Court of Appeal (WA)|2005-02-17|Before: Malcolm CJ

Smith v The State of Western Australia [2005] WASCA 19 (17 February 2005)

SMITH -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 19 (17 February 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SMITH -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 19

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law - Identification - Fresh evidence - Circumstantial evidence

Button v The Queen [2001] WASCA 7

Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246

Carr v The Queen [2000] TASSC 183

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

McCarrol v The Queen [2004] WASCA 131

Mule v The Queen [2004] WASCA 7

NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2005) 79 ALJR 1

Slater v The Queen [2004] WASCA 151

Ilic v The Queen [2000] WASCA 411

Milton v The Queen [2000] WASCA 25

Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997

Pileggi v The Queen [2001] WASCA 260

1 JUDGMENT OF THE COURT: After a three day trial before his Honour Judge Chaney and a jury in the District Court of Western Australia at Perth in May 2004 the appellant was convicted of five charges of sexual penetration of a child under the age of 16 years and of a further four charges of indecent dealing with a child under the age of 16 years. All those charges had been joined in the one indictment and were heard and determined at the one trial. The indictment alleged 10 counts, including an additional count (count 6), of sexual penetration of a child under the age of 16 years. A unanimous verdict of not guilty was returned by the jury in relation to count 6 and the appellant was therefore acquitted of that charge. A unanimous verdict of guilty was returned by the jury in relation to count 8 on the indictment but the verdicts of guilty returned in relation to counts 1, 2, 3, 4, 5, 7, 9 and 10 in the indictment were each majority verdicts of at least 10 of the 12 jurors.

2 The appellant now appeals from his nine convictions on these charges as of right under s 688(1)(a) of the Criminal Code. The offences of which the appellant was convicted, as set out in the indictment, as amended during the course of the trial, are:

1. On a date unknown between 12 December 1996 and 31 December 1997 at Bullsbrook the appellant indecently dealt with RJM, a child between the ages of 13 and 16 years, by fondling her breasts.

2. On the same date and at the same place the appellant indecently dealt with RJM a child between the ages of 13 and 16 years, by touching her vagina.

3. On the same date and at the same place the appellant sexually penetrated RJM, a child between the ages of 13 and 16 years, by inserting his finger in her vagina.

4. On the same date and at the same place the appellant sexually penetrated RJM, a child between the ages of 13 and 16 years, by inserting his penis into her mouth.

5. On the same date and at the same place the appellant indecently dealt with RJM a child between the ages of 13 and 16 years, by rubbing his penis on her body.

7. On the same date and at the same place the appellant sexually penetrated RJM a child between the ages of 13 and 16 years by inserting a bottle into her vagina.

8. On the same date and at the same place the appellant sexually penetrated RJM a child between the ages of 13 and 16 years, by inserting a pocket knife into her vagina.

9. On the same date and at the same place the appellant indecently dealt with RJM a child between the ages of 13 and 16 years by touching her vagina with a pocket knife.

10. On the same date and at the same place the appellant sexually penetrated RJM, a child between the ages of 13 and 16 years, by inserting his penis in her vagina."

3 The case for the prosecution was that all the offences had been committed at a house in West Road, Bullsbrook, owned by the mother of RJM but in which another couple, Mr and Mrs DC, and their three young children were living under an arrangement which they had made with the complainant's mother. At the time of the offences the complainant, RJM, was aged 14 years and on the day in question had been taken by her mother to the house in West Road to babysit the three young children of Mr and Mrs DC. On arrival at the house the complainant was dropped off and left by her mother with Mr and Mrs DC, the three children and a visitor, introduced to her as Brett, whom it was alleged was the accused. The evidence was that this "Brett" remained at the house for the rest of the day and stayed overnight.

4 During the afternoon this man was speaking to RJM and gave her several cans of beer to drink which made her feel sick. During the course of his discussions with the 14 year old girl he kept making comments to her about her breasts and her body and repeatedly told her that she was well-developed for her age and, on being told that she was 14, responded by saying that she must be older than that.

5 RJM helped to prepare the children's tea and after that bathed them and got them ready for bed. During this time Brett was outside on the veranda talking to Mr and Mrs DC. The complainant herself went to bed at 8 or 9 o'clock that night, sleeping in one of the single beds in the same room as the little son of Mr and Mrs DC. Sometime during the night, which appears on the evidence to have been shortly after 11 pm, the complainant woke up finding the man "Brett" leaning over her in the bed, smelling of alcohol and tobacco. He then laid on her, forced her to kiss him and then imposed himself on her and engaged in a series of sexual actions involving the commission of the offences already mentioned. The complainant was surprised, frightened and helpless in this situation, but did not mention the incident to Mrs DC the next morning or to her mother when she was picked up later that morning, because she was too ashamed of what had happened.

6 Evidence was given, however, that on the following day RJM told a close girlfriend something of what had happened. Although she elaborated upon the details to her friend over the next few days, RJM did not report the matter to the police until December 2001 when she was 19 years of age, because she did not feel capable of doing so before then. As a result of the subsequent police investigation, RJM was shown three photo boards each containing 12 photographs of similar looking people, one of which was a photograph of the appellant. The complainant was unable positively to identify the photograph of the appellant or any of the other photographs as the man "Brett", whom she said had assaulted her.

7 About two months later the investigating detective showed another of the photo boards to Mrs DC and she identified the photograph of the appellant as being the photograph of the person who looked most like the Brett Smith who was at her house on the day that RJM came and babysat her children.

8 Twelve days later the detective showed Mr DC a photo board, including a photograph of the appellant. he identified the photograph of the appellant as being very familiar. Following this, this investigating police officers visited the appellant's home and took him to the Midland detective's office where he participated in an interview which was recorded. In the course of this interview the appellant admitted having been to the house occupied by Mr and Mrs DC at West Road, Bullsbrook, on a number of occasions in and around 1996 and said that he had stayed at that house for about two weeks at one point. He denied ever being at the house on an occasion when RJM was babysitting the children and he denied committing the alleged offences. He was then arrested and charged by the police.

9 At the trial, evidence was given by RJM (by video link). She gave a detailed account of what had happened to her at the West Road home on the evening in question, describing the man involved as "Brett" and giving various details of his features, build, apparent age and clothing. She did not, however, make any positive identification of the appellant during the course of the trial or earlier. While she acknowledged that she had been unable to identify her assailant from the photo board shown to her by the police, she said that those were photographs taken several years after the incident whereas she had only seen the man involved for one night and that his appearance had probably changed since then. Her final position was that "I know that a man whose name I was told was Brett did the things I have described" (AB 66).

10 The complainant's mother gave evidence and confirmed that she had taken her 14-year-old daughter to the house used by Mr and Mrs DC in December 1996 for her to babysit the children and that her daughter returned the next day. She knew the appellant, Brett Arthur Smith, and had known him in 1996 when he had worked at saleyards in the area where she had gone to buy cattle and he had asked her about putting horses in the stables at the home which she owned at West Road.

11 Mr and Mrs DC each also gave evidence for the prosecution. Mr DC confirmed that in 1996 he and his wife and three children had been living in the house at West Road and that one of the owner's children, RJM, used to come over and give his wife a hand with their own children. He confirmed that he knew a person named Brett Jones or Smith, he thought Smith, and that this man used to come to the house. He recalled that Brett had been at the house at the same time as RJM on two occasions. According to Mr DC, on both these occasions Brett was accompanied by his lady friend and that he and his wife and Brett and his friend had sat up talking and drinking on the veranda. He confirmed that he had identified a photograph of the appellant shown to him by the police as being the same person as the "Brett" who had visited the home on the occasions described. He also described throwing Brett out of the house because he had performed a trick with a match which had resulted in his 4-year-old son being burned.

12 Mrs DC (since divorced and now known as Ms LC) gave evidence by video link from Ballarat. She confirmed that she and her then husband, Mr DC, and their three children had been living at the house at West Road in Bullsbrook in 1996 since just before Christmas and that RJM, one of the landlady's daughters, used to come and help out. She remembered one such occasion when RJM visited when Brett Smith was at the house and she confirmed that RJM had come over to babysit, arriving in the late afternoon. She said that Brett, a friend of her husband, arrived and sat out on the veranda of the house with her husband and herself drinking. She described his clothes and confirmed that RJM was inside the house helping the children. She confirmed that RJM went to bed at about 9 o'clock and that about 10.30 she went to bed, leaving her husband and Brett out the front. She confirmed that RJM slept in the boys' room on another bed and that when RJM got up at about 7.30 or 8 am Brett had gone. She also recalled the man Brett because of a match trick played with her son and confirmed that she had made a positive identification of him when shown a photo board by the police. She rejected the proposition put to her in cross-examination that the only time that Brett Smith had attended the house was in the company of his woman partner.

13 Another young woman gave evidence by video link from Cairns in Queensland. She was the school friend of RJM and explained that the two were best friends at the local high school and that RJM had told her about an incident of having sex with a man whose name started with a B and which she thought was Brett, giving details which were consistent with the evidence that the complainant had previously given.

14 Other evidence for the prosecution comprised statements, read by consent, from a public servant and a police officer who had prepared the photo identification boards which had been used by the police in the course of their investigation, describing the methods employed for the selection and display of the photographs used. There was then a videotape shown of the photo board identification process conducted by the police with Mr DC.

15 The prosecution then called a police officer who described the preparation of the photo boards and how they were shown to RJM in July 2002 without her being able to make an identification. This officer then described showing the other photo boards to Mr DC and to Mrs DC and tendered the videotapes of those processes. This detective went on and described his visit to the appellant's home on 24 October 2004 and the subsequent recorded interview at the police station, the audiotape of which was played and tendered. A second police officer was called to confirm the details of the recorded interview.

16 In the course of the recorded interview, there was a passage in which the appellant said to the police officers that at all material times he was with his girlfriend, Lesley (Ford or Wilkinson), and that she could confirm that he was not at the West Road home in December 1996 when these incidents were alleged to have occurred. In one question in cross-examination of the first police officer, counsel for the appellant asked whether, in the course of the investigations, that officer had gone to speak to the Lesley Ford or Lesley Wilkinson mentioned in the interview and he said that he had not. Similarly, when cross-examining the second police officer present throughout the recorded interview, counsel for the appellant referred to a recorded response by the accused, that if Lesley Ford or Wilkinson were spoken to she would confirm what he (the appellant) had said. Then counsel asked this officer if she had ever made any enquiries of that person and she also confirmed that she had not.

17 At his trial the appellant did not give evidence nor did he adduce any evidence in his own defence. Therefore, while the onus at all times remained on the prosecution to establish beyond reasonable doubt proof of all of the elements of each of the offences alleged, in practical terms, the main issue of fact left for the jury to decide was whether, if the jurors were satisfied that there had been sexual penetration and indecent dealing as described by RJM by a man during the course of an evening at the house at West Road, Bullsbrook, it was the appellant who had performed the acts alleged.

18 At the commencement of the hearing of this appeal counsel for the appellant applied for leave to amend the four grounds of appeal contained in the notice of appeal dated 3 June 2004 by replacing them with two new grounds of appeal. In the absence of objection on behalf of the respondent, leave was granted and the new grounds of appeal are now:

"1. The learned trial Judge erred in failing to adequately warn the jury as to the dangers of identification evidence, both generally and in the circumstances of the particular case.

(a) The learned trial Judge failed to warn the jury that mistakes in identification are sometimes made even by honest witnesses;

(b) the learned trial Judge failed to warn the jury that mistakes in recognition are sometimes made, even by persons well acquainted with the accused;

(c) the learned trial Judge failed to isolate and bring to the Jury's attention weaknesses in the evidence relied upon by the State to identify the appellant as the person referred to by the complainant.

2. When directing the jury as to the delay in complaining, the learned trial Judge failed to draw the jury's attention to the inconsistencies and discrepancies in the evidence of the prosecution witnesses that may have affected the jury's assessment of the reliability of their evidence."

19 Further, at the commencement of the appeal, counsel for the appellant mentioned that he had just then been handed a statutory declaration from a potential witness which might amount to fresh evidence and which he would refer to later in the hearing. Without attempting to develop any submissions about the significance of that document in the course of presenting the appeal, counsel for the appellant raised the matter again at the end of his submissions in reply. He sought to tender the statutory declaration, observing that he did not think that it would take the matter much further at that point, but that it may be that he would have to contact the author. The person who made the declaration was Ms Lesley Ford, the lady companion of the appellant at the time the offences were said to have been committed.

20 In these circumstances, upon the submission of counsel for the respondent, the Court directed that the appellant should be granted 14 days in which to formulate his position about the significance, if any, of the statutory declaration, make a written submission in this respect to the court and serve it upon the office of the respondent. The respondent was then granted seven days within which to respond. At that point the statutory declaration of Lesley Anne Ford declared 6 October 2004 was produced and marked for identification.

21 Later, after the 14 days granted to the appellant had expired, a written application was filed and served seeking leave to add a proposed additional ground of appeal, formulated as follows:

"The conviction should be set aside and a new trial ordered as a result of fresh evidence obtained subsequent to the appellant's conviction.

PARTICULARS

1. On 6 October 2004, Lesley Anne Ford provided a statutory declaration to the appellant's solicitors and subsequently swore an affidavit on 22 October 2004.

2. Ford deposed that she and the appellant had not met the [DC] family prior to moving to Bullsbrook in August 1997, but she and the appellant had only known the [DC's] between August and October 1997, that the appellant did not stay overnight at the [DC's] without her there during that period of time and that neither she nor the appellant had met the complainant during that time."

In addition, the appellant applied for orders under s 697 of the Criminal Code that:

"1. The affidavit of Lesley Anne Ford be received as evidence in this appeal; and

2. Lesley Anne Ford of Unit 2, Caravan Park, 95 Pinjarra Road, Pinjarra, in the State of Western Australia attend the hearing of this appeal and be examined on behalf of the appellant."

22 The affidavit to which these applications refer is an affidavit of Lesley Anne Ford sworn 25 October 2004. The deponent swore that she knew the appellant, having gone out with him for a period of eight years from the end of 1994 to 2001 and that, when she was contacted by his lawyer and asked questions about him, she did not appreciate the serious nature of the enquiry or of the charges that he was then facing. She says that, therefore, she did not give proper consideration to the lawyer's enquiry.

23 Ms Ford says in her affidavit that she told the lawyer that she could not remember when the two moved to Bullsbrook, that her memory was not good and that the appellant and she were always together except for a few occasions when she recalled him going out by himself. In this affidavit Ms Ford also deposed that the two had moved from Chidlow to Bullsbrook on approximately 8 August 1997 - a few days after she had been discharged from hospital. She also deposed that she and the appellant had not met Mr and Mrs DC before moving to Bullsbrook. She swore that she was always with the appellant and would remember if he had stayed overnight somewhere whilst she was going out with him, especially over the short duration after she had come out of hospital and moved to Bullsbrook. She also deposed that there was a brief separation whilst she was in Swan Districts Hospital from 29 July 1997 to 1 August 1997 and that during this time the appellant had looked after her son. She further swore that the only occasion during which the appellant spent time away from her, while they were living in Bullsbrook, was when the appellant went to his parents for his father's birthday on 4 April 1998 when her son accompanied him. The deponent says that she stayed at home caring for a sick horse. Finally, Ms Ford deposed that she and the appellant did visit the DC's on a couple of occasions after moving to Bullsbrook but she does not ever recall meeting RJM.

24 The affidavit then goes on to describe an episode when Ms Ford, the appellant and her son, stayed with Mr and Mrs DC in early October 1997 for about three days as a temporary arrangement during which an argument developed between them over some missing medication for her son's condition of ADD. This led to an incident resulting in the appellant, Ms Ford and her son leaving the DC home abruptly, but returning a few days later to collect their personal belongings, some horses and a dog. The affidavit concludes with Ms Ford stating that the association which she and the appellant had with the DC's was only for a very short period from mid-August 1997 to October 1997 and that there was no occasion during this time when the appellant and she were apart overnight.

25 The application for leave to introduce the additional ground of appeal and to adduce the new evidence was also supported by an affidavit of the appellant's solicitor, Mr M R Gunning, sworn 15 November 2004. By this affidavit, Mr Gunning states that he is the solicitor for the appellant and on 8 October 2004 appeared as his counsel at the hearing of this appeal. Shortly before the commencement of the appeal Mr Gunning was handed a statutory declaration by Lesley Anne Ford as already described. Mr Gunning stated that, after the hearing of the appeal, on 11 October 2004 he contacted a solicitor at the Legal Aid Commission who had acted for the appellant at his trial in the District Court. Mr Gunning annexed to his affidavit a letter from the Legal Aid solicitor to him dated 11 October 2004, evidently written in response to this enquiry. There is no affidavit from the solicitor at Legal Aid, nor has there been any attempt made to seek leave to adduce evidence from him about what occurred. Nevertheless, there has been no objection to reference being made to this correspondence by the respondent and, therefore, it is possible to set out the material parts of this letter which are as follows:

" ... I have recovered Mr Smith's file from Legal Aid's archive.

I advise that in relation to Lesley Anne Ford, I spoke to her by telephone on 10 May 2004 in relation to matters that Mr Smith had raised with me.

Ms Ford advised me that she had been in a relationship with Mr Smith for some eight years, that they had lived at Bullsbrook, but she could not remember when they had moved to Bullsbrook. She advised that her memory was not good and that Mr Smith did go out by himself on occasions.

Mr Smith had raised with me the issue that he never went anywhere at that time unless he was with Ms Ford. I advised Mr Smith of Ms Ford's responses and advised him that it would be of little value to call her given these responses. She was not called as a witness at trial.

... "

26 In his affidavit, Mr Gunning also deposed that on 20 October 2004 he received a facsimile of a discharge summary from the Health Department of Western Australia relating to the treatment of Lesley Anne Ford between 29 July - 1 August 1997. Mr Gunning annexed a copy of that facsimile but, again, there is no affidavit or other admissible evidence from an officer of the Health Department, a hospital administrator or from any medical practitioner about the alleged hospitalisation of Ms Ford. Nevertheless, again in the absence of objection, it can be said that the discharge summary relates to a patient named Lesley Anne Ford then of Lot 29 Lockwood Road, Chidlow, indicating that that person had been admitted as a patient under the care of Dr Collis at some unidentified institution on 29 July 1997 and discharged on 1 August 1997.

27 The affidavit of Mr Gunning also states that on 22 October 2004 he received an affidavit from Ms Ford which he filed at this Court. Presumably, this is a mistaken reference to the affidavit of Ms Ford sworn 25 October 2004 which is the affidavit which the appellant is seeking to adduce as evidence at the hearing of the appeal. In addition, the appellant has filed written submissions dated 15 November 2004 in support of the application for leave to add the proposed new ground of appeal, to adduce the "fresh" evidence constituted by the affidavit of Ms Ford, and for her to be called as a witness to testify and be cross-examined at a further hearing of this appeal.

28 On 25 November 2004 the respondent filed further written submissions in relation to the materials which had been filed and served on behalf of the appellant. The respondent does not oppose amendment of the grounds of appeal in order to add the proposed additional grounds of appeal. The respondent submits that the proposed evidence of Ms Ford is not "fresh" evidence because it would have been available in the exercise of reasonable diligence for use at the trial. The respondent also submits that, having regard to its nature and to the statements made by Ms Ford to the Legal Aid solicitor, her evidence cannot be regarded as being cogent or credible. These submissions also contend that, while there are circumstances in which "new" evidence, that is evidence which has come to attention since a trial, even though it might have been available at the time of the trial had further enquiries been made, can later be adduced on an appeal. No such circumstance can be found here. The submission goes on to assert that evidence of this nature will not justify a new trial unless, having regard to all the material upon which the appellant now seeks to rely, the court can conclude that there was a miscarriage of justice at the trial - Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 at 391 - 392 per Malcolm CJ at [14]. Not only must such evidence be capable of belief but there must also be a significant possibility that the jury, acting reasonably, would have acquitted the appellant had this evidence been before it at the trial - Button v The Queen (supra) at 405 - 406, [58], per Malcolm CJ.

29 The written materials filed by the respondent contain further submissions to the effect that the materials sought to be relied upon by the appellant do not satisfy these tests and they culminate with the submission that it should be unnecessary for the appeal to be re-listed for further hearing or for examination or cross-examination of Ms Ford.

30 We have examined these materials and are satisfied that there is no occasion to require the court to reconvene to hear further submissions because this application can be dealt with on the papers. As the respondent does not seek to cross-examine Ms Ford upon her affidavit of 25 November 2004 and, also, because the appellant has had a full opportunity to present by affidavit all material evidence which he considers Ms Ford may be able to give, there is no occasion for her to be called as a witness or to be heard by the court.

31 In view of the lack of opposition to the proposed amendment to the grounds of appeal by the respondent, we consider that the appellant should be granted leave to amend his grounds of appeal by introducing the supplementary grounds already set out. For the reasons stated, however, we do not consider that any order should be made for the attendance of Ms Ford at a further hearing of this appeal for examination on behalf of the appellant and we would refuse to make any such order.

32 It follows, therefore, that the appeal now must be determined not only on the two grounds originally formulated and argued at the hearing, but on the additional grounds which have been introduced by the grant of this leave and by reference to the recent affidavit of Ms L A Ford.

33 All of the grounds of appeal share the assumption that a vital issue in this case was identification of the appellant and that the direction to the jury given by the learned trial Judge was inadequate in failing to warn the jury specifically about the special risks associated with a case where the jurors were being asked to convict an accused on challenged evidence of identification. The appellant relies directly on the well-known passage in the decision in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 by Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 561 - 562:

"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."

and it is also appropriate to note a further passage in Domican v The Queen (supra) at 565 where their Honours said:

"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."

34 As these passages indicate, the content of the warning which must be given by a Judge in the course of his direction to a jury at a trial where identification is a significant part of the prosecution case must be appropriate to the circumstances of the case. The circumstances of the individual case may reveal which are the factors which require particular judicial attention and mention. It is therefore necessary to consider in some detail the nature of the case which was presented against the appellant at trial and the responses which, through counsel or otherwise, he offered to this.

35 Counsel for the appellant has pointed out that the complainant, RJM, was not cross-examined about whether the incidents alleged had occurred but, rather, the main issue at trial focused upon the identity of the offender. A sub-issue which derived from this was the ascertainment of the date of the offences because, in relation to the new grounds of appeal, the appellant has attempted to show that he and his girlfriend were not acquainted with the DC family until after 1 August 1997. This is said to be inconsistent with the case for the prosecution that the offences were committed when RJM was 14 and when she and her friend were both in Year 9 at school which, if correct, meant that the offences must have occurred some time in 1996.

36 The only evidence at the trial from the appellant was his unsworn statements to the police during the interview at the police station on 24 October 2002 which were tendered against him by the prosecution on the grounds that they contained admissions against his interest: Willis v The Queen [2001] WASCA 296; (2001) 25 WAR 217. It is recognised that, when a statement made by an accused person to police is adduced in evidence against him on the grounds that it contains admissions, it will frequently be found that the statement also contains self-serving or exculpatory material which, to varying degrees, supports the accused's position. It is now established that where such a mixed statement is tendered by the prosecution the accused is entitled to rely upon the exculpatory material and that the jury is entitled to give it such consideration as it thinks fit in support of the accused's case, even if the accused himself does not give evidence at trial - see per Malcolm CJ in Button v The Queen [2001] WASCA 7 at [108]; Mule v The Queen [2004] WASCA 7; McCarrol v The Queen [2004] WASCA 131 per Malcolm CJ at [19] and per McLure J at [37]; and Slater v The Queen [2004] WASCA 151 per Wheeler J at [40] and EM Heenan J at [86] - [89].

37 In the course of the police interview when the appellant was told that RJM had been at the house of Mr and Mrs DC in around 1996 when he was said to be visiting the home and when it was being said that he went into her room and sexually interfered with her, the appellant denied recalling that night or that occasion and said:

"I don't recall that night because I was with another lady at the time."

He went on to say that he had been with this other woman up until 2001. Later, in response to questions from the woman police officer present at the interview, the appellant said that in 1996 he was in a relationship with Lee or Lesley which had started at Christmas 1994 and that they were living together and that he never went out without her. The appellant also said that if the police spoke to Lesley she would tell them that at no time at all was he ever away from her. In the course of this recorded interview the appellant also said that he and Lesley had stayed at the DC's house at Bullsbrook for about two weeks but that they were together for the whole of that time. Also, during the course of this interview, the appellant admitted knowing the mother of RJM. However he denied knowing the complainant or knowing that the mother had a daughter with the complainant's name.

38 This was not a case where witnesses for the prosecution called to identify an accused person had only seen him in some fleeting situation during, or immediately before or after an offence had been committed and were being called upon to make an identification afterwards based only upon that single experience of a person otherwise unknown. As earlier stated, the complainant, RJM, never identified the appellant directly, but her evidence was of meeting a man at the home of Mr and Mrs DC on the afternoon where she attended to help with the children and that this person was introduced by the name of "Brett". She gave a description of his physical appearance and clothing including a distinctive belt and described a trick which he played with the use of a burnt match. Apart from these details, which were capable of providing only tenuous connections with the appellant, the real burden of the complainant's evidence was of the visit to her bedroom that night and the sexual interference which followed by the man known as "Brett" who had been visiting the DC home that evening and who had been talking to, and drinking with, Mr and Mrs DC late into the evening and who, according to the complainant, was still there at breakfast the next morning.

39 While the complainant did not know the offender's full name and was unable to identify the appellant, the appellant was reasonably well-known to Mr and Mrs DC. He had worked with Mr DC and had visited the West Road home at Bullsbrook and stayed with Mr and Mrs DC for a period, the duration of which was disputed, but was either for about three days or a fortnight. In addition, the appellant used to visit the home from time to time to help with the horses and to drink with Mr DC. Therefore, when the identification of the accused was made by Mr and Mrs DC by the photo board out-of-court processes of which evidence was given, the identification was of a person who was reasonably well-known to them both over time and in circumstances where it was unlikely that either witness would be mistaken or unreliable in making an identification of a person whom he and she was well able to recognise.

40 Because the incidents were not the subject of reports to police until early 2002 there was obviously difficulty in identifying the date when the offences were committed. The indictment as amended specified that all the offences were committed on the one date, but that this was between 12 December 1996 and 31 December 1997, a period of slightly longer than one entire year. The evidence of the complainant RJM, and of her school friend was that it happened when RJM was fourteen and in Year 9 of high school. RJM turned 14 on 31 July 1996 and was in Year 9 at High School that year. She said that she did not know the date of the offence but she knew that it was summer time and she thought she was in Year 9. The girlfriend to whom the complaint had been made was in the same year as RJM at High School. She said that she and the complainant were both in Year 9 at the time of the discussion when RJM told her about what had happened. She could not remember the time of the year but thought that the weather was warm.

41 Originally, the indictment had alleged that each of the offences had been committed on a date unknown between 30 September 1996 and 31 January 1997 a period of just over four months. However, the indictment was amended, despite objection on behalf of the appellant, during the trial to allege that the offences had been committed during the period 12 December 1996 and 31 December 1997 so covering a period exceeding one year.

42 The application to amend the indictment to change and extend the period during which it was alleged the offences had been committed was first foreshadowed by the prosecutor late in the morning of 18 May 2004, that is, on the second day of the trial and towards the end of the case for the prosecution. By then evidence had been given by the complainant, by her school friend and by Mrs DC which suggested that the offences had been committed late in 1996 or, at the latest, in February 1997. The latter date was a possibility because of some parts of the evidence of Mr DC. Mr DC had said in the course of his evidence that he did not meet the appellant until the second half of 1997 so that, if this were correct, the offences could not have happened until sometime later. Of course, by 1997 the complainant and her school friend had moved on from Year 9.

43 It was to meet the contingency that the jury might conclude that the evidence about the episode happening in late 1996 was mistaken and that, in reality, the incident had happened in the following year after Mr DC had met the accused that the application to amend the indictment was made. After this application to amend the indictment had been foreshadowed, in the absence of the jury, the trial continued with evidence from the investigating police officers being adduced, including the production and playing of the audiotape of the police interview of the appellant. Once that evidence had been given counsel for the prosecution indicated that he wished to make the application for leave to amend the indictment before closing the prosecution case. That application was then heard and determined in the absence of the jury at the end of the hearing on the afternoon of 18 May.

44 The application to amend the indictment was opposed by counsel for the appellant who submitted that the application involved prejudice to the accused at that point of the trial because the case had been conducted on the footing that the alleged offences had been committed in late 1996 or early 1997 until Mr DC had said in evidence that he had not met the appellant until late 1997, thus revealing that one or more of the witnesses must be mistaken about the date when the events were said to have happened. When asked specifically to state how such an amendment to the indictment as was being proposed could cause prejudice to the appellant in practical terms at that point of the trial, counsel for the appellant stated that he was unable to say but, nevertheless, maintained the objection. We do not regard this as any abandonment or weakening of the opposition by the appellant's counsel to the application because, of course, by extending the time range of the indictment by a period of nearly 12 months a much larger span of time during which the appellant may have been required to account for his conduct came under consideration and, at that point in the trial, there was obviously no scope for any detailed investigations to be made in this regard.

45 The learned trial Judge allowed the amendment following a course of submissions which had turned to the question of what, if any, warnings may need to be given to the jury about the reliability of the evidence of witnesses who had given different estimates of the time when the offences must have been committed. However, one feature which did figure prominently in the course of the submissions addressing the application to amend the indictment was that counsel for the appellant maintained that "the really sole issue of this trial is the question of identification" - AB 129.

The issue of identification/recognition at trial

46 Both Mr and Mrs DC, and the complainant's mother, knew the appellant and confirmed that he had visited the West Road house at Bullsbrook in their presence on several occasions. These were, therefore, witnesses who were well able to recognise the appellant and whose evidence in this regard was therefore likely to be more reliable than evidence of identification given by a witness of a stranger seen only briefly in a situation of crisis. The issue at the trial, therefore, was a variation on the contentious issues of identification which had arisen in cases like Domican v The Queen (supra) in that the proof identifying the appellant as the offender depended, to a significant extent, upon whether or not the appellant had stayed at the DC household alone over night on one visit and, if so, whether that visit had occurred in or about December 1996 as most of the evidence suggested or, later, in the second half of 1997, as implied by the evidence of Mr DC.

47 The complainant, RJM, was not able to identify the appellant but gave other evidence descriptive of the offender. She said that "Brett" was wearing a green or blue check flannelette shirt and black jeans, a belt with a big chunky buckle and black boots. She said that he was of medium height, quite solid and with dark hair and that he told her that he was 35 years old, living in Bassendean or somewhere near Perth, that he had two children and that he worked with Mr DC driving trucks. In her evidence, the complainant also said that, on the day of her visit to the Bullsbrook property before the offences had been committed, "Brett" was drinking beer and later bourbon, he had a pocket knife with him which he was playing with, he played a joke with a match where he asked if she had seen a match burn twice, and he also dared the DC's son to eat dry Weetbix.

48 The evidence from the other witnesses about the appearance and behaviour of the appellant when visiting the Bullsbrook house on different occasions was in some, but not in all, respects consistent with the description of the man "Brett" given by the complainant. Mr DC said that he could remember the appellant being at the home on two occasions when RJM was present, but on both of these occasions he was accompanied by his girlfriend. He described the appellant as usually dressed as a cowboy, wearing black jeans, boots, a flannelette shirt and always wearing a hat. Mr DC said that the appellant had performed the "matched burned twice trick" on his son but said that he had met the appellant some time after the DC's had moved into the Bullsbrook house and that this would have had to have been in the second half of 1997. It had been the evidence of the complainant's mother, the owner of the house, that the DC's had moved into the West Road property on 12 December 1996 and had remained there for about 18 months.

49 Mrs DC (now Ms LC) gave evidence that she had moved into the Bullsbrook house just before Christmas 1996. She said originally that she and her family had stayed there for 14 months but later said that they stayed for four and a half to five months. She could recall two occasions when the complainant RJM was at the house baby sitting and that on one of these occasions the appellant was also present. However, she said that on this occasion the complainant had arrived at the property first and that the appellant had arrived later (a reversal of the order described by the complainant). She described the appellant as dressing like a cowboy, wearing black jeans, boots and a shirt. She described him as being thin, not very tall and with black or dark brown hair. She said that he always used to wear a cowboy hat and always carried a pocket knife. She also could remember the appellant doing the "match burn twice" trick but did not say that it was performed on the occasion when the complainant was also at the house.

50 In the course of the out-of-court interview with the police, which was recorded on the audiotape played to the jury, the appellant agreed that he knew Mr and Mrs DC and that he had been to their house in West Road, Bullsbrook, on some occasions. He maintained that while he knew the complainant's mother he had never met RJM. As previously stated he maintained that on each occasion he had been to the DC house he had been accompanied by his girlfriend. He denied performing any trick with a match or with Weetbix. In this interview the appellant agreed that he had usually carried a pocket knife and wore large belt buckles but denied that he wore cowboy or motorbike type boots.

51 Plainly, the critical issue for decision by the jury was whether or not the prosecution had established, beyond reasonable doubt, that the appellant was the "Brett" referred to by RJM who had committed the offences alleged while staying overnight on the occasion when she was present helping to care for the DC children.

52 In a general way the description given by the complainant fitted the general appearance, clothing and behaviour of the appellant, notwithstanding that RJM was herself unable to make an identification. The process advanced by the prosecution in its attempt to discharge the onus of proof which it bore set out to complete the identification by linking the description given by the complainant to the appearances of a known visitor to the household whom Mr and Mrs DC knew reasonably well and could identify. Factors which bore on the issue of whether or not that connection could be made included the evidence of Mr DC that the appellant had only been at the house in the company of his girlfriend but not when the complainant was present and that he had not met the complainant until sometime in the second half of 1997. This evidence was at variance with the evidence of Mrs DC, the complainant and her school friend that the visit when the complainant stayed overnight to help care for the DC children was either in late December 1996 or possibly in early 1997. Mrs DC maintained that there had been an occasion when RJM had stayed overnight at her home while helping with the children when the appellant had also been present and was not accompanied by his girlfriend. There was also evidence from the police that, when arrested, a belt with a large prominent buckle was found at the appellant's house and that he had a pocket knife in his possession.

53 From all this it is apparent that the case for the prosecution was supported by the evidence of the complainant, her mother, and Mrs DC who all said that the offences were committed in late 1996 as alleged. The offender, while not identified by the complainant, matched her description of a known visitor to the house whom others could readily identify as the appellant. The inconsistency with this line of approach was, obviously, the evidence of Mr DC but, if, after a proper direction, the jury decided that the evidence of Mr DC could be rejected, in the sense that it did not cast any reasonable doubt on the version of events as described by other witnesses, there was clearly evidence upon which verdicts of guilty could be sustained.

54 There was no real suggestion that there may have been another visitor to the house, known to Mr and Mrs DC as "Brett", who had any opportunity to commit the offences or who matched the description given by the complainant, such as it was. Mrs DC had been asked in cross-examination whether she knew any other person named "Brett". She admitted that she did, but that line of questioning did not result in any evidence to suggest that some other person named "Brett" had visited the household in circumstances remotely similar to those alleged in the case against the appellant. Therefore, the absence of any visitor to the DC household other than the appellant in circumstances which matched the known facts was a circumstance which was part of the case for the prosecution. Obviously, it was the prosecution case that the offender, whoever he was, was a person who had been previously known to Mr and Mrs DC, was on friendly terms with them, and had stayed for the afternoon and overnight.

55 Before the learned trial Judge directed the jury, he raised with counsel in the absence of the jury the question whether any special directions were sought by either party. In doing so, the learned trial Judge specifically raised the potential of the need for a Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 warning, in the light of the time which had elapsed between the alleged date of the offences and the appellant being charged. His Honour also raised the possibility of a special direction in relation to the issues of recognition and identity. Much of the discussion which followed centred upon the question whether or not a Longman or a modified Longman warning should be included in the direction.

56 On the question of identification the submission for the prosecution was that, because the appellant had been shown to have visited the house at Bullsbrook occupied by Mr and Mrs DC in 1996 or 1997, this was not a typical identification case so that the standard identification directions would "unnecessarily confuse the jury" (AB 137). By contrast counsel for the appellant at the trial (different counsel appeared on the appeal), emphasised that there had been some uncertainty by Mrs DC (Ms LC) when making the photo board identification of the appellant, but never retreated from his earlier submission that identification was the main issue at the trial. On the resumption of the trial on the morning of 19 May 2004 (the third day) immediately before the jury was directed, the learned trial Judge raised some further matters with counsel in the absence of the jury. Counsel then appearing for the appellant again made reference to authorities which dealt with the dangers of photo boards as opposed to direct identification parades when it came to proof of identity. The learned trial Judge then informed counsel that he proposed to make some comments to the jury and to urge caution in relation to the identification evidence and the context in which it was made. His Honour indicated that he did not consider it necessary to go further in relation to the general issue of any danger involved in relation to the photo board evidence.

57 When dealing with the elements of the offences charged the learned trial Judge directed the jury in terms which included the following observation:

"The third, really the big issue in this trial, is that the indecent dealing was an act of Brett Arthur Smith, that is the identity of the person who indecently dealt ... ." (AB 157)

This observation was made by the learned trial Judge just after stating that the prosecution case involved an attempt to prove that the appellant was the offender, notwithstanding that he had not been identified by RJM either when shown a photo board by the police, or later. No warning in the terms of the Domican (supra) direction was given to the jury by the learned trial Judge, nor were any alleged weaknesses in the process of identification relied upon by the prosecution identified by his Honour or their potential significance presented for the attention and consideration of the jury.

58 After the jury was directed to retire and consider its verdicts further submissions were made to the learned trial Judge by counsel. These resulted in the jury being recalled for a supplementary direction about the onus of proof, the significance of any reasonable doubt, and for an explanation about how any questions which the jury might raise could be referred to the court for attention. No objection was made by counsel at the trial to the absence of a Domican type warning nor was any reference made to a need for some variation upon it.

59 After they had retired and some time had passed, the jury sent a note to the learned trial Judge requesting access to the transcript of the complainant's evidence. Rather than provide this, the learned trial Judge followed the accepted course of recalling the jury and reading to them, from the transcript, the evidence which had been given by the complainant. The jury again withdrew after this had been done.

60 After the jurors had been deliberating for more than four hours, the jury sent another note to the learned trial Judge stating that they were unable to reach a unanimous decision but were in a position where 11 jurors had agreed upon verdicts and that this situation had not altered for several hours. As a result, the learned trial Judge recalled the jury, gave a conventional majority verdict direction, and, after a further retirement, took the verdicts which have already been described involving nine verdicts of guilty, one of which was unanimous, and the remaining eight of which were by a majority of 10 or more.

61 In addition to specifying the issue of identification as a major element in the case for the prosecution, the learned trial Judge, correctly in our respectful opinion, informed the jury several times that a question for their decision was whether or not the limited description of the offender given by RJM, when taken in conjunction with the evidence of identification from photo boards made by Mr and Mrs DC of the accused, satisfied the members of the jury beyond reasonable doubt that it was the accused who had engaged in the conduct described by RJM. At AB 155 his Honour pointed out that the question was whether or not it was the appellant who was the same person as the "Brett" described by the complainant, bearing in mind that she did not identify him when shown a photo board. His Honour also informed the jury that a question for them to consider was whether or not the prosecution had persuaded them beyond reasonable doubt that the occasion described by RJM was the same visit to the Bullsbrook home described by Mrs DC as also involving a visit by the appellant, whom she identified by photo board, alone.

62 His Honour pointed out (at AB 161) discrepancies between the evidence of Mr DC, on the one hand, and Mrs DC (Ms LC) and the complainant, on the other. When coming to deal with the case for the defence his Honour directed the jury (at AB 167) in terms which included the following:

"The defence has quite properly - that it's - the burden on the prosecution to prove this case beyond reasonable doubt and then points to a number of factors which you are urged to consider and which you should consider as to whether or not they displace the conclusion that the offences occurred and in particular that Mr Smith was the offender beyond a reasonable doubt, so the first element of it is the description. What has been pointed out by the defence is some aspects of the description which [RJM] said she had carefully considered over the period of her statements did not match the accused Brett Arthur Smith, namely that he was a truck driver, that he worked with Mr [DC], that he lived in Perth, that he had a wife and two children and other aspects to which your attention was drawn and what is said by the defence is, well, whoever this might be, those descriptions simply don't match the accused person."

There his Honour pointed out that counsel for the accused had claimed that there was a vagueness and weakness in the photo board identifications, particularly by Mr DC. His Honour addressed a submission made for the accused that, in a number of respects, the description given by the complainant RJM did not match the accused, although his Honour did not mention or otherwise identify the respects in which it was submitted that there was a discrepancy in that description. His Honour then went on to direct the jury that:

"Now, all those matters are matters for you and I wish to make no comment to you about how you should approach those matters other than to say you need to look at them, consider them, bring to bear your experience in life and the observations that you have made of the witnesses as they have given their evidence and draw your conclusions, and if, at the end of the day, you are left with no reasonable doubt that Brett Arthur Smith did these things to [the complainant] - well, as I said, in count 6 you won't have difficulty with that, but in respect of the other counts if you have no reasonable doubt then you have a duty to convict."

63 There was no direction generally about the dangers of disputed identification evidence, whether along the lines of the direction in Domican or at all, nor was there any direction that photo board identification may be unreliable, or that other forms of identification were preferable for any stated reasons. Nor was there any warning given that honest witnesses can be mistaken when giving evidence of identification.

64 At the hearing of this appeal it was contended on behalf of the appellant that there was an obligation to give at least a modified Domican warning which, among other things, identified the dangers of relying upon identification evidence where any issue of identity was in question and, particularly, that there was a need for the jury to be warned that honest witnesses can be mistaken when it comes to identification. Further, counsel for the appellant submitted that the learned trial Judge should have identified, and put the authority of his own office behind a warning of, the need for the jury to evaluate certain alleged discrepancies and the evidence relied upon for the identification.

65 The following alleged discrepancies were submitted as requiring such attention from the learned trial Judge:

(a) The complainant made no mention of the appellant wearing a hat, while Mr and Mrs DC said he always wore one.

(b) The only witness to mention the appellant was playing with a knife was the complainant. Mrs DC said that he carried a knife and Mr DC made no mention of it.

(c) The only witness to mention the Weetbix trick was the complainant.

(d) While all witnesses referred to the "match burned twice" trick, only the complainant said it was performed on her that night. Mr and Mrs DC did not say when they saw the appellant perform the trick and did not say that he did it in the presence of the complainant. The complainant's evidence was that Mr DC was present when the offender performed that trick upon her.

(e) The appellant contends that none of the following statements about the offender made by the complainant applied to the appellant, that is:

• that "Brett" said that he worked as a truck driver with Mr DC and lived in Bassendean or near Perth and had two children.

(f) The factors described by the complainant which corresponded with known facts about the appellant were not particularly distinctive features, namely, descriptions of his clothing, build and hair colour.

(g) That Mr DC agreed that many of his friends who had been to the house were closer in age to the age of the offender related by the complainant and were dressed in a similar way.

(h) The evidence of Mr DC that the only occasions upon which the appellant had visited the house were when he was accompanied by his girlfriend and that this evidence was consistent with the appellant's record of interview but was inconsistent with the evidence of RJM and with the evidence of Mrs DC (Ms LC).

(i) Neither Mr nor Mrs DC mentioned that the complainant had been drinking beer on any occasion when she was at the house.

(j) The complainant said that the comments made by "Brett" about her body and appearance were made in the presence of Mr DC but no mention of this was made by Mr DC when giving evidence.

(k) The evidence of the complainant was that when she woke up on the morning following the offences "Brett" was still at the house. Mrs DC (Ms LC) said that the she could not recall the appellant being present in the morning following the visit and Mr DC could not recall the appellant ever staying overnight.

(l) The complainant said that Mr and Mrs DC went to bed together at about the same time, leaving "Brett" alone on the verandah. However Mrs DC said that she went to bed first leaving her husband and the appellant up drinking.

(m) The complainant said that when she arrived for baby sitting it was in the early afternoon and that "Brett" was already there. Ms DC said that when RJM arrived at the house it was about 4.30 to 5 pm and that the appellant arrived later.

(n) Mr DC said that he was working at the time as a truck driver but Mrs DC said that he was not working at all at the material time.

(o) Mrs DC said in evidence-in-chief that she had lived at the Bullsbrook house for 14 months but in cross-examination said she had only been there for four to five months. It was submitted that this had relevance to the issue of when Mr and Mrs DC first met the appellant.

(p) The discrepancy in relation to the date of the alleged offences, namely whether or not they were committed at the end of 1996 when the complainant and her friend were still in Year 9 and when she was 14 years of age or whether they happened in late 1997 as implied if the evidence of Mr DC about meeting the appellant in the second half of 1997 were to be accepted.

66 As a matter of fact, however, the learned trial Judge did specifically address a number of these alleged "discrepancies" in the course of his direction to the jury. His Honour specifically referred to the complainant not mentioning that "Brett" wore a hat (AB 168A); variations in the evidence about the "match burning twice" trick (AB 167D); the evidence of Mr DC that the appellant had only visited the house in the company with his girlfriend (AB 161D); and to the variation in the evidence about whether or not "Brett" was still at the Bullsbrook home on the morning after the offences had been committed (AB 161C). Nevertheless, counsel for the appellant submitted that these references by the learned trial Judge did not involve any independent evaluation of the significance of the alleged discrepancies by the Judge with the authority of his office behind it and were only part of an explanation of the respective cases for the prosecution and the defence. We are unable to accept this submission because, taking the learned trial Judge's direction as a whole and in context, these references should be regarded as illustrations by the learned trial Judge of criticisms made of the case for the prosecution which required the jury's attention and evaluation.

67 With respect to the appellant's submissions in relation to other alleged discrepancies, we are not satisfied that the absence of any specific reference to these by the learned trial Judge in the course of his direction to the jury constituted a failure to draw attention to potentially material discrepancies which had, or were likely to have, any significant bearing on the issue for decision, namely whether or not the prosecution had established, beyond reasonable doubt, that the "Brett" described by the complainant was the person known to Mr and Mrs DC as the appellant who had visited their home at Bullsbrook.

68 As already noted, the identification by Mr and Mrs DC of the appellant as a result of photo boards shown to them by the police, as being the person who had visited their home at Bullsbrook on occasions, was really evidence in the nature of recognition by persons familiar with the identity of the subject, rather than evidence of identification by them of a stranger. Because of the greater familiarity with the subject by a witness who is able to recognise him or her from previous acquaintance different considerations enter into the evaluation of evidence of such recognition. In Carr v The Queen [2000] TASSC 183 at [61] Blow J said:

"As R v Boardman [1969] VR 159 and R v Turnbull [1977] QB 224 illustrate, 'recognition' cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the time of their alleged crimes. It would therefore be illogical to hold that a warning as to the dangers of mistaken identification of the sort discussed in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 need never be given in a recognition case. Obviously, such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend upon all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime."

Obviously, it was for this reason that the learned trial Judge concluded that it was inappropriate to give any specific direction to this jury about potential dangers which exist in a general sense when reliance is placed upon photo board identifications.

69 Both Mr and Mrs DC knew the appellant reasonably well and, as the case developed, it was never suggested that they did not know him or were mistaken in identifying him as a result of their prior acquaintance, or as a person who had visited their home at West Road, Bullsbrook, on previous occasions. Their "identification" or "recognition" evidence was not contested. The case was fought on the basis that the appellant had been known to Mr and Mrs DC and had, indeed, visited their home on occasions. Although, on the evidence of the appellant's statement to the police at the recorded interview, and in the evidence of Mr DC, he visited only in the company of his girlfriend and had never stayed there overnight without her as was being alleged, that aspect of the evidence was contradicted by the evidence of Mrs DC (Ms LC) and the evidence of the complainant.

70 The question, therefore, was whether or not the prosecution had proved that the appellant had stayed unaccompanied at the Bullsbrook house overnight and that it was he who went into the bedroom and performed the actions which the complainant described as having been done by the "Brett" whom she had met there that day, but whom she was otherwise unable to identify.

71 Consequently, the evaluation of the connection alleged by the prosecution between the "Brett" described by the complainant and the appellant known to Mr and Mrs DC as a visitor to the house was not an issue which involved the frailties of memories, impressions or images which have, from experience, been known to result in errors and false identifications from the experience of the years. Properly characterised, the question was whether or not the circumstances of the offence and the offender as described by the complainant, when taken in conjunction with the evidence of Mr and Mrs DC about their knowledge of the appellant and his visits to the Bullsbrook home, established beyond reasonable doubt that the accused was the offender.

72 No doubt, expressed in this way, identification was an issue involved in the proof of the offence, but it was not identification in the form or manner which has rendered identification evidence susceptible to doubt or error because of the vagaries of human perception which have been described in the authorities. The question is whether separate descriptions of the offender and of the appellant, when compared, show that the offender and the accused is one and the same.

73 No doubt there are factors which require care to be exercised before any conclusion that the offender and the appellant was one and the same person could be drawn in the present case. The most obvious of the discrepancies is the conflict between the evidence of Mr DC and Mrs DC (Ms LC) about when the appellant visited the Bullsbrook home and whether he visited alone or accompanied by his girlfriend. Then there is the factor that no complaint was made about the offences by RJM until nearly six years afterwards. Those are concerns which were identified and addressed by the learned trial Judge and which, in our view, do not involve or depend for their resolution upon the frailties which experience has shown often lurk in visual or voice identification or recognition, whether from a process of photo board identification or otherwise.

74 The problems associated with differences in the evidence about the date when the offences could have occurred and whether or not the accused visited the house unaccompanied by his girlfriend were well recognised at the trial and were specifically adverted to by the trial Judge. This was not an occasion on which a warning specially tailored to shortcomings in identification or recognition evidence was required because the case for the prosecution did not depend on whether or not the identifications which were made from the photo boards were correct.

75 The question was, rather, whether the person who was so identified had been at the house and had stayed overnight on the occasion when the offences were said to have been committed. The resolution of that question involved the evaluation of other evidence, admittedly contested, but not the resolution of possible shortcomings in recognition or identification. Clearly, that was the substantial issue at the trial and the issue which was determined by the jury by its verdicts. In our respectful view there is nothing to suggest that the detailed direction which the learned trial Judge gave to the jury generally, or in this respect, was deficient, or that the accepted application of the principles outlined by the High Court in Domican v The Queen (supra) required an additional direction of any kind in this case. For these reasons we would dismiss ground 1 of the amended grounds of appeal.

76 The second of the amended grounds of appeal contends that the learned trial Judge failed to draw to the attention of the jury, when giving a direction about the delay in complaining, inconsistencies and discrepancies in the evidence of the prosecution witnesses which may have affected the jury's assessment of the reliability of their evidence. Very little, if any, of the written submissions by the appellant developed this ground and the submissions at the hearing of the appeal did not take it much further. Nevertheless, the appellant has raised the issue and it is essential that the court examine this ground separately.

77 The learned trial Judge addressed the potential consequences of the delay in the charges being brought in some detail at AB 165 - 167. As was necessary and proper, the learned trial Judge directed the jury that it was only the complainant, RJM, who had given evidence or who could give evidence, about the details of the alleged indecent dealing and that, consequently, there was a need for the jury to be satisfied beyond reasonable doubt about the reliability of her evidence before the accused could be convicted. His Honour went on to emphasise that the events described in the evidence were said to have taken place some seven and a half to eight years previously and that the appellant had not heard of any allegation against him until he was interviewed in October 2002, some five or six years after the alleged offence. His Honour stressed that the jury should bear in mind that the longer the delay there was in these things being spoken about the more scope there is for error, particularly where events described occur in childhood, warning the jury of the serious nature of the allegations which had been made. His Honour explained that delay in making a formal complaint did not mean that the events complained of had not occurred and that there might be good reasons why a formal or informal complaint was not made earlier. In doing so his Honour pointed out that the defence did not suggest that these offences had not been committed by some person, as distinct from being committed by the accused.

78 His Honour reviewed factors which were said by the complainant to explain why she had not complained earlier and then pointed out the difficulties experienced by the accused in answering the charges which were first made against him in relation to events some five or six years before. His Honour emphasised the need for the jury to scrutinise closely the evidence of the complainant. His Honour also drew the attention of the jury again to the evidence that the complainant had described the events a day or so later to her school friend and said that the school friend had confirmed this when giving evidence at the trial, not as evidence of the truthfulness of the complaint but as showing consistency by the complainant in her conduct shortly afterwards and with the version of events she described at the trial.

79 His Honour then proceeded to deal with the case for the prosecution and the case for the defence, in the process pointing out discrepancies which had been relied upon by counsel for the appellant at the trial.

80 There is no basis to conclude that the learned trial Judge failed adequately or at all to direct the attention of the jury to the possible difficulties associated with the delay in the complainant reporting these offences or in explaining the factors which may have led to that delay or the effect of that delay in causing difficulties for the appellant in answering the case.

81 No doubt it is probable that the discrepancies in the evidence about when the appellant first visited Mr and Mrs DC at the house at Bullsbrook, whether he ever made visits unaccompanied by his girlfriend, whether he ever stayed unaccompanied at the house overnight and so on, may have been aggravated by the passage of time and by consequent difficulties which individual witnesses may have had in recalling events precisely. However, the earlier examination of the evidence undertaken in these reasons leads us to the conclusion that the discrepancies which existed, and which must inevitably have been considered by the jury, were fully identified by the learned trial Judge and that their implications were made obvious to the jury. These discrepancies obviously needed to be evaluated by the jury when determining what conclusions it could reach, beyond reasonable doubt, from all the evidence presented. There is no reason to conclude that the jurors were unaware of the effect which the passage of time before these offences were reported had on the controversies of fact which were presented to them. There was a need to evaluate the evidence carefully, whether viewed from the perspective of the length of time which had passed before the offences were reported, or from the perspective of whether or not the accused was the person described by the complainant as the "Brett" who had dealt indecently with her. In both respects the direction of the learned trial Judge appears, with respect, to have been adequate. The second ground of appeal should also be dismissed.

82 The circumstances leading to the introduction of this new ground of appeal and the reliance placed by the appellant upon the contents of an affidavit of Lesley Anne Ford sworn 25 October 2004 have already been set out. The substance of this additional evidence is that the appellant did not meet Mr and Mrs DC until August 1997 or later and that at no time during the course of that acquaintance did the appellant visit the DC home at Bullsbrook unaccompanied by Ms Ford.

83 This is not fresh evidence in the sense in which that term has long been accepted by the authorities. Ms Ford was available for interview, and was interviewed, by the appellant's legal representative before the trial and was asked, in effect, whether she could corroborate his statement to the police that during the period when it was alleged that the offences were committed they had always been together and he had never stayed overnight without her at the Bullsbrook property. The evidence is that she was not able to provide persuasive corroboration to that effect when interviewed by the Legal Aid solicitor although, of course, at that date the allegation in the indictment was that the offences had been committed during the period from 30 September 1996 to 31 January 1997. Nevertheless, her recent statement of first meeting Mr and Mrs DC on or after early August 1997 would still have been relevant and material evidence, which could have assisted the defence of the appellant had it then been made. The fact that it was not made at that time when the appellant was facing a charge of committing these offences during the period 30 September 1996 to 31 January 1997, long before the alleged first meeting with the DC's, must cast serious doubt on the cogency and reliability of the testimony now being offered. Similarly, there is no suggestion in the recorded interview between the appellant and the police that, at the time when the offences were first alleged to have been committed (that is before the indictment was amended on the second day of the trial), the accused did not know or had not met Mr or Mrs DC or had not visited the property at West Road, Bullsbrook. The explanation given by the appellant in the interview was that, for the whole of this period he was always in the company of his girlfriend overnight.

84 The affidavit of Ms Ford does say that she had gone out with the appellant for a period of eight years from late 1994 until 2001. However, it does not in any degree dwell upon events before early August 1997 after which she was discharged from hospital and the pair moved from Chidlow to Bullsbrook. Her evidence that the appellant was always in her company overnight (except on two other occasions where he was elsewhere with members of the family) does not deal specifically with the period September 1996 to February 1997. It is very likely that the jury must have concluded that the offences were committed within this period, because of the evidence of the complainant and her girlfriend that the events the subject of the indictment occurred when they were both in Year 9. If the jury had rejected that evidence that would involve the rejection of a significant part of the complainant's case to an extent which would have involved doubt being cast over the rest of her evidence. If that evidence was accepted, however, as the verdicts suggest it was, then the conclusion must be that the offences were committed some time in late 1996 or, at the latest, in early 1997.

85 On this basis the evidence contained in the affidavit of Ms L A Ford does not suggest that there is any significant probability that a jury would have concluded otherwise had the evidence contained in the affidavit been before it at the trial. If evidence of the kind set out by Ms Ford in her affidavit which appears to lend strength to the evidence of Mr DC at the trial that he and his wife did not meet the appellant until the latter half of 1997, had been before the jury, there may have been more reason to question whether the offences had been committed while the complainant was in Year 9 at school as she claimed.

86 We consider that this potentiality needs to be evaluated, having regard to the apparent cogency of Ms Ford's affidavit generally, and its consistency or otherwise with the evidence which was adduced at the trial. As already observed, the evidence of Ms Ford really does not address, in any material way, the conduct, habits or possible absences of the appellant during the time before August 1997 and, consequently, does not meet the evidence which the jury must be regarded as having accepted at the trial. When this is coupled with the variation in the accounts of what occurred given by Ms Ford in the course of her interview with the Legal Aid solicitor, and the account now contained in the affidavit which is offered as fresh or new evidence, we do not consider that this new material can be regarded as cogent, still less that it is likely, had it been adduced at the trial, that different verdicts would have been returned.

87 For these reasons, while allowing the further amendment to the grounds of appeal by the introduction of this additional ground, we would refuse to admit the new evidence with the consequence that the further ground of appeal should be dismissed. For completeness we should add that if, contrary to the conclusion which we have just expressed, it was decided that this new evidence should be admitted on the hearing of this appeal, we would still conclude that this further ground of appeal should be dismissed, having regard to the lack of cogency of that evidence.

88 Earlier in these reasons we have set out the circumstances which, on 8 October 2004, led the court to direct that the appellant be granted 14 days from that date in which to formulate his position about the significance, if any, of the statutory declaration of Ms Lesley Ford produced at the hearing of the appeal and that the respondent should then have seven days within which to respond. As a result, the appellant filed and served (late) an application to add to his grounds of appeal and to adduce additional evidence in the shape of the affidavit from Ms L A Ford sworn 25 October 2004 and an affidavit from the appellant's solicitor, sworn 15 November 2004. Answering submissions by the respondent dated 25 November 2004 were filed and served. These materials have been examined and considered by the court, as described earlier in these reasons.

89 However, in addition, the solicitors for the appellant wrote again to the court by letter dated 17 January 2005, copied to the solicitor for the respondent, offering what were described as copies of a letter from the Chidlow Primary School and a handwritten response to an enquiry by Ms Ford from the Bullsbrook Primary School designed to show that Ms Ford's son had been attending school at Chidlow until 6 August 1997 and had then transferred to school at Bullsbrook on 18 August 1997. That was followed, still later, by a letter dated 21 January 2005, also copied to the solicitor for the respondent, enclosing a statutory declaration of Lesley Anne Ford declared on 19 January 2005 to the effect that her son changed enrolment from Chidlow Primary School to Bullsbrook District School between 6 and 18 August 1997. This material is proffered in support of the contentions that the appellant did not move from Chidlow to Bullsbrook until the second half of 1997 and that it was therefore more likely that he did not become acquainted with Mr and Mrs DC or make any visits to the home at West Road, Bullsbrook, until the second half of 1997.

90 Putting aside for a moment the major procedural irregularities involved in submitting these additional materials to the court at this stage without the leave of the Court, we are satisfied that there is nothing in these materials which would in an way affect or alter our conclusion that the application by the appellant to adduce further evidence, including the evidence of the affidavit of Ms L A Ford sworn 25 November 2004, should be dismissed for the reasons already given.

91 Nevertheless, it is necessary to express dissatisfaction with the manner in which these additional materials have been submitted to the court. No application in proper form has been made to the court for leave to re-open the hearing of the appeal, to make further submissions or to adduce further evidence. No affidavit has been presented verifying the truth of the contents of the materials or making any attempt to lay a basis for an application for leave to re-open the case, to make further submissions or to adduce further evidence. The perfunctory observation in the letter of 17 January 2005 to the Associate of the presiding Judge that:

"If you wish this material to be presented more formally by way of an annexure to an affidavit of Ms Ford, that can be arranged at short notice."

is entirely inappropriate as it overlooks the obligation of any party to proceedings seeking to make an application to this Court or to obtain any specific form of relief to do so in the prescribed manner and form and upon his own initiative.

92 These developments following the unexplained late compliance by the appellant's solicitors with the directions given on 8 October 2004 for the filing of any further submissions or evidence within 14 days of that date make it necessary for the court to emphasise, in strong terms, the obligation upon litigants and solicitors to comply fully and promptly with the rules of procedure and with any directions given by the court. In this regard the observations of Mason J in Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246 at 257 - 258 are particularly apposite. His Honour said:

"I should express my dissatisfaction with the way in which the appellant's case has thus far been presented.

...

After argument had concluded in this Court lengthy written submissions dealing with issues not hitherto raised and a further affidavit were filed.

...

The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions."

See also Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 at 329 - 330 and 368; and NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2005) 79 ALJR 1 at 39 per McHugh ACJ, Gummow, Callinan and Heydon JJ at [191] - [192].

93 As there has been no application by the appellant for leave to adduce this further evidence or make further supplementary submissions, it is not necessary for the court to take any further notice of, or to make any order in respect of, this recent material.

Smith v The State of Western Australia [2005] WASCA 19

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (146 paragraphs)

Smith v The State of Western Australia [2005] WASCA 19 (17 February 2005)

SMITH -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 19 (17 February 2005)

Parties

Cases Cited (7)