Pinta v R [1999] WASCA 125

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1955-56) 94 CLR 621

Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521

Cleland v R [1982] HCA 67; (1982) 151 CLR 1

Crofts v R [1996] HCA 22; (1996) 186 CLR 427

Hammond [1996] QCA 508; (1996) 92 A Crim R 450

Heferen v R [1999] WASCA 81

Loh v R, unreported; CCA SCt of WA; Library No 940508; 2 June 1994

Hinch v Attorney General (Vic) [1987] HCA 56; (1987) 164 CLR 15

Honeybone v R, unreported; CCA SCt of WA; Library No 950224; 10 May 1995

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jarvis v R, unreported; CCA SCt of WA; Library No 930391; 14 June 1993

Little v R, unreported; SCt of WA; Library No 970041; 3 February 1997

Lowndes (1997) 95 A Crim R 516

M v R [1994] HCA 63; (1994) 181 CLR 487

Maric v R (1978) 52 ALJR 631

Miles v The Queen (1997) 17 WAR 518

Mill v R (1988) 166 CLR 59

Morrison v R, unreported; SCt of WA; Library No 970461; 10 September 1997

Nguyen v R; Tran v R [1999] WASCA 54

Pelham (1995) 82 A Crim R 455

Pezzino v R (1997) 92 A Crim R 135

Robbins v R, unreported; CCA SCt of WA; Library No 930136; 11 February 1993

R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998

R v Peterson [1984] WAR 329

R v Tait (1979) 46 FLR 386

R v Turnbull [1977] QB 224

Scott v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999

Shaw v R; R v Shaw (1989) 39 A Crim R 343

Shepard v R [1990] HCA 56; (1990) 170 CLR 573

Stevenson v R, unreported; CCA SCt of WA; Library No 960039; 29 January 1996

Stewart v R [1999] WASCA 7

Thompson v R (1992) 8 WAR 387

Thompson v R, unreported; CCA SCt of WA; Library No 940311; 21 June 1994

Thorburn v R, unreported; CCA SCt of WA; Library No 7866; 27 September 1989

Weng Keong Chan (1989) 38 A Crim R 337

Wieland v R [1982] HCA 67; (1982) 151 CLR 1

1 IPP J: I have read the reasons to be published by Wallwork J. I agree entirely with those reasons and the conclusion to which his Honour has come. I merely wish to add some comments of my own.

2 A trial Judge is required to direct the jury's attention to any weaknesses in identification evidence and to isolate and identify any matter which undermines the reliability of that evidence: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. In my view, the learned trial Judge did not, in a balanced way, so direct the jury.

3 The applicant's principal complaint about the identification evidence was that there had been no identification parade and that he had been identified from a photoboard. He contended that that kind of identification was suspect and gave rise to a reasonable doubt about his guilt. There is ample authority (to which Wallwork J has referred) to the effect that at trial the judge is required to draw the attention of the jury to the consequences of an omission to hold an identification parade. These consequences were referred to in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 and R v Clark, unreported; NSW Ct of Appeal; 31 October 1997. The trial Judge should point out to the jury the risks of reliance on photoboard identification, and tell them that it is open to them to decide that these matters affect the weight to be attached to such an identification: Dawson v The Queen (1990) 2 WAR 458 at 463.

4 In the present case, while the learned trial Judge did refer to the well-known problems that arise in connection with photoboard identification, the context in which he did so tended to minimise those problems. Firstly, he referred to them as being matters raised by the defence, and described them as being arguments advanced by the applicant's counsel. His Honour did not make clear that his directions in this respect had "the authority of the Judge's office behind [them]" Domican v The Queen at 562. Secondly, the learned Judge discussed the difficulties raised by counsel in the course of justifying the photoboard identification and the omission on the part of the police to hold an identification parade, and while explaining, in effect, that the photoboard identification could be regarded as being satisfactory. He thereby, it seems to me, put the authority of his office behind propositions that supported the reliability of the photoboard identification.

5 The learned trial Judge's directions as a whole watered down the force of the applicant's arguments as to identification. Without detracting from this general observation, I would particularly refer to the fact that his Honour told the jury on more than one occasion that the identification that had been made was "strong" and "positive" (albeit that that identification included a dock identification). It is true that his Honour told the jury that they had to be "very careful about using dock identifications", but that did not sit at all comfortably with the direction that the identification that had in fact occurred was strong and positive.

6 In the circumstances, the learned trial Judge's directions as to identification were contrary to principle and gave rise to a miscarriage of justice. For the above reasons and those expressed by Wallwork J, I join in the orders that the appeal be allowed, that both convictions should be set aside and that there should be a new trial.

7 WALLWORK J: On 25 September 1998 after a trial, the applicant was convicted of two offences. The first was of being in a house with intent to commit an offence whilst armed with an offensive weapon and threatening to injure a person in the house and detaining that person. The second offence was that on the same occasion he wilfully and unlawfully destroyed a dog. The applicant had denied that he was guilty of the two offences. An important part of the trial concerned the identity of the person who had committed the offences.

8 On appeal the applicant complained that the learned trial Judge had failed to adequately direct the jury concerning the dangers of convicting an accused person where the identity of an offender is disputed and a photo board form of identification has been used.

9 At the conclusion of the hearing of the appeal, the appeal was allowed and both convictions were set aside. It was ordered that there should be a new trial. My reasons for agreeing with those orders are as follows.

10 It was not in dispute that someone had entered Mr Manifis' home on the relevant occasion in the early hours of 26 February 1997. That person had attacked Mr Manifis.

11 In the course of his summing up to the jury the learned trial Judge began his remarks on the identification issue by saying:

"In this case the identity of the accused is central to the Crown case. That is, it is the issue that is most in controversy in this trial."

"The question is who? And that again is - I am drawing your attention to the central issue in this case."

"...very, very careful in your consideration of identification evidence. The law is so concerned with identification evidence that as a matter of principle I am required to point out to you in some detail any defects which the defence raises in relation to the identification evidence and to explain them to you." (my emphasis)

14 Those early remarks of the learned Judge put the emphasis on "any defects which the defence raises in relation to the identification evidence". A little further on his Honour said:

"Now the first matter that is raised here as being a problem with the identification evidence is the use by the police of a photo board."

15 It is clear from the decided cases that when directing a jury concerning disputed identification evidence, the learned trial Judge must give the Court's authority to the direction explaining the difficulties associated with identification evidence: In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 562 Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:

"The attention of the jury 'should be drawn to any weaknesses in the identification evidence': Kelleher v The Queen (1974) 131 CLR, 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."

"However, as we have already pointed out, mere repetition of counsel's arguments is an insufficient discharge of the trial judge's duty to draw the jury's attention to any weaknesses in the identification evidence. If the matters to which counsel has referred may reasonably be regarded as undermining the reliability of the identification evidence, the trial judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on the evidence. Consequently, the learned trial judge's directions on the issue of identification were not adequate and constituted a misdirection."

17 See also Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 per Latham CJ, Rich, Dixon, Everett and McTiernan JJ at 182 - 183; R v Burchielli [1981] VicRp 61; [1981] VR 611; Kelleher v R [1974] HCA 48; (1974) 131 CLR 534 at 551.

18 There was no identification parade used in the present case.

19 The learned trial Judge referred to the photo board evidence and said:

"Now much has been said in this trial about the preference for an identification parade and it is true that the High Court of our country has firmly expressed an opinion that it is preferable if circumstances permit to have an identification parade but, by the same token, the High Court has not said that police may not use photo boards. The use of a photo board by the police in these circumstances is and was permitted by law. What you need do is to consider the weight of the High Court advice that identification parades are preferable as an indication of the extra care that juries must take in assessing identification evidence."

20 The learned Judge did not tell the jury why it was that juries must take great care in assessing photo board identification evidence. His Honour went on to discuss what counsel for the accused had said about it. What his Honour said was:

"It has been said by Mr Nash for the accused this morning that some of the reasons why identification parades are to be preferred - and I interpolate that this is a mixture of both Mr Nash's reading of the law and of his own estimate or estimation of why the preference exists - are because an accused is present at an identification parade. Well, of course, he or she must be, if there is going to be an identification parade, but that person then has - or the suspect as they would then be - an opportunity to see the way in which the parade is being conducted.

That is certainly so in the way in which some identification parades are conducted. It is certainly so, that if there was a line-up, the accused would be present and would be able to see the sorts of other persons that were included in the line-up, firstly, but by the same token the accused has seen the photo board in this case. It has been identified by a number of witnesses now and he has had the opportunity to make comments about any inadequacies in the photo board. So you have to balance those considerations out.

The next is that the accused at an identification parade it is said would have the opportunity to observe any waver or wavering, that is any uncertainty, by the witness in making the identification. You know, someone you can imagine, pursing their lips and shaking their head and not being sure are the sort of things that might be observed, but in some form of identification parades I can tell you that that opportunity doesn't exist because the accused is walked through shopping centres, the accused is put in a line-up behind a mirrored surface, a glass viewing window, where the way in which the identification was made can't be observed.

So some can and some can't and it would be an ideal identification parade - is one in which the accused did have that advantage, and again that being the ideal as an indication of the care that you need to take in considering this, you look at what happened in this case versus the ideal." (my emphasis)

21 In the above remarks in my opinion his Honour detracted from his comments concerning identification parades by his reference to counsel's reading of the law and of counsel's "own estimate or estimation of why the preference exists".

22 It can fairly be said that the learned Judge down-played the problems involved when he said such things as:

"...but in some form of identification parades I can tell you that that opportunity doesn't exist because the accused is walked through shopping centres....".

"The other side of all this, as indeed the courts, including the High Court, have observed, is that there are sometimes many reasons why identification parades can't be held. Some of them have been given by Senior Detective Kay in this case."

23 In Hallim and Karger (1985) 42 SASR 126 at 130; 18 A Crim R 221 at 224, King CJ said:

"It should be emphasised that the proper method of procuring evidence of identification is by the identification parade. Identification by selection of photographs is open to grave objections and should be resorted to only where unavoidable. That method may be unavoidable during the course of an investigation, where there is no definite suspect or where the suspect will not consent to an identification parade."

24 In Bedford (1986) 28 A Crim R 311 at 314, Street CJ said:

"This Court has emphasised in Moussa (unreported, Court of Criminal Appeal, NSW, 5 July 1984) the strong desirability of investigating police conducting identification parades in cases in which the issue of identification is likely to be of significance. It was also pointed out in that judgment that failure to hold an identification parade, unless sufficiently explained as for example by the refusal of the suspected person to take part in one, or some other circumstance rendering it in a practical sense difficult to conduct such a parade, may result in the discretionary exclusion of identification evidence if it be of a character that is open to serious question."

25 In Deering (1986) 43 SASR 252 at 253, King CJ said:

"Where there is a clear and definite suspect where an arrest has been made, the proper procedure to be followed is for the police to arrange an identification parade if the suspect or arrested person is prepared to participate in such a parade. If that procedure is not followed it gives rise to a discretion of the trial judge to exclude the evidence of identification by other means and that discretion will be exercised having regard to all relevant factors including, of course, the public interest in ensuring that persons who have committed crimes are convicted and punished for those crimes. It may be necessary to present photographs of an alleged victim of a crime at a stage in the investigation in which no person has been arrested and at which there is no definite suspect, in order to provide an opportunity for the victim to pick out the offender. The distinction between what Mr Tilmouth in his submission has described as the pre-detection stage of an investigation and the post-detection stage of an investigation is referred to in Alexander's case, (above)".

26 In Western Australia there is no statutory requirement for an identification parade to be carried out. However, in Dawson v The Queen (1990) 2 WAR 458 at 463; 47 A Crim R 458 at 462, Malcolm CJ said:

"Evidence of identification of the appellant in the Mandurah Court of Petty Sessions on 19 June 1989 stands on a different footing. In my view the circumstances under which that identification was made was such that the evidence was entitled to little weight and was potentially prejudicial. The appellant was told to sit in the Court of Petty Sessions while various defendants were brought before the court, and to leave as soon as she identified the offender. Such a procedure is no substitute for a properly organised identification parade. In view of the fact that the complainant was resident in Perth, there was no valid reason why an identification parade could not have been arranged in Perth or Armadale."

27 The reasons for judgment in Penny (1997) 91 A Crim R 288 contain further information on this subject.

28 In R v Clark, unreported; NSW Ct of Appeal; 31 October 1997, Hunt CJ at common law said amongst other things:

"The Judge made no reference to the consequences of the absence of an identification parade. One important consequence is that the accused is not present when the identification is made from photographs, as he or she inevitably is in an identification parade and thus able to observe, and later bring to light, any unfairness in the way in which the parade was conducted, or any weakness in the way in which the witness made the identification. The Judge made no reference to the possibility of a subconscious displacement effect upon Mrs Smith's description of the offenders when she came to give evidence. Nor did he explain the inadequacy of photographs by comparison with seeing persons in the flesh. A photograph is only two dimensional, and it records what a person looked like in the one split second when that person may have been moving his or her features, but which in any event may not always provide a safe impression of what that person really looks like when seen in the flesh."

29 Those remarks included some of the matters mentioned by Stephen J in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 409. In that decision, amongst other things, his Honour said:

"Unlike the case of an identification parade, an accused whose identity as the offender is sought to be proved at his trial by evidence of previous photo identification is likely to know nothing at first hand of the way in which the identifying witness earlier identified his photograph as that of the offender. He must rely upon cross-examination of prosecution witnesses for knowledge of the conditions of identification and of what safeguards were taken against error on the part of the identifying witness. Again, by what may be called the 'rogues gallery' effect, evidence that the police had in their possession and showed to the identifying witness photographs of the accused may often strongly suggest to a jury that the accused has a criminal record, perhaps even a propensity to commit a crime of the kind with which he is charged. Their production in evidence, or even reference to their existence, may then be highly prejudicial to an accused. Lastly there is the "displacement" effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory."

30 In the present case, having told the jury that there were "sometimes many reasons why identification parades can't be held", the learned trial Judge said that some of them had been given by the senior detective in the case. His Honour referred to the time of the day, the length of time the applicant had been in custody and the fact that the last-mentioned matter was a legitimate matter of concern for the detective. His Honour referred to the difficulty of trying to get together an identity parade at 6am or 7am "and just the sheer difficulties of getting a group of citizens on their way to work or home from work, as the case may be, to voluntarily participate in an identification parade or a walk through as is some times used by the police - walking them through a shopping centre, walking through the Hay Street mall, whatever. These are legitimate concerns."

31 His Honour said "The third concern that the police have in these matters is that of security. How secure can they make the identity parade. And the fourth matter is the demeanour of the accused person". He told the jury that "Detective Kay said he believed that he would not have had co-operated, but we don't know. He wasn't given the opportunity. He may very well have, but he wasn't asked."

"These days Detective Kay says that there is an advice been received by detectives since this occasion that accused persons, suspects, are to be offered the opportunity of an identification parade. He has never had anyone take up the invitation since the advice has been given so he doesn't know how it would work in practice, but nevertheless, they are at least to be offered the choice. All of those things, I think, highlight why the law asks you to be very, very particular in your analysis of the identification evidence."

33 In my opinion his Honour's directions which have been set out above in these reasons tended to justify the use of a photo board rather than to adequately warn the jury against the dangers arising when one is used.

34 The learned Judge then discussed the time during which Mr Manifis said he had been exposed to a view of the person who had attacked him. His Honour referred to some of the evidence of Mr Manifis. He then referred to two further matters which had been raised by the defence, the first being the question of the clothing and the second, the timing of the crime. Having discussed the matters which had been raised by the defence, the learned Judge said:

"How do you weigh those things against the Crown case which I now turn to? So all of those factors which I am confident you will give very serious consideration to, need to be weighed against, if you like, the balancing exercise that goes on with identification evidence. Mr Manifis' identification of the accused - you saw him in the witness box and remember again it is for you to make up your mind about all of these witnesses and all of this evidence ... His identification was strong."

35 His Honour referred to some of the evidence given by Mr Manifis and then said:

"So there is a strong positive identification by Mr Manifis but again this is a matter for you to weigh up."

36 After the jury had retired to consider their verdict, counsel raised the question of the warning which his Honour had given concerning the identification evidence. The learned trial Judge referred to Cross on Evidence where it is said that:

"A warning in general terms is insufficient. The attention of the jury should be drawn to any weaknesses in the identification evidence."

37 Counsel for the defence then raised what he contended had been certain omissions from the summing-up. The learned Judge also heard from counsel for the prosecution. His Honour then brought the jury back and amongst other things said:

"The next matter you will recall is that I told you that the law requires you to be particularly careful to consider all of the elements of the identification which are attacked by the accused, that is, brought into doubt. To those you should add the fact that whilst Mr Manifis's house was dusted for fingerprints - I think we had evidence to that effect by one of the police that went about looking for fingerprints, no fingerprint of the accused was found on the premises and when the accused was examined they didn't find any dog hair on his person.

We don't know the reasons for any of this, but those facts are to be brought into the balance in considering the attacks made on the identification evidence by the accused. The next matter I wanted to refer to is you will recall that I said to you that as against the balance of that identification evidence - in respect of which the identification evidence was challenged, you will then recall I then began telling you what the other side of the scale was, to bring to bear - and I first said to you that Mr Manifis's identification was positive and strong.

I pointed out to you that he said at transcript page 88 that the majority of the time was spent looking at the accused's face. Then I read out to you a passage from transcript page 98 where, in cross-examination by Mr Nash, Mr Manifis says, 'I'm not mistaken. That's the man that held the knife at my throat in my house. He was the intruder in my house.' That identification is called by its shorthand tag a dock identification.In relation to this part of the identification evidence you need to bear this couple of things in mind: firstly, he had made a positive identification of the accused from a photo board and I just remind you of what I have said about photo boards versus the preferable form of identification which is an identification parade. The next thing I want you to consider in balancing this positive identification from the dock, that is, the second identification is that you have to be very careful about using dock identifications; that is, you have got to look at them very carefully because to a certain extent the accused is a captive.

He is the person to whom everyone's attention is focused and there is this tendency to identify the person who the police have put in the dock, but in the light of that warning I have just given you, you have got to weigh up your view of Mr Manifis as a witness, his reliability you have to consider and the reliability of his pretty immediate - 9 am on the morning of the day - photo board identification and, of course, you have got the photo board back in the jury room for you to look at. So apart from all of the other reasons why, I have mentioned to you, you need to exercise some care, exercise some care in the dock identification."

38 As stated above, in my view the learned Judge did not sufficiently warn the jury concerning the dangers involved in the identification of the appellant in this case. His Honour should have enlivened the jury to the hazards involved in the relevant identifications and not left that to defence counsel.

39 In Domican (supra) at 565, 566 their Honours said:

"But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused."

40 In this case I was of the view that there had been a miscarriage of justice in accord with the above words.

41 ANDERSON J: My reasons for joining in the decision to allow the appeal and set aside the convictions are fully expressed in the reasons of Wallwork J. I do not wish to add anything to those reasons.