R v TURNER No. SCCRM-99-215 [2000] SASC 27

Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ

DOYLE CJ In this matter the Court has already given its decision, allowing the appeal, setting aside the appellant's conviction and ordering a re-trial.

I have had the opportunity to consider the reasons given by Mullighan J for that decision. I agree with much of what he says. But there are some aspects of his reasons with which I disagree, and accordingly it is appropriate for me to state briefly where I do disagree.

It is not necessary to set out any of the facts. They are to be found in the reasons of Mullighan J.

I agree with Mullighan J that the evidence given by Andrew at the trial was not evidence of an earlier act identifying the appellant as the offender. It was no more than evidence that he attended at an identification parade and indicated someone at the identification parade. The evidence about what transpired at the identification parade is also to be found in the reasons of Mullighan J. That evidence is a sufficient caution against drawing too easily what might otherwise seem an obvious inference that Andrew must have meant, by his answer in Court, that he had identified the appellant as the offender. It may be that the gap in Andrew's evidence could have been closed, in one way or another, by the Prosecutor asking further questions of Andrew, but that was not done at trial.

Nevertheless, in my opinion the evidence of Constable Nickolai, and the other evidence establishing what happened at the identification parade, was admissible. It is on this point that I differ, with respect, from Mullighan J.

I recognise the difficulty about the admissibility of the evidence. The basis of the admissibility of evidence of an out of court identification has been the subject of some debate. One view is that such evidence is admissible only when the identifying witness is called and identifies the accused in Court, the evidence then being admitted as an exception to the rule prohibiting tender of prior consistent statements. The other view is that evidence of an out of court identification is admissible as a true exception to the hearsay rule. I refer to the consideration of the topic in Ligertwood Australian Evidence (3rd ed Butterworths 1998) par 7.63.

Andrew was called as a witness, but did not positively identify the appellant as the offender. He gave equivocal evidence to the effect that he picked someone out, the meaning of that statement in evidence and of that act out of court remaining unclear. For present purposes I am prepared to assume that other evidence was admissible to establish that the person whom he picked out, number 10, was the appellant.

As Mullighan J says, the authorities dealing with the admissibility of evidence of an out of court identification, when the identifier is not called as a witness, or is called as a witness but does not give evidence of the act of identification, are conflicting. In Murphy v The Queen [1994] SASC 4674; (1994) 62 SASR 121 King CJ referred to the conflicting views expressed by members of the High Court on the point in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395. He went on to say (at 125):

"If matters surrounding the act of identification can be proved notwithstanding that the identifying witness does not depose to them in court, there appears to be no reason in logic why they cannot be proved even though the identifier does not depose to the identification at all."

The other two members of the Court agreed with those reasons.

In Murphy the witness in question had given evidence at the trial. She gave evidence about the identification process, but could not remember whether she recognised any of the persons in question at the time of the act of identification relied upon by the prosecution. It was not necessary for the Court to consider the position in a case in which the person who made the out of court identification is not called as a witness at all. Nor is it necessary to consider that situation in the present case.

Andrew was called as a witness and gave evidence which was equivocal. It was open to the jury to conclude, once they had heard all of the evidence about the identification parade, that Andrew's evidence in court meant that he had identified the appellant at the parade as the offender, or as someone similar to the offender. In my opinion Murphy supports the admissibility of evidence from Constable Nickolai for the purpose of explaining and clarifying the significance of Andrew's evidence about what he did at the identification parade.

To allow the evidence of Constable Nickolai to be admitted does not give rise to any unfairness. Andrew was available to be cross-examined by counsel for the appellant about the suggested act of identification, and even if he was not cross-examined the point was able to be made that Andrew had not given evidence in court of a positive act of identification out of court.

If the jury concluded, in the light of the evidence about the parade, Andrew's evidence in court was not evidence that he had identified the appellant as the offender or as someone similar to the offender, then that evidence about the parade would cease to have any practical significance. The situation before the Court in Murphy does not arise here.

In my opinion, it follows that the relevant evidence was admissible, even though what Andrew said in Court did not amount to an unequivocal identification of the appellant as the offender.

The evidence was admissible to assist the jury in deciding whether Andrew's evidence to them was that he had identified the appellant as the offender or as someone similar to the offender.

However, I agree with Mullighan J that the directions given by the trial Judge in relation to the out of court identification were inadequate.

The trial Judge should have directed the jury to consider, first of all, whether they were satisfied that what Andrew said and did out of court amounted to an identification of the appellant as the offender. In light of the evidence summarised by Mullighan J, this was a real issue at the trial. The jury had to consider the significance of Andrew's evidence at the trial, in deciding whether he had identified the appellant. In my opinion what the trial Judge said to the jury did not bring home to them, with sufficient clarity, the fact that there was a real issue here. Indeed, the manner in which the trial Judge dealt with the matter carried the implication that what Andrew said at the identification parade had amounted to an act of identification, and that the only issue was the weight to be given to that evidence. In my opinion there was need for close attention to the issue of whether there was in fact an act of identification at the identification parade.

The jury should have been told that only if, having considered the relevant matters, they were satisfied that Andrew had identified the appellant as the offender, could the relevant evidence then stand as evidence of an act of identification by Andrew.

It was also necessary for the jury to consider all matters relevant, in the present case, to the difficulties inherent in identification evidence, even if they were satisfied that what Andrew said amounted to an act of identification at the identification parade. I again agree with Mullighan J that there were important aspects of the evidence in the present case to which the attention of the jury was not drawn. These matters needed to be emphasised.

Even if what Andrew said at the identification parade did not amount to a positive act of identification, evidence of what he said and did at the identification parade might still have been admissible as an item of circumstantial evidence. If the jury were satisfied that Andrew was indicating, for example, that there was a similarity between the appellant and the offender, that act was an available item of circumstantial evidence, to be considered along with the other circumstantial evidence in the trial. But when considered merely as an item of circumstantial evidence, it was necessary to make it quite clear to the jury that it was not an act of identification, and lacked the weight that could be given to a positive act of identification. It was necessary to remind the jury, if they were considering what happened at the identification parade as an item of circumstantial evidence, of the same weaknesses and dangers that attended that evidence, whether considered as an act of identification or as an item of circumstantial evidence.

I also agree with Mullighan J that it was necessary for more detailed directions to be given than were given relating to the identification of the clothing taken from the appellant.

In short, as I understand his reasons, I differ from Mullighan J in relation to the admissibility of the evidence of what happened at the identification parade. In relation to the adequacy of the directions given, I agree generally with Mullighan J.

On the other matters dealt with by Mullighan J, I am in agreement.

PERRY J I concurred in the decision of the Court to set aside the appellant's conviction and order a re-trial.

Like Doyle CJ, I accept most of the reasons given by Mullighan J, but I differ from Mullighan J on the question of the question of the admissibility of the evidence as to what happened at the identification parade.

As has been pointed out by the other members of the Court, the legal basis upon which evidence given either by the identifying witness or by other witnesses, of an out-of-court identification, is not clearly established by authority.

However, I agree with Doyle CJ that the evidence of Constable Nickolai and the other evidence as to the circumstances in which the identification parade was conducted was admissible. The decision of this Court in Murphy[1]

28 In this case, counsel for the Crown led from the victim, Andrew, during the course of his examination-in-chief, a description of the person who robbed him, and as well, a description of the robber's clothing and the circumstance that he was accompanied by a small dog. That part of Andrew's evidence was properly treated as circumstantial evidence, to be evaluated in the context of the evidence as a whole.

29 But the failure by counsel for the Crown to ask Andrew who "number 10" was, during the course of his evidence in chief, is, to say the least, surprising. There is no apparent reason why he was not asked questions directed towards eliciting whether he believed that number 10 was the person who had robbed him.

30 If he had been asked about that, and had confirmed his belief that the person he had singled out during the course of the identification parade was the person who had robbed him, evidence from others as to what Andrew said and did during the identification parade would nonetheless be admissible. The preferable view is that in such circumstances its admissibility should be treated as an exception to the rule against the tender of prior consistent statements.

31 The exception is justifiable on the footing that all available evidence as to what occurred during the course of the identification parade, to the extent that it is capable of throwing light on the quality and reliability of the out of court identification, ought to be admitted: see Sutton[2] per King CJ (with whom Cox and Matheson JJ concurred):[3]

"... it is necessary for the jury or other tribunal of fact to assess the quality of the out of court identification in order to determine its reliability. It is therefore necessary for the jury or other tribunal of fact to know the circumstances surrounding the identification in order to assess the genuineness of the identification and the confidence with which it is made, and both those factors are important in assessing its reliability."

32. I add that so-called evidence of identification can take a variety of forms.

33. At one end of the scale, there may be evidence of a witness confirming his or her recognition of someone previously well known to them. Even in such circumstances as that, there is always a possibility of mistake, and appropriate warnings are still necessary.

34. At the other end of the scale are cases where a witness is unable positively to identify the person concerned, but is able to say that certain features about the person concerned and the accused are similar. Commonly, evidence of that kind is not dealt with as evidence of "identification", but rather as an item of circumstantial evidence.

35. Then there is evidence of an identifying witness which amounts to evidence of recognition by that person of the subject as the perpetrator of the crime, being a person previously unknown to the witness.

36. It is always for the jury to determine whether in fact evidence of positive identification, as it is sometimes called, should be accepted as such. In that context, juries are not bound by the particular form of words used by the witness to describe his or her state of mind. So-called identification evidence, wherever the evidence may fall between the extremes to which I have referred, is, after all, only opinion evidence. The fact that an opinion is couched in dogmatic or unequivocal terms does not remove from the jury the right to come to the view that, despite the choice of words, the identifying witness's evidence cannot be regarded as amounting to a positive identification, or may be unreliable for some other reason.

37. Likewise, evidence of an out of court identification couched in less dogmatic terms may nonetheless be accepted as a positive identification, if, with the assistance of other evidence, such as in court evidence from the identifier, it is clearly and unambiguously what was meant to be conveyed. I do not understand anything which fell from the High Court in Pitkin[4]

to be contrary to that view. In that case, the words used were not so clear and unambiguous as to amount to positive identification, and the conviction was accordingly set aside, there being no other evidence which could support it.

38 Furthermore, the identifying witness's evidence should not be compartmentalised, as between what he or she deposes to in court and the terms of the out of court identification. In determining whether there has been a positive identification, the jury must take account of the relevant in court evidence given by the identifier, together with the evidence of what transpired when the out of court identification is said to have been made. I see no reason in principle why any hesitation which the jury may entertain on the question whether there has been a positive out of court identification, may not be dispelled by evidence given in court which throws more light on the matter. But that observation is subject to the rider that the evaluation of the nature and reliability of the out of court identification may only proceed by reference to evidence confined to that topic. Unsatisfactory evidence of an act of identification cannot be turned into evidence of a positive identification by reference to circumstantial or other evidence unrelated to the act of identification.

39 I add that use of the word "identification", both in legal judgments expounding relevant principles and in summing up to the jury, can give rise to a degree of confusion or ambiguity.

40 If in summing up to the jury the trial judge chooses to use the expression "identification evidence", some explanation should ordinarily be given to the jury to the effect that the judge's use of that word is not to be regarded as pre-empting any decision by the jury as to whether or not the witness, however the evidence as to so-called identification might have been expressed, has in fact reliably identified the person concerned as the accused.

MULLIGHAN J The appellant was found guilty by verdict of the jury of robbery of a young boy aged 14 years whom I shall refer to as Andrew. He appealed against that conviction. He has not yet been sentenced. Following the completion of the hearing, we allowed the appeal, set aside the verdict of the jury and ordered a retrial. In accordance with our intimation at the time, I now give my reasons for that decision.

There was no issue at the trial that Andrew had been robbed by an Aboriginal man. The issue was whether that man was the appellant.

In order to appreciate the issues at the trial and raised on this appeal, it is necessary to mention in some detail the evidence before the jury.

At a little after 8.30 am on 19th March 1999, Andrew was walking to school alone at Port Augusta when an intoxicated young Aboriginal man approached him within a park known as Lions Park which is near Victoria Parade in Port Augusta South. The man was not known to Andrew. He was mumbling and Andrew could not understand what he was saying. He asked him what he had said and then proceeded to walk on. The man then grabbed him from behind by the shirt with his hand and swore at him. Andrew attempted to walk away. The man told him to give him $5. Andrew said he did not have that much money. The man repeated his demand and Andrew gave him $4 which was his lunch money and all the money in his possession. This amount was comprised of coins in the denominations of $2, $1, four 20 cent pieces and two ten cent pieces. According to Andrew, the man continued to hold him from the back and was staring at him from the front. The man continued to demand more money and raised his voice. When Andrew gave him the money, the man let him go and Andrew walked away. The man again approached him, pushed him and demanded more money. Andrew said that he had no other money. The man turned his back and Andrew ran away. The man chased him and was laughing. As Andrew ran, he crossed Victoria Parade and came into contact with two school friends, Tammy Wells and Christie Russell a few streets away near an Ampol Service Station. Pausing at this stage, it may be seen that Andrew saw the face of the man and heard his voice at close quarters and over a not insignificant period of time.

Andrew and the two girls then walked to school arriving about 10 minutes after they had met. Whilst there is no evidence directly on point, it appears that the time during which Andrew left the man and met the girls was very short. Once at the school, he spoke to a woman in the front office and she contacted the police. He estimated that by that time 15 minutes had elapsed since he left the man in the park.

According to Andrew, the man was very intoxicated. He said he was being weird and acting strange and was "really off his face". He could not walk or speak properly. He was "blubbering". Andrew described his physical appearance as having an Aboriginal-type complexion and as being taller than him. He said that he did not know his own height. He went on to say that the man "had a slim build", he wasn't big, he was middle". When asked about his hair, Andrew said that the man was not shiny bald. He had a \tiny little bit of hair" and the style of his hair was "a shaved style". The colour was brown. He did not have any facial hair. He said the man was wearing a black Adidas T-shirt with white and grey vertical stripes down the shirt. He was wearing Nike pants which buttoned up and were of a shiny material. They were not tracksuit pants. He said that the man had a light brown dog with him which was not on a lead. During the incident in the park, the dog was next to him. He could not say what type of dog it was, but it was small and had short hair.

Tammy Wells was aged 15 years at the time. She said that she first saw Andrew on this day when he was at Lions Park and she and Christie Russell were crossing a street. She said she saw him for a split second. She next saw him after she had crossed the street. He was running and yelling out to Christie Russell. She said that she saw a man near Andrew. The man was wearing black pants and a black top with a white stripe that she could see. He appeared to be Aboriginal. She said that she only saw him for a "split [second] look". She said she was sure he was wearing a baseball cap which was black. She did not see him at any other stage. She said that she did not see that the man had anything with him. She estimated the time between meeting Andrew and arriving at the school at about two minutes and not more than five minutes.

Christie Russell was aged 14 years. When she first saw Andrew, he was near Lions Park and he was running across a road. She said that a little later she saw an Aboriginal boy across the road a few metres behind him. He was walking away from Andrew, towards a Kentucky Fried Chicken shop which is nearby on Victoria Parade. She said that she saw the Aboriginal boy for about a split second. She estimated his age at about 16 or 17 years. She described him as having a "fairly average" build. He was wearing black pants which appeared to be baggy and a black T-shirt with some white and grey stripes down the side. She said that she thought he was wearing a black cap but she was not sure. She did not notice if he had anything with him.

At about 8.30 am on 19th March 1999, Mr McKenzie, who is an Aboriginal Police Aide, was on duty with Senior Constable Barry Light undertaking a general mobile patrol in Port Augusta. They received information and went to the same Kentucky Fried Chicken shop at about 8.40 am. They saw the appellant directly in front of the shop standing on the footpath and stopped the police car near him. They alighted and spoke to him. Whilst doing so, and after a few minutes, they received information over the radio about the robbery, including a description of the robber. They then arrested the appellant, and subsequently charged him, having suspected that he committed the robbery. They searched him and asked him to turn out his pockets but did not find any money on him. McKenzie said that the appellant was grossly intoxicated by liquor. He had a brown dog with him. According to McKenzie, there was no-one else in the vicinity except a young person aged about 10 to 12 years. There was no evidence of any search of the area where the police saw the appellant for the coins taken from Andrew or for a cap. Later at the police station, McKenzie had a conversation with the appellant at about 10.30 am during which the appellant asked why he was at the police station. He said he had done nothing and was just walking his dogs home. McKenzie said that the appellant was not wearing a cap.

Detective Senior Constable Husdell became aware of the robbery at about 12.30 pm and took over the investigation from McKenzie and Light. He saw the appellant in the cells at the police station and took his clothing, being a T-shirt and tracksuit pants. These items of clothing were retained by the police and photographed. Both the clothing and the photographs were admitted into evidence before the jury. The T-shirt is black with grey and white stripes down the sides and around the collar and sleeves. The grey stripe continues to the shoulders and also across the front at the level of the midriff. There is an Adidas logo and name on the left side of the T-shirt and two badges on the right front of the T-shirt at the midriff level. The pants are black with buttons on the outside of each leg. There is a Nike logo on the front of the left leg at the bottom.

Husdell questioned the appellant at the Port Augusta Police Station on 19th March 1999 commencing at 2.53 pm. The appellant said that he was aged 18 years. Arrangements were then made for an interpreter to be present. After being informed of his rights, he was asked further questions by Light with the assistance of an interpreter commencing at 3.25 pm. The allegation of the robbery was put to him which he denied, saying that the police had the wrong person. When asked where he was at 8.30 am on 19th March 1999, he said that he was with his girlfriend whom he had met the previous night. He said he had been to a party and was drinking. He slept overnight and was walking home when the police stopped him. In answer to questions, he said that he had been drinking excessively and had smoked some marijuana at the party the night before the robbery. He said he was really drunk. He was asked if he had been in the Lions Park at 8.30 am that morning of the robbery and he said, "I was just going past or something". When asked if he was in the vicinity of the park, he said he could not remember. He denied approaching any boy or speaking to anyone and said that he was just walking back home when the police spoke to him. He said that he had two dogs with him. Light then saw fit to ask him, "Can you explain to me why the offender in this matter is an identical description to you of [sic] wearing the same clothes that you're wearing?" The appellant answered, "There's a lot of blokes who wear them clothes like that". Again, he denied committing the robbery. He agreed to participate in an identification parade.

Before the trial Husdell showed the clothing taken from the appellant to Andrew, Christie Russell and Tammy Wells on 6th, 11th and 20th April 1999 respectively. I mention the significance of that matter shortly.

Sergeant Nickolai was requested by Husdell on 22nd March 1999 to conduct the identification parade. A room at the Port Augusta Police Station is designated for that purpose. There is an area for those in the parade to stand and another area which is the observation room. These rooms are separated by glass which permits an observer to see into the parade room from the observation room but not vice versa.

It is convenient at this stage to mention relevant parts of the relevant instructions of the South Australia Police relating to identification parades. The parade must be conducted fairly and under the direct supervision of an "NCO" or above and, where practicable, the supervisor shall be a person independent of the investigation. Nickolai qualified in these respects. As to the composition of the parade, there must be at least seven persons in addition to the suspect. There was compliance with this requirement. The supervisor must ensure that each person is similar in age, height, appearance and "status" and is not a police officer. McKenzie and Light were required to select men to participate in the parade. They were all Aboriginal men but there was not strict compliance with the spirit of this requirement in that three of the participants were known to Andrew. If one of them had been the robber, it is likely that Andrew would have mentioned that matter to the police at an earlier time. So, in effect, there were only four men included in the parade, excluding the appellant. The seven men were not similar in height. One was of similar height to the appellant but the others were much taller. The appellant had remained in custody since his arrest and after his clothing had been seized. He had been supplied with red and white striped shorts which were distinctive. Only one other participant in the line up wore shorts and he was a much taller man. In that respect, there was not compliance with the directions because the appearance of all of the participants was not similar.

The directions provide that the suspect is permitted to select and occupy any position in the parade. There were ten positions marked on the floor by numbers. The other seven men took up their positions and stood from numbers one to nine, with some occupying two positions, before the appellant was brought into the room. The position ten was left for him which he occupied. It is also required by the directions that the supervisor inform all participants in the parade before the viewing commences of the right of the suspect to occupy any place in the line and to change his position after each witness. The appellant was informed of this right to occupy any position he chose by Nickolai on a number of occasions before the identification parade.

I mention one other matter, although not mentioned in the directions. In Alexander v The Queen [1981] HCA 17; (1980-1981) 145 CLR 395, Gibbs CJ, when discussing identification parades, noted that it had become established practice for a witness to be asked to identify the accused at the earliest possible opportunity after the event: P399. The delay between the arrest of the appellant on the morning of 19th March and the holding of the parade at 2.17 pm on 22nd March 1999 was not explained in the evidence. There may, or may not, have been good reason. What is of importance is whether the delay had any effect upon Andrew's capacity to identify the robber. This matter was not explored in evidence.

During the identification parade, Nickolai recorded his conversations with the witnesses, Andrew, Tammy Wells and Christie Russell, with a hand-held tape recorder and the parade was recorded by a video camera. The video tape of the parade was admitted into evidence. The three witnesses were kept away from where the parade was conducted until required. Each of them was accompanied by a parent and an Aboriginal police aide was in the room with the participants in the parade. The witnesses separately viewed the men in the parade.

Nickolai spoke to the appellant before the parade and asked him if he objected to participating. He said that he did not reply.

According to Nickolai, as the appellant approached the door of the room in which the parade was held, he became apprehensive and hesitated. Nickolai again told him that he was not obliged to participate. A field officer from the Aboriginal Legal Rights Movement was present and he spoke to the appellant. Nickolai then asked the appellant if he wished to participate and the appellant said that he did not. He repeated that response. He was then taken to another room and spoke to the field officer. A little later, when asked, he told Nickolai that he would participate. He was taken to the room and again told that he could stand in any position. He took up the position on the end at number ten.

Andrew was then brought to the viewing room. Nickolai gave him appropriate instructions which included that he wanted him to examine the line of persons and see if he could see the person involved in the robbery. Andrew made his observations. His evidence at the trial is as follows:

"Q Before you went in, did anyone give you any hints or clues who to pick. A No. Q Did you indicate someone in there. A Yes. Q Which number, do you now remember. A Number 10.

It may be seen that he did not say in evidence the reason he had selected number ten. He was not asked if he picked out the person who had robbed him. I return to the evidence of Nickolai. The following occurred during Andrew's viewing of the parade:

Nickolai said: "If you see the person responsible for this incident, indicate that person clearly in a loud voice saying the number in front of him. Do you understand?" After a pause, Andrew said: "Yep, number ten."

Nickolai asked the participants in the parade to lift their heads so they would be clearly visible to the witnesses. Andrew then said, "He still reminds me number ten, reckon that is him". The following occurred:

Nickolai said: "Now are you sure of that - is number ten the person involved in this incident?" Andrew said: "I reckon it is him 'cause the rest don't look anything like him, yeah, I reckon it is him." Nickolai said: "Right, can you come with me thanks Andrew."

Nickolai then took Andrew away to another room and then returned and spoke to the appellant. He did not tell him what Andrew had said and done. He asked him if he wanted to change his position and the appellant did so. He moved to position number six and, it seems, then to position number five.

Tammy Wells and Christie Russell were brought to the observation room separately but neither identified the appellant. Tammy Wells said, "I can't recognise any of them". Nickolai asked her if she was sure she could not see the person responsible for the incident. She said, "I was far back so I couldn't really see him. He was just walking ahead." Nickolai took Tammy Wells away and then went into the parade room and spoke to the appellant. He told him that there would now be a third witness and he was asked if he wished to change his position. The appellant then went to position number three. Christie Russell was brought into the identification room. She had been given appropriate instructions. She looked at the parade and said, "Can't recognise any". She was taken away.

When Nickolai prepared his statement of evidence, he had said that after Andrew said, "Yep, number 10", he then said, "Looks like him". However, he said that when the prosecutor returned his statement to him, he could not be sure that the words "looks like him" had been spoken by Andrew. He then decided, after listening to the tape on different tape players, that he could make out the words, "Reckon that is him".

This was the evidence in the Crown case. The appellant did not give or call evidence.

I mention two matters concerning the exclusion of evidence or the withdrawal of evidence from the jury.

At the commencement of the trial, the appellant sought the exclusion of the evidence of Andrew, Tammy Wells and Christie Russell of their observations and opinions of the clothing which had been taken from the appellant and shown to them. When he was shown the clothing during his evidence, Andrew said that the top and pants which the robber was wearing was no different from the clothing of the appellant. Tammy Wells said, when shown the clothing, that the top garment of the appellant looked very similar to the top garment of the robber because it was black and also because of the white stripes. As to the pants, she said, "I thought they were baggy, and I thought they were like black jeans, if you know what I mean, but once I seen them they looked more alike". When shown the clothing, Christie Russell said that it was identical to what the robber was wearing.

At the end of the evidence of Nickolai, the appellant's counsel at the trial, Mr Lang, intimated that he would ask the learned trial Judge to withdraw from the jury the evidence of the identification parade and the "identification" of the appellant by Andrew on the basis of unfairness. At least, that is my interpretation of what occurred. The grounds for this proposed request were that the appellant was wearing distinctive clothing, namely the shorts, he was positioned at the end of the line up when seen by Andrew and that three of the participants were known to him. By this time, the jury had heard the evidence and seen the video of the parade. The learned trial Judge rejected the submission and left this evidence to the jury.

It may be seen that there was a body of circumstantial evidence in the case against the appellant as well as the evidence of Andrew selecting him at the identification parade. A good deal of the argument at this appeal focused on this latter body of evidence and the directions of the learned trial Judge about it. It is convenient to deal first with the grounds of appeal which relate to it and to the directions given by the learned trial Judge.

The learned trial Judge began his directions on this topic as follows:

"In this case the prosecution relies upon the direct evidence of Andrew Rogers and some circumstantial or indirect evidence which the prosecution says points to the accused as the person who committed the robbery. Before I say anything about the evidence, I should say something about the nature of the evidence. Firstly, in relation to the identification evidence, I direct you that you should approach the evidence of identification with great caution. Experience over many years in the courts has shown that miscarriages of justice have occurred as a result of witnesses making a mistake and a mistaken identification. Witnesses can be mistaken, even though they are quite sure of their identification. Of course, in this case Andrew, when he was asked to identify the person in the line-up, didn't give an absolute identification. Although he went fairly close to that. He said 'It looks like him. It looks like him' when he was asked 'Are you sure?' But witnesses can be mistaken, even though they are quite sure. A mistaken witness, who is sure of his or her identification, can be a very convincing witness, and therein lies considerable danger. In the area of identification, experience has told us that juries must be very cautious when considering the evidence of witnesses giving an identification. One of the reasons for this is that the ability to form and retain an accurate impression of persons involved in conduct, including their physical appearance and features, their dress and their distinctive features, may be affected by many factors, including the frailty of human observation and memory, and tendency for one's mind to play tricks."

The learned trial Judge went on to tell the jury that they had heard the submissions of Mr Lang that once witnesses have been informed by the police that the culprit has been caught, the witness believes they expect to see the real culprit in the identification parade. He reminded them of the common experience, which they no doubt shared, at being mistaken believing a stranger is someone known to them. Again, he stressed the need to exercise caution. He then said:

"Whilst I am required to alert you to the dangers attendant upon acting on identification evidence, I must also say to you that if after careful examination of the evidence of identification, and of the witnesses, and if after considering the other evidence in the case, paying due heed to the warning which I have given you, you are satisfied beyond reasonable doubt about the correctness of the identification of the accused as the offender, then you are entitled to act upon the evidence of identification and you are entitled to return a verdict of guilty. In approaching your task, you should examine carefully the circumstances in which the identification was made, how long did the witness have the person under observation, at what distance, in what light, was the observation impeded in any way, was there anything distinctive about the person identified and the circumstances that surrounded the identification. In this case you have an identification parade which took place not long after the alleged offence occurred. Andrew Rogers identified the accused in that identification parade."

Again, the learned trial Judge mentioned that the jury must take into account matters mentioned by Mr Lang. He then drew their attention to three matters. First that there were ten places in the line up and only seven persons and the appellant. When selected by Andrew, he was standing on the end in the number ten position and a little removed from the others in the parade. The learned trial Judge said:

"You have got to ask yourselves whether subconsciously in that situation Andrew might have picked him out as being the person because in his subconscious, Andrew thought 'I am going to see the man who accosted me in this line-up' and he goes and looks through the window, and there's this one man a little bit apart from the others, and that leads him to the position where he identifies him, quite innocently, but mistakenly."

The second matter is that he reminded the jury that the appellant was dressed a little differently from the majority of the other men. He said to the jury that it might play on the subconscious of Andrew. The third matter was that he reminded the jury that Andrew knew three of the men by sight who the jury might think should be eliminated. He said, "... so he was really identifying one out of five, not one out of eight. How does that affect the percentages".

The learned Judge then directed the jury that upon putting all those matters together, they had to ask themselves how much weight they were prepared to place on the identification parade. He then reminded the jury of what Nickolai said to Andrew and what Andrew had said at the identification parade, which has been mentioned. He went on to say that Nickolai was sufficiently concerned about the position of the appellant in the identification parade, that he moved him for the observation by the two girls. He then said:

"Of course, you might not be surprised that the girls didn't identify the man. After all, they had a glimpse of him from some distance away, and one might have expected them to have been in a position where they really couldn't identify him so, ladies and gentlemen, with the identification evidence, you should bear the caution and the warning I have given you in mind, you should bear what I have said about the identification parade in mind. You should bear in mind exactly the way in which Andrew identified the person. But bearing all those matters in mind, then consider Andrew's evidence and ask yourselves how convincing and compelling do you find his evidence in relation to identification?"

However, in my view, there were defects in the summing up and in the so-called identification evidence.

First, it may be seen that the learned trial Judge referred to relevant evidence as "evidence of identification", "identification evidence", "the identification of the accused" and "the identification". I do not think there was any evidence of identification of the appellant as the robber. I have mentioned the evidence of Andrew. All he said in evidence was that he indicated number ten. He was not asked why he chose that person or who that person was. He did not give any evidence to link that person to the robbery. Whatever is the effect of the evidence of Nickolai as to what happened at the identification parade which is discussed shortly, I am inclined to the view that this evidence was not admissible to prove that Andrew identified the appellant as the robber. It is his evidence in the witness box which is the evidence for the jury to consider and I do not think the evidence of Nickolai and the tape recordings could not make good this deficiency. The statements made by Andrew to Nickolai out of court at the identification parade are not evidence providing that link. This evidence is capable of proving who Andrew selected but not that the person was the robber. For example, if Andrew gave evidence that he did identify the robber by pointing out a particular person but could not remember whom he had selected by the time he gave evidence, that matter could be proved by other evidence. Where a witness gives evidence, it is what he or she says in the witness box about any identification which is the evidence the jury is to consider. As a matter of principle, any deficiency cannot be made up by evidence of out of court statements, however reliably proved.

I refer to the observation of Lord Moulton in The King v Christie [1914] AC 545 when discussing evidence of other than the identification to prove an out of court identification. He said at p558:

"Speaking for myself, I have great difficulty in seeing how this evidence is admissible on the ground that it is part of the evidence of identification. To prove identification of the prisoner by a person, who is, I shall assume, an adult, it is necessary to call that person as a witness. Identification is an act of the mind, and the primary evidence of what was passing in the mind of a man is his own testimony, where it can be obtained. It would be very dangerous to allow evidence to be given of a man's words and actions, in order to shew by this extrinsic evidence that he identified the prisoner, if he was capable of being called as a witness and was not called to prove by direct evidence that he had thus identified him. Such a mode of proving identification would, in my opinion, be to use secondary evidence where primary evidence was obtainable, and this is contrary to the spirit of the English rules of evidence."

However, the authorities are conflicting. The view of Lord Moulton in Christie was also accepted by Viscount Haldane LC at p551 and by Lord Reading at p563 et seq. It was also accepted in a number of subsequent cases: see Sparks v The Queen [1964] AC 964, Alexander per Gibbs CJ and Murphy J, The Queen v Manh (1983) 33 SASR 563 per Mitchell ACJ and Zelling J, R v Callings & Ors [1976] 2 NZLR 104 (see p114) and R v Birkby [1993] NZCA 188; [1994] 2 NZLR 38. The contrary view was taken in Alexander by Mason J, with whom Aitkin J agreed, R v Barbaro & Ors (1993) 32 NSWLR 619 and by this Court in Murphy v The Queen [1994] SASC 4674; (1994) 62 SASR 121.

With respect to those who take a different view, I am inclined to the approach in Christie. As identification is an act of the mind, only the identifier can testify to the identification. Such an approach accords with fairness as the only way of testing such crucial evidence is if the identifier gives the evidence. I am not addressing the circumstance when the identifier is unable to give evidence. When the identifier is able to give evidence, justice demands that he or she do so and that secondary evidence not be admitted to prove the fact of identification.

However, it is unnecessary to express a concluded view about the matter and to analyse the decisions and to attempt to resolve the conflict in the cases, as it is clear in the present case, that even if the evidence of Nickolai was admissible to prove the selection of the appellant by Andrew for all purposes, that evidence could not amount to a positive identification of the appellant as the robber. Indeed, I doubt that it could amount to much at all.

Not only did Andrew not identify the appellant as the robber in the witness box, but at the identification parade, accepting for present purposes that the evidence of Nickolai is admissible, the words of Andrew, "I reckon it is him 'cause the rest don't look anything like him" appear to tell the story. At the least, it is a reasonable possibility that because Andrew had been told of the arrest of the robber and had been shown the clothing, he assumed that the robber was in the parade and because none of the others looked like the robber, the appellant was selected because he had a closer resemblance to the robber than the others. Such a reason for selecting the appellant is simply no identification at all. It may perhaps be inferred from what Andrew said that the appellant was similar to the robber because, if he was not, Andrew would probably have not selected him.

At best, for the prosecution, this evidence could only be regarded as a piece of circumstantial evidence and, in my view, not of much value to be considered along with the other circumstantial evidence in the case pointing towards the appellant being the robber. Although the learned trial Judge did say to the jury at an early stage of his directions on this topic that Andrew did not give an absolute identification, he immediately qualified that observation by saying that "he went fairly close to that". As can be seen, the learned trial Judge did not accurately state the evidence when he said that Andrew had said, "It looks like him. It looks like him". In my view, those observations of the learned trial Judge mistake the evidence and its true effect and were likely to mislead the jury. At best for the prosecution, Andrew may have been saying that the appellant could be the robber because none of the other participants in the identification parade resembled the robber. The observations of the High Court in Pitkin v The Queen [1995] HCA 30; (1995) 69 ALJR 612 are pertinent. The Court said, in relation to photographic identification, that there may be subconscious pressure upon the witness to pick out any photograph of a suspect who looks like the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender: see p615. A little later, the Court went on to say at p615:

"In the context of the above danger of prejudice to an accused in prosecution evidence of identification by a witness's earlier selection of a photograph or photographs, ordinary considerations of fairness dictate that any such evidence be subjected to careful scrutiny before it is accepted as constituting evidence of positive identification. If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification. All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt."

Of course Andrew was not asked for any explanation or elucidation either in the witness box, which is the appropriate occasion, or by Nickolai who, in my view, behaved appropriately by not questioning Andrew. So, even if the evidence of Nickolai and the tape recordings of what happened at the identification parade is admissible, it is not, in itself, capable of proving the guilt of the appellant. What he said is, at the very least, "consistent with an absence of positive identification". As I have said, it may, at best, be regarded as a piece of circumstantial evidence.

So, it must be accepted that the learned trial Judge erred in referring to the evidence as "identification" evidence and the like. I have considered the possibility that in using such expressions, the learned trial Judge was using a shorthand expression to describe the body of evidence relating to what happened at the identification parade. Upon reflection, I do not think that is so, but in any event, the directions were inaccurate and misleading.

Furthermore, if the evidence of Nickolai and the tape recordings are to be regarded as evidence of identification, the learned trial Judge was obliged to give directions in accordance with Domican v The Queen (1991-1992) 173 CLR 555. The majority, being all members of the Court except Brennan J, said in a joint judgment at pp561-562:

"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 convicting on such evidence where its reliability is disputed (Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534 at p551; Reg v Turnbull [1977] QB 224 at p228; Reg v Burchielli [1981] VicRp 61; [1981] VR 611 at pp616-619; Reg v Bartels (1986) 44 SASR 260 at pp270-271). The terms of the warning need not follow any particular formula (Reg v De-Cressac (1985) 1 NSWLR 381 at p384; Reg v Finn (1988) 34 ACrimR 425 at pp435-436). But it must be cogent and effective (Reg v Dickson [1983] VicRp 19; [1983] 1 VR 227 at p230; Reid (Junior) v The Queen [1990] 1 AC 363 at p380). It must be appropriate to the circumstances of the case (Reg v Aziz [1982] 2 NSWLR 322 at p328; Reg v Allen (1984) 16 ACrimR 441 at pp444-445). 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' (Smith v The Queen (1990) 64 ALJR 588 at p588). A warning in general terms is insufficient (Kelleher v The Queen (1974) 131 CLR at p551). The attention of the jury 'should be drawn to any weaknesses in the identification evidence' (Kelleher v The Queen at p551). 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 (Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 at pp182-183. 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."

As has been seen, the learned Trial Judge did direct the jury by giving a general warning about identification evidence in appropriate terms and the reason for the need for caution. He directed them as to specific matters but, in my view, he did not direct them as to all of the matters which might reasonably be regarded as undermining the reliability of the so-called identification evidence. I mention the following matters. It appears from the video recording that the room in which the identification parade was conducted was not particularly well lit. The video recording does not permit observation of all of the facial features of some of the men, including the appellant. The only evidence about the lighting conditions given by Nickolai:

"Q At times it was a bit difficult to see clearly all of the people in the line-up. Was there some difficulty in videoing that part. A Yes. What happens, to get a clear view of people in the identification parade room, the light has to be off in the observation room, so it makes the filming of the actual parade fairly difficult. Q Because it has to occur through the glass window. A It has to go through glass. Plus there is also pillars in the glass window."

In the absence of other evidence, the video recording may be accepted as the evidence of what Andrew could see. As has been mentioned, the appellant has very dark skin. The video does not permit a clear view of all of his features.

The next matter is that all of the men, except one, were much taller than the appellant and that man was of a stockier build. The lack of similarity between the appellant and the other men may have drawn attention to the appellant. Indeed, Andrew's last answer to Nickolai suggests that it did. The attack upon Andrew was a frightening and unexpected experience. Whilst, as has been mentioned, it appears that Andrew saw him and, in particular, his face at close quarters, the jury should have been directed to consider whether his fear and emotional state could compromise clear recollection of the identifying features of the robber. On the other hand, Andrew did see the face of the robber at close quarters and for a not insignificant period of time and yet could not make a positive identification a few days later. That is a matter which should have been brought to the jury's attention by the learned trial Judge. Furthermore, there are the differences in the description of the clothing of the robber by Andrew and the two girls, whether he had a dog or two dogs and whether he was wearing a cap. They are matters which are relevant as to whether the appellant was the robber and as to the reliability of Andrew's so-called identification of the appellant.

Another matter is whether a white, apparently Caucasian, boy of the age of 14 years, might have difficulty in distinguishing one aboriginal man from another in the circumstances. Of course, in many cases no such difficulty would exist but where aborigines are of similar colour, build and age, such a difficulty may be very real. I think that is a matter which should have been drawn to the attention of the jury: see Manh at p573.

Another complaint about the summing up is that the learned trial Judge did not give the authority of his office to all matters which might indicate weakness of the "identification". It is true that counsel for the accused did mention some matters in his address to the jury which were not mentioned by the learned trial Judge, but they were not matters of great significance. The important matters were given the authority of the learned trial Judge in the summing up.

The directions regarding the absence of identification of the appellant by Tammy Wells and Christie Russell were appropriate. Their evidence does not suggest that they saw enough of the robber to either identify the appellant or exclude him. I do not think there is anything in the point sought to be made that the change of position by the appellant in the identification parade may be a reason why they did not identify him because he was not isolated at one end of the line. The most sensible conclusion from their evidence is that they saw the robber for only a split second and from some considerable distance. However, they were matters for the jury and the learned trial Judge should have drawn attention to the possibility that they may not have identified the appellant because he was not the robber. If the evidence is to be regarded as identification evidence, I think the learned trial Judge erred in not giving all of the directions mandated in Domican.

Later in their joint judgment in Domican, the majority of the Court said at p565:

"As the learned Acting Chief Justice pointed out, the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case (Reg v Domican (No 3) (1990) 46 ACrimR at 446; Reg v Dickson [1983] 1 VR at p230; Reg v Allen (1984) 16 ACrimR at pp444-445). 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 (Reg v Bartels (1986) 44 SASR at pp270-271; cf Reg v Goode [1970] SASR 69 at p77). The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. 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 (Reg v Gaunt [1964] NSWR 864 at p867)."

Apart from the other errors which have been identified, the learned Trial Judge did not direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. After giving his directions on identification, went on to say that there was not only "the identification". He mentioned the description of the clothing of the robber and the clothing of the appellant which he was wearing when he was apprehended soon after. Pausing there, he did not give any direction about the identification of the clothes. In R v Lowe [1997] NSWSC 160; (1997) 98 ACrimR 300, Hunt CJ at CL, with whom the other members of the Court agreed on this point, said that there was no distinction in principle between visual, voice and object identification in that appropriate warnings and directions must be given to the jury in accordance with the observations in Domican. He expressed the view where clothing or any other inanimate object is the subject of identification evidence, directions applicable to the case must be given: see p317. In R v Theos (1996) 89 ACrimR 486, the Court of Appeal in Victoria adopted the same approach with respect to the identification of a shotgun. In the present case, as has been seen, the clothing of the appellant was distinctive and was shown to the three witnesses before the trial. Andrew said in evidence that Husdell showed him the clothes before he went to the identification parade and told him that the reason for doing so was for him to "memorise", which he explained meant "remember". This is a curious incident. Husdell's evidence was that he showed the clothing to Andrew on 7th April 1999 which is well after the identification parade. He was not asked why he did so. If the evidence of Andrew is to be accepted, Husdell's reason for showing the clothing to Andrew may have been so that he could identify it in court as the clothing of the robber. As has been mentioned, he also showed the clothing to Tammy Wells and Christie Russell. Although there is no evidence as to what was said on those occasions, it is to be presumed that they would have been told that it was the clothing of the person arrested for the robbery.

As has been mentioned, when the three witnesses gave evidence, they, in effect, identified the clothing as that worn by the robber. The jury had heard the evidence that the clothing had been worn by the appellant on the day of the robbery. No directions were given about that identification. They were not asked to consider the displacement concept mentioned by Stephen J in Alexander in the context of the significance of seeing a photograph in the identification process. In my view, the showing of the clothing could have had the same consequence. The evidence establishes that Andrew's description of the clothes became more extensive later than when he first described the robber. Tammy Wells' description of the top was that it had white stripes. Her evidence, when shown the pants, is indicative of the possible problem:

"Q Looking at the tracksuit pants, how do those compare to the pants that you saw the person wearing that day. A I thought they were baggy, and I thought they were like black jeans, if you know what I mean, but once I seen them, they looked more alike." [my emphasis]

The evidence does not reveal what she meant in that answer, but it is likely that she was referring to her recollection being affected by having been shown the pants by Husdell. Christie Russell initially said to the police that the top worn by the robber had white stripes, but she said in evidence that when she was shown the clothing by Husdell, she noticed the grey stripes.

In my view, the learned Trial Judge erred in not giving specific directions about these matters. In the circumstances, this evidence of identification of the clothes was of little value and the jury should have been directed accordingly. It was very damaging evidence because the jury knew that the clothing belonged to the appellant and that it was taken from him on the morning of the robbery. The only direction of the learned trial Judge as to the clothing was:

"But in this case you don't only have identification. Ladies and gentlemen, because in this case there is some other evidence other than the identification by Andrew. You have the description by Andrew of the clothing that his assailant was wearing; you have the evidence of the police as to the clothing that the accused was wearing when he was picked up shortly after the incident. That is what is called indirect evidence or circumstantial evidence. ..... Then you have the evidence of Andrew, of the description he gives of the person who was his assailant. All right, there may be many people who fit that kind of description, but he described to you an Aboriginal person with very short cropped hair, wearing black button up tracksuit pants and a black top with grey and white stripes and with a dog."

For all of those reasons, I do not think the verdict can stand.

In view of the conclusions which I have reached about the defects in the summing up as to this evidence, it is not strictly necessary to decide whether the evidence of the identification parade should have been withdrawn from the jury. I have grave doubts as to whether the identification parade was an effective parade at all due to the lack of similarity between most of the participants and the appellant and because three of them were known to Andrew. Furthermore, it appears that the lighting conditions were inadequate.

The learned trial Judge did not have the opportunity to consider the matter at the appropriate time which was before the trial commenced or at the latest, before the evidence was given. Upon a re-trial, the trial Judge will have to consider whether to exclude the evidence in the exercise of discretion and must take all relevant matters into account, including the respects in which the circumstances of the parade did not, in practical terms, comply with the relevant instructions of the South Australia Police which have earlier been mentioned.

The learned trial Judge then proceeded to mention items of circumstantial evidence which, he said, could be considered independently of the "identification" evidence. I do not think it is necessary for present purposes to recount each item of circumstantial evidence. They are obvious enough from the evidence of each of the witnesses which I have summarised.

The first complaint is that the learned trial Judge did not give adequate directions as to the reasoning process for circumstantial evidence, that is that the jury could not draw the inference of guilt from the circumstantial evidence if there was any reasonable hypothesis consistent with his innocence: Peacock v The King [1911] HCA 66; (1912) 13 CLR 619. What the learned trial Judge said was:

"You add up the items that you are satisfied exist, put them all together and ask yourselves are you satisfied beyond reasonable doubt. If you think there's a possibility, a reasonable possibility, that there could be a mistake here, or it's reasonably possible that there was someone else involved, then, of course, the accused is entitled to the benefit of the doubt and you would acquit him."

In the circumstances, there could only be one hypothesis consistent with innocence, namely that someone other than the appellant could be the robber. The direction makes that plain and I think the jury would have clearly understood that when considering the circumstantial evidence and deciding what inferences to draw from it, the inference that the appellant was the robber could not be drawn unless the possibility that he was not the robber could be excluded beyond reasonable doubt.

The second complaint is that the learned trial Judge misdirected the jury when relating the circumstantial evidence to the so-called evidence of identification. Having introduced the topic of circumstantial evidence and mentioned the description of the robber and his clothing and the nature of the appellant's clothing, but before giving specific direction about circumstantial evidence, he said:

"So you have got to ask yourselves how far will the long arm of coincidence go? Can you be satisfied beyond reasonable doubt on that evidence, putting aside the identification evidence, then bring the identification evidence back into it and ask yourselves how much you are prepared to rely on that."

I think this direction is objectionable because it may have led the jury to reason that even if, upon considering the evidence of Andrew and the identification parade alone, they were not satisfied that Andrew had identified the appellant as the robber, as, in my view, must be the case, they could use the circumstantial evidence to see if it enabled them to decide that Andrew was selecting the robber at the identification parade. Such an approach would be contrary to principle: see Domican and R v Wilson [1999] SASC 377. Assuming there is evidence of identification fit to be considered by the jury, the correct approach is for the jury to reach a conclusion about that evidence without considering the other evidence in the case: see Domican at p565. However, if the evidence is less than a positive identification, such as where the witness says the accused "looks like" or "is similar to" the offender, that evidence may be used as circumstantial evidence but not as evidence of identification: Murphy v The Queen.

104. The next ground of appeal which I mention specifically is that the learned trial Judge erred in not finding that there was no case for the appellant to answer. This ground may be rejected shortly. In my view, there was ample evidence at the conclusion of the Crown case, even if the so-called identification evidence had been withdrawn from the jury, upon which the appellant could be found guilty. It was for the jury to say what they made of that evidence.

105. As, in my view, the verdict cannot stand and must be set aside, it is unnecessary to consider the ground of appeal that the verdict is unsafe and unsatisfactory.

106. It remains to consider whether there should be a re-trial. It is for this reason that I have summarised the evidence in the prosecution case in some detail. It may readily be seen that even without the evidence of Andrew selecting the appellant at the identification parade, there is a body of circumstantial evidence upon which the jury could conclude beyond reasonable doubt that the appellant was the robber. To make good this view, it is necessary to mention some matters. There is the description of the robber by Andrew and the two girls, his clothes, hair, state of intoxication, approximate age, indication of height by Andrew and that he is Aboriginal. When that description is compared with the appellant, obvious similarities exist. It is said that the robber had a dog. The appellant was in the vicinity and had at least one dog. He was grossly intoxicated. He was outside the Kentucky Fried Chicken Shop shortly after the robbery.

107. The robber was seen by Christie Russell to be walking in the direction of that shop. The appellant was seen by the police shortly after the robbery. It appears that the police did not see any other Aboriginal men in that vicinity at the time.

108. Dissimilarities in description of a person and events by eye witnesses is understandable and common but on the other hand, the appellant was not wearing a cap when seen by the police and they did not find any money on him shortly after the robbery. There were dissimilarities in the various descriptions of the robber by the witnesses. The accused was not positively identified by any of the witnesses.

109. These are all matters for consideration by a jury. It cannot be said that the Crown case is weak and consequently I thought that there should be a re-trial. For these reasons, I concluded that the appeal should be allowed and the orders made.

[1994] SASC 4674; (1994) 62 SASR 121.

[2] (1990) 159 LSJS 96.

[4] [1995] HCA 30; (1995) 69 ALJR 612.