R v ZAMMIT [1999] NSWCCA 65 | Case summary

1 WOOD CJ at CL: The appellant was convicted, at his trial in October 1997, of the murder of Toula Soravia. He was also convicted of armed robbery. He was sentenced to a minimum term of penal servitude for eighteen years, and to an additional term of penal servitude for six years in relation to the murder count; and to a concurrent fixed term of 10 years penal servitude for the offence of armed robbery. He has appealed against his conviction. An application for leave to appeal against the severity of the sentence was withdrawn. 2 The offences of which the appellant was convicted occurred on 26 April 1994 at Summer Hill. They arose out of the shooting of Mrs. Soravia, in the course of the robbery from her of the takings of the BP service station, of which her husband, Loui Soravia, was the proprietor. The Crown Case 3 It was the Crown case that before the shooting, one Steven Anas, a frequent visitor to the service station, discussed with a console operator, Hakki Souleyman, the money handling procedures, as well as the times when banking was done and the vehicles that were used to go to the bank. He also discussed with him the possibility of doing an armed robbery. 4 Some two or three weeks before the offences, Souleyman said that Anas showed him a small black pistol. Within a week or so of the offences, he said, Anas asked him how much money was kept in the till. Although Souleyman had been convicted of being an accessory before the fact to the armed robbery, he denied when giving evidence at the appellant's trial, that he had known that Anas was planning to rob the deceased, or that he had known or heard of the appellant before the offences. 5 It was the Crown case that Anas and the appellant were friends and that they each frequented the business premises known as Instint Window Tinting. A vehicle used in connection with that business was a white two-door Toyota Corolla, registered No. SDO 359. It was this vehicle, or a vehicle of a similar make and colour that various witnesses said was used as a get away car by the person who shot Mrs. Soravia. 6 The offences occurred between 11.00 and 11.30 am. after Mrs. Soravia and her son had left the service station in a motor vehicle with the takings of the business. Just as their vehicle pulled up outside the Westpac Bank in Lackey Street, a gunman, whom the Crown alleges was the appellant, leaned in through the passenger side window where the victim's son Alex Soravia, was sitting. After making threatening movements with a small black pistol and making demands for money, demands which the victim resisted, the gunman placed the pistol against her cheek and pulled the trigger. The weapon discharged, filling the car with smoke. Mrs. Soravia died from the resulting head wounds. The gunman seized the bag containing the takings and ran across a car park towards Smith Street. The Crown alleged that he was subsequently picked up by the driver of the white Toyota Corolla. 7 The appellant was arrested on 3 June 1994. He declined to participate in an ERISP or identification parade. He made no admissions as to his involvement in any offence, and nothing of an incriminatory nature was found upon a search of his premises. 8 The Crown case depended, almost entirely, on the evidence of two witnesses who identified the appellant as the person involved in the shooting. The first was Alex Soravia, the son of the victim, who was in the motor vehicle, and on his account about 10cms. from the gunman when the fatal shot was fired. The second was Eugene Benitez. He gave evidence of being almost hit by a two door white sedan near Smith Street. He yelled out be careful. The passenger, who seemed to be fiddling with something, looked at him and swore. 9 To these witnesses and another witness, James Roussos, I will return, since their evidence and the directions given concerning it, lie at the heart of this appeal. 10 It is first convenient to note briefly the other evidence called in the trial touching on the identity of the gunman, and on matters potentially capable of providing a link between the appellant and the offence. In this regard it may be noted that the Crown case was essentially a direct evidence case. It was not a case that relied, other than incidentally, on circumstances that may have connected the appellant with the killing. It was, accordingly, not a matter that called for a circumstantial case direction. None was sought or given at the trial, and no complaint was made on appeal as to the absence of any such direction. 11 The witnesses who gave evidence concerning the identification of the gunman, or of persons seen to be in the area of the bank on the day of the shooting (ie in Lackey, Smith, Short or Moonbie Streets, or in Hardie Avenue, or in the car park near the bank) other than the three witnesses already mentioned, were twenty-seven in number. Those witnesses fall into four categories: (a) Sightings before shooting 12 James Kratuik from his place of work in Lackey Street saw two men sitting on a bench, at about 10am, one of whom left and the other of whom walked up and down the street before walking slowly towards the railway station. He described this man as being between 20 to 29 years old, 170cm to 175cms tall with a thin build, olive complexion, a week's growth and dark brown curly hair. He was wearing dark sunglasses, with a string around his neck, a white T shirt with a black emblem, and black track pants. Mr. Kratuik assisted police in constructing a computer FACE image of this man. When, after the arrest of the appellant, he viewed the videotape compiled by police of photographs including one of the appellant, he was unable to make any positive identification. One of the three faces that he said was 'similar' was not that of the appellant. 13 Yvonne Pomano saw two young men sitting on a bench in the carpark across from the Westpac Bank at about 9.30am, whom she described as being in their twenties and Mediterranean in appearance. One had a beard and one was shorter than the other man. They were wearing white T shirts, one of which had a blue motif, and blue jeans. By the time that she heard screaming, at around 11.30 am, in Lackey Street, the two men had left from the position where she had earlier seen them. The computer FACE images which she had seen published in the Daily Telegraph newspaper differed from the men she had seen. 14 Azelda Townsend said that at about 11.25am. (a minute before the 000 call) she saw a Holden Commodore station wagon drive into Hardie Avenue from Smith Street, containing two males. The driver she described as between 25 and 35 years old, average height, olive complexion, Greek, Lebanese or Italian, black wavy hair to his collar, wearing black wrap around sunglasses and possibly a baseball cap. The passenger appeared shorter and younger, maybe between 18 to 30 years old. (b) Sightings at the time of the shooting 15 Lucas van-Engelen whose statement was read, said that he had seen a man go up to the vehicle of the deceased, and place his head and arms inside it. He saw him holding a gun in his right hand and heard him ask "where's the money, where's the money?". The woman began to scream. A short while later he heard the gun click. The man then ran into Hardie Avenue and across the carpark. The description of the man he gave was of a person 25 years old, 170 cm. tall, average build, brown coloured skin like a Mediterranean, and dark hair that was more black than brown. He was wearing a light grey top with a hood. 16 Jane Williams said after hearing a cross between a scream and a cry, she looked back and saw people struggling in a vehicle. She saw a man lean into the vehicle from the passenger's side, and then heard a noise like a car backfiring. That man then ran across the carpark waving his right arm in the air. She noticed someone commence to chase him. The first man she described as being around 20 to 25 years old, with a slim build and dark shoulder length wavy hair. He was wearing a loose fitting light coloured long sleeved shirt and sneakers. 17 Mark Keegan said that from the intersection of Hardie Avenue and Lackey Street, he heard a man demanding money from the driver's side of the deceased's vehicle. The man he described as being 25 years old, 5 feet eight inches tall, maybe shorter, Arabic or Lebanese in appearance, with dark hair. The man pulled a little gun from the front of his pants, and shot the deceased. The noise was very soft like a cap gun. The man then ran through the car park. He thought that he was wearing running shoes. He did not recognise anybody in the police videos. 18 Melanie Young, who was working in the newsagency opposite the Bank, heard screaming from outside the Bank. She saw a man leaning into the deceased's car and then heard a bang. She said that the man who had been leaning into the car across the carpark in the direction of Smith Street. He was of medium height, non Anglo-Saxon appearance, with dark medium length hair. He was wearing a pale shirt and dark coloured jeans. 19 Stephen Helper who was walking along Lackey Street, saw a man standing on the footpath beside the deceased's vehicle and reach in through the passenger side window. He heard a shot and saw smoke. The man grabbed a light coloured bag from the vehicle and ran across the carpark. He was chased by someone. The first man he described as being of medium build, Mediterranean appearance, stubble on his face, possibly a moustache, and wavy dark hair down to the collar at the most. He was wearing a cream/bland coloured shirt and light coloured pants. He thought the man had a weather beaten face. He did not identify any person from the videotapes; nor did he recognise a photograph of a man identified to him by police as the suspect. (c) Sightings immediately after the shooting 20 Frederick Barclay, whose statement was read, said that he was walking in Lackey Street, and heard a shot when he was about 50 metres from the bank. He saw a man pull away from the deceased's vehicle and run towards the carpark with another man chasing him. That man he described as being in his mid-twenties, five feet ten inches tall, and with a medium build and dark hair down to his neck. 21 Malcolm Young, who owned the newsagency, heard a scream and gunshot. He saw a man running through the carpark in Hardie Avenue towards Smith Street. He described this person as a male Caucasian, roughly 5 feet 10, with collar length dark hair. He thought him to be wearing a white shirt top and long dark pants. 22 Belinda Grinham, who was an employee of the newsagency, heard a scream and bang outside. She saw a man run from the deceased's car through the carpark. From behind, she said he looked to be around twenty-five years of age, to be of average build, and to be wearing a light coloured T shirt with dark pants. 23 Richard Towe, who was sitting in the park adjacent to the Westpac Bank, heard a loud bang and someone call for help. He saw a man run through the carpark in the direction of Smith Street, chased by some other men. He joined in the chase for a while but stopped when he heard that the man was carrying a gun. He described the man as being medium height, fair sort of build, of Mediterranean appearance, slightly darker complexion with a couple of days' facial growth, and short black collar length hair, which was a bit curly. He was wearing a white top and dark pants. He did not recognise anybody when shown the videotapes. He was reminded that when he made a statement to police he had said the man was wearing Reebok type running shoes. 24 Valerie Wagstaff, who was walking through the carpark saw a young man run in front of her. He was 176 cm tall, skinny, with light brown to dark complexion, sort of like a moustache and sort of facial hair, and collar length black wavy hair. He held a little bag in his right hand. 25 Patricia Sandas, who was also in the Westpac Bank, saw the back of a man running towards Smith Street. He was about 5 feet 8 inches with very thick longish black hair which was neither shoulder length or short. He was wearing a white top, dark trousers, and sneakers which could have been pink because they stood out. 26 Julie Passas, who was similarly in the Westpac bank heard screams from outside. She saw a young man run across the carpark towards Smith Street. He appeared to be chased by another young man and two older men. She did not see his face, but described him as being 5 feet 7 or 8 inches tall, with a normal build, and hair that reached the top of his collar. He was wearing a white top, black tracksuit pants and joggers, with iridescent pink soles. He had something black in his right hand, like a bag. 27 Sandra Ristway, who was in the Commonwealth Bank, also in Lackey Street, heard screaming. She saw a man run diagonally through the carpark from Lackey Street towards Smith Street. He was being chased by two other men, one young, the other older. She described the first man as possibly being Mediterranean, aboriginal, Filipino or South American, fine features, with dark skin and black wavy hair. He was wearing dark pants and something that looked like a tracksuit. 28 Lisa Urquhart heard a bang and some screaming while parking her car in the carpark off Lackey Street, and then saw a man run from the street through the carpark. He was described as having a slim build, with dark hair that was a bit long. He was slightly taller than her at 166 cms, was wearing a white shirt and dark trousers, and was carrying a calico bank bag. She was shown a computer FACE image and said that it "looked similar" to the man. 29 Paul Dyson, who was in premises in Smith Street, said that he saw a man run into that street from Hardie Avenue. He had dark skin, and was wearing longish dark shorts and running shoes with red soles. Another man was running behind him and they ran south into Moonbie Street. 30 Jon Yuen Lo, who was standing in front of his shop in Smith Street, heard the sound of people running. He saw a man run diagonally across that street into Short Street. He was followed by a light coloured four door car and another man. The second man stopped in the vicinity of the post office before turning back. The first man, he said, was 1.7 metres tall and of average build. The light coloured car followed him up Moonbie Street into Short Street. 31 Ricky Patman, who had parked outside the real estate office in Lackey Street, heard a bang and someone yelling out "stop him, he's got the money." He then saw a man running through the carpark near the Westpac bank. He was 6 feet tall, with darkish skin like an Islander, and dark black hair. He was wearing a white coloured sloppy Joe and dark pants. He had a small black object in his hand. Patman drove his red Holden Camira up Smith Street and then into Moonbie Street. There was another passenger in his car. He saw a white two door Toyota Corolla in this street, the passenger door of which was closing as it pulled away. He attempted to follow it, but his pursuit was terminated when a garbage truck reversed into his path. He later identified the Toyota SDO 359 as the vehicle that he had pursued. 32 Anne Hagar, who was about 30 metres from the Moombie/Short Street intersection, saw two men run from Moonbie Street into Short Street. They got into a pale coloured sedan which sped off towards Ashfield. One man was described as being of medium height and build, either Greek or Italian, and wearing casual clothes. She also saw a pursuing red vehicle, which almost certainly was that of Mr Patman, containing two occupants. 33 Janice Valenti saw several men running through the carpark in the direction of Smith Street. The first man she glimpsed from the side. She drove into Smith and Moonbie Street after him. She described him as being between 25 to 27 years of age, 5 feet 8 inches tall, with a slight build, unshaven facial hair, and collar length dark hair cut neatly around the face. He was wearing a pale grey hooded tracksuit type top and dark trousers. 34 Anthony Mimica who was parked in Lackey Street heard someone screaming and saw a green car rolling backwards a little. He saw a couple of men running from that vehicle across into the carpark. He drove down into Smith Street. He continued a little further until he lost sight of the first man. He saw an older type white car take off quickly from the wrong side of the road, leaving a deal of smoke that obscured the number plate. He saw a red Holden Camira engaged in pursuit of the white car. He also joined in the pursuit until there was an incident with a garbage truck. He described the man who had run from the deceased's vehicle as being 20 to 25 years old, with a slimmer build than his own, olive complexion, and dark hair which was as long as or a bit longer than his own. He was wearing a short sleeved top, long trousers, which may have been jeans, and runners. 35 Dale Formosa, who was driving a truck into Hardie Avenue from Smith Street, saw a man run in front of his truck. That man was being chased by two other men. He also saw a white four door sedan (which he thought might have been an older model Toyota) driving very quickly with the rear offside passenger door in the process of being closed. There were two people in the car. The man he had earlier seen was described as being of medium build, European, with a dark complexion, quite a few days' facial growth, a bony or undernourished face, a prominent jaw, shoulder length black hair which was neither really straight or really wavy. He was wearing a white T shirt and blue jeans and was holding two articles. 36 William Martin, who was driving a bus in Prospect Road Summer Hill, noticed an early model white Toyota sedan speeding erratically towards Canterbury Road. It swerved around the back of a garbage truck that had reversed out of a laneway. He saw two men in the front seat, and someone lying on the back seat. The car noticeably hit a speed hump; the back of the exhaust system was at that point seen to be hanging down. The number plate he said included the letters SOD, and the numeral 1. The driver he described as being 26 to 27 years old, medium to solid build, olive complexion, Mediterranean appearance with a black moustache, an unshaven face, hairy arms and black curly brushed black collar length hair. 37 David Wannacott and Dorothy Crisp each gave evidence of seeing a man running across the carpark after hearing a bang or screaming. The descriptions they gave were most probably those of James Roussos rather than the gunman. 38 Joan Hutchinson, although not a witness at the scene, said that while waiting for a train at Central Railway Station she overhead one man in a group of three men, who had alighted from an arriving train, say "I didn't expect her to fight back (or argue back) so I just shot her". She said that the men were each about 20 years old, between five feet ten inches and six feet tall, and were dressed in scruffy casual attire. The Crown called this witness in discharge of its obligation to call all persons who may have been able to provide information of possible relevance. It did not, however, rely upon the evidence as advancing its case. 39 The critical identification evidence came from the following three witnesses: 40 Alexander Soravia made his observation of the gunman after he leaned across him into the front section of his mother's vehicle. The entire incident he said lasted for about ten seconds, so that this may be taken to have been the extent of his observation. The gunman he described as being in his mid-twenties, thin build, Australian, with medium complexion and a three to four days' growth on his face, some acne, and collar length wavy hair. He was wearing a grey sloppy-joe and something red around his neck. 41 On 6th June 1994, he made an identification from the video tape, in which he was "definite" that a picture of the appellant depicted the man who was the gunman. When shown, during his cross examination, the two computer FACE images compiled from the descriptions previously supplied by Messrs. Kratuick and Roussos, he said that he did not think those images resembled the gunman. He also said that he had been aware of the arrest of a man, in connection with the shooting, on 3 June 1994, from the television news. He had not, however, been made aware, before making his video identification, that any other person had identified the gunman to police. 42 His father, Loui Soravia, gave evidence that he learned of the name of the person who had been arrested, from the news. He did not have any description of that man, and he specifically did not receive a description of him from Eugene Benitez, when the latter phoned to advise that he had identified someone connected with the shooting. 43 Eugene Benitez His sighting of the passenger in the car, at the corner of Louisa and Smith Streets was from a distance of less than one metre. Its licence plate which he tried to memorise, he said was SDO 059. The description he gave was of a man with dark skin, one day old facial growth, near shoulder length hair which appeared to be plaited/braided. The man was wearing a grey/blue jumper with a coloured pattern at the side or front. In a statement made on 26 April 1994, he said that the passenger was cleanly shaven and wearing an ivory necklace. The driver was similarly described as having dark skin, with unevenly cut long hair, and was said to have been wearing mirror sunglasses and a white shirt. 44 On 2 June 1994, he saw the videotapes and selected the photograph of the appellant as a photograph of the man whom he had seen riding as a passenger in the car. What he said was that the man photographed had hair which was different from that which he had seen on 26 April, but if one were to take the hair from another photograph that he selected, and place it upon the face of the first man, then one would have just what he remembered, or as he put it, "bingo". 45 He had previously informed police that the computer FACE images were "no way near at all" although on other occasions he said they did resemble the occupants of the car. 46 He agreed that he had telephoned Loui Soravia, on the day following the arrest of the appellant, and had informed him that he had identified the person in the passenger seat, and that this person had been arrested. He conceded that he may have told Mr. Soravia that the appearance of the suspected gunman may have changed in relation to his hair. He had not mentioned his eyes, but he may have mentioned the colour of his skin. 47 James Roussos, who was in the newsagency, when he heard the gunshot, ran out and applied the handbrake to the vehicle of the deceased as it was moving slowly backwards. He chased a man through the carpark, but terminated the chase when a bystander told him the man had a gun. By looking around the corner, he saw the man jump into the passenger side of a white two door Toyota sedan which was parked on the incorrect side of Short Street. It then sped off. He said that it appeared to have half of its number plate painted over (or concealed). That vehicle left in a westerly direction towards Strathfield. 48 He described the man he pursued as being 174 or 175 cms. tall with a medium to slim build, a middle eastern complexion, with a few days' facial growth, high cheek bones, hollow cheeked appearance and dark black curlyish hair to his shoulders. He was wearing a sloppy joe with a hood, and sandshoes with red soles. Mr. Roussos said that he had seen this man loitering near the real estate agency fifteen minutes before the shooting, when he had entered and left those premises. He believed that he had also seen him in Newtown from one to two months up to three to four months, earlier. 49 On 6 June 1994, he selected the picture of the appellant from the video, as a person having "a similarity" to the man he had chased. He assisted in the preparation of the FACE images, which he thought resulted in a 70 to 75 per cent likeness. 50 The other evidence that was called, to place the critical identification evidence into context, may be briefly summarised: 51 Ballistic and physical evidence was led from Sergeant North, and Detective Senior Constable Riviere to the effect that the entry wound to the face of the deceased was consistent with it being occasioned by a small to medium calibre projectile, into which category would fit a .25 calibre projectile, a cartridge case of that calibre having been found on the floor of the deceased's vehicle after the shooting. 52 Evidence was led concerning the recovery of a small white Toyota Corolla registration number SDO 359, that was observed on 27 April, to have been left in a street in St Peters. Its rear number plate was creased between the numerals 5 and 9, and a pool of oil was seen to be lying on the road surface. According to Department of Motor Transport records, the plates had been earlier handed in and not re-issued. Inside the vehicle were found an Instint Window Tinting business card. It was also found that the 0-rings securing the exhaust system had been dislodged. The only identifiable fingerprints obtained from the vehicle or its contents were those of one Martin Sanchez and Maria Kiely, a friend of Sanchez. No blood or gunshot residue was found. 53 Evidence was led linking this vehicle with the Instint Window Tinting business, and with other persons of possible interest, as follows: 54 The committal evidence of Mr. Quinteros, the owner of Instint Window Tinting, was read. He said that when he left the workshop on Saturday 23 April, a white two door Toyota Corolla with a registration number including the letters SDO and the numeral 9, was there, amongst other vehicles. It was not there when he returned on the morning of 26th April, but he did notice a motorbike belonging to Steve Anas parked on the footpath. He also saw Martin Sanchez, an employee of his at Instint Window Tinting who had been out helping a client, return just after 11.00am. An argument ensued and Sanchez left in a Toyota Seca. He returned after lunch. In the meantime, Anas and the appellant arrived at the premises between 12.30pm and 1.00pm. 55 Jerry Aposhian said that he called in to Instint Window Tinting just before midday. A few minutes later, Anas and the appellant arrived and began whispering with Quinteros. They stayed at the workshop for about an hour. 56 Martin Sanchez said that the white Toyota Corolla was used by him in relation to the Instint Window Tinting business. It had many problems including oil leaks and an exhaust system that was prone to falling off. He had not, however, noticed any damage to the rear number plate before 26th April. 57 He said that he saw the appellant at Instint window Tinting on the night of 25th April, and again on the following morning. He had tried to use the Toyota Corolla that morning himself but found that it would not start. He left in another vehicle to see Maria Kiely before returning temporarily at about 10am., by which time Anas' motorbike had not yet arrived. When he returned at about midday he saw Quinteros, the appellant, Anas and Aposhian. He said that he had not seen the Toyota Corolla since that morning. Quinteros informed him that it had broken down. 58 In an audiotape of an intercepted conversation between him and Maria Kiely he was recorded asking her whether she had heard about the car being found, and observed that his fingerprints were on it, that he would be asked who had used it last, and that he was not allowed to say. In his evidence he said that what he had meant was that he did not know who had used it last. 59 Maria Kiely gave evidence that she spent the morning of the shooting with Sanchez. 60 Some additional evidence was called in relation to Anas' possible involvement in the offence, including the fact that during a search of his home, on 28 April, 1994 a grey sloppy joe with red piping on the neck, a pair of pink soled running shoes and mirror sunglasses with an attached cord, were found. Anas left Australia for Greece on 20 May 1994, without being arrested. He had earlier been interviewed by police. Attempts to extradite him to face trial on this matter had been unsuccessful. 61 Some evidence was called as to the appearance of the appellant and other possible suspects at the time of the offences. Carole Walcott, the appellant's probation officer, said that she had seen him on 20 April and 27 April 1994, at which times his hair was very dark black in colour and short shoulder length. She also said that she had called at his home at about midday or 1.00pm. on 26th April, and had been informed by his mother that she had just missed him. 62 Mr. Souleyman described Anas as having receding hair and a beard. Quinteros he described as being very skinny, five feet nine inches tall, with a thin face, a couple of days' facial growth and long curly hair. The Case for the Appellant 63 The appellant made an unsworn statement in which he said that he had attended Instint Window Tinting on 25th April to discuss money owed to him by Quinteros. He remained at his home on the morning of 26 April, during which period he spoke with his mother, a couple who lived across the road (Andrew Rice and Melissa Borland) and with another neighbour, Jackie Loveridge. He left home at around 1.30pm. or 2.00pm. after receiving a phone call from Michael Atsis. He spent the remainder of the afternoon at the Atsis' home, before being driven home by the son-in-law of Michael Atsis. 64 He said that he had been in prison during the period when Mr. Roussos claimed to have seen him in the Newtown area. He also said that he had a scar on his face, and a tattoo on his wrist. He was always clean shaven and he kept his hair neat and tidy. 65 Ms Loveridge gave evidence of seeing and talking to the appellant in the street near her home at about 11.5 to 11.20am. He was wearing a T shirt and shorts, he was clean shaven and his hair was cut neatly, to the level of his ear. It was established that she had a criminal history for offences of stealing and dishonesty. 66 Andrew Rice gave evidence of seeing the appellant standing at his gate after 11.00am., wearing a loose shirt, shorts and thongs. He was similarly shown to have a criminal record involving offences of embezzlement and misleading police. Neither his sister nor Melissa Borland, who were with him, had any memory of seeing the appellant that morning. 67 The appellant's mother said that she had seen him on separate occasions during the morning 26th April before he left the house, well after 1.30pm, following a phone call from Michael Atsis. She said that Ms Walcott had called at the home after he had left. 68 There was agreement that Michael Atsis had declined to speak to police and was not an available witness. It was similarly agreed that the parents of the appellant had declined to be interviewed or to supply a statement in relation to the alibi offered by him. Grounds 1 to 3 69 Each of these grounds relates to deficiencies submitted to have existed in the directions given concerning the identification evidence. They can be conveniently dealt with together. 70 In essence it was argued that the jury were invited to convict the appellant on the evidence of Alex Soravia and Mr. Benitez, without sufficient attention being given to the extent to which the evidence of the remaining witnesses, in particular Mr. Roussos, cast doubt on the prosecution case; and without sufficiently drawing to attention the dangers inherent in identification evidence, particularly as they related to this case. 71 In order to deal with these grounds it is necessary to examine the manner in which His Honour approached the question of identification. The specific complaints need to be understood in the context of the summing up as a whole, and not by reference to isolated passages or expressions. What must be garnered is the message, and the warnings that were effectively conveyed to the jury, in order to determine whether the issues were fairly stated, and those dangers of which they may have been unaware properly brought home to them. 72 It can be noted at the outset, that his Honour took a great deal of care in dealing with this aspect, which clearly was the primary issue in the trial. The jury had to be satisfied beyond reasonable doubt that the person who was seen to fire the fatal shot, and to run from the scene, was the appellant. There was no sufficient case against him absent acceptance of the evidence of his identification as that man. 73 His Honour began with the observation: "As you are well aware from the content of those addresses, the critical identification witnesses in this case are Alexander Soravia and Eugene Benitez. They are the two persons who positively identify this accused." 74 Although some criticism was offered of this passage, on the ground that it conveyed an impression that his Honour believed that their evidence amounted to a positive link of the appellant to the gunman, that is to unduly strain the language used. I am in no doubt that all his Honour intended to do, and all that the jury understood him to be doing, was to refer to the circumstance that they had selected photographs of the appellant from the videotapes as the gunman. 75 His Honour then accurately and comprehensively summarised the evidence that they could give, of the events they described, and of the subsequent identification procedure undertaken with the police. No complaint was made at the trial concerning the sufficiency of this summation of the evidence. Nor could any criticism have fairly been made of it. That Mr. Soravia's identification was unequivocal is indicated by his answer when shown the video picture of the appellant: "Yes that's the one I saw. There's no doubt whatsoever. I could never be more definite of anything in my entire life. That photo of the man in 11 is the man that took my mother's life, that is the fact that I will live with until the day I die." 76 Mr. Benitez' identification was no less positive in so far as he described the picture selected as "bingo" but for the hair. 77 Before going on to give detailed directions concerning identification evidence, and to relate the relevant matters of caution to this case, his Honour observed: "I have dealt with these identification witnesses because as I said to you at the commencement of these directions, as was foreshadowed to you there are certain matters of law pertaining to identification evidence upon which I am required to give you directions. Important amongst those directions are those to which I now turn concerning identification evidence. As I have said to you many times now, the real issue in this case is just that, namely identification of the accused. If you conclude that there is any reasonable possibility that he is not the offender then he must be found not guilty. It is only if you are satisfied beyond reasonable doubt that he is the offender that there can be a verdict of guilt." 78 His Honour next briefly referred to some of the matters that the Crown relied upon as supportive of the identification evidence, so far as it might link the appellant with the other persons mentioned as having some association with Instint Window Tinting and with the Toyota Corolla. 79 He then came back to the three key witnesses, and mentioned that of them, Alex Soravia and Benitez gave evidence of separately identifying the appellant from the selection of twenty photographs on the video. James Roussos, his Honour said, "did not positively identify the accused" from the video - that witness his Honour observed, said that the photo number 14 (the appellant) "did bear some resemblance" to the man he had chased. His Honour added that none of the other witnesses who gave descriptions "claimed to positively identify" the appellant. His Honour then said, in a passage which was the subject of complaint: "I am giving you these directions not only because it is requisite that I do so, but in recognition that you may accept the evidence of positive identification by Alexander Soravia or by Eugene Benitez or by them both and you could convict on that evidence alone. You could not, I expect you understand, convict upon the evidence of James Roussos which did not in itself amount to identification. He simply said it bore some resemblance to the person whom he had seen. I have to inform you and I do that there is a special need for caution before accepting identification evidence and I add that that exhortation for caution is given because it is appropriate to warn you that such evidence may be unreliable. Having said that I should elaborate and explain to you the reasons for the need for that caution." 80 It was submitted that this passage amounted to an invitation or advice by his Honour to the jury that they could accept that Alex Soravia and Mr. Benitez had positively identified the appellant, and that they could safely convict him on the evidence of either of them, without regard to the remainder of the evidence. 81 Again this is to place a tortured interpretation on the paragraph. I am satisfied that, by this passage, his Honour did no more than underline for the jury the need for special caution before accepting the evidence of Alex Soravia or of Mr. Benitez in the light of the warnings that were to follow; and, favourably to the appellant, to inform the jury as was correct in law, (Pitkin (1995) 69 ALJR 612) that Mr. Roussos' evidence that the video photo bore "some resemblance" to the person he chased, did not amount to an identification. 82 It was also submitted that his Honour, in explaining that he was giving the direction because it was "requisite" that he do so, flagged that it was of a routine nature, and could be treated somewhat dismissively. No such interpretation is in my view fairly open, taking the passage alone, and certainly not in the light of what followed. 83 His Honour specifically and comprehensively thereafter dealt with each of the relevant areas that may affect the reliability of an identification, and in each instance applied them to the relevant evidence. 84 So it was that this Honour said: "As a matter of history it has been known there are cases where an identification has been the vital issue and mistakes have been made. The tragedy of such an occurrence needs no emphasis from me. You may have known that is the case but I confirm to you the experience of history. I am not limiting the situation to a case of a witness who is making a false accusation. An honest witness may make a mistake. A number of honest witnesses may all make the same mistake and this may happen quite independently of each other." A little later his Honour added on this topic: "I was saying that honest witnesses may make a mistake. Indeed we have no doubt made mistakes in identification at some time in our lives. People may have common features that we notice and we may find ourselves deceived by what we focused on might lead us to some error. This is one of the reasons why there is a special need for caution in identification evidence." 85 His Honour then dealt with the defence submission concerning the possibility of contamination of Alex Soravia's evidence, arising through any news broadcast that he may have seen over the weekend preceding his video identification which contained a sketch of the person arrested. This was put into context by the following direction. "If you think he may have (seen such a broadcast) you should be cautious about accepting an identification which may be so contaminated by the suggestion that the sketch could offer. Consciously or unconsciously an identifier may seek a match with something he had seen rather than the image from memory and that is a danger of which you should be aware." 86 It was further placed into context by reference to the fact that Alexander Soravia could not remember whether he had seen the broadcast. In these circumstances, the direction given was a sufficient warning. It did not call for any greater weight, particularly in view of the witness's uncertainty as to whether he had actually seen the news item. 87 His Honour next dealt with a number of other factors that he said "may affect the reliability of identification evidence". 88 The first, being one of obvious application to the present case, was explained as follows: "A factor which may affect the reliability of identification evidence is the extent of the witness's acquaintance with the accused. It is obviously much easier to be mistaken as to the identity of a total stranger than to be mistaken as to the identity of a close friend." 89 His Honour pointed out that neither Alexander Soravia nor Mr. Benitez had ever seen the offender before. 90 Then followed an observation which became the subject of complaint, upon appeal, but not at trial, in the following terms: "Neither had Mr. Roussos, unless you think it is possible that the man he had seen in Newtown on the occasions between December and February, who could not have been the accused, was the offender. Indeed if you came to that conclusion you would have to find the accused not guilty." 91 This observation, it was submitted, operated unfairly to the defence case since it was, perhaps unintentionally, dismissive of Mr. Roussos' evidence that he had previously seen the offender in Newtown, at a time when the appellant could not have been in that suburb. Again this involves a tortured reading of the passage. It was not an unqualified assertion that Mr. Roussos had never seen the appellant before. Moreover, fairly to the appellant, it underlined to the jury that if they thought it that was a possibility that he had done so, then they had to acquit. The observation needed to be understood in the light of the important direction extracted earlier, given when his Honour first turned to this subject, to the effect that if the jury concluded that there was any reasonable possibility that the appellant was not the offender, then he had to be acquitted. 92 The next factor that his Honour mentioned was the opportunity which the witnesses had to make their observations. This was related to each of the witnesses, in the course of which reference was also made to matters such as panic, and to the dramatic circumstances that confronted them, which may have affected the reliability of their impression. This included a reference to the fact that Alex Soravia was in a situation of stress and distress when he made his observation, and that he had ten seconds to do so; that Mr. Benitez's observation was made in a "split second;" and that Mr. Roussos' observations were made during a chase. 93 Next, his Honour turned to the terms of the descriptions that the witnesses respectively gave and their consistency with each other, and with the video picture of the appellant. In the course of this discussion, he invited attention to whether or not the photograph shown was a good enough likeness of the appellant and whether or not it was so different from the others as to stand out and invite selection. 94 His Honour then went on to discuss the phenomenon known as displacement, in the course of which he underlined the importance of the first identification. 95 The next factors discussed were those of delay between the initial sightings and the video identifications; of suggestibility or tainting, through the witnesses having seen the sketch, or otherwise having had some suggestion put to them; and of the expectation, generated by the fact that police had asked them to look at the videos, that they might see the suspect. Again these warnings were related to the witnesses to whom they were apposite. 96 His Honour next observed that he was not mentioning circumstances such as the lighting at the time that the original sightings were made because it was broad daylight. He did, however, instruct the jury that it was necessary that they take into consideration the distance the people were away from the man that they claimed to see. 97 Having identified the recognised factors that can affect the reliability of an identification, and related them to the present case, his Honour went on to deal with the three key witnesses in the following terms: "I remind you that it is only in their evidence, that is evidence of Alexander Soravia and Eugene Benitez that you have a positive assertion of identification. Before you act on the evidence of either or both of them you should pay careful attention to the dangers which I have sought to draw to your attention Whether you come to the conclusion that despite those dangers and precautions as you accept and are prepared to act on the evidence of either of them is a matter for you. I remind you I am not expressing any view about it. I am not saying identification is always wrong nor am I saying it is always right. I am not making any comment one way or other in this case. What I am saying is before you find the accused guilty you should look very closely at the evidence because of the dangers which exist in convicting on such evidence where reliability is disputed. I have already mentioned to you the evidence of James Roussos but he does not positively identify the accused. A particular weakness in his evidence is his testimony that the man he had seen a couple of times earlier in Lackey Street and the man he chased was the same man that he had seen on several occasions in the Newtown area at times when you know it couldn't have been the accused. It is a matter for you but you might think it is quite dangerous to place any weight on Mr. Roussos' remark that the picture he saw looked similar to the man he chased , but that is a matter entirely for you, but you might think it considerably weakened by the manifest error that he must have made about the man being the man he chased unless, of course, you think he was right in which case it was not the accused who was the offender, then he is inevitably to be acquitted. So that you might think that the most prudent course is to set aside the evidence of Mr. Roussos in that regard, but as I say it is a matter for you." 98 His Honour came back to this matter, towards the end of the summing up, when he said, in response to a point raised by defence Counsel, that Mr. Roussos had said that there were two occasions when he had seen the man he had chased on 26 April: "You remember, members of the jury, I said to you you might think there is a particular weakness I should draw attention to the evidence of Mr. Roussos and that is that we know that insofar as he said that the man he chased was the same man he had seen in Newtown on a few occasions and was also the man he had seen on a couple of prior occasions on 26 April, two things would seem possibly to follow. One, if he is correct, you know it was not the accused because he told you he was in gaol at the time; and if it was the man seen in Newtown and earlier that day and it was not the accused, clearly the accused would have to be found not guilty. The alternative I was putting to you is that if you were not satisfied that it was the man he had seen in Newtown, that would make any suggestion of his that the face looked similar to the one he picked somewhat weakened, because you know that Mr. Roussos is a person capable of making a mistake about in very matter. (sic) So that I was suggesting to you that you might consider placing Mr. Roussos's identification evidence rather to one side. In fact putting the matter bluntly, although it is a matter entirely for you, although the Crown said to you on many occasions you have two and a half identifications, you might think it is more prudent to look at the two identifications and put the half to one side , and that is what I was really suggesting to you. Does that cover it? No? BODOR: No I don't think so. I think what your Honour is saying to the jury is they should put Mr. Roussos aside. HIS HONOUR: No. I have said if they think that Mr Roussos is correct and the man he was chasing was the man seen in Newtown, then it wasn't the accused and that is the end of the trial as far as the accused is concerned, he must be acquitted. I have now said so three times." 99 The observations concerning Mr. Roussos in these passages were the subject of particular complaint in the appeal. It was recognised that his Honour intended his remarks as operating favourably to the appellant, and as constituting a strong warning to the jury not to treat this witness's evidence as a further identification (i.e. as a "half identification") of him. However, it was submitted, they risked being regarded as dismissive of the witness generally, and as a consequence, of no assistance to the defence submission that he may well have correctly identified, as the gunman, someone who could not have been the appellant. Moreover, it was submitted that the penultimate sentence invited a reversal of the onus of proof. 100 Similarly, understood in context, and read fairly, I am in no doubt that the intention of his Honour was as suggested, and that the jury would have understood the direction accordingly - ie as a direction not to use the evidence of Mr. Roussos, as a positive identification of the appellant. I am not persuaded that the passage would have been understood as inviting the jury to disregard his evidence so far as it might have assisted the defence case, or as operating to reverse the onus of proof. 101 On the contrary, it underlined the circumstance that the jury might think it possible that he had correctly identified, as the gunman, a person who was not the accused - a situation which his Honour made clear would require a not guilty verdict. That is a natural reading of the words employed. In the light of the observations which went before, it was the message which I am satisfied the jury received. 102 The "regard" in which his Honour said that it might be 'most prudent" to set aside Mr. Roussos' evidence was that which related to an "identification" of the appellant, and not that which related to a possible identification of some person other than the appellant. 103 A further complaint was made to the effect that his Honour did not sufficiently bring to the attention of the jury the evidence of the remaining eyewitnesses. In particular this concerned those aspects of the descriptions that they gave of the man they saw either at the scene of the shooting, or running away from it, that did not fit the appellant. This submission is not made good. 104 In fact his Honour took great pains to refer to the evidence of the remaining witnesses (at pages 37 to 66 of the summing up). Appropriately, in doing so his Honour adverted to the possibility that some of them might have been mistaken, and for example might have described Mr. Roussos rather than the appellant. He also made reference to the problems that some witnesses can have in articulating an adequate oral description. 105 Fairly, to the Crown and to the defence, his Honour said in this regard: "You are well aware without my adverting to it, there are variations to some extent in the descriptions. Of course from your own experience you will know that people, including ourselves, probably may well be able to recognise somebody although quite unable to put their tongue around an adequate oral description. These various witnesses were apparently each in their individual way attempting that exercise of articulating what they claim to have seen. It is a matter for the use of your individual experiences of life to look at all this material and decide whether or not as the Crown contends it is supportive of its cases or whether it does not support its case, or whether as is put on behalf of the accused the variations are such as to entail in your assessment a reasonable doubt about the guilt of the accused." 106 In dealing with these witnesses, his Honour expressly made reference to those who attempted unsuccessfully to identify the appellant from the videos (e.g. Mrs. Crisp, and Messrs Helper, Towe and Kratuik), the failure of Mr. Helper to identify him when shown a single photograph accompanied by advice that the police considered him to be a suspect, and the statement by one witness (Mr. Kratuik) that a person other than the appellant bore some similarity to the offender. 107 What was significant about the evidence of these witnesses, however, was the common theme in the descriptions given, none of the detail of which could be said to have excluded the appellant, and a great deal of which was consistent with his appearance and particularly his build. 108 His Honour did not say, as Counsel at the appeal submitted he should have said, that their evidence was capable of positively supporting the appellant's innocence. In my view, such a statement would have overstated the effect of the evidence, to the point of error. A non identification in the circumstances of the case, did not amount to a positive exclusion of the appellant, as the argument seemed to suggest. 109 It was made perfectly clear in the summing up that absent the evidence of Alex Soravia and Mr. Benitez, the descriptions given by the remaining witnesses would not have been enough to support a conviction. Their evidence was placed before the jury so that they might properly assess the evidence of the key witnesses, and so that the material available to the Crown was presented warts and all. It is not a fair analysis of the summing up, when read in full, that the evidence of Messrs. Soravia and Benitez was unduly elevated by comparison with that of the other witnesses. 110 A further matter floated at the trial, and repeated on appeal, was the possibility that Mr. Benitez' phone call to Loui Soravia, had somehow tainted the video identification made by Alexander Soravia. This possibility never arose above mere speculation. There was simply no evidentiary basis for the supposition, let alone the conclusion, that any information concerning the appearance of the man identified by Mr. Benitez, was given to Loui Soravia, and then communicated to Alex Soravia. None of those witnesses accepted that it did, and the photographs were presented in a different numbered sequence to Messrs. Benitez and Soravia respectively. 111 The factor of suggestion, arising from an expectation of identification, was the subject of an express warning, and there is no reason to suppose that the jury overlooked it. Moreover, his Honour fairly put the argument advanced at the trial as well as the evidence concerning this aspect, even though, in my judgment, it was speculative at best. 112 Next, it was submitted that it would have been important to emphasise the possible significance of the evidence of Det. Breton concerning Alex Soravia's reaction that the FACE images reproduced in the Daily Telegraph article looked something similar to the gunman, a proposition with which Mr. Soravia did not agree at the trial. Again the jury were reminded of this evidence. It did not call for any more specific direction. 113 A matter potentially of greater significance was the circumstance that a pair of sneakers, with pink soles of the kind said by some of the witnesses to have been worn by the gunman (e.g. Sandas and Patas), were found on a search of the premises of Steve Anas, and were admitted by him to be his. A pair of sunglasses with an attached cord, of the kind some of the witnesses mentioned seeing, was also found during this search. These matters were, however, sufficiently mentioned in the summing up. 114 The final specific matter which was drawn to attention on the appeal, was the submission that strong comment was required in relation to the manner in which Mr. Benitez' identification occurred. His initial reaction when seeing the picture of the appellant was that he was "pretty sure." It progressed to being definite ("Bingo, he is the man") when the hair on the person depicted in another photo was transposed to that of the appellant. The need for a strong comment, it was submitted, was increased by the circumstance that his sighting was of a man whom he saw for a few moments, and who was a passenger in a moving motor vehicle; and by the further fact that he gave conflicting responses to the accuracy of the FACE images that were reproduced in the Daily Telegraph article. 115 These were matters properly to be taken into account, but the risks of misidentification concerned were, to my mind, sufficiently pointed out in the general directions, and in the specific directions that were given in relation to this witness. 116 The matters identified above were the subject of grounds 1 and 2, and to a substantial degree they overlapped, being concerned with submissions to the effect that the directions given in relation to the identification evidence were inaccurate or misleading, or failed sufficiently to identify weaknesses or inconsistencies in that evidence. Ground 3 was somewhat more comprehensive and was not confined to the summing up, it being submitted that his Honour failed generally to warn the jury as to the dangers involved in identification evidence. 117 The need for appropriate directions as to those dangers, which included a warning that there is a special need for caution, and an explanation of the reasons for that caution as well as an application of the warning to the facts of any given case is well established. It is reflected in SS 116, and 165(1) of the Evidence Act 1995, as well as in the decisions in Alexander (1981) 145 CLR 395, Domican (1992) 173 CLR 555, Bruno (Court of Criminal Appeal New South Wales 7 July 1997) and Clarke (Court of Criminal Appeal New South Wales 31 October 1997). 118 The complaint made in this regard essentially involved a submission that the observations made, during the course of the evidence, and later in the summing up, concerning the topic of identification, were so phrased as to suggest that his Honour was discharging an obligation resting upon him, merely as a matter of form, without lending his authority to the caution required. 119 In particular this was said to arise from the statement that he was "merely discharging" a duty that rested upon him as a Judge in drawing relevant matters to attention. It was also said to arise from an observation, in the summing up, along the lines that he was "in a sense, indirectly inviting the jury consideration to the precautions" to which he planned to turn when dealing with the identification witnesses; and from the observation, relevant to the witnesses Soravia, Benitez and Roussos, that he was giving the directions not only because it was "requisite" that he do so, but also in recognition that the jury may accept the evidence of identification by Soravia and by Benitez, or by them both, and convict on that evidence alone. 120 When the passages identified are read in full, however, it can be seen that the submission concerning the asserted failure of his Honour to lend his own weight to the caution, is totally misconceived. 121 A detailed direction on identification evidence was given at the conclusion of Mr. Soravia's evidence, an important stage of the trial which no doubt led his Honour to open the subject with the jury. It needs to be extracted in full, since once it is read in context it becomes immediately obvious how groundless this submission is. His Honour said: "Members of the jury, at the end of the trial I indicated to you last week it will be my duty to give you certain directions of law. One of the matters I would need to speak to you about at the end of the trial is identification evidence. As you were told at the very outset of these proceedings, a critical issue for you to determine will be whether or not you accept beyond reasonable doubt that this accused David Zammit was the killer of Mrs Soravia. I am not at present seeking to comment upon Alex Soravia's evidence directly, in the sense that I am not suggesting to you that you would accept it or not. Clearly in the end if will be your task to decide whether or not you were satisfied on all of the evidence, that the accused has been appropriately identified. However, I am required to give you a caution which I would need to repeat at the end of the proceedings that there is a special need for caution on the part of the jury before accepting identification evidence. I repeat, I am not making any suggestion to you one way or the other but I am bringing to your attention the need for special caution. These observations are made by Judges because it is generally accepted that the experience of Courts ought to be shared with persons such as yourselves who may be brought on one occasion to make determinations about a matter such as identification. These observations occurred to me as things that I should draw to your attention in that context. You would have understood that a witness making an identification may be honest and accurate but may be wrong. This may have happened to you or to me. I repeat, I am not suggesting to you whether the evidence of Alex Soravia is right or wrong. That is one of the matters you would have to deliberate upon. I am merely telling you that you should understand the precautions I am giving to you. You would take into account, in weighing the evidence of the shortness of opportunity and the circumstance in which the identification was made. As I expect is obvious to you, it would appear that Alex Soravia is quite confident of his identification and as I say it will be for you in substance to come to a conclusion as to whether he is correct or not, on the whole of the evidence in this case, including his testimony. But you will take into account the opportunity and the circumstances in which observations could be made. You would bear in mind a stranger is being identified: That is, a person who you do not know. You might in your own experience of life realise that you recognise, for example a member of your family, quite easily. But somebody you saw for a brief time you might not recognise so easily. In other words depending upon the circumstance and the dramatic nature of the occasion, it may have indelibly impressed upon you. I am not suggesting one way or the other. I am merely drawing to your attention some matters that you should take into account in your assessment. You know that the identification about which evidence has been given took place after the viewing of a video and you would take into account after the arrest, there may not (sic) be some expectation that a person, at least thought by police, to have been responsible for this crime, would be on the video tape. On the other hand as the evidence is before you Alex Soravia said he was merely brought into the room and, although he expected he might be undertaking some sort of identification process, he was merely told to look at all these pictures once and then to stop the policeman if there was something that had triggered his attention. It is of course a matter for you what assessment you make, if you accept that evidence or you deny it. Once again I say nothing I said to you about this is intended to hint to you that I have any view one way or the other about this matter. I am merely discharging, amongst other things, a statutory obligation for every Judge, where identification evidence has been admitted, to inform the jury that there is a special need for caution before you accept that identification evidence, and I should speak to you about the reasons for that caution; that is what I have been doing in the context of the remarks I make to you at the moment. I do it now, for two reasons: One, because you are well aware in the beginning and until the end of this case, identification is a central issue that you will be called upon to determine and I should say to you what I have said here and now, whilst the evidence is fresh in your memory that that is not intended to either enhance it, or depreciate it. I am merely discharging my duty in drawing these matters to your attention. The reason is, in your absence I would have been asked so to do. So it seemed to me reasonable to respond to that request. What I have said to you, you should bear in mind through the case, this need for caution. At the end of the trial I will need to repeat what I said to you perhaps in more elaborate terms, having regard to what other evidence, if any, emerges in the course of the trial. I do not think I shall delay matters any further. I draw those matters to your attention. I say it for the last occasion now; I am not making any comment one way or the other but I am certainly not seeking to influence you one way or the other, except to the extent I am telling you there is a need for caution when you are dealing with identification matters. You may well appreciate that without my saying so but it is thought by the law, and by Parliament, that a Judge in these circumstances should have something along the lines of what I said to you, to so say." 122 The word "not" italicised above may reflect a transcription error, or a slip of the tongue. If the latter, it is clear from the context that it would not have caused any misunderstanding. 123 The reference to the "indirect invitation" in the summing up needs to be read in the context that it related to the group of witnesses who were in the general vicinity of the shooting, and who gave oral descriptions of the man they had seen. What his Honour said in this regard was: "I am, in a sense, indirectly inviting you to give consideration to the precautions to which I will turn in relation to that group of witnesses, but I remind you that no one of them, that is the people in and about Lackey Street and so forth, with the exception of the three I return to, purports to directly identify this accused." 124 The "three" were Soravia, Benitez and Roussos. When read fairly this was an entirely appropriate direction, which was favourable to the appellant, in that it underlined the fact that even though none of this "group" gave evidence that amounted to a direct identification, it was still necessary to apply the caution to so much of the oral descriptions they provided as might point to the appellant. 125 I turn next to the passage in which his Honour made reference to giving the directions not only because it was "requisite" that he do so, but also because of the recognition that the jury might accept the evidence of Messrs. Soravia and/or Benitez. This passage needs similarly to be understood in its full context. It is set out earlier in these reasons (para 79). 126 I am quite unable to accept the argument that the reference to the direction being "requisite" suggests that it was given as a matter of form, and not because it was considered to be appropriate; or that his Honour was dissociating himself from the warning. The contrary message appears to me to have been conveyed, particularly having regard to the fact that his Honour said that the "exhortation for caution" was given because "it was appropriate" for a warning to be given that the evidence may be unreliable. 127 So far from being inappropriate and dangerous to isolate the evidence of Messrs. Soravia and Benitez, as was submitted, it seems to me entirely appropriate for his Honour to have done so, since it was only their evidence that could qualify as having involved a direct identification from the video, in accordance with the principles discussed in Pitkin. 128 The final submission made in this regard is that his Honour overstated the position in favour of the Crown, in so far as this passage made mention of a "recognition that you (the jury) may accept the evidence of positive identification by Alexander Soravia and by Eugene Benitez or by them both and you could convict on that evidence alone". This cannot be fairly read, as Counsel submitted on the appeal, as a direction that, as a matter of law, the jury could convict on the evidence of Mr. Benitez alone. 129 Obviously, more was required, as the jury had first to find that the person Benitez saw in the car was the man whom the other witnesses saw running from the deceased's vehicle after the fatal shot was fired. That was obviously the case, and it was made clear by the observation two paragraphs later which was in the following terms: "Eugene Benitez says it was definitely the accused. Again I say that as a comprehensive way of pointing to the conclusion that if you accept the evidence that the killer was the passenger in the get-away car then it was that passenger that Eugene Benitez identified." This flagged unequivocally for the jury that his identification depended upon the jury finding that the passenger he saw was the person who had fired the fatal shot and had then run from the vehicle of the deceased. 130 As I have observed previously, the appellant was represented by very experienced Senior Counsel at the trial, who saw no fault with the directions. What has been attempted here is a trawling through of the summing up for isolated passages, which simply do not support the criticisms now sought to be raised, when read fairly and in context. This Court has firmly discouraged any such practice: Tripodina (1988) 35 A Crim R 183; Bollen (Court of Criminal Appeal New South Wales 25 March 1998) and PAH (Court of Criminal Appeal New South Wales 18 December 1998 131 The role of trial Counsel to properly identify matters of complaint, and the advantages that such Counsel possesses over Counsel called in for an appeal, by reason of his or her greater familiarity with the climate and nuances of the trial, cannot be overlooked. As Hayne J observed in HG (1999) HCA 2, the trial and verdict are "not merely stopping places on the path to appeal". See also Sharman v Evans (1976-7) 138 CLR 563 at 565. 132 Counsel have a positive obligation to raise matters of possible error: Checconi (1988)34 A Crim R 160 at 162; Nelson (Court of Criminal Appeal New South Wales 23 May 1996) at risk of the leave required by r 4, Criminal Appeal Rules to raise points not taken at trial, being refused, absent error going to the root of the proceedings or a real risk of a miscarriage of justice being shown: Tripodina and Cooke (Court of Criminal Appeal New South Wales 24 August 1998). 133 I am satisfied in this case that the summing up was balanced, fair and comprehensive, so far as it dealt with the central issue of identification. No error going to the root of the proceedings was shown nor was there any risk of a miscarriage of justice arising in relation to it. Having regard to its relevance to ground 12, and to the fact that detailed argument was heard in relation to the matter, I would grant leave but find that this ground was not made out. Ground 4 - Identification parade declined 134 The appellant submitted that, in the manner in which his Honour dealt with the refusal of the appellant to participate in an identification parade, an inference unfavourable to his case was invited. What his Honour said in this regard needs to be read in full. It was as follows: "It is the evidence, and it is unchallenged evidence, that the accused declined to participate in an identification parade. He cannot be forced against his will to participate and it is his legal right not to do so. He is not to be penalised for exercising his rights. It is no different in substance from the situation with which I am sure you are familiar by now that when the police were interviewing suspects or persons even in this case they commenced by saying "You do not have to answer any questions unless you wish but if you do so" and so forth. The important thing about that caution, as it is called, is they are saying you do not have to answer questions. If somebody declines to answer they are merely taking up the offer and it is not to be held against him. They are exercising their legal right. So it is if asked to participate in an identification parade a person may exercise their legal right not to participate in that and may not be penalised with that. When that happens as it has in this case, where an accused declined to participate in an identification parade he can hardly complain about one not being held. His refusal to participate does not prove he is guilty. You must be satisfied beyond reasonable doubt that he is the same person who committed the offences before you would be entitled to convict." 135 The particular complaint made has two aspects. First, it was submitted that the reference to the non-availability of "force" to compel participation, carried with it the suggestion that this was the reason the appellant declined to participate in an identification parade, and that notwithstanding his right to take that course, he ought not to have taken it. Secondly, it was submitted that, linking the concepts of refusal to participate and guilt, in the penultimate sentence, ran into the very danger which needed to be avoided. 136 This submission fails. It invites a tortuous and wholly artificial interpretation of the direction which, fairly for the appellant, made it clear that his refusal to participate in the identification parade did not imply, and could not be used as an admission of guilt, and spelled out the reasons why that was so. Nowhere was there any suggestion that the appellant acted inappropriately in exercising his right, or that he should be regarded critically for doing so. I would refuse leave under r4 to argue this ground, which was not taken at the trial. Ground 5 137 This ground related to an observation made by his Honour towards the end of the summary of the evidence called in the Crown case, which drew upon a line from "Iolanthe". The passage was in the following terms: "Some of you may be familiar with the Judge's song from Gilbert & Sullivan where he sings that he will "never throw dust in a juryman's eye, said I to myself said I". What I am saying to you is that you have got to be careful that you do not get any dust in your eyes. I am not suggesting that anybody has been throwing it at you. What I am suggesting and emphasising to you is that you keep your focus upon what you and I have sworn here to do, namely try the issues raised by the indictment and it may well be that you think that some witnesses have been less than candid or that there are things that you don't know but they only become relevant if they touch upon your judgment upon the essential issue." 138 It was submitted that as this observation was made shortly before his Honour turned to a summary of the defence case, and immediately before his Honour reminded the jury of the appellant's response when confronted with the allegation that he had been party to the murder, it risked being understood as a suggestion that the appellant was trying to throw dust in their eyes. Further, it was submitted that the words were capable of being regarded by the jury as an exhortation to be persuaded by the prosecution case of identification by the two key witnesses, and to ignore the conflicting evidence and submissions of the defence. 139 This submission is baseless. A fair reading of the passage invites the contrary of the message suggested. Its purpose was to encourage the jury to focus on the central issue, and it was said in the context of the Crown case, and in particular in the context of the observations made by his Honour in relation to the Instint Window Tinting witnesses. 140 Moreover, before his Honour dealt with the exchange between police and the appellant, he flagged that he was moving on to a new topic by the words "Can I turn from saying these things to mention some matters about the evidence given by police officers". Several matters were then dealt with before his Honour came to the defence case. 141 There is no sound reason for supposing that the jury carried over to that segment of the summing up, some impression that his Honour had implicitly warned them to beware that the defence was throwing dust in their eyes. Indeed, his Honour expressly said that he was doing no such thing. Trial Counsel saw no danger in the observation. I see none and I would refuse leave under r.4 to argue this ground. Ground 6 142 In the course of his unsworn statement, the appellant said that he had been in gaol when the Newtown sightings by Mr. Roussos allegedly occurred, and as a consequence he could not have been the man Mr. Roussos saw. His Honour gave the jury a direction concerning this portion of his statement, in the following terms: "There is a matter arising out of the accused's statement that I should make the subject of particular reference to you. You have heard the accused tell you that he was in gaol. Now there is a danger about which I must warn you and that is the danger that such evidence will set off in your mind the following prohibited line of reasoning: 'The accused has been in gaol and is a person of bad character. Crimes are more often committed by the bad than the good; therefore the accused is likely to be guilty of the crime with which he is charged.' I should tell you, a jury is never permitted to use such knowledge for the purpose of concluding that an accused person is guilty of the crime with which he is charged simply because he is the sort of person who would be likely to commit a crime. As I say, that is a prohibited line of reasoning and my firm direction to you is that you must not allow it to enter your deliberations." 143 It was submitted that this direction gave rise to a risk of a miscarriage of Justice in that it was suggestive of a line of reasoning which might not otherwise have occurred to the jury, and risked planting in their minds an impression that the appellant was in fact a person of bad character. Once again, this involves a tortured reading of the passage. Moreover, it ignores the ability of the jury to think for itself. Almost certainly the appellant's disclosure of having been in gaol, irrespective of the reason for it, drew their attention to the possibility that he was a person of bad character. The direction did no more than head off, for his benefit, any improper use of a matter that had been raised by him and to rule out the line of reasoning that is prohibited. It has become customary in other areas requiring warnings, to give some explanation of the reason for the direction. To do so gives it content, and makes it understandable, thereby overcoming the risk that it will be dismissed as a bare piece of advice. 144 Trial Counsel saw no problem with the direction. I see none. On the contrary, the direction was a fair and proper direction directed to redressing any risk that the disclosure may have been used inappropriately. I would refuse leave under r.4 to rely on this ground. Grounds 7 and 8 145 These grounds relate to a response that the witness Benitez gave to a question in the course of his evidence in chief. It emerged somewhat unexpectedly, and without encouragement on the part of the Crown Prosecutor, in the course of the following question and answer: "Q. When you watched the video what did you see? A. A series of videos, of I suppose, criminals." 146 Counsel sought a discharge of the jury in their absence, at the next adjournment, on the basis that the answer compounded the suggestion, otherwise available from the fact that an identification procedure was undertaken, that the appellant was known to the police. The application was refused, upon the basis that any unfairness could be redressed by a suitably firm direction to the jury. 147 In that regard, it was proper for his Honour to consider, in the light of the matter complained of, the atmosphere of the trial, and any direction that could be given, whether it was necessary to discharge the jury in the interests of ensuring a fair trial. In weighing up that matter, it was appropriate for his Honour to take into account the circumstance that the photographs used were not the traditional "mug shots", and that the evidence later to be led would show that they came from the police information unit. 148 The direction given was in the following terms: "Members of the jury, before we resume this morning there is one matter I might say something to you about. You might recall late yesterday afternoon Mr. Benitez was asked a question about watching the video that was shown to him by police and he said he saw 'a series of videos of, I suppose, criminals'. I should say something to you about this. The police when they need to put together a series of people who look similar have many sources upon which they can draw and Mr. Benitez's supposition is not necessarily correct. One thing that it is important I should speak to you about is the circumstance that will emerge in due course and that is one of the photographs, and I think you will get evidence there were 20 on the series, was that of the accused. It is common ground in this case that before the photographs were shown Mr. Zammit was one of a number of suspects and there are many ways that the police have of getting photographs of people and no inference should be drawn by you that he was previously adversely known to the police simply because they had his photograph. There are many sources from which police can get photographs. Mr. Benitez told you what he supposed and I am merely saying to you that he can suppose if he wishes but you shouldn't draw any undue inference for the reasons I have explained to you." 149 There was no complaint in relation to this direction, and it was in my view a sufficient response to the matter raised. In particular, it was made clear to the jury that they were not entitled to assume, from the answer, that the appellant was adversely known to police. There is no reason to suppose that thereafter, in a lengthy trial, in which careful and detailed directions on identification were given, that the chance observation of the witness retained any significance, or that the jury ignored the direction given. In any event, later in his own statement, the appellant disclosed circumstances that inevitably indicated that he had been known to police. 150 The case was not one, in my view, where there was the high degree of need to discharge the jury by reason of the risk of unfairness contemplated in Knape (1965) VR 469 or in Vaitas (1981) 4 A Crim R 238. 151 For these reasons I am unpersuaded that the discretion miscarried, or that this ground has been made good. Grounds 9 and 10 152 These grounds were abandoned. Ground 11 153 This ground relates to the admission into evidence, over objection, of two photographs of the victim, the prejudicial effect of which, it was submitted, outweighed their probative value. The photographs tendered were close ups of the wound to the left cheek of the deceased. They were not the more graphic photographs of the kind taken during post mortem forensic examination, in respect of which a discretion commonly needs to be exercised to ensure that they do have a probative value which exceeds the prejudicial effect of any emotional reaction they might engender. 154 Their purpose was to show how deliberate the action of the gunman was, a matter going to proof of his state of mind, as well as to show how close his face must have been to Alexander Soravia when he leaned into the car with the weapon in his hand. 155 In those circumstances, they had a probative value which was real, and which exceeded any prejudice which if it arose at all, from these two photographs was to my mind insignificant. 156 The sensitivity of jurors to photographs can too easily be overstated. I can see no reason why a degree of robustness should not be extended in this regard. Nor can I see why the tender of selected photographs, so long as they have a probative value, (O'Sullivan and Mackie (1975) 13 SASR 68 at 74/75) should be regarded as other than another step in the course of a trial in which the fact of violent death is patent for all: Green (1939) 61 CLR 167 at 172; Jeffrey (1967) VR 467 at 473 and Ames (1964-5) NSWR 1489. 157 The direction which his Honour gave was sufficient to maintain a proper balance. It was as follows: "HIS HONOUR : Members of the jury, the issue in this case as you have known from the very outset is whether or not the Crown can prove that the accused was the perpetrator of the killing and the robbery, therefore you should look at the photographs in a calm deliberate and dispassionate fashion. I have ruled that it is appropriate that you should see these photographs in order that you make the determination in the context of the reality of what happened, but you should bear in mind that you shouldn't use any emotion -." 158 There is no reason to suppose that the jury failed to take account of this direction. Moreover, the case was not one in which a large number of graphic photographs were tendered solely for their emotional effect or prejudicial value. Accordingly, I am of the view that the exercise of discretion did not miscarry. This ground has not been made out. Ground 12 159 Under this ground the appellant addressed an argument under S 6(1) Criminal Appeal Act to the effect that the verdict of the jury should be set aside on the ground that it was unreasonable, or could not be supported, having regard to the evidence. The relevant test for this ground is that stated in M (1994) 181 CLR 487 and Jones (1997) 191 CLR 439, namely whether this Court, after its own independent assessment of the nature and quality of the evidence, reaches the conclusion that the jury ought to have entertained a reasonable doubt as to the guilt of the appellant. 160 In undertaking this exercise it is appropriate for the Court to respect the advantage that the jury, which is the body entrusted with the primary responsibility of determining guilt or innocence, had in seeing and hearing the evidence, (Chidiac at 443-4, 453 and 462) and M at 493, where that is capable of resolving any doubt experienced by the Court. Otherwise, as was said in M at 494: "Where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court will be one which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 161 The matters said to lead to this result were as follows: (i) the conflicts and weaknesses that it was submitted existed in the identification evidence; (ii) the evidence of the identification witnesses particularly Mr. Roussos, which it was submitted, positively indicated that the appellant was not the offender; (iii) the alibi evidence; (iv) the offer by Anas of an allegedly "false alibi" to the effect that his motorbike remained outside the Instint Window Tinting premises on the day of the shooting, and that he received a parking ticket for the bike that morning. 162 I am not persuaded, after an independent assessment of the evidence, that the jury ought to have entertained a reasonable doubt. 163 In dealing with this ground of appeal it is proper to take into account that the accused did not give sworn evidence: Blade (Court of Criminal Appeal New South Wales 1 May 1991). 164 More importantly, however, there was a core consistency in the descriptions given which did not exclude the appellant as the gunman, and positive identification evidence by two persons, one of whom was best placed of all to observe, and have impressed in his mind, the facial features of the gunman. Neither was shaken, and the jury were well placed to assess their demeanour and credibility. 165 Furthermore, the appellant was a person who the Crown was able to show had some association with events that could be linked to the offences. The jury were entitled to find beyond reasonable doubt that the Toyota Corolla which normally was left at the premises of Instint Window Tinting was the get away vehicle. The jury were also entitled to find that it was the vehicle to which the gunman returned. Not only were there eyewitnesses to the route he took, but there were physical links to the vehicle, including the fact that it went missing on the day of the robbery from Instint Window Tinting where Anas and the appellant were seen. Additionally, several witnesses at the scene recalled sufficient of its licence plate letters and numerals, or noticed physical signs in relation to the exhaust pipe and tampering with the part of the licence plate as to provide a positive match. 166 Anas was a man with whom the appellant associated, and he had made inquiries of the console operator at the service station before the shooting and robbery, which were highly incriminatory. 167 Although these other circumstances would have been insufficient to support a case against the appellant, without the identification evidence, they provided some general support for the Crown case. In particular they excluded an argument that the appellant was a person for whom no possible connection with any aspect of the offence could be shown, or that his identification was wholly a matter of chance. 168 The jury were also entitled to reject the alibi evidence offered on his behalf, in view of the criminal antecedents of his alibi witnesses; the wholly unremarkable events that they purported to recall associated with this day; the inability of some of the persons said by the neighbour (Andrew Rice) to have been in his company, to recall seeing him; the evidence of the appellant's probation officer, which did not fit in with the appellant's evidence as to his departure from his home at 1.30pm; and the evidence of the persons associated with Instint Window Tinting who placed him at those premises during the morning. If this evidence was rejected as constituting a false alibi, as the jury were entitled to do, then it served to strengthen the Crown case. 169 Finally, the "alibi" of Anas concerning the presence of the motorbike outside Instint Window Tinting was of little probative value so far as the defence case was concerned. It said nothing as to Anas' location, let alone the location of the appellant at the critical time. In any event the appellant could not derive any assistance from a false alibi (if it were such) offered by a suspect co-offender, or by his flight, (if that was what his departure for Greece was), in circumstances where the Crown case was, that there were two persons involved in the crimes charged, of whom one was Anas. 170 The first leg of this submission is, accordingly, not made good. 171 It was also submitted that the case was one that attracted S 6(1) of the Criminal Appeal Act by reason of the asserted errors or inadequacies in the summing up, by reason of an unprompted "in court" identification by the witness Keegan when he referred to the hair of the man he saw at the scene as being "longer than it is now," and by reason of Benitez' observation that he "supposed" the pictures shown to him on the video were those of criminals. 172 The so called in Court identification depended upon a single chance remark, which was equally capable of being understood as nothing more than a statement that the hair of the man he saw on the day of the shooting was longer than that of the appellant as he appeared in Court. The evidence fell far short of an in Court identification, and no risk of a miscarriage of justice was occasioned by it. The remaining matters have already been dealt with, and for the reasons earlier expressed, I am unpersuaded that this aspect of the submission has been made good. 173 Accordingly, I would propose that the appeal be dismissed and that the conviction and sentence be confirmed.

R v ZAMMIT

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