2 I agree with the reasons of Gray J. However, on the issue of the adequacy of the Judge's directions as to the identification evidence, I agree with the reasons of Perry J.

3 There is no doubt about the applicable principles. They are stated by Perry J and by Gray J. The issue in the present case is one of the application of those principles to the circumstances of the case.

4 The Judge's direction to the jury about the general dangers associated with identification evidence of the kind in question in the present case was adequate. I accept that the direction to the jury could have been more emphatic. As well, it would have been preferable to tell the jury that honest and convincing witnesses have been mistaken when giving identification evidence, rather than to refer merely to the possibility of honest witnesses being mistaken. Nevertheless, I consider this aspect of the directions to be adequate.

5 I also agree with Perry J that the Judge's directions were adequate in relation to the matters that might affect the reliability of the identification evidence given by Ms Bottrall and Mr Worsley. Once again, it would have been better if the Judge had dealt specifically with the particular matters that might affect the reliability of that evidence, rather than (as he did) refer somewhat generally to matters such as distance, lighting and so on. It is preferable in such cases to remind the jury of the actual points to be made, relating quite specifically to the evidence. I share the concern expressed by Perry J about the manner in which the Judge dealt with the possibility that the identification by Ms Bottrall and Mr Worsley of the appellant, shortly after the occurrence of the incident in question, was affected by the circumstance that the appellant was standing near a police officer and a security guard. It would have been better if the Judge had given greater emphasis to this point, and had dealt with it in his own terms, rather than referring to the argument put by counsel for the appellant. Nevertheless, like Perry J, having read the directions with care, I am satisfied in the end that they adequately brought home to the jury the danger of suggestibility.

6 It is for those reasons that I would dismiss the appeal.

7 PERRY J. The circumstances giving rise to the offence upon which the appellant was convicted are set out in the reasons for judgment of Gray J.

8 I agree with Gray J that the grounds of appeal which challenge the trial judge's ruling on the question of the admissibility of the evidence of identification, and the adequacy of the trial judge's directions as to the nature of the appellant's defence, the elements of the offence, the onus of proof and alternative verdicts, should be dismissed.

9 In my view, the only matter of substance raised by the appellant is as to the trial judge's direction to the jury with respect to the identification evidence, more particularly as to the adequacy of his warning as to the dangers in convicting on challenged identification evidence.

10 The appropriate course for the trial judge to follow in such circumstances was made clear in Domican.[1] See, for example, the following passage from the joint judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ in that case:[2]

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of conviction on such evidence where its reliability is disputed.[3] The terms of the warning need not follow any particular formula.[4] But it must be cogent and effective.[5] It must be appropriate to the circumstances of the case.[6] Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'.[7] A warning in general terms is insufficient.[8] The attention of the jury 'should be drawn to any weaknesses in the identification evidence'.[9] Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it.[10] It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

11 I refer also to the dictum of Kirby J in Festa:[11]

"173 The adequacy of a warning to the jury concerning the dangers of identification evidence is not measured, as such, by its length. It depends on its content, balance and weight. What is required is not a particular set of words or a rigid formula, with a failure in compliance resulting in the verdict being quashed.[12] The law requires that the judge bring his or her authority to bear so that the jury understand that mistakes can occur from genuine but wrongful identification.[13] The warning given must not be 'the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient' the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence'."[1]

12 Earlier authority suggested that the direction to the jury in such cases should incorporate a reference to the fact that the experience of the courts has been that a number of instances have occurred where positive identification by apparently honest witnesses who have had a good opportunity to observe the offender, has proved to be incorrect.[14]

13 But as is made clear in the passages which I have cited from the judgments in Domican and Festa, there is no set form of words which should be used in every case. The content of the direction should be tailored to the circumstances of the case.

14 All that is required is that the direction should incorporate a warning of sufficient stringency to ensure, so far as is possible, that the jury appreciates the need for caution in evaluating the relevant evidence, and that any particular deficiencies or weaknesses in the identification evidence are identified and explained.

15 If the identification is weak, the terms of the warning should be correspondingly stronger.

16 As Gray J points out, the Crown accepted at the trial that if Ms Bottrall's evidence of positive identification of the appellant as the assailant was not accepted by the jury beyond reasonable doubt, the jury should acquit.

17 Ms Bottrall identified the appellant as the assailant in circumstances in which he was standing near a police officer and a security guard, and no other civilian witnesses were in the vicinity. Identification in those circumstances carried with it an inherent risk of error associated with suggestibility.[15]

18 It is this feature of the case which has caused me most concern.

19 However, it should be borne in mind that what Ms Bottrall claims to be a positive identification of the appellant occurred within minutes of the attack and within minutes of her first sighting of the assailant. Her evidence carried with it a ring of spontaneity. The moment she saw the person, she cried out, "That's the man" and abused him.

20 Ms Bottrall was cross-examined at great length, and the jury had every opportunity to assess the reliability of her evidence. Perhaps surprisingly she was not cross-examined in terms to suggest that her identification of the appellant was influenced by the presence of the police officer and the security guard. However, I accept that this does not mean one can safely assume that her identification was not affected by that circumstance.

21 Against that background, I have carefully considered the adequacy of the trial judge's direction and warning as to the identification evidence, the terms of which are set out in the judgment of Gray J.

22 As appears from the passage extracted from the summing up which Gray J sets out, the trial judge warned the jury that "the identification of a person is a matter which requires a special need for caution". He also stated:

"You must bear in mind the possibility that honest witnesses can be mistaken. In the context of identifying a person, there are many factors which can cause a person to be mistaken. In the context of this particular case, you need to have regard to the particular circumstances in which the identification was made."

23 The trial judge then proceeded to identify various relevant factors which might go to the reliability of the identification. In my view, he did so sufficiently comprehensively for the purposes of the case.

24 He went on to remind the jury of the observation of defence counsel that:

"... the identification of the accused was at a time when he was in the company of police officers. He [defence counsel] said it was like going into Santa's cave and identifying Father Christmas."

After referring to the fact that no line-up had been held, he continued:

"It was entirely fortuitous that the witness and the accused happened to be in the courtyard at the same time. Ms Bottrall was not in the courtyard for the purpose of identifying the accused. She just happened to see him and upon seeing him she responded 'That's the man'. What you have to decide is whether that identification of the accused by Ms Bottrall was an accurate identification, having regard to the circumstances in which she had seen him before. Was the light and short glimpse that she had, in a matter such as that relevant to the accuracy of her identification?"

25 The trial judge concluded his direction on this issue with the following comment:

"Mr Worsley was not as positive with his identification, but he did say that the person upstairs was the attacker. His description lacks detail and you may consider for that reason that his ultimate view that the person upstairs was the attacker was something which you need to have doubt about. You saw and heard Ms Bottrall and Mr Worsley and it is up to you to decide whether you accept their evidence about identification. In making that decision you need to take into account those matters which I have mentioned and the discrepancies in their evidence which have been referred to by Mr Charman."

26 Although authority makes it plain that the necessity for a particular warning as to the dangers inherent in the acceptance of identification evidence will not normally be satisfied simply by quoting counsel, and the jury "must have the benefit of a direction which has the authority of the judge's office behind it",[16] this does not mean that it is inappropriate for a trial judge to refer to points that have been made by counsel. It is perfectly acceptable for a judge to do so, identifying the points as having been made by counsel, and then to adopt the points as his or her own.

27 After all, a jury is unlikely to put out of their minds that fact that counsel had made various comments which may be repeated by the trial judge.

28 I would emphasise that it is not appropriate for this Court to dissect a summing up, or to subject it to abstract forensic scrutiny divorced from the practical context of the trial.

29 In this case, the trial judge's direction came immediately after an address by counsel for the appellant which highlighted the circumstances which gave rise to the risk of suggestibility.

30 The reference by the trial judge to defence counsel's observation referring to "Santa's cave" and "Father Christmas" was made in terms and in a context which could not have failed to bring home to the jury that the judge, in his own right and with his own authority, was directing the jury to consider carefully that aspect of the matter.

31 Having regard to the direction and warning given by the judge with respect to the identification evidence, and viewing it in context, the jury could not have been in any doubt that the judge was lending the weight of his authority to the admonition that they must exercise particular care before accepting the identification evidence.

32 In my view, the appellant fails to make out his attack on the adequacy of the direction given by the trial judge on the issue of identification.

34 This is an appeal against a conviction for the crime of assault with intent to rape.[17]

35 Early on the morning of 15 December 2001 the complainant was attacked in a car park at the Westfield Marion suburban complex. There was no question that the complainant had been attacked. The main issue at trial was whether Justin Raymond Story the appellant was the man who committed the attack.

36 The Crown called evidence from the complainant, and Johanna Bottrall and Peter Worsley, who witnessed the incident. The complainant was unable to positively identify Mr Story. Ms Bottrall and Mr Worsley each gave evidence positively identifying Mr Story as the assailant. The Crown tendered video evidence and 'stills' derived from that film. The Crown also called evidence from a number of police witnesses. The defence did not present any evidence.

37 The complaints on appeal were principally whether the learned trial judge erred in failing to:

• − exclude as a matter of discretion the evidence of Ms Bottrall and Mr Worsley as to their positive identification of Mr Story outside Charlton's Pool Hall.
• − exclude as a matter of discretion the identification evidence of the complainant and Ms Bottrall, Mr Worsley in the bus interchange area.
• − adequately and specifically direct the jury as to each of the particular factors which potentially impacted on the identification evidence.
• − fairly and adequately put the defence case to the jury.

38 It was the Crown case that on the night of the attack, the complainant had been socialising and drinking with friends at Shenanigans Irish pub, part of the Westfield Marion complex. The complainant consumed vodka and beer during the evening. At around 12.30am the complainant left the premises and was refused re-entry. She was intoxicated. Upset that she could not tell her friends what had happened, the complainant made her way to a courtyard opposite Shenanigans to wait for them. She was approached by a man who attempted to engage her in conversation. The complainant made it clear that she wanted to be left alone. The man persisted but then left. She continued to wait for her friends to leave Shenanigans and take her home.

39 The complainant later described the man who spoke to her as having short brown hair, being approximately her height or slightly taller and as wearing glasses. She did not take note of his clothing. As earlier observed she could not positively identify Mr Story.

40 It became apparent to the complainant that her friends were not coming to take her home. The complainant recalled having been in the courtyard area for approximately five minutes. She decided to walk home alone. She began to make her way down a set of stairs and across a car park towards a bus interchange and the Diagonal Road Sturt Road intersection.

41 The complainant did not notice a man follow her down the stairs to the bus interchange. However this movement was captured and recorded by security video cameras. Some distance from the stairs this man approached the complainant. She repeatedly asked him to leave her alone. He refused. The complainant said that she recognised this man as the same person who had spoken to her earlier. However, in cross examination she accepted that it was possible that it was a different man.

42 The complainant became concerned for her safety and attempted to return to the Westfield Marion complex. As she ran the man seized her from behind around the waist and dragged her to the ground. He grabbed at her chest, ripped her top and scratched her above the left breast. He then grabbed at her jeans and they fell to her knees. The complainant struggled free and ran and stumbled towards Ms Bottrall and Mr Worsley, who heard screams and were going to assist.

43 Ms Bottrall and Mr Worsley had spent the night at Charlton's Pool Hall. They left the pool hall around 1:00 am. They descended the stairs and walked to the taxi stand near the bus interchange and not far from the stairs leading to Shenanigans and various other venues forming part of the Marion complex. After a few moments, they heard a commotion and soon realised that someone was in trouble. They moved towards the other end of the bus interchange where they saw the complainant being seized by a man from behind and dragged underneath a ramp leading up to the car park. They heard the complainant screaming and saw her kicking and struggling to break free. As they approached, the complainant ran towards them and into Mr Worsley's arms. Ms Bottrall and Mr Worsley described the complainant as hysterical.

44 Ms Bottrall and Mr Worsley then saw a man emerge from under the ramp and walk casually towards Sturt Road. The man looked at Ms Bottrall. He was about five to seven metres away. She said the lighting was reasonably good. She could see the man's face. Ms Bottrall yelled abuse at the man and told him that she was going to call the police. The man then crossed Sturt Road.

45 Mr Worsley went back to Shenanigans to report the incident and to locate the complainant's friends. Ms Bottrall took the complainant to the courtyard outside Shenanigans and comforted her.

46 Ms Bottrall spoke to a security guard and provided a description of the man she saw emerge from under the ramp. The security guard then broadcast the description by radio to police. She described him as being Caucasian, with short brown hair, wearing glasses, of medium build and in his twenties. She described the clothes he was wearing as a red t-shirt, shorts and black lace up shoes. Mr Worsley provided a less detailed description. He described the man as Caucasian with shaved or very short hair, and wearing shorts.

47 Shortly thereafter the police attended and attempted to speak to the complainant. She was unable to provide details of her attacker.

48 Ms Bottrall and Mr Worsley headed towards Charlton's pool hall. As they proceeded they saw a man standing with a police officer and a security guard. Ms Bottrall pointed to the man and said "That's the man". She claimed to recognise the man. She began yelling obscenities.

49 Mr Worsley also said that he recognised this man as the attacker immediately upon seeing him with the police. Ms Bottrall and Mr Worsley then spoke with Constable Adrian Paul Holmes and confirmed that the man standing outside with the police officer and the security guard was the man who attacked the complainant. The man with the police officer and the security officer was Mr Story. There is no evidence to suggest that Constable Holmes, the security guard or any other police officer had arranged for the identification to take place in these circumstances.

50 Mr Story was not arrested. He was allowed to go. He was further questioned about the attack some months later.

51 The Crown relied on a statement Mr Story made on 3 March 2002 to Detective Neville Raymond Dawkins. Mr Story said that he had been at Shenanigans on the morning of the incident, that he was wearing a red t-shirt and cargo shorts and that he spoke to a young woman whilst outside in the courtyard. He said that he saw the same woman cross the car park at the time that he decided to take the 'long way home' towards Diagonal Road. He recalled speaking to the woman and asking her if he could walk her home. He could not recall what she looked like or what she was wearing. He could not recall her response or what she did. When asked whether he 'grabbed the girl' he said 'No'. He denied attacking the complainant.

52 The Crown's case rested heavily on the evidence of Ms Bottrall and her identification of Mr Story as the man she saw attack the complainant. Crown counsel accepted that if Ms Bottrall's evidence was not accepted that the Crown could not obtain a conviction. Counsel for the Crown made the following comment during his address to the jury:

Can I say at the outset, whether you convict or acquit the accused will ultimately depend upon your acceptance or your rejection of Johanna Bottrall's evidence; that is whether or not you accept her account of the events at the time of the attack which enabled her to clearly observe the attacker, leading to his immediate identification shortly afterwards in the courtyard.

53 The trial judge reinforced this observation in his summing up:

Ms Bottrall is the witness upon whom the prosecution principally relies. She says she was 5 to 7 metres away, that the person turned towards her briefly - that is important, it was a brief view - she said he had glasses, shaved brown hair, red T-shirt and cargo shorts, wearing boots, although later she said 'boots or shoes'. They were round glasses. Then she said on the way to the pool hall she saw the man who attacked the girl. That is her expression 'saw the man who attacked the girl'. She pointed to him and said 'That's the man' and swore at him. That part of her identification was quite positive. She said 'That's the man'. But she couldn't provide information about his eyes, nose, freckles, facial hair in answer to questions from [defence counsel]. So you have to make some assessment as to whether her identification of the man was a good identification. If you have any doubt then there must be an acquittal.

54 The Crown contended at trial and on appeal that Ms Bottrall was a reliable and truthful witness and that her identification of Mr Story whilst he was in the presence of the police was not mistaken, but rather fortuitous and spontaneous. The Crown contended that Ms Bottrall's identification was supported by other identification evidence including the security videotape and the stills taken from that tape.

55 It was the defence case that Mr Story was not the man who attacked the complainant. As observed earlier, in the police interview of 3 March 2002 Mr Story denied attacking the complainant.

56 Counsel for Mr Story argued that the Crown had failed to produce evidence of sufficient "clarity, cohesion or force" to clearly identify the person who attacked the complainant. It was pointed out that the complainant failed to positively identify Mr Story as the man who assaulted her and it was submitted that the identification evidence given by Ms Bottrall and Mr Worsley was seriously flawed.

57 The defence pointed to a number of suggested weaknesses with the prosecution case. Ms Bottrall and Mr Worsley walked past the stairs where Mr Story was sitting whilst returning to Shenanigans and failed to identify him as the assailant. Counsel submitted that this indicated that Mr Worsley and Ms Bottrall's subsequent identification of Mr Story as the assailant was heavily influenced by the fact that the witnesses saw Mr Story in the presence of the police. It was submitted that the only reason Ms Bottrall and Mr Worsley identified Mr Story as the assailant was because of the 'suggestibility factor' arising because he was with a police officer and a security officer not long after the incident occurred.

58 Counsel for Mr Story further submitted that the descriptions the Crown witnesses initially provided to the police were so vague and uncertain that they could not be relied upon to prove the identity of the assailant. The witnesses' view of the assailant immediately following the incident was from a distance of approximately 5 to 7 metres, in the early hours of the morning. Their initial descriptions lacked detail. Counsel contended that the spontaneous identification of Mr Story in the presence of the police officer did not overcome the fundamental flaws in the identification that occurred at the scene of the attack. Counsel for Mr Story argued that considering the initial description by Ms Bottrall and Mr Worsley was so 'vague and general' their subsequent identification of Mr Story was nothing more than an identification of someone similar to the man they thought they saw downstairs.

59 Counsel for Mr Story submitted that the complainant's evidence was unreliable and prejudicial to the accused on a number of grounds. The complainant accepted that she was intoxicated at the time and her recollection of the events was not complete. Her descriptions of her assailant were on a number of occasions inconsistent with other evidence led to identify Mr Story. She also accepted that it was a possibility that she spoke to people other than the man who attacked her that night. She also accepted that it was possible that the man she spoke to outside of Shenanigans may not have been the same man who assaulted her. The complainant was unable to provide a description of the assailant's face or clothes.

Dangers Associated with the Identification Evidence

60 The admissibility and reliability of the security video tapes and the related stills were challenged. The judge admitted the evidence. However the restrictive nature of the video and the 'gaps' in the time sequences recorded give rise to potential dangers. The 'stills' can also be described as selective as they were compiled on the instructions only to include photographic frames in which the complainant appeared. It appears that potentially relevant video and photographic material was unavailable. In Police v Dorizzi[18] the treatment of similar evidence was addressed in the following terms:

Photographs of people, objects or scenes are admissible as evidence of the appearance of the matters recorded, including any inferences fairly arising. For example, a photograph may contain an image of the victim of an alleged crime. The appearance of the victim may be relevant to the nature of the injury inflicted or to the angle of a blow. A photograph taken by a security camera may be relevant to the identification of an assailant. ...

Once it is established that a videotape has not been altered or changed and that it depicts the scene of an alleged crime then it becomes relevant and admissible evidence. Not only is the videotape real evidence but it is to an extent testimonial evidence. It can and should be used by a trier of fact to determine whether the accused committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate "witness" with a complete and instant recall of events. It may provide strong, convincing evidence that will demonstrate clearly either the innocence or guilt of an accused.

The weight that should be afforded to videotape evidence can only be assessed after viewing that particular tape. The degree of clarity and quality of the images are factors which go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of recording may or may not be significant. Even if there are only a few frames which clearly show an assailant this may be sufficient for the purposes of identification. The trier of fact is entitled to review the tape, to stop it and then study the pertinent frames and to repeat the process as needed.

61 These remarks are apposite to the video evidence in the present case. In the present case the evidence of the video tapes and 'stills' was admissible. The judge did not err in refusing the application that it be excluded. The judge gave the jury directions as to the proper use of the video evidence and the 'still' photographs. Gaps in the sequence and poor quality substantially limited the probative value of this evidence. Their use as items of circumstantial evidence was the subject of an appropriate direction.

62 There were weaknesses and dangers associated with the identification evidence given by the complainant. A number of these dangers have been referred to earlier when summarising the defence case.

63 The complainant was intoxicated at the time of incident, having consumed vodka and beer during the evening. The complainant did not positively identify her assailant. Her descriptions of her assailant remained general and vague.

64 The complainant said that the man who attacked her was the same man who spoke to her in the courtyard. She described the man as wearing glasses, with light brown hair and around her own height, or perhaps slightly taller. She could not provide any detailed descriptions of his clothes or his facial features. The complainant gave evidence that she did not see her assailant after the incident. This evidence was admissible as circumstantial evidence. The Crown accepted that a warning was required. Counsel for Mr Story further submitted that the evidence was unfairly prejudicial.

Ms Bottrall and Mr Worsley's Initial Descriptions

65 Immediately after the incident the complainant ran to Mr Worsley. Ms Bottrall and Mr Worsley saw a man who they both believed to be the assailant walk from under a ramp and towards Sturt Road. Ms Bottrall yelled obscenities. The man looked at Ms Bottrall. Ms Bottrall said that she was approximately 5 to 7 metres away from the man. She was able to briefly see his face. Mr Worsley claimed to have had the opportunity to see the assailant but at a distance of approximately 70 metres.

66 After comforting the complainant and attempting to locate her friends, Ms Bottrall and Mr Worsley provided a description of the assailant to a security guard in the courtyard outside of Shenanigans. Ms Bottrall described the assailant wearing glasses, having short brown hair and wearing a red t-shirt, green cargo shorts and black lace up shoes. Mr Worsley described the assailant as wearing glasses, having very short hair and wearing shorts. He estimated the assailant's height to be around 5 foot nine or five foot ten. This evidence can be characterised as circumstantial identification evidence.

67 It is from these initial descriptions that the Crown claimed that the witnesses subsequently positively identified Mr Story as the assailant outside Charlton's pool hall. The generality of the descriptions, together with the poor lighting at the time and the distance from which the assailant was observed gives rise to potential dangers. These dangers arose not only with respect to the proper use of the evidence of the initial descriptions, but also concerned the subsequent positive identification outside Charlton's Pool Hall.

68 After providing a description of the assailant to a security guard, Ms Bottrall and Mr Worsley were spoken to by police. The police requested that Ms Bottrall and Mr Worsley go to Charlton's pool hall. They made their way to the pool hall. As earlier observed Ms Bottrall said she saw the assailant in the company of a police officer and a security guard. She said 'That's the man' and verbally abused him. Mr Worsley also claimed to recognise the man as the assailant. There was no other person not in uniform in the area at the time of the alleged identification. This was direct evidence of identification. It was positive identification evidence. Undoubtedly, a warning was required.

69 Counsel for Mr Story also submitted this evidence was unfairly prejudicial to Mr Story as it was procured in circumstances of suggestibility as Mr Story was in the presence of a police officer and a security guard. Counsel argued that the inference that the accused was under suspicion by the police and thus the assailant was plain on its face.

70 In Davies and Cody[19] the High Court made the following observations in relation to the dangers of suggestibility:

...A witness who is taken by the police for the purpose of seeing whether he can identify a person who is in custody in relation to a particular crime has in his mind a recollection or impression of the person whom he saw, or, it may be, heard, at the scene of the crime or in relation to some matter which is connected with the crime. The recollection probably relates to the appearance of the person, and possibly to his mode of standing, moving, or speaking or some other characteristic. It is important that this recollection should not be overlaid or in any way affected by suggestions that a particular person in custody is either the person previously seen by the witness or is the person suspected of or charged with the crime.

...

... [I]f a witness is shown a single person and he knows that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question.

... [I]f a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe.

71 In Alexander v The Queen[20] Stephen J referred to the dangers identified in Davies and Cody in the context of a photographic identification and observed:

The accuracy of any identification of a stranger, seen once only, is likely to be affected by the fallibility of human perception and memory. When identification is attempted with the aid of photographs, there are introduced peculiar difficulties, due to the various ways in which photographic representations differ from nature: their two dimensional and static quality, the fact that they are often in black and white and the clear and well lit picture of the subject which they usually provide. The use of photo-identification in the evidentiary process involves three further factors of a quite different kind which apply only to its use in that process.

Unlike the case of an identification parade, an accused whose identity as the offender is sought to be proved at his trial by evidence of previous photo-identification is likely to know nothing at first hand of the way in which the identifying witness earlier identified his photograph as that of the offender. He must rely upon cross-examination of prosecution witnesses for knowledge of the conditions of identification and of what safeguards were taken against error on the part of the identifying witness. Again, by what may be called the "rogues' gallery" effect, evidence that the police had in their possession and showed to the identifying witness photographs of the accused may often strongly suggest to a jury that the accused has a criminal record, perhaps even a propensity to commit a crime of the kind with which he is charged. Their production in evidence, or even reference to their existence, may then be highly prejudicial to an accused. Lastly, there is the "displacement" effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.

72 The dangers associated with suggestibility and identification evidence were also discussed in The Queen v Hallam and Karger[21]. That case involved the robbery and assault of two taxi drivers. The two accused were spoken to by police at a shopping centre. The police sent for one of the taxi drivers to attend the shopping centre. When the driver arrived, the only persons present were the police officers and the two accused. The driver was asked by the police whether the two accused were the assailants and he said that they were. A voir dire hearing was conducted to discuss the admissibility and reliability of this identification evidence, however the learned trial judge did not exclude the evidence. On appeal, it was held that the trial judge had a discretion to exclude evidence on the basis of unfairness and that the proper method of identification by witnesses was for the police to conduct an identification parade. It was held that the identification evidence provided by the driver at the shopping centre was of little evidential value. King CJ observed:

Identification by confronting the victim with the suspect in circumstances which tend to suggest to the victim that the suspect is under suspicion is a virtually valueless form of identification which should be resorted to only in the most exceptional situations. [22]

73 The comments of the courts in Davies and Cody, Alexander and Hallam and Karger were reaffirmed more recently by the High Court in Festa v The Queen.[23] Gleeson CJ described the dangers associated with identification evidence procured in circumstances of suggestibility in the following terms:

There are two principal dangers associated with identification by means of selection from a group of photographs. These were discussed in Alexander. There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. But there is also a risk of a different kind. The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history. A similar risk arises where identification is made in circumstances suggestive of a criminal background, such as where a person is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions. This is sometimes called the rogues' gallery effect...The first kind of risk concerns the probative value of the evidence. The second is a risk that the jury will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence. In that connection, some care is needed in the use of the term 'prejudice'. Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused. But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.

74 There were real and significant dangers associated with the identification evidence in the present case. It was necessary for the judge to have carefully and fully considered his discretion to exclude the evidence and if the evidence was to be admitted to provide a full and proper warning to the jury.

75 In Alexander the High Court held that a trial judge has discretion to exclude identification evidence if the admission of such evidence would result in unfair prejudice to the accused. Gibbs CJ observed:

The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.[24]

76 In the present case the trial judge had a discretion to exclude the identification evidence. When exercising this discretion there were two principle factors that the trial judge was required to consider: any alleged police misconduct and any inherent unreliability of the identification evidence given by Ms Bottrall, Mr Worsley and the complainant.

77 The trial judge correctly identified the discretion to exclude but failed to adequately consider the second factor. In the exercise of the discretion the judge limited his consideration to the question of any possible police misconduct. As observed in Hallam and Karger, the exercise of discretion required an evaluation of the probative value of the identification evidence and a comparison to the prejudicial effect of the evidence to Mr Story. The judge failed to have regard to relevant considerations when exercising his discretion. It is necessary for this court to reconsider the exercise of discretion.

78 Despite the earlier identified dangers the identification evidence of Ms Bottrall and Mr Worsley was admissible and should not have been excluded as a matter of discretion. The present case was distinguishable from Hallam and Karger. The risks associated with suggestibility were less. Any possible unfair prejudice suffered by the accused could be addressed by an adequate warning to the jury. The probative value of the evidence outweighed any potential prejudicial effect on the accused.

79 As earlier observed, an issue on appeal was whether the trial judge erred by failing to adequately warn the jury, generally and specifically, as to the risks associated with relying on identification evidence.

80 Identification evidence is admissible in accordance with and subject to the ordinary evidentiary rules. Evidence is relevant and admissible if it has a tendency to prove a fact in issue.

81 There is a presumptive duty to warn the jury in relation to identification evidence in every case.[25] In particular, where the identification evidence represents a crucial part of the prosecution's case, the jury must be warned of the dangers of convicting on such evidence. The judge must give general and specific warnings to the jury relating to particular identification evidence even if there is other evidence which, if accepted, would be sufficient to convict an accused.[26]

82 Identification evidence at times has been described as positive identification evidence. Positive identification evidence may be direct or circumstantial.[27] This description was the subject of discussion in Festa v The Queen,[28] where McHugh J observed:

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.

83 Identification evidence has also been described as circumstantial or similarity evidence. Such evidence is always circumstantial. In Festa McHugh J commented on this description:

Unfortunately, another class of evidence is sometimes called "circumstantial identification evidence". It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.[29]

84 These descriptions or labels have been commonly used in the context of the development of warnings to be given about the dangers and use of identification evidence. However a particular label or description does not limit or affect the application of established evidentiary rules. In Festa Hayne J summarised the position:

...It is, however, important to recognise that evidence which the prosecution relies on, to demonstrate that it was the accused who committed the alleged crime, may take many forms. The convenience of classifying some or all of those different kinds of evidence should not be allowed to obscure the fundamental reasoning that underpinned this Court's decision in Domican v The Queen. In particular, deciding where the boundaries between classes of evidence may lie must not obscure the purpose of what is now commonly called a Domican direction.[30]

85 If identification evidence is relevant it is admissible subject to the general discretion to exclude. Once admitted the evidence forms part of the body of the evidence to be considered by the jury in its totality when considering their verdict.

86 Identification evidence however described may require a special warning. In Domican v The Queen[31] Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ commented:

...the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

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 weaknesses in the evidence, in the case being tried.[32]

88 In Domican Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ further observed:

[T]he adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case...But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence.[33]

89 In Festa the decision in Domican was approved and applied. The observations of members of the court included:

The warning must "isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence". "The jury must have the benefit of a direction which has the authority of the judge's office behind it." The purpose of the warning is self-evident. It is to draw to the attention of the jury the difficulties in evidence which, because it is so seductive, has so often led to proven miscarriages of justice.[34]

The adequacy of a warning to the jury concerning the dangers of identification evidence is not measured, as such, by its length. It depends on its content, balance and weight. What is required is not a particular set of words or a rigid formula, with a failure in compliance resulting in the verdict being quashed. The law requires that the judge bring his or her authority to bear so that the jury understand that mistakes can occur from genuine but wrongful identification. The warning given must not be "the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence".

It is in this last respect that the trial judge's summing up was less helpful than it should have been. In this Court, the prosecution accepted that "fuller directions could have been given". The defects relate not just to the two items singled out by the Court of Appeal but also to the more general problem described by Lord Ackner in the Privy Council in Reid (Junior) v The Queen namely the "ghastly risk run in cases of fleeting encounters". In Australia that risk is addressed by requiring that, in a jury trial, the judge explain to the jury how that risk was relevant to the particular case and how the jury were obliged to exercise care because of the law's experience that genuine but erroneous identifications can sometimes be made by honest witnesses.

...Once the identification evidence was admitted, it was imperative, given its obvious and acknowledged weaknesses, that the particular nature of at least the chief of those weaknesses should have been identified and called to the notice of the jury so that the warnings could be related to the weaknesses. Instead, with respect, the warnings were left hanging in the air as general remarks about the imperfections of identification evidence as a category of testimony.

The requirement of particularity is the standard established by this Court in Domican.[35]

90 In R v King[36] Hogarth ACJ, Mitchell and Zelling JJ discussed the process of 'recognition evidence'. Their Honours observed:

Recognition constitutes a mental process whereby one person, by observation, is able to establish to his own satisfaction the identity of another person. In doing so he no doubt takes into account the general physical characteristics of the person who he is recognising. But a complete catalogue of these personal characteristics, if supplied to a stranger, would be insufficient to enable that stranger to achieve the same act of recognition. At most he could say that the person at whom he is looking could be the man recognised, in that the description fits him. He could not say "it is the man"; and it is evidence of the last category which constitutes recognition; it is that type of evidence of which the cases speak when they refer to evidence of identification. It is that type of evidence which the law requires, in certain circumstances, to be accompanied by a warning to the jury.

91 Ms Bottrall and Mr Worsley's identification of Mr Story outside Carton's pool hall can be described as recognition evidence. They had only seen the man involved in the incident on the one prior occasion. They were able to take into account only general physical characteristics of the person they saw. Their observations were made in the early hours of the morning, from a distance of at least five to seven metres and when attempting to aid the distressed complainant. Despite their positive assertion that Mr Story was 'the man' involved in the incident, the witnesses' ability to identify the man involved was limited by their first impressions and their ability to recognise similar physical characteristics in the person they subsequently identified.

92 There was a substantial risk of suggestibility affecting the identification evidence given by Ms Bottrall and Mr Worsley. As earlier observed the positive identification was made when the accused was in the presence of a police officer and a security officer. The assumption that the police officer and the security officer viewed the accused as 'the man' could be readily made. The potential for suggestibility was demonstrated by Mr Worsley's voir dire evidence:

Q. Did you think [Mr Story] was in control of the police, or he was very close to the police.

A. He was close to the police, and they were definitely talking to him, they had a reason for wanting to talk to him, yes.

Q. You assumed they had a reason to want to talk to him.

A. Yes, otherwise they wouldn't have been standing there next to him.

Q. You assumed that that reason was because he was in some way involved with the incident.

A. I didn't know how they could know about that, that's what I was concerned about.

Q. I'm asking you about that assumption, did you assume he was next to them because he was in some way involved in the incident.

A. Yes.

93 In the present case there was a real danger that Ms Bottrall and Mr Worsley 'jumped to the conclusion' that the man with the police was the assailant. A conclusion reached by the suggestibility of association. The circumstances demanded a clear and strong warning addressing the topic of suggestibility and the associated dangers. The warning was to be given by the judge. It was wholly inadequate for the for the judge to remind the jury of an inappropriate analogy to "Father Christmas" drawn by defence counsel. The circumstances demanded an appropriate unequivocal warning with the direct imprimatur of the trial judge.

94 In the present case the trial judge gave the following direction to the jury in relation to the general risks associated with identification evidence:

The identification of a person is a matter which requires a special need for caution.

You must bear in mind the possibility that honest witnesses can be mistaken. In the context of identifying a person, there are many factors which can cause a person to be mistaken. In the context of this particular case, you need to have regard to the particular circumstances in which the identification was made. The identification in question is the identification of the person who attacked [the complainant]. It is not the identification of somebody who may have been seen up in the courtyard, or somebody who was walking along the bus lane. It is the identification of the person who attacked [the complainant].

So, in considering that issue, you need to consider the view that the witness had of the attacker, the distance separating the attacker from the witness, the lighting and visibility. In some cases, it is relevant to know whether the witness knew or had seen the person previously. In this case the evidence is that none of the witnesses had seen the accused previously. So when the witnesses saw him on that night that was their first sighting of the accused. That is a matter which is relevant to the reliability of their evidence. The period of time between the incident and the identification is an important matter. In this case the period can be identified down to seconds almost by the aid of the stills. But if the period between an incident such as the assault and the identification is days or weeks or months, then the reliability of the identification becomes less as time increases. But that period of time is a matter which you need to take into account.

A further matter which is relevant is the time during which the accused was under observation. We have been sitting in this court room now looking at each other for several days, and so if asked to describe another person in the courtroom we would have a reasonable prospect of doing that. But you heard that the accused was only in the sight of the witnesses for a relatively short period of time, so that is another matter that you need to take into account.

As I mentioned before, it is of vital importance that the identification of the accused is certain and reliable. You therefore need to consider any discrepancies in the descriptions which may have been given by witnesses to the police officers. If there is any error in the description by a particular person, that is a matter which may cause you to place less significance on the evidence of the person who is in error. [Counsel for the defence], who has referred you to a number of weaknesses in the identification evidence. If you have any doubt as to whether the person who attacked [the complainant] downstairs was not the accused you must acquit.

95 The trial judge then drew the jury's attention to the particular identification evidence given by Ms Bottrall:

[Defence counsel] made an observation about the fact that the identification of the accused was at a time when he was in the company of police officers. He said it was like going into Santa's Cave and identifying Father Christmas. The law has strict laws about identification evidence and the preferred way of identifying an accused person is in an identification parade. If that had happened on this night police officers would have lined up an array of people, one of whom would have been the accused, and the witnesses would have been asked to pick the person from the line-up. That didn't happen. But you may think that there is a good reason why that didn't happen. It was entirely fortuitous that the witnesses and the accused happen to be in the courtyard at the same time. Ms Bottrall was not in the courtyard for the purpose of identifying the accused. She just happened to see him and upon seeing him she responded 'That's the man'. What you have to decide is whether that identification of the accused by Ms Bottrall was an accurate identification, having regard to the circumstances in which she had seen him before. Was the light and short glimpse that she had, in a matter such as that, relevant to the accuracy of her identification?

96 The trial judge's direction to the jury in relation to the identification evidence were inadequate. The judge failed to fully or adequately explain the notion of suggestibility. The judge failed to warn the jury of the dangers associated with relying on an identification made whilst the person identified was in the presence of the police. The judge's reference to counsel's submissions did not absolve him of his responsibility to provide the jury with direction carrying the weight of his judicial office. As a result of these inadequate directions, the jury was not assisted as it should have been. The trial judge's directions constituted a material departure from the requirements set out in Domican and Festa.

97 A further ground of appeal advanced by counsel for Mr Story was that the learned trial judge erred in the law in failing to adequately direct the jury about the elements of the offence that needed to be proved and the alternative charges available to the jury. In relation to the elements of the offence of assault with intent to rape, the trial judge made the following comments to the jury:

... [T]here are two elements: first, that the accused committed an assault on [the complainant], and secondly, that in assaulting [the complainant], the accused had the intention of committing a rape upon her.

'Assault' is defined by the law as the intentional and unlawful application of force or violence to another person. In the present case there is an allegation that the accused applied actual force or violence to [the complainant]. It must be shown that the accused actually used force or violence towards [the complainant]. It is not necessary that the actual force employed be great; even a slight push is enough, but you have heard evidence of conduct which goes far beyond that.

...

In the present case, if you are satisfied that the conduct, of which you have heard, by the attacker provided an indication that the attacker had a specific intention, then you might regard that as an indication that that conduct was carried out with the specific intention of raping the victim.

...

Rape is committed when a person has sexual intercourse with another person without the consent of that other person, knowing that that other person does not consent, or being recklessly indifferent as to whether the other person consents. This is so whether or not that other person offers physical resistance. In this case, there was obvious physical resistance. You will remember that evidence clearly.

...

What is charged here is an assault with the intention to rape, and so, what you must decide is whether the attacker had the intention of carrying out an act which would have amounted to a rape in accordance with the definition which I have just given to you.

Accordingly, in order to establish the charge, the prosecution must prove beyond reasonable doubt that the accused intended to penetrate the alleged victim, at least as far as penetration the labia majora, and secondly, that the alleged victim did not consent to sexual intercourse. Lack of consent in this case should not provide any problem for you, members of the jury.

The prosecution must also prove beyond reasonable doubt the accused knew that the alleged victim was not consenting or was recklessly indifferently as to whether she was consenting. Again, there could be no question of consent in this case.

I repeat again, it is necessary in this case that the accused's intention be proved as to rape. An intention to perform some other sexual act upon the alleged victim, [the complainant], however discreditable, is not the intention necessary to constitute the crime charged. If the alleged intention is not proved, but you are satisfied beyond reasonable doubt that the accused assaulted [the complainant], you should return a verdict of not guilty as charged, but guilty of common assault. If that assault was accompanied by circumstances of indecency, you may return a verdict of indecent assault. Indecency includes anything which an ordinary, decent person would find shocking, disgusting or revolting, or anything which is unbecoming and offensive to common proprietary. There is no magic about what constitute indecent assault.

98 Counsel for the Mr Story complained that the judge erred in suggesting that if there had been penetration then the offence of rape would have been made out. The judge said:

There was no suggestion that there was any penetration in this case. If there had been penetration, then the offence of rape would have been made out.

99 It was argued that this statement suggested that apart from penetration the other elements of the offence of rape had been made out. However, when read in the context of the judge's other directions, it is clear that this comment was intended to distinguish between the offence of rape and assault with intent to rape. These comments did not constitute a misdirection. The judge went on to describe in detail each of the elements that had to be proved in the present case to establish that the assault was committed with intent to rape.

100 Counsel for Mr Story submitted that the judge erred in leaving the alternative charge of indecent assault to the jury. It was said that common assault, and not indecent assault, is the automatic alternative charge to assault with intent to rape.

101 Alternative verdicts may be provided by statute or arise at common law. Section 270B of the Criminal Law Consolidation Act 1935 (SA) does not provide a statutory alternative to the offence of assault with intent to rape. The common law rule regarding alternative offences has been described in Archbold as follows:

At common law conviction of a lesser offence than that charged was permissible provided the definition of the greater offence necessarily included the definition of the lessor offence.[37]

102 This rule was discussed by the English Court of Appeal in R v Springfield[38] in terms approved by the New South Wales Court of Appeal in R v Cameron[39] where the court observed:

The test is to see whether it is a necessary step towards establishing the major offence to prove the commission of the lesser offence: in other words, is the lesser offence an essential ingredient of the major one?

103 Applying this rule to the present case common assault, as a necessary step towards establishing assault with the intent to rape, is an automatic alternative to the primary charge.

104 Initially the judge left the charge of indecent assault to the jury as an alternative charge. Indecent assault is not a necessary element in the charge of assault with intent to rape. It should not have been left to the jury as an alternative charge. After being requested by counsel, the judge gave the following correcting direction:

When I summed up I suggested that indecent assault was an alternative charge. That is not an alternative charge, I was in error when I suggested that it was. However, an automatic alternative to the charge is common assault, but common assault is not the Crown case. The Crown case is that this is a case of assault with the intent to rape. That is the way the Crown pitches its case. If you cannot find the necessary intent then the alternative of common assault is available.

As a result of this direction, the jury were not left to consider indecent assault as an alterative charge.

105 In any event, the jury convicted the accused of the higher charge. In Kartinyeri v R[40] the court observed that a trial judge's failure to direct the jury about an available lesser alternative verdict will not result in a conviction for a greater offence being overturned.

[T]he failure to leave [the alternative] verdict to the jury, in my opinion, does not necessarily mean that the appeal must be allowed. The jury could not have returned the verdict it did unless it was satisfied, at least in respect of the robbery in company, that the elements of the offence had been made out. It would only have needed to consider the alternative verdict in circumstances where it believed that the elements of the offence of robbery in company had not been made out beyond reasonable doubt.

106 The High Court considered this approach in Gilbert v The Queen.[41] McHugh J, in dissent, affirmed the approach in Kartinyeri as correct. Gleeson CJ, Gummow and Callinan JJ found that the trial judge's error in not leaving an alternative verdict to the jury could constitute a miscarriage of justice. However, Glesson CJ, Gummow and Callinan's approach is not necessarily inconsistent with that taken in Katinyeri. Their Honours preferred to focus on whether the trial judge had correctly directed the jury in regards to the essential elements of the offence.

107 Counsel for Mr Story submitted that the judge erred in reversing the onus of proof by suggesting that the jury should ask whether there was any reasonable hypothesis consistent with the accused's innocence. The judge gave the following direction:

What you must ask is whether there is any reasonable hypothesis which is consistent with the accused's innocence. A reasonable hypothesis may be that the witnesses who identified, or who purport to identify, him are just plain wrong. If there is such a hypothesis, you will not be satisfied beyond reasonable doubt that is was the accused who attacked [the complainant].

108 It was contended that this direction to the jury reversed the onus of proof. It was submitted that the phrase 'whether there is any hypothesis which is consistent with the accused's innocence' detracted from the fundamental principle that the Crown bore the onus to prove all elements of the offence beyond a reasonable doubt. It was argued that the phrase used by the judge suggested that it was for Mr Story to prove a hypothesis consistent with innocence. It was submitted that an appropriate direction would have been 'what you must ask is whether the prosecution has excluded any reasonable hypothesis which is consistent with [Mr Story's] innocence.'

109 Counsel for the Crown conceded that, considered in isolation, the trial judge's direction that the jury must ask itself 'whether there is any hypothesis which is consistent with the accused's innocence' did not accord with authority. However, the Crown submitted that the judge's earlier comments and later direction adequately removed any confusion related to the onus of proof.

110 In Shepherd v The Queen[42] the High Court considered the adequacy of a direction given to a jury regarding the onus of proof in relation to circumstantial evidence. Dawson J made the following observation:

[T]he prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. ... [T]he jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof.

111 The majority of the court in Shepherd agreed that a trial judge's direction as to the onus of proof is not required to follow any prescribed formula. The circumstances of each case will determine the nature of the warning.[43] However, it was observed that the direction discussed in Chamberlain v The Queen[44] might be appropriate where a jury is required to determine guilt or innocence as a result of drawing inferences from circumstantial evidence.[45] The observation in Chamberlain was as follows: [46]

Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond a reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence.

112 As the evidence in present case included a body of circumstantial evidence from which the jury were invited to draw inferences, it was desirable for the trial judge to direct the jury as to the relevant standard of proof in the terms described in Sherperd above. The direction of the judge in the present case that the jury must ask itself 'whether there is any hypothesis which is consistent with the accused's innocence' was in error. However elsewhere in the summing up the judge correctly directed the jury that the onus of proof beyond reasonable doubt was on the prosecution with respect to each of the elements of the offence.

113 It cannot be said that the jury properly warned and directed would have inevitably convicted Mr Story. In Domican Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed:

If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a Court of Criminal Appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused.[47]

By contrast, if evidence has been wrongly admitted at trial it may be more difficult to detect from the jury's verdict how it dealt with particular factual issues at trial. In such a case, of which the present is an example, it is necessary to direct attention to the uncontroverted facts and consider whether, on those facts, conviction was inevitable.

The formula usually cited in connection with the application of the proviso is taken from the reasons of Fullagar J in Mraz v The Queen:

"[E]very accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice."

It is to be noted that his Honour was not, in terms, describing the application of the proviso, so much as the operation of the common form provision taken as a whole. His Honour referred to the proviso two sentences later when he said, "[i]t is for the Crown to make it clear that there is no real possibility that justice has miscarried."

Be that as it may, use of the formula of "lost chance, fairly open, of acquittal" must not be permitted to obscure the nature of the inquiry that must be made. That is an inquiry which seeks to identify whether, on the evidence that was properly admitted at trial, a jury acting reasonably and properly directed would have inevitably convicted.

114 The dangers associated with identification evidence identified in Davies and Cody and Hallam and Karger and reiterated in Festa were present in this case. As earlier observed it was conceded that the evidence of Ms Bottrall was critical to the Crown case. The jury needed to be given the assistance specified in Domican in order to properly assess this evidence. The judge in the circumstances was obliged to give this assistance. In addition, the problems associated with the directions concerning the onus of proof must be considered. It cannot be said that the jury reasonably and properly directed would have inevitably convicted Mr Story. The other evidence was not so strong to allow this conclusion. This appeal should be allowed, the majority verdict set aside and the matter remitted for retrial.

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT

17 Contrary to section 270B of the Criminal Law Consolidation Act 1935 (SA).

18 (2000) 84 SASR 403 at 413-414

19 Davies and Cody v R [1937] HCA 27; (1936-37) 57 CLR 170 at 181 - 182

20 [1981] HCA 17; (1980) 145 CLR 395 at 409

21 The Queen v Hallam and Karger (1985-86) 42 SASR 126

22 The Queen v Hallam and Karger (1985) 42 SASR 126 at 130

23 (2001-02) 208 CLR 593 at 603

24 Alexander v The Queen (1980) 145 CLR 385 at 402-403

25 Domican v The Queen (1992) 173 CLR 555 at 561-2

26 Domican at 561, Kelleher v R [1974] HCA 48; (1974) 131 CLR 534 at 551, R v Burchielli [1981] VicRp 61; [1981] VR 611 at 616-9, R v Bartels (1986) 44 SASR 260 at 270

27 Gleeson CJ observed in Festa v The Queen (2001-02) 208 CLR 593 at 596-597;

Direct evidence is evidence which, if accepted, tends to prove a fact in issue. ... Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred.

28 (2001-02) 208 CLR 593 at 610

29 (2001-02) 208 CLR 593 at 611

30 (2001-02) 208 CLR 593 at 658

31 (1991-1992) 173 CLR 555 at 561

32 (2001-02) 208 CLR 593 at 610

33 (1991-1992) 173 CLR 555 at 565

34 (2001-02) 208 CLR 593 at 658

35 (2001-02) 208 CLR 593 at 645 - 646

36 R v King (1975) 12 SASR 404 at 410

37 Archbold J F , Criminal Practice, Evidence and Pleading (1994) Vol 1 para 4-462 at 631

38 (1969) 53 Cr App R 608

39 [1983] 2 NSWLR 66 at 68

40 (Unreported Decision, Court of Criminal Appeal, South Australia) 20 February 1996, Jud No S5438

42 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 580

43 [1990] HCA 56; (1990) 170 CLR 573 at 578

44 [1984] HCA 7; 1984) 153 CLR 521

45 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 581

46 [1984] HCA 7; (1984) 153 CLR 521 at 536

47 (1991) 173 CLR 555 at 565 -566

48 (2001-02) 208 CLR 593 at 661-662

[1] (1991-1992) 173 CLR 555.

[3] Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534 at 551; Reg v Turnbull [1977] QB 244 at 228; Reg v Burchielli [1981] VicRp 61; [1981] VR 611 at 616-619; Reg v Bartels (1986) 44 SASR 260 at 270-271.

[4] Reg v De-Cressac (1985) 1 NSWLR 381 at 384; Reg v Finn (1988) 34 A Crim R 425 at 435-436.

[5] Reg v Dickson [1983] VicRp 19; [1983] 1 VR 227 at 230; Reid (Junior) v The Queen [1990] 1 AC 363 at 380.

[6] Reg v Aziz [1982] 2 NSWLR 322 at 328; Reg v Allen (1984) 16 A Crim R 441 at 444-445.

[7] Smith v The Queen (1990) 64 ALJR 588 at 588.

[8] Kelleher v The Queen (1974) 131 CLR at 551.

[9] Kelleher v The Queen (1974) 131 CLR at 551.

[10] Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 at 182-183.

[11] (2001) 208 CLR 593 at 645.

[12] R v Allen (1984) 16 A Crim R 441 at 444; R v Domican [No 3] (1990) 46 A Crim R 428 at 446; Domican v The Queen (1992) 173 CLR 555 at 567-568.

[13] R v Burchielli [1981] VicRp 61; [1981] VR 611 at 619, 621; R v Clune [1982] VicRp 1; [1982] VR 1 at 8; R v Dickson [1983] VicRp 19; [1983] 1 VR 227 at 230; R v Hentschel [1988] VicRp 46; [1988] VR 362 at 383-384; R v Domican [No 3] (1990) 46 A Crim R 428 at 445.

[14] See, for example, R v Burchielli [1981] VicRp 61; [1981] VR 611 per Young CJ and McInerney J at 617.

[15] Festa (2001) 208 CLR per Gleeson CJ at 602.

[16] Domican 173 CLR per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 562.

[17] Contrary to section 270B of the Criminal Law Consolidation Act 1935 (SA).

[18] (2000) 84 SASR 403 at 413-414

[19] Davies and Cody v R [1937] HCA 27; (1936-37) 57 CLR 170 at 181 - 182

[20] [1981] HCA 17; (1980) 145 CLR 395 at 409

[21] The Queen v Hallam and Karger (1985-86) 42 SASR 126

[22] The Queen v Hallam and Karger (1985) 42 SASR 126 at 130

[23] (2001-02) 208 CLR 593 at 603

[24] Alexander v The Queen (1980) 145 CLR 385 at 402-403

[25] Domican v The Queen (1992) 173 CLR 555 at 561-2

[26] Domican at 561, Kelleher v R [1974] HCA 48; (1974) 131 CLR 534 at 551, R v Burchielli [1981] VicRp 61; [1981] VR 611 at 616-9, R v Bartels (1986) 44 SASR 260 at 270

[27] Gleeson CJ observed in Festa v The Queen (2001-02) 208 CLR 593 at 596-597;

Direct evidence is evidence which, if accepted, tends to prove a fact in issue. ... Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred.

[28] (2001-02) 208 CLR 593 at 610

[29] (2001-02) 208 CLR 593 at 611

[30] (2001-02) 208 CLR 593 at 658

[31] (1991-1992) 173 CLR 555 at 561

[32] (2001-02) 208 CLR 593 at 610

[33] (1991-1992) 173 CLR 555 at 565

[34] (2001-02) 208 CLR 593 at 565 per Kirby J

[35] (2001-02) 208 CLR 593 at 654-655 per Gleeson CJ, Gaudron, Gummow and Hayne JJ

[36] R v King (1975) 12 SASR 404 at 410

[37] Archbold J F , Criminal Practice, Evidence and Pleading (1994) Vol 1 para 4-462 at 631

[38] (1969) 53 Cr App R 608

[39] [1983] 2 NSWLR 66 at 68

[40] (Unreported Decision, Court of Criminal Appeal, South Australia) 20 February 1996, Jud No S5438

[42] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 580

[43] [1990] HCA 56; (1990) 170 CLR 573 at 578

[44] [1984] HCA 7; (1984) 153 CLR 521

[45] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 581

[46] [1984] HCA 7; (1984) 153 CLR 521 at 536

[47] (1991) 173 CLR 555 at 565 -566

[48] (2001-02) 208 CLR 593 at 661-662