May v The State of Western Australia - [2018] WASCA 24

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MAY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 24

CORAM: BUSS P
MAZZA JA
CHANEY J

HEARD: 16 NOVEMBER 2017

DELIVERED : 1 MARCH 2018

FILE NO/S: CACR 164 of 2017

BETWEEN: JOSEPH BENEDICT JAMES MAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND KAR 25 of 2016

Catchwords:

Criminal law - Appeal against conviction - Aggravated home burglary and stealing - Identification evidence - Whether miscarriage of justice by reason of single photograph being shown to victim - Whether miscarriage of justice by reason of trial judge's identification direction - Domican warning - Whether miscarriage of justice by reason of evidence said to be hearsay and speculation - Whether verdict of guilty unreasonable or not supported by evidence - Proviso

Legislation:

Nil

Result:

Extension of time to appeal granted
Leave to appeal granted on grounds 1 and 2
Leave to appeal refused on grounds 3 and 4
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms S King
Respondent: Mr L M Fox

Solicitors:

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

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

Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
Davies v The King [1937] HCA 27; (1937) 57 CLR 170
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
LBC v The State of Western Australia [2011] WASCA 201
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Murdoch v The Queen [2007] NTCCA 1; (2007) 167 A Crim R 329
Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Christie [1914] AC 545
R v Hallam (1985) 42 SASR 126; (1985) 18 A Crim R 221
Ritchie v The State of Western Australia [2016] WASCA 134
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

JUDGMENT OF THE COURT: The appellant seeks an extension of time to appeal, and, if granted, leave to appeal against his conviction in the District Court of one offence of aggravated home burglary contrary to s 401(2)(b) of the Criminal Code (WA) (the Code).
The appeal was filed approximately two months out of time. The delay has been explained in the affidavit of the appellant's lawyer, Sarah Helen King, sworn 11 August 2017. Having regard to the contents of that affidavit, we would grant the extension of time.

The charge, verdict and sentence

The appellant was charged as follows:
On 11 December 2015 at Nickol [the appellant], while in the place of Gary Smith without his consent, stole three mobile phones and a wallet containing money and sundry cards.
AND that the place was ordinarily used for human habitation.[1]
[1] The indictment which appears at blue green AB 1 was amended by order of Bowden DCJ on 28 April 2017, to delete a circumstance of aggravation, ts 29.
On 11 May 2017, the appellant was convicted of this charge after a trial before Stevenson DCJ and a jury. He was sentenced to 2 years 3 months' immediate imprisonment backdated to commence on 29 April 2017. He was made eligible for parole.[2]
[2] Blue green AB 3.

The grounds of appeal

The appellant relies on four grounds of appeal. As amended at the hearing, they are as follows:
1.The learned trial judge erred in law by failing to exclude from evidence the complainant's identification of the appellant in a still from CCTV footage on a mobile telephone at the crime scene, alternatively, the admission of the evidence occasioned a miscarriage of justice.
2.In the alternative to ground 1, his Honour erred by giving an inadequate direction with respect to the identification of the appellant by the complainant from viewing a photograph taken from the CCTV footage at the crime scene.
3.Hearsay evidence and speculation were wrongly adduced at trial, occasioning a miscarriage of justice.
Particulars
(a)Constable Netterfield's evidence that the reason he knew that the CCTV footage of the appellant that he viewed and recorded on his mobile telephone was recorded at 7.01 pm, was based on hearsay and speculation.
(b)The time that the CCTV footage was originally recorded, and viewed and then recorded by Constable Netterfield's mobile telephone was of crucial importance to the conviction of the appellant, thus [its] admission into evidence occasioned a miscarriage of justice.
4.The conviction was not supported by the evidence.
Particulars
(a)This is when particular regard is had to the fact that the State based the prosecution case on the CCTV footage of the appellant running near the complainant's house, being recorded and then being viewed at times which were impossible on the examination of the evidence.
(b)The time that the CCTV footage was originally recorded and viewed and the recorded [sic] by Constable Netterfield's mobile telephone was of crucial importance to the conviction of the appellant as it was asserted at trial that the footage was contemporaneous to the burglary.[3]
[3] The amendments to the grounds of appeal at the hearing were in respect of grounds 1 and 2. See appeal ts 6 and ts 10.
The question of leave to appeal on each of these grounds was referred to the hearing.[4]
[4] White AB 4.

The trial

In her opening address, defence counsel admitted that Mr Smith's house was burgled on 11 December 2015 and that the offender stole items of property from the victim's house. Those items of property were three mobile phones and a wallet containing money and sundry cards. The only issue for the jury to decide was identity; that is, whether the State could prove beyond reasonable doubt that the appellant was the offender. In his closing address, the prosecutor said that the State's case on identification was circumstantial.[5] One of those circumstances was that, shortly after the commission of the offence, a police officer viewed CCTV footage taken by a camera at the Comfort Inn which was next door to Mr Smith's house. The footage showed a man running down the driveway of the Comfort Inn. The police officer recorded on his mobile telephone a short excerpt and three still images from that footage. The police officer showed one of the images to Mr Smith who told the officer that the person in the image was the same person who had been in his house. The defence case as opened and closed was that, while the appellant was in the vicinity when the burglary was committed and he was the person shown in the CCTV footage and the still image shown to Mr Smith, he was not the offender. In essence, it was the appellant's case that the CCTV footage did not capture the events immediately after the burglary, but recorded the appellant innocently running laps in the neighbourhood.
[5] Closing address ts 4.

The evidence - the State's case

The State adduced evidence from Mr Smith[6] and three police officers: Detective Constable Abadi,[7] Detective Constable Hayes[8] and Constable Netterfield.[9]
[6] ts 68 ‑ 86.
[7] ts 87 ‑ 93.
[8] ts 95 ‑ 99.
[9] ts 103 ‑ 114.
Mr Smith testified that at about 6.00 pm on 11 December 2015 he returned to his home at Matebore Street, Nickol.[10] When he went inside, he put a bag on the kitchen bench which contained three mobile telephones and his wallet.[11] He grabbed a beer and went outside to the patio area. After 'unwinding a bit' he began to collect his washing.[12] As Mr Smith was taking his laundry inside, he saw someone in the kitchen through the flywire screen of the rear door. The person was male, Aboriginal, of average height who wore a brown T‑shirt that he believed had some white or yellow stripes on the shoulders. Mr Smith said that he had never seen the man before.[13]
[10] ts 68.
[11] ts 69.
[12] ts 70.
[13] ts 70 ‑ 72.
Mr Smith said that he went inside and attempted to grab the man as he went out the front door. In doing so, the man ran past him. Mr Smith said that he chased the man along the driveway and into the street. Mr Smith said that the offender turned left and then turned left again into the driveway of the next‑door property which was the Comfort Inn. Mr Smith did not pursue him beyond the start of the driveway at the Comfort Inn.[14] When Mr Smith returned to his house he noticed that the mobile telephones and his wallet had been taken from the bag on the kitchen bench.[15]
[14] ts 73.
[15] ts 73 ‑ 74.
Mr Smith telephoned the police and within 15 to 30 minutes two police officers came to his house (Detective Constable Hayes and Constable Netterfield). Mr Smith described the offender to the police officers, including the clothing that he was wearing.[16] Detective Constable Hayes took a statement from him and, as she did so, Constable Netterfield went elsewhere.[17] A short time later he returned. According to Mr Smith, Constable Netterfield asked him to describe the offender 'one more time'. After the appellant had repeated his earlier description, Constable Netterfield showed the appellant a single still image on his mobile telephone. He then asked Mr Smith to look at the image. He then asked Mr Smith if 'this was the guy'. Mr Smith replied, 'Yes'.[18] As will be seen, the single still image shown to Mr Smith by Constable Netterfield was an image taken from CCTV footage captured by security cameras at the Comfort Inn. The image has a time stamp at the bottom in yellow print of 19:01:06 on it. It was initially marked for identification as MFI 1. Later it was tendered in evidence as exhibit 4(a).
[16] ts 74.
[17] ts 75.
[18] ts 75 ‑ 76.
Under cross‑examination, Mr Smith estimated that the offence occurred at about 6.35 pm.[19] He agreed that 'it all happened pretty quickly'.[20] He agreed that he had a view of one or two seconds while the offender was in the kitchen.[21] Mr Smith said that the offender looked 'straight at [him]'.[22] Mr Smith said that when he entered the house the offender 'was still facing towards me'.[23]
[19] ts 77.
[20] ts 78.
[21] ts 78.
[22] ts 79.
[23] ts 79.
Under cross‑examination, Mr Smith was shown his statement dated 22 October 2016. He agreed that in that statement he said that he did not chase the offender. Mr Smith said, in substance, that the statement was incorrect.[24]
[24] ts 80.
Mr Smith described the lighting in his house as 'fine'.[25] Mr Smith reiterated the evidence he had given to the effect that he identified the offender as the same man in the image shown to him by Constable Netterfield.[26] He said the offender 'had a little rat tail on his hair'.[27]
[25] ts 82.
[26] ts 83.
[27] ts 83.
In re‑examination, the prosecutor took Mr Smith to another part of the statement dated 22 October 2016 in which he said that he followed the offender out of the house.[28]
[28] ts 86.
It appears from Mr Smith's evidence that he did not participate in a formal identification process such as by digiboard or an identification parade.
Detective Constable Abadi testified as follows. On 24 December 2015, he conducted a visually‑recorded interview (VROI) with the appellant. An edited version of this interview was tendered in evidence through this witness, along with five photographs. The edited recording was marked as exhibit 3 and the photographs were marked as exhibit 4(a) to 4(e).[29]
[29] ts 88, ts 90.
In the VROI, the appellant said that as at 11 December 2015 he was living at a unit with his partner at an address in Kapitzke Way, Nickol (in her testimony, Detective Constable Abadi said that the distance between the houses occupied by the appellant and Mr Smith was a two‑minute walk away or 'in the order of about 100 m').[30] The appellant said that on the day of the offence he was fitting an air‑conditioning unit at his partner's house. He said that he completed this task at around 3.00 pm or 4.00 pm.[31] When Detective Constable Abadi put the allegation that the appellant had stolen a new Samsung phone from Mr Smith's house, the appellant said 'I don't know', adding, 'I'm, I'm waiting for you to show me evidence'.[32]
[30] ts 91.
[31] Blue green AB 35 ‑ 36.
[32] Blue green AB 38.
Detective Constable Abadi showed the appellant a still image taken from one of the Comfort Inn's CCTV cameras with a time stamp of 19:01[33] (this was the same photograph shown to Mr Smith by Constable Netterfield and which was marked as MFI 1 and later exhibit 4(a) at the trial). The appellant agreed that he was the person depicted in the photograph.[34] When asked what he was carrying, he said 'my hat'.[35] The appellant agreed that he appeared to be running in the photograph. When asked why, he said that he was 'running laps'.[36]
[33] Blue green AB 39.
[34] Blue green AB 39.
[35] Blue green AB 39.
[36] Blue green AB 40.
The appellant was shown a second photograph which showed a male from the left side towards the person's back. The appellant agreed that he was the person in the photograph[37] (later tendered as exhibit 4(b)).
[37] Blue green AB 40.
Detective Constable Abadi showed the appellant two further photographs. The photographs showed the front and back of a T‑shirt seized by police from the appellant's house on 15 December 2015.[38] In the VROI, the appellant admitted that the shirt shown in the photographs was his and that he was wearing that T‑shirt when the first and second photographs were taken.[39]
[38] ts 89.
[39] Blue green AB 41 ‑ 42.
The appellant was shown a fifth photograph which depicted a pair of board shorts seized by police from the appellant's home on 15 December 2015.[40] The appellant agreed that the board shorts belonged to him and that he was wearing them when the first two photographs were taken.[41]
[40] ts 90, exhibit 4.E.
[41] Blue green AB 42.
In the VROI, after having been shown the photographs, the appellant denied having anything to do with the alleged burglary.[42]
[42] Blue green AB 42.
Detective Constable Hayes testified that she and Constable Netterfield attended at Mr Smith's house at 6.46 pm on 11 December 2015.[43] Detective Constable Hayes said that she obtained a statement from Mr Smith, including a description of the alleged offender.[44] She said that on 15 December 2015, the appellant was arrested at his home address in Kapitzke Road, Nickol.[45] She said she did not believe that any relevant forensic evidence was found in relation to the offence.[46] She had no further involvement in the case after the search.[47]
[43] ts 96.
[44] ts 97.
[45] ts 97 ‑ 98.
[46] ts 99.
[47] ts 98.
Constable Netterfield testified that he and Detective Constable Hayes arrived at Mr Smith's house at about 6.45 pm on 11 December 2015. He said that Mr Smith provided a general description of the person he had seen in his house, including that person's clothing.[48] He testified that he went to the Comfort Inn located next door to Mr Smith's house where he had a conversation with the manager. As a result of that conversation, he viewed footage taken from one of the Comfort Inn's CCTV cameras which showed the laneway which ran off Matebore Street.[49]
[48] ts 103.
[49] ts 104.
Using his personal mobile telephone, Constable Netterfield took a video and three still photographs from the CCTV footage. He did this by pointing the camera lens at the computer screen on which the CCTV footage was being played.[50] Constable Netterfield testified that after recording the video and taking the photographs he went back to Mr Smith's house. He did not recall showing Mr Smith the footage on his mobile telephone, but it may have been possible.[51] The video was played to the jury and tendered as exhibit 5.[52] It lasts six seconds.
[50] ts 105.
[51] ts 106.
[52] ts 104, 105.
Constable Netterfield was questioned by the prosecutor about the time stamp shown on the video as follows:
Q.Now, we see on the footage that there is a yellow time at the bottom. It says ''2015/DEC/11', so obviously 11 December 2015 and then it starts at a time of 19.01.03. Do you understand what I'm putting to you?
A.Yes. Yes. That is correct. I do understand.
Q.Was that the time that you were viewing the footage?
A.Yes.
Q.Not the time that the person was seen running through the laneway?
A.No. I remember there was some confusion at the time when I was viewing it, but I was directed by the manager that that was the time that it was now.
Q.So the actual time that the person ran through is not properly recorded?
A.No.
Q.In fact, did you actually do any checks to see what [sic] the accuracy of the CCTV footage time?
A.Not that I can recall at this time, but I believe I would have in due course.
Q.After you viewed that footage and recorded it on your phone and the image on your phone, where did you go after that?
A.I returned back to the complainant's address.
Q.Now do you have any recollection of actually having shown the complainant that footage on your phone?
A.Not that I can recall.
Q.Would you concede, though, that you may have done that?
A.It may have been possible, yes.[53]
[53] ts 106.
Constable Netterfield said that on 15 December 2015, the appellant was arrested and that on 17 December 2015 a search was conducted on the Kapitske 'Street [sic]' house. There a T‑shirt and shorts belonging to the appellant were seized.[54]
[54] ts 106 - 107, exhibit 6.
Towards the end of Constable Netterfield's examination‑in‑chief, a bundle of 13 still photographs taken from exhibit 5 were tendered (exhibit 7).[55]
[55] ts 108.
In cross‑examination Constable Netterfield confirmed that he arrived at Mr Smith's residence at around 6.45 pm on 11 December 2015 and that he went to the Comfort Inn.[56] He said that he ascertained that there was a CCTV camera in the driveway which pointed towards Matebore Street.[57] Constable Netterfield said that he viewed the CCTV footage taken from the camera in the driveway beginning at 6.35 pm and said he had done so because Mr Smith had told him it was 'around the time that this incident had occurred'.[58]
[56] ts 109.
[57] ts 109.
[58] ts 109.
Defence counsel took Constable Netterfield to a photograph with the time stamp '19.01.03' in yellow at the bottom of the image. Although counsel did not refer to the photograph by exhibit number, it appears to be exhibit 7(a). She observed that the photograph displayed at the top of the image another time, in white, being 19.36.12. When asked to explain the two different times, Constable Netterfield answered:
Well, like I said, the 19.01 would correspond to when I was viewing the footage. It's - the other time corresponds to 19.36, I believe you said. Correct me if I'm wrong. [T]hen I would believe there would be a discrepancy in the time display on the image, which is not uncommon in CCTV systems put up by people.[59]
[59] ts 110.
Constable Netterfield added:
So obviously, I had a conversation with the manager in relation to the footage. The manager would have obviously explained the ins and outs of his own CCTV and it would have been explained to me that the - there is a time discrepancy, obviously, of an hour. And so to view 6.36, I would have had to view 7.36, as is depicted on the image.[60]
[60] ts 111.
Defence counsel then put to Constable Netterfield whether it was possible that 19.36 was the time at which the footage was played back and viewed by him and that 19.01 was the time that the person showed in the footage actually ran past the camera. Constable Netterfield replied:
No. We arrived at the address at 6.45 as I explained earlier. The timeframe in which I went to the Comfort Inn and viewed the footage would have only been a matter of 15 minutes.[61]
[61] ts 111.
Constable Netterfield agreed that the timing of the CCTV system had not been formally tested and that the original footage recorded by that system had never been seized.[62] No evidence about either of these matters was adduced at trial.
[62] ts 111.

Under cross‑examination, Constable Netterfield said that at the time he viewed the CCTV footage he saw the person described by Mr Smith as the offender being pursued by a person he recognised as being Mr Smith.[63] He said Mr Smith was wearing 'mining fluoros'.
[63] ts 112.
Towards the end of the cross‑examination, the following exchange took place concerning the showing of the still image to Mr Smith:
Q.Is showing him a still image something that you would ordinarily have done?
A.I can understand why I would do it - would have done it, I apologise, if that was the case. Obviously, it would be pertinent to make sure we're identifying the correct person in relation to the investigation that we're doing. It would make sense that I would show the complainant an image of who we believed to be the POI [person of interest], to ascertain whether or not that was the person that he identified.[64]
[64] ts 113.
Constable Netterfield was not shown exhibit 4(a) by either counsel.
After Constable Netterfield completed his evidence the excerpt from exhibit 5 was again played to the jury.[65] We have viewed the footage, together with exhibit 7. It is somewhat shaky. Its quality is a little grainy or blurry; nevertheless, it was reasonably clear. It shows a man running down what appears to be a paved laneway. The person is looking over his left shoulder as if he was being pursued. He appears barefooted and is holding objects in both hands. One of those objects is rectangular in shape, about the size of a wallet. He appears to be wearing a dark T‑shirt with logos on it and almost knee‑length shorts. The shorts have a bluish coloured logo on the left leg. There are two time stamps. The one at the top of the image is in white print and starts at 19:36:10. The two time stamps are not consistently in the picture. The time stamp at the bottom is in yellow print and starts at 19:01:02. It is no longer visible after 19:01:04 until 19:01:07 when it appears again, blurrily as a result of the mobile telephone camera moving.
[65] ts 115.

The defence case

The appellant elected not to give evidence or to adduce evidence in his defence.[66] The appellant relied on the exculpatory statements the appellant made in the VROI. At [7] we summarised the defence case. It is unnecessary to say anything more.
[66] ts 117.

Grounds 1 and 2

Grounds 1 and 2 are related. They each concern Mr Smith's identification of the person who had burgled his house as the same person in the single image (exhibit 4(a)) which he said was shown to him at the scene by Constable Netterfield (the impugned evidence). It will be recalled that the image had been taken by Constable Netterfield on his mobile telephone from the CCTV footage he viewed at the Comfort Inn shortly after his arrival. It will also be recalled that the identification occurred soon, probably less than an hour, after the commission of the offence and that the appellant accepts that he is the person in the photograph.
As will be seen, in essence, ground 1 alleges that the impugned evidence was inadmissible. If it was admissible, ground 2 alleges that his Honour's directions in respect of it were 'inadequate'.

Ground 1 - error of law or miscarriage of justice?

As originally framed, ground 1 alleged only that his Honour erred in law by failing to exclude the impugned evidence. Put in the language of s 30(3)(b) of the Criminal Appeals Act2004 (WA), the ground alleged 'a wrong decision on a question of law by the judge'.
The respondent answered this allegation by claiming that the ground was misconceived. The respondent submitted that the appellant's trial counsel had not objected to the admissibility of the impugned evidence and consequently this court cannot intervene unless the admission of the evidence occasioned a miscarriage of justice.
In response to this, at the hearing, counsel for the appellant applied to amend the ground of appeal to allege, as an alternative to the allegation of error, that the admission of the impugned evidence occasioned a miscarriage of justice:[67] s 30(3)(c) of the Criminal Appeals Act. The respondent did not object to the amendment and leave to amend was granted.[68]
[67] ts 5.
[68] ts 6.
The significance of whether objection is taken to the admission of evidence the subject of a ground of appeal such as ground 1 was explained in LBC v The State of Western Australia.[69] In that case, it was held that where there was no objection to the admission of evidence adduced at trial there can be no wrong decision on a question of law and that the appeal can only be allowed if the appellant establishes that the admission of the evidence occasioned a miscarriage of justice.[70]
[69] LBC v The State of Western Australia [2011] WASCA 201.
[70] [10] (Martin CJ, with whom Hall J agreed); [39] (McLure P).
It is not an easy matter for an appellant to establish a miscarriage of justice by reason of the admission of allegedly inadmissible evidence where no objection is made. This is because, generally speaking, an accused is bound by the way defence counsel conducted the trial. In order to establish a miscarriage of justice by reason of evidence which was admitted without objection, the appellant must demonstrate that:
(a)the evidence was inadmissible; and
(b)it is not open to infer that trial counsel failed to object to the evidence in the furtherance of a forensic strategy; and
(c)the admission of the evidence caused material prejudice to the appellant.[71]
[71] [10], [11] (Martin CJ, with whom Hall J agreed); [39] (McLure P).
In the present case, the appellant contested the respondent's submission that defence counsel did not object to the impugned evidence. In support of this argument, counsel for the appellant (who was not counsel at trial) pointed to excerpts from the trial transcript where defence counsel, in the absence of the jury, raised 'concerns' she had about the evidence.[72]
[72] ts 55 ‑ 56.
Those 'concerns' were the late disclosure by the State of the impugned evidence[73] and its admissibility.[74] As to the latter, defence counsel referred to the alleged 'high level … of suggestibility' involved in Mr Smith's identification of the offender as the person depicted in the single image shown to him by Constable Netterfield.
[73] ts 55.
[74] ts 56.
The impugned evidence was not mentioned in the depositions served on the appellant's solicitors by the prosecution. The prosecutor explained that he only became aware of it the day before the trial commenced and that as soon as he did he informed defence counsel.[75] The prosecutor submitted that late disclosure was not a matter relevant to admissibility and that the evidence was relevant and admissible. He submitted that there was no basis to exclude the evidence on discretionary grounds.[76]
[75] ts 57.
[76] ts 58 ‑ 59.
His Honour expressed a preliminary view that the evidence was admissible[77] and that the trial could proceed despite the late disclosure. However, the matter could be revisited later in the trial, if it became evident that the late disclosure caused prejudice to the appellant.[78]
[77] ts 59.
[78] ts 60.
Defence counsel did not attempt to dissuade his Honour from his preliminary view as to the admissibility of the evidence. Significantly, at no stage did she object to the impugned evidence. As to the issue of late disclosure, defence counsel agreed with the course suggested by his Honour. Defence counsel did not revisit the issue later in the trial.
It is not a trial judge's function to deal with or allay the 'concerns' of counsel as to the admissibility of evidence. It is the duty of the trial judge to rule on an objection to the admissibility of evidence when an objection is made and not conceded by opposing counsel.
Where counsel forms the view that evidence sought to be adduced is inadmissible, it is a basic rule of practice that he or she must, in unambiguous terms, object to the evidence and articulate the basis upon which the objection is made. All counsel must be taken to know this basic rule.
In our opinion, defence counsel's 'concern' about the admissibility of the impugned evidence was not an objection to that evidence. At no time did counsel, in substance or in form, object to the evidence. His Honour was not required to rule on the admissibility of the impugned evidence and therefore made no wrong decision on a question of law. If ground 1 is to succeed, the appellant must establish a miscarriage of justice.

Ground 1 - was there a miscarriage of justice?

On the question of miscarriage of justice, the appellant did not rely upon the late disclosure of the impugned evidence. Nor was it said that Constable Netterfield acted unfairly or improperly by showing Mr Smith the image he had recorded on his mobile telephone. At the hearing of the appeal, counsel for the appellant focused on the admissibility of the impugned evidence. It was conceded that the evidence was relevant.[79] However, it was submitted that the admission of the impugned evidence was unfair because the prejudicial effect of the evidence exceeded its probative value.[80] In essence, it was submitted that had the evidence been the subject of objection it should have been excluded in the trial judge's discretion. The appellant's counsel argued that Mr Smith's identification was of slight probative value because it was likely to be the product of suggestion created by Constable Netterfield showing Mr Smith a single image of a man, followed by the inquiry, whether 'this was the guy'.[81]
[79] Appeal ts 7.
[80] R v Christie [1914] AC 545 and Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403 [26].
[81] Appeal ts 7.
It may immediately be accepted that a judge has a discretion to exclude admissible evidence where its admission would be unfair to an accused such as when the prejudicial effect of the evidence exceeds its probative value. Identification evidence may be excluded on this basis.[82] Specifically, there have been cases where the element of suggestion involved in an identification is so great that its exclusion is warranted on discretionary grounds.[83]
[82] Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 402 ‑ 403.
[83] See Davies v The King [1937] HCA 27; (1937) 57 CLR 170 and R v Hallam (1985) 42 SASR 126; (1985) 18 A Crim R 221, 224.
The dangers of photograph identification are well known. As Stephen J observed in Alexander v The Queen, photographic identification of a stranger in the detection process is affected by the fallibility of human perception and memory, and the fact that a photograph is a two‑dimensional and static image.[84] Other matters such as the quality of the image, and whether or not the image is in colour, may be significant.
[84] Alexander v The Queen (409).
Stephen J acknowledged that photographic identification in the detection process has obvious utility to the police to narrow down the possible suspects. Thus its use serves a legitimate and proper purpose in the process of detecting crime and bringing offenders to justice.[85] This does not mean that photographic identification in these circumstances is necessarily admissible. Whether such evidence is admissible depends upon the circumstances of the particular case. Often it will not be admitted.[86]
[85] Alexander v The Queen (409 ‑ 410).
[86] Murdoch v The Queen [2007] NTCCA 1; (2007) 167 A Crim R 329 [65].
Returning to the present case, it was entirely legitimate for Constable Netterfield as part of the police investigation to present to Mr Smith the image taken from the CCTV footage in order to inquire if the person depicted in the image (and in the CCTV footage) was the offender.
In our opinion, the impugned evidence was, on the facts of the present case, admissible, and should not have been excluded in the trial judge's discretion. Our reasons for this conclusion are, in combination, as follows:
(1)The impugned evidence was relevant to the proof of the element of identity.
(2)Mr Smith made the identification a very short time after the burglary when it may be thought his recollection was fresh.
(3)Although there is an element of suggestion in the way the image was presented to Mr Smith, this was to some extent alleviated by Constable Netterfield asking him to repeat the general description of the offender he had given earlier and only presenting the photograph after receiving a consistent response.
(4)Mr Smith was not cross‑examined on the basis that the identification was untruthful or unreliable.
(5)As will be seen when we deal with ground 4, there was other evidence which supported the accuracy of the impugned evidence.
In all of the circumstances, we have not been persuaded that the admission of the impugned evidence has occasioned a miscarriage of justice in this case.
Although we would grant leave to appeal, ground 1 has not been made out.

Ground 2 - his Honour's directions on Mr Smith's identification of the appellant

Ground 2 concerns the directions that were given to the jury on the impugned evidence the subject of ground 1.
The directions given to the jury by his Honour were as follows.
The first concerns the issue of identification and the evidence of Mr Smith with respect to his description of the physical characteristics of the offender in his place on 11 December 2015. The [S]tate says to you that he has correctly described and, subsequently, identified the accused as the male person inside his place on 11 December 2015 by reference to, not only the physical description, but his evidence that he was able to identify the accused as the person in the image from the CCTV as the person inside his place.
The accused says that he is mistaken in both respects and that the person he saw was not him. As I've said, the State also relies on other evidence as circumstantial evidence of the guilt of Mr May, including the physical description and the identification by Mr May in the still on Officer Netterfield's mobile telephone. When you come to consider the physical description given by Mr Smith of the person that he says was inside his place, you do need to give careful consideration to the context and circumstances. He explained·to you that he had a normal day at work, that he had just recently arrived home, and was sitting in the patio part of his place, having a beer and relaxing and that he went to get the washing and when he did so, having got it in his arms, he saw somebody in the kitchen through the fly screen and glass door leading into his kitchen.
So members of the jury, the description that he gave is based on his evidence of the person that he saw inside his place at the time that he saw that person, and you should give consideration to matters, for example, for how long did he have an opportunity to make his observation which forms the basis of the physical description he gave? At what distance? Was it close, was it far? Was the person stationary? Was the person moving?
Were there any obstructions or distractions to his observation, bearing in mind he went inside the kitchen, the person was still in the kitchen before he went past Mr Smith through the front door. So did Mr Smith have an opportunity to see the person clearly, face on or was it only from an angle? Was Mr Smith under any·impairment? He said he had had a beer. No evidence that he had been drinking excessively.
And then, were there any distinguishing features about the person that he saw that might bear upon your assessment of his physical description of the offender? Also, when you come to consider his identification of the person on the mobile telephone as Mr May, as the person inside his place, that of course needs to be understood in the context of, it was a still, because he took three still photographs, that it is the fixed photograph.
More difficult to make an identification because there's no movement, and also perhaps because it's on a mobile telephone, so a size issue.·So members of the jury, when you come to consider what weight you wish to give to the physical·description based on Mr Smith's evidence of the offender, and his identification of the person you now know and he now knows is Mr May in the CCTV footage, you should bear in mind the potential weaknesses with respect to that part of the evidence.[87]
[87] ts 134 - 136.
In the appellant's written submissions the only criticism made by the appellant of these directions was that the trial judge was, on the facts of this case, obliged but failed to direct the jury about 'the displacement effect'. At the hearing of the appeal, the appellant's counsel conceded that, in effect, this argument was misconceived because the 'displacement effect' did not arise on the facts of this case.[88] In oral argument, counsel for the appellant asked the court to consider the ground 'in broader terms'.[89] In particular, that his Honour's directions did not fully comply with those mandated by the High Court in Domican v The Queen.[90]
[88] Appeal ts 8 ‑ 10.
[89] Appeal ts 9.
[90] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555.
In Domican, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 561 ‑ 562:
[T]he 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'. A warning in general terms is insufficient. (citations omitted)
The warning referred to by their Honours has become commonly known as the Domican warning.
The respondent accepted that a Domican warning was required in respect of the impugned evidence.[91] The respondent conceded that his Honour's directions did not comply with the requirements of a Domican warning in two respects. First, his Honour did not warn the jury of the dangers of convicting on identification evidence.[92] Second, his Honour did not direct the jury about the risk that the identification was born from the implied suggestion created by Constable Netterfield's presentation of a single photograph with the question 'if that was the guy'. The respondent conceded that the ground had been made out, but submitted that this court should apply the proviso in s 30(4) of the Criminal Appeals Act on the basis that this court should consider that despite the error no substantial miscarriage of justice has occurred.
[91] Appeal ts 21.
[92] Appeal ts 21.
In our opinion, the respondent's concessions that ground 2, as argued, has been made out should be accepted.
The impugned evidence was part of the State's case on the question of identity. The reliability of the impugned evidence was disputed at trial. A Domican warning was required in this case. In order to comply with the requirements laid down in Domican, his Honour was obliged to deal with the matters raised by the respondent in this court. It is patent from the directions that were given that his Honour did not warn the jury as to these matters and that the direction, when read as a whole, did not comply with the requirements laid down by the High Court in Domican.
Leave to appeal on ground 2 should be granted. The ground has been made out. We will deal with the question of the proviso later in these reasons.

Ground 3 - alleged hearsay and speculation

Ground 3 alleges a miscarriage of justice by reason of hearsay evidence and speculation given during Constable Netterfield's testimony. The legal principles applicable to this ground are the same as those described in our analysis of ground 1 at [44].
The appellant cites two excerpts from Constable Netterfield's testimony which we mentioned earlier in the course of summarising his testimony. We will deal with each excerpt in turn.
The first excerpt is in examination‑in‑chief as follows:[93]
[93] ts 106.
Q Now, we see on the footage that there is a yellow time at the bottom. It says '2015/DEC/11', so obviously 11 December 2015, and then it starts at a time of 19.01.03. Do you understand what I'm putting to you?
A Yes. Yes. That is correct. I do understand.
Q Was that the time that you were viewing the footage?
A Yes.
Q Not the time that the person was seen running though the laneway?
A No. I remember there was some confusion at the time when I was viewing it, but I was directed by the manager that that was the time that it was now.
Q So the actual time that the person ran through is not properly recorded?
A No.
Q In fact, did you actually do any checks to see what [sic] the accuracy of the CCTV footage time?
A Not that I can recall at this time, but I believe I would have in due course.
The appellant's written submissions do not precisely identify that part of the excerpt said to be objectionable. We agree with the respondent that the only part which could conceivably be objectionable as hearsay is the statement, 'but I was directed by the manager that that was the time it was now'.
The precise meaning of the manager's 'direction' to Constable Netterfield was not explained by the appellant's counsel. However, in light of the question posed by the prosecutor immediately after the testimony was given, 'So, the actual time that the person ran through is not properly recorded?', it is reasonable to infer that the manager's 'direction' was to the effect that the time stamp on the CCTV footage was wrong. This point was favourable to the appellant and there was a clear forensic purpose for defence counsel not to object to its admissibility. Accordingly, despite its hearsay nature, the appellant has not suffered any miscarriage of justice.
The second excerpt, which occurs in Constable Netterfield's cross‑examination, is as follows:[94]
[94] ts 110 ‑ 111.
Q [In reference to the photograph taken from the CCTV footage] The image displays two times. One is at the top of the image and it clearly states nine - or the image that I'm looking at, 19.36.12. And that time recording is in white?
A Yes.
Q At the bottom of the screen, it says 11 December 2015, 19.01.03, and that is in yellow?
A Mmm.
Q Can you explain those two times?
A Well, like I said, the 19.01 would correspond to when I was viewing the footage. It's - the other time corresponds to 19.36, I believe you said. Correct me if I'm wrong. [T]hen, I would believe there would be a discrepancy in the time display on the image which is not uncommon in CCTV systems put up by people.
Q Constable Netterfield, how can you - how did you start watching it from 6.35, which on the footage, would be 18.35 then? How did you know that was the time you were watching it from?
A So obviously, I had a conversation with the manager in relation to the footage. The manager would have obviously explained the ins and outs of his own CCTV and it would have been explained to me that the - there is a time discrepancy, obviously, of an hour. And so to view 6.36, I would have had to view 7.36, as is depicted on the image.
…
Q Constable Netterfield, is it possible that you've got the timing wrong and in fact, the right time at 19.36 is the playback time and then the time in yellow at 19.01 is in fact the time that we see the person running past the footage?
A No. We arrived at the address at 6.45 as I explained earlier. The timeframe in which I went to the Comfort Inn and viewed the footage would have only been a matter of 15 minutes.
It is said that this excerpt contains hearsay and speculation. The particular part said to be objectionable is when Constable Netterfield said:
So obviously I had a conversation with the manager in relation to the footage. The manager would have obviously explained the ins and outs of his own CCTV and it would have been explained to me that the - there is a time discrepancy, obviously, of an hour. So to view 6.36, I would have had to view 7.36 as is depicted on the image.
While it must be accepted that this evidence contains hearsay and the drawing of a conclusion by Constable Netterfield, it does not give rise to a miscarriage of justice. Constable Netterfield's testimony was responsive to defence counsel's open‑ended questions asking the witness to explain the discrepancy in the different time stamps on the CCTV footage and how he knew the time that he started watching that footage. These questions were asked in pursuit of a forensic purpose designed to show that the time stamps on that footage were inaccurate. In these circumstances, it cannot be said that the appellant suffered a miscarriage of justice.
Ground 3 has not been made out. Leave to appeal should be refused.

Ground 4 - was the verdict of guilty unreasonable?

This ground seeks to invoke s 30(3)(a) of the Criminal Appeals Act which provides that this court must allow an appeal if, in its opinion, a verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
The conclusion that a verdict is unreasonable or cannot be supported is no different from the frequently used formulation that a verdict is 'unsafe or satisfactory': M v The Queen;[95] MFA v The Queen.[96] Whether a verdict is unsafe or unsatisfactory is a question of fact which this court must decide by making its own independent assessment of the evidence, both as to its sufficiency and quality: M v The Queen; Morris v The Queen; SKA v The Queen.[97]
[95] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).
[96] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [58].
[97] M v The Queen (492); Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 and SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14].
The plurality in M (493) described the test to be applied as:[98]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a [C]ourt of [C]riminal [A]ppeal 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. 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 regard to those considerations. (citations omitted)
[98] M v The Queen (493).
In Libke v The Queen,[99] Hayne J, with whom Gleeson CJ and Heydon J relevantly agreed, said that the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt; that is, whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.
[99] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113].
The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in R v Baden‑Clay,[100] as follows:
The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.
For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal. (citations omitted)
[100] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [46] ‑ [47].
The appellant's submissions in support of this ground proceed on a narrow basis and focus on the timing shown on the CCTV footage. The State's case at trial was that the CCTV footage showed the appellant fleeing from Mr Smith's house, having just burgled it. A potential barrier to the acceptance of this proposition was that the time stamps on the CCTV footage, in particular the white time stamp, seemed to indicate that it was recorded at about 7.36 pm, approximately one hour after the burglary occurred. To explain this discrepancy, the State adduced evidence from Constable Netterfield to the effect that he viewed the relevant CCTV footage within approximately 15 minutes after his arrival at Mr Smith's house at about 6.45 pm, and that the time was 'not properly recorded'.
The appellant's case at trial and on appeal is that Constable Netterfield's evidence as to when he viewed the CCTV footage is wrong and that the State could not establish that the CCTV footage was taken in the period immediately after the commission of the offence.[101]
[101] Appellant's submissions, pars 44 ‑ 48.
The appellant contended that it was possible that the CCTV footage was taken at approximately 7.01 pm, as shown in the yellow time stamp and viewed by Constable Netterfield at approximately 7.36 pm.
The respondent conceded that, contrary to Constable Netterfield's evidence and regardless of the accuracy of either time stamp, the white time stamp depicts the purported time that the CCTV recording was viewed by Constable Netterfield, and the yellow time stamp depicts the purported time that the recording was made.[102]
[102] Respondent's submissions, par 28, which refers to the appellant's submissions, pars 33 ‑ 38.
However, according to the respondent, this error by Constable Netterfield 'is nowhere near as significant as the appellant's submissions suggest'.[103] This is because, having regard to the 'immediate aftermath of the burglary and the totality of the evidence',[104] it is clear that, whatever the times shown on the CCTV footage, it can be inferred that it was taken immediately after the burglary occurred and, more generally, that the appellant was the burglar.[105] We accept these submissions. Our reasons for doing so are as follows.
[103] Respondent's submissions, par 34.
[104] Respondent's submissions, par 35.
[105] Respondent's submissions, pars 35 - 38.
As we have noted, Constable Netterfield's evidence was that the times shown on both the yellow and white time stamps were inaccurate. Certainly, the times recorded on the Comfort Inn's CCTV system were never tested for their accuracy. We do not proceed on the basis that the times shown on the yellow and white time stamps respectively were accurate. Further, we accept the respondent's concession that Constable Netterfield's evidence was wrong as to what each of the white and yellow time stamps respectively recorded. Nevertheless, there remains a body of evidence which demonstrates beyond reasonable doubt that the CCTV footage was taken immediately after the burglary and that the appellant was the burglar.
The unchallenged evidence was that the burglary occurred at about 6.35 pm on 11 December 2015. Mr Smith testified that he chased the offender out of his house to the start of the driveway of the Comfort Inn. We acknowledge that the appellant disputed this at trial,[106] but it was open to the jury to accept Mr Smith's evidence on this point. Constable Netterfield testified that when he went to the Comfort Inn, he viewed the CCTV footage and saw a person he recognised as Mr Smith pursuing a man. The appellant accepts that he is the man shown in the CCTV footage. Although the six‑second excerpt from the CCTV footage played to the jury does not show Mr Smith, it was open to the jury to accept Constable Netterfield's evidence on this point. It is clear from Constable Netterfield's evidence that he saw more of the CCTV footage than was shown to the jury and he was well able to recognise Mr Smith, having just met and spoken to him.
[106] ts 79 ‑ 80.
Constable Netterfield's evidence was that he viewed the CCTV footage within approximately 15 minutes after he arrived at the scene. That is, at about 7.00 pm. Under cross‑examination, Constable Netterfield rejected the proposition put to him by defence counsel that he had viewed the footage at approximately 7.36 pm. It was open to the jury to accept this evidence.
In light of these factors, we conclude that it was well open to the jury to infer that the CCTV footage seen by Constable Netterfield showed Mr Smith pursuing the appellant down the driveway of the Comfort Inn at about 6.35 pm on 11 December 2015 and that the appellant was the person who had burgled his house.
There are other circumstances which strengthen the inference that the appellant was the offender. For example:
(a)a general description given by Mr Smith of the offender, including of the clothing he was wearing at the time, matched that of the appellant;
(b)the appellant lived nearby to Mr Smith and had the opportunity to commit the offence;
(c)the appellant's mannerisms as shown in the CCTV footage are consistent with a man being pursued (as Mr Smith said he did), rather than with a man merely running laps; and
(d)the objects which can be seen in the appellant's hands on the CCTV footage, although not distinct, appear to be bulkier than merely a cap and consistent with the size of the items stolen from Mr Smith's house.
As far as the evidence the subject of ground 1 is concerned, our analysis does not rely upon Mr Smith's identification of the offender from the single image shown to him by Constable Netterfield. We have excluded Mr Smith's identification from our analysis, but plainly Mr Smith's evidence does not assist the appellant.
We have considered and weighed among the other evidence the appellant's denials in the VROI, the absence of any forensic examination of the crime scene and the fact that none of the property stolen from Mr Smith's house has been recovered.
Having regard to the combined weight of all of the circumstances we have previously mentioned, it was open to the jury to reject the appellant's denials in the VROI. The absence of a forensic examination does not mean that the appellant was not present at Mr Smith's house. There was ample time after the commission of the burglary and before the appellant's arrest for the stolen property to have been disposed.
Our examination of the trial record does not give rise to a reasonable doubt as to the appellant's guilt. In our opinion, the combined force of the evidence we have referred to demonstrates beyond reasonable doubt that the person who burgled Mr Smith's home at about 6.35 pm on 11 December 2015 was the appellant. Despite any inaccuracy of the time stamps shown on the CCTV footage, we are satisfied beyond reasonable doubt that the CCTV footage shows the events immediately after the commission of the offence and shows the appellant fleeing the scene. It was well open for the jury to be satisfied that the only reasonable inference to be drawn from all of the facts and circumstances of the case was that the appellant was the offender. The appellant has not demonstrated that the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. The verdict of guilty is not unreasonable and is not unsupported having regard to the evidence. There is no basis for this court to set aside the verdict on which the conviction is based.
Ground 4 has not been made out. We would not give leave to appeal in relation to it.

The proviso

Ground 2 has been made out. Unless the proviso in s 30(4) of the Criminal Appeals Act applies, this court must allow the appeal. Section 30(4) states that even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that 'no substantial miscarriage of justice has occurred'.
We will apply the principles governing the application of the proviso described by Buss JA (with whom Mazza JA agreed) in Ritchie v The State of Western Australia. His Honour said:[107]
In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:
As this Court's decision in AK v Western Australia ((2008) 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].
See also Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 [50] - [51] (French CJ, Crennan, Bell & Keane JJ).
In Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776, French CJ, Bell, Keane and Nettle JJ said that the phrase 'substantial miscarriage of justice', in this context, means that 'the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her (Pollock v The Queen (2010) 242 CLR 233 at [70]; 84 ALJR 713) or that there was some other departure from a trial according to law that warrants that description (Baiada Poultry Pty Ltd v The Queen at [22] - [23]; 86 ALJR 459 per French CJ, Gummow, Hayne and Crennan JJ; see, eg, AK v Western Australia (2008) 232 CLR 438 at [57] - [59]; 82 ALJR 534 per Gummow and Hayne JJ; at [109] - [110] per Heydon J)' [15].
[107] Ritchie v The State of Western Australia [2016] WASCA 134 [118], [119].

In Ritchie, his Honour referred to the question of whether there was any material difference or inconsistency between the approach to the proviso mandated by Weiss, on the one hand, and the observations of the plurality in Filippou as to the meaning of the phrase 'substantial miscarriage of justice' in the context of the proviso, on the other. In that case, Buss JA expressed the view that if there is any material difference or inconsistency it was of no consequence on the facts and in the circumstances of Ritchie. That is also the position in the present case.
We have already described the evidence in detail and we have, in the context of ground 4, explained why, on the whole of the evidence, we do not have a reasonable doubt as to the appellant's guilt.
After examining the trial record and weighing the evidence, we are satisfied that his Honour's failure to adequately direct the jury on the identification of the offender from the single photograph shown to him by Constable Netterfield did not deny the appellant a chance of acquittal that was fairly open to him. In our opinion, the evidence overwhelmingly established that the appellant was the offender. There is no aspect of the trial, including his Honour's failure to adequately direct the jury in respect of the impugned evidence, which precludes this court from deciding that no substantial miscarriage of justice has occurred. There was nothing to preclude the proviso from being engaged. The proviso should be applied in this case. Accordingly, despite the error in ground 2 being made out, the appeal should be dismissed because no substantial miscarriage of justice has occurred.

Orders

The orders that we would make are as follows:
1.An extension of time to appeal is granted.
2.Leave to appeal is granted on grounds 1 and 2.
3.Leave to appeal is refused on grounds 3 and 4.
4.The appeal is dismissed.