R v Morgan [2009] VSCA 225

2 Of five original grounds of appeal against conviction, two were argued before this Court. They were:

(3) The learned trial judge failed to give a full, proper and adequate identification warning to the jury during the course of his charge.

(5) The guilty verdict of the jury was unsafe and unsatisfactory.

3 At the outset of the hearing of the appeal, the applicant was granted leave to add the following grounds of appeal.

(6) The trial judge erred in failing to direct the jury as to prior inconsistent statements.

(7) The trial judge erred in his direction to the jury as to the availability of a majority verdict.

(8) The trial judge erred in failing to adequately direct the jury as to the use that could be made of the transcript.

4 Later still, leave was granted to add a further ground:

(9) The trial of the applicant miscarried as a result of an aggregation of errors.

5 In respect of the appeal against sentence, neither of the grounds originally relied upon was eventually pressed. Leave was granted to the applicant, however, to rely upon the following ground:

That in light of fresh evidence relating to the cancellation of the Applicant's parole the sentencing discretion should be re-opened.

6 The offence of which the applicant was convicted took place on 20 September 2005. The offender entered a shop in Canterbury Road, Box Hill, which consisted of a small post office and bank agency. At the time, the shop operator, Ms Alice Huang, was working behind the counter alone and there were no other customers in the shop. After making enquiries with her about the availability of banking facilities, the offender obtained and brought to the counter some bank deposit and withdrawal slips. He asked Ms Huang to fill out a slip. She began to do so, but then the offender said 'I will stab you with this knife, okay'. Ms Huang looked up, she saw that the man had a knife held to his own throat. The offender demanded money from the shop safe. Ms Huang acceded, opening the safe and removing cash from it whilst the applicant emptied the cash register. The applicant ordered Ms Huang to lie down on the floor, and he left the premises with approximately $9,000 cash.

7 Ms Huang described the perpetrator as being approximately 180 centimetres tall, Caucasian, and of medium build. She also described his clothing and reported that he looked familiar, and that perhaps she had seen him before. Ms Huang gave evidence that the perpetrator left some deposit and withdrawal slips on the counter prior to the robbery. Latent fingerprints were detected on several of the slips. Only one was of quality such that it could be matched. Evidence was given at trial, and no attempt was made to controvert it, that the print matched the applicant's right thumb print.

8 The defence case - advanced through the evidence of Ms Huang, the applicant having made a no-comment record of interview and not himself giving evidence - was that the applicant had indeed been to the shop before, for which reason Ms Huang identified his face as familiar. Whilst it was conceded that the thumb print was that of the applicant, his counsel advanced an argument that it must have been left there at a previous attendance, not in the course of the robbery. We add that an attempt was made in cross-examination of a Crown witness to show that the applicant had, at the time when the offence was committed, an account with the bank to which the slip with the thumb print on it related.

9 On 6 December 2005 the applicant was arrested and charged with numerous offences dating from 20 September 2005 to 29 October 2005. They included this armed robbery.

Appeal against conviction - Ground 3 - Identification warning - Ground 5 - Verdict unsafe and unsatisfactory

10 The question of identification of the applicant by the witness Ms Huang was, as counsel for the applicant submitted to us, pivotal in the trial. It was clearly a matter which assumed great significance in the mind of the jury given its request for access to the transcript of evidence of Ms Huang's cross-examination and a request, after deliberations had proceeded for a time, for further directions from the trial judge with respect to the identification issue.

11 In this Court, there were several threads to the submissions for the applicant . Unfortunately, they were not presented in a logical sequence. Counsel's first argument assumed that Ms Huang's evidence was evidence of a positive identification by her of the applicant. On that assumption, so counsel submitted, the full warning contemplated by the High Court in Domican v The Queen[1] was required to be given to the jury; and to the extent that warnings were given by the trial judge in this case, those warnings were deficient. As part of this argument, counsel contended that the judge should have directed the jury that a weakness of Ms Huang's evidence was that it was not evidence of positive identification at all, but only evidence of similarity.

12 The second thread of counsel's submissions was logically anterior to the first. Counsel contended that Ms Huang's evidence was only evidence of similarity - or at least that was one view of her evidence. The jury should have been told that its first task, with respect to Ms Huang's evidence, was to decide whether it was satisfied that the evidence was direct evidence of positive identification. If the jury concluded that it was not, then the judge must have directed the jury that such evidence standing alone would not be sufficient to sustain a conviction.[2]

13 In order to deal with the issues raised it is necessary to analyse the evidence given by Ms Huang. She gave evidence that on 20 September 2005 at about 11.50 am, a man came through the door of her business. There were no other customers in the shop at the time. He enquired about a post office box and the possibility of obtaining an application form for one. She told him he needed to go elsewhere for that. He then enquired about deposit slips and she directed him to a section of the post office. He obtained some slips and then returned to where Ms Huang was and asked her to write on them for him. She agreed, but before she finished writing the offender, who was now displaying his possession of a knife, told her that her would stab her in the throat. He then said he was 'coming inside' and not to do anything or she would be stabbed. He held the knife to his own throat and said 'I will'. Ms Huang described the knife as a kitchen peeling knife with a wooden handle and with a blade length of about 10-15 centimetres. The offender then told her to open the safe in a hurry. She agreed and did so and gave him the contents. He then told Ms Huang to lie down and not to look at him and then he left with a sum of approximately $9,000.00.

14 Ms Huang said she saw the man's face before he walked in front of the counter. She said he was taller than she was and, referring to his race, he was 'western'. She said he was wearing a white jacket with a zip and a black beanie. Asked whether she had seen him before that day, she said she felt like she had seen him before but he was not a regular customer. She thought he may have been in the shop once or twice.

15 Ms Huang was then asked about the identification procedure she went through with the police. That occurred on 3 January 2006, more than three months after the incident. She said she told the police officer 'this photo looks like it'. She said she chose the photograph number 9 because 'I feel look like the man'.

16 Cross-examination of Ms Huang produced, we consider, a mixed picture. On the one hand - (1) she agreed, when she saw photograph numbered 9 on a photoboard containing 12 photographs, a photograph of the applicant - that she said 'It looks like him. I think it's him. It looks like him' or words to that effect; (2) she said that there was nothing distinctive she noticed about the man she saw; (3) she said that when she looked at the photo she thought the man was 'familiar'; (4) at the end of cross-examination, asked about evidence she had given at the committal which included her saying, by reference to photograph she selected '... that's close to the one' and that it was 'the closest of all the photos', she agreed with a leading question in which it was put to her that the man in photograph number 9 was the closest but she was not saying he was the one. There was also (5) - the fact that the photoboard selection was made about three months after the commission of the offence.

17 On the other hand, Ms Huang - (1) denied in cross-examination that the applicant was a customer of the shop; (2) stated that she had been shown sheets or albums of photographs and had identified no one before she was shown the photoboard and 'identified' the man in photograph number 9; (3) denied that she had approached viewing the photoboard from the standpoint that she felt expected to identify someone; (4) stated that the offender's face was 'always fresh in [her] mind'; (5) stated that, although the whole incident had taken place within a short time, she had had a number of opportunities to observe the offender's face; (6) did not agree that she had been in an emotional state such as to impair her power of observation - particularly before the offender produced the knife; (7) denied that the man depicted in photograph 9 had been in the shop on the day before the robbery; (8) gave evidence which on one view explained her belief that the applicant had previously been in the shop by reference to his apparent awareness of the location of the safe - that is, rather than by purporting to recognise him as a previous customer.

The use of photographs of suspects by law enforcement agencies for the purpose of identifying an offender is a necessary and justifiable step in the course of efficient criminal investigation. None the less, it is attended by some danger of consequential and unfair prejudice to an accused. One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used. ... Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a 'suspect' who 'looks like' the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender.[3]

In the context of the above danger of prejudice to an accused in prosecution evidence of identification by a witness' earlier selection of a photograph or photographs, ordinary considerations of fairness dictate that any such evidence be subjected to careful scrutiny before it is accepted as constituting evidence of positive identification. If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification.[4]

20 The High Court concluded in that case that the impugned evidence was, of itself, incapable of sustaining a finding that the applicant was in fact the person who committed the offence. In the absence of other evidence by way of explanation or elucidation of the words of the witness or other evidence implicating the applicant the convictions were unsafe and unsatisfactory. In this case, unlike Pitkin, there was other evidence implicating the applicant. Further, there was evidence which was capable of elucidating the words of 'identification'.

21 In our opinion, the evidence was left in a state - so far as one can judge from examining the transcript - where it could not be conclusively said that Ms Huang positively identified the applicant; but equally it could not be conclusively said that she did not do so. The latter is so despite the words which Ms Huang used when describing her reaction to photograph 9. The transcript shows that English was not her first language. Her various attempts to convey what she had meant left open the prospect that the jury might legitimately have concluded that she had positively identified the applicant.

22 There was, in the event, a threshold issue for the jury to consider when examining Ms Huang's evidence. Depending on how they resolved that issue would determine in turn how the evidence could be used. We therefore consider that the trial judge should have instructed the jury that there was a question whether that evidence was evidence of positive identification; and only if the jury was so satisfied could it rely upon that evidence alone, if satisfied of its reliability, as direct evidence of the applicant's guilt. If the jury was not so satisfied, then that evidence simply formed part of a circumstantial case which it could consider in deciding whether, on all the evidence, the Crown had proved the guilt of the accused beyond reasonable doubt. The jury needed to be particularly directed that if it did not conclude that Ms Huang's evidence was evidence of positive identification, then it could not come to a conclusion of guilt on that evidence alone.

23 After giving what might be described as the usual warning about identification evidence (which counsel for the applicant submitted was inadequate on a Domican basis because it failed to identify the weaknesses in this identification evidence) the trial judge specifically referred to an argument advanced by applicant's counsel in his final address - that Ms Huang had not given 'certain identification evidence'. His Honour then outlined the evidence she had given. Having summarised, or quoted directly from her evidence, the judge referred to the competing arguments of counsel before moving to another topic. In summarising counsel's arguments, his Honour again referred to the contention of applicant's counsel that Ms Huang had not positively identified the applicant.

24 At the conclusion of the charge, counsel for the applicant complained that what had been said to the jury with respect to identification was 'insufficient' because it did not identify the dangers - that is, the possible weaknesses bearing upon reliability - in Ms Huang's evidence. He included in his submission the contention that the evidence did not amount to a positive identification and that this was a 'danger'. The judge refused to direct the jury further.

25 Later that day, the jury returned and the foreman announced that it wished to have access to the transcript of the cross-examination of Ms Huang on the topic of identification. He also asked the judge to 'define the caution on identification evidence' and 'the definition of reasonable doubt'. In the directions that followed, there was repeat and expansion of the caution which the judge had earlier given. Regrettably, however, his Honour said nothing in the further direction to alert the jury to the need to first determine at the outset whether it was satisfied that the evidence was evidence of positive identification.

26 In this Court, counsel for the respondent submitted that Ms Huang had given evidence which was capable of amounting to positive identification. Counsel referred, in her submissions, to the differences of expression in language used by Ms Huang and to the fact that during the process of examining, it seems, many photographs, she had not selected any other photograph. She noted that Ms Huang had told the police officer Mannix 'I think that's the one'; and when asked by Mannix what he [the person in the photograph] did, she said 'he robbed the shop' on 20 September 2005. Counsel further submitted that even if the evidence was not capable of amounting to positive identification it was able to be used as part of the circumstantial evidence in the case against the applicant in combination with the other evidence.

27 As we have earlier said, it may well be that Ms Huang's evidence had the capability for which counsel for the respondent contended, depending on the view that the jury took of it. Consistently with Pitkin, however, ordinary considerations of fairness required that this evidence be subjected to careful scrutiny before it was accepted as constituting evidence of positive identification. Because, as it appears to me, Ms Huang's words were reasonably capable of being understood as consistent with an absence of positive identification, the jury must have been directed that this was an issue which it needed to deal with before it contemplated acting on that evidence on its own to reach a verdict of guilty. The jury needed to understand the significant limitations on the use which it could make of that evidence if it was not evidence of positive identification.

28 In the event, it is unnecessary to decide whether the warnings given, on an assumption that this was a case of positive identification, were deficient. On proper analysis, the applicant's complaint is not to be resolved by reference to ground 3, but rather by reference to the interrelated ground 5. In that connection, counsel for the applicant submitted that the possibility had wrongly been left open to the jury that it could convict his client by reliance on identification of the applicant by Ms Huang. The jury might have concluded, had it been correctly instructed, that Ms Huang had only given similarity evidence. So it should have been directed that it could only rely upon her 'identification' evidence alone to find the applicant guilty if it was satisfied that the evidence was evidence of positive identification.

29 It is necessary to refer to a particular portion of the direction by the trial judge:

The Crown does not have to prove each fact which is asserted in the course of the Crown case to that standard of beyond reasonable doubt. What you have to do is be satisfied beyond reasonable doubt that the accused was the perpetrator. For example, in this case, the Crown does not have to prove that Mrs Huang's identification satisfies you beyond reasonable doubt that it was the accused man. The Crown does not have to prove on the other hand that the fingerprint evidence satisfies you beyond reasonable doubt that it was the accused man who was the perpetrator. The question is, have they satisfied you beyond reasonable doubt that he was the perpetrator, based upon all the evidence in the case after you have given an assessment of that evidence and have decided what evidence you accept or do not accept, as the case may be. I use this by way of example only, ands I am not suggesting that this is line of reasoning that you would adopt, but, just to illustrate the principle that I am attempting to explain. Theoretically you could say, for example, I do not trust the identification evidence, because of all the circumstances, either reasons given by Mr Desmond, or for any other reason, I do not accept that the identification evidence is reliable, but I do accept that the fingerprint evidence is reliable, and that is sufficient to persuade me beyond reasonable doubt that it was the accused man who was the perpetrator. Another member of the jury could take the opposite point of view, and that would be perfectly legitimate, but at the end of the day, the question that you collectively have to ask yourselves is, am I satisfied beyond reasonable doubt that it has been established that the accused is the perpetrator of this armed robbery.

30 Counsel for the applicant submitted that the effect of this passage was as follows: first the jury was told that it should consider all the evidence in determining whether it was satisfied of the applicant's guilt beyond reasonable doubt. But then the jury was instructed that individual members could legitimately arrive at a finding of guilt either in reliance upon the fingerprint evidence alone or upon the identification evidence alone. Counsel accepted that if the jury once concluded that Ms Huang's evidence was evidence of positive identification then his Honour's observations were unobjectionable. But that made an assumption which could not properly be made. Counsel properly conceded, we add, that if this ground succeeded it would result not in entry of acquittal but in an order for a re-trial.

31 Counsel for the respondent submitted that it was open to the jury to reach a verdict of guilty on the basis of Ms Huang's evidence alone although, as she submitted, it was supported by the fingerprint evidence. In our view that would only be correct if it could be said that the jury had been warned to scrutinise the evidence and, in particular, the words used by Ms Huang to decide whether it was a positive identification and then concluded that it was. They were not given that direction.

32 In our opinion, then, ground 5 succeeds. The verdict was unsafe and unsatisfactory because the jury was directed that it was possible to convict on Ms Huang's evidence of 'identification' alone, without first considering whether the evidence was evidence of positive identification. Before going on, however, we would add this: the matter seems to have gone off the rails when applicant's counsel below sought, as we noted earlier, to attribute the significance of Ms Huang's evidence being, as it was claimed, evidence only of similarity as a weakness in an identification case which the judge should have mentioned to the jury in the course of a Domican warning. It may be that counsel was not enthusiastic about the prospect of the judge giving circumstantial evidence direction, for fear that it would seal a guilty verdict. It is an unhappy conclusion that the jury was left relevantly misdirected and not directed. But it is a conclusion which in our opinion is obligatory.

Ground 6 - Prior Inconsistent Statement Direction

33 It was submitted for the applicant that the trial judge should have given the jury a direction in relation to alleged prior inconsistent statements by Ms Huang - that is, a direction which informed the jury that if it accepted that she had made a statement inconsistent with the evidence she gave at trial, it could use that fact when assessing her credibility and reliability.

34 The need for such a direction arose, so it was submitted, because in the trial the Crown had sought to extract from Ms Huang's evidence words which they argued would have enabled to the jury to conclude that she made a positive identification of the applicant. That being the case, the evidence that Ms Huang gave at the committal proceedings (to which we have earlier referred) would have to be regarded as a prior inconsistent statement.

35 In our opinion, there is nothing to this ground. Ms Huang's evidence and what she said at the committal were not evidently inconsistent. Any suggestion that there was inconsistency was based upon the Crown's argument at trial about the effect of what the witness had said on the various occasions. It might just as well be argued that there was evidently no inconsistency because, in this Court, counsel for the applicant, in pursuit of ground 5, argued that both at the committal and in evidence Ms Huang gave evidence of similarity, not identification.

36 In the course of his charge, the learned judge gave a unanimous verdict direction, but also flagged the possibility that in some circumstances, which had not arisen and might not do so, a majority verdict might be taken.

37 The jury retired at 11.45am on Friday 13 April 2007 to consider its verdict. At 12.49pm, the jury returned to court to be informed about the arrangements for lunch. After lunch the jury returned to court and informed the judge that it 'require[d]' the transcript of cross-examination of Ms Huang 're identifying the accused'. The foreman also informed the judge that the jury wanted him to 'define the caution on identification evidence' and 'the definition of reasonable doubt'. The judge re-directed the jury and provided it with a transcript of Ms Huang's cross-examination and re-examination.

38 At 3.50pm the jury was asked by the trial judge whether it wished to continue to deliberate or return to further deliberate on the following Monday. The foreman informed his Honour that he was 'sorry to say' that the jury would have to continue its work on the Monday.

39 Shortly before midday on Monday 16 April 2007, the foreman asked the trial judge 'what happens if we cannot reach a unanimous decision?' The judge gave a standard perseverance direction. The judge also informed the jury that after the lunch break he would ask them whether there was anything to be achieved by further deliberations.

40 After the jury left the court, the prosecutor raised the possibility of a majority verdict. The judge responded that he would raise the possibility with the jury after lunch. Counsel for the applicant made no submission about that.

41 At 2.29pm the judge informed the jury that a majority verdict could be returned on the basis of 11 jurors agreeing upon the verdict. He asked the jury to return to the jury room and give consideration as to 'whether there is any prospect of a verdict being returned with further deliberations'. His Honour also told the jury that when it returned to court he would ask whether there was anything to be achieved by further deliberation and if the answer to that question was no the matter would be further considered.

42 The jury left the court and then returned four minutes later at which point the judge asked whether there was anything to be achieved by further deliberation. The foreman said 'no'. The judge then embarked on the process of discharging the jury without verdict and as he completed his remarks the jury foreman informed the judge that they had a majority verdict and a verdict of guilty was then delivered.

43 The essential complaint about this process made by counsel for the applicant was that the direction to the jury about the availability of a majority verdict did not comply with principle and in particular did not remind the jury that it should continue to strive for unanimous verdict. Thus, it was argued, the directions by the trial judge were not in accordance with the course described in R v Muto & Eastey[5] as follows:

The third topic concerns the course that the judge should follow if at least six hours' deliberation has taken place and it appears to the court that the jury have had a period of time for deliberation that the court thinks reasonable having regard to the nature and complexity of the trial. Because there is a residual discretion to be exercised, counsel should be invited to make submissions as to the appropriateness of a majority verdict at that stage. After hearing any submissions that are made the court should consider whether to exercise its- discretion in favour of taking a majority verdict at that stage or to defer the matter. We put to one side exceptional cases where it may be appropriate not to take a majority verdict at all.

When the judge considers that the time for a majority verdict has arrived, the jury should be directed along the following lines: At the beginning of my charge I told you that circumstances might arise in which I could take a majority verdict. In the circumstances of this trial that means a majority of 11 out of 12 [or as the case may be]. It is still preferable that you endeavour to reach a unanimous verdict of guilty or not guilty and, when you resume your deliberations, you should endeavour to do that unless you consider that it is hopeless. If you cannot all agree, the verdict of 11 of you [or as the case may be] may be taken as the verdict of you all.[6]

44 In the present case, there was an opportunity for counsel for the applicant to make submissions as to whether it was appropriate to take a majority verdict at that stage. He was not specifically asked whether he wanted to make a submission, but the judge had flagged the issue in discussion with counsel before the lunch break. The opportunity was clearly available for counsel to have made a submission, if he chose to do so. No complaint was made in this connection before us; and no complaint could legitimately have been made.

45 As we have already noted, the applicant's particular complaint was that the judge did not inform the jury that it was preferable for it to continue to endeavour to reach a unanimous verdict though a majority verdict of 11-1 was now available. Counsel for the respondent submitted that in the circumstances described, it was not essential that the jury be encouraged to continue to strive for unanimity.

46 Up to the point when the judge identified the possibility of a majority verdict being returned, the jury had been told in plain language, more than once, that a unanimous verdict was required. Whilst it was very desirable that a direction strictly complying with the 'authoritative guidance' of this Court in Muto & Eastey should have been given, we consider that this ground should be rejected in the particular circumstances of this case. In several different situations, having regard to the particular circumstances, this Court has been willing to excuse an element of non-compliance with Muto & Eastey.[7] Here, we consider, there was no error of substance. The sequence of events which we have outlined demonstrates that a further direction on unanimity would have been to no avail.

47 In our description of the events leading to the delivery of the jury's majority verdict, we referred to the fact that the jury requested a transcript of the cross-examination of Ms Huang regarding her identification of the applicant. That request was complied with. Both counsel agreed that the jury should have the transcript. Whilst reasonable minds differ on the issue of transcript being given to juries in criminal trials, it is mandated by s 19(1)(i) of the Crimes (Criminal Trials) Act 1999.

48 Counsel for the applicant at the trial made a submission that the judge should caution the jury about its use of the transcript. He said: 'This is only a typist's account as to what he or she believes was heard, obviously the direction needs to be given. They have heard the evidence ...' He also submitted that the 'the usual direction [ should be given] that this is not the evidence, this is an aide memoire'.

49 The judge, however, provided the transcript to the jury without giving any such direction.

50 In this Court, counsel for the applicant complained that the judge was required to instruct the jury in unambiguous terms that the transcript is not evidence, and was being made available only for the jury's convenience and as a result of its request. Citing Butera v DPP,[8] counsel submitted that this instruction should be given before the transcript is made available. It should have been done, counsel argued, to avoid the risk that undue weight would be given to a written record of the evidence as opposed to what the jury saw and heard when the evidence was originally given. Counsel submitted that such a direction was of considerable significance in the circumstances of this case, given that Ms Huang spoke limited English and, at times, that it had evidently been difficult to readily comprehend what she was saying.

51 Counsel for the respondent submitted, correctly, that this case was not akin to Butera. But in our opinion this was a case in which it was particularly important to give the caution to which we have referred. There was a language issue for Ms Huang. She drew attention to it herself in the course of cross-examination. Not only what she said, but the manner in which she gave her evidence, including the confidence with which she purported to identify the applicant or assert that he looked like the offender, was important. We have the clear impression that there was a substantial risk that the pre-eminence which attaches to all the observable aspects of the oral evidence of a witness may have been diminished by the jury having, and concentrating on, a transcript of a portion of the evidence given by Ms Huang, not having been specifically reminded that the evidence was what they saw and heard, not what they were about to read. Section 19(1)(i) of the Crimes (Criminal Trials) Act 1999 did not make evidence out of what had hitherto had not been evidence.

53 This ground was based on what this Court said in R v Kotzmann.[9] As at present advised, we incline to the view that, if the individual defects which we have identified did not mean that those grounds of appeal must succeed, considered in combination there might well have been a miscarriage of justice. But the matter need not be further considered.

54 Counsel for the respondent submitted that if any of the grounds were made out, the evidence that the offender concerned handled the deposit slip, supported by videotape evidence showing such a thing, in combination with the evidence about the thumb print left on one of the slips, was 'so strong' as to warrant the application of the proviso.

55 We cannot agree. We cannot be satisfied of the applicant's guilt to the criminal standard. There were two substantial pieces of evidence against the applicant - the identification and the thumb print. Identification depended on what was to be made of Ms Huang's evidence. In the particular case, not having heard and seen Ms Huang, it is impossible to assess the impact of her evidence. That

matter cannot be satisfactorily determined from the transcript. It is not simply aquestion whether Ms Huang's evidence should satisfy one that it was evidence of positive identification, or was only evidence of similarity. In either situation, an issue of reliability would arise. Then, as to the thumb print, although in combination with the CCTV it may well have been powerful evidence in favour of a finding of guilt, there was a question whether the applicant had been in the shop before, and had done something which might account for his thumb print being on the slip. There again, one returns to Ms Huang's evidence.

56 In our opinion, the application for leave to appeal against conviction should be granted, the appeal allowed, and an order made for a re-trial. We should only add this: assuming that the evidence was generally to the same effect as on the earlier occasion, the judge would need to direct the jury about Ms Huang's evidence in the manner which we have indicated. But the jury would also need to be directed, if it was not satisfied that Ms Huang did positively identify the applicant, so that her evidence was only evidence of similarity, nonetheless an issue of reliability would arise. In that connection, a modified Domican warning would need to be given.

57 I have had the advantage of reading the draft reasons of Ashley JA and Lasry AJA (hereafter the joint reasons). I agree with their Honours, that ground 5 must be upheld, because the jury was not directed to consider whether the evidence of Ms Huang was evidence of positive identification, and was told that it could convict the applicant on the basis of that identification evidence alone.

58 I wish only to make some brief remarks on ground 8, which claims that there was a miscarriage of justice, because of his Honour's failure to warn the jury that the transcript of Ms Huang's cross-examination was not evidence and was being made

available only because of its request. Butera v DPP (Vic),[10] on which the applicant's counsel relied in support of ground 8, is not directly relevant to the issue which arises here. That case concerned the admissibility of a transcript of translations of tape-recorded conversations.

59 In their joint reasons in Butera v DPP (Vic),[11] Mason CJ, Brennan and Deane JJ referred to Gibbs J 's statement in Driscoll v The Queen[12] that there was a danger that a jury might regard written material as corroborating or strengthening the oral testimony of a witness.[13] They said that the giving of oral evidence demonstrated more about the credibility of a witness than a written statement, and that:

... by generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury's discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence.[14]

60 Notwithstanding the latter concern, s 19(1)(i) of the Crimes (Criminal Trials) Act 1999 now provides for the provision of transcript to a jury on the application of a party or on the judge's own motion, 'for the purpose of helping the jury to understand the issues'. In New Zealand, juries are now commonly given a transcript of evidence.[15] In Victoria it is the practice to warn juries that the evidence is what they heard and saw in court, and that although the transcript can be used as an aide-memoire, it is not evidence.

61 Having regard to that practice it might have been expected that the judge would have warned the jury that the transcript of Ms Huang's evidence was not evidence and that they should rely on what they saw and heard when she testified, as his Honour was requested to do by the applicant's counsel. However, in the circumstances of this case I do not consider that any miscarriage of justice occurred because his Honour failed to give such a warning

62 In my opinion there was no realistic danger that the provision of the transcript of Ms Huang's cross-examination, without the direction described above, would have resulted in the jury giving undue weight to the contents of the transcript or disregarding the impression made on them by Ms Huang, when she gave her evidence. The duration of the trial was shorter than the time taken in jury deliberations. The jury's impression of Ms Huang's oral evidence would have been fresh in their mind when they considered their verdict. They did not ask for a transcript of Ms Huang's evidence-in-chief, but only of her cross-examination. Further, I consider that the provision of the transcript might well have benefited the applicant by recording the sometimes uncertain language in which Ms Huang described her identification of him.

63 In Gateley v The Queen[16] the High Court considered whether there had been a miscarriage of justice because a jury was permitted to view a video-taped recording of a child's evidence-in-chief and cross-examination for a second time in the court room, in the absence of the judge and counsel and were not warned that they should not give undue weight to that evidence. The applicant had not testified at the trial.

64 The High Court held that the video-recording was not evidence itself, but simply a record of the child's oral evidence,[17] and that it should not have been shown again in the court room in the absence of the judge and counsel.[18] However the majority of the Court held that no miscarriage of justice had occurred. Gleeson CJ said that:

This was not a case in which the problem of undue weighting of some evidence at the expense of other evidence was of substantial importance. The pre-recorded evidence included the whole of the cross-examination of the complainant.[19]

65 Similarly, in Cooper v The State of Western Australia[20] the Western Australian Supreme Court held that no miscarriage of justice had occurred as the result of a failure of the trial judge to warn the jury against giving undue weight to the transcript of evidence. In that case, the applicant simply denied that he was the intruder who had attacked the complainant. The Court commented that:

The transcript was nothing more than an accurate record of the complainant's evidence and may have assisted the jury in determining whether each of the incidents constituting the offences had occurred.[21]

66 For these reasons I do not consider that ground 8 was made out.

[1] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555.

[2] Pitkin v The Queen [1995] HCA 30; (1995) 69 ALJR 612.

[4] Ibid 615 (Deane, Toohey and McHugh JJ).

[5] [1996] VicRp 21; (1996) 1 VR 336.

[7] Most recently, R v Ahmet [2009] VSCA 86. See, earlier, on a related point, R v Rajakaruna [2004] VSCA 114; (2004) 8 VR 340, 376-377 [159]-[161] (Eames JA).

[8] Butera v DPP (Vic) [1987] HCA 58; (1987) 164 CLR 180.

[9] [1999] VSCA 27; [1999] 2 VR 123.

[10] [1987] HCA 58; (1987) 164 CLR 180.

[12] [1977] HCA 43; (1977) 137 CLR 517, 542.

[13] As far as I am aware, no empirical research has been undertaken on this issue.

[14] [1987] HCA 58; (1987) 164 CLR 180, 189.

[15] R v Tichowitsch [2006] QCA 569; [2007] 2 Qd R 462, 469 (Williams JA).

[16] [2007] HCA 55; (2007) 232 CLR 208.

[17] Ibid 211 (Gleeson CJ), 219 (Kirby J), 234 (Hayne J).

[18] This was an appeal from the Queensland Court of Appeal. There is no statutory equivalent to s 19 of the Crimes (Criminal Trials) Act 1999.

[19] [2007] HCA 55; (2007) 232 CLR 208, 212 (Gleeson CJ).

[20] [2009] WASCA 37.