R v COXON No. SCCRM-01-311 [2002] SASC 165

Supreme Court of SA|2002-05-24|Before: Gray JJ, Prior J

Judgment No. [2002] SASC 165

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE HERRIMAN)

(Court of Criminal Appeal: Prior, Lander and Gray JJ)JUR

Court of Criminal Appeal: Prior, Lander and Gray JJ

PRIOR J: This is an appeal against a conviction for armed robbery.

On Monday, 22 January 2001 Mr Potter was robbed of $6000. He was in a side street outside McDonalds Restaurant on Magill Road, Trinity Gardens. He was about to get into his car to take the day's takings to a bank. The robber came up from behind Mr Potter. He pushed him into his car, causing Mr Potter to drop his moneybag. The robber grabbed the bag and ran off.

The robbery occurred at about 3 o'clock in the afternoon. Mr Potter's evidence was that it was a longstanding practice for the day's takings to be banked by the manager at about this time. The prosecution sought to rely upon the fact that this practice would be known to people who had worked at McDonalds.

It was also part of the prosecution's case that past or current employees of McDonalds would be aware of the practice of employees to park down a side street off Magill Road. Mr Potter had parked his car in the side street and was there when the robbery occurred.

Two witnesses in the trial, Mr Varsamidis and Ms Ross had also parked down the side street just before the robbery. As they walked to the restaurant they saw a male person crouching down behind some bushes. Their evidence was that this person was wearing a beanie, sun-glasses, a long sleeved top and baggy pants. This was a little unusual given that the day was hot. They were inside the restaurant for about half an hour. When they came out, the overdressed man was still crouching where they had seen him on the way in. The couple drove off up Magill Road to a shop.

About fifteen minutes later they came back along Magill Road to see the person they had seen squatting behind the bushes run across Magill Road with a black bag under his arm. They saw a man in pursuit. The man was Mr Potter.

Mr Varsamidis did a u-turn, picked up Mr Potter and pursued the man down a side street. He caught up with the robber and stopped the car. Mr Potter got out of the car to catch the thief. Potter's evidence was that when he was about two metres from the robber he recognised him as Oscar Coxon, a man who had gone to the same high school as Mr Potter and who had worked at the Trinity Gardens McDonalds some four months before the day of the robbery. Mr Potter's evidence was that the appellant had been a trainee manager at the store for a short time and that during that time Potter saw him regularly.

Potter's evidence was that he used the appellant's Christian name to ask him what he was doing and to give the money back. The robber then gave the money back to Potter and left.

Mr Potter said that when the money was returned to him the robber's face was obscured. He referred to the appellant as having a beanie on his head with a large pair of sunglasses over his eyes. Mr Potter said that notwithstanding the beanie and sunglasses he recognised the appellant. Mr Potter was driven back to his work by Mr Varsamidis and Ms Ross. Mr Potter made a report to police. The appellant was arrested and charged at about 7.00 pm on the same day. The evidence was that the appellant lived a short distance from the McDonalds restaurant, in the same direction as the robber ran when caught by Mr Potter.

In the course of his evidence Mr Potter said that when he confronted the robber he could see that he had some hair growth on his face. He referred to the robber as wearing a grey windcheater and a dark pair of track pants. In the course of cross-examination Mr Potter said that he had described the robber as someone unshaven. He also said that he could not say anything more about the windcheater other than it was grey and loose fitting. As for the tracksuit pants he could not say whether they had any sort of brand upon them. Whilst the robber was wearing sneakers he wasn't concentrating on looking at the robber's feet. When it was put to him that the person who robbed him was not the appellant and that it was possible that he had "made a mistake of judgment" Mr Potter denied both.

Besides describing what he had seen with Ms Ross as they went into McDonalds, Mr Varsamidis was allowed to tell the jury of how he had selected a photograph of the appellant from some twelve photographs shown to him by a police officer on 26 February 2001, some four weeks after the robbery. This evidence was objected to but allowed by the trial judge.

Mr Varsamidis had told police he was not able to identify the offender from the photographs but in answer to a request from a police officer he did say that the photograph of the appellant was similar to the offender. Ms Ross also gave evidence. The prosecution did not seek to introduce into evidence her failure to identify the appellant from photographs when they were shown to her. However, when the trial judge ruled that the evidence of Mr Varsamidis with respect to the photographs was admissible the fact that she identified two photographs of persons other than the appellant as being photographs of persons similar to the offender was put before the jury at the request of counsel for the appellant.

Varsamidis' evidence to the jury was that Mr Potter said to the robber that he knew who he was. This was a little different from the evidence of Potter that he actually used the appellant's first name. As for the identification of a person similar to the offender, Varsamidis' evidence to the jury was that the jawline and build of the person in that photo led him to a "fifty-fifty conclusion that" the person in the photograph was the offender. Ms Ross's evidence was that she thought photographs of two men other than the appellant were more similar to the robber than any of the other photographs shown to her.

When police went to the appellant's house on the day of the robbery they looked for items of clothing similar to the clothing described to them by Mr Potter. Potter's evidence had been that when the robber had run off with the money he threw a cup of lemonade at the robber. He hit him. The lemonade spilt down the back of the top the robber was wearing. At the appellant's house police found a slightly damp light grey windcheater on the clothesline. Other clothes on the clothesline were dry.

The appellant gave evidence. So too did his mother and a brother. A character witness was called. The appellant told the jury of injuring his feet when diving off a diving board at the Norwood Pool two days before the robbery. He said that he grazed the rear of his left ankle and thought that he had broken two of the middle toes on his right foot. He received first aid at the pool. Subsequent X-rays disclosed no fractures. However, his evidence was that he limped on both legs and had to reach out to grab things to help himself around the house. His evidence was that on 22 January he could walk on his feet but with great difficulty. He said he found it hard to walk to the kitchen from his television room. He said bandages remained on his feet until he returned to work on the Wednesday or Thursday after 22 January. He told the jury of having stayed at a friend's place watching videos on the Sunday night. After returning home on Monday he changed into cooler clothing including a black T-shirt and cream coloured shorts. He said he had nothing on his feet. He decided against going to see a film at the Norwood Cinemas. He got a video from a store off Magill Road, getting himself a takeaway meal from Hungry Jack's at Firle before getting home just before 2 o'clock. The appellant was then working at Hungry Jack's but had taken the day off because of the trouble with his feet.

At home, the appellant said his brother persuaded him to go out again to get him something to eat. The appellant says he went to McDonalds in his car purchasing a meal for his brother and a dessert, which his brother had said he would buy for him. The appellant said he purchased the McDonalds' meals from the drive through section of the restaurant and then went home to watch the video with his brother. His evidence was that he was at home watching the video with his brother at around the time of the robbery and that in the course of the afternoon he had hung out a washing load that his mother had asked him to attend to.

In the course of his cross-examination the appellant denied going to a doctor the following Wednesday simply because of the police attending at his home at about 7.00 pm on the Monday. He admitted that he had not been to work for two or possibly three days before Monday, 22 January and had not shaved since he had last gone to work. He denied wearing a windcheater on the day in question or washing it afterwards. His evidence to the jury was that his girlfriend had worn the windcheater recently and that he was not aware that it was in the washing load his mother had asked him to hang out.

The appellant's brother gave evidence of the appellant leaving home at just after 2 o'clock returning with some food from McDonalds. The brother's evidence was that the appellant was at home with him between half past two and four o'clock that afternoon. He spoke of his brother saying he had to hang out washing. Whilst the appellant was absent from the room for a while the brother watched tennis, going back to the video when his brother returned.

The appellant's mother's evidence was that on Monday, 22 January she had done some washing before she left for work that morning. In the washing was a grey windcheater, which she had seen on her son's bedroom floor. She decided to wash it because, although it was thick, she thought it was a hot day and it would dry. She says she rang home at about 1 o'clock to see how her son Winston was and to ask the appellant to hang out the washing. The appellant's brother had recently been in hospital for surgery on his jaw. The appellant's mother said that she came home at about 5 o'clock and saw a police officer take the windcheater from the line during the police visit to the house at about 7.00 pm. The appellant's mother said that she did not feel the windcheater for herself. In cross-examination the appellant's mother claimed that she took her son to the doctor on the Tuesday because he had been arrested and she wanted some proof that her son had sore feet.

In this appeal complaint is made about the fact that the jury were told of the failed attempts to identify the appellant when Varsamidis and Ross were shown photographs by the police on 26 February 2001.

I think the trial judge was correct in ruling that the photographic procedures pursued were not open to the implication that the police officer, in inviting Varsamidis or Ross to indicate whether any of the persons in the photographs were similar to the offender, was implying that the photographs contained a photograph of the offender. The evidence before the trial judge and the jury was that the police officer made it plain to Mr Varsamidis and Ms Ross that the offender might or might not be in the photographs and that they did not have to select anyone from the photographs. Varsamidis' evidence was relevant and of some probative value. There was no risk of improper use of that evidence. Its probative value was not outweighed by the danger of unfair prejudice to the appellant. The discretion to allow the evidence has not been shown to be affected by material error or otherwise to have miscarried.[1]

Whilst the jury heard the evidence about looking at photographs, they ultimately received a direction from the trial judge to "disregard totally the evidence of Mr Varsamidis and Ms Ross as to the photographs". In the course of his summing-up the trial judge said:

"The Crown has led other evidence in addition to Mr Potter's evidence of identification, and I'll speak of it in a moment. However, it's very important for you to understand this: you must assess the evidence of identification - that is, Mr Potter's evidence - by reference to that evidence alone. You cannot use any of the other evidence in the case to assist you in determining the reliability of Mr Potter's identification evidence, and you can only act on his identification evidence if you are satisfied beyond reasonable doubt that, standing alone, it is accurate and reliable.

Now, it's very important you understand that fully. When I say you cannot use any of the other evidence in the case to assist you in determining the reliability of Mr Potter's identification evidence, I mean whilst you can use other evidence to assist you in determining how truthful or reliable a witness Mr Potter is, you cannot use that other evidence for other purposes to make up some other case, and I'll deal with that in a second.

If you are not satisfied beyond reasonable doubt as to the accuracy and the reliability of Mr Potter's identification evidence, you must, in this case, return a verdict of not guilty.

I said a few moments ago that the prosecution case depended entirely on the evidence of Mr Potter and that might have made you wonder, because, of course, you did hear this other evidence of a circumstantial kind, which was suggested as otherwise linking the accused to the crime, quite independently, that is to say, of the identification evidence.

When I speak of 'circumstantial evidence', I mean various items of evidence which, whilst they may be inconclusive by themselves, when put together might enable one to form a conclusion. That's what we call circumstantial evidence.

Here, you heard evidence from the prosecution as to a number of matters, and I'll recite them to you: first, Mr Varsamidis saying the accused's face was similar to that of the offender, and Ms Ross saying she couldn't say anything about the photograph. She made a stab at two photographs, and they were not the accused, anyway. I say to you now that you should reject and not act upon the evidence of Mr Varsamidis or Ms Ross as to those photographs that were put in front of them. Next, you heard evidence as to the fact the accused had worked at McDonald's and knew of their money-handling arrangements. You heard next that he lived nearby, indeed, within walking distance of the restaurant; next, that he was running, after the event, in the general direction - at least the offender was running in the general direction - of the accused's house; next, there was evidence of Mr Potter calling the offender by the accused's name, or otherwise saying he knew him, and of the way in which the offender responded to that; next, you heard evidence of the accused having some days' growth of beard, as Mr Potter described; next, you heard evidence that Mr Varsamidis and Ms Ross gave general descriptions of the size and build of the offender. You then heard evidence of the wet grey windcheater found on a clothes line at the accused's house. You heard evidence of the accused being seen by police to be limping, and then not limping, at various times, and you heard evidence of Ms Ross saying that the offender might have limped as he slowed down. You also heard evidence of a conversation or conversations which took place between Potter and the persons in Mr Varsamidis's car, both before and after they chased the offender. The prosecution was able to lead evidence as to those matters, not because it supported Mr Potter's identification of the accused, that would be an impermissible use of that evidence, but because it might have assisted you in considering whether, putting to one side for the moment identification evidence, there was enough evidence of a circumstantial kind to lead to a conviction of the accused.

The position has now been reached, however, where the prosecution has conceded to me that if you are not satisfied beyond reasonable doubt as to Potter's identification of the accused, then there is not enough circumstantial evidence to enable you to otherwise convict him. In other words, the prosecution now relies solely upon Mr Potter's identification. I must say I agree with that concession. Hence, if you are not satisfied beyond reasonable doubt as to Mr Potter's evidence of identification or recognition, standing alone and apart from his other evidence, then, as I have said, you should acquit the accused. You should, therefore, disregard totally the evidence of Mr Varsamidis and Ms Ross as to the photographs, and as to the rest of the evidence - that is to say, apart from the evidence of Mr Potter as to identification - you should regard it as background evidence which may assist you in considering the reliability of what Mr Potter has said; in other words, his general reliability as a witness who purports to identify the accused. That other evidence should not be used by you in any other way. The focus of your deliberations should, therefore, be upon Mr Potter's claimed recognition and identification of the offender as the accused."

There were further directions in the course of the summing-up where his Honour spoke of the only significance of the evidence of Mr Varsamidis and Ms Ross related to whether their observations as to the circumstances in which Mr Potter had the opportunity to observe and identify the offender reflected upon the reliability of Potter as the identification witness.

These directions were given after the prosecutor informed the trial judge, in the absence of the jury and after addresses by counsel, that the case was one where the jury would not be entitled to return a verdict of guilty by way of the circumstantial evidence on its own. The prosecutor said that whilst the other evidence was for the jury to consider at the end of the day if the jury were not satisfied of the recognition of the appellant by Mr Potter the other circumstantial evidence "would be insufficient in itself to give a conviction."

In the course of the jury's deliberations the trial judge received requests for the photographs shown to Mr Varsamidis and Ms Ross and for evidence about things said about the robber's facial hair as well as what was said when Potter confronted the thief. The trial judge reminded the jury that he had directed them to ignore the photographic evidence so that the jury would not need the two exhibits then requested. Evidence about the appellant's facial hair was read after which the jury continued its deliberations.

On the hearing of the appeal it was submitted that the trial judge's directions were unfortunate and particularly troubling given that the jury nonetheless returned with a question about the facial hair of the appellant that seemed to suggest that the direction actually given by the judge was not properly acted upon by the jury. The submission was that the confusion was such that the jury should have been discharged. Absent a discharge, the directions were inadequate and ineffective "in fixing the problems that evolved during (the) trial and that as a consequence, there (had) been a miscarriage (of justice)".

The Director of Public Prosecutions submitted that this was a case dependent upon identification of the appellant as the person involved by Mr Potter supported by items of circumstantial evidence which, taken by themselves could not have supported a verdict of guilty of the offence.

The Director suggested that perhaps the trial judge acted upon observations of Mullighan J in R v Turner.[2] Justice Mullighan said:

"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 Director submitted that Domican v The Queen[3] 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", [4] 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[5] is not authority for what appears in the passage cited from Mullighan J's judgment in R v Turner[6]. 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[7]. 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.

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 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.

Given that the appellant was a person whom Potter claimed to know, the directions had to warn the jury about particular dangers. That was done more than sufficiently by the judge in this case. No complaint about that part of the summing-up was pursued on appeal. This was a case dependent upon an identification of the appellant as the person involved "supported by items of circumstantial evidence. The items of circumstantial evidence, taken by themselves, could not have supported a verdict of guilty of the offence."[8] The directions to the jury overall were therefore favourable to the appellant.

A further complaint on appeal related to remarks made by the prosecutor. In the course of his final address, the prosecutor told the jury that whilst the appellant was entitled to decline to go in a line-up and that the jury should not infer his guilt from his refusal to do so, the absence of a line-up might have led to the failure of Mr Varsamidis or Ms Ross "to be able to recognise the robber, to be sure about it, like Mr Potter...was..."

I see nothing in the objection. The submission was that the effect of the prosecutor's remarks was to criticise the appellant and imply the only deficiency in the prosecution case was the fault of the appellant. There can be no doubt that a prosecutor has the responsibility not to comment in a manner that will cause prejudice to an accused.[9] I am not persuaded that that comment gave rise to any real risk of a miscarriage of justice either from what was said or from the fact that the trial judge did not comment upon this part of the prosecutor's address to the jury. In my view the prosecutor's address did not exceed the limits of propriety.

The directions actually given by the trial judge were favourable to the appellant. No miscarriage of justice can be identified. The appeal should be dismissed.

LANDER J. I have had the advantage of reading in draft the reasons of Prior J.

I shall confine myself to that part of the appeal which was directed to the observations in R v Turner [2000] SASC 27; (2000) 76 SASR 163 at 182.

The authorities and in particular Festa v The Queen (2001) 76 ALJR 291, show that there are two classes of identification evidence, positive identification evidence and circumstantial identification evidence. The first class is direct evidence and the second, obviously enough, circumstantial evidence.

The first class has two sub-sets. The first of the two sub-sets is where positive identification evidence is direct evidence of the commission of the crime and identifies the person charged as the person who committed that crime. The second is a form of circumstantial evidence where the evidence establishes an inference from which it may be concluded that the accused person committed the crime.

The second class, circumstantial identification evidence, is evidence of the kind where the witness gives evidence of some particular element which he or she identified in the person, the subject of the identification evidence. It is not positive identification evidence as the witness does not purport to identify the accused as the person who committed the crime. Nor is it evidence from which it may be inferred that the accused committed the crime. However, it is circumstantial evidence. This evidence is often weak but that does not mean that it is not admissible.

In the courts' experience positive identification evidence is often unreliable and the High Court has therefore insisted that juries receive a warning of the type identified in Domican v The Queen (1992) 173 CLR 555. The failure to give such a direction where the prosecution relies upon positive identification evidence would usually amount to an error of law and inevitably lead to a miscarriage of justice.

However, the courts have not insisted that in all cases of circumstantial identification evidence such a warning be given. That is because the courts have not viewed that evidence as so inherently unreliable. However, in some cases a warning may need to be given with respect to the reliability of that evidence.

Whether the prosecution relies upon positive identification evidence or circumstantial identification evidence the Court has a discretion to exclude the evidence, in the exercise of its discretion, if it believes that the prejudicial effect of the evidence outweighs its probative value.

In cases of positive identification evidence the Court will make that determination having regard to its obligation to give the direction of the kind in Domican v The Queen (supra) and its assessment of whether such a direction can adequately deal with the inherent weaknesses in the particular case.

In the case of circumstantial identification evidence the Court will have regard to the weakness of the evidence itself.

The decision of the High Court in Domican v The Queen (supra) was a positive identification case which concerned the adequacy of a direction given by a trial judge on a question of identification. If identification "represents any significant part of the proof of the guilt of an offence" the trial judge is obliged to warn the jury of the dangers of convicting on that evidence if that evidence is in dispute. The reasons of the majority of the High Court give instruction on how that direction should be framed although at the same time the direction need not follow any particular formula.

In particular the warning given to the jury 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.

Whether the warning given is adequate must be "... evaluated by reference to the identification evidence and not the other evidence in the case". [565]

It follows that in evaluating the adequacy of the warning regard is not to be had to the other evidence adduced in the trial which might be relied on for the purpose of determining the guilt of the accused.

"The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence." [565]

In my opinion the passage to which I have referred in Domican v The Queen (supra) was a warning to the trial judge not to fail to give or temper an identification direction because there was other evidence available which could lead to the conviction of the appellant. It was also a warning to the trial judge not to fail to direct the jury's attention to the shortcomings in the identification evidence because of the presence of that other evidence.

The jury is to be instructed that it should assess the identification evidence having regard to all of the shortcomings which the facts of the case require. The direction to be given by the judge must be brought to the jury's attention upon the assumption that the jury may convict solely on the identification evidence. If the direction is adequate, and will be if it is in accordance with the matters referred to by the majority at [562], it is for the jury to determine whether that evidence alone or coupled with any other evidence circumstantial or otherwise should lead to the conviction of the accused.

In R v Turner (supra) Mullighan J was concerned with a direction which was given when relating a circumstantial direction to an identification direction and before a circumstantial direction. He said:

"I think this direction is objectionable because it may have led the jury to reason that even if, upon considering the evidence of Andrew and the identification parade alone, they were not satisfied that Andrew had identified the appellant as the robber, as, in my view, must be the case, they could use the circumstantial evidence to see if it enabled them to decide that Andrew was selecting the robber at the identification parade. Such an approach would be contrary to principle: see Domican and R v Wilson [1999] SASC 377. 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 "is similar to" the offender, that evidence may be used as circumstantial evidence but not as evidence of identification: Murphy v The Queen." [182-183]

I think the dictum of Mullighan J must be understood in the context of the case before that Court and in particular the directions given by the trial judge in that case.

Mullighan J sets out in detail the directions given by the trial judge.

It is only necessary to refer to two extracts from that summing up to understand what it was that His Honour was addressing.

"Whilst I am required to alert you to the dangers attendant upon acting on identification evidence, I must also say to you that if after careful examination of the evidence of identification, and of the witnesses, and if after considering the other evidence in the case, paying due heed to the warning which I have given you, you are satisfied beyond reasonable doubt about the correctness of the identification of the accused as the offender, then you are entitled to act upon the evidence of identification and you are entitled to return a verdict of guilty."

"So you have got to ask yourselves how far will a long arm coincidence go? Can you be satisfied beyond reasonable doubt on that evidence, putting aside the identification evidence, then bring the identification evidence back into it and ask yourselves how much you are prepared to rely on that."

The first paragraph to which I have referred is clearly, in my opinion, a misdirection. His Honour having given a direction on identification evidence has inappropriately suggested that the jury could rely upon other evidence to be satisfied about the correctness of the identification evidence.

In my opinion that is inappropriate. The identification evidence ought to be considered alone and whatever weight is to be attached to it is to be arrived at before any consideration of any other evidence.

The trial judge in R v Turner (supra) made the same error in the second paragraph to which I have referred.

Because the trial judge appeared to have coupled a direction in relation to circumstantial evidence with the identification warning Mullighan J believed the direction to be objectionable.

It is clear when one has regard to the whole of the second paragraph that Mullighan J was referring to the direction being objectionable, not the use of the evidence after an adequate direction has been given.

It is the intention of the direction which Domican v The Queen (supra) requires that the jury will assess the positive identification evidence without regard to any other evidence in the trial, whether direct or circumstantial.

However, after the jury has assessed the evidence in accordance with the Domican type direction the jury is at liberty to use that evidence, whether it is direct or circumstantial evidence, along with any other direct or circumstantial evidence in the case to arrive at its verdict.

It does not have to proceed to a verdict only through the route of the identification evidence. In many cases and in particular in circumstantial identification evidence cases the evidence would be far too weak to arrive at any verdict if relied upon by itself.

Prior J has set out in his reasons that part of the judge's summing up which was sought to be impugned in this Court.

I agree with Prior J's reasons that in fact the judge's directions were too favourable to the appellant.

The judge correctly, in my opinion, directed that the jury should consider Mr Potter's evidence of identification without reference to the other circumstantial evidence.

However, I think his later direction, where he made reference to the prosecution's concession, was too favourable to the appellant. He said:

"The position has now been reached, however, where the Prosecution has conceded to me that if you are not satisfied beyond reasonable doubt as to Potter's identification of the accused, then there is not enough circumstantial evidence to enable you to otherwise convict him."

That part of the direction is correct. He then said:

"In other words, the Prosecution now relies solely upon Mr Potter's identification. I must say I agree with that concession. Hence, if you are not satisfied beyond reasonable doubt as to Mr Potter's evidence of identification or recognition, standing alone and apart from his other evidence, then, as I have said, you should have quit the accused. You should, therefore, disregard totally the evidence of Mr Varsamidis and Ms Ross as to the photographs, and as to the rest of the evidence - that is to say, apart from the evidence of Mr Potter as to identification - you should regard it as background evidence which may assist you in considering the reliability of what Mr Potter has said; in other words, his general reliability as a witness who purports to identify the accused. But other evidence should not be used by you in any other way. The focus of your deliberation should, therefore, be upon Mr Potter's claimed recognition and identification as the offender as the accused."

Whilst the prosecution conceded that the circumstantial evidence standing alone was insufficient to lead to proof of the appellant's guilt beyond reasonable doubt, that did not mean, as the trial judge directed, that evidence had to be disregarded.

Once the jury were satisfied that Mr Potter's identification evidence could be relied upon they were entitled to have regard to the other circumstantial evidence led by the prosecution to arrive at their conclusion that the prosecution case had been proved beyond reasonable doubt.

GRAY J It was not disputed that a robbery occurred in circumstances as alleged by the Crown. The issue at trial was whether the accused was the robber.

The Crown relied on the evidence of the victim of the robbery, Mr Potter. He recognised the robber as the accused, being a person previously known to him. The recognition occurred as Mr Potter having pursued the robber from the scene, stopped him and recovered the proceeds of the robbery. This was direct evidence of identification.[10]

The trial judge gave an appropriate identification warning. No complaint was made about its terms.

The jury was entitled to consider the totality of the evidence in reaching its verdict. It was entitled to consider the direct identification evidence together with the circumstantial evidence.[11] In The Queen v Goode[12] Bray CJ, Mitchell and Zelling JJ were concerned with the circumstance of incriminating 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."

The Crown relied on other evidence to support its case that the accused was the robber. The evidence has been identified by Prior J. It was circumstantial evidence.[13]

The remarks of the trial judge suggesting that the jury could only make limited use of the circumstantial evidence have been set out in the reasons of Prior J and Lander J. I agree that those remarks appear to have arisen from a misunderstanding of a concession made by the Crown that standing alone the circumstantial evidence could not support a conviction. It may also be as the Crown suggested, that the trial judge was influenced by observations of Mullighan J in R v Turner[14].

In Turner the Court was concerned with the adequacy of a trial judge's warning to a jury where the evidence of identification was less than a positive identification. I agree with Lander J that the remarks of Mullighan J[15] were directed to the adequacy of the warning given in that case. So understood the remarks of Mullighan J were a correct application of the principles enunciated in Domican v The Queen[16].

In the present case once the evidence of identification had been admitted with an appropriate warning, that evidence could be considered by the jury along with the circumstantial evidence when reaching its verdict.

I agree that the direction of the trial judge incorrectly limited the use that the jury could make of the evidence. As such it was a direction favourable to the accused. I agree with the reasons of Prior J for the rejection of the other grounds of appeal.

1. Festa v The Queen (2001) 76 ALJR 291; (2001) 185 ALR 394 at [22], [23]