R v Main, ex parte A-G [1999] QCA 148

4 He had earlier recognised his attacker but could not remember her name, which he knew began with an "M". He was asked, "... did the person have anything on their face, anything obscuring their face? -- The only thing they had was a hat on their head." He described her as about 5 feet 4 inches, shorter than him, with a black top and long pants like leggings with "a stirrup thing" around the foot and bare feet. The hat was black.

5 By checking his records of registrants on the methadone program later that evening he was sure the name of the robber was Madonna Main, an erstwhile customer who was on the methadone programme from the end of July 1990 until 3 September 1990. She attended the pharmacy on 39 days and he served her personally. He was asked:

How far away were you when you saw the person's face during the robbery? -- During the robbery? Three feet.

And was there anything obscuring your vision? -- She had the hat pulled down over her eyes most of the time. Once I recognised her - I managed to see her eyes - her head was up enough that I saw her eyes and recognised her. I made sure it was the person I thought it was.

Mm? -- After that I just mainly made sure that the knife didn't end up somewhere where it shouldn't be - in me."

The overhead fluorescent lighting in the pharmacy was similar to that in the court room.

6 The following day, he identified the petitioner as photograph no 4 on a board of 12 photographs. No complaint is made as to the fairness of the photo board identification.

7 During cross examination, he denied the woman was wearing sun glasses and agreed that he had a recollection of seeing the woman's eyes. He described her clothes as "definitely black". Her top was a t-shirt type rather than a coat or a jacket. Once he recognised her he paid attention to the knife which had a dirty crepe bandage around the handle. He did not notice any jewellery or tattoos, and specifically no wrist tattoo.

8 When he recognised the woman outside the Night Owl, she was wearing the hat and she looked directly at him, although his view of her was from the side. He did not say hello to her outside the shop because he was embarrassed as he could not recall her name. He was asked, "Was she dressed in the same way when she came into the shop? -- As far as I can remember she was the same." He added, "... during the holdup, when I got a look at her face - I made sure that was Madonna Main."

9 There were two other pieces of evidence supporting the identification. Firstly, when police searched the petitioner's home the next day they found two bottles containing methadone syrup on her partner's side of a double bedhead. She admitted possessing a cannabis bowl which was also found on the bedhead but denied knowledge of the bottles of methadone syrup. As the labels had been removed from the bottles it was impossible to say from which pharmacy they had come. Bottles of this type were not sold or given to customers or those on the methadone programme and are not lawfully available outside chemist shops.

10 The other evidence supporting the identification was that when the police searched her home the next evening, the petitioner was wearing a pair of very dark blue legging-style pants with stirrups which are placed under the foot. In the tendered photograph the leggings appear black and seem to match Mr McDowell's description of the rather unusual pants worn by the robber. No other evidence implicating her directly or indirectly in the robbery was found at her home.

11 The petitioner gave evidence that she was not involved in the robbery and knew nothing about it: she was not at McDowell's pharmacy on 2 December 1995. She has now and at the relevant time had a tattoo on her left wrist. She was living in Inala at that time and had no transport other than public transport.

12 In the trial judge's directions to the jury, he warned them of the special need for caution before convicting on the evidence of identification; that a mistaken witness can be a convincing witness and to ensure that they were satisfied before convicting the petitioner that the identification witness was not only honest but also correct. His Honour pointed out matters relevant to the accuracy or inaccuracy of the identification and then told the jury:

"... when you come to consider Mr McDowell's evidence you will bear in mind the warning that I gave to you in relation to identification evidence. You will also take into account, when considering Mr McDowell's evidence, that he is identifying somebody he hasn't seen for five years and he is identifying that person when that person has a hat pulled down on her face."

13 In summing up the defence case for the jury, his Honour said:

"Dealing with the Highgate Hill robbery, Mr Feeney said why would Ms Main, if she was involved in this robbery, walk into a security camera undisguised if she was known to Mr McDowell? Mr Feeney suggested that if you look at the Night Owl video you may see that the person depicted in that video has sunglasses and a pony tail.

Mr Feeney said that Mr Dowell's (sic) identification depended on him remembering her from August 1990, yet he couldn't remember whether he gave the detective a bottle of methadone or not.

He made submissions in relation to whether Mr McDowell had said in June that he only saw the person outside the Night Owl shop, side on, and I have reminded you of the evidence in relation to that submission.

Mr Feeney finally said that you would take into account that Mr McDowell said he saw the robber's hands but he did not notice any tattoo. He said Ms Main has a tattoo and if she was the robber Mr McDowell would have seen it and remember it."

14 The petitioner unsuccessfully appealed to this Court on the ground of the inadequacy of the identification evidence. The then Chief Justice, who delivered ex tempore reasons with which Derrington and Byrne JJ agreed, noted: "I have to say that it reads like strong identification evidence and not evidence which contains any obvious deficiency." The Chief Justice then referred to some of the identification evidence, noting:

"At one point notwithstanding the presence of the hat he got what was obviously a good view of the woman's face because he said amongst other things that he noticed her eyes and they were a particularly telling feature."

(In fact, although Mr McDowell did claim to see her eyes he did not say "they were a particularly telling feature".) The Chief Justice concluded:

"A perusal of Mr McDowell's evidence does not lead to any impression that there was a weakness in his identification which should have caused the jury to have doubts. No deficiency in the summing up of the Judge is pointed to and one is left with the impression that this is a case where the jury having been fully and adequately warned of the dangers of over hasty acceptance of purported identification evidence had available to them a strong case to support a conviction."

15 Even if it is accepted that the enhanced images were not available at the trial and that they provide apparently credible evidence, the test for this Court in determining a reference to it under s 672A of the Criminal Code involves a consideration of whether there has been a miscarriage of justice within s 668E(1) of the Criminal Code. That test involves a consideration of what influence the new evidence might have had upon the jury if it had been available at the trial: see Gallagher v The Queen[1] where Gibbs CJ, and Mason and Deane JJ in separate reasons found that unavailability of fresh evidence at the time of trial will involve a miscarriage of justice if the appeal court considers there is a significant possibility that a reasonable jury would have acquitted the appellant if the new evidence had been before it at the trial.[2] This approach was approved by Mason CJ and Deane J in Mickelberg v The Queen.[3] Toohey and Gaudron JJ said:

"In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it (Gallagher (46), per Brennan J) or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the [accused]' (Gallagher (47), per Gibbs C.J. and per Mason and Deane JJ.) (48). If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: see Lawless (49), per Mason J., and Gallagher (50), per Brennan J. but cf. Barwick C.J. in Ratten (51)."[4]

Brennan J agreed with Toohey and Gaudron JJ "that it is not necessary to elaborate in this case upon the differing nuances of these formulae or to decide between them, my preference for the 'likely' formula remains."[5]

16 Whether or not there is any practical distinction between the "likely formula" or the "significant possibility formula", (and for the purposes of this case, I think not) and, if there is a practical distinction between the formulae, whichever test may be more favourable to a petitioner, I respectfully agree with Gibbs CJ's comments in Gallagher that:

"no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred"[6]

and with Thomas J (as he then was) who noted when considering a reference to this Court on behalf of a petitioner under s 672A of the Criminal Code in R v Condren; ex p Attorney-General:[7]

"... prima facie the usual rules governing the reception of fresh evidence should be followed, but there is a residual discretion in the Court to receive such evidence (even if it fails to satisfy the usual tests) where to refuse to do so would lead to a miscarriage of justice. Such cases would be exceptional, although R v Young (No 2) [[1969] QdR 566] affords an illustration of a case where the Court was in some doubt whether the usual rules could be satisfied, but was in no doubt that the additional evidence made it necessary that the conviction be quashed."

17 The principal question for consideration here is whether there is a significant possibility (or whether it is likely that) a reasonable jury would have acquitted the petitioner if the enhanced images had been before it at trial, so that a "miscarriage of justice" within the meaning of those words in s 668E(1) of the Criminal Code has resulted. This approach is generally consistent with that taken in references by the Attorney-General to this Court under s. 672A of the Criminal Code in Condren and R v Stead.[8] In reaching that conclusion, this Court must consider the "new" evidence together with the evidence at trial.

18 Although the "new" evidence by way of enhanced imagery does suggest the petitioner was probably wearing sunglasses as she left the pharmacy and perhaps also as she entered it, this issue was canvassed extensively at the trial in the cross-examination of Mr McDowell and in the address of defence counsel. The enhanced imagery strengthens the defence submissions made at trial that the robber was wearing sunglasses. Mr McDowell claims that he saw the robber's eyes and was able to recognise the robber as the petitioner, a past customer. Even if she were wearing sun glasses, she may have looked over the top of them or lifted or removed them for a time. The lighting was good and Mr McDowell observed the robber at close quarters for more than a brief period. That he did not remember sun glasses or notice a tattoo on her wrist does not mean the identification was necessarily flawed.

19 The case was one of recognition of a customer known to Mr McDowell rather than identification of a complete stranger. On the night of the robbery he checked his records to put a name to the robber whom he recognised. The following day he identified the petitioner from a photo board of 12 photographs. Of course, if his recognition was mistaken, he may have identified his past customer, the petitioner, rather than the robber, but the jury were warned of the dangers of mistaken but honest identification. Importantly, this recognition was supported by other evidence. The next evening, the petitioner was wearing leggings of a similar type to those described by Mr McDowell as worn by the robber and bottles of methadone similar to those taken in the robbery and not lawfully available outside chemist shops were found in the bedhead of the petitioner's bed.

20 As this Court has already held, the directions given to the jury by the learned trial judge as to the dangers of identification were full and adequate in all the circumstances.

21 Having regard to both the enhanced images and the evidence given at the trial, I am in the end satisfied that the unavailability of the enhanced images at the trial raises neither a significant possibility nor a likelihood that a reasonable jury would have acquitted the petitioner had the enhanced images been before it at trial. No "miscarriage of justice" under s 668E(1) of the Criminal Code has resulted; nor is it in any way unsafe in the administration of justice to allow the present conviction to stand. Accordingly, I would dismiss the appeal.

1 I have read the reasons of McMurdo P. in which the relevant facts are set out and analysed. Ms Main has petitioned for a pardon and, the "whole case" having been referred to us, we are to hear and determine it "as in the case of an appeal" by the petitioner: s. 672A(a) of the Criminal Code. Two years ago the petitioner had her appeal against conviction dismissed and she now attempts to have that result reversed, on the ground that new evidence has been obtained. In Mickelberg [1989] HCA 35; (1989) 167 C.L.R. 259, the High Court had to consider what approach should be made to the exercise of the jurisdiction in question; there, as here, an attempt was made to have the conviction set aside on the ground of fresh evidence and a question arises as to the effect of that decision. In Condren [1991] 1 Qd.R. 574 at 579, it was suggested that in such a case:

". . . prima facie the usual rules governing the reception of fresh evidence should be followed, but there is a residual discretion in the Court to receive such evidence . . .".

I respectfully agree; one justification for this approach is that it may seem excessively harsh, in some instances, to reject a criminal appeal on the ground that allegedly fresh evidence relied on by the appellant was available below. That will particularly be so if it appears that the appellant is not intelligent and lacks financial resources. If it is determined not to admit the evidence then the Court need go no further; if the evidence is admitted then the question whether it justifies setting aside the conviction remains to be considered.

2 The two stages of consideration will often conveniently be merged; the degree of cogency and weight of the fresh evidence may be the real issue, at both stages. But it should not be overlooked that the availability of the evidence at trial is a ground on which the evidence which is proffered on appeal may be rejected: Ratten (1974) 131 C.L.R. 510 at 516, 517, Lawless [1979] HCA 49; (1979) 142 C.L.R. 659 at 675, Mickelberg at 288, 301.

3 Here, the only real issue is the degree of cogency and weight of the evidence - what effect one would have expected it to have on the outcome, had it been adduced before the jury at trial. There was a difference of view in Mickelberg as to whether the test should be that enunciated by Brennan J. (as his Honour then was):

". . . whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused". (275) (emphasis added)

As his Honour pointed out, other formulae have been put forward, in particular that of "significant possibility". There is a real distinction between a test of likelihood and one of possibility, one which is not erased by attaching the requirement of significance to the latter. In my opinion Mickelberg does not definitively adopt one test or the other; the test of likelihood is, at least in the usual case, to be preferred, on the ground that it pays due regard to the primacy of the jury verdict. But I accept that circumstances may arise in which the basic criterion, which is whether there has been a miscarriage of justice, will be satisfied even if the Court is uncertain whether the additional evidence would have been likely to bring about a different verdict.

4 Reasons for concluding, as I have, that this conviction should stand, on the ground that the additional evidence would not have been likely to affect the outcome, are set out in the President's analysis of the relevant evidence, with which I agree. I agree with her Honour that the appeal be dismissed.

1 I have read the reasons of McMurdo P in which her Honour analyses the relevant facts and agree with the conclusion which she reaches that the omission of the fresh evidence from the trial did not lead to a miscarriage of justice.

2 I wish to make a few observations about the test to be applied in assessing what difference, if any, fresh evidence might have on the outcome of a trial.

3 The degree of persuasion which an appellate court must have before it concludes that for want of the fresh evidence there has been a miscarriage of justice has been variously expressed. In Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Mason and Deane JJ at 402 concluded that an appellate court will conclude that the unavailability of the new evidence at the time of the trial involved a miscarriage of justice "if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial." Gibbs CJ, in effect agreeing, at 399 observed:

"It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgment prepared by Mason and Deane JJ who suggest that the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. I am in substantial agreement with this statement. However, I would emphasise that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial."

"The likelihood of acquittal is, I think, a sufficiently clear criterion not to require exegesis. To describe the likelihood as a significant possibility seems to me, if I may say so with respect, to introduce a further conception which has a nuance of meaning different from the meaning of likelihood. A criterion of "significant possibility" may be thought to be susceptible of easier satisfaction than the criterion of likelihood and to be closer to the test rejected by Menzies in Ratten (1974) 131 CLR, at p 526: "might perhaps have led to an acquittal"," at 410.

Dawson J preferred to express the test differently but, he thought, to similar effect to that of Mason and Deane JJ. There was, therefore, substantial agreement between all of the judges of the Court, save for Brennan J, that a test commensurate with "significant possibility" was the appropriate test to apply.

5 In Mickelberg v The Queen [1989] HCA 35; (1988-1989) 167 CLR 259 the High Court again considered the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence. Mason CJ concluded at 273 that Gallagher established:

"... that the proper question is whether the court considered that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial."

His Honour noted that the Court in Mickelberg was not asked to reconsider the correctness of the decision in Gallagher at 273.

6 Deane J expressed the test as "significant possibility" at 292. Toohey and Gaudron JJ recognised at 301 the different expressions used by Brennan J on the one hand and Gibbs CJ and Mason and Deane JJ in Gallagher on the other, but doubted that there was a practical difference. Their Honours formulated the test at 301-2 as:

"For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it..."

Their Honours then said in the following paragraph:

"To determine whether or not the jury might have entertained a reasonable doubt as to guilt ..."

suggests that "likely" in the context in which their Honours used it may be different in degree from its use by Brennan J. In Mickelberg Brennan J seemed to accept some distinction at 275 between the two expressions:

"The test has sometimes been expressed not in terms of "likely" but in terms of "might" ... or in terms of "significant possibility" ... Although I agree with Toohey and Gaudron JJ that it is not necessary to elaborate in this case upon the differing nuances of these formulae or to decide between them, my preference for the "likely" formulae remains."

7 It may be that there is little practical difference between the two but I agree with Pincus JA that there is a distinction between the test of likelihood on the one hand and one of possibility on the other and adding the requirement that the possibility be significant does not reduce the distinction. There is a preponderance of authority in favour of an appellate court being satisfied to the lower standard of "significant possibility" when considering fresh evidence in a criminal matter based upon Gallagher and supported by Mason CJ and Deane J expressly in Mickelberg. In Queensland Kelly SPJ expressly preferred the formulation based on "significant possibility" in Condren (1990) 49 A Crim R 79 at 80 and the other members of the Court did not suggest otherwise. So too in R v Gilvarry (1991) 2 Qd R 431 per Williams J at 442.

8 I have concluded that whether the test of "significant possibility" or "likelihood" is applied there has been no miscarriage of justice by the failure of the jury to have access to the enhanced images which can reasonably be inferred show that the petitioner was wearing sunglasses at the time that she entered the chemist shop and when she was leaving it.

[1] [1986] HCA 26; (1986) 160 CLR 392, 397, 407.

[3] [1989] HCA 35; (1988-1989) 167 CLR 259, 273, 292.

[7] [1991] 1 QdR 574, 579.

[8] CA No 162 of 1996, unreported, 8 August 1997, especially Fryberg J at 4-5.