68 Early in the summing up, in the absence of the jury, trial counsel for Bilal Skaf referred to s116 and to the remarks of the High Court in Domican v The Queen (1992) 173 CLR 555 at 561-2. The judge was asked to draw the jury's attention to various circumstances of the particular case relevant to the identification issue. His Honour indicated what he proposed to do and counsel stated his agreement (SU 14-16).
69 The following directions were given in the summing up as regards identification (SU 30-37):
So when you come to identification you are really looking at the case of Bilal Skaf. This is one of these instances, you see there are two separate trials and there are different issues. No doubt Mohammed Skaf was there before these two offences were committed at that park, with this girl and with two other men, Michael and Ibrahim. Again we do not know who they are either, they are just people by those names. She could not identify them.
Now, Bilal Skaf says "I was not there", he says. And what he says comes in a statement to which I will come to later which he made to the police, the second statement he made to the police on 3 April last year. He says he was in his loungeroom, he didn't leave the house. Really, what he says is it is his cousin Ali Skaf who was off raping this girl in a white van, not him.
So he's put this issue of identification clearly in focus. And it arises in any case like this, even if he said not a word, because she had never met him before that night. That seems clear on the evidence. She had never met Bilal Skaf. She many not even have heard his name before this night. So she claims to have been raped by a man she's never ever met and he says it wasn't him.
Well, you have to approach any evidence of identification with caution before you accept it as reliable. You've got to do that because people often make mistakes. Unfortunately, innocent people have been convicted before today because of wrong identification.
Now some people can be absolutely certain they can identify someone and yet they are wrong. How often has it occurred, certainly to any of you? It's certainly occurred to me. Walking down a street, or in a shopping centre, I see somebody approaching and I'm convinced it's a friend of mine and I go up to say hello, and when I'm about a metre and half away I realise it's not this friend of mine. It's somebody different who looks the same in all sorts of ways, but just is not the same.
How often have you, indeed, said hello to someone, and they've said: "Who are you?" And we have been absolutely convinced we are talking to someone we know.
So human beings make mistakes when it comes to identification.
Now she was shown a photoboard. His photo was number 10 on the photoboard. She thought she saw something about that photo that she recognised, but she was not prepared to say that was the man who called himself Sam's brother Sam, who was the driver of the van and who first assaulted her. And she said in the witness box she wasn't prepared to do that because she is not prepared to identify someone who might be innocent. She was conscious of the fact that if she made a wrong choice she could be identifying an innocent man.
She said that looking at the photo itself did not really help her. The photos, as you will appreciate, are quite small.
Members of the jury, those photoboards are shown to witnesses, let me tell you, in circumstances where an accused person exercises his right not to appear in a formal line up.
Now I think you have probably all heard of line-ups, where a group of people of sort of similar age and broadly similar appearance all stand in a room, and a person who is a victim of crime is asked to go along and see if, in this case she, can identify any of those men - any of those persons, it could be men or women.
Anyhow, the accused Bilal Skaf exercised his right not to appear in a line-up. That's his absolute entitlement. He cannot be criticised for doing it. But what happens then is the fall back position, the police can show photos of people who look similar. Now they are small photos and they are obviously not - they don't give you the impression of a person's size or height or weight. Anyhow, she was not prepared positively to identify him.
What happened then was that in mid February, six months later, she went to the Burwood Court and at the Burwood Court she sat with a police officer, Inspector Boik. She had a radio transmitter on, so everything she said was transmitted to a particular place where it was recorded. Inspector Boik knew nothing of this case, didn't know who Bilal Skaf was, didn't know exactly who she was looking for. And she was not told who she was looking for. And there were other police in the area.
Now she would have known before she went there, obviously, that the police were hopeful that there might be someone at the court that she could recognise. In the same way, if there was a police line-up, any person going along to a line-up would have an expectation that perhaps there might be someone there who might be similar to the person who assaulted her. You obviously go with some expectation.
Anyhow, she went along. She did not directly say: "That's him, that's the man who assaulted me". But you will recall the evidence of Inspector Boik that her body was shaking, she was trembling, she was unable to speak, and he had to ask her two or three times, and she said: "That man is one of the men who was there" or something like that.
Then later on, some days later, she made a statement to the police and she said the man she identified was the man who had got out of the car, the van, was the driver, he told her he was Sam's brother Sam, he was the man that had raped her.
Well, now, you have to take into account the opportunity she had for observation. You've got to take into account her reliability. There's also been put into evidence - Mr Healey referred to it this morning - a computer likeness. He says it doesn't look like Bilal Skaf. Well, you look at it and decide whether that's so. It's another factor.
If she doesn't identify someone from a photoboard and then she draws or she agrees to some likeness that is not like that person, does that in your mind throw doubt on the eventual actual identification she made six months later?
She said in this Court she has no doubt at all that that was the man. She's got no doubt at all that Bilal Skaf was her assailant.
She's identified him, too, by having scars above his left eyebrow - or one above his left eyebrow and one in it. She's drawn a picture of where it was. You look at all the photographs Mr Healey referred you to. Also look at the video of his. That video is in three parts. The first part is an interview in which he says practically nothing. That's followed by the police attempting to take photos of him. And you look and see, doesn't he in that interview point to his left eyebrow? Do you see in that video what appear to be scars - a scar or scars? Does he not talk about that? You look at all those things. Look at the photographs. Consider her evidence. Look at the videos. Look at the attempts to photograph these scars and what he says as they are photographing them and what he points to. All that is material you can take into account.
She was also shown photoboards of other people.
Now he has mentioned in his second interview that Ali Skaf went off and to, use his expression, "slept with her". I think what occurred in the park could hardly be regarded as sleeping with her. It's an unusual form of sleep, if that was sleeping with her.
Well, she was shown this evidence. She was shown a photoboard of Ali Skaf's photo and couldn't identify him as being there.
You've seen him give evidence. He's physically, you might think, utterly different in height, in size, a very bulky man, and facial appearance to Bilal Skaf, completely different man, and he denies he was there at all.
But, I mean, that's not the end of it. The question is did she correctly identify Bilal Skaf?
You have heard descriptions of his features. You have been able to look at him for some time yourself. You judge whether those descriptions of his features are correct.
So you take into account all those things and you bear in mind that many people mistakenly misidentify other people.
You take into account the opportunity she had for observing him. How long were they together on that night in that park? What was the lighting like? Was she able, as she said, to clearly see him? He must have got quite close to her if he raped her. If her approached her and spoke to her and dragged her by the hair, she must have been quite close to him. If her evidence is accepted, she got more than just a little glimpse at him. It was more than just a glimpse. It was clearly a longer look than that.
Then I say on page 7 [of the Directions of Law] you're also entitled to take into account, again as supporting evidence, that if she is correct, the first assailant identified himself as Sam's brother Sam; and in fact Bilal Skaf is the brother of Mohammed Skaf. Mohammed Skaf had told her his name was Sam. So the man who first assaulted her was a man who claimed to be the brother of the man who brought her to the park; and, as it turns out, Bilal Skaf is the brother.
There is also evidence from a Mr Daniel Davie, a former police officer, that Bilal Skaf had, on an occasion quite removed from this, described himself to Mr Davie as Sam.