of the cars identified by Mr Fyffe and Ms Ogilvie - underneath the block of units where Mr James lived. He described the woman as being approximately 5 feet 5 inches or 5 feet 6 inches tall, in her late thirties and wearing a blue tracksuit. She left the engine running. When she came out from the car park, Mr James criticised her for parking there. She said that she would not be long. Later, Mr James saw the woman go past the units in another car, seated next to a male driver. He identified Renton from photographs as the male, but was unable to identify Ms Festa from photographs shown to him. At the Southport Court House in October 1996, after watching Ms Festa walk and hearing her talk he identified her as the woman he had seen at the units. Mr James conceded that this voice identification of Ms Festa was based on him hearing her speak some six words at the units and six words at the Court House, four of which were small, everyday words. At the units, the woman had said, "I'll be back in a minute". At the Court House, he heard Ms Festa say "Oh, I'm in the wrong court".

Thus, the identification of Ms Festa by the three witnesses to the Biggera Waters robbery rested largely upon their seeing her at the Southport Court House in October 1996, at least four months after the robberies were committed. Upon their arrival at the Court House, one of the investigating police officers, Detective Holmes, spoke to the witnesses collectively, telling them, in the words of Ms Ogilvie, "that if we seen anything that we thought looked like the second person to let him know". The three witnesses conceded in cross-examination that Ms Festa may have been the only woman at the Court House that day who was in the age range of 25-30 and who came close to matching the description they had previously given of her.

The one witness to the Paradise Point robbery, Mr Hill, worked at a salon close to the bank. After hearing a commotion near the salon, he turned and saw a woman in a car outside the bank. He observed her for 20-30 seconds. Although Mr Hill could not see her face very clearly, he noted that she had brown hair. In his original statement Mr Hill described the woman as fair, but at the trial he said that she had an olive complexion. Mr Hill was unable to identify Ms Festa from a board of photographs. The best he could do was to provide the numbers of photographs that he thought showed women similar to the woman he had seen. One of these numbered photographs was a photograph of Ms Festa.

Ms Festa did not give evidence at her trial. In fact, on day 12 of the hearing she failed to appear - which was a breach of her bail conditions. Hanger DCJ continued the trial in her absence. On appeal, she did not contest that the jury could regard her absconding as indicating a consciousness of her guilt.

Ms Festa contends that the trial judge erred in not excluding the identification evidence. It was, she claims, of low probative value and of a highly prejudicial character and obtained by an irregular process. She argues that, because of the absence of precautions usually observed by police in formal identification parades, the identification evidence of Ms Ogilvie, Mr Fyffe and Mr James resulted in a miscarriage of justice.

Hanger DCJ admitted the evidence of the four witnesses on the basis that the jury was the proper body to determine what weight should be attributed to that evidence. His Honour said that the evidence was not so unfair to Ms Festa that it called for the exercise of his discretion to exclude it, although he conceded the identifications were of little weight, particularly that of Mr Hill.

The evidence identifying Ms Festa as the woman seen on the days of the robberies was weak. The identifications were obtained in circumstances marked by an absence of the precautions usually taken in the identification of suspects. They were made in informal circumstances, as Ms Festa was entering a court building[19] unaccompanied by any other women[20]. No police officer kept a record of the identification process. No-one made notes of the process. No-one took photographs of the identifications or recorded them on video camera[21]. By asking the witnesses to look out for the female participant and allowing them to remain together, Detective Holmes also removed the possibility of each witness spontaneously identifying Ms Festa as the woman he or she had seen[22].

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.

Nor is it an automatic ground of exclusion that the identification took place at a court house or after someone has suggested that a suspect may be present at a particular place. The courts have not gone so far as to say that a court house identification must be automatically excluded where a police officer or other person has suggested that the identifying witness should be on the lookout for the perpetrator of the crime at the court house. Such statements inevitably weaken the effect of the identification evidence. They are matters to be considered in determining whether evidence should be excluded because its probative value is outweighed by its prejudicial effect. Of itself, however, a statement such as that made by Detective Holmes does not provide a ground of exclusion.

Ms Festa contends that, by characterising the evidence as "more circumstantial than direct", Hanger DCJ effectively obviated the need to weigh the probative value of the evidence against its prejudicial effect. To understand the force of this contention, it is necessary to draw a distinction between positive-identification evidence and evidence of similarities between the accused and the perpetrator of a crime.

Most cases concerned with identification evidence are cases of positive identification. That is to say, cases where a witness claims to recognise the accused as the person seen on an occasion that is relevant to the charge. Positive-identification evidence may be used as direct or circumstantial proof of the charge. A positive identification of the accused is direct evidence of the crime when it identifies the accused as the person who committed one or more of the acts that constitute the crime in question. A positive identification is circumstantial evidence when its acceptance provides the ground for an inference, alone or with other evidence, that the accused committed the crime in question. A witness gives direct evidence of the charge when she testifies that the accused ordered her to hand over the takings. A witness gives circumstantial evidence of the charge when she testifies that the accused was the person who ran out of the bank immediately after other evidence proves it was robbed.

Positive-identification evidence has often proved to be unreliable. This Court has insisted that where identification evidence, direct or circumstantial, represents a significant part of the proof of guilt of an offence, trial judges must warn juries not only of the potential unreliability of that evidence but also of any particular weaknesses in the evidence, in the case being tried[23].

Unfortunately, another class of evidence is sometimes called "circumstantial identification evidence"[24]. It is evidence that asserts that the general appearance or some characteristic or propensity[25] of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature[26], colour or voice or of a distinctive mark or gait[27]. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence[28]. It is proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence[29].

When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence[30]. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings[31] that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence_._

Thus in R v King[32], the Court of Criminal Appeal of South Australia held that no special warning was required where the witness did not profess to recognise the accused as the person he had seen on the day of a robbery. The witness had described the man he saw as being about 6 feet 1 inch tall, of slim build, with blond hair which was fairly straight, and with a tattoo on his shoulder. Hogarth ACJ, Mitchell and Zelling JJ drew a distinction between positive-identification evidence and evidence that described a person in terms that broadly agreed with the physical characteristics of the accused.

"Recognition constitutes a mental process whereby one person, by observation, is able to establish to his own satisfaction the identity of another person. In so doing he no doubt takes into account the general physical characteristics of the person who he is recognising. But a complete catalogue of these personal characteristics, if supplied to a stranger, would be insufficient to enable that stranger to achieve the same act of recognition. At most he could say that the person at whom he is looking could be the man to be recognised, in that the description fits him. He could not say 'it is the man'; and it is evidence of the last category which constitutes recognition; it is that type of evidence of which the cases speak when they refer to evidence of identification. It is that type of evidence which the law requires, in certain circumstances, to be accompanied by a warning to the jury." (original emphasis)

Their Honours went on to say, correctly in my opinion, that "evidence which may be relevant on the issue of identity is not necessarily evidence of identification within the meaning of the cases"[34]. They held that the evidence of the witness was not evidence of that character.

The Court of Appeal of Queensland refused to follow R v King in R v Zullo[35], where two witnesses testified that "a man in a red shirt" stabbed the victim. Neither witness was able to identify Zullo as the killer. There was evidence that Zullo was wearing a shirt of a reddish colour that day and that he was in the vicinity when the victim died. The Court held that the trial judge should have directed the jury in accordance with the Domican principles. In my opinion, Zullo was wrongly decided on this point and should not be followed. There was no more danger of the witness being mistaken in giving this evidence than in most other forms of evidence.

R v Bartels[36], where no Domican type directions were given, was a borderline case. After raping a woman in a laundromat, the perpetrator struggled with her outside the laundromat and then ran down the street. A couple witnessed the struggle from far away. The light was not good. Shortly after, they saw a man jog past them in the otherwise empty street. They identified that man as the accused who conceded that he had jogged past them. They also identified him as the man in the struggle outside the laundromat. That identification was contested. The couple said that he had a similar build, and deduced that he was the same man as they saw run past moments later. Johnston J said that "this evidence was evidence of an assumption of identity based on circumstances, not evidence of visual identification"[37]. His Honour said that such a case "may call for some direction but not the warning applicable to identification evidence"[38].

The judicial discretion to exclude evidence in criminal cases applies to circumstantial identification evidence as much as it does to positive-identification evidence. When a trial judge is asked to exclude circumstantial identification evidence on the ground of unfairness, the judge must examine its probative value and its prejudicial effect (if any). In Alexander v The Queen - a case of positive-identification evidence from photographs - Gibbs CJ said[39]:

"[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."

And as Perry J pointed out in Murphy v The Queen[40]:

"However such evidence is given, and however it is expressed, whether as positive evidence of identification or as an opinion as to similarities, it is for the jury to assess the probative value of the evidence in the context of the evidence as a whole. The trial judge's discretion to exclude such evidence applies equally to both forms of expression." (emphasis added)

In the exercise of the discretion, however, the distinction between the two classes of evidence is important. Experience has shown that juries are likely to give positive-identification evidence greater weight than that to which it may be entitled. Few witnesses are as convincing as the honest - but perhaps mistaken - witness who adamantly claims to recognise the accused as the person who committed the crime or was present in incriminating circumstances. That is why this Court insisted in Domican v The Queen[41] that juries be given directions concerning:

. the dangers of convicting on recognition evidence where its reliability is disputed, and

. the factors (if any) that may affect the reliability of that evidence in the circumstances of the particular case.

In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. Because circumstantial identification evidence is usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasions for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positive-identification evidence.

Ms Festa claims that the trial judge should have made a positive assessment at the time of legal argument as to whether the "identification evidence" was positive-identification evidence or merely circumstantial identification evidence[42]. His Honour's directions to the jury treated all the "identification" evidence as circumstantial evidence in the same category as similarity evidence. This suggests that, in exercising his discretion to exclude this evidence, his Honour did not consider whether some or all of it was positive-identification evidence that had to be treated differently from circumstantial identification evidence. But his reasons for admitting the evidence were so compressed that it is impossible to form a firm view about the matter. Nevertheless, his Honour's reasons, brief though they were, indicate that he did engage in a balancing process and concluded that, weak though the evidence was, it was not unfair to the accused to admit it. Accordingly, although I have a strong suspicion - based on his subsequent directions and the argument of the Crown in support of admitting the evidence - that his Honour's discretion miscarried, Ms Festa has failed to establish that his Honour failed to exercise his discretion properly[43].

Nor was this a case where the only course open to his Honour was to exclude the evidence on the ground that its prejudicial effect outweighed its probative value. Much of the evidence was positive-identification evidence that required a Domican type direction. If such a direction was given, it could not be said that the trial judge, acting reasonably, must have excluded the evidence. In so far as the evidence was circumstantial identification evidence, nothing about it suggested that its prejudicial effect required its exclusion.

Ms Festa contends that, in directing the jury, the trial judge failed to distinguish between direct evidence of identification and circumstantial identification evidence. In his summing up, Hanger DCJ described the identification evidence as "not very strong". But his Honour told the jury that it was important evidence. He warned them to be very careful when evaluating it. He pointed out that people could, and did, make mistakes in identification, particularly when the person identified had not been known to them beforehand and where there had been little opportunity to observe them. Hanger DCJ instructed the jury to closely examine the evidence with an eye to details such as the distance between the witness and the person, and the length of time that elapsed between the original observation and the subsequent identification or purported identification. His Honour told the jury that it was for them to assess the quality of the evidence "in any particular case".

The learned trial judge did not specifically refer to the evidence given by Ms Ogilvie, Mr Fyffe and Mr Hill. Instead, Hanger DCJ gave a blanket warning with regard to the identifications, pointing out that most of the witnesses observed the person they subsequently purported to identify over fairly short periods of time. His Honour emphasised that the degree of certainty expressed by the witnesses "differed considerably", and that there were apparent inconsistencies at times between the evidence given at the trial and the original statements that they made to the police. So far as the witnesses' purported photoboard identifications were concerned, his Honour invited the jury to listen carefully to the tapes on which most of those identifications were recorded.

Hanger DCJ also directed the jury to bear in mind that there was evidence upon which they could conclude that the offenders in some instances may have worn disguises, making identification additionally difficult. That fact also went some way to explaining discrepancies in the descriptions given by the various witnesses. His Honour singled out the evidence of Mr James because it was based on a few words he heard Ms Festa say and her manner of walking. As this evidence was very different in kind from standard identification or purported identification evidence, Hanger DCJ pointed out that it was a matter for the jury to assess its weight and determine whether or not it was reliable.

Ms Festa submits that proper directions would have identified and explained:

(a) what evidence in the case could be considered direct evidence of identification;

(e) that the jury could not simply interchange both concepts[44], ie direct evidence and circumstantial evidence;

(f) that both concepts could not sit together in the case on the same evidence[45].

Although Hanger DCJ did not describe all of the identification evidence as circumstantial, his Honour's directions tended to treat all of it as falling into that category. This is apparent from his Honour's description of the nature of circumstantial evidence:

"Circumstantial evidence is sometimes compared with direct evidence. Direct evidence is evidence, for example ... of some person who actually saw the offender committing the offence, perhaps someone who knew him and there could be no doubt about identification and he said, 'Yes, I saw Bill Smith committing the offence.' That would be direct evidence. We don't have that here." (emphasis added)

However, that last sentence was only partly true. Some of the evidence identified Ms Festa as the person who unlawfully used vehicles that were the subject of separate charges. That was direct evidence of those charges. Other evidence was circumstantial. Thus, neither Ms Ogilvie nor Mr Fyffe nor Mr James witnessed Renton and Ms Festa committing the Biggera Waters robbery. They merely identified Ms Festa as the woman they saw in suspicious circumstances on the day of the robbery and in vehicles linked with the commission of the offence. It is also true that the three witnesses' identification of Ms Festa rested upon their recognising features of "the woman" in Ms Festa, as opposed to recognising Ms Festa as "the woman". But it was a case of positive-identification evidence that called for a Domican direction. The evidence of Mr Hill was also circumstantial evidence although of a different class. It was not recognition evidence. He saw a woman sitting in the Laser after the robber had rammed Mrs Sutton's Mazda into the doors of the bank at Paradise Point. The robber escaped in the Laser. Mr Hill pointed out photos of women who looked "similar" to the woman who was in the Laser, one of which was Ms Festa.

At the trial, counsel did not seek any directions along the lines now suggested by Ms Festa. If they had been asked for, the judge ought to have given them, for they are correct in principle. But the failure to give them has not constituted any miscarriage of justice or deprived the accused of a fair trial. I cannot see how the giving of these directions would have advanced Ms Festa's case or made an acquittal more likely. The difference between the actual directions and those that should have been given is one of form rather than substance. In so far as the judge's directions classified evidence concerning the use of the cars as circumstantial, they were too favourable to Ms Festa.

Too favourable is not a description that can be made of Ms Festa's other complaints concerning the directions on identification evidence. Where evidence as to positive identification of an accused person represents "any significant part" of the proof of guilt of an offence, the judge must warn the jury of the inherent dangers of acting on such evidence. In addition, the jury must be instructed as to the factors that may affect the consideration of that evidence in the circumstances of the particular case. A warning in general terms is insufficient[46]. In Domican[47], Mason CJ, Deane, Dawson, Toohey, Gaudron JJ and I said that:

"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."

In the present case, the trial judge gave fairly extensive general directions on the identification evidence. But his directions did not sufficiently draw the jury's attention to the weaknesses in the evidence of the individual witnesses, in accordance with the principles set out in Domican and developed in subsequent cases[48]. Ms Festa's challenge to the specificity of the directions relates primarily, as it did before the Court of Appeal, to:

(1) the trial judge's directions on the "court house identifications"; and

(2) the directions on Mr James' voice identification.

The Court of Appeal dismissed Ms Festa's complaint about the court house identifications largely on the basis that the trial judge may have thought the cross-examination of the relevant witnesses sufficiently highlighted the weaknesses in their evidence. With respect, this response does not answer the objection of Ms Festa that no line of reasoning justified omitting reference to those inherent weaknesses.

The most significant weakness in the court house identification evidence was that the witnesses made their identification as the result of seeing or hearing Ms Festa at the Court House. In Bedford[49], Street CJ referred to the climate of the court precincts as one generating "some element of predisposition" on the part of the identifier to make a positive identification. For that reason, his Honour considered it important that a trial judge canvass all matters relevant to the circumstances in which any such identification is made. Street CJ's comments were referred to by Duggan J in R v Gorham[50] where witnesses identified the accused after seeing him in the dock and in the precincts of the courtroom. Although the trial judge directed the jury that the dock identifications were of negligible probative value, he said nothing about the out-of-court identifications, nor of the dangers that are often associated with identifications made in these circumstances. Duggan J, with whom Lander and Bleby JJ agreed, held that it was essential that jurors be given instructions concerning the weakness of identifications made in such circumstances[51].

In the present case, the Crown relied upon other circumstantial evidence of greater weight than the purported identifications at the Court House. But, as this Court pointed out in Domican[52], 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.

Directions concerning the weaknesses in individual cases need follow no particular formula. It is sufficient if the jury receive directions that give them a sufficient understanding of the potential weaknesses in the particular evidence put before them, as opposed to weaknesses generally inherent in identification evidence. The directions must ensure "that the jury understands the possible weaknesses in identification evidence and the need for it to take particular care in its use"[53]. At the same time, the judge must be careful that the directions do not rob the evidence of all probative value. The Court of Criminal Appeal of New South Wales has specifically acknowledged the difficulty trial judges face in drawing the line between informing a jury of the otherwise unappreciated dangers in identification evidence and the deprecation of that evidence[54].

Given the particular circumstances in which the court house identifications were made in this case, proper compliance with established principles required the trial judge to refer specifically to the circumstances in which they were made. The jury should have been directed that the identifications may have been unreliable because:

. the statement of Detective Holmes may have led the witnesses to expect that one of the perpetrators would be present that day,

. the absence of other women with whom Ms Festa could blend drew attention to her presence and made it more likely that she was the expected perpetrator, and

. the three witnesses sitting together and discussing their identification of Ms Festa might have led one or more of them to put aside doubts about the identification.

A proper direction would have instructed the jury to consider these matters in determining whether the identification evidence was reliable.

The judge's directions on identification did not sufficiently impress upon the jury the weaknesses inherent in the circumstances in which Ms Ogilvie, Mr Fyffe and Mr James identified Ms Festa at the Southport Court House. The Crown concedes that "fuller directions could have been given". Nevertheless, it submits that, in light of the compelling circumstantial case that existed independently of the identification evidence, the inadequacy of the directions occasioned no substantial miscarriage of justice. That is a submission to which I shall return after dealing with the remaining grounds of appeal.

Hanger DCJ made specific reference to Mr James' identification of Ms Festa, describing it as one "based on very minimal information". He reminded the jury that the evidence was based on seeing Ms Festa walk and hearing her talk. But he said no more about its reliability than that it was a matter for the jury to assess. The Court of Appeal considered that the trial judge took this approach to avoid giving Mr James' evidence undue emphasis. However, Ms Festa submits that the judge should have directed the jury as to the theoretical and actual weaknesses of the voice identification evidence in order to highlight how weak and vague it was.

The risk of mistake in identifying a voice is at least as great as in identifying a person[55]. The reliability of voice identification varies with such factors as the length and volume of speech heard, the witness's familiarity with the accused's voice and the time elapsing between the occasions when the witness heard the voice of the perpetrator and the voice of the accused[56]. They are among the factors that in many cases will warrant consideration by the jury and require adequate directions from the trial judge. In this case, the trial judge emphasised that Mr James' voice identification was "based on a few words which he said he'd previously heard a woman speak and a few words that he heard [Ms Festa] say in the precincts of that Court". Read in the context of the more general directions that he gave, the directions concerning this evidence were adequate.

Ms Festa has failed to make out the ground of appeal concerned with the voice identification evidence.

The evidence of weapons discovered at the Pine Ridge Road unit

Ms Festa contends that the trial judge should have rejected evidence concerning the discovery of guns and ammunition at the Pine Ridge Road unit. The receipts showed that the guns had not been purchased when the robberies occurred. Thus they could not have been used in committing them. Although the jury could have regarded the guns and ammunition as part of a robber's "tools of the trade", she points out that the evidence had no specific connection with the robberies. It merely proved that Renton was a person likely to commit illegal acts.

In Thompson and Wran v The Queen[57], Barwick CJ and Menzies J acknowledged that evidence of possession of "tools of the trade" was not necessarily admissible only when it appeared that tools of that nature were used in carrying out the alleged crime. Their Honours cited with approval the dictum of Lord Goddard CJ in R v Sims[58]:

"Thus, in the case of burglary, evidence is admissible that housebreaking implements such as might have been used in the crime were found in the possession of the accused."

The crucial point of admitting such evidence was to identify the accused with the crime the subject of the charge. If the tools could not have been used in the crime, they were not admissible. Barwick CJ and Menzies J said[59]:

"[E]vidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature, is, in the absence of some special connexion, inadmissible because it does no more than prove criminal disposition".

Thus in R v Connolly[60], the Queensland Court of Appeal held that evidence of finding a "virtual arsenal" of weapons was inadmissible because it did no more than depict the accused as a dangerous person likely to commit the offence in question. Evidence of the arsenal had been led in addition to evidence concerning three weapons which were relevant to proof of the offence[61]. In those circumstances it took "little imagination" to perceive the prejudicial effect of that additional, essentially superfluous evidence[62]. Similarly in Driscoll v The Queen[63], the police had found a pistol very similar to that used in the killing with which the applicant was charged. Gibbs J held[64] that the discovery of a number of other firearms at Driscoll's house was inadmissible, as it:

"[did] not throw any light on the admissible evidence which tends to connect [Driscoll] with the crime charged, and is not so inextricably interwoven with the admissible evidence that the latter could not properly be presented if the former were excluded".

Despite these authorities, the Court of Appeal thought that "the evidence about the discovery of the firearms and ammunition in Renton's unit may have been properly admitted".

Given other evidence in the case, the inference was open that Renton intended to use the weapons for criminal activities - including armed robberies - in the future. But how did the possession of weapons bought after the date of the three robberies for which he was charged tend to prove that he had committed those robberies? The fact that they were of the same character as those used in the robberies - that is to say, that they were guns of a similar type - throws no light on the probability that he committed any of those robberies. Possession of those subsequently acquired weapons tended to prove that Renton had a propensity for committing robberies, and it is a short step to the conclusion that that propensity existed before the date of the purchase. But the possession of the guns does not have any specific connection to the robberies or throw any light on the admissible evidence connecting Renton to those robberies. Nor was it so inextricably connected with other admissible evidence that without it the admissible evidence would have been unintelligible. There was therefore no ground for the application of the principle of completeness, a principle which ordinarily applies only to verbal utterances or documents.

To admit this evidence against Renton would be to reject the application of a principle that has been followed for over a hundred years. The Anglo-Australian law of evidence does not permit a crime to be proved by reference to the criminal or discreditable propensity of the accused except in those rare cases where that propensity has a specific connection with the crime. In Pfennig v The Queen[65], Mason CJ, Deane and Dawson JJ said that to be admissible propensity evidence "needs to have a specific connexion with the commission of the offence charged". Later, their Honours said[66] that it was necessary "to find something in the evidence or in its connexion with the events giving rise to the offences charged which endows it with a high level or degree of cogency". Absent evidence of such a connection, the rule is that stated in Dawson v The Queen[67] by Dixon CJ_:_

"It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused."

Here possession of the guns did no more than prove the criminal character and tendencies of Renton. Since the guns were not in his possession at the time of the robberies, they were not weapons that might have been used to commit the crimes with which he was charged. They had no more connection with the charges than would proof of a previous and recent conviction for armed robbery of a bank. In Thompson and Wran[68], Barwick CJ and Menzies J said that the principle of completeness might sometimes require "that evidence should be admitted going beyond proving the possession of tools which might have been used to commit the crime in question". But their Honours immediately went on to say:

"While recognizing this, however, we are satisfied that in this case, where a collection of tools was found, the detailed evidence of the use to which some of the tools, which, it is clear, were not used in the crime might be used by a thief to commit other crimes, was no more than evidence of a particular criminal propensity, ie, the propensity to steal from safes, and of the means to indulge that propensity." (emphasis added)

But it does not follow that, because Renton's propensity to rob banks was not admissible against him, it was not admissible against Ms Festa. A critical issue in the case was the nature of Ms Festa's association with Renton. Was it an innocent association in which she simply befriended a friendless man, recently released from jail? Or were they associates in the criminal enterprise of robbing banks and stealing cars for use in those robberies? If Ms Festa knew of Renton's propensity to commit armed robberies on or before the robberies of the two banks and still associated with him, it would be some evidence that their daily association was not innocent.

Knowing that Renton, a convicted criminal, had a shotgun and a 5.6 calibre assault rifle in his possession provided solid ground for concluding that Renton had the intention to commit armed robberies, at least from the date of purchase of those guns. That conclusion was strengthened by the presence in the Pine Ridge Road unit of a made-up poster of Renton with the caption "Armed robber eludes police again". Ms Festa was in his company every day. She had a key to the Pine Ridge Road unit. It is quite likely that she was "driving [Renton] around" on the day that he bought or acquired possession of the guns. As from 17 June 1996, when the guns were bought, she could have had no doubt about the purpose for which the guns were likely to be used.

But does this knowledge provide any ground for concluding that she knew of Renton's propensity at the time of either of the robberies, that is to say, on 27 May or 13 June 1996? It could only do so if an adverse inference against her could arise from her continued association with Renton from 17 June 1996 until their arrest on 19 June 1996. The Court of Appeal said:

"Once the inference was drawn that she was aware of the firearms and ammunition in the unit, it is remarkable that, if innocent, she did not take action to distance herself from him and from the unit, instead of continuing, as she did, to associate herself with him and it."

The Court of Appeal thought that the most that could be said by way of innocent explanation of Ms Festa's continuing association with Renton was that:

(1) she must not have been of an inquisitive nature, and so knew nothing of his propensity to commit robberies; or

(2) although she knew of it, she was more than ordinarily determined to mind her own business and continue associating with him.

The Court of Appeal said an explanation of this nature did not sit comfortably with other evidence in the case. That evidence included her admission that she was "driving him around" and knew that he was stealing cars, some of which were shown at the trial to have been used in committing the robberies.

It is an irresistible inference that, from 17 June 1996 at the latest, Ms Festa knew that Renton was likely to engage in armed robberies. But it is another matter to conclude from knowledge of his propensity for armed robbery on and after that date that she knew of his propensity before that date. There was a great deal of evidence ("the other evidence") that implicated Ms Festa in the bank robberies. But the inferences from the other evidence were not connected with the inferences that could be drawn from the possession of the guns and the presence of the wall poster, except in the sense that, if drawn, they led to the same conclusion. The guns and the poster were one body of evidence. The other evidence was an independent body of evidence. Each of these two bodies of evidence gave rise to independent inferences. The admissibility of the evidence concerning the guns has to depend on the inferences that could be drawn from that evidence standing alone. On that basis, I do not think that a jury could logically draw the inference that Ms Festa knew of Renton's propensity on or before 13 June 1996 by reason of her knowledge of that propensity on and after 17 June 1996.

It follows that the trial judge erred in admitting the evidence of the presence of the guns in Renton's unit.

Because it is necessary to determine whether the admissibility of this evidence may have led to the conviction of Ms Festa, it is necessary to examine the directions that the trial judge gave to the jury in respect of it.

Ms Festa contends that the trial judge should have specifically directed the jury as to what inferences could properly be drawn from the possession of the guns and ammunition. She submits that the judge did not make it clear to the jury that, if the guns and ammunition were admissible, the evidence did not show that Ms Festa had any knowledge of them prior to the raid by the police. The only inference available was that she was associating with a man who, at some stage after 17 June 1996, when he purchased the rifles, may have had an intention to do something illegal with them.

Hanger DCJ stressed to the jury that none of the weapons found in the Pine Ridge Road unit were used in the robberies. His Honour noted, however, that two of the weapons found were similar to those observed in the course of the Biggera Waters robbery. Some of the ammunition located in the unit could have been used in similar weapons. Hanger DCJ continued:

"[A]s I understand it, one of the purposes of adducing that evidence is to show, in effect, that the possession of firearms and ammunition are part of the tools of trade of a robber and if you find weapons and firearms in the possession of a person it's another circumstance which you may take into consideration, seeing that weapons or firearms and ammunition are used by bank robbers, such items were found in premises occupied by Renton. It doesn't in itself prove anything, but it is another relevant consideration."

His Honour did not specifically direct the jury as to how the existence of the weapons was evidence against Ms Festa. However, he did direct the jury that, if they were not satisfied that Ms Festa knew of the existence of the items found in the Pine Ridge Road unit, that evidence could not be used against her. The jury may have understood this direction as suggesting that, if they found that she knew of the weapons, they could use her knowledge of the presence of "the tools of trade" of a robber to find her guilty of the robberies.

With respect, the discovery of the weapons in the Pine Ridge Road unit was not probative of Ms Festa's involvement in the robberies. And the directions that his Honour gave may have indicated to the jury that they could use the discovery of those weapons to convict her.

As the Court of Appeal pointed out, the evidence suggested a line of reasoning from which the jury could conclude that Ms Festa was the woman involved in the robberies:

(1) Renton committed the robberies at Biggera Waters and Paradise Point, as well as the unlawful use offences, of which he was found guilty;

(2) in doing so, he was assisted or accompanied by a woman;

(3) "every day" during the period May-June 1996 he was in the company of Ms Festa, and perhaps with no other woman "down here";

(4) Ms Festa was directly linked with Renton through (a) her access to and presence in the Pine Ridge Road unit to which she had a set of keys; (b) the yellow Toyota in which the accused were both found on 19 June 1996; and (c) various motor vehicles, including those that were unlawfully taken and used;

(5) those vehicles were used by Renton and a woman in committing the robberies;

(6) that woman was Ms Festa, and could not have been anyone else.

Hanger DCJ reminded the jury that the Crown case rested upon circumstantial evidence, a fact that was not disputed. His Honour referred to the evidence establishing that Ms Festa had frequented the Pine Ridge Road unit. He directed the jury that, if they accepted that evidence, they might conclude that Ms Festa and Renton were closely associated. Furthermore, his Honour told the jury they might also conclude:

"that they were seen together, or where a man and a woman were seen together and one of them was identified to some extent, the other person may well have been - well, for example, Renton was identified as being with a woman. You may well come to the conclusion that the woman was [Ms Festa] and vice versa. That's just a minor piece of evidence, but it does show the association between the two." (emphasis added)

Ms Festa submits that Hanger DCJ's direction on the association between Renton and herself effectively permitted the jury to override any dissatisfaction on their part as to the strength of the identification evidence against her. Ms Festa argues that the jury could have convicted on the basis of Hanger DCJ's direction, provided that the jury accepted the evidence identifying Renton as a participant in both robberies. In view of the circumstantial character of the association evidence, Ms Festa submits that Hanger DCJ should have directed the jury to consider alternative hypotheses. In the absence of other hypotheses, his Honour's directions were at best incomplete.

A trial judge is in a unique position to determine what should be incorporated into the summing up in a given case. The judge hears the addresses of counsel and observes the reactions of the jury, if any, to the evidence, the addresses, and the summing up. The judge is therefore in a better position than an appellate court to appreciate how much assistance the jury needs on particular issues. In Jones v Dunkel[69], Windeyer J emphasised that a summing up is dependent upon the trial judge's view of what guidance the particular jury should have in the particular case, having regard to the conduct of the trial. In Doggett v The Queen[70], I recently pointed out that:

"Except where the due administration of justice clearly demands that juries be directed as to particular matters, the contents of summings up are best left to the discretion of those who preside at criminal trials. They are in the best position to determine what needs to be said to the particular jury."

As the Crown submits, it is important to evaluate the trial judge's directions on association in the context of his general explanation of the nature of the Crown case as one based wholly on circumstantial evidence. It was essential for the Crown to show an association between Ms Festa and Renton in order to tie this evidence together. To this end, the Crown presented evidence that was arguably far stronger than was suggested by the trial judge's description of it as "minor". Evidence of association included Ms Festa's possession of a set of keys to the Pine Ridge Road unit, her seeing Renton every day and "driving him around", and her admission that she knew he was stealing cars. The closeness of the association could also be seen in the items of stolen property that were in places she frequented or vehicles that she used. The evidence that Renton stole the vehicles from which these items were taken was overwhelming. If Ms Festa did not take them herself, Renton certainly passed them on to her. The trust and closeness of their association can also be seen in the hanging in the unit of the made-up wall poster asserting that the bank robber had eluded the police.

In view of the evidence, the Court of Appeal held that the trial judge did not err in directing the jury that it was open to them to conclude that where one of the accused was identified to their satisfaction, it was open to them to conclude that it was the other accused who was seen with him or her. The trial judge expressly stated that the hypothetical could work both ways. He also described the hypothetical as "a minor piece of evidence", a description which the Court of Appeal correctly held was favourable to Ms Festa. Although Ms Festa submits that the trial judge should have put other hypotheses to the jury, the absence of persuasive alternative suggestions highlights the strength of the Crown's explanation of the circumstantial evidence.

The exercise of the proviso and the legacy of Mraz v The Queen[71]

I have found that the trial judge erred in failing to give proper directions concerning the court house identifications and in admitting evidence as to the discovery of weapons in the Pine Ridge Road unit. Because that is so, Ms Festa's convictions must be set aside unless, despite these errors, the Crown can establish no "substantial miscarriage of justice" has occurred within the meaning of the proviso to the common form criminal appeal statutes[72].

In Mraz v The Queen, the meaning of the proviso was explained by Fullagar J in a judgment that has been regarded as authoritative. Mraz concerned s 6(1) of the Criminal Appeal Act 1912 (NSW). Its proviso follows the form of the common appeal statute. Fullagar J said[73]:

"It is very well established that the proviso to s 6(1) does not mean that a convicted person ... must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried."

Fullagar J found support for his analysis in various English authorities[74], saying that "the broad principle shines clearly enough through the cases". He referred to the judgment of Channell J in Cohen and Bateman[75] - which up to that time was regularly cited as correctly expressing the principles for determining whether a case fell within the proviso to the common form statutes. Channell J said[76]:

"Taking s 4 with its proviso, the effect is that if there is a wrong decision of any question of law the appellant has the right to have his appeal allowed, unless the case can be brought within the proviso. In that case the Crown have to shew that, on a right direction, the jury must have come to the same conclusion. A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words 'any other ground,' so that the appeal should be allowed according as there is or is not a 'miscarriage of justice.' There is such a miscarriage of justice not only where the Court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted, and therefore, as there is no power of this Court to grant a new trial, the conviction has to be quashed. If, however, the Court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso, notwithstanding that the verdict actually given by the jury may have been due to some extent to such an error of the judge, not being a wrong decision of a point of law." (original emphasis)

As Brooking JA pointed out in R v Gallagher[77], that passage had been accepted as representing the correct approach to the proviso in England[78] until amendments in 1966 omitted the word "substantial" from the English legislation[79]. It was regularly applied in Australia[80] until Mraz was decided. Although Fullagar J appears to have thought that he was not departing from the principles laid down in Cohen and Bateman, his judgment differs from that judgment in a number of respects. First, Fullagar J expressed a single test for applying the proviso while Channell J distinguished between errors of law and other errors. Second, what Fullagar J expressed as the principle - "If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open" etc - was the conclusion, not the basis, of the reasoning of Channell J. Moreover, it was the conclusion in respect of grounds other than errors of law.

Furthermore, in Re Johnston's Appeal[81], the Courts-Martial Appeal Tribunal pointed out that Fullagar J did not expressly advert to the distinction between "a miscarriage of justice" and "substantial miscarriage of justice". In ascertaining what the latter phrase meant, the Tribunal referred back to the judgment of Viscount Simon LC in Stirland v Director of Public Prosecutions[82] where his Lordship stated that the proviso "assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict". Fullagar J also referred to this decision in Mraz[83], in reaching the conclusion that it appeared impossible to maintain that the Crown had established that no miscarriage of justice had actually occurred in that case.

Subsequent decisions in this Court have stressed the need to look behind the error that may have occurred in the course of a trial in order to ascertain whether there has been a substantial miscarriage of justice. In R v Storey[84], Barwick CJ said:

"If error be present, whether it be by admission or rejection of evidence, or of law or fact in direction to the jury, there remains the question whether none the less the accused has really through that error or those errors lost a real chance of acquittal. Put another way, the question remains whether a jury of reasonable men, properly instructed and on such of the material as should properly be before them, would have failed to convict the accused: or were the errors such that if they were removed a reasonable jury might well have acquitted."

In Driscoll v The Queen[85], Barwick CJ said:

"It is noticeable that the proviso to s 6(1) speaks in terms of 'substantial miscarriage of justice'. The word 'substantial' in this connexion denies, as it seems to me, the proposition that of necessity the existence of any of the enumerated circumstances in the sub-section amounts to a miscarriage of justice. No doubt the oft quoted passage from the reasons for judgment of Fullagar J in [Mraz] rightly emphasizes that it is for the Crown to satisfy the court that occasion exists for resort to the proviso: but that passage ought not be read as saying that every departure in the course of a trial from compliance with the relevant law or rule of procedure results of necessity in a miscarriage of justice. Indeed, in my opinion, the very terms of s 6(1) and its counterparts would seem to deny that proposition. The important words, in my opinion, in the passage from the judgment of Fullagar J in that decision and at that page are 'may thereby have lost a chance which was fairly open to him of being acquitted'. Of course, if the Court of Criminal Appeal on its review of the facts and circumstances of the case concludes that before a jury, properly directed, the appellant can be said fairly or reasonably to have had a chance of acquittal, it will not be warranted in concluding that there was no miscarriage of justice.

It is for the court itself to be affirmatively satisfied in this respect, and for this purpose the court will consider for itself the evidence and the inferences properly available therefrom." (emphasis added)

Barwick CJ went on to say that if "every irregularity of summing up, admission of evidence or in procedure warranted a new trial, the basic intent of the court of criminal appeal provisions would be frustrated and the administration of the criminal law plunged into outworn technicality"[86]. While the Chief Justice was mindful of the great responsibility which such a view cast on courts of criminal appeal, he said that it had to be borne in mind that "a retrial where in truth no miscarriage of justice has occurred is not conducive to the proper administration of the criminal law"[87].

In Wilde v The Queen[88], Brennan, Dawson and Toohey JJ discussed the applicable principles in terms close to those formulated by Channell J in Cohen and Bateman. Their Honours said[89]:

"Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in [Mraz] ... Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice." (emphasis added)

Nevertheless, as Barwick CJ pointed out in Driscoll[90], the use of the word "substantial" performs the function of denying the proposition that, of necessity, the existence of any of the enumerated circumstances in the sub-section amounts to a miscarriage of justice. As his Honour also pointed out in that case, understating the significance of the word "substantial" runs the risk of focussing on the error at the expense of assessing the effect, if any, of the error on the jury's verdict[91].

These statements by Barwick CJ in Storey and in Driscoll contain the correct principles to apply.

The question whether a jury, acting reasonably, would inevitably have convicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts of the case[92]. The prevalence of dissenting views in cases dealing with the application of the proviso[93] illustrates the largely subjective nature of the inquiry, resting as it does on factors such as the error alleged, the relative strength of the prosecution and defence cases and the court's characterisation of the hypothetical jury, "acting reasonably" and properly directed. As Brennan, Dawson and Toohey JJ stated in Wilde[94]:

"In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances."

But one important development has occurred since this Court decided Mraz, Storey, Driscoll and Wilde. Courts of criminal appeal are now required to examine and analyse the evidence in criminal trials to a much greater extent than previously. This Court has interpreted the "miscarriage of justice" ground of appeal as entitling a court of criminal appeal to examine the whole of the evidence and form its own opinion as to whether there is a reasonable doubt as to the accused's guilt. Even 30 years ago, such an approach would not have been contemplated. In M v The Queen[95] Mason CJ, Deane, Dawson and Toohey JJ said:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced."

Although the term "miscarriage of justice" appears both as ground of appeal and as part of the criterion for determining whether a conviction should stand, the issue under each provision is different. In one, the issue is whether the jury must have had a reasonable doubt; in the other, it is whether the jury must have convicted. But that said, there is no reason why the role of a court of criminal appeal should differ in deciding these issues. In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury. Speaking generally, the court's view of the evidence should prevail except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case. In cases of circumstantial evidence, for example, the court's view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility. Even when a particular circumstance involves a credibility issue, other circumstances may be admitted or proved which are sufficient to permit the court to sustain the conviction.

The errors in this case did not result in a substantial miscarriage of justice

In the present case, even when the evidence of the court house identifications and of the presence of the guns and ammunition in the unit are put aside, the case against Ms Festa was overpowering. No reasonable jury could fail to convict her.

The evidence convincingly proved that Renton was the man engaged in the robberies. The only woman known to associate with him during the relevant period was Ms Festa. Her association with him was very close. She went shopping with him every day. She had keys to his unit. She admitted to "driving him around" and knowing that he was stealing cars. In the absence of evidence of any other woman being in Renton's company, her association with him by itself convincingly pointed to her as the woman involved in the robberies.

But there was other highly incriminating evidence that pointed to her as the woman involved in the robberies. Property from two of the stolen cars was found at her unit, in the gold-coloured Mercedes that she drove and at a service station that she frequented. The two stolen cars were used in the robberies and abandoned. Before, during and after the robberies, witnesses saw a man and a woman loading a bag or bags into and out of one or more vehicles, one of which was the gold-coloured Mercedes. Witnesses to the robberies asserted that the man and woman used disguises. Police found instructions on the use of disguises at the Pine Ridge Road unit. Ms Festa's fingerprints were found on a can of wig sheen and a bottle of spirit gum remover found in the unit. Upon her arrest she was in possession of a substantial sum of money including 25 $5 notes. Mr Hill, the witness to the Paradise Point robbery, picked a photograph of Ms Festa as being similar to the woman that he had seen in a car parked outside the bank. And on the twelfth day of the hearing she fled, giving rise to the conclusion that she was conscious of her guilt.

I think that a reasonable jury, properly instructed, would inevitably have convicted her even if the judge had not made the errors which he made.

KIRBY J. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of Queensland[96]. The grant of special leave confines the appeal to four grounds. Those grounds concern the admission of, and directions in relation to, certain evidence that was placed before the jury in the prosecution case. That evidence tended to inculpate the accused in the crimes charged. She claims that its reception, and the instructions to the jury about it, involved errors of law resulting in a miscarriage of justice requiring the quashing of her conviction.

Brunetta Festa ("the appellant") and Marc Renton ("the co-accused") were jointly tried in the District Court of Queensland upon an indictment alleging a number of offences. The offences concerned a series of armed robberies of banks involving the unlawful use of motor vehicles. All of the offences were alleged to have occurred in May and June 1996.

Each of the armed robberies involved a branch of the National Australia Bank. Each took place after closing time whilst the staff were still on the premises. Each involved the smashing of glass doors of the bank. In two cases this was done by the use of a sledge hammer. In the third robbery it was done by driving a motor vehicle through the doors. In each case there was a demand for the Reserve Bank bag or words to that effect. There was police evidence that the modus operandi adopted was a rare one[97]. The events had the appearance of serial conduct involving common offenders.

The first robbery occurred on 8 May 1996 at Morningside. The appellant was not charged in relation to that offence. The two applicable counts of the indictment, respectively of armed robbery[98] and unlawful use of a motor vehicle[99], were laid solely against the co-accused.

The second robbery occurred on 27 May 1996 at the Biggera Waters branch of the bank. In respect of that robbery and the unlawful use of two motor vehicles the appellant and the co-accused were jointly charged. The third robbery took place at the Paradise Point branch of the bank on 13 June 1996. In respect of that robbery and the unlawful use of three motor vehicles the appellant and the co-accused were jointly charged. In relation to the second and third robberies, the appellant and the co-accused were further jointly charged with using vehicles for the purpose of facilitating the commission of an indictable offence[100].

An additional count was included in the indictment charging the appellant and the co-accused jointly with attempting to unlawfully use another motor vehicle[101]. This made ten counts to the indictment in all, eight of them concerning the appellant.

The appellant and the co-accused pleaded not guilty. The trial began before Hanger SJDC and a jury. At the beginning of the trial, which lasted seventeen days, the appellant was granted bail on her own undertaking to appear for the duration of the hearing. On the twelfth day of the trial, she did not appear[102]. In the absence of the jury, the appellant's then counsel informed the judge of a letter that Mr Christef, with whom the appellant had been residing, had allegedly received from the appellant complaining that she was not receiving a fair trial and stating that she expected to be found guilty. The appellant's counsel was given leave to withdraw. After an interruption of two days the trial recommenced in the absence of the appellant. No complaint is before this Court in relation to that course.

At the conclusion of the trial the jury returned with verdicts in respect of the appellant of guilty on all counts. The co-accused was acquitted of the first count that charged him with the armed robbery on 8 May 1996. However, in respect of the count of unlawfully using a motor vehicle on that day, he was found guilty. He was found guilty on all other counts.

The appellant, in her absence, and the co-accused, were convicted and sentenced. Each of them appealed to the Court of Appeal. The co-accused's appeal against his convictions was heard first. It was dismissed[103]. The Court of Appeal noted that, in respect of the first robbery, the co-accused's fingerprints had been found inside a vehicle used in connection with that robbery "but his participation in the robbery itself was evidently not established to the satisfaction of the jury"[104]. All of the other counts were, it seems, established to the jury's satisfaction against both accused.

The appellant's appeal was likewise dismissed by the Court of Appeal in a unanimous judgment[105]. That judgment dealt with several grounds that are not of concern to this Court. The appellant applied for, and was granted, special leave to appeal to this Court.

The grant of special leave was limited to the following grounds:

1. The failure of the trial judge to exclude the evidence of witnesses Mr James, Ms Ogilvie, Mr Fyffe and Mr Hill who purported to directly identify the appellant. The admission of the evidence of those witnesses as circumstantial evidence was likewise said to have resulted in a miscarriage of justice.

2. The alleged inadequacy of the trial judge's directions to the jury in relation to eye-witness identification and voice identification.

3. The failure of the trial judge to exclude evidence of the discovery of weapons and ammunition found in premises visited by the appellant, or to give the jury proper directions in relation to such evidence.

4. The suggested material misdirection in the trial judge's directions to the jury as to the relevance of the association which the evidence showed existed between the appellant and the co-accused.

In addition to these grounds it is necessary to consider the "proviso" applicable to the case. This involves the determination of whether, having regard to the scope and operation of the "proviso", any errors demonstrated on the foregoing grounds did not cause a substantial miscarriage of justice to occur by reason of the strength of the prosecution case against the appellant that made her conviction inevitable.

The trial judge correctly told the jury that demonstration that the offences were committed by the same offenders was "useless" unless it was proved that "either of these accused persons was involved in those offences". To the ordinary problems of identification of strangers, viewed for a short period[106] (which problems are common to many criminal trials where the identity of the offender is in question) there was added in this case a special difficulty. This was that the offenders had taken unusual pains to disguise their natural appearance[107]. There was substantial evidence that of the two offenders, one was male and the other female. So far as the female was concerned, she was described on one occasion as wearing makeup "as if she was at Dracula's or one of those sort of places". She was also said on both occasions to have worn a wig, recognised as such by two witnesses who happened to be hairdressers. In these circumstances, it is not surprising that the evidence tendered to identify the appellant as the female offender was (as the prosecution conceded) "somewhat weak".

The question presented by the first two grounds in this appeal is whether the identification evidence was so weak that it ought to have been excluded from the jury's consideration or, if admitted, made the subject of more detailed directions than the trial judge gave.

In relation to the offences connected with the second armed robbery, at Biggera Waters, the prosecution called three witnesses, Messrs Fyffe and James and Ms Ogilvie.

Mr Fyffe was at his home not far from the bank on 27 May 1996. He saw a man alight from a blue Ford Laser vehicle and walk to a white Laser in which there was a woman driver. He saw the man get into the passenger seat of that vehicle. Shortly afterwards, the man returned to the blue Laser. Both cars drove off. Before long one of the vehicles returned with the woman driving and the man in the passenger seat. On 21 June 1996, Mr Fyffe correctly identified the co-accused from a photoboard depicting a number of male photographs. Mr Fyffe was also shown photographs of females, none of which were of the appellant, and he did not purport to identify the appellant from those photographs.

At the committal hearing at the Southport Court in October 1996, Mr Fyffe was told by a detective to keep an eye out to see if he could identify the female involved in the use of the cars just described. Mr Fyffe later said he recognised the appellant as the female driver. However, he agreed that she was the only female under forty years of age whom he saw at the courthouse that day. He also agreed that in May 1996 he had enjoyed only a fleeting glance of the offender, seated in a car. He had been unable to describe her height. Objection was taken on behalf of the appellant to the admission of the foregoing evidence before the jury. However, the trial judge admitted it, saying that its weight was for the jury to decide.

Ms Ogilvie was driving her car near the bank in Biggera Waters shortly before the robbery on 27 May 1996. She saw a blue Laser and white Laser park behind her vehicle. The female driver alighted from the blue Laser and ran to the other vehicle and talked to the male driver of that vehicle. That person then returned to the white Laser and both cars drove off, turned abruptly and drove back past Ms Ogilvie, stopping again. The drivers began taking objects out of the white Laser and putting them into the blue Laser. They then drove off together in the white Laser. Ms Ogilvie was a hairdresser. She recognised that the female driver was wearing a wig. She was not shown a photoboard.

On the day of the committal hearing Ms Ogilvie was also asked by a detective at Southport courthouse to see if she recognised anyone fitting the description of the female driver. She too purported to identify the appellant. She accepted in cross-examination that the appellant was the only woman whom she saw outside the courtroom at Southport. Once again, at the trial, the appellant's counsel submitted that this evidence should be excluded. The trial judge found that it was part of the "circumstantial case" and that its weight should be considered by the jury. He admitted the evidence.

Mr James was raking leaves off the driveway of an apartment block not far from the bank on 27 May 1996. He saw a white Laser being parked underneath the block of units. A female driver, described as about "five foot six inches or five inches" tall and in her late thirties, was seen running from the vehicle. Mr James remonstrated with her about parking where she had. She replied that she would not be long. He saw her walk a distance. Later another vehicle was seen driving along the road. From the tracksuit she was wearing, he recognised the female passenger in this vehicle as the woman who had left the white Laser parked at his apartment block. She was wearing a shoulder length black wig and was seated next to a male driver.

On 18 June 1996, Mr James was shown a photoboard containing male photographs. He correctly identified the co-accused as the male car driver. He was shown another photoboard containing photographs of twelve women. He selected two photographs, not being those of the appellant, as similar in facial appearance to the female he had seen and remonstrated with. However, he emphasised the difficulty of selection without viewing the body and height of the persons displayed in the photographs. On 26 June 1996 police returned to Mr James' home with another photoboard. This included a photograph of the appellant. Mr James selected two other photographs as similar to the female driver. He did not select the photograph of the appellant.

In October 1996, Mr James was also asked at Southport courthouse to keep a lookout for the female driver. He too purported to identify the appellant there from her visual appearance. However, he added two other features that he said he had noticed. The first was her voice and the second the way she had been observed to run. As to her voice, he had heard the appellant say "Oh, I'm in the wrong court" and then she ran to another courtroom. From hearing these six words and observing the appellant's gait, Mr James was confirmed in his ability to identify the appellant as the female offender. He had not previously mentioned to police either of these two distinguishing characteristics. Once again, objection was taken to the admission of this evidence. The trial judge ruled that its reception was not unfair and that it would be left to the jury to decide what weight they attached to it.

In respect of the armed robbery at Paradise Point on 13 June 1996, only one identification witness was tendered, Mr Hill. He was working in a hairdressing salon one shop distant from the bank. He heard a car smash into the bank doors. He saw a female driving a red Laser reverse into the parking area in front of the bank. Interviewed by police, he described how this driver was "frantically" turning the steering wheel trying to get into position as it later emerged to provide an escape vehicle. He described her long "layered" hair that swung freely and her "pale complexion". He said he "couldn't sort of say what her face really looked like". However, he was shown a photoboard. He selected three photographs as looking like the female offender. One of these photographs was indeed a photograph of the appellant.

Mr Hill agreed in cross-examination that the appellant had an olive complexion. His identification from photographs took place two months after the robbery. Again, counsel sought to have this evidence excluded. The trial judge rejected the submission. As with the earlier evidence he concluded that its weight should be determined by the jury.

The incident identification: There were many defects in the foregoing evidence which the four identification witnesses were allowed to give before the jury. The evidence is divided into two categories. The first is that relating to what the witness saw at about the time of the relevant bank robbery ("the incident identification"). The second is the evidence of what three of the four witnesses saw at the Southport courthouse ("the courthouse identification").

So far as the incident identification is concerned there were obvious deficiencies in the procedures followed. No evidence was given that the appellant was ever asked to participate in an identification parade and declined to do so. Obviously, such a procedure is fairer to a suspect because it permits the blending of that person into a mixed group of other persons[108]. It affords a wider range of identifying factors and a more natural circumstance for perceiving the entire person of the suspect rather than head and shoulders photographs. The difficulty of selection from the latter was expressly referred to by Mr James. In default of proof that an accused has declined to participate in an identification parade, identification of an accused as the suspect by other means and stratagems will often be seriously unfair. It will invite exclusion of the resulting evidence[109].

Although a sound recording was taken of some of the foregoing procedures for identification of the appellant from photographs, the process was not filmed or photographed. The full course followed in the selection was thus unavailable to the jury[110]. The dangers of procedures of informal identification from photographs have been long recognised. They are well documented[111]. They explain the remarks of Gibbs CJ in Alexander v The Queen[112]:

"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."

In Queensland, the last-mentioned principle is recognised in the Queensland Police Operational Procedures Manual ("the Manual"). By virtue of the Police Service Administration Act 1990 (Q), s 4.9, the provisions of the Manual are given the force of law[113]. In par 2.11.5 of the Manual appears the following policy:

"Where an identification parade is not used, investigating officers are to attempt to establish identification through some other means including having the witness identify the suspect from amongst a large group of other members of the public."

The courthouse identification: The defects of the incident identification pale into insignificance in comparison to the plainly unsatisfactory evidence of the courthouse identification. Before the police asked the witnesses at Southport Court to attempt to identify the female suspect from persons attending that courthouse, they would have known that the appellant was to be one such person. Her presence at the courthouse, as the accused whom the police had charged, placed her in a position of severe disadvantage, especially when, as might have been anticipated, few if any other females of her age, height and general appearance would be in the vicinity of the courtroom at that time. The request had all the potential to produce a self-fulfilling outcome. Moreover, it contradicted the essential instruction appearing in the Manual which reads[114]:

"Officers should avoid having a witness identify a suspect as that suspect enters a court building."

The likelihood, as occurred, that some of the witnesses would exchange impressions and thereby reinforce the identification of the appellant made in such unsatisfactory circumstances, merely underlines the unreliability of the procedure in which the identification witnesses were asked to participate. Their process of identification at the courthouse was not recorded. It lacked the spontaneity that can sometimes repair the deficiencies of such circumstances of identification[115]. It was carried out in circumstances in which the witnesses were able to discuss the matter together. In the case of Mr James, he was actually approached by police after the appellant had walked by and asked whether he knew her. By that time he had already been shown photographs, one of which contained the appellant's image[116].

In such circumstances, the identification of the appellant from recognition of her voice upon the basis of her uttering six words four months after the female offender's voice had been heard had additional and obvious deficiencies. The witness could not point to any distinctive characteristics of the voice which he had recognised or could describe. There were similar weaknesses in Mr James' testimony about the appellant's gait.

One of the common deficiencies of identification evidence is that it can often reflect unconscious projection by the witness of what he or she wants or expects to see, hear or otherwise perceive[117]. This is clearly established in respect of visual recognition. Voice recognition is a commonplace in ordinary life[118]. However, here too there are recognised dangers. Some of these were described by Brennan CJ in Bulejcik v The Queen[119]:

"Admissibility of such evidence depends not only on the witness' familiarity with the speaker's voice or the distinctiveness of the voice or the witness' expertise. Other factors are material. One factor is the clarity with which the witness has been able to hear the voice of the putative speaker on the material occasion and, in a case when a comparison with a voice heard on another occasion is relied on, on that occasion. Another factor is the time which elapsed between those two occasions."

The exclusion question: The trial judge enjoyed, as he recognised, a discretion to exclude the foregoing identification evidence, or any part of it, from the jury's consideration if its probative value were outweighed by the prejudice, danger or unreliability associated with it[120]. By reason of the objections taken for the appellant at the trial, it was open to the judge to reject all of the court identification evidence or part only, such as the courthouse identification. The judge exercised his discretion against the applications. The Court of Appeal did not consider that an error had been established. Specifically, that Court noted that the trial judge had accepted that the evidence was "not very strong" and amounted to no more than "purported identification" of the appellant[121]. Most of the Court of Appeal's consideration in this respect was addressed to the next issue, namely the warnings that were necessary in light of the "poor quality" of the identification evidence which "on its own [did] not take the Crown case much further"[122]. The reasons for rejecting the complaint about the admission of the evidence in the first place appeared to come down to the recognition that the trial judge had a discretion and had expressed the opinion that the identification evidence was simply part of the "circumstantial" case which the prosecution built against the appellant and the co-accused[123].

With respect to the Court of Appeal, their Honours did not sufficiently differentiate between the appellant's submission that the evidence should have been excluded and her complaint that more extensive directions were required, once it was admitted[124]. As many cases involving like questions illustrate, the question of exclusion, in circumstances such as the present, is a live one. It cannot be met only by reliance on the fact that the trial judge has a discretion. Where complaint is made, the issue is presented as to whether the discretion has miscarried.

The applicable principles, which derive from what this Court said in Alexander[125], are stated by King CJ in R v Hallam and Karger[126]:

"It should be emphasized that the proper method of procuring evidence of identification is by the identification parade. Identification by selection of photographs is open to grave objections and should be resorted to only where unavoidable. That method may be unavoidable, during the course of an investigation, where there is no definite suspect or where the suspect will not consent to an identification parade. If it has to be resorted to, it must be recognised as the inferior form of identification which it is, for the reasons emphasized by the High Court in Alexander's case. Identification by confronting the victim with the suspect in circumstances which tend to suggest to the victim that the suspect is under suspicion is a virtually valueless form of identification which should be resorted to only in the most exceptional situation."

These and like principles have been expressed in many cases[127]. In my opinion, they ought to have been applied in this case by the trial judge and the Court of Appeal. Although it is true that the identification evidence, once admitted, has to be considered as part of the entirety of the evidence in the case, and in that sense may become part of the "circumstantial evidence" offered against the accused[128], an objection to the admissibility of identification evidence cannot be met by simply categorising it as just another piece of the circumstantial evidence, part of the "jigsaw" as it were, and thus sufficiently addressed by appropriate warnings[129]. If that were so, all identification testimony would be tendered as "circumstantial evidence".

I agree with the response which Perry J recently gave to a similar suggestion in the Full Court of the Supreme Court of South Australia[130]. His Honour said: "Unsatisfactory evidence of an act of identification cannot be turned into evidence of a positive identification by reference to circumstantial or other evidence unrelated to the act of identification." Moreover, defects of identification evidence cannot be repaired by labelling it as "circumstantial" and suggesting that, for that reason, the evidence does not need to meet the stringent standards for identification evidence set by this Court, as by others. On no view could the identification evidence of Mr Hill be viewed as merely circumstantial. He witnessed the bank robbery occurring, saw the female offender and purported to identify the appellant as that person. His evidence was direct, not circumstantial. It was erroneous to treat it as otherwise.

Observing a single rule: The strictures about the particular dangers of identification evidence must be obeyed because courts in this country, as elsewhere, have recognised dual features of identification evidence against which special protections are required in criminal trials. This is particularly, but not only, related to trials conducted before juries. The first feature is the propensity of incorrect evidence of identity, even given honestly and with assurance, to involve mistakes leading to serious miscarriages of justice[131]. The second is the tendency for identification evidence to be given special weight, including in the mind of a jury. If accepted, such evidence will link the accused to the crime. No other evidence against the accused may then be needed. The link, once established, may be sufficient. Respectfully, I cannot agree with the opinion that "circumstantial identification evidence", or indeed identification evidence generally, is no more presumptively prejudicial than other forms of evidence[132]. The history of wrongful criminal convictions in this and other countries is littered with instances of convincing, honest identification testimony subsequently proved to have been erroneous. If believed, such evidence tends to be fatal for the accused.

Nor would I confuse what should be a relevantly straight-forward requirement by introducing a new supposed sub-category of "circumstantial identification evidence" and distinguishing this from another supposed sub-category of "direct identification evidence". Such over-sophistication is likely to confuse judges, mislead lawyers and puzzle jurors. Over-analysis and disputable sub-classifications of evidence law lay traps for the conduct of trials. Past authority has not drawn such distinctions. We should not add them now. It is identification evidence, as such, that experience shows carries risks of great prejudice and of erroneous or inadequate directions to juries resulting in miscarriages of justice. That is why exclusion of such evidence is sometimes required and, where it is received, why careful directions to the jury are commonly necessary. A simple standard is stated by this Court in Domican v The Queen[133]. We should adhere to that standard.

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Festa v R [2001] HCA 72; 208 CLR 593; 185 ALR 394; 76 ALJR 291 (13 December 2001)