R v WILSON No. SCCRM-99-118 Judgment No. S377 [1999] SASC 377

MILLHOUSE J. I agree, for the reasons given by our brother Duggan, that the appeal succeeds, the conviction should be set aside and that there should be a new trial.

DUGGAN J. The appellant was found guilty by verdict of a jury of the offence of armed robbery. He has appealed against the conviction on grounds which relate to the summing-up.

The alleged offence took place at about midnight on 6 September 1998 in a video store situated at Modbury. Two employees, Fiona Lovering and Lisa Frederick were inside the store when a man carrying a long barrelled gun entered the premises and asked Mrs Lovering to hand over the money. Miss Frederick was at the rear of the store at the time and when the man heard her moving about he directed Mrs Lovering to call out to her. Upon being called Miss Frederick went to where the man was standing.

The man then noticed a security camera and he asked where the tape was kept. The three then moved to an office at the rear of the store where, according to her evidence, Mrs Lovering handed over the tape. In the meantime he directed Miss Frederick to lie on the floor. The man then demanded that Mrs Lovering open the safe. She did so and the man took two bags containing money from the safe. He directed that Mrs Lovering also lie on the floor. The man then left the shop. According to Mrs Lovering he was there for approximately five minutes.

Mrs Lovering's husband was sitting in a vehicle parked outside while he was waiting for his wife. He saw the man inside the store and started to take particular notice of him when he saw the man walk behind the counter into an area reserved for staff. He said the man then walked outside and down the street before disappearing. He said he did not see the man carrying anything but he was walking in an unusual way as though he had a stiff leg. The man was not wearing anything over his face at any time during the incident.

Two days after the incident police officers spoke to the appellant in relation to another matter. They searched a house at Northfield at which he had recently stayed and located a single barrel shotgun and a set of keys belonging to Mrs Lovering. The police thereupon requested the appellant to take part in an identification parade. He declined to do so. The police officers then prepared a photographic display which contained 12 photographs.

The photographs were shown to Mr and Mrs Lovering and Miss Frederick. Mrs Lovering identified the appellant from his photograph which was numbered seven. Mr Lovering and Miss Frederick wrongly identified photographs numbered two and eleven respectively.

The appellant gave evidence at the trial. He denied committing the offence. He said that on 6 September 1998 he drove from Whyalla to Adelaide with a friend, Zachary Gainsford. When they arrived in Adelaide at approximately 6.00 pm the appellant drove to the house of a friend, Belinda Anderson who lived at Northfield. These were the premises from which the police later recovered the gun and the keys. According to the appellant's version, Gainsford then borrowed the appellant's car and drove off.

According to the appellant, Gainsford rang him at about 6.00 pm and said that he had lost his way coming back from Modbury. Gainsford arrived at the house about 10 minutes later. The appellant said he then drove Gainsford to a house at Henley Beach. The appellant said that while they were in the car Gainsford offered to sell him a gun. The appellant looked at the gun which was in the car and agreed to buy it. He put it in the boot of the car. The appellant then returned to Ms Anderson's house.

The appellant said the gun was the one later taken by the police. He also said that the keys which were found in the house by the police were in the car when he drove it back to Ms Anderson's house. He said he put the keys into his pocket. According to the appellant, Gainsford wrote to him in December 1998 and told him he had committed a robbery while using the car on the Sunday evening.

The defence called Gainsford to give evidence. He said that he borrowed the appellant's car on the evening of Sunday 6 September 1998 and then drove to Modbury where he committed the robbery on the video store. He gave a detailed description of the events which, he said, took place during the robbery. His description of what he alleged occurred during the robbery was along lines similar to the versions given by the three eye witnesses called by the prosecution. He said he later sold the gun to the appellant and left the keys which he had taken from the video store in the vehicle. The witness said that at the time he was giving evidence he was serving a sentence of imprisonment for three years and seven months for larcenies and breaking and entering offences. There were some other larcenies and breaking and entering offences which had not yet been dealt with by the court.

Mrs Lovering did not know the appellant and so the trial judge was required to warn the jury about the dangers of convicting the appellant on her evidence. There are, of course, many cases which stress the importance of an adequate direction on this issue. The duty of the trial judge is succinctly stated in the joint judgment of six members of the High Court in Domican v The Queen (1992) 173 CLR 555 at 561. After commenting in general terms on the duty of a judge in performing the function of summing-up to the jury their Honours continued (561):

"Nevertheless, 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. 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. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. 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'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. 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. 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." (Case citations omitted)

In the earlier case of Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534 at 551 Gibbs J, in explaining the purpose of the warning, drew attention to the fact that "jurors may not appreciate as fully as a judge may do or even at all, the serious risk that always exists that evidence of that kind may be mistaken".

The use of photographic identification poses particular problems (Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 409; Domican (supra)) and those difficulties must be brought to the attention of the jury.

The principal direction on identification in the present case is contained in the following passage from the summing-up:

"Really, this case, as has been put to you, very much centres around the identification by Fiona of the accused. This is a general principle and it has been put to you, of course, that with any identification - it need not necessarily be a folder or a photo, simply can be an observation of a person in the street - any identification can be fraught with problems. So you've got to approach it with caution. As you know, even honest people - you may have yourself made a mistake when identifying someone and you then subsequently realise your mistake. So a witness can be mistaken, even though they may be sure of the identification, even though they may be fairly convinced. A witness can still make a mistake. These are general principles that you have to bear in mind. So there are many, no doubt many, factors that play in a person's mind when they make identification. You have heard this young lady asked a number of questions about her observations this night. Bear in mind it's easy to make a mistake when identifying a person. But when you look at this, of course, you must examine the evidence carefully and you must look at the nature of that person, the impression they formed on you about their ability to make such an identification, how was it done, what were the circumstances, you know, was it light, what was the period that they observed the person, can they observe any distinctive features of that person, or how long had elapsed between when they saw the person and when they, in effect, made their identification and all of these issues, no doubt, you'll concern yourself with. You may well have been involved in cases this month where identification has been the issue, and this type of warning is always sounded. So it's really for your to look carefully at the evidence of Fiona. Also, of course, with photo identification, that, in itself, of course, you can appreciate there are problems. It's a very proper way for police to go about their enquiries. To establish some identification, they can, as they have done here, produce a folder with many photographs. It's only a head shot. You've seen them; you'll see it, you'll examine it, it's a flat photograph. So you can see the area of concern, that I know that you will look at that and consider Fiona's evidence very carefully. I will come back to that in a minute. As I say, the evidence here really before you is Ms Lovering's. You may well regard her as a competent and very contemplative witness, and she outlined her views this night, seeing the man about 11.53 come in. This conversation with her, the manner of the open rifle, the manner he was holding it, then some movement from Lisa and calling her over, then, of course, the conversation concerning the security camera and then leaving and going out to the back, and money form the safe, and then returning, and he subsequently leaving the store."

The trial judge then went on to read extracts from the evidence of Mrs Lovering in so far as it related to the identification process which had been videoed.

The learned trial judge returned to the identification by Mrs Lovering at a later stage in his summing-up. He said:

"We are really here because of Mrs Lovering's identification, that positive identification of the accused, both on the night and subsequently, when she viewed the folder. You will recall then the Crown made criticism of both Mr Gainsford's evidence as well as the accused's and simply said for those matters that were outlined to you it is unreliable, and shouldn't be accepted and consequently, because of that, you should have no doubt that this was the man who held up the video store on that night. Now, of course, the defence has reminded you of all the problems of identification, as I have, and the problem particularly with the manner in which Fiona went about her identification of the accused. You have seen it. It took eight and a half minutes. She has explained to you her processes. Now, if that slow process, as defence have said, causes you any doubt, it simply means the Crown haven't proved their case. If you are uncertain, it also means that they haven't proved their case and, that being the case, the accused is entitled to be acquitted."

Shortly thereafter the case was adjourned to the following morning when, at the request of counsel, the trial judge returned to his comment that the jury might well regard Mrs Lovering as a "competent" witness. He said:

"I may have used the word 'competent' yesterday in describing her evidence. How I view the evidence really shouldn't have any effect on you, that's your job, that's not mine, that's for you to make that assessment. The defence has said 'Well, look, there are naturally inherent problems with identifying a person' and raised those issues with you. A person may genuinely believe they have identified a person, they can still be mistaken in that identification, particularly bearing in mind the time that it took for Mrs Lovering to view these photographs and if that raises a doubt or raises some uncertainty, then it simply means the Crown really haven't proved their case and that is the position."

These directions refer to a number of aspects frequently raised in directions to the jury on identification evidence. However, the directions were of a general nature and directed more to reminding the jury of something which is well known, namely, that people can be mistaken about identifications. To my mind the directions did not convey the important warning as to the dangers associated with identification in the context of criminal trials. It is important not to prescribe a particular form of words for a direction of this nature and it is not essential to draw the jury's attention to the fact that people have been wrongly convicted in the past. However it would have been desirable if the trial judge had referred to this aspect. (R v Bint and Butterworth (1996) 187 LSJS 201 at 207). Such a direction provides the jury with the benefit of the experience of the court in addition to every day knowledge about problems people have with identifying others. The consequence of that experience, namely the importance of exercising extreme care where a conviction turns on identification of a stranger was not brought home to the jury in this case. Furthermore the directions were not sufficiently related to the circumstances of the observations made by the identifying witness at the time of the incident.

There are other directions which must be considered before deciding whether the conviction is to be upheld or set aside. When the case resumed on the last day of the trial a question was raised as to whether there should be a direction on circumstantial evidence. The finding of the rifle and keys was discussed and counsel who represented the Director of Public Prosecutions at the trial commented that if the jury accepted Mrs Lovering's evidence as "positive identification" these other items of circumstantial evidence could be considered as further evidence supporting the prosecution case. However he submitted that, "if the jury is uncertain about the identification, then according to Murphy's case, it could become a strand of circumstantial evidence".

In my view the submission was misconceived. Presumably the prosecutor was referring to Murphy v The Queen [1994] SASC 4674; (1994) 62 SASR 121. In that case three persons, independently of each other, selected a slide of the accused in the course of a photographic identification. They did not positively identify the photograph as being a photograph of the man involved in the offence, but they said that there was a similarity. It was held that this evidence could be used as circumstantial evidence in the case, but not evidence of identification.

The logic of that decision is clear. However, it is quite another thing to say that if the jury do not accept the evidence of an eye witness who purports to be certain about the identification, the evidence can nevertheless be used in a reduced form akin to the type of evidence referred to in Murphy's case. The use of the evidence in that case depended upon an acceptance of the witness's evidence that the person in the photograph was similar to the suspect. In the present case, if the jury were uncertain about accepting Mrs Lovering's identification of the appellant, there would be no scope for using her evidence in a lesser form on the basis that she identified somebody with features similar to those of the appellant.

In the resumed summing-up the learned trial judge did not leave to the jury the alternative approach to Mrs Lovering's evidence suggested by the prosecutor. However he did direct the jury on circumstantial evidence. He said:

"This case really is, as I say, the evidence very much of Mrs Lovering and her identification of the accused both on that night and the month later when she looked at the folder and you've heard that at length and I've read out a passage of her evidence and of her identification to you. And you've heard the warnings about the nature of identification and the difficulties that ensue. The Crown has produced other evidence which can be, as (sic) been put to you, simply the identification of Miss Frederick and Mr Lovering, the evidence of the rifle being found a couple of days later and then the keys and that is what we call simply circumstantial evidence. As you know, there are two types of evidence which you've probably seen this month. One is what I would call very direct evidence, it's a person who gives evidence of what they saw, what they heard and their own observations and perceptions of what happened in regard to that crime, as, indeed, Mrs Lovering has. The other is indirect evidence. The Crown can look around and put other factual matters before you and that evidence is simply called other facts of other circumstances, circumstantial evidence. And that's, of course, an area where you must take great care because they are matters which are indirect. And so you can see the problems that can occur with that type of evidence. Often it's put it's like strands of a rope, there are these various pieces of circumstantial evidence which by themselves are pretty weak, but, if you put them all together, they become rather strong. Your task really is to look at each piece of evidence and assess it. Always remembering, of course, that circumstantial evidence may or may not result in proof beyond reasonable doubt. If it makes you suspicious, that really is not sufficient. But, as I say, it can be put forward. On the other hand, you see, if it's consistent with anything else, any other possibility, it means, of course, that it's of no weight at all. So simply you have to look at those, that other evidence very carefully."

In my respectful opinion this direction could only have confused the jury. The case did not call for a direction that a verdict of guilty could be arrived at by means of circumstantial evidence. It was a case dependent upon an identification of the appellant as the person involved supported by items of circumstantial evidence. The items of circumstantial evidence, taken by themselves, could not have supported a verdict of guilty of the offence.

However, the trial judge suggested in his directions that there was some way in which the case could have been proved by circumstantial evidence. In identifying those items of evidence he referred to "the identification of Miss Frederick and Mr Lovering", the evidence as to the rifle and the finding of the keys. The two witnesses referred to had not identified the appellant; they had wrongly selected photographs of other persons. The jury were not reminded of this during the summing-up. Despite what the learned trial judge said elsewhere in the summing-up, the effect of these directions was to suggest to the jury that there was another path to conviction which did not depend upon the acceptance of Mrs Lovering's evidence that the appellant was the offender.

Finally it is a matter of some concern that the evidence of Gainsford received only a few brief references in the summing-up. The trial judge reminded the jury that he said he held up the store. Later in the summing-up he referred to the fact that the Crown had criticised the evidence of Gainsford and the accused. Then at the conclusion of the summing-up the trial judge said:

"On the other hand, added to that, of course, is the further limb of Mr Gainsford saying he did it and the accused giving his evidence on oath that he was not the person that carried out the robbery. So if these matters cause some doubt or some uncertainty, clearly the Crown haven't proved its case."

The evidence of Gainsford was central to the appellant's case There were obvious criticisms to be made of it, but the topic was dealt with fleetingly in the learned judge's summing-up. The importance of this issue called for some discussion of the evidence and the arguments advanced in relation to it.

In my view the trial miscarried by reason of the combination of defects to which I have referred. (cf. The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 331). I would allow the appeal, set aside the conviction and order an new trial.

LANDER J. I agree for the reasons given by Duggan J that this appeal should be allowed and there be an order for a new trial.