Festa v The Queen - [2001] HCA 72

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, KIRBY, HAYNE AND CALLINAN JJ
BRUNETTA FESTA APPELLANT
AND
THE QUEEN RESPONDENT
Festa v The Queen
[2001] HCA 72
13 December 2001
B39/2001
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation:
A J Kimmins for the appellant (instructed by Ryan & Bosscher, Lawyers)
M J Byrne QC with C W Heaton for the respondent (instructed by the Office of the Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Festa v The Queen
Criminal law – Evidence – Admissibility – Exclusion of evidence – Identification evidence – Usual precautions for identifying suspects not followed – Whether probative value of identification evidence outweighed danger of unfair prejudice to the accused – Whether admission of identification evidence resulted in a miscarriage of justice.
Criminal law – Evidence – Identification evidence – Whether trial judge adequately directed the jury about the deficiencies of identification evidence.
Criminal law – Evidence – Weapons and ammunitions found at the unit of co-accused were of the same character as those used in the robberies but were not purchased until after the robberies – Whether evidence of weapons was admissible as "propensity" evidence – Whether the trial judge adequately directed the jury in relation to the discovery of weapons and ammunitions.
Criminal law – Evidence – Admissibility – Whether evidence of an association between the accused and co-accused was admissible – Whether direction by the trial judge about the association was a material misdirection.
Criminal law and practice – Appeal against conviction – Application of "proviso" – Whether errors by trial judge constituted a substantial miscarriage of justice – Whether evidence was so strong that no reasonable jury could fail to convict the accused.
Words and phrases – "circumstantial identification evidence" – "positive-identification evidence" – "unfair prejudice".
Criminal Code (Q), ss 408, 668E.

GLEESON CJ. The nature of the case against the appellant appears from the reasons for judgment of Kirby J and Callinan J. I will confine my remarks to the first three grounds of appeal. For the reasons given by Kirby J, I agree that the remaining grounds have not been made out.
Grounds 1, 2 and 3 are as follows:
"1.The failure to exclude the evidence of the witnesses James, Ogilvie, Fyffe and Hill who purported to directly identify the appellant has resulted in a miscarriage of justice.
2.The admission of the evidence of James, Ogilvie, Fyffe and Hill who purported to directly identify the appellant, as circumstantial evidence, has resulted in a miscarriage of justice.
3.The trial judge's directions in relation to eye witness identification and voice identification evidence were inadequate."
In my view, ground 3 has been made out, but not grounds 1 and 2.
Grounds 1 and 2: admissibility
There is a risk of confusion arising out of a failure to distinguish between different parts of the evidence of the four named witnesses, the use of the general term "identification evidence" to describe the information they provided, and the reference to "circumstantial evidence", which had its origin in an expression used by the trial judge in ruling on admissibility.
Direct evidence is evidence which, if accepted, tends to prove a fact in issue. Here, the fact in issue was whether the appellant was one of the two people who took part in bank robberies at Biggera Waters on 27 May 1996 and at Paradise Point on 13 June 1996. (The charges, of course, had to be considered separately.) Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred[1]. The evidence of the first three of the four named witnesses was circumstantial. If accepted in full, it tended to prove that the appellant was, at the time of each bank robbery, near the scene of the crime, in the company of a male, and associated with a car of the kind used in the robbery. If those facts were established, they could form part of the basis for an inference that the appellant was one of the robbers. Even if those three witnesses had all said that they knew the appellant, saw her clearly, and recognised her, that would have been circumstantial, not direct, evidence of her participation in the robbery.
[1]Cross on Evidence, 6th Aust ed (2000) at 14.
Some of the evidence given by each of those three witnesses was plainly admissible. It was evidence of their observations of a female person, near the scene of the crime, at the time of the Biggera Waters robbery, who, although wearing a wig and disguised to an extent, was of a physical appearance consistent with that of the appellant, and who acted in a certain manner which, when related to other evidence, was such that it was open to the jury to infer that the female was one of the two bank robbers in each case. The significance of this evidence was not that, standing alone, it permitted the jury to conclude that the appellant was involved in the robberies. Indeed, standing alone, this part of the evidence of the witnesses did not even permit the conclusion that the female person whose behaviour was observed and described was the appellant. But, if accepted, it tied in with other evidence that one of the robbers was a female, and it showed that the appearance of the female was consistent with her being the appellant. It was only identification evidence in the loosest sense of that term. None of the witnesses professed to have known or recognised the appellant on 27 May or 13 June 1996. They observed, and were able to describe, a female's approximate age, size and general physical appearance. They said she wore a wig. That was particularly significant in the light of other evidence, which included fingerprints of the appellant on a can of wig and hair sheen, and a bottle of spirit gum, found in a unit occupied by the co-accused, Renton, together with wig stands and a set of instructions on the use of disguises.
The grounds of appeal, with their references to "direct identification", appear to relate, or relate principally, to evidence of later acts of identification by which the four witnesses said they recognised the appellant as the female they had seen on 27 May and 13 June respectively, although some of that evidence also fell short of positive identification.
Three witnesses, Mr Fyffe, Ms Ogilvie, and Mr James, had observed the behaviour of the female at Biggera Waters at about the time of the robbery on 27 May. Mr James had spoken to her briefly. All three attended the Southport courthouse on a date in October 1996, which had been fixed for the hearing of committal proceedings against the appellant and her co-accused. They were asked by police officers to let them know if they saw anybody fitting the description of the woman they had seen on 27 May. Mr Fyffe said that a detective "just asked me to keep my eye out, that the female could possibly be here on the day, and he said there would be no obligation for me to identify her, but if I seen her and I was certain it was her, could I at least let him know about it". Ms Ogilvie said the detective asked "if I recognised anyone that was fitting the description that I'd given to him … to let him know". Mr James said the detective said to him: "It might be somebody here you can recognise". Mr Fyffe said he recognised the woman as she came out of a lift at the courthouse. The features that attracted his notice were her size and height. Ms Ogilvie also saw the woman, who "looked familiar". Mr James saw the woman as she emerged from a lift, and heard her speak to a man who was with her. He said he recognised her voice, and her gait. He was "about 75 per cent sure" it was the woman he had seen on 27 May.
The fourth witness, Mr Hill, was a hairdresser who worked near the bank at Paradise Point. He was at work on 13 June when the robbery occurred. He saw a woman, who was one of the robbers. She had layered hair and an olive complexion. On 18 August 1996, he was shown by the police a board containing a number of photographs. He said that the persons depicted in photographs 6, 8 and 11 had the same hair and skin type as the woman he had seen on 13 June. The appellant was depicted in photograph 6. This was not evidence that "directly identified" the appellant. It was some evidence that the appearance of the appellant was consistent with the appearance of the female seen at Paradise Point participating in the robbery. It should be added that there was evidence before the jury as to when and how the photo-board had been prepared. It was prepared after the appellant had been charged.
The evidence of Mr Hill was in some respects similar to that held to be admissible by the Supreme Court of South Australia in Murphy v The Queen[2]. There, a number of witnesses to a robbery were shown photographs. They selected one photograph being that of the appellant, but could do no more than indicate that there was a similarity. That evidence was held admissible. King CJ said[3]:
"This evidence was not … in the true sense identification evidence. None of the witnesses were able to identify the photographic slide of the appellant as that of a participant in the robbery. Nevertheless the evidence did possess, in my opinion, some evidentiary value."
[2](1994) 62 SASR 121.
[3](1994) 62 SASR 121 at 123-124.
In that case, the number of witnesses who selected the same photograph was significant. But the case shows how evidence falling short of positive identification may nevertheless be of significance, having regard to the whole of the evidence.
The argument that the evidence of the four witnesses should have been excluded turned upon what were said to be deficiencies in its quality.
The strength or weakness of evidence may depend in part upon the use that might be made of it. Mr Hill's selection of three photographs, including one of the appellant, of itself could not support a positive conclusion that the woman he saw was the appellant. But the evidence did not stand alone. And even if it only showed that the woman he saw was consistent in appearance with the appellant, that was a material fact. Similarly, the cogency of the evidence of the acts of identification at the Southport courthouse depended in part upon what was sought to be made of it. As positive identification of the appellant, it was weak. In fact, the evidence of Ms Ogilvie and Mr James did not amount to positive identification. But as evidence that the appearance of the appellant was consistent with that of the wigged female seen near the bank at the time of the Biggera Waters robbery, it was of some probative value.
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is "weak", and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence.
For any one of a number of reasons, evidence of observations, including evidence of positive identification, may be made in circumstances which adversely affect its reliability. Those circumstances may be beyond anybody's control, or they may result, for example, from the way police have conducted an investigation. In Davies and Cody v The King[4] this Court considered evidence of positive identification of an accused by a witness whose previous knowledge had not made him familiar with the accused, and who was first shown the accused, alone, as a suspect. The risk involved in identification made in those circumstances is obvious. The Court said[5]:
"[I]f a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe."
[4](1937) 57 CLR 170.
[5](1937) 57 CLR 170 at 182 per Latham CJ, Rich, Dixon, Evatt and McTiernan JJ.
That passage assumed the admissibility of the evidence, and accepted the possibility that, although standing alone the "liability to mistake" of such evidence was apparent, in combination with other evidence, even other evidence of the same kind, it might sustain a conviction.
The decision of the New South Wales Court of Criminal Appeal in R v Bouquet[6] was cited with approval by this Court in Alexander v The Queen[7]. In Bouquet, the police had failed to conduct an identification parade, or to explain why one was not conducted, but had, instead, shown the victim a number of photographs, from which the victim selected a photograph of the appellant. The victim also made an in court identification of the appellant, both at the committal proceedings and at the trial. It was complained that the procedure adopted by the police in showing the photographs to the appellant was improper, and that the in court identifications were worthless. The failure to hold a line-up and the alternative procedure adopted was different from the course prescribed by police regulations. In that respect it was similar to what occurred at the Southport courthouse in the present case. The evidence, including the in court identifications, was held to be admissible. As to the photographs, Sugerman J said[8]:
"The use of photographs in this way, in lieu of a personal identification parade, goes to the weight and sufficiency of the evidence rather than to its admissibility …".
[6][1962] SR (NSW) 563.
[7](1981) 145 CLR 395.
[8][1962] SR (NSW) 563 at 568.
Of all forms of identification evidence, one of the most notoriously dangerous is in court identification, which is usually performed in circumstances that strongly suggest the answer that is ultimately given. Even here, however, there is no absolute rule requiring rejection of such evidence; and there may be circumstances in which it is appropriate to allow it. In Alexander[9], Mason J discussed in court identification, which he said was "of little probative value", in terms that accepted its admissibility. He went on to say: "It has been the practice to reinforce this 'in court' identification by proving that the witness had earlier identified the accused out of court in a line-up or by selecting his photograph from a collection of photographs".
[9](1981) 145 CLR 395 at 426-427.
The actual decision in Alexander[10] was that, in a case where no identification parade was held, and witnesses, following the arrest of a suspect, identified him from photographs shown to them by police, the evidence of such photographic identification was admissible. Gibbs CJ said[11]:
"The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused … If the trial judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case."
[10](1981) 145 CLR 395.
[11](1981) 145 CLR 395 at 402-403.
It may be noted that the wording of the grounds of appeal in the present case is consistent with what was said by Gibbs CJ. The complaint is that the failure to exclude the evidence resulted in a miscarriage of justice.
The approach taken by this Court in Alexander is consistent with that of the Supreme Court of Canada in the later case of Mezzo v The Queen[12]. An accused was tried for rape. The only issue was identification. The complainant had been attacked, in the dark, by a stranger, but she saw his face and described him to the police. Two weeks after the attack, the police arrested the accused. The police arranged for the complainant to be in court when the accused was brought to court. They did not conduct an identification parade. The police told the complainant that an arrest had been made, and that the suspect would be in court. The complainant sat in the public gallery. A number of prisoners were brought into court. When the accused was brought in, the complainant reacted visibly and trembled. She told the police the accused looked like her attacker but she was not sure, because her view in court had been partly obstructed. Some days later, the accused was brought before the court again. The police arranged for the complainant to be present. This time the complainant positively identified the accused. She identified him again in court at the preliminary hearing. She identified him again in court at the trial. All of that evidence was treated as admissible. However, the trial judge directed a verdict of acquittal on the basis of insufficiency of the evidence of identification. The Court of Appeal for Manitoba, and the Supreme Court of Canada, held that he was wrong to do so, and ordered a new trial. That order could not have been made if the evidence was inadmissible. Wilson J, referring to the frailties in the identification, pointed out that it was the function of the jury to weigh the evidence, and posed as the critical question whether the problems as to the quality of the evidence could be addressed adequately by appropriate instructions and warnings to the jury[13].
[12][1986] 1 SCR 802.
[13][1986] 1 SCR 802 at 820.
There are two principal dangers associated with identification by means of selection from a group of photographs. These were discussed in Alexander. There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. But there is also a risk of a different kind. The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history. A similar risk arises where identification is made in circumstances suggestive of a criminal background, such as where a person is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions. This is sometimes called the rogues' gallery effect[14]. Because of the evidence as to the circumstances in which the photo-board shown to Mr Hill was prepared, that is not an issue in the present case. The first kind of risk concerns the probative value of the evidence. The second is a risk that the jury will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence. In that connection, some care is needed in the use of the term "prejudice". Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused. But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use[15]. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.
[14](1981) 145 CLR 395 at 412 per Stephen J.
[15]Papakosmas v The Queen (1999) 196 CLR 297 at 325-327 [91]-[97] per McHugh J.

The evidence of the four witnesses named in grounds 1 and 2 was of some probative value. However, the trial judge had a discretion to reject it, in the interests of fairness to the appellant, if he concluded that its probative value was outweighed by the danger of unfair prejudice to the appellant. He was invited to exercise that discretion, but declined to do so. That was a decision that was open to him in the circumstances of the case, and his discretion has not been shown to have been affected by material error, or otherwise to have miscarried. And there has not been shown to have been a miscarriage of justice.
The argument for the appellant did not make clear the precise legal significance sought to be attached to the fact that the Queensland Police Operational Procedures Manual states as a matter of policy that, where an identification parade is not used, investigating police officers are to attempt to establish identification through some other means including having the witness identify the suspect from amongst a large group, and should avoid having a witness identify a suspect as the suspect enters a court building. The case is similar to Bouquet. It was not argued at trial that departure from the policy in the present case constituted illegality such as warranted exclusion of the evidence in accordance with the principles in Ridgeway v The Queen[16]. The argument was that the relevant discretion was that which permits a trial judge to exclude evidence on the ground that its probative value is outweighed by the risk of unfair prejudice. It is one thing to criticise the police for failing to adopt a better and fairer method of investigation. It is another thing to conclude that the existence of grounds for such criticism should result in the exclusion of evidence having probative value. There is no warrant for concluding that the trial judge failed to exercise his discretion in accordance with the correct principles.
[16](1995) 184 CLR 19.
The Court of Appeal was right to reject the argument that the evidence referred to in grounds 1 and 2 should have been excluded, and that its reception resulted in a miscarriage of justice.
Ground 3: directions
The Court of Appeal acknowledged that, although the trial judge gave lengthy and detailed directions about many of the risks associated with identification evidence, there were at least two respects in which his directions and warnings were inadequate. One was that he failed to warn the jury of the dangers of voice identification of the kind made by Mr James. The other was that he did not warn the jury adequately of the dangers involved in the acts of identification made at Southport by Mr James and Ms Ogilvie, who were sitting near one another, and whose recognition of the appellant, who was said to be "one of few women seen coming into the court that day", might have been influenced by combining their respective impressions and reactions. The Court of Appeal pointed out that these matters were strongly emphasised to the jury by counsel for the accused. Nevertheless, the judge should have dealt with them, and added the weight of his authority to the need for caution.
This ground of appeal has been established.
Conclusion
For the reasons given by Kirby J and Callinan J, the case against the appellant was so strong that, although ground 3 has been made out, there was no miscarriage of justice. The appeal should be dismissed.
McHUGH J. After a trial by jury in the District Court of Queensland, Ms Brunetta Festa and her co-accused, Renton, were convicted on charges of armed robbery and unlawful use of vehicles. The charges against Ms Festa related to two armed robberies on the Gold Coast, the first committed at the Biggera Waters branch of the National Australia Bank on 27 May 1996, the second at the Bank's Paradise Point branch on 13 June 1996[17]. A man and a woman were identified as committing those two robberies. The central issue at their joint trial was whether Renton was that man and Ms Festa that woman.
[17]Renton was charged in relation to a third robbery carried out on 8 May 1996 at the Morningside branch of the National Australia Bank. He was acquitted of this charge. The Crown did not allege that Ms Festa had participated in either that robbery or the unlawful use of the vehicle used in connection with the robbery.
Ms Festa's appeal to the Court of Appeal of the Supreme Court of Queensland (McPherson and Pincus JJA, Williams J) was dismissed. She now appeals to this Court. Her appeal raises six issues:
.The identification evidence. Were the circumstances in which four witnesses identified Ms Festa such that the trial judge should have rejected their evidence?
.The identification directions. If all or some of the identification evidence was admissible, did the trial judge adequately direct the jury concerning the deficiencies in that evidence?
.The tools of trade evidence. Was evidence of the discovery of weapons and ammunition in Renton's unit admissible?
.The tools of trade directions. If the evidence concerning the weapons and ammunition was admissible, did the trial judge err in directing the jury as to the use that they could make of the evidence?
.The association direction. Did the trial judge err in directing the jury as to the use that they could make of Ms Festa's association with Renton?
.The effect of the proviso. If the trial judge erred in admitting evidence or directing the jury, should the appeal be dismissed on the ground that no substantial miscarriage of justice has occurred?
In my opinion, the learned trial judge erred in his directions concerning the identification evidence and in admitting the tools of trade evidence, but in no other respect. Despite these errors, the case against Ms Festa was so strong that a reasonable jury, properly directed, would have convicted her on the admissible evidence.
Background facts and the evidence at the trial
On 3 May 1996, Renton was released from prison. While imprisoned, he wrote letters to Ms Festa, who lived in a unit at Runaway Bay ("the Kangaroo Avenue unit") with a man named Con Christef and her young child. Renton had got her address from a relative of Christef. Shortly after his release, Renton contacted her at that unit. The first of the armed robberies – in relation to which Renton alone was charged – occurred at the Morningside branch of the National Australia Bank, five days after his release from prison.
Eleven days after the Morningside robbery, Renton leased a unit ("the Pine Ridge Road unit") under the name of Donald White, paying the landlord $1,160 in cash. Ms Festa was a regular visitor to the unit, for which she had a set of keys; on at least one occasion she used the swimming pool at the units. She told police that she went shopping with Renton "every day", that he did not have a girlfriend, and that he did not know anyone else "down here". She also admitted to knowing that Renton was stealing cars and to "driving him around". The Crown relied on the association between Ms Festa and Renton to prove that she was the woman taking part in the bank robberies at Biggera Waters and Paradise Point.
After Ms Festa and Renton were arrested, police officers conducted a search of the Pine Ridge Road and Kangaroo Avenue units. They found $2,800 cash at the Pine Ridge Road unit, including a large number of $5 notes. When Ms Festa was arrested, she was carrying $850 cash in her wallet, including 25 $5 notes. The variety of denominations in which the money was found was consistent with it having been stolen from the banks.
The Pine Ridge Road unit had various items of new furniture and electrical equipment. Cash receipts indicated that some items had been bought or paid for on 22 May 1996, 14 days after the Morningside robbery. A receipt found at the Kangaroo Avenue unit indicated that one "D White" – a man answering Renton's description – had paid a deposit of $4,300 in cash for a yellow Toyota sedan. That car had been parked outside the Pine Ridge Road unit. Renton and Ms Festa were in it on 19 June 1996 shortly before they were arrested.
Police officers also found numerous items in the two units which, in the words of the Court of Appeal, were "not a common concomitant of suburban life among law-abiding members of the community". Guns were discovered in the Pine Ridge Road unit. There had been little, if any, effort to conceal them – one was lying across a chair in the lounge room. The guns had been purchased on 17 June 1996, four days after the last robbery. Police officers also found various types of ammunition, some of which did not match any of the guns found but did match the type of firearms described by witnesses as being used in the robberies[18]. Other items found in the Pine Ridge Road unit included a sledge hammer – a sledge hammer had been used in the Biggera Waters robbery – a made-up poster of Renton with the caption "Armed robber eludes police again", an instruction manual for a radio scanner that was found in the yellow Toyota and an earpiece matching a scanner left at the scene of the Biggera Waters robbery.
[18]The Court of Appeal noted that no fingerprints were found on any of these items, a fact which it considered surprising "if they had been bought and were being used for legitimate purposes".
Other objects found in the units belonged to owners of vehicles that were stolen and used in connection with the robberies and were the subject of the unlawful use counts. Items belonging to a Mrs Sutton, the owner of a white Mazda sedan, were found in the Kangaroo Avenue unit, in Christef's gold-coloured Mercedes (regularly used by Ms Festa and frequently seen outside the Pine Ridge Road unit) and at a service station in Runaway Bay that Ms Festa frequented. Property belonging to a Mr Pilbeam, the owner of a red Laser sedan, was found in the Mercedes and at the service station.
Mrs Sutton's Mazda sedan was taken from a car park on 9 June 1996; Mr Pilbeam's Laser sedan was taken from where he had parked it on 6 June 1996. Four of the cars taken and used in the robberies had had their ignition locks removed prior to being "hot wired". Other cars had scratch marks or damage to the ignition consistent with attempts to do so. Police officers found an implement capable of being used for that purpose in the Pine Ridge Road unit.
The cars belonging to Mrs Sutton and Mr Pilbeam were seen by witnesses on 13 June 1996 in circumstances proving or at least strongly suggesting that they were used in the Paradise Point robbery. In fact, the male robber rammed Mrs Sutton's Mazda into the doors of the bank. He fled from the scene in Mr Pilbeam's Laser, driven by a woman. One witness saw a loaded shotgun in the Laser. Twelve gauge shotgun cartridges were found in the Laser when it was recovered. Before, during and after the robbery, witnesses saw a man and woman loading a bag or bags into or out of one or both of these and other vehicles, including the gold-coloured Mercedes. The Court of Appeal said that it was a fair inference that the man and woman were changing from one car to another in order to avoid detection or pursuit.
Witnesses to the robberies also asserted that the two participants used disguises. Police officers found a can of hair and wig sheen, two wig stands and a set of instructions on the use of disguises at the Pine Ridge Road unit, along with a bottle of spirit gum remover. The can of wig sheen and the bottle of spirit gum remover had Ms Festa's fingerprints on them.
The identification evidence
In support of the charges, the Crown also relied upon the evidence of four witnesses who identified Ms Festa as being present in circumstances that indicated that she was involved in the robberies and in the unlawful use of the vehicles with which she was charged. Three witnesses, Mr Fyffe, Ms Ogilvie and Mr James, identified her as being present in circumstances indicating that she was involved in the Biggera Waters robbery. Mr Hill, the other witness, identified her as being present near the scene of the Paradise Point robbery.
On the day of the Biggera Waters robbery, Mr Fyffe twice saw a man and a woman acting suspiciously near his home. On the first occasion, they were in separate cars. On the second occasion, they were in the same car. Although he identified Renton from a photoboard as the man he had seen, he could not identify the woman he had seen from the books of photographs that he was shown. Those books did not include any photographs of Ms Festa. In October 1996 at the Southport Court House, however, he identified her as the woman driver whom he had seen on the day of the robbery.
While Ms Ogilvie was sitting in her parked car near the Biggera Waters Shopping Centre on the day of the robbery, she saw a man and a woman driving the same cars as Mr Fyffe had seen. Upon parking their cars one behind the other on the opposite side of the street to Ms Ogilvie, the man and the woman proceeded to take things out of one car and put them into the other. They then drove off together in the second car. Ms Ogilvie was a hairdresser. She was certain that the woman was wearing a wig. She also thought that the woman was wearing a dark green tracksuit. At the Southport Court House in October 1996, Ms Ogilvie identified Ms Festa as the woman she had seen.
On the day of the robbery, a woman parked her car – of the same make and colour as one of the cars identified by Mr Fyffe and Ms Ogilvie – underneath the block of units where Mr James lived. He described the woman as being approximately 5 feet 5 inches or 5 feet 6 inches tall, in her late thirties and wearing a blue tracksuit. She left the engine running. When she came out from the car park, Mr James criticised her for parking there. She said that she would not be long. Later, Mr James saw the woman go past the units in another car, seated next to a male driver. He identified Renton from photographs as the male, but was unable to identify Ms Festa from photographs shown to him. At the Southport Court House in October 1996, after watching Ms Festa walk and hearing her talk he identified her as the woman he had seen at the units. Mr James conceded that this voice identification of Ms Festa was based on him hearing her speak some six words at the units and six words at the Court House, four of which were small, everyday words. At the units, the woman had said, "I'll be back in a minute". At the Court House, he heard Ms Festa say "Oh, I'm in the wrong court".
Thus, the identification of Ms Festa by the three witnesses to the Biggera Waters robbery rested largely upon their seeing her at the Southport Court House in October 1996, at least four months after the robberies were committed. Upon their arrival at the Court House, one of the investigating police officers, Detective Holmes, spoke to the witnesses collectively, telling them, in the words of Ms Ogilvie, "that if we seen anything that we thought looked like the second person to let him know". The three witnesses conceded in cross-examination that Ms Festa may have been the only woman at the Court House that day who was in the age range of 25-30 and who came close to matching the description they had previously given of her.
The one witness to the Paradise Point robbery, Mr Hill, worked at a salon close to the bank. After hearing a commotion near the salon, he turned and saw a woman in a car outside the bank. He observed her for 20-30 seconds. Although Mr Hill could not see her face very clearly, he noted that she had brown hair. In his original statement Mr Hill described the woman as fair, but at the trial he said that she had an olive complexion. Mr Hill was unable to identify Ms Festa from a board of photographs. The best he could do was to provide the numbers of photographs that he thought showed women similar to the woman he had seen. One of these numbered photographs was a photograph of Ms Festa.
Ms Festa did not give evidence at her trial. In fact, on day 12 of the hearing she failed to appear – which was a breach of her bail conditions. Hanger DCJ continued the trial in her absence. On appeal, she did not contest that the jury could regard her absconding as indicating a consciousness of her guilt.
The grounds of appeal
The admission of the identification evidence
Ms Festa contends that the trial judge erred in not excluding the identification evidence. It was, she claims, of low probative value and of a highly prejudicial character and obtained by an irregular process. She argues that, because of the absence of precautions usually observed by police in formal identification parades, the identification evidence of Ms Ogilvie, Mr Fyffe and Mr James resulted in a miscarriage of justice.
Hanger DCJ admitted the evidence of the four witnesses on the basis that the jury was the proper body to determine what weight should be attributed to that evidence. His Honour said that the evidence was not so unfair to Ms Festa that it called for the exercise of his discretion to exclude it, although he conceded the identifications were of little weight, particularly that of Mr Hill.
The evidence identifying Ms Festa as the woman seen on the days of the robberies was weak. The identifications were obtained in circumstances marked by an absence of the precautions usually taken in the identification of suspects. They were made in informal circumstances, as Ms Festa was entering a court building[19] unaccompanied by any other women[20]. No police officer kept a record of the identification process. No-one made notes of the process. No-one took photographs of the identifications or recorded them on video camera[21]. By asking the witnesses to look out for the female participant and allowing them to remain together, Detective Holmes also removed the possibility of each witness spontaneously identifying Ms Festa as the woman he or she had seen[22].
[19]Section 2.11.5 of the Queensland Police Operational Procedures Manual stipulated that, where an identification parade was not used, officers should avoid having a witness identify a suspect as he or she entered a court building. See Wright (1991) 60 A Crim R 215; R v Gorham (1997) 68 SASR 505.
[20]Section 2.11.5 of the Operational Procedures Manual also advocated having a witness identify the suspect from amongst a large group of other members of the public. See R v Turner (2000) 76 SASR 163.
[21]Penny (1997) 91 A Crim R 288.
[22]R v Williams [1983] 2 VR 579.
But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
Nor is it an automatic ground of exclusion that the identification took place at a court house or after someone has suggested that a suspect may be present at a particular place. The courts have not gone so far as to say that a court house identification must be automatically excluded where a police officer or other person has suggested that the identifying witness should be on the lookout for the perpetrator of the crime at the court house. Such statements inevitably weaken the effect of the identification evidence. They are matters to be considered in determining whether evidence should be excluded because its probative value is outweighed by its prejudicial effect. Of itself, however, a statement such as that made by Detective Holmes does not provide a ground of exclusion.
Ms Festa contends that, by characterising the evidence as "more circumstantial than direct", Hanger DCJ effectively obviated the need to weigh the probative value of the evidence against its prejudicial effect. To understand the force of this contention, it is necessary to draw a distinction between positive-identification evidence and evidence of similarities between the accused and the perpetrator of a crime.

Most cases concerned with identification evidence are cases of positive identification. That is to say, cases where a witness claims to recognise the accused as the person seen on an occasion that is relevant to the charge. Positive-identification evidence may be used as direct or circumstantial proof of the charge. A positive identification of the accused is direct evidence of the crime when it identifies the accused as the person who committed one or more of the acts that constitute the crime in question. A positive identification is circumstantial evidence when its acceptance provides the ground for an inference, alone or with other evidence, that the accused committed the crime in question. A witness gives direct evidence of the charge when she testifies that the accused ordered her to hand over the takings. A witness gives circumstantial evidence of the charge when she testifies that the accused was the person who ran out of the bank immediately after other evidence proves it was robbed.
Positive-identification evidence has often proved to be unreliable. This Court has insisted that where identification evidence, direct or circumstantial, represents a significant part of the proof of guilt of an offence, trial judges must warn juries not only of the potential unreliability of that evidence but also of any particular weaknesses in the evidence, in the case being tried[23].
[23]Domican v The Queen (1992) 173 CLR 555 at 561-562.
Unfortunately, another class of evidence is sometimes called "circumstantial identification evidence"[24]. It is evidence that asserts that the general appearance or some characteristic or propensity[25] of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature[26], colour or voice or of a distinctive mark or gait[27]. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence[28]. It is proof of a circumstance – usually, but not always, weak – that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence[29].
[24]Murphy v The Queen (1994) 62 SASR 121; R v Clune (No 2) [1996] 1 VR 1; R v Wilson [1999] SASC 377; R v Turner (2000) 76 SASR 163.
[25]Ligertwood, Australian Evidence, 3rd ed (1998) at 211.
[26]State v Dutton 318 P 2d 667 (1957).
[27]Beale v Posey 72 Ala 323 (1882); Trulock v State 69 SW 677 (1902).
[28]Evidence of similarity remains presumptively admissible (see, for example, Murphy v The Queen (1994) 62 SASR 121 and R v Sparkes (1996) 6 Tas R 178 at 193-194 per Underwood J (who excluded such evidence only in the exercise of the residual discretion)) and may, when combined with other circumstantial evidence, support a verdict of guilty if the jury is adequately directed: see R v Clune (No 2) [1996] 1 VR 1. The distinction between testimony of recognition and testimony of similarity in characteristics is particularly emphasised in the context of voice identification. In R v Brownlowe (1986) 7 NSWLR 461 the voice testimony was held to be inadmissible as evidence of recognition, but it would have been admissible if left to the jury as mere evidence of voice similarity supporting a circumstantial case.
[29]cf R v Straffen [1952] 2 QB 911, where the circumstances of the offence with which the accused was charged bore unique similarity to two prior offences which he admitted committing. In all three cases, a little girl was murdered, without any sign of sexual molestation and without apparent motive, and was left unconcealed in a place where they could readily be discovered.
When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence[30]. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings[31] that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence.
[30]R v Benz (1989) 168 CLR 110. See also R v King (1975) 12 SASR 404, where it was held that the practice of requiring a warning did not presumptively apply in cases involving circumstantial evidence; R v Bartels (1986) 44 SASR 260 at 272-274 per Johnston J; Marijancevic (1993) 70 A Crim R 272 at 278 per Teague J.
[31]Domican v The Queen (1992) 173 CLR 555 at 561-562.
Thus in R v King[32], the Court of Criminal Appeal of South Australia held that no special warning was required where the witness did not profess to recognise the accused as the person he had seen on the day of a robbery. The witness had described the man he saw as being about 6 feet 1 inch tall, of slim build, with blond hair which was fairly straight, and with a tattoo on his shoulder. Hogarth ACJ, Mitchell and Zelling JJ drew a distinction between positive-identification evidence and evidence that described a person in terms that broadly agreed with the physical characteristics of the accused.
[32](1975) 12 SASR 404.
Their Honours said[33]:
"Recognition constitutes a mental process whereby one person, by observation, is able to establish to his own satisfaction the identity of another person. In so doing he no doubt takes into account the general physical characteristics of the person who he is recognising. But a complete catalogue of these personal characteristics, if supplied to a stranger, would be insufficient to enable that stranger to achieve the same act of recognition. At most he could say that the person at whom he is looking could be the man to be recognised, in that the description fits him. He could not say 'it is the man'; and it is evidence of the last category which constitutes recognition; it is that type of evidence of which the cases speak when they refer to evidence of identification. It is that type of evidence which the law requires, in certain circumstances, to be accompanied by a warning to the jury." (original emphasis)
[33](1975) 12 SASR 404 at 410.
Their Honours went on to say, correctly in my opinion, that "evidence which may be relevant on the issue of identity is not necessarily evidence of identification within the meaning of the cases"[34]. They held that the evidence of the witness was not evidence of that character.
[34](1975) 12 SASR 404 at 411.
The Court of Appeal of Queensland refused to follow R v King in R v Zullo[35], where two witnesses testified that "a man in a red shirt" stabbed the victim. Neither witness was able to identify Zullo as the killer. There was evidence that Zullo was wearing a shirt of a reddish colour that day and that he was in the vicinity when the victim died. The Court held that the trial judge should have directed the jury in accordance with the Domican principles. In my opinion, Zullo was wrongly decided on this point and should not be followed. There was no more danger of the witness being mistaken in giving this evidence than in most other forms of evidence.
[35][1993] 2 Qd R 572.
R v Bartels[36], where no Domican type directions were given, was a borderline case. After raping a woman in a laundromat, the perpetrator struggled with her outside the laundromat and then ran down the street. A couple witnessed the struggle from far away. The light was not good. Shortly after, they saw a man jog past them in the otherwise empty street. They identified that man as the accused who conceded that he had jogged past them. They also identified him as the man in the struggle outside the laundromat. That identification was contested. The couple said that he had a similar build, and deduced that he was the same man as they saw run past moments later. Johnston J said that "this evidence was evidence of an assumption of identity based on circumstances, not evidence of visual identification"[37]. His Honour said that such a case "may call for some direction but not the warning applicable to identification evidence"[38].
[36](1986) 44 SASR 260.
[37](1986) 44 SASR 260 at 274.
[38](1986) 44 SASR 260 at 274.
The judicial discretion to exclude evidence in criminal cases applies to circumstantial identification evidence as much as it does to positive-identification evidence. When a trial judge is asked to exclude circumstantial identification evidence on the ground of unfairness, the judge must examine its probative value and its prejudicial effect (if any). In Alexander v The Queen – a case of positive-identification evidence from photographs – Gibbs CJ said[39]:
"[A] trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused."
And as Perry J pointed out in Murphy v The Queen[40]:
"However such evidence is given, and however it is expressed, whether as positive evidence of identification or as an opinion as to similarities, it is for the jury to assess the probative value of the evidence in the context of the evidence as a whole. The trial judge's discretion to exclude such evidence applies equally to both forms of expression." (emphasis added)
[39](1981) 145 CLR 395 at 402-403.
[40](1994) 62 SASR 121 at 128.
In the exercise of the discretion, however, the distinction between the two classes of evidence is important. Experience has shown that juries are likely to give positive-identification evidence greater weight than that to which it may be entitled. Few witnesses are as convincing as the honest – but perhaps mistaken – witness who adamantly claims to recognise the accused as the person who committed the crime or was present in incriminating circumstances. That is why this Court insisted in Domican v The Queen[41] that juries be given directions concerning:
.the dangers of convicting on recognition evidence where its reliability is disputed, and
.the factors (if any) that may affect the reliability of that evidence in the circumstances of the particular case.
[41](1992) 173 CLR 555 at 561-562.
In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. Because circumstantial identification evidence is usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasions for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positive-identification evidence.
Ms Festa claims that the trial judge should have made a positive assessment at the time of legal argument as to whether the "identification evidence" was positive-identification evidence or merely circumstantial identification evidence[42]. His Honour's directions to the jury treated all the "identification" evidence as circumstantial evidence in the same category as similarity evidence. This suggests that, in exercising his discretion to exclude this evidence, his Honour did not consider whether some or all of it was positive-identification evidence that had to be treated differently from circumstantial identification evidence. But his reasons for admitting the evidence were so compressed that it is impossible to form a firm view about the matter. Nevertheless, his Honour's reasons, brief though they were, indicate that he did engage in a balancing process and concluded that, weak though the evidence was, it was not unfair to the accused to admit it. Accordingly, although I have a strong suspicion – based on his subsequent directions and the argument of the Crown in support of admitting the evidence – that his Honour's discretion miscarried, Ms Festa has failed to establish that his Honour failed to exercise his discretion properly[43].
[42]Murphy v The Queen (1994) 62 SASR 121; R v Clune (No 2) [1996] 1 VR 1; R v Wilson [1999] SASC 377; R v Turner (2000) 76 SASR 163.
[43]House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
Nor was this a case where the only course open to his Honour was to exclude the evidence on the ground that its prejudicial effect outweighed its probative value. Much of the evidence was positive-identification evidence that required a Domican type direction. If such a direction was given, it could not be said that the trial judge, acting reasonably, must have excluded the evidence. In so far as the evidence was circumstantial identification evidence, nothing about it suggested that its prejudicial effect required its exclusion.
The directions on identification
Ms Festa contends that, in directing the jury, the trial judge failed to distinguish between direct evidence of identification and circumstantial identification evidence. In his summing up, Hanger DCJ described the identification evidence as "not very strong". But his Honour told the jury that it was important evidence. He warned them to be very careful when evaluating it. He pointed out that people could, and did, make mistakes in identification, particularly when the person identified had not been known to them beforehand and where there had been little opportunity to observe them. Hanger DCJ instructed the jury to closely examine the evidence with an eye to details such as the distance between the witness and the person, and the length of time that elapsed between the original observation and the subsequent identification or purported identification. His Honour told the jury that it was for them to assess the quality of the evidence "in any particular case".
The learned trial judge did not specifically refer to the evidence given by Ms Ogilvie, Mr Fyffe and Mr Hill. Instead, Hanger DCJ gave a blanket warning with regard to the identifications, pointing out that most of the witnesses observed the person they subsequently purported to identify over fairly short periods of time. His Honour emphasised that the degree of certainty expressed by the witnesses "differed considerably", and that there were apparent inconsistencies at times between the evidence given at the trial and the original statements that they made to the police. So far as the witnesses' purported photoboard identifications were concerned, his Honour invited the jury to listen carefully to the tapes on which most of those identifications were recorded.
Hanger DCJ also directed the jury to bear in mind that there was evidence upon which they could conclude that the offenders in some instances may have worn disguises, making identification additionally difficult. That fact also went some way to explaining discrepancies in the descriptions given by the various witnesses. His Honour singled out the evidence of Mr James because it was based on a few words he heard Ms Festa say and her manner of walking. As this evidence was very different in kind from standard identification or purported identification evidence, Hanger DCJ pointed out that it was a matter for the jury to assess its weight and determine whether or not it was reliable.
Ms Festa submits that proper directions would have identified and explained:
(a)what evidence in the case could be considered direct evidence of identification;
(b) how the jury could use this evidence;
(c)what evidence in the case could be considered circumstantial evidence leading to identification;
(d) how the jury could use this evidence;
(e)that the jury could not simply interchange both concepts[44], ie direct evidence and circumstantial evidence;
(f)that both concepts could not sit together in the case on the same evidence[45].
[44]R v Wilson [1999] SASC 377; R v Turner (2000) 76 SASR 163.
[45]R v Wilson [1999] SASC 377 at [22].
Although Hanger DCJ did not describe all of the identification evidence as circumstantial, his Honour's directions tended to treat all of it as falling into that category. This is apparent from his Honour's description of the nature of circumstantial evidence:
"Circumstantial evidence is sometimes compared with direct evidence. Direct evidence is evidence, for example … of some person who actually saw the offender committing the offence, perhaps someone who knew him and there could be no doubt about identification and he said, 'Yes, I saw Bill Smith committing the offence.' That would be direct evidence. We don't have that here." (emphasis added)
However, that last sentence was only partly true. Some of the evidence identified Ms Festa as the person who unlawfully used vehicles that were the subject of separate charges. That was direct evidence of those charges. Other evidence was circumstantial. Thus, neither Ms Ogilvie nor Mr Fyffe nor Mr James witnessed Renton and Ms Festa committing the Biggera Waters robbery. They merely identified Ms Festa as the woman they saw in suspicious circumstances on the day of the robbery and in vehicles linked with the commission of the offence. It is also true that the three witnesses' identification of Ms Festa rested upon their recognising features of "the woman" in Ms Festa, as opposed to recognising Ms Festa as "the woman". But it was a case of positive-identification evidence that called for a Domican direction. The evidence of Mr Hill was also circumstantial evidence although of a different class. It was not recognition evidence. He saw a woman sitting in the Laser after the robber had rammed Mrs Sutton's Mazda into the doors of the bank at Paradise Point. The robber escaped in the Laser. Mr Hill pointed out photos of women who looked "similar" to the woman who was in the Laser, one of which was Ms Festa.
At the trial, counsel did not seek any directions along the lines now suggested by Ms Festa. If they had been asked for, the judge ought to have given them, for they are correct in principle. But the failure to give them has not constituted any miscarriage of justice or deprived the accused of a fair trial. I cannot see how the giving of these directions would have advanced Ms Festa's case or made an acquittal more likely. The difference between the actual directions and those that should have been given is one of form rather than substance. In so far as the judge's directions classified evidence concerning the use of the cars as circumstantial, they were too favourable to Ms Festa.
Too favourable is not a description that can be made of Ms Festa's other complaints concerning the directions on identification evidence. Where evidence as to positive identification of an accused person represents "any significant part" of the proof of guilt of an offence, the judge must warn the jury of the inherent dangers of acting on such evidence. In addition, the jury must be instructed as to the factors that may affect the consideration of that evidence in the circumstances of the particular case. A warning in general terms is insufficient[46]. In Domican[47], Mason CJ, Deane, Dawson, Toohey, Gaudron JJ and I said that:
"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."
[46]Domican v The Queen (1992) 173 CLR 555 at 561-562.
[47](1992) 173 CLR 555 at 562.

In the present case, the trial judge gave fairly extensive general directions on the identification evidence. But his directions did not sufficiently draw the jury's attention to the weaknesses in the evidence of the individual witnesses, in accordance with the principles set out in Domican and developed in subsequent cases[48]. Ms Festa's challenge to the specificity of the directions relates primarily, as it did before the Court of Appeal, to:
[48]R v Reardon unreported, Victorian Court of Appeal, 13 November 1995; R v Gorham (1997) 68 SASR 505; R v Wilson [1999] SASC 377; R v Turner (2000) 76 SASR 163; Yarran v The Queen [2001] WASCA 52. Cases decided prior to Domican dealing with the same issue include R v Williams [1983] 2 VR 579; Dawson v The Queen (1990) 2 WAR 458.
(1) the trial judge's directions on the "court house identifications"; and
(2) the directions on Mr James' voice identification.
The court house identifications
The Court of Appeal dismissed Ms Festa's complaint about the court house identifications largely on the basis that the trial judge may have thought the cross-examination of the relevant witnesses sufficiently highlighted the weaknesses in their evidence. With respect, this response does not answer the objection of Ms Festa that no line of reasoning justified omitting reference to those inherent weaknesses.
The most significant weakness in the court house identification evidence was that the witnesses made their identification as the result of seeing or hearing Ms Festa at the Court House. In Bedford[49], Street CJ referred to the climate of the court precincts as one generating "some element of predisposition" on the part of the identifier to make a positive identification. For that reason, his Honour considered it important that a trial judge canvass all matters relevant to the circumstances in which any such identification is made. Street CJ's comments were referred to by Duggan J in R v Gorham[50] where witnesses identified the accused after seeing him in the dock and in the precincts of the courtroom. Although the trial judge directed the jury that the dock identifications were of negligible probative value, he said nothing about the out-of-court identifications, nor of the dangers that are often associated with identifications made in these circumstances. Duggan J, with whom Lander and Bleby JJ agreed, held that it was essential that jurors be given instructions concerning the weakness of identifications made in such circumstances[51].
[49](1986) 28 A Crim R 311 at 314-315.
[50](1997) 68 SASR 505 at 508-509.
[51](1997) 68 SASR 505 at 508.
In the present case, the Crown relied upon other circumstantial evidence of greater weight than the purported identifications at the Court House. But, as this Court pointed out in Domican[52], 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.
[52](1992) 173 CLR 555 at 565.
Directions concerning the weaknesses in individual cases need follow no particular formula. It is sufficient if the jury receive directions that give them a sufficient understanding of the potential weaknesses in the particular evidence put before them, as opposed to weaknesses generally inherent in identification evidence. The directions must ensure "that the jury understands the possible weaknesses in identification evidence and the need for it to take particular care in its use"[53]. At the same time, the judge must be careful that the directions do not rob the evidence of all probative value. The Court of Criminal Appeal of New South Wales has specifically acknowledged the difficulty trial judges face in drawing the line between informing a jury of the otherwise unappreciated dangers in identification evidence and the deprecation of that evidence[54].
[53]R vWilliams [1983] 2 VR 579 at 586.
[54]Clarke (1993) 71 A Crim R 58 at 72.
Given the particular circumstances in which the court house identifications were made in this case, proper compliance with established principles required the trial judge to refer specifically to the circumstances in which they were made. The jury should have been directed that the identifications may have been unreliable because:
.the statement of Detective Holmes may have led the witnesses to expect that one of the perpetrators would be present that day,
.the absence of other women with whom Ms Festa could blend drew attention to her presence and made it more likely that she was the expected perpetrator, and
.the three witnesses sitting together and discussing their identification of Ms Festa might have led one or more of them to put aside doubts about the identification.
A proper direction would have instructed the jury to consider these matters in determining whether the identification evidence was reliable.
The judge's directions on identification did not sufficiently impress upon the jury the weaknesses inherent in the circumstances in which Ms Ogilvie, Mr Fyffe and Mr James identified Ms Festa at the Southport Court House. The Crown concedes that "fuller directions could have been given". Nevertheless, it submits that, in light of the compelling circumstantial case that existed independently of the identification evidence, the inadequacy of the directions occasioned no substantial miscarriage of justice. That is a submission to which I shall return after dealing with the remaining grounds of appeal.
The voice identification
Hanger DCJ made specific reference to Mr James' identification of Ms Festa, describing it as one "based on very minimal information". He reminded the jury that the evidence was based on seeing Ms Festa walk and hearing her talk. But he said no more about its reliability than that it was a matter for the jury to assess. The Court of Appeal considered that the trial judge took this approach to avoid giving Mr James' evidence undue emphasis. However, Ms Festa submits that the judge should have directed the jury as to the theoretical and actual weaknesses of the voice identification evidence in order to highlight how weak and vague it was.
The risk of mistake in identifying a voice is at least as great as in identifying a person[55]. The reliability of voice identification varies with such factors as the length and volume of speech heard, the witness's familiarity with the accused's voice and the time elapsing between the occasions when the witness heard the voice of the perpetrator and the voice of the accused[56]. They are among the factors that in many cases will warrant consideration by the jury and require adequate directions from the trial judge. In this case, the trial judge emphasised that Mr James' voice identification was "based on a few words which he said he'd previously heard a woman speak and a few words that he heard [Ms Festa] say in the precincts of that Court". Read in the context of the more general directions that he gave, the directions concerning this evidence were adequate.
[55]R v O'Sullivan unreported, Supreme Court of Queensland, Court of Appeal, 21 July 1995 at 4.
[56]cf Bulejcik v The Queen (1996) 185 CLR 375 at 381-382 per Brennan CJ, 394-395 per Toohey and Gaudron JJ, 406-407 per McHugh and Gummow JJ.
Ms Festa has failed to make out the ground of appeal concerned with the voice identification evidence.
The evidence of weapons discovered at the Pine Ridge Road unit
Ms Festa contends that the trial judge should have rejected evidence concerning the discovery of guns and ammunition at the Pine Ridge Road unit. The receipts showed that the guns had not been purchased when the robberies occurred. Thus they could not have been used in committing them. Although the jury could have regarded the guns and ammunition as part of a robber's "tools of the trade", she points out that the evidence had no specific connection with the robberies. It merely proved that Renton was a person likely to commit illegal acts.
In Thompson and Wran v The Queen[57], Barwick CJ and Menzies J acknowledged that evidence of possession of "tools of the trade" was not necessarily admissible only when it appeared that tools of that nature were used in carrying out the alleged crime. Their Honours cited with approval the dictum of Lord Goddard CJ in R v Sims[58]:
"Thus, in the case of burglary, evidence is admissible that housebreaking implements such as might have been used in the crime were found in the possession of the accused."
The crucial point of admitting such evidence was to identify the accused with the crime the subject of the charge. If the tools could not have been used in the crime, they were not admissible. Barwick CJ and Menzies J said[59]:
"[E]vidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature, is, in the absence of some special connexion, inadmissible because it does no more than prove criminal disposition".
[57](1968) 117 CLR 313 at 316.
[58][1946] KB 531 at 538.
[59](1968) 117 CLR 313 at 316.
Thus in R v Connolly[60], the Queensland Court of Appeal held that evidence of finding a "virtual arsenal" of weapons was inadmissible because it did no more than depict the accused as a dangerous person likely to commit the offence in question. Evidence of the arsenal had been led in addition to evidence concerning three weapons which were relevant to proof of the offence[61]. In those circumstances it took "little imagination" to perceive the prejudicial effect of that additional, essentially superfluous evidence[62]. Similarly in Driscoll v The Queen[63], the police had found a pistol very similar to that used in the killing with which the applicant was charged. Gibbs J held[64] that the discovery of a number of other firearms at Driscoll's house was inadmissible, as it:
"[did] not throw any light on the admissible evidence which tends to connect [Driscoll] with the crime charged, and is not so inextricably interwoven with the admissible evidence that the latter could not properly be presented if the former were excluded".
[60][1991] 2 Qd R 171.
[61]The three weapons which the Court of Appeal held relevant were two pistols taken from police officers by the accused and a weapon produced by the accused at the scene of the robbery.
[62][1991] 2 Qd R 171 at 178.
[63](1977) 137 CLR 517.
[64](1977) 137 CLR 517 at 533.
Despite these authorities, the Court of Appeal thought that "the evidence about the discovery of the firearms and ammunition in Renton's unit may have been properly admitted".
Given other evidence in the case, the inference was open that Renton intended to use the weapons for criminal activities – including armed robberies – in the future. But how did the possession of weapons bought after the date of the three robberies for which he was charged tend to prove that he had committed those robberies? The fact that they were of the same character as those used in the robberies – that is to say, that they were guns of a similar type – throws no light on the probability that he committed any of those robberies. Possession of those subsequently acquired weapons tended to prove that Renton had a propensity for committing robberies, and it is a short step to the conclusion that that propensity existed before the date of the purchase. But the possession of the guns does not have any specific connection to the robberies or throw any light on the admissible evidence connecting Renton to those robberies. Nor was it so inextricably connected with other admissible evidence that without it the admissible evidence would have been unintelligible. There was therefore no ground for the application of the principle of completeness, a principle which ordinarily applies only to verbal utterances or documents.
To admit this evidence against Renton would be to reject the application of a principle that has been followed for over a hundred years. The Anglo-Australian law of evidence does not permit a crime to be proved by reference to the criminal or discreditable propensity of the accused except in those rare cases where that propensity has a specific connection with the crime. In Pfennig v The Queen[65], Mason CJ, Deane and Dawson JJ said that to be admissible propensity evidence "needs to have a specific connexion with the commission of the offence charged". Later, their Honours said[66] that it was necessary "to find something in the evidence or in its connexion with the events giving rise to the offences charged which endows it with a high level or degree of cogency". Absent evidence of such a connection, the rule is that stated in Dawson v The Queen[67] by Dixon CJ:
"It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused."
[65](1995) 182 CLR 461 at 485.
[66](1995) 182 CLR 461 at 488.
[67](1961) 106 CLR 1 at 16.
Here possession of the guns did no more than prove the criminal character and tendencies of Renton. Since the guns were not in his possession at the time of the robberies, they were not weapons that might have been used to commit the crimes with which he was charged. They had no more connection with the charges than would proof of a previous and recent conviction for armed robbery of a bank. In Thompson and Wran[68], Barwick CJ and Menzies J said that the principle of completeness might sometimes require "that evidence should be admitted going beyond proving the possession of tools which might have been used to commit the crime in question". But their Honours immediately went on to say:
"While recognizing this, however, we are satisfied that in this case, where a collection of tools was found, the detailed evidence of the use to which some of the tools, which, it is clear, were not used in the crime might be used by a thief to commit other crimes, was no more than evidence of a particular criminal propensity, ie, the propensity to steal from safes, and of the means to indulge that propensity." (emphasis added)
[68](1968) 117 CLR 313 at 317.
But it does not follow that, because Renton's propensity to rob banks was not admissible against him, it was not admissible against Ms Festa. A critical issue in the case was the nature of Ms Festa's association with Renton. Was it an innocent association in which she simply befriended a friendless man, recently released from jail? Or were they associates in the criminal enterprise of robbing banks and stealing cars for use in those robberies? If Ms Festa knew of Renton's propensity to commit armed robberies on or before the robberies of the two banks and still associated with him, it would be some evidence that their daily association was not innocent.
Knowing that Renton, a convicted criminal, had a shotgun and a 5.6 calibre assault rifle in his possession provided solid ground for concluding that Renton had the intention to commit armed robberies, at least from the date of purchase of those guns. That conclusion was strengthened by the presence in the Pine Ridge Road unit of a made-up poster of Renton with the caption "Armed robber eludes police again". Ms Festa was in his company every day. She had a key to the Pine Ridge Road unit. It is quite likely that she was "driving [Renton] around" on the day that he bought or acquired possession of the guns. As from 17 June 1996, when the guns were bought, she could have had no doubt about the purpose for which the guns were likely to be used.
But does this knowledge provide any ground for concluding that she knew of Renton's propensity at the time of either of the robberies, that is to say, on 27 May or 13 June 1996? It could only do so if an adverse inference against her could arise from her continued association with Renton from 17 June 1996 until their arrest on 19 June 1996. The Court of Appeal said:
"Once the inference was drawn that she was aware of the firearms and ammunition in the unit, it is remarkable that, if innocent, she did not take action to distance herself from him and from the unit, instead of continuing, as she did, to associate herself with him and it."
The Court of Appeal thought that the most that could be said by way of innocent explanation of Ms Festa's continuing association with Renton was that:
(1)she must not have been of an inquisitive nature, and so knew nothing of his propensity to commit robberies; or
(2)although she knew of it, she was more than ordinarily determined to mind her own business and continue associating with him.
The Court of Appeal said an explanation of this nature did not sit comfortably with other evidence in the case. That evidence included her admission that she was "driving him around" and knew that he was stealing cars, some of which were shown at the trial to have been used in committing the robberies.
It is an irresistible inference that, from 17 June 1996 at the latest, Ms Festa knew that Renton was likely to engage in armed robberies. But it is another matter to conclude from knowledge of his propensity for armed robbery on and after that date that she knew of his propensity before that date. There was a great deal of evidence ("the other evidence") that implicated Ms Festa in the bank robberies. But the inferences from the other evidence were not connected with the inferences that could be drawn from the possession of the guns and the presence of the wall poster, except in the sense that, if drawn, they led to the same conclusion. The guns and the poster were one body of evidence. The other evidence was an independent body of evidence. Each of these two bodies of evidence gave rise to independent inferences. The admissibility of the evidence concerning the guns has to depend on the inferences that could be drawn from that evidence standing alone. On that basis, I do not think that a jury could logically draw the inference that Ms Festa knew of Renton's propensity on or before 13 June 1996 by reason of her knowledge of that propensity on and after 17 June 1996.
It follows that the trial judge erred in admitting the evidence of the presence of the guns in Renton's unit.
Because it is necessary to determine whether the admissibility of this evidence may have led to the conviction of Ms Festa, it is necessary to examine the directions that the trial judge gave to the jury in respect of it.
The directions on the weapons
Ms Festa contends that the trial judge should have specifically directed the jury as to what inferences could properly be drawn from the possession of the guns and ammunition. She submits that the judge did not make it clear to the jury that, if the guns and ammunition were admissible, the evidence did not show that Ms Festa had any knowledge of them prior to the raid by the police. The only inference available was that she was associating with a man who, at some stage after 17 June 1996, when he purchased the rifles, may have had an intention to do something illegal with them.
Hanger DCJ stressed to the jury that none of the weapons found in the Pine Ridge Road unit were used in the robberies. His Honour noted, however, that two of the weapons found were similar to those observed in the course of the Biggera Waters robbery. Some of the ammunition located in the unit could have been used in similar weapons. Hanger DCJ continued:
"[A]s I understand it, one of the purposes of adducing that evidence is to show, in effect, that the possession of firearms and ammunition are part of the tools of trade of a robber and if you find weapons and firearms in the possession of a person it's another circumstance which you may take into consideration, seeing that weapons or firearms and ammunition are used by bank robbers, such items were found in premises occupied by Renton. It doesn't in itself prove anything, but it is another relevant consideration."

Secondly, the proviso to the common form provision can be seen as accepting that a basic premise of the common law is that an accused person is entitled to a trial according to law. For that reason, alone, any departure at trial from what the law requires is a miscarriage of justice. But the proviso recognises that not every departure, at trial, from the proper application of the law warrants setting aside a conviction.
Thirdly, both the framing and the subsequent application of the common form criminal appeal provisions, including the proviso, have had to take account of two other considerations: that the jury is the tribunal of fact in a criminal trial and that the prosecution must prove its case beyond reasonable doubt. In recent years, some prominence has been given to cases where a court of criminal appeal, having examined for itself the evidence given at trial, has formed its own opinion as to whether there was a reasonable doubt about the accused's guilt[193]. But those have been no more than particular applications of the common form provision requiring the court to allow the appeal "if it is of opinion that the verdict of the jury … cannot be supported having regard to the evidence"[194]. What is important for present purposes is that criminal appeals must be decided giving due recognition to the facts that it is for the jury to decide what evidence is persuasive and what is not, and that the degree of persuasion that must be attained to warrant conviction is very high.
[193]M v The Queen (1994) 181 CLR 487.
[194]s 668E(1).
It follows that for a court of criminal appeal to apply the proviso the court must conclude that the evidence properly before the jury would, if the jury had been properly instructed, have inevitably required the jury, acting reasonably, to return a guilty verdict. A court of criminal appeal must approach the consideration of the proviso in any particular case paying close attention to the nature and consequences of the error that has been identified in the trial. To take but one example, in some cases it may be possible to conclude that the jury could not have reached the verdict it did, unless it accepted some evidence and rejected other evidence. In such a case, could the error that has been identified have affected those conclusions? Often enough, that question will require an affirmative answer. If, however, the answer is no, what does that say about whether there has been a substantial miscarriage of justice?
By contrast, if evidence has been wrongly admitted at trial it may be more difficult to detect from the jury's verdict how it dealt with particular factual issues at trial. In such a case, of which the present is an example, it is necessary to direct attention to the uncontroverted facts and consider whether, on those facts, conviction was inevitable.
The formula usually cited in connection with the application of the proviso is taken from the reasons of Fullagar J in Mraz v The Queen[195]:
"[E]very accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice."
It is to be noted that his Honour was not, in terms, describing the application of the proviso, so much as the operation of the common form provision taken as a whole. His Honour referred to the proviso two sentences later when he said[196], "[i]t is for the Crown to make it clear that there is no real possibility that justice has miscarried."
[195](1955) 93 CLR 493 at 514.
[196](1955) 93 CLR 493 at 514.
Be that as it may, use of the formula of "lost chance, fairly open, of acquittal" must not be permitted to obscure the nature of the inquiry that must be made. That is an inquiry which seeks to identify whether, on the evidence that was properly admitted at trial, a jury acting reasonably and properly directed would have inevitably convicted.
For the reasons given by McHugh J, this was such a case.
CALLINAN J.
The facts
A man named Marc Renton was released from prison on licence on 3 May 1996. Shortly afterwards he telephoned the appellant at her home in Runaway Bay, on the Gold Coast, where she was living with another man named Con Christef and her young child. Renton had been serving a term of imprisonment with one of Christef's relatives from whom Renton had obtained the appellant's address. Renton used the name Donald White to rent an unfurnished unit in Pine Ridge Road, Coombabah in respect of which he paid the landlord a sum of $1160 in cash. He did this 11 days after the robbery of a bank at Morningside in Brisbane. The unit was placed under covert surveillance. During it, the appellant was seen to be a regular visitor to the unit for which she possessed her own set of keys. She was there on the morning of 19 June 1996, the day on which she was arrested, some six days after the robbery of another bank at Paradise Point on the Gold Coast. She told police officers who interviewed her that she used to go shopping with Renton "every day"; that he did not have a girlfriend; and that he did not know anyone else "down here". Her fingerprints were found on a can of hair and wig sheen, and a bottle of spirit gum remover at the unit. Two wig stands and a set of instructions on the use of disguises were also found there.
The appellant was alleged to be concerned in two robberies committed in May and June 1996 in south-east Queensland. These robberies involved banks at Biggera Waters and Paradise Point, suburbs of the Gold Coast near Brisbane. On 25 April 1997, Renton was convicted, after a trial extending over some 17 days in the District Court at Southport, of the robberies at Biggera Waters and Paradise Point. He was acquitted of the robbery of the bank at Morningside; but he was convicted of a count of unlawful use of a motor vehicle involved in facilitating that robbery. He was also convicted of a further two counts of unlawful use associated with the robbery at Biggera Waters, and another three counts of that offence in relation to the Paradise Point robbery. His appeal against those convictions was dismissed by the Court of Appeal on 12 December 1997.
The appellant was indicted and tried jointly with Renton by Hanger DCJ with a jury in the District Court at Southport in Queensland in April 1997. She did not give evidence at the trial. She absconded before it was completed. She was found guilty in her absence, of the robbery of the banks at Biggera Waters and Paradise Point. No indictment was presented against her in respect of the robbery at Morningside.
The prosecution relied heavily on the evidence of the association between Renton and the appellant. A search of Renton's unit at Pine Ridge Road on 19 June 1996 by police officers located $2800 in cash (including a large number of $5 notes in the pocket of a suit in the main bedroom); and items of new furniture and domestic electrical equipment, together with some receipts dated 22 May 1996 for their purchase. An amount of $850 in cash, including 25 notes of $5 value, was found in the appellant's wallet at the time of her arrest. In addition, a receipt dated 14 June 1996 for a deposit paid on the purchase of a yellow Toyota sedan 078 PUY was located on 25 June 1996 at 2/88 Kangaroo Avenue, where the appellant was residing. That was the vehicle in which Renton and the appellant were seated together on 19 June 1996 shortly before they were arrested on that day. The receipt for the deposit on the Toyota sedan had been given in return for a payment of $4300 in cash by a man answering Renton's description, and who had agreed to buy the vehicle in the name of D White. A membership card of the Royal Automobile Club of Queensland bearing that name and vehicle registration number was also found in Renton's unit.
Christef, with whom the appellant lived at 2/88 Kangaroo Avenue, was the registered owner of a gold coloured Mercedes sedan 105 DIN, to which the appellant had access and of which she was a regular user. Both it and the Toyota sedan were seen outside Renton's unit. Items of property (including audio tapes) belonging to a Mrs Sutton were found in the Mercedes sedan on 25 June 1996. Other items of property belonging to her were found in the unit at 2/88 Kangaroo Avenue. They were identified by Mrs Sutton as having been in her white Mazda sedan which was taken from a car park on 9 June 1996 and which was the subject of an unlawful use count against the appellant committed on 13 June 1996. Mrs Sutton next saw her car pictured on television in a news story as the vehicle used by robbers to smash through the doors of the bank at Paradise Point on 13 June 1996. On its return to her, the vehicle was in a severely damaged condition. Some of Mrs Sutton's property which had been left in her sedan was also found among garbage at the Caltex Runaway Bay service station, a service station which the appellant from time to time used. With that property were some other items of property belonging to a Mr Pilbeam. He was the owner of a red Ford Laser which was taken from where he had parked it at Ashmore on 6 June 1996. He next saw it on 14 June 1996, when he collected it from police officers on the day after he was told it had been recovered. It was the subject of an unlawful use count in the indictment against both Renton and the appellant. Some of the audio tapes taken from Mr Pilbeam's car were also found in the gold Mercedes sedan on 25 June 1996.
The vehicles belonging to Mrs Sutton and Mr Pilbeam were seen being driven by a man and a woman on 13 June 1996 in circumstances suggesting that they were involved in the Paradise Point robbery. After Mrs Sutton's car was rammed into the doors of the bank, a male robber escaped in Mr Pilbeam's red Laser sedan driven by a woman. A loaded shotgun was seen in that vehicle, and 12 gauge shotgun cartridges were later found in it. Various witnesses at different times before, during or after the robbery saw a bag or bags being loaded into or out of one or both of these and other vehicles including the gold Mercedes sedan. Four of the vehicles taken and used in the robberies showed signs of "hot wiring"; in others there was damage to the ignition system consistent with attempts to do likewise. An implement was found in the unit at Pine Ridge Road capable of being used for that purpose.
The vehicles unlawfully used were seen being driven or used by a man and a woman. The appellant admitted that she knew Renton was stealing cars. She regularly visited the unit at Pine Ridge Road and had done so on the morning of 19 June 1996. It was at about midday on that day that the unit was entered by police officers using her keys and that firearms, ammunition, a "wanted" poster of Renton, a sledge hammer, and a radio scanner were found there. One of the firearms was lying across a chair in the lounge. A loaded magazine lay on the dining table.
Other relevant factual matters will be referred to in discussing the argument of the appellant in this Court.
The appeal to the Court of Appeal of Queensland
The appellant appealed against her convictions to the Court of Appeal of Queensland. In dismissing her appeal, the Court (McPherson and Pincus JJA, Williams J) said this:
"On the basis of the evidence at the trial, the jury would have been justified in reasoning along the following lines: (1) that Renton committed the robberies at Biggera Waters and Paradise Point, as well as the related unlawful use offences, of which he was found guilty; (2) that, in doing so, he was assisted or accompanied by a woman; (3) that 'every day' during the period May-June 1996 he was in the company of the appellant, and perhaps with no other woman 'down here'; (4) that the appellant was directly linked with Renton through: (a) her access to and presence in Renton's unit at Pine Ridge Road to which she had a set of keys; (b) the yellow Toyota in which the accused were both found on 19 June; and (c) various motor vehicles, including those that were unlawfully taken and used; (5) that those vehicles were used by Renton and a woman in committing the robberies; (6) that woman was the appellant, and could not have been anyone else. The reasoning process may perhaps be abbreviated to saying that, once the jury were satisfied that the appellant was proved to have taken part in the unlawful use of the motor vehicles employed in the robberies, it was a logical, and probably an inevitable, next step that she should also be found to have been the woman involved in the robberies, especially given the incriminating material found in the unit at Pine Ridge Road. Such a conclusion was necessarily dependent on proof of association between Renton and the appellant during the relatively short period beginning at earliest with his release from prison on 8 May and continuing until their arrest on 19 June. If evidence of that association had not been adduced at the trial, it would not have been possible or legitimate to infer that the appellant was involved in the unlawful use offences, or, consequentially, in the robberies themselves. They might, for all the jury would have known about it, have been complete strangers to one another. In summing up, his Honour approached the matter cautiously, saying that there was evidence showing association, which he described as 'minor', between the two accused that might assist in identifying her as the woman involved. That direction was, if anything, favourable to the appellant".
The appeal to this Court
The appellant appeals to this Court on the following grounds:
"1The failure to exclude the evidence of the witnesses James, Ogilvie, Fyffe and Hill who purported to directly identify the Appellant has resulted in a miscarriage of justice.
2The admission of the evidence of James, Ogilvie, Fyffe and Hill who purported to directly identify the Appellant, as circumstantial evidence, has resulted in a miscarriage of justice.
3The trial judge's directions in relation to eye witness identification and voice identification evidence were inadequate.
4The failure to exclude the evidence of the discovery of weapons and ammunition subsequent to the offences has resulted in a miscarriage of justice;
5The trial judge's directions in relation to the discovery of the weapons and ammunition were inadequate.
6The learned trial judge's directions as to the association between the Appellant and Renton has resulted in a material misdirection."
The first submission of the appellant was that the trial judge erred in failing to exclude the evidence of the identification given by Fyffe, Ogilvie, James and Hill, who were witnesses called by the prosecution.
I summarise the evidence of Mr James first. He lived in a unit in Biggera Waters, and in the late afternoon of 27 May 1996 was raking leaves off his driveway. At this time, Mr James saw a white Ford Laser sedan enter and stop underneath the block of units. The engine was left running and a woman, about 5 ft 6 ins or 5 ft 5 ins tall and apparently aged in her late thirties, ran out from the car. He remonstrated with her and she replied that she would not be long. Shortly afterwards, he saw another car, a Mitsubishi Magna station wagon, being driven away. From the "bluey" coloured tracksuit she was wearing Mr James recognised the female passenger as the woman he had seen earlier. She was wearing a shoulder length black wig and was seated next to the male driver whose photograph Mr James selected from a photoboard he was shown on 18 June 1996. He was unable to identify the appellant from other photographs he was shown, but he claimed, in evidence, that he was able to do so from the way she walked or ran and from hearing her speak (some six or so words) when he saw her at the Southport courthouse during the committal proceeding on 24 October 1996. After that, he said he felt "100% sure" she was the same woman as he had seen parking the Laser sedan at the unit.
Mr Fyffe saw the appellant in a motor vehicle used in connexion with the robbery at Biggera Waters. On 24 October 1996 at the Southport courthouse, Mr Fyffe identified the appellant. Defence counsel unsuccessfully attempted to have the evidence of the identification excluded. The trial judge decided that it was a matter for the jury. Mr Fyffe said that a Detective Holmes had asked him "to keep [his] eye out" when he was at the Southport courthouse to see if he could identify the female whom he had seen on 27 May 1996. Mr Fyffe accepted that he had had only a fleeting glimpse of the appellant and was unable to ascertain her approximate height. He identified her at the courthouse by her hair and her "size". She could, he said, have been wearing a wig on 27 May 1996. Mr Fyffe agreed that the person he identified at the courthouse was the only female with long dark hair under 40 years whom he saw at the courthouse that day.
Mr Hill was another witness for the prosecution. Mr Hill was working at a hairdressing salon which was one shop away from the bank at Paradise Point. He heard a car smash into the doors of the bank, and he saw a woman of olive complexion and with long brown hair sitting in a red Laser sedan in front of the bank.
The appellant makes a number of criticisms of the evidence of these witnesses and the way in which the trial judge dealt with it. The appellant submitted that she was never asked to participate in an identity parade in connexion with any of the robberies; nor had she been given an opportunity to decline to participate in such a parade. It was inappropriate, therefore, for the police to resort to an informal identification parade before they had ascertained that the appellant refused to participate in a formal parade[197]. The police had been well aware for some time that the appellant was to face court, and there were ample time, and sufficient safeguards and facilities available for a proper identification parade to be conducted. No attempt was made to "blend" the appellant into a mixed group of persons[198]. On the occasion of purported identification, she was the only person in the vicinity of the courthouse who could have fitted even an approximate description of the offender. Moreover, it was submitted by the appellant, the witnesses were allowed to remain together prior to, at the time of, and after the arrival of the appellant at the courthouse. The witnesses subsequently discussed their identifications between themselves. Mr James had already been exposed to a photograph of the appellant before the day of the appellant's hearing[199]. The reliance by Mr James upon voice identification after hearing only six words or so spoken by the offender on 27 May 1996 was misplaced[200].
[197]See R v Shannon (1987) 47 SASR 347 at 354; Wright (1991) 60 A Crim R 215.
[198]Wright (1991) 60 A Crim R 215 at 221.
[199]Alexander v The Queen (1981) 145 CLR 395 at 400.
[200]Bulejcik v The Queen (1996) 185 CLR 375 at 381-383 per Brennan CJ, 393-394 per Toohey and Gaudron JJ.
All of these are legitimate criticisms, including that of the non-separation of the individual witnesses and their being permitted by police officers to discuss their evidence among themselves.
The appellant referred to s 4.9[201] of the Police Service Administration Act 1990 (Q) and the Operational Procedures Manual to which it gives the force of law. Section 2.11.5 of the Operational Procedures Manual provides as follows:
"POLICY
Where an identification parade is not used, investigating officers are to attempt to establish identification through some other means including having the witness identify the suspect from amongst a large group of other members of the public.
Officers should avoid having a witness identify a suspect as that suspect enters a court building."
[201] "Commissioner's directions
4.9(1) In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service.
(2)A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act.
(3)Subject to subsection (2), every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction."

The appellant submits that the evidence of the four witnesses should have been excluded and that the trial judge wrongly treated it as circumstantial evidence, albeit that his Honour may have regarded it as being of little weight: by so regarding it, its true character, as identification evidence, was obscured, and close scrutiny of it, which should have led to its exclusion, or the strongest of cautions to the jury about it, did not occur. Further, the appellant submits, the trial judge erroneously failed to distinguish between circumstantial and identification evidence, and the Court of Appeal condoned that approach by saying:
"In the end, the directions on identification of the appellant appear adequate and sufficient for the occasion. They were given at the beginning of the substantive part of the summing up before his Honour turned to an analysis of the circumstantial evidence, emphasising as he did so that 'identification is very important in this case', but that identification 'is a part and part only of the circumstantial evidence on which the Crown relies to prove its case'."
I would accept that there is force in the appellant's criticisms of the conduct of those who were responsible for the failure to conduct a proper identification parade and who caused or permitted the witnesses to discuss the identity of the appellant and her appearance before they had all given evidence at the appellant's trial. So too, the departures from the strictures of the manual should be condemned. In addition, the trial judge did, inaccurately, refer to all of the identification evidence as circumstantial evidence. The consequences that flow from that are matters which I will discuss in due course.
The trial judge did say, however, that some of the identification evidence "is not very strong … in some cases it is purported identification [evidence]". His Honour warned the jury to "be very careful … people do make mistakes in identification". He went into considerable detail as to the dangers of uncritical acceptance of such evidence and discussed at some length the particular deficiencies in the evidence in this case.
It was not correct to describe all of the identification evidence as circumstantial. Much of it went directly to a fact in issue, whether the person identified was one and the same person as participated in, or was seen to participate in, the events forming part of the commission of the offence. That was certainly so in the case of Mr Hill's evidence. (There may be a qualification in respect of the identification evidence of Mr James and Mr Fyffe whose first sight of the appellant, in each instance, was of her in highly suspicious circumstances not at the scene of the crimes of robbery but tending to show her participation in them.)
Circumstantial evidence may be described as evidence of facts subsidiary to, or connected with the main fact to be established from which the conclusion of guilt flows as a natural inference[202]:
"[T]he class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed."
[202]Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ, citing Martin v Osborne (1936) 55 CLR 367 at 375.
If anything, however, the misdescription here of some of the identification evidence may have favoured the appellant by the suggestion implicit in it that it fell short of being directly probative of the ultimate fact in issue. It certainly in no way caused the trial to miscarry or deprived the appellant of a fair chance of acquittal.
That leaves for consideration the questions whether: the reception of the evidence of identification and the way in which the trial judge dealt with it; the occurrence of the discussions by the witnesses of their identification of the appellant; the failure of the investigating police officers to comply with the obligations imposed by the manual; and the fact that the evidence was misdescribed as circumstantial evidence; together or singly require that the verdicts be quashed.
I do not think that the verdicts should be quashed: I regard this case as being within the statement by the majority (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Domican v The Queen[203], who said[204]:
"Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice."
The case was, in my opinion, a very strong one indeed. Its strength lay in the matters to which the Court of Appeal referred in the passage that I have quoted and need not be repeated. The Court of Appeal was right to say that it was a logical, and an inevitable next step that the appellant should be found to be guilty by the jury.
[203](1992) 173 CLR 555.
[204](1992) 173 CLR 555 at 565.
I do not regard the misdescription of some of the evidence as circumstantial evidence as a material misdirection. On numerous occasions during his summing up, the trial judge warned the jury of the need for them to exercise great care in considering the circumstantial evidence, and specifically, that part of it which his Honour may have been, immaterially as I have held, so misdescribing.
The next ground upon which the appellant relies is that the trial judge erred in admitting evidence about the firearms, unconnected with any of the robberies, which were found at Renton's unit, and, in giving the directions that his Honour did in relation to them. It seems to me to be logically probative of the likelihood that the appellant had been involved in armed robberies of banks as alleged, that she had access to, was often at a residence in which weapons of the kind used in the armed robberies were located, kept company with Renton, and was connected with the vehicles used in the commission of the robberies in the way in which she was. The evidence with respect to the firearms, taken with all of the other evidence upon which the prosecution relied, was important and logically probative of the appellant's guilt.
In Thompson and Wran v The Queen[205], the items in question were of a different kind and suited for a purpose unrelated to the types of offences alleged to have been committed there. And in each of Driscoll v The Queen[206] and R v Connolly[207], the evidence that was led was of an "armoury" and "arsenal" of weapons which were irrelevant to the offences charged. It is also significant that the weapons in this case were found with ammunition for them, instructions, wig stands and wig sheen, as well as a bottle of spirit remover bearing the appellant's fingerprints.
[205](1968) 117 CLR 313.
[206](1977) 137 CLR 517.
[207][1991] 2 Qd R 171.
These items are not of the kind that ordinary law-abiding citizens usually have lying around their homes, and there is not a reasonable, innocent explanation of their presence in Renton's unit. These items would have to have been obtained for a specific purpose. Renton had only been at large for a short time, and had rented an empty unit. These items were therefore acquired recently and are exactly the sorts of items that would be required to commit the offences with which Renton and the appellant were charged. The presence of the weapons and implements actually found by the police officers, and those used in the commission of the offences, goes well beyond coincidence.
Pfennig v The Queen[208] is the authority governing the admissibility of evidence of this type. Adopting some of the expressions of the test from Pfennig, it is submitted by the Crown that there is no rational view of the evidence of the finding of these "tools of trade" that is consistent with a view of the case other than that Renton must have been involved in the offences, or, that the objective improbability of the evidence having some innocent explanation is such that there is no reasonable view of it other than as supporting the inference that Renton is guilty of the offences. Having reached this conclusion, the Crown submits that the jury would have been justified in concluding that, in light of all of the evidence, the appellant was the female accomplice. In general those submissions should be accepted.
[208](1995) 182 CLR 461.
Not only was the evidence admissible but also the directions about it, although brief, were not erroneous. Indeed, to have referred at greater length to the items than the trial judge did, might have served to emphasise them to the appellant's disadvantage.
The last ground of appeal is that the trial judge misdirected the jury with respect to the association between the appellant and Renton. On any view this was an unusual relationship, quickly forged, and involving the use of stolen vehicles, access to weapons, and other materials and implements far removed from an innocent association. The appellant regularly visited Renton's unit. Renton had recently been released from prison. The appellant had a set of keys to the unit. She admitted that she used to shop with Renton every day. She possessed quite a large amount of cash, as did Renton, and for which an obvious explanation was that it consisted of part of the proceeds of the bank robberies. The trial judge did not err in emphasising these matters as important elements in the case for the prosecution.
In my opinion, notwithstanding that points raised by the appeal might be decided in favour of the appellant, particularly the failures of the police officers to act lawfully or properly in relation to the identification of the appellant, no substantial miscarriage of justice actually occurred in the circumstances of this case[209].
[209]See s 668E of the Criminal Code (Q):
"(1)The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.
(1A)However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(2)Subject to the special provisions of this chapter, the Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
(3)On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
Orders
I would accordingly dismiss the appeal.