R v Collier - [2007] SASC 450

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLLIER
[2007] SASC 450
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Layton)
20 December 2007
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - DIRECTION TO JURY - ADEQUACY OF WARNING
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - CIRCUMSTANTIAL EVIDENCE
Appellant convicted of robbery but acquitted of aggravated robbery - evidence against him included three eye-witness descriptions - witness descriptions similar - appellant described as having distinctive markings - burn marks/scarring on neck and star-shaped tattoo on left ear - one witness confused about positioning of star-shaped tattoo - accused identified from photographic line up - accused identified in court - appellant claimed conviction unsafe and unsatisfactory because witness testimony unreliable - whether judge gave adequate direction as to identification evidence - whether defence case left to jury in a fair, full and balanced way.
Held: Verdict not unsafe and unsatisfactory, directions in relation to identification correct - no unfairness in direction - appeal dismissed.
R v Bennett & Ors (2004) 88 SASR 6; Festa v The Queen (2001) 208 CLR 593, discussed.
R v Sutherland Judgment No 4346, unreported, CCA, 1993; R v Blair & Kipa [2005] SASC 319, considered.

R v COLLIER
[2007] SASC 450
Court of Criminal Appeal: Anderson, White and Layton JJ
ANDERSON J.
Introduction

On Thursday 2 August 2007 a jury (by majority) acquitted Gary Mark Collier of the charge of aggravated robbery but found him guilty of robbery by a unanimous verdict. This is an appeal by permission on two grounds and an application for permission to appeal against that conviction on three further proposed grounds. The grounds of appeal are that:
1.The verdict is unsafe and unsatisfactory. (Permission to appeal granted.)
2.The trial judge erred in failing to direct the jury adequately, or at all, to correct serious errors in the submissions put forward by the prosecutor in her final address. As a result, it is suggested that the appellant did not have a fair trial. (Leave for permission to appeal sought.)
3.The trial judge failed to leave the defence case to the jury in a fair, full and balanced way. (Permission to appeal granted.)
4.The trial judge erred in not directing the jury that if they did not accept the identification evidence beyond reasonable doubt they should acquit. (Leave for permission to appeal sought.)
5.The trial judge erred in failing to direct the jury that it was not to rely on or use any other item of evidence to resolve any doubt it may have on the identification evidence standing alone. (Leave for permission to appeal sought.)
Factual Background
On Friday 9 July 2004 a man entered the Cunningham’s Warehouse store at 430 Brighton Road, Brighton, South Australia. It was shortly before 5.30pm. The employees of the business were preparing to close the store for the day. The man proceeded to a display within the store where he picked up a packet of Maltesers and took it to the counter to pay. In the process of paying the sales assistant, he demanded that the money from the cash register be placed in a bag. At this point, according to the witness Ms Daebeler, he revealed a gun, which was hidden under his jacket and she said that he threatened to shoot the two employees behind the counter if they did not cooperate by putting the money from the cash register in the bag.
Ms Dunn was the Store Manager. She described a man who came into the store on Friday 9 July 2004. She identified him as being approximately 170 cm tall, of gaunt or skinny appearance, with shortish brown hair and aged in his mid thirties. She observed that he was wearing a black Adidas jacket, with track pants and sneakers. She said he was unshaven and dirty-looking.
She also described some distinctive features about this man. Ms Dunn described some scarring or burn marks on the man’s neck and a star shaped tattoo on his left ear.
Mr Wurst was a sales assistant working in the store at the time. He also gave a description of the man who came into the store. This description was of a man of an approximate height of 5 feet 10 inches, wearing black track pants, a navy blue zip-up jacket, a grey baseball cap, having closely shaven hair and aged in his mid-thirties. Mr Wurst also noticed a discoloration on the man’s neck that looked like a burn, tattoo or bruise.
Ms Daebeler was the Assistant Manager on the day in question. She described the man as thirty years old, with dark brown hair shaved like a crew cut and having dirty brown skin like he had not washed for sometime. She said he was skinny, Caucasian, approximately 170 centimetres tall and wore a black zip-up hooded jacket with a white Adidas logo on the back. She went on to describe some burns or scars down the man’s face and neck. As indicated, she said the robber produced a gun.
Ms Daebeler attended the Forensic Science Centre approximately one month after the incident and helped create an identikit photograph from her recollection of the robber. She placed a star-shaped tattoo on the right ear of the offender’s image. In her oral evidence, Ms Daebeler described a similar tattoo as a “two-triangled sort of star” but placed it on the robber’s left ear. The star she described for the identikit photograph and the one she mentioned in evidence resembled the distinctive Star of David, although she did not use that terminology.
Ms Daebeler was cross-examined about the discrepancy in her evidence. She said that to the best of her memory the star-shaped tattoo was on the right ear. Mr Niarchos lead evidence that Mr Collier has a star-shaped tattoo on his left ear. A photograph showing the tattoo was tendered. The shape of the tattoo accords with Ms Daebeler’s description.
Evidence was given at the trial by a police officer, Senior Constable Batty, who investigated the incident. He spoke to Mr Collier on 23 March 2005 in relation to the incident. Mr Collier denied any involvement in the incident. When asked to describe Mr Collier’s appearance at the time he spoke to him, Senior Constable Batty said:
Mr Collier is about - or at that time was about between 170 and 175 cm. Not of large build, about 65 kilos. Short hair. A ruddy-weathered complexion and has scarring and marks to his neck and a tattoo on his left ear lobe, of a star.
In October 2005 Senior Constable Batty carried out a photo identification procedure with the three key prosecution witnesses, Ms Dunn, Mr Wurst and Ms Daebeler. They were each shown a photo identification folder in which there were arranged 12 photographs; one was a photograph of Mr Collier. Ms Dunn and Mr Wurst were unable to identify the person they described in their statements at the time of the incident. Ms Daebeler did, however, identify the photograph of Mr Collier as the person she recognised from the incident. Mr Collier was subsequently arrested on the 25 November 2005.
Mr Collier gave evidence at his trial. He was asked questions about his physical appearance in July 2004. He said that he was 37 years old, had dark brown hair and a crew cut hairstyle. He also said that he was 173 centimetres tall, had had a star-shaped tattoo on his left ear lobe since 1984 and scars on his neck from a car accident which took place in 1989.
The Issues On Appeal
Each of the five grounds in the amended notice of appeal relate to the issue of the identification of the appellant at the scene of the robbery. The grounds on which permission to appeal has been granted are that the verdict is unsafe and unsatisfactory because of the evidence of identification, and that the defence case was not left to the jury in a fair, full and balanced way and again relating to the issue of identification.
The grounds on which permission to appeal is sought are that the prosecutor made errors in her final address and that these were not corrected, that there was an error in directions by the trial judge in relation to reasonable doubt regarding the identification evidence and that the jury was not properly directed as to how it could use individual items of identification evidence in its considerations.
Appellant’s submissions on ground 1
As to the appellant’s first ground of appeal, it was argued by his counsel Mr Niarchos, that the guilty verdict was unsafe and unsatisfactory and that an independent assessment of the evidence was required to determine the ground of appeal. The particulars of this ground of appeal raise various aspects of the evidence of the three eye witnesses, Ms Daebeler, Ms Dunn and Mr Wurst and their observations in relation to the appearance of the offender.
The appellant argued that there were several factors which should have caused the jury to entertain a reasonable doubt. These matters included the following.
Skin Discolouration
The appellant submitted that none of the witnesses gave an accurate description of the discolouration which exists around Mr Collier’s neck. This discolouration in fact results from a 1989 car accident and a resultant skin graft from a seat belt injury. The witnesses, as indicated earlier, described it variously as scarring or burn marks, discolouration that looked like a burn, tattoo or bruise and finally burns or scars down the robber’s face and neck.
Earlobe Tattoo
The appellant submitted that none of the witnesses gave an accurate description of the tattoo situated on Mr Collier’s left earlobe.
Mr Wurst did not give evidence as to there being a tattoo on either of the offender’s earlobes. It was submitted by the applicant that given the proximity of the offender to this witness, Mr Wurst, being directly in front of the robber and across the service counter, he should have been able to identify such a distinctive mark.
Ms Daebeler and Ms Dunn gave evidence of the fact that the offender had a star shaped tattoo on his left earlobe. Ms Daebeler initially placed the star shaped tattoo on the offender’s right earlobe, when giving her statement to police and in compiling a computer generated identikit image, but when giving evidence in the trial three years later, placed the tattoo on the left earlobe.
It was the appellant’s argument that given the good opportunity Ms Daebeler had to observe the facial features of the offender, she should have been able to correctly nominate which ear it was.
The Weapon
It was the prosecution’s case that the offender used a gun to compel the staff to hand over the money from the cash register. The appellant argued that this was an allegation which relied on the evidence of Ms Daebeler. She gave a description of a gun, something she described as being “a six-shooter, like an old sort of western type gun”. She also described the way this gun was revealed to her. She said that the offender pulled it part of the way out of his jacket to reveal the handle, the chamber and a small part of the barrel, but she did not say that he waved it around.
Mr Niarchos submitted Ms Daebeler’s observations were irregular, given that the other two witnesses (who were closer to the offender) did not see a gun or any other weapon.
Fingerprint Evidence
Mr Niarchos submitted that the evidence showed that the offender was not wearing gloves and that he had touched both the counter and the front doors to the shop either to open or close them. There was no evidence that Mr Collier’s fingerprints were found at the scene and the appellant argued that this created a doubt as to whether he had been there at all.
No Evidence of Any Other Tattoos
Photographic evidence led by the prosecution showed that Mr Collier had extensive tattoos of “birds” down both arms extending down to the backs of both his hands and around the base of his thumbs. Mr Collier gave evidence that he had these tattoos for many years prior to the date when the robbery took place. It was submitted that these tattoos would have been obvious to anyone looking at the backs of the offender’s hands if such tattoos were present.
The appellant argued that because these distinctive markings were not described by any witness, when other markings were, it cast doubt as to whether Mr Collier was the robber.
Respondent’s submissions on ground 1
Mr Press for the Director of Public Prosecutions argued that there was sufficient evidence for the jury to be satisfied beyond reasonable doubt and convict the appellant. Mr Press argued that any discrepancies between the evidence given by the three witnesses were the sorts of discrepancies which commonly arise in identification cases.
He submitted that each witness gave a description of the offender that was consistent with the appellant’s appearance. He further submitted that all three witnesses identified the same distinctive features relating to the scarring on the neck. The observations by Ms Dunn and Ms Daebeler of the star-shaped tattoo on the earlobe and the positive identification made by Ms Daebeler from a photo line-up, enabled the jury to find that the evidence led by the prosecution as to the identity of the offender proved beyond reasonable doubt that the appellant was the offender.
Mr Press submitted that the jury was entitled to conclude that Ms Daebeler’s evidence as to the presence of a gun did not prove beyond reasonable doubt that a gun was used as illustrated by the fact that the jury acquitted the appellant of the first count of aggravated robbery. Mr Press submitted that such an argument did not form a basis to conclude that the balance of Ms Daebeler’s evidence should be treated in the same way.
As to the absence of fingerprints at the scene, the respondent argued that the particular characteristics of the person, the type of surface involved and the cleanliness of that surface would all play a part in determining whether fingerprints would be left by a person touching the surface, and that the absence of any fingerprints of the appellant was not conclusive.
Conclusion on ground 1
It is my view that the evidence of the three eye witnesses, when taken as a whole, was strong evidence upon which a jury might convict. In particular I single out the observations by Ms Daebeler and Ms Dunn of the star-shaped tattoo on the robber’s ear and the evidence of all three witnesses as to the scarring on the robber’s neck. This is quite apart from Ms Daebeler’s evidence as to the positive identification from a book of photographs. That photographic identification was of course only based on the facial appearance and not related to any of the distinguishing marks she observed at the time of the robbery. The photo did not show either the scarring on the neck or the star-shaped tattoo on the ear.
I agree with Mr Press that the discrepancies between the witnesses are typical in matters of identification. The appellant has the distinctive identifying features which were described by the witnesses. Ms Daebeler’s evidence is no less cogent because of the jury’s acquittal on the count of aggravated robbery.
It is my view that the lack of fingerprint evidence is not of itself conclusive. The fact that no witness spoke of tattoos on the hands is understandable. These events all happened within a very short time and the witnesses were no doubt under pressure because of the situation in which they were placed.
The fact is that all of Mr Niarchos’ arguments as summarised above were put to the jury in his final address. The appellant did have significant distinguishing marks which were described by the eye witnesses. The jury was entitled to find beyond reasonable doubt that the appellant was present at the scene.
Applicant’s submissions on ground 2
It is submitted by the applicant for permission to appeal on this ground, that the prosecutor should not have asked the witness Ms Daebeler to undertake an in-court identification of the accused and furthermore, that the learned trial judge defeated the purpose of his direction to the jury not to place any reliance on that evidence when, during his summing up, he commented that the prosecutor had a very good reason for carrying out such a procedure. It is contended that the error in that subsequent comment by the trial judge had the effect of nullifying the earlier direction. In his summing up, the trial judge said:
In court during her evidence, Ms Daebeler pointed to the accused and purported to identify him as the robber. You are to ignore that purported in-court identification completely. Ms Daebeler, before she made that identification in court, had already seen and presumably had in her mind a photograph of the accused. She also knew, of course, that he has been charged with the offence. Those facts make it open to her to have the suggestion in her mind unconsciously that the man sitting in the dock must be the robber. That is a completely unsatisfactory form of identification. I make no criticism of Ms Downey for having asked the question. There were very good reasons for her having done so, but in the circumstances, it is the clear experience of the courts that such an in-court identification is of no value at all. You must ignore it completely.
The applicant also submitted that the prosecution unfairly summarised the defence case at trial by making comments to the effect that it was unlikely that a twin, who looked exactly like the accused, except with a tattoo and scarring reversed, committed this crime. It was submitted that this comment improperly suggested that there was such a close likeness between the offender and Mr Collier that if it was not him at the scene, there must have been a twin. It was submitted that by arguing that this explanation was plainly unreasonable the prosecution was unfairly suggesting that the correct inference was that Mr Collier was guilty.
Respondent’s submissions on ground 2
The respondent submitted that there was no impropriety in the in-court identification of the accused. It was submitted that the request for the witness to identify the offender in court was not inadmissible or prejudicial when that witness had earlier given a positive identification of the offender. Mr Press cited several cases to support this contention in his written submissions: R v Sutherland (1993) CCA unreported judgment No 4346; R v Clark & Ors (1996) 91 A Crim R 46; R v Blair & Kipa [2005] SASC 319. It was argued that it was generally acceptable to ask the witness to identify the offender in court and that an omission to do so would allow the jury to make a negative inference as to the strength of the prosecution case: R v Britten (1988) 51 SASR 567. It was also brought to the attention of this Court, that counsel for the defendant did not object to the identification procedure at the time when it was carried out in court.
Mr Press submitted that the learned trial judge directed the jury to ignore completely the in-court identification when he gave the direction set out in par [34] herein. The judge said such an identification was of no value at all.
In relation to the suggested twin, Mr Press submitted that this was merely a case of the prosecution anticipating matters which were likely to be raised in the closing of the defence case. Mr Press submitted that it was a legitimate prosecution attempt to negative a likely argument by the defence. He submitted that it did not reverse the onus of proof, but merely reinforced the point that the jury should be satisfied beyond reasonable doubt.
Conclusion on ground 2

In my view permission to appeal on this ground should be refused. Whilst the in-court identification may not have been necessary, in view of the earlier positive identification by Ms Daebeler, the trial judge instructed the jury to ignore it. The judge told the jury in very explicit terms on two occasions to ignore it completely. He also said that it was of no value at all. There could have been no confusion on this aspect. The fact that the judge in his later comment said he made no criticism of the prosecutor, does not affect the position. In my view that later comment does not reduce in any way the impact of the judge’s earlier direction to ignore the identification completely.
The comment concerning the possible twin was the prosecutor’s way of attempting to dismantle the defence case. Whilst it perhaps was an example given in rather melodramatic terms, in my view it could not be understood as an attempt to reverse the onus of proof and was a legitimate attempt to negative the defence case.
Appellant’s submissions on ground 3
The appellant relied on the same particulars set out in grounds one and two in relation to this ground. The appellant also submitted that in the case of the disputed identification evidence the directions and warnings given by the trial judge should have related specifically to the evidence. Mr Niarchos submitted that it was the duty of the trial judge to isolate and identify all the matters of significance which might reasonably be regarded as undermining or weakening the reliability of the identification evidence given by the three main witnesses.
I have already dealt with most of the relevant matters in my discussion of ground 1. I will therefore briefly restate the issues as raised by Mr Niarchos.
The matters of significance were submitted by Mr Niarchos to be the evidence of the accused regarding the markings on his neck, the tattoo on his left earlobe and the tattoos on the backs of his hands. It was argued that the learned trial judge in summing up failed to make sufficient mention of the fact that the witness Ms Daebeler had changed the ear on which she placed the tattoo, did not give a description of the offender’s neck markings that exactly matched those of Mr Collier and did not give a warning as to the danger in relying on the identification evidence of Ms Daebeler from the photographs.
Ms Daebeler was also the only witness to have seen the gun. It was on this basis that counsel for the appellant also submitted that the acquittal on the first count of aggravated robbery suggested the jury had a reasonable doubt as to the presence of a gun and the witness should have been doubted generally as to her other evidence.
It was argued further that since these alleged inconsistencies had been revealed in the testimony of Ms Daebeler, the learned trial judge erred in failing to direct the jury that if they chose to accept her evidence then, as I understand the submission, it should have acquitted Mr Collier because he did not sufficiently match the description she gave. It was submitted therefore that it amounted to a failure by the trial judge to leave the defence case in a fair, full and balanced way.
Respondent’s submissions on ground 3
The respondent submitted that in the learned trial judge’s summing up, all necessary warnings were given to the jury in relation to the identification process. Mr Press submitted that the defence case was summarised fairly and sufficiently to enable the jury to understand the matters relied upon by the appellant.
Conclusion on ground 3
I consider that the defence case was put to the jury in a fair summary and that this ground should be dismissed. I have already covered much of this ground in my reasons for dismissing ground 1.
Mr Niarchos wants the court to accept that Ms Daebeler’s evidence describing the robber, when there is any discrepancy, should be accepted to show that the robber was not Mr Collier but that in all other respects her evidence should be disregarded. In my view the jury was entitled to assess the whole of Ms Daebeler’s evidence and clearly accepted some but not all of it beyond reasonable doubt. I would dismiss the appeal on this ground.
Appellant’s submissions on ground 4
It is submitted that the trial judge erred in failing to direct the jury that if it did not accept the identification evidence beyond reasonable doubt, it should acquit. His Honour said:
Now I will give you a further direction. In the circumstances of this case, owing to the dangers of purported identification of an offender, I direct you to consider separately from all of the other evidence Ms Daebeler’s evidence of purported identification. If you are not satisfied that her evidence of identification is reliable, I direct you to ignore it completely. That is, put it out of your minds and do not use it at all.
This direction to the jury asked for a consideration of the reliability of the evidence given by Ms Daebeler. It was argued that this was a deficient direction because it did not include the warning as to a matter being proved beyond reasonable doubt. In other words the judge should have said “if you are not satisfied beyond reasonable doubt …”, whereas he merely said “if you are not satisfied”.
The appellant contends that a reasonable doubt direction in strict terms was essential. The failure to do so, it has been submitted, has resulted in the appellant losing a chance of being acquitted and that this has caused a miscarriage of justice.
Respondent’s submissions on ground 4
The respondent argued that the matter of identification evidence was one for the jury to consider in the context of the whole case. Mr Press submitted that the jury well understood that any proof had to be proof beyond reasonable doubt. The judge had earlier told the jury in his summing up:
You alone are the judges of the facts, including the ultimate question of whether the prosecution has proved beyond reasonable doubt that Mr Collier is guilty of the offence with which he has been charged or of any alternative offence about which I may direct you. (Page 1 of the summing up.)
….
So, if in what I am about to say I speak of a matter being “proved” or “established to your satisfaction” or if I use any other expression relating to the proof of the matter in issue in the trial, you will understand that I always mean proof or satisfaction beyond reasonable doubt. (Page 2 of the summing up.)
…
Well, ladies and gentlemen, it seems to me in the circumstances of this case that there are two essential issues for you. Two. The first of them is whether or not the robber was armed. I will come back to the evidence about that – and the other issue of course is this: has the Crown proved beyond reasonable doubt that the robber was Mr Collier? (Page 3 of the summing up.)
….
If on the other hand, having listened to and heeded the warning which I have given you, you are satisfied that Ms Daebeler’s evidence is reliable, then you are entitled to use it together with the other evidence in the case to determine whether or not the Crown has proved beyond reasonable doubt that the accused was the robber. (Page 7 of the summing up.)
It was submitted that this ground of appeal should be dismissed.
Conclusion on ground 4
The trial judge made it clear throughout his summing up that all findings of the jury had to be beyond reasonable doubt. The fact that he did not mention this specifically when summing up to the jury at the point of the summing up complained of is not significant, in my view. The jury was in no doubt that it had to find the identification of the appellant proved beyond reasonable doubt. I would not grant permission to appeal on this ground.
Appellant’s submissions on ground 5
It was submitted that the jury was not entitled to reach a conclusion of guilt beyond reasonable doubt by using Ms Daebeler’s positive identification to add weight to the other general identification evidence. The trial judge summed up on this issue as follows:
Now I will give you a further direction. In the circumstances of this case, owing to the dangers of purported identification of an offender, I direct you to consider separately from all the other evidence Ms Daebeler’s evidence of purported identification. If you are not satisfied that her evidence of identification is reliable, I direct you to ignore it completely. That is put it out of your minds and do not use it at all.
If on the other hand, having listened to and heeded the warning which I have given you, you are satisfied that Ms Daebeler’s evidence is reliable, then you are entitled to use it together with the other evidence in the case to determine whether or not the Crown has proved beyond reasonable doubt that the accused was the robber.
The respondent’s submissions on ground 5
The respondent submitted that the jury was properly directed in relation to the identification evidence of Ms Daebeler. It was submitted that the learned trial judge gave a direction favourable to the appellant in relation to Ms Daebeler’s positive identification. It was argued that the direction made it clear that the jury was not to use other evidence to add weight to Ms Daebeler’s positive identification. The learned trial judge made specific reference to the fact that the identification evidence which His Honour called “purported identification”, was to be considered separately, that is, the jury had to consider whether they accepted it as being reliable, separate from the other general evidence as to identification.
Conclusion ground 5
In Festa v The Queen (2001) 208 CLR 593 a witness who saw a robbery take place, saw the offender and then identified him, was said to have given direct as opposed to circumstantial evidence (per Kirby J at [165]). The evidence of Ms Daebeler can be analysed and characterised in this way. It suggests that this is not entirely a circumstantial case.
In R v Bennett & Ors (2004) 88 SASR 6 the court discussed the issue of whether the reliability of positive evidence of identification should first be considered by the jury before considering other evidence in the case. Doyle CJ and Perry J acknowledged that the authorities on this point expressed differing opinions, but they declined to express a final view.
Perry J did however identify the relevant principles that should be followed. His Honour said at [102]:
…
(a)In determining the adequacy of the warning, one has regard only to evidence relating to the circumstances of the identification, not to any other evidence in the case.
(b)The jury must be directed that in determining whether they accept evidence of positive identification, whether direct or circumstantial, they must have regard only to the evidence relating to the identification.
(c)Points (a) and (b) do not apply to what the Chief Justice describes as similarity evidence.
(d)If the jury is not satisfied beyond reasonable doubt of the accuracy of the evidence of positive identification, it must be disregarded for all purposes in the case. It cannot be put into the scales in some reduced form in determining whether or not the charge is made out.
(e)Point (d) is subject to the qualification that where evidence of positive identification includes similarity evidence relating to a tangible item, or distinguishing characteristic eg an item of clothing or something carried or use of a vehicle fitting the description of a vehicle used in the crime, the colour of hair or the like, and the jury, while not satisfied that the evidence amounts to positive identification, if satisfied beyond reasonable doubt of the evidence relating to the existence of any such item, or distinguishing characteristic, may use it as part of the body of circumstantial evidence.
(f)Once evidence of positive identification of either kind is accepted by the jury it should then be taken into account in the general body of evidence in the case in determining whether the charge is made out.
Gray J said at [131]:
The warning given by the judge was cogent and effective. … The judge first provided a general warning and then drew the jury’s attention to weaknesses in the identification evidence. During this process the judge isolated and identified matters of significance. These matters have been referred to earlier in these reasons. There is nothing perfunctory or half hearted about the direction.
I agree with Mr Press’s submission that in this matter the direction went beyond what was required but in favour of the accused. The trial judge emphasised the prosecution’s dependence on the identification evidence of Ms Daebeler; gave a direction that honest witnesses can be mistaken; summarised factors that may have had an effect on the memory of witnesses; examined the circumstances surrounding the robbery and their effect on the evidence; and gave to the jury an extensive list of dangers in using photographic identification. I would give permission to appeal on this ground, but dismiss the appeal because of the actual direction given.
Since preparing these reasons I have had the advantage of reading the draft reasons of White J in relation to ground 5 of the notice of appeal. I agree generally with the comments made by him.
Summary
The major issue at trial was whether Mr Collier was the person who carried out the robbery. The photographic or positive identification evidence of Ms Daebeler was therefore an important part of the prosecution case. As I have said earlier, aside from that evidence, there was strong evidence of identification, including the general description of the offender as to height, weight and appearance. In addition there were the distinctive identifying features described by the witnesses. It was open to the jury to conclude beyond reasonable doubt that Mr Collier was the man who committed the robbery. All of the matters regarding discrepancies in the evidence of the witnesses were put to the jury by Mr Niarchos at the trial.
The summing up by the trial judge fairly summarised the case against Mr Collier and gave appropriate directions to the jury in respect of the matters of complaint.
As indicated I would refuse permission to appeal on grounds 2 and 4 but I would grant permission to appeal on ground 5. I have given my reasons for rejecting grounds 1, 3 and 5.
I would therefore dismiss the appeal.
WHITE J: I agree with the orders proposed by Anderson J and with his reasons.
I add the following in relation to Ground 5 of the Notice of Appeal. That ground is that the judge “erred in failing to direct the jury that they were not to rely on or use any other item of evidence to resolve any doubt they may have on the identification evidence standing alone”.
The prosecution case that the appellant was the offender comprised both direct and circumstantial evidence. Insofar as it relied upon Ms Daebeler’s selection of the photograph of the appellant as the offender, it was direct (or positive) identification evidence. The photograph of the appellant selected by Ms Daebeler did not show the star-shaped tattoo on his left ear lobe nor any markings on his neck. Insofar as the prosecution case relied on the general correspondence in appearance of the offender and of the appellant, the evidence that the offender had some markings on his neck (as does the appellant), and the evidence of Ms Dunn and Ms Daebeler that the offender had a star-shaped tattoo on his left ear lobe (as does the appellant), it was circumstantial.
The appellant submitted that in these circumstances the jury should have been directed that “they must first be satisfied on the identification evidence beyond reasonable doubt before they can act on it”. Mr Niarchos, for the appellant, referred to authorities of this Court in which the proper directions to be given to a jury about the use of circumstantial identification evidence in combination with direct identification evidence has been discussed. These included R v Turner;[1] R v Coxon;[2] and R v Bennett.[3] Mr Niarchos invited this Court to resolve the question left open in R v Bennett by the reasons of the Chief Justice and Perry J. Bennett was a case, like the present, in which there was both direct and circumstantial identification evidence implicating an accused as an offender. Doyle CJ declined to express a final view about the use of circumstantial evidence in such circumstances, saying:
There is no reason to doubt that, ultimately, the jury must consider any identification evidence along with the other evidence in the case, in deciding whether they are satisfied beyond reasonable doubt that the accused is guilty. The question is whether before doing so the jury should first consider the reliability of the identification evidence in isolation. If they do not, identification evidence that is unreliable might be put into the scales by the jury because it is supported by other evidence pointing to guilt. It might be said that if that happens, the purpose of the warning about identification evidence is undermined. On the other hand, it might be said that if the identification evidence is supported by other evidence pointing to guilt, it is appropriate to take that matter into account in deciding whether to act on the identification evidence.
Although the Court heard submissions on the point, we did not hear full argument on the point. Some of the cases referred to by Gray J were not referred to in argument. Although, as I have said, the decision in Goode is authority for the approach taken by Gray J, differing views have subsequently been expressed in this Court and the law relating to identification evidence has developed somewhat since the decision in Goode.
I have come to the conclusion that it is better not to express a final view on this point, without the benefit of full submissions, and accordingly I refrain from doing so.[4]
[1] [2000] SASC 27, (2000) 76 SASR 163.
[2] [2002] SASC 165, (2002) 82 SASR 412.
[3] [2004] SASC 52, (2004) 88 SASR 6.
[4] Ibid at [80]-[82], 19-20.
Perry J also refrained from expressing a concluded view about the matter but stated his understanding of the relevant principles as follows:
(a) In determining the adequacy of the warning, one has regard only to evidence relating to the circumstances of the identification, not to any other evidence in the case.
(b) The jury must be directed that in determining whether they accept evidence of positive identification, whether direct or circumstantial, they must have regard only to the evidence relating to the identification.
(c) Points (a) and (b) do not apply to what the Chief Justice describes as similarity evidence.
(d)If the jury is not satisfied beyond reasonable doubt of the accuracy of the evidence of positive identification, it must be disregarded for all purposes in the case. It cannot be put into the scales in some reduced form in determining whether or not the charge is made out.
(e) Point (d) is subject to the qualification that where evidence of positive identification includes similarity evidence relating to a tangible item, or distinguishing characteristic, for example, an item of clothing or something carried or use of a vehicle fitting the description of a vehicle used in the crime, the colour of hair or the like, and the jury, while not satisfied that the evidence amounts to positive identification, if satisfied beyond reasonable doubt of the evidence relating to the existence of any such item, or distinguishing characteristic, may use it as part of the body of circumstantial evidence.
(f) Once evidence of positive identification of either kind is accepted by the jury it should then be taken into account in the general body of evidence in the case in determining whether the charge is made out.[5] [Emphasis in the original]
[5] Ibid at [102], 22-3.
Gray J held in Bennett that provided appropriate warnings were given to the jury, they were entitled to consider the positive evidence of identification (such as the identification from a photograph by Ms Daebeler in this case) “in the context of the evidence as a whole”, ie, including the circumstantial evidence of identification.[6]
[6] Ibid at [132], 32.

In my opinion, the determination of this appeal does not require the resolution of the question left open in Bennett. The trial judge did direct the jury to consider the positive identification evidence of Ms Daebeler in isolation from the other evidence. That was the form of direction most favourable to the appellant. Accordingly, even if the question left open in Bennett was resolved in the appellant’s favour, it would not avail him on this appeal.
The trial judge gave clear and firm warnings to the jury about the care which they should exercise before acting on the evidence of Ms Daebeler. The judge then said:
Now I will give you a further direction. In the circumstances of this case, owing to the dangers of purported identification of an offender, I direct you to consider separately from all of the other evidence Ms Daebeler’s evidence of purported identification. If you are not satisfied that her evidence of identification is reliable, I direct you to ignore it completely. That is, put it out of your minds and do not use it at all.
If on the other hand, having listened to and heeded the warning which I have given you, you are satisfied that Ms Daebeler’s evidence is reliable, then you are entitled to use it together with the other evidence in the case to determine whether or not the Crown has proved beyond reasonable doubt that the accused was the robber.
This direction followed the form suggested by Perry J in Bennett. It was in substance the very form of direction which the appellant submitted should have been given. As I have said, it was the form of the direction most favourable to the appellant. It could not have resulted in any unfairness to him.
Mr Niarchos submitted that the judge had not, in the passage quoted, directed the jury that they had to be satisfied beyond reasonable doubt of the reliability of Ms Daebeler’s identification before acting on it. It was submitted that this may have resulted in the jury applying some lesser burden of proof. I do not accept that submission. Earlier in his directions the judge had told the jury, in conventional terms, that when in the course of his directions he would speak of a matter being “proved” or “established to your satisfaction” or any other like expression in relation to the proof of matter in issue in the trial, the jury should understand that he meant proof or satisfaction beyond reasonable doubt. There is no reason to suppose that the jury would not have understood the direction quoted above in that way.
For the reasons given by Anderson J and these additional reasons, I would dismiss the appeal.
LAYTON J. I have had the opportunity of reading the draft reasons for decision of both Anderson and White JJ. I agree with the orders proposed by Anderson J and agree with his reasons. I also agree with the additional reasons given by White J.