become relevant in the consideration of the alleged error.
1.5 In the [applicant's] case - it is alleged that the Learned Trial Judge erred in admitting the evidence of the witness Svraka as evidence that was capable of amounting to positive identification evidence in respect to items of clothing.
1.6 However once admitted it was imperative that appropriate directions be given to the jury concerning this evidence.
1.7 Ultimately it will be submitted that the directions given to the jury in respect of this evidence were inadequate.
1.8 The fact that such directions were given in the absence of the Applicant and his Counsel is relevant to the issue of whether the trial has miscarried as a result of these directions.
Ground 2: Admitting the identification/recognition evidence
2.1 The [applicant's] Counsel had objected to the admissibility of the evidence of the witness Svraka as it related to the purported identification of two items of clothing.
2.2 Essentially the objection went to the use of this evidence as positive identification evidence.
2.3 It was implicit in that objection that because of a number of aspects associated with the identification process - as evidence of positive identification such evidence was inherently unreliable and prone to error.
2.4 The aspects raised included:
(a) single photo presentation;
(b) expectation in the witness that the photo would relate to the alleged victim;
(c) the suggestive nature of the process;
(d) the damaged state of the items of clothing;
(e) the process took place nearly two years after the disappearance of the alleged victim.
2.5 It is significant that in the course of debate the Learned Prosecutor (at least in relation to the dress) disclaimed reliance on this evidence as evidence of positive identification.
2.6 It is submitted that the Learned Trial Judge erred in admitting the evidence as evidence that was capable of amounting to positive identification evidence.
2.7 At most it was evidence concerning the (same) type of clothing.
2.8 Following its admission it is submitted that the Prosecution were permitted to invite the jury to give such evidence a status that the evidence did not deserve.
2.9 Treated in this way the evidence formed a significant part of the case against the Applicant.
Ground 3: Inadequate directions
3.1 Despite the concession made by the Learned Prosecutor during the course of debate - ultimately the jury were invited to treat this evidence as evidence of positive identification.
3.2 As such it was necessary for the Learned Trial Judge to give a Domican type warning.
3.3 Such warning had to be framed with full regard to the fact that the Applicant's Counsel had not made a final address to the jury.
3.4 It is submitted that the warning that was given was deficient in a fundamental aspect.
3.5 There was expert evidence before the jury that discounted the possibility that these items could have been placed in the bushland area following the disappearance of the alleged victim.
3.6 Prior to their departure the Applicant's Counsel had already flagged that this evidence would be relied on to form a central attack on this evidence of positive identification.
3.7 That no mention was made of it as part of the identification warning.
3.8 That very significant omission should also be seen in light of the Learned Prosecutor's failure to refer to the expert evidence in his final address.
3.9 It is recognised that elsewhere in the charge the relevant evidence was summarised and reference made to a potential argument of Counsel.
3.10 However, the point of Domican warning is that the Trial Judge does not simply refer to the arguments of Counsel but lends the weight of his judicial authority to a process whereby the areas of the evidence that undermine the reliability of the identification evidence are fully exposed for the jury's consideration.
3.11 It is submitted that the expert evidence so seriously undermined the 'identification evidence' that it was essential that reference be made to it as part of the identification warning.
3.12 Such was the importance of the 'identification evidence' that in the absence of the accused's Counsel - such reference become an essential component of a fair trial.
3.13 So that whilst it may have been thought that the continuation of the trial in the absence of the Applicant and his Counsel would have caused little prejudice - in the end it can be said that such absence has contributed to a situation where the trial has miscarried.
Ground 4: Unsafe and unsatisfactory
4.1 It is not proposed to argue this ground of appeal.
Ground One is only argued insofar as it relates to Grounds Two and Three. That is because the directions complained of in Ground Three were made in the absence of the applicant and his counsel.