The appellant's reply
43 The appellant did not give or call any evidence at the trial but a photograph of himself was tendered during cross-examination of a crown witness.
44 The defence challenged the identification evidence given by Mrs Jones and Mr MacMillan on the basis that their identification was mistaken.
45 I turn then to the appeal against conviction. The sole ground of appeal was that the trial judge's directions regarding identification evidence of Mrs Jones and Mr MacMillan were inadequate and a miscarriage of justice was thereby occasioned.
46 In the course of his summing up his Honour gave detailed directions as to how the jury should approach the evidence of Mrs Jones and Mr MacMillan in relation to their purported identification of the appellant. Those directions were not challenged by the appellant and have been accepted as being correct and in appropriate form.
47 Indeed, his Honour's original directions on identification were in conformity with sections 116 and 165 of the Evidence Act 1995 and also complied with the concepts adumbrated in R v Heuston (1995) 81 A Crim R 387 and Domican v R (1992) 173 CLR 555. There is thus no need to reproduce those directions in these reasons.
48 However, before completing his directions his Honour, in accordance with the current practice, allowed the jury to go home at 4 pm.
49 The next day, following discussion with counsel in the absence of the jury, his Honour gave further directions. Those directions involved his correcting certain parts of his summing up and then giving some further directions concerning the identification evidence. No challenge has been made to the corrections then made by his Honour but it is the further directions he then gave regarding identification evidence which are the subject of this appeal.
50 His Honour directed the jury as follows:
"The next matter that I want to deal with is a summary of the relevant asserted weaknesses of the identification process revealed in the evidence in this case limited to what I regard as the principal matters which appears to be relied upon on behalf of the accused. First of all there was no identification parade and it is common ground in this case that that is the best method to be used in situations such as these.
Secondly as to the photograph, the accused obviously was not present when the witnesses Mrs Jones and Mr MacMillan were shown the photographs as he would have been on an identification parade, and hence he was not able to see the process for himself. As to the photographs again attention was drawn to the small sample of persons with what might be described as roundish fattish faces as opposed to lean faces. Still on the photographs the danger of the displacement effect is relied upon. That is to say that a witness having seen a photograph may unconsciously displace his or her mental image of the person he or she saw at the time of the offence with the mental image obtained when the photograph was seen.
Counsel for the accused submitted to you that this explains why Mrs Jones, in her description in written statements made after she had seen the photographs, mentioned for the first time hooded eyes and a black jacket and that the T-shirt which she had previously mentioned was dark in colour, she not having referred to any colour at all previously. She on the other hand, I remind you, says that she gave a full description mentioning hooded eyes and the black jacket to the female she spoke to immediately after the event at Paddington police station. There is however, no written record of such a conversation.
Counsel for the accused also relies upon the limited time which both Mrs Jones and Mr MacMillan had for observation. Mrs Jones was subject to a traumatic incident during which she was blinded by the discharge of the gun and also during which, for part of the time, the man was face down on the floor. Mr MacMillan's observation was for, as he described it, a fleeting moment from across the road from the video shop, over the distance from coming out of the shop as he described it in his evidence to the corner of Hopewell Street where the man disappeared out of sight. And of course reliance is also placed on the qualified endorsements which appear on the back of the photograph in each case. Mrs Jones writing "I'm ninety-five percent sure that is the man".
Finally, reliance is placed on the manner in which Mr MacMillan identified from the photographs, that is to say relying to a very large part on clothing which most closely matched the description given by him of the clothes worn by the Asian person he saw coming out of the shop.
Those are the further directions that I propose to give you and do give you members of the jury."
51 The first submission made on behalf of the appellant was that the additional directions created an unfairness to the appellant in that they were said to be provided to the jury as a summary of the weaknesses relied upon by the defence. They were not provided at the same time as the important cautions regarding identification evidence and were not given with the imprimatur of the trial judge in the same context as the earlier directions.
52 It is not sufficient for the judge simply to repeat as such the arguments which counsel have put. See Domican. Furthermore in R v Davies and Cody (1937) 57 CLR 170 at 182 the High Court stressed that it was necessary for the judge to give "the weight of his judicial authority" to the warning as to the dangers involved in identification. See also Heuston (1995) 81 A Crim R 387 at 394. See also Clarke (1993) 71 A Crim R 58 at 72.
53 In Domican, the High Court at 561 said as follows:
"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."
54 In Davies and Cody at 182-183 the High Court, in dealing with identification evidence, observed as follows:
"As the responsibility of convicting must rest with the jury their appreciation of the question is an important consideration, and in a case where the method of identification is open to the objections we have discussed, they should be clearly warned of the dangers, which according to the accepted view, do exist.
In the present case, we think that the observations of the learned judge do not amount to a fulfilment of this requirement. Following the view apparently prevailing in the Supreme Court of Victoria, he treated the matter as one depending upon a choice between rival systems, between different 'schools of thought', and did not give the weight of his judicial authority to a statement of the dangers which beset the method in fact adopted, and he did not fully explain those dangers. His direction cannot be described as a warning."
55 In my view his Honour did not fall into error in making the additional directions which are the subject of challenge. Those directions were in addition to the entirely proper directions he had given the previous day in which the jury were clearly warned as to the dangers which existed in dealing with identification evidence.
56 The language used by his Honour in the additional directions did not constitute a mere reference to counsel's arguments. What his Honour did was to point to the matters which had been raised as weaknesses in the identification evidence and put them squarely before the jury.
57 These further directions did not in any way cut down the force of his earlier directions on identification but in fact, underscored them by demonstrating to the jury the factual issues which had been raised by the defence in relation to the identification evidence. Accordingly, I am of the view that this first argument does not succeed.
58 Second, it was argued that when both Mrs Jones and Mr MacMillan purported to identify the appellant when shown photographs by the police, their identification of the appellant on that occasion did not amount to a positive identification.
59 In particular reliance was placed upon what both these witnesses had written on the back of the photographs of the appellant which they had selected as depicting him. Mrs Jones had written "I think this is him" and Mr MacMillan had written "I am 95 percent sure that is him".
60 It was submitted that this mode of identification was similar to that which had been the subject of review by the High Court in R v Pitkin (1995) 130 ALR 35. In Pitkin a witness to the crime in question had, like Mrs Jones and Mr MacMillan, been shown photographs. When selecting the photograph of the accused in Pitkin the witness said, "this looks like the person" at 37.
61 The High Court observed:
"Obviously the fact that an accused person looks like a person who in fact committed a crime is of itself insufficient to ……… a conviction of that accused of the crime. Yet, prima facie, the evidence led against the appellant in the present case went no further than that." (at 37)
62 And:
"Under our system of administrating criminal justice a person is not to be convicted of a serious crime on the sole basis of verbal ambiguity." (at 39)
63 In the present case a challenge was in fact mounted by defence counsel to the admission of the very evidence of Mrs Jones and Mr MacMillan which is now the subject of challenge in this appeal.
64 A voir dire examination was held. His Honour in a considered judgment allowed the evidence to be given. No challenge has been raised in this appeal to his Honour's ruling. However, even putting that important consideration to one side, in my view the identification from the photographs made by Mrs Jones and Mr MacMillan does not suffer from the defects exposed by the High Court in Pitkin.
65 Mrs Jones' evidence as to her identification of the appellant, in chief, was as follows:
"CROWN PROSECUTOR: Q. Were you given some photographs?
A. I was
Q. What did you do with the photographs when you were given them?
A. I looked at them. I separated some.
HIS HONOUR: Sorry?
A. I separated some of the photographs out until I got to the one of my assailant which I recognised immediately and threw it onto, placed onto the brief case that was on the counter and said, 'that's him'.
CROWN PROSECUTOR: Q. Once you said, 'that's him', what happened them?
A. They asked me to write in my own words on the back of the photograph.
Q. Did you do that?
A. I did.
Q. At the same time you wrote on the back of the photograph, was there anything on the back of the photographs?
A. No.
Q. What did you write on the back of the photograph?
A. I either - 'I think this is the man'. I might have written, 'I think you'll find this is the man'. I think, no, I think I wrote, 'I think this is the man'."
66 Later, the following exchange occurred between herself and the Crown Prosecutor:
"Q. Do you recognise any of the photographs?
A. I recognise the photograph of my assailant."
67 She did not resile from that evidence in any way.
68 Mr MacMillan's evidence as to what occurred when he was shown the photographs by the police, in chief, was as follows:
"Q. Did you finally select a photograph?
A. I did, yes. I thought I was taking a little - but I didn't know how long sort of I was expected to take. I thought I say taking too long and I said, 'I'm sorry I'm taking so long' and that sort of thing. He said, 'don't worry' just you know, but initially I picked one almost immediately. I was just re-affirming with myself that's all.
Q. The one you selected, was that the one you referred to --
A. Yes.
Q. -- that you picked in your mind almost immediately?
A. Yes, yes."
69 Again, Mr MacMillan did not resile from that evidence in cross-examination.
70 In any event, the statement that a person is 95 percent sure that the person depicted in the photograph was the person he saw at the scene of the crime is far distant from a statement that somebody in a photograph "looks like" a person they saw which was the subject of the High Court's decision in Pitkin.
71 In my view the admission of the evidence of Mrs Jones and Mr MacMillan did not constitute any miscarriage of justice and the jury were entitled to take that evidence into account when dealing with the question of identification. I am of the view that this argument also fails.
72 It follows therefore that I am of the view that the appeal against conviction must also fail.
73 I turn then to the application for leave to appeal against sentence.
74 No challenge was made to the head sentence of eight years. Indeed, when this matter was before this Court on an earlier occasion, R v Lee, unreported, NSWCCA, 24 March 1997, this Court observed that the sentence passed by the original trial judge, Saunders DCJ was plainly within the range.
75 What is argued is that his Honour should have found special circumstances and adjusted the proportion between the minimum and additional terms imposed so that the additional term would be longer and minimum term shorter.
76 His Honour did deal with the question of special circumstances. In fact he took into account, in imposing the head sentence, the fact that the appellant would have to serve any sentence in protective custody with its attendant hardships.
77 However, he specifically found that there were no special circumstances which required the proportion between the minimum and additional terms to be adjusted differently from the statutory ratio set by the Sentencing Act as it then stood.
78 Two arguments were advanced in support of the proposition that the minimum and additional terms should be varied in the manner suggested.
79 First, the fact that the appellant had to serve his sentence in protective custody. Second that his Honour did not give proper weight to the material contained in the report of the psychologist Anna Robilliard.
80 The first argument must fail because as this Court held in S, unreported, NSWCA, 24 February 2000, it is improper to allow the hardship of protective custody to operate as a reason for discounting the total sentence and as constituting special circumstances for reducing the minimum term as a proportion of that head sentence.
81 As to the second argument his Honour did deal, in depth, with the psychologist's report. He concluded as follows:
"The psychologist in her conclusions describes your evolution from a negative, angry and depressed young man, to a more mature, positive and rational adult, which of course is consistent with the reported development of your significant insight into the circumstances and consequences of your drug habits.
Other material before me from the prison testifies that you have been putting your time in prison to good and constructive use. You have undertaken two courses at a tertiary level, and you have taken a significant part as editor and contributor to the Remand Centre magazine.
All of that indicates to me that your prospects for rehabilitation are good, and that you do not need - as submitted to me by Mr Brezniak on your behalf - an additional period of probation in the form of an increased additional term in order to promote your further rehabilitation."
82 In my view his Honour made no error in determining the structure of the sentence. He did so having taken into account the appellant's prospects of rehabilitation. Accordingly, while because of its importance to the appellant, I would grant leave to appeal on sentence, I would dismiss the appeal.
83 The orders I propose are as follows: