Horsman v The State of Western Australia

[2008] WASCA 190

HORSMAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 190

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 190
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:27/2008	Heard:	19 AUGUST 2008
Coram:	MARTIN CJ BUSS JA MILLER JA	Delivered:	12/09/08
No of pages:	19	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	BARRY STANLEY HORSMAN THE STATE OF WESTERN AUSTRALIA
Catchwords:	Evidence Criminal trial Similar facts Section 31A Evidence Act 1906 (WA) Admissibility of similar fact evidence for identification purposes Where appellant charged with four similar offences is independently identified from photoboard by two of the three complainants Whether identification evidence is admissible against accused in relation to offence against the other complainant Whether trial judge appropriately directed the jury
Legislation:	Evidence Act 1906 (WA) s 31A
Case References:	Dair v The State of Western Australia [2008] WASCA 72 Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 Director of Public Prosecutions v P [1991] 2 AC 447 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 Pfennig v The Queen (1995) 182 CLR 461 Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 R v Delgado-Guerra [2001] QCA 266; [2002] 2 Qd R 384 R v Wharton [1998] Crim LR 668 Sutton v The Queen (1984) 152 CLR 528 The State of Western Australia v Osborne [2007] WASCA 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HORSMAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 190 CORAM : MARTIN CJ

BUSS JA
MILLER JA

HEARD : 19 AUGUST 2008 DELIVERED : 12 SEPTEMBER 2008 FILE NO/S : CACR 27 of 2008 BETWEEN : BARRY STANLEY HORSMAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : KEEN DCJ

Citation : HORSMAN -v- THE STATE OF WESTERN AUSTRALIA

File No : IND 114 of 2007

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Catchwords:

Evidence - Criminal trial - Similar facts - Section 31A Evidence Act 1906 (WA) - Admissibility of similar fact evidence for identification purposes - Where appellant charged with four similar offences is independently identified from photoboard by two of the three complainants - Whether identification evidence is admissible against accused in relation to offence against the other complainant - Whether trial judge appropriately directed the jury

Legislation:

Evidence Act 1906 (WA) s 31A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : Mr P D Yovich

Solicitors:

Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)

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

Dair v The State of Western Australia [2008] WASCA 72
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Director of Public Prosecutions v P [1991] 2 AC 447
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457

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Pfennig v The Queen (1995) 182 CLR 461
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v Delgado-Guerra [2001] QCA 266; [2002] 2 Qd R 384
R v Wharton [1998] Crim LR 668
Sutton v The Queen (1984) 152 CLR 528
The State of Western Australia v Osborne [2007] WASCA 183


(Page 4)

1 MARTIN CJ: I agree with the Hon Justice Buss.

2 BUSS JA: The appellant was tried in the District Court before Judge Keen and a jury on an indictment alleging four counts, as follows:

(1) On 7 April 2006 at Mosman Park Barry Stanley Horsman wilfully and without lawful excuse did an indecent act, namely exposed and masturbated his penis, in a place to which the public were permitted to have access.

(2) On 14 May 2006 at Cottesloe Barry Stanley Horsman wilfully and without lawful excuse did an indecent act, namely exposed and masturbated his penis, in a place to which the public were permitted to have access.

(3) On 16 May 2006 at Mosman Park Barry Stanley Horsman wilfully and without lawful excuse did an indecent act, namely exposed his penis, in a place to which the public were permitted to have access.

(4) On the same date and at the same place as pleaded in Count 3 Barry Stanley Horsman wilfully and without lawful excuse did an indecent act, namely exposed his penis, in a place to which the public were permitted to have access.

3 The appellant was convicted of all counts. He appeals to this court against his conviction pursuant to an extension of time to appeal granted by Wheeler JA on 28 February 2008, and leave to appeal granted by Miller JA on 21 April 2008.

The identification evidence

4 The identification of the appellant as the offender was the only issue at the trial. The appellant's counsel at trial did not suggest that the offences described in the indictment had not occurred or that the complainants did not see someone perform the indecent acts alleged in the indictment. The appellant's case was that he was not the offender.

5 The offences in question involved three separate complainants.

6 Hannah Nolan gave evidence in relation to count 1. On 7 April 2006, she was aged 14 years and working at the Bakers Delight store in Mosman Park. She saw a man outside the store who exposed his penis and masturbated. Ms Nolan assisted police officers in compiling a 'composite image' of the offender (ts 175). Later, some time after 7 June 2006, she attended at a police station and selected a photograph of a man she said was the offender from a digital photoboard (digiboard)

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(ts 176 - 177). She gave evidence that she had not seen the digiboard since she chose the photograph (ts 177).

7 The 'composite image' compiled by the police with Ms Nolan's assistance was published on 7 June 2006 in an edition of The West Australian newspaper. A police officer, First-Class Constable Jason Vanderwiel, gave evidence that the police received an anonymous telephone call from a person who said the appellant bore a resemblance to the composite image (ts 214). The appellant had not previously been a person of interest to the police in relation to the offences in question. Constable Vanderwiel said that the composite image was not shown to any other complainants than Ms Nolan. After the police received the anonymous telephone call, the digiboard was prepared (ts 214). It contained twelve images, including a photograph of the appellant. Constable Vanderwiel gave evidence that the police did not have any record of Ms Nolan having undertaken a digiboard identification (ts 216). The photograph which Ms Nolan said, in her evidence, she had selected from the digiboard was not proven at the trial.

8 Amy Moffat also gave evidence in relation to count 1. On 7 April 2006, she was aged 14 years and working with Ms Nolan at the Bakers Delight store in Mosman Park. Ms Moffat said she saw a man outside the store. She described him. She did not say, however, that she saw him with his penis exposed or masturbating. Ms Moffat gave evidence that after 7 April 2006 she went to a police station and was shown a sheet of paper containing photographs of the faces of men. She was unable to identify the offender from those photographs.

9 On 14 May 2006, Sophie Green was aged 14 years and working at the Napoleon Bakery in Cottesloe. She saw a man outside the bakery who exposed his penis and masturbated. This incident was the subject of count 2. On 11 June 2006, Ms Green attended at a police station and was shown the digiboard. She selected an image from the digiboard (ts 66). The image she selected was the appellant's photograph.

10 On 16 May 2006, Elizabeth Davies, an adult, was walking towards her home with her young daughter. She noticed a man, who was walking towards them, expose his penis on two separate occasions (ts 197 - 199). This conduct occurred in a street in Mosman Park and comprised counts 3 and 4. On 23 June 2006, Ms Davies selected the appellant's photograph from the digiboard (ts 201 - 202).

11 The appellant gave sworn evidence at the trial and denied having committed any of the alleged offences.

(Page 6)

The learned trial judge's summing up

12 The learned trial judge, in his summing up, gave necessary and accepted instructions and warnings to the jury in relation to the issue of identification:

Members of the jury, this is an identification case, and because issues of identification are difficult, there's something I want to say about that before I generally summarise the evidence. The state says to you that its witnesses, and this is Nolan, Moffat, Green and Davies, have correctly identified the accused, and the accused says they're mistaken. The law is, members of the jury, that there is a special need for you to be cautious before you convict an accused in reliance upon the correctness of the identification of the accused by witnesses who do not know the accused.

Now, there are very good reasons for that rule. It exists, members of the jury, because there is a special risk that identification evidence may lead to a wrongful conviction. It's the experience of judges and lawyers that mistakes in identification do occur. Those mistakes occur not infrequently, and despite the mistake being honest and the witness being very careful, innocent people have been convicted based on faulty identification.

If a witness honestly believes that their identification of an accused person is correct, that witness can be very convincing when giving evidence even though they may be mistaken, and again that has been the experience of judges and lawyers. It's also our experience that more than one witness can be mistaken in their identification of an accused person.

So, members of the jury, you should examine closely the circumstances in which each witness saw the offender and the circumstances in which that witness later made the identification of the accused. For instance, you will consider how long did the witness see the person who committed the offence for, at what distance and in what light? Were there any obstructions or distractions to the witness's observations? Did the witness see the offender face to face or at an angle? Were there any distinguishing features about the offender that the witness noticed; height, complexion, hair, clothing et cetera, or was there anything unusual or distinctive about the offender's appearance?

You may also consider how long was it between the original observation and the subsequent identification to the police; that's another matter you may wish to consider when assessing the identification evidence. In respect of Ms Green, you will note from the evidence that it was some four weeks between the original observation and subsequent identification, and Ms Davies I think it's about five and a half weeks.

There is no evidence before you that anybody who did a digiboard identification had previously seen the composite picture in The West Australian newspaper which might somehow influence them; but that

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apart, the other matters to which I have referred might falsely enhance a person's belief in the reliability of their identification.

In this case, members of the jury, you will recall there was photo identification evidence given by Davies and Green. There was no direct evidence as to how the police came to have a photograph of the accused person, Mr Horsman. As I have told you, you must not speculate about matters that are not in evidence. There may be any number of reasons why the police may have a photograph of a person or access to such a photograph and that may be for an entirely innocent purpose so don't speculate about why the police may have had a photograph.

Photo identification evidence does have some limitations and like any other identification evidence has to be examined carefully. A photograph is two-dimensional; it's static, it's limited. It doesn't depict a manner of moving, posture, variety of facial expressions; it doesn't depict often as not complexion, body size, body shape, colouring, nor many of the other subtle characteristics that an actual sighting may convey to the mind.

The danger is that a photograph of a person may resemble the suspect in the recollection of a witness who saw the suspect only once and so lead to a false identification. Members of the jury, you will no doubt ask yourselves whether there were any material discrepancies between the description that the witness gave to the police, and in court, and the accused's actual appearance (ts 289 - 291).

His Honour then applied various of the general instructions he had given on the issue of identification to the particular facts of the case.

13 Earlier in his summing up, the learned trial judge instructed the jury, relevantly, in relation to the basis on which the jury might use some of the identification evidence as similar fact evidence:

The state submits to you that there are striking similarities between the evidence of each of the alleged offences. Similarities that the state points to are: firstly, that the offences all occurred in the same general geographical area; they all occur at or about the same time, within a month or so; that each offence involved an offender exposing his penis; and all of the witnesses identified the accused, Mr Horsman.

There are several things I want to say to you about that submission. The first thing is that you must be satisfied beyond reasonable doubt that Mr Horsman has committed an offence with which he has been charged before you can use the facts of that charge in considering whether he is guilty of the other charges; secondly, if you're satisfied beyond reasonable doubt that he has committed an offence with which he has been charged, in considering the alleged similarities of that offence with those on another count that you're considering you should look to see whether the similarities are so striking or of such a clear underlying unity as to make coincidence a very unlikely explanation and whether similarities indicate

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that the same person was responsible for the alleged offence you're considering.

Thirdly, members of the jury, you can only use the evidence of the alleged similarities to support the state's case on a charge in this way if you are satisfied beyond reasonable doubt that the similarities exist because the accused, Mr Horsman, committed that offence and has put his stamp on that offence by those similarities; fourthly, in deciding whether Mr Horsman has put his stamp on the offence in the way that I have described, you should also consider any dissimilarities between the way in which the alleged offences were committed.

Finally, if you are satisfied beyond reasonable doubt that Mr Horsman has committed one offence, you must not use a process of reasoning that he is a person of bad character or that he is the type of person who would commit the offence. You must decide each charge on the evidence and not on any assessment of his character because you have concluded that he is guilty of one offence.

So you can't convict Mr Horsman on any charge unless you are satisfied beyond reasonable doubt from the evidence that he [is] guilty of that offence. Then, members of the jury, having considered all of the evidence you may then find Mr Horsman guilty of all the charges, or you may find him not guilty of all the charges. You may find him guilty of some and not guilty of others. They're matters for you to determine on the evidence.

The one thing you mustn't do though is to draw any inference against Mr Horsman or make any conclusions against him or be prejudiced against him because there is more than one charge. It's the state that has decided to charge him with these four charges and your duty in respect of each charge is to consider the evidence relevant to that charge and on the basis of that evidence determine whether the verdict is guilty or not guilty (ts 284 - 285).

The ground of appeal

14 The ground of appeal reads:

The learned trial Judge erred when he allowed the jury to use impermissible reasoning in reaching verdicts of guilty, such that there was a miscarriage of justice.

Particulars:

a) the prosecution relied upon 'propensity evidence' pursuant to s31A of the Evidence Act 1906 ('the evidence');

b) identification of the Appellant as the offender was the central issue at trial;

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c) the evidence was said by the prosecution to include the identification of the Appellant as the offender;

d) the testimony as to identification should not have been left to the jury on the basis it was part of the evidence;

e) in failing to separate the testimony as to identification from the evidence, the learned trial Judge was in error.

The appellant's submissions

15 The appellant's counsel argued that the fact that one complainant had identified the appellant as the offender was irrelevant to whether or not another complainant also identified him. Further, it was submitted that such evidence did not, of itself, prove any disposition on the appellant's part.

16 The appellant's counsel referred to the decision of the High Court in Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303. In particular, counsel relied on these passages in the reasons of Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ:

Neither the courts below nor counsel for the respondent cited any case in which similar fact evidence of complainants who said that they did not consent was led to show that another complainant had not consented. Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case. It is impossible to see how, on the question of whether one complainant consented, the other complainants' evidence that they did not consent has any probative value. It does not itself prove any disposition on the part of the accused: it proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her.

…

Evidence by other complainants that they had not consented to the sexual acts allegedly performed on them by the appellant had no more probative value than evidence by them that they had not consented to the performance of sexual acts on them by persons other than the appellant. Like the evidence of the other complainants in this case, evidence of that kind may demonstrate some 'propensity' in particular complainants, but it demonstrates nothing about the appellant [47], [49].

17 The appellant's counsel submitted, in reliance on the reasoning in Phillips, that the fact that any one complainant identified the appellant as the offender was irrelevant to the issue of his 'propensity', and was only
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relevant to the separate issue of the identification of the offender. According to counsel, the learned trial judge erred in failing to direct the jury that one complainant's identification of the appellant as the offender did not corroborate the identification evidence of any of the other complainants.

18 The appellant's counsel also asserted, in his oral submissions, that the learned trial judge erred in that he commented to the jury:

the State says to you to that its witnesses, and this is Nolan, Moffat, Green and Davies, have correctly identified the accused (ts 289),

without clarifying that, in fact, neither Ms Nolan nor Ms Moffat (being the witnesses who gave evidence as to count 1) had identified the appellant as the offender. Counsel submitted that his Honour's failure to correct the State's submission in this respect occasioned a miscarriage of justice in respect of count 1.

The merits of the appeal

19 Section 31A of the Evidence Act 1906 (WA) provides:

(1) In this section -

'propensity evidence' means -


(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -


(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

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(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

20 Section 31A was introduced into the Evidence Act by s 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA). The Parliament's purpose in enacting s 31A was to confer on the courts greater power to admit propensity and relationship evidence. See the second reading speech of the Attorney General: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4068.

21 Section 31A substantially amended the common law. It abolished the test that propensity evidence is inadmissible if there is a rational view of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] - [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] - [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]. By s 31A, propensity evidence, as defined in s 31A(1), is admissible if the court considers that the requirements of each of paras (a) and (b) of s 31A(2) have been satisfied.

22 Recently, in Dair v The State of Western Australia [2008] WASCA 72, Steytler P analysed s 31A. His Honour said, in relation to the concept of 'significant probative value', within s 31A(2)(a):

The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone 'significant' probative value.

Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89

(Page 12)

A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13], [60] - [61].

I respectfully agree with the President's analysis.

23 In Dair, Steytler P then examined the comparison which s 31A(2)(b) requires. The passage in his Honour's reasons is lengthy, but it is desirable to reproduce it. His Honour said:

Once the evidence is found to have significant probative value, either by itself or taken with other evidence, the court must engage in the process contemplated by s 31A(2)(b). Because there will already have been an assessment of the probative value of the evidence (taking into account the purpose for which it is adduced and its likely effect when considered together with the other evidence), it is necessary, next, to assess the degree of risk of unfairness in the trial that will be brought about by the admission of the evidence.

Geoffrey Flatman QC and Dr Mirko Bagaric, 'Non-similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions' (2001) 75 Australian Law Journal 190, 199, identify a threefold prejudice (only part of which is present in this case) involved in the introduction of similar fact evidence, as follows:

1. 'The over strong tendency to believe that the defendant is guilty of the charge merely because he is a likely person to do such acts' (Wigmore, Evidence (1940), p 650; see also Waight and Williams, [Evidence: Commentary and Materials (5th ed, LBC, 1998)], p 426 (citing R v Bailey [1924] 2 KB 300 at 305: 'it is easy to derive from a series of unsatisfactory allegations … an accusation which at least appears satisfactory … to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing')). This comes down to the belief that the jury will over-estimate the cogency of the similar fact evidence; the jury may act illogically by giving too much weight to the evidence. In BRS v The Queen ((1997) 191 CLR 275) Kirby J stated:


'research confirms the common tendency to infer from particular conduct character traits which are then used to justify predictions and estimates about other conduct. However, objectively, such predictions are frequently shown to be unwarranted (Ibid at 322).'

2. 'The tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped punishment from other offences' (Wigmore … p 650). Thus, 'there might be a tendency for the jury to punish the accused for past misconduct by finding

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the accused guilty of the offence charged' (R v Rarru (1996) 107 CCC (3d) 82). This second danger refers not to a possible defect in logic that may be triggered by similar fact evidence, but the fear that the jury will convict solely due to a bias against the accused: 'sentiments of revulsion and condemnation … might well deflect [the jury] from the rational dispassionate analysis upon which the criminal process should rest' (Ibid). In short, it is thought that the reception of similar fact evidence may result in a bias being formed against the accused which will taint the jury's decision.

3. 'The jury might become confused [or distracted] as it concentrates on resolving whether the accused actually committed the similar acts' (Ibid; see also … Pfenning v The Queen (1995) 182 CLR 461 at 512).

(See also Heydon [21135] - [21150].)

When assessing the risk of an unfair trial for the purposes of this hypothetical comparison, the court will take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. It is important to bear in mind in this respect that, when propensity evidence is admissible as such because it meets the requirements for the admission of evidence of that kind, a standard propensity warning will not be required: Noto [27]. In KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, McHugh J said (235):

If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning … And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment. (emphasis in original)

Of course, that does not necessarily mean that, in a case in which propensity evidence is admissible as such, no warning of any kind is required. Whether a warning is required and, if so, the terms of that warning, will depend upon the circumstances of the individual case. It is important to have regard for the purpose for which the evidence is admitted and to tailor the directions accordingly: Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [77] (McHugh & Hayne JJ). It is also important to bear in mind what was said by Kirby J in BRS (330) as follows:

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It is … necessary to remind oneself that a judge's direction to a jury must be considered in the context of the entire trial and in the light of the issues litigated and the submissions made. This Court should exercise restraint before adding to the catalogue of warnings required of judges conducting criminal trials. If overlooked, or considered unnecessary in a particular trial, they may simply give rise to unmeritorious appeals. But, in certain fundamental matters, the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice. The risk must be a real, and not a fanciful one to attract the intervention of an appellate court. It is not enough that a conclusion is reached that a particular warning would have been desirable. It must be shown to have been necessary in order to avoid the risk of a miscarriage of justice. (footnotes omitted)

Having identified the probative value of the evidence and the degree of risk of an unfair trial, the court must turn its attention to the conclusion that fair-minded people would draw from a comparison of the two. These fair-minded people are presumably reasonable members of the general public who are not lawyers: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (Unreported, NSWCA, 27 November 1990) (20), cited in Australian National Industries Ltd v Spedley SecuritiesLtd (in liq) (1992) 26 NSWLR 411, 419; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J). However, the legislature must be taken to have assumed that such people would have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson [53] (Kirby J).

The comparison that these fair-minded people are to be assumed to have undertaken is problematic. As McHugh J pointed out in Pfennig (528), 'prejudicial effect [or, I would suggest, the degree of risk of an unfair trial] and probative value are incommensurables' that have 'no standard of comparison'. It is not easy to compare the probative value of the evidence with the degree of risk to the fairness of the trial that is brought about by its introduction. That risk arises because the jury might use the evidence in an impermissible way. In a case in which the evidence is led for its propensity value (for example, as identification evidence), the risk of unfairness might increase proportionately with the probative value of the propensity evidence. In effect, the test provided by subs 2(b) requires an assessment to be made whether fair-minded people would think that the interests of justice require the admission of the evidence despite the risk: cp the similar comments made by McHugh J in Pfennig (528) in respect of his statement of the position under the common law [62] - [67].

Again, I respectfully agree with his Honour's observations.

24 In Sutton v The Queen (1984) 152 CLR 528, the appellant was charged with one count of attempted rape and seven counts of rape. There were similarities in relation to the commission of each of the offences.
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One count was committed against a complainant in August 1981, three counts against a different complainant in September 1981, and four counts against yet another complainant in October 1981. Two of the complainants identified the appellant as the offender. The third complainant did not identify him but, in her case, there was evidence that the appellant had admitted to the commission of the offences against her. Deane J said:

The principal issue — indeed, the only real issue — between the Crown and the applicant in relation to each of the eight charges against him was the identity of the assailant. 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 (560 - 561).

Also see the observations of Gibbs CJ at 533 - 535. The High Court decided that the evidence on each count was admissible in considering the other counts. Gibbs CJ, Brennan J and Deane J held, in separate judgments, that each of the offences was committed in a manner so strikingly similar to the others that a jury could reasonably conclude that the same person was guilty of all of them.

25 In Pfennig v The Queen (1995) 182 CLR 461, Mason CJ, Deane and Dawson JJ said that the probative value of similar fact evidence lies in the improbability of witnesses giving accounts of happenings having the requisite degree of similarity unless the events occurred (482). Where the similar fact evidence is disputed, it remains relevant to prove the commission of the acts charged. Their Honours added:

Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the

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possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused (482).

26 In Director of Public Prosecutions v P [1991] 2 AC 447, the House of Lords distinguished between similar fact evidence which is adduced for the purpose of identifying an accused as the offender, and similar fact evidence which is adduced for other purposes. Lord Mackay of Clashfern LC (with whom the other Law Lords agreed) held that the relationship between the evidence relating to one victim and the evidence relating to another victim was critical. His Lordship said:

This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connexion. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle (462).

27 The proposition in P that when the identity of the offender is in dispute, similar fact or propensity evidence should not be received unless it reveals a signature or some other special feature pointing to the accused as the offender has not been accepted in Australia. In R v Delgado-Guerra [2001] QCA 266; [2002] 2 Qd R 384, Thomas JA (McMurdo P and Helman J agreeing) said, after mentioning P and R v Wharton [1998] Crim LR 668:

The English and Australian cases have diverged somewhat in this area of the law. It is difficult to think that some special requirement or different test should be applied in relation to the use of propensity evidence for proof of identify than for the other purposes for which it may be admitted. There is no good reason why the fingerprint evidence should be taken out of the combination of proven facts in relation to each of the offences. The essential question is whether the evidence is cogent enough to be admitted as proof of identification of this offender. The suggested 'signature' test in my view raises an unnecessary distinction and ought not to be followed [19].

Also see Dair,[52] - [53] (Steytler P).

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28 In the present case, before this court the appellant's counsel accepted (correctly, in my opinion) that there was a powerful case against the appellant which arose from strong circumstantial evidence combined with the identification evidence of Ms Green in relation to count 2 and Ms Davies in relation to counts 3 and 4. Also, the appellant's counsel accepted (correctly, in my opinion) that it was remarkable that the appellant's photograph on the digiboard was selected independently by two witnesses (Ms Green and Ms Davies) in the context of two different offences.

29 In my opinion, there were striking similarities between the facts and circumstances of each of the offences. First, each offence was committed within relatively close geographical proximity. Counts 1, 3 and 4 occurred in Mosman Park and count 2 in the adjoining suburb of Cottesloe. Secondly, there was relatively close temporal proximity between the commission of each of the offences. They were committed during a six-week period between 7 April 2006 and 16 May 2006. Thirdly, each of the offences occurred in or close to a suburban shopping area. Fourthly, each of the offences involved the offender exposing his penis and, in the case of two of the offences, masturbating. Fifthly, there was some general similarity between each complainant's description of the offender, although there were, of course, differences, especially in detail. The facts and circumstances were capable of supporting a finding beyond reasonable doubt that the same person committed each of the offences.

30 The learned trial judge correctly directed the jury in relation to the basis on which they might use some of the identification evidence as similar fact evidence. In particular, his Honour told the jury:

(a) they must be satisfied beyond reasonable doubt that the appellant had committed one of the offences with which he was charged before they could use the facts of that charge in considering whether he was guilty of any of the other charges;

(b) if they were satisfied beyond reasonable doubt that the appellant had committed one of the offences, in considering the alleged similarities between that offence and any other offence, they should look to see whether the similarities were so striking or revealed such a clear underlying unity as to make coincidence a very unlikely explanation and whether the similarities indicated that the same person was responsible for the other offence they were considering;

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(c) they could only use the evidence of the alleged similarities to support the State's case on a particular offence if they were satisfied beyond reasonable doubt that the similarities existed because the appellant had committed that offence and had put his 'stamp' on that offence by those similarities;

(d) in deciding whether the appellant had put his 'stamp' on a particular offence, they should also consider any dissimilarities between the way in which the alleged offences were committed; and

(e) if they were satisfied beyond reasonable doubt that the appellant had committed a particular offence, they must not use a process of reasoning that he was a person of bad character or that he was the type of person who would commit any of the other offences.

31 In my opinion, it was open to the jury, on the basis of the identification and other evidence of Ms Green, to be satisfied beyond reasonable doubt that the appellant was guilty on count 2. Similarly, it was open to the jury, on the basis of the identification and other evidence of Ms Davies, to be satisfied beyond reasonable doubt that he was guilty on counts 3 and 4.

32 After separately considering, in accordance with the learned trial judge's directions, each of counts 2, 3 and 4, and deciding that the appellant was guilty as charged, it was open to the jury to rely on the similarity between the four offences, the identification evidence of Ms Green and Ms Davies in relation to counts 2, 3 and 4 and the evidence of Ms Nolan and Ms Moffat, to be satisfied beyond reasonable doubt that the appellant was guilty on count 1.

33 If the jury were satisfied beyond reasonable doubt that the appellant committed counts 2, 3 and 4, then the similar fact evidence (in particular, Ms Green's and Ms Davies' identification of the appellant as the offender) had significant probative value in determining whether he was also the offender in the case of count 1.

34 The submissions made by the appellant's counsel demonstrate a misunderstanding of s 31A of the Evidence Act and the manner in which similar fact evidence may be used, subject to proper directions from the trial judge, for the purpose of identifying an accused as the offender.

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35 The decision in Phillips is plainly distinguishable. In that case the High Court held that on the issue of whether one complainant consented to the appellant's sexual conduct, the other complainants' evidence that they did not consent had no probative value. Critically, it did not prove any disposition of the appellant but only the mental state of each other complainant on the particular occasion relating to her. By contrast, in the present case, the identification evidence of Ms Green and Ms Davies in relation to counts 2, 3 and 4 (if accepted by the jury), combined with the striking similarities I have mentioned (if the jury were satisfied that there were striking similarities), had significant probative value in determining whether the appellant was the offender in the case of each of the counts. Generally concerning Phillips and s 31A, see The State of Western Australia v Osborne [2007] WASCA 183 [20]- [36] (Wheeler JA, Miller JA agreeing).

36 The ground of appeal is without merit.

37 In my opinion, the learned trial judge erred, with respect, in summarising the State's submission that Ms Nolan, Ms Moffat, Ms Green and Ms Davies had 'correctly identified [the appellant]' (ts 289), without clarifying that, in fact, neither Ms Nolan nor Ms Moffat (being the witnesses who gave evidence as to count 1) had identified him as the offender. His Honour's failure to clarify that point did not, however, cause the trial to miscarry. The State had a strong case against the appellant. I accept, of course, that although the identification evidence was cogent in relation to counts 2, 3 and 4, the State's case against the appellant in relation to count 1 depended, on that issue, on the admissibility of the similar fact evidence. For the reasons I have given, I am satisfied that the similar fact evidence was properly admissible on count 1, that the learned trial judge gave proper directions as to the use of the similar fact evidence for the purpose of identifying the appellant as the offender, and that it was open to the jury to convict on count 1 (and, indeed, the other counts). In my opinion, the absence of the clarification which the appellant's counsel contended was necessary did not give rise to the risk of a miscarriage of justice.

Conclusion

38 I would dismiss the appeal.

39 MILLER JA: I agree with Buss JA.