R v Nguyen

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. NGUYEN [2002] NSWCCA 342 revised - 23/08/2002

FILE NUMBER(S):
No. 60675 of 2001

HEARING DATE(S): Friday 28 June 2002

JUDGMENT DATE: 21/08/2002

PARTIES:
REGINA v.
NGUYEN, Freedom

JUDGMENT OF: Giles JA Dunford J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3145

LOWER COURT JUDICIAL OFFICER: Coleman, DCJ.

COUNSEL:
Crown: D.M. Woodburne
App: T.J. Golding

SOLICITORS:
Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS:
Criminal law - appeal - robbery - identification - application to withdraw evidence - unfair prejudice - appropriate identification directions - point not taken at trial - Rule 4 - exculpatory statements in ERISP - whether appropriate jury be directed on relevance of absence of cross-examination - accused not giving evidence - appropriate direction - Rule 4 - inapplicability of earlier decisions after High Court decision in Azzopardi & Davis v. The Queen.

LEGISLATION CITED:
Crimes Act 1900
Evidence Act 1995

DECISION:
Appeal against conviction dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60675 of 2001
GILES, JA.
DUNFORD, J.
GREG JAMES, J.
WEDNESDAY 21 AUGUST 2002

REGINA v. FREEDOM NGUYEN

Judgment

GILES, JA: I have had the advantage of reading the reasons of Greg James, J. in draft. I respectfully adopt them as a statement of my reasons for concluding that the appeal against conviction should be dismissed.
DUNFORD, J: I've had the opportunity of reading in draft form the judgment of Greg James, J. I agree with the reasons given by his Honour for dismissing the appellant's appeal against his conviction.
GREG JAMES, J: The appellant appealed against his conviction and sought leave to appeal against the sentence imposed on him for an offence of robbery in company, an offence under s.97(1) of the Crimes Act 1900, punishable by a maximum penalty of 20 years imprisonment. The conviction was entered in consequence of the appellant being found guilty by a jury following his trial in the District Court of New South Wales at Campbelltown on 6 September 2001.
The appellant was sentenced on 26 September 2001 to imprisonment for three years to date from 28 August 2001. A non-parole period of 18 months was imposed.
The appeal came on for hearing on 28 June 2002. On that day, this court determined that the appeal against conviction should be dismissed, but the application for leave to appeal and the appeal against sentence should be allowed. Leave was granted; that appeal was upheld; the sentence of the trial judge was quashed and a new sentence passed: see Regina v. Nguyen [2002] NSWCCA 267.
On that occasion, the formal order of the court disposing of the conviction appeal was made, but the reasons were reserved due to the commitments of various members of the court at that time. These are now the reasons which, in my view, required the making of the order dismissing the conviction appeal.
The short facts giving rise to the offence are set out in paragraphs five to eight of the judgment delivered on 28 June 2002. Taken from that judgment, they are as follows:-
"The short facts of the offence, of which the applicant was convicted, were that he, in the company of two other Asian boys, at the Bankstown bus station in Bankstown Square at about 8.00 am robbed a 15 year old Year 10 high school student asking him for his money, his wallet and his pin number.
The three robbers approached a group of students and then just as the victim was about to join a bus queue, one of them asked for his money and wallet. The boys appeared to the victim to be aged about 16 or 17 years old, that is a couple of years older than he was. He identified the applicant as one of the three boys and the one that grabbed him by the blazer and told him, in Vietnamese, to sit down, pushed him back down into a seat and stepped on his left foot immobilising him. It was the applicant, he said, who demanded his money or wallet.
The applicant removed $20 from the wallet. The key card contained in the wallet was identified but the victim gave a false number when asked for the pin number. He was asked if he had money in his key card account and said there was just under $10. The card and wallet were thrown back to him and the boys left.
Subsequently he identified the applicant on another occasion some eight days later at Bankstown Plaza."
The grounds of appeal as amended were:-
"1.His Honour was in error in that he failed to withdraw the evidence of identification of the appellant from the jury's consideration.
2.His Honour was in error in not properly warning the jury as to all of the evidence of identification of the appellant about which the jury should have exercised great caution.
3.His Honour was in error when he directed the jury that the exculpatory statements by the appellant in his ERISP were not 'evidence in the same sense as the testimony of a witness given on oath. The accused's statements in the ERISP are not subjected to any test by way of cross-examination. You should regard those statements as one possible version of the facts giving them such weight as you think they should receive having regard to all of the evidence in the case'.
…
4.The evidence identifying the appellant was so frail and dangerous that no jury properly instructed could return a verdict of guilty."
An additional ground 3A was added. It is:-
"His Honour was in error in failing to direct the jury that there may be many reasons why an accused does not give evidence."
A summary of the evidence of the complainant of the circumstances of the robbery has been provided to the court in the Crown submissions. For the purpose of considering these grounds, it adequately and succinctly refers to the relevant matters. I set out the relevant portions of it below.
"The robbery occurred at Bankstown Bus Station which is pat of Bankstown Square in Bankstown where there is quite a large Asian or Vietnamese community (Le, extract 4.9.01, t.14).
At about 8.00 am, Le approached Bankstown Bus Station and he saw a few students in front of him waiting for the bus. He saw three Asian boys talking to the students and watched the Asian boys walk off (Le, extract 4.9.01, t.1-2).
Le sat a few metres down from the other students and the Asian boys approached him. Just as Le was about to get up and join the queue because the bus had arrived, one of the three Asian boys asked for Le's money and wallet (Le, extract 4.9.01, t.2).
Le identified the first Asian, the appellant, as being 16 to 17 years old, 165 cm to 170 cm tall, shorter than Le (172 cm tall) and stocky with long black hair to his shoulders. He was wearing cream coloured pants and a pale green jumper (Le, extract 4.9.01, t.2-3, 23-34). Le said that the second person had his back to him but he described the second person as Asian, around 16 or 17 years old with short black hair, wearing creamy coloured trousers and a black jumper (Le, extract 4.9.01, t.3-4, 24-25). Le described the third Asian boy as being 16 or 17 years old, stocky and wearing a sports jacket, like a Nike tracksuit jacket (Le, extract 4.9.01, t.4, 25-26).
The appellant, the first Asian boy identified, grabbed Le by the blazer and told him in Vietnamese to sit down. The appellant pushed him back down into the seat and stepped on his left foot, immobilising him. He told Le to give him his money or wallet. Le took out his wallet, gave it to the appellant and the appellant searched through the wallet and removed $20 (Le, extract 4.9.01, t.2, 4-5). The appellant saw Le's key card and one of the other boys or the appellant asked Le for his PIN. Le gave him a false number. The third boy then asked in English if there was any money in the key card account and Le replied that he had just under $10. The appellant then threw the key card and wallet back at Le and walked off behind the bus shelter with the other two boys (Le, extract 4.9.01, t.5-6).
Le then joined the queue for the bus and got on the bus to go to school. While at school, he spoke to Year 11 student about what had happened. After school at 3.30 pm, he went to his mother's (Mrs. Nguyen) workplace and told her that he had been robbed at the station on his way to school (Le, extract 4.9.01, t.6-7, 14) and had been grabbed and pushed (Le, extract 4.9.01, t.8)."
Grounds one, two and four
Grounds one, two and four overlap to a certain extent, being all concerned with the evidence of the identification of the accused by the complainant at Bankstown Mall some eight days after the robbery. It will be convenient to consider ground one first, recognising that the submissions on ground one incorporate much that was put in support of those other two grounds.

A summary of the evidence relating to that identification occasion is set out in the appellant's submissions and is as follows:-
"…
7.Eight (8) days later, on 7 June 2000, at dusk (about 6.00 pm), the victim was leaving a building at Bankstown where he had just attended a tutorial. He observed three young men at a telephone booth on the opposite side of the road about 20 metres from where he was standing. The victim gave conflicting evidence about what he then observed and thought.
'Well they were – when I first stepped out they were looking at me and then I started walking to my mum's workplace they started to go towards me – come towards me … so when I noticed they were starting to come near – towards me, and I recognised one of them, I felt scared because there was no-one around at that time and it was getting dark …' (t.116 examination in chief)
"I was diagonally when I stepped out and I saw them, that was the first thing I saw near the phone booths were the three males and then I continued on and I glanced at them and then they came towards me so that I recognised one of them.' (t.28.1 cross-examination)
'Q. And is it the case that what drew your attention to one of the three was the long black hair, the long shoulder length hair, that is what you noticed particularly? A. Yes.
Q. And you didn't notice anything else about that person with the shoulder length hair near the phone booths or the telephones other than the fact that he was a person with that long black hair, you didn't notice anything else about him straight away, is that right or wrong? A. That's wrong.
Q. What else did you notice about him on the first time? A. Well sir from the previous incident I recognised his face because he was the one who was doing all the talking.
Q. … Do you say that you saw his face straight away as soon as you stepped out of the tutorial? A. Yes.
Q. And you say you recognised the face? A. Yes.
Q. From about 30 metres away on the other side of the road? A. Yes.
Q. Was he looking in your direction or away from you? A. He was looking at my direction.
Q. And when you glanced after you (sic), you then stepped away and started walking down the street and you glanced again is that right? A. That's right.
Q. It was only a quick glance? A. Yes.
q. And had already concluded at that point had you that this person was the person who had robbed you on 30 May? A. Yes." (t.29 cross-examination)
8.The victim was frightened and he went into a newsagency and lost sight of the three males. While he was waiting in the newsagency one of the young men, wearing a black beanie walked by outside. He telephoned his father and his father understood him to say (in Vietnamese) that the boys who robbed him the previous week were following him. (t.291.1) The father noticed that his son's voice was trembling when he spoke to him on the phone (t.29.3)
9.The father drove to the newsagency and picked up the victim. There was no evidence from the victim that while he was waiting for his father, other than on the occasion when he saw a young man wearing a black beanie, he saw the three males.
10.The father drove his son to the Bankstown Plaza. The father then left the car to look for some police. While the father was absent, the victim's mother happened across the car and joined her son in it (evidence of the father t.30.4, which contrasted with the evidence of the mother who said at t.17.4-18.6 that she joined the car when her husband was driving it).
11.The mother gave evidence that when she got in the car her son told her that he was followed earlier by three boys one of whom had robbed him the week before (t.17.7). That evidence was in conflict with what she had told the police when she made her statement and the evidence she had given at the committal both of which were to the effect that her son had told her that the three males who had robbed him earlier were following him (t.22.9 and 25.1)
12.Some time after the husband had left the car, the victim told his mother that he saw the three males again (mother's evidence t.26.2 and victim's evidence t.12.3). The mother got out of the car to find her husband, she was apparently gone for some time because she went to the bus station and the train station (t.19.), failed to find her husband and on her return to the car, she saw the boys who had been earlier pointed out by her son talking to some men. She then saw her husband, she reported to him what she had learned from her son. The mother returned to the car, told her son that her husband was talking to two men (it is not clear whether the mother told her son that her husband was talking to two police officers, t.12.5 and t.19.5). The mother asked her son if the males talking to the two men were the boys who had followed him. The victim turned to look and said yes (t.19.9). The victim gave evidence that the closest he had got to the three males on the night of the arrest was about 10.-15 metres. At the time of the trial the victim was wearing glasses because he was short sighted. Objects about 20 metres distant appeared blurry. His eyes had deteriorated to the point that he needed glasses at the end of 2000.
13.The father approached the police who were talking to three young men and reported what he understood his son to have told him, viz., that the three young men to whom the police were already speaking (and independently of his incident), had earlier robbed him. The three were arrested and taken back to the police station where two of them were released. One of the young men was released because he was Caucasian. A second young man wearing a black beanie was released when the police were told by the victim that the man in the black beanie was not one of the robbers. The third man was the appellant and he was charged. There was evidence that the police were told at the police station that the young man with long black hair was one of the men who robbed him. There was no evidence of the precise sequence of exclusion and identification at the police station.
14.The police officer who spoke to the victim at the police station, after the arrest of the three young men, recalled that he had been told by him that four (4) boys robbed him the previous week (t.5.6)
15.The appellant, who was 19 at the time of the incident, was interviewed by the police and in an ERISP he told them that it was possible that he could have been at the bus stop at 8.00 am on 30 May seeing his girlfriend before he went to TAFE but he didn't know. He denied that he was involved in the robbery or that he was following the victim on 7 June. He was offered a line-up but declined."
Although the Crown does not accept a number of the criticisms explicitly and implicitly included in that summary, it provides a convenient basis for considering the appellant's submissions.
Ground one contends that the trial judge erred in failing to act in accordance with the procedure outlined by Chief Justice Gleeson in Regina v. R (1990) 18 NSWLR 74 at 76E-G (see Doney v. The Queen (1990) 171 CLR 207 at 212 and The Queen v. Tugaga (1994) 74 A. Crim. R. 190) by withdrawing the evidence of the identification from the jury and directing a verdict of acquittal. It was contended that there were features of the evidence such that it should not have been admitted initially or, at least, that its dangers were such that it should have been ultimately withdrawn. In the argument on ground one, substantial reliance is placed on those features as being frailties of the evidence of identification posing dangers to proper appreciation of the evidence by the jury incurable by any directions and particularly by those directions which were given.
Ground two relates to the asserted inadequacy of the directions which were given on this evidence and particularly to those features of the evidence, referred to as "frailties", it is asserted affected the identification which were also referred to in the argument on ground one. Ground four refers to those same frailties as so undermining the value of the evidence as to render the verdict unsupported by it.
Ground One
It was contended in support of ground one that, although the evidence of the identification was admissible, the application of s.137 of the Evidence Act 1995 required the rejection of it. It was submitted that when regard was had to the relevant provisions of the Evidence Act 1995, notably s.137 and s.165, and to those aspects of the identification evidence, which it was submitted were required to be taken into consideration in accordance with the decision of the High Court in Domican v. The Queen (1992) 173 CLR 555, it became incumbent on the trial judge to reject or withdraw the evidence. It was submitted that the trial judge erred in refusing the application that this evidence be withdrawn and did so because he failed to afford sufficient weight to what was asserted to be prejudicial aspects of the evidence. It was submitted he erred in considering that any prejudice was limited to the accused "being deprived of the opportunity of testing any initial description given by [the victim] to the police at the station against the observation which he [the victim] made on the night [of 7 June]". It was contended that he erred when considering whether such prejudice as there might have been was unfair by limiting his consideration of that matter to whether there was found to be positive conduct on the part of the prosecution contributing to or causing that prejudice.
It was submitted that the identification evidence was such when analysed and when regard was had to the various matters said to effect its reliability, as to have almost no probative force and a great deal of prejudicial impact, only one, albeit, an important aspect of which, was the denial of the opportunity to which I have already referred.
The danger of unfair prejudice, it was correctly submitted, is to be identified from the risk that the jury might misuse the evidence or attach to it a probative weight disproportionate to its probative value, notwithstanding such appropriate directions as the trial judge might give. It thus becomes necessary in considering whether the trial judge erred to have regard to the matters which it is submitted would undermine the complainant's positive identification and to have regard to the appropriateness of the directions to the jury. As I have already noted these are the matters to which grounds two and four respectively relate.
It was contended that the requirements of s.137 of the Evidence Act 1995, as elucidated by the decision of this court in Regina v. Blick [2000] NSWCCA 61, were that in the event of a trial judge finding there was a danger of unfair prejudice, it was not for the judge to exercise any discretion, as the judge was required to exclude the evidence unless finding that its probative value outweighed that danger. It was further submitted it was not open to the trial judge here to make that latter finding.
In his judgment, his Honour said:-
"The first question is whether the evidence should be rejected under s.137. If it is to be rejected under that section it would be because the accused has been deprived of the opportunity of testing any initial description given by Joseph Le to the police at the station on 3 May against the observation which he made on the night in question.
I am not satisfied that there is unfair prejudice to the accused arising out of a deficiency in police records which is not due to any positive act on the part of the prosecution. The probative value of the identification evidence is substantial and although no positive prejudice was identified, I have taken into account the prejudice that does arise because of the inability to test Joseph Le's evidence against his initial description, but find that that does not outweigh the probative value of the evidence and I do not intend to reject it on that ground."

Section 137 provides:-
"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
In Blick (supra), at paras.13 and 19-20, it was held by Sheller, JA., with whom James and Dowd, JJ. agreed:-
"13.The comment has been made (see for example Ritchie's Supreme Court Practice, para.4235.2) that at common law, a trial judge in criminal proceedings had a discretion to exclude evidence if its probative value was outweighed by the risk of unfair prejudice that could follow from its admission. In contrast, s.137 made it mandatory to exclude such evidence.
…
19.When an application is made by a defendant pursuant to s.137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion: see the cases referred to by Priestley, JA. in Morgan v. McMahon (1985) 3 NSWLR 700 at 716 and following, particularly Lee Transport Co. Limited v. Watson (1940) 64 CLR 1 at 13 and Miller v. Jennings (1954) 92 CLR 190at 197. In the second of those cases, Dixon, CJ. and Kitto, J., in an appeal against damages awarded by the trial judge, said of the sum awarded that it was 'reached after a very full and careful examination of the facts of the case and it represents an informed judgment upon a matter which must largely be one of opinion and must be governed to a not inconsiderable degree by an estimate formed of the witnesses and in particular the appellant'. Translated to the task set by s.137, a trial judge's estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge's own trial experience. In that sense, the result can be described as analogous to a discretionary judgment: see Heydon, 'A Guide to the Evidence Acts', 2nd ed., para.3.725.
20.Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected."
It was contended on appeal that the reliability of the evidence was adversely affected by the following matters:-
"(a)the opportunity for the identification of the offenders at the time of the robbery on 30 May was extremely limited;
(b)the offenders were complete strangers to the victim;
(c)the victim's state of mind at the time of the offence was such that his observations may have been unreliable;
(d)the victim was a youth;
(e)the victim's eyesight was probably defective;
(f)there was no evidence of any contemporaneous description of the offenders given by the victim to anyone;
(g)there was no evidence of any descriptions of the offenders by any of the other persons present at the scene;
(h)the only descriptions given by the victim (at any time) of the offenders were of the most general kind and they were quite incapable of supporting an inference that the appellant was one of the offenders;
(i)those descriptions were given many days later and after he had seen the appellant;
(j)there was no physical or other evidence which supported the identification;
(k)the victim told the jury that there were three offenders but he initially told the police that there were four;
(l)the identification of the appellant was made eight days after the offence on 7 June;
(m)the identification of the appellant on 7 June was first made by the victim from a distance of about 20 metres in less than perfect lighting conditions at dusk from across the street;
(n)the evidence of the circumstances of that identification was equivocal as to precisely when it was made.
(o)whenever that identification was made it was made when the state of mind of the victim was one of fear;
(p)the evidence was that the victim told his father and may have told his mother that when he first identified the offender on 7 June, the offender was in a group of three males all of whom were involved in the robbery;
(q)that identification of the group as being responsible was apparently wrong as one of the group was Caucasian and the victim asserted that the offenders were all Asian;
(s) sicthe identification was in part concluded by a process of eliminating two of the group of three;
(t)the evidence suggests that confirmation of the identification was made when the victim saw the appellant being spoken to by police officers;
(u)the identification was confirmed by his mother asking him to confirm that the appellant was the offender.
(v)from the time of the first identification outside the tutorial to the confirmation when the appellant was being spoken to by the police the victim had lost sight of the appellant and the group he was with on at least two occasions for some time;
(w)the closest the victim was to the appellant during the dusk of 7 June when he identified him was about 10 – 15 metres;
(x)the victim estimated the age of the offender as 16 or 17, whereas the appellant was aged 19."
It was for those reasons submitted the probative value was low and the prejudice so high it was incurable by the directions. Those considerations were advanced on this appeal. At trial, the following matters (which to my mind were not, in their totality, substantially different to the totality of those now referred to) were put forward as matters relevant to an appropriate direction under s.165 of the Evidence Act 1995:-
"(a)the accused was a stranger;
(b)the identification was made at dusk seven days later at a distance of 20 to 30 metres initially;
(c)the observation was for a short period of time, measured in seconds, followed by a momentary glance;
(d)only one witness is available to give evidence of identity;
(e)the opportunity to observe the perpetrator on the date of the robbery was short in time, although the observation took place at short range;
(f)the identification was not corroborated or able to be measured against an initial description;
(g)Joseph Le may have been mistaken because initially he thought the three men outside the phone box in the vicinity of the place where he had left his tutorial on 7 June were the three men who robbed him; and
(h)his assertion there were three men or boys involved in the robbery is contradicted by the evidence of Senior Constable Bird, who later recalls four being mentioned as the number involved.
It is conceded that the requirements of s.114 of the Evidence Act 1995 are complied with and that the visual identification evidence is not excluded by that section because in the ERISP the accused declined to participate in the line-up and the provisions of s.114(2)(c) are met."
These matters referred to at trial and those referred to here were what were said at trial and here respectively to amount to frailties in the identification evidence.
The trial judge set out his reasons for the refusal in the judgment of 5 September 2001 in which he referred to the appropriate test as enunciated by Hunt, CJ. at CL. in Tugaga (supra at 196). In that judgment, at least, the trial judge identified and considered the general effect of the asserted frailties of the evidence.
His Honour did not accept that the lack of the opportunity to test the description or any deficiency of police records amounted to unfair prejudice or that the inability to test, so far as it occasioned prejudice, occasioned such prejudice as outweighed the high probative value of the evidence. That latter process undertaken by his Honour was predicated on his Honour's earlier concluding that he was not satisfied there was unfair prejudice. As will appear, his Honour was of the view that the asserted frailties could be dealt with by appropriate directions and gave directions in the summing up to that end. Thus, his Honour concluded that the evidence should be left to the jury.
Although his Honour did not express his approach to the application of s.137 to the prejudice he detected in accordance with the requirements of the section (see Blick (supra)), his Honour's, refusing to reject the evidence on the basis of his finding that the prejudice he detected did not outweigh the probative value, does not display any material error, since his Honour did not find any unfair prejudice and it is with unfair prejudice that s.137 is concerned. I therefore do not consider he fell into any error of substance. Indeed, having regard to the asserted frailties, for myself, I would not conclude that it was incumbent on his Honour to find any unfair prejudice nor would I conclude that any prejudice there might have been would not be outweighed by the probative value of the evidence, particularly having regard to the directions which were given on this topic to the jury.
On the question of appropriate directions, his Honour, in the judgment said:-
"The next question is whether the frailty or frailties are such as they cannot be cured by appropriate caution to the jury.
There are uncertainties surrounding Joseph Le's identification of the accused. He made a positive assertion to his father that the three boys who robbed him were in the plaza. That is inconsistent with the fact that two of the boys in the plaza were not boys who robbed him on 30 May because one was Caucasian and the other was excluded by Joseph Le during the course of the investigations at the police station.
The accused was not identified as a result of that elimination. He had already been identified by Joseph Le as the person who robbed him at the bus station.
There was an issue as to whether Joseph Le told his mother when she came to the motor car after his father had picked him up from a newsagency that the three boys who robbed him were in the plaza or one of the three boys who robbed him was in the plaza. Ultimately that would be a matter for the jury.
I have come to the conclusion that the evidence of identification made seven days after the events took place in the circumstances which I have outlined should not be withdrawn from the jury. The frailties are such that they can be covered by a direction in accordance with the authorities since Regina v. Domican and in accordance with s.116 and s.165 of the Evidence Act 1995."
His Honour gave the jury the following general directions:-
"The next matter in which I will give you a direction of law concerns identification evidence. And it is, in the context of this case ladies and gentlemen, a very important direction of law. Evidence that the accused has been identified by a witness as doing something must, whenever it is disputed by the accused, as it is in this case, be approached by you with special caution before you accept it as reliable. That caution is necessary even though you may be satisfied that the witness has been giving completely honest evidence when saying that he or she identified the accused. That is even if you are satisfied that Joseph Le has been giving completely honest evidence when saying that he identified the accused. These particular directions relate to the reliability of the identification evidence given, not to the honesty with which it was given. Special caution is necessary before accepting identification evidence because of the possibility that even completely honest witnesses may have been mistaken in their identification. I am not suggesting that the evidence of such a witness must be regarded as unreliable. My task is no more than to draw your attention to the possibility that the evidence of such a witness may be unreliable and to explain why that is so, so as to enable you to exercise the special caution which is required in determining whether to accept that evidence as reliable and what weight is to be given to it. The common experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence, however honestly given, may turn out to be unreliable. There have been some notorious cases over the yeas in which completely honest evidence of identification has been demonstrated to be wrong after innocent people have been convicted. The reliability of an identification of a person depends upon the circumstances in which the witness observed the person whom he or she has identified as the accused and any one of those circumstances may possibly lead to error. For example, how long was the period of observation? In what light was it made and from what distance was it made? Was there anything about the person observed which would have impressed itself upon the witness? Was there any special reason for remembering the person observed? How long afterwards was the witness asked about the person seen? How did the description given then, compare with the appearance of the accused? Each of those matters must be considered in every identification case and I will shortly be drawing your attention to some particular matters raised in this present case. It is perhaps easier to understand the possibility of error when evidence is given by someone who has not previously known the accused, but errors may also occur when the witness has previously known the accused. Mistakes have been known to be made by friends and even by relatives of a person who thought that it was their friend or relative whom they had seen. Because the witness who gives evidence of identification, that is Joseph Le in this case, honestly believes, you remember he said he was 100% certain, that his or her evidence is correct, that evidence will usually be quite impressive, even persuasive. The issue at this stage, however, is not whether the evidence is honest, the issue is whether the evidence is reliable. This warning of the need for special caution before accepting the evidence of identification is one which is given in every case in which such evidence is disputed by the accused. It is not given because of any particular view which I may have formed concerning the reliability of the identification evidence in the present case, the weight to be given to that evidence is a matter for your decision, not mine and I have nothing to do with that decision which you have to make. You should not interpret these directions as indicating any particular view which I may have formed, one way or the other. As I have said, you must approach all identification evidence with special caution. There are, however, a number of matters in this case to which I propose now to draw your attention, which are relevant to the reliability of the evidence of identification that has been given in this case, and my direction is that you are bound to consider those matters in determining whether you will accept that evidence as reliable. I do not say that you must regard all or any of them as necessarily undermining the reliability of the identification evidence and I repeat, that I do not express any opinion myself as to whether they should lead you to reject that evidence as unreliable. My purpose in referring to these matters is only to assist you in your task by pointing them out as warranting your attention and by directing you that you are bound to give them careful consideration."
He then particularly directed the jury on a number of matters including the absence of a recorded description on the night of the offence; the effects of the lapse of time on the reliability of the description given eight days later; the paucity of the description then given; the fact it was given after the identification occasion, the circumstances of that robbery and the identification occasion eight days later; the apparent mistake concerning the identity of at least one of the three boys seen at the Bankstown Mall as being one of the robbers. His Honour then said:-
"Ladies and gentlemen, the directions I have given you on the identification evidence have contained matters which I have brought to your attention which you are bound to consider in deciding whether you will accept the identification evidence in this case as reliable. I remind you again of the warning I gave you of the need for special caution before accepting the evidence of identification and that evidence that the accused has been identified by a witness as doing something must, whenever it is disputed by the accused, be approached by you with special caution before you accept it as reliable."
When directing the jury on the onus and standard of proof, his Honour said:-
"You heard me refer to, in my opening remarks and you have heard both counsel refer you to, the onus or standard of proof which the Crown bears in criminal proceedings such as this. This is a criminal trial and although it has taken a short period of time, it is of a most serious nature and the burden of proof of the guilt of the accused is placed firmly upon the Crown. That onus remains upon the Crown in relation to every issue in this case. This does not mean that the Crown has to prove the truth of each assertion of each crown witness, what the Crown must prove beyond reasonable doubt is each ingredient in the charge. I will come to those ingredients in the charge a little later ladies and gentlemen and I will have distributed to you, some written material which will contain an outline and a definition of those elements or ingredients of the charge. There is no onus of proof on the accused at all. It is not for the accused to establish his innocence but for the Crown to prove his guilty and prove it beyond reasonable doubt. The crown must satisfy you of that guilt beyond reasonable doubt. It is a fundamentally important part of our system of justice that people tried in these courts are presumed to be innocent of the crime or crimes alleged against them until a jury of their fellow citizens has been satisfied by the Crown beyond reasonable doubt, that they are guilty of those crimes. The accused is entitled to the benefit of any reasonable doubt in your mind. It is vitally important that you clearly understand that the accused must be acquitted if his guilt has not been proved to your satisfaction beyond reasonable doubt. You do not have to be satisfied that the accused is innocent before you should acquit him. If you are unable to decide where the truth lies, even though you feel he may be guilty, if you have a reasonable doubt about it you must find him not guilty. I should warn you that suspicion is not a substitute for proof beyond reasonable doubt. Suspicion must play no part in your function as judges of the facts, not even the gravest suspicion will suffice as proof beyond reasonable doubt.
You heard Mr. Marshall say, when he opened the crown case, and you heard him say again in his closing address to you and you also heard Mr. Hancock say that this is a case that there is one witness who is essential to the proof of the Crown case and that witness is Joseph Le. You should therefore examine and scrutinise his evidence with great care before you decide that a verdict of guilty should be brought in, if at all. And you should only find the accused guilty if you are satisfied beyond reasonable doubt of the truth of the evidence of Joseph Le. Now the fact that I have given you that warning does not mean that I have formed any view as to the honesty or reliability of Joseph Le as a witness. It is a warning that would be given in any case where the Crown case depended on the evidence of one witness."

Neither, when considered on this ground nor when considered on ground two, do I see the submission that the further matters that it was submitted should have been put on appeal were necessary. Indeed, I regard his Honour's direction as both legally appropriate and factually compendious
Having regard to all of the matters considered by his Honour, and the matters covered by the directions, I see no error in his Honour failing to withdraw the evidence from the jury's consideration. The evidence was highly probative and, as will be seen, the direction were entirely adequate. Ground one must be rejected.
Ground Two
The argument in support of this ground contends in reliance on the judgments in Domican (supra) that notwithstanding how the defence case was conducted, his Honour was required to direct the jury on further specific matters and that the judge should have done so of his own motion. It is not necessary to canvass each individual matter that it was contended should have been referred to in this judgment as each such matter was the subject of a direction, was included in a more general matter the subject of a direction, was so obvious as not to require a direction or was appropriately rejected by his Honour as not factually arising.
It is apparent that his Honour was aware of and directed the jury in relation to all matters of substance which needed to be considered on the reliability and dangers of the identification evidence.
No application was made for any redirections nor was there any suggestion at trial of any inadequacy in his Honour's drawing the relevant matters of fact to the jury's attention. I turn to the effect of those matters on the submissions put forward on appeal.
The significance of the absence of an application for a further direction has recently been referred to in this court in Regina v. Mitton [2002] NSWCCA 124 at paragraphs 41-44 and 48-50. Those passages deal with the submission in that case of error arising from an omission to give what was asserted to be an essential direction on law relating to an element founding the appellant's liability however they are apposite to the present case and are of such importance they bear repetition here. I quote them as follows:-
"41.Counsel at the trial did not raise the point now taken and, accordingly, the appellant requires leave pursuant to Rule 4 of the Criminal Appeal Rules to rely upon it. Mr. Button read the affidavit of trial counsel in support of the grant of leave. Relevantly counsel stated:-
'I did not seek any elaboration or further direction from his Honour in relation to the issue or recklessness on the part of the accused as to lack of consent on the part of the complainant. The reason I did not seek any further elaboration or direction was not because I saw a tactical advantage in the direction that had been given. I regarded the direction as an accurate summary of the law.'
42.In Regina v. Moussa [2001] NSWCCA 427, Howie, J. (in a judgment with which Giles, JA. and Carruthers, AJ. agreed) observed at [60] and [63]:-
'It may well be the case that, if the failure to seek a direction or warning was a result of a considered and competent decision made for tactical reasons, it would be virtually impossible for the appellant to obtain leave to rely upon the point because no miscarriage of justice could have occurred. But in my view it should not be taken to be the case that leave will automatically be granted simply because the proffered explanation is that counsel overlooked the point or was unaware of the law on the subject. Nor is it more likely that leave will be granted simply because counsel can no longer indicate why the point was not taken at the trial.
…
At the end of the day the question, with which this court is concerned, is whether the conduct of the trial may have resulted in a miscarriage of justice and that question is not necessarily answered in favour of the appellant simply because of decision, errors or oversights by counsel falling short of incompetence. Trial counsel has a duty both to the client and the court to take objections or seek redirections where appropriate: Regina v. Roberts [2001] NSWCCA 163. Like other aspects of the conduct of defence counsel during the course of the trial, a failure to seek a direction or warning will not necessarily result in a miscarriage of justice, even if counsel was negligent: Regina v. Birks (1990) 19 NSWLR 677 at 685. If leave is required under Rule 4, then the appellant has to persuade this court that a miscarriage of justice may have occurred before leave is granted: Tripodina and Morabito (1988) 35 A. Crim. R. 183 at 191; Regina v. Williamson & Morrell (NSWCCA, 11 October 1991). On the other hand, if the point is taken at trial, the Crown will have the onus of persuading this court that there had been no substantial miscarriage of justice: Clarke (1995) 78 A. Crim. R. 226.
43.I respectfully agree with those observations. Trial counsel's frank acknowledgment that he sought no redirection on this topic, because he considered the directions given to be an accurate summary of the law, might be thought to underline that this was a case in which recklessness was not an issue. In the event that recklessness was an issue one might have expected counsel to have given consideration to the directions to be given on this topic and to have been astute to ensure they were adequate.
44.In Regina v. Tripodina (1988) 35 A. Crim. R. 183, Yeldham, J. (in a judgment with which Carruthers and McInerney, JJ. agreed) observed:-
'Furthermore, the fact that no objection was taken at the trial is in many cases cogent evidence of the fact that, having regard to the atmosphere at the trial and the manner in which It was conducted, the matter later complained of was not regarded as being of significance, or likely to give rise to any miscarriage of justice. The authorities to which I have referred emphasised that the leave required by Rule 4 is not to be lightly granted. Generally speaking, such leave will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: see Wilde (1988) 164 CLR 365 at 369.'
…
48.In Regina v. Clarke (195) 78 A. Crim. R. 226, Hunt, CJ. at CL. (in a judgment with which McInerney, J. agreed) observed:-
'The requirements of Rule 4 of the Criminal Appeal Rules that leave be granted before a misdirection will be allowed as a ground of appeal where objection was not taken at the trial are not some mere technicality which may simply be brushed aside. One purpose of the rule is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury (Knight (unreported) NSWCCA, 18 December 1990). Where a wrong direction is given which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error may have operated fails to comply with that duty, simply standing by and allowing the error to occur, any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community (cf. McKinney (1991) 171 CLR 468 at 488; Cleland (1982) 151 CLR 1 at 10).
It was submitted that the errors made by the judge were of a fundamental nature which went to the root of the proceedings so that the trial could not fairly be said to have been a trial at al (Glennon (1994) 179 CLR 1 at 8). However, whether a misdirection is of such a nature must depend upon the circumstances of the particular case, and it is appropriate in determining that question to have regard to the strengths and weaknesses of both the prosecution and the defence cases in order to assess the gravity and significance of the error (Wilde at 373-374; Glennon at 8). Such an assessment in the present case reveals a very strong Crown case and a very weak defence case. The errors made were manifestly not fundamental in the way suggested.
I would grant leave to add the fourth and fifth grounds of appeal, but I have serious doubts as to whether it is appropriate that further leave be granted in relation to them in accordance with Rule 4. That is because, even if the appellant was able to show a miscarriage as a result of these misdirections in order to obtain such leave (Tripodina at 1910195; Abusafiah at 536) the Crown must in my view succeed in the application of the proviso to s.6 of the Criminal Appeal Act to have the appeal dismissed, upon the basis that there has been no substantial miscarriage of justice and notwithstanding the different onus's of proof involved. The distinction between a miscarriage and a substantial miscarriage has been maintained (Dietrich (1992) 177 CLR 292 at 337; Asquith (1994) 72 A. Crim. R. 250 at 260).'
49.In determining whether there has been a substantial miscarriage of justice, the court looks to whether an irregularity has occurred which is such a departure from the essential requirements of the law that it does to the root of the proceedings: Wilde v. The Queen (1988) 164 CLR 365 at 372-373. In Glennon v. The Queen (1993-1994) 179 CLR 1 at 8, Mason, CJ., Brennan and Toohey, JJ. observed of the test in Wilde:-
'But the majority stressed that there is no mechanical formula or rigid test to be applied to determine whether an irregularity is of this nature; each case will depend on its own circumstances (Wilde at 373) and, in determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error (Wilde at 374).'
50.In the event that the error is not one of such a fundamental nature as to go to the root of the trial, before this court could conclude that no substantial miscarriage of justice had occurred it must be satisfied that if the misdirection had not been given the jury would have inevitably reached the same verdict: Mraz v. The Queen (1955( 93 CLR 493; Driscoll v. The Queen (1977) 137 CLR 517; and Festa v. The Queen [2001] HCA 72. As the joint judgment in Glennon noted this is so even if the case against the accused is otherwise a strong one; at p.9 citing Domican v. The Queen (1992) 173 CLR 555 at 565 to 566; Wilde at 371-372."
I do not see the directions as inadequate for this trial and its issues, and I consider Rule 4 applies to this ground.
Ground Four
The written submission in support of this ground relied to an extent on the asserted inadequacy of the directions. It is not necessary, considering the rejection of Ground two, to consider that aspect of the argument further. As far as the ground asserts that the verdict was unsupported by the evidence, it must be rejected as there was not only a sufficiency of evidence of identification, but the evidence, including that by way of admission of the presence of the appellant in and about the scene of the robbery, was plainly adequate to support the conviction. There was no challenge on this ground to the credit of the victim merely to the reliability of his evidence. I do not see that the suggested frailties so undermined the evidence as to render it unsafe for the jury to act on it. So much is clear from my views on ground one. There was no such matter as is referred to in Regina v. M (1994) 181 CLR 487 as would warrant the upholding of this ground. It must be rejected.
I now turn to the remaining grounds.
Ground Three
It was submitted that his Honour fell into error when he directed the jury that the applicant's statement in his electronically recorded interview (ERISP) were "not evidence in the same sense as the testimony of a witness given on oath. The accused's statements in the ERISP are not subjected to any test by way of cross-examination. You should regard those statements as one possible version of the facts, giving them such weight as you think they should receive, having regard to all the evidence in the case".
It is common ground the statements were evidence of the assertions of fact contained in them (Regina v. Horton (1998) 45 NSWLR 426). But it was not suggested at trial that the accused's exculpatory statements in the ERISP should not be considered as his Honour had directed the jury they should. Indeed, the directions sought by the applicant's counsel at trial included:-
"Where the accused has not given evidence, but has given an exculpatory statement out of court, judges should direct that:-
-Although there was no sworn evidence from the accused, there were the exculpatory answers given to the police proved in evidence.
-Such answers are available to be considered and the jury should give such weight to them as they see fit, bearing in mind that they did not have the opportunity to observe the accused giving evidence or to hear any explanation tested in cross-examination."
The full direction given by his Honour was:-
"I have already told you ladies and gentlemen, on more than one occasion, that you are the sole judges of the facts and although that is your role, and indeed your right, you must not exercise that right capriciously or irrationally. You are not entitled to find as a fact what you would like the fact to be. You are obliged by the oath each of you took to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence comprises what has been said by the various witnesses whom you have seen and heard and the various exhibits which have been produced and which you will have with you in the jury room. That material, that is the evidence in this case, is the only material that you should have regard to in your deliberations.
In addition to the oral evidence and the exhibits which have been tendered in the case, there is also the material contained in the ERISP, that is the document which you have which is a transcript of the electronically recorded interview with suspected person. The Crown tendered the ERISP and what is contained in the ERISP is evidence for the accused as well as evidence against him and like all evidence in the case, it is a matter for you as to whether you believe it or not. It is for you to determine whether you accept or reject all of that evidence or whether you accept some part or parts and reject others.
The Crown relies on the admissions made by the accused in the ERISP as evidence against the accused. The ERISP also contains exculpatory statements made by the accused and those exculpatory statements become evidence of the truth of the facts stated in favour of the accused. The weight to be attached to those statements is a matter for you. It is not evidence in the same sense as the testimony of a witness given on oath. The accused's statements in the ERISP are not subjected to any test by way of cross-examination. You should regard those statements as one possible version of the facts, giving them such weight as you think they should receive, having regard to all the evidence in the case. During the course of the ERISP and towards the end of the ERISP, the accused was invited by the police officer, Senior Constable Bird, to participate in a line up and he declined to do so. You must not draw ay inference adverse to the accused because he took notice of the advice given to him by the police officer that he was not obliged to take part in the line up and declined to do so. And I repeat, you must not draw any inference adverse to him because he accepted that advice.
The evidence, ladies and gentlemen, is as I have just defined it and that is the only material that you should rely upon to reach your conclusions and you should reach your conclusions totally excluding any considerations of sympathy or any other emotion. You are judges and acting judicially requires you to shed any emotion and to act only upon evidence and according to reason. Now I tell you that there is no rule that you must or should put any witness and that witness' evidence in a compartment as being either reliable or unreliable. You have a right as judges of the facts, to say of any witness, and that includes the material in the ERISP, considered and dealt with in the way that I have outlined, that you accept all of his or her evidence or that you reject all of his or her evidence or that you accept part but reject other parts. You can arrive at a conclusion that any witness is accurate on some matters but inaccurate or mistaken in respect of others. There is one observation that I should make ladies and gentlemen in relation to the fact finding exercise and that is something which both counsel have addressed your attention to and which is important to remember and when you think about it, it is self evident and that is from our everyday experience in life, we know that anybody may be thoroughly and absolutely honest but nonetheless at the same time, be totally wrong about something they thought they saw, heard or did.
There is one other direction that I should give you at this point ladies and gentlemen and that is this. The accused did not give any explanation by himself giving evidence in respect to the Crown's case. Instead he chose to rely upon the material that was contained in the ERISP. There are a number of important directions of law which I must give you in relation to that. An accused person my always, by himself or by calling evidence, make a response to the case presented by the Crown in the way of an explanation for the whole or parts of a Crown's case, but there is no obligation to do so. As I have already pointed out, the Crown bears the obligation and onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence charged. The accused bears no onus. He is presumed to be innocent until you have been satisfied by the Crown that he is guilty. Although the accused may give evidence in relation to the whole or any part of the crown's case by way of explanation for it, or by way of additional matters which he may raise, he may equally elect to give no such explanation or call any evidence in that regard. He is entitled to say nothing and make the Crown prove his guilt. I direct you as a matter of law that the accused's silence in court is not evidence against the accused and you must not draw any inference adverse to the accused because he has not given evidence in court. His election not to give evidence must not be used by you to fill up gaps in the Crown case or to make up what you regard as deficiencies or defects in the Crown's case. The election of the accused not to give evidence must not be regarded by you as any indication that he is guilt or that he believes himself to be guilty of the offence. And I remind you again, ladies and gentlemen, that you must not draw any inference adverse to the accused because he has exercised that right."
As will be seen, the latter portion of his Honour's directions are relevant to ground 3A. No relevant objection or application for re-direction occurred.
His Honour had, immediately prior to these observations, appropriately directed the jury on onus and standard of proof in conventional terms. I do not consider that there was any risk that the jury would not, in the light of these directions, appreciate that if the exculpatory statements of the accused reflected a reasonable possibility of his not being the robber, then the proper verdict was acquittal.
That portion of his Honour's directions of which complaint was made is not contrary to any statutory provision nor incorrect at common law. What was said was in my view accurate and appropriate as well as obvious to the jury anyway. It did not amount to the impermissible comment proscribed by s.20 of the Evidence Act 1995 as was submitted, and Rule 4 applies. This ground must be rejected.
Ground 3A

Complaint is made that his Honour should have directed the jury in addition to the directions I have set out that "there may have been reasons why the accused did not give evidence". He was not asked to give any such direction. Indeed, as I read counsel's submissions on 5 September 2001 at p.46, such a direction was positively disclaimed. Such a direction may be positively adverse to an accused's interest. In Regina v. Bargwann (CCA, unreported 15 June 1998), Newman, J., with whom Studdert and Simpson, JJ. agreed, referred to the judgment of Gleeson, CJ. in Regina v. OGD (CCA, unreported 3 June 1997) which noted the following:-
"Third, it is ordinarily necessary to warn a jury that there may be reasons, unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent."
Newman, J. said:-
"In OGD, Gleeson, CJ., in dealing with the third of the matters which should be dealt with in directions where an accused fails to give evidence, referred to it being ordinarily necessary to warn a jury in the terms he expressed. In my view, the phrase 'ordinarily necessary' means that it is only in extraordinary circumstances that a warning of the type referred to should not be given.
It is not, in my view, necessary in giving such a direction for a trial judge to refer to any specific matter relating to the trial which might be a reason why an accused person remains silent. A direction in general terms is adequate. There could be general reasons such as cultural differences which make an accused person apprehensive about being subjected to cross-examination and the like of which not only the jury but the judge would be unaware which could cause an accused person to elect not to give evidence.
There is nothing in the facts of this case which, in my view, give rise to any extraordinary circumstances which would have obviated the need for the learned trial judge to give the third direction referred to by Gleeson, CJ. in OGD's case.
In failing to give the direction his Honour failed to balance the effect of the Jones v. Dunkel direction which he had otherwise correctly given. It follows that in my view his Honour fell into error by failing to so direct."
As Justice Newman expressly noted, those views were in the context of a summing up in which a Jones v. Dunkel (1959) 101 CLR 298 direction had been given against the accused arising from his failure to give evidence. The rationale of the direction was to balance the Jones v. Dunkel direction. That summing up was very different to this. Here, there was no Jones v. Dunkel direction nor even reference to the lack of the accused's evidence being a "failure" (a term which, in my view, is unfortunate in this context). The views in Bargwann (supra) and OGD (supra) were expressed prior to the decision of the High Court in Azzopardi & Davis v. The Queen (2001) 205 CLR 50 to which decision the trial judge in this case was referred. In that regard, the trial judge said on considering with counsel prior to the summing up, what directions were appropriate:-
"I've got to be very careful there because I've got Azzopardi's case haven't I."
In Azzopardi (supra), the majority does not hold or suggest any such direction should be given, but did refer to a passage in the trial judge's charge to the jury in which the direction was given. This particular direction, however, attracted no attention from the High Court justices even though it was not apparently given by the trial judge in Davis (supra), the case determined by the High Court at the same time.
I am not persuaded that since Azzopardi (supra) the observation in Bargwann (supra) that such a direction should be given, except in extraordinary circumstances, or that in OGD that the direction is ordinarily necessary, where a jury is directed as here in accordance with the views of the majority in Azzopardi (supra) and where no Jones v. Dunkel direction is given are applicable. The direction's absence does not, as was submitted, add force to the submission rejected when considering ground three that there was some implicit contravention of s.20 of the Evidence Act 1995. Again, Rule 4 applies. This ground, too, must be rejected.
Conclusion
It was for the foregoing reasons that I concluded that the appeal against conviction should be dismissed.

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LAST UPDATED: 23/08/2002

[2002] NSWCCA 342

21 August 2002