R v Smith

Friday, 6 October 2000 REGINA v Craig Anthony SMITH 1 FOSTER AJA: I agree with Smart AJ. 2 DUNFORD J: I agree with Smart AJ. 3 SMART AJ: Argument in this appeal concluded on 3 May 2000. The members of the Court considered the matter and on 10 May 2000 announced that the appeal should be dismissed. The Order of the Court was "Appeal dismissed. Conviction and sentence confirmed. Reasons to be published at a later date." I give my reasons for joining in that order. 4 Craig Anthony Smith appeals against his conviction of on 14 February 1998 at Leichhardt being then armed with an offensive weapon, namely, a knife, he did rob PB of certain property. The principal issue at the trial was identification. The appellant denied involvement in the alleged offence and put forward an alibi which was rejected by the jury. He was sentenced to a minimum term of 2 years penal servitude starting on 2 December 1998 and an additional term of 3 years. 5 The appellant complained that the Summing Up was deficient in that it contained no direction as to how the jury should deal with the inconsistent accounts given by him as to his activities on the night of the robbery, that the absence of certain fresh evidence at the trial resulted in a miscarriage of justice and that the judge erred in his directions as to identification evidence. 6 PB, the complainant was walking along Marion Street, Leichhardt about 8.30pm on Saturday, 14 February 1998. As she approached Cromwell Street a person's back appeared in front of her and she thought that it was someone putting out their garbage. As he looked a nice, friendly sort of person, she smiled and went to step around him. She said that his whole expression changed and he grabbed her shoulder bag, held a large carving knife above his head and screamed "Give me your bag." He ripped the bag off her shoulder, turned around with it and ran up towards Cromwell Street. She started screaming to attract attention from the houses nearby and ran after him. He was much faster than her and got a distance ahead of her. She saw him getting into a car on the corner. 7 She described the car as white and "just like an old style sedan of some sort". She could not see the car clearly. She gave this description of her assailant. "He was about six foot tall, quite strongly built, … sort of medium, but solid build and had short brownish hair, Caucasian appearance, Australian accent and sort of casually dressed in t-shirt and jogging pants and runners …" She described the t-shirt as having "some sort of writing, it was white and thin and old and had some sort of writing on it, but I didn't take in what it was …" Her arm was badly bruised and grazed. Some men came out of a nearby house and helped her call the police. 8 The complainant said that when the robber turned around to face her he was less than a metre away. He was in front of her for several seconds and she was looking directly at him. It had just started to get dark and the lights had gone on. She kept her eye both on the appellant and the knife. She had never seen the robber before; he was a complete stranger to her. Her handbag contained, amongst other things, bank and credit cards, about $10 in cash, her cheque book and her house keys. 9 On Monday morning 16 February 1998 the complainant attended to obtaining replacement cards and a new set of keys. While at the Mr Minit Shop she told the gentleman who served her some of what had happened. On her second trip to the Marketown shopping centre about 12.15pm she was walking down towards Woolworths when she saw a young man standing outside Woolworths. She immediately recognised him as the man who had attacked her. She went past him and on to the Mr Minit shop where she was getting her keys cut. She remarked to the person behind the counter that she had just seen the man who had robbed her and asked if she could use their telephone to call the police. 10 Before telephoning she said, "I'll just go back and just get a closer look because I want to be absolutely sure." She walked back towards Woolworths. She saw the man sitting down on the ground and had another look at him. She walked into Woolworths, purchased a carton of milk and walked out again and checked that the man was still there. She returned to the Mr Minit shop and telephoned the police. While they were waiting for the police the gentleman who worked in Mr Minit kept an eye on where the man was as he had moved away from Woolworths. 11 The complainant waited in the shop. The detectives came and she accompanied them to Balmain police station. She said that at the shopping centre she noticed that the robber seemed to wearing the same clothes as he wore on Saturday night. At Balmain police station an identification line up was held at the request of the appellant. The complainant identified him from amongst 11 men. 12 Upon his arrest and after being cautioned the appellant volunteered that he was in Wollongong on Saturday night. 13 The appellant was interviewed at Balmain police station on 16 February 1998 by Constable Kyneur. That interview was electronically recorded. The appellant told the police that he had been with his brother all day working on his car (Q & A 91). He said that he and his brother had left Summer Hill at 7.30pm and had driven to Hilltop and back, a journey of about 200kms. He said that he returned home about midnight and that on that evening he had been wearing grey track suit pants and a blue Nike polo shirt. The appellant also said that he had called into see a friend at Summer Hill at about 9.30pm. 14 When questioned about the time that he and his brother left Summer Hill, he said that he and his brother had taken the appellant's car at about 7.30pm, driven to Blaxland, returned and then taken his brother's car to Hilltop. He thought it was Hilltop. He seemed a little uncertain of the point where they turned around. He insisted that he had not driven anywhere near Leichhardt on that evening. He stated that he smoked dope (marihuana) daily and had a short memory so that he was not really sure on anything. 15 The appellant's brother in an electronically recorded interview said that at about 7.30pm he and the appellant had driven along the M5 to Liverpool and that they had returned at about 11pm. They had stopped at McDonalds on Liverpool road to get something to eat. The appellant had been wearing a white t-shirt and grey pants. He said that on the Friday before he and the appellant had driven to Blaxland, a journey of about 3 hours return. 16 In his evidence the appellant stated that on 14 February 1998 he and his brother started working on their cars about 3pm when his brother got home from work. About 5.30 to 6pm they left home and drove to a chicken shop at Brighton-Le-Sands for dinner. He was not sure when they returned but thought it was roughly around 7.30pm. They then went for a journey in his brother's car using the M5 motorway to Hilltop, a turn around point. They like driving. The return journey is over 200km. From their home in Summer Hill, Hilltop and return takes about 3 hours. They arrived home about 11pm. Their mother's friend had left to go to the station to go to his home. At their mother's request they collected him and drove him to Manly. After which they returned home. The appellant stated that he had driven to Blaxland on the Friday before the alleged incident. 17 The appellant explained his change of story during his interview thus: "I'm just not good when I'm put on the spot. Like I need a few minutes to think about what I really, what I have done like I don't think about what I do throughout the day I just do it, you know. When I'm asked what I did a certain day it's like, I don't know I can't remember." 18 He also relied on his poor memory and confusion arising out of doing a fair bit of driving. 19 The appellant stated that he was trying to tell the police the truth. Since his arrest he had sat down with his brother, discussed matters and worked out exactly what they did on Saturday, 14 February 1998. He denied that he had been involved in the robbery and that he was anywhere near Leichhardt on that day. He said that he went to Marketown on 16 February 1998 to do the family's weekly shopping with his brother and his mother. 20 In cross examination he agreed that he did not visit a friend between 9.30am and 10.00pm. It was earlier in the evening shortly after they had left home to drive to Hilltop. He did not wear a watch and has not worn one for a number of years. He relied very much on his brother to help him with his times. The appellant stated that after he returned from Manly he visited the home of a nominated friend. The appellant and the friend were apparently smoking partners. It was not easy to accept that the appellant could not remember some of the matters about which he was asked, especially those which he mentioned to the police. 21 In cross examination the Crown highlighted the discussions in the family. This evidence appears: "Q. You wanted to make sure you got your stories straight, is that correct? A. That's right. Q. You didn't want to come in here and tell different stories to the jury? A. Exactly." 22 The appellant was open about the family discussions which were had and his need to rely upon others for the times and some of the details. There was material on which the jury could take the view that the appellant was sensibly trying to sort out the details of 14 February 1998 and material on which they could take an adverse view. 23 Near the end of the cross examination it was put to the appellant that he was the robber. He denied that, saying, "No, I don't rob people." The cross examination concluded thus: "Q. I put to you that the reason that you have told a number of stories about your activities that night is because you are trying to cover up what in fact happened in Leichhardt and you haven't been able to keep your story straight, what do you say to that? A. Nothing." 24 Darren Glen Richard Smith, the appellant's brother gave evidence that he had been at work from 7am to 3pm, arrived home and worked on his car. He and the appellant drove to Brighton-Le-Sands to get something to eat. They arrived back at their home about 7.30pm. They changed cars and took his car for a drive, stopping for a short period (about 10 minutes) at the home of a friend of the appellant in Summer Hill. He then drove to an area which he now knows is called Hilltop and then returned home. He did not detour through Leichhardt. That journey took about 3 hours. He estimated that he arrived home about 11pm to 11.30pm. Later, when he drove to Manly he passed through Leichhardt. Mr Darren Smith said that he liked driving and went on a long drive every weekend, usually with his brother. Mr Darren Smith said that he was confused and incorrect when he told the police that he went to McDonalds on Liverpool Road to eat that night. 25 Darren Smith did not tell the police of the visit to Manly. When asked about what happened after he arrived home from his long drive he gave this evidence: "Q Who was at home when you arrived home? A. My mother. Q. Did you speak to her once you got home? A. I don't remember. Q. Was there anybody else at home that you recall when you arrived home? A. No, that's all." 26 This evidence cannot be reconciled with the evidence that his mother asked him to take her friend to Manly. Darren Smith told the police that, if he remembered correctly, his brother was wearing a white t-shirt and grey pants. 27 Mrs Lily Smith remembered that on 14 February 1990 her two sons were working on their cars. She saw them in the later afternoon. The appellant said he was going for a drive. She next saw her sons about 11pm. She asked them to pick her friend up and take him to Manly. They did so. There were some differences between the mother's evidence and Darren Smith's evidence as to where her friend was when the sons arrived home. Mrs Smith had discussed the events of 14 February 1998 with her sons and had tried to recreate what happened that evening. 28 Appeal Ground 1 reads: "The trial judge erred in failing properly to direct the jury regarding the inconsistent accounts given by the appellant in relation to his activities on the night of the robbery." 29 Counsel for the appellant accepted that he gave a number of inconsistent accounts when spoken to by the police. Counsel relied upon the general drift of the appellant's cross examination and the last question asked of the appellant in cross examination and quoted earlier. Inter alia, the cross examination highlighted the changes in his account of what he did on the night of 14 February 1998 and the version he produced after speaking to his brother and mother. It also highlighted that he was questioned be the police only two days after the incident and that then he and his brother had talked about the matter to get their story straight. He could not explain how he got the times wrong when he spoke to the police. It was submitted that the last question in his cross examination was putting to the appellant that he had told a number of inconsistent stories, that some of them must be false, that he has told them to cover up the offence, that he is guilty, that he knows he is guilty, that he knows that the truth will convict him and that therefore he was concocting false stories in order to evade the consequences of his actions. In brief, the appellant was telling lies about what he was doing on the night in question because he knew he was guilty of the robbery. He conducted himself when questioned by the police and subsequently in a way reflective of his guilt. 30 The appellant also relied on the cross examination of the brother. The appellant drew attention to the Crown asking him if since the police interview he and his brother had discussed what happened on the night of 14 February 1998 to try and get their stories straight. The brother assented to that proposition. He said that he told his brother what they did that night. The brother was cross examined about exactly what he and the appellant did and where they went on the afternoon and night of 14 February 1998. He was also cross examined about what he told the police. He agreed that there were errors. It was not put to the brother that he was untruthful. The effect of the cross examination was to challenge his reliability and show that he was unreliable. Given the demonstrable inconsistencies in his version of events the Crown did not have to demonstrate that the brother was lying. It sufficed if his evidence was unreliable. The Crown did not go further. 31 The appellant has tried to extract too much out of his cross examination which covered the events of 14 February 1998 and the movements of the appellant. The allegation "you have told a number of stories about your activities … because you are trying to cover up what in fact happened in Leichhardt and you haven't been able to keep your story straight" carries it with the suggestion that the appellant had told lies and that he was attempting to set up an alibi but it goes no further. No one seems to have suggested that the lies should be used as evidence of guilt. 32 I do not accept the appellant's submission that the effect of the cross examination was not to show that anybody was lying and therefore they lacked reliability but to show that the accused had put his head together with his brother to concoct a story to cover up his guilt I would put the matter differently. The cross examination had the simple purpose of demonstrating that the alibi defence had no substance and was based on unreliable evidence, namely, that of the appellant and his brother. It is true that the Crown suggested, in effect, to the appellant that he had told lies and that it also suggested that the appellant relied upon his brother for important details as to times and where they went on the night in question as distinct from other occasions. 33 It should not be overlooked that there was but one question in which the allegation was put and that the reply of "Nothing" makes no concession. The truth of the allegation in the question was not accepted. The question contains a number of propositions. It was just left and taken no further. This was probably because the question was argumentative and got nowhere. 34 The defence was that the appellant was not the robber and could not have been the robber as he was elsewhere. The Crown was simply endeavouring to demonstrate by its cross examination that there was no substance in the alibi defence and that the evidence in support of it was unreliable. 35 The appellant submitted that the judge should have given a warning to the jury about concluding that the appellant was guilty because he had told lies. Further, the judge should have pointed out the possibility of other explanations for the inconsistent accounts and directed the jury that they should not use the inconsistent accounts as positive evidence of guilt unless they were satisfied that they were deliberate lies. 36 As no request was made for such a direction Rule 4 applies. 37 In summarising the Crown case the judge said: "The Crown reminded you that the accused had given conflicting accounts in his record of interview. First of all he said he had been to Hill Top 7.30 to 12.30, then he said that there were two journeys. One in his own car to Blaxland and then to Hill Top in Darren's car. And then today he gave evidence that there was only one long journey to Hill Top which got them home between 10.30 and 11 but today, as the Crown reminded you, he referred for the first time to the journey to Manly to take Mrs Smith's friend home." 38 While this court does not have a transcript of the addresses of counsel it was apparently never put by the Crown in address that they could or should use the initial oral statement of the appellant to the police and the various accounts in his record of interview as evidence of lies and consciousness of guilt. The judge did not suggest that the jury should do this. 39 Even if I am wrong in the view I have taken of what can fairly be gathered or implied from the cross examination and the question I do not think that the jury would have been tempted to reason as the appellant suggested. The Crown does not appear to have put its case on the basis that the jury could rely on the lies as evidence of guilt nor did the judge. The Crown case was simply that the suggested alibi had no substance. 40 No competent counsel would have asked the judge for a direction on lies and risked having the judge explain to the jury that if they were satisfied that the appellant had told deliberate lies on material matters and that they were told because the appellant realised his guilt then they could use such lies as evidence supporting his guilt. That would bolster the identification evidence which was under attack. In the present case the jury could have thought, if their attention had been directed to the matter, that the appellant had told deliberate lies on material matters and done so because he realised or knew that he was guilty. Of course, if a direction as to lies were given a further direction conforming with Edwards v The Queen, 178 CLR 193 would be required. 41 In the circumstances of the present case the interests of the appellant were best served by no such direction being given. There were inherent difficulties for the appellant in his interview and his varied accounts of his movements. There has been no miscarriage of justice. This ground of appeal must be rejected. 42 Appeal Ground 2 reads: "The absence of fresh evidence at the trial resulted in a miscarriage of justice." 43 The fresh evidence proposed is that of Donald Mcleod Thomson, Professor of Psychology at Charles Sturt University. In his report of 23 March 2000 he has stated that he has read the two statements of the complainant of 15 and 16 February 1998 and her evidence at the trial. He wrote: "2. Extensive psychological research by research psychologists into eyewitness identification has found the following: (a) accuracy in identifying someone previously seen is related to the length of time that target person had previously been observed by the eyewitness; (b) accuracy in identifying someone previously seen is related to the lighting conditions prevailing at the time the target person had been observed. A study by Wagenaar & van der Schrier shows that, at night time, even in well lit streets accurate identification is not possible at distances of over 12 metres, in streets that are poorly lit accurate identification is difficult even at 3 metres; (c) accuracy in identifying a previously observed target person declines as a function of the time which elapses between observing the target person and attempting to identify that target person; (d) accuracy in identifying a target person is impaired if that target person has a weapon which is visible and is perceived as threatening to the observer, studies show that the focus of a person threatened with a weapon is on the weapon to the detriment of accurate identification of the target person; (e) non-target persons may be falsely identified as the target person on the basis of similar features. Features which contribute to false identification include similar clothing. 3. From the accounts of [PB], the offence occurred sometime between quarter to nine and nine o'clock at night on February 13, 1998 (court transcript, page 6, line 30, page 11, line 15). I note that by quarter to nine on February 2, 2000, it was quite dark. 4. [PB] stated that her first view of the offender was his back when he appeared suddenly in front of her and that he turned around just as she was about to pass him (court transcript, page 6, lines 40-45, page 12, lines 8-9). [PB] further stated that at this point, the offender made a grab for her bag and held up a large carving knife above his head. The offender ripped the bag off her shoulder and turned and ran up towards Cromwell Street (court transcript, page 6, lines 40-55). 5. The perceptual conditions at the time the offence occurred, particularly the short period of time available to observe the offender, and the presence of a threatening weapon are conditions which have been shown experimentally to significantly impair accuracy in identifying strangers. 6. Given that the accused had similar clothes to the offender (T 9.5) there was a significant risk in this case that the accused was falsely identified on the basis of that similar feature. 7. Given the prevailing perceptual conditions and the similar clothing of the accused the risk of a false identification of the accused was substantial." 44 The solicitor advocate who appeared for the appellant has sworn that she did not adduce any expert evidence in relation to the identification of the accused because she did not think that any such evidence would be admissible. 45 This Court has been provided with copies of the two statements of the complainant and an affidavit from the appellant's solicitor to the effect that in December 1999 he was alerted by the appellant's mother to the possibility that Professor Thomson may be able to provide relevant expert evidence. Thereafter, a report was obtained, the first draft being received in early February 2000. 46 The appellant contended that the evidence of Professor Thomson was fresh evidence not simply new evidence. It became available well after the trial and conviction of the appellant. The view of the appellant's legal representative at the trial that the evidence was not admissible was probably based on the common law position. Under the common law, expert evidence in relation to identification is inadmissible because it concerns a matter "within the range of human experience which must be determined by the jury" (Smith v The Queen, per Deane, Dawson, Toohey, Gaudron and McHugh JJ, (1990) 64 ALJR 588 at 588F). It was submitted that the Evidence Act 1995 (NSW) has expressly abolished the common knowledge rule. Reference was made to the report of the Australian Law Reform Commission 26, Vol 1, para 743. It proposed to "omit the common knowledge requirement and to rely upon the relevance provisions, the discretions to ensure that unnecessary evidence is not admitted. The effect of this will be, for example, that testimony by psychiatrists and psychologists on the behaviour of the "normal" man will, so long as it is relevant be prima facie admissible … In addition relevant testimony upon the dangers of identification evidence under some circumstances … will be prima facie admissible subject to the application of exclusionary discretions." 47 It was submitted that, given satisfaction of the requirements in s 55 and s 79 the fresh evidence was admissible, subject to s 135. This trial started in late November 1998 some three years after the Evidence Act 1995 came into force. The point now under consideration is not one which has attracted much attention. Nevertheless, there is a limit on treating evidence as fresh evidence because it was not obtained due to a misunderstanding of the law. 48 It was pointed out by the Crown that similar evidence to that now proposed was available from a Dr Thomson in Smith v the Queen, supra and rejected and that this could have been picked up without much difficulty by a little research into the subject. 49 The point at issue is whether the evidence could have been procured by the use of reasonable diligence on the appellant's part or that of his legal advisers. In Ratten v The Queen (1974) 131 CLR 510 at 517 Barwick CJ said "Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably only be in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence." That statement has been applied in subsequent cases: Lawless v The Queen 142 CLR 659, Gallagher v The Queen 160 CLR 392 and Mickelberg v The Queen 167 CLR 259. 50 By 1998 practitioners generally were not aware that there were substantial grounds for arguing that the Evidence Act 1995 had superseded the position at common law. Nor were they generally aware of the body of psychological research available as to identification evidence. Some of course would have been. A practitioner would need to be aware of both matters. The reference to Dr Thomson in Smith is a passing one and there is no outline of the evidence which he proposed to give and insufficient detail to assess whether he could give relevant evidence in the present case. 51 I conclude that while the evidence of Professor Thomson could have been discovered and obtained with exceptional diligence it would not have been obtained by the use of reasonable diligence. I hold that the evidence proposed to be adduced is fresh evidence, but that is not the end of the matter. 52 In Gallagher v The Queen (1985-1986) 160 CLR 392 at 399 Gibbs CJ pointed out that it is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. The Chief Justice added, "On the other hand it is too severe, and indeed speculative, a test to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so." Gibbs CJ was in substantial agreement with the test proposed by Mason and Deane JJ. 53 Mason and Deane JJ said at 400: "It is settled that an appellate court dealing with an application for a new trial on the grounds of fresh evidence has some responsibility to examine the probative value of the fresh evidence." 54 They continued at 402: "… the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is, as the remarks of Rich and Dixon JJ in Craig indicate, whether there has been a miscarriage of justice at the trial. The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial." 55 The appellant relies on s 80 of the Evidence Act 1995 which provides that evidence of an opinion is not inadmissible only because it is about a matter of common knowledge. Section 79 provides that if a person has specialised knowledge based on the person's training, study or experience the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. The opinion rule is contained in s 76 which provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion is expressed. 56 Section 135 of the Evidence Act 1995 provides: "The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." 57 The Crown relied upon both paragraphs (a) & (c) and contended that if the proposed evidence were tendered it would be rejected. 58 Counsel for the appellant stated that if this Court ordered a new trial and the evidence of Professor Thomson was led, the Crown would be entitled to lead evidence in reply. The Court queried this statement. If the Crown was aware of the evidence proposed to be adduced from Professor Thomson and the complainant was cross examined in chief to the effect that for all or any of the reasons advanced by him her identification was unreliable, the Crown's expert should be called in the Crown's case in chief. 59 One factor to be borne in mind, but not a decisive one, was that the routine admission of expert evidence in cases where identification was the main issue would lengthen the hearing of these cases and to some extent change the way in which they are conducted. They would become more costly. It would not be a matter of simply giving evidence of conclusions but the basis of those conclusions would require examination. 60 There is also the difficulty that while the research materials might point to some general conclusions and to what is generally the position, the question remains whether they apply to the particular case. For example, did the presence of a weapon affect the accuracy of the complainant's identification? Even though the complainant only saw the robber face on for several seconds and very close to her (less than one metre away) but at night was she able to gain and retain a sufficiently accurate picture of him to identify him with certainty 2 days later. Was she significantly influenced by the similarity of the clothing worn by the robber and the man whom she saw abut 38-40 hours later. Much depends on the person identifying the robber. The complainant insisted that she was looking directly at the robber, could see quite clearly and had no difficulty in seeing him. She said that as a journalist she always took the details in and was consciously thinking that she would have to remember what happened. She denied that she identified the robber by the similarity of his clothing on 16 February 1998. She said that "the immediate thing was the way he was standing and his whole presence." She mentioned his physical build, his distinctive stance and physical presence. 61 The report of Professor Thomson does not capture the strength of the complainant's evidence and his purported application of stated general research conclusions to her and her evidence goes further than is permissible. He would, however be able to state the results of his research and the general state of learning and answer questions based on assumptions. It would be for the tribunal of fact to decide whether they applied in the present case. That is upon the assumption that his evidence was not otherwise excluded. 62 During argument the question was raised with counsel whether the Crown would be entitled if it was aware of an accused intending to lead evidence of the kind given by Professor Thomson to have the observer psychologically tested to assess the effect of a weapon being presented upon the observer's powers of observation of the robber and then lead the results of such a test. Counsel was initially inclined to think that such evidence may not be admissible as it went to the credibility of the observer. Subsequently, he thought that such evidence was not limited to credibility. It went as well to the central issue of identification and the capacity of the observer to identify the robber with accuracy and certainty. 63 I would not leave out of account the experience of the courts which have seen instances of great coolness under stress. I recall particularly this Court's decision in R v Murray, CCA, unreported, 11 September 1998 where a retired Chief Inspector of Police who was working as a security guard made careful observations of an armed robber in circumstances far more terrifying than those revealed in the present case. The experience of the Courts points to how important it is to look at the particular circumstances and the particular victim. General considerations and research have their value but they do not supplant the particular inquiry and assessment that has to be made in each case. In the present case the complainant insisted that she kept her eyes on the appellant and the knife. She did not feel he would use the knife unless she struggled. She said, that when the incident happened she was "sort of frozen," it was so sudden and that she did not have time to react except by looking. The re-action comes afterwards. 64 For many years the courts have been troubled by issues of identification and directions have been given to juries warning of the problems and dangers. The directions and the warnings have become fuller. For some years judges have been giving directions as to identification in accordance with the instructions of the High Court in Domican v The Queen (1991-92) 173 CLR 555. Juries are warned generally of the dangers of identification evidence in cogent terms and their attention is directed to the particular respects in which the identification evidence in question may be unreliable. The need to examine the identification evidence with special caution is stressed. The matters or topics to which Professor Thomson refers are frequently the subject of warnings from judges but in less detailed and more restrained terms. 65 In the present case the judge gave cogent general warnings and stressed the need for special caution when examining the identification evidence because of the possibility that even a completely honest witness may have been mistaken in her identification. The judge directed the jury's attention to these matters, namely, the appellant was previously unknown to the complainant, the time of observation was only a few seconds, the appellant was holding a knife and whether this focussed her attention away from the robber's face, whether the shock or trauma was likely to have affected her powers of observation and the light. Later, when summarising the cross examination of the complainant the judge referred to the suggestion put to her that it was the clothes that first alerted her at Marketown on 16 February 1998 and the complainant's response that this was not so and that it was the appellant's whole physical presence which she remembered and on which she relied. Counsel did not ask the judge for a direction about the clothing point. No doubt counsel felt that the point had been mentioned and that the complainant's answer was unhelpful. 66 Despite the greater detail, the supporting research and the views of Professor Thomson that the perceptual conditions (the light, the short period of time available to observe the offender and the threatening weapon) and similar clothes are likely to impair the accuracy of any identification the question remains whether the instant identification was unreliable given the evidence of the complainant and her conduct and reactions. More correctly, the issue is whether the jury should have had a reasonable doubt as to its reliability. The points have been well and sufficiently covered in the evidence and the Summing Up. 67 No jury would doubt that the factors which have been mentioned could affect the accuracy and reliability of the identification and often would. 68 The jury had to determine whether there was a reasonable doubt, as a result of these factors, in the present case as to the reliability of the identification. I accept that questions of fact are for the jury not the court. However, having regard to the evidence and the circumstances revealed at the trial there is no significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This disposes of Appeal Ground 2. 69 The Crown contended that the fresh evidence would and should be excluded under s 135 of the Evidence Act 1995. There is much to be said for the view that in the circumstances of the present case its probative value would be outweighed by the danger that the evidence might cause or result in undue waste of time. The leading of such evidence by the appellant and the response to it by the Crown might take a considerable time. The research would have to be investigated and evaluated and tests may have to be conducted. Then attention would again have to be directed to the critical question of the reliability of the identification in issue. 70 No general ruling can be given and each case has to be assessed on the merits. In the present case the relevant points were before the jury and they made an assessment and brought in a verdict. In my opinion, the evidence of Professor Thomson if tendered at trial should be excluded under s 135(c). 71 I do not accept that there would be no prejudice to the Crown. If there were a new trial witnesses would have to give evidence again and that is usually difficult in an identification case. After a trial witnesses may well try to put matter out of their minds and the details fade with time. There was some delay in having this appeal ready for hearing. The appeal did not proceed as promptly as it could have. The first hearing date of 7 February 2000 was vacated as the appellant sought to obtain a verified report from Professor Thomson. It is unnecessary to take this matter further. 72 Appeal ground 2 fails. 73 Appeal Ground 3 reads: "The trial judge erred in his directions in respect of identification." 74 The single complaint under this ground was that the trial judge failed to direct the jury on the potential significance of the clothing worn by the appellant on 16 February 1998 being the same as that worn by him 38-40 hours earlier on the night of 14 February 1998. I have earlier summarised the extensive directions which the judge gave. He did not mention the clothing as being a matter that could lead to a false identification. However, as earlier mentioned he did refer to the cross examination on the clothes and the reply of the complainant. The point was not missed although it was not covered in the conventional way. The answer of the complainant was destructive of the point and re-enforced the reliability of the identification. It is not a matter which the appellant would have wanted repeated. No request was made for a further direction. No miscarriage of justice has occurred. Counsel for the appellant at the trial has stated that she thought that the Summing Up was very fair. It was. 75 This ground of appeal fails. 76 The appeal against conviction must be dismissed.

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