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THE COURT: Introduction

1. On 25 February 2022, the appellant was found guilty by a jury of an offence of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT). The appellant appeals against his conviction. On 5 May 2022, he was sentenced to imprisonment for three years (noting that he was also sentenced for other unrelated matters at that time: R v Marshall (No 2) [2022] ACTSC 102).

2. The Crown case at trial was that on 27 June 2021 the appellant, and at least one other unknown person: approached Jamie Zeigler; threatened him with a knife; and stole his belongings, including a grey Ford Turbo owned by his father (the Ford Turbo). The appellant was identified by Mr Zeigler a short time after the robbery, then arrested and charged on 28 June 2021. There was no dispute at the trial that Mr Zeigler had been the victim of a robbery. The issue was one of identification, namely, whether the Crown had established beyond reasonable doubt that the appellant was the assailant who threatened him with a knife. The Crown case was circumstantial, relying principally on identification of the appellant by Mr Zeigler and six other strands of evidence (including forensic evidence located in the vehicle when it was recovered).

3. The appellant alleges five grounds of appeal, which in essence allege the following: first, the verdict is unreasonable and cannot be supported having regard to the evidence (ground (a)); second, the trial judge erred in admitting evidence of the identification from a Facebook photo (ground (b)); third, the trial judge erred in admitting evidence of a photograph of an individual referred to as “Sugi” (ground (c)); fourth, the trial judge erred in admitting evidence of a consciousness of guilt from the deletion of messages in an online chat (ground (d)); and fifth, a miscarriage of justice has occurred as a result of the calling of three particular witnesses (ground (e)). We note that there is no challenge to the correctness or adequacy of the jury directions.

4. For the reasons below, the appeal is dismissed.

Factual overview

5. At the outset, it is appropriate to address the basis of the Crown case as to the identification of the appellant as the offender with a knife in the back passenger seat behind the driver, as doing so puts the evidence challenged in the grounds of appeal in its proper context. This is only an overview of the case, and some aspects will be returned to and discussed in more detail when addressing the grounds of appeal.

6. As explained above, the Crown relied on seven strands of evidence.

7. That evidence is in the following context. The robbery took place shortly before noon at the Kippax shops. Mr Zeigler described four men being involved in the robbery, and a white Toyota Camry being associated with the offenders (the white Camry). The CCTV footage from the shopping centre showed Mr Zeigler’s car, the Ford Turbo, leaving the shops followed shortly by a white Camry. The Ford Turbo was recorded by CCTV as arriving at the Wayfarer apartments at about 5pm, with three people alighting (one said to be the appellant, being the person who got out of the vehicle from the rear driver’s side wearing a grey hoodie with black markings on the front and hood). The appellant was arrested at about 6.20pm that day by police attending the Wayfarer apartments. Police located the Ford Turbo and the white Camry in the basement carpark of that apartment building.

8. Against that background we turn to the seven strands of evidence relied on by the prosecution.

9. First, the appellant was in the area of the Kippax shops at the time of the robbery. There had been an arrangement made that morning for the appellant to meet Mr Zeigler there at that time (although Mr Zeigler did not know the person he was meeting). Mr Zeigler was to collect money from the appellant for Dylan Wilson. Regardless of the purpose of the meeting (with the appellant submitting that there was evidence that it related to drugs), there was unchallenged evidence of the fact of the arrangement to meet. In addition to the evidence of Mr Zeigler and Mr Wilson regarding the arrangement to meet, the fact of communication between Mr Wilson and the appellant the morning of the incident is supported by telephone records. There is also evidence of Facebook messages between Mr Wilson and the appellant that support making the arrangement to meet. Further, telephone records evidenced the appellant’s proximity to the Kippax shops at the relevant time.

10. Second, the descriptions of the offender. At the scene of the incident, within minutes of the robbery, Mr Zeigler described to the police that the man with the knife was about 20 years old with dark skin and a tattoo covering the front of his neck. Senior Constable Wood also gave evidence that the police were told he was wearing a black hooded jumper. Mr Ziegler’s evidence is that he told police at Kippax Shops that “it was a dark-coloured skin bloke with tattoos”. He said that the man with the knife looked like, but was not, Sugi (a person known to him). A photograph of Sugi, taken relatively proximate to the time of the offence, was tendered. Sugi was in custody at the time of the offence and therefore was not involved in it. The prosecution submitted to the jury that there was a similarity in appearance between the appellant and Sugi, based on the photograph of Sugi. The jury also had a Facebook photograph of the appellant and photographs taken of him on the day of his arrest. The admissibility of the photograph of Sugi is the subject of ground (c) of the appeal.

11. The description of the offender with the knife given by Mr Zeigler to the police at the scene is consistent with the appellant’s appearance. That said, the appellant made submissions on the appeal that there were some deficiencies in Mr Zeigler’s description. The appellant highlighted, for example: Mr Zeigler’s examination in chief, where he described the offender only as having dark coloured skin and tattoos (that is, without specifically referring to his neck tattoo); and that in Mr Ziegler’s recorded statement taken after the robbery, while at Mr Wilson’s house, although he referred to tattoos, he did not refer to neck tattoos.

12. Third, Mr Zeigler’s identification of a Facebook photograph of the appellant as the man with the knife who robbed him. This occurred very proximate to the robbery when, after the offence, the police took Mr Zeigler to Mr Wilson’s house. Mr Wilson told the police that the person Mr Zeigler was to meet was the appellant. Shortly thereafter he produced to them on his mobile telephone a Facebook photograph of the person he said he had arranged for Mr Zeigler to meet. Mr Zeigler was present at the time, and on that occurring, he said words to the effect that it was the person who had robbed him. This identification is the subject of ground (b) of the appeal. The evidence will be described in more detail in considering that ground.

13. Fourth, is evidence from Dylan Reid, who said he saw the Ford Turbo between 4pm and 5pm at traffic lights on the Tuggeranong Parkway in Kambah. He described people in the car as wearing blue face masks and two of them as having neck tattoos. Telephone records place the appellant’s phone in the general area of the Tuggeranong Parkway just after 4pm.

14. Fifth, is CCTV footage from the Kippax shops and the Wayfarer apartments. The footage from the Kippax shops is very grainy and it was accepted by the prosecution that little can be gained from it. More reliance was placed on the CCTV footage from the Wayfarer apartments. The Ford Turbo and the white Camry were located in the carpark of that building. The footage shows a grey Ford Turbo arrive at about 5pm and three people get out. By this time, the number plates had been removed and different plates had been affixed. The number plates from the Ford Turbo were found in the white Camry. It was the Crown case that: the appellant can be seen getting out of the rear driver’s side (the location he was alleged to be in at the time of the robbery); and that the clothes worn by that person depicted in the CCTV footage were consistent with the clothing worn by the appellant at the time of his arrest shortly thereafter.

15. Sixth, forensic evidence obtained as a result of the examination of the Ford Turbo and the white Camry. DNA was obtained from a forensic sample taken from the rear driver’s side of the Ford Turbo, with the evidence being that the appellant was one of three contributors to the DNA profile. The evidence was that the DNA was likely to be present in the vehicle by direct transfer (rather than secondary transfer). We note that the appellant did not challenge that his DNA was in the vehicle, the issue was how it came to be there: see [102] below.

16. In addition, DNA of Jordan Massey was obtained from a sample on the front driver’s side door of the Ford Turbo. Mr Massey’s fingerprints were also found in the white Camry and his DNA on a “Guerilla knife” found in the driver’s side pocket of it. There was also DNA of Stephen McCracken on the rear driver’s side and front passenger side of the Ford Turbo, and on a drill in the front floor well of it. Further, there was DNA of Jacob Riveros, Mr Massey and Mr McCracken on various aspects of the white Camry. Mr Riveros’ fingerprints were also found on a Scanpan knife in the white Camry and on a registration plate of the Ford Turbo. Mr McCracken’s fingerprints were also on the boot of the Ford Turbo and on a registration plate.

17. The appellant noted during the appeal that there was no forensic evidence implicating the appellant in relation to the two knives found in the white Camry, even though he was said to have held a knife to Mr Ziegler’s throat. We note that neither knife was identified as the weapon used by that assailant.

18. Mr Zeigler gave evidence that the appellant, Mr Massey, Mr Riveros and Mr McCracken had not (otherwise) been in his vehicle.

19. Seventh, the prosecution called Mr McCracken, Mr Riveros and Mr Massey. This was said to be evidence of association between he and other persons linked to the relevant vehicles. This is the subject of appeal ground (e), and the evidence will be detailed when considering that ground: see [86]-[143] below.

20. In addition, the Crown relied on the appellant’s deletion of messages from a Facebook chat (which were said to relate to arranging the meeting with Mr Ziegler at the Kippax shops) as evidence of a consciousness of guilt: see [70]-[85] below. This evidence is the subject of ground (d).

21. The appellant did not give, or call any evidence.

Preliminary Issue

22. Before considering the grounds of appeal it is necessary to address a preliminary issue which arises because objection was not taken below in relation to some of the grounds of appeal directed to the admissibility of evidence, or at least, objection was not taken on the basis now advanced. This is to be considered in a context where the appellant was represented by counsel during the trial, and objection was taken to some aspects of the evidence during both the trial and pre-trial argument.

23. Rule 5531 of the Court Procedures Rules 2006 (ACT) states: Appeals to Court of Appeal—grounds of appeal against conviction or sentence Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing: (a) a direction given by the trial judge; (b) the trial judge's failure to give a direction; (c) the trial judge's decision about the admission or rejection of evidence.

24. The respondent submits that leave is required in respect to grounds (b), (c) and (e).

25. Reliance on a point not raised below requires an appellant to demonstrate a miscarriage of justice. This Court takes a strict approach to r 5531: see BI v The Queen (No 2) [2018] ACTCA 11 at [110]-[112] (BI v The Queen); Munro v The Queen [2014] ACTCA 11 at [128]-[130]; UQ v The Queen [2019] ACTCA 23; (2019) 14 ACTLR 172 at [7]; and MZ v The Queen [2020] ACTCA 41 at [16].

26. In Marsh v The Queen [2018] ACTCA 55, Wigney J observed at [170]-[172]: [170] The purpose of r 5531 is to prevent what is sometimes referred to as an “armchair appeal”, where counsel not involved in the trial “has sat down and gone through the whole of the transcript and [the] summing up looking for error, without reference to the manner in which the trial was conducted”: Munro v The Queen [2014] ACTCA 11 (Munro) at [128], referring to R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130 at [15]. [171] In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, McHugh J made the following observations (at [72]) concerning the equivalent rule in New South Wales: There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant’s conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. [172] In Munro, Burns J (with whom Refshauge ACJ and Penfold J agreed) made essentially the same point in relation to r 5531 (at [130]): In the present proceeding, there was no application made under r 5531 with respect to those grounds the appellant now seeks to agitate, which were not the subject of an objection at the trial. Appellants should not consider the provisions of r 5531 to be a formality which may be neglected. It is at the heart of the adversarial system that an accused chooses the manner in which his or her defence to criminal charges is conducted. Almost inevitably, this means that forensic decisions must be made on issues that arise in the course of the trial, such as objections to evidence or an objection to a direction given by the trial judge. The person best placed to make such an objection, by reason of familiarity with the basis on which the defence is being conducted and the atmosphere of the trial, is counsel for the accused. Where no such objection is taken, this Court is entitled to infer that counsel saw no unfairness or injustice in what was done.

27. Moreover, there is no lesser requirement for leave where an appellant seeks to advance a different basis as to why evidence should have been excluded: BI v The Queen at [155]; Sulaeman v The Queen [2013] NSWCCA 283 at [121]-[132].

28. We address this submission when considering the grounds to which it relates.

Grounds of appeal

29. The parties addressed the grounds of appeal relating to the admissibility of evidence before addressing ground (a), which alleges the verdict is unsupported by the evidence. We take the same approach.

Ground (b): Facebook identification

30. The admissibility of this evidence was challenged below, but only on the basis that it ought to be excluded because of a failure to comply with s 114 of the Evidence Act 2011 (ACT) (Evidence Act). Namely, that an identification parade was not conducted. A voir dire was conducted, which included the relevant witnesses being called to give evidence. The trial judge admitted the evidence, and that ruling is not challenged on this appeal. Rather, the sole basis now relied on is that the evidence should have been excluded pursuant to s 137 of the Evidence Act.

Submissions

31. The appellant referred to the circumstances in which the identification arose. In particular, the appellant submitted that when Mr Zeigler was taken to Mr Wilson’s house, he had in mind that the person he was supposed to meet was the person who robbed him. In those circumstances, Mr Zeigler identified the appellant from being shown one photograph of the person he was to meet. It was submitted that when being interviewed after this occurred, Mr Zeigler failed to refer to the offender having a neck tattoo (in circumstances where he was prompted by police conducting the interview regarding tattoos generally). The appellant was critical of the police for taking Mr Zeigler to Mr Wilson’s house and allowing the identification to occur in this manner.

32. The appellant noted that the associates had not been charged, even though the Crown had named them “effectively [as] co-offenders”. It was submitted that the only differential between the associates and the appellant was the Facebook identification evidence, emphasising its importance. Further, the applicant submitted that factors such as the pressured situation and evidence that Mr Ziegler was not able to see the person in the back of the Ford Turbo (said to be wearing a hoodie) went to the quality of the identification.

33. The appellant submitted that although the challenge below was on the basis of s 114 of the Evidence Act, counsel also raised, albeit less than directly, that the evidence should have been excluded on the basis of s 137. The terms of s 137 were said to have been invoked, albeit with less skill than could have been the case. It was also conceded that there was no suggestion during the trial that the trial judge had not fully dealt with the application to exclude the evidence. It was submitted that, in any event, the trial judge was obliged to exclude the evidence, and his failure to do so has given rise to a miscarriage of justice.

34. The appellant submitted that the procedure was similar to that in Bayley v The Queen [2016] VSCA 160; (2019) 260 A Crim R 1 (Bayley), where the Court of Appeal held that a Facebook identification ought to be excluded. The appellant therefore submitted that the evidence in this case ought to have been excluded because: the use of a single photograph, the quality of which itself was “not great”, risked an unreliable identification, particularly since the circumstances were highly suggestive of guilt; the circumstances of the identification were such that the victim had in his mind that the person who would be revealed to him by Mr Wilson would be the person who robbed him; and the circumstances of the identification in effect involved prompting by the police. The process followed by the police, whereby the photo was produced in their presence and seen by the victim, was said to be liable to prompt the victim to be predisposed to identify the person revealed as the robber. It was submitted that: in the circumstances, Mr Zeigler had little recall of the characteristics of the robber's identity; and, as a result, the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant.

35. The respondent submitted that, contrary to the appellant’s submission, Mr Zeigler gave a description to police of one of the assailants (alleged to be the appellant) having neck tattoos upon their arrival at the Kippax shops, before the Facebook identification. The respondent also submitted that the circumstances in which the identification occurred cannot be said to deprive the evidence of its significant probative value. The evidence was said not to establish any relevant prompting by police. The respondent accepted that there were elements of suggestibility in the sense of an expectation, given the way the identification came about. It was submitted that, however, the evidence demonstrated Mr Zeigler’s spontaneous recognition of the appellant upon seeing the Facebook profile picture within one hour of the robbery.

36. The respondent also submitted that had the s 137 objection been taken at trial, the appellant would have borne the onus of demonstrating the unfair prejudice which was said to outweigh the probative value of the evidence. The appellant was said not to have identified any prejudice, let alone unfair prejudice, which would have justified exclusion of the identification. The respondent submitted that Bayley was therefore entirely distinguishable.

37. Further, the respondent submitted that in considering the balancing exercise demanded by s 137, it is appropriate to consider the impact of judicial directions and warnings as to the weight and use of the evidence. The jury was said to have been adequately instructed as to the need for special caution when considering Mr Ziegler’s identification evidence, and the trial judge was said to have identified a number of features relevant to assessing the reliability of that evidence. It was submitted that the identification evidence was not of low probative value. Rather, the description provided by Mr Zeigler to police at the scene, the extent of his opportunity to observe the appellant, and the immediate recognition upon seeing the Facebook profile, in conjunction with the other evidence in the Crown case, were said to have rendered the identification evidence to be of significant probative value. The risk of any unfair prejudice was said to have been low, and to the extent it existed, adequately ameliorated by the extensive directions given. It was submitted that the appellant had not demonstrated that a miscarriage of justice occurred by the admission of the evidence, meaning leave to appeal on this ground ought to be refused, or, alternatively, this ground should be rejected. Consideration

38. The appellant contended that, contrary to the respondent’s submission, leave to appeal is not required because the issue was raised before the trial judge. The appellant referred to the orders sought in his application to exclude evidence, namely: 1. That the purported 'Facebook identification' of the accused Jackson Marshall by Jamie Ziegler be excluded as evidence at the trial of the applicant; 2. That the evidence of Dylan Reid of the vehicle, passenger and firearm sighting on 27 June 2021 be excluded at the trial of the applicant; 3. That the evidence of Constable Matthew Elder relating to the circumstances of the accused's arrest (flight as consciousness of guilt) be excluded at the trial of the applicant;

39. We observe that in contrast to order 1 above, the appellant expressly referred to s 137 of the Evidence Act in relation to the admissibility of other evidence.

40. In relation to the questions of law said to be raised, the appellant relevantly put (in his application to exclude evidence before the trial judge): 1. Whether the ‘Facebook identification’ is visual identification evidence. 2. Whether the probative value of the ‘Facebook identification’ is outweighed by the danger of unfair prejudice to the accused.

41. The appellant relies on the second question as raising s 137. However, a consideration of the submissions before the trial judge reflects that the appellant never raised s 137 in this context, nor did he make any other submission which could be seen to encompass that provision. Rather, the entirety of the relevant submissions were directed to s 114. Moreover, if the appellant had raised s 137, it would be expected that he would have raised with the trial judge that his Honour had not made any ruling on the topic. All of this confirms that, in reality, a submission directed to s 137 was not advanced below in relation to this evidence.

42. It follows that leave to appeal is required, and that the appellant must establish that a miscarriage of justice has occurred as a result of this evidence.

43. Before addressing the submissions, it is first appropriate to consider in more detail the circumstances in which the identification occurred. As the issue is whether a miscarriage of justice occurred, the evidence referred to below is that from the trial (as opposed to the voir dire). That said, there is no relevant difference between the evidence given on the voir dire and trial.

44. Two police officers attended the scene of the robbery, very shortly after its commission. There, Mr Zeigler gave the police a description of two of the offenders. Senior Constable Wood gave evidence that Mr Zeigler said that that the male who entered the vehicle behind him had “dark skin with tattoos on his neck”. Constable Malam, who was present during this conversation, also gave evidence that was the description given by Mr Zeigler at the scene. Mr Zeigler also said the assailant “looked like [a person called] Sugi”, but that the assailant was not Sugi. We note that the photograph of Sugi shows that he has a neck tattoo. Senior Constable Wood said that: Mr Zeigler advised him that Mr Wilson would know the person who had robbed him; and Mr Zeigler had no phone or transportation, so the police took Mr Zeigler to Mr Wilson’s house.

45. Mr Zeigler gave evidence of knocking on the door at Mr Wilson’s house and saying “[w]ho the fuck’s that?” (because he thought the person he was supposed to meet for Mr Wilson was the person who had robbed him) to which Mr Wilson replied, “yeah that’s my mate, Jackson Marshall” and showed Mr Zeigler a Facebook profile. Mr Ziegler said that he saw the Facebook profile and said “[y]ep. That’s him”. He also described looking at a smaller then larger profile picture, stating that Mr Wilson clicked on the small profile picture to enlarge it on his phone.

46. Mr Zeigler agreed that just before being shown the Facebook profile he believed the person who robbed him was the person he was going to meet at Mr Wilson’s request. Mr Zeigler described the assailant with the knife (later identified as the appellant) as getting into the Ford Turbo behind him. After Mr Zeigler was forced out of the vehicle, he said that he was able to see that assailant’s face. At this time, he was at the driver’s side door and the assailant was towards the back of the car. Mr Ziegler described them as being about “half a car length” apart. He described standing at the car door and “trying to fight them” for at least a minute. Mr Ziegler did not accept this was an “over exaggeration” and denied that he did not pay attention to the assailant who had been in the back seat (although, he did agree that he was shaken by what had occurred). It follows, contrary to the appellant’s submission, the evidence was that Mr Zeigler did see the face of the offender with the knife.

47. Senior Constable Wood gave more detailed evidence of what occurred at Mr Wilson’s house. His evidence was as follows. He had a conversation with Mr Wilson, who said Mr Marshall had owed him a hundred dollars and he had asked Mr Zeigler to collect it. Mr Wilson produced a Facebook thread of messages to and from the appellant. The message thread said some messages had been unsent. Mr Wilson also showed a Facebook photograph of the appellant. At that point, Mr Zeigler identified the person in the photograph, the appellant, as the person who held a knife to his throat earlier. Constable Malam’s evidence was that Mr Zeigler used words to the effect of “that’s the guy that robbed me”.

48. The appellant submitted that Senior Constable Wood’s account differed from Mr Ziegler’s because Mr Ziegler said he identified the appellant as “the bloke who robbed me” in a conversation directly with Mr Wilson, whereas Constable Wood said Mr Ziegler happened to be looking over the shoulders of the police officers while Mr Wilson identified the person involved in the arrangement that had been made. On either account, the evidence is that the identification was spontaneously made by Mr Zeigler on the photograph being shown.

49. It is also relevant to address the trial judge’s directions to the jury, as that is necessarily relevant to whether a miscarriage of justice has been established. The trial judge gave a lengthy and detailed directions warning to the jury that they must be cautious before accepting the submission that the appellant had been correctly identified. This included explaining why caution was needed, and drawing to the jury’s attention matters relevant to its assessment of the reliability of Mr Zeigler’s identification. As the respondent correctly submitted, this warning included matters relevant but never raised by counsel during the trial.

50. His Honour commenced by explaining the reason a warning is given, that the experience of the law is that mistakes concerning identification are often and easily made, and the need for special caution because of that possibility. His Honour emphasised the importance of the direction he was giving. His Honour also directed that there were a number of factors in this case which may have been relevant to whether the jury could conclude that the accused had been correctly identified by Mr Ziegler.

51. His Honour’s warning included identifying and explaining five factors, namely: the evidence in relation to the view Mr Zeigler had of the offender; the length of time Mr Ziegler had to make observations; that Mr Zeigler was confronted by four men; where Mr Zeigler’s attention may have been focussed; and that Mr Ziegler did not know the appellant. In relation to the Facebook identification, the trial judge warned the jury: that Mr Zeigler had expected to see a photograph of the assailant at Mr Wilson’s house; about the difficulties in making an identification from a single photograph (earlier comparing it to multiple photos and a line up); and that the photograph was captioned with the appellant’s name, being the person he was to meet. Those latter two factors were described by his Honour as important factors which may affect the reliability of Mr Zeigler’s identification. His Honour emphasised that these matters affected the reliability of the identification, and that the jury needed to exercise caution when considering it.

52. There was no complaint made about those directions during the trial and no further directions were sought. The appellant does not challenge the adequacy of those directions in this appeal. Nor could they be properly criticised.

53. Although the appellant during the appeal was critical of the police conduct, it was not explained how that was relevant to exclusion pursuant to s 137 of the Evidence Act, or establishing a miscarriage of justice as a result of the evidence being admitted. The police conduct was considered in the s 114 context, and that ruling is not challenged. Nor is it suggested that the conduct was improper such as to enliven s 138 of the Evidence Act. It is important to recall the nature of s 137, it is premised on there being an unfair prejudice. The prejudicial effect referred to in s 137 is the danger that a jury might make improper use of the evidence. That is, it would: be misused by the jury in some way; be given more weight than it deserved; divert the jury from its task; be evaluated by the jury through the application of some illegitimate form of reasoning; or be used in a way which is irrational or illogical: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [98]; Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [140]; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [51]; R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [116]; Baker v The Queen [2020] ACTCA 55 at [43].

54. The Facebook identification evidence has significant probative value. In the context of the detailed directions given, the appellant has not clearly identified why the prejudicial effect outweighed the probative value, or the basis on which a miscarriage is said to arise. The dangers of identification from a single photo are well known: see, for example, Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 39 at 400; R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 at [25]-[29]; Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581 at [409]-[414]. The particular circumstances of this case are that an identification was not sought by any planned process, but rather, the photograph was shown on a Facebook profile, meaning the identification spontaneously occurred. That occurred very shortly after the robbery, and in circumstances where a description had already been provided of the offender. Further, the warning given about the dangers of relying on this evidence and the factors relevant to its assessment were identified and carefully explained.

55. The circumstances of this identification are very different from those in Bayley, relied on by the appellant. Not least of which, the events in that case occurred 12 years before the Facebook identification in question and there had been extensive publicity about the arrest of Mr Bayley for the rape and murder of Ms Meagher. The witness was shown a photo board at some time after she had seen Mr Bayley’s photo on Facebook, and between those two occasions she had seen his photo in the media on a number of occasions. Similarly, the ruling in R v Smith (No 3) [2014] NSWSC 771 (which is referred to in Bayley and relied on by the appellant) involved different circumstances. For example, in that case the photo identified from social media was associated with the description that the person was wanted by the police. The trial judge there concluded that the evidence was of low probative value. On the other hand, the respondent referred to R v Kearney [2013] SASC 121; (2013) 223 A Crim R 527, as an example where a trial judge admitted evidence of an identification from Facebook during the pre-detection phase. These cases are just three examples of the many cases which reflect that applying the relevant principles, nonetheless, each turns on its own facts.

56. In this case, any risk of prejudice in that the jury may not appreciate the dangers associated with this identification, were addressed in the careful and detailed directions given by the trial judge. The jury was given appropriate directions as to the use of this evidence and there is no basis to suppose that the jury would have done anything other than follow those directions: see, for example, Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [31] (Gilbert); Glennon v The Queen [1992] HCA 16; (1992) 173 CLR 592 at 615 (Glennon).

57. Bearing in mind also that this was not a single piece of evidence to be considered alone. Although it was undoubtedly a significant piece of evidence, there is other evidence implicating the appellant. The assessment of the whether a miscarriage of justice has been established is in that context.

58. The appellant has not established that a miscarriage of justice has occurred. Leave to appeal is refused.

Ground (c): the photograph of Sugi

59. As will be recalled, when Mr Zeigler gave a description of the offender at the scene of the offence shortly after the police arrived, he said, inter alia, that the assailant looked like Sugi, but was not Sugi. At trial, the respondent tendered a photograph of Sugi, which was produced by the police. Sugi was a person known to police and the photograph was taken three months before the offence. The appellant objected at the time of the tender, on the basis of relevance. The trial judge admitted the evidence.

Submissions

60. The appellant by this ground challenges the tender of the photograph. He submitted that the photograph of the person, who was not the offender, and which had not been identified by Mr Zeigler, was irrelevant. It was submitted that: it “was not an issue in the trial whether the robber looked like someone else - the issue was what the robber looked like”; and that the introduction of a photo of a person who was then clearly stated not to be the robber could only confuse the jury. It was also submitted that the circumstances of the tender, where it was made clear that Sugi was a “ne'er-do-well”, introduced an atmosphere of prejudice against the appellant. This was in the context of the Sugi being referred to as a Comanchero. The appellant submitted that this objection was taken at trial.

61. The respondent submitted that the evidence was relevant, directing attention to the definition in s 55 of the Evidence Act. The photograph, in conjunction with Mr Zeigler’s evidence that the assailant looked like but was not Sugi, was said to be rationally (even if indirectly) capable of affecting the jury’s assessment of Mr Zeigler’s ability to perceive and remember the assailant. The evidence was said to be capable of: rendering Mr Zeigler’s initial description of the assailant to police (that is, skin colour, age and neck tattoos) as more reliable; and affecting the reliability of Mr Ziegler’s subsequent identification of the appellant. It was submitted that the jury were entitled to consider the similarities in the appearances of Sugi and the appellant, and reason that, as Mr Zeigler was able to distinguish the assailant from Sugi, his powers of perception during a traumatic incident were reliable. The respondent also submitted that the evidence was relevant to Mr Zeigler’s credibility. Evidence relating to credibility of the witness will indirectly affect the assessment of the probability of the existence of the fact in issue, in this case, the identity of the assailant. The trial judge was said to be correct to find the evidence met the threshold of relevance.

62. As for the evidence that Sugi was a member of the Comancheros, it was submitted that it appears to have been led for the purpose of explaining why he was a person known to police. The appellant was said not to have objected to this evidence. The respondent also submitted that regardless of whether it was necessary or relevant for the information to be adduced, there was no miscarriage of justice as a result. It was also noted that there was no suggestion the appellant was a person known to Sugi. Further, the respondent submitted that although the appellant did challenge the relevance of this evidence in the trial, the submission as to prejudice on the basis that Sugi was a member of the Comancheros was not raised and therefore requires leave to appeal.

Consideration

63. It is accepted that the submission as to relevance does not require leave as that objection was taken at trial.

64. Evidence that is relevant is evidence that, if accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: s 55 of the Evidence Act; Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at [6] (Smith). Evidence is either relevant, or it is not. There is no discretion to be exercised: Smith at [6]. It is trite to observe that evidence that is relevant is admissible, subject a number of provisions in the Evidence Act: s 56.

65. The identity of the offender with the knife was a fact in issue at the trial. In circumstances where Mr Zeigler had given a description to police at the scene which included that that offender resembled Sugi, the tendered photograph depicting Sugi could rationally affect the question of whether Mr Zeigler’s evidence should be accepted as to his description and his identification of the appellant as the offender. Although the respondent on the appeal referred to the evidence as being relevant to the credibility of Mr Zeigler’s identification, at trial, it was said that the evidence bore on the reliability of Mr Ziegler’s evidence of identification. It is the position at trial which is accurate. Sugi’s appearance in the photograph tendered reflected the description given by Mr Zeigler of the offender. We might add that the photograph of Sugi does bear a resemblance to the appellant as depicted in photographs taken relatively proximate to the time of the offence. Even the appellant accepted during submissions on the appeal that it might be thought there is some “superficial resemblance” between the appearances of Sugi and the appellant.

66. Although it may be accepted that the photograph should have been shown to Mr Zeigler to identify, it was not seriously suggested at trial that the person depicted in the photograph was not the person Mr Zeigler was referring to. We note that the appellant correctly accepted during the appeal that it would be relevant if the person said by a witness to resemble an accused, had an appearance different to the person the witness later identified. That being so, it is difficult to understand the basis of the challenge to the relevance of this photograph.

67. In so far as the appellant alleges there was prejudice arising from the reference to Sugi being a Comanchero, we note that there is no ground of appeal relating to that criticism. No direction was sought at the trial. In any event, it is difficult to see any prejudice towards the appellant, as it is not suggested that he knew Sugi or was associated with him, but rather it was Mr Zeigler who knew him. As to the complaint that there was a reference to Sugi being in jail at the time of the offence, this was plainly relevant to exclude him as the offender in light of Mr Zeigler’s evidence as to the description of the offender.

68. There is no basis to the appellant’s submission that the photograph and evidence in relation to Sugi introduced an “atmosphere” of prejudice against the appellant. If the basis of this challenge is said to be within the ground of appeal it would require leave to appeal. The appellant has not established any miscarriage of justice on this basis and leave would have been refused.

69. This ground is not established.

Ground (d): consciousness of guilt

Submission

70. The appellant submitted that the evidence of deletion of messages shortly after the offence from the Facebook chat between Mr Wilson and the appellant (which had been sent shortly before the offence) ought not to be left to the jury as evidence of consciousness of guilt. Relevant also to those messages were said to be two telephone conversations involving the appellant which, it was submitted by the Crown, contained references to the deleted messages. The appellant submitted that: the content of the messages were not known; there was no strong evidence the appellant deleted them (although he accepted that inference could be drawn); and there may have been many reasons why the messages were deleted. The appellant submitted that the consciousness of guilt did not rise to the level where it should have been allowed to go before the jury. It was submitted that its capacity for unfair prejudice was great and its probative value was small or non-existent.

71. The respondent submitted that for evidence of conduct to be admissible as consciousness of guilt: the conduct must be proved by evidence; it must relate to some circumstance or event connected to the charged offence; and it must be open to infer that the motivation for the conduct is a realisation of guilt of the charged offence, referring to Keuhne v The Queen [2012] NSWCCA 270 at [6] (Keuhne). It was submitted that the mere fact, however, that there is a credible explanation consistent with innocence is not sufficient to render inadmissible post-offence conduct tendered as consciousness of guilt: R v Power [1996] SASC 5653; (1996) 87 A Crim R 407 at 409 (Power). It was said to be a matter for the jury, properly directed, to consider whether the explanation, if any, given by an accused person is sufficient to prevent reliance on the conduct as consciousness of guilt in the circumstances.

72. The respondent also submitted that it was open to find that the deletion of the messages evidenced the appellant’s consciousness of guilt. It was submitted that it could not be said that an innocent explanation for the message deletion was so inherently likely that a jury could not properly regard the conduct as evidence of guilt. Nor could it be said that the message deletion was “intractably neutral” such that it ought not to have been left to the jury for determination: referring to Meakin v The Queen [2018] NSWCCA 288 (Meakin). It was also submitted that it is beside the point that the message deletion may also be consistent with a consciousness of guilt of another offence as this does not preclude consciousness of guilt going before the jury: citing The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 (Baden-Clay).

Consideration

73. It is important at the outset to explain the evidence in more detail.

74. Mr Ziegler gave evidence that Mr Wilson had asked him to meet a friend to recover $100 on his behalf. During cross-examination, Mr Wilson gave evidence that: he had been messaging the appellant about the $100 owed to him; he had maybe asked Mr Ziegler to collect the money at a meeting spot in Kippax; and he understood that an arrangement had been made for Mr Ziegler to meet Mr Marshall at the Kippax shops.

75. Senior Constable Wood and Constable Malam gave evidence that upon attending Mr Wilson’s home shortly after the robbery, they observed a Facebook message exchange between the appellant and Mr Wilson in which some of the appellant’s messages were being, or had been, deleted or unsent. Senior Constable Wood stated that the messages appeared to have been deleted or unsent, while Constable Malam recalled the messages being deleted in his presence.

76. Exhibit 7 was a document containing screenshots of messages between the appellant and Mr Wilson, taken from the appellant’s mobile phone by police. It was agreed that Exhibit 7 reflected the message exchange observed on Mr Wilson’s phone by Senior Constable Wood and Constable Malam. Exhibit 7 contains an exchange between the appellant and Mr Wilson. There are seven text bubbles containing the words: “You unsent a message” in the accused’s message column. These deleted messages were immediately followed by an exchange between 11.22am and 12.05pm on 27 June 2021 in which Mr Wilson advised the appellant that his “connection” was on the way and indicated that his “mate” would call the appellant, at which point the appellant provided his mobile phone number to Mr Wilson.

77. There were also two agreed facts about two recorded conversations which the appellant had with another person on 12 July 2021 and 13 July 2021. During the earlier conversation, the appellant stated that “they won’t be able to show the messages”, and during the later conversation he said “… where’s the messages saying I was even meant to meet up with him … they’re not going to be able to show that because there is none”.

78. The appellant has not established that there was any error in leaving this evidence to the jury as evidence of consciousness of guilt.

79. To be admissible, such post offence conduct must be capable of constituting an admission against interest. In Keuhne at [6] Latham J observed: …the categories of post offence conduct that have been recognised as legitimate indicia of a consciousness of guilt are not closed, but before any post offence conduct can so qualify, it must bear a particular character. It must be capable of constituting an admission against interest. It must be capable of meeting the conditions analogous to those discussed in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 applying to lies. The relevant conduct must be precisely identified and proved by evidence, it must be concerned with some circumstance or event connected with the offence and it must be carried out in circumstances in which the explanation for the conduct is a realisation of guilt on the part of the accused. The type of conduct referred to in McKey, such as flight, destruction of evidence and attempts to influence witnesses, meet all of those conditions.

80. That there may have been another explanation for the deletion (as submitted by the appellant) does not, in this case, preclude the evidence being left to the jury as a consciousness of guilt. In Power at 409, Doyle CJ observed in the context of flight (another form of post offence conduct capable of being left to the jury as a consciousness of guilt) that: There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see, eg, Melrose [1989] 1 Qd R 572; (1987) 30 A Crim R 332. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected.

81. This passage has repeatedly been cited with approval: see, for example, Willingham v The Queen [2022] SASCA 3 at [88]; R v Bi [2016] ACTSC 355 at [25].

82. The deleted messages immediately preceded the exchange between Mr Wilson and the appellant that Mr Wilson’s friend was on his way. It can be inferred from Senior Constable Wood and Constable Malam’s evidence that the messages were deleted shortly after the offence. Viewed in the context of the telephone calls, and where there was no challenge that it could be inferred that the appellant deleted or unsent the messages, it was well open for the jury to draw the inference that the appellant deleted the messages because he knew they would tend to implicate him in the offence against Mr Zeigler.

83. We accept the prosecution’s submission that the evidence relied on was not intractably neutral: cf Meakin at [136]. The evidence was capable of demonstrating a consciousness of guilt.

84. The evidence having been admitted, the trial judge gave, as the appellant acknowledges, unexceptional directions to the jury regarding consciousness of guilt: see Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 at 206.

85. The ground is not established.

Ground (e): evidence of the “associates”

86. This ground relates to the prosecution calling Mr McCracken, Mr Massey and Mr Riveros, and the use made of their evidence. More precisely, it is alleged that a miscarriage of justice was occasioned by the abortive calling of Mr McCracken, and the calling of evidence from Mr Massey and Mr Riveros.

87. Before considering the submissions it is necessary to consider the evidence in more detail.

88. It will be recalled that Mr Zeigler gave evidence that there were four people and a white Camry involved in the robbery. There was also forensic evidence linking Mr McCracken, Mr Massey and Mr Riveros to the Ford Turbo and/or the white Camry, which were both found at the Wayfarer apartments. It will also be recalled that Mr Zeigler gave evidence that he did not know these persons and/or they had never been in the Ford Turbo. That is, there is no basis for the presence of their DNA or fingerprints in the Ford Turbo. There was also evidence that at the time of the appellant’s arrest at the Wayfarer apartments, he was seen with Mr Massey.

89. Mr McCracken, Mr Massey, Mr Riveros and other witnesses were called by the prosecution on a Basha inquiry. During that, it was raised with the trial judge that applications under s 38 and warnings under s 128 of the Evidence Act would potentially arise.

90. As to the evidence given by them on the Basha inquiry, we make the following observations. Mr McCracken, after being called, refused to give evidence. Mr Riveros’ evidence reflects that he was plainly aware that he could raise with the Court if he had concerns that the questions might incriminate him. He inquired of the judge what conduct would amount to contempt of court. Applications pursuant to s 38 of the Evidence Act were made by the prosecution in relation to Mr Riveros, to which no objection was taken, and Mr Massey. Further, both Mr Massey and Mr Riveros provided no explanation for the forensic evidence linking them to the vehicles. The appellant did not cross-examine either witness.

91. It is against that background that the three witnesses were called at trial. There was no objection to their being called. We note that not all the witnesses called on the Basha inquiry were called at the trial.

92. At the trial, the prosecution relevantly opened as follows: Which brings me to the last and seventh aspect of the evidence in this trial; that is, of the associates of the accused. Now, as I mentioned the CCTV footage shows that there were a number of other people who have interacted with the grey Ford Turbo, who get out of the Turbo, but also you'll see in the footage after some time other people come and are interacting and the Crown says that they are removing number plates and changing number plates between certain vehicles. These people are then linked to the car by the forensic evidence, and these people are, the Crown says, or the names that you will hear come up from the forensic evidence is Jordan Massey, Stephen McCracken, Jacob Riveros, and Jeremy Subasic. You'll hear that there is evidence that these people were contributors to DNA findings or fingerprint examinations, or both. And you'll hear from these people during the trial. I don't expect that they will tell you that they were involved in any robbery. Nor do I expect that they will tell you that Jackson Marshall was involved in any robbery. But I do expect that most of them will tell you about their friendships with Jackson Marshall, and to the extent that they can remember, what, if any, recollection they have about the grey Ford Turbo or the white Camry. When you come to be hearing this evidence about other people who may or may not be involved in the robbery, I'd ask that you keep in mind the Crown doesn't have to prove any of these other people are involved. This trial, the trial that you're concerned with and that you are hearing the evidence about, is concerned with whether Jackson Marshall was involved in this robbery. The Crown, though, has an obligation of fairness to ensure that you have the opportunity to hear all evidence that may be relevant to your decision. So, you'll hear this evidence from people that the Crown says are associates of Jackson Marshall, and who have forensic evidence links to these vehicles, and you'll have the opportunity to hear what they have to say about that.

93. Mr McCracken was called to give evidence and declined to answer any questions. As a result, the trial judge directed the jury as follows: HIS HONOUR: Well, that was short wasn't it, members of the jury? There is no evidence given by Mr McCracken and, I have to say, you should really disregard everything you have just seen and heard apart from the fact that the Crown tried to call evidence from Mr McCracken and he would not give evidence. Right.

94. No complaint was made about that direction, nor is there a ground of appeal complaining of its terms.

95. Mr Massey gave evidence that he knew the appellant and Mr McCracken, and had met Mr Riveros. Mr Massey said that he did not recall being a passenger in a white Camry or a Ford Turbo of the description of Mr Ziegler’s (namely, a grey GE6 Ford Turbo) and could not explain: why his DNA or fingerprints had been located inside the former; and why his DNA had been found in the front driver’s side on the inside of the latter, giving evidence that it was not because he had driven it or been involved in a robbery taking it. Mr Massey also stated that he could not explain why his DNA would be on the Guerilla knife.

96. We note that a s 38 application was made and not opposed in relation to the questions directed towards the vehicles. There was no cross-examination by counsel for the appellant.

97. Mr Riveros gave evidence that he had previously lived at the Wayfarer apartments. He stated that he knew the appellant (describing him as his “best mate” and ultimately agreeing that a photograph from his Facebook page depicted them with their arms around each other) and Mr Massey, but not Mr McCracken, Mr Wilson or Mr Ziegler. Further, Mr Riveros gave evidence that he did not recall ever being in a white Camry or grey GE6 Ford Turbo, but agreed that he was wearing a Nike Air jumper in the photograph of him and the appellant.

98. An application was made under s 38 in respect to the photograph from Mr Riveros’ Facebook page, which he ultimately agreed was of him and the appellant. The photograph, which was taken the day before the robbery, was tendered. Mr Riveros was cross-examined about the jumper he was wearing and the physical contact between him and the appellant shown in the photograph. These matters formed the basis of a submission made by the appellant in closing, directed to secondary transfer of the DNA evidence, as reflected in the passage referred to below at [102].

99. We note that the prosecution also called Jeremy Subasic, to ask questions directed at forensic evidence linking him to the Ford Turbo. Mr Subasic gave evidence that he had possibly been in contact or near the vehicle previously. Mr Zeigler gave evidence that he knew Mr Subasic, and that he had previously been in or been in contact with the Ford Turbo.

100. Photographs of each of these witnesses were tendered through a police witness.

101. In closing, the prosecution relevantly submitted: The seventh and final aspect of all this evidence is what the Crown has described as the associates of Mr Jackson. As expected from the outset, none of them accepted they had a role in the robbery, nor did they say that Mr Jackson Marshall did, but when it comes to assessing their credibility, their reliability, what you make of them, you have to assess that against the forensic evidence, forensic evidence that the Crown says clearly links them to being in the grey Ford and/or the Camry, depending on who. The only, perhaps, exception to that is, Jeremy Subasic. You will see from the fingerprint report that his name comes up on the exterior of the grey Ford Turbo, and that is the only place it is. The Crown is not suggesting he is part of this robbery. You have heard his explanation. He was a friend or relationship through a current partner or something to that effect. So there is an innocent explanation or a reason why his fingerprint could be on that car and it's nothing to do with the robbery. The same cannot be said for the other people involved, you might think, and in particular, two of them, and I am going to leave out Stephen McCracken. As you saw, he was not willing to give evidence in this courtroom, but there is Jake Riveros, he was the gentlemen who came inside the courtroom, and then there was Mr Jordan Massey who was up on the screen. What you heard from either of them, or both of them I should say, is that they are friends, or they know Jackson Marshall, and in the case of Mr Riveros, he was describing a relationship of close friends, or at least very good mates. So you have these close associates of Jackson Marshall that are strongly linked to these two vehicles and are strongly linked to the Wayfarer apartment, particularly Mr Riveros, and this becomes a relevant connection in your circumstantial case, not by any means suggesting that you find Mr Jackson Marshall guilty because he has or associates with some friends who seem to have some links to these cars, but when you're looking at the evidence in this case and the number of hours we're talking about from when the robbery happens to when the car arrives at the Wayfarer, and what the evidence shows about who else is associated with this car and Mr Marshall's links to those people, it is part of the whole picture of what is painted here, that Mr Marshall is part of the robbery with his associates.

102. The appellant relevantly addressed as follows: We know that Jackson Marshall's best mate, Jacob Riveros, was at some point in time living in apartment 2311. He said in his evidence that at the middle of last year he was living all over the place; that he had no fixed address, but we know that he has lived there before. We know that on 26 June Jacob Riveros posted a picture on Facebook of him and Jackson Marshall, that's Exhibit 14, the photo of them with their arms around each other. Officer Wood said that's the Wayfarer apartments view. That is not challenged. Jacob Riveros did not immediately say who the people were in the photo but when pressed, when shown those messages, 'My day one nigs right here. Straight up.' He accepted that it was a photograph of him and Jackson Marshall. My friend says, look at that photograph and concentrate on what Jackson Marshall is wearing. I say, look at that photograph and concentrate on what Jackson Marshall is touching. HIS HONOUR: What did you say? Concentrate on what he's? MS LEE: Touching. HIS HONOUR: Touching. All right. MS LEE: Sorry. Jacob Riveros is, plain as day, wearing that Nike Air jumper in that photo. Look at the CCTV footage; look at that Nike Air jumper. The DNA forensic evidence is aspect 6 of the Crown case. You have heard from the expert evidence that trace DNA from Jackson Marshall is found in a tape lift from the Ford. The tape lift, you have heard, is a sample description as a whole, literally of a tape lift from the rear driver's side door, the grab, the seatbelt, the headrest the buckle. That is all at page 84 of the transcript. That is accepted; the fact that Jackson Marshall was a contributor to a mixed profile accepted. But, quite simply what's not accepted is how his trace DNA became part of a mixed sample from that vehicle. The expert said – and this is a quote – again, you'll have the transcript at your disposal, that: The DNA found in the back part of this car was more likely a result of a direct transfer than a secondary transfer event. Now, you'll remember she explained direct transfer was body surface. That secondary transfer is surface/surface or another body surface, not the owner of the DNA. Again, she expresses that much or eloquently – please refer to her evidence. What she then says though, and as high as she puts it is, more likely direct transfer. No higher. She says she comes to that view that it's more likely because of calculations done on the quantity of the DNA. She said you can't date it. You can't tell if it was deposited at the same or a different time as the other DNA that it was mixed in. You can't say whether the DNA was at that part, whether all the DNA was together or some surfaces had none at all. … At no point did the expert say that Jackson Marshall's contribution to that mixed profile could not have been deposited by secondary or tertiary. Could it have been deposited then by transfer from a jumper? Could it then have been deposited by a transfer of an associate? Could it have been deposited by Marshall but not during the robbery?

103. The appellant concluded his closing, submitting: We do not stand here saying that Jackson Marshall is an angel; he is an innocent young fellow. Nobody is saying that his choice of associates is good, but what I am saying is that the Crown has not discharged their burden and that on the evidence that you have heard on dispassionate analysis, you will not be able to be satisfied beyond reasonable doubt that he was the person in the car with the knife.

104. We note also that in his closing submission, the appellant’s case was that the meeting arranged between himself and Mr Zeigler was in relation drugs. That was said to affect Mr Zeigler’s credibility because: he told police but later denied that the arrangement was in relation to drugs; and it was said to mean that he could be making strategic omissions when talking to police. The appellant also submitted that the deletion of the Facebook messages could relate to concerns about implications of drug dealing, and not consciousness of guilt of the relevant offence.

105. The trial judge relevantly directed the jury: Madam Crown referred to Mr Jackson's associates. She said he was clearly linked to people whose DNA was also found inside the grey Ford, and again, the Crown said, 'Look, that's not enough to convict him. You don't go around convicting people of robbery because they associate with other people who were probably involved in the robbery', but it is one of the circumstances on which the Crown relies.

106. No further directions were sought. There is no ground of appeal challenging the adequacy of the direction given. Submissions

107. The appellant submitted that as no evidence was adduced from Mr McCracken, calling him could only have prejudiced the appellant in the eyes of the jury. It was submitted that he “was an obvious ne'er-do-well who the prosecution asserted was an "associate" of the appellant”. It was also submitted that this impression had been exacerbated by the direction that the jury could have regard to the fact that Mr McCracken “would not give evidence”.

108. The appellant also submitted that Mr Massey was called not to give truthful evidence, but rather to give evidence that was contrary to the inferences to be drawn from the Crown case (and therefore considered false). It was submitted that it is not clear why Mr Riveros was called, but that he was not being put forward as a witness of truth. The appellant complained that the Basha inquiry occurred with no notice to him, and was unfair to him.

109. It was further submitted that it was not just the calling of the “associates” which was unfairly prejudicial, but the prosecution reinforced the impression by other evidence throughout the trial. This was said to be by asking Mr Zeigler about what contact Mr Massey, Mr Riveros and Mr McCracken had with the Ford Turbo. Leading the DNA and fingerprint evidence was also said to potentially lead to a chain of reasoning implicating the appellant by association. The appellant criticised no warning being given to the witnesses, nor a s 128 certificate. When pressed as to the relevance of that, it was said to go to the quality of the evidence, and the conduct of the prosecution. While it is not an appeal ground, it was said not to be irrelevant to the unfairness of this whole procedure.

110. The appellant said the prosecution submission in closing was unclear and circular, submitting that: ….whatever the Crown though[t] it was doing, the effect of the evidence of the associates is to create a miasma of prejudice. The appellant is the associate of dodgy characters. They deny their involvement but are clearly involved. The appellant is their friend and associate. He must be involved. The evidence of the associates lacks any coherent probative force in relation to the identity of the robber in the back seat of the Ford. It can only have encouraged the jury into an impermissible chain of reasoning, a classic guilt by association. On the other hand, the unfair prejudice was significant.

111. Further, the appellant submitted that no proper basis for calling this evidence was advanced at trial or on appeal. It was submitted that no forensic decision had been made at trial to not oppose the evidence and later regretted.

112. The respondent accepted that the evidence carried some element of prejudice because the jury may reason, by association, that the appellant committed the robbery. It was submitted that it cannot be said, however, that the risk of prejudice was such that it outweighed the probative value of the evidence and that the evidence ought to have been excluded.

113. The respondent submitted that a significant hurdle for the appellant is that no objection was taken by his counsel at trial to the evidence of the “associates” and no complaint was made about the relevant directions made by the trial judge. It was said that the difficulty in asserting this evidence created an atmosphere of unfair prejudice against the appellant is that, with no objection having been taken, it is reasonable to assume the appellant’s counsel was astute to the atmosphere of the trial and the need to ensure fairness to her client. The lack of complaint was therefore submitted to clearly evidence that the appellant’s counsel saw no unfairness or injustice in respect to this evidence. It was noted that the appellant has not asserted the lack of objection was the product of incompetence.

114. In relation to Mr McCracken, it was submitted that it was unclear how his refusal to give evidence occasioned a miscarriage of justice. Had counsel (or the trial judge) thought his behaviour were such as to irreparably prejudice the trial, it was said to be reasonable to assume an application to discharge the jury would have been made.

115. The respondent outlined the relevance of the evidence of association and submitted that, even if it were not admissible or some miscarriage has been established, in the circumstances, the proviso should be applied and the appeal should still be dismissed.

Consideration

116. A number of observations can be made.

117. First, the evidence of the impugned witnesses was, as explained above, called in circumstances where there was evidence of four people being involved in the robbery, and where forensic evidence linked those persons to the Ford Turbo and/or the white Camry. This evidence must be considered in its proper context, which includes, inter alia, that the vehicles were found at the Wayfarer apartments, and there were links between the two vehicles. This is also in circumstances where there was evidence from Mr Zeigler that there was no basis for the fingerprints of Mr Riveros and Mr McCracken to be on the Ford Turbo, nor the DNA of Mr McCracken and Mr Massey. On Mr Zeigler’s evidence, there was also no basis for the presence of the appellant’s DNA in the Ford Turbo (other than as the offender with the knife). That evidence was properly before the jury. In so far as the appellant submitted otherwise (without a ground of appeal relating to its admissibility and where no objection was taken at trial), that submission cannot be accepted.

118. Second, evidence of association between the appellant and other persons who have left forensic evidence in or on items associated with the robbery is plainly relevant. That is, regardless of whether the impugned witnesses were called, the prosecution could have, and did, lead other evidence of association. For example, the appellant was arrested at the Wayfarer apartments where he was seen with Mr Massey. The Ford Turbo and the white Camry were located at those apartments. CCTV footage at the Wayfarer apartments shows the Ford Turbo arriving and three persons getting out of it. It is said that the appellant is seen getting out of the rear driver’s side (the position Mr Zeigler said he was in at the time of the robbery) based on image and clothing. We note that photographs of Mr McCracken, Mr Massey and Mr Riveros were tendered through the police, relevant to the jury’s assessment of that CCTV footage. The appellant’s DNA was located in the Ford Turbo, with DNA of Mr Massey and Mr McCracken (Mr McCracken’s fingerprints also being found on the Ford Turbo). There was also evidence of a Facebook photograph of the appellant and Mr Riveros. The relevance of this evidence is not reasoning guilt by association. Rather, it is evidence of the connection between the appellant and other persons who are linked to the two vehicles (given the circumstances of the commission of the offence). That means it is a piece of circumstantial evidence to be taken together with all of the other evidence (including the matters identified in the first six categories of evidence referred to above at [9]-[18]) in assessing whether it has been established that the appellant was the offender with the knife.

119. As a consequence, any prejudice contended by the appellant which is said to arise from the calling of these witnesses, must be considered in the context of the use that was properly made of this item of circumstantial evidence.

120. Third, there was no objection to the evidence at trial, the appellant’s counsel having heard the witnesses’ evidence on the Basha inquiry. Nor was any complaint made by the appellant as to the use to be made of the evidence. It can be inferred that was a decision made by the appellant’s counsel at trial.

121. Rather, the appellant relied on the evidence of Mr Riveros elicited in cross-examination to found a submission of secondary transfer of DNA evidence (to challenge the significance of the presence of DNA evidence of the appellant in the Ford Turbo). Reliance on this evidence is significant because it means the appellant accepted that his DNA was located on the rear driver’s side of the vehicle. So much is apparent from the appellant’s closing address referred to above at [102]. It is also significant to note that the position of the DNA is the position which Mr Zeigler described the appellant being in the Ford Turbo. To explain that evidence, the appellant relied on the fact that Mr Riveros was in the Ford Turbo, for only on that basis could there have been secondary transfer.

122. In addition, when the s 38 application was made in respect to Mr Massey, the appellant did not object as long as it was limited to the topic of the two vehicles. Again, this shows that decisions were being made by the appellant about the issues surrounding these witnesses’ evidence.

123. Fourth, it appears from the opening address that the prosecution considered it was under an obligation to call these witnesses. Despite the aspersions cast during the appeal by the appellant on the prosecution, there is no reason to suggest that the prosecution called the witnesses for any other than a proper motive. We do not accept the appellant’s submission that “[t]he real reason for calling the witnesses seems to be to found an assertion of association between the appellant and various characters likely to appear to the jury as unsavoury”.

124. There is a duty on the prosecution to ensure the Crown case is presented with fairness to the accused: Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116 at 119 (Richardson); The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575-576. In Richardson, the obligation was described as follows at 119: Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.

125. Also see Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 674 (Whitehorn).

126. That said, the obligation of fairness imposed on the prosecution in the presentation of its case has never extended to generally requiring the prosecution to call co-accused, or unindicted co-offenders. The prosecutor alone bears responsibility for deciding whether a person will be called as a witness. It remains that the prosecutor is not obliged to call a witness where the prosecutor forms the conclusion, on proper grounds, that the evidence is untruthful or unreliable. A prosecutor is not expected to call a witness whose evidence they judge “to be unreliable, untrustworthy or incapable of belief”: Whitehorn at 674. Further, we note that this is not a case where the prosecution called witnesses, with the intention of making an application to cross-examine pursuant to s 38 of the Evidence Act, to admit evidence of a prior inconsistent statement: see Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96.

127. Generally the issue as to the prosecution duty to call witnesses arises in circumstances where it is contended that a witness who was not called at trial ought to have been, not where the issue for determination is whether there was a miscarriage as a result of calling a witness: although see Nikolovski v The Queen [2021] NSWCCA 327.

128. Calling the impugned witnesses may have been unconventional or unorthodox, but that does not establish, by itself, that a miscarriage of justice has arisen as a result thereof.

129. It is apparent from the prosecution opening that the two areas of relevance of those witnesses, given the circumstances of the offence and other evidence, was their association with the appellant and their association with the two vehicles (apropos an explanation as to the presence of the DNA and fingerprint evidence). Those are the two areas to which the examination in chief of each witness was directed. It is to be noted that another witness, Mr Subasic, was also called and asked questions directed to those topics. If evidence was given, those topics were relevant. Mr Riveros and Mr Massey gave evidence on those topics. Apart from Mr Subasic, no witness offered any explanation for the presence of the forensic evidence linking them to the Ford Turbo.

130. We note that without these witnesses being called (or any evidence of association between the appellant and those persons otherwise linked to the vehicles), a submission may have been advanced that there was an innocent explanation for the presence of the forensic evidence linking them to the vehicles. Similarly, the prosecution may have been the subject of an adverse comment at trial that the witnesses were not called. If an accused does not want witnesses who have relevant evidence to give to be called, it would ordinarily be open to the parties to confer and for the accused to undertake not to make such submissions. There is no evidence regarding whether these concerns existed during the trial and the Court is unaware of what, if any, communication occurred between the parties before the witnesses were called. However, it is plain that the appellant was on notice that these witnesses would be called.

131. Fifth, the appellant’s submission that there is some relevance to this ground that the witnesses gave evidence without s 128 being invoked or a certificate being issued, is unclear. The appellant submitted that it: indicates the whole procedure, including the Basha inquiry, was “tinged with unfairness”; and goes to the quality of the witnesses’ evidence. We note that only one witness was asked whether he was involved in the robbery (and he denied the allegation). Although a s 128 warning should have been given, it is difficult to see how this impacts on the ground of appeal, which requires establishing a miscarriage of justice has occurred as a result of the witnesses being called.

132. Before leaving this topic, it is also appropriate to address the appellant’s submission that unfairness arose from the fact the witnesses were called on the Basha inquiry without notice to him. There is nothing in the transcript to support that submission. Nor was any evidence called on the appeal to support it. To the contrary, it is apparent from the transcript: there had been discussion between the parties; and the Court had been notified in advance that they were requesting the first day of the trial be used for that Basha inquiry and legal arguments raised by the appellant. There was no objection to that course by the appellant. No complaint was made by him that he had not been given any notice that the witnesses were to be called, nor was any request made for an adjournment (which may have been expected if there was no notice as contended). This is also in a context where the appellant’s counsel did take a number of objections to the evidence and there is no suggestion of incompetence of counsel.

133. Sixth, the prejudice from calling these witnesses said by the appellant to arise, is that it encouraged reasoning “by the jury that went: these unsavoury characters are obviously involved in the robbery even though they deny it, they are associates of the accused, he also denies it, he is as implicated as they are. Guilt by association”. The witnesses were said to be unsavoury because they were, inter alia, uncooperative and in custody.

134. It may be accepted that there was a prejudicial element to the evidence, with the witnesses coming from custody and Mr McCracken refusing to give evidence. However, the appellant’s assessment of that prejudice is flawed because it considers the calling of these witnesses in a vacuum and in isolation from the other evidence.

135. As a starting point, as explained above, evidence of association was relevant. A submission based on other evidence to establish the association could have been advanced. The appellant’s submission fails to recognise that.

136. The submission also fails to acknowledge the evidence implicating the appellant as the offender with the knife. That is important as the jury were directed that they must be satisfied that the appellant was that offender, not that he was otherwise involved in the offence.

137. The appellant’s submission as to the manner of reasoning takes no account of the other evidence which the prosecution relied on to establish its case, including that: the appellant had arranged to meet Mr Zeigler at the time and place of the offence; the appellant was described and identified by Mr Zeigler; and the appellant’s DNA was located in the rear driver’s side of the Ford Turbo. The submission also ignores that the deletion of Facebook messages shortly after the robbery was left to the jury as evidence of a consciousness of guilt (although the appellant submitted they were perhaps deleted because they related to drugs).

138. We note also that the appellant relied on the forensic evidence linking Mr Riveros to the Ford Turbo to found a submission that the DNA evidence linking him to the vehicle was accounted for by secondary transfer (from contact with Mr Riveros), meaning its presence was not reflective of him having been in the vehicle.

139. It must also be recalled that the jury was given a direction against reasoning of guilt by association. A direction was also given in relation to Mr McCracken’s refusal to give evidence. No complaint was made of either direction. There is no basis to suppose that the jury would have done anything other than follow those directions: see, for example, Gilbert at [31]; Glennon at 615.

140. Moreover, in a context where this ground of appeal is premised on the assertion that the calling of these witnesses created a “miasma” of prejudice, the atmosphere of the trial is a relevant consideration. That includes how these witnesses presented, the manner in which the evidence was addressed, the limited nature of their evidence, the lack of objection to the witnesses being called and the lack of complaint as to the direction (with no re-direction sought). It also includes the appellant’s reliance on the evidence of Mr Riveros. It may be accepted that counsel for the appellant at trial was best placed to perceive any unfairness or injustice to her client in those circumstances.

141. That said, it is for this Court to determine whether the appellant has established that a miscarriage of justice occurred as a result of this evidence. The only aspect of the evidence that could be relied on is what is said to be the unsavoury nature of the witnesses and their failure to provide an explanation for the presence of the forensic evidence linking them to the Ford Turbo. In relation to that forensic evidence, it must be borne in mind that the Crown adduced other evidence during the trial to demonstrate that there was no legitimate basis for the presence of that evidence in the vehicle. That the appellant was associated with persons who were in the car, given the other evidence, was a relevant piece of circumstantial evidence.

142. In the circumstances of this case (including the relevance of the evidence, the directions given and the appellant’s reliance on the evidence of Mr Riveros to explain the presence of his DNA in the car), the appellant has not established that a miscarriage of justice occurred as result of the impugned witnesses giving evidence. The appellant has not established that the evidence would likely lead to the impermissible reasoning contended.

143. This ground is not established.

Ground (a): unreasonable verdict

144. The appellant recognised during oral submissions that this ground is resolved by whether the Facebook identification was admissible. That is because the appellant’s argument as to unreasonable verdict proceeds on the assumption that the Facebook identification ought to have been excluded. It is to be implied from that, that if the evidence was properly admitted, the ground fails. Consideration

145. The test for determining this ground of appeal is well established. The question is whether an independent examination of the evidence establishes that it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-493, 494-495 (M v The Queen); Baden-Clay at [65]-[66]. In conducting that examination, regard must be had to the advantage the jury had in seeing and hearing the witnesses. Finding that a verdict is unreasonable requires that the appellate court be satisfied that the jury must, as opposed to might, have entertained a reasonable doubt as to the accused’s guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]; Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [37]-[39].

146. The principles were recently summarised in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [7]-[15], accepting that M v The Queen represents the correct approach. In applying that test, it was said that the court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence. In answering that question, the court must take into account that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that it has had the benefit of seeing and hearing the witnesses. However, it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appeal court that the court may conclude that no relevant miscarriage of justice has occurred. It is important to remember, as observed in Hillier v The Queen [2007] HCA 13; (2007) 228 CLR 618 at [48], that “neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal”.

147. As noted above, the appellant’s submission is premised on the basis that the Facebook identification evidence was not admissible as, without that, proof beyond reasonable doubt cannot be established. For the reasons already given, the appellant has not established that the Facebook identification evidence ought not to have been admitted. No other submissions were advanced to support this ground. Given that lack of submissions, it is unnecessary to address this ground in detail.

148. Nonetheless, having conducted an independent examination of the evidence, we are well satisfied that it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt. We recognise a doubt experienced by an appellate court, unless explained by the advantage given the position of the jury, is a doubt that the jury ought to have experienced. We have no such doubt.

149. This ground has not been established. Disposition

150. The appeal must therefore be dismissed.

I certify that the preceding [150] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 24 February 2023