Grbic v Pitkethly

Re: SASHA GRBIC
And: GLEN THOMAS PITKETHLY
No. ACT G72 of 1991
FED No. 849
Number of pages - 68
Criminal Law
(1992) 110 ALR 577
(1992) 38 FCR 95
(1992) 65 A Crim R 12

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), von Doussa(2) and Higgins(3) JJ.

CATCHWORDS

Criminal Law - identification of accused - summary trial by magistrate - accused convicted of two charges of assault - previously unknown to six witnesses who identified him - no identification parade - no other out of court identification - one witness deposed to seeing accused twice soon after assaults - no sighting of accused by remaining witnesses between assaults and trial 15 months later - five witnesses see accused in precincts of court on day of trial - lack of detail in this evidence - six witnesses make in court identification - no reference by magistrate to identification in precincts of court - adequacy of warning given by magistrate to himself about dangers of in court identification - whether convictions safe.

HEARING

CANBERRA

#DATE 11:9:1992

Counsel for the Appellant: Mr. R. Thomas

Solicitor for the Appellant: Mr. J. Pappas

Counsel for the Respondent: Mr. J. Ibbotson

Solicitor for the Respondent: Ms. Amanda Tonkin

for the Director of Public Prosecutions

ORDER

The Court orders that:

1. The orders made by the Supreme Court of the Australian Capital Territory on 18 November 1991 be set aside.

2. In lieu thereof the appeal to the Supreme Court be allowed and the convictions of the appellant on two charges of assault dated 6 June 1991 be set aside.

3. There be liberty to the appellant to apply for an order for costs of the proceedings in the Supreme Court and in this Court if he be so advised.

4. Any submissions in support of an application for orders for costs are to be made in writing delivered to the Associate to Sheppard J. on or before 25 September 1992.

5. A copy of the sumbissions be served upon the solicitor for the respondent who is to respond to them on or before 9 October 1992.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

SHEPPARD J. This is an appeal from the Supreme Court of the Australian Capital Territory (Miles C.J.) in which that Court dismissed an appeal brought from the decision of a magistrate (Mr. Dainer) in which the magistrate had convicted the appellant on a charge of unlawfully inflicting grievous bodily harm and a further charge of assault occasioning actual bodily harm. The offences are provided for in ss.54 and 59 respectively of the Crimes Act 1900.

The prosecution case was that in the early hours of the morning of 21 January 1990 the appellant and another person had launched an unprovoked attack on a group of young men "who were minding their own business" in Civic near the Private Bin Club. The person who was alleged to have suffered grievous bodily harm was a Mr. Marples and the person who was alleged to have suffered actual bodily harm was a Mr. McElhinney. The only issue of any substance was whether the prosecution evidence was sufficient to establish the identity of the appellant as one of the persons who committed the assaults. Six witnesses gave evidence identifying the appellant as that person. It should be mentioned that the other person involved has apparently not been found or identified so that no charges have been brought against him.
The learned magistrate said that there was a failure by the police to hold an identification parade or line-up in accordance with Australian Federal Police Instructions and the observations of the members of the High Court in Alexander v. The Queen (1980) 145 CLR 395. As Miles C.J. pointed out, an accused person is not obliged to take part in such a procedure. Where, as in this case, the accused was not arrested, all the police could do was to invite the person to participate. There was no such invitation in the present case.
The magistrate referred to the danger of "in-court identification" and also to "the dangers of dock identification" when the mere presence of the dock in the court room "draws the eyes of the witness to the person in the dock and tends to associate that person with the person whom the witness is seeking to identify". The critical part of the magistrate's decision was expressed as follows:-

"Now, here, of course, there is no dock. The defendant when identified by the six witnesses was sitting alongside his counsel at the bar table. It seems to me that the mere presence of a dock in a court room with a defendant sitting in it is enough to draw the eyes, as it were, of a witness who may be, by suggestion, drawn to the conclusion that that person is the person whom he is identifying. But there never has been a dock in the Magistrate's Court in the Australian Capital Territory and it seems to me that the dangers associated with a so called dock identification don't exist here. However, the in court identification referred to by his Honour, Mr. Justice Mason, is something of which the court must be conscious and must have very careful and anxious consideration because of the dangers associated with that type of identification. But the greater danger of dock identification doesn't exist here."

The reference to the judgment of Mason J. (as he then was) was a reference to what his Honour had said in Alexander's case (p 426), namely:-

"Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed. ........ ........ ........ ........ ........ ........ .... ... Traditionally it has been accepted that a witness identifies the accused at the trial as the person whom he observed at the scene of, or in connexion with, the crime. This "in court" identification, sometimes described as primary evidence, is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial circumstances conspire to compel the witness to identify the accused in the dock. 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 R. v. Fannon and Walsh (1922) 22 SR (NSW) 427; Reg. v. Bouquet (1962) SR (NSW) 563; Reg. v. Doyle (1967) VR 698; see also Reg. v. Goode (1970) SASR 69; Cross on Evidence, 2nd Aust. ed. (1978), p 54) though the propriety of proving the photographs has been challenged by the applicant (i.e. the applicant in Alexander's case).

The admission of evidence of this kind has been justified by reference to analogy with the doctrine of recent contrivance (Wigmore on Evidence, 3rd ed. (1940), vol. IV, s.1130). In Di Carlo v. United States (1925) 6 F (2d) 364, at p 366, Judge Learned Hand held that, even if it be thought to be contrary to the hearsay rule, that rule must yield to common sense. For my part, I see no violation of the hearsay rule, nor do I think it necessary to resort to the doctrine of recent contrivance to sustain the admission of the evidence. In my opinion an identification made out of court by a person qualified to make it is admissible in evidence, subject to qualifications later to be mentioned. This is because an identification out of court, being earlier in time and made under circumstances which involve a selection in the absence of any compulsion, is more likely to be reliable than an identification made in court. I note that the Devlin Report on Evidence of Identification in Criminal Cases draws attention to the deficiencies of dock identification and recommends that restrictions be placed upon it (see pars. 4.89-4.109)."

The reference to the "Report on Evidence of Identification in Criminal Cases" is a reference to the "Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases" (1976).
In 1978 there was a further report, "Identification Procedure under Scottish Law" (Sheriff Principal W.J. Bryden (Chairman)) Cmnd. 7096 (1978). There it was said (p 35, para. 5.12):-

"We recognised that, in the interests of fairness to the accused, dock identifications were undesirable because of the conspicuous position of the person to be identified. There is clearly a danger that a person might make an identification in court because, simply by seeing him in the dock, he had become convinced that he was the offender."

and (p 36, para. 5.16):-

"We have concluded that, although dock identification can be criticised, it would be more undesirable to make it always conditional upon prior identification at a parade. We see it as vital to preserve the importance of identification on oath... We feel that it is of paramount importance to protect the witness's right to change his mind at the time of the trial, and the jury's right to have such evidence placed before it; cross-examination can bring out the value (or lack of it) to be attached to such evidence in the particular circumstances."

The learned magistrate in the present case went on to relate the principles propounded by Mason J. and also by Gibbs C.J. (at p 400) in Alexander's case, to the identification "made by the six witnesses in court". He said that there was no prior knowledge of the accused by any of the six witnesses prior to the time of the assaults. Only one of the witnesses - Mr. McIlwain - had seen the accused after 21 January 1990 and before his appearance in Court.
The magistrate considered a number of matters. These included the proximity of the witnesses to the accused at the time of the assaults - they were all within a few metres of what was occurring - the state of the lighting - it was reasonably good - the length of the sighting - a period of up to three minutes or so - and inconsistencies in the evidence of the six witnesses which the magistrate thought were minor.
The magistrate then went back to the identifications which were made in Court and said:-

"The identifications were unequivocal. In each case the witnesses pointed to the defendant and said, 'That's the man who attacked our friends.' There was no equivocation. They weren't drawn away from that. They were cross-examined at length by a competent and skilful counsel and they weren't budged from that identification. True it is that they were in some doubt and some were quite confused about the length of the scar, the size of the scar, the nature of the scar and so on. But the mainstream of their evidence was not deflected; they identified the defendant in court. That identification to me was very persuasive. I would take the view that a jury would find the identification convincing enough to remove any reasonable doubt about whether the defendant committed these offences. I have no reasonable doubt"

Miles C.J. referred to the factors taken into account by the magistrate. Under the heading of "Demeanour" he said:-

"The Magistrate was clearly impressed by the way in which the six witnesses gave their evidence and took into account their admissions that they had talked about the matter since it had happened. As I understand it, it is submitted on behalf of the appellant that the advantage that the Magistrate had in seeing and hearing the witnesses is outweighed by other factors."

His Honour next referred to the evidence given by the appellant and his mother. I do not find it necesary to go to the detail of this. He went to the heart of the matter under a heading "Errors of law" where his Honour said:-

"It was submitted that the Magistrate wrongly admitted the identification evidence. I reject the submission. There may be cases where the probative value of identification evidence is so low, that the evidence should be excluded from the consideration of the jury in a criminal trial. Such cases occur where the witness had little opportunity to observe the person at the time of the events and there is an in-court identification of the accused, which is the first identification by the witness since those events. However, that consideration is of little practical importance in a summary proceeding before a magistrate. If the evidence is excluded, it will only be excluded after it has been drawn to the magistrate's attention and after the magistrate has given it some conscious consideration. In a criminal trial evidence of this nature is not excluded because it is inadmissible but because of the risk of the inordinate prejudicial effect it might have in the eyes of a jury. Where the prosecution is before a magistrate, or before a judge alone, the evidence is properly admissible and it is for the magistrate or judge sitting as the tribunal of fact to give it the weight it deserves. In the present case it may be that the Magistrate over-estimated the magnitude of dangers associated with the identification of a person in a dock when compared to those of identification in a court without a dock (the dock being a structure no longer in use in the Australian Capital Territory). However, his remarks on dock identification were immediately followed by his express reference to 'in-court identification' and the need for awareness of the dangers of such identification and for very careful and anxious consideration of it. In my view, the Magistrate correctly approached the question of so-called dock identification as a more dangerous form of in-court identification. The Magistrate gave himself adequate warning of the risks associated with identification in court by the six witnesses of the appellant as the assailant and it cannot, in my view, be said that his decision was vitiated by failure to take those risks into account."

His Honour dealt with some alleged errors of fact but this part of his judgment is not significant for this appeal. However, it is convenient to observe that his Honour was hearing an appeal which came to the Supreme Court as a rehearing. Although the appeal which is brought to this Court is a true appeal and not a rehearing, our task differs little from that of his Honour. That is because we must approach the matter by looking at it in the same way as his Honour was required to do. It is only if the matter is thus approached that it will be possible to detect error in the decision appealed from, i.e. his Honour's decision.
The central submission of counsel for the appellant was put in two alternative ways. In counsel's submission, either the evidence of identification should have been rejected or, if it were admitted, the magistrate should have concluded that it was not sufficient to allow him to reach the conclusion that the offences had been proved beyond reasonable doubt. Counsel stressed that the evidence relied upon was evidence of in court identification. Except in the case of Mr. McIlwain, there was no evidence that any of the witnesses had identified the appellant otherwise than in Court. It was submitted that the passage cited from the judgment of Mason J. in Alexander's case ought to have led both the magistrate and the Chief Justice to conclude that the evidence of identification was unsafe and not sufficient upon which to base the convictions.
I think it is helpful, before reaching conclusions on the submissions made by counsel for the appellant, to refer to the actual evidence of identification given by each of the six witnesses. The first of the witnesses to be called was Mr. Simon Bradley. He said that on 21 January 1990 at about 12.30 a.m. he was outside the Private Bin Night Club with seven other persons including Mr. Marples, Mr. McElhinney and Mr. McIlwain. He said that a man approached the group and asked for the time. He said that he was fairly tall, probably about six feet with a reasonably athletic build. He had shortish hair at the front and long at the back. He had a scar on his right cheek. He described his dress and said that he had been able to get a reasonable look at him. He said that he thought that he could identify the man again. He said he had seen him in the vicinity of the Court earlier on the morning of the day he gave evidence when he saw him go into the toilet. He said that he could see him in Court. He then identified the appellant who was sitting at the bar table. Mr. Bradley went on to describe the incident which had led to the assaults. It is unnecessary to refer to this part of his evidence. He was cross-examined at length but the cross-examination does not bear on the present problem. No objection was taken to the evidence of identification given by the witness in his evidence in chief.
The next witness was Mr. McElhinney. He said that the man who first "approached was tall, about six feet one inch, had dark hair which was long at the back but shaved or pretty short at the sides". He had two gold earrings and a scar on his left cheek. Mr. McElhinney was asked whether he had seen the man in the vicinity of the Court on the morning of the day he gave evidence. He said that he had and that he was in the court room. He identified the appellant as the person in question. He then said that the scar to which he had referred was on the right cheek and not the left and that he had made a mistake in his earlier evidence. Again there was no objection to the evidence of identification. The cross-examination was extensive but is not relevant to the present problem and it is not necessary further to refer to it.
The next witness was Mr. Montgomery. He also described the assailant as about six feet in height with dark hair, long at the back and short at the sides. He was wearing an earring and had a large scar on his right cheek. The witness indicated the appellant as the man to whom he had referred. Mr. Montgomery said that he had seen the appellant earlier in the day "outside the foyer." He was in the company of another person.
No objection was taken to the evidence. Again the cross-examination is not relevant to the matters argued on this appeal.
Mr. Marples was asked whether he had a good look at the person in question. He said "not really". All that he could remember of his facial features was that he had a large nose. Mr. Marples then described the assaults which he witnessed. When he had given his evidence about this matter, he was asked whether he had a good look at the man as he came towards him. He said that he did not but that he had had a chance to observe him beforehand. He added:-

"When we were trying - when we were originally outside the Private Bin and we tried to walk away he was sort of like walking around, you know, he was trying to stand in front of us and I saw him then and then after he hit Stephen I sort of got pushed myself and then I tried to turn around and then I vaguely saw him rushing towards me and, you know, I felt this sort of huge blow to the eye."

Mr. Marples was asked whether he had seen the person in the vicinity of the Court on the morning of the hearing. He said that he had seen him outside the toilets and outside the door of the Court. He also said that he had seen him in the Court and identified the appellant as the man to whom he had been referring. In cross-examination he agreed that he had not seen the man between the date of the assaults, 21 January 1990 and the day of the hearing, 18 April 1991. He agreed that, when he had seen the appellant outside the toilet, he was with his counsel.

The next witness was Mr. McIlwain. He described the assailant as six feet tall, reasonably solidly built with black hair and a scar on his right cheek. He said that he had earrings and described these to the Court. He also described his clothing. After describing the incident in question, he agreed in answer to leading questions that he had had a clear view of the man with the black hair. He said that he had seen him outside the Court on the day that he gave his evidence. He had seen him walk into the toilet and walk up the stairs of the Court. He said that he was in the company of another person at the time. He identified the appellant as the man in question.
In the course of his cross-examination he said that he had seen the man about two weeks after the incident in the Belconnen Mall. He saw him again outside the Private Bin a couple of days later.
Finally there was Ms. McPhail. She identified the appellant as the man who committed the assaults, and she gave a description of him. She saw him in the waiting room before the proceedings began.
That was the evidence of the six witnesses referred to by the magistrate. There was also the evidence of Ms. Lane. She said she had little recollection of the events and did not identify the appellant as the assailant.
In my opinion this case raises a difficult question. The learned magistrate is a judicial officer of great experience. He had no doubt whatsoever that the evidence established that the appellant was the assailant. The magistrate had heard and seen the witnesses and had had the benefit of all the advantages which a judicial officer at first instance has. Furthermore, he had referred to the leading authority on the problem and had given himself, subject to one matter to which I shall later refer, appropriate warnings of the dangers of identification evidence and the risk, when identification of a previously unknown assailant is a principal issue, that, albeit in good faith, a wrong identification may be made particularly if it is only made in Court. Having taken these warnings into account, he nevertheless was firmly of the opinion that the evidence established that the appellant was the assailant. On ordinary principles, that would seem to lead to the conclusion that no criticism of the trial process was open. The magistrate was the judge of the facts. He had not misdirected himself and he had reached the conclusion that the appellant was guilty. The question remains, however, whether the magistrate sufficiently heeded the warnings given in Alexander's case and in other authorities to which I shall refer.
This is a case where the trial was by a magistrate sitting alone. No jury was involved. I have found only two cases where this problem has arisen in which the trials were not trials by juries. They are both decisions of single judges of the Supreme Court of South Australia. The first, Duthie v. Grey-Pagdin (1988) 46 SASR 527, is a decision of Matheson J. and the second, Jokic v. Hayes (1990) 53 SASR 530, is a decision of Mullighan J. The first of these cases differs from the case in question here because, in addition to the in court identification, there was evidence of identification elsewhere including evidence of witnesses who had identified the accused from photographs. In court identification was therefore only a part of the evidence. It seems to me that the reason why Matheson J. sustained the conviction was because of the other evidence and not because of the in court identification. Mullighan J. quashed the conviction in the second case. That case also differs from the present one. At the conclusion of the Crown case there was no evidence at all of identification. After the accused had given evidence the magistrate recalled one of the Crown witnesses who identified the accused as the person she had seen commit the crime. Mullighan J. thought that this was entirely unsatisfactory with the consequence that the conviction was quashed. It seems apparent from his judgment that, if the witness had been asked to identify the accused in court in the course of her evidence in chief, he would have had no different view.
These decisions and the general principles which are involved lead me to think that, subject to one qualification, the principles which apply to cases which are tried without juries are no different from those which apply where the trial is by jury. The qualification relates to the admissibility of identification evidence. In a trial before a jury it will be appropriate in some cases for the trial judge to reject the evidence of an identification because of its unsatisfactory nature. That does not seem to me to be an appropriate course in a trial without a jury. The evidence is admissible. It is a question of the weight and significance that it is to be given at the end of the case. For that reason I would reject submissions made in this case that the evidence of identification should have been rejected. But that is not the end of the matter. The difficult question is whether we should conclude that the magistrate should not have been satisfied beyond reasonable doubt that the assaults were committed by the appellant.
There are some further authorities to which it is useful to refer notwithstanding that they only confirm the approach that has already been indicated. The authorities are all cases in which the trial was by jury.
Prior to Alexander's case, the significant authority in this area was another decision of the High Court, Davies v. The King (1937) 57 CLR 170. There the Court in a joint judgment said (p 182):-

"... if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question. We think the view accepted in England and, as far as we know, elsewhere in the Dominions where the provisions of the Criminal Appeal Act have been adopted, should be applied in Victoria. That view, as we understand it, is that, if 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 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."

Reference may also be made to the later decisions of the High Court in Morris v. The Queen (1987) 163 CLR 454 and Domican v. The Queen (1992) 66 ALJR 285 and to the judgment of Gobbo J. in the Full Court of the Supreme Court of Victoria in R. v. Williams (1983) 2 VR 571 at p 583.

That evidence of identification which is limited to in court identification will be likely to be regarded as insufficient finds support in a dictum in the judgment of King C.J. in R. v. Britten (1988) 51 SASR 567. There the Court was critical of the fact that there had been no identification parade, but there was other evidence (i.e. evidence of identification apart from the evidence of in court identification) of the identification of the accused. King C.J. said (pp 571-2):-

"An identification parade would give an honest and careful identifying witness an opportunity to correct a mistake in the identification from photographs. Evidence of identification at an identification parade following identification from photographs is clearly admissible and probative although the probative force might be thought by a jury to be weakened by the fact that the witness has previously seen a photograph: R. v. Doyle (1967) VR 698 esp at 701. An identification parade held in an early stage would have given Mrs. Sauer an opportunity to pick out the appellant in the flesh and would have removed some of the misgivings which one must feel in consequence of the disparity between the appellant's height and that estimated by Mrs. Sauer to the police. I might add at this point that it appears that counsel for the prosecution did not ask Mrs. Sauer to identify the appellant in court. I think that it is apparent from the course of her evidence that she implicitly identified the man in the dock as the man of whom she was speaking, but it is unfortunate that she was not asked to say so explicitly. It is not to be thought that because courts have stated that dock identification is of little value where the accused is not previously known to the witness, the witness should therefore not be asked whether he can see the person concerned in court. This should be done in every case depending upon identification notwithstanding that the evidence principally relied upon by the prosecution is the out of court identification."

It is to be observed that, although his Honour thought that it was important that witnesses identify an accused person in court, this was only to be done to confirm that the person previously identified as the accused was in fact the person before the Court. It is thus evidence of recognition of a person earlier identified rather than of identification for the first time. It should be clear that the passage does not support the view that in court identification alone is sufficient. A sound reason for that conclusion is that, if a witness who can see a person thought to be the accused is asked to describe the accused as, for instance, Ms. McPhail was, the witness will be able to give a description and look at the accused at the same time.
I return to the facts of the matter. The account given of the evidence of the six witnesses shows that in court identification was not the only evidence of identification before the magistrate. One of the witnesses (Mr. McIlwain) had seen the appellant on two occasions not long after the incident in question on two occasions and that witness and four others had seen him on the day of the trial in different circumstances although nevertheless in the precincts of the Court. The magistrate referred to the evidence of Mr. McIlwain concerning his observations of the appellant not long after the incident, but not to any of the evidence of observations of the appellant on the day of the trial in the precincts of the Court. The magistrate's reasons disclose a concentration on the in court identification and upon the detail of the evidence given by each witness, particularly in relation to the opportunity to observe the appellant at the time of the assaults. Having directed himself about the dangers of in court identifications, he reached his conclusion. He appears to have taken little, if anything, from the previous sightings of the appellant by Mr. McIlwain and nothing at all from the observations of the appellant in the precincts of the Court but outside the court room. I think that this was probably the correct approach. In at least one case the appellant was seen with his counsel and in all cases the evidence was lacking in a desirable degree of detail.
Earlier I said that the magistrate's directions to himself about the way in which identification evidence should be weighed reflected no error subject to one matter that I would deal with later. I have earlier quoted the relevant passage from the magistrate's decision. In that passage the magistrate distinguished between dock identification and in court identification. He pointed out that there had never been a dock in the magistrate's court in the Australian Capital Territory and went on to say that it seemed to him that the dangers associated with a so-called "dock identification" did not exist in the instant case. He added, however, that the in court identification referred to by Mason J. in Alexander's case was something of which the Court must be conscious and to which the Court must give very careful and anxious consideration because of the dangers associated with that type of identification. Nevertheless, he added that the greater danger of dock identification did not exist in the case before him.
I do not think that any distinction should be drawn between dock identification and in court identification. As in the present case, an accused person will usually be sitting in a place in the court where he will be recognised as the accused. Whether he is sitting behind or beside his counsel, he will be fairly plainly the accused person. I do not believe that Mason J., in the passage earlier cited from Alexander's case, was intending to distinguish between dock identification and in court identification i.e. identification in court but not in a dock. He used both expressions in the passage and I would assume he was referring to both forms of identification. The way in which the magistrate has expressed himself is open to the criticism that he has not regarded the case as requiring the same degree of care because the identification was not of a person in a dock. Nevertheless, the magistrate was well aware that there were substantial dangers about in court identification whether or not the court contained a dock. If this were the only point in the case, I do not think that it would have itself warranted disturbance of the magistrate's decision. But I have a reservation about it and it is not the only matter to be considered.
The evidence of identification, other than the evidence of in court identification, was sparse, but nevertheless it existed. It consisted of Mr. McIlwain's earlier sightings of the appellant not long after the incident and the identification of the appellant as one of the assailants by five of the witnesses, including Mr. McIlwain, each of whom had seen him in the precincts of the Court earlier on the day of the hearing. It seems to me that the Crown may have been able to make a case of identification away from the courtroom on the basis of this evidence. But as earlier said, no detail of these observations was given in evidence. In the course of the argument, it was suggested that it was for counsel for the appellant to object to this evidence. The proper course was to reject it unless more detail was led. If objection were not taken, it was for counsel for the appellant to cross-examine to bring out the detail of the evidence of the identification; otherwise any criticism of it at the close of the evidence would be of little significance.
I would reject these suggestions. It is for the Crown to prove the guilt of the accused beyond reasonable doubt. It is his right to remain silent and not to cross-examine any witness or object to any evidence. It is for the Crown to prove its case. It would be quite unfair to thrust upon counsel for an accused person an obligation to object to evidence or to cross-examine a witness when each of these courses might have the effect of filling in gaps which it was for the Crown itself to fill. The accused and his legal representative do not normally have access to the witnesses. They do not know what detail the witnesses might be able to give and, if detail is sought at the behest of an accused, there is always the danger that a witness may, albeit subconsciously, embellish evidence because of a perceived weakness in the evidence which has so far been given.
As mentioned, the magistrate made no mention of the various identifications in the precincts of the court and appears to have given little weight to Mr. McIlwain's evidence of earlier sightings. He concentrated on the evidence given by each witness of the incident and the opportunities each had at that time to see the appellant. But the fact that each witness was able to give a clear account of that sighting of the appellant and of what occurred at the time of the assault, whilst relevant and important, does not provide strong support for a subsequent identification. Otherwise there would be no need to bother with identification parades and other means of out of court identification. Moreover, witnesses can be mistaken. That can occur whether the witnesses are few or numerous. In England trial judges are required to add to a direction to a jury that an identification by one witness can constitute support for the identification by another, a proviso which states in clear terms that even a number of honest witnesses can all be mistaken; re R. v. Weeder (1980) 71 Cr App R 228 at p 231 and R. v. Breslin (1984) 80 Cr App R 226 at p 230.
It is to be observed that the interval of time between the assaults and the trial was 15 months. Over a year had passed since Mr. McIlwain's later sightings of the appellant. None of the witnesses knew the appellant prior to the incident. Subject to Mr. McIlwain's evidence, they observed him only on two occasions, the first at the time of the assaults, and the second, some 15 months later, at the courthouse. It seems to me that these were matters which required the magistrate's close attention but there is nothing in his decision which indicates that he paid any attention to them at all.
If the detail of it had been led, the evidence of the five witnesses who saw the appellant in the precincts of the Court may have proved helpful. It may be that each witness was alone at the time of his or her sighting in the sense that none of the other witnesses was present. It may have been that each saw the appellant and, without prompting or being asked any question, immediately recognised him. On the other hand, the witnesses may have been together or in groups at the time of their observations. They may have prompted each other or they may have been prompted by a police officer. One does not know and could not know unless the detail of the evidence were led. The fact that it was not suggests that the Crown itself did not place great store on the evidence. The magistrate's reasons indicate that he did not. One is then left with the evidence of in court identification.
It seems to me that the warnings given in the various authorities to which reference has been made and in a large number of others which I have read but to which I have not referred expressly mean what they say. It is not a case of reciting them and paying them some sort of lip service. They have to be taken into account as indeed do the instructions which the Australian Federal Police are officially given about this very matter.
In my opinion this case raises an important question. Some indication that that is so appears in a note in a recent issue of the Victorian Law Institute Journal. The note appears on a page which is, I think, designed to amuse readers of the Journal. But this note has a serious side. It is as follows (The Law Institute Journal, August 1992, Vol. 66, No. 8, p 666):-

"Wrong man in the hot seat

Lawyers have been complaining for years about the practice of asking witnesses to identify a wrongdoer when the person charged is in the dock. The witness almost automatically points to that person.

In Colac Court it is customary for defendants to be seated in a chair beside the bar table. When a union picketer was charged recently with having assaulted a contractor in the course of an industrial dispute, the picketer's counsel, Trevor Monti, arranged for another unionist to be seated in the defendant's chair.

The contractor said he had only been pushed in the shoulder and had never complained to the police about an assault. 'The police came to me,' he said.

Asked who had pushed him, the contractor said he was certain it was the man in the defendant's chair. He added that the police had approached him about four months after the alleged incident.

The magistrate said Mr. Monti's action in having another man in the defendant's chair was an abuse of the court's process; but he awarded $3,900 costs against the police. Mr. Monti submitted in reply that he was entitled to do what he did because he knew that the police would have to rely on a dock identification."

I think that cases which are tried by judicial officers alone may sometimes present more difficulties in their analysis than do cases which are tried by juries. The jury is the tribunal of fact and determines issues of fact guided by the directions of the trial judge. The judge and the jury have separate and distinct functions. If identification is in issue, it is for the judge to determine whether or not to admit the evidence of identification. If it is admitted, the judge's task is to give the jury the appropriate directions and warnings about the way they should deal with the evidence. In a case tried without a jury, the tribunal will not usually reject the evidence, but it will be faced with the question whether, in the light of the totality of the evidence, it can safely conclude that it has been established beyond reasonable doubt that the crime was committed by the accused. In reaching its conclusion the tribunal must give itself the appropriate warnings of the dangers inherent in identification evidence in cases where the accused was not previously known to the witnesses. It then needs to consider those warnings and to be sure that it has heeded them. This does not mean that it is to be overawed by them but it needs to pay them real attention. Finally, it has to determine whether it is satisfied of the guilt of the accused. Inevitably these considerations will tend to overlap and resolve themselves into one overall question. At the heart of that question will be the degree of satisfaction which the tribunal has with the strength of the identification evidence. An appellate court called upon to review a conviction on the ground that it is unsafe or unsatisfactory because of the nature of the identification evidence in the case, must also give close attention to that matter. In doing so it will need to consider whether, in all the circumstances, the court below could safely have arrived at a conclusion of guilt.
Having given this matter due consideration, I have reached the conclusion that in all the circumstances the convictions of the appellant were unsafe and should be set aside. The lapse of time, the failure of the Crown to explore the detail of the identifications made in the precincts of the Court but outside the courtroom, the well known fallibility of human recollection of observations of previously unknown people and my reservation about the adequacy of the directions the magistrate gave to himself about the dangers of in court identification operate together, in my opinion, to make it dangerous to leave the convictions standing.
In the result I would allow the appeal. I would set aside the order made by Miles C.J. at first instance and, in lieu thereof, order that the appeal to the Supreme Court be allowed and the convictions of the appellant set aside. I would reserve leave to the appellant's solicitors to make such submissions in relation to costs as they may deem appropriate. Any such submissions should be made in writing delivered to my Associate within 14 days of today. A copy of the submissions should be served upon the solicitors for the respondent who are to respond to them within a further 14 days. If the Court requires further oral argument, the legal representatives of the parties will be notified.

JUDGE2

VON DOUSSA J. This is an appeal from a decision of Miles C.J. in the Supreme Court of the Australian Capital Territory dismissing appeals against the convictions by a magistrate of the appellant on charges of inflicting grievous bodily harm by an unlawful act, to wit by assault, and assault occasioning actual bodily harm.

The circumstances which gave rise to the charges, and the evidence led at the trial, are summarised in the reasons for judgment of the other members of the Court.
The issue at trial was whether the appellant was the person who assaulted Mr Maples and Mr McElhinney near the Private Bin Club in Civic on 21 January 1990. Before the Supreme Court, and before this Court, the primary contention of the appellant was argued in alternative ways. It was contended that the identification evidence lead from each of the six witnesses for the prosecution who purported to identify the appellant in Court as the assailant should not have been admitted; or alternatively if the evidence were properly admitted it was nevertheless so lacking in probative value that it could not support a conclusion beyond reasonable doubt that the appellant was the assailant, and for that reason the verdicts were unsafe and unsatisfactory.
The appellant's arguments in support of these alternative contentions assert that the only evidence identifying the appellant as the person who committed the assaults was the identification by the six witnesses in court. For the purpose of considering the first limb of the appellant's contentions I shall assume this assertion to be correct, although for reasons which I later give I do not think that it is correct.
The appellant was not known to any of the six witnesses who purported to identify him. The uncertainties which attend identification evidence from a witness who has no prior knowledge of the accused, and the dangers of an in court identification by such a witness, are well known to the courts. The leading authorities in Australia are Davies and Cody v The King (1937) 57 CLR 170 and Alexander v The Queen (1980-1981) 145 CLR 395.
These decisions stress the importance of reinforcing an identification made in court with evidence of an earlier out of court identification of the accused by the witness, usually by means of a line-up or by a process of photo identification. Where there has been no earlier out of court identification of this kind, it is recognised that the risk of mistake by a witness to whom the accused is unknown renders an identification made in court of little probative value (see Alexander, per Mason J. at 426-427). The evidence on that account alone is not rendered inadmissible, but it is well established that in a jury trial, the trial judge may exercise a discretion to exclude the evidence where its prejudicial effect outweighs its probative value. The exercise of that discretion will require the court to consider what opportunity arose in the course of the investigation of the crime for the police to pursue an out of court identification of the accused by the witness. In Alexander Gibbs C.J. said, at 402-403:

"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. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification..."

If the opportunity to conduct a line-up was reasonably available but without good reason was not pursued, an element of unfairness which adds to the prejudicial effect of the in court identification arises. Upon objection being taken, the trial judge could be expected to rule against the admission of the identification evidence upon those facts being established on a voire dire hearing. In a jury trial, the evidence of the in court identification would by this process be kept from the jury.

The same principles apply in a trial before a magistrate or judge alone. Objection can be taken to the evidence of an in court identification, and the magistrate or judge can be asked to conduct a voire dire hearing and on discretionary grounds to rule against the admission of the evidence. In the present case this course was not followed. No objection was taken to the evidence when it was sought to be led. Rather, counsel for the appellant allowed the evidence to be led, and later argued that because of the dangers of the kind discussed in Alexander, the evidence should not be acted on. It might be thought that the course followed by counsel was an expedient one as the magistrate would be called on to hear the evidence in any event, and by avoiding a voire dire hearing, a saving in time and expense was achieved. Perhaps in some cases this may be an expedient course, but in the present case I think it was an unfortunate decision. As Higgins J. points out in his reasons for judgment there remained at the end of the evidence many unanswered questions about the circumstances in which identification of the accused in the precincts of the court foyer by five of the six witnesses who made in court identifications took place. Had objection been taken to the identification evidence as it was led, the importance of these questions would have become immediately apparent, and they could have been explored with the witnesses. As it was, I think the prosecutor was lulled into the belief that objection was not being taken to the admissibility and ultimate use of this evidence, and that the only remaining questions about the evidence were as to its veracity, and the weight to be accorded to it.
Moreover it is desirable, to ensure fairness in the trial process to all parties, that questions of admissibility of evidence going to a central question in the trial be raised by objection as the evidence is led, and ruled upon at the earliest convenient time. A ruling on admissibility, including the exercise of the discretion to reject the evidence, should have been made, at the latest, before the close of the prosecution case. If the only evidence of identity had been rejected the appellant would not have been called on to answer the charges.
The five witnesses who identified the accused in the precincts of the foyer of the Court may have been able to provide cogent evidence of identification. If the identifications involved spontaneous recognition of the appellant as one amongst many other people unknown to the witnesses, and there was no question of presentation of the appellant as the person suspected of the crimes, those identifications could have served to re-enforce the in court identifications made by the witnesses from the witness box: see R v Williams (1983) 2 VR 579 and The Queen v Easom (1981) 28 SASR 134. On the other hand, the evidence may have been entitled to very little weight. It is possible that the appellant was presented to each of the witnesses. The evidence does not exclude the possibility that all the witnesses, who were known to each other, were together in the foyer when the appellant was seen. Further, the evidence does not exclude the possibility that the appellant was with his counsel who may have been known to one or more of the witnesses. If this were so, the identification of the appellant outside the Court would suffer all the vices of an identification of an accused person in the dock. These unresolved uncertainties render the out of court identification made by the witnesses of doubtful evidentiary value.
In his reasons for decision the learned magistrate made no reference to the out of court identifications and apparently gave no weight to them. The issue of identity seems to have been decided by the magistrate on the weight to be accorded to the identifications as if they were made in court for the first time. Miles C.J. also made no reference to the identifications of the appellant by five of the witnesses in the precincts of the court foyer. I consider this Court should decide the appeal on the same footing, that is by assuming that there had been no out of court identification by any of the witnesses, save for Mr McIlwain who says that he saw the appellant a couple of weeks after the assault in Belconnen Mall and a few days thereafter outside the Private Bin Club. I should add that I do not treat these alleged sightings as adding to the weight to be attributed to Mr McIlwain's in court identification as it was not established that it was the appellant whom he sighted on either of the earlier occasions.
The magistrate was of opinion that the police in their investigation had not followed the guidelines concerning line-ups in the General Instructions issued to members of the police force. The appellant, when he was interviewed by the police some months after the offences occurred was not invited to participate in a line-up, and one was not conducted. No satisfactory reason for this omission was put forward. Had objection been taken to the evidence of the in court identifications as it was led, and had the magistrate been asked to exercise his discretion to exclude the evidence on the ground of unfairness to the accused, The King v Lee (1950) 82 CLR 133, or on grounds of public policy arising out of impropriety in relation to the identification, Bunning v Cross (1977-1978) 141 CLR 54, the failure to follow the General Instructions would have been a significant matter for consideration. However as no objection was taken, in my opinion it was too late to raise the issue in the appellant's final address at the completion of the evidence. I consider the magistrate did not fall into error in not rejecting the evidence on discretionary grounds at that stage of the trial. I consider the magistrate correctly proceeded on the footing that the evidence was before the court and the questions for the court were as to its veracity and weight.
In Alexander Gibbs C.J. at 401 said:

"For these reasons, it is most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that a witness should identify a person who is firmly suspected to be the offender. However, there is little support to be found in the authorities for the view that a conviction must necessarily be quashed if it is based on evidence that the accused was identified other than at an identification parade at a time when he had been charged or was definitely suspected, even though there was no valid reason why an identification parade could not have been arranged. The judgment of this Court in Davies and Cody v. The King (1937) 57 CLR 170 suggests that the proper approach is to consider whether the conviction can safely be sustained on the whole of the evidence."

As the evidence of the in court identifications was admitted during the trial, the question for this Court is whether on the whole of the evidence the verdicts of guilty were unsafe and unsatisfactory. The determination of this question requires the Appeal Court to undertake an independent examination of the relevant evidence and to consider both its sufficiency and its quality: Morris v The Queen (1987) 163 CLR 454. The relevant evidence where the issue is as to identification is the identification evidence: Domican v The Queen (1992) 66 ALJR 285.
The magistrate preferred the evidence of the prosecution witnesses to that of the appellant. As to the evidence of the six witnesses who made in court identifications of the appellant the magistrate said:

"The identifications were unequivocal. In each case the witness pointed to the defendant and said, 'That's the man who attacked our friends.' There was no equivocation. They weren't drawn away from that. They were cross-examined at length by a competent and skilful counsel and they weren't budged from that identification. True it is that they were in some doubt and some were quite confused about the length of the scar, the size of the scar, the nature of the scar and so on. But the mainstream of their evidence was not deflected they identified the defendant in court. That identification to me was very persuasive. I would take the view that a jury would find the identification convincing enough to remove any reasonable doubt about whether the defendant committed these offences. I have no reasonable doubt, I find him guilty on the charges..."

The acceptance of the six witnesses as witnesses of the truth does not however remove the risk that their identifications of the appellant may have been mistaken. Credibility of a witness and the reliability of the evidence given by that witness are separate questions: Morris v The Queen per Mason C.J. at 463. As King C.J. observed in The Queen v Britten (1988) 51 SASR 567 at 573:

"Confident observers and witnesses, however, can be wrong and the very confidence of their manner of expression can conceal the potential for error in their observations."

Factors which bear on the possibility of error in an identification were summarised by Mason J in Alexander at 426:

"Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed."

A confident and credible witness who makes an unequivocal identification is no less subject to these variable factors than any other person.

Moreover the lurking risk of mistaken identification is not necessarily removed by the fact that more than one witness identifies the accused. Two or more identifying witnesses may each make the same mistake. The risk of common mistake by two or more witnesses may be increased in a case like the present one where the identifying witnesses are acquainted and have discussed with each other their descriptions of the two attackers. Nevertheless, the fact that several witnesses each identify the accused may add weight to the evidence of identity. Whether it does so will depend on all the circumstances, including the opportunity which each of the witnesses had at the time of the offence to observe and take note of the features of the offender.
In the present case the offences took place in a well lit area and the witnesses were in the close presence of the offenders for about three minutes. There was opportunity for more than a fleeting glimpse of the offenders by the witnesses. The identifying witnesses were able to give a description of the person who assaulted Mr Maples and Mr McElhinney. The appellant was undoubtedly of an age, build, and hair colour that fitted that description. Each of the identifying witnesses at the time noted a prominent scar on the right cheek of the offender. The appellant bore a prominent scar on his right cheek. The identifying witnesses described the offender as having a distinctive haircut with long hair at the back. In his evidence the appellant did not deny that he had at one time a hair style which fitted the description but said that he had had his hair cut short at the back in December 1989, a few weeks before the offences occurred. The magistrate said that he considered the evidence led by the appellant about his haircut as "inconclusive and didn't seem to me to cut away from the evidence given by the six witnesses who identified the defendant". I interpret this to mean that the magistrate considered that on the evidence the appellant may have had a hair style which fitted the description given by the witnesses of the offender at the time of the offences.

In R v Britten (1988) 51 SASR 567, for example, identification was achieved by the viewing of 12 photographic slides. The witness nominated a photograph of the accused as the offender. The purpose of the display was, however, to locate a suspect rather than to gather evidence against a known suspect. There were some discrepancies between the appearance of the accused and the description of the offender given by the witness prior to that identification process. King C.J. considered that the disquiet created by those discrepancies could have been lessened by holding an identification parade.
He said

(571) "An identification parade held in an early stage would have given (the witness) an opportunity to pick out the appellant in the flesh and would have removed some of the misgivings which one must feel in consequence of the disparity between the appellant's height and that estimated by (the witness) to the police."

The failure to carry out such a procedure, in his Honour's view, coupled with the description of a tattoo on the offender different from a tattoo on the accused, led his Honour to conclude that a verdict based on the identification evidence in question would be unsafe.
His Honour also noted

(571) "An identification parade would give an honest and careful identifying witness an opportunity to correct a mistake in the identification from photographs."

The apparent confidence of an honest witness in the correctness of the identification is not a safe guide to its acceptance. King C.J. noted

(573) "Confident observers and witnesses, however, can be wrong and the very confidence of their manner of expression can conceal the potential for error in their observations."

This must be a greater risk where, as here, it seems that the several identification witnesses have or may have bolstered each other's confidence in the correctness of their identification because of mutual consultation and group observation.
What does not seem to have been adverted to either, by the learned Magistrate or on appeal, is that credit and reliability are not the same issues in the case of identification evidence. Of course, credit includes the subjective reliability of the witness. The issue here, however, was whether the circumstances were such, in relation to the identification opportunity, that it became inherently suspect.
As von Doussa J. noted in Britten

(579-580) "It was of course open to the jury to accept (the witness) as a witness of the truth, and it may be assumed from the verdict that they did so. But the risk that she may have been mistaken in her identification of the appellant ..., a matter going to the reliability or quality of her evidence, is a question independent of her credit."

The learned Magistrate was in no position to form a judgment about the reliability or otherwise of the court precincts identification engaged in by the five identifying witnesses. He was not given any evidence by the prosecution as to the circumstances in which those identifications took place. It was unfair to expect appellant's counsel, not having been given prior notice of that evidence and the circumstances in which it had been obtained, to carry out the process of exploring that issue without such prior information.
Further, the investigating police officer, even after he had his attention directed towards the appellant as a suspect, failed to invite him to submit to an identification parade. He had no reasonable excuse for that failure. He was satisfied, it seems, to assume the guilt of the appellant and to expect the court to share his assumption. If all that had been offered had been "in court" identification that had no features rendering it significantly more reliable than a "dock identification", the evidence of identification would, undoubtedly, have been regarded as unsafe and unsatisfactory however honest and confident the witnesses.
In my opinion, the failure to hold an identification parade, in defiance of police standing orders and of judicial advice, strongly given in Alexander's case and reiterated since, strengthens the conclusion that the probative value of the identification evidence was suspect and that the circumstances in which it was obtained made it unfair to the appellant for the learned Magistrate to place any reliance on it. The same conclusion should have been reached on the rehearing before the learned Chief Justice. It may have been had the court's attention been drawn, not merely to the distinction between "in court" identification and "dock" identification, but also to the lack of evidence concerning the "court precincts" identification.
I would uphold the appeal and set aside the conviction of the appellant. I would substitute therefore a verdict of acquittal.
Submissions as to costs should be invited but, prima facie, should follow this event at all levels (see Latoudis v Casey (1990) 170 CLR 534).

[1992] FCA 849

11 SEPTEMBER 1992