R v Rima

Court of Criminal Appeal (NSW)|2003-11-20|Before: Tobias JA, Wood CJ, Hidden J

CITATION : R v Rima [2003] NSWCCA 405 HEARING DATE(S) : 20 November 2003 JUDGMENT DATE : 22 December 2003

JUDGMENT OF : Tobias JA at 1; Wood CJ at CL at 75; Hidden J at 76 DECISION : 1. The trial judge's ruling as to Mr Sweeny's identification evidence be vacated; 2. Order that the Crown be permitted to lead evidence from Mr Sweeny on the issue of identification; 3. The respondent be granted a certificate under the Suitors Fund Act

CATCHWORDS : CRIMINAL LAW - EVIDENCE - Application for exclusion of identification evidence under s137 of the Evidence Act - Whether admission of identification evidence would lead to an impermissible process of reasoning on the part of the jury - Whether probative value of evidence outweighed by prejudice Evidence Act 1995, s137 LEGISLATION CITED : Criminal Appeal Act 1912, s5F(2) Suitors Fund Act, s6(2) R v Lisoff [1999] NSWCCA 364 R v Matovski (1989) 15 NSWLR 720 R v Alexandroaia (1995) 81 A Crim R 286 R v Beeby [1999] 104 A Crim R 142 Blick (2000) 111 A Crim R 190 House v R (1936) 55 CLR 499 CASES CITED : Festa v The Queen (2001) 208 CLR 593 R v Tugaga (1994) 74 A Crim R 190 Marshall (2000) 113 A Crim R 190 Mezzo [1986] 1 SCR 802 R (1989) 18 NSWLR 74 Alexander v The Queen (1981) 145 CLR 395 Papakosmas v R (1999) 196 CLR 397 PARTIES : Regina Mohamed Rima FILE NUMBER(S) : CCA 60366/03 COUNSEL : A: D. Arnott R: C K Smith SOLICITORS : A: R: S E O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT DC 03/11/0134 FILE NUMBER(S) : LOWER COURT Finnane JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60366/03 DC 03/11/0134

TOBIAS JA WOOD CJ in EQ HIDDEN J

Monday 22 December 2003 REGINA v MOHAMED RIMA Judgment 1 TOBIAS JA: The respondent, Mohamed Rima, has been charged as follows: that on 31 May 2002, at Menai in the State of New South Wales, he did rob Timothy Sweeny (Mr Sweeny) of a motor vehicle and other property in the vehicle at the time whilst armed with a dangerous weapon, namely, a semi-automatic pistol. 2 The matter came before Finnane DCJ on 8 September 2003. However, prior to the respondent being arraigned senior counsel for the respondent made an application to exclude all the identification evidence of Mr Sweeny pursuant to s 137 of the Evidence Act 1995 (the Act). On 10 September 2003, the trial judge determined that Mr Sweeny's identification evidence should be rejected, which resulted in the effective demolition of the Crown's case. The Crown seeks to appeal that ruling pursuant to s 5F(2) of the Criminal Appeal Act 1912. There is no dispute that the jurisdiction of this Court to review the matter has been enlivened: R v Lisoff [1999] NSWCCA 364.

The identification evidence relied on 3 The identification evidence tendered on the voir dire comprised inter alia five statements of Mr Sweeny (dated 31 May 2002, 5 September 2002, 19 September 2002, 17 March 2003 and 15 August 2003), together with a statement of Mr Brian Keenan (Mr Keenan) dated 31 May 2002, a statement of Senior Constable Brett Stone dated 2 June 2003 and a statement of Mr John Dow dated 27 June 2003. There was other material before his Honour but it is sufficient to refer only to the foregoing for present purposes. The relevant facts as set out in these statements are as follows: 4 On 28 May 2002, Mr Sweeny advertised his red Subaru WRX 2000 (the Subaru) motor vehicle for sale. On the morning of Thursday 30 May 2002, he received a phone call on his mobile from prospective purchaser who said his name was 'Michael'. After a short conversation he sought a contact number for 'Michael' and was given a mobile number. He asked for a landline number but was told by 'Michael' that he did not have one. 5 Whilst at his place of employment on Friday 31 May 2002, Mr Sweeny received another telephone call on his mobile from the same person with whom he had spoken the previous day. He arranged to meet 'Michael' at 1.30pm that day at Mr Sweeny's place of employment so that the former could inspect the Subaru. At approximately 1.30pm, Mr Sweeny was told that two men wished to see him. He asked which one was 'Michael' and one of the men identified himself. Mr Sweeny then described him as follows: "12. …….I can describe him as being of Middle Eastern appearance, slightly built, about 5'2-5'4 in height, 18-20 years old with short black hair. His hair I can describe as having a number 2 on both sides and it's a bit longer on top. I don't think that he had any gel in his hair. His appearance was scruffy. He smelt of body odour and he had acne on his lower cheeks and jaw line. I don't remember if he had earrings or not. He was wearing a dark blue polo shirt with a collar. The left breast pocket had some writing on it, which I think was a company logo or something like that. He was wearing something unusual underneath his polo shirt, but I can't say exactly for sure. He was wearing navy blue King Gee or Yakka type cotton work type pants and he was wearing dark coloured dirty work boots. He had a black belt around his pants and he had a small flip type mobile phone attached to his belt. I would most definitely recognise him if I saw him again…"

Mr Sweeny also described the person accompanying 'Michael'. 6 Mr Sweeny (together with a work colleague) and the two men inspected the Subaru and a discussion then took place. 'Michael' said that he wished to have a test drive. The conversation prior to and during the test drive raised Mr Sweeny's suspicions regarding the honesty of 'Michael's' intentions to purchase the vehicle. 7 When they returned from the test drive, Mr Sweeny noticed the vehicle in which 'Michael' had arrived. He described it as a 1981 to 1985 Ford Laser or Mazda 323 with registration number "QLB 250 or similar". He said it was yellowish in colour. There was nothing in Mr Sweeny's statement of 31 May 2002 to suggest that he noticed any front end damage to that vehicle at the time. 8 A further conversation took place between Mr Sweeny and 'Michael' where the latter indicated that although he wished to purchase the vehicle, it would be necessary for his father to look at it first. Mr Sweeny informed him that he would only keep the vehicle if a cash deposit of $1000 was paid that afternoon. 'Michael' said he would be back with the money prior to 4.00pm. 9 According to Mr Sweeny, 'Michael' neither telephoned nor returned with the deposit that afternoon. At about 5.20 pm, Mr Sweeny left his work to drive home. It was dark, the weather was clear and the traffic was heavy. He proceeded along Old Illawarra Road to the intersection of Menai Road, where he stopped at a red traffic light. At the time he noticed at least half a dozen cars stopped in front of him and several behind him. 10 Whilst stopped at the lights he noticed from the corner of his eye someone running towards him on the driver's side of his vehicle. In his statement he said: "I looked at my driver's side mirror and I could clearly see that it was the same guy 'Michael' who I took for a test drive earlier that day in my car. He was wearing exactly the same clothing." 11 Mr Sweeny tried to lock the doors of his vehicle, by which time he observed the man he said was 'Michael' standing square on to him, looking directly at him and screaming. He was holding a gun in his right hand and was pointing it directly at Mr Sweeny's head. He then screamed for Mr Sweeny to get out of his vehicle. 12 Mr Sweeny refused at first to get out of his vehicle, but the robber managed to open the driver's door with his left hand whilst still pointing the gun at Mr Sweeny with his right hand. Mr Sweeny was able to give a detailed description of the gun as he was a member of a pistol club and had an interest in firearms. The lights turned green and the vehicles in front of him moved off. After he opened the door, the robber pointed the gun at Mr Sweeny's forehead. He grabbed him by the front of his shirt with his left hand whilst still pointing the gun at his head. Mr Sweeny noticed that the robber's gun hand was shaking and that he was "shit scared". As he was concerned for his life, he got out of his vehicle and squared up to his assailant who continued to scream at him. At that time, the robber's accomplice ran up to the passenger side of the car, opened the passenger door and got in. Mr Sweeny said that he had not seen this man before but was able to describe him having had a quick glimpse of him.. 13 After the accomplice jumped into the front passenger seat of the Subaru, the robber pushed Mr Sweeny aside, jumped into the driver's seat, closed the door and drove off at high speed. He turned left into Menai Road, the point at which when Mr Sweeny lost sight of his car. Mr Sweeny said then that he saw a white Ford Falcon stopped behind where the Subaru had been, behind which was the same car that 'Michael' and his accomplice had arrived in at his place of employment earlier that day. He said: "I recognised it to be the same vehicle because it had the same number plate which was QLB 250 or similar, and it had front end damage to the vehicle. I looked in and I saw the same guy who came to my work with 'Michael' earlier today." 14 He then walked towards this vehicle and started to yell at its occupants. They then drove off. 15 The gentleman in the white Ford Falcon (Mr Keenan) handed Mr Sweeny his mobile telephone and the latter telephoned 000. He then drove with Mr Keenan to the fire station on Menai Road, where they waited for the police to arrive. Mr Keenan handed Mr Sweeny his business card and told him the registration number of the vehicle in which the robber had arrived. Mr Sweeny then wrote this on the back of the business card as "QLB 250". 16 In his statement of 17 March 2003, Mr Sweeny provided the following additional information. He repeated that the driver of the Ford Falcon had handed him his mobile telephone and that he had contacted 000 as he "hopped into his car". Mr Sweeny said that he provided the police operator with the registration number of the Ford Laser/Mazda 323 as "I saw it when it drove off". He said that he had since been informed that the registration number was QBL 250, which he had told the police operator on the telephone. The registration number that he had written on the back of the business card from the driver of the Ford Falcon was, however, QLB 250. It was later discovered that the correct registration was QBL 250 and that those registration plates had been stolen at some time on 31 May 2002, although there was no evidence as to the time of their theft. 17 According to Mr Keenan, when he stopped at the lights at the intersection of Old Illawarra and Menai Road, he noticed that three of the four doors of the vehicle in front of him opened all of a sudden and all three passengers got out. The passenger who had been in the back of the vehicle ran around the rear of the vehicle and got into the driver's seat; the other two passengers moved forward. In particular, Mr Keenan saw the driver of the vehicle approach the driver's side of the Subaru. He described him in the following terms: "He was male, short build, probably 5'3/5'4, dark jumper and longer, black, thick head of hair, I don't mean past the shoulders just that most around here have shaved hair at the back but he did not." 18 Mr Keenan was unable to describe the front passenger from that vehicle who, he noted, assumed the same position in the passenger seat of the Subaru. He described the vehicle in front of him from which the three people alighted as "about 8-10 years old, four door compact car, the colour was a faded orange. I noticed the registration number, QBL 250, a yellow plate…the car was pretty clean, no stickers on the bumper nor the back windscreen, there were no discernible bumps or scratches on the vehicle." 19 It is noteworthy that the vehicle from which the robbers alighted was, according to Mr Keenan, stopped in front of his vehicle. On the other hand, Mr Sweeny said in his statement of 31 May 2002 that the vehicle was behind Mr Keenan's Ford Falcon. It is probable that Mr Keenan is correct and Mr Sweeny mistaken, for otherwise Mr Sweeny would not have been able to recognise that the vehicle had the same registration number "QLB 250 or similar" and had front end damage. On the other hand, Mr Keenan would not have noticed that the vehicle had front-end damage as he only ever observed it from behind. 20 In his statement of 5 June 2002, Mr Sweeny referred to his description of the polo shirt worn by 'Michael' with what he thought was a company logo on the left breast pocket. He said he recollected that 'Michael' was wearing a Riverwood Junior Rugby League Football Club jersey with the Riverwood Junior Football logo around the left breast area. There was a statement from the secretary of that club (Mr John Done) that the respondent was a member of the club. He described him as being: "…about 5'6" to 5'7" tall, of Arabic background. He has dark hair, close cut to the head on the sides and more bushy on top. His face seemed to have rough skin as if he once had acne problems." 21 Senior Constable Stone attended Mr Sweeny outside the Menai fire station. He stated that Mr Sweeny had informed him that he was absolutely positive that the offender who had carjacked him at gunpoint was the male who had test driven the Subaru earlier that day. 22 On 4 June 2002, Mr Sweeny attended Bankstown Police Station where he was shown a number of photo books. On the first page of one of the books he identified a male person whom he "was almost certain was the Middle Eastern male who I described as 'Michael', the gunman. This male person was number two on the page. At the time I said that I was not 100% certain, but I was 90% plus, and I believe that this person may have been the one who held a gun to my head before stealing my car at Menai last Friday evening." 23 However, he was clearly mistaken in this identification as the person he picked out as 'Michael' was in gaol at the time of the robbery. In a transcript of the photo identification procedure on 4 June 2002, when asked whether he could provide a percentage out of 100, Mr Sweeny said "I am way up in the 90s, way up. It's the eyes, the nose". 24 On 11 June 2002, the police prepared a com-fit image of 'Michael', presumably from the description given by Mr Sweeny. We were provided with copies of the photographic exhibits and the com-fit is extremely close to the photograph of the person whom Mr Sweeny identified as the robber on 4 June. One of the common distinguishing marks of the com-fit image and the person identified in the photographs was that both had a "single eyebrow" or "mono-brow" which, clearly, the respondent did not exhibit. However, Mr Sweeny did not describe 'Michael' as having that feature in any of his statements to the police. 25 The police had asked the respondent to attend Sutherland Police Station and he did so on 31 July 2002, accompanied by his solicitor. At a later date he consented to a line up parade, however this did not eventuate as young people of middle-eastern descent or appearance were unwilling to assist police in this regard. The respondent returned to the police station on 13 August 2002, when he was arrested but not charged. He was later released. He did not consent to having his photograph taken hence an application was (successfully) made to a magistrate for an order for him to do so under the Forensic Procedures Act. Three months after the robbery, on 5 September 2002, Mr Sweeny attended the police station and was shown two groups of photographs depicting male persons. In his statement of that date, he said: "When I was looking through the first group of photographs I can say with 100% certainty that the first man I identified was the person who portrayed himself as 'Michael'. He is the one who held the gun at my head and stole my car. He is the one that I took for a test drive prior to him stealing my car." 26 In the same group of photographs, he identified another male person who looked similar to 'Michael's' accomplice, but he said it was hard to tell as the accomplice had peroxided hair. Although he was not 100% sure, the person who he identified "looked fairly similar to the accomplice". 27 The person identified by Mr Sweeny as 'Michael' was the respondent.

The trial judge's determination 28 The trial judge listed some 23 "facts" in his judgment which he said, guided him in his ultimate decision. For present purposes, I refer only to the following: "12. Behind the car, he saw another car, which he claimed was the same one as had been at his work. He describes it as a white Ford Falcon and had front end damage to it. It had the same number plate, QLB 250. 13. Mr Keenan, a passer-by, gave him the number of the car, QBL 250 and Sweeny wrote it on a card. 14. Mr Keenan noticed the man who hopped in the passenger seat. His description of this man was different from Sweeney's. 16. Mr Kennan noticed the car behind as being orange in colour, not white, with QBL 250 number plate which was not firmly fixed on the car. The car had no damage to it. … 18. Keenan's description of the car was different from Sweeney's." 29 The basis for the trial judge's decision was s 137 of the Act which provides: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 30 His Honour stated the relevant legal principles to be applied by him were as follows: "Section 137 requires me to exclude the evidence if its probative value is outweighed by the danger of unfair prejudice. Clearly, the mere fact that evidence tends to implicate a person in the committing of a crime, or that it makes it more likely that the accused will be convicted, does not mean in itself, that there has been unfair prejudice. The Judge must perform a balancing process, weighing probative value against 'danger of unfair prejudice to the defendant'. In Papakosmas v The Queen (1999) 196 CLR 297, McHugh J in discussing the expression 'probative value' said this: 'Probative value is defined in the Dictionary of the Act as being the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. That assessment, of course, would necessarily involve considerations of reliability. 'Probative value' is an important consideration in the exercise of the powers conferred by ss 135 and 137.' The undoubted discretion of a trial judge to reject identification evidence is also recognised by Gleeson CJ in R v R (1989) 18 NSWLR 74 at 76 F-G. Unfair prejudice is prejudice which is unfair because there is a real risk that the evidence will be misused by a jury in some unfair way ( R v BD (1997) A Crim R 131 at 139 per Hunt CJ at CJ. See also Reg v Lockyer (1996) 89 A Crim R 457 (a case about tendency evidence, not about identification)." 31 The trial judge relied on a number of matters in coming to his conclusion to reject Mr Sweeny's evidence. In particular, he relied upon the misidentification of the robber by Mr Sweeny at the photo-identification procedure on 4 June 2002. He also found that Mr Sweeny could not describe the clothing of the robber's companion and that he described the robber as having a different appearance to that one described by Mr Keenan, who his Honour noted had been given ample opportunity to observe the three people who alighted from the vehicle in front of him and who "was not emotionally involved in what was going on". His Honour said: "The reason Mr Sweeny gave for not being able to describe the clothing of this other man was that he, Mr Sweeny, was traumatised." 32 Taking the contents of Mr Sweeny's statement of 31 May 2002 at face value, it is to be noted that although he said he only really got a quick glimpse of "this other man", nonetheless he was able to describe him apart from his clothing. However, he experienced more than a "quick glimpse" of the robber whom he identified as 'Michael'. According to Mr Sweeny, they were "squared up" to each other after he alighted from his vehicle. 33 Having referred to the danger of transposition in identification (a phenomenon in respect of which judges are required to warn juries in cases of disputed identification), his Honour concluded that: "Mr Sweeny's evidence of identification has no probative value. It is contradictory internally and contradicted by other evidence. I respectfully adopt what McHugh J said in Papakosmas (supra)." 34 He further determined that s 137, properly understood, required evidence lacking probative value to be excluded. . It would appear that his Honour's reliance upon McHugh J's statement in the passage cited from Papakosmas, involved a conclusion by him that Mr Sweeny's evidence was of no probative value because it was totally unreliable due to it being "contradictory internally and contradicted by other evidence". 35 Having rejected the evidence on the basis of its lack of probative value, the trial judge then found that even if he was incorrect about Mr Sweeny's evidence in this regard, nonetheless it should still be excluded because its probative value was outweighed by the danger of unfair prejudice to the respondent. He said this: "If the evidence that the robber and the car buyer were the same person, ie, the accused, there would be a considerable danger that a jury would, notwithstanding any warnings I gave them, conclude that once they were satisfied that the accused was the buyer, they could be also satisfied that he was the robber. This would be an impermissible process of reasoning, particularly having regard to the contradictions in identification, but the danger that such an impermissible conclusion might be reached, despite directions by me, in my opinion, is a very real one. This, of course, is quite an exceptional situation. Too many people have been convicted in the past because of honest but faulty identification. Only clear evidence of identification should be allowed to be considered by a jury. Where the evidence of identification is not clear and certain, a proper exercise of discretion requires that it be rejected." 36 Accordingly, he confirmed his rejection of Mr Sweeny's identification evidence and ruled that he would "not allow him to give evidence linking the intending purchaser of the car and the robber, and I will not allow him to give evidence that the accused was the robber".

The Crown's submissions 37 The Crown accepted that this Court would not reverse a discretionary decision of a trial judge lightly and that it must be established that the judge acted on some wrong principle, gave weight to extraneous or irrelevant matters, failed to give weight or sufficient weight to relevant circumstances, or has made a mistake as to the facts such that he or she took a view of the facts which was not possibly open: R v Matovski (1989) 15 NSWLR 720 at 723; R v Alexandroaia (1995) 81 A Crim R 286 at 290; R v Beeby [1999] 104 A Crim R 142 at 145. 38 However, rejection of evidence under s 137 does not involve an exercise of discretion. As Sheller JA pointed out in a passage in Blick (2000) 111 A Crim R 326 at 333 [20] (cited with approval by Spigelman CJ in Marshall (2000) 113 A Crim R 190 at 193 [21]), the correct approach: "…is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected." 39 Accordingly, if the trial judge erred in the weighing exercise indicated by s 137, this Court can and should intervene to correct any such error. The House v R (1936) 55 CLR 499 principle is not, therefore, directly applicable to the present case. 40 It was submitted by the Crown that the trial judge made a number of errors which can be summarised as follows:

(a) In holding that s 137 requires the exclusion of evidence which lacks probative value, his Honour appears to have proceeded upon the basis that the section entitles the rejection of weak evidence. Such an approach is contrary to the statement of McHugh J in Festa v The Queen (2001) 208 CLR 593 at [51];

(b) His Honour failed to take into consideration the fact that evidence of identification is not to be considered in isolation as it may gain strength when considered in the context of the evidence as a whole: R v Tugaga (1994) 74 A Crim R 190 at 196;

(c) His Honour erred when he stated that it " would be an impermissible process of reasoning " to permit the jury to " conclude that once they were satisfied that (the respondent) was the (car) buyer, they could also be satisfied that he was the robber ";

(d) It is not unusual for there to be contradictions in identification evidence and, whatever contradictions there were in the present case, they were clearly curable by the giving of appropriate directions to the jury;

(e) His Honour erred in his reference to and application of the transposition or displacement effect occurring when a witness has been shown a photograph especially in the present case where the respondent admitted that he was 'Michael' and that he was the person who attended Mr Sweeny's place of employment on 31 May 2002 as a potential purchaser of a Subaru. In these circumstances it would not be necessary for the Crown to lead any evidence from Mr Sweeny concerning his erroneous identification of the respondent as the robber on 4 June 2002 or his correct identification of the respondent on 5 September 2002;

(f) Had his Honour had regard to the principle that evidence which appears at first to be of poor quality may gain strength from other evidence, the consideration of that independent evidence would have rendered Mr Sweeny's evidence more reliable than his Honour was prepared to acknowledge.

The respondent's submissions 41 The respondent submitted that identification evidence is notoriously unreliable and has been the cause of many erroneous convictions. Directions are not always sufficient to protect an accused so that the discretion under s 137 to exclude such evidence where it is unfairly prejudicial to the accused plays a large part in all identification cases. It was therefore submitted that it was clearly open to his Honour to exercise his discretion to exclude the evidence in the manner adopted. No error of principle had been demonstrated. 42 It was also submitted that the reliability of Mr Sweeny's evidence, which was the sole evidence of identification relied on by the Crown, was destroyed by his identification four days after the robbery of the photo of a person who he said was 'Michael' in circumstances where that identification was based upon what Mr Sweeny said was the robber's eyes and mono-brow, a distinguishing feature which the respondent did not exhibit. 43 Mr Sweeny's identification was also undermined, so it was asserted, by his failure to describe him as having prominent ears, a square chin and a noticeable "Kirk Douglas" dimple on his chin. 44 The likelihood of the respondent being the robber was also, so it was submitted, undermined by the fact that when he visited Mr Sweeny at his place of employment he made no attempt to disguise his clothing or his appearance. If he had been the robber, one would at least (in the circumstances) expect him to have disguised himself at the scene of the robbery by either changing the clothes that he had worn earlier that day when in Mr Sweeny's company or by using some other form of disguise. It was submitted that common sense dictated that the robber did not use a disguise because he had no fear that Mr Sweeny would recognise him as they had never previously met. 45 Accordingly, it was submitted that there was little, if any, probative value in Mr Sweeny's evidence in all the circumstances and that it was open to the trial judge to so find. 46 There was, in any event, a danger of unfair prejudice to the respondent within the meaning of s 137 as a real danger existed that a jury, notwithstanding appropriate directions, would over-estimate the probative value of Mr Sweeny's description of the robber in circumstances where it is generally known in the community that "car-jacks" are becoming prevalent in Sydney and are often committed by persons of Middle Eastern background. 47 In these circumstances, the jury was also likely to over-estimate the weight to be given to Mr Sweeny's identification of the respondent on 5 September 2002 in circumstances where his identification of the respondent at his workplace would be understandable given the time they spent in each other's company and the fact that there is no dispute that the respondent was that person. On the other hand, Mr Sweeny only saw the robber's face fleetingly and under traumatic circumstances at the scene of the robbery.

Resolution of the issues 48 It is well recognised that identification evidence often proves to be unreliable. As Gleeson CJ observed in Festa [15]: "For any one of a number of reasons, evidence of observations, including evidence of positive identification, may be made in circumstances which adversely affect its reliability." 49 In the same case, McHugh J described such evidence in the following terms: "[54] Most cases concerned with identification evidence are cases of positive identification. That is to say, cases where a witness claims to recognise the accused as the person seen on an occasion that is relevant to the charge. Positive-identification evidence may be used as direct or circumstantial proof of the charge. A positive identification of the accused is direct evidence of the crime when it identifies the accused as the person who committed one or more of the acts that constitute the crime in question. A positive identification is circumstantial evidence when its acceptance provides the ground for an inference, alone or with other evidence, that the accused committed the crime in question. A witness gives direct evidence of the charge when she testifies that the accused ordered her to hand over the takings. A witness gives circumstantial evidence of the charge when she testifies that the accused was the person who ran out of the bank immediately after other evidence proves it was robbed. [55] Positive-identification evidence has often proved to be unreliable. This Court has insisted that where identification evidence, direct or circumstantial, represents a significant part of the proof of guilt of an offence, trial judges must warn juries not only of the potential unreliability of that evidence but also of any particular weakness in the evidence, in the case being tried." 50 The dangers of such evidence were also emphasised by Kirby J in Festa at [166] where he said: "The history of wrongful criminal convictions in this and other countries is littered with instances of convincing, honest identification testimony subsequently proved to have been erroneous. If believed, such evidence tends to be fatal for the accused."

See also Marshall at [51]. 51 No doubt s 137 is of significance for this very reason. Thus, having said that the weakness of otherwise relevant evidence is not a ground for its exclusion, McHugh J went on at [51] to say: "It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. That evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task." 52 Later in his judgment, McHugh J elaborated on the exercise of the discretion of the trial judge to exclude such evidence: "[64] In the exercise of the discretion, however, the distinction between the two classes of evidence is important. Experience has shown that juries are likely to give positive-identification evidence greater weight than that to which it may be entitled. Few witnesses are as convincing as the honest - but perhaps mistaken - witness who adamantly claims to recognise the accused as the person who committed the crime or was present in incriminating circumstances. That is why this Court insisted in Domican v The Queen (1992) 173 CLR 555 at 561-562, that juries be given directions concerning: · the dangers of convicting on recognition evidence where its reliability is disputed, and · the factors (if any) that may affect the reliability of that evidence in the circumstances of the particular case. [65] In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. ..." 53 In R v Tugara (1994) 74 A Crim R 190 at 193, Hunt CJ at CL (with whom Gleeson CJ and Abadee J agreed) observed at [23] that: "Evidence of identification may always be excluded by the trial judge in the appropriate case in the exercise of his or her ordinary discretion and criminal cases upon the basis that, by reason of its poor quality, its probative value is outweighed by its prejudicial effect: Alexander (1981) 145 CLR 395 at 402-403, 417, 430, 433, 435… It is also always open to the trial judge in the appropriate case to withdraw the evidence of identification from the jury's consideration where, after it has been given, its quality has been demonstrated to be such that its probative value is outweighed by its prejudicial effect."

This passage was cited with approval by Spigelman CJ with (whom Heydon JA and James J agreed) in Marshall. 54 In the same case Hunt CJ at CL referred (at 196) to the point made by Wilson J in Mezzo [1986] 1 SCR 802 (at 818 and 820) and quoted by Gleeson CJ in R (1989) 18 NSWLR 74 (at 79-80) that in determining whether identification evidence should be left to the jury, the test is whether the quality of the evidence falls short of the point where its frailties cannot be cured by an appropriate caution to the jury. His Honour considered that that test was an admirable (but non-exclusive) one to be applied when considering whether identification evidence should - in the context of the evidence as a whole - be excluded or withdrawn from the jury. His Honour continued: "When considering this question, it must be kept in mind that the evidence should not be considered in isolation; what may appear to be poor in quality when taken by itself may gain strength when considered in the context of the evidence as a whole." 55 Although the Crown acknowledges the danger of the "displacement" or "transposition" effect of identification attempted with the aid of photographs, as described by Stephen J in Alexander v The Queen (1981) 145 CLR 395 at 409, that danger would be dissipated in the present case were the Crown not to tender the evidence of Mr Sweeny identifying the respondent from the photographs shown to him on 5 September 2002. In my opinion, there is no necessity for that evidence to be tendered as Mr Sweeny was able to directly identify the robber as the person 'Michael' who had inspected the Subaru only a few hours previously. Clearly, notions of "displacement" or "transposition" do not affect that evidence. 56 Although, as Stephen J observed in Alexander, "(t)he accuracy of any identification of a stranger, seen once only, is likely to be affected by the fallibility of human perception and memory",

the " peculiar difficulties " associated with identification attempted with the aid of photographs referred to by Stephen J would thus be avoided by the Crown not relying upon the identification evidence of 5 September. Obviously, it would not be in the Crown's interest to lead evidence of the incorrect identification effected by Mr Sweeny on 4 June although it would, of course, be open to the defence to cross-examine him upon that incorrect identification in order to attack the reliability of his memory. 57 I would observe, however, that in the event that the Crown determined in its wisdom to tender any of the photo-identification evidence of Mr Sweeny at the trial, it would be open to the trial judge at the time to reject that evidence pursuant to s 137 of the Act. 58 So far as the balance of Mr Sweeny's evidence is concerned, I would accept the Crown submission that it is not an impermissible process of reasoning for Mr Sweeny to conclude that he recognised the robber who pointed the gun at his head as the person whom he had seen earlier that day when he inspected the Subaru; nor would it be an impermissible process of reasoning for the jury to accept that evidence when presented. The respondent submitted that, firstly as it was conceded that he was the "buyer" of the Subaru, it would be impossible for the jury to reason from that fact that he was also the robber; and secondly, it was necessary for the jury to consider whether in all the circumstances existing at the time of the robbery (and bearing in mind the directions of the trial judge as to the danger of convicting on identification evidence where the reliability of such is disputed) it could be satisfied beyond reasonable doubt that Mr Sweeny was in fact able to identify the robber as the man 'Michael' he had seen earlier in the day. 59 I agree with these submissions but it does not follow that the jury, properly directed, would reason only in accordance with the first and not the second. There would be no reason for the jury to do so as it would have before them the direct testimony of Mr Sweeny that the person who held him up was the same person who had inspected the Subaru only four hours previously. I can see nothing impermissible in a jury accepting the evidence of an eye witness who testifies that he recognised the person who robbed him as the same person with whom he had quite extensive dealings earlier on the same day. 60 In my opinion, the trial judge erred when he held that there was a considerable danger that a jury would, notwithstanding any direction to the contrary, reason that it could be satisfied that the respondent was the robber once it was satisfied that he was the potential buyer of the Subaru. He also erred in concluding that this justified the exclusion of Mr Sweeny's evidence under s 137. 61 I would also accept the Crown's submission that the trial judge erred in his criticism of Mr Sweeny's evidence as being internally contradictory and/or contradicted by the evidence of Mr Keenan in the respects identified by him in the passages from his judgment which I have extracted in [28] above. In particular: a) The trial judge asserted that Mr Sweeny described the vehicle from which the robbers had alighted as "a white Ford Falcon and had front end damage to it", whereas Mr Keenan had not noticed any damage to that vehicle. However, the white Ford Falcon, which Mr Sweeny noticed was Mr Keenan's vehicle, he recognised that of the robbers as the same vehicle which he had seen earlier in the day at his place of employment. Further, there is no inconsistency or contradiction in Mr Sweeny asserting that the vehicle had front-end damage and Mr Keenan observing no damage as the latter only ever saw the rear of the robbers' vehicle and not the front. b) The trial judge further asserted that Mr Keenan noticed that the car in front of him was orange in colour and not white. Again, it is apparent that his Honour has mistaken Mr Sweeny's reference to Mr Keenan's vehicle as that of the robbers. Furthermore, I do not see that there is any relevant contradiction between Mr Keenan describing the robbers' vehicle as being "faded orange" in colour and Mr Sweeny describing it as being of "a yellowish colour". c) Mr Sweeny describes 'Michael's' vehicle at the time of the inspection of the Subaru as "a 1981-85 Ford Laser or Mazda 323". Mr Keenan describes it as "about 8-10 years old, four door compact car". Mr Keenan did not attempt to describe its make and it was not suggested that the vehicle identified by Mr Sweeny was not a "four door compact car". In these circumstances, I do not see that the difference of opinion between the two witnesses as to the age of the vehicle is of such significance as to justify a finding by his Honour that Mr Sweeny's evidence was contradicted by that of Mr Keenan to the extent which would warrant its wholesale exclusion on the ground that it has no probative value. 62 In my opinion, it is important to recall Mr Sweeny's recognition at the scene of the robbery that the vehicle from which the robbers alighted had the number plate "QLB 250 or similar", being the registration number of the vehicle in which 'Michael' had attended his place of employment earlier in the day for the purpose of inspecting the Subaru. In his statement, Mr Keenan confirms that the robbers' vehicle at the scene had the registration number "QBL 250" which was the correct number of the stolen plates. It is true that Mr Sweeny transposed "BL" to "LB", but in my opinion that is of no significance and the respondent did not seriously contend otherwise. Either of itself or in combination with the other matters relied upon by the trial judge, that transposition did not justify the exclusion of Mr Sweeny's evidence on the basis that it was so unreliable that it had no probative value. On the contrary, in my opinion its probative value was significant. 63 Furthermore, the identification evidence of Messrs. Sweeny and Keenan as to the registration number of the robbers' vehicle and the fact that it was same vehicle utilised by 'Michael' earlier in the day is evidence, as Hunt CJ at CL pointed out in Tugara, from which the other identification evidence of Mr Sweeny of 'Michael' as the robber was capable of gaining strength. In other words, it was independent evidence linking the respondent with the vehicle used in the robbery and which had the potential to add weight to Mr Sweeny's positive identification of 'Michael' as the person who robbed him. 64 The foregoing circumstances provide further support for my respectful conclusion that the trial judge erred in holding that it would be an impermissible process of reasoning for the jury to conclude that once it was satisfied that the respondent was the potential purchaser of the Subaru it could also be satisfied that he was the robber. Provided the jury is given a Dominican direction, I see no proper basis upon which it could be concluded in the circumstances of this case that there would be a real risk that the evidence would be misused by the jury in some unfair way so as to constitute "unfair prejudice" to the respondent within the meaning of s 137: Papakosmas at [91]. 65 The error in the approach of the trial judge in the present case is further exemplified in the following passage from his judgment: "Only clear evidence of identification should be allowed to be considered by a jury. Where the evidence of identification is not clear and certain, a proper exercise of discretion requires it to be rejected." 66 If by this passage his Honour intended to hold that evidence of identification which is in dispute must always be rejected, clearly he was in error. I have no difficulty with his Honour's assertion that, in appropriate cases, identification evidence which is unclear should be excluded under s 137. It may well be that what his Honour meant that evidence of identification, if otherwise accepted by the jury as reliable, must be of such precision as to justify the jury in being satisfied beyond reasonable doubt that it was the accused who committed the offence charged. It may be that his Honour's use of the compendious expression "clear and certain" was not intended to go further than to assert that the evidence must be of that level of precision. If so, it is unexceptional. I would, however, part company with his Honour if he intended by his use of the word "certain" to contend that the evidence must also be indisputable. 67 Upon the basis that the trial judge intended only to hold that such evidence should be excluded pursuant to s 137 where it is insufficiently precise, I would disagree with his Honour that Mr Sweeny's evidence should be so categorised. Given the factual errors made by the trial judge (to which I have referred in his description of Mr Sweeny's evidence as internally contradictory and contradicted by other evidence, I am satisfied that his Honour was incorrect and that the evidence was in fact "clear and certain" in the sense that it was sufficiently precise to satisfy a jury, beyond reasonable doubt and who otherwise accepted the evidence as reliable, that the respondent was the robber. 68 At the end of the day, the asserted contradictions and other matters advanced by the respondent as factors allegedly undermining the reliability of Mr Sweeny's evidence (which I have summarised in [42 - 44] above) are essentially matters for consideration by the jury, as would be in any other case in which the reliability of identification evidence is disputed. Provided the jury are given the directions which the law requires in these circumstances, I do not see that there is any real risk that the evidence, would be misused by the jury in some unfair way. 69 Finally, there is one further matter to which reference should be made. In his statement dated 17 March 2003, Mr Sweeny asserted that when he dialled 000 on Mr Keenan's mobile telephone, he provided the police operator with the registration number of the robbers' vehicle which he had observed as it drove from the scene of the crime. The respondent tendered at the hearing before us two computerised incident dispatches which had been produced under subpoena by the Police Department. Apparently the respondent had subpoenaed the Department to produce all 000 recordings concerning this matter but all that was produced were the dispatches to which I have referred. The original 000 recording was not produced. It was senior counsel's understanding that the 000 operator takes the call and then provides information to the dispatcher who then dispatches the message to police vehicles. Of the two documents tendered, only the second refers to the registration number "QBL 250". It appears to have been dispatched some 10 minutes after the 000 call. 70 The purpose of this tender was to support a submission that, in the absence of the recording of Mr Sweeny's 000 message, there was at least significant doubt as to whether, when Mr Sweeny made the 000 call, he identified to the operator the registration number of the robbers' vehicle. 71 There was no satisfactory evidence before us as to whether the 000 recording in question had ceased to exist. But even assuming that Mr Sweeny did not report the registration number when he made that call, it is clear that within some 10 minutes of the robbery the police were informed that the registration number of the robbers' vehicle was "QBL 250" and that it was a stolen plate. Furthermore, as I noted in [57] above, Mr Keenan corroborated in substance Mr Sweeny's identification of the registration number of the robbers' vehicle as "QBL 250", although Mr Sweeny identified it as "QLB 250". 72 Again, the foregoing factors raised by the respondent will be matters for the jury ultimately to take into account in assessing whether it is satisfied beyond reasonable doubt that the evidence of Mr Sweeny has identified the person who robbed him as the respondent. Accordingly, even if it be the case that Mr Sweeny did not inform the operator of the registration number of the robbers' vehicle, that of itself is insufficient when taken in conjunction with the other evidence to which I have referred, to throw such doubt upon the precision of Mr Sweeny's evidence as a whole as to justify its exclusion pursuant to s 137. 73 Accordingly, for the foregoing reasons I am of the opinion that the trial judge erred in excluding Mr Sweeny's evidence of identification. I would therefore propose that the trial judge's ruling as to Mr Sweeny's identification evidence should be vacated and that it be ordered that the Crown will be permitted to lead evidence from Mr Sweeny on the issue of identification. 74 Finally, the respondent sought a certificate under s 6(1) of the Suitors Fund Act 1951 with respect to his costs in relation to the Crown's appeal to this Court. Although the respondent is not ordered to pay the Crown's costs of the appeal, nonetheless s 6(2) of the Suitors Fund Act does provide for the payment of the costs incurred by an unsuccessful respondent in the situation where: these costs are not ordered to be paid by any other party; no amount is payable from the Fund pursuant to s 6(2)(a) in relation to an appellant's costs; and where those costs are ordered to be paid by a respondent. I see no reason why the respondent should not have such a certificate and I therefore propose that he be granted one. 75 WOOD CJ in Eq: I agree with Tobias JA. 76 HIDDEN J: I agree with Tobias JA. **********

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