2 The convictions arise from an incident on 28 December 2001 at a house in Connell Street, Davoren Park, an Adelaide suburb. The prosecution case was that the appellants together with Kaylene Bennett forced their way into the house, and there assaulted Mr Buckingham, Mr Sprague and Ms Clark, who were at the house at the time.

3 Count one was a charge of an aggravated offence of serious criminal trespass in a place of residence. The charge was that the appellants entered or remained in the house as trespassers with the intention of committing an assault. The circumstances of aggravation were that they did so whilst in company with each other, and when other persons were lawfully present in the house, the appellants knowing of their presence or being recklessly indifferent as to whether anyone was in the house. On the facts, if the appellants were involved in the incident, there could be no doubt they knew that people were in the house when they entered it. Each appellant was convicted on count one.

4 Count two was a charge of common assault on Mr Buckingham. Each appellant was convicted on this count.

5 Count three was a charge of common assault on Mr Sprague. The appellant Mr Mumme was convicted on this count. The others were acquitted.

6 Count four was a charge of assault occasioning actual bodily harm to Ms Clark. Ms Bennett was convicted on this count. The others were acquitted. Ms Bennett has not appealed against her convictions.

7 Count five was a charge of damaging property. Luke Bennett (the son of Mr Mumme and Ms Bennett) was convicted on this count. He alone was charged with this offence.

8 A number of grounds of appeal were raised by the appellants. Some of the grounds are relied upon by each appellant, some are particular to particular appellants. The grounds complain of misdirection by the Judge, or of a failure to direct the jury, apart from a complaint by Mr Glover that the verdicts are inconsistent, and a complaint by Mr Mumme that a witness should not have been allowed to identify him in court.

9 Mr Bennett and Mr Glover have appealed against the sentence imposed on them.

10 Mr Buckingham visited a house occupied by Mr Sprague at 57 Connell Street on the afternoon of 28 December 2001. Mr Buckingham knew Mr Mumme, his wife Ms Bennett, their son Luke Bennett and Mr Mahoney (whom he knew only as Paul). They lived in the same street at No.47. Mr Buckingham did not know Mr Glover. He lived in the street, but not at No.47.

11 At about 8.30pm, on the prosecution case, Mr Mumme was riding a mini bike in the street. Mr Buckingham and Mr Sprague saw him fall off. They laughed at this. Mr Buckingham spoke to Mr Mumme briefly. Mr Mumme rode off towards his house.

12 Almost immediately Luke Bennett came to the front of the house. There was an angry exchange with Mr Buckingham, and he left. He went towards Mr Mumme's house. On the prosecution case he was angry about the amused reaction to his father's fall.

13 About five minutes later Mr Buckingham heard the sound of angry voices, indicating that a group of people were approaching the house. Mr Buckingham saw Mr Mumme, Ms Bennett, her daughter, Mr Mahoney and two other men he did not know. He saw them in the front yard. He did not see Luke Bennett at that stage. Mr Buckingham retreated to the hallway, Mr Sprague being at the front door. There was an argument at the front door between Mr Sprague and Mr Mumme. During this Mr Mahoney reached over Mr Mumme's shoulder and hit Mr Buckingham in the mouth. The group then forced their way in and Mr Buckingham became involved in two fights in the kitchen. In the first fight he was attacked by Mr Mahoney, and in the second by Mr Mahoney and one of the unknown men. The prosecution case was that the unknown man was Mr Glover. During the second fight Ms Bennett grabbed him by the arm. At one stage he saw Luke Bennett in the kitchen damaging some items of property. In his direction to the jury the Judge did not at any stage identify for the jury whether count two comprised all or some of these incidents. The prosecutor opened on the basis that the fight in the kitchen was the subject of count 2.

14 While this was happening Mr Buckingham saw Ms Clarke, who also lived at the house, lying under a table in another room and he saw Ms Bennett standing near her.

15 Mr Sprague also knew Mr Mumme and Ms Bennett. He described the incident in which Mr Mumme fell off the mini bike, and the altercation between Mr Buckingham and Luke Bennett. He also heard the voices of people approaching the house shortly after this. He recognised Mr Mumme, Ms Bennett, Luke Bennett, Ms Bennett's daughter, a man called Danny and another man whose name he did not know.

16 When the group forced their way into the house, Mr Mumme pushed him into the hallway and restrained him. This incident was treated by the prosecutor as the subject of count three, although again the Judge did not identify the subject of count three for the jury. Mr Sprague said he saw Ms Clarke being punched and kicked by Ms Bennett and by her daughter, and he saw the unknown man kick Ms Clarke. He saw Mr Mahoney and the man he did not know fighting with Mr Buckingham in the kitchen. He saw Luke Bennett in the kitchen damaging items of property.

17 Ms Clarke in her evidence said that she saw Mr Mumme push Mr Sprague through the front door. Her evidence then dealt mainly with the attack on her by Ms Bennett and her daughter. She said that a man she did not know kicked her. Another man whom she did not know also kicked her. She saw Luke Bennett damaging property with a pole. She said she had met Danny before at Mr Mumme's house. She said that she saw Mr Mahoney in the house, but did not identify him as being involved in any of the assaults.

18 As each of the victims knew Mr Mumme, Ms Bennett, Luke Bennett and Mr Mahoney, there was no issue of identification in relation to them. Mr Glover was said to be one of the unknown men involved in the incident. Important evidence against him was a photo identification by Mr Sprague, the finding of a fingerprint of his on a wall in the house, and the fact that he was at Mr Mumme's house shortly before the incident occurred. Ms Overton lived at No 55. It was separated from Mr Sprague's house only by a laneway. She said that she heard yelling, and saw about ten people approaching No 57. Some were carrying sticks and one was carrying a baseball bat. She was watching from a bedroom window in her house, looking between the curtains. Looking over a fence and between bushes, she saw the heads of people on the lawn and porch of No 57. She rang the police. In the group of people she identified a woman who lived in Connell Street, but this apparently was not Ms Bennett. She said that she recognised a man who also lived in the street, and as I understand it, she described him as living at Mr Mumme's house. When asked in court if she could identify any of the people who were in the group in question, the only one whom she could identify was Mr Mumme.

19 There was no suggestion that Luke Bennett struck any of the victims. The evidence against him was that he was in the house, armed with some kind of pole, and damaging property.

20 There seems to be no doubt that a group of people came to the house on the day in question, and attacked the occupants. The only issue is whether the appellants were involved. The appellants denied having anything to do with the incident. Mr Glover and Mr Mahoney did not give evidence. Mr Mumme, Ms Bennett and Luke Bennett gave evidence. Luke Bennett admitted having the altercation with Mr Buckingham, saying that this arose because of a comment made to him by Mr Buckingham about Mr Mumme. Although he admitted being angry after that and having gone to Mr Mumme's house and picked up a metal bar, he said that he was persuaded by a friend, Mr Boyle, not to go ahead with his plan to fight Mr Buckingham. Mr Boyle wrestled with him, to stop him. As to the others, as I have said, their case was a denial of having anything to do with the incident.

21 Some of the accused suggested that the victims conspired to fabricate the assault and to damage the house, so that they could make a claim for compensation. As to that, the Judge reminded the jury of the point made by the prosecutor that it was surprising that all of the appellants happened to be at Mr Mumme's house at about the time in question, even more surprising that the fingerprint from Mr Glover would be found in the house, and as I gather was the case, that the DNA from Mr Buckingham would be found on Mr Mahoney's shirt.

22 I understand that the police came to the house not long after the incident in question. They arrived at about 9.40pm. They then went to Mr Mumme's house. There they found Mr Mumme, Mr Glover, Mr Mahoney, Ms Bennett and some teenagers. The appellants who were found there were arrested.

23 The Judge told the jury that there were four elements to this offence. They were that the accused entered or remained in the house, that they did so "without consent" and so as trespassers, that they intended to assault people in the house and that either they knew people were in the house or were recklessly indifferent as to that, or that they entered the house "with one or more other persons".

24 The appellants complain of the failure by the Judge to tell the jury that they had to be satisfied that the appellants knew they were trespassers and intended to enter as trespassers.

25 They also complain of the Judge's failure to bring home to the jury that the intent to commit an offence had to exist when each appellant entered as a trespasser, or while each appellant remained as a trespasser. The appellants also complain that the section which creates this offence refers to the relevant aggravating circumstance as being "in company" and that the Judge gave no direction at this point, beyond referring to the presence of "one or more other persons".

26 The Judge's direction as to what had to be proved to show that the appellants were in fact trespassers was sufficient for the case. There was no need for a more detailed direction.

27 I agree that the Judge should have told the jury that they could convict only if satisfied that the appellant in question knew he was a trespasser and intended to enter the premises as a trespasser. (I will come to the question of joint enterprise later).

28 It is consistent with principle to treat s 170 (1) of the Criminal Law Consolidation Act 1935 (SA) as requiring proof that the person charged knew that he or she was a trespasser, or was recklessly indifferent as to whether he or she was a trespasser. The section creates a serious criminal offence. Parliament should not be taken to have intended to punish merely unknowing or careless conduct that amounts to a trespass at law. The law of trespass is complex in some respects. Requiring proof that the person charged knew that a trespass was occurring, or was reckless as to that, will help ensure that the application of the section is appropriate. As well, High Court authority dealing with a somewhat similar provision indicates that the state of mind of the accused should be treated as an element of the offence: Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338 at 344, 348, 361, 365-6.

29 However, although the summing-up is defective in that respect, there can be no doubt at all that, if properly directed, the jury would have been satisfied that this element was made out. If the prosecution case was accepted the appellants must have known that they did not have permission to enter the house. Mr Sprague was barring their way, and on the evidence they forced their way in as a group.

30 Even if all appellants did not enter at once, any straggler must have known that the other appellants were fighting with the occupants of the house, or about to fight. It was a small house. The events happened over a fairly short space of time. None of the appellants, in the circumstances, could have failed to know that the entry into the house was without the consent of the occupants, and was made against their will.

31 Although the omission from the Judge's direction to the jury is a significant one, it could not have made any difference to the jury's deliberations. The defect is not so fundamental that it is incapable of being cured by the application of the proviso: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365.

32 Ms Davey, counsel for Luke Bennett, made the point that the charge was that the appellants "entered or remained" in the house, and so the jury had to be satisfied of the required mental element at each stage. That may be so, having regard to the manner in which the charge was drawn. It must have been clear, if the jury acted on the prosecution evidence, that each appellant knew that the entry was made without the consent of the occupiers, and that at all times while the appellants remained in the house, they knew their presence was without the consent of the occupiers.

33 Ms Davey also argued that the evidence about when Luke Bennett entered the house was fragmentary and unclear. He might have come in after the other appellants. I agree that the evidence about his role is not completely clear, although there is clear evidence that he was in the house, damaging property, while the fighting was taking place. I also agree that no witness gave evidence that Luke Bennett himself assaulted any of the occupants. Despite all that, I am of the view that, properly directed, the jury could not have failed to be satisfied that Luke Bennett entered the premises and remained there as a trespasser, knowing that he did so. It is fanciful to suggest that he might have thought otherwise, even though he may have been a visitor at the premises on other occasions. The manner in which the entry was made, and the fighting that transpired after the entry, left no room for doubt about this. Whether Luke Bennett entered with the others, or shortly after them, he must have known that the occupants were not consenting to the presence of the appellants. He must have known that he did not have their consent to enter or to remain.

34 I agree that the Judge should have told the jury that they had to be satisfied that each appellant intended to commit an assault at the time of entry or while remaining in the house. This was necessary, even though the prosecution case strongly pointed to a finding that the group entered the house intending to attack at least Mr Buckingham, and possibly others, and to deal with Mr Sprague if he tried to stop them. I will deal with this element of the offence under the next ground of appeal.

35 It would have been preferable for the Judge to give the jury some brief guidance on the issue of how they might infer an intention to assault the occupants of the house. But that is a relatively minor matter in the circumstances. The inference of an intention to attack the occupants of the house arises from the fact that, on the evidence, the appellants came to the house in a group, in an angry state, forced their way into the house, and immediately began fighting with the occupants. The jury did not need much assistance, on those facts, in deciding whether they should infer that the appellants entered the house intending to attack the occupants or some of them, or intending to assist each other in an attack.

36 The Judge told the jury that they had to be satisfied that the appellants entered the house with other persons. That was sufficient to establish that they did so "in company". In the circumstances there was no need for a separate direction about this element of the offence. On the facts, there was no real issue.

37 In short, there are several matters on which some brief directions should have been given, even making allowance for the importance of keeping things simple and focussing the jury's attention on the real issues. However, the failure to do so could not have had any affect on the jury's deliberations, subject to the need to find that each appellant intended to commit an assault. It is appropriate to apply the proviso. This ground should be rejected.

38 The Judge directed the jury that they could convict the appellants on the first four counts on the basis that they were involved in a joint criminal enterprise to commit the offences charged. In particular, in relation to the assaults it was not necessary for the prosecution to prove beyond reasonable doubt that each appellant individually assaulted each of the victims. An assault by one appellant pursuant to a joint criminal enterprise involving the appellants would suffice for all of them to be convicted.

" If two or more persons join together in a joint criminal enterprise, every act done and word spoken in furtherance of that design by any one of them is in law done and spoken by them all. In other words, the combined actions of two or more persons with a common criminal intent, which is previously agreed upon by them, will make them all guilty of the resulting crime. The law considers that in such circumstances, each person is acting both on his or her own account and as an agent for the other person or persons concerned."

40 The Judge pointed out that mere presence at the scene of the crime was not enough. He also said:

" A joint criminal enterprise is usually a matter of inference from conduct. You look at the proven acts of each of the persons in light of the evidence as a whole, then you decide whether those acts in combination justify the inference that there must have been a joint enterprise between those persons.

The parties to a joint criminal enterprise to assault the occupants of a house may not always know at the outset precisely who will be assaulted and to what extent. All the prosecution need do, however, is to prove that the assault or assaults actually committed were in the contemplation of the parties as a possible incident or outcome of their joint criminal enterprise. If a party to a joint criminal enterprise commits, on the spur of the moment, a criminal act, which is quite unexpected and quite outside the contemplation of the other parties, then the other cannot be held responsible for that criminal act. The criminal act would not have been committed in furtherance of the joint criminal enterprise."

41 A little later in the summing up, the Judge formulated some questions for the jury to consider in relation to each count. As to counts two to four, the Judge invited the jury to consider whether the accused assaulted the victim in question, or "join[ed] with others in a joint criminal enterprise to assault" the victim.

42 Two attacks were made on the directions. First, the appellants complain that the jury were not told that they had to be satisfied beyond reasonable doubt as to the existence and terms of the agreement upon which the direction rested. Secondly, the appellants complain that the Judge failed to relate his directions sufficiently to the facts. They submitted that the Judge should have assisted the jury as to the basis upon which they might infer there was an agreement, and as to the terms or scope of the agreement.

43 For the jury to convict on the basis of a joint criminal enterprise, the jury had to be satisfied that the appellants agreed to go to the house and to assault one or more of the occupants of the house. The agreement could have been formed at Mr Mumme's house, or while they were walking to the victim's house. The agreement could have been express, or it could have been an unspoken understanding between the appellants, arising from their conduct. The agreement could have been reached or the understanding could have arisen while they were approaching the victim's house, or as they entered it or very shortly after the entry. The agreement or understanding did not have to go to the extent of identifying who would do what. It was sufficient if they agreed or understood that they would go there together, enter the house and that one or other of them would assault one or other of the occupants.

44 I agree that as a matter of principle the jury had to be satisfied beyond reasonable doubt of an agreement or arrangement along these lines, if they were to convict on the basis of a joint enterprise. The jury's satisfaction as to the existence of a joint enterprise can be equated to the jury's satisfaction as to the existence or proof of the elements of each offence. Alternatively, the agreement or understanding on which the joint enterprise was founded can be regarded as an intermediate fact which constituted an indispensable basis for an inference of guilt, or an indispensable link in a chain of reasoning towards guilt: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 576 Mason CJ, at 579 Dawson J.

45 I turn now to the directions that the Judge gave. The Judge told the jury that the "elements" of each offence had to be proved beyond reasonable doubt. The Judge then identified the elements of each offence. Saying that he had dealt with "the elements of each of the offences", the Judge said that he then had to deal with "the principle of joint criminal enterprise". The Judge then gave the directions summarised above.

46 The Judge's approach drew a contrast between the elements of each offence and "the principle of joint criminal enterprise". When making the point that mere presence at the scene was not enough for a joint enterprise, the Judge said "the evidence must indicate the existence of a joint criminal enterprise". He did not explain what "indicate" meant. In a passage set out above, he told the jury that they could infer from the conduct of the appellants that there was a joint enterprise. He did not say that inference must be drawn beyond reasonable doubt. At no stage did the Judge tell the jury that whenever he said something must be proved, that meant proved beyond reasonable doubt. When the Judge came to identify the questions that the jury might ask themselves with respect to each count, he said that these questions arose once they had "considered the elements of the offences and the principle of joint criminal enterprise". A little later he said that a submission by some defence counsel that an inference could be drawn from a piece of evidence, only if the jury was satisfied of its accuracy beyond reasonable doubt, was not the law. He said:

"It is only when you come to your conclusion about the elements of the offences, in the light of the evidence overall, that you must apply the relevant onus of proof."

47 The appellants submit that the effect of all this was to leave the jury thinking that while the elements of each offence had to be proved beyond reasonable doubt, the agreement or understanding that was the basis of a joint enterprise need not be established beyond reasonable doubt.

48 It is relevant to bear in mind that the part of the Judge's directions dealing with the elements of the offences, joint criminal enterprise and certain other matters of law were provided to the jury in writing and read to them by the Judge.

49 I agree that the Judge drew a contrast between proof of the elements of the offences, and all other matters, and that he did so in a manner that may have left the jury thinking that the agreement or understanding on which a joint enterprise was based, need not be established beyond reasonable doubt. The problem lies in the emphasis the Judge placed on the need to prove only the elements of the offences beyond reasonable doubt, in the absence of a general direction that any reference to proof meant proof beyond reasonable doubt, and in the use of expressions that might well have suggested to the jury that in relation to joint enterprise the requirement for proof was a lesser requirement than in relation to the elements of the offence. Bearing in mind that the jury had this part of the summing up in written form, it is relevant to bear in mind that if they had examined it closely they could easily have decided that the Judge intended to draw a contrast in this respect.

50 The verdicts returned by the jury suggest that the direction in relation to joint criminal enterprise had an effect on their reasoning. The jury convicted one member only of the group on each of counts three and four, but convicted all members of the group on count two (the assault on Mr Buckingham), even though on the evidence this assault directly involved only Mr Mahoney and possibly Mr Glover. The verdicts suggest that the jury found that the appellants entered the house pursuant to an agreement or arrangement to assault Mr Buckingham, and that they took the view that the other assaults were unrelated to the agreement or understanding. It may be that the directions as to joint criminal enterprise also affected their verdict on count one. That is something to which I will return in a moment.

51 I also accept the submission that the Judge should have done more to relate his direction about joint criminal enterprise to the facts. The evidence suggested quite strongly that the appellants went to the house, having agreed expressly or by their conduct, to attack Mr Buckingham. But the Judge did not give the jury any assistance on how they might decide whether an agreement or understanding should be inferred from the conduct of the appellants. Nor did he bring home to the jury the need to consider when the agreement or understanding was reached - on the way to the house, in the front yard, or at some stage at the house. More guidance was needed than the Judge gave, to avoid the risk of loose reasoning by the jury.

52 In these respects the summing up was deficient. The deficiency was a material one. It cannot be said that there is no risk of a miscarriage of justice.

54 I deal first with count two, the assault on Mr Buckingham. The jury must have found that Mr Mahoney assaulted Mr Buckingham. That was the basis of the prosecution case. On the evidence, Mr Mahoney was the main attacker on Mr Buckingham. The jury might well have convicted the others on the basis of an agreement or understanding that one or other of the group would attack Mr Buckingham. Accordingly, the conviction of the appellants other than Mr Mahoney might have resulted from the erroneous direction. But in my opinion Mr Mahoney's conviction on count two should stand, there being no reason to doubt that the jury was satisfied that he actually assaulted Mr Buckingham.

55 I turn to count one, the aggravated offence of serious criminal trespass. Having regard to the directions, the jury must have been satisfied beyond reasonable doubt that each appellant entered or remained in the house as a trespasser, that each appellant did so "in company", and that each appellant knew there were people in the house or was recklessly indifferent as to that matter. The direction as to joint enterprise was relevant only to the element of an intent to commit an offence, namely an assault.

56 The jury convicted Mr Mumme alone on count 3, the assault on Mr Sprague. This was based on conduct that occurred more or less as the group entered the house. The jury must have been satisfied that Mr Mumme entered the premises intending to assault Mr Sprague. At the very least they must have been satisfied that he remained there with that intent. As to Mr Mahoney, in my opinion the jury must have been satisfied that he also entered the premises with the intent to assault Mr Buckingham. That assault began more or less as the group entered the house. The convictions of Mr Mumme and Mr Mahoney on count one do not depend upon the existence of a joint enterprise. However, the verdicts of the jury indicate that the convictions of Luke Bennett and Mr Glover may well have rested on that direction, because neither of them was separately convicted of any offence of assault. The conviction might have been based on an agreement or understanding to which they were party. Accordingly, their convictions on count one should be set aside.

57 In summary, on count one the convictions of Luke Bennett and Mr Glover should be set aside, and a retrial ordered. As to count two, the convictions of Luke Bennett, Mr Glover and Mr Mumme should be set aside and a retrial should be ordered. The error identified so far could have had no impact on the convictions of Mr Mumme and Mr Mahoney on count one, the conviction of Mr Mahoney on count two, the conviction of Mr Mumme on count three and the conviction of Luke Bennett on count five.

58 Luke Bennett gave evidence. He said that when Mr Buckingham or Mr Sprague made a disparaging remark about Mr Mumme, he lost his temper and swung a punch at Mr Buckingham. He then went home to collect a trolley handle, intending to return to the house to fight Mr Buckingham. A friend wrestled with him to stop him doing this. He then ran away because he was on bail at the time, and there was a warrant out for his arrest. He thought that someone in the street would call the police because he was wrestling in the street with his friend. Part of his evidence was that the friend was trying to stop him from getting into trouble because of this background.

59 Ms Davey argued that this evidence could have reflected adversely on Luke Bennett's character, and that the Judge should have warned the jury not to allow themselves to be influenced by the evidence. The Judge referred to the evidence in his summing up, but gave no warning or caution to the jury. Counsel for Luke Bennett at trial raised with the Judge the question of whether he should caution the jury not to draw an adverse inference. The prosecutor did not oppose this being done. The Judge commented that he did not think it was a possibility that the jury would reason in this way, and enquired of counsel whether he wanted the matter highlighted. Counsel for Mr Bennett said that he did not pursue the request. The Judge did not give the jury a warning.

60 Although many judges in such a case would have cautioned the jury against drawing any adverse inference from the fact that Luke Bennett was on bail, and the fact that there was a warrant for his arrest, the Judge was not required to do so. His failure to do so could not have caused a miscarriage of justice.

61 The evidence was introduced by Luke Bennett as part of his defence. It was used to explain why he ran away, and why he hid in a house nearby when he saw that the police had come to No. 57 Connell Street. That being so, it was not open to the Judge to tell the jury to disregard the evidence, nor was it appropriate to ignore the evidence, as is sometimes done when adverse evidence unexpectedly or accidentally gets before the jury.

62 When evidence is admitted that discloses bad character on the part of the accused, usually the trial judge should explain to the jury the permissible use of the evidence, and warn them against its impermissible use. This is a basic principle.

63 The Judge in effect told the jury of the permissible use of the evidence. He referred to it as Luke Bennett's explanation for running away. He did not warn them against drawing an adverse inference about Luke Bennett's character. But, to my mind, no reasonable jury could have treated the fact that Luke Bennett was on bail, or that there was a warrant for his arrest, as reflecting on his credibility. Nothing was said about what lay behind these matters. Nor, in themselves, do they obviously reflect on credibility. Nor, to my mind, was there any danger of the jury inferring from the evidence that Luke Bennett was a person of a type likely to commit the offence in question. It was Luke Bennett's own evidence that he intended to return to fight with Mr Buckingham, and was restrained by his friend. In other words, on his own evidence there is a tendency to be aggressive, and it could not be said that the reference to bail and the warrant might have been the source of that suggestion to the jury.

64 For those reasons, although it would have been preferable if the Judge had given the direction asked for, his failure to do so did not cause a miscarriage of justice.

65 The case against Mr Glover rested largely on a photographic identification of him by Mr Sprague, the presence of a fingerprint of his on the wall of the room in the house at No.57 Connell Street, and the fact that he was present at No.47 Connell Street with some of the others shortly before and shortly after the incident occurred.

66 Mr Glover did not give evidence. There was evidence from others suggesting that he had visited No.57 on an earlier occasion. This was used to suggest that the fingerprint might have been left there on a previous occasion.

67 The fingerprint was observed by a crime scene investigator. He said it was "within one of the blood marks on the wall". This was a reference to blood smeared on the wall, apparently during the attack. This witness photographed the fingerprint, and a fingerprint expert identified the fingerprint from the photograph.

68 On appeal, Mr Nitschke, counsel for Mr Glover, submitted that the Judge wrongly referred to a fingerprint as implicating Mr Glover, when the defence case was that it could not and did not. There is nothing in this point. The Judge was merely summarising the prosecution case.

69 Mr Nitschke submitted that the Judge erred in failing to remind the jury of evidence that the fingerprint could not be "aged", and so might have been put there some time ago. Linked to this was a complaint that the Judge failed to remind the jury that it was unclear whether the fingerprint was actually in the blood smear, or whether the blood smear was over the top of the fingerprint. If the latter was a reasonable possibility, then the fingerprint could have been put there earlier.

70 I agree that the Judge might well have said a little more about this, to help the jury. But the Judge reminded the jury of counsel's submission that the fingerprint might have been left on the occasion of a previous visit. He did not suggest that there was anything in the prosecution evidence to counter that suggestion. Under the circumstances that was enough.

Mr Glover - photographic identification and circumstantial evidence

71 Mr Sprague identified a photograph of Mr Glover as a photograph of one of the unknown men involved in the attack. This was done six weeks after the attack. No criticism was made of the procedure followed by the police in connection with the photographic identification.

72 There were two notable features of the identification by Mr Sprague. He described the unknown man as being clean shaven. However, apparently the photograph of Mr Glover taken by the police on 28 December showed that he had a moustache. Another feature of his evidence was that he said the unknown man was a man he had previously had contact with at Mr Mumme's house, but in cross-examination he appeared to say that the unknown man was a different person with whom he had had contact at Mr Mumme's house, and then later again he said that the first man referred to was not the unknown man.

73 Mr Nitschke submitted that the Judge's direction to the jury in relation to the photographic identification was, in the circumstances, inadequate. I agree. Although I have already concluded that the convictions recorded against Mr Glover should be set aside, it is appropriate to explain, as briefly as I can, why I agree with the criticisms.

74 The Judge's general directions about the dangers of identification evidence, and about the dangers of photographic identification, were sufficient. Although the Judge did not tell the jury that people have been wrongly convicted on the basis of unreliable identification evidence, it is not essential that that be said in every case. It is a good way of making the point that identification evidence calls for great care. It is a point often made to juries. As long as that point is made to the jury adequately, the requirements of a fair trial are observed.

75 However, the Judge's direction to the jury fell short of what was required when it related the general warnings to the facts of the case. Although it is a matter of impression, I consider that the difficulties connected with Mr Sprague's photographic identification warranted more emphasis than the Judge gave them. Standing alone, that might not matter. However, later in his summing-up the Judge reminded the jury that the circumstances of the attack must have been frightening for the occupants of the house, and that it would not be surprising of the victims did not recall all of the details of the appearance of the attackers. That was a reasonable point to make. In that context he said that the jury might be reluctant "to place much reliance upon descriptions which fit or do not fit a particular accused." Almost immediately before that, he had mentioned some details that witnesses might be unclear about, and one of them was "moustache or no moustache". This comment might have undermined the early direction, because it was capable of suggesting to the jury that they need not be troubled by the fact that Mr Sprague described the unknown man as clean shaven, but identified him by reference to a photograph which showed that Mr Glover had a moustache at the time.

77 The Judge told the jury that the case against Mr Glover was a circumstantial one. He then referred to the three main items of evidence on which the prosecution case rested (outlined above), including the photographic identification. The Judge went on to tell the jury, in terms often used, about how they should approach circumstantial evidence. He made the usual point that the combined effect of circumstances might be much more powerful than the individual effect of any one circumstance. In effect, he told them to consider the three items of circumstantial evidence together. Although he gave a particular direction about the identification evidence, he did not tell the jury that they should assess the reliability of the photographic evidence in isolation, before they considered whether, in combination with the other evidence pointing to guilt, it was sufficient to prove guilt beyond reasonable doubt.

78 Gray J has dealt with this matter in his reasons which I have had the benefit of considering.

79 The decision of this Court in R v Goode [1970] SASR 69 at 78 supports the approach taken by the Judge, and supports the conclusion of Gray J that there was no need for the jury to assess the reliability of the identification evidence in isolation, before considering its effect in conjunction with the other evidence pointing to guilt. So do remarks which he cites from R v Turnbull [1977] 1 QB 224 at 230. In R v Coxon [2002] SASC 165; (2002) 82 SASR 412 at [31] Prior J took the same approach, differing from the approach of Mullighan J in R v Turner [2000] SASC 27; (2000) 76 SASR 163 at [102]. As I understand his reasons, Perry J at [38] expressed a view similar to that of Mullighan J.

80 There is no reason to doubt that, ultimately, the jury must consider any identification evidence along with the other evidence in the case, in deciding whether they are satisfied beyond reasonable doubt that the accused is guilty. The question is whether before doing so the jury should first consider the reliability of the identification evidence in isolation. If they do not, identification evidence that is unreliable might be put into the scales by the jury because it is supported by other evidence pointing to guilt. It might be said that if that happens, the purpose of the warning about identification evidence is undermined. On the other hand, it might be said that if the identification evidence is supported by other evidence pointing to guilt, it is appropriate to take that matter into account in deciding whether to act on the identification evidence.

81 Although the Court heard submissions on the point, we did not hear full argument on the point. Some of the cases referred to by Gray J were not referred to in argument. Although, as I have said, the decision in Goode is authority for the approach taken by Gray J, differing views have subsequently been expressed in this Court, and the law relating to identification evidence has developed somewhat since the decision in Goode.

82 I have come to the conclusion that it is better not to express a final view on this point, without the benefit of full submissions, and accordingly I refrain from doing so.

83 The other complaints about the Judge's directions concerning circumstantial evidence are without substance.

Mr Glover - record of interview and defence case

84 Mr Nitschke complained that in reminding the jury of the exculpatory statements in Mr Glover's statement to the police, the Judge failed to remind them of matters that might have added weight to the statements. For example, the Judge did not remind the jury that Mr Glover made the statements in the course of a formal interview, in which he could have declined to answer any questions.

85 I do not accept this complaint. It was not necessary for the Judge to go into this sort of detail. It was sufficient to point out, as he did, that the statements were not made on oath and to remind them of the substance of what Mr Glover said.

86 I also reject the submission that the Judge did not adequately put the defence case to the jury. He covered the essentials. It was for the Judge to decide how much detail he would include.

87 I reject the submission that the verdicts are inconsistent.

88 The verdicts are readily understandable on the basis that the jury decided that the appellants entered the house under an agreement or arrangement to attack Mr Buckingham (who had earlier annoyed Mr Mumme). That explains the verdicts finding all appellants guilty on count one and count two. The verdict finding Mr Mumme alone guilty on count three and Ms Bennett alone guilty on count four suggests that the jury took the view that those assaults were not part of the agreement or understanding.

89 The submission put on this point seemed to turn on the fact that some verdicts were unanimous and some were majority verdicts. If there is a complaint, the complaint must relate to inconsistency between the verdicts, not to the number of jurors who supported a given verdict.

90 I outlined Ms Overton's evidence earlier in these reasons. I now add a little more detail. She said that she saw a number of people going towards the house at No.57, and then saw a number of people in the front yard. A little later she saw people running away from No.57 in the direction of Mr Mumme's house. One of the men going past her house was someone she had seen at the house occupied by Mr Mumme almost daily, but she had never met him. In court she was permitted to identify Mr Mumme in the dock, with the other accused, as one of the men she had seen running past her house. She was not able to identify any of the other accused in court.

91 Mr Crocker, counsel for Mr Mumme, argued on appeal that the in court identification was inadmissible. He also argued that the Judge's directions in relation to the whole of this evidence were inadequate.

92 The Judge adequately summarised Ms Overton's evidence, and the circumstances in which she made her observations on 28 December. I consider that in this respect what he said was sufficiently detailed. In relation to this evidence he reminded the jury of the general directions which he had given, in relation to Mr Buckingham's identification evidence, about the dangers of identification evidence. As I have already said, in my view, those general directions were adequate.

93 In considering the way in which the Judge related the general directions to the facts of the case, it is relevant to bear in mind that Ms Overton's evidence about what she saw on the night of 28 December was evidence that she recognised a man whom she had seen in the street on a regular basis. The Judge might usefully have referred in a little more detail to the factual matters that required consideration, when assessing the value of this evidence, and it may be that the direction should have emphasised more than it did the need for care. However, in relation to this part of the direction I consider that it was sufficient for the purpose of bringing home to the jury the risk of a mistake having been made by Ms Overton.

94 I turn to the in court identification. Evidence of an in court identification is usually admissible: R v Britten (1989) 51 SASR 567 at 571-572 King CJ: Jokic v Hayes (1990) 53 SASR 530 at 535-536 Mullighan J. However, an in court identification will usually be of negligible value, for reasons that are well known: Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 426-427 Mason J; Festa at [18] Gleeson CJ.

95 In the present case there were four men and one women in the dock when Ms Overton was asked if she could identify Mr Mumme. The fact that she identified him, and said that she could not identify any of the others, can be said in a general way to add some weight to her evidence. Bearing in mind her evidence that Mr Mumme lived in the same street as her, and that she had seen him on a daily basis, my view is that the identification in court was of negligible value. It was obvious that she would recognise him, and there was a risk that she would think that he must be the man in question.

96 It is surprising that the Judge did not tell the jury about the dangers of in court identification. I should add that Ms Overton was a witness who came forward very late in the piece, and for that reason, more reliable forms of identification had not been attempted.

97 To my mind in this case the important evidence was Ms Overton's evidence about her observations on the night of 28 December, and her evidence that she recognised one of the men as the man she had seen on a daily basis at Mr Mumme's house. And it was that evidence to which the Judge directed his warnings to the jury. The identification in court of Mr Mumme as the man she saw merely completed a process of linking that evidence to the prosecution case, but was evidence to be approached with care. There is no doubt in my mind that the Judge should have told the jury about the limitations of in court identification evidence. Did that omission give rise to a miscarriage of justice? Is there a risk that the jury gave undue weight to the in court identification? This is something that has troubled me, but in the end I have decided that the omission by the Judge does not give rise to a miscarriage of justice. Significant to this conclusion is the fact that Ms Overton was telling the jury that she well knew the man in question by sight, as the man who lived at Mr Mumme's house. It was a case in which the act of identifying him in court was of no great significance in itself. That act was merely confirmatory of her other evidence. As well, there were three other witnesses at trial who said that Mr Mumme was present. And, rightly, the Judge's directions focussed on the observations made by Ms Overton on the night of 28 December. That was the important evidence.

98 For those reasons I do not accept that this ground to appeal is made out, although I agree the Judge should have told the jury about the limited value of the in court identification.

99 As the convictions recorded against Luke Bennett and Mr Glover should be set aside, there is no need for me to deal with their appeals against sentence. One of the convictions recorded against Mr Mumme (the conviction on count two) should be set aside. It follows that the single sentence imposed on him should be set aside, even though he did not appeal against the sentence. He will have to be re-sentenced. Mr Mahoney did not appeal against the sentence imposed on him, and accordingly his sentence must stand.

100 For those reasons the convictions recorded against Luke Bennett on count one and count two must be set aside. The sentence imposed on him falls with those orders. The convictions recorded against Mr Glover on counts one and two must be set aside, and the sentence imposed on him falls with those orders. In relation to Mr Mumme, his appeal against his conviction on count two should be allowed, and that conviction should be set aside. His appeal against the convictions on count one and count three should be dismissed. The sentence imposed on Mr Mumme should be set aside. The appeal by Mr Mahoney against his conviction on count one and count two should be dismissed. There should be a retrial on the charges on which the convictions were set aside.

101 PERRY J. I agree with the orders proposed by Doyle CJ and with his reasons.

102 I agree with Doyle CJ that there may be some differences of opinion expressed in the authorities decided in this Court on the question whether the reliability of positive evidence of identification should first be considered by the jury in isolation from other evidence in the case. While I refrain from expressing a concluded view on the matter, in my opinion, the relevant principles should be as follows:

(a) In determining the adequacy of the warning, one has regard only to evidence relating to the circumstances of the identification, not to any other evidence in the case.

(b) The jury must be directed that in determining whether they accept evidence of positive identification, whether direct or circumstantial, they must have regard only to the evidence relating to the identification.

(c) Points (a) and (b) do not apply to what the Chief Justice describes as similarity evidence.

(d) If the jury is not satisfied beyond reasonable doubt of the accuracy of the evidence of positive identification, it must be disregarded for all purposes in the case. It cannot be put into the scales in some reduced form in determining whether or not the charge is made out.

(e) Point (d) is subject to the qualification that where evidence of positive identification includes similarity evidence relating to a tangible item, or distinguishing characteristic eg an item of clothing or something carried or use of a vehicle fitting the description of a vehicle used in the crime, the colour of hair or the like, and the jury, while not satisfied that the evidence amounts to positive identification, if satisfied beyond reasonable doubt of the evidence relating to the existence of any such item, or distinguishing characteristic, may use it as part of the body of circumstantial evidence.

(f) Once evidence of positive identification of either kind is accepted by the jury it should then be taken into account in the general body of evidence in the case in determining whether the charge is made out.

103 On 23 December 2003 orders were made disposing of these appeals. I now publish my reasons. Generally I agree with the reasons of Doyle CJ, however I wish to separately address the issue of identification.

104 Mr Glover was charged with aggravated serious criminal trespass and assault. It was the Crown case that Mr Glover entered private premises with the others and whilst on the premises assaulted David Buckingham, Jason Sprague and Lorna Clark.

105 The case against Mr Glover raised the issue of identification. None of the Crown witnesses knew Mr Glover. The Crown relied on positive identification evidence. Jason Sprague identified a photograph of Mr Glover as being a person present at and engaging in the assault. The photograph identification occurred at a police station. This was direct evidence.

106 The Crown also relied on the presence of Mr Glover's fingerprints on a smear of blood on a lounge room wall in the premises and on the presence of Mr Glover with other accused at a nearby house property shortly before the alleged offences occurred. These were items of circumstantial evidence.

107 The trial judge summarised the evidence in these terms:

As for the accused Arthur Glover, none of the alleged victims knew him and so the prosecution's case against him is a circumstantial one. There are three items of circumstantial evidence which the prosecution has put before you. The first is the choice by Jason Sprague of Arthur Glover's photograph in the folder of photographs Exhibit P6 at the Elizabeth Police Station on 8 February 2002. The second is the presence of Arthur Glover's fingerprints on a smear or blood on the wall of the lounge room at No.57. And the third is the presence of Arthur Glover at No. 47 with the other accused shortly before the incident occurred.

108 The judge identified the need to give a warning with respect to the photographic identification evidence. He spoke in general terms of the problems associated with identification evidence. His general warning was in unexceptional terms. The judge then gave a specific warning about Mr Sprague's photographic identification:

The warning I give to you is that you must be very careful about relying upon the photographic identification of the accused Arthur Glover by Jason Sprague. I am not saying that you cannot rely on it, what I am saying is that you must scrutinise it most carefully in the light of the warning that I have given before you do rely on it.

109 Having given this warning the judge then drew attention to particular matters that the jury might consider relevant when scrutinising Mr Sprague's photographic identification evidence. He drew attention to the topic of lighting, the distance of the observation, the lapse of time between observation and identification, whether there were any unique features about the unknown male, Mr Sprague's state of mind at the time of the observation and the possible influence of fear, stress and duress.

110 In the course of the judge's direction, attention was drawn to those features of the identification evidence which might lead the jury to consider the evidence unreliable. The weaknesses or potential weaknesses in the evidence were identified to the jury.

111 In the course of Mr Glover's appeal a challenge was made to the adequacy of the trial judge's summing up concerning the evidence of identification. There was debate concerning the manner in which direct and circumstantial evidence of identification should be treated and about the relationship between the two forms of evidence.[1]

112 On appeal counsel for Mr Glover submitted that the judge had misdirected the jury when describing the photographic identification evidence as circumstantial evidence. It was argued that the evidence was direct evidence of identification. As earlier observed Mr Sprague said that the man he saw at the house at the time of the incident was the same person as the man pictured in the photograph. Other evidence established that the photograph identified by Mr Sprague was Mr Glover. Counsel for the Crown accepted that this was direct evidence and that the judge had wrongly characterised the evidence as circumstantial.

113 Before addressing the question of the consequences, if any, of this mis-characterisation of the evidence, it is convenient to record some general propositions concerning identification evidence, its character and the consequential warnings that may be required.

114 Identification evidence is admissible in accordance with and subject to the ordinary evidentiary rules. Identification evidence is relevant and admissible if it has a tendency to prove a fact in issue. In R v Smith[2] Gleeson CJ, Gaudron, Gummow & Hayne JJ observed:

As is always the case with any issue about the reception of evidence, identification evidence being no exception, the first question is whether the evidence is relevant. No attention was given to this question in the arguments advanced at trial, or on appeal to the Court of Criminal Appeal, but that question must always be asked and answered. Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore :

"None but facts having rational probative value are admissible,"

and

"All facts having rational probative value are admissible, unless some specific rule forbids."

In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue.

If identification evidence is relevant it is admissible and will be admitted subject to the general discretion to exclude. Once admitted the identification evidence forms part of the total body of evidence to be considered by the jury when considering its verdict.

115 Identification evidence at times has been described as positive identification evidence. Positive identification evidence may be direct or circumstantial. This description was discussed in Festa v The Queen [3] where McHugh J observed:

Most cases concerned with identification evidence are cases of positive identification. That is to say, cases where a witness claims to recognise the accused as the person seen on an occasion that is relevant to the charge. Positive-identification evidence may be used as direct or circumstantial proof of the charge. A positive identification of the accused is direct evidence of the crime when it identifies the accused as the person who committed one or more of the acts that constitute the crime in question. A positive identification is circumstantial evidence when its acceptance provides the ground for an inference, alone or with other evidence, that the accused committed the crime in question. A witness gives direct evidence of the charge when she testifies that the accused ordered her to hand over the takings. A witness gives circumstantial evidence of the charge when she testifies that the accused was the person who ran out of the bank immediately after other evidence proves it was robbed.

116 In R v King[4] Hogarth ACJ, Mitchell and Zelling JJ discussed positive identification evidence then described as 'recognition evidence'. Their Honours observed:

Recognition constitutes a mental process whereby one person, by observation, is able to establish to his own satisfaction the identity of another person. In doing so he no doubt takes into account the general physical characteristics of the person who he is recognising. But a complete catalogue of these personal characteristics, if supplied to a stranger, would be insufficient to enable that stranger to achieve the same act of recognition. At most he could say that the person at whom he is looking could be the man recognised, in that the description fits him. He could not say "it is the man"; and it is evidence of the last category which constitutes recognition; it is that type of evidence of which the cases speak when they refer to evidence of identification. It is that type of evidence which the law requires, in certain circumstances, to be accompanied by a warning to the jury.

117 Identification evidence has also at times been described as circumstantial identification evidence or similarity evidence. In Festa[5] McHugh J commented:

Unfortunately, another class of evidence is sometimes called "circumstantial identification evidence". It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.

118 These descriptions or labels have been commonly used in the context of the development of warnings to be given about the dangers and use of identification evidence. However, the use of a particular label or description does not limit or effect the application of established evidentiary rules. In Festa[6] Hayne J summarised the position in these terms:

... It is, however, important to recognise that evidence which the prosecution relies on, to demonstrate that it was the accused who committed the alleged crime, may take many forms. The convenience of classifying some or all of those different kinds of evidence should not be allowed to obscure the fundamental reasoning that underpinned this Court's decision in Domican v The Queen. In particular, deciding where the boundaries between classes of evidence may lie must not obscure the purpose of what is now commonly called a Domican direction.

119 Identification evidence however described may require a special warning. A warning may be obligatory.[7]

120 In Domican v The Queen[8] Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed:

[T]he seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

This Court has insisted that where identification evidence, direct or circumstantial, represents a significant part of the proof of guilt of an offence, trial judges must warn juries not only of the potential unreliability of that evidence but also of any particular weaknesses in the evidence, in the case being tried.

121 The nature, extent and content of a warning will depend on the circumstances of each case. In Domican a full warning was required. The court spelt out its terms. The following observations about the content of the warning were made in Domican, and more recently reinforced in Festa:

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]

122 As earlier observed once admitted, identification evidence forms part of the body of the evidence before the jury. In Festa[13] Gleeson CJ addressed the topic of the totality of the evidence before the jury and observed:

Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is "weak", and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence.

123 In R v Goode[14] Bray CJ, Mitchell and Zelling JJ were concerned with the situation of incriminating circumstantial evidence additional to that of an identifying witness. They made the following remarks:

Here the vital evidence was that of Mrs McMahon. If she had been unable to identify the applicant, the sight of him by Baker and Mrs Hyde in the vicinity at the relevant time, if they did see him, and his hurried departure from Adelaide on the following day, could not have possibly supported a conviction by themselves. ... [Mrs McMahon's] evidence alone connects him directly with the crime. The vital question for the jury was whether they would accept her identification. Undoubtedly the evidence of Baker and Mrs Hyde, coupled with his denials, and the sudden departure from Adelaide were matters highly relevant for the jury to consider in deciding that question, but they were not matters which in themselves pointed directly to the applicant as the criminal. It seems to us that their bearing on the acceptance of her evidence should have been counterbalanced by an adequate warning about the dangers inherent in identifications such as hers.

This case preceded the development of the description 'positive identification evidence'. However the identifying witness Ms McMahon gave evidence that would now be described as positive identifying evidence. The court considered that the jury were entitled to consider the circumstantial identification evidence when deciding whether to accept the positive identification evidence. However the court emphasised the need for an adequate warning.

124 In R v Turnbull[15] the English Court of Appeal took a similar view:

The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have the quality, the judge should say so. A jury, for example, might think that support for identification evidence could be found in the fact that the accused had not given evidence before them. An accused's absence from the witness box cannot provide evidence of anything and the judge should tell the jury so. But he would be entitled to tell them that when assessing the quality of the identification evidence they could take into consideration the fact that it was uncontradicted by any evidence coming from the accused himself.

125 In Festa[16] Gleeson CJ summarised the position as follows:

For any one of a number of reasons, evidence of observations, including evidence of positive identification, may be made in circumstances which adversely affect its reliability. Those circumstances may be beyond anybody's control, or they may result, for example, from the way police have conducted an investigation. In Davies and Cody v The King this Court considered evidence of positive identification of an accused by a witness whose previous knowledge had not made him familiar with the accused, and who was first shown the accused, alone, as a suspect. The risk involved in identification made in those circumstances is obvious. The Court said:

"[I]f a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe."

That passage assumed the admissibility of the evidence, and accepted the possibility that, although standing alone the "liability to mistake" of such evidence was apparent, in combination with other evidence, even other evidence of the same kind, it might sustain a conviction.

These and like principles have been expressed in many cases. In my opinion, they ought to have been applied in this case by the trial judge and the Court of Appeal. Although it is true that the identification evidence, once admitted, has to be considered as part of the entirety of the evidence in the case, and in that sense may become part of the "circumstantial evidence" offered against the accused, an objection to the admissibility of identification evidence cannot be met by simply categorising it as just another piece of the circumstantial evidence, part of the "jigsaw" as it were, and thus sufficiently addressed by appropriate warnings. If that were so, all identification testimony would be tendered as "circumstantial evidence".

127 In R v Coxon[18] Prior J considered this issue:

The prosecutor was correct to make the concession he did to the trial judge. The circumstantial evidence was admissible and could be taken into account by the jury in conjunction with the [positive identification] evidence from Potter. It was not of itself sufficient to exclude all reasonable hypotheses consistent with innocence. The presence of that circumstantial evidence might serve to support the reliability of Potter's claimed recognition of the appellant but only after the jury had been properly alerted to the dangers associated with evidence of identification.

128 In R v Murphy[19] the court was concerned with positive identification evidence as well as additional circumstantial evidence. A similar view was taken. Perry J commented:

However [identification evidence] is given, and however it is expressed, whether as positive evidence of identification or an opinion as to similarities, it is for the jury to assess the probative value of the evidence in the context of the evidence as a whole.

129 In R v Turner[20] it has been suggested that Mullighan J took a different view:

Assuming there is evidence of identification fit to be considered by the jury, the correct approach is for the jury to reach a conclusion about that evidence without considering the other evidence in the case; see Domican at 565. However, if the evidence is less than a positive identification, such as where the witness says the accused "looks like" or "similar to" the offender, that evidence may be used as circumstantial evidence but not as evidence of identification: Murphy v The Queen.

The other members of the court in Turner, Doyle CJ and Perry J, did not comment on this particular issue. However the remarks of Mullighan J were criticised in Coxon[21] where Prior J observed:

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.

130 The above observations confirm that the photographic identification evidence in the present case was direct evidence calling for a clear warning of any matter of significance which may reasonably be regarded as undermining its reliability. The judge's direction would have left the jury in no doubt that they had to be satisfied beyond reasonable doubt about the accuracy of the photographic identification evidence before acting upon it. The judge in the course of his summing up said:

As the prosecution case against the accused Arthur Glover rests upon circumstantial evidence, I need to direct you that you cannot return a verdict of guilty of any charge against him unless the circumstances exclude any reasonable explanation consistent with his innocence. In other words, before you can be satisfied that Arthur Glover is guilty of any of the offences charged against him, you must be satisfied not only that his guilt is a rational inference but that it is the only rational inference that the circumstances you find proven enable you to draw.

So you will see that your approach to the circumstantial evidence against Arthur Glover requires two steps: first you must decide what facts you accept as established by the evidence, then you must consider what inference or inferences you are prepared to draw from those facts. I repeat, as the prosecution case against the accused Arthur Glover rests upon circumstantial evidence, you cannot return a verdict of guilty of any charge against him unless the circumstances exclude any reasonable explanation consistent with his innocence.

To speak of evidence in a case as circumstantial does not imply that the evidence is necessarily weak or unsatisfactory. Circumstantial evidence can afford very secure grounds for a conclusion of guilt. A case which depends upon circumstantial evidence is sometimes likened to a rope and the many strands which go to make it up. A rope has the combined strength of all of its strands, some of the strands may be strong while some of them may be weak. When they are all twined together, they produce a total effect and strength which is greater than the strength of any one of the strands. The weight of a case which depends upon circumstantial evidence, therefore, depends upon the combined strength of all of the facts that are proved to you.

131 The warning given by the judge was cogent and effective. The jury were instructed as to the factors which may affect the consideration of Mr Sprague's identification evidence in the circumstances of the case. The judge first provided a general warning and then drew the jury's attention to weaknesses in the identification evidence. During this process the judge isolated and identified matters of significance. These matters have been referred to earlier in these reasons. There is nothing perfunctory or half hearted about the direction.

132 In accordance with the views earlier identified in Goode, Turnbull, Davies & Cody, Domican, Festa, Murphy and Coxon the jury were entitled to assess the probative of value of Mr Sprague's evidence in the context of the evidence as a whole. No miscarriage of justice could have arisen as a result of the judge's summing up on the topic of identification. Had the judge correctly characterised Mr Sprague's evidence as direct, no further warning would have been necessary.

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1 R v Smith [2001] HCA 50; (2001) 206 CLR 650 per Gleeson CJ

2 R v Smith [2001] HCA 50; (2001) 206 CLR 650 at 653 - 654

3 Festa v The Queen (2001) 208 CLR 593 at 610 per Mc Hugh J

4 R v King (1975) 12 SASR 404 at 410

5 Festa v The Queen (2001) 208 CLR 593 at 610-611 per McHugh J

6 Festa v The Queen (2001) 208 CLR 593 at 658

7 An example of a case not requiring a warning is Dhanhoa v The Queen, [2003] HCA 40. See also R v King 12 SASR 404

8 Domican v The Queen (1992) 173 CLR 555 at 561

9 Festa v The Queen (2001) 208 CLR 593 at 610 per McHugh J

10 Domican v The Queen (1992) 173 CLR 555 at 561 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh J

11 Festa v The Queen (2001) 208 CLR 593 at 658 per Hayne J

12 Festa v The Queen (2001) 208 CLR 593 at 645-646 per Kirby J

13 Festa v The Queen (2001) 208 CLR 593 at 599 per Gleeson CJ

14 R v Goode [1970] SASR 69 at 78

15 R v Turnbull [1977] 1 QB 224 at 230

16 Festa v The Queen (2001) 208 CLR 593 at 599-600 per Gleeson CJ

17 Festa v The Queen (2001) 208 CLR 593 at 642 per Kirby J

18 R v Coxon [2002] SASC 165; (2002) 82 SASR 412 at 419 per Prior J

19 Murphy v The Queen [1994] SASC 4674; (1994) 62 SASR 121 at 128

20 R v Turner [2000] SASC 27; (2000) 76 SASR 163 at 183

21 R v Coxon [2002] SASC 165; (2002) 82 SASR 412 at 419 - The other members of the court in Coxon treated the remarks of Mullighan J as being referrable only to the appellate court's function.

[1] R v Smith [2001] HCA 50; (2001) 206 CLR 650 per Gleeson CJ

[2] R v Smith [2001] HCA 50; (2001) 206 CLR 650 at 653 - 654

[3] Festa v The Queen (2001) 208 CLR 593 at 610 per Mc Hugh J

[4] R v King (1975) 12 SASR 404 at 410

[5] Festa v The Queen (2001) 208 CLR 593 at 610-611 per McHugh J

[6] Festa v The Queen (2001) 208 CLR 593 at 658

[7] An example of a case not requiring a warning is Dhanhoa v The Queen [2003] HCA 40; (2003) 199 ALR 547. See also R v King ( 1975) 12 SASR 404

[8] Domican v The Queen (1992) 173 CLR 555 at 561

[9] Festa v The Queen (2001) 208 CLR 593 at 610 per McHugh J

[10] Domican v The Queen (1992) 173 CLR 555 at 561 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh J

[11] Festa v The Queen (2001) 208 CLR 593 at 658 per Hayne J

[12] Festa v The Queen (2001) 208 CLR 593 at 645-646 per Kirby J

[13] Festa v The Queen (2001) 208 CLR 593 at 599 per Gleeson CJ

[14] R v Goode [1970] SASR 69 at 78

[15] R v Turnbull [1977] 1 QB 224 at 230

[16] Festa v The Queen (2001) 208 CLR 593 at 599-600 per Gleeson CJ

[17] Festa v The Queen (2001) 208 CLR 593 at 642 per Kirby J

[18] R v Coxon [2002] SASC 165; (2002) 82 SASR 412 at 419 per Prior J

[19] Murphy v The Queen [1994] SASC 4674; (1994) 62 SASR 121 at 128

[20]R v Turner [2000] SASC 27; (2000) 76 SASR 163 at 183

[21] R v Coxon [2002] SASC 165; (2002) 82 SASR 412 at 419 - The other members of the court in Coxon treated the remarks of Mullighan J as being referrable only to the appellate court's function.