R v Morgan

[2000] NSWCCA 7

CITATION:	R v Morgan [2000] NSWCCA 7
FILE NUMBER(S):	CCA 60757/98
HEARING DATE(S):	29/10/99
JUDGMENT DATE:	25 February 2000
PARTIES :	Regina Raymond George MORGAN
JUDGMENT OF:	Stein JA; Hulme J; Greg James J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Flannery DCJ

COUNSEL :	Crown: R A Hulme Appellant: J S Stratton
SOLICITORS:	Crown: S E O'Connor Appellant: Brenda Duchen
DECISION:	Appeal upheld; Conviction quashed; New trial ordered

- 23 -

IN THE COURT OF
CRIMINAL APPEAL

No: 60757/98

STEIN JA
HULME J
GREG JAMES J


Friday, 25 February 2000
REGINA -v Raymond George MORGAN
JUDGMENT

1    THE COURT: On 16 November 1998 the Appellant was indicted on a charge:-

For that he on 5 December 1997 at Ramsgate... did rob Jane Lisa Wickham and others of certain property; namely about $16,750 in cash, the property of the St George Bank Limited and at the time of the said robbery did use corporal violence on the said Jane Lisa Wickham.”

2 The charge was laid under Section 95 of the Crimes Act which provides for a maximum penalty of 20 years penal servitude.

3    Of the essential ingredients of the charge, the only significant issue in dispute was whether the Appellant was one of the persons who had committed the offence. On 24 November 1998 a jury found the Appellant guilty. On 3 February 1999 Judge Flannery sentenced the Appellant to penal servitude for a minimum term of 2½ years commencing on 12 December 1997, the day of the Appellant’s arrest, and an additional term of a further 2½ years. At the direction of His Honour the jury had earlier found a verdict of not guilty on a second charge which may be summarised as being carried in a conveyance known to have been stolen.

4    On 2 December 1998, prior to being sentenced, the Appellant lodged a Notice of Appeal, which noted that the grounds of appeal would be advised. This occurred on 30 April 1999. On 29 October 1999 the appeal came on for hearing and was upheld, a new trial ordered and the Appellant discharged from custody. The Court indicated that its Reasons would be published later. These are they.

5    In outline the circumstances leading to the Appellant being charged were as follows. A robbery of a branch of the St George Bank was carried out by two persons. These persons were seen by a number of persons who were either bank employees, customers in the bank at the time or persons who were near the bank either immediately before or immediately after the robbery. An accomplice was seen in the car to which reference has been made In addition, photographs of the two offenders were taken by a security camera within the bank.

6    The photographs taken by the security camera were later developed and a number of police officers gave evidence of having been shown those photographs and of identifying the Appellant from them. A video tape which contained photographs of a number of persons including the Appellant was shown to the eye witnesses. Only one, Lisa Wickham, identified the Appellant as one of the offenders. The Appellant did not give evidence but there was called on his behalf a Mr Donnelly, an expert in the field of photogrammetry - a science of taking measurements from photographs. Mr Donnelly’s conclusion was that, if his calculations of the offender’s height were correct, the offender was not the Appellant.

7    The grounds of appeal are:-

1. The conviction is unreasonable and cannot be supported having regard to the evidence.
2. The trial miscarried because the Crown failed to inform the appellant and his legal advisers that an important Crown witness, Gregory James Schott, had been charged with attempting to pervert the course of justice.
3. There has been a miscarriage of justice because there is a reasonable possibility that had fresh evidence not available to the appellant at his trial been available it would have led to the acquittal of the appellant.
4. His Honour erred in admitting evidence of identification by photographs by the witnesses Carrick, Schott, Schoobridge, Hewins and Lynn.
5. His Honour erred in permitting cross-examination of the witness Donnelly about different conclusions reached by another witness in another case.
6. The trial miscarried by reason of the Crown cross-examining the witness Donnelly about matters not in evidence.
7. His Honour erred in allowing the Crown’s application for an adjournment of 2 days to prepare the cross-examination of the witness Donnelly.

8    It was ground 5 which the Court, at the hearing of the appeal, thought had been made out. The Appellant’s success on this ground does not however entitle him to a verdict of acquittal. If made out ground 1 would, and it is accordingly necessary to consider it. Grounds 2, 3, 6 and 7 are concerned with matters which arose at the trial before Judge Flannery and may not arise at any subsequent trial. It is accordingly unnecessary that anything be said about them.

Ground 1 - The conviction is unreasonable and cannot be supported having regard to the evidence.

9    In support of this ground Mr Stratton, appearing for the Appellant, firstly relied on the evidence of Mr Donnelly. It is necessary to go to that in a little detail.

10    Mr Donnelly’s evidence was to the effect that it was possible to determine the distance from the ground to the top of the head said to be that of the Appellant from two of the photographs taken by the security camera and from some measurements he had taken of the scene. His conclusion was that in one photograph in which he described the offender as standing straight up, that height was 1690mm. In another, in which the offender was described as stepping forward with his head slightly bowed, the measurement was 1670mm. These measurements have a margin for error of plus or minus 15mm. Mr Donnelly gave evidence that he measured the Appellant’s height at 1810mm. In imperial measurements, Mr Donnelly told the jury, 1690mm is 5ft 6.4 inches and 1810mm is 5ft 11.25 inches.

11    In re-examination Mr Donnelly said that a practical check of the reliability of the method of comparison he used had been carried out at some time in the past by having a subject walk across a test field and this showed that method to be accurate. Subsidiary details of Mr Donnelly’s measurements and calculations were not before the jury nor was there any contrary expert evidence. Mr Donnelly was cross-examined but without, except in the respects we shall mention, much effect. He would not concede that there was scope for error in his conclusions greater than the plus or minus 15mm to which we have referred.

12    Mr Donnelly said that his measurement of the Appellant was done while the latter was stationary although he had sought to have the Appellant adopt the stance depicted in the photograph - a circumstance Mr Donnelly would not concede was very difficult. That stance was either walking or running. He did however say that he had not measured the gait of the offender and had no expertise in gait analysis or in determining what effect minor changes in gait would have on the height of a person. Asked how bent were the knees of the person in the first photograph, that from which Mr Donnelly deduced a height of 1.67m, Mr Donnelly replied:-

“They’re [sic]- the back leg seems to be relatively straight. The front leg is slightly bent, the heel is probably almost in contact with the ground I would expect.”

13    Other evidence in the case indicates that before the photographs were taken, the offender had seized the proceeds of the robbery, the bank security screens and security alarm had been activated and the police were expected shortly. The co-offender had been yelling to the offender to get out because time was running out. The evidence of at least one witness Miss Sinclair, describes the offender as running and the photograph depicts him with his upper body leaning forward. The circumstances point inevitably to significant haste.

14    Common experience shows that during walking, the height from the top of a person’s head to the ground varies by an appreciable number of centimetres. During running or even hurrying the variation is liable to be more. Commonly these latter actions are accompanied by a leaning forward and to some extent bending or crouching down. On the basis of the photographs, the evidence to which we have referred and their common experience the jury was well entitled to find that there was no necessary inconsistency between the heights calculated by Mr Donnelly from the photographs and the Appellant’s height as measured by him. On the basis of his appearance in the photographs alone, we certainly would take the view that the actual height of the offender, when still and upright, was appreciably higher than the distance from the top of his head as depicted in the photographs to the ground.

15    For completeness it might be mentioned also, although we do not need to rely on it, that there was a difference in the shoes worn by the offender and those in which the Appellant was measured and no evidence as to what the respective heights of these were. Exhibit 1, a photograph of the Appellant on the occasion of his arrest bears a notation “175 cm” but there being no evidence as to the circumstances of measurement on that occasion, the jury were told that neither party relied on this notation.

16    Turning to the other identification evidence, firstly to that of the eye-witnesses there is a clear difference in the appearance of the offenders in the photographs and, against that background, in understanding the evidence given by the witnesses. In this situation, it is possible to largely ignore the existence of the offender not suggested to have been the Appellant. The evidence concerning him does not add to that concerning the identification of the Appellant. It should also be mentioned that the Appellant had been tried on two occasions prior to his trial before Judge Flannery but neither trial had proceeded to verdict. There were some discrepancies between the evidence given at the trial before Judge Flannery and the earlier occasions but these are not of sufficient moment to make it necessary for me to recount them.

Jane Lisa Wickham

17    Ms Wickham’s evidence bearing on the circumstances of identification was to the effect that some incident of distraction had occurred, one of the offenders jumped the counter, losing his balance in the exercise and grabbing her shirt to gain stability, and that she then saw his face for a couple of seconds. As ordered by the offender she and the rest of the staff went down onto the floor. Later she was told “to get up and get it (a safe) open”. Having turned the key to the safe she was again told to get back down on the floor and punched in the face. At this time she said he saw the offender’s face again for a couple of seconds. She also said “I looked at him a couple of (other) times during the course of the robbery but he was telling us not to look at him, so I really wasn’t.” Ms Wickham is herself 5ft 4’ or 5ft 5’ in height. Ms Wickham’s initial descriptions of the offender and his clothes was:-

“Pacific Islander in appearance, he was between 35-40 years of age, about 5ft 7’ in height and of solid build. He had a dark brown complexion, very short dark brown hair and was clean shaven;” and
“He was wearing a round neck short sleeved navy blue coloured T-shirt with yellow, green, brown stripes. The brown stripe was thin. He was also wearing very dark blue denim jeans, black belt and tan coloured boots. He was carrying a green coloured canvas bag in his left hand.”

18    In evidence she said there was no possibility that she was mistaken about the tan boots. Asked whether he had had a cap on his head or was wearing sun glasses she said “not to her memory” and later “no” in response to the question “at no time did you ever see the robber who jumped over the counter wearing a cap or dark sunglasses.” She thought the stripes on the shirt were horizontal.

19    The photograph of the offender shows he was wearing a cap, sunglasses, jogging shoes or the like, largely white or grey, and a collared “V” neck shirt with vertical stripes. The shirt of the co-offender had horizontal stripes.

20    In due course Ms Wickham and at least many of the other eye-witnesses were shown a video tape compiled by the police and containing photographs of a number of persons including the Appellant. The persons depicted were numbered, the Appellant being numbered 10. (By the time of the appeal, the video tape, which had become exhibit A in the trial before Judge Flannery had become lost. However, in light of the way the appeal proceeded and the Court’s conclusion, it is unnecessary to pursue the consequences of that.) When on 3 March 1998, Ms Wickham was shown the tape, she responded to the police officer carrying out this exercise:-

“That is him, ten, I know its him because of the moustache and the hair. When he hit me, was the time I really looked at him. I am 100% sure. I knew he had tight curly hair which was short and he was plump and had a moustache. I first saw him when he jumped the counter but I really saw him well when he hit me.”

21    Miss Wickham denied the possibility of a mistake in her identification of the accused.

Tracy Sinclair.

22    She said the offender jumped the counter between “closest to me and Sue (Lenertz) who was next to me.” She said she got a good description (sic) of the offender and had seen the offenders outside the bank 5 or 10 minutes beforehand. Amalgamating a number of her answers in cross-examination, her original description would seem to have been:-

“Pacific Islander in appearance with really dark skin, was about 5ft 7’ tall, having medium build, short dark hair, appeared to be short straight hair. (She) couldn’t see much of the hair because it was covered by a cap and he had wrap around sunglasses.”

23    In evidence she said in addition that he wore a pair of sneakers, a vertically striped shirt which she thought was green, bluey and white and carried a black backpack. She also said that given his hat and sunglasses she didn’t get a great look at him but knew he had short dark hair and he was very dark.

24    In March 1998, she was unable to identify any one on the police video tape.

Leanne Eileen Godden

25    This witness was another bank employee. On the day of the offence she described the offender as in his early 20’s, dark complexion, Islander or Maori descent wearing wrap around sunglasses and a polo shirt. She could not see much of his hair because of a baseball cap and at the time of trial remembered nothing about his hair. Other descriptions she gave at the trial - and which were not challenged, thus probably according with her initial description - included that the shirt was vertically striped, blue and white, the offender looked tall (though she said that as she was on the floor he would look tall) and was probably of medium build. When shown the video containing the Appellant’s photograph she remarked “one or four, but nothing strikes me.”

Susan Patricia Lenertz

26    Another bank employee, her initial description on the day of the robbery included statements that the offender:-

“Was about 5ft 6’ tall, stocky build with dark skin complexion, mid to late 20’s.”

27    In evidence she said she was not very good with heights or ages and had only seen the offender side on. She had not seen a beard or moustache on him. She said she had described the shirt as horizontal, but it wasn’t. She was shown the video in March 1998 and her response was to the effect “maybe 6 or 8 jumped the counter” but she was unable to positively identify any one. It was suggested to her in cross-examination that she had nominated photos 6 and 8 as those looked most similar to the man who had jumped the counter. She responded “I guess so.”

Doris Winifred O’Brien

28    Prior to the robbery she had been sitting outside the bank waiting for a friend who had gone inside. She noticed a man looking agitated. She went into the bank to ask her friend to hurry and was followed by the man she had seen and another. The first man jumped the counter. Her description was that the man was an Islander; was of medium build - not thick set; not very tall, 5ft 6’ or 5ft 7’; short hair and dark glasses right around his face. Later she said she had not seen either of the men’s faces.

Keiran Gerard Berne

29    Over a period he estimated as about 10 or 20 seconds, he saw two people running out of the bank of Islander or Maori appearance, of dark complexion, both wearing caps and sunglasses with short cropped black hair. He described their height as “5ft 9” and “6ft 1” but agreed it would be hard to be precise about heights and the men could have been shorter or taller than that estimate. (It is common ground that the offender said to have been the Appellant was the shorter of the two.) Mr Berne also said that the persons were in their late teens or early 20’s.

Mrs Barrett

30    Mrs Barrett was on the footpath near the bank and saw 2 men walking very quickly, one carrying a backpack. She was about 10-15 metres away and only saw them side on.

31    In Mrs Barrett’s original description she had said the offenders were of Pacific Islander appearance, in their 20’s or 30’s, very dark brown coloured skin. Shown two videos, she said that “the only one it could have been is No. 12”. She agreed in evidence that in effect what she was saying was that with the exception of number 12 the appearance of the men on the video didn’t look like the two men she had seen.

Mark Newcombe

32    He was the proprietor of a delicatessen next to the bank. Having been informed there was a bank robbery next door, he saw 2 “guys” pass the shop. The smaller of the two was described by Mr Newcombe as of slim to medium build, clean shaven (“any growth … would have been minimal”), and fine features.

33    In evidence in chief and on which he was not challenged, he also described the person seen as “of a youngish appearance, maybe 20 to 25 years old. He had black wraparound sunglasses” He went on to describe the person’s shirt. He said also that he didn’t see much hair so he assumed it was quite short and that there wasn’t much showing at the back of his cap. Shown the video tape which included the picture of the Appellant he said that numbers 5 or 8 best fitted that offender.

Linda Cook

34    A statement of this person was read to the jury. In it she said that she was in the bank when the robbery occurred. Referring to the first offender who jumped the counter, she said that he was “dark in appearance, possibly a Pacific islander. He was wearing sunglasses. I can’t say describe (sic) him any further because it all happened so quickly”. In the statement Ms Cook also said that she had viewed two police video tapes entitled “Bagnara West Attwood” and “Bagnara Morgan Attwood”. After seeing the first, she said that “It could be 11”. After seeing the second, she said “It could be 7 …”. There was no evidence that either of these persons was the Appellant.

POLICE OFFICERS

Mark Anthony Carrick

35    On 12 December 1997, Senior Constable Walters showed him eight black and white photographs, two of which were labelled on the rear “St George Bank, Ramsgate”. The other six were slightly larger and not labelled. Constable Carrick said he looked carefully at the photographs and immediately recognised the offender walking through a doorway as the Appellant, someone he had spoken to on numerous occasions previously in the Redfern area where Constable Carrick was stationed. The latest of these occasions was a week or two prior to 12 December.

36    He said that he and Detective Walters were the only ones present at the time of his identification of the Appellant. He made a statement straight away which he and Constable Walters signed. Within 5 or 10 minutes before or after that he was shown by Constable Lynch another set of photographs and made another statement which was witnessed by Constable Schott.

37    In response to the suggestion that from the 5 photographs in exhibit C, being copies of some taken by the bank’s video camera, it would be difficult if not impossible to say anything about the height of the person, Constable Carrick said that he imagined it would be difficult but “you could have a guess”. He agreed that when having been questioned on 12 August 1998 the following questions and answers occurred:-

Q The body shows that of a person of indeterminate height. Would you agree with that?
A Yes
Q You couldn’t determine how tall the person is for example?
A No.

38    He was quite clear that there was no moustache apparent in the only photograph in which the offender’s face is not obscured by his shirt.

Constable Schott

39    His evidence was that on 12 December 1997 he was shown by Detective Lynch 10 photographs, Exhibit B, and recognised the Appellant, someone he had known from 2 years in the course of policing in the Redfern area. He had last seen the Appellant within a month prior to 12 December.

40    He was cross-examined about his recollection of the Appellant’s appearance and said, among other things, that in length, the Appellant’s hair was about the same as his, not “like afro style with tight curls or anything like that” and was just short straight hair. Further cross-examination on the photograph taken at the time of the Appellant’s arrest, he agreed it had a slight wave and was slightly longer than his own.

41    He was “pretty sure” that there was no one else present when he was shown the photographs, but after he had identified the Appellant he became aware Constable Carrick, and possibly one other detective, had made the same identification. He said he picked out the Appellant straight away.

Constable Shoobridge

42    His evidence was that Detective Lynch on 9 December 1997 showed him one black and white photograph who he recognised as the Appellant whom he had last seen on 29 October 1997. He said that on 5 January Detective Lynch showed him 10 photographs, also copies of the those taken by the bank’s video camera, and again instantly recognised the Appellant. In cross-examination he said he had a reasonable recollection of the Appellant’s appearance and would not describe it as a vague memory. On 29 September 1998 he had described his memory of the Appellant’s appearance as a “vague memory”. He could not explain the discrepancy and a little later, contradicting his evidence on the previous page of the transcript, denied he had said he had a reasonable recollection of the Appellant’ appearance.

43    Asked whether, when he had seen the Appellant on 29 October 1997, the Appellant’s hair was so short that he could hardly see it, Mr Shoobridge disagreed. On 29 September 1998 the following question and answer had occurred:-

Q Do you have a memory that he had a crew cut when you last saw him (29 October 1997)?
A Well, I couldn’t say if it was a crew cut, it must have been very short because I could hardly see his hair.

44    No note in his official notebook or statement was made concerning the matter on 9 December 1997.

45    In cross examination he asserted that he could see the sides of the offender’s hair in the photograph. On 29 September he had agreed he couldn’t.

Richard Hewens

46    On 15 December 1997 in the company of Detective Walters he viewed 8 photographs (Exhibit C). He was 100% sure that the person depicted wearing a vertically striped shirt was the Appellant.

47    Questioned about his recollection of the Appellant’s appearance in December 1997, he agreed that the Appellant had a crew cut in the sense of short straight spikes coming from his head and with another description of “very very short straight hair” which he would not describe as curly or wavy. He said that whenever he had seen the Appellant’s hair it was short and straight. Taken to the photographs in Exhibit C and asked whether the hair seen on the Appellant was a crew cut, he said “it’s a bit hard to say what length it is, but it does appear to be very short.” On 29 September he had agreed with the description crew cut. Taken to the photograph taken on the Appellant’s arrest, Exhibit 1, he agreed the Appellant did not have a crew cut.

Bruce Lin

48    His evidence was that on 11 December 1997 Constable Walters showed him 8 photographs, one of which he immediately recognised as that of the Appellant from his having seen or spoken to him over a period of 18 months. That 18 months included the latter part of 1996 and possibly the early part of 1997. Mr Lim signed two of the photographs. Later he identified as his signature on the back of 2 photographs of Exhibit B. Exhibit B contains 10 photographs rather than 8.

49    Constables Walters and Lynch also gave evidence of the showing of the photographs to other police officers who did not give evidence.

50    Clearly, although there was evidence to show that the Appellant was one of the offenders, much of that to which we have referred can not be regarded as other than very unsatisfactory. On the other hand, much of the police evidence, at least in its terms, cannot be so described. It is, of course of a nature susceptible to manufacture but, to a very large degree, whether it should be discounted on that account is a question for the jury who have seen the witnesses, not this Court. Furthermore, the jury had before them the photographs taken by the bank’s video camera, one of which showed the face of the offender alleged to have been the Appellant and the Appellant himself. Although, having seen the Appellant in the Court of Criminal Appeal, we would not be prepared to say that there was a striking likeness between the person depicted in that photograph (which, of course, was taken 2 years earlier) and the Appellant, nor would we be prepared to say that the jury could not have accepted the police evidence that the two were the same. The Appellant’s appearance does make it possible to understand the evidence of some witnesses to the effect that he looked like a Pacific Islander.

51    In our view, the first ground of appeal is not made out.

Ground 2. The trial miscarried because the Crown failed to inform the appellant and his legal advisers that an important Crown witness, Gregory James Schott, had been charged with attempting to pervert the course of justice.

Ground 3. There has been a miscarriage of justice because there is a reasonable possibility that had fresh evidence not available to the appellant at his trial been available it would have led to the acquittal of the appellant.

52    In light of the Court’s decision an order for a retrial, it is unnecessary to say anything about these grounds. Quite apart from the fact that Mr Schott has been acquitted, these grounds will not then arise.

Ground 4. His Honour erred in admitting evidence of identification by photographs by the witnesses Carrick, Schott, Schoobridge, Hewins and Lynn.

53    The situation of evidence to the effect that a figure seen in a photograph by a witness is recognised and identified by that witness was considered by this Court recently in R v Smith [1999] NSWCCA 317. The Court held such evidence to be admissible.

Ground 5. His Honour erred in permitting cross-examination of the witness Donnelly about different conclusions reached by another witness in another case.

54    Mr Donnelly was asked whether he was aware of another case - which may well have been R v Rozynski (unreported, CCA, 1 February 1996) - in which a Dr David Lowe, who Mr Donnelly said he understood was a specialist in computer imaging, was involved in estimating heights from a video recording, and it was suggested that Dr Lowe had come to a conclusion different from that reached by Mr Donnelly in that case. It would appear from at least one of Mr Donnelly’s early answers that the two used the same or a similar method although Mr Donnelly said that one of the methods contained additional parameters. The evidence also established that Mr Donnelly was one of two persons who had signed a discussion or rebuttal of the report Dr Lowe had written in that case. Mr Donnelly gave a non-responsive answer to the effect that his co-author had the view that Dr Lowe’s method had some serious problems with it.

55    The Prosecutor than asked “If I can hand you a report from Dr David Lowe. If I can get you to look at the summary section?” and objection was taken. The Prosecutor indicated that his aim was to establish that it was an inexact science in which Mr Donnelly was involved and that experts differed in their results. Mr Stratton, the defence counsel, submitted that there were two problems with what was sought to be done. He identified them as follows: For the difference in results to have any weight one would need to establish that there was some validity in the other assessment and there was no evidence of that. Secondly, the witness was being cross-examined on someone else’s document and it could not be admissible.

56    The Crown Prosecutor’s aim was, in our view, legitimate even though there had been no evidence called in the Crown’s case in chief and no certainty that the Crown would be allowed to call a case in reply. Furthermore, it does not seem to us that the first of the objections raised provided a reason why the cross-examiner should not have been allowed to continue in his task. Mr Donnelly might have provided the evidence or, even if Mr Donnelly did not, Mr Donnelly’s answers might have induced the jury to have doubts concerning Mr Donnelly’s result. However the form which the cross-examination subsequently took, and which was foreshadowed in the Crown Prosecutor’s remarks quoted, certainly offended s44 of the Evidence Act (and but for that Act, was objectionable anyway - see Alister v R (1983-4) 154 CLR 404 at 464; R v Hawes (1994) 35 NSWLR 294 302D-303F). Section 44, so far as is relevant, provides:-

“(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.
(2) A cross-examiner may question a witness about the representation and its contents if:
(a) evidence of the representation has been admitted, or
(b) the court is satisfied that it will be admitted.

(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows:
(a) the document must be produced to the witness,
(b) …
(c) the witness must be asked whether, having examined … the contents of the document, the witness stands by the evidence that he or she has given,
(d) neither the cross-examiner or the witness is to identify the document or disclose any of its contents.”

57    Nevertheless, the trial judge said that he would allow the question, shortly thereafter indicating that he was disinclined to allow the Crown to call Dr Lowe in reply. When cross-examination resumed, Mr Donnelly was taken to Dr Lowe’s report, which was again described, and the response. Mr Donnelly agreed that Dr Lowe had concluded that the height of the person in that case was 1.78m and that this differed from that arrived at by Mr Donnelly and his co-author by 9 cm. Mr Donnelly went on to say that the respective methods differed and that different methods would yield different results.

58    The topic was taken up again in re-examination. Having re-iterated his own qualifications and expertise and said that Dr Lowe’s background was in computers, Mr Donnelly then gave evidence to the effect that he would not regard someone who had expertise in computer system engineering as being an expert in determining measurements from photos. He said that he had had a further short look at Dr Lowe’s report and that Dr Lowe’s method was quite different and not safe.

59    It was submitted on behalf of the Crown that the evidence to which we have referred could have been obtained by proper cross-examination and, in any event, the re-examination more than adequately dispelled any disadvantage the Appellant may have suffered from the cross-examination. We doubt the first and do not agree with the second of these propositions. Prior to the attempt to hand Dr Lowe’s report to Mr Donnelly, the latter had given evidence to the effect that he had no recollection of Dr Lowe’s findings which Mr Donnelly described as “of three years ago”. Adherence to those requirements of s44 as proscribed identification of Dr Lowe’s report and its contents would have avoided the jury being informed of Dr Lowe’s conclusions, their authorship and, by implication, the authority behind them. The jury’s knowledge of these matters, obtained by the questioning in breach of s44, might well have led them to place less, and considerably less, weight on the principal evidence which Mr Donnelly was called to give. Thus the Crown derived a significant advantage in consequence of the breach of s44.

60    The nature of the identification evidence, and the summary of it given above demonstrate that it was very far from being conclusive. Given the importance to the defence case of the evidence of Mr Donnelly, it follows that the Appellant’s conviction could not stand. It was for this reason that the Court allowed the appeal.

Ground 6. The trial miscarried by reason of the Crown cross-examining the witness Donnelly about matters not in evidence.

Ground 7. His Honour erred in allowing the Crown’s application for an adjournment of 2 days to prepare the cross-examination of the witness Donnelly.

61    In light of the order for a re-trial, arising from the decision of the Court on ground 5, it is unnecessary to say anything about these grounds.

Conclusion

62    Although in view of the failure of the first ground, and the success of the fifth, this Court has thought fit to order that there be a new trial, whether such a trial is held is ultimately a decision for the Director of Public Prosecutions. It is however not inappropriate to point out that the Appellant was in custody in respect of the charges heard before Judge Flannery from 12 December 1997 until 29 October 1999 - some 22½ months - not a great deal shorter than the 2½ year minimum term of imprisonment imposed by his Honour. In accordance with usual practice, it is difficult to see that any longer term of imprisonment would be imposed were the Appellant again to be convicted. And in light of the quality of the evidence, a conviction is by no means assured.

63    It is also appropriate to observe that, although this Court does not have the information which would enable it to form a view whether imprisonment for some or all of the 22½ months imprisonment pre-trial was unavoidable, the situation is one which obviously gives rise to considerable disquiet.