R v Hards; R v Hards; R v Wilckens - [2018] SASCFC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HARDS; R v HARDS; R v WILCKENS
[2018] SASCFC 132
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)
13 December 2018
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appeals against conviction – appellants charged with aggravated causing harm – one appellant further charged with property damage – where the three appellants were father, son, and a friend of the son – appellants contended that this was a case of mistaken identity – where complainant recognised one of the appellants from having seen photos of him previously on Facebook and Instagram and at a party, and positively identified the other two appellants from photo identification packs – where independent witnesses positively identified one of the appellants from photo identification packs with varying degrees of certainty – where the photo identification packs were edited to include tattoos – whether the Judge erred in admitting identification and recognition evidence – whether the Judge failed to direct the jury properly – whether the verdicts were unsafe and unsatisfactory.
Held, per Bampton J (Kourakis CJ and Stanley J agreeing) dismissing the appeal:
1. The Judge did not err in admitting the identification and recognition evidence (Strauss v Police and R v Crawford distinguished);
2. The Judge’s directions were sound;
3. It was open to the jury to convict each of the three appellants.
Per Kourakis CJ (Stanley J agreeing):
1. The evidence of identification given against each appellant was cross-admissible against the others because of their relationship to each other.
R v Deering (1986) 43 SASR 252; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487, applied.
R v Crawford (2015) 123 SASR 353; Strauss v Police (2013) 115 SASR 90, distinguished.
Alexander v The Queen (1981) 145 CLR 395; Festa v The Queen (2001) 208 CLR 593; Domican v The Queen (1992) 173 CLR 555; R v Dickman (2017) 261 CLR 601; R v Kearney [2013] SASCFC 148; R v Sparrow (2009) 104 SASR 320, considered.

R v HARDS; R v HARDS; R v WILCKENS
[2018] SASCFC 132
Court of Criminal Appeal: Kourakis CJ, Stanley and Bampton JJ

KOURAKIS CJ: I would dismiss the appeal. I agree with the reasons given by Bampton J. I gratefully adopt the summary of the evidence in her Honour’s judgment.
I add the following.
Appeal by Dylan Hards
The steps in Mr Oakes’ identification evidence of Dylan Hards as the man who attacked him with a machete were as follows:
·the man who attacked him bore a tattoo of a tattoo gun on the right side of his face;
·he had seen the same man with the same tattoo at a birthday party he attended on 21 November 2015;
·when he saw the man at the birthday party, he recognised him as the man shown on a social media account called ‘Ink by Dylan Hards’.
The brother of Dylan Hards, Blake, testified that Dylan was at the birthday party when Mr Oakes attended. The cross-examination of Mr Oakes by Dylan Hards’ counsel proceeded on a tacit acceptance of Mr Oakes’ evidence that there was a social media account as described by him and that Dylan Hards did have a tattoo of a tattoo gun on his face. Plainly enough, it is most improbable that a man who was not the appellant but who had a tattoo of a tattoo gun on his face, and was shown on a social media account named ‘Ink by Dylan Hards’, attended the same party as the appellant Dylan Hards and, several months later, took to Mr Oakes with a machete. It is even more improbable that he would do so in a Ford Territory four-wheel drive very similar to the Ford Territory motor vehicle registered in Dylan Hards’ name and with accomplices who closely resembled Dylan’s father and friend.
The evidence of Mr Oakes’ recognition of Dylan was plainly admissible. The issue in this case differs fundamentally from the issue in Strauss v Police.[1]In Strauss v Police the challenged evidence was not of the recognition of a person previously known to the witness; it was evidence of a subsequent identification of an offender from photographs on social media in the absence of the controls ordinarily put in place in a formal police-conducted identification. The importance of putting before the tribunal of fact evidence which allowed the risks of suggestibility and prejudgment to be weighed is obvious enough. There was no reason to exclude the evidence in this case.
[1] (2013) 115 SASR 90.
The evidence of Dylan’s motive, the presence of a motor vehicle strikingly similar to his own, and Mr Oakes’ recognition evidence provided a sufficient and sound basis for the jury’s verdict. The criticisms made of the evidence were for the jury to consider. The evidence leaves no room for any doubt which the jury’s assessment of the testimony of the witnesses could not resolve.
I pause here to observe that the evidence of the identification given against each appellant, by recognition, similarity of appearance, or subsequent photo pack identification selection, was cross-admissible against the others because of their relationship to each other. Evidence of the presence of each of them supported the evidence of the presence of the others.
Appeal by David Hards
The evidence leading up to and including the evidence of Mr Oakes’ selection of the photograph of David Hards was evidence that his appearance was similar to the appearance of one of the offenders. It was one of the many strands of the circumstantial case against him. Mr Oakes had a clear view of the offenders for a substantial period of time. The risks of suggestibility and displacement were not great and could be minimised by directions of the kind that were given. The exercise of the discretion not to exclude the evidence was not manifestly unreasonable and was not affected by any process error.
The strands of circumstantial evidence against David Hards were:
·the positive identification by Ms Howley;
·the evidence of similarity with one of the offenders given by Mr Oakes and Ms Baines;
·and his familial relationship with Dylan Hards.
Each strand reinforced the other and in combination formed a strong body of evidence that David Hards was one of the offenders: it is improbable that three witnesses would, independently of each other, wrongly identify the father of Dylan Hards as one of the attackers when other independent evidence tended to show that it was Dylan Hards who attacked Mr Oakes.
Appeal by Billy Wilckens
I have nothing to add to the reasons given by Bampton J.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Bampton J and the additional reasons of the Chief Justice.
BAMPTON J: David Hards, his son Dylan Hards, and Dylan Hards’ friend Billy Wilckens were tried before a jury in the District Court on two counts of aggravated causing harm with intent to cause harm against Stephen Oakes. David Hards was further charged on the same Information with damaging a motor vehicle, the property of Mr Oakes. They were all convicted as charged.
David Hards appeals his three convictions with permission on grounds that the verdicts are unsafe and unsatisfactory (ground 1) and that the trial Judge erred in admitting identification evidence (ground 2).
Dylan Hards appeals his two convictions with permission on grounds that the verdicts are unsafe and unsatisfactory (ground 1), that the trial Judge erred in admitting recognition evidence (ground 2), and failed to direct the jury in identifying the forensic disadvantage he faced in the recognition process (ground 3).
Billy Wilckens appeals his two convictions with permission on grounds that the trial Judge erred in failing to exclude identification evidence (ground 1) and that the verdicts are unsafe and unsatisfactory (ground 3). Ground 2 was abandoned.
For the following reasons, I would dismiss the appeals. In my view, the Judge did not err in admitting the impugned evidence, his directions were sound, and it was open to the jury on the evidence to convict each of the three appellants.
The principles relevant to each appeal
The admission of recognition or identification evidence
The trial Judge’s decision to allow the recognition or identification evidence to be led involves the exercise of a discretion. This Court will not interfere with the exercise of the discretion if the Judge understood the law correctly, has made no error of fact, has taken into account all relevant considerations, and has excluded from his or her mind any extraneous considerations.[2]
[2] R v Deering (1986) 43 SASR 252 at 255 (King CJ).
While out-of-court identification evidence is prima facie admissible, the Judge has a discretion to exclude it where it has little weight, but is likely to be gravely prejudicial.[3]
[3] Alexander v The Queen (1981) 145 CLR 395 at 402 (Gibbs CJ).
As McHugh J described in Festa v The Queen:[4]
In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence.
[4] Festa v The Queen (2001) 208 CLR 593 at 614 [65].
In Domican v The Queen,[5] the identification took place nearly nine months after the offending. The photographs used in the procedure had been altered to add a fake wig and moustache. There was in the circumstances of the matter a risk of the displacement effect because the witness making the identification had seen the accused on television, had had only a fleeting opportunity to see the accused from some distance at the time of the alleged offending, was in shock at that time, and changed her description of the accused wearing a wig and moustache from her first statement made to police. Despite these issues, it was not argued that the evidence of identification was inadmissible.[6]
[5] (1992) 173 CLR 555.
[6] Domican v The Queen (1992) 173 CLR 555.
This Court has applied Domican v The Queen[7] in holding that wherever evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.[8]
[7] (1991) 173 CLR 555.
[8] R v Coghlan [2010] SASC 131 (Kelly J, Vanstone and David JJ agreeing).
In Festa v The Queen,[9] the High Court considered the nature of the warning a trial judge is required to give about identification evidence when its reliability is challenged. In the course of his reasons, with which the plurality agreed, McHugh J said:[10]
Directions concerning the weaknesses in individual cases need follow no particular formula. It is sufficient if the jury receive directions that give them a sufficient understanding of the potential weaknesses in the particular evidence put before them, as opposed to weaknesses generally inherent in identification evidence. The directions must ensure “that the jury understands the possible weaknesses in identification evidence and the need for it to take particular care in its use”.
(Citation omitted)
[9](2001) 208 CLR 593.
[10] (2001) 208 CLR 593 at [80].
In R v Dickman,[11] the High Court stated that even where identification evidence may have low probative value, no prejudice will be occasioned where the directions to the jury are adequate. The fact that the probative value of the evidence is low does not require its exclusion, unless that value is outweighed by the risk of unfair prejudice.[12]
[11] (2017) 261 CLR 601.
[12] (2017) 261 CLR 601 at 615-616.
Unsafe and unsatisfactory verdicts
If the evidence of recognition or identification was correctly admitted, it is necessary to consider whether the totality of the evidence, including the recognition/identification evidence, is sufficient to sustain the jury’s verdict.[13]
[13] R v Crawford (2015) 123 SASR 353 at [31] (Gray J).
In determining this ground of appeal, the question for the[14]
... appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there is material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
(Citation omitted)
[14] Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J, with whom Gleeson CJ and Heydon J agreed); M v The Queen (1994) 181 CLR 487.
The prosecution case
At about 4.50 pm on 26 February 2016, Stephen Oakes had just driven into his driveway from work when three men approached his car. While he was in the driver’s seat of his vehicle, Mr Oakes’s right forearm was struck through the driver’s side window by a machete wielded by one of the men.
At trial, the prosecution alleged that the three men were David Hards, Dylan Hards and Billy Wilckens, who had driven together to Mr Oakes’ home, intending to cause him harm as parties to a joint criminal enterprise. It was the prosecution case that each man was armed with a weapon. David Hards carried a metal pole, Dylan Hards a machete and Billy Wilckens a baseball bat. The first count of aggravated causing harm with intent was committed when Dylan Hards, in the presence of his father and Billy Wilckens, struck Mr Oakes with the machete.
After being struck by the machete, Mr Oakes got out of his car, slipped, and landed on the ground where he was set upon by the men. The second count of aggravated causing harm with intent was committed when all three men punched and kicked Mr Oakes while he was on the ground. Mr Oakes managed to stand up and flee by jumping over a fence, running into the backyard of a block of units nearby and climbing onto the roof of one of the units. Mr Oakes said he looked back as he was running and saw Dylan Hards behind him with the machete and a silver four‑wheel drive. When he was on the roof he saw, “the older dude and the larger dude” get out the four-wheel drive.
It was also the prosecution case that David Hards did not immediately pursue Mr Oakes as he fled, lingering momentarily to commit the property damage offence by damaging Mr Oakes’ vehicle with a metal pole, before joining the chase. The men then taunted Mr Oakes whilst he was on the roof of the unit from the ground below before leaving together in the silver four-wheel drive. Mr Oakes suffered a laceration to his arm from the machete and bruising to his face, head and body.
There is no dispute the attack on Mr Oakes occurred. The appellants maintain that this was a case of mistaken identity, and that they were not the assailants.
Mr Oakes speculated that he was assaulted as payback for the brief sexual relationship he had with Dylan Hards’ girlfriend while she and Dylan were temporarily separated in 2015.
It was the prosecution case that Mr Oakes had an opportunity to see Dylan Hards during the machete attack and the opportunity to see all three appellants as he took refuge on the roof of the unit and was taunted from below. Mr Oakes recognised Dylan Hards. He did not recognise David Hards and Billy Wilckens but selected them from photo identification packs.
The pursuit of Mr Oakes was also witnessed by members of the public. Two independent witnesses to the attack identified David Hards as one of the men involved, with varying degrees of certainty, by selecting his photograph from a photo identification pack.
David Hards, Dylan Hards and Billy Wilckens each had tattoos on their face at the time of their arrest, which occurred less than two weeks after the attack. Various witnesses to the assault referred to the offenders having tattoos. Mr Oakes, in particular, said the man who attacked him had a tattoo of a tattoo gun on the side of his face. Exhibit P34 contains the arrest photos of the three appellants. In his arrest photos, Dylan Hards is heavily tattooed and has a tattoo on the right side of his face that appears to depict a tattoo gun.
Mr Oakes believed that he may have been attacked by four assailants but he could not be sure. Other witnesses only referred to three. On appeal, the Director acknowledged that there were differences in the descriptions given by the various witnesses of the three men and aspects which were not correct. It was submitted that the three men were, however, generally described in terms consistent with the appellants’ appearances and, in particular, witnesses spoke of one of the appellants being older than the other two. David Hards is older than Dylan Hards and Billy Wilckens.
The evidence relied on by the prosecution
The evidence relied on by the prosecution included:
1Evidence of motive on the part of Dylan Hards (and indirectly his father and friend to support him). It was alleged that the attack was in retribution for Mr Oakes having had a sexual relationship with Dylan Hards’ girlfriend.
2The words spoken by the man with the machete which tended to identify the attacker. Mr Oakes gave evidence that the man who struck him with the machete said, “you want to fuck my missus” immediately before striking him.
3The fact that David Hards and Dylan Hards were father and son.
4The fact that Dylan Hards and Billy Wilckens were friends.
5Mr Oakes’ recognition of Dylan Hards as a person he had previously seen on Facebook and Instagram and at his cousin’s 21^st birthday party.
6Mr Oakes’ selection of photos of David Hards and Billy Wilckens from photo identification packs.
7The selection by witnesses to the attack and its aftermath of photos of David Hards from photo identification packs.
8Evidence that Dylan Hards’ vehicle was at the scene.
9Evidence that Billy Wilckens had been in Dylan Hards’ vehicle.
10Evidence of a baseball bat and a metal pole located in Billy Wilckens’ car on 9 March 2016 which were consistent with some of the descriptions given by witnesses of the weapons.
11Evidence that Billy Wilckens and Dylan Hards had been in contact by phone earlier during the day of the attack and then not at all during the timeframe in which the offence was committed.
I now turn to consider each of appeals
The case against David Hards
Mr Oakes described the man alleged to be David Hards as older, with a long mullet, a long, grey goatee, and a few tattoos around his face and arms. He had a bit of a beer gut and “would have been no taller” than Mr Oakes.[15] He later identified him as David Hards. It was not disputed that David Hards has tattoos on his face and is shorter than Mr Oakes.
[15] Mr Oakes is 173 cm tall.
Mr Oakes was assaulted in daylight. He saw his attackers as he stepped out of his car. He could not observe them while he was on the ground, as he was covering his face. He observed them as they chased him down the street, and from the roof of the unit for one to one and a half minutes.

Mr Oakes described one of the offenders as “Caucasian, late 30s early 40s … about 175 centimetres tall, he had a beard with a mullet, his hair colour was brown with a bit of grey”.
On 8 March 2016, Mr Oakes participated in an identification procedure which was filmed. He viewed a photo identification pack (“the first photo ID pack”) which included a photograph in third position of David Hards taken in 2011. Mr Oakes, after viewing the photos, said to Senior Constable Webber who conducted the procedure, “none of these guys”. After the procedure, when the video recorder was not recording, Mr Oakes said that he thought the man in “photo 3 looked like the suspect except the wrong hair colour, no tattoo, no facial stubble” and that the suspect “had a face tattoo with grey hair and stubble”.
At 6.42 pm on 8 March 2016, the video recorder was reactivated for the purpose of recording what Mr Oakes had said about the third photo in the first photo ID pack. Mr Oakes then stated on camera:
MR OAKES:Um, I think that it was picture number three that guy nearly looked alike but more grey. More of a scruffy face like stubble and a tattoo on the face.
SC WEBBER: Tell me about the tattoo on the face.
MR OAKES:Just, oh, I don’t know the design of the tattoo but I know that it was a tattoo. If I see it I’ll pick it straight away.
A photo taken of David Hards following his arrest on 16 March 2016 was used in another identification procedure conducted 19 March 2016. The photo was the third photo in a second ID pack (“the second photo ID pack”) which also contained four photographs of men from the first photo ID pack, and two new photographs. David Hards’ facial tattoos were superimposed on the other men in the second photo ID pack. Mr Oakes selected the third photograph in the sequence which was the photograph of David Hards.
The witness Sara Howley had no connection with Mr Oakes or any of the appellants, and gave evidence that she saw the attackers for 15 seconds or less. She drove past two men who were running and carrying baseball bats. She saw the men get into a silver four-wheel drive, possibly a Ford Territory, and drive away. One of the men was quite tall. The other was fairly short or medium height. The two men were both “quite old” and older than her (Ms Howley was 21 at the time of the attack). One had a full beard and hair. The other did not have much hair. The shorter man had neck or facial tattoos. Ms Howley could not describe the tattoos but believed they were “pretty distinct”. She thought the shorter male looked older because he had more grey hair.
On 7 April 2016, Ms Howley viewed the second photo ID pack. She identified the photograph of David Hards as the shorter, older male she had described. In cross‑examination, defence counsel asked Ms Howley whether she could tell that the tattoos seen on David Hards had been superimposed onto the photographs of the other men. She said that once it had been pointed out to her, a few of the photographs looked like they did not belong. At the time of her selection, however, she said that they looked very similar. She believed that the face rather than the tattoos influenced her identification. She conceded there was no mention in her first police statement that the shorter man said to be David Hards had face tattoos.
The witness Ian Hurst heard yelling and screaming from outside his house. He looked out the window to see three men chasing another man. One of the men was carrying a machete or a baseball bat. The last man was carrying a baseball bat and was a bit older than the other two men. He had grey hair and a “mostly full beard”. He was bigger than the other two men, “basically overweight”, and struggling to keep up.
On 20 March 2016, Mr Hurst viewed the second photo ID pack. He equivocally selected David Hards as the older man he had described. He said he was the “closest out of those eight”. In cross-examination, Mr Hurst agreed the man in the photograph he selected was only “possibly” the person he saw.
The witness Evelyn Baines heard men yelling and tyres squealing outside her house. She looked out the window and saw three men running from a nearby driveway, where a car was parked. One of the men returned to the driveway and damaged the car using a grey, metal rod at least one metre long. He walked “meticulously” around the car smashing the lights, windows, and bonnet. Ms Baines described the man as being in his 30s or 40s. He was 5’6” with a slight build. He had brown hair, a ruddy complexion and a goatee. She thought the other two men were younger. Police showed Ms Baines the second photo ID pack but she did not select David Hards.
The witness Amos Lamoude described one of the men as having a darker complexion and being older and heavier than the other two.
The witness Jaimee Hobbs, Mr Lamoude’s girlfriend, described one of the men as being in his 50s, bearded, and of medium build. She also said he was carrying a rifle or shotgun of about a metre in length. No other witness suggested that any of the men were carrying a firearm.
By reference to Exhibit P34, Billy Wilckens is the tallest and heaviest built of the men and David Hards is clearly older than Dylan Hards and Billy Wilckens. Exhibit P35 is a photo of Dylan Hards and Billy Wilckens in a car. Billy Wilckens appears taller and heavier than Dylan Hards in this photo.
David Hards’ submissions
David Hards unsuccessfully sought, during a voir dire, to exclude the evidence of identification of him. He complained on appeal that there was a risk that Mr Oakes’ memory of having viewed the first photo ID pack during the first identification procedure would taint the second identification procedure when he selected him from the second photo ID pack. He submitted that the quality and editing of the photos in the second photo ID pack was such that it was evident that at least four of the photos were edited and showed obvious discolouration around the superimposed tattoos. He also argued that the fact that Mr Oakes knew David Hards’ photo was in the second photo ID pack further contaminated the process. It was also submitted that Mr Oakes had agreed that his observation of his attackers had been in the nature of a momentary glimpse and that at the time he observed them he was running for his life. As such, it was submitted that any purported identification by Mr Oakes was more prejudicial than probative.
David Hards pointed out that Ms Howley conceded in cross-examination that there was a question of whether she had told the police about the tattoos she gave evidence about having noted on the man alleged to be David Hards. It was also noted that the witness Ian Hurst’s identification of David Hards from the photo ID pack was on the basis that the photo of David Hards was the “closest fit” to the third man chasing Mr Oakes.
David Hards contended that the evidence did not establish beyond reasonable doubt that he was one of the attackers and further that there was a risk that, in assessing the evidence of identification, the jury had in mind the father‑son relationship between him and Dylan Hards.
David Hards argued that it was not open to the jury on the evidence to be satisfied beyond reasonable doubt of his guilt and that the verdict was unsafe and unsatisfactory.
The Director’s submissions regarding David Hards’ grounds of appeal
The admission of identification evidence
The photograph of David Hards that was used in first ID pack viewed by Mr Oakes was taken approximately five years before the offending. The differences between this earlier photo and the photo taken of David Hards at the time of his arrest in 2016 were his neck and facial tattoos, grey hair and facial hair seen in the arrest photo.
Significantly, in describing the offender said to be David Hards to Senior Constable Webber after viewing the first ID pack, Mr Oakes referred to the man having a facial tattoo, grey hair and stubble on his face. As submitted by the Director, that description accurately described the differences between David Hards’ appearance in the earlier photo and his appearance at the time of his arrest.
The Director contended that whilst the second identification procedure involving the second photo ID pack clearly had less weight because Mr Oakes had already seen a photo of David Hards, it was not without value and, more importantly, it was not beyond the understanding of the jury that such a procedure would have less weight. It was submitted that the warnings given were therefore able to deal with the potential for any prejudice. Further, it was submitted that the displacement effect was a matter for the jury’s consideration and a matter that the jury would understand from the directions.[16]
[16] R v Kearney [2013] SASCFC 148 at [27].
It was accepted by the Director that it would have been preferable if the photo of David Hards was not in the same position in both the first photo ID pack and the second photo ID pack, not on that ground that there been any real risk that it could have influenced the result but on the basis it is one less issue for the jury to consider.
As submitted, the alteration of photographs in order to make them more consistent with a suspect is a proper procedure.[17] The tattoos on David Hards’ face and neck depicted in the arrest photograph were placed on the other seven photographs in the second photo ID pack in order that each person in the pack looked as similar as possible to David Hards. It was submitted by the Director that this prevented the witness from consciously or subconsciously selecting the photo based solely on the tattoo which most resembled the one the witness saw. The Director also contended that to do otherwise would have resulted in unfairness to David Hards and, further, if this approach were not taken, an accused could escape the use of an identification procedure simply on the basis of having a unique appearance.[18]
Unsafe and unsatisfactory
[17] R v Sparrow (2009) 104 SASR 320 at 325.
[18] R v Sparrow (2009) 104 SASR 320 at [19].
As set out below, the Director submitted that it was open to the jury to find Dylan Hards guilty. The participation of Dylan Hards provided his father with the motive to be one of the offenders; either because he was aggrieved at the fact that Mr Oakes had been in a sexual relationship with his son’s girlfriend or simply to assist his son to ensure his son was not overpowered.
Irrespective of the identification procedures, the Director argued that the descriptions given by witnesses that one of the three men was noticeably older, had a beard and facial tattoos strongly implicated David Hards in light of his connection with people who also resembled the descriptions of the other offenders, particularly, his son.
Should the evidence of identification of David Hards have been excluded?
Mr Oakes viewed the second photo ID pack 11 days after viewing the first photo ID pack. I agree with the submission that the risk of Mr Oakes being aware of a number three on each image was so remote as to be no risk at all.
The Judge clearly alerted the jury to “the problems and dangers of evidence of recognition and evidence of identification”. He directed the jury that whether Mr Oakes or the other witnesses were honest witnesses was a matter for them. He instructed the jury that honest witnesses make mistakes in identification or recognition. Most importantly, he explained that the selection of a photo from a photo ID pack was “not evidence of recognition and identification and, at most it is evidence of a circumstantial nature”. He made a particular point of directing the jury to exercise caution in assessing the evidence of witnesses who made selections from the photo ID packs.
The Judge’s directions conveyed to the jury the dangers and the caution that they were required to exercise in considering the evidence and he did not err in admitting the evidence of identification of the appellant.
I would dismiss ground 2.
Were the verdicts against David Hards unsafe and unsatisfactory?
Having determined that the evidence of identification was correctly admitted, the next issue is whether the totality of the evidence, including the identification evidence, is sufficient to sustain the jury’s verdict.[19]
[19] R v Crawford (2015) 123 SASR 353 at [31] (Gray J).
On my reading of the evidence, each witness had adequate opportunity to see David Hards. The offending took place in daylight. As submitted by the Director, the witnesses saw David Hards from a distance which did not preclude accuracy. Dylan Hards’ involvement in the offending as discussed below provided David Hards with the motive to participate to seek retribution on behalf of his son and/or to support his son. Significantly, the evidence proving that one of the attackers was Dylan Hards was relevant to the case against David Hards. The prosecution case at the trial concerned the credibility and reliability of Mr Oakes as to proof that Dylan Hards was one of the offenders. While the other evidence was also indicative of the participation of the three appellants, its utility was primarily to corroborate Mr Oakes’ account. As the Judge directed the jury, the reliability and credibility of Mr Oakes was a question for them.
In my view, it cannot be said that the evidence led against David Hards is such that the jury must have entertained a doubt about his guilt.
I would dismiss ground 1.
The case against Dylan Hards
As detailed above, in mid to late 2015, Mr Oakes had a brief three-week sexual relationship with Dylan Hards’ girlfriend while she and Dylan Hards were “on a break”. Dylan Hards and his girlfriend had resumed their relationship by the time of the offending in February 2016.
Mr Oakes gave evidence that, immediately before striking him, the man wielding the machete said, “you want to fuck my missus”. Mr Oakes conceded that he did not mention this to police until September 2017, shortly before trial.
The witness Ms Baines, heard yelling outside her home. She gave evidence that one man yelled, “You fucked a 12-year old girl”. She did not see whom, as she was not looking out of her window at the time. The prosecution submitted that this account corroborated Mr Oakes’ evidence that the word “fuck” had been used.
Amos Lamoude gave evidence that he saw a man with tattoos on his arms and legs use a machete to attack another man. He said this man and a second, older man got into a car which was being driven by a third man with tattoos on his arm.
Mr Oakes’ recognition of Dylan Hards
Mr Oakes’ evidence was that he recognised Dylan Hards as the man wielding the machete. He described the attacker as having tattoos on his neck, arms and face. In particular, the attacker had a tattoo of a tattoo gun on the right side of his face. He gave evidence that he had seen images of a person on Instagram and Facebook said to be Dylan Hards. He said that that he had seen Dylan Hards’ tattoo artwork, “a lot of great artwork”, shared on social media. He explained that he had seen Dylan Hards leaning over tattooing somebody on the Instagram account “Ink by Dylan Hards”. He described the man he had seen on the site as “a bit smaller than me, skinny, he had short hair, Mohawk-type of thing, spiky hair, tattoos”. He said that one of his tattoos was of a tattoo gun on his face. He said that he recognised the tattoo on his face during the attack, “and that’s how I knew it was Dylan Hards because I seen him on Facebook”.
It was the same tattoo he had seen on Dylan Hards in photographs on social media, and in person at his cousin’s 21^st birthday party on 9 November 2015. Mr Oakes had seen photographs of him and his artwork on social media “long before the party”. Mr Oakes’ relationship with Dylan Hards’ girlfriend ended three to four weeks before his cousin’s 21^st birthday party. Mr Oakes said that he saw the social media images of Dylan Hards and his artwork “long before” his cousin’s 21^st birthday party. He could not say how many images of Dylan Hards he had seen and if it was one or two years before the 21^st party that he saw them. Mr Oakes also said that it was at his cousin’s 21^st birthday party that someone mentioned to him that “Dylan’s here, don’t say nothin’ silly”.
Mr Oakes had not met Dylan Hards in person. In evidence, he resiled from his earlier statement to police that Dylan Hards was pointed out to him at the party. Dylan Hards’ brother, Blake Hards, confirmed that Dylan Hards was at the 21^st birthday party.
Identification of Dylan Hards’ car
Mr Oakes gave evidence that he saw the attackers in a silver four-wheel drive. It was an agreed fact that Dylan Hards was the registered owner of a silver Ford Territory with registration S894AKC.
In his phone call to 000, Mr Lamoude described a silver four-wheel drive Porsche Cayenne with registration S814AKC. In evidence, Mr Lamoude said he remembered the car as being either white or black, though it could have been the tinted glass that was confusing him. In cross-examination, he clarified that he was not the person who had identified the model of the car. It was a little boy who was with him who said it as a Porsche Cayenne.
Ms Hobbs said the car could have been black or white. She could not recall the full registration number, but knew it contained the numbers “684” consecutively. However, a police officer gave evidence of a 000-call made by Ms Hobbs in which she gave the registration “S8948C”. Ms Hobbs did not identify Dylan Hards. She made an incorrect selection from a photo ID pack. The photo ID pack and the recording of Ms Hobbs undertaking the identification procedure were tendered into evidence.
Ms Howley gave evidence that the car was a silver four-wheel drive, possibly a Territory. She also said it had a black front panel. Photographs of the car show that it did not have any black panels. However, the wheels were black, the windows appeared tinted, and there was a black area at the front of the bonnet.
The witness Victoria Cooper described the car as a big, gold four-wheel drive.
Dylan Hards’ submissions
Dylan Hards complained of numerous deficiencies in the prosecution case. He submitted that Mr Oakes did not positively identify him or the tattoo on his right cheek at trial. He argued that there was no evidence he had the tattoo at the time of the 21^st birthday party or in the photographs Mr Oakes had seen on social media, which were not before the jury. An investigating officer obtained a photograph from social media which was tendered at trial, but the tattoo is not visible in it.
Dylan Hards’ brother, Blake Hards, was also at Mr Oakes’ cousin’s 21^st birthday party. Dylan Hards submitted that Mr Oakes could have mistaken his brother, Blake Hards, for him. He argued that Mr Oakes was assaulted at that party by members of the Comancheros in relation to an alleged drug debt. That, coupled with his level of alcohol, it was argued, would have affected his ability to accurately recognise someone.
Dylan Hards also complained that he was unable to view the image or images allegedly seen by Mr Oakes. He said that he was unable to cross‑examine Mr Oakes as to the quality and extent of the image or images he had seen. It was submitted that the denial of the opportunity to test the reliability of the social media evidence tipped the balance in favour of the exercise of the discretion to exclude that evidence.[20] Dylan Hards relied on the comments of Peek J in Strauss v Police:[21]
The court — both the trial court and an appellate court — must be in a position to view the image when a witness asserts that he recognised the defendant from that image and in a case where identification is the central issue, the absence of such a central piece of evidence (which could easily have been obtained by police) is unacceptable.
(Footnote omitted)
[20] Strauss v Police (2013) 115 SASR 90.
[21] (2013) 115 SASR 90 at [118].
Linked to this complaint is a further suggestion the absence of an attempt by police to obtain or access the image or images should also be taken into account in determining whether the evidence should be have been excluded.

Dylan Hards contended that even if the evidence was admissible, the Judge failed to direct the jury in identifying the forensic disadvantages in respect of that evidence. Those disadvantages include:
·the passage of time between the viewing of the image or images, the party, the offending and the trial; and
·the inability to accurately test the reliability of the image or images relied on by the prosecution as founding the basis of Mr Oakes’ recognition evidence.
Dylan Hards submitted that the lack of safeguards in the context of social media identification warranted a strong warning of the pitfalls of such evidence.
Dylan Hards pointed to Ms Hobbs’ evidence that the offender alleged to be him had a six-inch rat’s tail haircut. However, there was no evidence that he had such a haircut at the time of the offending. He submitted that the witnesses Ms Cooper, Ms Howley and Mr Lamoude made no positive identification of him. Further, Ms Hobbs positively identified someone other than him. The witnesses’ descriptions of the car said to belong to him were varied. Dylan Hards further complained there was no DNA evidence linking him to the commission of the offences.
Dylan Hards said the suggestion that the motive proffered by the prosecution can be discounted due to the passage of time between Mr Oakes’ brief sexual relationship with his girlfriend and the time of the offending. It is submitted that Mr Oakes’ account that the man who struck him with the machete said “you want to fuck my missus” is refuted by Ms Baines’ evidence that a man yelled “you fucked a 12 year old girl”.
The Director’s submissions
The Director submitted that as this matter largely concerned the credibility and reliability of Mr Oakes, this Court must defer to the jury’s advantage in seeing Mr Oakes’ evidence.
In relation to the contention that the lapse of four months between Mr Oakes’ involvement with Dylan Hards’ girlfriend and the offending discounts jealousy as a motive, the Director contended that time does not always dissipate jealousy. Further, the Director pointed out that there was no evidence of the time at which Dylan Hards became aware of the liaison.
The Director submitted that whilst Ms Baines’ evidence about the statement she heard a man yell outside her window differed from Mr Oakes’ evidence about what was said, it is corroborative insofar as it supports that someone yelled something including the word “fuck”. It was open for the jury to conclude, having heard Ms Baines’ evidence, that Mr Oakes’ evidence was not contrived at the last minute, and that he was in the best position to hear what was said. The Director submitted that as the jury were prepared to act on Mr Oakes’ evidence this was not only significant evidence against Dylan Hards, but also the other two appellants.
In relation to Dylan Hards’ complaint that there was insufficient evidence led to establish that he did indeed have the tattoo described by Mr Oakes, the Director submitted that it was not put to Mr Oakes that no such images had been posted on social media. It was also not put to him that Dylan Hards did not have a tattoo of a tattoo gun on his face prior to the offending. The Director also pointed out that the photograph obtained from social media by the investigating officer does not show the tattoo because it does not show right hand side of Dylan Hards’ face.
The Director submitted that there was nothing inherently implausible about Mr Oakes’ evidence and the verdicts demonstrate that the jury was satisfied of his credibility. He argued that it was open to the jury to treat his purported recognition of the tattoo as another aspect of the evidence inculpating Dylan Hards. It was also open for the jury to find that the witnesses Ms Hobbs and Ms Cooper were mistaken when they described the car as gold and black respectively. As submitted by the Director, Ms Hobbs and Ms Cooper’s evidence on this topic was not so significant that singularly or in combination it precluded the jury from using it to link Dylan Hards to the offending. Whilst criticisms of the evidence were relevant for the jury to consider, it remained open for the jury to prefer the more consistent evidence of other witnesses on this topic.
The Director submitted that the absence of DNA or forensic evidence was of no consequence. There was evidence that metal objects such as those seized are unlikely to retain glass fragments. While there was no DNA or blood located on Dylan Hards’ socks and shoes seized three days after the offending, there was no evidence that he was wearing those shoes on the day of the offending.
Independent of any recognition of Dylan Hards, the Director submitted the evidence regarding his car strongly implicated him in the offending. His belongings, found in the car when it was seized three days after the offending, strengthened his connection with its use. Evidence that inculpated David Hards and Billy Wilckens also supported the inference that Dylan Hards was involved.
Should the evidence of recognition have been excluded?
Mr Oakes’ evidence was that he had seen the image or images of Dylan Hards and his artwork on social media long before his cousin’s 21^st party where he saw Dylan Hards. As submitted by the Director, it cannot be assumed that the image or images remained on any site. Mr Oakes said he had seen numerous images. Mr Oakes described an image he recalled wherein he saw Dylan Hards leaning over and tattooing someone and seeing his facial tattoo. It was not put to Mr Oakes that such an image did not exist. It was also not put to him that Dylan Hards had never had a facial tattoo of a tattoo gun.
The recognition by Mr Oakes of Dylan Hards comprises both Mr Oakes’ recall of the images he had seen on social media and seeing him at his cousin’s 21^st party. Mr Oakes said he saw Dylan Hards at the 21^st birthday party with the same tattoo of a tattoo gun on the side of his face that he had seen on social media. It was not put Mr Oakes that Dylan Hards could not have been seen at that party because he was not in fact there. It was also not put to him that Dylan Hards did not have that tattoo at that time. Dylan Hards’ brother confirmed that Dylan was at that party, however, he said he could not remember whether he ever had such a tattoo because he did not take much notice of the tattoos.
I agree with the Director’s submission that there is little difference between the evidence of Mr Oakes that he saw Dylan Hards on a social media site some time ago and his evidence that he saw him at the party. There could be no suggestion that his evidence that he saw Dylan Hards at the party should be excluded. As contended, the differences between the two situations are not so stark that it is logical that one should have been excluded and the other not.
Mr Oakes confirmed in cross-examination that he had told police in his first statement on 26 February 2017 that the attacker had a tattoo of a tattoo gun on his face.
The evidence of recognition was relevant to enable the jury to assess Mr Oakes’ evidence that he recognised Dylan Hards at the party. As submitted by the Director, his evidence of seeing Dylan Hards at the party would have been difficult to assess in the absence of evidence of what he had seen previously.
Mr Oakes said he recognised Dylan Hards because of the “distinctive tattoo” of a tattoo gun on his face. The fact he had seen this tattoo in images and on a person while at the party was relevant to the number of occasions he had previously had the opportunity to see the tattoo and be clear as to what he was describing. In the absence of any evidence that Dylan Hards did not have such a tattoo or that such an image had never been put onto social media, I agree that no unfairness has been established.
I agree with the Director’s submissions regarding Strauss v Police[22] and R v Crawford.[23]Both matters involved purported identifications from photos on social media sites after the offending. This appeal concerns a recognition and a viewing of images by Mr Oakes before the offending.
[22] (2013) 115 SASR 90.
[23] (2015) 123 SASR 353.
Whilst it would have been of assistance for the prosecution to tender the photographs from which the Facebook/Instagram recognition was made,[24] this matter did not concern a “Facebook identification”. As characterised by the Director, this matter involved the recognition of Dylan Hards from photographs that Mr Oakes had viewed before the offending.
[24] (2013) 115 SASR 90 at [116]-[119].
Mr Oakes did not search for a photo of his attacker, as was the case in Strauss v Police.[25] Nor was he provided with a name asserted by others to be the offender.
[25] (2013) 115 SASR 90 at [37].
In circumstances where:
·the image was viewed well before the offending;
·the existence of the social media account “Ink by Dylan Hards” was not disputed;
·the existence of a photo or image of Dylan Hards on the said social media account was not disputed; and
·it was not put to Mr Oakes that no image of Dylan Hards with a tattoo gun on his face existed,
the failure to exclude the evidence has not resulted in a miscarriage of justice. The Judge did not err in admitting the evidence.
I would dismiss ground 2.
Did the Judge fail to give a warning as to the forensic disadvantage or dangers of Facebook identification/recognition or the reliability of the recognition?
Counsel for Dylan Hards did not ask for a forensic disadvantage direction and, on my assessment of the issues at the trial, no forensic disadvantage arose and no specific direction was required.
This was not a matter akin the circumstances in Strauss v Police[26] and R v Crawford requiring a direction regarding the dangers of Facebook recognition.
[26] Strauss v Police (2013) 115 SASR 90, [139]-[143], [177]-[178], [189].
The Judge gave extensive directions regarding the dangers of recognition evidence and the need for “great caution” and “great care” in considering such evidence. His Honour made specific reference to the matters affecting the recognition evidence of Mr Oakes and warned the jury of the need to approach his evidence with great caution.
The Judge said, “You may take the view that his claimed evidence of recognition is not reliable in which case you may then ask yourselves how reliable is his general evidence of description of the man?”.
The Judge highlighted the weaknesses in the purported recognition of Dylan Hards by Mr Oakes including, as detailed in the Director’s written submissions, that:
·the initial opportunity to assess the man alleged to be Dylan Hards was very quick;
·later opportunities during the chase were from a distance, whilst Mr Oakes was intent on escape and survival;
·the image(s) had been viewed on social media and were only a limited number;
·Mr Oakes’ evidence changed about the number of images he had seen;
·Mr Oakes had never met Dylan Hards. Mr Oakes may have seen another person at the 21^st birthday party;
·the discrepancies between Mr Oakes’ descriptions of the offender; and
·repeating the submission of Dylan Hards’ counsel relating to the lack of safeguards of a normal identification procedure when viewing a photograph over social media.
In my view, the matters highlighted by the Judge adequately warned the jury about the need for care when assessing the evidence of Mr Oakes’ recognition of Dylan Hards.
I would dismiss ground 3
Were the verdicts against Dylan Hards unsafe and unsatisfactory?
Having determined that the evidence of recognition was correctly admitted, the next question to consider is whether the totality of the evidence, including the recognition evidence, is sufficient to sustain the jury’s verdict.[27] The case detailed above against Dylan Hards was strong. In my view, it cannot be said that the evidence led against him is such that the jury must have entertained a doubt about his guilt. The matters complained of by Dylan Hards did not cumulatively prevent the jury from being satisfied of his guilt beyond reasonable doubt. It was open to the jury to find Dylan Hards guilty.
[27] R v Crawford (2015) 123 SASR 353 at [31] (Gray J).
I would dismiss ground 1.
The case against Billy Wilckens
In his statement dated 26 February 2016, Mr Oakes described the man alleged to be Billy Wilckens as “in his 20s, chubby with olive skin, he had stubble … on his face, he had short hair with a little rat’s tail”. Mr Oakes added in his statement dated 27 February 2016:
I can also say that he had a face tattoo. I cannot say exactly what it was but I can say that it was small and black in colour and near his eye … I would say it looked similar to an ace of spades shape …
In his statement dated 28 February 2016, Mr Oakes further added that this man, “was in possession of a baseball bat … completely silver in colour”.
In evidence, Mr Oakes agreed that he had also told police that the man alleged to be Billy Wilckens was olive skinned, with a blonde or brown rat’s tail of 10 to 15 cm in length. He agreed that his observation of his attackers was a momentary glimpse and that his description of Billy Wilckens was not the best.
During the identification procedure on 8 March 2016, Mr Oakes did not identify Billy Wilckens from a photo ID pack which contained, among the photographs of seven other men, a photograph of Billy Wilckens, with no apparent facial tattoo, taken in May 2015. Mr Oakes was shown a second photo ID pack during a further identification procedure on 20 March 2016. This second photo ID pack contained a photograph of Billy Wilckens taken on 9 March 2016, after his arrest. In the photograph, Billy Wilckens has the letter “K” and a small heart tattooed to the right side of his right eye as well as a cross just below and to the left of his left eye. These tattoos were superimposed on the photographs of the other seven men in the second photo ID pack. Mr Oakes selected Billy Wilckens, who appeared in the fifth photograph, as one of the attackers.
Ms Howley gave evidence that she saw two men. She said that the man, alleged to be Billy Wilckens, was older than her 21 years, bald, with a tattoo on his arm. The other, alleged to be David Hards, was fairly short, medium size and quite old, with a full beard.
Ms Hobbs described the man she saw in the car as olive skinned, Italian looking and baby faced, with short brown hair, a beard and a moustache, and a neck tattoo. She also said one of the men had a rat’s tail.
Mr Lamoude described the man in the car as being in his mid-20s to early‑30s, chubby and clean-shaven, with a heavy build and tattoos on his arm and neck.
Ms Cooper gave evidence that she saw three men. The first was fairly young, in his 20s to 30s, quite tall, with mousy coloured hair, carrying a baseball bat. The second was in his 40s or 50s, tall, stocky, with grey hair. The third was shorter, in his 40s, with a medium build, carrying a baseball bat. She agreed that she only saw the men for three to four seconds. The prosecution did not place any weight on her evidence at trial.
Mr Lamoude, Ms Hobbs, Ms Howley, and Ms Cooper were all shown the photo ID pack containing the photograph of Billy Wilckens taken in March 2016. None of them selected Billy Wilckens as the man they had described.
Weapons
On 9 March 2016, 11 days after the attack, Billy Wilckens was pulled over by police for breath testing. He was driving his mother’s white Holden Commodore at the time (“the Commodore”). Police noted that he was wanted for questioning in relation to this matter and arrested him. In the boot of the Commodore, police found a blue baseball bat and a car jack. A component of the car jack was a silver metal pole, approximately one metre long, with a black rubber handle.
Mr Oakes and other witnesses gave evidence as to the type and colour of the weapons used in the attack. In his evidence, Mr Oakes said the baseball bat was black, and the pole was silver and black. However, he agreed he had previously told police that the pole was black.
Ms Baines described the pole as being “grey … like a metal colour”. Ms Cooper said she saw a thin man in his mid-20s carrying a black baseball bat. She also saw a shorter man of medium build carrying a black baseball bat with a silver handle.
Ms Hobbs saw a Caucasian male holding a machete, and a man with grey hair and a medium build holding a rifle (as explained earlier in these reasons, none of the other witnesses mentioned a firearm).
Ms Howley saw two baseball bats, one was red and she could not recall the colour of the other.
Mr Hurst said that one man was carrying a baseball bat that he thought was red in colour.
Mr Lamoude saw a man with a slim build and tattoos carrying a machete.
Telephone records
The friendship between Billy Wilckens and Dylan Hards was not disputed at trial. The prosecution led evidence of telephone communication between the two men. Billy Wilckens and Dylan Hards were in contact by telephone the day before and on the morning of the attack. There was no evidence of telephone communication between them from 11.34 am to 5.21 pm on the day of the attack. The prosecution submitted that this supported the inference that the two men were together in the lead up to and during the attack.
Connection with Dylan Hards’ car
A receipt belonging to Billy Wilckens were located in the centre console of Dylan Hards’ car after it was seized by police three days after the offending.
Billy Wilckens’ submissions
Billy Wilckens contended that the minimal probative weight of the evidence of identification against him does not outweigh the risk of prejudice occasioned by it.
It was submitted that Mr Oakes failed to recognise a 10 month old photograph of him in the first identification procedure, but successfully identified him from his arrest photograph in the subsequent identification procedure. It was contended that there is a risk of Mr Oakes’ memory being contaminated by the first identification procedure. Billy Wilckens argued that the quality of the editing was so poor that it was readily obvious which images had been edited. He contended that few of the men in the second identification pack matched Mr Oakes’ description of the suspect. In particular, none had a rat’s tail hairstyle or olive skin. It was submitted that this created a risk of Mr Oakes subconsciously correcting his erroneous description because, by process of deduction, certain images could be eliminated as the person of interest.
Billy Wilckens contended there were a number of deficiencies in the case against him. The same photo ID pack from which Mr Oakes identified him was shown to five other witnesses none of whom identified him. There was no forensic evidence connecting him to the assault. There is no evidence of the involvement of the blue baseball bat found in the Commodore in the assault. He contended that the evidence of the involvement of the metal pole is of such low probative value that it is not possible to draw a conclusion beyond reasonable doubt and no corroborative evidence exists. He said the Commodore, in which the baseball bat and metal pole were discovered 11 days after the offending, does not belong to, and is not registered to him.
Billy Wilckens submitted that receipt, which was found in Dylan Hards’ car, was printed on 7 February. However, it was not discovered until 29 February. He argued that there is no evidence as to the origin of the receipt, or of when and how it made its way into Dylan Hards’ car. He submitted that, in the absence of further evidence, the receipt merely establishes that he and Dylan Hards knew each other. He submitted the same can be said for the telephone records evidencing communication between him and Dylan Hards. Finally, Billy Wilckens’ father, Robert Wilckens, and Dylan Hards’ brother, Blake Hards, both gave unchallenged evidence that he had never had a rat’s tail haircut as described by the witnesses Mr Oakes and Ms Hobbs.

Accordingly, Billy Wilckens submitted that the evidence against him was such that a reasonable jury properly instructed could not have found beyond reasonable doubt that the “larger man” described by the witnesses was him.
The Director’s submissions
The Director submitted that the risk of Mr Oakes selecting a photograph of Billy Wilckens because he had seen his photograph in the first identification procedure was slight. First, the photographs of Billy Wilckens used in the two procedures were so different that they bore little resemblance to each other. In the first photograph, Billy Wilckens’ hair colour is different, his hair is shorter, his face is thinner, his facial hair is longer, he has no tattoos and he is facing a slightly different way to the second photograph. Secondly, the lapse of 12 days between the identification procedures meant it was unlikely Mr Oakes recalled the photographs used in the first photo ID pack.
While the danger of displacement was a relevant consideration, it was nonetheless open to the jury to act upon the identification. The Judge highlighted to the jury the issue of the tattoos superimposed onto the men in the second photo ID pack. The Director submitted that because each photo is viewed individually on the screen, there is less opportunity to compare the darkness of the superimposed tattoos. Ultimately, it was submitted that this was a factor for the jury to consider.
The Director pointed out that the images used in the procedure are of the front of the face, such that it would be impossible for a person’s rat’s tail to be visible. Accordingly, no prejudice arose in that respect. The Director conceded that Mr Oakes was mistaken about Billy Wilckens having olive skin. Again, it was argued that this evidence simply warranted the jury’s consideration, not exclusion.
The Director argued that it was open for the jury to convict Billy Wilckens upon the cumulative effect of the evidence. It was submitted that there are obvious reasons why the witnesses may have been mistaken in some aspects of their evidence. Mr Oakes, Ms Howley, Ms Hobbs, Mr Hurst and Mr Lamoude had sufficient opportunity to observe the offenders. Their descriptions of the man said to be Billy Wilckens are generally consistent. The Director submitted that the discrepancies in their evidence were not such that the jury must have concluded Billy Wilckens was not one of the offenders.
The Director argued that the contention that, at their highest, the telephone records merely establish that Dylan Hards and Billy Wilckens knew one another, must be rejected. The frequent communication between the two men in the lead up to the offending and the subsequent absence of communication between them until after the offending is consistent with their being together in the time immediately preceding and during the offending. Although the receipt belonging to Billy Wilckens was 22 days old, it was found in Dylan Hards’ car three days after the offending. Although the witnesses’ descriptions of the colour of the baseball bat did vary, it was submitted that it is obvious that mistakes could have been made as to colour.
The Director argued that it was open to the jury to reject Blake Hards’ and Robert Wilckens’ evidence that Billy Wilckens did not have a rat’s tail hairstyle. It was submitted that Blake Hards’ powers of observation were questionable. In cross-examination, he could not recall Dylan Hards or Billy Wilckens having a face tattoo, which was demonstrably incorrect. Similarly, Robert Wilckens was unable to describe any of Billy Wilckens’ tattoos other than the one beneath his eye. His recollection of other details was sparse. Alternatively, it was open to the jury to determine that the prosecution witnesses were wrong about the rat’s tail hairstyle, or to allow for the possibility that Billy Wilckens had cut off the rat’s tail following the offending and before his arrest. The Director submitted that this aspect of the evidence did not, in itself, undermine the other inferences that could be drawn against Billy Wilckens.
Should the evidence of identification of Billy Wilckens have been excluded?
There is nothing about the evidence of identification of Billy Wilckens which meant it was so lacking in weight that its probative value was outweighed by its prejudicial effect. Billy Wilckens did not point to any deficiency in the directions. I note again that the Judge alerted the jury to “the problems and dangers of evidence of recognition and evidence of identification”. He directed the jury that whether Mr Oakes or the other witnesses were honest witnesses was a matter for them. He instructed the jury that honest witnesses make mistakes in identification or recognition. Most importantly, he explained that the selection of a photo from an ID photo pack was “not evidence of recognition and identification and, at most it is evidence of a circumstantial nature”. He made a particular point of directing the jury to exercise caution in assessing the evidence of witnesses who made selections from the ID photo packs.
The Judge’s directions conveyed to the jury the dangers and the caution that they were required to exercise in considering the evidence and he did not err in admitting the evidence of identification of Billy Wilckens.
I would dismiss ground 1.
Were the verdicts against Billy Wilckens unsafe and unsatisfactory?
Having determined that the evidence of identification was correctly admitted, I consider the totality of the evidence, including the identification evidence, is sufficient to sustain the jury’s verdict.[28]
[28] R v Crawford (2015) 123 SASR 353 at [31] (Gray J).
All the matters identified as deficiencies in the prosecution case against him by Billy Wilckens were relevant considerations for the jury. The cumulative effect of the evidence of Billy Wilckens’ connection to Dylan Hards, the evidence consistent with him having been in Dylan Hards’ car, his possession of weapons which might have been used in the offending, Mr Oakes identification of him, the close resemblance between the tattoo near his eye and the tattoo Mr Oakes described as being near the offender’s eye, and the descriptions given by the independent witnesses was sufficient to enable the jury to convict him.
In my view, it cannot be said that the evidence led against Billy Wilckens is such that the jury must have entertained a doubt about his guilt.
I would dismiss ground 3.
Conclusion
I would dismiss all grounds of appeal.