Mule v The Queen [2002] WASCA 101

Court of Appeal (WA)|2002-05-01|Before: Miller J, Wallwork J, As Miller J, Murray J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MULE -v- THE QUEEN [2002] WASCA 101

Criminal law - Identification - Conflict over identification between two Crown witnesses - Directions in relation to identifying witness qualified by reference to non-identifying witness - Whether trial Judge should have directed jury specifically in relation to evidence of non-identifying witness - Whether this witness undermined Crown case

Murray v R, unreported; CCA SCt of WA; Library No 5705; 6 February 1985

1 WALLWORK J: I agree with the reasons for judgment and the orders proposed by Miller J.

3 MURRAY J: In respect of this appeal against conviction, I have had the advantage of reading in draft the reasons for decision to be published by Miller J with which I note Wallwork J agrees. I have the misfortune to take a different view.

4 The sole issue at the trial was that of identification. Was the appellant the person who at the nightclub assaulted Gurney causing him bodily harm by punching him in the face and hitting him across the head with a bar stool? The appellant mounted no affirmative defence. He gave and called no evidence. In my opinion, the way the trial was conducted by counsel and the way the trial Judge directed the jury made the issue to be decided abundantly clear.

5 Neither prosecuting nor defence counsel had any complaint to make about the way in which the trial Judge charged the jury. As Miller J has noted, there is now no complaint that his Honour in any way misdirected the jury as to the onus and standard of proof, nor could the jury have had any doubt that they could not convict unless they were satisfied that the only identifying witness, Ms Moore, had given evidence which was not only truthful, but accurate and reliable, when she said that 20 minutes after the assault, in the nightclub, she identified the appellant as the assailant, an identification which she confirmed by selecting the appellant's image on a photo board about a fortnight later. As Miller J has mentioned, there is and could be no complaint that his Honour's directions about the danger of convicting solely upon the evidence of Ms Moore were not correct in law and thorough and complete in fact. Those directions occupied the substantial portion of the directions given to the jury by the trial Judge. They would have retired to their deliberations with his Honour's warnings of the dangers of relying upon the evidence of Ms Moore ringing in their ears.

6 Having dealt comprehensively with Ms Moore, the trial Judge turned to the evidence of Ms Cooper which he introduced as important evidence contradicting that given by Ms Moore, as it clearly was. Cooper had made no identification at the nightclub on the night in question, and although she had seen the face of Gurney's assailant, when, a fortnight later, she was shown the photo board which contained the picture of the

appellant selected by Ms Moore, she said affirmatively that the offender was not shown in any of those pictures.

7 Ms Cooper was a necessary Crown witness. Moore did not see Gurney struck either by fist or bar stool although she saw the bar stool wielded by the assailant as if to strike Gurney, in close proximity to where he was. Cooper did not see the first blow by the fist of the assailant but she saw the offender, whoever he was, strike Gurney with the bar stool. In that respect therefore, the prosecution sought to rely upon Cooper's evidence to support Moore's identification of the appellant as the assailant. The trial Judge reminded the jury of Cooper's evidence about what occurred at the nightclub without comment.

8 His Honour then reminded the jury of her positive non-identification when shown the photo board. Again his Honour made no comment about the credibility of the witness. He reminded the jury that in this respect the defence regarded the evidence of Cooper as being "very significant" and his Honour merely instructed the jury that they, "must carefully consider that contradictory evidence from Nicola Cooper in deciding whether you can safely accept Jennifer Moore's evidence when she says that the accused was the person who was wielding this bar stool."

9 In my opinion, the jury could not have been under any misapprehension that they could, by relying on the evidence of Moore as to the identification of the appellant, reach a conclusion beyond reasonable doubt as to his guilt without rejecting as reliable the evidence of Ms Cooper. They could not have thought that they could act on the evidence of Moore if they accepted the evidence of Cooper as accurate and reliable evidence or if, while not accepting her evidence about the photo board, they were unable to reject it and thought that it might be true.

10 His Honour gave no directions specifically in those terms but, in my opinion, he was not obliged to do so as a matter of law or in the discharge of his duty to fairly put and comment upon matters of evidence of some significance to the cases of the prosecution and defence. The crucial point about this aspect of Cooper's evidence was that it contradicted the evidence of Moore that the appellant, whose photograph appeared on the photo board, was the assailant whom she had identified at the nightclub. If the jury was to rely upon Moore, and if they were to be persuaded by her evidence that the appellant whom she identified as the assailant was indeed the offender, then Cooper's evidence had to be rejected and the jury must have appreciated that that was the case.

11 This was a very short trial. The issue of fact bearing upon the question of guilt or innocence and the capacity to prove guilt beyond reasonable doubt was solely the issue of identification. All the evidence was completed in one day. On the following morning, the jury heard closing addresses by prosecuting and defending counsel. His Honour commenced his address after a short break at about midday. The jury retired 35 minutes later. His Honour discussed Cooper's evidence about 10 minutes before that. She was the last witness upon whose evidence his Honour commented. In my opinion, his Honour did not err in his directions and there has been no miscarriage of justice in the sense that the accused may have lost a fair chance of acquittal as a result of the manner in which his Honour's directions to the jury were given.

12 Before leaving the appeal against conviction, I should comment briefly upon the particular submission for the appellant that the jury should have been told that before they could find the appellant guilty, they had to exclude the evidence of Ms Cooper beyond reasonable doubt. In my opinion, that submission confuses the jury's task to decide which evidence they may accept and rely upon and which evidence they reject with the task to consider whether the evidence they do accept establishes guilt beyond reasonable doubt or facts necessary to be established as part of the process of establishing beyond reasonable doubt that the accused is guilty of the offence charged: cf Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.

13 In view of my conclusion about the appeal against conviction, it is necessary that I turn briefly to the application for leave to appeal against sentence. On 8 November 2001, the applicant was sentenced to 2 years' imprisonment with eligibility for parole. The applicant complains that the sentence is manifestly excessive, particularly having regard to his antecedents which disclose that he has not been convicted of a violent offence for a period of 11 years, and also having regard to the effect of his imprisonment upon his family.

14 In his remarks on sentence, the trial Judge described the nature of the offence as arising out of the fact that Gurney touched the applicant or accidentally bumped him as he walked past him. His Honour described this as a very minor and unintended provocation. The response of the applicant was to swing the man, Gurney, around so that he could punch him hard in the face. Having felled him, and while Gurney, in a dazed condition, was attempting to stand up again, the applicant took hold of the nearby metal bar stool, lifted it above his head, swung it down and struck

Gurney once again in the face. Fortunately, his Honour said, Gurney's injuries were not serious.

15 The trial Judge described the applicant as a 38-year-old bricklayer with a wife and six young children to support. His Honour referred to the applicant's significant record of previous convictions, including offences of violence dating from 1979 through to 1990 when he was sentenced to 3 years imprisonment by the District Court for unlawful wounding. After that time and the applicant's release from prison, it seemed that the applicant had settled down following his second marriage and with a young family to support, but his Honour commented that this present offence was an obvious reversion to "your previous form".

16 In my opinion, the trial Judge correctly described the offence as aggravated by the fact that there was not simply the one punch but a further blow with the bar stool while the victim was in a dazed condition. The incident was described by the Judge as "a particularly ugly piece of gratuitous violence". His Honour commented correctly that the applicant had displayed no remorse and that there was little by way of mitigation except that the offence was not premeditated and the injuries were not as serious as they might have been.

17 Because of the serious nature of the offence, including the use of the bar stool, his Honour concluded that the demands of particular and general deterrence dictated that the only appropriate penalty was a term of imprisonment to be served immediately. His Honour noted that the maximum penalty was 5 years imprisonment before imposing the sentence of 2 years imprisonment. That punishment was, in my opinion, well merited indeed, perhaps somewhat lenient. I can see no error in the approach taken by the sentencing Judge and I would refuse the application for leave to appeal.

18 MILLER J: The appellant was convicted in the District Court at Perth of the offence of assault occasioning bodily harm. He was sentenced to 2 years' imprisonment with an order for eligibility for parole.

19 The appellant appeals against both conviction and sentence, but the application for leave to appeal against sentence was only faintly argued. The ground of appeal against conviction is the single ground that the learned trial Judge failed to give a fair and balanced direction to the jury in relation to evidence of identification.

20 To understand this ground of appeal it is necessary to set out how the Crown case was presented. The assault was alleged to have occurred at the Globe Nightclub in Perth some time after midnight on 14 October 1999. The victim of the assault was a man named Craig Gurney, who was out with friends at the nightclub on that night. It appears that he either brushed against or bumped somebody within the nightclub. The person concerned spun him around, punched him in the face and then hit him across the head with a bar stool. He sustained a black eye, bruising and a cut across the bridge of the nose.

21 At trial the issue for the jury was identification of the offender. The Crown called Gurney, who gave evidence that he only saw his assailant very briefly. He identified him as having dark hair and said that he was not a person whom he knew or had seen before. Apart from this he gave no other identification. Stephen Edward Smith was called to give evidence. He had been at the nightclub with Gurney and other friends and saw the consequence of the assault but did not witness it. He was present with two women, Jennifer Moore and Renee Dewar, when they did a lap of the nightclub after the incident and Ms Moore identified Gurney's assailant. Later, he identified on a police photoboard the person whom Ms Moore had identified within the nightclub.

22 Jennifer Jane Moore gave evidence that she had been present at the nightclub with Gurney, Smith, Ms Dewar, Nicola Cooper and a girl named Cath. At about 3am she had just come off the dance floor and was standing a couple of metres from Gurney and Ms Cooper when she saw movement and observed Gurney sitting on the floor and looking as if he was trying to stand up. He had blood around him. He was only about two metres away at the time, but Ms Moore was unable to say how he came to be sitting on the floor. She kept looking at him but somebody blocked her view and she lost sight of Gurney on the floor. She then saw a man standing over him with a metal bar stool in his hand. He swung it downwards and although she did not see any contact between the stool and Gurney (or any other person) she saw him swing it back past his right hand side and place it where it had been on the floor.

23 Ms Moore identified the man with the bar stool as being about 5 foot 7 - 5 foot 8 inches in height, stocky and muscular. He had dark wavy hair which came down to his neck or collar. He had a thick silver chain around his neck, a silver belt buckle and was wearing a tight black t-shirt and black pants. She had never seen him before.

24 According to Ms Moore, after the incident the man had faced her and grinned at her. She thereafter gave attention to Gurney, but she saw two males come up to the man whom she had observed with the bar stool. She saw that man and the two others then walk away towards the direction of the front of the club. Ms Moore gave assistance to Gurney and then later went back into the nightclub with Smith and Ms Cooper. She did so because she knew what the man with the stool looked like and she wanted to identify him for bouncers and Ms Smith. The three persons walked around the club and Ms Moore saw the man who had been holding the bar stool at the bar drinking with friends. It was about 15 or 20 minutes after the incident. She pointed this man out to Mr Smith and shortly afterwards left the club. About a week later she was shown a photoboard and picked out the person who had been holding the bar stool. That person was the appellant.

25 Nicola Ann Cooper gave evidence that she had been at the club with the persons I have mentioned. She was standing on the dance floor talking to somebody when she felt a blow to her right side. She turned around and saw Gurney behind her. She described him as having gone past her back. She observed him bending over and giving the appearance of having been hit. She saw blood on the floor and she went to Gurney to see if he was alright. She then stood up and observed somebody standing to the right of her. He had a stool in his hand. She saw this person hit Gurney with it. She was unable to describe the man and did not recognise him. She left the immediate scene because she did not want to be involved in any incident. Later, she went outside the club and found Gurney and Smith. She did not go into the nightclub when Ms Moore went in to see if she could identify Gurney's assailant.

26 Ms Cooper was shown a photoboard at the police station some time after the incident. She was unable to identify Gurney's assailant on that board. Her evidence, elicited in cross-examination by counsel for the appellant, went a little further. She said:

"In fact if we can go a step further you actually said to the police when you endeavoured to pick out someone you were trying, weren't you? --- Yes.

You would have liked to help if you could. Yes? --- Yes, sorry.

But you actually said when you looked at the photos, you said, 'He's not there,' didn't you? --- Yes.

And you honestly believed that? --- Yes.

It wasn't simply a case of saying, 'Well, I've looked at all those photos and I'm not sure or I just can't work it out' you were saying, 'I looked at all those' - you may not have used these exact words but what you were effectively meaning was, 'I looked at all those photos and the fellow who hit Craig with the stool isn't there'? --- Yes.

You were confident about that when you said it, otherwise you wouldn't have said it. Correct? --- Yes."

The fact that Ms Cooper was able to say that Gurney's assailant was not on the photoboard was somewhat at odds with the following passage in her evidence:

"You saw his face? The man with the stool? Eventually you saw his face? --- Yeah, I think I did at the time, I just don't remember.

That's all right. You saw it at the time? --- Yes.

Did you see his face when he had the stool in his hands before he hit him with it? --- Yes."

27 In the end, however, Ms Cooper's evidence was that whoever it was that assaulted Gurney, he was not on the police photoboard which was shown to her. On the other hand, Ms Jennifer Moore had identified the assailant on that very same board. Clearly this created a fundamental conflict in the Crown case. On the one hand Ms Moore had made a positive identification of the appellant as Gurney's assailant, but on the other, Ms Cooper had made a negative identification in the sense that she was quite clear that the assailant was not on the photoboard.

28 The only other witness called for the Crown was a Constable Daymond, who gave evidence in relation to the procedure adopted when the photoboard was shown to the various witnesses. It transpired that the photograph of the appellant affixed to the photoboard was more than 10 years old. At the conclusion of the Crown case the accused elected not to give evidence.

29 The learned trial Judge gave impeccable directions to the jury in almost every respect. This was particularly so in relation to the way in which evidence of identification is to be treated by a jury. In all respects his Honour's charge followed the directions given to trial Judges in Domican v R [1992] HCA 13; (1992) 173 CLR 555. Specifically, in relation to Ms Moore, his Honour gave both general and specific warnings concerning the danger of convicting on identification evidence. The jury was warned of the dangers of convicting on identification evidence where its reliability is in dispute and they were instructed as to all relevant factors which might affect their consideration of the identification evidence in the circumstances of this case. The jury's attention was drawn to weaknesses in the identification evidence and the learned Judge truly isolated and identified matters of significance which might reasonably be regarded by the jury as undermining the reliability of the identification evidence: Domican v R (supra) per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 561 - 562.

30 The learned trial Judge also directed the jury in clear terms in relation to the presumption of innocence and the need for the jury to be satisfied beyond reasonable doubt that every element of the charge had been proven before the accused could be convicted. The charge was in standard terms and included the following passage:

"Before you can return a true verdict of guilty against the accused, the prosecution must satisfy you beyond reasonable doubt that he is indeed guilty. You must be satisfied beyond reasonable doubt that the prosecution has proven each and every one of the elements which go to make up the charge. The presumption of innocence also means that if the prosecution fails to bring sufficient evidence or if it leaves you with a reasonable doubt in your mind as to the guilt of the accused, then the only true verdict is not guilty."

"Now, you have heard all of the evidence and it's for you to decide which of it you accept and which of it you reject. You might accept all of a witness's evidence. You might reject all of a witness's evidence. You might accept parts of it and not the rest. It's entirely a matter for you, but I remind you again that the onus is on the prosecution to prove guilt. There is no onus on the accused in any way to prove his innocence. He's still entitled to be acquitted unless every element of the charge has been proved to your satisfaction beyond reasonable doubt.

Both of these passages were relevant to the way in which the jury was to treat the conflict between the evidence of Ms Moore and that of Ms Cooper.

31 The learned trial Judge made it quite clear to the jury that the Crown case depended entirely upon the evidence of Ms Moore on the issue of identification. As he put it, she was the only witness who had identified the accused person as the person who had committed the assault. His Honour pointed out that the critical identification was that made by Ms Moore in the early hours of the morning within the nightclub and no other. He then went on to give the jury the requisite warning in relation to the issue of identification. After pointing out that cases involving identification must always be approached with great caution, his Honour said:

"For that reason, I must warn you that it would be dangerous for you to convict the accused on the basis of Jennifer Moore's evidence unless, after scrutinising with great care, you are satisfied beyond reasonable doubt that her evidence of identification is truthful, accurate and correct. In other words, before you can find the accused guilty, you need to exclude the possibility that Jennifer Moore might have been mistaken when identifying the accused as the offender some 20 minutes after the alleged assault."

32 One of the criticisms raised by counsel for the appellant about this passage is that his Honour failed at the same time to make reference to the evidence of Ms Cooper. That is, his Honour did not indicate to the jury at that point that before the jury could be satisfied beyond reasonable doubt of the truthfulness and accuracy of the evidence of Ms Moore, they would have to exclude the evidence of Ms Cooper.

33 After giving the requisite directions as to the weaknesses in the identification evidence of Ms Moore (both in general and specific terms) his Honour did turn to the evidence of Ms Cooper. However, counsel for the appellant complains that this was done only in the context of Ms Moore's evidence and by way of instructing the jury that the evidence of Ms Cooper was relevant to the question whether they could safely accept the evidence of Ms Moore. The relevant passages (which followed the identification by the learned trial Judge of the specific weaknesses in the identification evidence) were as follows:

"Now also, most importantly, you have the contradictory evidence from Nicola Cooper and I'm going to read you her evidence, that's at page 135 and following of the ... (reference was made by his Honour to the passages I have already summarised) ...

So that was her evidence-in-chief and also she gave evidence on 28 October, which is a fortnight after the assault. She was asked to look at the photoboard and it was put to her in cross-examination, she agreed that when she looked at the photos she said to the detective, 'He's not there' and she honestly believed that. So her evidence is to the effect that the man she saw with the bar stool wasn't in the photoboard. Now, of course, the defence point to that as being very significant evidence and you must carefully consider that contradictory evidence from Nicola Cooper in deciding whether you can safely accept Jennifer Moore's evidence when she says that the accused was the person who was wielding this bar stool."

There was only one other reference made by the learned trial Judge to the evidence of Ms Cooper. These references were made towards the end of the charge to the jury.

34 Counsel for the appellant contended for the following reasons that the directions given in relation to the conflicts in the evidence of Ms Moore and Ms Cooper were unbalanced:

(1) the learned trial Judge effectively elevated the evidence of Ms Moore to a position such that the mind of the jury was drawn away from the contradictory evidence of Ms Cooper;

(2) the learned trial Judge dealt with the evidence of Ms Cooper only in the context of assessing the evidence of the witness Moore;

(3) the jury should have been told that before they could find the appellant guilty, they had to exclude beyond reasonable doubt the evidence of Ms Cooper;

(4) the learned trial Judge should have first directed the jury to consider the evidence of Ms Cooper and if that evidence was accepted or could not be excluded beyond reasonable doubt, that would effectively be the end of their deliberations. They could not then go on to consider the evidence of Ms Moore.

(5) the jury should then have been directed that if they were not satisfied that the evidence of Ms Cooper should be accepted or could not be excluded beyond reasonable doubt, only then could they go on and consider the evidence of Ms Moore;

(6) one of the matters which ought to have been incorporated in the specific warnings isolating and identifying matters of significance which might undermine the reliability of Ms Moore's evidence, was the evidence of Ms Cooper.

35 It was rightly conceded by counsel for the appellant that no warning attaches to evidence of a "negative identification" such as that given by Ms Cooper. It is the dangers inherent in positive identifications that are addressed in Domican v R. They do not attach to an assertion that a photograph of the offender is not included in a photoboard. This is made clear in Festa v R [2001] HCA 72; (2001) 76 ALJR 291 at [54].

36 Reliance was placed by counsel for the appellant upon the decision of the Court of Criminal Appeal of Victoria in Pollitt v R (1990) 51 A Crim R 227, and in particular the judgment of Cummins J at 240 - 241, where his Honour stressed that in cases in which there might be "negative identification" or identification which exculpates an accused, the jury needs to be instructed that whereas there is no onus of proof upon an accused, it is sufficient in exculpation if upon the evidence adduced, a reasonable possibility exists or arises consistent with the innocence of the accused. The passage is in the following terms:

"The authorities establish that the warning to be given to a jury on matters of identification should be fashioned according to the circumstances of the case; vide Clune [1982] VicRp 1; [1982] VR 1 at 6; [1982] VicRp 1; (1981) 5 A Crim R 246 at 252, per Crockett JJ and Burchielli [1981] VicRp 61; [1981] VR 611; (1980) 2 A Crim R 352 and the authorities cited at 616-619; 357-360, per Young CJ and McInerney J. It is clear that the requirement to give an appropriate warning has always had as its primary aim the avoidance of wrong convictions; vide Davies and Cody [1937] HCA 27; (1937) 57 CLR 170; Alexander [1981] HCA 17; (1981) 145 CLR 395; Boardman [1969] VicRp 17; [1969] VR 151; Burchielli; Turnbull [1977] QB 224 and Arthurs v A-G (Northern Ireland) (1970) 55 Cr App R 161. That primary aim is one of real significance in the achievement of criminal justice and is not to be undermined or diminished. But I consider it is the nature, not the course or use, of identification evidence which involves the need for instruction. That is because a jury has to decide on evidence. Jurors are sworn to give a true verdict according to evidence. The focus of the trial process is the assessment of evidence according to principle. The purpose of the criminal trial is to convict those who on evidence have been proved guilty, and to acquit those who have not. On identification evidence a jury needs instruction as to its seductive character, not only its dangerous potential.

That character inheres in identification evidence regardless of which party adduces it or which party relies upon it. I consider that the relevance of the source or use of identification evidence goes not to the giving of instruction but rather to the differential standard to be applied in considering that evidence. If relied upon in proof of guilt, the standard to be applied is proof beyond reasonable doubt; whereas, there being no onus of proof upon an accused, it is sufficient in exculpation if upon the evidence adduced a reasonable possibility exists or arises consistent with the innocence of the accused."

37 In Pollitt v R there was evidence that a key witness (the wife of the deceased) had identified her husband's assassin as "looking like" a man named Darby who was an entirely different person from the person charged with her husband's murder. It was, in that sense, "negative identification". At trial the defence relied strongly upon the fact that the deceased's wife had identified the man Darby as the killer and not the person charged with the offence. The trial Judge directed the jury in relation to the dangers inherent in visual identification, but the charge did not expressly explain to the jury how mistaken identification evidence might be used to establish a reasonable doubt. The Court of Criminal Appeal considered that the issue of identification/misidentification evidence had been adequately dealt with by counsel in their final addresses and the issue clearly put before the jury, thus absolving the trial Judge from any further direction in relation to how the evidence might be used.

38 The fact remains, however, that one can draw the proposition from the case authority that where there is evidence of negative identification, a jury should be instructed as to the differential standard of proof to be applied in considering that evidence. As Cummins J put it, there being no onus of proof upon an accused person, it is sufficient in exculpation if upon the evidence of negative identification adduced, a reasonable possibility exists or arises consistent with the innocence of the accused.

39 In my view, the learned trial Judge in the present case overlooked the need to stress to the jury that there was negative identification evidence in the form of Ms Cooper's testimony. Instead, his Honour referred to the evidence of Ms Cooper as contradictory of that of Ms Moore and evidence which must carefully be considered in deciding whether or not the evidence of Ms Moore could be safely accepted.

40 By reason of the way in which the Crown case was presented, it was, in my view, necessary for his Honour to remind the jury that whilst the only direct evidence of positive identification was that of Ms Moore, there was evidence of negative identification from Ms Cooper. If the jury accepted the evidence of Ms Cooper or if they could not exclude it beyond reasonable doubt at the end of their deliberations, they would clearly be unable to convict the accused person. If, however, the jury was able to exclude beyond reasonable doubt the evidence of Ms Cooper, it would be relevant then to consider carefully the evidence of Ms Moore, taking account of both the general and specific warnings in relation to it.

41 Further, one of the specific warnings in relation to identification would need to incorporate the fact that Ms Cooper had made a negative identification. In the passage from his Honour's charge, which I have quoted, his Honour did not go that far. Rather than treat the evidence of Ms Cooper in the context of the specific warnings as to weaknesses in the identification evidence of Ms Moore, the evidence was referred to only in the context of considering the credibility of Ms Moore's testimony, both in terms of its truthfulness and accuracy.

42 This was an unusual case. It would not normally be expected that the Crown prosecutor would call a witness giving negative identification and then call a witness giving positive identification. However, one can see why Ms Cooper was called to give evidence. She was the only person who actually saw the assailant hit Gurney over the head with the stool. Whether or not her evidence was vital is a matter of opinion. There was evidence from Gurney that he was hit over the head with the stool and Ms Moore saw a man with a stool raised in his arms. There may therefore have been a clear inference which could have been drawn beyond reasonable doubt that the person holding the stool was the person who hit Gurney. Be that as it may, however, the Crown chose to call Ms Cooper, presumably to identify by direct evidence the fact that a person with a stool had struck Gurney with it. By calling her, the Crown opened up the issue of her negative identification. That having occurred, it was, in my view, necessary that the learned trial Judge direct the jury in the way I have detailed above.

43 In my view, the failure on the part of the learned trial Judge to give this direction deprived the appellant of the chance of an acquittal and it is not a case in which there is room for the application of the proviso to s 689(1) of the Criminal Code: see Festa v R (supra) per McHugh J at [110] et seq. I would allow the appeal against conviction, set aside the verdict of conviction and remit the matter to the District Court for retrial. It follows that it is unnecessary to consider the application for leave to appeal against sentence.

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