King v The Queen

[1999] WASCA 9

KING -v- R [1999] WASCA 9

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 9
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:114/1998	Heard:	2 DECEMBER 1998
Coram:	MALCOLM CJ KENNEDY J MURRAY J	Delivered:	7/05/99
No of pages:	33	Judgment Part:	1 of 1
Result:	Appeal against conviction dismissed Appeal against sentence allowed
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Parties:	JEFFREY WAYNE KING THE QUEEN
Catchwords:	Criminal law and procedure Evidence Identification Warning on danger of convicting on disputed evidence Necessary elements of warning Adequacy of warning. Criminal law and procedure Sentencing Unlawfully doing grievous bodily harm with intent Severe damage to victim's skull resulting in loss of an eye Planned assault Sentence increased from four and a half years' to 6 years' imprisonment.
Case References:	Alexander v the Queen (1981) 145 CLR 395. Alexander v The Queen (1981) 145 CLR 395. Bockfuss v The Queen, unreported; CCA SCt of WA; Library No 950063; 22 February 1995. Davies and Cody v The King (1937) 57 CLR 170. Domican v The Queen (1992) 173 CLR 555. Domican v The Queen (1992) 173 CLR 555. Grbic v Pitkethly (1992) 65 A Crim R 12. Jones v Dunkel (1959) 101 CLR 298. M v The Queen (1994) 181 CLR 487. R v Apostilides (1984) 154 CLR 563. R v Burchielli [1981] VR 611. R v Grein [1989] WAR 178. R v Grein [1989] WAR 178. R v Haidley [1984] VR 229. R v Pitkin (1995) 80 Cr App R 302. R v Weeder (1982) 71 Cr App R 228. Richardson v The Queen (1974) 131 CLR 116. Whitehorn v The Queen (1983) 152 CLR 657. Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992 Jones v The Queen (1997) 191 CLR 439 Kelleher v The Queen (1974) 131 CLR 534 Mavaddat v The Queen, unreported; CCA SCt of WA; Library No 920036; 17 February 1992 McLaughlan v The Queen, unreported; CCA SCt of WA; Library No 950252; 26 May 1995 R v Chikonga, unreported; CCA SCt of WA; Library No 950089; 10 March 1995 R v Leucas (1995) 78 A Crim R 40 R v McCarthy (1993) 71 A Crim R 395 R v Penny (1997) 91 A Crim R 288 Thompson v The Queen (1992) 8 WAR 387 Woodthorpe v The Queen (1994) 14 WAR 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KING -v- R [1999] WASCA 9 CORAM : MALCOLM CJ

KENNEDY J
MURRAY J

HEARD : 2 DECEMBER 1998 DELIVERED : 7 MAY 1999 FILE NO/S : CCA 114 of 1998 BETWEEN : JEFFREY WAYNE KING

Applicant

AND

THE QUEEN
Respondent

FILE NO/S : CCA 123 of 1998 BETWEEN : THE QUEEN

Appellant

AND

JEFFREY WAYNE KING
Respondent

(Page 2)

Catchwords:

Criminal law and procedure - Evidence - Identification - Warning on danger of convicting on disputed evidence - Necessary elements of warning - Adequacy of warning.

Criminal law and procedure - Sentencing - Unlawfully doing grievous bodily harm with intent - Severe damage to victim's skull resulting in loss of an eye - Planned assault - Sentence increased from four and a half years' to 6 years' imprisonment.

Legislation:

Result: Appeal against conviction dismissed
Appeal against sentence allowed

Representation:

CCA 114 of 1998

Counsel:

Applicant : Mr T F Percy QC & Mr D C Manera
Respondent : Mr B Fiannaca & Ms Z M M Windsor

Solicitors:

Applicant : David Manera
Respondent : State Director of Public Prosecutions

(Page 3)

CCA 123 of 1998 Counsel:

Appellant : Mr B Fiannaca & Ms Z M M Windsor
Respondent : Mr T F Percy QC & Mr D C Manera

Solicitors:

Appellant : State Director of Public Prosecutions
Respondent : David Manera

Case(s) referred to in judgment(s):
Alexander v the Queen (1981) 145 CLR 395.
Alexander v The Queen (1981) 145 CLR 395.
Bockfuss v The Queen, unreported; CCA SCt of WA; Library No 950063; 22 February 1995.
Davies and Cody v The King (1937) 57 CLR 170.
Domican v The Queen (1992) 173 CLR 555.
Domican v The Queen (1992) 173 CLR 555.
Grbic v Pitkethly (1992) 65 A Crim R 12.
Jones v Dunkel (1959) 101 CLR 298.
M v The Queen (1994) 181 CLR 487.
R v Apostilides (1984) 154 CLR 563.
R v Burchielli [1981] VR 611.
R v Grein [1989] WAR 178.
R v Grein [1989] WAR 178.
R v Haidley [1984] VR 229.
R v Pitkin (1995) 80 Cr App R 302.
R v Weeder (1982) 71 Cr App R 228.
Richardson v The Queen (1974) 131 CLR 116.
Whitehorn v The Queen (1983) 152 CLR 657.



(Page 4)

Case(s) also cited:
Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992
Jones v The Queen (1997) 191 CLR 439
Kelleher v The Queen (1974) 131 CLR 534
Mavaddat v The Queen, unreported; CCA SCt of WA; Library No 920036; 17 February 1992
McLaughlan v The Queen, unreported; CCA SCt of WA; Library No 950252; 26 May 1995
R v Chikonga, unreported; CCA SCt of WA; Library No 950089; 10 March 1995
R v Leucas (1995) 78 A Crim R 40
R v McCarthy (1993) 71 A Crim R 395
R v Penny (1997) 91 A Crim R 288
Thompson v The Queen (1992) 8 WAR 387
Woodthorpe v The Queen (1994) 14 WAR 215

(Page 5)

1. MALCOLM CJ: In my opinion, the applicant should be granted leave to appeal against his conviction, but the appeal dismissed for the reasons to be published by Kennedy J, with which I agree. I also agree with Kennedy J that the Crown's appeal against sentence should be allowed and the sentence of imprisonment imposed by the learned Judge increased from 4 years and 6 months to 6 years. The order for eligibility for parole will stand.

2. As Kennedy J pointed out Mr Howley, the complainant, was unable to identify his attacker from photoboards, although he was able to say that certain persons in the photographs were not the person who attacked him. He did, however, identify the applicant as that person from among a group of people sitting outside the court on the morning of the preliminary hearing. Where a person has been unable to identify a suspect from a "line-up", at a police station or from a series of photographs, it is a common practice in a number of jurisdictions to put a suspect in a group of people in a room to see whether a witness can identify the suspect. A similar procedure was followed with Mr Longworth, a witness who was unable to identify the applicant from a photoboard. He was taken to nightclub premises where police knew the applicant would be in a group of others. As it happened, he was unable to identify the applicant. This failure was pointed out by the learned trial Judge. The same step was taken with another witness, Mr Callaghan, who was unable to identify the applicant from the photo board, but who identified the applicant at the nightclub.

3. It was the applicant's profile which Mr Howley recognised. While he was sitting outside the court there were various other people there. He did not know who they were or why they were there. There were people to his left and his right. As Mr Howley said:

"... I looked at all the people around me obviously and thought nothing - didn't think anything of it and then he turned his head to the side and I picked him straight away, 100 per cent - picked him straight away."

4. The view which he had of the applicant in profile was about the only part of the assault he remembered. This was a spontaneous identification as the circumstances were fortuitous, not arranged. There was a photograph of the applicant in profile which was in evidence. The jury would have been entitled to conclude that the applicant had a distinctive profile. The photograph of the applicant on the photoboard shown to Mr Howley was not a photograph in profile, but full face.
(Page 6)

5. In my opinion, the directions by the learned Judge were in substantial conformity with what was required by the decision in Domican v The Queen (1992) 173 CLR 555 at 560 and 561-562 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ. This was not a case in which there was a possibility that Mr Howley's identification was a consequence of the displacement effect described by Stephen J in his dissenting judgment in Alexander v The Queen (1981) 145 CLR 395 at 409.

6. Although Mr Callaghan identified the applicant in the dock as the person he had seen attacking Mr Howley, this was not a "dock identification" case of the kind referred to by Mason J in Alexander v The Queen at 426-427. As has been seen, Mr Callaghan had previously identified the applicant and was then asked whether he could see in court the person he had previously identified among a group of people at a nightclub. He identified the applicant in the dock. The direction to the jury was that dock identifications do not always carry a lot of weight because there is a strong psychological suggestion that the person who is standing in the dock is the person who committed the offence.

7. I note that the evidence that Mr Callaghan had earlier been unable to identify the applicant from a photoboard was given by a police officer who was present when Mr Callaghan looked at the photoboard, rather than by Mr Callaghan himself. In my opinion, such evidence was objectionable hearsay and should have been led from Mr Callaghan himself, but no objection was taken to it. This is a precedent that should not be followed.

8. As to the Crown appeal against sentence, the maximum sentence for an offence under s294 of the Code for the offence of doing grievous bodily harm with intent to maim, disfigure or disable, or to do grievous bodily harm is a sentence of imprisonment for 20 years. The offence of assault with intent to do grievous bodily harm, by comparison, carries a maximum of imprisonment for five years. This was a premeditated, vicious and sustained attack following the victim being lured to a place from which he could not escape. Mr Howley was repeatedly and systematically kicked about his head and face in circumstances where it was plain that he was incapable of offering any resistance. As a result very serious permanent injuries were inflicted upon him.

9. This was a serious example of an assault which involved doing grievous bodily harm with intent to o grievous bodily harm. It is an appropriate case in which the Court should set aside the sentence of 4 years and 6 months imposed as being manifestly inadequate in accordance with the

(Page 7)

principles stated in R v Grein [1989] WAR 178 at 179-180 per Malcolm CJ (with whom Wallace and Nicholson JJ agreed). I specifically agree with Kennedy J that there is a need to demonstrate the community's abhorrence of the resort to violence and the commission of offences of this nature coupled with the need to deter others. It is for these reasons that, taking into account the principles in R v Grein, including the element of double jeopardy, I agree that the sentence imposed should be increased to six years.

10. KENNEDY J: On the evening of Sunday 13 October 1996, in a laneway alongside the Post Office Night Club in Aberdeen Street, Northbridge, Mr R K Howley was viciously assaulted by a person whom, he said, he had never previously met.

11. At the conclusion of a two day trial, Jeffrey Wayne King ("the applicant") was found guilty by a unanimous verdict of the jury of having, with intent to maim, disfigure, disable or do some grievous bodily harm to Mr Howley, unlawfully done grievous bodily harm to him. The applicant was sentenced to a term of four and a half years' imprisonment. An order was made that he be eligible for parole.

12. The applicant now seeks leave to appeal against his conviction, while the Crown appeals against the leniency of his sentence. Omitting particulars, the applicant's grounds of appeal are as follows:

1. The learned trial Judge erred in law in failing adequately to direct the jury in terms of the decision of the High Court of Australia in Domican v The Queen (1992) 173 CLR 555.

2. The learned trial Judge failed to direct the jury that they were bound to take into consideration matters undermining the reliability of identification evidence given by the witnesses Howley and Callahan.

3. The learned trial Judge failed adequately to isolate and identify for the jury facts which undermined the reliability of the identification evidence.

4. The learned trial Judge erred in failing to direct the jury in terms of the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298 in relation to the failure of the Crown to call Tucker as a witness.

(Page 8)

5. The verdict was, in all of the circumstances, unsafe and unsatisfactory within the meaning of the principle set out by the High Court in M v The Queen (1994) 181 CLR 487.

13. Mr Howley's evidence was that he had been watching a limbo dance on the dance floor at the night-club when someone, whom he presumed to be a doorman, tapped him on the shoulder and told him there was someone who wanted to speak to him. He was then led out through a side door into the laneway, where the man who subsequently attacked him was standing. The person who had led him out of the night-club told Mr Howley that he himself would be "right here". In fact, he went back inside the building. The waiting man then said to Mr Howley, "You've upset a mate of mine and I am here to sort you out". Mr Howley said he did not know what was going on, but he asked where the man's "mate" was and offered to apologise to him. He was told that it was too late for that. The next thing he said he remembered was his being in hospital.

14. Mr Howley's evidence was that his assailant, whom he had never seen before, was a little shorter than he was - Mr Howley is six feet tall. He said the assailant's hair was short and black and that he was clean shaven. His assailant was wearing black trousers and a black shirt with rounded collar and long sleeves. Mr Howley accepted that it appeared to him to be a "long, dark alleyway".

15. The laneway, which is brick paved, appears from the photographs tendered in evidence to be relatively short in length, running from the footpath in Fitzgerald Street to a door which gives access to the night-club building. There appears to be another door, or perhaps double doors, in the wall of the building which runs along the length of the laneway on the right hand side, viewed from the street. There is a high wall on the left hand side of the laneway. A sign at the entrance to the laneway indicates that it provides access to "Administration". In one of the photographs, there is shown a light above the door at the end of the laneway. Slightly set back from the Fitzgerald Street end of the laneway, there is a wooden gate, which can close off the entry to the laneway. The gate consists of wooden slats, or pickets, attached to a timber framework. The gate can be locked.

16. Mr L Trumino was a security officer on duty at the night-club at the time of the assault. His evidence was that a doorman named Dennis (later

(Page 9)

identified as Dennis Tucker) approached him and asked him to come and escort him to request someone to leave the night-club. They both walked to the front of the stage where Dennis spoke to a man, who appears to have been Mr Howley. Mr Trumino said he could not see anything wrong with the behaviour of Mr Howley. Nevertheless, they all started walking to the rear of the premises, to a door which gave access to the laneway. The door was opened to let Mr Howley out. Mr Howley walked out through the door into the laneway and then the door was closed. Mr Trumino returned to his post. He said he did not see into the laneway. He agreed in cross-examination that the laneway was "reasonably dark". He said that he did not notice any lights or anything like that, and he added that it was "a dark area sort of thing". He claimed that the gate at the Fitzgerald Street end of the laneway was open at the time.

17. Between 10 and 20 minutes later, Mr Trumino said, Craig, who was the head doorman, and Dennis came running past him. He followed them. They went out through the rear door and he saw Mr Howley and another man fighting in the laneway. He described the other man as being between 160cm and 170cm tall. He said he looked as if he had not shaved or "something like that". He was not clean shaven. He could not remember what clothing the assailant was wearing. He said he had never seen the person before in his life. He was not asked whether he had ever seen the applicant before. He claimed that Dennis had stopped the fighting and that Mr Howley had then slumped to the floor. He knelt down to assist Craig with moving Mr Howley against the wall and, when he turned around, the assailant had left the scene. Whether he could have left by climbing the wall, or whether he must have re-entered the night-club building, is not clear. Having regard to the people grouped outside the gate, it is most unlikely that he could have used that escape route, although it seems that the gate could have been opened from inside the laneway. No witness said that he did escape that way.

18. Just before the assault had taken place, Mrs Beverley Winterburn was walking along Aberdeen Street towards the night-club. Passing the gate to the laneway, which, she said, was closed and locked from the inside, she said she just caught sight of a man who, quite clearly, must have been Mr Howley, "bowling" out of the back door, with a man coming out after him. She said it seemed to her that they had both come out together. She heard Mr Howley say something to the effect, "Hey mate, what's the matter? I didn't do anything." The assailant then pushed Mr Howley and punched him in the face. She said they were both fighting, with Mr Howley hitting the assailant at least twice. She described the assailant as being smaller and a bit shorter than Mr Howley and as having dark hair

(Page 10)

and being good looking; but she did not think she would recognise him again. She thought he was wearing a dark top. She claimed she was not looking at what anyone looked like or even looking at what they had on. She simply wanted the two men to stop fighting.

19. The lighting at the scene was described by Mrs Winterburn as being bright, coming from a floodlight type light. She described the gate as being a picket gate which had very narrow gaps between the pickets, about an inch or less in width. The gate was very high and she could not see over it. She could only see the edge of the laneway through the gaps between the pickets, but she emphasised that she could see what was happening through the gaps. She was standing right at the gate. She was there "all up" for probably two minutes.

20. Mrs Winterburn sought help from Mr G P Longworth and Mr M K Callahan, both of whom she saw walking along Fitzgerald Street. Mr Longworth's evidence was that he saw someone being kicked and beaten, but, he said, the people outside the gate, which was closed, could do nothing. At one stage, the assailant looked up and told those outside the gate to "fuck off". He said he saw a couple of men, whom he described as "bouncers", coming out into the laneway from the night-club building. They just seemed to be standing there, although the fight was "pretty well finishing".

21. Mr Longworth described the lighting as being a little bit dim, but said that there was a light "sort of towards the end". It was shining towards them. He was able to see someone being kicked and beaten. He thought the gaps between the pickets on the gate were about 50 or 60mm or about two inches or so, and he said that if you got close and looked through, you had a full view of what was happening. So far as the identification of the assailant was concerned, Mr Longworth claimed he was really looking at what was happening to the victim; but, as far as he could remember, the assailant was a stocky sort of person, about five feet ten inches in height, of solid build, with short cropped hair and about three days' growth of facial hair. He thought the assailant was wearing jeans and a white T-shirt. His first observation of the incident was for less than a minute. After he had unsuccessfully sought help from the security men at the front door, he returned to the scene for only another 20 seconds or so.

22. Mr Callahan said he called on the two men to stop fighting. The assailant was at that time "methodically working .... over" his victim. He approached a "bouncer" at the front door, but he said he was unable to leave his position. That bouncer was subsequently identified by

(Page 11)

Mr Callahan as being Dennis Tucker. He made two or three attempts to obtain help from security men at the night-club. He remembered the security staff coming into the laneway, but claimed that they had failed to do anything, and the fight continued until the victim was eventually rendered virtually unconscious.

23. Mr Callahan's evidence was that, from memory, there was a light on the back wall of the laneway. He was therefore looking towards the light. He thought it was lighter at the far end of the laneway than it was at the street end. He thought that the pickets on the gate were about two inches wide, with the gap between pickets being possibly an inch. He could not see over the gate, but he looked through the gaps between the pickets and said he had no trouble in seeing what was going on. He thought the assailant was up to six feet tall and was wearing a white T-shirt and dark coloured pants. He had a few days' growth of facial hair, like a goatee. He added that it looked like a beard, a bit darker around his chin and moustache area. His sideburns were shaven.

24. On 18 October 1996, five days after the assault, Mr Longworth assisted a police artist to prepare an identikit drawing of the assailant. This was based on a brief description of the man provided by Mr Longworth, and the use of a library of photographs, from which Mr Longworth picked out certain features. On this information, the artist drew a sketch of the assailant. Later on the same day, Mr Callahan attended the artist, who scanned the sketch onto his computer and then manipulated the picture to accord with Mr Callahan's suggested changes. To the original sketch, a goatee beard was added, the eyes were closed a little, and some of the darkness was removed from the cheeks. Mr Callahan thought that the original sketch had shown the assailant as being a bit too stocky and heavy set. He said he was still not totally happy with the modified sketch, but thought, from what he could remember, it was a bit of an improvement on the original.

25. Subsequently, using a photograph of the applicant, the police artist made up a photoboard comprising 12 photographs, the eighth of which was a photograph of the applicant. The artist described the photograph of the applicant as "a very shocking-looking photograph" and, as a consequence, he said he had to "actually deteriorate" the rest of the photographs in order to match the applicant's photograph so that he would not be prejudiced. This was also achieved by the use of a computer. The photoboard was shown to Mr Howley on 20 December 1996. In his evidence, he indicated that he was unable to identify his assailant either from this photoboard or from a subsequent photoboard which had been compiled following the

(Page 12)

applicant's arrest. However, the evidence of Detective P Potthoff, admitted without objection and not being the subject of any ground of appeal, was that Mr Howley indicated to him that nine of the photographs on the first photoboard bore no resemblance to his assailant, but that three of them, numbered 5, 7 and 8, had some similarity to him. The photoboard was shown to Mr Callahan on the same day. He indicated that the same photographs, numbered 5, 7 and 8, had some resemblance to the assailant, but as with Mr Howley, he was unable to select any particular person from the board as being the assailant. This information was contained in Mr Callahan's statement to the police.

26. At the preliminary hearing, under cross-examination by counsel for the applicant, Mr Callahan had identified the photographs numbered 11 and 8 as being probably similar to the assailant and 3 and 12 as being possibly similar. At the trial, Mr Callahan said that he could not at that time be 100% sure of the numbers on those photographs which he did not eliminate. He thought, however, that he had given as possibilities photographs 5, 8 and 11. Those discrepancies in the selection of the photographs by Mr Callahan formed the basis for an extended cross-examination on the part of counsel for the applicant.

27. Mr Longworth was unable to identify as the assailant any of the persons whose photographs were on the two photoboards which included a photograph of the applicant.

28. It is to be noted that the photoboards containing a photograph of the applicant were initially introduced into evidence by counsel for the applicant, although they were later put to its witnesses by the prosecution. Counsel for the defence used the evidence in relation to the photoboards to demonstrate the uncertainty of various witnesses regarding their identification of the applicant.

29. On 17 January 1997, Mr Longworth and Mr Callahan were requested by Detective Potthoff to go to a night-club called Bronsons in Joondalup where, he said, there was a chance that Mr Howley's assailant would be. Mr Longworth and Mr Callahan were driven to the night-club and entered the premises on their own, unaccompanied by any police officer. Mr Longworth was unable to identify anyone at the night-club as being the assailant. Mr Callahan, however, claimed to recognise one of the two security officers stationed on the door as being the assailant. The person he identified was the applicant. Mr Callahan advised the police officers, who had been waiting outside the night-club, as to his identification of the applicant, saying that this was definitely the person.

(Page 13)

30. Mr Callahan was extensively cross-examined at the trial as to whether, when he went into Bronsons, he had a mindset that the assailant could well be a bouncer. His response was that he was of a completely open mind and that he went in there to do exactly what he had been requested to do, that is to say, to go inside and have a look around. He accepted that, at the time of the assault at the Post Office Night Club, it appeared that the assailant was possibly known to, or part of, the security staff. He was adamant, however, that the person he identified at Bronsons was the person he had seen on 13 October 1996. Asked whether his appearance was identical to that of the assailant, he replied, "Yes it was", and insisted it was the same person and that he knew that the applicant was the assailant. In re-examination, he was asked about whether he had the idea on the night of the attack that the assailant was either known to the security officers or was himself a bouncer. He replied, "I didn't have any opinion on that night. I can only say what happened and what appeared."

31. On the morning of the commencement of the preliminary hearing in the Central Law Courts on 17 July 1997, Mr Howley claimed that he identified the applicant as the person who had attacked him. His evidence was that, having spoken to the Crown Prosecutor on that morning, he was sitting outside the court. There were people to his left and to his right. He did not know who they were or why they were at the court, and he said he "just turned and had a look and seen the guy that assaulted me. I seen a side - I looked at him and didn't think nothing of them and then I seen a side – Well, I looked at all the people around me obviously and thought nothing - didn't think anything of it and then he turned his head to the side and I picked him straightaway, 100 per cent - picked him straightaway." In amplification of this evidence, Mr Howley said that, when he was being assaulted, he had his head right beside his assailant's head. This was, he claimed, about the only part of the assault he remembered, and the view which he then had was the view he had when he recognised the person outside the court. It was, he said, the shape of his face, and that of his nose in particular. It was not seriously suggested that the applicant was so placed outside the court as to be recognisable as the accused person.

32. Under cross-examination, Mr Howley acknowledged that he had gone to the preliminary hearing expecting to see the assailant in the court, but he said he had not expected him to be outside the court. He had not recognised the applicant when he had first sat down. He said his mental picture "was nothing like what he looked like when I seen him" until he saw the applicant's profile, and then the memory came back to him.

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33. Mr Howley was fully tested in cross-examination. Indeed, the consequence of the cross-examination was to let in the following part of his evidence at the preliminary hearing:

"The last thing my right eye saw during the assault the last thing I saw was somewhere during the assault we had our heads together and I looked to my right and saw a side profile of his nose. We were that close and that's what I remembered. It is definitely him."

34. It appears that Mr Howley had not mentioned this view of his assailant in his statement to the police, although at the time of making that statement, he had not made any positive identification of the applicant. Having regard to a photograph of the applicant which was in evidence, and which showed the applicant in profile, it may well have been that the jury formed the view that the applicant did have a somewhat distinctive profile.

35. Mr Callahan was shown another photoboard on 4 or 6 March 1997 and he was asked if he could identify amongst the 12 photographs a bouncer at the Post Office Night Club. He correctly identified a photograph of Dennis Tucker as being one of the doormen who was in the laneway while Mr Howley was being assaulted. The applicant's photograph was not shown on this board. This, no doubt, would have said something to the jury concerning Mr Callahan's ability to identify people after a lapse of time.

36. A third photoboard, comprising 12 photographs, the eleventh of which was a photograph of the applicant, taken after his arrest on the charge of which he was convicted, was shown to Mr Callahan on the same day. He identified the applicant's photograph as being a photograph of the assailant. The same photoboard was shown to Mr Howley who, according to Detective Potthoff, indicated that photographs 3, 6 and 11 bore some resemblance to his assailant. He eliminated the remaining nine photographs. Mr Howley was unable to make a positive identification of his assailant. In his own evidence, he said simply that he was unable to identify his assailant from the board. The photographs showed the full faces of the subjects. They did not show them in profile.

37. The applicant's evidence at his trial was very brief. He denied having been at the Post Office on the night of the assault and, indeed, the evidence was clearly that he was not on duty on that evening. He said he did not know Mr Howley and that he had never seen him before. That

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was common ground. From March 1996, he had been a part-time security officer or doorman at the Post Office Night Club, working there normally on Wednesday and Thursday nights. He worked at Bronsons in Joondalup on Friday and Saturday nights. He was not sure where he had been on the night of 13 October 1996.

38. The nature of the warning which should be given by a trial Judge as to the danger of convicting on identification evidence which has been challenged was considered by the High Court in the leading case of Domican v The Queen (1992) 173 CLR 555. The trial Judge in that case had given the jury a very full direction on the dangers of acting on identification evidence and, in particular, he had instructed them that there were four important matters to be considered, namely, whether the witness had previously known the person identified; how good an opportunity the witness had to get a clear picture of the person identified; how long had elapsed between the event and the first identification; and what were the circumstances and nature of that first identification. However, his directions were held to be inadequate, essentially by reason of their being general in nature and not being directed specifically to the weaknesses in the evidence before the jury. At 560, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:

"In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice."

39. After referring to s405AA of the Crimes Act 1900 (NSW), their Honours continued, at 561-562:

"Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused .... Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately

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depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of a case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.

The foregoing statements are applicable to all criminal cases including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence. Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed "as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case". [Smith v The Queen (1990) 64 ALJR 588, at 588]. A warning in general terms is insufficient. [Kelleher v The Queen (1974) 131 CLR at 551]. The attention of the jury "should be drawn to any weaknesses in the identification evidence". [Kelleher v The Queen (1974) 131 CLR at 551]. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. [Davies and Cody v The King (1937) 57 CLR 170 at 182-183]. It follows that the trial Judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence." (some footnotes omitted)

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40. The learned trial Judge indicated to the jury that the question of identification was going to cause them the most concern in this case. She described it as the crucial issue and emphasised that the question of identification required particular scrutiny. She said, after dealing with some preliminary matters:

"Of course, the question is, have the prosecution proved and proved beyond reasonable doubt that it was Mr King who was the attacker. Now, because that is the issue that you have to decide on, there are some important things that I have to say to you in relation to the evidence that suggests, the prosecution say, in fact establishes beyond reasonable doubt, that it was Mr Jeff King who was the attacker. It has been the experience of courts, and you might find yourself in your own aspects of your life, that there are many circumstances perhaps in which you have made a mistake about somebody's identity, either in terms of seeing somebody in the street and assuming it's some friend you know or something of those kinds of circumstances.

It has certainly been the experience in courts that there are some times when people make mistakes about somebody's identity. That's particularly the case when the person who's making the identification, trying to identify somebody, doesn't know that person. You might think it's not difficult in many circumstances for somebody to say, "Well, look, I saw so and so in the nightclub" or, "I saw so and so in a shop or at work" and I can say who that person was because I know that person very well, either because they're a friend of mine or because I worked with them for a long time, or for one reason or another I have come across them very often. So when I look at them, I look at them, I see what I'm looking at, I know the person, I can say who that person is.

Now, generally speaking, in most circumstances with that kind of identification there isn't too much difficulty you might think, particularly when the person has had an opportunity of looking at them properly and they are not seeing them in the distance and it's not a fleeting glimpse, the kind of thing in which you more commonly make a mistake, but it is the experience of the courts and you might find yourself perhaps a fairly obvious thing, that it is very easy to make a mistake when you're trying to identify somebody by seeing someone you don't know in a particular situation and later on saying, "Yes, that's the person I saw",

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because you don't know them and you are trying to identify them in terms of perhaps some physical images that you saw at the time and then marrying that up with the person that you are seeing at another time, whether that's through a photograph or through actually seeing them again as, for example, what occurred at Bronson's Nightclub.

You would no doubt find without too much difficulty that you would have to scrutinise their evidence very carefully because quite obviously there are areas in which mistakes can be made. So what you have to do in a case such as this when identification is being made from people who did not see or know that person before - and you will remember that all of the witnesses said that none of them had known either Mr Howley or the person who was attacking him before that night.

So what you have to do is look at how the identification was made when it was made by the witnesses who have made what they call an identification. You have to look at all of the circumstances. You look at how they made - what opportunity they had for seeing the person on the night of the attack and I will speak to you about that in a moment in a little bit more detail in relation to the witnesses. You have to look at, for example, how long did the person have to look at the attacker, what were the lighting conditions like, was there any obstruction in the way?

For example, you have heard reference that the witnesses who were outside in the street were looking through a picket fence and they were looking through gaps. You look at what the general circumstances were. There was alarm. Some of the witnesses said they were shocked, they were worried about what was happening, they were trying to get help. So that is also a factor that you take into account. That is what happens on the night. So you have to look at all of that; as I said, things like lighting, circumstance, how long did they have to look at the attacker. Was it a very quick thing, were other things happening, were they distracted by other things they were doing?

Then you look at the circumstances in which they make an identification. How much later was that? Was that something that was done soon after? Are there any inconsistencies about their description, the physical description they have given about

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the person they say was the attacker that night? Were there any circumstances that when they finally made - if they made this identification - was there anything that suggested that to them, some kind of psychological suggestion?

An example was given to you, I think, by Mr Utting that it's what is called a "dock" identification; and it has always been considered that if somebody walks into court, look[s] around and sees a defendant sitting in a dock they say, "That was the man who robbed the bank or who attacked me" etc, that that doesn't always carry a lot of weight, because there is a strong psychological suggestion that the person who is standing in the dock is the person who did it and that people often make that kind of identification and if that is all that they have got to go on, it's not usually given very much weight because of the very strong suggestion. And it has been suggested to you that there is an aspect to that in the identifications that were made in this case.

So what you will have to do in this case is to look very carefully at the witnesses who have given evidence relating to identification. Bear in mind what I have said and examine it, because it is true that because of the risks that there can be, that people can make mistakes in terms of identifying somebody, particularly somebody that they don't know and haven't seen before, that it can be dangerous to convict somebody on that evidence alone unless you were satisfied as to its accuracy and satisfied beyond reasonable doubt.

In order to look at that evidence you would have to scrutinise it very carefully, bearing in mind what I have said. You have to look at what were the circumstances in which the person saw the person on the night of the attack. Was there anything there - you know, look at the lighting and all those sorts of things that I have mentioned to you. Then you look at in what circumstances and how much later did they actually make an identification. Did they say, "Yes, this is a picture" or "This is the person that I saw that night".

Do delays make any difference to their identification? Were there any factors there that would perhaps suggest to them that a particular picture or a particular person was the person they had seen before and you look at all of that evidence. You scrutinise it very carefully and you could only act on that evidence in terms of

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an identification issue if after having subjected it to that very close and careful scrutiny and bearing in mind the warnings I have made, you were satisfied beyond reasonable doubt that it establishes that it was the accused person who was the attacker on that night."

41. Her Honour then proceeded to go through the identification evidence in some detail. She pointed out that Mr Howley had not been able to identify the attacker from the photoboards, although he was able to say that certain persons in the photographs were not the person who attacked him, and she described how he came to identify the applicant as a result of recognising his profile. In this respect, she pointed out that, at the time of the attack, Mr Howley was not wearing his glasses; but he did not need them to see things up close. She drew attention to Mr Howley's description of his attacker as being a bit shorter than he was. The attacker was, he thought, wearing black trousers and a black vest or top with long sleeves. He described him as having short black hair and as being clean shaven.

42. She then reminded the jury of the argument of counsel for the accused that Mr Howley's identification had been made while he was outside the court just before the preliminary hearing, and that it might have suggested to him that somebody waiting outside the court might be the person who had attacked him. The jury were told that this was one of the factors they would consider, bearing in mind Mr Howley's own evidence that he had not expected to see the applicant outside the court, but had expected to see him inside the court.

43. She took the jury through the evidence of Mr Trumino and Mrs Winterburn, pointing to the differences between the witnesses regarding the lighting of the laneway. Her Honour pointed out that Mr Longworth had been unable to identify the assailant at Bronsons Night Club. She said he had described the assailant as being approximately 5'10", with a solid build, short cropped hair and what he said was "three days' growth or something in terms of facial hair", although in fact these were the details of the description put to him by counsel for the applicant and merely assented to by him.

44. She went in some detail through Mr Callahan's evidence, pointing to certain discrepancies, particularly in relation to his identification of the assailant in the first photoboard. At each step, her Honour put the defence and prosecution arguments, including the defence submission that the jury had to look at Mr Callahan's evidence with great caution and that it was

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not reliable, although this was not by reason of his not being an honest witness. That was simply a reiteration of her Honour's original direction that the evidence had to be scrutinised very carefully. The jury were advised to take into account the fact that Mr Longworth was not able to identify the attacker at Bronsons on the night of 17 January 1997, although Mr Callahan had been able to do so.

45. Her Honour summed up the position by pointing to the positive identifications by Mr Howley and Mr Callahan and instructed the jury, "You have to look at that very carefully and you have to look at it bearing in mind the warnings that I have given you about the dangers of identification evidence and the need to scrutinise it very carefully in the way that I have described because of the difficulties that can arise and the mistakes that can be made". She added:

"You must remember that I said mistakes can be made from witnesses even though they are doing their very best to be honest witnesses because you must bear in mind that they may not have had an opportunity of seeing things accurately; their evidence may not be accurate either because of lack of opportunity, because of time and the effect that it has on us and perhaps also because of the psychological suggestions and that's, of course, up to you to determine how much of their evidence may be affected by those psychological suggestions."

46. The learned trial Judge pointed out, finally, with respect to identification, that the two persons who had identified the applicant did not strengthen one another's evidence because their identifications were quite separate. - see R v Weeder (1982) 71 Cr App R 228 and cf R v Burchielli [1981] VR 611 at 616 and R v Haidley [1984] VR 229 at 231, 248, 251-2.

47. The jury having retired, counsel for the defence requested certain redirections on the issue of identification. Her Honour agreed to redirect the jury and, on their return to the court, she pointed out to them that Mr Howley had not mentioned anything about remembering seeing some aspect of his assailant's face when he had made his statement to the police. She pointed to his having described his attacker as being clean shaven, in contrast to the other identifications which described a three day growth or a goatee beard, and she pointed out the conditions under which the witnesses viewed the fight in the alleyway, having to look through gaps in the gate.

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48. Her Honour concluded by stressing that, on the occasions on which she had referred in her summing up to the case being put forward by counsel for the applicant, for example, in relation to the length of time which had elapsed, the circumstances in which the witnesses had an opportunity of seeing the attacker in terms of light, obstruction and other distractions, and the difficulties which beset their actual identification in terms of Mr Howley making his identification outside the court, Mr Callahan making his identification at the night-club, and the circumstances in which the identikit pictures were prepared by the Police Department, she was intending to convey to the jury that these were considerations which, depending upon their findings, could weaken the strength of the identification evidence. She said that she also wanted to make it quite clear that they were considerations which she was suggesting to the jury in strong terms they needed to look at very carefully, because, she repeated, they were considerations that, depending on their findings, could weaken the identification evidence and that was why the jury needed to look at them and scrutinise them very carefully.

49. Under the first ground of appeal, that the learned trial Judge erred in law in failing adequately to direct the jury in terms of Domican's case (supra), it was argued for the applicant that there were a number of difficulties in the Crown case relating to the identification of the offender, many of which, it was conceded, the learned trial Judge had canvassed; but it was contended that her Honour failed to point out to the jury the inherent weaknesses and dangers in the Crown case. I am unable to accept that submission. What Domican requires is a warning as to the dangers of convicting on evidence, the reliability of which is disputed. It was a warning which was required in this case, and not, as senior counsel in effect contended, a direction that it would be dangerous to convict on the identification evidence in this case, which would be akin to a direction to acquit. Moreover, as the High Court made clear, the terms of the warning need not follow any particular formula. Her Honour did indicate that it could be dangerous to convict on the evidence before the jury alone. The fact that she followed this up by adding, "unless you were satisfied as to its accuracy and satisfied beyond reasonable doubt", does not appear to me substantially to weaken the warning, having regard to the whole of her direction.

50. The discrepancies in the evidence relating to the clothing and appearance of the assailant were carefully pointed out by her Honour in the context of her directing the jury to scrutinise the evidence very carefully and to remember that there is a risk of people making mistakes. Her Honour fully canvassed the evidence regarding the photoboard identifications and

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pointed out the discrepancies which it contained, although it is to be recalled that the photograph of the applicant on the first board was greatly lacking in clarity.

51. The learned trial Judge went through the circumstances of Mr Howley's identification of the applicant outside the courtroom at the time of the preliminary hearing. It had been suggested that the identification took place "in a courtroom setting where Mr Howley had been expecting to see the man in question". This identification, however, was not made inside the courtroom. It was made in a place where, if the jury accepted his evidence, Mr Howley was not expecting the applicant to be, believing that the applicant would have been "out the back". He said he expected to walk into the court and then to see the accused. If Mr Howley's evidence was accepted by the jury, there was nothing to suggest that the applicant was other than simply one of a group of people waiting outside the court, with nothing to identify him as being an accused person. This case is quite different, on the facts, from Grbic v Pitkethly (1992) 65 A Crim R 12, in which, although the accused had not been identified while sitting in the dock, he had been identified while sitting with his counsel in a courtroom which had no dock.

52. Another suggested weakness in the evidence was that Mr Howley usually wore glasses, but that he was not wearing them on the night in question. Her Honour drew the jury's attention to this fact. His evidence, however, was that he used his glasses for distance sight only and that he did not need them for close up vision. Furthermore, the report of an ophthalmologist with respect to his injuries noted that Mr Howley's glasses were for "a low level of myopia". The submission misses the point of Mr Howley's evidence that, at the material time, his head was alongside his assailant's head. There was no basis for requiring her Honour to comment further than she did on Mr Howley's not wearing glasses at the time of the assault. Nor do I consider that her Honour was required to make any further comment than she did in relation to the lighting at the scene. It was never suggested that the lighting was such as would not have enabled the various witnesses to see what they claimed to have seen.

53. It was also contended that one of the difficulties in the Crown case relating to identification was that some of the witnesses had consumed alcohol prior to the events in question. That may be accepted, but there is no basis for an argument that any of them had consumed alcohol to such an extent as to diminish their powers of observation and perception. It was not put to the witnesses in that way.

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54. Her Honour drew to the attention of the jury the evidence that the various witnesses had to look through gaps in between the pickets on the gate. This was, she pointed out, a consideration that could weaken the strength of the identification evidence. But again there was no suggestion put to the various witnesses that they were unable to see what they claimed they had seen. It must be appreciated that the events in the laneway which the witnesses were observing extended over a not insubstantial period of time. This was not a case of the observers having only a fleeting glimpse of the offender. None of the witnesses suggested that they had other than a clear view of the incidents which they described, notwithstanding that they had to look through the gaps in the gate.

55. Towards the end of her summing up, her Honour provided yet another warning. She said:

"You have to look at that [the identification evidence of Mr Howley and Mr Callahan] very carefully and you have to look at it bearing in mind the warnings that I have given you about the dangers of identification evidence and the need to scrutinise it very carefully in the way that I have described because of the difficulties that can arise and the mistakes that can be made."

56. None of the particulars relied upon on behalf of the applicant under the first ground of appeal have been established.

57. It was contended for the applicant in support of the second ground of appeal that the purported identification by Mr Callahan just over three months after the incident was fraught with danger in that

58. (i) he had only observed the incident through gaps of a picket "fence",

59. (ii) that both he and Mr Longworth were under the impression when they were taken to Bronsons that they were probably going to be asked to identify a security officer or doorman,

60. (iii) that there were only two doormen on duty at Bronsons on the night in question,

61. (iv) that Mr Longworth was unable to identify the applicant from the photoboard prior to going to Bronsons and failed to identify him, and

62. (v) that Mr Callahan was unable to single out the applicant on photoboards prior to going to Bronsons.

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63. I have already discussed the first particular and rejected it. This issue was sufficiently canvassed by her Honour.

64. The second particular is somewhat ambiguous. There was certainly no evidence that any suggestion was made by the police that the assailant had been a security officer or doorman, let alone a security officer or doorman at another night-club. The evidence of Mr Longworth was that Detective Potthoff had requested them to have a look around and see if they could spot anybody who was suspicious or who they thought might be the assailant. He acknowledged that, at the time of the assault, it was his feeling that the assailant could well have been a bouncer and that he was known to the other bouncers, but he did not identify anyone at Bronsons, and his failure to do so, although a proper subject of comment, was explicable on the basis that his powers of observation and his memory were inferior to those of Mr Callahan.

65. Mr Callahan's evidence was that, on the night he went to Bronsons, he did not have any opinion that the assailant was either known to the security officers or that he was a bouncer. The request which was made to him was that he should go into the night-club, have a look, and see if there was anyone inside the club whom he could recognise as being the assailant. There was, in fact, one answer by Mr Callahan in cross-examination that appears equivocal in relation to his having a mindset that the assailant could well be a bouncer, but it was coupled with the statement that they were going to Bronsons to pick up the assailant or see if they could identify him. In re-examination, as I have indicated, Mr Callahan, in response to the question as to whether he actually thought or whether it was in his head that the assailant was either known to the security or was a bouncer, he responded, "I didn't have any opinion on that night. I can only say what happened and what appeared." Whether or not there were only two doormen on duty at Bronsons that night was not of significance in the circumstances.

66. The fact that Mr Longworth was unable to identify the applicant as the assailant at Bronsons was pointed out by her Honour. His inability to identify the applicant from the photoboard prior to going to Bronsons is of little consequence, it being generally accepted that the photograph of the applicant which was presented to him was of very poor quality. The same is true of Mr Callahan's inability to select one photograph on that photoboard as being that of the offender. Mr Longworth's later failure to identify the applicant did not call for further comment. It did not directly affect the identifications made by Mr Howley and Mr Callahan.

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67. It was then suggested that there could have been a displacement effect in connection with Mr Callahan's identification of the applicant at Bronsons. The passage in the dissenting judgment of Stephen J in Alexander v the Queen (1981) 145 CLR 395, at 409, which was relied upon by the applicant for this purpose, was as follows:

"Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face to face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting."

See also Davies and Cody v The King (1937) 57 CLR 170 at 181-182.

68. In this case, Mr Callahan was not shown only a single photograph. He was shown 12 photographs of poor quality. He did not single out the applicant on the first photoboard. The applicant was merely one of three possibilities. In my view, no further direction was required from her Honour in addition to that which she gave.

69. It was further contended for the applicant that the attempted identifications by the various witnesses who were shown the photoboards were inconclusive and unsatisfactory. That may be accepted, otherwise than in relation to Mr Callahan's identification of the applicant on the photoboard produced to him in March 1998, after he had identified the applicant at Bronsons. The Crown was not, however, relying upon any identification by Mr Callahan of the applicant on the first photoboard. That evidence was relied upon by the defence to demonstrate that Mr Callahan had been unable to single out the applicant. Her Honour made it clear that the critical identifications were those of Mr Howley outside the court on the day of the preliminary hearing and Mr Callahan's identification of the applicant at Bronsons Night Club. Her Honour pointed out that there was not a positive identification of one particular person from the two photoboards that contained a photograph of the applicant. In the latter respect she was in error, but the two acts of identification which her Honour told the jury they were to consider were those of the applicant in person. In my opinion, in the circumstances, the directions of her Honour were adequate.

70. R v Pitkin (1995) 80 Cr App R 302 was relied upon by the applicant; but that was a case in which an indecisive identification of a photograph of

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the accused on a photoboard was held to be inadequate in itself to sustain a finding that the accused was the offender. That is not the present case.

71. The jury were directed in relation to the "dock" identification by Mr Callahan that such identifications do not always carry a lot of weight because there is a strong psychological suggestion that the person who is standing in the dock is the person who did it. This direction was not far removed from the observation by Mason J in Alexander v The Queen (supra) at 426-7 that there is little probative value in dock identifications. Although her Honour's direction could well have been stronger than it was, it must be borne in mind that this identification of the accused in the dock was not the first occasion on which Mr Callahan had identified the appellant. It was a case of evidence being tendered of the earlier act of identification at Bronsons, followed by the commonly asked question as to whether the person identified could be seen in court - see Cross on Evidence, 5th Australian edn, para 1410. It was not an identification for the first time.

72. The use of the photoboards was not entirely satisfactory. However, it is to be appreciated that they were first introduced into evidence by counsel for the applicant for the purpose, no doubt, of demonstrating the inability of witnesses positively to make identifications of the applicant and the witnesses were cross-examined accordingly. Furthermore, it is doubtful whether the evidence of Detective Potthoff was admissible to add to Mr Callahan's evidence regarding his inability to select one of the photographs as being that of the assailant - see Alexander v The Queen (supra) per Gibb CJ at 403-407 and cf Murphy J at 434. This was not, however, a matter which was raised in the grounds of appeal or in argument in the course of the hearing of the application, and it would not, in my view, have had any effect upon its outcome.

73. The fourth ground of appeal complains of the failure of the trial Judge to direct the jury in terms of the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298 in relation to the Crown's not calling Dennis Tucker as a witness. The particulars of this ground were that the evidence of the witnesses led to the conclusion that the obvious person to give evidence as to the identity of the assailant was Tucker, that Tucker escorted the complainant from the premises shortly before the incident and that he was an eye witness to the incident, but that he did not give evidence at the trial and no explanation as to his absence was proffered by the Crown.

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74. In R v Apostilides (1984) 154 CLR 563, at 575, Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ identified six general propositions applicable to the conduct of criminal trials in Australia. The principles which are presently relevant are:

"1. The crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown."

"4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge."

"6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."

75. If the prosecution does not call a witness, the trial Judge may direct the jury as to the consequence of his not having been called, including the possibility of an inference that the witness would not have assisted the Crown case - see Whitehorn v The Queen (1983) 152 CLR 657 per Deane J at 664 and per Dawson J at 674. See also Richardson v The Queen (1974) 131 CLR 116.

76. In the present case, Tucker's name did not appear on the back of the indictment. There is no suggestion that the defence sought to have him called by the Crown, none of the police witnesses were examined regarding his absence and, indeed, nothing was said in the course of the trial as to his not giving evidence. We were, however, informed by senior counsel for the applicant that Mr Tucker had initially been charged with the present offence, presumably as an accessory, but that, at the time of the preliminary hearing, he was overseas and, the Crown deciding not to proceed against him, he was discharged at that hearing. We were further informed that "everyone involved in the case [other than the jury] knew what had happened about Tucker". The clear inference is that he was still

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overseas at the time of the hearing. It is not known what he was capable of saying.

77. In the circumstances of this case the failure of the Crown to call Tucker was explicable, and there is no cause to doubt that the reason was known to the defence at the trial. There is certainly no claim that it was not known. I do not consider in the circumstances that there was any requirement for the jury to be directed that they could infer that the evidence of Tucker would not have assisted the Crown case. It appears to me that the matter was sufficiently covered by the learned trial Judge when she said at the commencement of her summing up:

"There isn't any room for conjecture or guesswork. It's often the case, I think, when you are listening to some of the facts in a criminal trial, that you think, "Oh, it's a pity we didn't hear from so and so. It's a pity the video camera wasn't going in that back alleyway so that we could watch what happened, if it had been turned on, and have it replayed." The fact of the matter is there isn't any video of what took place. You can't guess, you can't try to think about what somebody might have said if they had been called to give evidence. You have to just rely on the evidence that you have heard yesterday and today."

78. The fifth ground of appeal is that the verdict was unsafe and unsatisfactory. The question to be answered was enunciated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493 as follows:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [See Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR at 532; Knight v The Queen (1992) 175 CLR 495 at 504-505, 511]. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full

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regard to those considerations [Chamberlain v The Queen [No 2] (1984) 153 CLR at 621]."

79. The particulars of this ground of appeal are that the Crown case lacked any cogency or consistency as to many important aspects of the identification evidence, including the description of the clothing worn by the assailant, the description of his appearance and the circumstances in which the incident was observed by the witnesses. It was also contended that the circumstances of the photoboard identification, the circumstances of the complainant's identification of the applicant, the circumstances of the identification of the applicant at Bronsons and the failure of the Crown to call the witness Tucker, coupled with the lack of a direction from the learned trial Judge as to the inference to be drawn from this failure, rendered the verdict unsafe and unsatisfactory in all the circumstances of the case.

80. In the course of the argument with respect to this ground, the absence of "Craig" as a witness was referred to. As was the case with Tucker, there was no issue raised by the defence at the trial regarding his absence, and without any knowledge of what he would have been able to say, one is left to speculate. I do not consider that there is any merit in this point. His absence at the trial passed without question, and the situation was adequately dealt with by her Honour's direction quoted in connection with the previous ground of appeal.

81. This ground essentially involved a reiteration of the previous grounds. It overlooks the fact that there were two unambiguous identifications of the applicant. The jury had the advantage of seeing and hearing the witnesses who made these identifications and I am unable to conclude that, having been adequately directed, it was not open to them to find beyond reasonable doubt that the applicant was guilty of the offence charged.

82. Whilst I would grant the applicant leave to appeal against his conviction, to the extent that leave was necessary, I would dismiss the appeal.

83. I turn now to the Crown appeal against sentence.

84. The injuries received by Mr Howley in the assault were serious. He was admitted to Royal Perth Hospital complaining of a painful jaw on the right side, a painful swollen right eye, which he was unable to open, and teeth malocclusion. The medical report on his condition was relevantly as follows:

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"On examination, he was drowsy and unable to open his right eye. There was a large abrasion and swelling 2cm x 3cm over his left frontal bone and right periorbital bruising and swelling. There was a swelling on the lateral aspect of his right face and his nose was deviated to the left. His jaw opening width was 3cm and there was blood in his mouth. He had an abrasion on his right neck and grazes over the proximal interphalangeal joints of his second, third and fourth fingers. He had no back, neck or rib tenderness. There was no haemotympanum. Limited examination of his right eye was [not] possible due to marked bruising and swelling, but a traumatic hyphaema was evident. He was seen by the Ophthalmology Registrar ... who diagnosed a right ruptured globe with a flat anterior chamber on clinical examination. X-rays were performed which showed no skull vault fracture but a comminuted fracture through the right maxillary sinus with extension through the lateral wall and the inferior orbital margin [where] there was considerable displacement.

They showed diastasis of the zygomatic-frontal suture on the right and a displaced fracture of the right zygomatic arch. There was extensive pacification within the right maxillary sinus. An air-fluid level was present within the left maxillary sinus although there was no associated fracture at this site. No mandibular fracture was identified."

85. A right malar fracture and a fractured nose were confirmed on later examination. After two operations on Mr Howley's right eye, it had to be removed and replaced with a glass eye. His teeth had to be wired, a metal plate had to be inserted, and he has had to undergo considerable plastic surgery.

86. In her sentencing remarks, her Honour pointed out that Mr Howley had been, for some reason which was not apparent, singled out for some kind of reprisal. She stressed the severity of his injuries and observed that there was really nothing in the circumstances of the offence that would indicate any mitigating factors. On the contrary, she said, the attack, being the result of some kind of reprisal, was carried out in a cold blooded, methodical manner. She correctly took the view that the only appropriate disposition was a term of imprisonment, the aspects of general deterrence and the protection of members of the community calling for no other disposition. She imposed a sentence of 4½ years imprisonment.

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87. The applicant was born on 24 August 1967 and his occupation was that of a doorman. The antecedent report showed his then employer as Bronsons Night Club and that he had previously been employed as a timber specialist and at the Post Office Night Club. The applicant's record of convictions was such that her Honour regarded him as coming before the court as if he were a first offender. He had nine convictions in the Court of Petty Sessions, mainly for traffic offences. His antecedents were favourable. A considerable number of personal references provided to the court indicated that he had been regarded as a hard working and competent worker and a reliable employee. A number of the referees also indicated that, in their experience, the applicant had never displayed aggressive or violent behaviour at any time. This was, however, as her Honour observed, completely at odds with the circumstances of the offence.

88. Her Honour suggested that, if the applicant had not come before the court as a first offender with the personal characteristics for which his referees had vouched, and enjoying the very high opinion of his family and friends and others who had known him, she would have considered that a prison term in excess of six years might have been appropriate.

89. In considering the length of sentence, her Honour referred to the decision of this Court in Bockfuss v The Queen, unreported; CCA SCt of WA; Library No 950063; 22 February 1995, in which the court declined to interfere with a sentence of five years' imprisonment for the offence of doing grievous bodily harm, the maximum sentence for which at the time was seven years' imprisonment (s297 of theCode). Her Honour said, referring to the offence of grievous bodily harm, the maximum sentence for which had recently been increased to 10 years' imprisonment and to the offence of which the applicant was convicted, doing grievous bodily harm with intent to do grievous bodily harm (s 294 of theCode), the maximum sentence for which is 20 years' imprisonment, that the facts of many of the sentencing precedents which she had consulted indicated that there were many circumstances where, for one reason or another, the lesser charge was laid, but the circumstances appeared to be on all fours with the nature of the present attack.

90. Obviously, each case depends upon its own particular circumstances, but an offence under s294 of the Code, which requires the proof of an intention to do grievous bodily harm is in a substantially higher category than an offence under s297, which has no requirement for the proof of any intention. In my opinion, her Honour fell into error in relying upon the level of sentences imposed for the lesser offence.

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91. Counsel for the Crown has pointed to a number of aggravating factors, including the deliberate and premeditated circumstances of the offence, involving as it did the deliberate luring of the victim into what was effectively an ambush, the continued systematic kicking of a helpless victim about his head and face after it must have been apparent that he could offer no resistance or defence to the attack, and the very serious permanent injuries inflicted upon him.

92. In the circumstances of this case, it is not unexpected that there should be no explanation forthcoming from the applicant after his conviction as to why he had offended in this way, but it nevertheless follows that he is unable to demonstrate any remorse in relation to his conduct towards his victim.

93. The principles applicable to Crown appeals against sentence, and the element of double jeopardy which results from such appeals, are sufficiently well known not to require restatement - see generally R v Grein [1989] WAR 178, at 179-180. Having regard to all the circumstances, in my view the starting point adopted by the learned trial Judge was too low and the deductions in recognition of matters personal to the applicant were rather too high, resulting in a sentence which is not sufficiently commensurate with the seriousness of the offence. There is a need to demonstrate the community's abhorrence of offences of this nature, and a need to deter others who may be minded to commit such offences. I consider that the starting point, having regard to this being a Crown appeal, should be seven years, which should be reduced to six years, taking into account the identified personal factors. I would allow the appeal accordingly. The applicant's eligibility for parole should stand.

94. MURRAY J: I have had the advantage of reading in draft the reasons of decision published by Kennedy J. I entirely agree with his Honour's conclusion that although leave to appeal against conviction should be granted, the appeal should be dismissed. Further, in my opinion also, the Crown's appeal against sentence should be allowed and a sentence of 6 years imprisonment substituted for that passed by the learned trial Judge. I wish to express my agreement with his Honour's reasons for those conclusions to which I have nothing to add.