Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : MILLS -v- THE STATE OF WESTERN AUSTRALIA

Criminal law - Evidence - Warnings - Identification evidence and recognition evidence - Where complainant gave evidence that he had recognised the appellant as the principal offender - Complainant had seen appellant twice but a substantial time before the commission of the offences - Both occasions were very brief and the complainant was not introduced to and did not speak to the appellant - Whether trial judge failed to give an adequate warning to the jury about the recognition evidence

Criminal law - Evidence - Warnings - Identification - Use of photoboard

Criminal law - Appeal against sentence for aggravated armed robbery, aggravated burglary and assault occasioning bodily harm - Parity principle - Whether discrepancy in sentences of appellant and co­accused gave rise to justifiable sense of grievance

1 McLURE JA: I have read the judgments of Buss JA and Murray AJA. I agree with Buss JA for the reasons he gives that the appeal against sentence should be dismissed. I would also grant leave to appeal against conviction but, unlike Buss JA and Murray AJA, I would dismiss the appeal.

2 This court was placed at a disadvantage in the hearing of this appeal. The appellant failed in his grounds of appeal and written submissions to precisely identify the error(s) complained of and was selective in the identification of the relevant evidence. This had adverse consequences for the respondent's written and oral submissions which did not in any event supplement the references to the relevant evidence. Neither counsel in the appeal were counsel at trial.

3 As emerged from the oral submissions, the appellant's contentions were in effect that the trial judge erred in failing to:

(a) give a full Domican warning (a reference to the decision of the High Court in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555); and

(b) give directions about a photoboard identification in accordance with those foreshadowed by Jenkins J on the voir dire.

4 The relevant background is detailed in the judgment of Buss JA and not repeated here. It is sufficient to note that during a home invasion by three or four men the complainant, David Rock, was violently assaulted. It is not suggested that the offenders were wearing any form of disguise. Shortly after the offending the complainant told police that Chris Mills (the appellant) and Garry Jajko (the co-offender) were two of the assailants.

5 The distinction between 'recognition' and 'identification' evidence has long been recognised: Davies v The King [1937] HCA 27; (1937) 57 CLR 170; Arthurs v Attorney-General for Northern Ireland (1971) 55 Cr App Rep 161; and Kelly v The Queen [2002] WASCA 134; (2002) 129 A Crim R 363 which was approved in Al-Hashimi v The Queen [2004] WASCA 61; (2004) 181 FLR 383. Recognition cases involve the recognition of a person previously known to the witness and identification cases involve the subsequent identification of a person by a witness who first saw that person at or near the crime scene.

6 A Domican warning is required where evidence as to identification represents any significant part of the proof of guilt of an offence. In broad terms, that involves warning the jury that an honest and convincing witness may be mistaken when giving identification evidence and the judge putting the authority of his or her office behind any matter of significance that may be regarded as undermining the identification evidence. The trial judge did not direct the jury in those terms in this case.

7 Whether or not a full or partial Domican warning is required where evidence as to recognition represents any significant part of the proof of guilt depends on the circumstances of the case: Davies v The King (181). Those circumstances include the degree of familiarity of the witness with the suspect, the circumstances in which the suspect had previously been seen by the witness, and the circumstances in which the suspect was alleged to have been seen by the witness at or about the time of the crime: Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272 [61] (Blow J), followed by this court in Smith v The State of Western Australia [2005] WASCA 19, [68]. Thus, it is necessary to pay detailed attention to the evidence and the issues in dispute at trial.

8 The trial judge identified the issues in the case against the appellant as being whether the appellant was present at the scene of the crime and whether he was the principal offender. The latter issue, which concerns the nature and extent of the appellant's participation in the criminal conduct, does not directly fall within the rationale for the Domican warning, which is the danger that an honest and convincing witness may be mistaken in his or her identification of a person as being connected with a crime.

9 I start with the complainant's familiarity with the appellant prior to the commission of the offences in question. The complainant's evidence was that he had not met or been introduced or spoken to the appellant prior to the offences. However, he had seen the appellant on two occasions. The first occasion was around 18 months prior to the offences. The complainant was inside a house with a number of other people and the appellant was outside. The complainant was asked in cross-examination how long did the complainant 'see [the appellant] outside' and he answered '[a]bout five minutes'. When asked in cross-examination what the appellant was doing outside the house the complainant said '[h]e was intimidating the people inside the house' and in elaboration said the appellant was there 'to help Dane sort out his problems'. Dane's girlfriend told the complainant the appellant's name. When cross-examined as to when he was told the name, the complainant said '[b]ack when [the appellant] was intimidating this house full of people in Hackett Street' (ts 317). That occurred about three years prior to trial. The cross-examination continued:

He must have made an impression on you to remember him three years later and identify him. Is that right?---Why is that?

Did he make an impression on you when you first saw him three years ago?---A little bit, yes. Anybody outside intimidating people makes an impression on me. It's the wrong thing to do. It stands out as abnormal.

When the---?---So of course it would make an impression on me.

What - back three years ago?---Yes.

10 This evidence that the appellant had by reason of his intimidatory conduct made an impression on the complainant was adduced on behalf of the appellant. The complainant was not cross-examined by counsel for the appellant to suggest that the appellant was not present at the house in Hackett Street on the occasion in question nor was he asked any question which suggested that the appellant had not behaved in an intimidatory manner or that the complainant's capacity to become familiar with the appellant was impaired by distance or any other relevant factor. The appellant's case at trial focused on the opportunities the complainant had to see (and thus recognise) the three or four persons present at the house at the time of the offences. Allied with that focus was the appellant's case that the complainant made a photoboard identification of the appellant shortly after the offences because the complainant had seen him 18 months previously (ts 328).

11 The second occasion on which the complainant saw and recognised the appellant was after the first but only lasted a couple of seconds

12 The second relevant matter is the circumstances in which the appellant was alleged to have been seen by the complainant during the period of the offending. The events the subject of the offending are set against the background of the drug scene in Mandurah. The complainant shared a house with a man named Brendan Gates. On the night before the offending Mr Gates and a Mr Perez went to the home of the co-offender, Garry Jajko, seeking payment from him of $150. They had a confrontation with Mr Jajko's girlfriend. The complainant identified Mr Jajko as participating in the offending the following day.

13 The complainant's evidence as to the offending is as follows. Initially the complainant was confronted in his bedroom by a man with a shotgun. He described the man as '170, 175 centimetres tall, slim, Caucasian, dark hair, neat goatee beard' (ts 274). The two of them then went to the lounge room. When the complainant arrived in the lounge room he was struck from behind by something that felt like the butt of a gun. He gave the following evidence:

Did you see who hit you?---No, I didn't.

When you were hit did you see anybody in the house?---Yes.

Who did you see?---As I fell forward I was twisting as I fell and I saw Chris Mills behind me. (ts 275)

14 He was later asked whether anybody other than the first person he saw was armed:

Mr Rock, before lunch you were telling the members of the jury that the first person that you saw in the house was armed with a gun---Yes.

Was there anybody else who came into your house that was armed?---Yes. I'm sure Chris Mills was armed, because as I fell down, I could see him wielding something. It looked like another shotgun. (ts 292)

15 The complainant inferred from the relative positions of the two men that it was the appellant who had struck him. The complainant made it clear in cross-examination that the first man he saw was not the appellant:

When the people came in, you say on oath that the first person that you were able to give some description about is a 170 centimetre person with dark hair and a dark - or a goatee beard. Is that correct?---Yes.

Is that person any of the two accused?---No. (ts 319 - 320)

16 The complainant said that after he was hit from behind he fell to the floor and was then punched and kicked. His evidence was as follows:

Now, you said to the members of the jury that while you were on the ground, you were kicked and kicked and you think perhaps hit with a rifle or with a gun. Is that right?---Yes.

Did you see who did that to you?---Yes.

Who?---Chris Mills.

Right. Did he do all the kicking, all the hitting and so on?---I'm not dead sure but I assume so.

And how do you know it was him that did the kicking and the hitting?---Because it was his foot and leg that I could see out of the corner of my eye. (ts 276 - 277)

17 After the complainant was kicked and punched he was cable tied with ziplock ties. He had the ziplock ties 'shoved in front of my face' and he was asked by Chris Mills 'do you know who else uses these?' (ts 278).

18 After being cable tied and while he was lying face down on the ground, he was asked the whereabouts of Mr Gates and Mr Perez. His evidence was that Chris Mills asked him the question. The complainant said he was re-assaulted and asked again. He said he was hit on the head and the back by Chris Mills (ts 277). After saying he did not know the whereabouts of his friends, the complainant said he was pulled up off the ground by Chris Mills (ts 278) who had asked him where his stash and cash and telephone were. He gave the following evidence:

Who asked you or spoke to you about a telephone?---Chris Mills asked me where my telephone was.

Were you able to show him where the telephone was?---I - that is how I come to be off the ground. They couldn't find the telephone. I don't know how many of them were looking for it but a number of them were looking for it. I told them that it was under the TV. They still couldn't find it. I said 'Near the power points under the TV'. That's when I was reefed up to my feet. I think someone said, 'Where? Where?' and I pointed to where it was.

You just indicated that you [had] your hands behind your back, so you are indicating that you pointed to where the phone was with your hands behind your back?---Yes.

Is that right?---Yes.

Go on---Chris Mills then picked up the phone and asked me my number. I then said, 'It's a new number. I don't know it but its in the directory under ROK'. (ts 280 - 281)

19 He was then forced back on the ground. The complainant said that a knife was then held to his throat. The evidence continued:

When was that?---That was during the assault. I was told to have Gatesy - after he had my phone number he told me to have Gatesy back at my house by 6 o'clock or I was a dead man.

Who said that?---Chris Mills did.

And when he said that you were on the ground still?---I was still on the ground.

And what happened? What did Mr Mills do when he said that to you? What did Mr Mills do when he said to you, 'Have Gatesy back here by 6 pm'?---He had a knife held to my throat. (ts 281)

20 In cross-examination the complainant said the appellant 'ripped' his head off the floor and held the knife to his throat (ts 327).

21 It was put to the complainant in cross-examination that brain surgery prior to the offending and assaults after the offending (and after he had named the appellant as the offender to the police) had impaired his memory. The complainant rejected the propositions. He was asked:

Have you blended all of these floggings together?---They are entirely irrelevant to what happened on 13 September.

But you would agree with me, they may be relevant to your recollection or your memory?---All they are relevant to is trying to dissuade me from giving evidence. (ts 313)

22 The complainant was cross-examined by the appellant's counsel as to the basis on which he claimed that the appellant had hit him from behind on the first occasion. As noted earlier, the complainant relied on the relative positions of the appellant and the first man he saw. It was put to the complainant that he was lying:

I'm putting it to you, the reason you have made this up is to try and get Mills off the street for some reason, that you have a vendetta with him or with his mates. That's true isn't it?---If the facts are as you say they are well then Chris Mills would never have done anything wrong to me and I would have no reason whatsoever to slight him.

Yes. You were hit in the back. You were stunned. Correct, correct, you were stunned?---Momentarily, yes.

Yes. You had a flash - you saw a flash. Correct?---Yes. I think everybody that gets hit in the head pretty hard ends up with a flash. (ts 320)

23 The complainant was also cross-examined about what he could see when he was lying face down on the floor with his face partly resting on a cushion. For example, he was asked questions about lying with his face down on the floor being kicked and hit with a gun:

... you were kicked and hit with a gun while you're lying on the ground?---Yes.

And this could have been anyone. You are unable to identify the person who was doing that to you, with your face down, having been hit in the back of the head surely?---When Chris Mills has got my hair in one hand and pounding my head in with the other, I know its Chris Mills doing it. All right?

How can you say it was Chris Mills when you didn't see the person---?---Its that man right there.

The man that you saw three years prior?---The man sitting in front of me right here today.

How can you say that on your own evidence to this point?---Because I was there and I know for a fact it was Chris Mills.

I'm putting it to you, you're making it up - You can put anything you want to me, if you want. I know the facts. (ts 325)

24 The offending took place over a relatively extended period. If the complainant's evidence is accepted as true, he saw the appellant on a number of occasions including when he was first hit, when he was shown the ziplock ties, when he was pulled up off the ground, when he was giving instructions about the whereabouts of the telephone, when he saw the appellant pick it up and when the knife was held to his throat. Thus, on the complainant's evidence he had more than ample opportunity to recognise the appellant. When regard is had to the complainant's evidence as a whole, the real issue was whether he was telling the truth about what he actually saw. The complainant's evidence as to the course of the offending left no or very little room for mistaken identification of the appellant. Further, any difficulties with the full extent of the appellant's participation were not due to any difficulty in identifying him.

25 The complainant's evidence as to the circumstances in which he first saw the appellant including the fact of and basis for the impression the appellant made on the complainant, the lack of any real challenge by the appellant in cross-examination to its truth or reliability and the fact that it was relied on by the appellant as an explanation for the photoboard identification justifies an inference that the complainant was sufficiently familiar with the appellant to be able to recognise him some 18 months later. Having regard to that matter and the complainant's evidence at trial which was in substance inconsistent with mistaken identification, a Domican warning is not required.

26 It is sufficient in the circumstances of this case that the trial judge directed the jury that they needed to carefully bear in mind the complainant's evidence as to the preceding occasions when the complainant says he saw the appellant. The trial judge said:

So you look at the time, how long previously he had seen Christopher Mills, on his evidence, for what period he had seen Mills - I think he said five minutes on the first occasion and a matter of seconds the second occasion, and you would have regard to that evidence and assess it carefully in determining whether or not you can be satisfied that he is accurate in identifying Christopher Mills at the time of the offences, and you would also have regard to his truthfulness generally ... (ts 570)

27 The trial judge also summarised the matters relied on by the appellant as demonstrating the unreliability of the complainant's evidence. Nothing further was required in this case because there was nothing of significance that was sufficiently connected with the dangers of mistaken identification that needed to be put with the authority of the judge's office.

28 The second ground of appeal relates to the adequacy of the trial judge's directions concerning the photoboard identification. The substance of that evidence is in the reasons for judgment of Buss JA. The trial judge effectively negatived the value of the photoboard identification as evidence that the person selected by the complainant from the photoboard was the person who he identified as the person who committed the offences. That direction is clearly favourable to the appellant.

29 Further, the trial judge reminded the jury of the closing submissions of counsel for the appellant concerning the photoboard identification. After noting that the photograph contained two photographs of the appellant, the trial judge continued:

It is put to you that the failure of Mr Rock to also pick number 12 means that he did not recognise number 12 as the assailant and Rock himself at the time complained that the photographs were one-dimensional and not sustainable, so suggested that that process of identification of the person he said he had recognised might not be as reliable as the prosecution would maintain. (ts 579 - 580)

30 In the context of the directions as a whole, the appellant is not prejudiced by the failure to give the usual directions (as to which see Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [120]).

31 Even if the trial judge had erred in his directions relating to the photoboard identification, that error does not give rise to a substantial miscarriage of justice. The evidence placing the appellant at the scene of the crime was very strong. There was evidence from Mr Jajko's girlfriend that on the morning of the offence she and Mr Jajko went with a man called Sprocket in his car to the home of Amanda Cabot to purchase

drugs. There was evidence from a police officer that the appellant was Ms Cabot's boyfriend. On the way to Ms Cabot's house Mr Jajko telephoned her and in the course of that discussion there was a reference to a person called Chris. When they arrived at Ms Cabot's house Mr Jajko went inside and when he came out, he was followed by someone else. Mr Jajko said to his girlfriend 'I'm going for a drive with Chris' and asked her to follow him. Mr Jajko then got into that man's car which was a white Commodore and the two drove off. They went to an address in Coodanup where a third person got into the white Commodore. At around this stage the car in which Mr Jajko's girlfriend was travelling ran out of petrol. The complainant's neighbour gave evidence that around 5.00 pm on the day of the offending a white Commodore containing four men arrived at the complainant's house.

32 The police had been conducting a surveillance operation targeting Ms Cabot and had intercepted around 11,000 telephone calls. At 5.21 pm on the day of the offending there is evidence of a telephone conversation between Ms Cabot and a male person who informs her that he is calling an ambulance. The male person's voice is identified by a police officer as being that of the appellant. There are then a series of four calls involving the ambulance operator. One of those calls is made by a person who the policeman identified as Mr Jajko. It was not in dispute that Mr Jajko was present at the complainant's house at the time of the offending. Telephone calls to the ambulance service were automatically registered. The ambulance operator called one of those numbers and the person who answered was identified by the police witness as being the appellant. There was further surveillance evidence of a telephone call made by Ms Cabot to Mr Jajko at 4.59 am on the morning after the offending. Ms Cabot asked Mr Jajko as to the whereabouts of Chris and also asked 'Did he come back there last night after that thing with Rocky?'.

33 As noted by Buss JA, there is no challenge relating to the dock identification. There does not appear to be any basis for one. The complainant gave evidence that the person he saw and recognised on the night in question was the person he identified as the appellant in the dock (ts 278; ts 325 set out above).

35 BUSS JA: The appellant (Christopher Charles Henry Mills) and a co-accused, Garry Norman Robert Jajko, were tried in the Supreme Court before Blaxell J and a jury between 12 - 15 February 2007 on an indictment containing three counts, as follows:

(1) On 13 September 2005 at Mandurah Christopher Charles Henry Mills and Garry Norman Robert Jajko stole from David Graham Rock, with violence, a wallet the property of David Graham Rock.

And that Christopher Charles Henry Mills and Garry Norman Robert Jajko were armed with a dangerous weapon namely a shot gun.

And that Christopher Charles Henry Mills and Garry Norman Robert Jajko were in company with each other and with another.

(2) And further that on the same date and at the same place Christopher Charles Henry Mills and Garry Norman Robert Jajko entered or were in the place of David Graham Rock without his consent with intent to commit an offence therein.

And that Christopher Charles Henry Mills and Garry Norman Robert Jajko were armed with a dangerous weapon namely a shot gun.

And that Christopher Charles Henry Mills and Garry Norman Robert Jajko were in company with each other and with another.

And that the place was ordinarily used for human habitation.

(3) And further that on the same date and at the same place Christopher Charles Henry Mills and Garry Norman Robert Jajko unlawfully assaulted David Graham Rock and thereby did him bodily harm.

36 The appellant was convicted of aggravated armed robbery, aggravated burglary and assault occasioning bodily harm. Mr Jajko was convicted of robbery in company, aggravated burglary and assault occasioning bodily harm.

(a) count 1 - aggravated armed robbery: 5 years immediate imprisonment, cumulative on a prior sentence still being served;

(b) count 2 - aggravated burglary: 4 years immediate imprisonment, concurrent with count 1, but cumulative on the prior sentence still being served; and

(c) count 3 - assault occasioning bodily harm: 2 years immediate imprisonment, concurrent with count 1, but cumulative on the prior sentence still being served.

The sentences commenced on 17 May 2007, and the appellant was not made eligible for parole.

(a) count 1 - robbery in company: 3 years 8 months imprisonment, suspended for 2 years;

(b) count 2 - aggravated burglary: 2 years imprisonment, suspended for 2 years, concurrent with count 1; and

(c) count 3 - assault occasioning bodily harm: intensive supervision order for 18 months.

39 On 25 January 2008, Wheeler JA granted the appellant leave to appeal against sentence, and ordered that ground 1 of the proposed grounds of appeal against conviction be referred to this court to be heard with the appeal. On 14 March 2008, her Honour refused leave to appeal in respect of ground 2 of the proposed grounds of appeal against conviction.

40 I will deal, first, with the application for leave to appeal against conviction and then with the appeal against sentence.

41 On 13 September 2005, at about 5 pm, three or four men went to the home of the complainant, David Rock. At least one of them was armed with a sawn-off shotgun. They broke through the front door of his home and at least two or three of the men went inside. Mr Rock was confronted by a man armed with a sawn-off shotgun. He was struck on the back of the neck, his wrists were cable-tied behind his back, he was violently assaulted, a knife was held to his throat and his wallet was stolen.

42 The appellant and Mr Jajko elected not to give sworn evidence.

43 The crucial issues at the trial were these. First, whether the appellant went to Mr Rock's home at all and, if he did, whether he was the principal offender and main instigator of what occurred. Secondly, whether Mr Jajko was a party to each of the offences in question in that he aided, assisted or encouraged the commission of each offence, alternatively, that the occurrence of each offence was a probable consequence of any common purpose to which he was a party in attending at Mr Rock's home.

44 The State's case against the appellant was that Mr Rock recognised him as the principal offender. That evidence was supported by evidence from Helen Hoekstra to the effect that Mr Jajko was going for a drive with 'Chris' in a Holden Commodore motor vehicle immediately before the offences were committed; evidence from Barbara Lavulo of a car matching that description outside Mr Rock's home at about the time the offences occurred; and evidence from police officers arising from telephone intercepts which indicated that the appellant and Mr Jajko were together immediately after the offences were committed. A police officer, Sergeant Rosenberg, gave evidence, based on some of the telephone intercepts, that shortly after the commission of the offences a person, whose voice he recognised as that of the appellant, said he was calling an ambulance. Also, Sergeant Rosenberg gave evidence that, a few minutes later, a person, whose voice he recognised as that of Mr Jajko, called the ambulance service.

45 The defence, as it emerged at trial, was that Mr Rock had a vendetta against the appellant and was motivated for that reason falsely to claim that he had recognised the appellant as one of the assailants.

46 On 18 September 2005, that is five days after the occurrence of the alleged offences, Mr Rock 'recognised' the appellant from a photoboard (photoboard 1637) prepared by police officers. Photoboard 1637 contained two photographs of the appellant, one at image 2 and the other at image 12. The photograph at image 2 was taken approximately five years before the photograph at image 12 (voir dire ts 38). The photograph at image 12 was recent (voir dire ts 38). Photoboard 1637 was in the form of a digiboard (ts 375). A police officer gave evidence that the presence of the two images of the appellant on the one photoboard occurred as a result of a 'slip-up' (ts 386). The police held the photograph of the appellant at image 2 under the surname 'Gorringe' (a name which the appellant had used) and the photograph of him at image 12 under the surname 'Mills' (ts 386, 392).

The voir dire in relation to photoboard 1637

47 On 7 August 2006, there was a voir dire before Jenkins J to determine an application by the appellant as to whether photoboard 1637 and Mr Rock's evidence concerning that photoboard were admissible in evidence at the trial.

48 Various facts and circumstances of relevance can be discerned from the evidence given at the voir dire:

(a) Police officers video-recorded the process during which Mr Rock 'recognised' the appellant from photoboard 1637 (exhibit 3.3).

(b) Mr Rock was shown four photoboards, including photoboard 1637 (ts 31, 38).

(c) The first photoboard included a photograph of Mr Jajko (ts 30, 38).

(d) The second and fourth photoboards shown to Mr Rock were not relevant to the trial (ts 31, 38).

(e) Photoboard 1637 was the third photoboard shown to Mr Rock.

(f) Mr Rock selected image 2 on photoboard 1637, being the photograph of the appellant taken approximately five years earlier (ts 23, 25, 26, 34).

(g) When Mr Rock was shown the first photoboard, he said, 'I recognise number 6. Another photo looks like him' (ts 30). Mr Jajko was the person depicted at number 6.

(h) When Mr Rock was shown photoboard 1637 he said, 'I recognise number 2. As I said with the first one, another one looks a lot like him' (ts 30).

(i) It was not clarified at the voir dire (or, indeed, at the trial) which of the other photographs on photoboard 1637 Mr Rock was referring to when he said, in relation to the offender, 'another one looks a lot like him' (ts 32, 34, 36, 42; ts 273 - 335).

(j) At the conclusion of the process involving photoboard 1637, Mr Rock said, 'These photos are not nearly as convincing as a line-up. They are very well one-dimensional' (ts 41).

49 Jenkins J ruled that photoboard 1637 and Mr Rock's evidence concerning that photoboard were admissible. In delivering the decision, her Honour said, relevantly:

(a) Judges are required to give juries quite specific instructions as to how they are to deal with photographic identification (ts 40).

(b) The biggest problem about these photographs is that there are two photographs of the [appellant], as I said giving basically the state the advantage of having - sort of doubling its chances, I suppose, of having the [appellant] identified by the identifying witness. I have considered the prejudice that arises to the [appellant] from that. It would seem to me that it can be adequately dealt with in this case by me making that point quite specifically to the jury and telling them that, as there were two photographs of the [appellant] there was that added chance of the [appellant] being identified, even if Mr Rock was guessing about who might have been involved in the incident (ts 40).

(c) The fact that number 12 wasn't identified by Mr Rock is something that I would also draw to the attention of the jury as something again which it would seem to me to be of assistance to the [appellant] rather than prejudicial to him and I would make sure that a special point of directing the jury about that was made (ts 40).

(d) Consequently, it would seem to me that the prejudice of having the two photographs in the photoboard can be adequately dealt with by directions to the jury (ts 40).

Mr Rock's evidence at the trial as to his 'recognition' of the appellant in the course of the commission of the offences

50 In his evidence-in-chief, Mr Rock said he was in his bedroom, lying on his bed, when he heard his front door 'being crashed open' (ts 273). He went to investigate. On opening the bedroom door, to gain access to the lounge room, he was confronted by a man with a shotgun. Mr Rock gave this evidence:

Had you managed to find your way into the lounge room or were you still in your bedroom?---No. I was reaching for the bedroom door to open it when it was opened as well and standing in front of me was a man with a shotgun.

Did you recognise the man?---No.

Are you able to describe him?---170, 175 centimetres tall, slim, Caucasian, dark hair, neat goatee beard.

All right. Anything else?---He was wearing a grey pullover.

A grey pullover did you say?---Yeah.

And you said that he had a gun in his hand?---Yes, he did.

What sort of a gun was it?---What looked to be a slightly cut down sawn-off and I was pretty sure that the stock had been removed as well.

And you mentioned I think it was a shotgun. Is that right?---Yes.

So the barrel had been slightly shortened?---Yeah, it looked that way.

And you're pretty sure that the stock, that is the wooden part, the handle part, had been taken off. Is that right?---Yes.

Okay. When you saw that man with the shotgun in his hand, what happened then?---The man told me to get on the floor.

Did you get on the floor?---No. In my room there's a bed and a desk and the space in between I actually had two speakers that I was rewiring, quite large speakers there, so there was no room to actually lie down, except back on the bed.

What did you do?---I said, you know, 'There's - I can't,' and he has motioned me out to the lounge room.

So he motioned you out to the lounge room. Could you hear anything going on in the lounge room while you were there with this man?---yeah.

What could you hear?---There were sounds of other people in the house (ts 274).

51 Mr Rock then said that he recognised the appellant (whom he called Chris Mills):

Did you go out into the lounge room?---Yes.

When you got out into the lounge room what happened?---As I walked past the man with the shotgun and was just turning to face the front door, in that direction, I was struck from behind.

Whereabouts were you when you were struck from behind? Which room were you in?---I was in the lounge room.

Yes. You were struck from behind?---Yes.

Whereabouts were you struck?---To the head and neck area, like right where the neck and the head meet.

And did you see what hit you?---No, I didn't.

What did it feel like?---It felt like something hard and heavy. It felt like the butt of a gun.

All right. Did you see who hit you?---No, I didn't.

When you were hit did you see anybody in the house?---Yes.

Who did you see?---As I fell forward I was twisting as I fell and I saw Chris Mills behind me.

All right. Now, Chris Mills - had you met him before---No, I hadn't met him before.

Had you seen him before?---Yes, I had.

And without going into the details of when you had seen him before, on how many occasions had you seen him before?---Twice.

And whereabouts was the first time that you saw him? Whereabouts were you?---The first time 1 saw him, I was at a friend's house on Hackett Street and Chris was outside the house speaking to one of his friends.

And the second occasion that you saw him?---Was at a friend's house and it was - - -

Yes. He was just there, was he?---It was just a glancing like, that time it was only a couple of seconds that I saw him.

All right. Now, this was the man that you saw in your lounge room as you were falling to the floor. Is that - - -?---Yes, it is.

Now, did you fall to the floor? ---Yes, I did.

What happened then?---I was punched and kicked, I think I was hit with the shotgun again, and then I had my arm - a rope was put over one of my arms and reefed up behind me, and then my other arm was physically dragged behind me and I was cable-tied.

When you say cable-tied, what do you mean by cable-tied?---Large electrical cable ties. They're plastic ziplock ties.

Ziplock ties?---Yeah.

And was one or more put around your wrist, or what happened?---I'm not sure whether it was one or two. I think it was one. It was put around my wrist and then pulled tight.

Now, you said to the members of the jury that while you were on the ground, you were kicked and kicked and you think perhaps hit with a rifle or with a gun. Is that right?---Yes.

Did you see who did that to you?---Yes.

Who? --- Chris Mills (ts 275 - 276).

Did you stay on the ground, or what happened?---I was on the ground. I was asked where Val and Gatesy were, to which I replied that I didn't know.

Who are Val and Gatesy?---Gatesy is Brendan Gates, my friend who I had living with me, and Val Perez is one of his friends.

And who said to you - or who asked you where Val and Gatesy were?---Chris Mills did.

But when he asked you that, were you lying on the ground still or were you in some other - - -?---Yes, I was.

What happened after he asked you where Val and Gatesy were?---I was re-assaulted and asked again.

When you say re-assaulted, what do you mean?---Well, I was hit again.

By whom?---By Chris Mills.

Where were you hit?---In the head and on the back.

Did he hit you with - what?---I assume his fists.

...

Now, when you said you were pulled up, who pulled you up?---Chris Mills did.

And you said that somebody asked you where your stash and your cash was. Who asked you that?---Chris Mills did.

Now, at some stage was there a conversation about zip-ties?---Yes.

When was that?---When I was zip-tied, I then had some zip-ties shoved in front of my face and I was asked the question, 'Do you know who else uses these?'

Who asked you that question?---Chris Mills did.

What did you say?---I said, 'The TRG.'

Yes. And did he say anything when you said that?---He said, 'Do you know how many times they have locked me up in them?'

And did you reply to that?---I shrugged my shoulders.

...

You said that your wallet was then taken?---Yes.

Where was your wallet?---In my back pocket.

Did you see who took that?---I don't know exactly who took that but I assume it was Chris Mills seeing how he was standing directly behind me and over me.

Was anybody else standing around you when your wallet was taken?---I'm not sure exactly where all the assailants were at all times during the assault.

...

Was there any discussion about a telephone?---Yes.

When was that?---That was after I was asked where my stash and my cash were and they took my wallet.

Yes. Who asked you or who spoke to you about a telephone?---Chris Mills asked me where my telephone was.

Were you able to show him where the telephone was?---I - that is how I come to be off the ground. They couldn't find the telephone. I don't know how many of them were looking for it but a number of them were looking for it. I told them that it was under the TV. They still couldn't find it. I said, 'Near the power points under the TV.' That's when I was reefed to my feet. I think someone said, 'Where? Where?' and I pointed to where it was.

You just indicated that you hand [sic] your hands behind your back, so are you indicating that you pointed to where the phone was with your hands behind your back?---Yes.

Is that right?---Yes.

Go on?---Chris Mills then picked up the phone and asked me my number. I then said, 'It's a new number. I don't know it but it's in the directory under ROK.'

What happened then?---I was then forced back on the ground. There was more sounds of people rifling through cupboards and drawers and then as they were leaving the cable ties were cut.

You mentioned there were some shotguns or some guns being used. Did you see were any other weapons used?---No. I did not see any other weapons.

On you? Was anything used on you?---Yes.

What?---I had a knife held to my throat.

When was that?---That was during the assault. I was told to have Gatesy - after he had my phone number he told me to have Gatesy back at my house by 6 o'clock or I was a dead man.

Who said that?---Chris Mills did.

And when he said that were you on the ground still?---I was still on the ground.

And what happened? What did Mr Mills do when he said that to you? What did Mr Mills do when he said that to you, 'Have Gatesy back here by 6 pm'?---He had a knife held to my throat (ts 277 - 281).

53 During cross-examination by counsel for Mr Jajko, it was suggested to Mr Rock that he had 'a deep-seated resentment against Mr Mills' (ts 309). Mr Rock responded, 'I don't know Chris Mills from a bar of soap' (ts 309).

54 When cross-examined by the appellant's counsel, the following exchange occurred in relation to Mr Rock's alleged recognition of the appellant as an offender:

Well, you named my client quite vividly in these proceedings under oath. Correct?---Yes. It was quite a vivid attack.

And yet you also say in the same courtroom that you don't know him from a bar of soap. So which is true? You know him or you don't know him?---Well, if somebody asked me if I'd met you, I would've said yes, but if somebody asked me if I know you, I would say no, because I don't know you.

Well, let's explore how well you knew him. On your evidence you say that you had not met before the incident of 13 September?---I'd never shaken hands with him or anything like that. Never even spoken to him.

Yes. So you had never met him before - never introduced to him. Correct?--No, never been introduced.

All you did was you saw him on two previous occasions?---Yes.

Two times, you say. The first was at a friend's place in Hackett Street. Correct?---Yes.

And on that occasion you were inside the premises. Correct?--Yes.

And my client, Mills, was outside?---Yes.

So how many people were there at this friend's place at the time you were there?---At the time there would've been four others apart from me.

So he was doing something else outside the house?---He was intimidating the people inside the house.

Can we have an answer? He was outside doing something else. Right?---Yes.

And you were inside?---Yes.

Were you fighting or were you congenial on this occasion? --- No. I was around having a coffee with a mate and a fellow named Dane rolled up and he had a problem with someone - like, was it my - well, he's not my mate; he's actually like a step-nephew to me. It's his house and the fellow he had staying there - him and Dane had problems, and Chris was there to help Dane sort out his problems.

Did you have problems? Did you have problems?---No, I didn't have a problem with anybody. I was having coffee.

You were having coffee. And Chris couldn't have been doing much because you didn't even meet him on this occasion. Correct? He was outside and you were inside having coffee?---Yes, he was outside.

And how long did you see him outside and/or glanced - - -?---About five minutes.

So you knew he was there. Is that what you're saying?---Yes.

Amongst the other four or five people around the house?---Yeah, they all knew he was there, so - - -

And when was this? What month, approximately?---This was it would be - where was I living then? It's just before I was living in Perth, which is - be about four years ago.

Four years ago?---Three and a half, four years ago.

Three and a half to four years prior to this incident?---No, actually closer to three. Maybe three, maybe three and a quarter at the most.

Three or - - -?---Three to three and a bit.

Three and a bit. So that's back in about 2003, or even later than that?---2004.

And the second occasion that you saw him, you say, on your own words:

Glancing couple of seconds?

---Or passing someone's house.

And again he was just one of many people, wasn't he, around the place?---One of a few people, yes.

...

Did you know his name on the second occasion when you glanced a couple of seconds across?---Yes.

What did you know him as?---Chris Mills.

Chris Mills?---Yes (ts 314 - 316).

55 Mr Rock subsequently told the appellant's counsel that he first saw the appellant 'like 18 months prior to the incident happening, three years from now' (ts 322).

56 The appellant's counsel cross-examined Mr Rock in relation to the man whom Mr Rock described, in evidence-in-chief, as '170, 175 centimetres tall, slim, Caucasian, dark hair, neat goatee beard' and whom Mr Rock said, in evidence-in-chief, opened his bedroom door and was carrying a shotgun (ts 274):

When the people came in, you say on oath that the first person that you were able to give some description about is a 170-centimetre person with dark hair and a dark - or a goatee beard. Is that correct?---Yes.

Is that person any of the two accused?---No.

Is he a person that you identified for the police?---No.

Is he a person that's known to you by name or by acquaintance?---No.

Never seen him before?---No, I don't think I'd ever seen him before.

Never seen him since?---And I don't think I've seen him since (ts 319 - 320).

It is plain, from Mr Rock's evidence, that this man was not the appellant.

57 Later, during cross-examination by the appellant's counsel, Mr Rock gave this evidence concerning his alleged recognition of the appellant as an offender:

So someone has got around the back from the front, or come in through another entrance in the house?---Well, exactly. Two of them come in through the front door and two of them come in through the rear door.

So you had no idea of the two coming at your rear. Correct?---No.

None at all. You were focused on the front, one with the goatee beard and the other that is to be determined?---I suppose so.

Well - - -?---The man with the goatee beard was behind me as well, see, because as he's brought me out of the room he's got behind me. You know, he's not going to back out and trip over stuff, is he, you know?

...

BLAXELL J: Just explain what the movements of the people were in relation to you at the time you got hit in the back of the head?---Like I'm saying, I came out of my room and he stepped back in the hallway a bit and then I walked past him, so the bloke with the gun at first in front of me was behind me as well and I suppose the two people that come in through the back door were behind me as well.

...

[counsel for the appellant] So the real question though that I'm asking you is that you didn't see the person giving you the heavy blow to the back of the head. I mean, the truth of the matter, yes or no?---I didn't see the person striking the back of my head.

Correct, and - - -?---As I went down it was Chris Mills's leg right there.

Yes, so this is - - -?---So basically either him and his mate are very good at changing positions or it's him that struck me in the back of the head.

Okay; so you recognised Chris's leg as you were falling to the ground?---I recognised a leg - - -

Yes, that's right?--- - - - and then that leg had an arm attached to it that had me by the head and - - -

Was this the leg that you - - -?--- - - - was yelling in my ear.

Was this the leg that you had seen three years prior belonging to Chris Mills or is this something you're just making up?---Well, yes, it would be - not something I'm making up. I'm saying it would be the leg. You're getting in front of yourself again, sir.

...

Yes. You were hit in the back. You were stunned. Correct? Correct, you were stunned?---Momentarily, yes.

Yes. You had a flash - you saw a flash. Correct?---Yes. I think everybody that gets hit in the head pretty hard ends up with a flash.

...

... You fell to the floor face down. Correct?---Yes.

...

And this could have been anyone. You are unable to identify the person who was doing that to you, with your face down, having been hit in the back of the head surely?---When Chris Mills has got my hair in one hand and pounding my head in with the other, I know it's Chris Mills doing it. All right?

How can you say it was Chris Mills when you didn't see the person - - -?---It's that man right there.

The man that you saw three years prior?---The man sitting in front of me right here today.

How can you say that on your own evidence to this point?---Because I was there and I know for a fact it was Chris Mills.

I'm putting it to you, you're making it up?---You can put anything you want to me, if you want. I know the facts.

But you say also in your evidence-in-chief 'I'm not dead sure. I assume so,' when it came to saying who was kicking you. You said, 'I saw Chris Mills do this and I'm not - - -?---I know Chris Mills was the main perpetrator.

...

You have told us on oath that you're not dead sure and you assume things, but here you're prepared to point the finger at Chris Mills, my client?---I know it was your client.

Yet you again were face down, were you not, not only on the floor but also you had your face in some cushion. Correct?---Yes.

Tell us about that, when you had your face down in the cushion? When did that happen, and how long for?---(indistinct) the cushion was there sort of off the couch and my face ended up sort of, you know - - -

No, I don't?--- - - - half my face was in the cushion, the other half was in the concrete floor.

...

No, but the point again is, your face is pointing to and into the cushion, correct, away from the assailants?---Yes.

And again all you're seeing is feet and legs around you because you're facing downwards. Correct?---Yes.

And that's where you answered one of the questions in cross-examination by my learned friend saying, 'Mainly saw legs of people around me'. That's all you can say on oath. Correct?---I can say under oath that Chris Mills perpetrated the attack on me virtually wholly and solely and if someone else got in a couple on the side and I didn't notice amongst the storm well that may have happened.

...

Why do you assume it was Chris Mills that used the fists?---Well, here with you questioning me and that, I know it was him, you know. It comes up to more than vision. It comes up to sound, it comes up to - you know, you can feel someone move through the air, you know, so you know that someone who hit you there, they've got to be standing in a certain place to hit you there, and that's where Chris Mills was standing. He was standing in the attacker's position. He was leaning - he ripped my head off, you know, off the floor and held a knife to my throat. That was Chris Mills (ts 322 - 327).

Mr Rock's 'dock identification' at the trial

58 At the trial, during his evidence-in-chief, Mr Rock made a dock identification of the appellant. At the time, both the appellant and Mr Jajko were seated in the dock. The evidence, given without objection, was as follows:

Now, you've mentioned Chris Mills. Are you able to see him in court today?---Yes.

Can you point him out to us please?---He's the man sitting to my right in the box there (ts 278).

59 It will be apparent, from the passages in Mr Rock's cross-examination which I have set out at [57] above, that he made a non-responsive dock identification of the appellant during cross-examination.

The learned trial judge's summing up in relation to Mr Rock's evidence concerning photoboard 1637 and his evidence at the trial as to his 'recognition' of the appellant in the course of the commission of the offences

60 The learned trial judge gave the jury a detailed summary of Mr Rock's evidence (ts 565 - 569).

61 His Honour instructed the jury in relation to Mr Rock's evidence concerning photoboard 1637, relevantly, as follows:

(a) Now, you have also got evidence of David Rock's identification of Mills from a photoboard three days later [it was actually five] and you have a video of the identification process when David Rock picked out a photograph of this accused Chris Mills. Now, I should direct you that that identification is of limited value because it's not like the usual identification process where someone is assaulted by someone they don't know and they're then asked to try and pick out the offender from a group of similar looking photographs including the suspect (ts 569).

(b) Now, in this case what happened, on the evidence, is that David Rock had already told the police that he believed the offender to be Chris Mills and that he had recognised this person he knew as Chris Mills. So really when he's going through the photoboard process, he's simply identifying someone he was able to recognise - that he says he was able to recognise at the time of the offences (ts 569).

(c) So really the only value of the evidence of Rock's identification of Mills from the photoboard is that it establishes that the man who Rock says he recognised as being a person called Christopher Mills is the same Christopher Mills who is in the dock in this trial, and that's really the only value of that identification process (ts 569).

62 The learned trial judge then instructed the jury in relation to Mr Rock's evidence at the trial as to his recognition of the appellant in the course of the commission of the offences:

(a) So the essential question that arises from this area of the evidence is whether David Rock is being truthful and accurate when he says that he recognised Christopher Mills as being the principal offender in the course of what occurred in his house on 13 September 2005. Now, in assessing that, you need to carefully bear in mind the evidence as to the preceding occasions when Rock says he had seen Mills (ts 570). (emphasis added)

(b) So you look at the time, how long previously he had seen Christopher Mills, on his evidence, for what period he had seen Mills - I think he said five minutes on the first occasion and a matter of seconds the second occasion, and you would have regard to that evidence and assess it carefully in determining whether or not you can be satisfied that he is accurate in identifying Christopher Mills at the time of the offences, and you will also have regard to his truthfulness generally and I will be having more to say about that shortly (ts 570). (emphasis added)

63 His Honour said to the jury, in the course of summarising the appellant's case:

It is pointed out that on previous occasions when Rock says he had seen Mills that those occasions were too long beforehand and had been for too short a period for his subsequent identification to be reliable. It is pointed out that the circumstances in which Rock says he is able to recognize Mills were terrifying for him. They involved him being violently assaulted. He testified that he was stunned for a period and that his senses were affected and it's put to you that this affects the reliability of his recognition of Mr Mills.

There is also evidence from Rock that his face was in a cushion and that he was facing away from his assailant and consequently assumed that it was Mills who was doing things, for example holding a knife to his throat. Mr Sklarz took you in detail through Rock's cross-examination and I'm not going to repeat what was put to you there but you will remember that and you should carefully take account of what was put to you in that regard. It was put to you that Rock's cross-examination reveals discrepancies in his account. It was also put to you that Rock's medical condition before and after 13 September, including the brain surgery, may have an effect on his recollection.

As to the photoboard identification, I have already indicated to you that that is of limited value. It is pointed out by counsel for Mills that the photoboard contained two photos of the accused and that's the reason for this. You have heard that the accused has had two names, one with the surname Gorringe, one with the name Mills. Obviously the purpose of a photoboard is to have similar photographs of men similar to the person who is the suspect and therefore it might not be surprising that you happen to get two photos which are more or less exactly the same of the same person with different names because they are obviously very similar (ts 579). (emphasis added)

64 The learned trial judge, in his summing up, used the words 'recognition' and 'identification' interchangeably in the context of Mr Rock's evidence that he recognised the appellant as the offender. (As to the use of the word 'identification', see ts 569, 570, 576, 579, 580. As to the use of the word 'recognition', see ts 569, 570, 579, 580.) His Honour also used the expressions 'recognition or identification' and 'recognise or identify' (ts 579).

No directions concerning the 'dock identification'

65 The learned trial judge did not give any directions to the jury in relation to Mr Rock's dock identification of the appellant.

66 The appellant's ground of appeal against conviction reads:

The trial Judge erred, or his discretion miscarried, when he failed to direct the jury adequately about the recognition evidence, and the nature of such evidence, such that there was a miscarriage of justice;

Particulars

1. the complainant had seen the Appellant twice before the offence was committed;
2. the complainant recognised the Appellant as an offender from a photoboard;

1. the complainant said another image on the photoboard also looked like the offender;

1. the trial Judge failed to properly inform the jury the complainant could be mistaken in his recognition of the Appellant as an offender;
2. during his directions to the jury, His Honour used the phrases identification and recognition interchangeably.

The appellant's submissions on the ground of appeal against conviction

67 The appellant's counsel conceded (correctly, in my opinion) that the presence of two photographs of an accused on a photoboard does not, of itself, render identification or recognition evidence in relation to that photoboard inadmissible. See Yarran v The State of Western Australia [2001] WASCA 52 [7], [12], [32], [35] (Wallwork J, Pidgeon and Murray JJ agreeing).

68 The appellant's counsel complained that the learned trial judge did not direct the jury that Mr Rock might be mistaken in his evidence that he recognised the appellant as an offender. He also complained that his Honour failed to direct the jury fully in accordance with the observations of Jenkins J when she delivered her decision on the voir dire. It was contended that 'fairness to the appellant' required these directions.

69 According to the appellant's counsel, the learned trial judge should have directed the jury as to the possibility of mistaken recognition by Mr Rock in the particular circumstances of the case. His Honour should have warned the jury that it would be dangerous, in the circumstances, to convict the appellant based upon Mr Rock's recognition evidence.

70 It was submitted that the learned trial judge's directions to the jury concerning the recognition evidence occasioned a miscarriage of justice.

The State's submissions on the ground of appeal against conviction

71 Counsel for the State submitted that the learned trial judge, by his directions in summing up, made plain to the jury that they had to consider carefully the truthfulness and accuracy of Mr Rock's recognition evidence. It would have been obvious to the jury that they were still required carefully to assess Mr Rock's recognition evidence even if they concluded he was a confident and honest witness. It was unnecessary for his Honour to give the jury a specific warning that Mr Rock might be mistaken in his recognition of the appellant as an offender. His Honour drew to the jury's attention the necessity to evaluate the reliability of Mr Rock's recognition evidence in the context of his previous limited contact with the appellant and the nature and extent of his opportunities to focus upon the offenders during the commission of the offences.

72 According to counsel for the State, the relevance of the evidence concerning Mr Rock's selection of the appellant's image on digiboard 1637 was that it established that the person whom Mr Rock told the police was 'Chris Mills' was, in fact, the appellant. As to the observations of Jenkins J when she delivered her decision on the voir dire, counsel submitted:

(a) It was irrelevant that there were two images of the appellant on photoboard 1637 in that Mr Rock did not identify a person whom he did not know or recognise.

(b) The learned trial judge was not required to draw the jury's attention to the fact that Mr Rock did not select one of the images of the appellant on photoboard 1637 as the person he recognised as 'Chris Mills'. However, his Honour did in fact direct the jury that the evidence of Mr Rock's selection of an image of the appellant from the photoboard was 'of limited value' (ts 569, 579).

(c) It was unnecessary for the learned trial judge to warn the jury that Mr Rock's failure to select one of the images of the appellant on photoboard 1637 diminished the reliability of his actual selection, in that:

(i) there was, in fact, no evidence at the trial (as distinct from at the voir dire) as to when each of the photographs of the appellant on photoboard 1637 was taken;

(ii) any differences between the two images of the appellant on the photoboard were not sufficiently significant to justify such a warning;

(iii) the appellant's counsel at trial did not request such a warning; and

(iv) a warning of this kind would have highlighted Mr Rock's identification in court of the appellant as the 'Chris Mills' he had recognised, in the course of the commission of the offences, as one of the offenders (ts 278, 325).

(d) If Jenkins J was concerned with the possibility of the jury drawing an inference adverse to the appellant from the fact that the police had possession of two photographs of him in different names before he was arrested for the offences in question, no request for a direction or warning in that respect was made by the appellant's trial counsel.

The merits of the ground of appeal against conviction: the directions in relation to Mr Rock's evidence at trial as to his 'recognition' of the appellant in the course of the commission of the offences

73 There is a well-established distinction between 'identification' and 'recognition' evidence. In general, identification evidence describes the evidence of a witness who identifies an accused as the offender in circumstances where the witness first saw the accused at or near the crime scene. In general, recognition evidence describes the evidence of a witness who recognises an accused as the offender in circumstances where the accused was previously known to the witness or had previously been seen by the witness other than at or near the crime scene. Where the witness's previous knowledge of the accused was tenuous, or the witness's previous sighting of the accused was fleeting, the witness's evidence that he or she recognised the accused at or near the crime scene may, in substance, resemble 'identification evidence'. The nature and character of the witness's previous connection with the accused is the crucial issue, rather than the characterisation of his or her evidence as 'recognition' evidence. See Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272 [59] (Blow J, Cox CJ and Slicer J, relevantly, agreeing); Kelly v The Queen [2002] WASCA 134; (2002) 129 A Crim R 363 [35] - [52] (McKechnie J); Al-Hashimi v The Queen [2004] WASCA 61; (2004) 181 FLR 383 [24] - [26] (Miller J, Wheeler and E M Heenan JJ agreeing); Peck v The State of Western Australia [2005] WASCA 20 [50] - [59] (Roberts-Smith JA, Steytler P and Wheeler JA agreeing); R v Spero [2006] VSCA 58; (2006) 13 VR 225 [26] - [29] (Redlich AJA, Maxwell P, Buchanan JA agreeing); R v Defrutos [2008] VSCA 55 [42] (Vincent JA, Buchanan JA and Kellam AJA agreeing).

74 In Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170, Latham CJ, Rich, Dixon, Evatt and McTiernan JJ distinguished, in substance, between identification and recognition evidence:

It is almost unnecessary to say that the amount of care and the nature of the precautions which should be taken when a potential witness is brought to identify an accused or suspected person must vary according to the familiarity of the witness with that person. It would be ridiculous, because the prisoner has been shown alone to a potential witness, to deny the value or reliability of the identification if the witness' knowledge of the prisoner arose from long and close association or from every day intercourse in business affairs. But where, before the occasion with which it is sought to connect the person accused or suspected, the witness has seldom or never seen him, experience has led the English court to look for the greatest care to avoid a mistake or prejudice (181).

75 In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ made these observations as to identification evidence and the circumstances in which a trial judge must warn the jury of the dangers of convicting on such evidence:

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed (Kelleher v The Queen [1974] HCA 48; (1974), 131 CLR 534, at p 551; Reg v Turnbull [1977] QB 224, at p 228; Reg v Burchielli [1981] VicRp 61; [1981] VR 611, at pp 616-619; Reg v Bartels (1986), 44 SASR 260, at pp 270-271). The terms of the warning need not follow any particular formula (Reg v De-Cressac (1985), 1 NSWLR 381, at p 384; Reg v Finn (1988), 34 A Crim R 425, at pp 435-436). But it must be cogent and effective (Reg v Dickson [1983] VicRp 19; [1983] 1 VR 227, at p 230; Reid (Junior) v The Queen [1990] 1 AC 363, at p 380). It must be appropriate to the circumstances of the case (Reg v Aziz [1982] 2 NSWLR 322, at p 328; Reg v Allen (1984), 16 A Crim R 441, at pp 444-445). Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case' (Smith v The Queen (1990), 64 ALJR 588, at p 588). A warning in general terms is insufficient (Kelleher v The Queen [1974] HCA 48; (1974), 131 CLR 534, at p 551). The attention of the jury 'should be drawn to any weaknesses in the identification evidence' (Kelleher v The Queen [1974] HCA 48; (1974), 131 CLR 534, at p 551). Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it (Davies and Cody v The King [1937] HCA 27; (1937), 57 CLR 170, at pp 182-183). It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence (561 - 562).

76 Later in the joint judgment in Domican, their Honours considered the proper approach to the evaluation of the adequacy of a warning in an identification case:

[T]he adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case (ibid, at p 446; Reg v Dickson, [1983] 1 VR, at p 230; Reg v Allen (1984), 16 A Crim. R, at pp 444-445). But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused (See Reg v Bartels (1986), 44 SASR, at pp 270-271; cf Reg v Goode [1970] SASR 69, at p 77). The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence (565).

77 Recently, in Winmar v Western Australia [2007] WASCA 244; (2007) 35 WAR 159, this court (Wheeler, McLure, Pullin, Buss and Miller JJA) considered, in the context of identification evidence, relevantly, the warnings which are or may be necessary in relation to such evidence. After referring to passages in Domican, including the passage set out at [75] above, this court stated that the relevant passages invite attention to two questions [9]. First, what are the dangers of convicting on disputed identification evidence? Secondly, how does a trial judge determine whether matters may reasonably be regarded as undermining the reliability of the evidence, so as to require the judge to lend the weight of his or her authority to a warning about those weaknesses? This court said, in relation to the first question:

What, then, are 'the dangers of convicting on [identification] evidence'? The basal proposition is that there have been significant miscarriages of justice where an honest and confident identification witness has given evidence which is not accurate, and that the potential for such a miscarriage is a risk in most or many identification cases. Neither the witness' honesty nor the witness' confidence guarantees the reliability of the evidence.

That basal proposition derives (at least in part) from the experience of the courts. At [1345] of Cross on Evidence (7th Aust ed, 2004) there are mentioned a number of famous cases in which identification errors of an astonishing character have occurred. Further, any legal practitioner or judge who deals with civil or criminal cases will quickly discover that apparently honest eyewitnesses to an event can differ widely about important aspects of it. As the Devlin Committee Report points out at pars 1.24 and 4.25 (P Devlin, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases, HC 338 (London, HMSO, 1976)), cross-examination is a tool of limited usefulness in testing a witness' ability to recognise faces, and demeanour is not a useful guide to accuracy in such a case.

The danger, then, is that evidence which is inaccurate may be apparently convincing and that it will be difficult to test whether it is as accurate as it seems. The danger which must be warned against in every case, therefore, is the danger that an honest witness may be mistaken, and that an honest but mistaken witness may be convincing: Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534 per Gibbs CJ at 550 - 551; R v Turnbull [1977] QB 224 (cited in Domican at 561); Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [166] per Kirby J, [218] per Hayne J; and Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 108 per McHugh J (dealing with honest but mistaken recollection generally).

There is another, related danger which authority suggests should be the subject of a general warning about the potential unreliability of identification evidence, at least in any case where there is any factual basis for concern that the danger may be present. It is the vulnerability of identification evidence to suggestion: Davies v The King [1937] HCA 27; (1937) 57 CLR 170 at 181 - 182; Festa at [22] and [26] per Gleeson CJ, at [78] and [81] per McHugh J. There are a number of aspects of this vulnerability to suggestion, including a possibility that a witness will pick out someone from photographs, or from a group of persons selected by the police, because he or she expects the group to contain the offender, and the possibility that a person may substitute in the person's memory an image of someone seen elsewhere (possibly in photographs selected or a parade organised by the police) for a hazy recollection of an offender.

Finally, it is obvious that a person's ability to observe an offender may be very limited in the circumstances of a particular offence, and the dangers of which a jury must be warned include, where appropriate, the danger that the witness will simply have not had an adequate opportunity to observe, so as to be able to identify anyone.

The matters outlined above seem to us to be the core warnings as to the dangers of convicting on disputed identification evidence which are recognised by authority. The first danger, which is that of accepting as accurate evidence which is convincing but inaccurate, is a danger present in every case. The others may well be present, to a greater or lesser degree, in most cases.

However, the dangers outlined above were obviously not the only matters which were of concern to the High Court in Domican. The 'significant weaknesses' which their Honours discussed at 562 - 563 included, but were not confined to, difficulties of observation and possible suggestibility.

The precise circumstances of Domican are unlikely to recur. It is necessary therefore for trial judges to be able to identify those matters which may reasonably be regarded as undermining the reliability of identification evidence and about which a warning may be required. It is obviously impossible to lay down a rule applicable to every case, as circumstances are likely to vary [10] - [17].

This court addressed the second question as follows:

Consideration of the second question - that is, how a judge identifies the specific weaknesses about which it is necessary to warn - may be assisted by a consideration of the nature of judicial warnings generally. A review of the cases in Australia and England suggests that, before a warning is necessary, two factors must be present. First, there must be some aspect of the evidence which gives rise to 'a perceptible risk of miscarriage of justice': Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 at 330 per Brennan J; Kelleher v The Queen at 560 per Mason J; Longman v The Queen at 86 per Brennan, Dawson and Toohey JJ.

Second, the risk of miscarriage of justice must be one which is not necessarily obvious to the lay mind (or perhaps one to which a lay person may give inadequate weight). It must derive from a factor 'of which the judge has special knowledge, experience or awareness': Carr at 325 per Brennan J and at 341 per Gaudron J; Longman at 91 per Brennan, Dawson and Toohey JJ; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 at [132] per Kirby J; Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 604 per Brennan J.

If it is the special knowledge or awareness of the judge or of the courts which gives rise to the need for a warning, it follows that where a judge, or the courts, has or have no special expertise or knowledge, a warning is not only unnecessary, but is an unwarranted intrusion into the province of the jury: see Bromley at 324 per Brennan J; Carr at 321 per Wilson and Dawson JJ. In deciding what is or is not within the special knowledge or awareness of the court, there is a danger that the courts may assume an expertise which they do not possess. As the learned authors of Cross on Evidence (7th Aust ed, 2004) observe, although some perceived lessons from human experience are doubtless entirely correct, others may not be, and generalisations from experience may be modified as experience changes and may at any particular time be controversial (at par 3295). An obvious example is afforded by the rule which formerly applied, that in cases of an alleged sexual assault by a male upon a female, the judge was required to give a warning to the jury that it was dangerous to act on the uncorroborated evidence of the complainant. That rule was abrogated only by legislation, and not by a change to the common law, even though, as Deane J observed in Longman's case, it sounded "somewhat strangely in modern ears" (at 92) and even though, at least in his Honour's view, neither wisdom nor experience - judicial or otherwise - justified the rule at the time at which it came to be abrogated (at 93).

So far as intermediate courts of appeal are concerned, where a particular form of warning has been identified by the High Court as necessary in a particular case, there is no conceptual difficulty. The court is simply required to follow authority, and the only question which may arise is that of whether the circumstances of the case at hand do fall within, or are closely analogous to, the category of cases calling for the warning. The discussion which follows here is concerned with those issues concerning identification evidence which are not the subject of authority directly on point, but which may call for a warning [21] - [24].

78 As Spigelman CJ (Hulme and Latham JJ agreeing) noted in Trudgett v The Queen [2008] NSWCCA 62, the joint judgment in Domican, (561, fn 18), cited with approval the comments of Lord Widgery CJ in R v Turnbull [1977] QB 224, 228. His Lordship said, concerning recognition evidence:

Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made (228).

79 In Carr, Blow J, after reviewing R v Boardman [1969] VicRp 17; [1969] VR 151 and Turnbull, noted:

As Boardman and Turnbull illustrate, 'recognition' cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times of their alleged crimes. It would therefore be illogical to hold that a warning as to the dangers of mistaken identification of the sort discussed in Domican need never be given in a recognition case. Obviously, such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend on all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime [61].

80 In R v Cox and Sadler (Ruling No 12) [2006] VSC 233, Kaye J considered the authorities on the circumstances in which a warning will be required in relation to identification evidence, and then made these observations as to the potential for error in the case of recognition evidence:

It is clear that similar errors may also occur where the witness is already acquainted with the accused. The authorities on this question make it clear that, in a case such as this, much depends upon the particular circumstances of the case, and upon the precise issues which have been raised in the course of evidence. Notwithstanding that the witness making the identification previously knew or had met the accused, a specific warning may nevertheless need to be given to the jury if, on the issues raised in the case, there is a real question as to the accuracy or reliability of the witness's powers of observation, recognition, or recall (R v Spero [2006] VSCA 58 at [28] per Redlich AJA; R v Turnbull [1977] QB 224 at 228) [23].

81 I respectfully agree with the observations of Blow J in Carr and Kaye J in Cox.

82 In the present case, a critical issue at the trial was whether Mr Rock's evidence as to his recognition of the appellant as the offender was honest and reliable; that is, whether, during the commission of the offences in question, he had truthfully and accurately recognised the appellant.

83 At trial, Mr Rock's recognition evidence was a significant part of the State's case in proof of the appellant's guilt, and the appellant, through his counsel, raised a real issue as to the cogency of that evidence.

84 The learned trial judge, in his summing up, did not warn the jury of the danger of convicting on Mr Rock's recognition evidence. His Honour's statement to the jury, in the course of summarising the appellant's case, that they should 'carefully take account' (ts 579) of the contentions made by the appellant's counsel as to the alleged unreliability of Mr Rock's recognition evidence did not, in substance, constitute such a warning.

85 In my respectful opinion, the learned trial judge was in error in failing to warn the jury of the danger of convicting on Mr Rock's recognition evidence. I am of that opinion for these reasons.

86 First, Mr Rock had never met the appellant before the offences were committed. Secondly, Mr Rock had observed the appellant only twice before he was assaulted and robbed. Thirdly, on one occasion Mr Rock observed the appellant for only about five minutes while he was inside a house with four other people and the appellant was outside; on the other occasion Mr Rock merely glimpsed the appellant for about one or two seconds. Mr Rock was unlikely to have acquired any real familiarity with the appellant as a result of the first observation. Further, it is implausible that Mr Rock acquired any familiarity at all with the appellant on the second occasion. Fourthly, the first occasion on which Mr Rock observed the appellant appears to have been about 18 months before the offences were committed or about three years before the trial, but his evidence on this point was imprecise (ts 322; compare ts 315, 325). There was no evidence as to when the second observation occurred. Fifthly, Mr Rock's alleged recognition of the appellant occurred in the course of a violent assault and robbery; in particular, after he was struck on the back of the neck with a heavy object (apparently the butt of a firearm). Mr Rock said he recognised the appellant as he (Mr Rock) was 'twisting' and falling to the ground. He also said he recognised the appellant while he (Mr Rock) was face-down on the ground and being kicked and, perhaps, struck with the firearm. Mr Rock did not say, however, that at any time during the assault he saw the offender's facial features. It appears that throughout the assault the person whom Mr Rock said he recognised as the appellant was behind him. In any event, the alleged recognition occurred in circumstances which did not permit careful and measured reflection on the characteristics of the offender. On several occasions, in his evidence-in-chief and cross-examination, Mr Rock said that 'Chris Mills' (being the appellant whom he identified in the dock) did or said certain things and that he knew 'Chris Mills' had assaulted him. This evidence comprised, in essence, assertions by Mr Rock, and the assertions were made without any supporting evidence of recognition, beyond the evidence I have mentioned.

87 In my respectful opinion, the learned trial judge should have warned the jury of the special need for caution before convicting the appellant in reliance on the correctness of Mr Rock's evidence that he recognised the appellant in the course of the commission of the offences. His Honour should have instructed the jury as to the reasons for the necessity to give the warning (namely, the five matters I have enumerated at [86] above) and that, in the experience of the courts, even an honest and confident witness can sometimes be mistaken in giving evidence that he or she recognised the accused as the offender.

88 As the High Court explained in Domican, where a judge is required to give a warning concerning the danger of convicting on identification evidence, he or she is not absolved from that duty because there is other evidence which, if accepted, is sufficient to convict the accused (565). Also, the adequacy of any warning actually given must be assessed by reference to the identification evidence and not the other evidence in the case (565). Those observations apply, by analogy, where a trial judge is required to give such a warning in relation to recognition evidence.

89 Before this court, counsel for the State conceded (properly, in my opinion) that if the ground of appeal had merit then the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) was incapable of application in the present case, and a retrial should be ordered. Compare Domican, where Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ held, on the facts of that case, that the apparent strength of other parts of the Crown case could not rectify the omission of the trial judge to draw attention to the weaknesses in the identification evidence (566). In the present case, the learned trial judge's failure to give the warning I have mentioned may well have affected the jury's verdict. I am not satisfied, on the basis of my review of the record and without having had the benefit of seeing and hearing Mr Rock give evidence, that the State has proved the appellant's guilt beyond reasonable doubt.

90 The ground of appeal against conviction has been made out to the extent it concerns the directions in relation to Mr Rock's evidence at trial as to his 'recognition' of the appellant in the course of the commission of the offences. I would grant leave to appeal against conviction, allow the appeal, quash the convictions and order a retrial.

91 I should add, for completeness, that although it would have been preferable if the learned trial judge had not used the words 'recognition' and 'identification' interchangeably in the context of Mr Rock's evidence that he recognised the appellant as an offender, in my opinion the appellant's complaint in this respect did not give rise to a miscarriage of justice.

The merits of the ground of appeal against conviction: the directions in relation to Mr Rock's evidence concerning photoboard 1637

92 The learned trial judge's evaluation of the relevance and significance of Mr Rock's evidence concerning photoboard 1637 was different from the evaluation of Jenkins J.

93 Jenkins J appears to have considered that the evidence in question was 'identification' evidence and that when Mr Rock was shown photoboard 1637 he 'identified' the appellant as the offender.

94 However, the learned trial judge directed the jury, in substance, that:

(a) The process by which Mr Rock selected a photograph of the appellant from photoboard 1637 was 'of limited value' because Mr Rock had already told the police that the appellant was the offender and that he had recognised him in the course of the commission of the offences (ts 569).

(b) The process by which Mr Rock selected a photograph of the appellant from photoboard 1637 involved Mr Rock 'simply identifying someone ... he says he was able to recognise at the time of the offences' (ts 569).

(c) The only value of the evidence of Mr Rock's selection of a photograph of the appellant from photoboard 1637 was that it established that the man whom Mr Rock said he recognised in the course of the commission of the offences was the appellant, who was in the dock at the trial (ts 569).

95 In my respectful opinion, the learned trial judge's direction as to the (only) value of the evidence of Mr Rock's selection of a photograph of the appellant from photoboard 1637 was lacking in clarity.

96 If that evidence had any value, it was merely that Mr Rock could, apparently, identify the appellant. The evidence in question did not corroborate or support Mr Rock's evidence that the person he allegedly recognised in the course of the commission of the offences was the appellant. Similarly, Mr Rock's evidence in relation to photoboard 1637 did not establish that the appellant was one of the men in the dock at the trial. The only evidence of Mr Rock which, on the face of it, established that the appellant was in the dock at the trial was his dock identification.

97 Although the learned trial judge's direction as to the (only) value of the evidence of Mr Rock's selection of a photograph of the appellant from photoboard 1637 was unclear, his Honour did significantly confine the relevance of that evidence and, as a result, it was unnecessary for him:

(a) to draw the jury's attention to the fact that Mr Rock did not select one of the images of the appellant on photoboard 1637 as the person he recognised as 'Chris Mills'; or

(b) to warn the jury that Mr Rock's failure to select one of those images diminished the reliability of his actual selection.

98 The learned trial judge's directions in relation to Mr Rock's evidence concerning photoboard 1637 were not in accordance with the usual directions concerning photoboard evidence. See Winmar [120]. His Honour's directions did not, however, in the circumstances, prejudice the appellant and did not cause a miscarriage of justice.

99 The ground of appeal against conviction fails to the extent it concerns the directions in relation to Mr Rock's evidence as to photoboard 1637.

100 The ground of appeal makes no complaint about the absence of any direction from the learned trial judge in relation to Mr Rock's dock identification of the appellant. It is desirable, however, in view of my conclusion that the appeal should be allowed, the convictions quashed and a retrial ordered, to make some comment on the point.

101 In R v Gorham [1997] SASC 6218; (1997) 68 SASR 505, Duggan J (Lander and Bleby JJ agreeing) made these observations concerning out-of-court identifications and a dock identification of an accused:

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) 38 FCR 95 at 104. 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 (508).

102 A dock identification can be a dangerous form of identification. See Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 399 (Gibbs J), 426 - 427 (Mason J); Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [18] (Gleeson CJ), [78] (McHugh J). As Duggan J pointed out in Gorham, much depends on the particular facts and circumstances.

103 The distinction between 'identification' and 'recognition' evidence, which I have discussed at [73] - [74] above, is, of course, relevant in the context of a dock identification. As Miller J noted in Al-Hashimi:

there is a sharp distinction between cases in which identification of an accused person is made by way of dock identification where the witness saw the accused person only fleetingly at the scene of the crime or in circumstances connected with the crime, and in circumstances where the accused person is someone who is known to the witness. In the latter case, the evidence is not evidence of identification but of recognition [23].

The authorities in relation to warnings, which I have discussed at [75] - [80] above, are relevant in this context. Also see R v Saxon [1998] 1 VR 503, 512 - 513; R v Evan, Robu and Bivolaru [2006] QCA 527; (2006) 175 A Crim R 1 [61].

104 Where a dock identification is made, the trial judge should explain the relevance and purpose of the evidence.

105 In the present case, the only relevance of Mr Rock's dock identification of the appellant was to confirm that the person he had allegedly recognised, in the course of the commission of the offences, as the appellant, was one of the accused before the court.

106 Although it is strictly unnecessary to consider the appeal against sentence in consequence of my conclusion that a retrial should be ordered on all counts, detailed submissions were made on the issues and it is appropriate, in the circumstances, that I deal with them.

107 The sole ground of appeal against sentence is as follows:

The disparity in the sentences imposed upon the Appellant and his co-offender Gary Norman Robert Jajko ('Jajko') was substantial and offended the principle of parity in sentencing;

Particulars

1. The Appellant and Jajko were jointly tried on the same Indictment and were found guilty of similar offences following trial;
2. The Appellant was sentenced to a finite sentence of 5 years imprisonment;

1. Jajko was sentenced to 3 years 8 months imprisonment, suspended for 2 years and an 18 month ISO.

108 The legal principles that apply in considering a ground of appeal which alleges unjust disparity are well-established. See, for example, Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; 'I' (a child) v The State of Western Australia [2006] WASCA 9; Emery v The State of Western Australia [2007] WASCA 135. It is unnecessary to repeat them.

109 In the present case, the crucial point is whether the difference between the overall sentence imposed on the appellant and the overall sentence imposed on Mr Jajko is manifestly excessive and such as to give rise to a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done. See Postiglione, (323) (Gummow J).

110 In my opinion, there were significant differences between the sentencing considerations applicable to the appellant and those applicable to Mr Jajko. The differences in question preclude an objective observer from concluding that justice was not done.

111 First, the appellant was convicted of the offence of armed robbery, contrary to s 392(c) of the Criminal Code, which carries a maximum penalty of life imprisonment. By contrast, Mr Jajko was convicted of robbery in company, contrary to s 392(d) of the Criminal Code, which carries a lesser maximum penalty, namely, 20 years imprisonment.

112 Secondly, the offence for which the appellant was convicted was objectively more serious than the offence for which Mr Jajko was convicted, in that the appellant was armed with a dangerous weapon, whereas Mr Jajko was not.

113 Thirdly, the learned trial judge made the following unchallenged findings in relation to the appellant:

(a) The appellant intended to 'rough up' a person (not Mr Rock) who he expected would be at the place where the offences occurred. By contrast, Mr Jajko's role was to show the appellant where that person lived and to identify him (ts 646).

(b) Mr Jajko participated in the offences 'partly out of fear of [the appellant]' (ts 646). Upon arrival at Mr Rock's place of residence, the appellant was 'the principal offender in most of what occurred'. By contrast, Mr Jajko was 'not as culpable in that [his] role at most was limited to rummaging through the house and in confirming to [the appellant] that [Mr Rock] was the wrong man' (ts 647, 649).

114 Fourthly, the appellant's antecedents were materially different from Mr Jajko's antecedents. For example:

(a) The learned trial judge found that the appellant had a 'long history of violent offending' and that 'in the past, terms of imprisonment, community based dispositions and fines have not deterred [the appellant] from continuing to offend' (ts 647).

(b) The appellant's antecedents revealed a history of breaching parole by re-offending, and the present offences were committed while the appellant was subject to an intensive supervision order that had been imposed for another violent offence (ts 647 - 648).

(c) The appellant was assessed as being at a high risk of re-offending (ts 648).

(d) By contrast, Mr Jajko had a 'moderately long prior criminal record [which included] only one offence of violence and ... only two minor convictions since 1999' (ts 648)

(e) Mr Jajko suffers from extremely poor health. He was diagnosed with Tourette's syndrome at 12 years of age, and suffers from severe muscle spasms and poor impulse control. Also, in 1994 he suffered severe injuries in a motor vehicle accident and those injuries continue to cause him difficulty.

(f) Further, his Honour found that when Mr Jajko was released on bail for the present offences, he made efforts towards his rehabilitation (ts 648 - 649).

115 In my opinion, there is no merit in the ground of appeal against sentence.

116 I would grant leave to appeal against conviction, allow the appeal, quash the convictions and order a retrial.

117 The appeal against sentence should be dismissed.

118 MURRAY AJA: In this case I have had the considerable advantage of reading in draft the comprehensive reasons published by Buss JA. I agree that the appeal against the convictions should be allowed and that there should be an order that the appellant be retried upon the indictment. I am generally in agreement with the reasons of Buss JA in support of that conclusion, but I wish to make a few brief observations as to why I think the ground of appeal against conviction must succeed.

119 The truthfulness of the complainant Rock was in issue because, for the appellant, it was put to Rock, but denied by him, that he had reason to falsely allege that Mills was at least a principal offender in the commission of the offences of aggravated burglary, assault occasioning bodily harm to Rock, and the robbery of his wallet. If Rock was considered by the jury to be an honest witness, then the crucial question was whether his evidence was accurate and reliable when he identified the appellant as an offender against him. It is in relation to that aspect of the case that, in my respectful opinion, further direction by the trial judge was required.

120 This was always a case about Rock's recognition of the appellant, and that was well understood at trial, although the trial judge used the word 'recognition' and 'identification' interchangeably. Also, on occasions, his Honour referred to a process identifying the appellant as a person recognised by Rock. I do not think that the terminology used by

the judge in this way had the potential to cause the jury any confusion as to their task.

121 The offences with which the appellant and Jajko were charged were committed on 13 September 2005. Rock's evidence was that some time in about 2003 or 2004, while he was at a friend's house with others, he saw the person he named as 'Chris Mills' outside the house for about five minutes, with other people, in what I gather were circumstances of some disturbance. The evidence about when this occurred was confused because, at one point in his evidence, as has been seen, Rock said that this happened about three years, or a little over three years, before September 2005.

122 He also said that he saw the appellant even more briefly, for perhaps a couple of seconds, with others, passing a house where Mr Rock was. When this viewing occurred was also uncertain, but it was after the first occasion of which Rock spoke.

123 Buss JA has discussed the relevant authorities about identification warnings. I need not repeat that discussion. The leading case in the High Court is Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. Specifically in relation to photoboard identification, or the modern equivalent, the digiboard, the leading authority is now undoubtedly Winmar v Western Australia [2007] WASCA 244; (2007) 35 WAR 159. It is sufficient for this case that I say that, as I understand the law, a warning will be required in relation to identification evidence where it is necessary to alert the jury about the danger that an identifying witness may be apparently careful and confident, but nonetheless wrong, and so such evidence must be carefully scrutinised before the jury acts upon it.

124 Where a warning is deemed to be necessary, it is not to be given in any particular form of words, but in words tailored to deal with the particular circumstances of the case, highlighting and identifying the dangers, deficiencies and weaknesses which the evidence may have, as well as its strengths. Where a warning is required, it must be delivered by the judge and cloaked with the authority of the judicial office. It will be insufficient merely to remind the jury of the arguments presented by counsel for the respective parties.

125 This was clearly a case where a warning was required. The question is the adequacy of the warning given by the trial judge. The terms of that warning have been set out by Buss JA. Putting to one side the defence suggestion that Rock was a dishonest witness, on the basis that his evidence was accepted to be given honestly, the trial judge certainly referred to the need to assess carefully the evidence about the previous occasions when Rock said he had seen the appellant and had him pointed out. As to the circumstances concerned with Rock's capacity to observe the offender he identified as Mills during the course of the commission of the offences, again the trial judge pointed to various matters of difficulty. In some respects his comments were weakened by referring to the arguments put to the jury by defence counsel, but the general tenor of his Honour's observations was that there was a need to scrutinise the evidence closely.

126 Certainly there was much to be concerned about. It seems to be clear that the armed man with the sawn-off shotgun first seen by Mr Rock was not the same man that he said he recognised after he was struck from behind to the head, apparently with the butt of a shotgun. It was a cause for concern about the reliability of Rock's identification of the appellant as the offender, that it only occurred as he fell and twisted and looked to see who had struck him from behind. Buss JA has referred to other matters which would need to be carefully considered in relation to the circumstances during the commission of the offences and Rock's capacity to reliably make the identification.

127 In my respectful opinion, without repeating that discussion, what was lacking in the trial judge's directions about these matters to the jury was that he should have made the jury specifically aware of the difficulties which may arise by reason of mistaken identification, and the difficulty of testing the accuracy and reliability of the evidence of an identifying witness. In my respectful opinion, there needed to be more attention given, with the authority of the office of the trial judge, to a careful discussion of the strengths and weaknesses of the evidence about the opportunity that Mr Rock had to observe the offender, identified as the appellant, during the commission of the offences, and the weaknesses attendant upon the earlier events which he said made it possible for him to recognise the offender as the appellant.

128 Further, although the complaint by the ground of appeal is about the adequacy of the directions concerning what is described as the recognition evidence, the dock identification was the culmination of that process. In short, Mr Rock's evidence was that he knew or was able to recognise one of the people who attacked him. He had seen that person before. He was told that his name was Chris Mills. That was the person he saw and was able to recognise on the night in question. But it was essential that there be evidence that that same person was the person identified as the appellant in the dock, sitting with the co-offender Jajko. That was the purpose of the dock identification.

129 But the jury should have been told that, for reasons identified by the trial judge, including reference to the previous identification processes, the dock identification added no significant weight to the reliability of the recognition evidence to which I have referred and, in particular, the jury needed to be told that they should take care, in assessing that evidence, that Mr Rock was not made more confident of the accuracy of his recognition by the fact that a person, of similar appearance at least, was sitting in the dock with one other person, before the witness, as he gave evidence.

130 Unlike Buss JA, I think the trial also miscarried when regard is had to the way in which the trial judge dealt with the digiboard identification evidence. Certainly his Honour played down this evidence, describing it to the jury as being, 'of limited value'. But it is not clear to me what his Honour meant and, more importantly, what the jury would have understood by his observation that:

really, the only value of the evidence of Rock's identification of Mills from the photoboard is that it establishes that the man who Rock says he recognised as being the person called Christopher Mills [is] in the dock in this trial (ts 569).

If the jury understood by that observation that the judge was directing them, as a matter of law, that the digiboard identification was not of the person who offended against Rock, then no more need be said, and its only value might be if the jury thought that the person picked was the man in the dock, but that is not how this material was otherwise presented to the jury. In my opinion, this evidence required careful direction.

131 The police asked Mr Rock to participate in a photoboard identification process to see if he could identify any person who offended against him. From one digiboard he picked Jajko. When shown digiboard 1637, upon which there were two photographs of the appellant, he picked one and said there was another photograph (without identifying which) which looked a lot like the appellant. Certainly the evidence was admissible, but the inherent weakness of photographic identification should have been referred to by the judge, as it was by Mr Rock himself. In addition, the selection of one photograph of the appellant was immensely weakened as an act of identification by the failure also to select the other. In my respectful opinion, Jenkins J, who dealt with the question of admissibility on the voir dire, was right about that.

132 Further, there was the 'transference' problem attendant upon photographic identification, compounded by the fact that this was a recognition process, Mr Rock already having informed the police that the offender was a person he knew as Chris Mills. By that I mean that when shown the digiboard, Rock may have unconsciously picked a person that he had previously seen, rather than a person who offended against him. Further, when he gave evidence at the trial, his evidence that he recognised the offender may, again unconsciously, have been evidence that he was referring, not necessarily to the offender, but to a person he thought he knew and recognised when he was shown the digiboard, the person who sat in the dock before him as he gave his evidence. In my respectful opinion, those dangers and difficulties needed to be addressed by a direction to the jury, and his Honour's remarks did not deal with those matters.

133 For those reasons, I too would grant leave to appeal against the convictions, allow the appeal, quash the convictions, and order that the appellant be retried upon the indictment. I agree with Buss JA that there is no merit in the appeal against sentence. I have nothing to add to his Honour's reasons in that regard.