R v Festa [2000] QCA 73

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - IDENTIFICATION FROM PHOTOGRAPHS - Whether trial judge had adequately referred to the deficiencies of identification evidence with respect to photo boards

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - VOICE IDENTIFICATION - Whether trial judge had adequately referred to the deficiencies of identification evidence with respect to voice identification

CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES - Whether evidence of a collection of weapons of the type used in robberies was admissible where the weapons were not the particular ones used in the offences charged - whether such evidence was inadmissible "propensity" evidence

CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - RELEVANCE - PROOF OF IDENTITY OF ACCUSED - GENERALLY - Whether evidence of the mode of the robberies and unlawful use offences was admissible in that it tended to show a modus operandi

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP - Whether the summing up was fair to the accused in all the circumstances - whether a Weissenstener direction was appropriate given the "flight" of the accused during the trial - distinguishing between testimony going to proof of a primary fact and the inferences capable of being drawn from it once it is proved

EVIDENCE - ADMISSIBILITY AND RELEVANCY - FACTS IN ISSUE - PARTICULAR MATTERS - STEALING OR ROBBERY - Whether evidence of an association between coaccused was admissible where the robberies were committed by a man and a woman - whether such evidence was appropriately dealt with by the trial judge

Evidence Act 1995 (NSW), s 20(1)

Domican v The Queen (1922) 17 CLR 555, considered

Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, considered

Merrit (1985) 19 A Crim R 360, distinguished

Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, considered

Pfennig v The Queen (1995) 182 CLR 416, considered

RPS v The Queen [2000] HCA 3 applied

R v Connolly [1991] 2 Qd R 171, considered

R v Cranston [1988] 1 Qd R 159, considered

R v Phillips [1967] Qd R 237, considered

R v Renton (CA no 188/1997; 12 Dec 1997), applied

R v Turnbull [1977] QB 224, considered

Director of Public Prosecutions (Queensland) for the respondent

[1] THE COURT: On 8 May 1996 there was an armed robbery at the branch of the National Australia Bank at Morningside. There was another such robbery at the Biggera Waters branch of that Bank on 27 May 1996 and a third armed robbery at the Paradise Point branch on 13 June 1996. On 25 April 1997 a man named Marc Renton was convicted after a trial extending over some 17 days in the District Court at Southport of the robberies at Biggera Waters and Paradise Point. At the same time he was acquitted of the robbery at the Morningside branch, but convicted of a count of unlawful use of a motor vehicle involved in facilitating that robbery, as well as a further two counts of unlawful use associated with the robbery at Biggera Waters, and another three counts of that offence in relation to the Paradise Point robbery. An appeal (CA no 188/1997) against those convictions was dismissed by this Court on 12 December 1997. His fingerprints had been found inside a vehicle used in carrying out the Morningside robbery, but his participation in the robbery itself was evidently not established to the satisfaction of the jury.

[2] The appellant now before us is Brunetta Festa. She was indicted and tried jointly with Renton in the District Court and, like him, she was convicted on verdicts of guilty rendered on 25 April 1997. A principal difference between the case at trial against her and that against Renton is that it was never suggested that she had taken part in any of the Morningside offences. She was charged only in respect of the Biggera Waters and Paradise Point robberies and the associated unlawful use offences in each instance. This is her appeal against those convictions. There is also an application for leave to appeal against sentence, but Mr Kimmins of counsel informed us that its function was to cater for the possibility that the appeal might succeed against some but not all of the convictions.

[3] Most if not all of the evidence establishing Renton's guilt of the robberies at Biggera Waters and Paradise Point and the associated unlawful use offences was admissible and admitted against the appellant at the joint trial of the two accused. Ground 2(a) claims that the trial judge was wrong in refusing to order that the appellant be tried separately from Renton; but the factors favouring a joint trial in this case were overwhelming (cf Merrit (1985) A Crim R 360), and, the discretion having been exercised as it was, the only question on appeal is whether, in consequence, the appellant was denied a fair trial. See R v Phillips [1967] Qd R 237, 278-279; R v Cranston [1988] 1 Qd R 159, 166. As to that, the two principal matters of prejudice identified by the appellant were the admission of evidence of the discovery in a unit occupied by Renton of various items of property capable of being associated with bank robberies like these, and the fact that, at the time of these offences, Renton was a fugitive from prison. As this narrative will show, however, evidence of these matters was tendered as part of the prosecution proof against both Renton and the appellant, and, with the exception of the evidence about the Morningside offences, would have been admissible against the appellant even if she had been tried separately.

[4] At the trial of the accused, it was not disputed that the robberies and unlawful use offences had been committed, and the only issue was whether the two accused had participated in them. Ground 3 is that the trial judge was wrong in directing the jury that there was evidence of a close association between the appellant and Renton, which might lead them to conclude that she helped Renton to commit those two robberies. Renton had been released from prison on leave or licence on 3 May 1996. Shortly afterwards he telephoned the appellant at her home at 2/88 Kangaroo Avenue, Runaway Bay, on the Gold Coast, where she lived with a man named Con Christef and her young child. Renton had been in gaol with one of Christef's relatives from whom Renton had obtained their address, and he had been writing to the appellant from gaol. On 19 May, which was some days after the Morningside bank robbery, he used the name Donald White to rent an unfurnished unit at no 19/469 Pine Ridge Road for which he paid the landlord a sum of $1160 in cash. During covert surveillance, the appellant was seen to be a regular visitor to the unit, to which she had a set of keys, and she was there on the morning of 19 June, which was the day on which she was arrested some six days after the Paradise Point robbery. She told the police she used to go shopping with Renton "every day"; that he did not have a girlfriend; and in fact he did not know anyone else "down here". Her fingerprints were on a can of hair and wig sheen and a bottle of spirit gum remover found in the unit. Two wig stands and a set of instructions on the use of disguises were also found there. Disguises were used by persons who took part in one or both of the robberies.

[5] The Crown relied on the evidence of association between the appellant and Renton as tending to show that she was the woman who was seen taking part in the robberies with him at Biggera Waters and Paradise Point or in the related unlawful use offences. Having failed to honour the terms on which he was released from prison, Renton was, legally speaking, an escapee at large. Despite this he possessed substantial amounts in cash. The money stolen from the banks was being prepared by staff for depositing in the Reserve Bank when it was taken, and it was in various denominations. While searching Renton's unit at Pine Ridge Road on 19 June 1996, the police located $2800 in cash including a large number of $5 notes in the pocket of a suit in the main bedroom; and items of new furniture and domestic electrical equipment, together with some receipts dated 22 May 1996 for their purchase. An amount of $850 in cash, including 25 x $5 notes, was found in the appellant's wallet at the time of her arrest. In addition, a receipt (ex 67) dated 14 June for a deposit paid on the purchase of a yellow Toyota sedan 078 PUY was located on 25 June 1996 at unit 2/88 Kangaroo Avenue, where the appellant lived. It was the vehicle in which Renton and the appellant were found seated together on 19 June 1996 shortly before they were arrested on that day. The receipt for the deposit on a Toyota had been given in return for a payment of $4300 in cash by a man answering Renton's description, who had bought that vehicle under the name D White. An RACQ membership card bearing that name and vehicle registration number was also found in Renton's unit.

[6] Christef, with whom the appellant lived at 2/88 Kangaroo Avenue, was the registered owner of a gold coloured Mercedes sedan no 105-DIN, to which the appellant had access and of which she was a regular user. Both it and the Toyota were seen outside Renton's unit. Items of property (including audio tapes) belonging to a Mrs Sutton were found in the Mercedes on 25 June 1996. Other items of property belonging to her were found in the unit at 2/88 Kangaroo Avenue. They were identified by Mrs Sutton as having been in her white Mazda sedan which was taken from a car park on 9 June and was the subject of the unlawful use count committed on 13 June 1996 (count 7). Mrs Sutton next saw her car pictured on television news as the vehicle used by robbers to smash through the doors of the bank at Paradise Point on 13 June. When returned to her, the vehicle was in a severely damaged condition. Some of Mrs Sutton's property from her car was also found among garbage at the Caltex Runaway Bay service station, to which the appellant sometimes went. With that property were some other items of property belonging to a Mr Pilbeam. He was the owner of a red Ford Laser which was taken from where he had parked it at Ashmore on 6 June 1996. He next saw it again on 14 June, when he collected it from the police on the day after he was told it had been recovered. It was the subject of the unlawful use count 8 in the indictment against both Renton and the appellant. Some of the audio tapes taken from Mr Pilbeam's car were also found in the gold Mercedes on 25 June 1996.

[7] The vehicles belonging to Mrs Sutton and Mr Pilbeam were seen being driven by a man and a woman on 13 June 1996 in circumstances suggesting they were involved in the Paradise Point robbery. After Mrs Sutton's car was rammed into the doors of the bank, the male robber escaped in Mr Pilbeam's red Laser driven by the woman. A loaded shotgun was seen in that vehicle, and 12 gauge shotgun cartridges were later found in it. Various witnesses at different times before, during or after the robbery saw a bag or bags being loaded into or out of one or both of these and other vehicles including the gold Mercedes. It is a fair inference that the man and the woman were changing from one car to another, in order to avoid detection or pursuit. In four of the vehicles taken and used in the robberies, the ignition locks were removed preparatory to "hot wiring" the car; in others there were scratch marks or damage to the ignition consistent with attempts to do so. An implement was found in the unit at Pine Ridge Road capable of being used for that purpose.

[8] This was evidence from which the jury would have been entitled to infer the existence of a close association between the appellant and Renton, both generally and more specifically in relation to the robberies at Biggera Waters and Paradise Point, and in relation to the vehicles that were unlawfully taken and used in the course of them. It is not necessary to examine the evidence in further detail, which, in Renton's appeal against conviction (CA no 188/1997; 12 Dec 1997), was held by the Court of Appeal to justify the conclusion that Renton took part in those robberies. In the Biggera Waters robbery, a sledge hammer was used to batter the bank doors open; such a hammer was found in the garage of the unit at Pine Ridge Road. As well as the money and receipts found there, there was a made-up poster depicting Renton with the caption "Armed robber eludes police again". His fingerprints were on it. Firearms were found in the unit with quantities of varieties of ammunition some of which was capable of being used in a type of firearm described by some of those who witnessed the bank robberies. A "Realistic" brand radio scanner was located in the Toyota sedan 078 PUY, and an instruction manual for using it was found at Renton's unit at 19/469 Pine Ridge Road, as well as another such manual at unit 2/88 Kangaroo Avenue. An earpiece found at Renton's unit on 19 June matched a scanner left at the scene of the Biggera Waters robbery. The robbers wore balaclavas, and a balaclava was found in a white Ford Laser the subject of unlawful use count 5. The jury would have been entitled to take the view that items like these are not a common concomitant of suburban life among lawabiding members of the community.

[9] As regards the appellant's own part in the offences, the vehicles unlawfully used were seen being driven or used by a man and a woman. The appellant admitted she knew Renton was stealing cars, and said she was "driving him around"; and those vehicles and the use to which they were put were directly linked by evidence with one or both of the robberies. To revert again to some of the incriminating circumstances, items of property taken from Mrs Sutton's and Mr Pilbeam's cars were found either in the Kangaroo Avenue unit where she resided, or in Cristef's gold Mercedes. She regularly visited the unit at Pine Ridge Road and had done so on the morning of 19 June. It was at about midday or a little later on that day that the unit was entered by police using her keys and that the firearms, ammunition, incriminating poster, sledge hammer, and radio scanner device were found there. One of the firearms was lying across a chair in the lounge, and there was a loaded magazine on the dining table. The sum of $850 in bank notes found in her wallet on 19 June included $125 in $5 denominations. In the absence of explanation, it was open to the jury to infer that some or all of this property and money was the product of or associated with robberies or with the unlawful use offences charged against the appellant.

[10] The appellant complains in ground 2(d) that the trial judge wrongly directed the jury about the use that might be made of the items found in Renton's unit at Pine Ridge Road; and also (ground 4) that his Honour ought to have given the jury a direction about the doctrine of recent possession in relation to the guns and other items found in the unit and in the motor vehicles that were taken and used. The appellant was, however, not charged with stealing those items or with receiving them knowing them to have been stolen. Their evidentiary value was that they were capable of suggesting a link or connection between the persons making use of that unit, the vehicles, and the robberies themselves, for which, on the evidence, they appeared to have been employed. The presence in Renton's unit at Pine Ridge Road of incriminating items, in the form of property that had been or might be used to facilitate robberies, did not establish that the appellant knew they were there; but, taken with her presence at that unit from time to time including the morning of 19 June, it afforded some ground for supposing that she might have known about them. Coupled with other circumstantial evidence at the trial, it was open to the jury to conclude that the appellant must have realised that Renton was engaged in committing armed robberies. In directing on this point, his Honour said that, if the jury were not satisfied that the appellant had any knowledge of the property found in that unit, the evidence could not be used against her. Although it might perhaps have been more felicitously expressed, this direction was equivalent to saying that, unless satisfied that the appellant knew of the presence of those items in the unit, it was evidence that could not be used to convict her. As such, it did not reverse the onus of proof and is not open to the criticism levelled against it on appeal.

[11] On the basis of the evidence at the trial, the jury would have been justified in reasoning along the following lines: (1) that Renton committed the robberies at Biggara Waters and Paradise Point, as well as the related unlawful use offences, of which he was found guilty; (2) that, in doing so, he was assisted or accompanied by a woman; (3) that "every day" during the period May-June 1996 he was in the company of the appellant, and perhaps with no other woman "down here"; (4) that the appellant was directly linked with Renton through: (a) her access to and presence in Renton's unit at Pine Ridge Road to which she had a set of keys; (b) the yellow Toyota in which the accused were both found on 19 June; and (c) various motor vehicles, including those that were unlawfully taken and used; (5) that those vehicles were used by Renton and a woman in committing the robberies; (6) that woman was the appellant, and could not have been anyone else. The reasoning process may perhaps be abbreviated to saying that, once the jury were satisfied that the appellant was proved to have taken part in the unlawful use of the motor vehicles employed in the robberies, it was a logical, and probably an inevitable, next step that she should also be found to have been the woman involved in the robberies, especially given the incriminating material found in the unit at Pine Ridge Road. Such a conclusion was necessarily dependent on proof of association between Renton and the appellant during the relatively short period beginning at earliest with his release from prison on 8 May and continuing until their arrest on 19 June. If evidence of that association had not been adduced at the trial, it would not have been possible or legitimate to infer that the appellant was involved in the unlawful use offences, or, consequentially, in the robberies themselves. They might, for all the jury would have known about it, have been complete strangers to one another. In summing up, his Honour approached the matter cautiously, saying that there was evidence showing association, which he described as "minor", between the two accused that might assist in identifying her as the woman involved. That direction was, if anything, favourable to the appellant, and ground 3 of the appeal accordingly fails.

[12] The appellant did not testify at her trial and the jury were left to draw adverse inferences from the circumstantial evidence led against her, which on her side was entirely unexplained. To say that she did not give evidence herself understates what in fact happened at the trial. She had been granted bail on her own undertaking for the duration of the hearing. On the twelfth day of the trial (which was Thursday 17 April 1997) she failed to appear in accordance with her undertaking. The Court reconvened on Monday 21 April 1997. In the absence of the jury, counsel for the appellant then read from or summarised the contents of a letter said to have been received by Mr Cristef from the appellant. Essentially, it was to the effect that she had not returned because, although innocent of the offences charged, she was not receiving a fair trial and expected to be found guilty. On one reading of it, the letter might perhaps be thought to have been drafted with professional assistance. Counsel declined to produce it when called on to do so by the Crown, claiming it was privileged. His instructions being at an end, he sought and was granted leave to withdraw.

[13] Inquiries concerning the whereabouts of the appellant at this time revealed that she was no longer at home, and that her child had been removed from the school she attended. His Honour decided to proceed with the trial in her absence. No point about his having done so is raised on the appeal. The appellant had given a notice of alibi. While recognising that it was an unusual course to take, the learned judge nevertheless himself called the alibi witness to give evidence from her written statement or proof. She was a Ms Alison Charles, who said she was a longstanding friend of the appellant, who always visited her on Thursday of each week, and had done so at the Kangaroo Avenue unit in June 1996. She said she had retrospectively identified that day as 13 June 1996, which was the afternoon on which the Paradise Point robbery was taking place. This implied that the appellant could not have been taking part in it; but under cross-examination Ms Charles admitted that she did not know the date of her visit, and agreed that it must have been 20 June 1996, which was in fact the day after the appellant's arrest.

[14] The fact that the appellant had absconded during the course of the trial was evidence which was capable of being regarded by the jury as suggesting a consciousness of guilt on her part. See R v Melrose [1989] 1 Qd R 572, and authorities referred to there. That and most other decisions in which the matter has been considered have concerned "flight" by the accused before the trial began; but flight during trial must, if anything, afford an even firmer foundation for drawing an inference of that kind. The most obvious explanation of her disappearance was that the evidence given against her at the trial appeared to be compelling and that a verdict of acquittal was unlikely. Of course, there are opposing inferences that are capable of explaining the sudden absence of an accused person from a trial which is already under way. It may be due to illness or injury or some other cause beyond control. His Honour was not obliged to canvas such possibilities with the jury. They were not so much as suggested by counsel for the appellant before he withdrew from the trial. The question whether or not she was receiving a fair trial was not a matter for her to determine, but for this Court to decide on appeal, and it is noteworthy that it is not raised as a ground of appeal before us. The terms in which his Honour directed the jury on the significance of the appellant's absence from the trial, as distinct from the fact that the direction was given at all, were not criticised on appeal. It was plainly open to the jury to draw an inference adverse to the appellant from her sudden flight, and, in arriving at their verdicts of guilty, they no doubt did so. It follows that ground 7 of the appeal cannot succeed.

[15] Mr Kimmins submitted that the learned judge erred in giving the jury what he described as a Weissenstener direction. It was, he submitted, wrong to do so because such a direction is appropriate only when at the trial an accused elects not to give evidence. Here the appellant had not made such an election because she was never called on to do so in terms of s 618 of the Criminal Code. Of course, the reason why she was not called on to elect was that she deliberately absented herself before the end of the prosecution case. Perhaps, like many other accused persons, she was becoming increasingly reluctant to confront that choice when the time came for her to make it, which it can legitimately be assumed she knew was by then rapidly approaching. However that may be, she effectively put it out of the trial judge's power to comply with s 618 of the Code. Needless to say, his Honour has not been blamed for that. What is said is simply that adverse inferences could not be drawn against her without her having first been called on to give evidence at her trial. There is a passage in the reasons of McHugh J in RPS v The Queen [2000] HCA 3, s 57, which may fairly be thought to dispose of this ground:

"No doubt an accused person will often have one or more reasons of self-interest for not giving evidence denying or explaining facts within his or her knowledge. An accused person often has to face the dilemma that, although he or she is able to answer one or more aspects of the evidence which reasonably calls for an answer, his or her case could be significantly damaged, perhaps disproportionately so, by cross-examination as to other aspects of the case. But factual reasons of this sort do not constitute a good reason for not denying or explaining facts within the accused's knowledge which reasonably call for an answer. Tactical reasons do not authorise a judge to direct a jury that their existence negatives the significance of the accused' silence."

By absconding from the trial, the appellant elected not to give evidence as effectively as if she made that election in open court upon being called upon to do so.

[16] What is said to have amounted to a Weissenstener direction in this case is, first, his Honour's brief reference to the fact that the appellant's fingerprints had been found on some of the items in Renton's unit, and that there was no explanation from her of how they came to be there; "therefore", his Honour continued, "you may be more ready to draw the inference suggested by the Crown". The second passage complained of appears near the end of the summing up, and is to the effect that the case of each accused was really that the Crown had not discharged the high onus of proof beyond reasonable doubt; the jury, his Honour went on, must act only on the evidence before them and must draw no inference adverse to Renton because no evidence had been adduced in his defence. Similarly, so far as the appellant was concerned, she had not given evidence herself:

"but bear in mind that as a result of not giving evidence much of the Crown's case is uncontradicted by any evidence from the defence ...".

[17] The first of those two directions is in the form conventionally adopted in instructing juries in respect of circumstantial evidence given in support of the prosecution case. Such a direction would or might not have been appropriate as regards direct evidence from eyewitnesses: see RPS v The Queen [2000] HCA 3 ss23, 34; but that is surely because evaluating such testimony involves assessing the credibility of such witnesses, and not the drawing of inferences from facts found to be proved by their evidence. The first of these two directions might not have been legitimate if the presence of the appellant's fingerprints had been disputed; but, in that event, a direction in those terms would presumably not have been given except on the hypothesis that those fingerprints would be found to be hers. As to the second of the two directions, there is nothing to suggest it was inappropriate in a case like this where the issues at trial centred on the proper inferences to be drawn from circumstantial evidence that was not only unexplained but not contradicted by defence evidence to the contrary.

[18] In RPS v The Queen [2000] HCA 3 s34, Gaudron ACJ, Gummow, Kirby, and Hayne JJ in their joint judgment said that Weissenstener v The Queen [1993] HCA 65; (1993) 178 CLR 217 was distinguishable as a case in which the accused's guilt was sought to be inferred from circumstances, and where no appealable error had been made in directing the jury that they could safely draw inferences when the accused had not given evidence of relevant facts which he might be readily perceived to know. McHugh J said ([2000] HCA 3 s50) that "the failure of the accused to give evidence denying an adverse inference from such a proven fact is a circumstance which entitles the jury to draw that inference more readily". It may be that in future in giving the standard direction regarding inferences, trial judges may in some cases need to take care to distinguish between testimony going to proof of a primary fact and the inferences capable of being drawn from it once it is proved and found. But the present case is, apart from the evidence of visual identification yet to be considered, not one in which there was serious contest about proof of the primary facts in the prosecution case, as distinct from the inferences or conclusions capable of being based on them; and, in any event, in introducing the topic of circumstantial evidence to the jury in summing up, his Honour directed that the facts had first to be found before any inferences were drawn from them. The matter is therefore not one like RPS v The Queen, in which the trial judge invited the jury to accept disputed prosecution testimony about an alleged admission because the accused had failed to give evidence contradicting it, and where in doing so the judge had, contrary to s 20(1) of the Evidence Act (NSW), commented on that failure as a matter tending to establish the guilt of the accused. Nothing like that was done here in the summing up. Grounds 5 and 7 of the appeal therefore fail.

[19] There was a good deal of evidence from witnesses who were inside or outside the Biggera Waters bank on 27 May 1996 describing weapons the robbers were seen to be carrying. Some of them remembered that one of the robbers had a firearm with a magazine "curving backwards", which is distinctive, or at least descriptive, of an Australian Automatic Arms (AAA) rifle like that found at Renton's Pine Ridge Road unit on 19 June 1996. Some of the witnesses recalled a shotgun or similar weapon being carried by the other robber, who was said to be a woman. A shotgun (ex 44) was, it may be recalled, also found at the unit on that day. In the Paradise Point robbery on 13 June, the evidence about the types of firearms used was less specific. Three of the witnesses recalled that one of the robbers was carrying a shotgun; three remembered only a firearm of some kind. In addition to the rifle and shotgun in the unit, the police also found a .22 sawn off rifle there. A considerable quantity of ammunition of different calibres was also found there, most of which would not have fitted the AAA rifle or the shotgun. No fingerprints were found on any of these items, which in its own way is perhaps a little surprising if they had been bought and were being used for legitimate purposes.

[20] The trial judge directed the jury that two of the weapons found there had been described as similar to those in the Biggera Waters robbery. No complaint could properly be made about that statement of the evidence. His Honour went on:

"Now you should understand that none of the firearms found there are alleged to have been used in the robbery; quantities of ammunition were also located and that ammunition was consistent with, or it could have been used in weapons similar to those which were observed [being] used in the Biggera Waters robbers."

Again, a direction in this form was not open to objection.

[21] In support of ground 2(d), it was submitted that the evidence about the discovery of the weapons at Renton's unit after the robberies had taken place should have been excluded. It is difficult to see why in principle it should have been. It was more or less what one might have expected in the offender's premises if firearms were used in the robberies. The real point of the objection is that the judge erred in directing the jury about the use that could be made of that evidence. There was evidence in the prosecution case from the manager of a firearms shop "The Bunker" that the weapons were sold by him on 17 June, which, as his Honour reminded the jury, was some time after the offences the subject of the indictment had been committed, so that none of those weapons could have been used in the robberies. But, his Honour went on:

"as I understand it, one of the purposes of adducing that evidence is to show, in effect, that the possession of firearms or ammunition are part of the tools of trade of a robber and if you find weapons and firearms in the possession of a person it's another circumstance which you may take into consideration, seeing that weapons or firearms and ammunition are used by bank robbers, such items were found in premises occupied by Renton. It doesn't in itself prove anything, but it is another relevant consideration."

[22] This direction was said to be erroneous and in conflict with the decision in R v Connolly [1991] 2 Qd R 171, in which it was held that evidence of the discovery of a "virtual arsenal of weapons" in the possession of the accused, some of which could not have been used in the robberies with which he was charged, went only to show his criminal propensity, and so should not have been admitted at the trial. It may be that the decisions in Thompson v The Queen [1968] HCA 21; (1968) 117 CLR 313 and Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, which were followed in R v Connolly, might now be reconsidered by that Court. Since they were decided, the High Court in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 has held that propensity evidence is not necessarily inadmissible on a criminal trial. According to Mason CJ, Deane and Dawson JJ (at 484), its admissibility depends upon "the improbability of its having some innocent explanation ...". It may, their Honours said, be "a step in the proof of the prosecution case" by reason of its having "a specific connexion with the commission of the offence charged", which outweighs its prejudicial effect.

[23] Depending on the meaning of "specific connexion" in this context, the evidence about the discovery of the firearms and ammunition in Renton's unit may have been properly admitted. It is certainly difficult to identify any explanation for having such a variety and quantity of offensive weapons other than an intention to use them in the commission of future robberies like those that were taking place in the locality during the comparatively short period of time after Renton was released from prison. There may even have been an element of bravado or of calculation on his part in leaving the made-up poster, the firearms and ammunition so prominently displayed in the unit knowing they could not be linked to the robberies already committed. The weapons used in the robberies were never found. The appellant took police to a place where she had Renton bury something but the investigation proved fruitless. A mattock covered with dirt was left at the scene of one of the robberies.

[24] No complaint seems to have been made on Renton's appeal about the adduction of this evidence at his trial. The reasons for judgment dismissing the appeal in R v Renton (CA no 188/1997; 12 Dec 1997) make no reference to it. While accepting that the appellant may nevertheless challenge it on her own appeal, the significance of the evidence in the prosecution case against her is not necessarily identical with its relevance in the case against Renton. Irrespective of whether or not evidence of criminal disposition on his part was admissible to prove that he had committed the robberies, it was admissible against her as going some way to showing knowledge on her part of his propensity for committing armed robberies. Once the inference was drawn that she was aware of the firearms and ammunition in the unit, it is remarkable that, if innocent, she did not take action to distance herself from him and from the unit, instead of continuing, as she did, to associate herself with him and it. Even if the law excludes such evidence because of its unduly prejudicial impact on the minds of jurors, there is no obvious reason why ordinary people should be expected to ignore it in the conduct of their affairs.

[25] The most that could be said by way of innocent explanation of the appellant's continued association with Renton down to the date of their arrest on 19 June is that she must not have been of an inquisitive nature, and so knew nothing of his propensity to commit robberies; or that, although she knew of it, she was more than ordinarily determined to mind her own business and continue associating with him. Such an explanation does not sit comfortably with other evidence in the case against her including her own admission that she was "driving him around", and that she knew he was stealing cars, at least some of which were shown at the trial to have been used in committing the robberies. It is a not insignificant feature of the evidence in the case against the appellant that, although the vehicles used in each of the robberies were taken on different days before those offences were committed, they were all abandoned on the day on which the associated robbery took place. The blue Laser was taken on 25 May 1996 and abandoned in Fiona Street near the Biggera Waters robbery scene on the day of that robbery on 27 May. The white Laser was taken on 24 May and abandoned under the units at Back Street near that scene on the same day. Mrs Sutton's white Mazda was taken on 9 June, and was left at the Bank at Paradise Point after being used to ram the doors on 13 June. Mr Pilbeam's red Laser was taken on 6 June; it was also recovered on 13 June after the robbery on that day. Mr Thomas's Ford Telstar was taken on 4 June. The precise day on which it was recovered is not given, but it was later found at Nerang, and Mr Thomas was able to say that it had travelled only 70 kms since he last saw it. Renton was evidently not taking the vehicles in order to sell them to others. If his purpose was simply to obtain means of transportation, it is remarkable that he should have needed so many vehicles at the same time, and that he should have abandoned them all at once. The inference that they were taken for use in the robbery is compelling. It is not difficult to infer that the appellant was aware that that was his real purpose in taking and in abandoning them in that way.

[26] It is convenient to refer now to ground 8 in the notice of appeal as amended. It takes issue with the trial judge's direction that the jury could use evidence of similar acts or similar facts in reaching their verdicts. To the extent that the appellant's submissions on this aspect are concerned with similarities in the vehicles unlawfully taken and used and in the method of taking them, those facts have already been mentioned in passing. Three of the six vehicles taken and used in the robberies were Ford Lasers; one was a Mazda; another a Ford Telstar, and the sixth was a Magna. In all of them the ignition assembly had been either removed, or damaged or interfered with, and in some or all of them access was gained to the vehicle by tampering with the front passenger door locks. A similar attempt seems also to have been made on Mr Rixon's Magna on 4 June 1996. The appellant may be correct in submitting that, without evidence about the infrequency of that method of stealing cars, it counts for little. Successful car thieves may be expected to use some system. The evidence of the means employed to take the vehicles was, however, admissible of its own force to prove the unlawful use counts. Any additional use to which the evidence was put as constituting similar facts stemmed from comment or submissions to the jury in the prosecution addresses on its significance, rather than from its admission in evidence at the trial.

[27] The other similarity evidence relied on by the prosecution was: (1) that all of the robberies were committed on branches of the National Australia Bank; (2) after closing time while the staff were still on the premises; with (3) entry being gained by smashing the glass doors, in one case by driving a car into them and in the other two by using a sledge hammer. There was evidence from experienced police officers of the rarity of this modus operandi. The third of the foregoing matters may well have been related to the second, and possibly also a fourth, circumstance, which was that in each case a demand was made for the Reserve Bank bag or something similar. His Honour's direction to the jury with respect to both of these sets of alleged similarities was that, although capable of suggesting that the same person or persons had committed these offences, they did not tend to show that it was the accused or either of them who had done so. Proving that the same people might have committed all of the offences was nevertheless a step, even if a short one, in the case against the two accused. The evidence was, in any event, relevant to proof of the offences themselves, and the direction given with respect to it was accurate and unobjectionable. The Crown was entitled, if it could, to try to persuade the jury that there was evidence that the robberies and car stealing were carried out by the same person or group of persons. There is no substance in ground 8.

[28] Grounds 1 and 1(a) are that the evidence of alleged identification witnesses ought to have been excluded, or that more extensive directions with respect to it should have been given to the jury. As regards the Biggera Waters robbery, three witnesses in particular were called against the appellant. They were Mr Fyffe, a Ms Ogilvie, and a Mr James.

[29] Mr Fyffe was at his home at Oleander Avenue, Biggera Waters, at between 10 am and midday on 27 May 1996. He saw a man get out of a blue Ford Laser (count 4) and walk to a white Laser (count 5) with a woman driver in it. The man got in beside her by opening the back door and reaching over to the front door to undo it. After a brief period of time, the man returned to the blue Laser and both cars drove off. A little later the blue Laser returned, with the woman driving and the man in the passenger seat. Fyffe identified the man as Renton from a photoboard on 21 June, but did not recognise the appellant among 1000 or more photographs of the women shown to him, of which she was in fact not one. He did, however, claim to identify the appellant as the woman driver when he saw her at the court house on 26 October 1996.

[30] Ms Ogilvie was driving her car in the afternoon of 27 May when she ran out of petrol near the Biggera Waters Shopping Centre, and stopped in Fiona Street. A blue Laser (count 4) and a white Laser (count 5) stopped behind her. A woman got out of the blue Laser and ran back to the white Laser which had parked behind it. The woman talked to the male driver of that car. Then she got back into the white Laser and both cars drove off, did a u-turn, and then drove back past Ms Ogilvie. They stopped again, both of them got out of their cars, and started taking things out of the white Laser and putting them into the blue Laser. They then got into the white Laser together and drove off, leaving the blue Laser behind. The woman was wearing a tracksuit, which Ms Ogilvie thought was dark green, and was wearing a wig, which, as a hairdresser, Ms Ogilvie recognised as such. She too later claimed to be able to identify the woman when she saw her at the court at Southport in October.

[31] Mr James lived in a unit at 24 Back Street, Biggera Waters. At about 4 pm or later on 29 May 1996 he was raking leaves off the driveway when he saw a white Ford Laser (count 5) come in and park underneath the block of units. The car engine was left running and a woman, about 5 ft 6 ins or 5 ft 5 ins tall and in her late thirties, came running out from underneath. He remonstrated with her about her parking there, to which she replied that she wouldn't be long, and would be back for the car. She went half way down the block, before he saw another car, which was a Magna station wagon driving off along the road. From the "bluey" coloured tracksuit she was wearing he recognised her as the woman he had seen earlier. She was wearing a shoulder length black wig and was seated next to the male driver, whose photograph Mr James picked out from a photoboard he was shown on 18 June. He was unable to identify the appellant herself from photographs he was shown, but claimed he was able to do so from the way she walked or ran and from hearing her speak when he saw her at the Southport court house for the committal proceeding on 24 October 1996. After that, he felt "100% sure" it was the same woman he had seen parking the Laser at the unit.

[32] As regards the Paradise Point robbery, at about 4.30 pm on 13 June, Mr Hill was working at a hairdressing salon which was one shop away from the bank. He heard the car smash into the bank doors, and, on looking in that direction, saw a woman with an olive complexion and long brown hair sitting in a red Laser (count 8) in front of the bank. On 18 August he was shown a photoboard, from which he chose photographs 6, 8 and 11 as the most probable likenesses. Number 6 was in fact a photograph of the appellant.

[33] The learned trial judge's directions on the subject of visual identification were extensive. He described the prosecution evidence as circumstantial, and as including identification evidence in the form of "attempts by the witnesses to try to identify the offenders they've seen in the vicinity of where the offence was committed and in the vicinity of vehicles" allegedly used in the course of the robbery. "Much of that evidence", his Honour went on:

"is not very strong. I refer to it as identification evidence, but in some cases its purported identification of the accused persons ..."

He then gave the standard warning based on R v Turnbull [1977] QB 224 and Domican v The Queen (1922) 17 CLR 555, with respect to matters such as the previous familiarity of the observer with the person being identified, duration of observation, condition of the light, and so on, explaining as he did that an honest witness could be mistaken and that an impression that the witness was telling the truth did not mean he or she was reliable.

[34] His Honour specifically cautioned the jury that some of the evidence was of "poor quality and on its own may not take the Crown case much further". In this instance he said a number of the witnesses had seen a person, whom they purported to identify, over fairly short periods of time; in a number of instances the descriptions given by the witnesses did not tally, and there were inconsistencies between their evidence and their earlier statements. Some of the offenders may even have worn disguises, which made identification more difficult. Sometimes, he said:

"witnesses are consciously or subconsciously influenced by the fact that they have subsequently found out who the suspects are and for that reason they may tend to change their evidence somewhat, perhaps, not deliberately, but to try to fit the suspect in with their description or vice versa. As I say it may not be deliberate ..."

He warned the jury against the tendency to assume that the accused in the dock were the offenders, and that the police must have got hold of the right people. Specifically in relation to the evidence of Mr James, his Honour said that the purported identification was based on "very minimal information", a few words which he had previously heard the appellant speak and a few words that he heard her say later at the Southport courthouse in October 1996, and on the way she walked. James had not picked her out from a photoboard, which was a form of attempted identification that, his Honour said, "obviously" has its limitations. It was a matter for the jury to assess the weight of his identification evidence and to determine whether or not it was reliable.

[35] The directions on identification evidence extended over six pages of transcript and dwelt on the recognised frailties inherent in evidence of that kind. The procedure carried out by the police of having witnesses attempt an identification from photoboards had in fact been recorded on audio tapes, which were replayed at the trial, and his Honour invited the jury to listen carefully to those recordings again, if necessary, before deciding on the weight to be given to the purported identification evidence of those witnesses. It is a fair statement of the procedure used in respect of the appellant that the police had not asked potential witnesses to identify the appellant as such, but rather to point to persons who resembled her. In a sense, therefore, the evidence against her was more circumstantial than direct. Only two complaints could legitimately be made against the summing up in relation to the evidence of the identifying witnesses. One was that the jury were not warned specifically of the dangers inherent in the method of voice identification by James. On both occasions he had, as the Judge mentioned, heard her speak only a few words. In the welter of evidence given at this 17 day trial, it may be that, to have dwelt in too much detail on what James claimed to have heard, would only have served to highlight it in the minds of the jury. The other possible complaint is that the judge did not deal specifically with the deficiencies of the purported identification by Mr James and Ms Ogilvie at the court house in October 1996. They had been told by police to look out for anyone they might recognise. They were evidently sitting near one another, and on seeing the appellant, each of them exclaimed something to the effect that she looked familiar. For that reason their impressions might have "tainted" one another. The appellant, they agreed, was one of few women seen coming into the court that day. Counsel for the appellant naturally "camped" on these and other weaknesses in cross-examining those witnesses, and, it may be thought, did so with a degree of success. The warning about subconscious influences given in the passage quoted above is plainly applicable to the court house identifications. The judge may have considered there was no need to repeat all of the details in the summing up. After all, the jury had witnessed the cross-examination themselves.

[36] That the jury sufficiently understood the need to look for weakness in identification evidence may be thought to be demonstrated by their verdict acquitting Renton on the first count in the indictment of robbing the bank at Morningside, while at the same time convicting him of unlawfully using the vehicle associated with that offence, in which Renton's fingerprints had been found. In the end, the directions on identification of the appellant appear adequate and sufficient for the occasion. They were given at the beginning of the substantive part of the summing up before his Honour turned to an analysis of the circumstantial evidence, emphasising as he did so that "identification is very important in this case", but that identification "is a part and part only of the circumstantial evidence on which the Crown relies to prove its case". In discussing the character of circumstantial evidence, which he contrasted with direct evidence of identity, his Honour directed the jury that they had to be satisfied, first, that the facts relied on by the Crown had been proved, and then that "the inference you draw from the facts, an inference that the accused persons are the offenders, is the only reasonable inference you can draw from the facts as you find them to be proved... you've got to be satisfied that the only reasonable inference you can draw from the facts is one of guilt". That direction was fully in conformity with the requirements of Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 581-582, and Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217.

[37] The summing up was necessarily a long one It covered 60 pages of transcript, and was followed by some redirections at the request of counsel for the Crown and for Renton, counsel for the appellant having by then withdrawn from the trial. It is always possible afterwards to think of ways in which a summing up could have been extended or improved in detail or focus. A trial judge has an obligation to ensure that the jury are adequately directed with respect to critical facts and issues in the case but without losing them or their attention in a mass of endless detail. In that respect the overall impression gained from reading the summing up in this case is that it was a balanced and impartial statement of the essential matters that the jury were required to consider in reaching their verdict. The verdicts cannot be considered unsafe or unsatisfactory.

[38] The appeal against conviction and the application for leave to appeal against sentence must be dismissed.