ADELAIDE, 23 May 1997 (hearing), 24 June 1997(decision)

The appellant was convicted by a jury of assault occasioning actual bodily harm, larceny in a dwelling house, robbery with violence, wounding with intent to cause grievous bodily harm and two counts of false imprisonment. It was alleged at the trial that the offences were committed as part of a joint enterprise with a number of persons, one of whom was tried with the appellant. According to the case for the prosecution the offences were part of the same series of events. The prosecution case was dependent upon evidence of identification by two of the alleged victims. The main ground of appeal complains that the verdicts are unsafe by reason of the unsatisfactory nature of the identification evidence and the failure of the learned trial judge to give satisfactory directions in relation to that evidence.

According to the prosecution evidence, five men went to the home of two young people, Craig Roche and Sally Hollick, on the evening of 22nd November 1995. They forced their way inside the home and demanded to know the whereabouts of the man named Scott Mills who was an acquaintance of Roche and Hollick. While at the home some of the men stole some wall plaques and photographs and Roche was assaulted. Hollick revealed the whereabouts of Mills when questioned by the men.

While Roche and one of the men stayed behind in the house, the others took Hollick in a taxi to where Mills was residing. Mills was home when the group arrived and he was assaulted and robbed. According to the prosecution case the appellant was present when the offences on the various victims took place and was party to a joint enterprise with the other men to commit the offences.

Mills was called by the prosecution. He is an acquaintance of the appellant. He stated in evidence that the appellant was not one of the men who was present during the assault and robbery on him. He had given a statement to the police implicating the appellant, but when giving evidence before the jury he said that he had been mistaken in saying that the appellant was present at the time of the offences.

Roche and Hollick gave evidence. The appellant declined to take part in an identification parade and there was no attempt at photographic identification. However Roche identified the appellant as he sat in the dock. He said that the appellant was present with the men who came to his house. Later in evidence-in -chief Roche gave the following evidence: "Q Have you seen Mr Gorham in the precincts of the court in the last few days? A Yes. Q Have you seen Mr Gorham with anybody? A No, I don't think so. Q By that, I mean have you seen Mr Gorham talking to any particular person in the precincts of the court or in the vicinity of the court? A I don't think so." Roche was not asked any further questions about the out of court incident during examination-in-chief. In cross-examination he was asked when he first recognised the appellant as one of the intruders and he replied that it was on the Friday when he came to court. The cross-examination continued: "Q When you arrived on the Friday, that's this last Friday, and you recognised Mr Gorham, at what stage did you speak to the police about that? A What do you mean about that? Q My understanding is you gave a statement to the police about Mr Gorham, is that correct? A Yes. Q When did that happen? A Friday afternoon. Q How did that happen. Was Mr Gorham pointed out to you again? A No. They asked me if I recognised anyone from the night it happened in the court today. Q They approached you? A Yes. Q They came up to you? A Yes. Q What did they say? A They came up to me and asked me to go into the Crown's room and then they told me to write out a statement what happened on Friday. Q You did that? A Yes. Q And you signed it? A Yes." Hollick also made a dock identification of the appellant. She said the appellant was present at her home and subsequently at Mills' premises. Later in her examination-in-chief she gave evidence that one of the men who was at her home had a ponytail. The examination continued: "Q Have you seen that man with the ponytail since your birthday last year? A Yes, I have. Q Where? A Here in court on Friday. Q Was he with anybody? A Yes, he was with Gorham. Q He was with Mr Gorham? A Yes, he was. Q Whereabouts was the man with the ponytail and Mr Gorham when you saw them on Friday? A Standing near the stairs near the waiting room. Q That is just outside the courtroom door? A Yes, it is. Q Did Mr Gorham and the man with the ponytail appear to be speaking with each other? A Yes. Q Did they appear to be with each other? A They appeared to be. Q Had you seen them together only at that point near the stairs, or had you seen them throughout Friday? A I had seen them throughout Friday. Q When you say that, were they together when you saw them throughout that Friday? A Yes, they were. Q That's Friday last we are talking about? A Yes, it is."

Hollick also said that on the Friday the police asked her if she recognised the men. A statement which she made to the police concerning the out of court identification was then tendered by consent. It was a handwritten statement made in a police officer's note book and it gave only a few details of the circumstances of the out of court identification. No further details were elicited from either of these witnesses in relation to the out of court identifications. No police officers were called to give evidence and no other witness referred to the identifications. In my view the evidence on the topic was left in a most unsatisfactory state.

Counsel for the Director of Public Prosecutions conceded that the convictions depended upon the acceptance by the jury of the evidence as to identification. The only other evidence which was said to be of an incriminating nature was the fact that the appellant knew Mills and, on his own version, had been in the company of one of the offenders shortly before the incident. It was argued that the offences were likely to have been committed by someone who knew Mills. It was also pointed out that one of the offenders spoke with an English accent and that the appellant has an English accent. Despite these items of evidence, however, it is clear that the prosecution case was dependent upon the evidence of the eye witnesses.

The learned trial judge warned the jury about the dangers of identification evidence. He dealt with this topic at some length in his summing-up. He reminded the jury that Roche and Hollick had identified the appellant in court and he went on to say that dock identifications were "of negligible probative value". However his Honour said nothing about the out of court identifications which the witnesses claimed to have made on the Friday before they gave evidence. He did not mention the evidence which had been given in relation to these identifications, nor did he say anything about the dangers which are often associated with identifications made in these circumstances. It is clear that the learned trial judge failed to appreciate the significance of these identifications which, in my view, were crucial to a proper consideration of the case by the jury.

After the jury retired the prosecutor requested the trial judge to direct the jury in relation to the handwritten statement which had been tendered by consent in the course of Hollick's cross-examination. He said it was an exhibit of critical importance to the question of identification. His Honour responded by saying that he could see no difference between the identification outside the courtroom and the dock identification, particularly bearing in mind the fact that they had been separated by only a short period of time. Defence counsel said he could see no point in a direction on the statement and none was given. Nor did his Honour give any further directions to the jury on identification.

In my view it was essential for the trial judge to provide the jury with directions which would assist them in evaluating the out of court identifications which were made in

this case and to warn them of the dangers which are associated with identifications made in such circumstances. Where there is an out of court identification of an accused person the subsequent identification of that person in court is usually carried out to confirm that the person previously identified is, in fact, the person before the court. (Grbic v Pitkethly [1992] FCA 451; (1992) 65 A Crim R 12 at 21). In most cases where the dock identification is employed for this limited purpose it is little more than a formality. It is the out of court identification which is the critical matter for the jury's consideration. That this is so is reflected in the use which is made of physical and photographic identification procedures and the care which is required in conducting them. The manner in which identification procedures are conducted or the circumstances in which less formal identification takes place may lead to unreliable evidence and it is an important function of a trial judge to give careful directions to the jury on any risks associated with the circumstances of identification in the particular case. (Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 555.)

In R v Bedford (1987) 28 A Crim R 311 two alleged victims in a rape case were taken to the Magistrates' Court and asked to observe persons coming and going from the courtroom. One of the women identified the appellant as he walked into the court. Street CJ, delivering the judgment of the Court of Criminal Appeal said (p314):

"In the present case it would have been preferable if the two victims had been taken separately to the court as well as being, as they were, seated separately in the lobby. Moreover it was undoubtedly a potentially prejudicial atmosphere in which to accord the victim an opportunity of viewing the man whom the police had in mind to be the man who had carried out the attack. It was not as bad as exposing the suspected person to the victim in the context of a suspected person actually being in the dock in committal proceedings in respect of the offence in question. It was nevertheless a climate which would have led to some element of predisposition on the part of the victim to identify, amongst the various men passing through the lobby on that day, one of them as her attacker. These matters, however, were in my view essentially for the evaluation of the jury."

Street CJ observed that all matters relevant to the identification were fully canvassed by the trial judge and the appeal against conviction was dismissed.

On the other hand the failure to warn the jury of dangers associated with the out of court identification of two suspects in custody in a police station led to a successful appeal against conviction in R v Hawes (Unreported NSW Court of Appeal 21st April, 1995). Bruce J said: "The further directions would clearly have been interpreted by the jury as having been intended to encapsulate all of the matters to which they should have regard in relation to the dangers of the identification evidence. Yet it omitted a vital matter which should have been pointed out to them. In Regina v Pearsall (1990) 49 A Crim R 439 - a decision upon which the Crown placed considerable reliance, emphasis was placed (at 443) upon the need for an appropriate warning concerning the circumstances in which the identification took place. No such warning was given here. It was the subject of specific request, which was refused.

Identification was a significant issue in this case and the jury could have convicted on the evidence of identification alone even though there was a very strong case against the appellant. The case although very strong was not such as to lead inevitably to the conclusion that the jury must have convicted independently of the identification evidence.

If it is alleged that an identification has taken place outside the courtroom but in the precincts of the court at about the time of the hearing, it is important for the prosecution to lead evidence of all the relevant circumstances. The dangers associated with this type of identification include the element of suggestion by reason of an expectation that the accused will be attending court and the possibility that he or she will be in the presence of persons associated with the case such as fellow accused or counsel acting in the case. (Grbic v Pitkethly supra at 27; R v Martin & Nicholls [1994] Crim L R 218.) It is also important to know the details of any conversation which might have taken place at the time of the identification between the witness and police officers or other persons associated with the prosecution.

In the present case it is clear that all relevant circumstances of the identifications by the two witnesses were not put before the jury. Indeed the evidence on this topic was left in a most unsatisfactory state. Furthermore the jurors were given no assistance as to the manner in which they should assess what evidence there was before the court in relation to those circumstances. I have pointed out that the evidence of identification was essential to a conviction on all of the offences with which the appellant was charged. The trial judge directed the jury that the dock identifications were of negligible probative value and, as there was no other evidence of substance to connect the appellant with the offences, the evidence of the out of court identifications was of vital importance. In the course of his final address the prosecutor invited the jury to rely upon the out of court identifications in order to convict the appellant. As there was no direction at all on this aspect of the case I have no hesitation in reaching the conclusion that the appeal must be allowed and the verdicts set aside.

In the light of this conclusion it is unnecessary to deal in any detail with the other grounds of appeal which complained of the directions to the jury on joint enterprise. I am of the view that although the trial judge gave directions on this issue which were correct in law, the jury were not provided with adequate guidance in applying them to the circumstances of the case. The information alleged the commission of a number of offences by several offenders. It was important for the directions on complicity to be related in a practical manner to the elements of each offence and the particular role which the prosecution attributed to this appellant. In my view the summing-up fell short of achieving this purpose.

Miss Nelson QC, for the appellant, did not argue that verdicts of acquittal should be substituted. I would allow the appeal, set aside the convictions and order a new trial.

I agree with the reasons and the orders proposed by Duggan J.

I agree with the orders proposed by Duggan J and for the reasons that he gives. I have nothing further to add.