Michael Albert Patrick Bonner v R No. SCCRM 94/457 Judgment No. 4895 Number of Pages 14 Criminal Law and Procedure

[1994] SASC 4895

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MOHR(2) AND OLSSON(3) JJ

CWDS
Appellant tried on information containing one count each of burglary, assault with intent to rob and assault occasioning actual bodily harm, each based on a different incident but on the same day and in the same general geographic area within a short timeframe - appeal against conviction for assault of fences, acquitted of burglary charge.

Criminal law and procedure - jurisdiction, practice and procedure - information, indictment or presentment - joinder - Examination of statutory requirement for joinder of charges - whether charges part of series of of fences of same or similar nature - "series" - while geographic and temporal relationship of of fences sufficient to make them a series of of fences, burglary of fence not of similar nature to other two - statutory test not satisfied - trial judge erred in not severing charges in exercise of his discretion, there being the danger the jury would inappropriately use evidence related to one count to bolster the lack of evidence in relation to the others.

Criminal law and procedure - evidence - Circumstancial evidence - failure of trial judge to link concept of circumstantial evidence to specific factual issues - failure to direct jury that must be no rational hypothesis consistent with innocence.

Criminal law and procedure - evidence - evidentiary matters relating to witnesses and accused persons, their character and credibility - identification evidence - Failure of trial judge to draw attention to discrepancies in descriptions of offenders given by victims - informal identification parade held in public place in which a victim purported to identify appellant - striking clothing worn by appellant drawing special attention to himself and consequently destroying evidentiary value of purported identification. Criminal Law Consolidation Act, 1935 5278(1). De Jesus v The Queen (1986) 61 ALJR 1; Domican v The Queen (1992) 173 CLR 555 and Shepherd v The Queen (1990) 170 CLR 573, applied.

HRNG ADELAIDE, 6 December 1994 #DATE 22:12:1994

Counsel for appellant:     Mrs M E Shaw with Mr G W Lang

Solicitors for appellant:    Aboriginal Legal Rights Movement

Counsel for respondent:     Mr P J L Rofe QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 KING CJ The appellant was tried in the District Court on an Information containing one count of Burglary, one count of Assault with Intent to Rob and one count of Assault Occasioning Actual Bodily Harm. The jury found the appellant not guilty of Burglary but guilty on the other two charges. He has appealed against the convictions.

2. At about 5.30 on the morning of Sunday 12th September a house occupied by a Mr O'Connor at Millswood Crescent Millswood was broken into by two intruders. Mr O'Connor chased the intruders out of the house but not before they had stolen $30. That incident was the subject of the count of Burglary of which the appellant was found not guilty.

3. At about 5.45 on that morning a Mr Haggerty was out walking near the Woodlands Centre on the corner of South Road and Cross Road, Edwardstown. Two men attacked him. One held Mr Haggerty's walking stick at his throat while the other went through his pockets. This incident was the subject of the charge of Assault with Intent to Rob of which the appellant was convicted.

4. At about 6 am on the same day a Mr Ratcliffe confronted a man who was trying to break a security sensor with a length of pipe near a rear sliding door of his home at 9 Homer Road Clarence Gardens which is situated a little distance from the Woodlands Centre. The man struck Mr Ratcliffe with the pipe and ran off. This incident was the subject of the charge of Assault Occasioning Actual Bodily Harm.

5. On 27th September 1993 Messrs Haggerty and Ratcliffe were taken by police to Rundle Mall. The appellant was in the Mall by arrangement to provide an opportunity for identification. Mr Haggerty did not identify his attacker. Mr Ratcliffe identified the appellant, who was seated in the Mall, as his attacker.

6. The case for the prosecution in relation to the Assault with Intent to Rob depended upon Mr Ratcliffe's identification and the circumstances which were said to give rise to an inference that the attacks on the two men were carried out by the same persons.

7. At about 6.20 am on the morning of the crimes police parked in a patrol car at the overpass at the corner of Cross Road and South Road saw the appellant walking towards the police car. They questioned him. He said that he had left a party with his mate, but he had drunk too much and had gone to sleep under a bush.

8. At the Unley Police Station at 7.20 am the appellant was questioned by Detective Brennan. He said that he was 18 years of age. He had attended a party at Railway Terrace Clarence Gardens and had got drunk. He left the party with another man. He could not remember what he did thereafter except that he went to sleep at a bus stop on South Road. He indicated the house where the party was held and the detective verified his attendance. The police drove him past No. 9 Homer Road. The appellant admitted having gone on to those premises after leaving the party and of encountering a man on the premises when he was damaging the security light. He denied assaulting the man. He thought that his companion was still with him at the premises. He denied any recollection of an assault at the Woodlands Centre. He was again questioned at 10.42 am and his answers were to the same effect.

9. The appellant gave evidence in his defence to the same effect as his answers to the police.

10. Proof of the charge of Assault with Intent to Rob Mr Haggerty depends upon the establishing of the link with the assault at 9 Homer Road. Without that link, the evidence is plainly insufficient. Mr Haggerty described one of his assailants as five foot ten inches to six feet, which is about the appellant's height, and as having darkish shoulder-length hair as does the appellant. He was unable, however, to see the man's features because he had "his shirt over his face". The general description, although it fits the appellant, would also fit a great many others. Mr Haggerty described his assailant as wearing a blue check shirt. The appellant was wearing a blue and white check shirt, but it had a distinctive grey hood which Haggerty did not mention and which could hardly be missed.

11. There is little to connect the two crimes apart from the proximity of time and place. They were dissimilar in character. It was a quiet time of the day but a party had been in progress in the vicinity and the possibility of two other men engaging in criminal behaviour in the locality cannot be ignored. I do not think that the evidence is nearly strong enough to prove that one of the men involved in the Haggerty crime was the man who attacked Ratcliffe. Without proof of that connection, and the consequent support of Ratcliffe's identification, the evidence is insufficient to implicate the appellant in the Haggerty crime.

12. In my opinion the conviction on the charge of Assault with Intent to Rob cannot be supported having regard to the evidence. I would allow the appeal against that conviction and substitute a verdict and judgment of acquittal.

13. As to the Ratcliffe crime, the question of identification was crucial. The appellant admitted being at the premises but asserted a belief that his companion was also at the premises. There was therefore a question as to which of them assaulted Mr Ratcliffe. A number of the features of the identification call for comment.

14. The conventional identification parade was not conducted because the police had difficulty in obtaining suitable participants. The expedient of the identification in the Mall was therefore adopted. There are significant weaknesses in the identification. The method itself could lead to error. Mr Ratcliffe expected the suspect to be standing or sitting. He was conducted through the Mall twice. Attention might therefore be attracted to a person who was in a seated or standing position on both occasions. The accompanying police officer necessarily deliberately walked the witness near the suspect on both occasions. That procedure involves the risk of a conscious or unconscious prompt in the direction of the suspect. It is in the nature of this type of identification that the suspect cannot observe the act of identification or the circumstances surrounding it and therefore cannot verify its spontaneity. It is not known how many, if any, other persons of the appellant's general age build and coloring were in the Mall at the time, either standing or sitting or at all. Moreover the appellant in the Mall was wearing a blue and white check shirt.

15. The identification was subject to other criticisms. Mr Ratcliffe's original description to the police was of "a person about 6 feet 2 inches tall, male, slight build in his mid 30's, Australian with fair to blonde short hair, goatee beard and wearing a dark flannelette shirt." That description indicates a man who is taller, older and fairer than the appellant and who has hair which is significantly shorter. Subsequently Mr Ratcliffe indicated to his wife a man who was similar to his attacker. His wife pointed out that that man had longer hair and had an olive rather than fair complexion. Mr Ratcliffe thereupon amended his description. He indicated brown hair below the collar and an olive complexion. Even so there was a marked discrepancy between the description and the appellant as to height, age and coloring.

16. These difficulties about the identification call for a careful examination of the summing up in order to determine whether it sufficiently brought them to the attention of the jury; Domican v The Queen (1991-92) 173 CLR 555.

17. The learned judge gave the jury a direction warning them in general terms of the dangers of identification evidence. He referred in passing to Ratcliffe's original description but not in terms which indicated any capacity to undermine the reliability of the identification. He referred to counsel's criticisms of the identification. He did not, however, lend the weight of his own authority as trial judge to those criticisms or to any reference to the aspects of the evidence which tended to undermine the identification; "mere repetition of counsel's arguments is an insufficient discharge of the trial judge's duty to draw the jury's attention to any weaknesses in the identification evidence." Domican v The Queen supra at p564.

18. I have reached the conclusion that the summing up was deficient in its treatment of the identification evidence and that that has had the effect of depriving the appellant of a fair trial according to law.

19. There were other criticisms of the summing up but it is unnecessary for me to deal with them. The inadequacy of the summing up on the topic of identification must lead to a new trial.

20. In my opinion the appeal should be allowed and the convictions set aside. There should be a verdict and judgment of acquittal on count 2. There should be a new trial on count 3.

JUDGE2 MOHR J I have had the advantage of reading, in draft, the judgment of Olsson J. Whilst I agree with the order proposed by him and the reasons given I wish to add a short comment concerning the "identification parade" organised in the Rundle Mall. For the purpose of that parade the appellant was dressed in a flannelette shirt of blue and white checks with plain blue shoulders, as shown in the photograph taken subsequently. As Olsson J. pointed out this shirt was different in that it did not have the very distinctive grey hood like the shirt taken from the appellant after his arrest. Furthermore there is no evidence of any other person in the vicinity of the appellant in the Mall wearing a shirt similar to that worn by the appellant. In my opinion to have held a full and proper identification parade and not to have dressed the appellant, as he was dressed in the Mall, and not have the other participants dressed in, at least, similar shirts to that worn by the appellant would have invalidated the identification as being unfair. I say this not only because of the distinctive colouring and pattern of the shirt worn and its marked dissimilarity to that worn at the time of arrest but because of the various descriptions given by witnesses as remarked on by Olsson J. This factor was not remarked on in the summing up nor was consideration given to the fairness of the "identification parade" held in the Mall in relation to the appellant's clothing. In my opinion the purported identification of the appellant by the witness Ratcliff should have been excluded from the evidence.

JUDGE3 OLSSON J This is an appeal against the conviction of the appellant, by verdicts of a jury, of one count of assault with intent to rob and one count of assault occasioning actual bodily harm.

2. The appellant was presented for trial in the District Court on an information alleging the commission by him of three separate offences on 12 September 1993.

3. Count 1 was founded on an allegation that, at about 5.30 am on that date, he, together with a companion, committed an act of burglary of the dwelling house of a Mr and Mrs O'Connor at 80 Millswood Crescent, Millswood. The jury returned a verdict of not guilty in relation to that charge.

4. Count 2 was based on an assertion that, on that day the accused, together with a companion, also assaulted Donald William Haggerty ("Haggerty") with intent to rob him. It was said that this offence was committed at about 5.45 am in the front of the Woodlands Sports Centre, which is located on the corner of Cross Road and Railway Terrace at Edwardstown.

5. Count 3 was based on an allegation that, at about 6.00 am on the same day, the accused further entered the grounds of the home of Graham Robert Ratcliff ("Ratcliff") at 9 Homer Road, Clarence Park and, when spoken to by the latter, struck him with a fibreglass pole and occasioned him bodily harm. The evidence indicated that the assailant on that occasion was apparently alone.

6. The jury was told that, on the occasion the subject of the first count, Mr and Mrs O'Connor were awakened by noises in the house. Mr O'Connor got out of bed and turned on a somewhat dim hallway light. He observed a male person leaning over the table in the darkened dining room (which opens off the hall), apparently going through his wife's hand bag. As Mr O'Connor entered the room the man ran across the room towards some French windows opening on to a back patio. O'Connor caught up with and pushed him so that he fell to the floor in the patio doorway. As he went to seize the intruder a second male appeared behind O'Connor and headed for him. O'Connor turned to chase him and the second male ran out of the laundry door on to the driveway. On returning to the dining room O'Connor found that the first intruder had got to his feet and had proceeded out on to the patio. He chased him, but that intruder ran off down the backyard. Police were summoned and a patrol car arrived at 5.50 am. The tasking was logged as having been received at 5.42 am.

7. It was the Crown case that the first intruder was the accused. O'Connor described the man seen by him as being about six feet tall, of slim build, in his early twenties and of swarthy complexion. He described his hair as being of a brown colour and of collar length. He did not, at any time, see the man's face. He did, however, note that he was wearing a blue flannelette, long sleeve, shirt with a dark stripe through it.

8. The venue of the offence constituting count 2 was some distance to the south west of the O'Connor house, along the general line of the railway which crosses South Road adjacent to the intersection with it at Cross Road, just west of the overpass ("the Emerson crossing").

9. The jury were told that Haggerty, a 68 year old service pensioner, as was his custom, arose and got dressed at about 4.30 am to go for a walk down South Road. He resided at an address in a street running to the east of South Road, just near the southern end of the overpass. In the course of his walk he crossed South Road to the west and went over to the Woodlands Sports Centre to check the time at which the sauna bath opened. It was then about 5.45 am. He encountered two men who, without provocation, set upon him. Haggerty was knocked to the ground. It was alleged that one man, said to be the accused, held him down, whilst his companion searched Haggerty's pockets for valuables.

10. Haggerty described his assailant as being about 5'10" to 6 feet in height, of slim build, having an olive complexion and being 18 or 19 years of age. He had dark, straight hair about shoulder length. His face was not visible because he had his shirt over it. The shirt was flannelette, with a bluey, white check pattern and long sleeves. It had what Haggerty described as an ordinary collar. When it was ascertained that Haggerty had no money on his person, the person who had held him down kicked him in the head and he blacked out. He was later taken to hospital for treatment.

11. In cross examination Haggerty said that his assailant had "normal skin, pinky skin". He was, however, darker than his companion. He later said that his assailant had a dark or olive complexion.

12. Some evidence was elicited as to Haggerty's psychiatric history, following which, by consent, his evidence at the committal was read to the jury.

13. Inter alia, he had deposed, at that time, that his assailant had dark, shoulder or collar length hair and that he had not noticed the colour of his skin. He wore long grey pants and a black and white or blue and white check shirt with an ordinary collar and long sleeves.

14. The incident the subject of the third count occurred at a location almost half way between the other two locations and on virtually a straight line between them. On the timings deposed to there was about 15 minutes between the incidents the subject of counts 1 and 2 and a further 15 minutes up to the occurrence of count 3. It must be said that, if the accused was involved in all three the timings were - as a matter of common sense - extremely tight, if not close to impossible. This is especially so in relation to counts 1 and 2.

15. Ratcliff told the jury that he was a "ham" radio operator, who had a radio installation set up in a shed situated near the end of his driveway. The approach down the driveway was illuminated by a security light system activated by a sensor which detected the approach of any person near or through the carport. At about 5.30 am on the morning in question Ratcliff had gone into the shed and was activating his radio equipment, preparatory to talking with a friend in the United Kingdom.

16. At approximately 6.00 am he was working at the keyboard of a computer in the shed, when he heard a noise outside. On opening the shed door he saw a man who had his back to him and was swinging a fibreglass pole with the apparent aim of smashing the security light near the back door. As he walked towards the intruder, challenging him as he did so, the latter swung around and struck Ratcliff over the right cheek with the pole, knocking him to the ground.

17. Ratcliff described his assailant as a male person, about six feet tall and of slight build. He did not notice anything in particular about his complexion and thought that he might have been 30 years of age. He had average to fair hair (not jet black), which was short and flat at the top, but long at the back. He had a small, wispy, goatee beard of a "darkish" colour. He was wearing a check, blue black, flannel type shirt, with a small amount of grey in the pattern. It had long sleeves.

18. On Monday 27 September 1993 a Detective took Ratcliff into Rundle Mall and asked him to walk along the Mall and see if he could identify a man who would be somewhere there. (There had been difficulty in organising a traditional identification parade with persons of similar build and characteristics.) Ratcliff then purported to identify the accused, who was sitting in the Mall. He told the jury that the latter's protruding teeth was what had particularly struck him. It is to be noted that, when identified, the accused was wearing quite a striking blue check flannelette shirt, different to that worn when he was arrested.

19. In cross examination Ratcliff admitted that he had originally given the police a description of his assailant as being "A person about 6 feet 2 inches tall, male, slight build in his mid 30's, Australian with fair to blonde short hair, goatee beard and wearing a dark flannelette shirt."

20. He also conceded that, at one stage, he had, on the prompting of his wife, amended his original description to indicate brown hair below the collar and an olive complexion.

21. It should be mentioned that, on the same day, Haggerty failed to identify the accused in the Mall as his assailant.

22. Constable Claxton testified that, at about 6.40 am on the morning in question, he and his partner Merchant were located in a police vehicle at the Emerson crossing. The vehicle was positioned underneath the overpass facing west. Whilst in that position Claxton observed in her rear vision mirror that a person, who proved to be the accused, was approaching slowly on foot from a point east of the car, but heading north.

23. As the accused neared the rear of the police vehicle Claxton got out and spoke to him. When requested to do so he correctly identified himself. He said that he had been to a party in the area. On later checking the police ascertained that there had been such a party. The accused stated that he and a mate had left the party earlier, had been sleeping under a bush on the east side of South Road near the Emerson railway station and had just woken up. He said that he had drunk too much. Claxton testified that the accused matched the description which had been circulated. She therefore advised other police officers of that fact by radio.

24. This scenario fell to be contrasted with the evidence of the police witnesses Irvin and Lyas. They told the jury that, at what, according to Lyas, must have been about 6.15 am, they were driving along South Road and observed a male person wearing a blue flannelette shirt and dark trousers in King Street. He was walking west along King Street carrying what appeared to be a square orange or red box in his left hand. Irwin said that he seemed to be of slim to "normal" build, 5 feet 8 inches to 6 feet in height, with dark, shoulder length hair. By the time the police vehicle had backed up and turned into King Street the man was no longer in sight.

25. On looking around the police officers found a tool box, resembling that carried by the man, in a yard at the end of King Street. It was close to a fence at the side of a house near its south western corner.

26. On hearing Claxton's message over the radio Irvin and Lyas attended at the overpass and there saw the accused. He fitted the appearance of the man earlier seen in King Street. He was wearing a blue flannelette shirt and dark pants. Irvin arrested the accused on suspicion of burglary.

27. It was common ground that, when arrested, the accused was wearing a blue check flannelette shirt which was of quite a common colour and pattern. He also wore dark trousers. It was not disputed that he was 18 years of age, of aboriginal extraction with quite dark, but not black, skin, and that he had black hair and a small, black goatee beard. A photograph subsequently taken of the accused confirmed that, at the time, he had quite prolific, long, stringy black hair down past his collar and presented as a person of patently aboriginal extraction with a thin black moustache and very obvious black goatee beard across the whole of his chin, extending around to the side of each cheek. Of particular interest was the point that, although the shirt worn by the accused was undoubtedly a check flannelette shirt of predominantly blue colour, nevertheless, contrary to the descriptions of the assailant given by several witnesses, it did not have an "ordinary" collar. It had no collar, as such, but quite a distinctive large grey "hood" type attachment which would have been plainly obvious.

28. One other point of considerable significance is that, as emerged from the cross examination of certain police officers, certain of the witnesses gave far more definitive descriptions of the relevant offender at trial (at a point after they had already seen the accused subsequent to the offences) than they were able to give the police immediately after the accident. A typical example of this was O'Connor's statement to Constable Lyas, given immediately after the incident at his home. He is recorded to have said "I caught only a fleeting glimpse of them. Both of them were male and one of them had short, collar length, brown hair, in his 20's and of slim build. I could not describe the other or give a more accurate description, or I would be guessing." By way of contrast, Ratcliff's initial description of his assailant to Constable Thomas was that he was a person is his mid 30's with fair to blond hair and of "Australian" (which I take to mean "caucasian") appearance.

29. The accused was interviewed by Detective Brennan at about 7.30 am. He reiterated his story about having attended and left a party. He professed no memory of having been in possession of a tool box. He said that he had been drunk. He related that he remembered "going to some place and a bloke being there". He agreed to go with the police and attempt to identify locations where he had been.

30. The accused first took police to the location of the party and Brennan verified his story concerning that event. He thereafter guided the police, without prompting, to Ratcliff's house. He conceded that he had attempted to kick out the security lights on the side of the house. He professed not to recall assaulting Ratcliff. He claimed that he was just walking along the road and decided to go there. He said that he did not recall being at the O'Connor premises - he "was drunk from the party".

31. On being searched the accused had only $2 in cash on his person. Some $30 had been stolen from Mrs O'Connor's purse. Brennan agreed that, at interview, the accused appeared mildly affected by alcohol. When subsequently interviewed the accused said that he had no memory of the incident involving Haggerty.

32. It should be said that, in the course of a video interview, the accused maintained the stance which I have above summarised. No fingerprints were located on the tool box found by Constable Irvin.

33. The accused gave sworn evidence before the jury. In essence, he reiterated the narrative story that he had already told the police. However, he denied the truth of what he earlier told the police of his actions at Ratcliff's home. He said to the jury that he had been under stress at the time and merely told lies to satisfy the police. He testified that, after going on the view at the trial, he realised that the lights there were different from lights which he had recollected. He had attempted to kick out some security lights somewhere. He had a vague memory of the house at 9 Homer Road; and it was a mere coincidence that he picked it when with the police. He agreed that he had fairly prominent, protruding teeth. He said that the nearest that he had been to the Woodlands Centre was the location of the birthday party at 27 Railway Terrace, Edwardstown.

34. I have dwelt upon the foregoing background at some length, because it becomes important to examine the grounds argued on the appeal in proper context. I now turn to those grounds.

35. The first aspect to be addressed is the appellant's contention that the trial miscarried because the three counts against the accused were not property joined and should have been severed.

36. Section 278(1) of the Criminal Law Consolidation Act stipulates that:-
    "278. (1) Subject to the provisions of this Act, charges
    for two or more offences (either of the same or different
    legal categories) may be joined in the same information if
    those charges are founded on the same facts, or form, or
    are a part of, a series of offences of the same or a
    similar character."

37. It is beyond question that the three charges against the accused were not founded on the same facts. Their joinder could therefore only have been justified if it could properly have been said that they formed, or were part of, a series of offences of the same or a similar character.

38. Section 278 or its equivalent has been the subject of judicial consideration on a number occasions. To satisfy the statutory criteria two facets need to be considered, namely:-
    - did the subject matter of the charges form or constitute
    part of a series of offences?
    - were those offences of the same or a similar nature?

39. As was said in The Queen v Harward (1981) 73 Crim App R 168 at 171, it must be shown that there was a nexus or connection between the relevant offences, ie that there was a feature of similarity which, in all the circumstances of the case, enables the offences to be described as a series. Such a nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of another but, as appears from The Queen v Kray and Ors (1970) 1 QB 125, the rule is not restricted to such situations.

40. The concept was discussed in some detail by Dawson J in De Jesus v The Queen (1986) 61 ALJR 1 at 9.

41. His Honour there pointed out, that the requirement is for something different from the additional express requirement that the offences be of the same or a similar nature. That requirement refers more to the legal character or components of the offences, rather than the relevant alleged narrative facts. Dawson J expressed the view that, by stipulating that there must be a series of offences, the section does not countenance the joinder of counts charging offences which, in their factual setting, are disparate, however much it may be said that they are legally the same or similar in nature. What is required, he argued, is a sufficient correlation to enable the offences to be described as a "series", without straining the word beyond the meaning which it is reasonably capable of bearing.

42. According to its normal meaning the word "series" essentially connotes a number of events which occur in sequence, that is to say, which have a spatial, temporal or other succession. In the instant case what was alleged was the commission of three offences over a short space of time by a man of similar appearance and having an apparent geographic relationship or sequence associated with them, in a manner which prima facie suggested a practical link between them. I consider that it was appropriate to characterise what occurred as a series of offences, in the relevant sense.

43. That being so the question then arises as to whether it was the situation that the three offences charged were of the same or a similar nature. It appears to me to be beyond dispute that Counts 2 and 3 were properly so classified. Both were offences involving serious assaults upon the person. They gave rise to offence elements which, in large measure, focused on the same elements. However, I find it impossible to see how Count 1 could be said to be an offence of the same or a similar nature to the other two counts. The offence of burglary does not throw up for consideration any element of assault and concerns itself with an offence against property involving dishonesty. True it is that Count 2 also involved an element of dishonesty, but, generically, it was in its essential nature, very different from the offence of burglary. Count 3 involved no element of dishonesty.

44. In my view that situation alone is sufficient to dictate the necessary fate of the appeal. However, it by no means stands alone.

45. Mrs Shaw, of counsel for the appellant, further argued that, quite apart from the question arising under section 278, the learned trial judge ought to have severed the Counts, as an exercise of discretion, because of the prejudice necessarily arising from the fact that there was a serious danger of an impermissible use of evidence relating to Count 3 in relation to the other two counts.

46. As is immediately obvious from my recital of the narrative facts, the Crown case as to Counts 1 and 2 was entirely circumstantial. A strong case was made out with regard to Count 3, both on the evidence of identity and the appellant's own evidence and statements to the police.

47. No case was made out, on a similar facts or any other basis, for the admissibility of evidence related to Count 3 in proof of either of the other counts. The inherent danger in the situation was that, nevertheless, the jury might well reason that a conclusion of guilt as to Count 3 necessarily suggested an identification link of the accused with the person involved in the other offences - because of various similarities of description of the offender in each instance and relevant geography and timings. Moreover the strong tendency to inappropriate propensity reasoning was ever present. (In this regard the discussion by Cox J in The Queen v Armstrong (1990) 54 SASR
207 at 213, 215 is particularly apposite.)

48. As Mrs Shaw expressed the point, the danger in the case at bar was that the evidence related to Count 3 would be taken into account in relation to Count 2 as a makeweight, to support the evidentiary deficiency which patently existed in relation to the latter, when no basis akin to that discussed in Sutton v The Queen (1984) 152 CLR 528 had been made out.

49. In my opinion there is force in her argument that, despite the fact that the learned trial judge clearly told the jury that each count had to be considered separately and that, because a fact is found proved in respect of one count, that does not prove that the accused was guilty of another offence, nevertheless, on two separate occasions, he told the jury that they were entitled to use a fact found proved in respect of one of the offences as a fact that they could consider when weighing up the evidence in respect of the others. Indeed the whole structure of his summing up was, seemingly, to treat the evidence as a single structural entity, without clearly limiting evidence admissible only as to one offence to that offence. Because of the circumstantial nature of aspects of the Crown case this became well nigh inevitable and merely serves to illustrate the inherent dangers in dealing with all counts in a single trial.

50. In my view, both by virtue of the failure to satisfy the tests posed by section 278 and the separate failure, in any event, to sever the counts as an exercise of discretion, the trial patently miscarried.

51. Various other grounds of criticism were raised, but it is unnecessary to deal with all of them. There are, in my view, only two other aspects of the trial which demand specific mention.

52. The first is that, in directing the jury on the issue of circumstantial evidence, it was plainly incumbent upon the learned trial judge not only to give the correct conceptual approach, but also to relate it to the specific factual issues in the case (Peacock v The King (1911) 13 CLR 619, Shepherd v The Queen (1990) 170 CLR 573). In this regard I adhere to what I recently said in that regard in Roberts v The Queen (Court of Criminal Appeal, 6 September 1994, unreported).

53. In so doing it is the obligation of the trial judge clearly to identify the critical issues pro and con. Whilst there was certainly discussion of features of the circumstantial evidence, he did not link these to the general concept in a meaningful way and, more importantly, he failed to instruct the jury that it could only base an adverse finding as to guilt upon a conclusion that such finding was not only a rational inference to be drawn from the proven facts, but also that no rational hypothesis consistent with innocence remained on the evidence.

54. One remarkable feature of the trial was that, despite being urged by both counsel to rectify that deficiency, by way of redirection, the learned trial judge declined to accede to their request. That was a clear error which, taken alone, must inevitably lead to the allowing of the appeal.

55. Finally, it is further appropriate to acknowledge the force of Mrs Shaw's criticism of the summing up as to the issue of identification. This loomed as a critical area of consideration. It was incumbent on the learned trial judge not only to summarize the key features of the evidence, in the context of the usual warning to the jury of the dangers attendant upon identification evidence, but also particularly to draw very specific attention to the important differences and discrepancies which arose on the evidence in that regard. His obligations in that regard are clearly spelt out in Domican v The Queen (1992) 173 CLR 555 and he failed to discharge them. The relevant discrepancies clearly emerge from my resume of the evidence.

56. That also was an omission fatal to the validity of the verdicts rendered - the more so as the timings of the various offences raised a very real question as to whether it would have been physically possible for the accused to have been involved in all of them, given the time and space considerations applicable to them, and the fact that certain of the discrepancies were patently significant.

57. Since writing the foregoing I have had the benefit of reading the reasons prepared by Mohr J. I entirely agree with the point made by him. As I have earlier indicated, the shirt worn by the appellant on the occasion of the purported identification in Rundle Mall was so striking that it necessarily made him stand out in a crowd and inevitably drew special attention to him. It was, as Mohr J has pointed out, a factor which rendered the identification exercise invalid for forensic purposes.

58. For all of those reasons I would allow the appeal and quash the verdicts in question. I would remand the accused for retrial on Count 3 only, as it seems to me that there is no admissible evidentiary basis which has been put forward capable of sustaining a conclusion, beyond reasonable doubt, of the guilt of the accused as to Count 2.