R v Arden [2004] VSCA 131

7. To say that one was attacked by (that is, one's attackers were) three persons with whom one had travelled in the lift at a certain time is, to my mind, to identify the attackers. It is no different in principle from stating that one's attackers were three persons living at a stated address or named persons X, Y and Z. It identifies the attackers with persons objectively ascertainable. However, it is not the usual type of identification evidence that has troubled courts and, as Eames, J.A. demonstrates, identification was not a significant issue in this case. Accordingly, a warning as to the evidence was not required.

10. I agree in the conclusion of Eames, J.A. that the application must be dismissed and, subject to the foregoing, I agree in his Honour's reasons for judgment.

15. This is an application for leave to appeal against conviction. The applicant was presented in the County Court jointly with one Joseph Lovett on a multi-count presentment. After a two day trial[1] the jury found him guilty as follows: count 1, armed robbery of Ken Fitzgerald; count 3, recklessly causing injury to Ken Fitzgerald; count 4, armed robbery of Jason Malcolm; and on an alternative verdict on count 6, namely, recklessly causing injury to Jason Malcolm. The applicant was found not guilty on one count of intentionally causing injury to Fitzgerald, on one count of intentionally causing serious injury to Malcolm and on one count of recklessly causing serious injury to Malcolm. The co-accused, Lovett, was found guilty on two counts of armed robbery, one count of recklessly causing injury, and a further count of intentionally causing injury, as an alternative to a count of recklessly causing serious injury[2]. On 20 August 2003 a judge of the County Court sentenced the applicant to a total effective sentence of 3 years and 6 months' imprisonment and fixed a non-parole period of 18 months. No application for leave to appeal against sentence has been made.

18. It was the Crown case that the events giving rise to these convictions involved three persons, the applicant, the co-accused Lovett, and Lovett's then girlfriend, Maja Colic. Colic pleaded guilty in the County Court on 10 April 2001 to two counts of armed robbery, one count of causing serious injury intentionally and one count of causing injury intentionally, but the fact of her being charged and the outcome of her proceedings were not known by the jury in the applicant's trial, in which she was not a witness.

21. In his directions to the jury the judge categorised the trial as being an identification case, a view which was endorsed by all counsel in the course of the trial. As I shall discuss, that categorisation was correct with respect to the case against the co-accused Lovett, but only in a limited respect was the case against the applicant one in which identification was a factor, and the identification, in his case, fell to be performed by the jury.

25. On 19 September 2000 two young men, Ken Fitzgerald and Jason Malcolm, entered a block of Housing Commission flats at 95 Napier Street, Fitzroy. They intended to visit a person who had a flat on the third floor of the block. The lifts in the block were allocated to either "odd" or "even" floor numbers. Malcolm and Fitzgerald followed into the "odd" lift another man who had been waiting for the lift to arrive. A video camera was installed inside the lift and both the video tape and still photographs which were taken from the video tape, were tendered in the trial. The video camera was equipped with a clock which displayed a digital read out of the time on the video tape. The clock also appears on the still photographs.

28. In their evidence Malcolm and Fitzgerald, when shown the video tape and still photographs, identified themselves and each other. As the video showed, they entered the lift, following the other man who had been waiting at the lift, at 11.48.04 am on Tuesday 19 September 2000. At 11.48.13 another man entered the lift. He was wearing a hooded, dark coloured tracksuit-type jacket, which had stripes similar to Adidas stripes along the shoulders and arms. The hood was behind his head and not on it. Instead, on his head he wore a blue beanie. As is clearer on the video tapes than on the still photographs, he was wearing blue tracksuit pants with a white stripe along the sides. On the Crown case this man was the applicant. At 11.48.18 another man, wearing a blue, white and green hooded jacket, entered the lift, followed by a young blonde woman, wearing a tracksuit type top which was predominantly blue but also had a red tone. On the back of her jacket the words "Adidas" can be clearly seen. Malcolm, who had been standing by the control panel of the lift, holding the door open with a control button, gave evidence that as the lift ascended to the third floor there were some words from those in the lift directed to him as to why he did not use the stairs rather than take the lift, since he was only going to the third floor.

31. When they reached the third floor Malcolm and Fitzgerald left the lift, their departure being shown as occurring at 11.48.44. Malcolm said they walked to the flat wherein resided the person they were seeking but that person was not home. Whilst they were standing near the flat two men and a woman ran towards them from the area of the stairwell. In the course of his evidence Malcolm identified the two men as "No. 1" and "No. 2". He said the two men were about his height and the woman was smaller than himself. He said both men appeared dark-skinned, as though they were Aboriginal or Greek and the man "No. 1" was carrying an iron bar down by the side of his leg.

34. Malcolm said that "No. 1" demanded that they hand over money, and threatened them both, saying (as he recounted the words), "I don't know what you're effing doing here. Have you got some effing drugs on you? You look a real smart C". After Fitzgerald handed over some money he ran away, but Malcolm remained where he was, and also handed over some money. Malcolm said they both handed the money to person "No. 2". As Fitzgerald ran away "No. 1" threw the iron bar at Fitzgerald and then chased and attacked him, punching him a couple of times with a closed fist. Fitzgerald was yelling and screaming. Malcolm said that during the attack on Fitzgerald the two assailants stood close to Fitzgerald. Then "No. 1" picked up the iron bar and came back towards Malcolm and swore at him, saying "Have you got any effing drugs on you?". Malcolm was then punched under the chin by an uppercut blow, which broke three teeth and he was then struck across the back with the iron bar and across the back of his leg, at which point he ran down the stairs and telephoned the police.

37. Malcolm said that throughout the attack "No. 2" did not strike him, but stood alongside "No. 1" - as "an offsider to No. 1" - and was also demanding money from him, saying "Come on, you must have some money, you effing C", and "If you don't have any money have you got any drugs? What are you doing up here?".

40. The witness, Malcolm, was asked these questions: -

"Mr Malcolm the three persons that came down the corridor, had you seen those persons prior to them coming down the corridor on the third floor? --- Only when we were in the lift. When they were in the lift, did you notice anything in particular about either of the males? --- Only that one of them had an iron bar down the side of his tracksuit pants, holding it, and that he was brown in colour, his skin. And the person in the lift that had the iron bar, what do you say as whether that person still had the iron bar when the people came down the passageway on the third floor? --- I say he's the same gentleman that was in the lift."

44. The video was then played to the Court and Malcolm identified himself on the video as entering the lift and standing by the control buttons of the lift with Fitzgerald standing behind him. He was then asked whether he recognised a person standing on the left-hand side of the lift, as shown on the video, and he said "He seemed - he is the one who was wearing the tracksuit type, which I put in my statement, one of the gentlemen that was wearing tracksuit ...". He said that he was "No. 2". He then identified the person shown to be wearing the green and blue top, saying: "He's the other gentleman with the other pair of tracksuit pants with the white stripes . . . No. 1 with the iron bar." He was then asked about the female appearing on the video and said "She was the woman who was with them at the time of the attack"[3].

47. The video stills show Malcolm and Fitzgerald departing the lift at the third floor at 11.48.45. As the door of the lift closed at 11.48.53 the woman was standing closest to the controls of the lift and standing behind her, and close to the rear of the lift, was the man (on the Crown case, Lovett) wearing the blue, green and white top, who appeared to be pressing the button on the lift with a long, thin, flat surfaced object, with the appearance of a length of wood. Portion of the same object was able to be seen being held by him below his waist as he entered the lift.

50. At 11.49.10 the lift doors opened and the man in the blue, green and white top and the woman are shown on still photo No. 15 departing the lift. Immediately outside the lift door on each floor the number of the floor was painted on the ground. Thus as the lift door opened at each floor the number of the floor could be ascertained. Although not shown on the still photos, the video showed that when the lift reached the fifth floor the man said to be the applicant stepped out and out of view whilst the other occupants waited with the doors held open. He returned to the lift a few seconds later and appeared to beckon the woman and the other man to join him, and they too then departed on the fifth floor, leaving in the lift only the man who had first entered it on the ground floor.

53. At 11.52.17 three persons of the same description as the two men and one woman earlier seen are shown to be once again in the lift. The open lift door discloses that they were entering on the third floor. The clothing worn by the man whom the Crown alleged was the applicant is consistent with that shown before his departure three minutes earlier, but on this occasion, on entry at the third floor, the man stood on the opposite side of the lift to where the camera was located. His clothing is quite clear. He is shown wearing blue tracksuit pants with a stripe down the side, sneakers, a dark hooded top with stripes down the shoulders and arms, and a blue beanie. The man's face is not clear as he has his head down, looking at his hands, in an action consistent with him counting money. The Crown contended that he was the same man shown earlier on photos 5 and 6 and on those earlier photos he was shown to have a thin beard, entirely consistent with the applicant's facial appearance when he was photographed later that day by police. The clothing of the two others appears identical to that worn by the occupants three minutes earlier and the woman's top shows the words "Adidas" on the back.

56. At 11.52.21 the second man (Lovett, on the Crown case) was shown towards the rear of the lift pressing the lift button with a long object which appears to be the same length of wood seen earlier. He is shown to be wearing blue tracksuit pants and sneakers in addition to his blue, green and white, tracksuit-type top.

59. Much was made in argument to the judge and before the jury as to the poor quality of the video, particularly as to the colouring of clothing. The judge warned the jury that the video image was very poor and imprecise and that the colours were "unreal". That warning seems to me to have rather overstated the deficiencies of the video. Whilst the colours of the clothing did tend to blur and merge, at times, the vision on the video, in my opinion, was quite good and the features of individuals on the video were relatively clear. In any event, at the very least the jury would have had no difficulty concluding that the two men and a woman who had journeyed to the third floor with the complainants and then departed on the fifth floor were the same people who later rejoined the lift, as its only occupants, at the third floor**,** and that proposition appears to have been accepted by the defence, and indeed, relied upon. The timing on the still photos demonstrates that between the time of departure from the lift of the woman and the two men on the fifth floor, at 11.49.14 (photo 15), and their return to the lift, at 11.52.17, on the third floor, just over three minutes has elapsed. They had exited at the fifth floor only some 30 seconds after the two complainants had themselves exited at the third floor.

62. In his evidence the second victim, Ken Fitzgerald, described getting into the lift with Malcolm and ascending in it with a female and three other males. He said that shortly after he and Malcolm got out at the third floor two males and one female came from the direction of the stairwell with one man, whom he described as "No. 1", holding "a stick". He then described being threatened and money being demanded. He handed over an amount of $15 and then he ran, being chased by "No. l", who threw the stick, which hit him on the back of the right leg. Fitzgerald turned around and was punched in the mouth by "No. 1", who then threatened to assault him again if he did not cease yelling out. During this time the person described as "No. 2" had been near Malcolm. "No. 1" pulled down Fitzgerald's pants, apparently searching for drugs. Fitzgerald ran down the stairs, away from the scene.

65. Fitzgerald was shown the video tape and identified himself and Malcolm. He identified the person in the blue beanie as being "No. 2" and one other person in the lift as being "No. 1".

68. No evidence was called by the defence at the trial, but in cross-examination counsel for the two accused challenged the accounts of the complainants and their descriptions of their attackers.

72. In answer to cross-examination by the applicant's then counsel, Malcolm said he had first seen the video about a year after the events. He agreed he had never seen the three people before the day of the assault. He denied that he was at the flats for purposes connected with drugs. He said he was there to recover a loan of $20. He agreed that when he got into the lift there was nothing particularly eventful about that but added "only that I seen the guy standing there with the iron bar down his side which I thought was ...". He said there was nothing particularly memorable, apart from one of the people in the lift saying "Oh, why don't you fucking walk up the stairs, rather than catch the lift to the third floor". He thought that was said by the older person in the lift, the man who had got in first.

75. Malcolm agreed that he had refreshed his memory by reading his statement prior to giving evidence. He was questioned about the descriptions of his attackers he gave to the police at the time when he was first interviewed. As to his description of the clothing the woman was wearing he said that he told the police "if you get evidence off the video tape of the woman, that's the evidence that - of what the lady was wearing . . who got into the lift at that time". As to his present recollection of what she had been wearing, he said "I know by what - what she was wearing by the video tape. It was similar to that colour, yes". He added that he could not be very precise on what all three were wearing.

78. Malcolm agreed he had not seen the video tape when he gave his statement to the police. He said he knew at that time the girl had a jumper and trousers but he could not have said what colours. Having said that he had first seen the video about a year prior to the trial, during "the last hearing", he was asked whether he now had trouble distinguishing between what he remembered from the day itself and what he had seen on the video. He agreed that he may have been on methadone at the time, but denied that that affected his observations or recollection. He said he was not confused and he knew exactly what happened on the day. He said, "I know who I was attacked by, and the way it was done". He was asked the following question, and answered:

"Are you able to say that you recognise that person as No. 2 on the video because of their brown skin, tracksuit pants and height, is that what you're saying? --- No, I remember them by face also, but it's been so long, people grow hair, you know, they grow facial hair, or may be they shave, may be they've got no hair, you know what I mean, they can change their identity that way, but I remember, not only just by the video tape, but when I was assaulted and attacked by them. When you're hit and you're put, you know, you're in pain and that, you don't think about things like that, you just think about going to get help for yourself."

82. Malcolm was pressed that all he was able to say about "No. 2" was that he had brown skin, was about his own height and had tracksuit pants, to which the witness added "and what else evidence there is on the video tape". In the absence of the jury, the judge warned counsel for the applicant that he was skirting dangerously close to receiving a dock identification from the witness and pointed out that all the witness had said was that the people who had attacked him were the same people who had been in the lift. That observation was not challenged by counsel, and was later repeated in the charge.

85. Malcolm said that he and Fitzgerald had attended at the flat on a previous occasion that day. The occupant was not there, then, but had left a message on the door saying he'd be back in half an hour. It was on their return about half an hour later that they were attacked. He said they had been waiting outside the flat about five minutes before they were attacked. It was put to him, and he accepted that he had given the evidence which was read to him, that in a previous (aborted) trial he had agreed that at the committal he had said he waited "between five and ten minutes". That response was apparently the foundation for a question later put in cross-examination by counsel for the co-accused: "And you were then waiting there for, I think you've just indicated, ten or fifteen minutes", to which inaccurate proposition the witness replied "yes".

88. In answer to counsel for Lovett, Malcolm agreed that he had described his attacker's clothing to police as being brown tracksuit pants and a blue jumper. He could not recall the man who attacked him having a beard or moustache. He said that the attack on him took "roughly four minutes, five minutes at the most". He said that he did not have any doubt as to what happened; he could still remember it.

91. When Fitzgerald was cross-examined he said that they had been waiting at the flat only about two minutes before the attack commenced.

"Would you agree that when you got out of the lift at that time you didn't remember anything about - you wouldn't have been able to describe the people who had been in the lift? --- I did recognise all of them from the lift. Okay but that's - you say you later say `ah those people who attacked me were the people in the lift', right that's what you say isn't it? --- Kind of yes. When you say `kind of' isn't that your evidence here today was that after you're attacked by these people you then say those were the same people who were in the lift? --- Yes."

"So what I'm saying to you is that it was because of things happening close together in time and a group of people that you made an assumption that the people who attacked you were the people who had been in the lift? --- I wouldn't say it was an assumption. When you say that, you of course have - you've seen the video haven't you? --- Yes. You've seen it today in court --- Yes. But you've seen it before then haven't you --- Yes I have. So you then have a memory in your mind now of what you've seen on the video don't you? ---- Yes, and it's completely different to what I . . . "

100. His last answer was cut off by counsel, who said "No further questions."

103. In answer to cross-examination from counsel for Lovett, Fitzgerald agreed that having seen the video he was wrong in the description he gave to police of the clothing of the people who had assaulted him. He agreed he told police that he thought the girl had been wearing a blue-grey T-shirt. Fitzgerald agreed that he had said in his police statement that there were "three or four" people coming towards him on the third floor, but now believed there were only three. He told police that the man with the "stick" wore a cap which may have been red and also wore a red jacket. He said that he recognised all of the people who were involved as being from the lift but got the description of their clothes wrong, and said "three or four" because there were four in the lift.

"But did you have in your mind that it was the people in the lift that had assaulted you? --- Yes. Is that right? - Yes. And they're (? there are) three or four people in the lift? --- Um. Is that a yes? --- Yes. And therefore you thought there were three or four people who assaulted you? --- Yes. Because basically you hadn't been paying any attention to the people in the lift when you were in the lift? --- No."

In re-examination he agreed that he told the police in his original statement that, "The people that assaulted and robbed Jason and me are definitely the same three people who got into the lift with us when we went to the third floor".

111. Neither of the two accused men gave evidence, but the applicant, alone, had answered police questions and given an account of events concerning his subsequent dealings with two men who had been in the lift. By advancing that account the applicant placed himself in a very different position to that of his co-accused, with respect to the question of identification.

115. A record of interview conducted on 19 September 2000 was tendered in the trial together with photographs taken of the applicant which showed him wearing a black top with white stripes down the shoulders and arms, blue tracksuit pants with white stripes down the sides, and, as footwear, trainers or gym shoes. In his record of interview, which commenced at 4.58 p.m, the applicant agreed that earlier on that day he had been wearing those clothes and, in addition, had also been wearing a black jacket with a blue beanie. That combination of clothing closely matches the appearance of the man shown in the video.

118. The applicant, who said that he was Aboriginal, told the police that he had been at the block of flats that morning, with the co-accused Lovett and his girlfriend, Colic. Asked whether that was at about 11.50 a.m. he said it was in the morning but he could not be sure what time it was. He agreed that he got into the "odd" lift with Lovett and Colic and there were other people in the lift whom he did not know. Extracts from the statement of Malcolm and Fitzgerald were put to him, in particular their suggestion that there was another Aboriginal male in the lift, an older person. The applicant agreed and said that was "Uncle Bat", who he said was Neville Atherson. The applicant said that there were two other men in the lift who were not Aboriginals and that they got out on the third floor. He got out on the fifth floor, where he was looking for his son. He said that when he got out of the lift Lovett and Colic got out with him but that then, by himself, he went down the stairs and came across "two fellows sitting there" with needles on the ground nearby and he presumed that they had been using drugs. This was on the third floor. He confronted them about their use of drugs and the danger of the needles for children. He said they were in the staircase between the fifth floor and the ground floor.

121. The applicant agreed that the two men he confronted were the same two males who had been in the lift. That acknowledgment is of critical importance to the outcome of this appeal, and the relevance of the issue of identification in the case of the applicant. He told the police that, "I smacked one of `em in the mouth, mate". The applicant told police he hit the man with an open hand. He did not know what the other man was doing when he assaulted the first one. He was asked where Lovett and Colic were when this occurred and he said "They were doing their own thing" and denied that they had been with him. He agreed he had come across the two men on the third floor but said it was on the staircase. He said it was he who was talking to the two men, "and Sam and his woman was doing whatever they were doing".

124. He said that when he was detained by the police that day he had handed the black jacket and blue beanie which he had then been wearing to a cousin. As to the allegations being made by the complainants, he said "I didn't do it and they're blowing it way out of proportion". He said of the version of events put to him by police, and that any money had been taken from the men. He suggested that that assertion was "a bit far-fetched". He denied seeing Lovett strike either man with a bar.

127. The applicant told police that after he had struck the man, the victim said that he was going to ring the police, and the applicant said that he later saw him doing so from one of the public telephones at the front of the block of flats. The applicant said that he stood in full view of the man as he was telephoning the police. He said that he waited about ten minutes for the police to arrive, but then walked off. He said that had he done anything wrong he would not have waited for the police to arrive, but would have run away and hidden himself or changed his appearance.

131. There are two grounds of appeal. The grounds of appeal make the common assumption that with respect to the applicant this was an "identification" case of a kind to which a well-established body of judicial authority applied. The answer to both grounds lies in the fact that it was not. The grounds are:

"Ground 1 The learned trial judge erred in admitting the security video into evidence. Ground 2 The learned trial judge erred in his directions to the jury in relation to identification evidence."

135. Mr Croucher submitted that there were two levels at which this was an identification case. In the first place, the two complainants "identified" persons shown on the video as being their assailants "No. 1" and "No. 2". At the second level, the jury, if satisfied that those two people were the assailants, had to decide if the two accused were respectively "No. 1" and "No. 2". At both levels, he submitted, the identification depended on the quality of the video tape and photos taken from it. The picture quality was so poor, he submitted, that - as his primary contention under ground 1 - the tape could not be used, at all, for those identifications. Mr Croucher conceded, however, that the video tape and photos might have been tendered for more limited purposes, other than for identification. If that evidence was properly admitted then, pursuant to ground 2, he contended that the instructions given to the jury as to the dangers of the identification evidence were wholly inadequate.

138. Before dealing with the two grounds of appeal it is necessary to examine the way on which the defence case was presented.

141. The applicant had accepted that he travelled in the lift with Lovett and Colic and that after leaving the lift on the fifth floor he had then gone to the third floor where he assaulted one of the occupants of the lift. There was no evidence of the two complainants being assaulted and robbed on a separate occasion, also on the third floor, by fellow occupants of another lift journey. The evidence disclosed only one report to police by Malcolm of an incident such as he described. Given the applicant's admissions to police, the only possible "innocent" scenarios could have been that the complainants had exaggerated the nature of the confrontation and the applicant's role in it, or else the assault and robbery that they described was a separate incident to the confrontation the applicant admitted to in his record of interview.

144. As to the second scenario, one possibility was that Lovett, Colic and an unidentified third man performed the robbery, without the applicant's involvement. That option seems not to have been advanced by counsel for the applicant. Rather, defence counsel sought to advance the "separate incidents" scenario by highlighting the delay between the complainants' arrival outside the flat and the commencement of the assault (which Mr Croucher contended before us was "ten to fifteen minutes"). Thus, those persons seen returning to the lift on the third floor only three minutes after they had got out at the fifth floor could not have been the assailants. That scenario, of course, is predicated both on the fact that the combined delay before the assault and the period of the assaults and robberies themselves amounted to more than three minutes, and also that it was indeed the applicant who was seen to return to the lift on the third floor three minutes after he had left it at the fifth floor. If so he was then in the company of a person holding what appeared to be the long piece of wood. The "ten to fifteen minutes" delay also meant, so it was contended, that ample time was available for some other persons (two men and a woman) to have come upon the complainants on the third floor and to have committed the robberies which they mistakenly attributed to those with whom they have travelled in the lift.

147. In exploring all possible scenarios the version of events advanced in the applicant's record of interview was also put to Malcolm in cross-examination by the applicant's counsel. Malcolm denied the suggestion that he may have been in the stairwell on an occasion that day other than following the occasion when he had been assaulted and robbed as he had described. He denied that he had been involved in any incident that day in the stairwell when "someone" had accused him of leaving syringes lying around. Nothing like that happened, he said. He said that after his assault he had run down the stairs and used the ground floor telephone, and denied the suggestion that he may have stopped in the stairwell, whereupon he was confronted by someone complaining about syringes. (It was not put to him, additionally, that he had also been punched or slapped by such person).

150. A range of explanations for the events which exculpated the applicant was, therefore, canvassed at the trial under the broad description of it as an "identification case". That broad brush approach, in my opinion, did not do the applicant's prospects of acquittal any harm, but the reality, in his case, however, was that the complainants did not make an identification, but nominated their assailants as people who had been in the lift with them. I shall develop that proposition in the context of dealing with the grounds of appeal.

154. Mr Croucher submitted that the trial judge ought not to have admitted the video into evidence because the quality of the video was so unsatisfactory, as was the quality of the still photographs taken from it, that it was not capable of providing identification evidence on which a jury could safely act. In his directions to the jury the judge emphasised that the video image was very poor and imprecise and that the colours were "unreal". At its highest that evidence was capable of showing only "similarity", Mr Croucher submitted, and that standard would be insufficient to meet the criminal standard of proof of guilt for the purpose of sustaining a conviction[4].

157. Given the admission by the applicant that he had confronted both persons who had been in the lift with him until the third floor, and that he had assaulted one of them, one relevant issue was whether the journey by lift which the two complainants said preceded their being robbed was the journey shown on the video, and, if so, whether the applicant was then in that lift. There was no contention that the complainants could not identify themselves on the video. Once they had done so then the video provided the approximate time of the attack. The account given by the applicant meant that even if the jury could not positively identify him from the video then by using his account they were entitled to conclude that the journey he described must have been the same one the complainants described. The Crown did not have to rely on the video as providing conclusive identification of the applicant; mere similarity would have been more than adequate. Indeed, even if the image of the applicant had been entirely obscured the jury, by reference to his record of interview and the evidence of the complainants, could have concluded beyond reasonable doubt that the applicant was indeed in the lift during the relevant video taping.

160. The video was merely one item in a range of evidence on which the jury could reach a conclusion beyond reasonable doubt that he must have been one of those depicted in it. Even if it provided no conclusive evidence, by appearance alone, as to the identity of the persons on it, it provided evidence of the sex, relative height, clothing and numbers of people who made that journey to the fifth floor, all matters tending to confirm that the journey described by the applicant was the same one depicted on the video. Furthermore, if the jury accepted the evidence of the complainants that they had been assaulted by people with whom they had been in the lift, then - if the jury also accepted that the same people were shown returning to the lift on the third floor about 3 minutes after they had alighted at the fifth floor - the actual time of the assault and robbery could not have been 5 to 15 minutes, but was not more than three minutes. None of those issues turned on an identification made by the complainants of people shown in the video; they turned only on the question whether the jury accepted the contention of the complainants that (however they were dressed) their assailants were to be seen on the video, because their assailants had been on that journey with the complainants, as recorded on the video, immediately before their attack.

163. Accordingly, the video tape and photos were relevant in a number of ways in proof of the Crown case and that evidence was properly admitted by the judge. Ground 1 has no substance. Even if this was, strictly speaking, an identification case the video tape would have been admissible notwithstanding that it did not provide a positive identification and had only slight probative value. Such evidence would be admissible in an identification case where it was to be taken together with other admissible evidence, and the weight which might be given to the evidence was a matter for the jury: see Festa v. The Queen[5]. Questions concerning the issues on which the video and photos were relevant, and as to any directions that ought to have been given to the jury, were quite distinct from the issue of admissibility, and fall for consideration under the next ground of appeal.

167. Mr Croucher submitted that this was truly a case involving identification evidence, and it was correctly characterised as such by the trial judge, but even if it ought not to have been so characterised that was the way in which the trial was conducted on all sides. Thus, having been treated as an identification case, all of the obligations as to the giving of directions in such a case which high authority imposes on a trial judge applied to the case. He cited the following passage from the joint judgment in Domican v. The Queen[6] (citations omitted):

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed `as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury `should be drawn to any weaknesses in the identification evidence'. 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. 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." (Footnotes omitted.)

171. Mr Croucher submitted that in saying of persons shown in the video, "That was No. 1", and, "That was No. 2", the two complainants were giving identification evidence, the reliability of which was suspect, and the directions specified in Domican were necessary. The second level of identification was the task of the jury, which was to determine beyond reasonable doubt whether the persons identified by the two witnesses on the video as being "No. 1" and "No. 2" were the two accused and, more specifically, for the purpose of this appeal, whether one of them was the applicant. At that second level it was the jury conducting an identification by way of comparison of the persons in the dock with the persons shown on the video. The judge, Mr Croucher submitted, treated the case as involving only the jury identification, and thus requiring only a limited direction, one concerned with the standard of proof.

174. Mr Croucher raised many complaints about the suggested inadequacy of the directions given in this case, which complaints were based upon decided cases concerned with what were truly identification cases. It was said that directions ought to have been given about the "displacement effect " of the video[7]; of the limited capacity of the video and photos to prove identity[8]; of the risk posed by use of the video of a false identification similar to that which can occur when a single suspect photograph is shown to an eye witness[9]; of the danger of two deficient identifications being treated as mutually supportive[10]. In my opinion, none of those matters were issues in this case.

177. I agree with Mr Morgan-Payler, who submitted that although the case was characterised as an identification case that was not really so for the applicant, at least on the "first level". As to the "second level", given that the Crown case was that the two accused had been acting in concert, it was of no significance to the prosecution whether the applicant was the man who played the role of "No. 1" or "No. 2" as described by the complainants.

180. As Gleeson, C.J. observed in Festa v. The Queen[11], there is a risk of confusion created when a range of evidence is placed within one category of "identification evidence". It is necessary to carefully distinguish between direct evidence relevant to proof of a fact in issue, circumstantial evidence which when combined with other evidence tends to prove a fact in issue and evidence which in a traditional sense constitutes eye witness identification.

183. The identification evidence which the courts have long regarded as dangerous and capable of producing miscarriages of justice unless the jury are appropriately warned is that given by a person who has seen someone whom he does not know and has had to carry in his mind's eye for a period of time a recollection of that person and is then at some later time asked (whether at a formal or informal identification parade, or by reference to photos on a photo-board, or photographs or images produced in some other way, or else by a dock identification) whether he can recognise the person whom he previously saw[12].

186. Using the term in the loosest way, the only "identification" issue in the applicant's case, as opposed to Lovett's, was whether the complainants were correct to say that both of their attackers had been with them in the lift on the journey which had been captured on the video film. Although many questions were asked of the complainants as to discrepancies between their accounts of the clothing of their attackers and as to the impact of viewing the video on their recollections as to those matters, I do not consider that there was a "first level" identification of their attackers based upon the complainants' viewing of the video; they did not base their identification on the video, at all. They each said that the persons who attacked them had been travelling with them in the lift. Insofar as they misdescribed to police the clothing their attackers had worn they did not rely on their clothing to identify them. They relied on the fact that they had been in the lift with them. Thus, whatever the video showed to have been the clothes their attackers had actually been wearing on that day, their evidence was that the two men who had entered the lift after them, and the woman, were those attackers.

189. The judge was, therefore, entirely correct, when he told the jury (as he said, would, in any event, be clear to them) that neither complainant had given any evidence to identify either of the accused men, but had said that it was three of the occupants in the lift who had attacked them shortly after the complainants got out at the third floor.

192. Upon seeing the video the complainants nominated (rather than "identified") two men on the video as having participated in the roles of "No. 1" or "No. 2". The video showed the two men who followed them into the lift and, thus, if they were correct in saying that they had been assaulted and robbed by the two men who followed them into the lift (and the woman) those had to be "No. 1" and "No. 2". The jury then had to decide, in the case of Lovett, whether he was shown on the tape at all (without relying on the applicant's statement, which was inadmissible against Lovett). It was not necessary to decide, in the case of the applicant, whether he was "No. 1" or "No. 2" on the video, although the conclusion was bound to be reached as to which he was once the jury decided that Lovett was one of the two relevant people shown on the video.

195. In the case of Lovett, the question for the jury involved a comparison between the person on the video and the man in the dock. Thus, directions to the jury about the deficiencies of the video were appropriate and, so too, directions as to the dangers of wrong identification. However, whether the directions as to the case against Lovett case were adequate is not relevant to this application for leave to appeal, because in the applicant's case the jury were required only to determine whether the admissions made by him of assaulting a person with whom he had travelled in the lift to the third floor related to the journey shown on the video. Once that conclusion was reached, as it was bound to have been, the only remaining question was whether what the applicant had done after leaving the lift and moving to the third floor was as he claimed, or was as the complainants claimed.

198. The judge, in his summary of the address of defence counsel described the defence as being that the witnesses were so confused and unreliable that their account could not prove any offence beyond reasonable doubt. Counsel highlighted discrepancies between the two complainants' accounts, and differences between the descriptions of clothing of their attackers that the complainants gave to police on the one hand, and the clothing shown in the video, on the other hand. Defence counsel also submitted that the suggested delay before being attacked of five to ten minutes was at odds with the gap of only three minutes between departure and re-entry shown on the video clock. Whilst those contentions loosely challenged the "identification" of the applicant, they were primarily a challenge to the reliability of the accounts of the complainants, and seemed to have glossed over the dilemma presented by the admissions made by the applicant in his record of interview.

201. At the conclusion of the charge counsel for the applicant requested a direction from the judge that two suspect identifications could not corroborate each other. In response, the judge said that, "There's only one identification here; it's the jurors who will be identifying . . ." Counsel initially agreed with that observation, but then said that there was also an identification by the witnesses in saying of the video "that's `No. 1' and `No. 2'." He submitted that even if the witnesses said that their attackers were the people in the lift there were dangers of wrong-identification as to that. Counsel did not say what, if any, direction was sought.

204. Counsel for Lovett said to the judge that " . . it's an unusual form of identification here; it's identification by the jury" and, thus, a different situation to one where the standard directions would be given as to a witness identification, because "in this case the witnesses are the jury". For that reason, he said, he was not supporting counsel for the applicant, who had sought a "two unreliable identifications" direction concerning witnesses, but sought, instead, a direction to the jury that they, as jurors, in making an identification of the persons in the dock as being the offenders should each come to a separate conclusion that the accused were either "No. 1" or "No. 2".

207. It is clear, in my opinion, that this case was never an "identification" case in the sense warned about by the courts, and directions appropriate to such cases were not appropriate for this applicant's case.

210. Before leaving ground 2, I will deal with some discrete complaints made under it which ought to have been the subject of a separate ground, but which the court permitted to be argued as part of ground 2. As one particular under this ground, Mr Croucher contended that the judge failed "almost completely" to summarise the cross-examination of the two witnesses. Notably, however, no exception was taken to that omission at the conclusion of the charge.

213. Mr Croucher submitted that the summary of the cross-examination was important because most of it went to matters undermining the reliability of the witnesses "purported identification". He submitted that the weight of judicial authority ought to have been given to highlighting the suggested deficiencies in the "identification" evidence.

216. This was a very short trial and the requirement of a judge to identify the issues of fact and law for the jury does not impose a burden on the judge to summarise all of the evidence in the case. In the circumstances of the case concerning the applicant, which, as I have said, did not raise any identification issues of the kind with which Domican was concerned, there was no obligation to provide a greater summary of the evidence of the witnesses than was provided. Indeed, even where a case was an "identification" case, it was recognised by the Court in Domican that a trial judge would not be obliged to discuss or analyse all of the evidence and conflicts in evidence in the case[13]. The Court held, however, that much fuller treatment would be required in any case where the identification evidence bore the "seductive effect" which judicial experience warned constituted a danger of a miscarriage of justice. This was not such a case.

219. The jury had very recently heard the evidence in what was a very short case. There was no danger of them having forgotten it or misconceived its relevance to the issues in the case. It is very pertinent that neither defence counsel apparently saw any danger in that regard and sought a redirection and the provision of a greater analysis and elaboration of the evidence. In my opinion, in this case no more was required by the judge than was done in order to ensure a fair trial of the applicant.

222. Finally, Mr Croucher submitted that if it was not an identification case then it was conducted in such a way as to make it a confused and unsafe trial. No ground of appeal made that complaint, but in any event that contention was without substance. It might be thought that, having regard to his admissions in the record of interview, the position of the applicant in defending the charges was very difficult, indeed. The approach which was adopted at trial achieved the result that the applicant was the beneficiary of a very favourable direction that "personal identification of the accused by witnesses for the Crown should be treated with great caution". That was a more favourable direction than was justified in the case of the applicant, because the case against him did not turn on personal identification, but on his own admissions that he was in the lift with a person whom he had later assaulted. If there was any confusion created by the conduct of the applicant's defence it could only have been to his benefit.

229. The application for leave to appeal against conviction should be refused.

[1] This was the fourth jury which had been empanelled. In what counsel at trial described as having been a tortured history, three previous juries had been discharged over a period from late 2001 to 2003.

[2] The verdicts for Lovett were, therefore, identical to those for the applicant save that on count 6 he was convicted on an alternative verdict of intentionally causing injury to Malcolm.

[3] Although the judge told the jury that the video image was very poor and imprecise, the appearance of the young blond woman on the video seems to me to have been relatively clear, although the colouring of her clothes was uncertain at times, it being multi-hued containing a red or orange tone, in addition to a blue and green tone.

[4] As to the insufficiency of evidence of mere similarity to support a conviction in an identification case, see Pitkin v. The Queen [1995] HCA 30; (1995) 69 A.L.J.R. 612; R. v. Clune (No.2) [1996] 1 V.R.1.

[5] [2001] HCA 72; (2001) 208 C.L.R. 593, at [13]-[14], per Gleeson, C.J.

[6] [1992] HCA 13; (1992) 173 C.L.R. 555, at 561.

[7] Alexander v. The Queen [1981] HCA 17; (1981) 145 C.L.R. 395; Pitkin v. The Queen [1995] HCA 30; (1995) 69 A.L.J.R. 612.

[8] R. v. Clune (No.2) [1996] VicRp 1; [1996] 1 V.R. 1; R. v. Fahad [2004] VSCA 28.

[9] Alexander v. The Queen, supra; Festa v. The Queen [2001] HCA 72; (2001) 208 C.L.R. 593; R. v. Akgul [2002] VSCA 222; (2002) 5 V.R. 537.

[10] R. v. Burchielli [1981] VicRp 61; [1981] V.R. 611.

[12] See Arthurs v. Attorney-General for Northern Ireland (1970) 55 Cr. App. Rep. 161, at 168-170, cited in R. v. Burchielli, [1981] VicRp 61; [1981] V.R. 611, at 618. See, too Davies and Cody v. The King [1937] HCA 27; (1937) 57 C.L.R. 170, at 180-182; Kelleher v. The Queen [1974] HCA 48; (1974) 131 C.L.R. 534, at 550-551, per Gibbs, J.