Criminal law and procedure - Sentencing - Assault - Lack of fact finding - Crown appeal - Sentence of 1 year's imprisonment upheld

A Child v Andrews (1995) 12 WAR 552

Davies & Cody v The King [1937] HCA 27; (1937) 57 CLR 170

Grbic v Pitkethly [1992] FCA 451; (1992) 38 FCR 95

HG v The Queen [1999] HCA 2; (1999) 73 ALJR 281

Kilner v The Queen [1999] WASCA 189

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Pinta v The Queen [1999] WASCA 125

R v Brand, unreported; CCA SCt of WA; Library No 980590; 9 October 1998

R v Burchielli [1981] VicRp 61; [1981] VR 611

R v Harrison (1987) 29 A Crim R 213

R v Radford (1993) 66 A Crim R 210

Scott v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999

Sharrett v Gill [1993] ACTSC 147; (1993) 65 A Crim R 44

Sutton v R [1978] WAR 94

1 KENNEDY J: Judgments in these matters were delivered on 21 December 1999. The Court then declined to grant the appellant leave to add a third ground of appeal, relating to her conviction on count 5 in the indictment (unlawful assault). It allowed her appeal against her conviction on count 2 (aggravated burglary) and directed a new trial on that count. And it dismissed the Crown appeal against the sentences imposed upon the appellant. We then announced that we would publish our reasons at a later date. These are my reasons for joining in the orders made on 21 December 1999.

2 On 4 August 1999, the appellant was convicted after trial of the offence of aggravated burglary. One of the circumstances of aggravation was that the appellant did bodily harm to Aaron Duncan Jones ("Aaron") during the commission of the offence. Two other pleaded circumstances of aggravation, namely, that the appellant was armed with a dangerous weapon and that she was in company with others, were rejected by the jury. The appellant was also convicted of an unlawful assault and thereby doing bodily harm to Deborah Jane Veronica Riley ("Deborah"). The appellant sought a brief extension of time within which to appeal against her conviction for aggravated burglary. The Crown did not oppose the extension, which was granted in the course of the hearing.

3 The count of aggravated burglary of which the appellant was convicted was the second of seven counts in the indictment. The other counts alleged that Kevin John Varischetti ("Varischetti") unlawfully assaulted Glenn Elliott Riley ("Glenn") and thereby did him bodily harm (count 1); that Cheryl Delys Slater ("Cheryl") committed the offence of aggravated burglary (count 3); that Varischetti committed the offence of aggravated burglary, one of the circumstances of aggravation in his case being that he did bodily harm to Aaron (count 4); that the appellant, Cheryl and Delys Maxine Riley ("Delys") unlawfully assaulted Deborah and thereby did her bodily harm (count 5); that the appellant, Cheryl and Delys unlawfully detained Deborah (count 6); and that the appellant, Cheryl and Delys threatened unlawfully to kill Deborah (count 7). In addition to the verdict of guilty of the count the subject of the present appeal, verdicts of guilty were returned by the jury on counts 1, 3 and 5 and verdicts of not guilty were returned on counts 6 and 7. The jury were unable to reach a verdict on count 4.

4 All the charges arose out of a series of incidents which occurred at the home of the appellant's brother, Glenn, in Beechboro on 7 January 1998. At about 10.00 or 10.30 on the evening of that day, Glenn and his wife Deborah, together with a family friend Sharon Bialobrodzki ("Sharon"), were in the front garden of their house when a car pulled up outside the house and a number of people alighted. They included the appellant, the appellant's sister Delys, the appellant's daughter Cheryl, Varischetti, Iris Woods, who was a good friend of Delys, and the appellant's son, Guy Slater. On the appellant's evidence, Iris Woods had been the driver of the car. The appellant is Glenn's sister.

5 There had been longstanding ill-feeling within the family. The cause of the confrontation on this occasion was said to have been the alleged molestation of the appellant's 15-year-old nephew by one Perry Jones, the uncle of Aaron. The Crown case, as opened, was that the appellant, Delys, Cheryl and Varischetti approached the house. By this time, Sharon had picked up her two-year-old child and had proceeded to run into the house to be with her two-months-old baby. The appellant was following her. Glenn went to intercept the appellant in order to prevent her entering the house. Varischetti, who was carrying a piece of wood, struck Glenn on the side of his face, rendering him unconscious. The Crown claimed that the appellant followed Sharon into the house. Sharon went towards the back of the house, and into the bathroom, which led into Deborah's bedroom where her baby was with two of Deborah's daughters, Tei-Ana aged 11, and Kaila aged 10. Sharon locked the bathroom door, thereby closing the only access to the bedroom from within the house. The Crown claimed that the appellant then made her way back towards the front of the house and that, as she did so, she confronted Aaron. It was claimed that, by this stage, she had picked up a small kitchen knife. It was not said from where she had picked it up. When she confronted Aaron, there was an altercation and she stabbed him in the hand, wounding him in two places. Shortly afterwards, she left the house. There were no fingerprints found on the knife, which had been abandoned.

6 On the Crown case, a short time later, Cheryl and Varischetti also assaulted Aaron. In the meantime, a fight had developed in front of the house between Cheryl and Delys on the one hand and Deborah on the other. The appellant later joined in what was said to be an attack on Deborah.

7 The evidence of Deborah was that, when she saw the appellant jumping out of the car, Sharon had run straight into the house with her child. The appellant was following her, and when Glenn asked the appellant what she was doing, Varischetti said something to Glenn and "whacked" him on the side of the face with what appeared to be a "Kopper" log, knocking him to the ground. She saw Cheryl go straight into the house, while Delys made a beeline for her, attacking her. Cheryl and the appellant subsequently joined in the attack on her. Deborah's evidence was that, when the appellant came onto the property, she was not carrying either a stick or a knife. She said she did not see her enter the house. Although she knew Iris Woods, she did not see her on this occasion.

8 The evidence of Glenn was that, after the car had drawn up, the only person he was really worried about was the appellant. He remembered her coming to the house, but he did not remember her going past him. He said he was knocked out in the incident. He did not know Iris Woods, and he claimed never to have heard of her.

9 Tei-ana was in her mother's bedroom. Tei-ana said she remembered the appellant's running into the house, although this evidence had not been elicited in her examination-in-chief. She was unclear about the order of the events that evening, and she made no mention of Sharon's coming into the house with her small child. She claimed under cross-examination that she had heard some noise in the hallway and that she remembered the appellant's running into the house, but subsequently she was unclear as to whether or not she had gone into the hallway and seen the appellant running into the house. Her earlier evidence regarding the appellant's entering the house was not relied upon by the Crown, no doubt because she conceded that the whole incident was a bit of a blur and that she could not say with certainty what she actually did see, otherwise, she said, she would be guessing. It was in fact common ground that no one had seen the appellant enter the house. In re-examination, in answer to the question, "Do you remember seeing any person who wasn't in your family in the house", she replied, "No". The question of those whom she considered to be members of the family was not pursued.

10 Aaron was aged 17 at the time. He had been watching television by himself in the lounge room of the house. He claimed that he heard Varischetti's, Cheryl's and "Bimbo's" voices and the voice of one other person whom he did not know. "Bimbo" he knew as "Bimbo Kelly". He heard the bathroom door being locked. Then Bimbo came at him "shouting, bawling with tears of rage". He said he had not known Bimbo for very long, but that he knew her as Glenn's sister. In response to leading questions from the Crown prosecutor, he said that he knew that Glenn had more than one sister. Asked whether he knew the name of "the other sister", he replied that it was Delys. He was then asked whether he knew Glenn's two sisters. It was put to him, and he agreed, that one of them was called Delys and that he knew the other as Bimbo. He did not see Bimbo "with anything" when she came towards him. She asked for his uncle, Perry Jones, and he told her that his uncle was not there. She then became violent and hit him. He realised that he had been stabbed in the left hand, although he did not see any knife. This attack on him was followed by an attack by Varischetti, who struck him a blow on the head with a piece of wood. He was later taken to hospital, where he was treated for his injuries. He did not require admission. He conceded that he did not know Bimbo "too well". He said he had previously met her "two, maybe three, times". He "only got to actually meet her". He then agreed with counsel for the appellant that she was a virtual stranger to him, but he denied being confused about Bimbo being in the house. His evidence was that he was in a very great shock that night. He agreed that he was confused and really disorientated after the incident. He also agreed that he was still in a bit of a shock in March 1998, when he was interviewed by the police. Upon his return from the hospital, he conceded that he had discussed Bimbo with Deborah and Glenn. They had asked him what she had done to him. He indicated then that "everyone was talking about what happened in their own kind of way". He himself, he said, had been trying to piece together in his own head what had happened.

11 Although the evidence of Dr R H C Patterson was that people who get hit on the head are sometimes disorientated and that sometimes they do not have a memory of what has happened to them, Dr K J O'Daly, who examined Aaron on the evening following the incidents, described him as being moderately disturbed, but not disorientated in any way.

12 The evidence of Sharon was that, when she saw people coming from the car, she had run to the house with her two year old son. She knew there was going to be trouble. The appellant, she said, was chasing behind her. Nevertheless, she said that she herself did not see the appellant that night. She said she had never turned around to look at her, but that she was behind her, shouting abusive language. She claimed to know her voice.

13 Wayne Paul Hull, who had been watching television in Deborah's bedroom with two of her daughters, said he had seen people standing by the car outside the house. He recognised the appellant "and Bimbo". He was not sure what Bimbo's full proper name was. He did not know Iris Woods. He knew Bimbo by sight. He did not see her inside the house, as far as he could tell. Nor had he seen the appellant inside the house. When he first saw Deborah being assaulted, her assailants were "Bimbo" and the appellant. Who the person known to Mr Hull as Bimbo was, was not pursued; but clearly it was not the appellant.

14 The evidence of Harvey Bropho, who had been in another bedroom in the house, was that he had seen Sharon in the house and that he had then seen another woman running past; but he could not see her face. It would seem that, on the Crown case, this person could well have been Cheryl.

15 The evidence of the appellant was that, when Glenn had fallen to the ground after having been struck with the log, she had gone to his aid. She denied going into the house and she said that she did not know Aaron. She claimed never to have met him, although she had heard of him. She denied stabbing him and she denied having seen Sharon. She acknowledged that she was known as Bimbo, but she denied that she was known as Bimbo Kelly.

16 The appellant's appeal was based upon claimed deficiencies in the learned Commissioner's directions to the jury in the context of the appellant's claim that Aaron must have mistaken Iris Woods for her. The special rules which have developed in relation to the requirements for directions to the jury in cases in which identification is a significant issue have been considered in a number of leading cases. In Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534, Gibbs J said, at 551:

"If a warning is necessary, the duty to give it will not be satisfactorily discharged by the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence."

17 In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, the majority, comprising Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, said at 560:

"In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact in the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice." (footnotes omitted)

They continued, at 561 - 562, having referred to s 405AA of the Crimes Act 1900 (NSW):

"Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it "is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.

The foregoing statements are applicable to all criminal cases including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence. Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed "as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case". A warning in general terms is insufficient. The attention of the jury "should be drawn to any weaknesses in the identification evidence". Reference to counsel's argument 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." (footnotes omitted)

18 The court, at 564 - 565, discussed Domican's appeal in the Court of Criminal Appeal in New South Wales and continued at 565:

"As the learned Acting Chief Justice pointed out, the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial Judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused." (footnotes omitted)

19 In his initial summing up, the learned Commissioner did not deal separately with the identification evidence. He said:

"When you consider count 2, you should first consider whether you are or are not satisfied beyond reasonable doubt that Maureen Slater committed the substantive offence. If the Crown has satisfied you beyond reasonable doubt, then you would need to then go on and consider each and all four of the alleged aggravating circumstances and you do that one by one in respect of each one and decide whether or not the Crown has satisfied you beyond reasonable doubt that it applies.

If the Crown has not satisfied you beyond reasonable doubt that Maureen Slater committed the substantive offence, then you wouldn't consider any of the alleged circumstances of aggravation."

He pointed out that there was no dispute that the appellant had been outside her brother's house, but that there was an issue as to whether she had been in the house. She claimed that she had not. There was also an issue as to whether it was she who had unlawfully wounded Aaron. The appellant said she had not done so and the learned Commissioner said it was for the Crown to satisfy the jury beyond reasonable doubt that she had.

20 The learned Commissioner indicated that, on the Crown case, Aaron was the only witness to say that he had seen the appellant in the house but that the Crown had argued that his evidence needed to be considered with other evidence which, in one way or another, supported Aaron's evidence. Examples of that other evidence, he said, included Deborah's evidence that the appellant was moving towards the house, Sharon's evidence that the appellant had chased her into the house and that she had heard a person who, she said, was the appellant, although she had not seen the appellant, and Harvey Bropho's evidence that he had seen a woman running past him in the house after Sharon had gone into the bathroom. However, as the High Court said in Domican's case in the passage quoted above, at 565, the adequacy of the Commissioner's warning is to be evaluated by reference to the identification evidence and not by reference to the other evidence in the case.

21 Having outlined the case for the Crown, the Commissioner went on to remind the jury of the defence case that no one other than Aaron had said that the appellant was in the house and its claim that Aaron was an unreliable witness. On the other hand, he said, the defence had pointed to the appellant's evidence that she had remained outside caring for and assisting her brother Glenn, who had been injured. In relation to the wounding, the defence case was that the appellant had not done it and he added that, at the hospital, Aaron had complained of blows and not a stabbing. His evidence had been that he had not seen a knife.

22 The Commissioner then summarised the evidence of Aaron and said:

"If, after considering and weighing up all of the evidence, you are satisfied beyond reasonable doubt that Maureen Slater did go into the house and that she did unlawfully wound Aaron Jones, and of all of the other elements to which I have previously referred, then it's your duty to find Maureen Slater guilty of the substantive offence of aggravated burglary in count 2.

If, after considering and weighing up all of the evidence, you're not satisfied beyond reasonable doubt that Maureen Slater did go into the house, or that she did unlawfully wound Aaron Jones, or any of the other elements to which I have previously referred, then it's your duty to find Maureen Slater not guilty of such offence in count 2. ..."

23 The foregoing directions contain the only remarks relating to the identification of the appellant by Aaron made by the Commissioner in his initial summing up. They clearly lacked the authority of the Commissioner's office behind them, being essentially summaries of the Crown's and of the appellant's cases. After the jury had retired, counsel for the appellant sought an identification warning. This caused the learned Commissioner to bring back the jury. He then proceeded to deal with the issue of identification in relation to one of the offences allegedly committed by Varischetti, and subsequently in relation to the charge of aggravated burglary of which the appellant was convicted. So far as Varischetti was concerned, the Commissioner commenced his further directions on the issue by saying that he wished to point out to the jury the reasons why there should be great care on their part in scrutinising the evidence as to identification and in weighing that evidence very carefully before deciding to act upon it. This was, however, said only in relation to Varischetti. They were not general remarks said to be applicable to the identification of both the appellant and Varischetti. Having dealt with various other matters, including the fact that Aaron had not known Varischetti for very long and that he did not know him well, the fact that Aaron was dazed at the time he made the identification, the shortness of the time during which his observation was made, the fact that the area would have been relatively dark and the fact that his existing wound would have affected his state of mind and his powers of observation, he concluded his remarks on Varischetti:

"So you have to have regard and weigh up all of those factors, and as I have said at the outset, you have got to scrutinise and weigh the evidence very carefully in relation to identification before you act upon it. It's only if at the end of the day that the Crown has satisfied you beyond reasonable doubt that the person that Aaron Jones has identified as Kevin Varischetti was in fact Kevin Varischetti that you can reach a finding of guilty against Kevin Varischetti in relation to count 2. [This is obviously an error. The learned Commissioner was clearly intending to refer to count 4.]"

24 The learned Commissioner then proceeded to deal with the issue of identification as it related to the appellant. The Commissioner said:

"I have told you about some evidence that Aaron Jones gave about his understanding as to who Bimbo Kelly was and that he mentioned that Bimbo was the other sister of Glenn Riley, other than Delys Riley, and that Glenn Riley has two sisters.

So on that basis, it's a question as to whether or not you're satisfied therefore by reference to Bimbo that he's talking about Maureen Slater. In addition to that there is some other evidence that I will bring to your attention, and I will read it out from the transcript so there's no misunderstanding as to what it is. Now this is during the cross-examination of Aaron Jones. The question is this:

'Then when you got home that night [clearly this was following his return from the hospital] everyone would, I would think, be talking at once about it?---Yes.'

'Bimbo, who I act for - you didn't know too well, did you?---No, I didn't.

Have you seen her before, a couple of times or what?---Yes, I have met her before.

You didn't know her well?---No, I only got to actually meet her.

So you need to have regard to that evidence as well as the other matters I have mentioned in relation to identification. In addition to that, there is some other evidence that I should bring to your attention that I didn't mention before you last left the court room, and that is so far as the case of Maureen Slater is concerned, it's not just a matter of credibility, it's a case where the defence of Maureen Slater is that Aaron Jones was not reliable as opposed to not being credible.

So it's a case of saying, "Well, look, even if he's telling you the truth, he's still not accurate or reliable". In that regard, there is evidence that some three (sic) months after the incident itself, so three months (sic) after January - 7 January 1998 - so this takes us to March 1998 (sic) when Aaron Jones says he has given a statement, Aaron Jones says that at that time, so in March 1998, he was confused.

The point that is being made is, having suffered a blow, that has caused Aaron Jones to have some trouble in accurately recalling the identity as to who it was that caused the wound, so they are matters that you should also take into account in relation to the defence case on count 2."

The foregoing was the extent of his Honour's directions. In my opinion, they were inadequate in the circumstances and did not comply with the special rules referred to in Domican's case. There was no warning given by the Commissioner to the jury regarding the dangers of convicting on identification evidence of the nature of that in this case, in which its reliability was disputed. He did not comment on Aaron's admitted discussion of "Bimbo" with Deborah and Glenn on his return from the hospital. In essence, the jury were merely told what the defence case was. The initial direction did not go beyond simply instructing the jury that they had to be satisfied beyond reasonable doubt as to the identity of Aaron's assailant. The Commissioner referred to some of the evidence and, in particular, that Aaron had given his understanding as to who Bimbo Kelly was and that he mentioned that Bimbo was the other sister of Glenn Riley, other than Delys Riley, and that Glenn Riley has two sisters. I have already set out the leading questions asked by the Crown prosecutor. The jury were not sufficiently instructed as to the factors which might affect their consideration of the evidence in the circumstances of this case, and insufficient attention was drawn to the weaknesses in the identification evidence. No one saw the appellant enter the house. The direction cannot fairly be described as having the authority of the Commissioner's office behind it and there was a failure to isolate and identify for the benefit of the jury any matter of significance which might reasonably be regarded as undermining the reliability of the identification evidence. In those circumstances, in my opinion, the appeal had to be allowed, the conviction quashed, and a new trial ordered.

25 At the end of his submissions, counsel for the appellant indicated that he had drafted a third ground of appeal. A copy of that ground had apparently been handed to counsel for the respondent immediately prior to the appeal being called on for hearing. The ground is expressed in the following terms:

"The learned trial Judge erred in law in failing to present to the jury clearly, fully and separately the defence of the applicant (sic) to count 5 of the indictment."

26 It is to be observed that the appeal which instituted these proceedings was an appeal against the appellant's conviction for aggravated burglary. There has been no notice of appeal given in relation to the conviction for assault. No explanation was given regarding the reasons for the delay, other than that counsel claimed to have discovered the ground while waiting for the appeal to come on for hearing on the day. No particulars were provided in the proposed amended ground. Counsel said, however, that the appellant's evidence was:

"My brother went to the ground. I paused, then I saw my sister fighting Debbie. I rushed over and tried to break them up. In the process thereof I scratched Debbie and tore her dress."

Counsel claimed that the defence was that if she honestly believed that her sister was the victim of an unprovoked attack, then it was lawful for her to intervene and apply reasonable force. That was effectively the extent of the argument before us. The learned Commissioner had identified the defence as being that none of the alleged assailants committed an assault against Deborah of the sort described by her and that the acts and the injuries suffered were not done by them. There was no adequate analysis of the evidence. The position is most unsatisfactory; but, in any case, it was not a matter of simply amending the grounds of the present appeal. I would therefore refuse the application to amend the grounds of appeal. An extension of time for appealing against the conviction of assault was necessary. No application for an extension of time was made. If the appellant wishes to pursue this matter further, it will be necessary for a formal application for an extension of time to be made and, if granted, notice of appeal against the conviction filed.

27 The Crown appealed against the sentences imposed upon the appellant. In the circumstances, the appeal against the sentence for the offence of aggravated burglary falls away, but there remains the sentence of 1 year imposed upon the appellant in relation to the conviction for assault. The Commissioner said in relation to the assault charge that the jury was no doubt satisfied that the appellant and Delys, when together, assaulted Deborah and that the appellant scratched her to the face. In going to her brother's home, his Honour said, she knew at that time that she was one of a group and that there was bad feeling between that group and the other members of the family living in Beechboro. She knew that the topic of conversation once they were at her brother's place was going to be child abuse, which is clearly a sensitive topic, and she knew that she was also the subject of a restraining order and that she should not have been at the premises. It was night time and their arrival would have come as a surprise to those at the house. The appellant had shown little remorse and he accepted that the victim impact statement showed that the offence had had a profound effect on Deborah. Her injuries, however, had healed well. In his sentencing remarks the Commissioner suggested that the appellant's record provided some mitigation, although only a relatively small amount. She had previous convictions for assault in 1976 and 1979 when she was relatively young, but it was not until 1996 that she was again convicted of an assault. The Commissioner imposed a sentence of 1 year's imprisonment, to be served concurrently with the sentence for the aggravated burglary.

28 The principles associated with Crown appeals against sentence are well established - see R v Grein [1989] WAR 178WAR 178, at 180, and Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007, at 1010. In the present case the Crown faces an additional obstacle. Unfortunately, the learned Commissioner did not make findings of fact, although there was conflicting evidence as to what had taken place and as to what injuries had been inflicted. The Commissioner referred only to a scratching. He made no reference to the alleged gouging by the appellant of Deborah's eyes, her raking her nails all down over Deborah's eyes and her trying "to rip Deborah's mouth apart with her hands" and dragging her towards the car. If the evidence of Deborah were accepted, a significantly higher sentence than 1 year should have been imposed. Having regard to the Commissioner's limited findings, however, I do not consider that the sentence should be interfered with. This Court is in no position to make its own findings of fact when so much of the evidence was in dispute and the jury, as the verdicts indicate, clearly did not accept all of the Crown's evidence.

29 The Crown argued that the Commissioner should not have treated the appellant's record as providing some mitigation. That argument may be accepted; but it played no major role in the sentencing process and it is clear enough that what the Commissioner was doing was putting the record in its context. On the other hand, the Commissioner did not refer to the highly favourable references provided for the appellant in relation to her work for a new Aboriginal community and tourist centre in the Gosnells/Armadale area and to her work for youth in those districts.

30 For the foregoing reasons, I joined in dismissing the Crown appeal aginst the sentences.

31 PIDGEON J: I agree with the reasons of Kennedy J.

32 The first and most difficult question which arises in this case is whether the circumstances arose which called for the special directions on identification. It was the practice in this State following R v Turnbull [1977] 1 QB 224 to follow the directions referred to by the Court of Appeal in England. Such directions were required to be given "whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken". In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 the High Court said at 561 the direction as to identification should be given "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.

33 In the present case the person assaulted was inside the house. He heard a commotion outside the house with a number of people acting in a disorderly manner. There were a number of persons so acting, including a person the complainant did not know. He said he recognised the voice of the appellant. A little later he said the appellant came into the house and commenced to assault him and the affray took place. He had the appellant under observation for an appreciable time. The defence, in cross-examination, asked some questions going to identification. I consider the questions were aimed to show that the appellant was a stranger to the complainant and suggested that there may be a mistake. The defence also specifically asked for the identification directions. In my view these factors were sufficient to require the warning to be given.

34 As was said in the case of Domican v The Queen, the terms of the warning need not follow any particular formula, but it must be cogent and effective. There was no need for the court in that case to make reference to the subject matter as the trial Judge gave a very full direction on the dangers of acting on identification evidence. It was an insufficient direction as to the weaknesses of the evidence that were apparent in that case.

35 The subject matter to be covered is contained in the following passages from R v Turnbull at 228:

"First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."

36 The matters covered by the trial Judge in Domican are apparent from the following passage from the reasons of the majority at 560:

"The learned trial judge gave the jury a very full direction on the dangers of acting on identification evidence. In particular, he instructed them that there were four important matters to be considered: whether the witness had previously known the person identified; how good an opportunity the witness had to get a clear picture of the person identified; how long had elapsed between the event and the first identification; and what were the circumstances and nature of that first identification. The appellant makes no complaint about the adequacy of these general warnings and instructions. But he contends that his Honour's directions on identification were inadequate because he failed to draw the jury's attention to a number of alleged weaknesses in the evidence of Mrs Flannery."

37 The circumstances of the present case would require warnings of this type to be given. The jury would be referred to the fact that the person assaulted did have the assailant under observation for a period. It would require a discussion whether the circumstances of the assault may have impeded identification and a further comment as to how well the applicant knew the person assaulted and the evidence in this area. Comment may have also been appropriate in respect of voice identification.

38 I agree with the reasons of Kennedy J in respect of the appeal against sentence.

39 ANDERSON J: I agree with the judgments of Kennedy and Pidgeon JJ. There is nothing I can usefully add.