Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395

Burchielli v The Queen [1981] VicRp 61; [1981] VR 611

Clune (No 2) [1996] VicRp 1; [1996] 1 VR 1

Coates v The Queen, unreported; CCA SCt of WA; Library No 940102; 1 March 1994

Dickson [1983] VicRp 19; [1983] 1 VR 227

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

Garlett v The Queen [2000] WASCA 72; (2000) 111 A Crim R 336

Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998

Leary v The Queen [1975] WAR 133

Lowndes v The Queen (1997) 95 A Crim R 516

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Pinta v The Queen [1999] WASCA 125

Pitkin v The Queen [1995] HCA 30; (1995) 69 ALJR 612

R v Tugaga (1994) 74 A Crim R 190

R v Walsh, unreported; CCA SCt of WA; Library No 950385; 4 August 1995

Sutton v The Queen [1978] WAR 94

Thompson v The Queen (1992) 8 WAR 387

Weeder v The Queen (1980) 71 Cr App Rep 228

1 PIDGEON J: I agree with the reasons of Wallwork J that this appeal should be dismissed.

2 WALLWORK J: On 23 June 2000 and after a trial at which he had pleaded not guilty, the applicant was convicted of 11 counts of aggravated sexual penetration, one count of attempted aggravated sexual penetration, three counts of aggravated indecent assault, one count of burglary, one count of deprivation of liberty and one count of making a threat to kill. All of those offences were alleged to have been committed by the applicant against the one woman on one night.

3 On the first day of the trial at which the applicant was convicted of the offences referred to above and against which convictions he now appeals, the applicant was due to face trial on 34 other charges of offences against two other women. However the applicant pleaded guilty to counts 1 to 34 on the indictment, being the charges against the two other women. Because of those pleas, the applicant was before the commencement of the trial at which he was convicted of the first abovementioned offences, convicted of 34 other offences being two counts of burglary, 13 counts of sexual penetration without consent, eight counts of aggravated indecent assault, seven counts of aggravated sexual penetration without consent, three counts of indecent assault and one count of making a threat with intent to prevent the doing of an act by another person.

4 After he had pleaded guilty to the 34 charges against the two other women on the indictment, a fresh indictment was filed and the trial proceeded. At the trial evidence was given by the two other women concerning the offences which had been committed against them. There was also evidence given concerning identification procedures involving photoboards in which the two other women had participated.

5 At the trial the Crown case against the applicant was said by the prosecution to be entirely circumstantial. There was no evidence given by the complainant or by any of the other witnesses including the two other victims that they had identified or were able to identify the applicant as the offender. The prosecution conceded that there had been no "positive identification" of the applicant. Each of the three victims said that the person that they had selected from the photoboards was "similar", or "very similar" to the applicant.

6 The prosecution conceded at the trial that if the identification evidence by the victims had been the only evidence implicating the applicant, the jury could not have returned verdicts of guilty. However it

was contended by the prosecution that the circumstances of the offences against the three women had so many similarities, that a jury, taking into account all the circumstances, including the facts that the three victims had selected the applicant from photoboards on the basis that the offender had been "similar" to him, should convict the applicant.

7 The applicant now applies for leave to appeal against the convictions, firstly on the ground that the learned trial Judge erred in allowing the evidence of the photoboard identification to be admitted into evidence. The second ground of appeal is that in his direction to the jury the learned trial Judge erred by failing to give adequate directions as to the way in which the identification evidence could be used.

8 In the course of his summing up at the conclusion of the trial, the learned Judge told the jury that the essence of the Crown case was that by pleading guilty to two series of offences against the two other women, the applicant had admitted to committing offences of such striking similarity, and in circumstances of such striking similarity, that the only explanation could be that it had been the same man who had committed the offences against all three women. His Honour told the jury that the prosecution had contended that in the three cases the applicant had been living close to the victims at the relevant times and that the general descriptions which a number of the Crown witnesses gave of the offender matched his general description.

9 His Honour told the jury that each of the three women victims, in different circumstances, had identified the applicant's photo on a photoboard as a person similar to the offender who had committed offences against them. Also, that it had been said by the prosecution that the alibi which the applicant had given on the night of his alleged offences against the victim, the subject of the trial, had been shown to be false. It had further been said by the prosecution that the offences had all been committed within a year; that at the time of the offence against the victim in this case the applicant had been living within walking distance of her. In each of the three cases the women offended against had been living alone or with their children, but without adult males. Each of the victims had been about the same age. They all had blonde or blondish hair. It seemed that in each of the three cases they had been watched before the crimes had been committed against them. The applicant had admitted that he had watched the two women in Northam. It had been said that the offender in each case had told the victim something about him having been in gaol or being on run from gaol; that there had been similar language used during the offences; that the women in each case had been told not to contact the police. In each case the offender concerned had committed a long list of very similar sexual offences against the woman concerned. Items had been forced into them. Two of the victims had been forced to commit unusual acts with the applicant which were nearly identical. In each case, following the offences, the offender had calmly stayed and talked with the victims. The victims had given general descriptions of their assailant which could fit the applicant. They had all said that the offender was an aboriginal man. The age given by the victims had been approximate but in the range of this accused man's age. Some of the physical descriptions had been consistent. Each of the victims had given general descriptions to the police which had matched the applicant's description although they had not matched a lot of other men's descriptions. Finally the applicant had said that he had not been in the Midland area on the night of 13 and 14 March. However, the prosecution had contended that that was false in that the applicant had told the detectives that he was at Northam on 13 March and not in Collie as his alibi suggested. The applicant had said in evidence that a Mr Taylor had given him a lift from Collie but that fact had been denied by Mr Taylor himself. Mr Taylor had said that he had given the applicant a lift on one occasion to Midland, but not to Northam as alleged by the applicant.

10 At the trial the fact that the relevant offences had occurred was not disputed by the defence. The question at issue was who the offender had been. The applicant had denied it was him.

11 The learned trial Judge directed the jury on the question of circumstantial evidence and how the jury could use the evidence of the similar attacks on the other two women. He told the jury that what they were being asked to consider was whether all the evidence established circumstances of such a striking similarity that the only rational explanation was that the offender must have been the applicant. He told them that they had to be satisfied of that beyond a reasonable doubt. He warned them against using the pleas of guilty to conclude that the applicant was the sort of person who would commit the offences alleged against him.

12 His Honour then outlined the defence which had been advanced on the applicant's behalf. He discussed the defence in some detail. He commented that there were difficulties concerning the photoboard identification and that those had been emphasised by the defence. He gave details of those difficulties. They included the problems which were raised at the hearing of this application including that the victim of the offences to which the applicant had pleaded not guilty, had not been shown the photoboard until three years after the event and had then been shown a photoboard with two photographs of the applicant amongst the 12 people on the board. There was also another problem in that one of the other victims had been shown a photoboard two days after the offences against her and had not then identified anyone as being similar to the offender and yet three years later she had selected the applicant from the same board as being a similar looking person to the offender.

13 His Honour referred to the circumstances in which one victim, who had said in evidence that she had only seen a man's face at a window for a few seconds and had not seen identifying features such as his nose and mouth, had said three years later that the person on the photoboard whom she had picked out, was similar to the applicant.

14 His Honour stressed that the relevant identifications from the photoboards had not identified the offender as being the applicant. His Honour said that:

"... the photoboard evidence, given as it was from events three years later when none of them were sure that it was the man doesn't take you very far: that insofar as what I will call the similarity evidence is concerned, there were also not only similarities, but differences."

15 The learned Judge reminded the jury that the defence counsel had urged them to focus on the differences in the three cases rather than on the similarities which had been relied on by the prosecution and to discount the photoboard identification. His Honour said that the defence counsel had emphasised that the applicant had always been consistent in what he had said and that there had been some evidence to support the alibi evidence of the applicant.

16 His Honour warned the jury about the value of the photoboard "recognitions". He emphasised that the learned prosecutor had stated that if that evidence was all the prosecution had it would not have been pursuing the charges.

"So it's clear, isn't it, that really both sides of the bar table agree that the evidence, either the general identification evidence, the general description evidence, and the photoboard evidence, couldn't convict Mr Yarran. The Crown says it's not put there to convict him. It's put there to support other evidence and that the totality of it convicts him; in particular, the other evidence, the similar offending evidence."

18 His Honour warned the jury about the importance of looking at the circumstances in which the three victims had seen the offender. He referred to an earlier case which had been mentioned by defence counsel where an alleged offender in England had been identified by 11 women. Later it had been proved that someone else had committed the offences. His Honour warned the jury to look at the identification evidence "very, very carefully". He gave examples of how people could be mistaken concerning identification.

19 His Honour warned again that the Crown was not putting its case on the basis of the identification evidence but had suggested that it did support the central thrust of its case. He reminded the jury that the defence counsel had said that the photoboard identification evidence was so weak that the jury should really put no weight on it at all.

20 His Honour then repeated some warnings and said:

"Those are matters for you, but my direction to you insofar as the matter of law is concerned is that, as I have already said, you must be very careful when you look at identification evidence, looking at the circumstances and remembering the difficulties that identification evidence sometimes, or evidence that can be generally thought of as identification evidence, can create. On the other hand, you are entitled to look at the fact that these general descriptions were given and that these ladies did pick out the photograph of Malcolm Yarran in the circumstances that they did as being similar, remembering that none of them said, 'that is the man'. You must be satisfied beyond a reasonable doubt that he is the man before you can convict him."

21 The learned Judge then emphasised other matters which had been referred to by the defence including defects in the identification evidence. He discussed the question of "rational inferences" with the jury. He gave a full direction in that regard. His Honour then dealt with other general matters.

22 After the jury had retired, counsel raised a number of matters with the learned Judge. His Honour recalled the jury and amongst other matters, he again referred to some difficulties with the identification evidence. He referred to the possibility:

"... of what we call displacement. That is, you have seen someone somewhere and you confuse them; that situation when you identify them as being somewhere else. That possibility of what we call displacement is a matter that you should have regard to and add to the general matters that I raised in relation to matters of identification. Here you have the proximity of place, that is, that all four of them were residents of the Midland area - and you have the length of time from 1994 to 1997. So those are matters that you should consider in looking at the evidence."

23 With respect to the ground of appeal that the learned trial Judge erred in allowing the evidence of the photoboard identification into evidence, it was emphasised to the jury throughout this case by the learned trial Judge and both counsel, that the case against the applicant was a circumstantial one and that there had been no evidence given by any of the witnesses that the offender had been the applicant.

24 The Crown Prosecutor had conceded in his opening address and throughout the trial that there had been no positive identification of the applicant as the offender. He had also conceded that if the identification evidence had been the only evidence implicating the applicant, the jury could not return verdicts of guilty. One of the strengths of the Crown case was that the applicant's alleged criminal behaviour had been strikingly similar to his behaviour on previous occasions, concerning which he had admitted his guilt.

25 The learned Judge warned the jury about relying upon the identification evidence. He pointed out the difficulties associated with that evidence.

26 Reliance was placed by the respondent upon previous decisions such as Huynh v The Queen [1999] WASCA 45 where similar identification evidence had been admitted at the trial and the admission approved on appeal. In the Huynh decision, at par 2 of his reasons, Kennedy J had said:

"The security films taken in the taxis from which the photographs were obtained, were not of such quality as to permit their use for the purpose of directly identifying the appellant as one of the two offenders. They were properly left to the jury on the basis that the appearance of one of the two persons shown in the photographs was 'consistent' with the appellant being one of the offenders and so formed part of the circumstantial evidence available to prove that the appellant had committed the crimes of which he was charged. Clearly however in the circumstances of the case a warning by the trial Judge was required, particularly having regard to the manner in which the Crown opened the case ...."

27 In Murphy v The Queen [1994] SASC 4674; (1994) 62 SASR 121, witnesses had looked at photographs and slides which had been provided by police officers and had identified persons as "similar" to the alleged offenders. In that case the admission of the evidence was approved by the Court of Criminal Appeal.

28 In the case of Festa [2000] QCA 73; (2000) 111 A Crim R 60 at 73 the Court of Criminal Appeal in Queensland said:

"It is a fair statement of the procedure used in respect of the appellant that the police had not asked potential witnesses to identify the appellant as such, but rather to point to persons who resembled her. In a sense, therefore, the evidence against her was more circumstantial than direct."

"In the end, the directions on identification of the appellant appear adequate and sufficient for the occasion. They were given at the beginning of the substantive part of the summing up before his Honour turned to an analysis of the circumstantial evidence, emphasising as he did so that 'identification is very important in this case', but that 'identification is a part and part only of the circumstantial evidence on which the Crown relies to prove its case.' In discussing the character of circumstantial evidence, which he contrasted with direct evidence of identity, his Honour directed the jury that they had to be satisfied, first, that the facts relied upon by the Crown had been proved and then that 'the inference you draw from the facts, an inference that the accused persons are the offenders, is the only reasonable inference you can draw from the facts as you find them to be proved. You've got to be satisfied that the only reasonable inference you can draw from the facts is one of guilt'. That direction was fully in conformity with the requirements of Peacock [1911] HCA 66; (1911) 13 CLR 619; Shepherd (1991) 70 CLR 573 at 581-582; [1990] HCA 56; 51 A Crim R 181 at 185-187 and Weissensteiner."

"...the overall impression gained from the reading the summing up in this case is that it was a balanced and impartial statement of the essential matters that the jury were required to consider in reaching their verdict. The verdict cannot be considered unsafe or unsatisfactory."

32 In my view, in this case, the "identification" evidence was admissible and the first ground of appeal should not be upheld.

33 With respect to the second ground of appeal which complains that the learned trial Judge failed to give adequate directions as to the way in which the evidence of the identifications could be used, in this case the learned Judge gave similar directions to those which were given in Huynh (supra) and which in that case were held not to be incorrect.

34 Additionally, in the present case, prior to counsel commencing their closing addresses and before his summing up, the learned Judge discussed with defence counsel the direction he needed to give to the jury in relation to how they were to use the evidence of the selection of the applicant's photograph by the three relevant witnesses. The learned trial Judge outlined what his direction to the jury would be. The defence counsel indicated that he had nothing further to add. After the jury had retired, the learned trial Judge again discussed the matter with counsel. He then added a further direction.

35 In the course of the directions which have been referred to earlier in these reasons, in my view the learned trial Judge adequately highlighted the problems with respect to the evidence. He pointed out the difficulties associated with the identification evidence of each witness including that Ms H had been shown a photoboard which included two photographs of the applicant; that Ms J had been shown a photoboard two days after the relevant incidents and had not been able to identify the offender, but when shown the same photoboard three years later, had selected the applicant's photograph as being very similar. His Honour also referred to Ms R's brief look at the applicant when she could not see some of his identifying features.

36 His Honour adequately warned the jury about the possibility of mistake and of how they should look very carefully at that evidence. As stated above he referred to the defence counsel's submissions as to the evidence being "so weak that they should put no weight on it at all". Defence counsel agreed with his Honour's proposed re-direction after the jury had retired. His Honour re-directed the jury in the terms he had discussed with defence counsel.

37 At the hearing of this application it was submitted that the learned Judge had not placed the authority of his office behind his warnings concerning the photoboard evidence. However, in my view as appears from the abovementioned directions, he did so. The fact that he also referred to defence counsel's submissions does not detract from what he said about the matter.

"The learned Judge erred in not directing the jury's attention to the fact that because of the factors he referred to, each and possibly all of the three witnesses could be mistaken although they were honest witnesses and that the experience of the court is that honest witnesses can sometimes be mistaken witnesses."

39 His Honour did refer to the English case where 11 witnesses had been mistaken. The import of his address was that the jury should be very careful with the identification evidence. The fact that he did not use the exact words that the jury had "to be satisfied that an identifying witness is not only honest in his evidence but also accurate", does not detract from the fact that in effect his Honour said the same thing.

"The learned Judge did not give sufficient directions as to the care that the jury should exercise in assessing the photoboard identification evidence."

41 In my view, his Honour's direction in this case concerning the photoboard evidence was properly balanced and there were no errors in it. In addition, the case against the applicant was overwhelming.

42 I would dismiss the application for leave to appeal against the convictions.

43 MURRAY J: I agree with Wallwork J that, for the reasons given by his Honour, leave to appeal against the convictions in this case should be refused.