Hirst v Police - [2006] SASC 244

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HIRST v POLICE
[2006] SASC 244
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice White)
23 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - ADMISSIBILITY - GENERALLY
Appellant convicted by magistrate of four offences of indecent assault, four offences of indecent behaviour and one offence of gross indecency on joint trial - appeal to single judge dismissed - appellant applied for leave to appeal to Full Court proposing new grounds of appeal - leave to appeal on new grounds granted - offences committed by a jogger along bitumenised track in a section of River Torrens Linear Park - most offences committed in the presence of young women - offending included various acts of exposure and assault - Crown case at trial based upon complainants identifying appellant through photographic identification procedure - appellant denied involvement in offences - magistrate treated evidence on each count as being relevant to the other counts on account of striking similarities between the offences - magistrate concluded same person committed all offences and that appellant was that person - whether magistrate erred in not considering certain alibi evidence - whether magistrate erred in ruling that evidence on the various counts was cross-admissible on all counts - whether striking similarity between all offences allowing for inference that same person committed all offences - whether striking similarity between certain groups of offences allowing for inference that same person committed that group of offences - found, only first group of offences had striking similarities sufficient to permit such an inference - evidence as to remaining groups and counts did not satisfy any test of cross-admissibility - these offences should have been tried separately - discussion of proper approach to use of similar fact evidence in the event that the first group of offences are retried together - if established that same person committed all offences and independent witnesses identify an accused, trier of fact entitled to reason that chances of mistake so remote that identifications must be accurate - Held: appeal allowed, convictions set aside and retrials ordered with first group of offences to be tried together and all other offences to be tried separately.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - IDENTIFICATION FROM PHOTOGRAPHS
Whether regard should be had to evidence that complainants picked out photograph of appellant in deciding whether offences or a combination of them were committed by same person - where some complainants positively identified appellant while others merely commented on similarity of features with appellant - whether identifications establish relevant fact that offender was a person who looked very similar to appellant - discussion of differences between identification evidence and evidence descriptive of offender - it is inappropriate to rely on material which is inherent in the process of identification in deciding whether offences committed by same person.
Barnes [1995] 2 Cr App R 491; Downey [1995] 1 Cr App R 547, applied.
Hoch v The Queen (1988) 165 CLR 292; McGranaghan [1995] 1 Cr App R 559; R v Bennett (2004) 88 SASR 6; R v Burchielli [1981] VR 611; R v Haidley & Alford [1984] VR 229; R v Turner (2000) 76 SASR 163; Sutton v The Queen (1984) 152 CLR 528; Weeder (1980) 71 Cr App R 228, discussed.
Festa v The Queen (2001) 208 CLR 593; R v King (1975) 12 SASR 404; R v Salerno [1973] VR 59; Vaitos (1981) 4 A Crim R 238, considered.

HIRST v POLICE
[2006] SASC 244
Full Court: Doyle CJ, Duggan and White JJ

DOYLE CJ. For the reasons given by Duggan J, the appeal should be allowed. The order of the Judge dismissing the appeal to this Court should be set aside. An order should be substituted allowing the appeal to this Court, setting aside the convictions and ordering a re-trial.
DUGGAN J. The appellant was convicted by a magistrate of four offences of indecent assault, four offences of indecent behaviour and one offence of gross indecency. He pleaded not guilty to the charges which were heard by way of a joint trial after the magistrate refused a defence application for a separate trial on each count. He was found not guilty on one charge of indecent behaviour.
The appellant appealed against the convictions to a single judge. The appeal, which related to the admissibility of photographic identification procedures conducted by the police, was dismissed.
The appellant then applied for leave to appeal to the Full Court against the decision of the single judge. The proposed grounds of appeal raised issues which had not been ventilated before the single judge. They relate mainly to the cross-admissibility of evidence.
The learned single judge extended the time within which to appeal and granted leave to appeal. He considered that the fresh grounds raised an issue of general importance and that the failure to raise them on the hearing of the appeal before him was due to inadequate advice by of the appellant’s solicitor.
It is alleged that the offences took place over the period from 1 April 2003 to 14 July 2003. Apart from one instance in which the complainants were a group of schoolchildren, the offences were committed on or in the presence of young women. According to the prosecution case, the offending conduct took place at various locations along a section of the River Torrens Linear Park between St Peters and Highbury. A bitumenised track runs through this section of the Linear Park and the area is frequented by cyclists, walkers and joggers.
There was no dispute at the trial that the offences were committed by someone. The issue was whether the appellant was the offender. It is necessary to summarise the circumstances of each offence. The major part of the following summary is taken from the magistrate’s reasons for decision. I will deal with the alleged offences in chronological order.
First Offence (Indecent Assault)
L was walking her dog along the Linear Park near Dernancourt on 1 April 2003 between 5.00 pm and 6.00 pm. A jogger approached her from behind and touched her on the buttocks. He said, “Are you okay?” and she replied, “Yes”. He continued to follow her. He had his hand down the front of his shorts. He then positioned himself in front of her and said, “Can I have a hug?” He then hugged her and thrust his body against her. The witness said she had seen the man jogging in the area approximately six months before.
Description
25 years of age. Five feet seven to five feet eight inches in height. Medium to slim build. Dark hair, shorter on the sides than on top with bleached blond tips. Voice slightly slurred and broken.
Wearing a dark or black singlet, silvery/grey jogging shorts with white stripes on each side.
Second Offence (Indecent Behaviour)
P said she was walking in the Linear Park near Paradise at about 5.05 pm on 15 May 2003. She saw a man sitting on a park bench. A short time later he ran past her and then turned to face her. He said, “Hi” and she saw that he was masturbating. She screamed and he ran off.
Description
In his early thirties. Athletic build about five feet eight inches to five feet nine inches in height. Short, dark brown hair with a blond streak mark at the front.
Wearing silky blue running shorts.
Third Offence (Indecent Behaviour)
N said she was walking along the Linear Park at Felixstow at about 4.30 pm on an occasion between 26 May 2003 and 5 June 2003. She saw a man jogging past her. He then sat down. He said, “Hi” as she walked past him. She looked back and saw that his penis was exposed and that he was masturbating. She said she saw him about one week later at a bus stop in Klemzig. Klemzig is adjacent to the Linear Park and on the other side of the river, opposite Felixstow. On this occasion, he jogged past her.
Description
About 25 to 30 years of age. Very athletic build. Brown hair, longer at the top. The hair was lighter at the tips, but not blond.
Wearing blue jogging shorts and a light coloured top, but cannot say whether a T-shirt or singlet. Wearing jogging shoes.
Fourth Offence (Indecent Assault)
E said she was riding her bicycle along the Linear Park at St Peters at about 3.00 pm on 14 or 15 June 2003. She saw a man sitting under a bridge who commenced to fondle his genitals. She called out, “You’re disgusting”. She rode on up a slope and then saw the man running along side her. He grabbed her buttocks. She yelled at him and he stepped back.
Description
In his early twenties. Well-toned build and slightly tanned. Short dark hair.
Wearing dark coloured running shorts, probably navy blue, and a singlet/exercise top (possibly grey).
Fifth Offence (Indecent Assault)
S gave evidence that she was riding her bicycle along the Linear Park at Paradise at about 4.40 pm on 29 June 2003. As she was riding uphill, she slowed down and then felt a hand on her buttocks. She turned around and saw a man in a jogging outfit. He said, “Would you like a push?” She replied, “No it is alright. I am okay, thank you”. He persisted and again placed his hand on her buttocks. He then placed his hand on her groin. She said, “What do you think you’re doing?” He then smiled and jogged away.
Description
Mid to late twenties. Athletic build. Taller than the height of the witness (165 cms). Short very dark hair.
Wearing a baseball cap, long sleeved jogging top, perhaps shiny grey, and long jogging pants. Spoke slowly and “almost a little dim-witted”.
Sixth Offence (Indecent Behaviour)
G gave evidence that she was walking her dog in the Linear Park at Campbelltown at about 1.30 pm on 5 July 2003. She heard footsteps from behind and saw a jogger beside her. He asked her how she was going. He was masturbating. He ran off when she screamed.
Description
Late twenties or early thirties. About six feet. Medium to slim build. Dark brown short hair which was “clean cut”.
Wearing something similar to a tank top. Jogging shorts. The shorts and top were a navy or black colour. The shorts had a white stripe on the sides.
Seventh Offence (Indecent Behaviour)
W said she was walking her dog along Linear Park near Athelstone at about 3.30 pm on 7 July 2003. She saw a jogger sitting on a water or electricity box. He was masturbating. She walked away.
Description
About 25 years of age. About six feet in height. Short dark hair.
He was wearing a singlet top. It was “a Puma blue and silver top and the same with the running shorts, the same colours”. His sneakers were blue and white.
Eighth Offence (Gross Indecency)
A group of school students celebrating the birthday of one of their number went to the Linear Park at Highbury at about 4.00 pm on 8 July 2003. One of the children was 11 years of age and the others were ten. A jogger came up to them and exposed his penis through the leg of his shorts.
Description
Complainant T P.
In his twenties. Average height. Muesli brown hair.
Tight black muscle shirt and blue, black and white shorts.
Complainant J O.
“Five to seven feet tall”. Dark brown hair which was a little “spikey”. Bushy eyebrows.
Black and white T-shirt and navy blue running shorts.
Complainant M H.
Late twenties. Average height. Muscular, slim build. Blackish brownish hair which was “normal boy length”.
Navy gym shorts with white stripes. Black T-shirt.
Complainant S N.
Early thirties. Dark blue shorts.
Dark blue shorts with two white stripes. “Pretty sure it was a black muscle shirt”.
Complainant S A.
About 30 years. Normal height. Dark brown hair.
Black shorts with white and blue stripes and a black T-shirt.
Ninth Offence (Indecent Assault)
O L said that she was riding her bicycle along the Linear Park at Paradise about 1.30 pm on 14 July 2003. She was walking her bike up a steep hill when she saw a man who appeared to be doing stretching exercises. He came up to her and grabbed the back tyre of her bike and asked her where she was going. She said, “Leave me alone” and tried to pull her bike away. She fell to the ground. After getting up she walked away. The man then slapped her on the buttocks. She then saw him pull his pants down and hold his penis. She walked away, but he followed and touched her on the breasts and around the waist. She pushed him away and rode off.
Description
About 25. Big shoulders. Very fit and athletic. Dark brown hair.
Wearing running shorts and a muscle top. The shorts were dark blue.
Identification
L reported the incident in which she was involved almost immediately and she assisted the police in the preparation an identikit picture. A witness who had spoken to the appellant on a number of occasions in the Linear Park saw the identikit picture in a newspaper article, recognised the likeness to the appellant and provided the police with the appellant’s telephone number.
The police spoke to the appellant who denied involvement in any of the offences. He was invited to take part in an identification line-up but declined. The police thereupon prepared an array of 12 photographs (P 22) which included his photograph.
S was shown the photographs in P 22 on 23 July 2003. She chose a photograph which was not that of the appellant, but which she said had the greatest likeness to the man who assaulted her. She said the appellant’s photograph was her second choice.
According to the evidence, the photograph of the appellant used in P 22 was an old photograph and, when the appellant was arrested on 24 July 2003, his photograph was taken and included in two completely new sets of 12 photographs (P 23 and P 24) which were prepared. P 23 and P 24 contained the same series of photographs.
S was then shown P 24 and she identified the appellant’s photograph as a photograph of the man involved in the incident which was the subject of her complaint.
Subsequently, the other complainants were shown the array in either P 23 or P 24.
O L, P, N and G positively identified the photograph of the appellant.
E picked out the appellant’s photograph and said, “It is very similar, if not the same, as the man who assaulted me … it is the face structure, like the eyebrows and the hair. I don’t know. It just strikes a resemblance to that man”.
W picked out the appellant’s photograph and said, “Very, pretty certain. As soon as I saw him I sort of recognised him. So I’d say 99.9 per cent sure that that is who I saw. Especially ‘cos the others are nowhere near what I saw. He does look the same. The features are his hair, the build as well, his face. The eyes I didn’t really get a good look at cos I looked away when I saw him. I didn’t study him closely, but just the whole face looks like that guy.”
The schoolchildren, T P, J O, M H, S N and S A, were shown the photographs. T P picked out the appellant’s photograph and said, “From what I can remember he kind of looks like that. His hair and like his eyes and his eyebrows. From what I can remember, like, he hadn’t like shaved for a while so it was kinda like that, that looks like him.”
J O picked out the appellant’s photograph and said, “He looks like that, a little bit like that. Looks a bit like him, but he looks like that from afar ‘cos I didn’t get really close”. She also referred to the shape of the face and the hair of the person in the photograph.
S N picked out the appellant’s photograph and said, “I think that’s the closest one. That’s the closest one to the person that was involved in the flashing incident”. She referred to the hair and the shape of the face in the photograph.
M H picked out two photographs, including the photograph of the appellant. Referring to the appellant’s photograph she said she picked it out, “Because of his hair mostly … and his ears, yep and his nose because his nose wasn’t like flat or like really long. And his eyes I think like cos his eyes were like a little bit down, a little bit”. Referring to the other photograph which was not that of the appellant she said, “I think it’s because the eyes probably the same reason, and the hair, same reason too and because like, because like those two people look alike sort of”.
S A was unable to make a selection from the photographs.
Appellant’s version
The appellant gave evidence before the magistrate. He was 24 years of age at the time of the hearing. He said he is a member of an athletics club and involved in competitive athletics.
The appellant said he lives at Windsor Gardens, a short distance from the Linear Park. His normal training runs include a section along the Linear Park. He said that, normally, he commenced his training runs between 4.30 pm and 5.30 pm.
According to the appellant, he always wore a white baseball cap with the words “Mutual Community” displayed on it when running. Usually, he wore T-shirts. He said that, at no time, did he wear a tank top or athletic singlet. The appellant said he always wore a watch when running. The police seized items of running gear from the appellant’s house. When giving evidence, the appellant identified a pair of running shoes which he said he wore during this period. The respondent did not rely on the items of clothing found at the appellant’s house as assisting the prosecution case. The appellant’s counsel submitted that some items of clothing and footwear described by some of the complainants were not found at the appellant’s house.
The appellant denied involvement in the offences with which he was charged. He put forward evidence of alibi for some of the offences and this evidence is discussed later in these reasons.
In cross-examination, the appellant agreed that he had a blond colour in his hair for a period of a few months during the time within which the offences were committed.
The Magistrate’s findings
The magistrate treated the evidence on each count as being relevant to the other counts. In his reasons for decision, he referred to some of the authorities on similar fact evidence. He drew attention to the comment by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen (1988) 165 CLR 292 at 294 that the strength of the probative force of such evidence:
… lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.
The magistrate continued:
In this case the offences were committed on or in the presence of relatively young females. They are all of a sexual nature, they occurred in a defined and localized area. The actions and behaviour of the offender in some of the offences are strikingly similar to the actions and behaviour of the offender in other offences. Example; count 7, involving [S]; count 10, [O L]; count 1 in file AMC-03-16805 involving [E]. All victims were riding bicycles in the Linear Park, a young male came up to them with a pretence of helping them up a steep hill and touched them in a sexual sense.
In count 1, [L]; count 9, the young schoolchildren; count 2 in file AMC-03-16805 involving [W]; count 3, [P]; count 8, [G]; and count 4, [N]; all victims were walking along the Linear Park, a jogger passed them and then either pulled up in front or beside them, exposed his penis and started playing with it or masturbating. In the circumstances because of the “striking similarities, underlying unity, system or pattern of the offending” it is possible to allow cross-admissibility of the evidence to corroborate the witnesses’ accounts with respect to their respective observations. The only logical and reasonable hypothesis that emerges from the whole of the evidence is that the offender was one and the same person in each case.

After reminding himself of the dangers of identification evidence, the magistrate said:
The majority of the witnesses did not demonstrate any hesitation in picking out a photograph of the defendant (from the photo packs shown to them) as the perpetrator of the particular offence in question. Notwithstanding, the inherent dangers of identification evidence of the type I was dealing with here, a review of the material before me, including the cross-admissibility material, abundantly illustrates the existence of the “singular peculiarities” of a number of features common to all offences, which warrant the drawing of a conclusion that it was the same person, namely the defendant, involved in the commission of all of the offences.
The magistrate then found the appellant guilty of the offences which are the subject of the appeal.
Argument for the appellant
The defence was mistaken identification. Mr Peek QC, for the appellant, submitted that the evidence on the various counts was not cross-admissible and that the magistrate should have assessed the evidence on each count separately, having regard only to the identification and other evidence directly relevant to each individual count. He submitted that there was no striking similarity between the incidents and that there was no basis for concluding that the offences were committed by the same person. Mr Peek also argued that the magistrate failed to give adequate consideration to the defence evidence generally.
Argument for the respondent
The Solicitor-General accepted that the first step in determining whether the evidence on any of the counts was cross-admissible was to consider whether there was evidence to justify a finding that the offences or some of them were committed by the same person. He submitted that the offences could be divided into three groups for this purpose.
The first group
The first group comprises the first, fourth, fifth and ninth offences. It was argued that the evidence in relation to the incidents in this group demands a conclusion that the same person committed all four offences.
In the case of each offence in this group, an alleged assault took place. The respondent relies on the circumstances of each assault, taken in conjunction with the similarities which are said to be common to all nine offences.
All incidents in the first group took place within a period of three months. The last three took place within one month. They occurred along the Linear Park and during the afternoon. The offender in each case was dressed in clothing appropriate for jogging. There were other similarities within this group. All four complainants said the offender was in his twenties. The complainants in the last three incidents all made a point of saying that the man was of athletic build or well-toned. The four complainants said the jogger approached them from behind and touched them on the buttocks. In the case of L, he also hugged the complainant and moved his body against her body. S said he put his hand on her groin as well as on her buttocks.
The circumstances relating to E, S and L had another feature in common. The complainants all had bicycles. E and S were riding up a slope and had slowed down when approached by the offender from behind. L was wheeling her bike up a steep hill when the offender assaulted her. In all instances except that relating to OL, the offender spoke in a pleasant manner to the complainants.
In the case of this first group, the time, place and general description of the attacker provide a starting point for the conclusion that the same person was involved. The fact that the attacks took place within a period of three months and that three of them occurred within a month is a further significant consideration.
Furthermore, the modus operandi of the offences is of particular significance. The four complainants were all placed in a situation which delayed them or put them at a disadvantage. This provided an opportunity or excuse for the approach by the offender.
L said she was crossing the river in an unusual place by using stepping stones. The person came from behind and held her to the point where she felt she might fall in the river. She was touched on the buttocks and the man asked her if she was alright. He continued to follow her and he had his hand down the front of his shorts.
E said that she was riding up a slope. She said it was fairly steep and it knocked the wind out of her. A man she had seen moments before fondling his penis ran from behind and touched her on the buttocks.
S gave evidence that she was riding uphill. Her bike was not in the appropriate gear and she started to slow down. She said she did not have enough momentum to get to the top. It was then that the man came from behind and touched her on the buttocks. He asked if she would like a push.
O L had dismounted from her bike so that she could push it up a steep hill. She was pushing the bike when the man approached her from behind. After he took hold of the rear tyre, she tried to push the bike back up the hill. At one point she fell. She continued in her attempt to push the bike along and the man slapped her on the buttocks. He then pulled his pants down and held his penis.
I have considered the dissimilarities in the incidents referred to by Mr Peek. However, when all the circumstances are taken into account, it is open to conclude beyond reasonable doubt that the same man was involved on each occasion.
The second group
The second group suggested by the Solicitor-General comprises the first, second and third offences. The first offence involving the complainant L was placed in the first group because of the nature of the assault upon L. The other complainants in the second group are P and N.
The distinguishing feature of this group is that the complainants said the offender had blond tips in his hair. The offender spoke in friendly terms to the members of the group. The indecency in the cases of P and N involved the offender masturbating. As I have said, there was an alleged assault on L.
Again, it is appropriate to have regard to the general matters which are said to be common to all the offences. Furthermore, L referred to bleached blond tips in the man’s hair; P said he had a blond streak mark at the front of his hair; and N said his hair was light at the tips, but not blond.
The Solicitor-General also drew attention to the pleasant way in which the man spoke to the complainants. The fact of masturbation in two cases and possible masturbation in the other is also a common element. The time and place of the incidents and the description of the offender are relevant matters to take into account.
However, despite these common features, I do not think the evidence is capable of supporting a finding to the required degree of proof that the same person was responsible on each of these three occasions. Nothing of significance arises from the manner in which the offences were committed. The descriptions of the offender, including his hair, are insufficient to support the conclusion that this group of offences was committed by the same person.
The third group
The same must be said of the third group, comprising the sixth, seventh and eighth offences. It was pointed out that these incidents involved masturbation. It is alleged that on each occasion the offender exposed himself by pulling his shorts to one side. This also occurred in two of the earlier incidents. However, the evidence is not cogent enough to lead to the conclusion that the offences were committed by the same man.
Before leaving this comparison of the incidents, it is appropriate to refer to an argument by the Crown that, in deciding whether the offences or any combination of them were committed by the same person, it was relevant to have regard to the evidence that the victims picked out a photograph of the appellant. It is apparent from the above summary that some of the witnesses positively identified the photograph of the appellant as a photograph of the offender; others made comments on the similarity of the features in the photograph compared with those of the offender.
Although it was conceded that identification evidence implicating an accused person is not relevant at this stage of the enquiry as to whether evidence is cross-admissible, it was argued that the circumstances of the identifications establish a relevant objective fact, namely, that the offender in each case was a man who looks very much like the appellant. In the course of argument, the Solicitor-General adopted the suggestion that the relevance of the evidence lay in the fact that all complainants picked out the photograph of a person who looks the same as the appellant. According to the argument this, in turn, was relevant to the issue as to whether the offences were all committed by the same person.
The concession that identification evidence could not be used at this point in the assessment of the evidence was properly made: Barnes [1995] 2 Cr App R 491 at 499. The magistrate pointed out that the prosecution case depended substantially on the evidence of identification. If the similar fact evidence was admissible, the identification evidence which directly implicated the appellant could be considered together with the similar fact evidence to determine whether the prosecution had proved its case. However, it would be inappropriate to assume the accuracy of the identification evidence for the purpose of considering the admissibility of other evidence.
It is appropriate to bear in mind the difference between identification evidence and evidence descriptive of the offender. The second category of evidence can be used as part of the circumstantial case relied upon to establish that the same person was responsible for all offences: Sutton v The Queen (1984) 152 CLR 528 at 536, 552. Evidence of this nature does not involve an expression of opinion as to the identity of the offender and warnings appropriate to identification evidence are not applicable to it: R v King (1975) 12 SASR 404 at 418; Festa v The Queen (2001) 208 CLR 593 at 612.
However, the evidence of the complainants positively identifying the appellant or saying that the photograph looked like him, involved the expression of an opinion. Although an act of identification might be based on a combination of features capable of description, I am of the opinion that, using the evidence in the way suggested, would involve reliance on disputed identifications. It is appropriate at this stage of the reasoning process of the primary court to rely on the descriptions given by the complainants in this context, but not on material which is inherent in the process of identification.
It follows from what I have said that the counts in the second and third groups of offences should have been tried individually. In my view, the evidence as to these counts could not satisfy any test of cross-admissibility.
The question remains as to the circumstances in which evidence of one count within the first group could be used in relation to other counts. There is a difficulty in providing appropriate guidance in cases of this nature because of the range of findings open to a fact-finder: Vaitos (1981) 4 A Crim R 238 at 253.
However, if this matter is remitted for trial, it would be appropriate to provide some guidelines for the proper approach to the evidence. This is based on the assumption that it is appropriate to try more than one offence in a joint trial.
I think it would be appropriate for the magistrate to consider first whether the identification in relation to an individual count, considered along with the evidence which was directly relevant to that count, was sufficient to establish proof beyond reasonable doubt of the offence charged in that count. Of course, the defence evidence would also have to be taken into account in the usual way. This process would not involve the use of similar fact evidence.
If it became necessary to consider the similar fact evidence, the first step would be to determine whether all or any of the offences were committed by the same person. On the assumption that a group of offences were proved to have been committed by the same person and, if it was further proved that one of the offences was committed by the accused, it would be open to employ the reasoning approved by the High Court in Sutton v The Queen.
In that case, the appellant was charged with a series of sexual offences. There were a number of similarities in the descriptions of the offences. Two of the three complainants identified the accused as the offender. In the case of the third complainant, the prosecution alleged that the appellant confessed to the offences committed against her. Deane J said at 560:
Once the conclusion is reached that the similarity between the three occurrences was so striking as to warrant a conclusion by the jury that the assailant on each occasion was the same person, it is apparent that evidence that the applicant was the assailant in the case of any one of the assaults was relevant and possessed probative force in relation to the question whether the applicant was the assailant in relation to the other occurrences. That is not to say that the evidence was admissible on the basis of an assumption that the applicant was guilty of the offence which was the subject of a particular charge or of the offence or offences which related to other occurrences. It is simply to recognize that, once the similarity between the three occurrences is accepted as being such as to warrant a conclusion by the jury that the assailant on each occasion was the same, evidence that the applicant was the assailant on one of the other occasions is material and has probative force on the question whether he was the assailant on the occasion to which the charge relates and evidence that he was the assailant on the occasion to which the charge relates is material and has probative force on the question whether he was the assailant on the other occasions.
Next, it is necessary to consider the situation where it is found that all of the offences in a particular group are committed by the same person, but there is insufficient evidence to justify the finding that a particular offence within that group was committed by the appellant. Can the evidence of the identifications by the witnesses in each case in the group be used to assist in proving the other offences in the group?
The Solicitor-General pointed out that it was unnecessary for the High Court in Sutton to go further and consider cross-admissibility in these circumstances. However, he submitted that the identification evidence could be used in this manner. The approach argued for by the Solicitor-General is supported by authority in the United Kingdom. In Downey [1995] 1 Cr App R 547, two service stations in the Wembley District of London were robbed within 15 minutes of each other. The service stations were three miles apart. The jury were invited to find that the person portrayed in a video recording taken at one of the service stations was the accused. The jury were instructed that, if they found the same person committed both offences, they were entitled to take into account the evidence in relation to both incidents which included the video recording.
The direction was upheld in the Court of Appeal. The court referred to McGranaghan [1995] 1 Cr App R 559, in which it was held that the jury would have to be satisfied that one of the offences was committed by the appellant before using evidence of that offence to prove the other offences. In Downey at 552, their Honours referred to two aspects which arise in such a situation:
The first is whether in deciding whether the defendant committed offence A the jury can have regard to evidence that he also committed offence B. This involves proof, not only of similarity, but that the defendant did in fact commit offence B. The second is where there is evidence that both offences A and B were committed by the same man, but the evidence falls short of proving that that man was the defendant in either case, regarded alone. If there is evidence which entitles the jury to reach the conclusion that it was the same man, even though the evidence in either case does not enable them to be sure who the man was, then it follows that they can take account of evidence relating to both offences in deciding whether that man was the defendant. As the learned judge put it in the present case, the same process operates in reverse. If the jury cannot be sure that the defendant was the robber on either occasion, then he is not guilty of both. But in deciding the question of guilt, if the evidence shows, in Mr Lowen’s words, that “the two offences were welded together”, then the learned judge’s direction to the jury was correct.
The issue arose again in Barnes [1995] 2 Cr App R 491. The appellant was charged with three separate assaults on women in the Tufnell Park area of London. In each incident, a man threatened the woman with a knife and then asked for a kiss. It was not in dispute that the offences were committed by the same man. The complainants in each incident identified the appellant as the offender at identification parades.
The defence, relying on McGranaghan, argued that, in dealing with the identification evidence, the trial judge should have instructed the jury that they would have to consider a single count first and have regard to the identification evidence of the complainant on that count alone. Only if the appellant was found guilty on that count, could the evidence relating to it be used when considering other counts.
The Court of Appeal rejected this argument and agreed with the comments made in Downey as to the second aspect referred to in that case. When delivering the judgment of the court, Lord Taylor CJ said at 497:
Thus in McGranaghan the Court was considering the propriety of using similar fact evidence to support a doubtful identification. Here, the question is a different one, namely whether identifications of the appellant by several victims can be used cumulatively once the jury is satisfied that other evidence shows all the offences to have been committed by one man.
. . . . . .
Mr Cooke’s proposition would lead to an unreal exercise by a jury in seeking to compartmentalise the evidence properly put before them. Even if they were sure on the evidence other than the visual identifications that all the offences were committed by one man, they would then have to focus attention on one count wearing blinkers to shut out the visual identifications by any victim other than the victim in that one count. If they were not sure that the evidence on that count proved the guilt of the accused, they would then have to move to another count repeating the exercise, again wearing blinkers as to any evidence of visual identification save for that of the victim in this second count. There have been a number of situations in which the requirements of a jury have been said to involve mental gymnastics, but the gymnastics required in this exercise would need to be of Olympic standard. Nor would such an exercise accord with common sense. If the jury are satisfied by other evidence that one man committed all the offences then the victims at the identification parades are, ex hypothesi, all seeking to identify the same man and we can see no reason why their identifications should not be regarded as mutually supportive. The safeguards peculiar to identification evidence are provided by the regime laid down in Turnball (1976) 63 Cr App R 132, [1977] Q B 224. That involves warning the jury that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.
The court also expressed agreement with the following passage from the 1995 edition of Archbold:
Suppose there was only one charge of, for example, robbery and the prosecution case consisted of five identifying witnesses, all of whom were entirely independent of the events and of each other and all of whom identified the defendant on identification parades conducted exactly in accordance with the prescribed procedure. A jury, properly directed, would be entitled to reason that the chances of five people making the same mistake, without that mistake being revealed as a result of cross-examination was so remote that the explanation must be that the identifications are accurate. If the situation was that there were five separate offences against women and each victim identified the defendant without any possibility of contamination and in unimpeachable circumstances and there was other evidence which did not implicate the defendant but proved beyond reasonable doubt that all the offences were the work of the same man, why should the jury not start with the proposition that there is only one man involved and approach the issue of identity in the same way as the jury on the robbery charge?

Mr Peek relied on R v Salerno [1973] VR 59 at 63. The appellant was charged with eight counts of larceny. The Court of Appeal concluded that the evidence disclosed a marked similarity in the way in which the offences were committed, such that evidence in relation to one offence could be taken into account by the jury when considering other counts.
The court in Salerno dealt with the defence submissions in the following passage at 63:
It will be convenient at this stage to consider another submission made by Mr Ross that the learned judge had misdirected the jury concerning the use that could be made on the issue of identification of the evidence of similar acts or facts. Mr Ross first argued that the learned judge failed to direct the jury that, when considering any count in the presentment, they must be satisfied, before using the evidence given in relation to any other count or counts on the issue of identification, that the accused had committed the offence or done the acts disclosed by such other evidence.
That such a finding is essential to the use of similar act evidence is shown by the passage from R v Fogarty [1959] VR 594; [1959] ALR 1130. It is obvious that the evidence given in relation to other counts cannot assist to identify the accused with the particular count under consideration unless the jury is first satisfied that the acts disclosed by such other evidence were done by the accused. Failing that proof and satisfaction by the jury, there would be no method or technique proved to have been adopted by the accused with which to connect him with the offence charged in the count under consideration. No such direction was given by the learned judge; or if such direction was intended by him, it would not, we think, on the charge read as a whole, become apparent to the jury. The omission of such a direction constituted, in our opinion, a failure in a material respect to direct the jury as to the use that could properly be made of the evidence of similar acts.
Under this submission, Mr Ross further argued that the direction of the learned judge was such as to be calculated to lead the jury to think that the evidence given in relation to any particular count under consideration could be fortified or strengthened as to identification of the accused by the fact that like evidence had been given in relation to other counts in the presentment. Mr Ross also argued that the direction was in such terms as to be likely to lead the jury to think that the fact that other persons has identified the accused on other occasions made it more likely that the identification evidence given in respect of the count under consideration was accurate. In other words, it was said that the direction left it open to the jury to conclude that where several persons had purported to identify the accused on several occasions, it was more likely that the identification on any particular occasion was correct. If either of these interpretations of the learned juge’s charge was reasonably open to the jury, we think it would clearly constitute a misdirection.
This discussion of the issue was not as detailed as it was in the case of Barnes. I would respectfully agree with the logic of the English authority. Once it is established that the same person committed all the offences, and independent witnesses have identified the accused as the offender in each instance, there is no reason why the improbability reasoning referred to in Barnes should not apply.
This is not to ignore the fact that identification evidence comes into a special category because of the dangers of misidentification. In addition to the usual warning about the dangers of identification evidence, it would be necessary to heed the warning previously referred to, “that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken”. This situation was discussed in R v Haidley & Alford [1984] VR 229. Two witnesses identified the same man in circumstances which pointed to him being involved in a bank robbery. A witness who was sitting on a garden seat outside the bank saw a man carrying a shotgun run past him after the robbery. He later identified the man as the appellant Haidley. The owner of a shop near the bank also identified Haidley as the man who came into his shop after the robbery carrying a bag. When the shopkeeper challenged him, the man disclosed a gun which was in the pocket of his overalls.
It was argued that the jury should have been told that two defective identifications do not support one another. Reliance was placed on R v Burchielli [1981] VR 611 at 616, 621.
In dealing with this submission Brooking J said at 251:
Every identification is in a sense defective: even in strong cases (like those instanced in R v Turnbull [1977] QB 224, at p 229) respects in which the evidence might have been stronger can always be suggested. No identification is perfect. Identification evidence varies widely in quality. Pieces of evidence of identification, even though each of fairly slight value, may be added together in the sense that regard must be had to their cumulative effect in asking whether the jury may be satisfied beyond reasonable doubt that the accused was the offender, whether the evidence on that issue is confined to evidence of visual identification or includes other evidence. It is quite another thing to say that the testimony of identifying witnesses should not be lumped together in a way which obscures the need to give separate consideration to the possibility of error on the part of each witness. And it is yet another thing to observe that where the pieces of identification evidence are unsatisfactory, then, whether or not there is evidence of identity other than that of visual identification, the trial Judge may consider that the cumulative effect of the evidence is still so relatively slight as to make it impossible for the jury to be satisfied of identity beyond reasonable doubt.
Each identification, whatever its quality, does support every other identification in the sense that regard must always be had to the whole of the admissible evidence, whether of visual identification or otherwise, in determining the strength of the Crown case on identity. Evidence of visual identification does not stand apart from other evidence in the sense that the cumulative effect of such evidence may not be considered. Two or three far from perfect identifications may in the minds of a reasonable jury produce conviction beyond reasonable doubt where one would not. To tell a jury, without explanation, that two defective identifications do not necessarily support one another may mislead them.
Brooking J found support in the following passage from the judgment of Weeder (1980) 71 Cr App R 228 at 231:
Mr Locke, however, now returns to the charge and the main ground of his appeal is that the learned judge was wrong to direct the jury that an identification by one witness can constitute support for the identification by another. He submits that because a number of identifying witnesses can all be mistaken, the jury should be instructed to look at the evidence of each such witness separately in, so to speak, a hermetically sealed compartment and that they should be warned not to allow themselves to be affected by the accumulation of such evidence.
If this Court were to accept Mr Locke’s submission, we would be imposing upon trial judges the obligation to pronounce a wholly useless incantation in the course of their summing-up. No jury, urged to use their common sense, could realistically be expected to follow, let alone understand, the reasoning of such direction. Take the simple case of violence at a football match. If a dozen witnesses, all of whom had in satisfactory conditions a good opportunity of observing who was committing the particular act of violence complained of, all identified the accused, is their evidence not to be viewed as capable of supporting each other?
In our judgment the position is a simple one and the guidance provided by this Court in Turnbull, [1977] QB 224, fully covers the position:
(1)When the quality of the identifying evidence is poor the judge should withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. The identification evidence can be poor, even though it is given by a number of witnesses. They may all have had only the opportunity of a fleeting glance or a longer observation made in difficult conditions, e.g. the occupants of a bus who observed the incident at night as they drove past.
(2)Where the quality of the identification evidence is such that the jury can be safely left to asses its value, even though there is no other evidence to support it, then the trial Judge is fully entitled, if so minded, to direct the jury that an identification by one witness can constitute support for the identification by another, provided that he warns them in clear terms that even a number of honest witnesses can all be mistaken.”
See also Young CJ at 231; Kaye J at 248.
I should add that, in the event that the appellant was found guilty of one or more of the offences in the first group, I do not think the circumstances would be such as to render the evidence on that count or those counts admissible in relation to the counts in the second and third groups.
The alibi evidence
Before stating my conclusions on the main grounds of appeal, it is appropriate to refer to complaints made by the appellant’s counsel concerning alibi evidence led at the trial. The defence put forward alibi evidence for the fourth, fifth and sixth offences.
Fourth offence
E said the incident occurred at about 3.00 pm on the weekend of the 14 and 15 June 2003. The appellant said he was away for the weekend in Reynella. Friends gave evidence that he was in Reynella on Saturday 14 June. The appellant’s friends also gave evidence that he left Reynella at about 1.30 pm on the Sunday. One of the friends said it could have been as late as 2.00 pm. The appellant said he went running later in the day at about 4.00 or 5.00 pm, but explained that this was on the basis that this is the time at which he usually goes for a run.
It is not inconsistent with the evidence of the appellant’s friends that he was in the course of his run at 3.00 pm.
The magistrate found that the appellant could have gone running earlier than the time stated by him.
The fifth offence
S said that the offence took place at about 4.40 pm on 29 June 2003. The appellant said he went out for a run on this day. He said it could have been around 4.00 or 5.00 pm. The appellant’s mother, Mrs Hirst, said she remembered the appellant going out running on that day, but that it would have been around 5.00 or 5.20 pm. She said she was home when he went out and she gave her estimate of the time by reference to other events which she recorded in her diary on that day.
The evidence of the appellant does not provide him with an alibi, but it was necessary to consider whether Mrs Hirst’s evidence did so.
The sixth offence
G said the incident took place at about 1.30 pm on 5 July 2003. The appellant said his parents were due to arrive at the home of his uncle and aunty on that evening at 6.00 pm. The appellant said he remembered waiting for his parents to finish using the bathroom as they were preparing to go out. The effect of his evidence is that he left for his run at about 5.30 pm. Mrs Hirst said he was home all day. However, she did say she left the house to do some shopping between about 12.00 noon and 1.30 pm. She said she was away for an hour or an hour and a half.
The magistrate observed that, during cross-examination, the appellant conceded that he had no specific recollection of the date in question and that he was guessing as to the times. According to the appellant’s argument this summary of the evidence is wrong in that this was the appellant’s evidence in relation to the incident on 29 June 2003.
Mr Peek has complained that the magistrate failed to consider the evidence of the appellant’s friends in relation to the fourth offence. However, as has been pointed out, their evidence was not inconsistent with the appellant returning home in time to be on his run at the time of the offence.
The complaint in relation to the fifth offence was that the magistrate did not mention in his reasons, or appear to consider, the evidence of Mr Hirst and, particularly, Mrs Hirst. In my view he should have done so.
It would seem that Mr Peek’s criticism of the magistrate’s reasons in relation to the sixth count is correct. The magistrate appears to have referred to evidence relevant to a different count when discussing the alibi evidence on this count.
However, it is unnecessary for me to discuss the consequence of the errors in these respects because of my view that the appeal should be allowed on other grounds.
The issue discussed in R v Turner (2000) 76 SASR 163 and R v Bennett (2004) 88 SASR 6 as to whether identification evidence is to be assessed in the context of the evidence as a whole, or separately from that evidence, was mentioned in passing in the course of argument. Again, there is no requirement to address that issue in the present case.
Conclusion
The magistrate appears to have concluded that the evidence on each count was admissible in relation to the other counts. He did so because of what he perceived to be striking similarities, underlying unity and the pattern of offending.
In my view, that conclusion was not justified, except in relation to the first group of offences charged. It follows, that inadmissible evidence of a prejudicial nature was employed by the magistrate in the assessment of each count, including those counts which, in my view, could have been tried together.
For these reasons, the appeal against the single judge should be allowed and the order dismissing the appeal from the magistrate set aside. In lieu thereof, there should be an order that the appeal from the magistrate be allowed, the convictions set aside and retrials ordered. The assessment of the evidence requires an evaluation of the identification evidence in each case and this cannot be undertaken effectively by an appeal court which has not had the advantage of assessing the witnesses. There is no reason why the four offences in the first group which I have identified should not be tried together. However, in light of these reasons the other counts should be tried individually.
WHITE J. I agree with the orders proposed by Duggan J. I also agree with his reasons. There is nothing which I wish to add.