R v Blair - [2005] SASC 319

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BLAIR & KIPA
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
19 August 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appeal against conviction – appellants jointly charged with one count of false imprisonment, one count of demanding money with threats and three counts of robbery in company – jury unable to reach verdict in relation to first, second, third and fifth counts – verdict of guilty in relation to fourth count – alleged inconsistency of verdicts – whether verdict unsafe and unsatisfactory – appeal dismissed.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Additional grounds of appeal raised by appellant Kipa – admissibility of photographic identification – admissibility of dock identification – whether prosecution introduced a new case in its closing address to the jury – whether miscarriage of justice resulted – alleged deficiencies and inconsistencies in and between evidence of Crown witnesses – whether verdict unsafe and unsatisfactory – appeal dismissed.
Kidnapping Act 1960 s 3(1); Criminal Law Consolidation Act 1935 ss 158(b), 353(1); Crimes Act 1990 (NSW) ss 327(1), 328; Criminal Appeal Act 1912 (NSW) s 6(1), (2), referred to.
Mackenzie v The Queen (1996) 190 CLR 348; R v Stone (unreported, EWCA Crim, Devlin J, 13 December 1954); R v Kirkman (1987) 44 SASR 591; MFA v The Queen (2002) 213 CLR 606; Jones v The Queen (1997) 191 CLR 439; R v Hansen (2002) 84 SASR 54; Alexander v The Queen (1981) 145 CLR 395; R v Bunting & Wagner (No 6) (2003) 231 LSJS 44; R v Dixon & Henry (unreported, SASC, 11 December 1996, judgment no S5924); R v Britten (1988) 51 SASR 567; Clark & Ors v The Queen (1996) 91 A Crim R 46; M v The Queen (1994) 181 CLR 487, considered.

R v BLAIR & KIPA
[2005] SASC 319
Court of Criminal Appeal: Duggan, Debelle and Besanko JJ

DUGGAN J. I agree that the appeals should be dismissed for the reasons given by Besanko J.
DEBELLE J. I have had the advantage of reading the draft reasons of Besanko J. I agree with them. I agree that the appeals should be dismissed.
In respect of that ground of each appeal which in effect complained that the verdict of guilty on count 4 was inconsistent with a failure to reach a verdict on the other counts, I add the following. The failure of the jury to reach a verdict means no more than that the jury was unable to agree. It does not go so far as to indicate that the jury disbelieved the complainant, a conclusion which might be open if a verdict of not guilty had been returned. Where, as here, the jury was unable to return a verdict on all counts save one, a verdict of guilty on that one count is not necessarily inconsistent with the inability of the jury to reach a verdict in respect of the other counts. It does, however, indicate that the jury has given separate consideration to each count. As Besanko J explains in his reasons, the verdict in respect of count 4 may well be a consequence that there was in respect of that count other evidence which, when considered with the oral evidence of Mr Sadler, was capable of proving the prosecution case whereas evidence of that kind did not exist in respect of the other counts.
Besanko J’s reasoning proceeds on the footing that, for the purpose of the submission of inconsistent verdicts, a failure to reach a verdict should be regarded in the same way as a verdict of not guilty. Plainly, it is not. Besanko J has, therefore, examined the issues on the most favourable footing for the appellants. Given the difference between a verdict of not guilty and a failure to reach a verdict, the reasons of Besanko J are all the more compelling.
I wish also to reinforce the reasons of Besanko J in two other respects. I deal first with the complaints by the appellant Kipa concerning the identification evidence. I agree with Besanko J’s conclusion that the appellant Kipa does not stand out as the only person of Maori descent in the array of photographs. The array had been prepared to include people with facial characteristics and an appearance similar to that of Kipa. An examination of the photographs reveals that it fulfilled that purpose. Most, if not all of the photographs, are of persons of Maori, Islander or Aboriginal descent. All photographs of men who had a moustache and goatee beard. The question is whether this was a fair array. In my view, it plainly was.
The statement that a Maori had been arrested was unfortunate. However, it does not have the consequence that the identification was influenced by that remark. Sadler was told that the accused might or might not be in the array. Furthermore, whatever was said, the task remained for Sadler to identify the man who he believed was Kipa from an array of photographs of 12 individuals chosen because of facial characteristics similar to that of Kipa. Had the photographic array comprised one person of Maori descent and the remaining persons all of Caucasian descent the submission would have been compelling. In the circumstances of this photographic array, it is not.
The submissions in relation to the dock identification seek to make more of what is a relatively formal identification made after other evidence from Mr Sadler of the identification from the array of photographs. It was done in accordance with the practice described in Britten (1988) 51 SASR 567 and in Clark, Greatbatch & White v R (1996) 91 A Crim R 46. In addition, the judge gave an appropriate direction.
Secondly, I agree with Besanko J that the submission that, in the course of the identification by Sadler from photographs, Mr Carr assisted Sadler to make the identification by pointing towards Kipa’s photograph must be rejected. The videotape evidence of the identification belies the submission. Although Mr Carr’s biro pen was pointing towards the bundle of photographs, the pen remained close to the pad on which he was leaning. It was not close to the photographs. The contention that he was pointing to a photograph is demonstrably wrong. The photographic array comprised of three rows of photographs. Although Mr Carr’s pen was pointing towards them, it is impossible to say which was being indicated.
BESANKO J:
Introduction
The appellant Peter William Blair and the appellant Dean Ronald Kipa were jointly charged with robbery in company in that it was alleged that on 2 November 2001 at Adelaide they, together with other persons, robbed Peter Sadler of a motor vehicle of the value of about $21,000. After a trial before a judge and jury in the District Court they were each convicted of that offence. A single judge of this Court has granted each appellant leave to appeal against his conviction.
The information contained other counts against the appellant Blair and the appellant Kipa. Each offence was said to have occurred on 2 November 2001. The count on which they were each found guilty was the fourth count in the information.
The first count was false imprisonment (an offence at common law), the second count was the offence of demanding money with threats (s 3(1) of the Kidnapping Act 1960) and the third, fourth and fifth counts were of the offence of robbery in company (s 158(b) of the Criminal Law Consolidation Act 1935 (“CLCA”)). The third, fourth and fifth counts each particularised different items alleged to have been stolen.
The jury, after deliberating for about 14 hours, were unable to reach verdicts in relation to the first, second, third and fifth counts, and after delivering their verdict in relation to the fourth count, the jury was discharged by the judge. In relation to those counts, the judge ordered that the appellant Blair and the appellant Kipa be remanded for re-trial.
The appellant Blair gave evidence at the trial. The appellant Kipa did not give evidence at the trial. There are grounds of appeal which are common to both appellants. In addition, the appellant Kipa raises some grounds of appeal which are not raised by the appellant Blair.
The appellant Blair submits that the conviction in relation to the fourth count is inconsistent with the jury’s inability to reach a verdict of guilty in relation to the first and second counts. He also submits that the judge erred in failing to direct the jury as to the evidence which was capable of amounting to what the judge described as “some other evidence independently supportive of Mr Sadler’s evidence” in relation to the fourth count.
The appellant Kipa also submits that the conviction in relation to the fourth count is inconsistent with the jury’s inability to reach a verdict of guilty in relation to the first and second counts. In addition, identification was an issue in the prosecution case against him and the appellant Kipa submits that the judge erred in admitting in evidence a photo identification of him and that he also erred in allowing an in-court or dock identification of him. The appellant Kipa also submits that there was a substantial risk of a miscarriage of justice by reason of the fact that during his closing address to the jury counsel for the prosecution introduced what was said to be an alternative case against him. He also submits that for various reasons the verdict is unsafe and unsatisfactory and should be set aside.
The prosecution case against both the appellants
It is convenient at this point to outline the prosecution case against the appellants.
In 1999 and 2000 there were business dealings between a Mr Peter Sadler and the appellant Blair and companies owned and controlled by each of them. The dealings related to a water disinfection system which, it was said, had been invented and then developed by Mr Sadler. An agreement was entered into on 22 October 1999 which created a partnership between Mr Sadler and the appellant Blair or companies owned and controlled by each of them. The business of the partnership did not proceed smoothly, and on 5 April 2000 Mr Sadler sent a letter to the appellant Blair terminating the agreement. For a time after the purported termination there was correspondence between Mr Sadler and the appellant Blair. There was no contact between Mr Sadler and the appellant Blair from about July 2000 to 2 November 2001, a period of approximately 15 months. During that time, the appellant Blair’s company was deregistered. The appellant Blair said that Mr Sadler owed him money which Mr Sadler denied.
In November 2001 Mr Sadler lived in Belair. He owned a white 1982 Porsche 944 (“the Porsche”). He worked in the city, and his office was in Flinders Street. The building in which he worked had an underground carpark. On the morning of 2 November 2001 Mr Sadler drove into the carpark and parked his Porsche. He left his Porsche and proceeded to walk towards the lift. He was carrying a handful of letters including a notice from Revenue SA for an emergency services levy. As he walked towards the lift Mr Sadler saw a man running towards him. The man tackled Mr Sadler and got behind him and restrained him. Two other men then appeared and grabbed Mr Sadler. A van drove forward and the passenger side door of the van was open. Mr Sadler was pushed into the van between two rows of seats and his head was pushed down and his feet were jammed under the seat. A male was sitting in the rear seat next to Mr Sadler and he placed a blanket on Mr Sadler’s head. The van went up the ramp of the underground carpark and someone in the van said words to the effect that, if Mr Sadler did what he was told, he would be alright but if he did not then he would be shot. Shortly after that comment, the same man told Mr Sadler that they knew his address, which he stated, that they were watching his family and that his family would be alright as long as he did the right thing. It seems that the van then proceeded out of the city. Mr Sadler could not see where the van was going. At some point, Mr Sadler’s watch, mobile phone and keys were taken from him. The van proceeded to the carpark at Mount Lofty Summit. The driver of the van said to Mr Sadler, “Do you know who this is?” and he pointed to a male in the seat in front of Mr Sadler. Mr Sadler recognised the man as the appellant Blair. However, Mr Sadler denied at that point that he recognised the appellant Blair. The van then proceeded towards the Cleland Conservation Park and Mr Sadler was told to get on the floor again. He did that and the blanket was again put over him. The van stopped again and Mr Sadler was told to sit up which he did. The van was at an oval which Mr Sadler subsequently identified as the Ashton Oval. All of the men left the vehicle, and Mr Sadler spoke to the appellant Blair. Mr Sadler said to him, “You are Peter Blair” and the appellant Blair said, “That’s right, Peter.” Mr Sadler asked the appellant Blair what he wanted and the appellant Blair said that the boys he worked with were pretty upset and that Mr Sadler had cost them a lot of money. Mr Sadler asked how and the appellant Blair said words to the effect of, “We put a lot of time and effort in. My boys are pretty upset. They have lost their $60,000.” Mr Sadler was frightened and said, “I’ll pay you back. What do you want me to do?” The appellant Blair said that he would go and talk to his friends.
At that point, an elderly woman drove into the carpark at the Ashton Oval and all of the men got back into the van and it left. They drove through the Adelaide Hills back to Crafers on to the freeway and then back into the city eventually arriving at the entrance to the underground carpark in the building in which Mr Sadler worked. During the trip back to the underground carpark, the driver of the van, whom Mr Sadler subsequently identified as the appellant Kipa, said to Mr Sadler, “Listen carefully, answer me correctly and immediately the first time or you are dead, is that clear? So are you prepared to pay back $60,000?” Mr Sadler said yes but he did not know how he was going to get the money. The driver became angry and said, “That’s the wrong answer. $60,000 today.” Mr Sadler said that that was not possible and that he needed until the end of the week. The driver said, “Alright, next week but the price has just gone up to $75,000. You have got until Thursday morning and every day after that is another $10,000”. Mr Sadler agreed to that because he feared for his own safety and for the safety of his family. As I have said, Mr Sadler denied that he owed money to the appellant Blair or any company associated with him.
The driver asked Mr Sadler how much money he had with him and he asked Mr Sadler to get the money out. Mr Sadler had the sum of $90 in his wallet and he passed that money to the person next to him in the van. The driver asked what else Mr Sadler could put up by way of collateral, that is, before they returned the following week, and Mr Sadler suggested his computer. There was a “discussion” about the computer, who owned it and the password to the computer. Then it was suggested to Mr Sadler that he give them his vehicle, and Mr Sadler agreed to do so because he was in fear of what the men might do to him and to his family. He told the driver that the ownership papers for the vehicle were in the glovebox and the driver said that they would get them. Mr Sadler was asked how much cash he could get that day and he said he could raise the sum of $400. The driver told Mr Sadler that that was a death number and that he wanted the sum of $500. Mr Sadler agreed but said that he would have to cash cheques.
After the van had arrived back at the entrance to the carpark, Mr Sadler and one of the men walked down to Mr Sadler’s Porsche. Mr Sadler unlocked the vehicle, handed the registration papers to the man and explained how the security system worked. A second man then appeared and the first man drove off in Mr Sadler’s Porsche. At the time the Porsche was worth in the region of $21,000.
Mr Sadler and the second man went back to the van and drove to Rundle Street. The appellant Blair selected a café to meet Mr Sadler again at about 1.30 pm that day. Mr Sadler was then taken back to the office building in which he worked and left out the front at about midday. Mr Sadler subsequently obtained $500 in cash by cashing two cheques at a branch of the ANZ Bank on Hutt Street. The cheques were cashed at 12.15 pm and 12.16 pm.
At 1.30 pm Mr Sadler met the appellant Blair and the driver of the van at the designated café. Mr Sadler gave the appellant Blair the sum of $500 in cash and he signed the registration papers for the Porsche. The appellant Blair said that he would contact Mr Sadler on Monday and Wednesday of the following week on his mobile telephone. The meeting then ended.
The forcing of Mr Sadler into the van and keeping him there formed the basis of the first count of false imprisonment. The demand for $60,000 and accompanying threats formed the basis of the second count of demanding money with threats. The taking of the sum of $90 accompanied with threats formed the basis of the third count of robbery in company. The taking of the Porsche accompanied with threats formed the basis of the fourth count of robbery in company. The taking of the sum of $500 accompanied with threats formed the basis of the fifth count of robbery in company.
Mr Sadler eventually told Mr Hutchison, a friend and business colleague, what had occurred that morning. Mr Hutchison contacted the police by telephone and spoke to Mr Anthony Carr, a detective at Adelaide CIB. Mr Carr then rang Mr Sadler and they arranged to meet at 5.00 pm on that day. At that time Mr Carr took a lengthy statement from Mr Sadler. On 5 November 2001 the police obtained a telephone interception warrant from a judge of the Federal Court of Australia in relation to telephone calls made to and from Mr Sadler’s mobile telephone. There were recordings of five calls made to the telephone by the appellant Blair.
The appellant Blair and the appellant Kipa came to Adelaide from New South Wales and they returned to New South Wales on 2 November 2001. They came back to Adelaide on Friday, 9 November 2001 and it was at that time that they were arrested.
The appellant Blair and four men of Maori descent had booked into the Old Lion Apartments in Jerningham Street, North Adelaide on 31 October 2001. The prosecution case was that the appellant Blair and the appellant Kipa and others had travelled to Adelaide in a van from New South Wales. They left Adelaide at about 10.15 pm on Friday 2 November 2001 to return to New South Wales. The prosecution case was that a policeman, Mr Day, issued a speeding ticket to the driver of the van on Saturday, 3 November 2001. In addition to the driver of the van, there were two passengers in the van and the prosecution case was that proceeding in front of the van was a white Porsche. In January 2003 Mr Sadler’s Porsche was found by police on a farm property about 100 km north-west of Newcastle in the State of New South Wales.
On 1 November 2001 Mr John Callus and Mrs Irene Callus met the appellant Blair in the metropolitan area of Adelaide. Mr Callus first met the appellant Blair at the Belair Hotel. The appellant Blair was with four other males who were all big men with solid builds and the appellant Blair told Mr Callus that they were all Maoris. They went to Mr Callus’ home and there was a discussion between the appellant Blair and Mr and Mrs Callus. The appellant Blair said that he was hoping to get some money from Mr Sadler and he mentioned a figure of $60,000. Mrs Callus gave evidence that the appellant Blair said that Mr Sadler owed him $60,000 and that, if he did not give it to him, he was going to be put in the back of the van and they would “rough him up”. Mr Callus overheard the appellant Blair saying something to this effect to his wife.
The evidence of the appellant Blair

It is convenient at this point to identify the key features of the appellant Blair’s evidence.
The appellant Blair said that Mr Sadler owed him money as a result of their business dealings. In October 2001 he lived in Sydney. He wished to come to Adelaide with the appellant Kipa to inspect a hotel he was looking to purchase. He hired a Tarago van and drove to Adelaide with the appellant Kipa and another man. When they arrived in Adelaide they were joined by two other men. They stayed at the Old Lion Apartments from 31 October 2001 to Friday 2 November 2001. He then drove back to New South Wales with the appellant Kipa.
While in Adelaide he decided to speak to Mr Sadler who owed him about $60,000. He met Mr Sadler at about 9.30 am on 2 November 2001. There were no threats and no journey to the Adelaide Hills in a van. Mr Sadler asked the appellant Blair if he could help him to dump his Porsche but the appellant Blair said that he was not interested.
The appellant Blair said that he did not drive back to New South Wales in convoy with a Porsche or indeed with any other vehicle.
The appellant Blair and the appellant Kipa came back to Adelaide about a week later at which time they were arrested.
I turn now to consider the grounds of appeal. I start with the grounds which are common to both appellants.
Alleged inconsistency of verdicts
The appellants submit that the conviction in relation to the fourth count is inconsistent with the jury’s inability to reach a verdict of guilty in relation to the first and second counts. The particulars of this ground of appeal are as follows:
The Crown case was that the facts which based Counts 1 and 2 ie, the false imprisonment and the demanding money with menaces were the basis upon which the car subject of Count 4 was stolen.
As the jury were not satisfied that either Count 1 or Count 2 occurred they could not be satisfied that the requisite element of robbery had occurred sufficient to justify a conviction for Count 4.
The jury must have speculated that the robbery must have occurred some other way, about which there was no evidence.
A number of general points may be made at the outset. First, this is not a case of legal or technical inconsistency. Such a case will be apparent on the face of the court’s record and the examples of legal or technical inconsistency given by Gaudron, Gummow and Kirby JJ in Mackenzie v The Queen (1996) 190 CLR 348 (“Mackenzie”) include a person being convicted of attempt to commit an offence and of the completed offence, and a person being convicted of larceny and receiving in respect of the same property and on the same occasion. If this is a case of inconsistency, it is a case of factual inconsistency. In a case of alleged factual inconsistency, the verdict will only be set aside if it rises to the point of establishing that the verdict is unsafe or unsatisfactory.
The second general point is that this is not a case of the jury reaching verdicts of guilty on some counts and not guilty on other counts. Instead, it is a case of a jury not being able to reach a verdict in relation to some counts but able to reach a verdict in relation to another count. As I have said, the jury deliberated for 14 hours. The members of the jury indicated to the judge that they did not think further time would be of assistance in terms of reaching verdicts in relation to the first, second, third and fifth counts. The judge saw fit to discharge them at that point. I am prepared to proceed on the assumption most favourable to the appellants and assume for the purpose of this case that there is no difference in terms of the submission as to inconsistency between a verdict of not guilty on the one hand and the failure by a jury after adequate time to reach a verdict on the other. Whether that will always be so is a matter I need not consider. I have reached the conclusion that, even proceeding on the assumption I have identified, the submission as to inconsistency must fail.
In Mackenzie, a solicitor was charged with offences against s 327(1) and s 328 of the Crimes Act 1990 (NSW) of making a false statement on oath and of perjury in relation to evidence he had given at the trial of his client. Section 328 was the more serious offence because it was an element of the offence that the perjury be committed with the intention of procuring the conviction or acquittal of any person of any serious offence. The defendant was acquitted of the more serious offence but convicted of the offence against s 327(1). It was submitted that the verdicts were inconsistent because, having regard to the way in which the case had been conducted, it was not possible to see how the defendant could have had an intention in deliberately giving false evidence other than an intention to secure his client’s acquittal. The High Court rejected the submission. Dawson and Toohey JJ agreed with the joint reasons of Gaudron, Gummow and Kirby JJ (“the joint reasons”) on this point.
In the joint reasons, it is said that in a case where the alleged inconsistency arises in the context of jury verdicts upon differing counts, the test is one of logic and reasonableness. The following passage from the judgment of Devlin J in R v Stone (Unreported, EWCA Crim, 13 December 1954) is cited with approval (at 366):
He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.
The point is also made that ordinarily an appeal court is reluctant to accept a submission that verdicts are inconsistent in the relevant sense. Their Honours said (at 367) (citations omitted):
Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.
Their Honours also said that apparently inconsistent verdicts may be explained by the fact that the jury has taken a “merciful” view of the facts upon one or more counts. They referred to the following passage in the reasons for judgment of King CJ in R v Kirkman (1987) 44 SASR 591 (at 593):
[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of the administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
Their Honours said that they agreed with these practical and sensible remarks, although they also made the point that “mercy” on the part of the jury is not always sufficient to justify apparent inconsistency between verdicts on alternative counts.
The onus of establishing inconsistency is on the person making the submission. In the joint reasons their Honours make it clear that it is impossible to state hard and fast rules and that resolution of the issue will depend upon the facts of the case. The inconsistency which will lead to intervention by an appeal court is one which strongly suggests a compromise of the performance of the jury’s duty, or more commonly, “it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law” (at 368).
The question of inconsistency of verdicts was again considered by the High Court in MFA v The Queen (2002) 213 CLR 606 (“MFA”). A man was charged on indictment with nine offences of a sexual nature against a male youth. The sexual acts to which the nine offences related occurred on four separate occasions. The jury acquitted on seven counts and convicted on two counts which related to the same occasion. The appeal was brought under s 6(2) of the Criminal Appeal Act 1912 (NSW) which was in similar terms to s 353(1) of the CLCA in that it provided that the appeal court should allow an appeal “if it is of opinion that 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”. The appellant in MFA contended that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence and to the verdicts of not guilty on the other counts.
The joint reasons of Gleeson CJ, Hayne and Callinan JJ contain a number of propositions which are of particular significance in this case. Their Honours said (at 617) (citations omitted):
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
Their Honours also made the point that the Court’s decision in Jones v The Queen (1997) 191 CLR 439 (“Jones”) is not authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. The principles established in Mackenzie are not in any way qualified by what was said in Jones. Their Honours made the point that under s 6(1) of the Criminal Appeal Act the test is one of unreasonableness, not inconsistency. Their Honours said that there was an obvious explanation for the differences between verdicts including the fact that there was evidence which supported the complainant’s evidence in relation to the counts in respect of which the appellant was found guilty and the fact that in relation to counts in respect of which the appellant was found not guilty there was the unexplained absence of evidence from people who were said to be eyewitnesses.
McHugh, Gummow and Kirby JJ also wrote joint reasons. Their Honours reasoning was similar to that of Gleeson CJ, Hayne and Callinan JJ (see [85] – [89]).
In this context reference should be made to the decision of this Court in R v Hansen (2002) 84 SASR 54 (“Hansen”) which was relied on by the appellants. The defendant in that case was charged with a number of sexual offences against one victim which were said to have occurred on different occasions over a period of time. He was convicted of one group of offences, but acquitted of another group of offences. The prosecution case depended on the evidence of the complainant and, as I understand the facts, there was no supporting evidence in relation to any of the offences, and nothing to suggest it was more likely that one group of offences occurred than another group of offences. This Court said that the verdicts were inconsistent and illogical and allowed the appeal. Lander J, with whom Doyle CJ agreed, said (at 70):
On the evidence, I cannot see how the jury could be satisfied beyond reasonable doubt on counts 6, 7 and 8, if upon the complainant’s evidence they were not satisfied beyond reasonable doubt in respect of the other counts. There was no further evidence which made MWJR’s evidence more likely to be reliable in respect of those counts than the other counts. There was nothing about the circumstances of the alleged offences which made them more inherently likely to have occurred. If anything the circumstances underlying these charges were more bizarre and even more depraved than the others.
Lander J did not think that the jury’s verdicts could be rationalised by reference to the jury’s innate sense of fairness and justice. The decision in Hansen is not inconsistent with the decision in MFA. In Hansen there was no difference in the prosecution evidence with respect to the various counts.
It is appropriate at this point to note the directions which the judge gave to the jury and his response to a question raised by the jury. The judge gave the jury a general direction to consider each offence and each accused separately and a general direction that they could accept any witness either entirely or in part. After the jury had retired for some time the judge received a question from the jury in the following terms:
The threats in charge 2, demanding money with threats, happened in the van. If we find the defendant not guilty of the first count, would that mean the second count should also be not guilty? Would the same apply to the fourth count?
As a result of receiving this question the judge gave further directions to the jury. He reiterated the general directions about considering the charges separately and that the jury could accept any witness either entirely or in part. He then said:
These are the additional words which I did not give you initially: however, because proof of the case for the prosecution with regard to each alleged offence is necessarily dependent upon your acceptance of the evidence of Mr Sadler, you should consider what effect a verdict of not guilty with respect to one alleged offence may have upon your ability sufficiently to rely on the evidence of Mr Sadler to convict the accused of the other alleged offences. The position in that regard may be affected if, in considering another or other alleged offences, you were to be satisfied that there exists some other evidence, independently supportive of Mr Sadler’s evidence. That is a matter for you to consider.
The judge was asked by the jury to repeat part of what he had said earlier and he said:
It does not follow that, because your verdict in relation to one alleged offence is that of guilty or not guilty with regard to one accused, your verdict in relation to that alleged offence should be the same with regard to the other accused. (That just reinforces the fact that you have to consider each accused separately.) However, because proof of the case for the prosecution with regard to each alleged offence is necessarily dependent upon your acceptance of the evidence of Mr Sadler (he is the key witness and, indeed, the only witness in relation to the events alleged to have occurred in the Adelaide Hills), you should consider what effect a verdict of not guilty with respect to one alleged offence may have upon your ability sufficiently to rely on the evidence of Mr Sadler to convict the accused of the other alleged offences. (If you cannot rely on him about one, then that may reflect on whether you can rely on him about another.) Then I concluded: “the position in that regard may be affected if, in considering another or other alleged offences (separately of course), you were to be satisfied that there exists some other evidence independently supportive of Mr Sadler’s evidence. That is a matter for you to consider.” (In other words, you may have some uncertainty about Mr Sadler’s evidence, alone, but if you find that there is some evidence supportive of his evidence, and independent of his evidence, that may be something that you wish to consider in determining whether you are able to rely on his evidence because, in those respects, it would not be standing alone.)
The appellants put their submission in relation to inconsistency in two ways.
First, they submitted that the prosecution case in relation to each charge depended on the acceptance by the jury of the evidence of Mr Sadler beyond a reasonable doubt. It was put that the jury clearly did not accept the evidence of Mr Sadler beyond a reasonable doubt in relation to the facts comprising the first, second, third and fifth counts and, therefore, the jury must have speculated as to how the offence in the fourth count occurred. If the jury concluded that the offence in the fourth count occurred in a way quite different from the way recounted by Mr Sadler then they exceeded their permissible function. I agree that the verdict of the jury in relation to the fourth count would be unsafe and unsatisfactory if there was a strong inference that the jury based its verdict on a version of events quite different from the evidence put forward by the prosecution. However, for the reasons I will give, I do not think that there is a strong inference that the jury did act in that way.

In my opinion, there was evidence in addition to the oral evidence of Mr Sadler which supported the prosecution case on the fourth count so that it is not to be inferred that the jury’s inability to reach a verdict in relation to the other counts implies that Mr Sadler has been disbelieved or a want of confidence in him. I think this is a case where the matters referred to by Gleeson CJ, Hayne and Callinan JJ in MFA (at 617) provide an answer to the appellants’ first submission as to inconsistency.
I now turn to discuss the evidence which supported Mr Sadler’s evidence in relation to the fourth count. There was evidence which was not in dispute that the appellant Blair hired the van in Newcastle and he nominated the appellant Kipa as the alternative driver. Nor was it in dispute that Mr Sadler’s Porsche was found by police on a property about 110 kilometres from Newcastle in New South Wales.
There was evidence of a Mr Benjamin Kreig who in November 2001 was the duty manager at the Old Lion Apartments. He was on duty during the afternoon of 31 October 2001 when three men booked into unit 44. He said the men “appeared to look Maori or New Zealand”. He was not on duty on 1 November 2001. On 2 November 2001 he was on duty and he noticed a white Porsche with a damaged bumper bar in the carpark. The carpark could only be used by hotel guests. At about 10.00 pm on 2 November 2001 the occupants of unit 44 including a “white guy” checked out and left the apartments in a Tarago and a Porsche. The Porsche had South Australian number plates. Mr Kreig subsequently identified the appellant Blair as one of the men. It is true that Mr Kreig told the police that he first saw the Porsche on 31 October 2001 and, if that was so, then it could not have been Mr Sadler’s Porsche. However, I think that it was open to the jury to find that Mr Kreig was mistaken about when he first saw the Porsche and to accept Mr Kreig’s evidence that he saw the white Porsche on 2 November 2001. With other evidence, it was open to the jury to find that the men he saw were the appellants and others and that the Porsche was Mr Sadler’s vehicle. Although Mr Kreig’s evidence does not support every element of the offence of robbery in company of Mr Sadler’s vehicle by the appellants, it does support important aspects of it.
There was also evidence of Ms Kim Hurst who in October 2001 was the property manager of the Old Lion Apartments. She said that on 31 October 2001 the appellant Blair and four other men booked into the apartments and were given unit 44. The records of the apartments show that they departed on 3 November 2001, although they in fact left during the evening of 2 November 2001. The four men with the appellant Blair appeared to be Maoris. Sometime between 11.00 am and 1.00 pm on 2 November 2001, she saw the men come back to the apartments in two vehicles. One was a white Tarago and the other was a white vehicle, although she did not recognise its make. Ms Hurst was able to identify the appellant Blair from the photographic identification but she was not able to identify any of the other men.
There was evidence of Mr Stephen Day who in November 2001 was an officer in the New South Wales Police Force, based at Yass on highway patrol. On Saturday 3 November 2001 Mr Day issued a speeding ticket to the appellant Kipa who was driving a Toyota Tarago van. There were two other men in the van. Mr Day said a white Porsche was travelling a short distance in front of the van. Mr Day’s evidence on this last point was the subject of strong challenge in cross-examination. I have read the evidence and I think that it was open to the jury to accept Mr Day’s evidence that a white Porsche was travelling in front of the van which was being driven by the appellant Kipa. With other evidence, it was open to the jury to infer that the van and Porsche were travelling in convoy, that the men in the vehicles included the appellants and that the Porsche was Mr Sadler’s vehicle. As with Mr Kreig’s evidence, although Mr Day’s evidence does not support every element of the offence of robbery of Mr Sadler’s vehicle by the appellants, it does support important aspects of it.
I reject the challenge by the appellants to the evidence of Mr Kreig and Mr Day and, in particular, the submission that it could not be supporting evidence or that it was otherwise so unsatisfactory that the possible reliance by the jury on the evidence renders the verdict unsafe and unsatisfactory.
I reject the submission that there was factual inconsistency between the jury’s verdict in relation to the fourth count and its inability to reach a verdict in relation to the other counts. Other than some relatively slight supportive evidence in relation to the fifth count (ie., evidence that monies were obtained by Mr Sadler by cashing cheques at a branch of the ANZ Bank on Hutt Street) the only count for which there was supporting evidence was count four. To adopt the words of Gleeson CJ, Hayne and Callinan JJ, some or all members of the jury may have required some supporting evidence before they were satisfied beyond reasonable doubt on the word of Mr Sadler. That is not unreasonable and does not necessarily involve a rejection of Mr Sadler’s evidence.
The appellants put their submission as to inconsistency another way. They submitted that there was an inconsistency between the verdict of guilty in relation to the fourth count and the jury’s inability to reach a verdict in relation to the second count. It was submitted by the appellants that on the prosecution case the threat for the purposes of the second count was the same threat relied on for the purposes of the fourth count. It was put that the jury could not at one and the same time be satisfied beyond reasonable doubt of the making of a threat for the purposes of the fourth count, but not be so satisfied of the threat for the purposes of the second count.
The second count is the demanding of money with threats of Mr Sadler contrary to s 3(1) of the Kidnapping Act, 1960. The count was amended prior to trial to delete the words “and property” after the word, “money”. The fourth count is robbery in company of Mr Sadler of a motor vehicle of the value of about $21,000. An element of robbery is the use of force or the threat of force, and in this case the prosecution relied on the threat of force.
It is apparent from Mr Sadler’s evidence that the appellants and their associates whilst at the Ashton Oval demanded of Mr Sadler the sum of $60,000. Prior to that time there had been threats of a general nature made to Mr Sadler and some mild physical force applied to him. The demand for $60,000 (or $75,000 if it was not paid for a week or so) continued after the group left the Ashton Oval and Mr Sadler was warned that if he told anyone they would “wipe out his family tree”. At various times, the driver of the van said to Mr Sadler that he would break his jaw or “turn him into fertiliser”. There was then a discussion about collateral and Mr Sadler’s computer. The driver then asked Mr Sadler what else he could offer and reference was made to Mr Sadler’s Porsche. Mr Sadler said in evidence that he agreed to hand over his Porsche because he feared for his life and that of his family.
There is no doubt that on Mr Sadler’s evidence there was a link between the demand for $60,000 and the demand for the vehicle. It is a fair inference that the appellants and their associates were pursuing the sum of $60,000 and the “discussion” only turned to the vehicle when Mr Sadler indicated that he could not pay that sum immediately. Despite that link, I think it was open to the jury to find that, although they could not be satisfied beyond reasonable doubt that there was a relevant threat in relation to the money, they were satisfied beyond reasonable doubt that there was a threat of force in relation to Mr Sadler’s vehicle. I say that because on Mr Sadler’s evidence a number of threats were made over a period of time. It might be said that it is surprising the jury reasoned in this way, but that is not the test of inconsistency. As was said in the joint reasons in Mackenzie (at 367):
If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.
As I said earlier in connection with the first way the appellants put their submission as to inconsistency, the jury might have considered that Mr Sadler was probably telling the truth in relation to the threats in connection with the money but were prepared to convict only in relation to the fourth count because of the supporting evidence in relation to that count.
The appellants raised a related matter in their respective grounds of appeal. They submitted that the verdict in relation to the fourth count was unsafe and unsatisfactory because the judge erred in failing to direct the jury “what evidence if any was capable of amounting to ‘supporting evidence’ for the purpose of count 4”.
I do not think the judge did err in the manner alleged. It is true that he did not identify the supporting evidence at the time he gave the direction but I do not think that he was required to do so. He had previously referred to the evidence of Mr Kreig, Ms Hurst and Mr Day in some detail. I do not think the jury would have had difficulty in bringing to mind their evidence as possibly supporting Mr Sadler’s evidence in relation to the fourth count. I do not think the judge was required to extend an already lengthy summing up by referring to that evidence again.
The appellant Blair’s appeal must be dismissed. The equivalent grounds of appeal raised by the appellant Kipa must be rejected.
The appellant Kipa raised additional grounds of appeal. The appellant Kipa did not give evidence. Identification was an important issue in terms of the prosecution case against him. He refused to participate in a line up and his photograph was identified by Mr Sadler. He was also identified in court by Mr Sadler. The prosecution case was that the appellant Kipa was the driver of the van. However, in his closing address to the jury, counsel for the prosecution suggested that the jury could find the appellant Kipa guilty of the charges if they were satisfied beyond reasonable doubt that he was one of the men in the van, even if they were not satisfied beyond reasonable doubt that he was the driver.
On appeal, the appellant Kipa submitted that the judge erred in admitting the evidence of the photographic identification and in allowing Mr Sadler to identify the appellant Kipa in court. The appellant Kipa also submitted that the judge erred in allowing the prosecution case to go to the jury on the basis that the appellant Kipa could be found guilty if they were satisfied beyond reasonable doubt that he was the driver or one of the men in the van. The appellant Kipa also submitted that there were so many inconsistencies in Mr Sadler’s evidence that the verdict of guilty in relation to the fourth charge was unsafe and unsatisfactory.
I will deal with each of these arguments in turn.
The admissibility of the photographic identification by Mr Sadler
The appellants refused to participate in an identification parade and it was not suggested that the police could not conduct a photographic identification: Alexander v The Queen (1981) 145 CLR 395 (“Alexander”) per Gibbs CJ at 403. The police were under a duty to take every precaution reasonably available to safeguard against the miscarriage of justice that can occur by reason of an honest but mistaken identification.
Mr Sadler was asked by Mr Carr if he could identify the men involved from a series of photographs. On 13 November 2001 he was shown a folder of photographs and he identified a photograph of the appellant Blair. He was then shown another folder of photographs and he identified the appellant Kipa.
Counsel for the appellant Kipa asked the judge to exclude the photographic identification of him. The judge considered that application before the jury was empanelled. The appellant Kipa put forward various grounds upon which the judge should exclude the photographic identification including police impropriety, prejudicial effect exceeding probative value and unfairness to the accused. The judge declined to exclude the evidence and delivered reasons for his decision.
On appeal the question is whether, on the totality of the evidence, a verdict should not stand because a miscarriage of justice occurred: Alexander per Mason J (as he then was) at 430.
The appellant Kipa made three complaints about the photographic identification. First, he said that he was the only man of Maori descent in the 12 photographs shown to Mr Sadler. Secondly, he said that Mr Sadler was told by the police that they had arrested a suspect who was of Maori descent and he would be asked to identify him. Thirdly, he said that Mr Carr, the detective present at the photographic identification, assisted Mr Sadler to select the appellant Kipa. Before the judge the appellant Kipa submitted that the evidence should not have been admitted because there was police impropriety and the identification was unreliable. In those circumstances, the evidence of identification should have been excluded on the ground that it was unfair to the appellant to admit it or because the prejudicial effect of the evidence exceeded its probative value in the relevant sense.
The offences were alleged to have taken place on the morning of 2 November 2001. The offences were reported to the police and later that day Mr Carr obtained a 20 page handwritten statement from Mr Sadler. That statement was subsequently typed and became Mr Sadler’s first typewritten statement. He signed it on 4 November 2001. In his handwritten statement, Mr Sadler gave descriptions of his captors who he said were the appellant Blair and four Maori men. His description of the driver of the van who was said to be the appellant Kipa was:
Maori in his thirties, 183 centimetres big muscular build, 100 kgs, black hair shaven stubble (sic) only no facial hair very solid jaw, sunglasses platinum frame … well spoken with a mild NZ accent.
Mr Sadler said that three of his five captors including the appellant Blair had been wearing sunglasses. The judge found that the reference to the sunglasses was inexplicably omitted from Mr Sadler’s typewritten statement. An earlier description in the handwritten statement of the appellant Blair having worn sunglasses was included in the typewritten statement.
On 9 November 2001 the appellant Blair and the appellant Kipa were arrested. As I have said, the appellant Blair and the appellant Kipa declined to participate in identification parades and in those circumstances Mr Carr arranged for a photographic identification to take place in both cases.
On 12 November 2001, Mr Flitton of the Visual Identification Section of the Police Department created two photo packs each with 16 photographs including one for each of the appellant Blair and the appellant Kipa. Mr Flitton told Mr Carr that he had difficulty in selecting suitable photographs of Maori/Islander males comparable to the appellant Kipa. When he was arrested and photographed, the appellant Kipa had short black head hair, a goatee beard, moustache and facial stubble. Mr Flitton explained in evidence that he used the appellant Kipa’s physical appearance as the criteria for choosing other photographs from the Police Department’s library of photographs. Mr Flitton said:
What I try and do is match the other photographs in the photo ID pack as much as possible to the suspect’s photograph.
The appellant Kipa had been classified as “Maori or Islander”. On the database, there were 130 such persons, only two of whom had goatee beards and crew cut hairstyles. Mr Flitton ignored ethnicity (apart from excluding Caucasians) and focussed on the appellant Kipa’s photographic appearance. From 30 suitable images, he chose 16 for the photo pack. Mr Flitton accepted in cross-examination that ethnicity is generally important “for the obvious photos” but he did not consider that the appellant Kipa’s photograph was of a person obviously of Maori descent as distinct from Aboriginal or Islander. From the photo pack created for the appellant Kipa, Mr Carr selected 11 photographs of men whom he considered were “the most like” the appellant Kipa in an endeavour to ensure that those men “were all of similar description and appearance”. Excluding the other four photographs, Mr Carr’s main criteria were “lengths of hair, goatee beard and the shape of the face”.
The photographic identification was conducted by Mr Carr on 13 November 2001 and he used the folder containing 12 photographs. Mr Sadler identified the appellant Kipa as being the person involved in the offences.
The appellant Kipa’s first submission was that Mr Sadler had identified the driver of the van as Maori and as the appellant Kipa was the only man of Maori descent included in the photo pack in those circumstances the photographic identification process was unfair or likely to be unreliable.
There are two answers to the appellant Kipa’s submission. The first is that the procedure of placing the suspect’s photograph in an array with photographs of other persons bearing a sufficient resemblance to him has been accepted for many years as the fairest procedure. In R v Bunting & Wagner(No 6) (2003) 231 LSJS 44 Martin J said (at 49):
In my opinion the difficulty facing the submission is the flaw in the underlying contention that in order for the parade to be fair, those engaged in it should fit the descriptions given by the witnesses. As I have indicated, the prevailing view in South Australia and, as far as I am aware, in the remainder of the country, is that fairness is best achieved by ensuring that those participating are of similar build and appearance to the accused.
Secondly, the important question is that identified by Duggan J in R v Dixon & Henry (unreported, SASC, 11 December 1996, judgment no S5924) namely:
The important question is whether there is unfairness in the selection such that prominence is given to the photographs of the suspects.
The trial judge said that having studied the photographs there was no unfairness of the type suggested. I have also studied the photographs, and I agree with the judge’s conclusion. The appellant Kipa does not stand out as the only person of Maori descent.
With respect to the appellant Kipa’s second submission, the judge made a number of findings. He found that, at some stage before the photographic identification, Mr Carr told Mr Sadler that a Maori had been arrested and that he did this to allay Mr Sadler’s fears for his safety and that of his family. The judge found that prior to the photographic identification procedure Mr Carr said to Mr Sadler, following the words of the proforma document, the following:
I understand that you may be able to identify the persons connected with the matter. I am about to hand you a folder which contains a number of photographs of male persons. The photographs are numbered and I ask you to look closely at all the photographs to determine if you are able to positively identify any of the persons shown. Prior to handing you the folder there are a number of important points which you are asked to be aware of. Firstly, the photograph of the person involved in the incident, under the investigation, may or may not be in the folder, do you understand that? [Answer, “Yes”] Viewing the photographs contained in this folder does not mean that you are obliged to make a selection, do you understand that? [Answer, “Yes”] Neither I nor any other persons are able to assist you in any way to make your selection … I want you to look at the photographs and in your own time tell me if you recognise any of the people shown as being involved in the incident I have mentioned.
The judge found that what was important was that Mr Carr had not told Mr Sadler that a photograph of a person involved in the incident was contained in the folder. The judge was satisfied that Mr Carr did not contravene that requirement, or the requirement that he act fairly and take every precaution reasonably available to guard against mistaken evidence of identification.

I agree with the judge’s conclusion. Mr Sadler was aware before the photographic identification was conducted that a person of Maori descent had been arrested and that he would be asked if he could identify the persons involved in the incident by reference to a number of photographs. Mr Carr did not suggest immediately prior to the photographic identification that the suspect or suspects were or were likely to be in the folder. He made it clear to Mr Sadler that the person or persons involved in the incident may or may not be in the photo pack. Mr Carr did not act inappropriately. In the absence of any unfairness resulting from the conduct of the police, the photographic identification was admissible but of course it remained open to the appellant Kipa to challenge the weight to be accorded to the photographic identification by the jury.
As to the appellant Kipa’s third submission, the judge found that Mr Carr’s pen did appear in the video of the photographic identification to be pointing in the general direction of the appellant Kipa’s photograph. The judge said that allowing for the error of parallax, however, he was not satisfied that Mr Carr’s pen was pointed at the appellant Kipa’s photograph. Furthermore, the judge accepted Mr Carr’s evidence that he did not assist, nor endeavour improperly to assist, Mr Sadler in making his decision.
This Court was shown the video of the photographic identification by Mr Sadler on a number of occasions. I could not detect anything whereby it might be said that Mr Carr consciously or unconsciously assisted Mr Sadler to identify the photograph of the appellant Kipa.
In my opinion, the appellant Kipa’s submissions in relation to the photographic identification considered either individually or collectively must be rejected. The judge did not err in admitting the evidence of the photographic identification.
The admissibility of the dock identification
The judge ruled that any witness, including Mr Sadler who had identified the appellant Kipa when the photographic identification was conducted, could be asked at the trial whether he or she could identify him in Court. The judge referred to R v Britten (1988) 51 SASR 567 (“Britten”) per King CJ at 572 and Clark & Ors v The Queen (1996) 91 A Crim R 46 (“Clark”) per Cox J at 52.
The appellant Kipa submitted that the judge erred in allowing Mr Sadler to make a dock identification of him. The thrust of the submission was that in the particular circumstances of this case such an identification was of no probative value. To support the submission the appellant Kipa referred to a number of matters. First, he said that prior to giving evidence Mr Sadler had seen the appellant Kipa in the same dock in a pre-trial hearing and had been shown the appellant Kipa’s photograph in one or maybe two prosecution briefing sessions. In addition, prior to making the dock identification, Mr Sadler was shown the appellant Kipa’s photograph in court with the signature on it, and Mr Sadler knew where the appellant Kipa would be in court. The appellant Kipa also submitted that the prosecutor assisted the appellant Kipa to make the dock identification. As to this last point I have read the transcript carefully and I do not think the prosecutor did assist Mr Sadler to identify the appellant Kipa.
In Clark Cox J said (at 52):
Such a procedure is often followed in this State: indeed, in Britten (1988) 51 SASR 567 King CJ said (at 572) that a witness who has identified an accused person out of court should always be asked at the trial whether he or she can identify the accused in court. It gives an honest witness an opportunity of reconsidering the matter and it may also stop the jury from inferring wrongly from the absence of a dock identification that the witness is unable to make one. Of course, there are negative aspects of such evidence. Probably the second identification will add very little, if anything, to the first. (It may, conceivably – the witness may see in Court some significant feature of the accused that was not observable in the photograph.) There was also, as the learned trial judge observed, some value in a dock identification for the jury, in a case involving multiple accused, in understanding which accused was alleged to have done what. Any risk that the jury’s common sense does not guarantee that a dock identification does not generally prejudice the accused will be removed by the usual direction in the summing up. If there are cases in which it would be wrong to permit a supplementary dock identification, the present case was not one of them. It did not produce any unfairness, I would reject this ground of appeal.
I do not think any of the matters identified by the appellant Kipa rendered a dock identification of him unfair. I reject the suggestion that a dock identification is only permitted for the benefit of the accused and therefore should not be allowed if he does not consent. That is not what King CJ said in Britten or Cox J in Clark.
The judge was required to give an appropriate direction to the jury as to the use that the jury may make of the dock identification. I think that he gave an appropriate direction. He said:
In addition to his photographic identification of Mr Kipa, Mr Sadler here, in this courtroom, identified Mr Kipa as having been involved in these offences; that is Mr Sadler purported to make what is called a dock identification, the dock being that part of the courtroom where the accused are seated. (I shall later refer to that evidence). Upon that dock identification, I must warn you that the value of such identification is very slight, where here what may have been involved was the matching by Mr Sadler of Mr Kipa, so identified, with a remembered impression which had “displaced”, in his memory, his recollection of his original sighting of the person involved in these offences. Having previously been shown and identified a photograph of the accused eleven days after these alleged offences were committed, the memory of that photograph may have been more clearly retained in his mind than the memory of the original sight of the person involved in these alleged offences and may, accordingly, have displaced his original memory. The particular dangers of this form of identification evidence – that is, dock identification – are such as to require that you be warned of those dangers. Such a warning I have given you.
The case against the appellant Kipa that he was one of the men in the van
In his opening to the jury, counsel for the prosecution told the jury that it was the prosecution case that the appellant Kipa was one of the men in the van and that Mr Sadler identified the appellant Kipa as the driver of the van. He addressed the jury on the legal principles relevant to the doctrine of joint criminal enterprise. He said that all five men in the van were party to an agreement to what occurred. It is clear from the opening that Mr Sadler was the only prosecution witness as to what occurred in the van and that he identified the appellant Kipa as the driver.
In the course of his closing address to the jury, counsel for the prosecution said that because of the doctrine of joint criminal enterprise, even if the jury was not satisfied that the appellant Kipa was the driver of the van, they could still find him guilty of the offences if they were satisfied beyond reasonable doubt that he was one of the men in the van. The submission was not developed beyond that statement.
Counsel for the appellant Kipa complained of this submission to the judge during the judge’s summing up. He said that he had conducted his case and, in particular, his case on identification, on the basis that the prosecution case was that the appellant Kipa was the driver. There was a debate as to what the prosecutor had said in his opening. After the judge had completed the greater part of his summing up, there was further debate about the issue. Counsel for the appellant Kipa said that although the judge had not left to the jury the possibility that he was one of the men in the van but not the driver, nevertheless he asked the judge to make it clear to the jury that, if they were not satisfied that the appellant Kipa was the driver, then they must acquit. Counsel for the prosecution submitted to the judge that he had flagged the possibility that the appellant Kipa was one of the men in the van even if not the driver and that in fact the judge should direct the jury to the effect that they could convict the appellant Kipa if satisfied of that fact beyond reasonable doubt. After hearing submissions, the judge decided to give no further directions to the jury in relation to the issue.
The appellant Kipa submitted that this state of affairs gives rise to a risk of a miscarriage of justice. I reject that submission. The prosecutor did leave open in his opening address to the jury the possibility that the jury could convict the appellant Kipa if they found that he was one of the men in the van but not the driver, and I cannot see how counsel for the appellant Kipa would have conducted his cross examination of Mr Sadler differently if he had not been (as he asserted) under the impression that the prosecution case stood or fell on the allegation that the appellant Kipa was the driver. In any event, the submission made by the prosecutor in his closing address was brief and was not developed, and, having read the summing up of the judge a number times, I think it is clear that he left the case to the jury on the basis that the prosecution case was that the appellant Kipa was the driver. I do not think the judge’s refusal to say anything more to the jury gave rise to a risk of a miscarriage of justice.
Was the verdict in relation to the appellant Kipa unsafe and unsatisfactory?
The appellant Kipa submitted that the verdict in relation to the fourth count was unsafe and unsatisfactory. I have already dealt with one aspect of that submission in the context of the alleged inconsistency of verdicts. However, the appellant Kipa also submitted that the verdict was unsafe and unsatisfactory because of inconsistencies in Mr Sadler’s evidence, and inconsistencies between Mr Sadler’s evidence and the evidence of other prosecution witnesses.
In M v The Queen (1994) 181 CLR 487 the High Court discussed the question an appeal court must ask itself when considering a submission that the verdict of a jury is unsafe or unsatisfactory. Mason CJ, Deane, Dawson and Toohey JJ said (at 493):
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 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.
(See Brennan J at 501-505; Gaudron J at 508-509 and McHugh J at 523-525.)
The appellant Kipa identified what he said were deficiencies and inconsistencies in Mr Sadler’s evidence and inconsistencies between his evidence and the evidence of other witnesses called by the prosecution. I will identify first in summary form what were said to be deficiencies and inconsistencies in Mr Sadler’s evidence.
First, it was said that Mr Sadler gave differing versions as to how many Maoris were in the van with the appellant Blair. Secondly, it was said that Mr Sadler’s description in terms of the appellant Kipa’s weight and whether he had a right ear piercing did not match the true position. Thirdly, it was said that Mr Sadler’s description of the appellant Kipa in his evidence in chief in terms of hair length and facial hair did not match the appellant Kipa’s appearance on arrest. Fourthly, it was said that Mr Sadler’s evidence as to whether the appellant Kipa had sunglasses on and whether he had a Samoan accent was inconsistent.
Counsel put these points to the jury during the course of the trial. The judge told the jury that they should consider and evaluate the evidence of Mr Sadler most carefully. I do not think any of the points are so strong that this Court should conclude that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant Kipa was guilty of the fourth count.
Counsel for the appellant Kipa also submitted that the verdict was unsafe and unsatisfactory because Mr Sadler’s evidence was inconsistent in important respects with other evidence called by the prosecution. Counsel identified three matters. First, he said that Mr Sadler’s refusal to admit that Mr Carr’s biro was pointing towards the appellant Kipa’s photographs in the photographic identification was an indication of the unsatisfactory nature of Mr Sadler’s evidence. It was said that Mr Carr was prepared to admit that his biro was pointed in the general direction of the appellant Kipa’s photograph. I have already referred to the video of the photographic identification which this Court was shown on a number of occasions. It was not apparent to me that Mr Carr’s biro was pointing towards the appellant Kipa’s photograph and I am not prepared to conclude that Mr Sadler’s evidence was unsatisfactory because he was not prepared to admit this.
Secondly, it was submitted that Mr Sadler’s evidence was unsatisfactory because he was not prepared to admit that he lodged a claim form for his Porsche with his insurer Allianz Australia Insurance Limited on 2 November 2001. There is a claim form dated 2 November 2001 but it is signed by an employee of the insurer rather than Mr Sadler. Mr Sadler thought that he might have contacted the insurer from police headquarters, but he said he did not complete a claim form on 2 November 2001. Evidence from the insurer’s employees (Mr John Griffith and Ms Mary Berno) seems to establish that somebody contacted the insurer on 2 November 2001. The evidence in relation to the claim form is not particularly clear, but I do not think Mr Sadler’s evidence is so unsatisfactory that the verdict based on it is unsafe.
Thirdly, the appellant submitted that there was a significant discrepancy between Mr Sadler’s description of the appellant Kipa’s appearance and that of other witnesses. Mr Sadler said that the driver of the van was clean-shaven with a 5 o’clock shadow. Mr Sadler said that he did not believe that at the time the appellant Kipa had a goatee beard. It is to be noted that in the photograph which Mr Sadler identified on 13 November 2001 the appellant Kipa had a goatee beard.
The appellant Kipa’s New South Wales driver’s licence was put in evidence. It shows the appellant with a goatee beard. Other witnesses called by the prosecution gave evidence by reference to the driver’s licence of the appellant Kipa’s appearance on 29 October 2001 and 3 November 2001. Mr Peter Webster was an employee of Avis Car Rental and he saw the appellant Kipa on 29 October 2001. He gave evidence that his appearance was similar to that shown on the driver’s licence. Ms Lynne Cambourn was an employee of Avis Car Rental and she may have told a solicitor (Mr J Lister) in May 2003 that when she saw the appellant Kipa on 29 October 2001 he had a goatee beard.
Mr Day spoke to the appellant Kipa at Yass on 3 November 2001 and he gave evidence that in terms of facial hair the appellant Kipa’s appearance matched his driver’s licence.
The appellant Kipa had a goatee beard on his arrest on 9^th November 2001. These apparent inconsistencies are not insignificant, but they are not so strong that it should be concluded that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant Kipa’s guilt. It was open to the jury to conclude that Mr Sadler or one or more of the other witnesses were mistaken on this particular topic. In context, the apparent differences do not render the verdict unsafe and unsatisfactory. The context included the fact that the jury would have had little difficulty in concluding that the appellant Blair and the appellant Kipa drove to Adelaide from New South Wales in a van, arriving here on 31 October 2001, that they were together when they saw Mr Callus and that the appellant Blair saw Mr Sadler on 2 November 2001. Nor would the jury have had any difficulty concluding that the appellants returned to New South Wales in the van that night. They returned to Adelaide on 9 November 2001 when they were arrested.
In my opinion the verdict is not unsafe or unsatisfactory.
Conclusion
In my opinion the appeal of the appellant Blair and the appeal of the appellant Kipa should be dismissed.