Beresi v The Queen - [2004] WASCA 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BERESI -v- THE QUEEN [2004] WASCA 67

CORAM: MALCOLM CJ
TEMPLEMAN J
WHEELER J

HEARD: 10 MARCH 2004

DELIVERED : 7 APRIL 2004

FILE NO/S: CCA 114 of 2002

BETWEEN: ANTHONY HARVEY BERESI
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :JENKINS DCJ
File Number            :  IND 1659 of 2001

Catchwords:

Criminal law - Appeal against conviction - Identification from police photoboards - Video record of identification - Clarity of directions on "negative identification"- Prosecution submission in closing address that complainant had no motive to fabricate evidence - Absence of Palmer direction

Legislation:

Criminal Code, s 8, s 688(1)

Result:

Appeal allowed
Retrial ordered

Category: B

Representation:

Counsel:

Appellant: Mr R W Richardson
Respondent: Mr D Dempster

Solicitors:

Appellant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Domican v The Queen (1992) 173 CLR 555
McGibbon v The Queen [2003] WASCA 311
Mule v The Queen [2002] WASCA 101
Palmer v The Queen (1998) 193 CLR 1
Wedd (2000) 115 A Crim R 205

Case(s) also cited:

Alexander v R (1981) 145 CLR 395
Alford v Magee 91952) 85 CLR 437
Carr v The Queen (1988) 165 CLR 314
De Gruchy v The Queen (2002) 211 CLR 85
Kelleher v R (1974) 131 CLR 534
Leary v R [1975] WAS 133
Mraz v The Queen (1955) 93 CLR 493
R v Burchielli [1981] VR 611
R v Clarke (1997) 97 A Crim R 414
R v Turnbull [1977] QB 224
Wilde v The Queen (1988) 164 CLR 365

MALCOLM CJ: In my opinion, the convictions in this case were unsafe and should be quashed. There should be an order for a re‑trial. I have reached these conclusions for the reasons to be published by Templeman J, with which I am in agreement.
TEMPLEMAN J: On 27 June 2002, the appellant, Anthony Harvey Beresi was convicted after trial by Judge and jury in the District Court on five counts of sexual penetration while armed with a knife and in company with others. It was alleged that five offenders were involved, three of whom, including the appellant, had sexually penetrated the complainant, while two others had attempted to do so. All five were said to have formed a common intention to prosecute an unlawful purpose.
Two other accused were tried together with the appellant on the same indictment. They were Anthony Charles Blurton and Paul Francis Narrier. Mr Beresi is described in the papers as the applicant. However, he has a right of appeal pursuant to s 688(1) of the Criminal Code because his grounds of appeal involve a question of law alone. It will therefore be appropriate to refer to him as "the appellant".
The appellant appeals against his conviction, principally on the ground that the learned trial Judge failed to give the jury adequate directions in relation to the identification evidence. The original ground of appeal was based on the proposition that the Judge erred in admitting evidence of identification of the appellant by means of photographs. That ground does not appear in the substituted grounds of appeal and it is not necessary, therefore, to address the question whether evidence of identification other than by way of an identification parade should have been admitted.
It was alleged that the appellant was one of five men who sexually assaulted the complainant on 22 September 2000 at the Hakea Remand Centre at Canning Vale Prison.
The complainant's evidence was that he was held at the Remand Centre from 22 to 27 September 2000. I take the following account of the assaults from the complainant's evidence at trial.
On the afternoon of 22 September 2000, at the request of two Aboriginal prisoners, the complainant accompanied them to a cell where five Aboriginal prisoners were watching a pornographic video. The complainant did not want to be involved. Although he was told to stay, he left, despite some slight attempt to restrain him.

The complainant returned to his cell. Some 20 minutes later, five Aboriginal men entered his cell. He recognised three of the men as having been in the cell where the video had been playing.
The complainant was made to stand and to turn round. His arms were held by two men. One man, who held the complainant's right arm, was said to have been "five foot sixish" in height and of smaller build than the complainant. The complainant said this man had crooked teeth and a ponytail. He held a knife to the complainant's neck. This was the offender who was identified subsequently as the appellant.
The man who had been holding the complainant's left arm then moved to a position behind him from where he attempted to insert his penis into the complainant's anus. He failed in that attempt. However, he succeeded, after the complainant was forced into a more submissive position.
The offender who had been holding the complainant's right arm then moved so as to stand behind him. This offender took the place of the first man. He then inserted his penis into the complainant's anus.
The complainant said he turned to look at the second offender. He said the offender's teeth were "crossed or they were funny".
The complainant was then penetrated in the same way by a third offender. He was described as being a white Aboriginal with light hair and a "wedgie type haircut".
While these offences were being committed against the complainant, his clothing was removed. At this point, he pulled his tracksuit trousers on and jumped on to his bed so as to face his assailants. A fourth man then placed himself directly in front of the complainant, held his jaw and attempted to put his penis into the complainant's mouth. The complainant resisted and the offender was unsuccessful. Eventually, the offender desisted and walked back.
A fifth offender then moved forward and took hold of the complainant's jaw in a strong grip. He also attempted to force his penis into the complainant's mouth. The complainant said that if did so, he would bite off the offender's penis.
The complainant said this offender was "large" in height and build; that he was "big – not of a big stature".
This offender also ceased his attempt. Then, without anything further being said, all offenders quickly left the complainant's cell.
The complainant said that while he was on his bed looking directly at all five offenders, he had "a very good view" of them.

Delay in complaining

Although the complainant sought medical attention following his release from the Remand Centre, he did not make a formal complaint until 13 November 2000 when he made a statement to a police officer. In that statement, the complainant described the five persons who had assaulted him on 22 September.

Identification evidence

On 24 November 2000, the complainant was shown five photoboards. The complainant made positive identifications from three of the photoboards. The procedure was video recorded: and the video was played to the jury during the course of the trial.
It appears from the video recording that the complainant made a possible identification from photoboard numbered 2210 which he was shown first. In relation to each photograph other than number 2, the complainant said "guaranteed no". He said he would like to see a better picture of number 2, that being a photograph Mr Blurton, one of the appellant's co-accused.
The complainant was then shown a second photoboard, from which he made no identification.
The complainant was then shown a third photoboard. He identified a possible suspect. However, as I understand it, that man is not alleged to have been involved in the offences in question.
The complainant was next shown a fourth photoboard, from which he made no identification.
Finally, the complainant was shown photoboard numbered 2208 from which he identified a photograph of the appellant. It is clear from the video recording that the complainant's identification of the appellant was quite positive: he said on two occasions "That's him". However, he noted that the offender had a different hairstyle from that shown in the photograph.
On 29 November 2000, the complainant was shown another five photoboards. Again, the process was video recorded.
As appears from the video recording, the complainant made a positive identification of one of the co-accused, Mr Narrier. The complainant said the moustache shown in the photograph was not as thick when the offences were committed.
On 1 December 2000, the complainant was shown a black file containing 79 or 80 passport type photographs of the men who were held in the same wing of the Remand Centre as the complainant from 22 to 25 September 2000. There was one exception: the folder apparently did not include a photograph of Mr Narrier. Subject to that omission, the folder must have contained photographs (albeit several were of very poor quality) of all of the men who had assaulted the complainant. The procedure was recorded in video.
When viewing the folder, the complainant picked out a photograph of the appellant; not as a positive identification, but on the basis that he would like to look more closely at that photograph later. The photograph was about one half of the size of the photograph of the appellant which had been included in the photoboard from which the complainant had identified him on 24 November, and of poorer quality.
Despite the complainant's request on 24 November to see "a better picture" of the person shown in photograph 2 on the first photoboard he viewed, no further picture was shown to him. However, on 14 December 2000, the complainant was shown the same photoboard again. On that occasion, he positively identified the person shown in photograph number 2 as the third offender. This procedure was not video recorded.
A contemporaneous note was made on the back of the photoboard by the police officer who had the conduct of the matter. The note included the following statement said to have been made by the complainant:
"That's definitely him but I want it recorded that his hair is a wedge haircut, short around the ears."
The police officer then recorded the following question which she asked of the complainant, and his answer:
"Q:Why could you recognise him today as positive but when I showed you this before you weren't certain?
A:Because I only looked at his face and disregarded his hair. His skin colour too."
As I have noted above, the complainant picked out a photograph of the appellant from the black folder which he was shown on 1 December 2000. That was photograph number 9. However, at trial, when the complainant was asked in the course of his evidence‑in‑chief whether he had identified any of the persons shown in the photographs contained in the black folder, he said: "Yes, number 11". That was a photograph of Mr Blurton.
In the absence of the jury, the trial Judge was informed that the complainant had identified photograph number 11 from the black file on 13 June 2002 when the Crown prosecutor had been reviewing the identification evidence with the complainant. In those circumstances, counsel for Mr Blurton had been informed by the prosecutor that the Crown would not rely on the 13 June 2002 identification of Mr Blurton.
The matter was resolved by the prosecutor making the following statement to the jury on their return:
" … (the complainant) in his evidence was shown a black file and indicated that he had not identified any photograph from that black file. The Crown makes it unequivocally clear now that it does not rely on any identification from any photograph from that black file. In fact, the Crown case is that (the complainant) did not identify any photograph from that black file when it was shown to him by police officers on 1 December 2000."
At that point, the trial Judge directed the jury as follows:
"Members of the jury, what that means is that you are to disregard, and I direct you to disregard, and not take any account of any evidence or comments from the Bar table to the effect that (the complainant) when he was shown that black folder, referred to any particular photograph and in particular photograph 11.
So you are to disregard that because as I believe the evidence will be, you will see what occurred in the police station on video shortly. You will see that in fact (the complainant) as (the prosecutor) has said, did not identify photograph 11 from the black folder and therefore I direct you, as I said, to disregard any suggestion or any evidence that he did."
It was at that stage that the video recording of the black folder identification exercise was played to the jury. From it, the jury would have seen the complainant pick out the photograph of the appellant, on the basis that he would like to look more closely at the photograph later. It seems he was given no further opportunity to do so.
In addition to the photographic identification evidence, there were some identikit pictures prepared by a police officer, who is also an artist, on 24 November 2000, before the complainant was shown the photoboards.
In his evidence-in-chief, the complainant said that identikits were prepared in relation to each of the offenders including the second who the complainant described as "toothy". That was the offender who the complainant identified subsequently as the appellant.
Evidence was given by the police officer/artist who had compiled the identikit pictures. He said four pictures had been prepared. The face of a person of interest who was said to have been the second of the offenders to assault the complainant, was shown with his mouth open and two fairly prominent teeth. The artist said he included that photograph in the picture because the complainant had told him "that the teeth could be seen". He did not have a detailed recollection of the process of preparing the identikit pictures.
When the complainant was cross-examined by counsel for the appellant, it was put to him that he had told police officers that the features of the second offender's teeth, which he remembered particularly, were that "there was either a big gap between his front teeth or they were very crooked". The complainant said he had been referring to the offender's upper front teeth.
When asked why the identikit picture showed a man with very even front teeth, the complainant replied that the police artist had been unable to create uneven teeth on the computer image.
The jury were provided with a photograph of the appellant's face, taken with his consent and co-operation, in which he is shown with his front teeth exposed. The appellant's two front teeth appear to be similar to those shown in the identikit picture: and the two teeth on each side of the front teeth appear to be crooked.

The Judge's directions to the jury

The course taken by the Judge in relation to the identification evidence was first, to summarise that evidence and then to give "some specific and general warnings about the issue of identification evidence" (TS 919).
No complaint is made about the way in which the Judge summarised the evidence. It is not necessary, therefore to make any further reference to that part of the charge.
In his substituted grounds of appeal, the appellant contends that:
"The learned trial Judge erred in law in failing to given an adequate direction on the general and specific warnings on the complainant's evidence identifying the (appellant) as the offender".
Particulars are given. In the first of those, the appellant asserts a failure by the Judge to warn the jury that the delay between 22 September (when the offences were committed) and 24 November (when the complainant first identified the appellant) "was a significant period and factor going to the reliability of the evidence … where the (appellant) was unknown to the complainant".
This assertion is without foundation. The Judge directed the jury substantially in the terms referred to above (TS 927). The direction contained a small error. The Judge referred to the identification having taken place in December 2000, not 24 November in relation to the appellant. This error was, however, in the appellant's favour.
The appellant then contends that the Judge:
"1.2failed to warn the jury (other than by way of repetition of counsel's argument) of the danger of sub-conscious displacement in circumstances where:
1.2.1the applicant and the complainant were in the same wing at Canning Vale at the relevant time (22 September 2000 to 25 September 2000).
1.2.2the complainant was in Unit 7, H wing, cell H20 and the applicant was in Unit 7, H wing, cell H16 (a total of 25 cells in H wing).
1.2.3the complainant, in his evidence, was unable to identify which cell the applicant was in.
1.2.4the complainant gave no evidence that he knew that the applicant was in the same wing at the relevant time.
1.2.5the complainant, in his evidence, was unable to recall if he saw the applicant in H wing following the assault."
The last of these grounds is factually incorrect. The complainant's evidence, under cross-examination by counsel for the appellant, was that he did recall seeing the appellant on 23 September 2000. He said he saw the appellant in the basketball area outside H wing: and that he saw the appellant "on a number of occasions" (TS 303-4).
The Judge dealt with the possible displacement effect in the following way (at TS (21-2):
"It may also be that sightings of the accused after the alleged offence occurs may have the same effect; that is, the witness is identifying not the original sighting of the offender at the time of the offence but someone else who he saw soon after the alleged offence and in his mind has replaced the memory of the sighting of the true offender. Again this is something you should consider with respect to the identification of Blurton because the complainant has said that he saw him at least twice that weekend after the alleged assaults.
On the Crown case that is evidence that you should take into account in (the complainant's) favour, if you like, in the identification process, that he was able to identify him soon after the alleged offences. But, on the other hand, Mr Blurton's submission to you is that there is a possibility that you should take into account that seeing him on those subsequent occasions – what he has in fact done is replaced the memory of the original offender with a mistaken identity of the person who he saw afterwards and who he thought was the offender, but he's wrong in that respect, and what he did subsequently when he saw the photoboard is actually identify the person who he had seen afterwards in prison, not in fact the correct offender."
In my view, that direction explained adequately the danger of displacement in terms readily comprehensible to a lay person. The direction referred to counsel's argument, but in the first of the paragraphs set out above, the point was made directly by the Judge. Although the direction referred specifically to Mr Blurton, I think the jury would have understood it to be of general application.
This ground is therefore without foundation.
The appellant's next ground of appeal appears under the heading "negative identification". This ground is not expressed clearly. It is repetitive and refers also to the identikit evidence, which is irrelevant to the negative identification issue as presented during the hearing of the appeal. The ground is in the following terms:
"The learned trial judge:
1.3erred in treating the evidence of 'negative identification' as a separate 'issue'.
1.4gave a direction that was likely to confuse and did not identify for the jury the real significance of the 'negative identification' evidence, namely, the potential impact on the reliability of the positive photo-board identification. And further erred in purporting to give a direction on 'negative identification' in accordance with Mule v The Queen [2002] WASCA 101.
1.5failed to warn the jury that the 'negative identification' was an inherent weakness (or at least a potential inherent weakness) in the identification evidence by the complainant.
1.6erred in failing to direct the jury to compare the photo-board photograph of the applicant (exhibit 'F') and the photograph in the black folder (exhibit 'J') in relation to size, content, colour and similarity and the dates the complainant inspected the respective photographs (24 November 2000 and 1 December 2000).
1.7erred in failing to direct the jury that the circumstances of a positive identification followed by a 'failure to identify' from a near identical photograph that an identification parade was self-evidently called for.
1.8erred in failing to identify the evidence of the description given by the complainant for the preparation of the identikit (exhibit 'K') and the physical appearance of the applicant.
1.9failed to incorporate in the specific warning, the failure of the complainant to identify the applicant from the photograph in the black folder as matter of significance which might undermine the reliability of the 'positive identification'.
1.10failed to clearly direct and stress to the jury that if the complainant's failure to identify the applicant from the black folder gave rise to a reasonable possibility that the complainant was mistaken in his positive identification, they could not convict.
1.11failed to direct the jury's attention to the identikit image for the purpose of comparison with the photographs and physical appearance of the applicant."

As I understand it, in substance, the appellant's contention in relation to these grounds is that the Judge ought to have emphasised to the jury the danger of convicting on what was weak identification evidence: that a negative identification direction was inappropriate and was in any event based (apparently) on a recent decision of this Court in which the facts were quite different.
On the hearing of the appeal, counsel for the appellant submitted that the Judge should have focussed on the requirements set out by the High Court in Domican v The Queen (1992) 173 CLR 555, which are to be met when identification evidence represents a significant part of proof of guilt.
The principle is stated in the joint judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ as follows:
"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury should be drawn to any weaknesses in the identification evidence. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."
In the present case, the Judge's charge contained the following directions:
•the Crown case depends wholly on the correctness of the identification of the three accused
•each accused says that the identification of him is mistaken
•there was a danger in convicting an accused on the basis of disputed identification evidence and there was therefore a special need for caution before doing so
•the jury might convict but they must have regard to the specific and general warnings given by the Judge in relation to identification evidence
•the reason for the danger is that it is possible for even an honest witness to make a mistaken identification
•the risk of an incorrect identification is particularly high when the person being identified has been seen only once or occasionally before and, apart from those occasions, was unknown to the person making the identification
•people can have difficulty remembering the physical characteristics of friends and relatives and the more so, strangers who they have seen only once or on a few occasions and in less than ideal circumstances
•the experience of persons including Judges involved in criminal trials has emphasised the special risks and problems involved in the subsequent identification of strangers
•there have been wrongful convictions in the past as a result of mistaken identifications
•an apparently convincing witness can be mistaken
•it is extremely difficult to demonstrate in court by cross‑examination or by other means that an identification which is sincerely and honestly made is in truth a mistaken identification, yet too often such identifications have subsequently been shown to be wrong
•photoboard identification is regarded as less reliable than face to face identifications because photographs provide an inferior representation of a person
•a photograph is two dimensional and static, it does not depict the manner of moving posture, facial expressions, complexion, bodily size and shape, colouring nor many other subtle bodily characteristics noted when a person is seen in the flesh
•a problem with photoboard identification is that the accused is not present when the identification is made and is not able to ensure that the identification process is conducted fairly. In relation to the identifications made in this case, which were video-recorded, the issue seems to be of much less importance.
The Judge directed the jury also in relation to the displacement effect, in the terms I have summarised above.
The Judge went on to say that having regard to all the matters set out above, the jury should scrutinise the identification evidence carefully and that when considering the identification evidence, they should consider the general and specific warnings they had been given.
As I have noted, the Judge had previously summarised the photoboard identification evidence relating to each accused. In my view, subject to one matter, there was no specific weakness in that identification evidence. That is to say, there were no weaknesses other than those to which the jury's attention was directed by the warning set out above.
The additional factor, which might reasonably be regarded as undermining the reliability of the identification evidence relating to the appellant, was the so called negative identification. That was a matter which, applying the principle stated by the majority of the High Court in Domican (supra) the Judge was obliged to "isolate and identify for the benefit of the jury".
That matter was the failure of the complainant to identify the appellant from the photograph in the black folder which he had been shown on 1 December 2000, when he had made a positive identification of the appellant from the photoboard he was shown on 24 November and when the photographs were very similar.
The Judge dealt with this matter in the following way:
"Now I will direct you in relation to the issue of what I will call the 'negative identification'. This is in relation to (the complainant) seeing the photoboard of Mr Blurton originally, when he didn't positively identify him - all he asked to see was a better photograph, and then subsequently in relation to Mr Blurton seeing his photograph in the black folder and his failure to identify him in any way - or point him out in any way, and it's also relevant to the issue of the black folder in relation to Beresi because all he did in relation to Beresi with respect to the black folder was to ask for a better photograph. Again he did not specifically positively identify him as an offender.
Now, you should look carefully at those instances. I will call them negative identifications. I've particularised to you what they are. The term 'negative identification' is just the term I use. If you accept the negative identifications as being correct, or to put it another way, if you cannot exclude them beyond reasonable doubt, then you will clearly be able (sic unable) to convict those accused. The reason for that is because no matter how persuasive the positive identification is, they will give rise to a reasonable doubt as to whether he was the offender, unless you can exclude them beyond reasonable doubt - you see, because even if you say, 'Well, yes, (the complainant) positively identified Mr Blurton on 14 December but he also failed to identify him on an earlier occasion.'
So unless you can exclude that earlier failure beyond reasonable doubt and say that that is, for one reason or another, explainable, then you must have a reasonable doubt about the identification, and again with respect to the occasions on which all he did was ask for a better photograph, unless you can satisfy yourself beyond reasonable doubt that there is a legitimate reason why he failed to do that, then those occurrences must also give rise to a reasonable doubt about identification. So you should look at these instances, and as I've said, if you cannot exclude them beyond reasonable doubt, then you will clearly be unable to convict the accused - or those two accused. However, even if you do exclude them beyond reasonable doubt, you cannot move automatically to convict the accused Beresi or Blurton on the basis of the positive identifications unless, after carefully considering the evidence of the complainant, taking into account the warnings I've given you in relation to it, you are satisfied beyond reasonable doubt of the truthfulness and accuracy of the positive identifications. So I just want to make that clear to you."
The appellant's complaint about this part of the Judge's charge is, essentially, that it is unclear. In particular, counsel submitted, the jury would not have understood what the Judge meant when directing them that they would be unable to convict:
"if you cannot exclude them beyond reasonable doubt."
The "them" is clearly a reference to the negative identifications, which the Judge defined at the outset of this section of the charge as being occasions on which the complainant had not specifically identified an offender.
When considering appeal points of this kind, the Court reads and re‑reads the relevant section of the Judge's charge in order to understand its effect. The jury, however, hears the words spoken once. They do not have the same opportunity as the Court to work out the meaning: nor do they have the expertise of the members of the Court to assist them in that endeavour.
Reflecting on the charge now, the sense of it is clear. The Judge was warning the jury that because the complainant had identified an offender from a photograph; and then, a few days later, had failed to identify him from a very similar photograph, the jury could not be satisfied beyond a reasonable doubt of the truth and accuracy of the positive identification unless they were satisfied beyond a reasonable doubt that there was an explanation for the complainant's failure to identify the offender on the second occasion. However, the Judge did not direct the jury in those simple terms.
The complainant's failure to identify the appellant on 1 December 2000 was a matter of considerable significance about which it was necessary to direct the jury in clear terms. With great respect, I think it highly probable that the jury would not have understood the point the Judge was attempting to make. And I do not think that the failure to direct the jury in the clear terms required in relation to this aspect of the matter was cured by the final words of this part of the charge, when the Judge told the jury about the necessity to be satisfied beyond reasonable doubt of the truthfulness and accuracy of the positive identifications.
Further, in my view, the difficulty is compounded by the fact that the Judge did not deal separately with the so called negative identifications in relation to the appellant and Mr Blurton. The reference to excluding the "earlier failure beyond reasonable doubt" is a reference to the identification of Mr Blurton, not to the identification of the appellant.
In my view, having regard to the importance of this part of the Judge's charge, it was necessary to be quite specific about the respective positive and negative identifications. The failure to do so, makes the conviction unsafe.
I have reached that conclusion without reference to grounds 1.8 and 1.11 above which seem to me to be without merit. In my view, the general identification directions given by the Judge would have made it plain to the jury that it was necessary for them to compare the identikit images with the complainant's evidence and the photographs.
Given the view I take, it is not necessary to deal with the submission that the negative identification direction was based on the decision in Mule v The Queen [2002] WASCA 101 and it was therefore inappropriate. There, the term "negative identification" was used to describe the evidence of a witness who said that the photograph of a particular person did not appear on a photoboard. In the present case, the Judge used the term "negative identification" to refer simply to a failure to identify an assailant.
In theory, so long as a technical term is defined with sufficient precision, there should be no difficulty about using it in a charge to the jury. However, in my view, it is preferable to avoid the use of technical terms in this context. There is the danger that the jury will ponder on the meaning of the expression "negative identification" when they should be focussing on the real issue.

The remaining grounds of appeal

The second ground of appeal is based on the contention that the appellant's convictions are unsafe and unsatisfactory for various reasons, including those contained in the first ground.
The third ground is based on the contention that the Judge failed to direct the jury in such a way as to remove the prejudicial effect of the prosecutor's submission to the jury, in his closing address, to the effect that the complainant had no motive to fabricate his evidence.
The appellant contends that the Judge ought to have directed the jury that even if they accepted that the complainant had no motive to lie, it would not necessarily mean he was telling the truth: see Palmer v The Queen (1998) 193 CLR 1. The Judge gave no such direction but repeated the prosecutor's submission to the jury.
It was accepted by the respondent that it might have been preferable for the Judge to direct the jury "that rejection of the notion of motive to lie on the part of the complainant did not lead per se to acceptance of the complainant's evidence as truthful and reliable". (Outline of submissions, par 8). The respondent contends, however, that given the evidence which corroborated the complainant's evidence about the commission of the offences, the real issue at trial was not whether the offences had been committed, but whether the appellant was one of the offenders.
I accept that there was some corroborative evidence. Essentially, that consisted of evidence of a complaint made by the complainant to the Sexual Assault Referral Centre shortly after his release from the Remand Centre; the fact that the pornographic CD had been found within the prison and the fact that two paving bricks had been found in the complainant's cell. The complainant said he had taken those bricks from a courtyard area after he had been assaulted, for the purpose of protecting himself should there be any attempt to assault him again.
In my view, the corroborative evidence was by no means strong. Further, the complainant's credibility was very much in issue at the trial. All defence counsel submitted to the jury, in substance, that the offences had never been committed. That being so, I think a direction should have been given which remedied the prejudice arising from the prosecutor's submission that the complainant had no motive to lie.
The fourth ground arises from the Judge's direction about inferences. The inference direction was given in relation to the prosecution's submission that all five offenders had formed a common intention to prosecute an unlawful purpose in conjunction with one another: s 8 of the Criminal Code.
The Judge directed the jury that there was no direct evidence of intention but that it was open to the jury to draw an inference of intention. The Judge went on to say:
" … but before you draw any inference against any of these three accused you must be satisfied that it is the only inference that is reasonably available. That means that (1) you must be satisfied that the evidence you intend to use to draw an inference is reliable and you believe it to be true and, secondly, you must be satisfied that it is the only inference that is reasonably available.
If there are two competing inferences available, then you should draw the inference that is most favourable to the accused, if there are two reasonable inferences in your view open on the evidence, and the reason for that is because the onus is on the Crown and the accused is entitled to the benefit of any reasonable doubt you have."
The appellant's submission is based principally on the judgment of Murray J (with whom Malcolm CJ and Wallwork J agreed) in Wedd (2000) 115 A Crim R 205 at par 41.
In that case, the trial Judge had given a direction on inferences which included the following:
"It's important, however, that you bear in mind this rule: you can only draw an inference adverse to the accused man if it's the only reasonable inference open on the facts you find.
That means if there are competing inferences equally open that can properly be drawn it would not be proper to draw an inference against the accused. In the event of any ambiguity in the evidence, if there may be more than one reasonable inference which can be drawn the accused is entitled to have that resolved in the manner most favourable to him."
At par 41 of Wedd, Murray J said:

"That direction involved an obvious departure from the appropriate standard of proof from which, in my opinion, the direction was not able to recover when her Honour went on to say that if there was more than one reasonable inference that could be drawn, the applicant was entitled to have that resolved in the manner most favourable to him. This area of the law is not about drawing inferences one way or the other, either in favour of or adversely to the interests of the accused. It is about the capacity of the jury to draw an inference of guilt of the offence charged."

That part of the decision in Wedd was applied in McGibbon v The Queen [2003] WASCA 311, where the direction of the trial Judge about drawing an inference "in favour of the accused" was held to be inappropriate.
Clearly, it is inappropriate to direct a jury to consider whether an inference may be drawn which is favourable to an accused person. That is an invitation to reverse the onus of proof. However, in the present case, I think the potential for that kind of reasoning was removed by the direction following on immediately from that complained of, when the Judge repeated that "the onus is on the Crown and the accused is entitled to the benefit of any reasonable doubt you have".
The final ground of appeal is based on the proposition that by reason of the matters referred to in the other grounds, the trial as a whole, miscarried.
In my view, for the reasons set out above, the convictions in this case were unsafe. I would therefore quash those convictions and order a re‑trial.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of Templeman J. I agree with those reasons and have nothing to add.