F (a child) -v- FORBES [2010] WASC 252

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASC 252
Case No:	SJA:1038/2010	Heard:	10 AUGUST 2010
Coram:	SIMMONDS J	Delivered:	17/09/2010
No of Pages:	29	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed
Category:	B
Click here for Judgment in Adobe Acrobat Format

On Appeal from:	Jurisdiction: CHILDREN'S COURT OF WESTERN AUSTRALIA Coram: MAGISTRATE P HOGAN File Number: RO 211 of 2009
Parties:	F (a child) ALEISHA JAYDE FORBES
Catchwords:	Criminal law and procedure Application for leave to appeal and appeal from convictions by a magistrate Evidence Warnings Identification evidence and recognition evidence Police officer giving evidence she had recognised the offender near the stolen vehicle not long after the offending as some one with whom she had had previous dealings Recognition at night That police officer after that person had fled having him arrested at his home and brought to a police station where she and her partner interviewed him that night She and her partner recognising the shirt they saw on the offender that night Whether the magistrate gave himself adequate warnings as to the opportunity the first police officer had to see the offender at the scene Whether the magistrate should have warned himself about a possible displacement effect in respect of the shirt worn by the appellant at the interview Whether the magistrate should have warned himself about identification evidence from a police officer as a primary identifying witness who had conducted an interview of the suspect Criminal law and procedure Application for leave to appeal and appeal from convictions by a magistrate Evidence Use of evidence of lies and fleeing the scene as evidence of consciousness of guilt Whether the magistrate could properly have used the evidence before him as such evidence of consciousness of guilt Criminal law and procedure Application for leave to appeal and appeal from convictions by a magistrate Circumstantial evidence Whether the magistrate had to identify alternative inferences available on the circumstantial evidence Criminal law and procedure Application for leave to appeal and appeal from convictions by a magistrate Whether where there was error in relation to recognition evidence no substantial miscarriage of justice occurred
Legislation:	Criminal Appeals Act 2004 (WA), s 14
Case References:	Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 Carr v The Queen [2000] TASSC 183 Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 Davis v The State of Western Australia [2007] WASCA 267 Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 Luxton v Vines (1952) 85 CLR 352 Mills v The State of Western Australia [2008] WASCA 219 R v Hayles (1990) 54 SASR 549 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v Melrose [1989] 1 Qd R 572 R v Turnbull [1977] QB 224 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 Zheng (1995) 83 A Crim R 572

Last Updated: 11/09/2012

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : F (a child) -v- FORBES [2010] WASC 252 CORAM : SIMMONDS J HEARD : 10 AUGUST 2010 DELIVERED : 17 SEPTEMBER 2010 FILE NO/S : SJA 1038 of 2010 BETWEEN : F (a child)

Appellant

AND

ALEISHA JAYDE FORBES

Respondent

ON APPEAL FROM:

Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P HOGAN

File No : RO 211 of 2009

Catchwords:

Criminal law and procedure - Application for leave to appeal and appeal from convictions by a magistrate - Evidence - Warnings - Identification evidence and recognition evidence - Police officer giving evidence she had recognised the offender near the stolen vehicle not long after the offending as some one with whom she had had previous dealings - Recognition at night - That police officer after that person had fled having him arrested at his home and brought to a police station where she and her partner interviewed him that night - She and her partner recognising the shirt they saw on the offender that night - Whether the

(Page 2)

magistrate gave himself adequate warnings as to the opportunity the first police officer had to see the offender at the scene - Whether the magistrate should have warned himself about a possible displacement effect in respect of the shirt worn by the appellant at the interview - Whether the magistrate should have warned himself about identification evidence from a police officer as a primary identifying witness who had conducted an interview of the suspect

Criminal law and procedure - Application for leave to appeal and appeal from convictions by a magistrate - Evidence - Use of evidence of lies and fleeing the scene as evidence of consciousness of guilt - Whether the magistrate could properly have used the evidence before him as such evidence of consciousness of guilt

Criminal law and procedure - Application for leave to appeal and appeal from convictions by a magistrate - Circumstantial evidence - Whether the magistrate had to identify alternative inferences available on the circumstantial evidence

Criminal law and procedure - Application for leave to appeal and appeal from convictions by a magistrate - Whether where there was error in relation to recognition evidence no substantial miscarriage of justice occurred

Legislation:

Criminal Appeals Act 2004 (WA), s 14

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant : Mr M R Jones

Respondent : Mr D T Carlson

Solicitors:

Appellant : Ian Hope

Respondent : Director of Public Prosecutions (WA)

(Page 3)

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

Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Carr v The Queen [2000] TASSC 183
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Davis v The State of Western Australia [2007] WASCA 267
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Luxton v Vines (1952) 85 CLR 352
Mills v The State of Western Australia [2008] WASCA 219
R v Hayles (1990) 54 SASR 549
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Melrose [1989] 1 Qd R 572
R v Turnbull [1977] QB 224
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
Zheng (1995) 83 A Crim R 572

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SIMMONDS J

Introduction

1 This is an appeal by leave against a conviction of three offences following a trial before a magistrate. The appeal is on five grounds, one of which the respondent concedes.

2 I first describe the trial and decision of the learned magistrate in sufficient detail to permit an understanding of the grounds of appeal. I then describe the appeal and its grounds, before considering each in turn, and the possible application of the 'proviso' in Criminal Appeals Act 2004 (WA) s 14(2).

3 The last section of these reasons is my conclusions and orders.

The trial

4 On 5 August 2009 in the Rockingham Children's Court before Magistrate Hogan the appellant was tried on three charges, of burglary, stealing and stealing by unlawful use of a motor vehicle.

5 At the trial it was not in contest that on 16 February 2009 in Warnbro a person was in a dwelling of another without the consent of that other (the burglary offence), where the first person committed the offence of stealing a wallet containing cards and a sum of cash and a set of keys to the house and to a motor vehicle (a Ford Falcon) the property of that other person (the stealing offence). Nor was it in contest that on that date and no more than about four hours later a person unlawfully used the Ford Falcon, the keys to which were one of the items stolen, without the consent of the owner of the vehicle (the stealing by unlawful use offence).

6 For each of the offences, the issue at the trial was whether or not the appellant was in each case the first person referred to.

7 There was no forensic evidence to connect the appellant to any of the offences. The principal identification evidence relied upon by the prosecution was the testimony of two police officers, Detective Constable Forbes and Acting Sergeant Dyson. There was other evidence, in the form of the behaviour of a police tracking dog which had been brought to the Ford Falcon and which led its handler to a place close by where the appellant was found. However, the learned magistrate made no mention of this evidence in his reasons, and I consider it incapable of supporting a finding of guilt beyond a reasonable doubt without the acceptance of the identification evidence of the police officers.

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8 The two police officers had come upon the Ford Falcon in the evening of 16 February 2009, at about 11.50 pm. They had been parked in a police vehicle on Marley Way in Warnbro. They saw the Ford Falcon drive into Marley Way and stop there. They did not know at that time that the Ford Falcon was involved in any offence. They saw three males get out of the vehicle and two of them take photographs of the Ford Falcon with a mobile phone using a flash. Acting Sergeant Dyson drove the police vehicle up to the Ford Falcon. As Detective Constable Forbes was leaving the police vehicle she considered she recognised one of the males as a person (the appellant) she had met on several previous occasions. The male in question looked at her and ran off, as did the other two males. Detective Constable Forbes then went on to the police radio to report offenders on foot, one of them the male she considered she had recognised. She gave the address where she knew that person to live. That address was very close to where the two police officers had come upon the Ford Falcon. Other police officers went to that address and arrested the appellant there and he was taken to the Rockingham police station. At that police station, later that night, Detective Constable Forbes and Acting Sergeant Dyson conducted a video recorded interview with the appellant in which he made no admissions.

9 Detective Constable Forbes testified in examination-in-chief she had had 'dealings' with the appellant on 'five or six' occasions, over a period of '18 months to two years' (5 August 2009, ts 17). The most recent occasion was two weeks previously to the offending (5 August 2009, ts 17).

10 When asked whether there was anything special that stuck in her mind that would explain why she recognised him, she testified that 'the only thing' was he had 'one of those baby faces and so I just recognise him quite easily from that' (5 August 2009, ts 17 - 18). She confirmed this in cross-examination (ts 28).

11 She further testified in examination-in-chief she was within 4 m of the person she recognised, and there was 'nothing obstructing my view' (5 August 2009, ts 18). She was then asked 'How light was it?' and she responded 'Light enough that I could read something that I was holding in the car' (5 August 2009, ts 18). She was then asked 'What about the light outside the car, how was that?' and she testified as follows (5 August 2009, ts 18):

It was like very - easily enough to see what was going on. We were parked up down the street when we first saw them and I could see quite clearly that there was three males and that they were of dark skin and that was based on the light that was near the car.

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12 She further testified that the person she recognised was wearing a 'white or cream-coloured shirt that had a pattern on the front' (5 August 2009, ts 18). She testified that when he was interviewed at the Rockingham police station he was wearing 'a cream-coloured shirt with a pattern on it' (5 August 2009, ts 19) and she added it was 'the same one seen at the time' (ts 20).

13 In cross-examination she testified that just before she recognised the appellant he was 'facing down the street, walking away from the car', and when she was asked 'So it was in the morning, wasn't it?' she responded 'No, it was dark'. Her further response, to 'It was late at night and it was dark and he was walking away from the car?' was 'Mm'hm' (5 August 2009, ts 27).

14 She was not cross-examined as to the shirt.

15 She did have put to her in cross-examination that 'it was absolutely no more than two to four seconds' (5 August 2009, ts 28), which as will appear from other evidence I will reach she understood to be a reference to the length of time during which she observed the person she considered she recognised as she was getting out of the police car. She replied 'Possibly, but I would recognise [the appellant] in a crowd anywhere' (5 August 2009, ts 28), adding she believed it was him she recognised 'a hundred per cent' (5 August 2009, ts 28). Later in the cross-examination there was this exchange which I take as indicating her understanding of the reference to 'two to four seconds' in the proposition put to her (5 August 2009, ts 29):

That the first time you had the opportunity to see the person who I'm calling the offender and you're calling [the appellant] was as you were getting out of the car, there was a turn and a runaway and we're talking no more than two seconds?--I can't tell you how long it was, but he looked at me long enough for me to recognise that that was [the appellant].'

16 She accepted she did not call out his name to him (5 August 2009, ts 29).

17 Acting Sergeant Dyson testified in examination-in-chief that he drove the police vehicle to park 'in front' of the three males who had left the Ford Falcon (5 August 2009, ts 33), who were walking along the footpath where the police vehicle was parked on the 'incorrect side' of the road, and who were at a distance equivalent to 'me to the magistrate away' (5 August 2009, ts 34). In cross-examination he testified that the males were walking 'at a 90 degree to us' (5 August 2009, ts 35).

(Page 7)

18 He further testified as to the lighting when he observed the three males photographing the Ford Falcon, that 'it was dark but where they'd parked there was actually a street light on that corner' (5 August 2009, ts 34). He was asked what the light was like when he and Detective Constable Forbes opened the doors of the police vehicle and the three males ran off, and he replied 'Not good. I had the vehicle headlights on them' (5 August 2009, ts 34). He was not cross-examined on the matter of the lighting.

19 Acting Sergeant Dyson also testified that he noticed that the male Detective Constable Forbes considered she recognised as the appellant was wearing 'a creamy beige top with a motif on the front' (5 August 2009, ts 33); and when the two police officers returned to the Rockingham police station to interview the appellant he was 'wearing the same shirt' (5 August 2009, ts 33). He was not cross-examined as to the shirt.

20 In cross-examination, Acting Sergeant Dyson also testified that the events involving the police vehicle pulling up and the males looking, after which, as the police officers opened the doors of the police vehicle, they 'bolted', all of this happening 'pretty quickly' (5 August 2009, ts 36).

21 The appellant also testified. His evidence was that he was at his home throughout the times in question (5 August 2009, ts 48 - 50). There was supporting evidence from a witness who described herself as his 'carer' (ts 65) and from another witness who described himself as her 'de facto' (ts 74). The appellant's evidence included that he had seen Detective Sergeant Forbes 'only twice' (5 August 2009, ts 50) when she had come to his house and spoken to him (5 August 2009, ts 64, 65), including on an occasion two weeks previously, when she had been at his house for two hours while he was there (5 August 2009, ts 65). He knew her to look at her (5 August 2009, ts 65).

The magistrate's decision

22 In his reasons the magistrate first indicated that the issue in the case was the identification of the offender for the purposes of each of the three charges as the appellant. He then said the following regarding the identification evidence of Detective Constable Forbes and regarding the alibi evidence, before concluding that the appellant should be found guilty on all three charges:

She said the person who looked at her who ran, who was one of the three males who exited the vehicle, was [F]. She said she recognised him. She said she had had several dealings with him in the past and can recognise

(Page 8)

him. She said it was light enough at that time and place for her to be able to read paperwork in the car. She said she had had dealings with him five or six times over a period of 18 months, two years, most recently two weeks before. She had a particular way of recognising him, she described him as 'baby-faced'.

That is the perhaps most important piece of evidence in the case, because the accused when he gave evidence - well, he not only gave evidence, he also gave a video record of interview, which was a denial and consistent with his evidence. He said that wasn't him, and the reason it wasn't him was because he wasn't out of his house all night. That's why this piece of evidence becomes important.

It becomes important for two reasons: because if it's [F], then clearly he's just exited the stolen car, and he couldn't say he had no knowledge of any car being stolen because he wasn't in any car, therefore he couldn't have any knowledge of it. That's a non-issue. He said no, it wasn't him, he was at home all night.

So the important piece of evidence comes down to an assessment of the recognition evidence given by Detective Forbes. She said she recognised him, she had had dealings with him five or six times over the past 18 months, two years, most recently some two weeks before when she had gone to that house and he was there and she was doing other police work at that house. She had a way of recognising him in which she described him as 'baby-faced'.

Taking you away from that, [F] gave evidence in the case. He said he had met Detective Forbes twice. He didn't agree five or six times. I think from his evidence he was a little bit unsure of it - that would be a kind way to put it, 'evasive' is probably a better way to put it, and I do find it evasive - he went up to as far as three times, I think, because he talked about another occasion as well.

Anyway, he wasn't agreeing with five or six times, but importantly, he did agree with some other things that - well, he said some other telling things in his evidence; principally, that he agreed with the sergeant that he recognised Detective Forbes, and if he'd seen her before this stage, he would have recognised her as well, he knows who she is. He knew before this date who she was, which goes to reinforce Detective Forbes' evidence. She recognised him and that's given some credence by the fact that he recognised her, and he did because he said so.

So there's a danger, though, in recognition evidence, having said that. Recognition evidence doesn't have the same dangers as identification evidence, but sometimes, as we all know and according to the cases, people who recognise or say they recognise can equally be mistaken. So we have to take into account things such as opportunity and lighting, two of the most common things. Here the opportunity was brief, it was a matter of a few seconds; here the lighting was good, no doubt about that.

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The briefness of the looking doesn't detract from the recognition, I find, in this case. The detectives are out doing a job close to the person, recognises, says he recognises, looks him in the face, eye-to-eye, and then he bolts. There's every reason for this to be impressed upon the detective's mind. The recognition, I find, was good. The recognition doesn't require any warning to myself about any dangers. There were no dangers in the recognition here. She recognised him, it was [F] who exited the stolen vehicle and then bolted.

If we can come to that conclusion, the position then is - and I'm reinforced in that also by the fact that Detective Dyson and also Detective Forbes gave evidence of the clothing that [F] was wearing at the time, they said, including the distinctive T-shirt. He was wearing the same T-shirt, not a similar T-shirt, the same T-shirt when police knocked on the door a short time later and the same T-shirt when he was interviewed on the video.

For the life of me, I can't see how it could be any different. This was [F]. If it wasn't [F], it was his twin brother. I'm being facetious, it wasn't. He was seen and recognised, he bolted, he was wearing the same clothes when he was picked up and he was wearing the same clothes on video. There can be no doubt, there is absolutely no doubt on any standard that it was [F] who exited the stolen car and bolted.

That immediately leads to the question of: what about the alibi evidence? By making that finding, I've discounted the alibi evidence, and I should say why. The reason is that both the witnesses giving the alibi evidence I find to be unreliable, biased in favour of [F], and of no credit whatsoever in what they said. Clearly, Ms [C] wants to protect [F]; clearly, Mr [N] as well wants to protect [F].

In the end, both had to admit that there was a period of time back at the house where [F]'s whereabouts were not known to them, and that would have been from half past 10 onwards to 11 o'clock when Ms [C], on a wide view of it, or 11.30 on a narrow view of it, said she had nodded off to sleep, and [F] by his own admission was in the back room with the two other young boys, with every opportunity to exit the house through the back door or out the window, get over the fences and do what it is said that he did.

So I don't accept the alibi evidence because on the facts, even as said by Ms [C] and Mr [N], there was a significant time where his whereabouts weren't known. That was the opportunity to get out. The reason I don't accept it was because it proved otherwise. He was out there exiting a stolen car when he was seen by police. That's not an inference, I'm not drawing any inference there, it's direct evidence.

The position then is that whether it's open to draw the inference that because he was unlawfully using it by being in it, that is, the stolen car, that's sufficient to draw the inference that he committed the burglary offence, either himself or with others, or as a party, because from the

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recent possession, there's nothing more than an application of drawing an inference. That's all it is, the inference being that if somebody is in possession of stolen property, they have committed the offence that led to the possession of it.

Is that the only inference available on the evidence? In the sense of at least within four hours from when Mr [D] last saw his motor vehicle and the time that [F] was in possession of it, we have here recency. We also have [F] bolting from the car and lying on the video, which I find he did, in the sense that he said he didn't do it. So we have two pieces of evidence in the nature of post-offence conduct of an inculpatory type. Those two things I find consciousness of guilt pieces of evidence.

I find that the only inference available on the evidence is that [F] committed the burglary offence earlier in the evening before the car was taken. There is no other inference reasonably available on the evidence. There's no other inference than the one consistent with guilt. So for all of those reason, a finding of guilty on each of those three (5 August 2009, ts 93 - 96).

23 At a subsequent hearing the magistrate sentenced the appellant to a youth community based order for 5 months for stealing the motor vehicle and for the burglary, as well as 20 hours community service on each charge.

The appeal

24 By appeal notice dated 14 April 2010 the appellant sought leave to appeal against his convictions on the following grounds:

The learned sentencing Magistrate erred in law, or alternatively in the exercise of his discretion, by finding the charges proven beyond reasonable doubt.

PARTICULARS

(a) The learned trial Magistrate erred by failing to adequately warn himself of the dangers of adopting recognition evidence in circumstances where the opportunity to recognise was brief and prone to error;

(b) The learned trial Magistrate erred by failing to adequately guard against the danger inherent in accepting evidence given by a witness who was both primary identifying witness and interviewing officer;

(c) The learned trial Magistrate erred by failing to adequately warn himself of the prospect of the displacement effect in respect of police evidence that an offender who exited the stolen motor

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vehicle was wearing the same shirt as the appellant when he (ie, the appellant) was interviewed;

(d) The learned trial Magistrate erred by failing to adequately identify alternative inferences available consistent with the appellant's innocence of the charges of burglary and stealing;

(e) The learned trial Magistrate erred by placing undue weight on flight from the motor vehicle and the appellant's denials of culpability as representing reliable inculpatory evidence in respect of the charges of burglary and stealing.

25 By orders made 3 May 2010 Jenkins J of this court ordered that the application for leave to appeal be heard at the same time as the appeal. For the reasons that will become apparent from these reasons, I consider that, applying the test in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, the leave to appeal applied for should be granted.

26 I turn now to consider each of the grounds.

Ground (a)

27 It was not in contest that the applicable law for this case, as a 'recognition' one, is sufficiently stated in Mills v The State of Western Australia [2008] WASCA 219 [79] - [81], (Buss JA; McLure JA & Murray AJA agreeing), referring to Carr v The Queen [2000] TASSC 183, R v Turnbull [1977] QB 224 and Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, among other authorities:

Carr

, Blow J, after reviewing

R v Boardman

[1969] VR 151 and

Turnbull

, noted:

'As

Boardman

and

Turnbull

illustrate, 'recognition' cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times 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

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 on 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

(Page 12)

have been seen by the witness at or about the time of the crime [61].'

R v Cox and Sadler (Ruling No 12)

[2006] VSC 233, Kaye J considered the authorities on the circumstances in which a warning will be required in relation to identification evidence, and then made these observations as to the potential for error in the case of recognition evidence:

'It is clear that similar errors may also occur where the witness is already acquainted with the accused. The authorities on this question make it clear that, in a case such as this, much depends upon the particular circumstances of the case, and upon the precise issues which have been raised in the course of evidence. Notwithstanding that the witness making the identification previously knew or had met the accused, a specific warning may nevertheless need to be given to the jury if, on the issues raised in the case, there is a real question as to the accuracy or reliability of the witness's powers of observation, recognition, or recall (

R v Spero

[2006] VSCA 58 at [28] per Redlich AJA;

R v Turnbull

[1977] QB 224 at 228) [23].'

I respectfully agree with the observations of Blow J in

Carr

and Kaye J in

Cox

The above should be read together with the discussion in

Mills

[75] - [77] (Buss JA; McLure JA & Murray AJA agreeing):

Domican

…, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ made these observations as to identification evidence and the circumstances in which a trial judge must warn the jury of the dangers of convicting on such evidence:

'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 (

Kelleher v The Queen

(1974), 131 CLR 534, at p 551;

Reg v Turnbull

[1977] QB 224, at p 228;

Reg v Burchielli

[1981] VR 611, at pp 616-619;

Reg v Bartels

(1986), 44 SASR 260, at pp 270-271). The terms of the warning need not follow any particular formula (

Reg v De-Cressac

(1985), 1 NSWLR 381, at p 384;

Reg v Finn

(1988), 34 A Crim R 425, at pp 435-436). But it must be cogent and effective (

Reg v Dickson

[1983] 1 VR 227, at p 230;

Reid (Junior) v The Queen

[1990] 1 AC 363, at p 380). It must be appropriate to the circumstances of the case (

Reg v Aziz

[1982] 2 NSWLR 322, at p 328;

Reg v Allen

(1984), 16 A Crim R 441, at pp 444-445). 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"

(Page 13)

(

Smith v The Queen

(1990), 64 ALJR 588, at p 588). A warning in general terms is insufficient (

Kelleher v The Queen

(1974), 131 CLR 534, at p 551). The attention of the jury "should be drawn to any weaknesses in the identification evidence" (

Kelleher v The Queen

(1974), 131 CLR 534, at p 551). 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 (

Davies and Cody v The King

(1937), 57 CLR 170, at pp 182-183). 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 (561 - 562).'

Later in the joint judgment in

Domican

, their Honours considered the proper approach to the evaluation of the adequacy of a warning in an identification case:

'[T]he adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case (ibid, at p 446;

Reg v Dickson

, [1983] 1 VR, at p 230;

Reg v Allen

(1984), 16 A Crim. R, at pp 444-445). But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused (See

Reg v Bartels

(1986), 44 SASR, at pp 270-271; cf

Reg v Goode

[1970] SASR 69, at p 77). The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence (565).'

Recently, in

Winmar v Western Australia

[2007] WASCA 244; (2007) 35 WAR 159, this court (Wheeler, McLure, Pullin, Buss and Miller JJA) considered, in the context of identification evidence, relevantly, the warnings which are or may be necessary in relation to such evidence. After referring to passages in

Domican

, including the passage set out at [75] above, this court stated that the relevant passages invite attention to two questions [9]. First, what are the dangers of convicting on disputed identification evidence? Secondly, how does a trial judge determine whether matters may reasonably be regarded as undermining the reliability of the evidence, so as to require the judge to lend the weight of his or her authority to a warning about those weaknesses? This court said, in relation to the first question:

(Page 14)

'What, then, are "the dangers of convicting on [identification] evidence"? The basal proposition is that there have been significant miscarriages of justice where an honest and confident identification witness has given evidence which is not accurate, and that the potential for such a miscarriage is a risk in most or many identification cases. Neither the witness' honesty nor the witness' confidence guarantees the reliability of the evidence.

That basal proposition derives (at least in part) from the experience of the courts. At [1345] of Cross on Evidence (7th Aust ed, 2004) there are mentioned a number of famous cases in which identification errors of an astonishing character have occurred. Further, any legal practitioner or judge who deals with civil or criminal cases will quickly discover that apparently honest eyewitnesses to an event can differ widely about important aspects of it. As the Devlin Committee Report points out at pars 1.24 and 4.25 (P Devlin, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases, HC 338 (London, HMSO, 1976)), cross-examination is a tool of limited usefulness in testing a witness' ability to recognise faces, and demeanour is not a useful guide to accuracy in such a case.

The danger, then, is that evidence which is inaccurate may be apparently convincing and that it will be difficult to test whether it is as accurate as it seems. The danger which must be warned against in every case, therefore, is the danger that an honest witness may be mistaken, and that an honest but mistaken witness may be convincing: Kelleher v The Queen (1974) 131 CLR 534 per Gibbs CJ at 550 - 551; R v Turnbull [1977] QB 224 (cited in Domican at 561); Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [166] per Kirby J, [218] per Hayne J; and Longman v The Queen (1989) 168 CLR 79 at 108 per McHugh J (dealing with honest but mistaken recollection generally).

There is another, related danger which authority suggests should be the subject of a general warning about the potential unreliability of identification evidence, at least in any case where there is any factual basis for concern that the danger may be present. It is the vulnerability of identification evidence to suggestion: Davies v The King (1937) 57 CLR 170 at 181 - 182; Festa at [22] and [26] per Gleeson CJ, at [78] and [81] per McHugh J. There are a number of aspects of this vulnerability to suggestion, including a possibility that a witness will pick out someone from photographs, or from a group of persons selected by the police, because he or she expects the group to contain the offender, and the possibility that a person may substitute in the person's memory an image of someone seen elsewhere (possibly in photographs selected or a parade organised by the police) for a hazy recollection of an offender.

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Finally, it is obvious that a person's ability to observe an offender may be very limited in the circumstances of a particular offence, and the dangers of which a jury must be warned include, where appropriate, the danger that the witness will simply have not had an adequate opportunity to observe, so as to be able to identify anyone.

The matters outlined above seem to us to be the core warnings as to the dangers of convicting on disputed identification evidence which are recognised by authority. The first danger, which is that of accepting as accurate evidence which is convincing but inaccurate, is a danger present in every case. The others may well be present, to a greater or lesser degree, in most cases.

However, the dangers outlined above were obviously not the only matters which were of concern to the High Court in Domican. The "significant weaknesses" which their Honours discussed at 562 - 563 included, but were not confined to, difficulties of observation and possible suggestibility.

The precise circumstances of Domican are unlikely to recur. It is necessary therefore for trial judges to be able to identify those matters which may reasonably be regarded as undermining the reliability of identification evidence and about which a warning may be required. It is obviously impossible to lay down a rule applicable to every case, as circumstances are likely to vary [10] - [17].'

This court addressed the second question as follows:

'Consideration of the second question - that is, how a judge identifies the specific weaknesses about which it is necessary to warn - may be assisted by a consideration of the nature of judicial warnings generally. A review of the cases in Australia and England suggests that, before a warning is necessary, two factors must be present. First, there must be some aspect of the evidence which gives rise to 'a perceptible risk of miscarriage of justice':

Carr v The Queen

(1988) 165 CLR 314 at 330 per Brennan J;

Kelleher v The Queen

at 560 per Mason J;

Longman v The Queen

at 86 per Brennan, Dawson and Toohey JJ.

Second, the risk of miscarriage of justice must be one which is not necessarily obvious to the lay mind (or perhaps one to which a lay person may give inadequate weight). It must derive from a factor 'of which the judge has special knowledge, experience or awareness': Carr at 325 per Brennan J and at 341 per Gaudron J; Longman at 91 per Brennan, Dawson and Toohey JJ; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 at [132] per Kirby J; Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 604 per Brennan J.

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If it is the special knowledge or awareness of the judge or of the courts which gives rise to the need for a warning, it follows that where a judge, or the courts, has or have no special expertise or knowledge, a warning is not only unnecessary, but is an unwarranted intrusion into the province of the jury: see

Bromley

at 324 per Brennan J;

Carr

at 321 per Wilson and Dawson JJ. In deciding what is or is not within the special knowledge or awareness of the court, there is a danger that the courts may assume an expertise which they do not possess. As the learned authors of Cross on Evidence (7th Aust ed, 2004) observe, although some perceived lessons from human experience are doubtless entirely correct, others may not be, and generalisations from experience may be modified as experience changes and may at any particular time be controversial (at par 3295). An obvious example is afforded by the rule which formerly applied, that in cases of an alleged sexual assault by a male upon a female, the judge was required to give a warning to the jury that it was dangerous to act on the uncorroborated evidence of the complainant. That rule was abrogated only by legislation, and not by a change to the common law, even though, as Deane J observed in

Longman

's case, it sounded 'somewhat strangely in modern ears' (at 92) and even though, at least in his Honour's view, neither wisdom nor experience - judicial or otherwise - justified the rule at the time at which it came to be abrogated (at 93).

So far as intermediate courts of appeal are concerned, where a particular form of warning has been identified by the High Court as necessary in a particular case, there is no conceptual difficulty. The court is simply required to follow authority, and the only question which may arise is that of whether the circumstances of the case at hand do fall within, or are closely analogous to, the category of cases calling for the warning. The discussion which follows here is concerned with those issues concerning identification evidence which are not the subject of authority directly on point, but which may call for a warning [21] - [24].'

28 As to the recognition evidence of Detective Constable Forbes, the submission for the accused before the learned magistrate was that, the evidence as to the 'T-shirt' aside, 'all we have got is her recognition of someone she says [the appellant] in the night-time in two seconds' (5 August 2009, ts 87). While there was no exploration of the matter of the light in those submissions, it seems to me that the adequacy of the opportunity of that police officer to observe the person she considered she had recognised had been raised thereby for consideration by the finder of fact, both in respect of that opportunity's duration and the lighting throughout. While only the duration is particularly identified in the present ground of appeal, the case before me was conducted on the basis

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the ground also included the matter of the lighting, which in any event I would consider to be covered by the ground's reference to a 'proper' warning within the meaning of

Winmar v The State of Western Australia

[2007] WASCA 244; (2007) 35 WAR 159 [21] - [24], the quotation of which in

Mills

I have previously set out.

29 The learned magistrate, as will have been seen, referred to the lighting at two places in his reasons. In the first place the learned magistrate referred to the evidence of Detective Constable Forbes that it was 'light enough at that time and place for her to be able to read paperwork in the car' (5 August 2009, ts 93). In the second place and in connection with the 'danger' in 'recognition evidence' the learned magistrate stated that the 'lighting was good, no doubt about that' (5 August 2009, ts 94). On my reading of the learned magistrate's reasons he was referring back to the evidence of Detective Constable Forbes he had previously described.

30 In my view it cannot be doubted that Detective Constable Forbes' evidence as to the recognition was the 'most important' in the case as the learned magistrate acknowledged (5 August 2009, ts 93), although as I will indicate there was the other evidence, as to the T-shirt, which the learned magistrate considered 'reinforced' (5 August 2009, ts 94) that recognition evidence. The learned magistrate in my view had correctly described the general character of Detective Constable Forbes' evidence as to the lighting conditions, at the material time, when she opened the door of the police vehicle and looked at the face of the person she considered she recognised as the appellant.

31 On Winmar the importance of that evidence made the careful evaluation of all of the evidence as to Detective Constable Forbes' opportunity to observe the person she considered she recognised a matter about which the learned magistrate had to warn himself. I leave aside the matter of the length of the opportunity to observe, which the learned magistrate recognised on all of the evidence was short, and, it might have been said, much shorter than the most recent opportunity the police officer had had to observe the appellant. However, it seems to me that there is, without reaching a concluded view on the matter, no lack of an adequate warning as to the length of the opportunity. In my view the matter is otherwise as to the lighting.

32 While the learned magistrate's references to lighting indicated he understood the significance of the evidence as to that matter, I have concluded he did not warn himself about the need for the careful

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evaluation of the

whole

of the evidence relevant to the lighting conditions at the relevant time. I have so concluded because there was evidence as to the lighting conditions not only from Detective Constable Forbes but also from Acting Sergeant Dyson, and the learned magistrate did not refer to the latter evidence. In my view, it was most important in this case to recognise that there was an apparent tension between the evidence from Detective Constable Forbes and Acting Sergeant Dyson, who it will be recalled testified that at the time Detective Constable Forbes opened the door of the police vehicle the lighting conditions were 'Not good. I had the vehicle headlights on them' (5 August 2009, ts 34). It was not clear that the reference to the headlights applied to persons near the Falcon

after

the police vehicle had pulled up, given that the person Detective Constable Forbes considered she recognised was at that point standing at 90 degrees to the police vehicle. Further it was conceded before me that the evidence as to the street lighting in the case, to which the learned magistrate also did not refer, was not sufficient to enable the learned magistrate to resolve the matter.

33 In my view Winmar required the learned magistrate to address the tension I have referred to by warning himself as to the need to evaluate all of the evidence as to lighting, not just that of Detective Constable Forbes, notwithstanding that counsel for the accused had not specifically directed the learned magistrate's attention to all of that evidence.

34 In my view it follows that ground (a) has been made out.

Ground (b)

35 There appeared to be no contest that the applicable principles were as stated in R v Hayles (1990) 54 SASR 549. However, the parties differed as to what those principles were, and how they applied to this case.

36 In Hayles the appellant was convicted at his trial by jury on a charge of attempted false pretences in attempting to obtain money from his insurance company on a claim his vehicle had been stolen and subsequently involved in an accident. A relatively inexperienced off-duty police officer, a Mr Poynton, had come to the scene of the accident on the road on which the police officer lived. Mr Poynton had asked the driver for his name which he refused to give. Mr Poynton had returned to his home to ring the police, and while he was doing so the driver left the vehicle and with a woman left the scene. Mr Poynton on his return to the scene found the vehicle locked. As a result of his investigations he identified the appellant as the registered owner of the vehicle and called him to a police station. There Mr Poynton identified him as the driver and

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the appellant denied that he was the driver. Not long after the interview the appellant visited the street where the accident took place and spoke with a number of people there, including a Mr Duif, who at the trial testified he had said to the appellant that he recognised him. Mr Duif also identified a photograph of the appellant from a set of photographs Mr Poynton showed him. Mr Duif was not sure whether this showing was before or after the appellant spoke with him. The appellant had also, on the visit to the street where the accident occurred, spoken with a Mrs Shaw, who at the trial testified she did not recognise the appellant as the man she had seen by the vehicle.

37 Prior J, with whose reasons in this respect Mullighan J agreed, said this with respect to the need for special directions to the jury as to the evidence of Mr Poynton and related evidence: Hayles (558 - 559):

In Poynter's case, his contacting the owner of the car and then meeting the appellant carried the danger of Poynter rushing to a mistaken conclusion as to the identity of the offender. He had been a police officer 'only for a couple of years' at the time of this incident. He had served as a cadet, done 12 months station duties and had 'about five months' experience in patrol work. He has never been an officer attached to criminal investigations. Such an officer would be expected to be acquainted with the dangers associated with identification evidence. Poynter pursued inquiries in a manner that was in one sense commendable, but in another, fraught with potential difficulty. He may have subconsciously rushed to a conclusion about the possible identity of the man he saw in the car and consolidated that for himself, ahead of meeting the appellant at the police station. He may have assumed that the owner of the car was likely to be one and the same person as the man he saw in the car. It is unusual for thieves to lock cars when discovered, as the driver did in this case. I think a specific direction was required from the trial judge as to the dangers of honest and apparently convincing witnesses being mistaken about the identification against the possibility that the witnesses may be over-influenced by other facts or circumstances. Indeed, the jury may have required a warning about being over-influenced by the positive character of the evidence of an off-duty police officer against the fact that whilst his pursuit of the matter was commendable, it was less than exemplary with respect to the failure to organise a line-up when the appellant responded to his call to come to the police station. The trial judge should have warned the jury that Poynter may have been mistaken, may have rushed to the wrong conclusion given the degree of involvement that he had in investigating the events which occurred outside his house. The jury could have been told how safer would that identification have been if Poynter, arranging for the appellant to come to the police station, had got police officers to include the appellant in a line-up that Poynter could then have viewed to endeavour to identify the occupant of the car on the night of the accident: cp

Alexander v The Queen

(1981) 145 CLR 395 at 402 and 403. The jury needed help

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with the positive identification evidence against the evidence of Mrs Shaw. There was little reference to Shaw in the summing up at all apart from pointing out that the prosecution suggested that Mrs Shaw was mistaken.

In this case, Poynter confronted a man about whom he could well have been suspicious. This fact should have been the subject of a direction to the jury when leaving it its proper task of assessing what weight it was to attach to the evidence properly before it. The jury should have had a clear direction about the circumstances surrounding the identifications by both Poynter and Duif. Some specific assistance should have been given with respect to other evidence that may have been consistent with the prosecution case: see R v Turnbull [1977] QB 224 at 230. The direction with respect to onus of proof could have been more specific too.

The adequacy of the summing up must be determined by a consideration of the nature and cogency of evidence. Doing that, the trial judge's direction was in the nature of a general formula. More than that was required in the circumstances of this case. There remains a risk that the accused has lost a chance of acquittal by the inadequacy of the direction on identification evidence. (emphasis added)

38 It is not in contest that the learned magistrate did not warn himself of the danger of relying on the recognition evidence of Detective Constable Forbes where she had conducted the investigation at least to the extent of conducting the interview with the appellant at the police station.

39 I note that in his closing submissions counsel for the accused had not drawn this matter to the learned magistrate's attention. The closest counsel appears to have come was the matter the subject of ground c), below, concerning the evidence of the recognition of the T-shirt. I return to that evidence there.

40 However, counsel for the respondent put to me that Hayles should be distinguished on the basis that Detective Constable Forbes was on duty at the time of her recognition of the appellant. Counsel's submission was, as I understood it, that it was a material fact in Hayles that Poynter was not on duty, as it would not be appropriate to restrict police officers in the performance of their duty to apprehend offenders by preventing them conducting an investigation when in the course of the performance of that duty they had identified a suspect, as Detective Constable Forbes had in this case.

41 I disagree with the submission.

42 The emphasised words in the quotation above indicate a particular danger that the court in Hayles identified as matter which should have

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been the subject of a direction. The need for that direction was not expressed to depend upon whether or not Poynter had been on duty when he first sighted the driver or developed the suspicion. Nor do I consider any such dependence was implicit, as I consider the particular danger to which Prior J referred to rest on the apprehension that a police officer in his position would have a personal interest in the identification of a suspect which, no matter how trustworthy the police officer might be, could colour and be strengthened by an investigation including the interrogation of the suspect. See for that danger

Hayles

(551) (Jacobs ACJ). While counsel put the contrary to me, I consider that, by its nature, the danger is one not restricted to an identification based on what the police officer saw while off-duty; indeed, there is an indication it is not so restricted in

Hayles

(550 - 551) where Jacobs ACJ said:

I would not wish to be unduly critical of Constable Poynter, in view of his limited experience, but it is wholly unsatisfactory for a police officer who is a purported identification witness to assume the dual role of the officer conducting the investigation.

43 I do not consider that the court in Hayles indicated that the identification evidence of Poynter was necessarily inadmissible, although two of the three judges in that case referred to the possibility for its exclusion in the exercise of discretion. Just before the quotation above Jacobs ACJ said at 550 if objection were taken at a re-trial, a 'serious question would arise' and Mullighan J said at 559 'I agree with the observations of Jacobs ACJ as to the basis upon which that discretion could be exercised in favour of the appellant'. Thus there is no question of discouragement of a police officer in the position of Poynter from conducting the investigation because that officer's important identification evidence would be held to be inadmissible. Doubtless the court's view as to the prospect of a warning at the trial would in any event tend to discourage the conduct of the investigation by such a police officer, as would the possible exclusion of the identification evidence in the exercise of the discretion. However, I consider those last two matters to be, singly or in combination, of a significantly lesser order than the fact that the evidence would be held inadmissible.

44 Counsel for the respondent also submitted that in any event the particular danger in Haynes did not arise in this case. That was because no admissions were made by the appellant in the interview, and Detective Constable Forbes did not conduct any identification procedure for other witnesses. However, the former was also present in Hayles, while there is no indication in the judgment of Prior J that the latter factor was essential

(Page 22)

to the need for the warning referred to by the emphasised words in that judgment.

45 Thus, I consider on the principles in Hayles relevant to this case that the learned magistrate erred in not warning himself of the danger in accepting the recognition evidence of a witness who was both an important identifying witness and an interviewing officer. I would uphold ground (b).

Ground (c)

46 As counsel for the appellant acknowledged, this ground is closely related to the preceding ground. The possible displacement effect relied upon was, for Detective Constable Forbes and Acting Sergeant Dyson, the displacement of their memories of the shirt on the person they saw by their memories of their sightings of the shirt on the appellant as the person whom Detective Constable Forbes had arranged to have brought in to the police station for an interview.

47 In order to evaluate the present ground, I need to set out in more detail than I did previously the evidence of the two police officers as to their identifications of the shirt.

48 In her evidence-in-chief, as I have indicated, Detective Constable Forbes described the shirt on the person interviewed at the police station as 'a cream-coloured shirt with a pattern on it' (5 August 2009, ts 19). When she was then asked to 'describe that shirt in relation to the shirt that you saw on [the accused] at the scene' she replied 'I would describe it as being the same one seen at the time' (5 August 2009, ts 20).

49 In his evidence-in-chief, Acting Sergeant Dyson testified as to the three males they saw run off that 'all I could really say was there were three youths' and, as I have previously indicated, 'one was shorter, and the shorter one was wearing a creamy beige top with a motif on the front' (5 August 2009, ts 33). He then testified that 'Constable Forbes stated that she could identify one of the offenders as [the appellant]', and he was asked '[w]hat can you do on the point of identification?' (5 August 2009, ts 33). He replied '[o]nly that it was the shorter Aboriginal youth, wearing the cream top with a motif'; and, when he was asked whether he ever saw 'that T-shirt again?', he replied he had (5 August 2009, ts 33). After a showing of a portion of the video record of interview and having had his attention drawn to the T-shirt the accused was wearing, Acting Sergeant Dyson said as I previously indicated '[t]hat was the same T-shirt that we saw on the offender fleeing the scene' (5 August 2009, ts 35).

(Page 23)

50 I understood the relationship to the previous ground lies in Detective Constable Forbes's selection of the appellant for interview as a suspect. In the previous ground her involvement in the interview was put as creating the danger of her tending in the interview to find reinforcement for that selection; in the present ground I understood what was put in relation to her was the danger of the reinforcement of her matching the person interviewed wearing the shirt with the person originally seen as the result of a displacement effect.

51 There is a body of authority recognising the possibility that a 'displacement effect' may have occurred where the memory of a more recent sighting from a photograph has displaced the memory of the original sighting. This authority recognises that, if such effect has occurred, it has the potential to result in later identifying matches being against the memory of the more recent sighting, not the memory of the original sighting. This potential where it is found might require the exclusion of the evidence of those matches, on the basis of unfairness by the police or in the exercise of the discretion to exclude evidence whose prejudicial effect outweighs its probative value; or, where the evidence is not excluded, this potential might require a special direction to the jury. See Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 400 (Gibbs CJ), 409 - 418 (Stephen J), 426 - 427, 429 - 430, 433 (Mason J; Aickin J agreeing at 437) and 435 - 436 (Murphy J).

52 It was not put to me that the displacement effect is restricted to cases of more recent sightings from photographs. In any event it seems to me that in principle the effect could also be from the sighting of an item, resembling one on the person seen by the witness and worn by a person of interest as shown to the witness, which gives rise to or strengthens the conviction of that witness that the person shown was the person seen.

53 It is not in contest that the learned magistrate did not refer in his reasons to any danger of the displacement effect kind.

54 Nor is it in contest that if there was a danger of that kind it should have been the subject of a special warning to himself by the learned magistrate. In particular, it was not contended in this case that the evidence should have been excluded. In any event, it is not apparent to me that either basis for exclusion clearly existed here, and there had been no suggestion put to the learned magistrate that the evidence should have been excluded. Nor could it be contended that no special direction was called for because it would have called the attention of the finder of fact to prejudicial matter that would otherwise be likely to escape the notice of

(Page 24)

that finder of fact. This could not be contended given the finder of fact was a magistrate. See on the preclusion of such a direction to a jury

Alexander

(413) (Stephen J).

55 In his closing submissions, counsel for the accused put to the learned magistrate that the evidence of the two police officers that the shirt was the same as the one they saw on the person they had seen 'should be given very little weight' as it was 'open to suggestibility' (5 August 2009, ts 88). It appears his submission was that the suggestibility arose from the fact the appellant had been brought to the police station as a suspect to be interviewed (5 August 2009, ts 88). In his submissions to me counsel for the appellant supplemented this point by what I took to be reference to the lack of any evidence that the shirt was unusual in any way to make it easy to recognise.

56 However, counsel for the respondent put to me that in evaluating the present submission it was important to note that it had not been put to either police officer that they might have been mistaken about the shirt. I disagree. It seems to me that it was clear from the accused's case at trial that any identification, whether based in part on recognition of clothing or not, was in contest because of the limited opportunity to observe the person in question.

57 At the same time I also note that there was no questioning of either police officer as to the role their recognition of the T-shirt played in their identification of the appellant at the interview or later as the person they had seen. However, it seems to me that the evidence from each of them as to the shirt, being the evidence I have reproduced above, made it evident for Detective Constable Forbes that her recognition of the T-shirt had a role in reinforcing her identification; while, for Acting Sergeant Dyson, his recognition of the shirt had a greater role in his identification of the appellant.

58 There is no suggestion in the evidence that previously to the night in question either police officer had seen the shirt they testified they saw on the person Detective Constable Forbes testified she recognised that night. On that basis, it seems to me that a danger of the displacement effect arose from the circumstances under which both made the sighting of the shirt the appellant wore, those circumstances being the interview at the police station of the appellant as the person Detective Constable Forbes believed she had recognised.

(Page 25)

59 Counsel for the respondent submitted there was no displacement effect because Detective Constable Forbes had initially recognised the appellant's face, which was the 'primary identifying feature' as counsel described it for her. However, in my view the danger of the displacement effect is not removed because it is not the primary identifying feature, so long as it had a role in relation to identification. Further, in this case the role of the shirt was greater for Acting Sergeant Dyson than for Detective Constable Forbes, given that the former did not recognise at the scene the person Detective Constable Forbes believed she recognised there.

60 I would uphold ground (c).

Ground (d)

61 I do not consider this ground has been made out.

62 The learned magistrate identified the test for arriving at a verdict beyond a reasonable doubt on circumstantial evidence in terms that there is 'no other inference reasonably available on the evidence' (5 August 2009, ts 96). A commonly cited test is that 'the circumstances must exclude any reasonable hypothesis consistent with innocence': Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 536 (Gibbs CJ & Mason J, citing Luxton v Vines (1952) 85 CLR 352, 358 (Dixon, Fullagar & Kitto JJ) and Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104 (Gibbs, Stephen & Mason JJ)). I consider that on those authorities the learned magistrate's statement of the test cannot be faulted.

63 The learned magistrate applied the test he identified to the facts as he found them that the appellant was in the car within four hours after its owner had last seen it. He did so to determine whether or not the appellant, as some one in possession of stolen property in those circumstances, committed 'the offence' that led to the possession of it, as 'the only inference available on the evidence' (5 August 2009, ts 95). In so doing, by not using the qualifier of reasonableness, the learned magistrate may have been stating the test more favourably to the accused than the test on the authorities.

64 Counsel for the appellant in his written submissions as I understood them put to me that the test should also have been applied to the evidence relevant to the issue whether or not the appellant was in the car within that time, including the recognition evidence. In the course of doing so he should have noted the weaknesses in the recognition evidence on which counsel relied for the purposes of his submissions considered earlier, and

(Page 26)

should not have made the errors counsel said he did, when he said that there was 'no doubt' the 'lighting was good' and there were 'no dangers in the recognition here'. I took this submission also to incorporate the submission counsel for the accused put to the learned magistrate in closing at trial on the alibi evidence. That submission was that the alibi evidence, if accepted, would have made it a 'difficult inference to draw' that the accused had time to leave the house, commit the offences and return.

65 However, I consider that those submissions relate to the direct evidence of identification, not to circumstantial evidence from which inferences might be drawn. I have previously considered those submissions in relation to the grounds of appeal concerning the recognition evidence, the substance of which I consider his present submissions simply repeat.

66 As to the alibi evidence the learned magistrate rejected that evidence as inconsistent with guilt (5 August 2009, ts 95), on the basis, it appears, of his findings as to the recognition evidence, his assessment of the credibility of those providing the alibi evidence and his consideration of the period during which they should be taken not to have seen the accused.

67 As to the circumstantial evidence referred to by the learned magistrate, it is true he did not identify any other inferences available on that evidence than the one that the appellant had 'committed the burglary offence earlier in the evening before the car was taken' (5 August 2009, ts 96). However, it was not indicated to me what such other inferences might have been once the learned magistrate had determined beyond a reasonable doubt that the appellant was the person Detective Constable Forbes believed she had recognised near the car that night and that the alibi evidence should be rejected. It was of course the appellant's case at trial that he was not the person Detective Constable Forbes believed she had recognised and the alibi evidence should be accepted, and so it was unsurprising that his counsel had not put any such inferences to the learned magistrate.

68 No authority was cited to me that describes as an error the failure to identify the inference or inferences consistent with innocence that might be available on circumstantial evidence considered on its own. Indeed it seems to me it would be an error so to proceed with respect to particular circumstantial evidence without taking account of all of the other relevant evidence in the case. Such account would include any intermediate facts,

(Page 27)

such as that an accused was one of the persons in possession of recently stolen property, that have been found beyond a reasonable doubt. See

Shepherd v The Queen

[1990] HCA 56; (1990) 170 CLR 573.

69 I consider that this position follows from the well recognised principle, recently restated in R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] (Gummow, Hayne & Crennan JJ) that

… in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

F (a child) v Forbes

[2010] WASC 252

17/09/2010

F (a child) -v- FORBES [2010] WASC 252