R v BENNETT & ORS No. SCCRM-03-176, SCCRM-03-195, SCCRM-03-206, SCCRM-03-210, SCCRM-03-247, SCCRM-03-261 [2004] SASC 52

R v BENNETT & ORS No. SCCRM-03-176, SCCRM-03-195, SCCRM-03-206, SCCRM-03-210, SCCRM-03-247, SCCRM-03-261 [2004] SASC 52 - SASC 2004 case summary — Zoe

[143]

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.[10]

The warning must "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". "The jury must have the benefit of a direction which has the authority of the judge's office behind it." The purpose of the warning is self-evident. It is to draw to the attention of the jury the difficulties in evidence which, because it is so seductive, has so often led to proven miscarriages of justice.[11]

The adequacy of a warning to the jury concerning the dangers of identification evidence is not measured, as such, by its length. It depends on its content, balance and weight. What is required is not a particular set of words or a rigid formula, with a failure in compliance resulting in the verdict being quashed. The law requires that the judge bring his or her authority to bear so that the jury understand that mistakes can occur from genuine but wrongful identification. The warning given must not be "the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence".

It is in this last respect that the trial judge's summing up was less helpful than it should have been. In this Court, the prosecution accepted that "fuller directions could have been given". The defects relate not just to the two items singled out by the Court of Appeal but also to the more general problem described by Lord Ackner in the Privy Council in Reid (Junior) v The Queen namely the "ghastly risk run in cases of fleeting encounters". In Australia that risk is addressed by requiring that, in a jury trial, the judge explain to the jury how that risk was relevant to the particular case and how the jury were obliged to exercise care because of the law's experience that genuine but erroneous identifications can sometimes be made by honest witnesses.

...Once the identification evidence was admitted, it was imperative, given its obvious and acknowledged weaknesses, that the particular nature of at least the chief of those weaknesses should have been identified and called to the notice of the jury so that the warnings could be related to the weaknesses. Instead, with respect, the warnings were left hanging in the air as general remarks about the imperfections of identification evidence as a category of testimony.

The requirement of particularity is the standard established by this Court in Domican.[12]

[161]

The Director submitted that Domican was a case where the High Court was considering the adequacy of a warning given to a jury asked to act upon identification evidence and not the identification evidence itself. Thus whilst the adequacy of a warning given to a jury about acting upon identification evidence is assessed without reference to any circumstantial evidence, once the warning is given a jury may use circumstantial evidence as support for the correctness of the identification made.

This was a case where the jury was entitled to do more with the evidence of Varsamidis and Ross than the directions given by the trial judge identified. They gave evidence of observations about the robber's appearance and behaviour. There was the evidence summarised in the passage quoted from the summing up. These items of circumstantial evidence were not to be rejected because, "considered alone, no inference of guilt (could) be drawn". The jury could consider "the weight to be given to the united force of all the (accepted) circumstances put together", as support for Potter's assertion that the appellant was the robber given that the appellant was challenging the credibility of the positive identification made by Mr Potter. On any view, the directions given by the trial judge were favourable to the appellant not adverse. It was open to the jury to consider the circumstantial evidence.

Domican is not authority for what appears in the passage cited from Mullighan J's judgment in R v Turner. In Domican, the High Court was dealing with the question whether a warning in an identification case is adequate. As to that, the judgment of the High Court in the passage cited by Mullighan J was that the adequacy of such a warning was to be evaluated by reference to the identification evidence alone and not the other evidence in the case. Neither in that part of the judgment, nor elsewhere within it, is there a statement denying that other evidence may be supportive of the evidence the subject of the warning.

The judgment in Domican goes on to refer to four separate bodies of evidence in that case. One of those four supported the other evidence but by itself would not have been sufficient to establish the appellant's guilt. That was the situation in this case. Domican stands as authority for the proposition that a trial judge must warn of the dangers associated with identification evidence. Given that the jury may decide to convict on that basis the adequacy of the warning is to be considered separately from other evidence, which may nonetheless support the disputed identification evidence. Other evidence is not irrelevant or confined in the way the trial judge directed as a result of his misunderstanding of the concession made by the prosecutor.

At a glance

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Judgment (209 paragraphs)

R v BENNETT & ORS No. SCCRM-03-176, SCCRM-03-195, SCCRM-03-206, SCCRM-03-210, SCCRM-03-247, SCCRM-03-261 [2004] SASC 52 (11 March 2004)

Parties

Cases Cited (14)