OWAITI-ZADEH -v- GILL [2012] WASC 465 (30 November 2012)

4 The man who had been banging on the glass then turned towards the group and spoke to them in a foreign language, after which the gathering fell silent. The same man then turned towards Mr Maynor and said words to the following effect:

Get out of the officer station now or we're going to kill you. You arrested me yesterday, beat me up and threw me into the Red compound and said 'Welcome to your new home'.

5 The prosecution case was that the man who made this threat was the appellant. Mr Maynor did not know the man's name and could only provide a general description of him.

6 Mr Maynor then made an emergency call for assistance. He also called out for assistance from another client service officer who was in the nearby officer station at White 2 compound. The other officer, Mr Mohsin Hago, walked into the area where the detainees were and saw a large group of detainees at the officer station window in White 1 compound. He saw that the two men who were closest to the window were yelling aggressively at Mr Maynor. He recognised these two men as being the appellant and another man named Qasem.

7 Mr Hago heard one of the two men closest to the window say words to the effect that if Mr Maynor did not leave they would kill him. Mr Hago could not be sure which of the two men made that threat. The threat heard by Mr Hago was not the subject of the charge. Mr Hago was not present when the earlier threat, which was the subject of the charge, was made to Mr Maynor.

8 The issue at trial was whether the appellant was the person who made the relevant threat. It was not disputed that Mr Maynor was a Commonwealth public official. Nor was it disputed that a threat was made by someone in the larger group of people. What was disputed was whether the evidence was sufficient to identify the appellant as the person who made the relevant threat.

9 Mr Maynor was unable to positively identify the appellant and he was the only prosecution witness present at the relevant time. The prosecution case depended upon the drawing of an inference from the available circumstantial evidence. That circumstantial evidence included the description provided by Mr Maynor of the person who he said made the threat and the evidence of Mr Hago. The principal question at the trial was whether, on that evidence, the possibility that another person had made the threat could be excluded.

1. His Honour erred in law by failing to warn himself appropriately as to the dangers of convicting on evidence of identification, the reliability of which was disputed.
2. His Honour erred in fact in that; having regard to the identification evidence, the verdict of guilty was unreasonable and cannot be supported by the evidence.

11 On the hearing of the appeal the appellant sought leave to add a third ground. That addition was not opposed. The third ground is as follows:

1. His Honour erred by taking into account the fact that the Appellant had not given evidence in using that fact to assist in reaching factual conclusions about this matter. Such use of the fact that the Appellant had not given evidence was an impermissible reversal of the onus of proof.

(a) His Honour noted '... so I have in effect no evidence at all as to any possible alternative version of the events that evening in relation to Mr Owalti-Zadeh (sic)' (D3); and

(b) His Honour commented 'I'm not troubled by that. He was there. He has elected not to give evidence, so the only evidence is that he was there.' (T88).

12 Mr Maynor commenced working for Serco in September 2010. His first roster at the detention centre commenced in October 2010 when he was stationed at the Blue 1 compound. Work periods were ten weeks on, four weeks off. He commenced his second ten week rotation in early February 2011. On his second rotation he was rostered at White 1 compound.

13 On Monday, 14 March 2011 Mr Maynor was rostered on night shift at White 1 compound. He commenced his shift between 8.00 pm and 10.00 pm. When he arrived at the compound he opened the officer station door and turned the lights on. He said he examined the occurrence log and was about to make himself a coffee when he heard banging all around the officer's station (ts 26/03/12, page 19).

14 Mr Maynor said that he turned around to see a group of very angry people around the officer station. He said that one man stood out and appeared to try to take control of the crowd. He said that the man then faced him and said, 'Get out, or we're going to kill you. You arrested me yesterday, beat me up and threw me into the Red compound'. He said that the person who said this was standing in front of the officer's desk on the other side of the glass and that his attention was focused on the man. He said that this man, as well as a number of others in the group of about 20, had been banging on the windows (ts 26/03/12, pages 19 20).

15 Mr Maynor said he responded to the threat by saying to the man, 'Just calm down'. He indicated that he made a movement with his hands which was intended to reinforce his request for calm.

16 Mr Maynor was asked whether he had seen the man who made the threat before. He said that he had seen the man the day before in the Red compound. The Red compound is a higher security area at the detention centre.

17 On the previous day Mr Maynor had been asked to do a welfare check on detainees being held at the Red compound. This involved looking through a small window of the door to each room in the Red compound. He said that the man he was referring to was in one room and had tried to get the attention of one of the other officers. Mr Maynor said that an officer had tried to calm the man down because 'he was in a frenzy trying to break some glass'. Mr Maynor said that he did not speak to the man at that time and did not know his 'unique boat number'. This is a number allocated to each detainee and which refers to the boat on which that person arrived in Australia. He also did not know the man's name. Mr Maynor said he had also seen the man on various occasions in the White 2 compound talking to other people.

18 Mr Maynor was asked to give a description of the man who made the threat. He said that the man was light skinned with long curly hair and between five foot four inches and five foot six inches tall. He said the man's hair was shorter at the sides and long at the back, reaching to the shoulders. Asked to describe the man's build, he said: 'He's not big, he's not skinny, but he's healthy and appears strong'. He estimated the man's age to be between 19 and 24. He said that he had never spoken to the man either before or after this incident (ts 26/03/12, pages 25 26).

19 After the threat was made Mr Maynor used his radio to call a 'Code Black'. That is the code indicating that an officer needs assistance. He said he then walked out of his officer station door to the sterile area between White 1 and White 2 compounds and signalled to Mr Hago who was in the White 2 officer station to come over towards him. He told Mr Hago that there was a group of detainees in White 1 who did not seem happy and asked Mr Hago if he could come to speak to them.

20 Mr Maynor then waited in the sterile area while Mr Hago went to the White 1 compound. He could not see Mr Hago but could hear him talking to the detainees. Mr Maynor was then removed from the compound by a response team. Thereafter he was relocated to a different compound and did not return to work at White 1 until the end of his rotation.

21 Mr Maynor said that he gave a description of the man who had threatened him to Mr Hago on the night the threat was made. Mr Hago had told him that the boat number of the person fitting the description Mr Maynor had given was PUL072. It was not disputed that the appellant's boat number was PUL072.

22 Mr Maynor was asked whether he saw the man who made the threat after 14 March 2011. He said that between three days to a week later a welfare check of all of the detainees at the detention centre was conducted. He said that he was at the White 2 compound for this purpose and that a number of detainees were lined up awaiting directions. He said he saw the man again at that time from a distance. The man was wearing an identification tag that included his boat number.

23 It was not clear in evidenceinchief whether Mr Maynor was saying that the man that he saw in White 2 compound was recognised by him as being the same man who had made the threat or simply that he recognised the boat number as being that given to him by Mr Hago.

24 In crossexamination, Mr Maynor confirmed that whilst he gave a description to Mr Hago of the man who made the threat he never pointed that man out. Nor did he see who Mr Hago spoke to when he went into White 1 compound. There was no closecircuit television footage of the incident and no formal identification process had ever been undertaken (ts 26/03/12, page 38).

25 It was put to Mr Maynor that the person he saw several days after the incident and whose identification card and boat number he saw was not the same person who threatened him on the night of 14 March. He said that he was 100% sure it was the same person (ts 26/03/12, page 44).

26 In crossexamination Mr Maynor agreed that the group of 20 detainees who had surrounded the officer station on the evening of 14 March were 'in a pretty frenzied sort of state'. Whilst he said that one person stood out, he agreed that a number of others were also yelling threats and being aggressive towards him. He agreed that the description that he gave could have fitted a number of people in the group (ts 26/03/12, page 46).

27 Mr Hago is also a Serco client service officer. His first language is Arabic. Between December 2010 and March 2011 he worked principally in the White 1 and White 2 compounds. On the evening of 14 March 2011 he was on duty in the officer station of White 2 compound.

28 Mr Hago said that he recalled Mr Maynor coming to the White 2 officer station on the evening of 14 March and asking for help. Mr Maynor told him that there was a large group of people outside his window. Mr Hago then went to the White 1 officer station and saw the group through the glass. He estimated that there were about 15 to 20 people. He then said he used his swipe card to enter the compound. He felt safe to do so because he speaks Arabic and has a very good relationship with most of the detainees. He said that when he entered the compound he believed Mr Maynor was inside the White 1 officer station (ts 26/03/12, pages 58 59).

29 Mr Hago said that the large group of people outside the window were shouting aggressively towards the officer station. He said that at the front of the group were two men who he recognised. He referred to them by their boat numbers UNA047 and PUL072. He said that these two people were behaving aggressively and he heard one of them saying that Mr Maynor should leave otherwise they would kill him. However, he said he could not say which of the two men it was who said this (ts 26/03/12, page 60).

30 Mr Hago said that the two men then approached him and asked him to take Mr Maynor away. He said that it was PUL072 who specifically asked for this to be done. He said that they were speaking in Arabic at the time. He said that PUL072 said that Mr Maynor needed to go because he had said something sarcastic the previous night in Red compound (ts 26/03/12, page 61).

31 Mr Hago said that he would take Mr Maynor away if they guaranteed that noone would touch him. He said that both men agreed to this. Mr Hago said that he then returned to White 1 officer station and walked Mr Maynor back to the main office.

32 Mr Hago was asked to describe UNA047, being the other man who he spoke to on the night. Mr Hago said that he also knew this man as Qasem. He said that the man was tall, with short hair and in his 30s. Mr Hago also knew PUL072 by the name Hussein and said that Qasem was far taller than Hussein.

33 Mr Hago was asked whether he had a conversation with Mr Maynor while they were still in the area of White 1 compound about PUL072. He denied any such conversation (ts 26/03/12, page 64).

34 In crossexamination Mr Hago agreed that whilst the group was initially 15 to 20 people when he first saw it, it was progressively getting larger as more people came up. He also agreed that the majority of people were of Arabic background and appearance.

35 Mr Aiolupotea was the client services manager at the detention centre at the relevant time. He was amongst the team that responded to the Code Black on the evening of 14 March 2011. He said that when he arrived there were a group of detainees congregated outside the White 1 officer station. He was asked whether he recalled any particular detainee and he referred to UNA047. He had been involved in some other incidents with that detainee in the days prior to 14 March 2011. He said that UNA047 had also been placed in Red compound on the evening of Sunday, 13 March and he had been present at that compound when UNA047 had been yelling abuse at another officer (ts 26/03/12, page 76).

36 Mr Atkins was the Centre Manager of the detention centre in March 2011. He said that on 13 March 2011 approximately 18 to 20 detainees were placed in the Red compound. He said that on that evening there was an incident where a number of staff were trapped inside the Red compound and had to be evacuated.

37 Mr Atkins said that there were between 160 and 190 CCTV cameras at the detention centre. There is a control room where these cameras are monitored 24 hours a day, seven days a week. He said that the cameras record automatically. The system is intended to maintain footage for a period of seven days. However, at the time of this incident there were some failings with the system. As a result some of the footage was not maintained. Efforts were made to obtain footage of the incident at White 1 compound on 14 March 2011, but they were unsuccessful (ts 26/03/12, pages 80 81).

38 The appellant elected not to give or call any evidence.

39 In closing submissions by the prosecutor the following was said:

It is accepted that there is no direct evidence by Mr Maynor. The prosecution puts its case on this basis: that the evidence of Hago lends real, circumstantial support to his presence and involvement in the threat, albeit Mr Maynor has learnt of the accused's boat number by what I'll refer to as hearsay or inappropriate sources, in terms of identification. He's nevertheless himself, in the following days, recognised him and identified his boat number. Having said that - - -

HIS HONOUR: You would say that the circumstantial case is bolstered by his evidence that there were essentially two protagonists at the window, at the glass, and then Hago, who comes in very shortly after, says there are two who seem to be leading the pack.

HILLS-WRIGHT, MR: Mr Maynor doesn't speak to two protagonists. His focus is on the person making the threat and his focus seemed to be very squarely on that person. He wasn't able to give much about anything.

HIS HONOUR: Yes, I need to correct myself. That is right because he was not, in fact, focussed on, when pressed, numbers of others and ethnicity and all of the other things Mr Freitag was, sort of, trying to extract.

HILLS-WRIGHT, MR: That is right. His focus was on the person making the threat.

HIS HONOUR: That person, consistent with the prosecution case, is one of the two people that then Hago is dealing with in the matter of a minute, or a very short period after the allegation of the threat (ts 26/03/12, page 87).

HILLS-WRIGHT, MR: On identity. We do say that, your Honour, on the evidence, can accept Hago's evidence as being reliable on the subject of recognition; that somebody who is Arabic speaker in White 2 compound, who says that he prefers to work within the compound itself closer with the detainees, he knows PUL072's name, who is able to give him a description, generally consistent with the accused's appearance, establishes beyond reasonable doubt the accused was there.

Your Honour will recall that the thrust of the cross-examination was to the effect, not that he was there but didn't utter the words, or he was in the back of the gathering, but that he was not there, that he was not part of this group whatsoever. Your Honour then would be in the position whereby you would be discounting Hago's evidence and also Maynor's evidence of the later recognition of the person - - -

HIS HONOUR: I am not troubled by that. He was there. He has elected not to give evidence, so the only evidence is that he was there (ts 26//03/12, page 88).

41 The magistrate reserved his decision. He delivered his decision two days later on 28 March 2012.

42 The magistrate identified that the only issue for him to determine was whether it was the appellant who was at the officer's window and made the threat to Mr Maynor. His Honour noted that the appellant had elected not to give evidence and that there was no record of interview. He then said, 'So I have in effect no evidence at all as to any possible alternate version of the events of that evening in respect of Mr OwaitiZadeh'.

43 The magistrate summarised the evidence of Mr Maynor and Mr Hago. He then stated:

What I conclude on the evidence is that whilst Officer Mayna (sic) does do or could not on the night of the 14th identify the person threatening him through the security glass, the circumstantial evidence provided by Officer Hago is compelling and satisfies me beyond a reasonable doubt that it was the accused, Hassein Owalti-Zadeh who had made the threat.

The corroborative evidence is as follows. Hago is on the scene within a minute or so. He knows Hussein. He describes Hussein and Qasem as the two main protagonists out the front of this unhappy group. He says one, not sure which or who threatens Hago in the language described by Hago. Both are acting in an aggressive manner, consistent with the allegation that one had or was threatening Maya (sic). Couple this evidence from Hago with Mayna's (sic) evidence of a short man making the threat, the evidence in my view is compelling against the accused, Hussein.

I'm cognisant of the caution I should apply to my deliberation as to the recognition days later by Mayna (sic) of the accused and his name tag, but from the evidence I've just referred to, I'm am satisfied on the sole issue of identification and that the prosecution has proved beyond a reasonable doubt that Hussein, the accused made the threat. I also make reference to some, what I would describe as minor discrepancies between the evidence of Hago and Officer Mayna (sic) concerning what might have been said as Mayna (sic) was shown out of the secure area.

But given my findings as to what I regard as the compelling circumstantial evidence, the minor discrepancies between the witnesses don't detract (1) from their credibility and (2) from the compelling nature of their corroborative evidence, that in my view supports my finding of guilt. Accordingly, I find Hussein guilty and record a conviction under the Commonwealth Criminal Code (ts 28/03/12, pages 4 - 5).

44 The dangers that may be inherent in identification evidence have been frequently referred to. Those dangers require that where identification evidence is a significant part of the prosecution case a judge in a jury trial must warn of the dangers of convicting on such evidence where its reliability is disputed. In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 it was held that the attention of the jury should be drawn to any weaknesses in the identification evidence. This should include isolating and identifying any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

45 There is a distinction between the recognition and identification evidence. Recognition is where a witness recognises an offender as a person with whom they already have some familiarity. Recognition cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the time of the alleged crime. The applicable law is referred to in Mills v The State of Western Australia [2008] WASCA 219 [79] [81].

46 Section 31 of the Magistrates Court Act 2004 (WA) requires a magistrate to identify the law that has applied in coming to a decision. This may not necessitate a magistrate giving him or herself directions in the same form as would a judge to a jury. However, it does require that there be acknowledgement of the material legal principles arising in the case at hand. In this case, that required not only a reference to the fact that the critical issue for determination was identification but a reference to the dangers of convicting on disputed identification evidence and the need to carefully consider that evidence and weaknesses inherent in it.

47 Whilst ground 1 asserts that the magistrate erred in law by failing to warn himself appropriately of the dangers of convicting on disputed identification evidence, it became clear at the hearing that the essential error was said to be the way in which the magistrate dealt with the circumstantial evidence. This was referred to by counsel for the appellant as the 'disconnect' between the evidence of Mr Maynor and that of Mr Hago. That is to say, Mr Hago may well have identified the appellant as being one of the men seen by him in White 1 but there was a real possibility that a different man had made the earlier threat.

48 This was not a case where any prosecution witness was able to give direct identification evidence that the appellant was the person who made the relevant threat. Mr Maynor had no contact with the appellant prior to 14 March 2011. Whilst he said that the person who made the threat was the same man he had seen briefly in the Red compound the previous day, there was no evidence that the man seen by Mr Maynor on the previous day in the Red compound was in fact the appellant. There was no formal identification process either by way of lineup or photo board nor was there any close circuit television footage which could assist in establishing the identity of the man who made the threat.

49 Whilst Mr Maynor gave evidence that he saw the appellant some days later at the welfare check and identified him as the person who made the threat, it appears to have been accepted by the prosecution that that evidence was tainted. The man in the lineup was the appellant, but by the time Mr Maynor saw him he had been provided with the boat number of the man that Mr Hago believed had made the threat. Mr Maynor said that he had been given that number on the night of 14 March and that when he had seen the appellant in the lineup he had looked at his identification card bearing the boat number. It was unclear from Mr Maynor's evidence whether his identification of the appellant at the welfare check was based upon the information he received from Mr Hago or his own assessment of the appearance of the appellant or partly on both. In any event, the evidence was clearly infected by that course of events.

50 In his reasons the magistrate said that he was cognisant of the caution he should apply to Mr Maynor's evidence regarding his recognition of the appellant in the welfare line up some days later. It appears that the magistrate placed relatively little weight on that part of the evidence. He was right, in my view, in taking that course. The possibility of 'transference' or 'displacement' was significant: Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395. In any event, as I have pointed out, it was not clear from Mr Maynor's evidence to what extent he relied upon the boat number on the appellant's identification tag when he later identified him.

51 In these circumstances, the only significant evidence given by Mr Maynor as to identification was the description and his account of the words of the threat that he said was made. As regards the description, Mr Maynor accepted in his evidence that that description could have referred to others in the group. It was certainly a description of a relatively general kind. He referred to no distinguishing marks or features. The possibility that others in the group of people surrounding the officer station could also have fitted that description could not be discounted.

52 As regards the words of the threat, the evidence was that Mr Maynor had not been responsible for arresting any of the detainees on the day before or placing any of them in the cells. The only relevant evidence, which came from Mr Maynor, was that his involvement at the Red compound had been confined to doing welfare checks by looking at detainees through the security windows of the cells. Furthermore, there was no evidence that confirmed whether or not the appellant had been detained in the Red compound on 13 March 2011. In these circumstances, the words of the threat could not assist in identifying the man who made it. The only evidence which took this matter any further was that of Mr Hago who said that the appellant had made a similar claim to him when he attended at the White 1 compound. That was a circumstance of some relevance but its significance was very much diminished by the fact that on the evidence of Mr Atkins somewhere between 18 and 20 detainees had been placed in the Red compound on 13 March 2011. How many of those detainees were also in White 1 compound on the evening of 14 March 2011 is unknown.

53 On analysis it is apparent that the only evidence of any significance as to identity that Mr Maynor could give was the description. He said that he gave that description to Mr Hago on the night of 14 March 2011. Mr Hago did not confirm this in his evidence. This might cast some doubt on when it was that Mr Maynor first described the man who made the threat. The circumstances in which Mr Maynor observed that man must also be taken into account. It would appear that the lighting was good and Mr Maynor was in close proximity to the man. However, the man was seen through glass, for a brief time and in circumstances that appear to have been volatile and frightening. Mr Maynor had worked at the White 1 compound for a relatively brief time. He said that he had not seen the man who made the threat before other than briefly the previous day in the Red compound and talking to others in White 2. This raised a question of the reliability of the description, general though it was.

54 Clearly, as appears to have been accepted, the evidence of Mr Maynor was insufficient to identify the appellant as the offender. However, this being a circumstantial case it was necessary to examine the collected force of the circumstantial evidence: R v Hillier [2007] HCA 13; (2007) 228 CLR 618.

55 The only other evidence which could possibly assist with the identification question was that of Mr Hago. The magistrate placed very significant reliance upon that evidence. Yet it is clear that Mr Hago was not present when the alleged threat was made. How, then, is it possible that Mr Hago's evidence could, as the magistrate said, 'corroborate' that of Mr Maynor?

56 The magistrate said that Mr Hago attended on the scene a very short time after the threat was made. The evidence does not in fact establish how much time elapsed between the threat being made and Mr Hago attending. Mr Hago said that the distance between the White 2 officer station and the White 1 officer station could be walked in a few seconds. However, Mr Maynor described how he got Mr Hago's attention but made no estimation of the time that elapsed. Given the circumstances, particularly the volatile nature of the crowd, there must have been a possibility that those amongst the crowd could have changed their positions between the time that the threat was made and the time that Mr Hago attended, even if the lapse of time was very short.

57 It would seem that Mr Hago drew a conclusion that the appellant was the person who had made the threat to Mr Maynor. This appears to have been based upon his own observations when he arrived in the compound and, possibly, the general description that Mr Maynor said he had given to Mr Hago (though Mr Hago gave no evidence in that regard). Given that Mr Hago was not present at the time the relevant threat was made, his opinion of who it was who made it was irrelevant. It appears, however, to have influenced Mr Maynor's subsequent identification of the appellant in the welfare line. To the extent that Mr Hago relied upon the description given to him by Mr Maynor, his evidence could be of no greater weight than that of Mr Maynor.

58 Mr Hago's evidence is only relevant to the question of identification if his observations of the appellant and UNA047 reveal conduct and positioning that is so consistent with the conduct of the man who made the relevant threat as to enable a conclusion to be drawn that the appellant was that man. There are a number of features that could be relied upon in this regard. Firstly, the position of the appellant at the window when seen by Mr Hago. As I have earlier noted, it is unclear exactly how much time elapsed between the threat being made and Mr Hago observing the appellant close to the window. Furthermore, it is clear on the evidence that there were up to 20 people in close proximity who were also behaving aggressively. The possibility that detainees could have changed positions between the time the threat was made and the time Mr Hago attended could not be discounted. Secondly, Mr Hago gave evidence that either the appellant or another man had made verbal threats regarding Mr Maynor. However, this does not assist in identifying the appellant as Mr Hago could not say which of the men had made the threat he heard. In any event, the evidence was that others in the group were banging on the glass, behaving aggressively and making verbal threats. The making of a similar threat does not identify the appellant any more than anyone else in the group. Thirdly, the description given by Mr Maynor was adequate to distinguish the appellant from the other man who was standing near to him when Mr Hago attended. However, this ignores the possibility that whilst the description does not fit UNA047 it may well have been applicable to a number of others in the group. Nor does it take into account the possibility that the description was unreliable.

59 In my view, the evidence of Mr Hago had significant limitations. There was a distinct possibility that whilst Mr Hago had observed the appellant behaving in a threatening manner he was not the man who had made the threat to Mr Maynor. Neither the appellant's position nor behaviour when observed by Mr Hago were sufficiently distinctive in the circumstances as to support a conclusion that the appellant and not one of the others present who were behaving in a similar manner, had made the threat. In my view, the magistrate failed to have regard to this possibility.

60 In describing Mr Hago's evidence as 'corroborative' the magistrate appears to have assumed that the man observed by Mr Hago must have been the same man who made the threat to Mr Maynor. Given the large number of people present who were behaving in a similar manner and the lack of anything distinctive in the appellant's appearance or behaviour, that was an assumption that could not be made.

61 Whilst I have reservations as to the adequacy of the magistrate's references to the legal issues regarding identification evidence, that is not ultimately where the material error lies. The magistrate may well have discounted Mr Maynor's evidence (other than the description) and used appropriate caution with the evidence of Mr Hago. The real issue was whether the man described by Mr Maynor was the same man who was later identified in the compound by Mr Hago as the appellant. This raises the issue dealt with in ground 2.

62 The second ground asserts that the verdict of guilty was unreasonable and cannot be supported having regard to the evidence. The issue particularly relied on is whether the evidence of identification was such as could lead to a finding of guilt.

63 Where a finding of guilt by a jury is challenged on this basis the question for the appeal court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained doubt about the appellant's guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 495 [7] [9] (Mason CJ, Dean, Mawson & Toohey JJ). It is not sufficient to show that there was evidence which, if accepted, would have precluded satisfaction of guilt beyond reasonable doubt. This is because it may well have been open to reject that evidence and accept that which led to a conclusion of guilt.

64 The principles applicable to whether the verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate: The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA; with whom McLure P & Mazza J agreed). See also Harvey v Matthews [1999] WASCA 58 [11]; Rasoolifard v Nicol [2001] WASCA 180 [25]; Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272 [79]; Smart v Albuquerque [2011] WASCA 231 [16] and Lovell v Fulman [2011] WASC 312 [9].

65 Where the findings of the primary court depend to any substantial degree on the credibility of witnesses it must be borne in mind that that court had the opportunity to both see and hear the witnesses give their evidence. However, findings may be disregarded by an appeal court if the primary court 'has failed to use or has palpably misused' its advantage or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable': De Vries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479 [10] (Brennan, Gaudron & McHugh JJ); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [66] (McHugh J) and CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [21] (Kirby J).

66 Grounds of this nature require the appeal court to examine the whole of the evidence, not only to determine its sufficiency but also to weigh the evidence and decide whether or not it gives rise to any reasonable doubt: see M v The Queen and SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. The task is not one of determining what the jury, or in this case the magistrate, did. The task of the appellate court is to make its own assessment of the evidence.

67 However, it is important not to disregard or discount that the tribunal of fact, in this case the magistrate, is the entity entrusted with the primary responsibility for determining guilt or innocence: M v The Queen (493). In order for an appellate court to form the opinion that a verdict of guilty should be set aside because having regard to the evidence it is unreasonable or cannot be supported, it must be satisfied that the verdict of the jury is infected with error. However, error will not be demonstrated merely because the finder of fact made a choice between competing inferences which were open on the evidence: Morgan v The State of Western Australia [2011] WASCA 185 [94] [95] (Pullin JA)

68 For the reasons I have given in relation to ground 1, it is not possible on the evidence to conclude that the man who made the threat was the appellant. The reasonable possibility that the man seen by Mr Hago when he attended at White 1 compound was not the man who made the threat could not be discounted. This left only the evidence of Mr Maynor, which was not sufficient to identify the appellant as the maker of the threat.

69 It would not be sufficient for the appellant to show that an alternative innocent inference was open to the magistrate. Rather, where a ground of this nature is raised in respect of a circumstantial case it is necessary to show that the evidence is incapable of supporting the guilty inference. In my view, that is the case here. When the evidence is closely analysed it is apparent that it cannot support a finding that identification was proved. In these circumstances the verdict was unreasonable and the appeal must be allowed.

70 It is unnecessary to deal with ground 3. However, I should indicate that I would not have granted leave in respect of this ground. In my view, the magistrate did not reverse the onus of proof by noting that there was no evidence from the appellant. The comment by the magistrate in this regard was made in the context that in opening there had been a suggestion that the appellant had not been present in the White 1 compound on the evening of 14 March 2011. There was evidence from Mr Hago to the contrary. The magistrate's comment was merely an acknowledgement of the fact that there was no evidence to suggest that Mr Hago was wrong or that the appellant had been elsewhere on the night. Of course, ultimately, the issue was not whether the appellant was present in the White 1 compound and had been amongst the 20 people crowded around the officer station, but whether he was the man who had made the threat to Mr Maynor.

71 For the reasons I have given leave will be granted in respect of grounds 1 and 2, the appeal will be allowed, the conviction set aside and a verdict of acquittal entered.