R v Smith - [2017] SASCFC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
[2017] SASCFC 153
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Hinton)
16 November 2017
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
Appeal against conviction for two counts of rape following trial by jury. At trial there was no dispute that the rapes had occurred; the sole issue was whether the appellant was the rapist.
At issue on appeal is whether the Judge was required to warn the jury, either in accordance with s 34AB of the Evidence Act 1929 (SA) or the common law, in relation to evidence given by the complainant identifying the man who raped her as the driver of a cream Commodore who had driven past her on three occasions shortly before the offending occurred.
Held (per Stanley J, Kourakis CJ and Hinton J agreeing): Appeal dismissed.
1. The circumstances of the case did not require a “full” Domican warning. The complainant’s evidence identifying the driver of the cream Commodore as the man who raped her did not represent a significant part of the proof of the appellant’s guilt. Nor did the prosecution case depend wholly or substantially on the accuracy of that evidence. Standing alone, the complainant’s evidence did not prove the appellant’s guilt but was merely evidence of a circumstantial fact. As such, the directions were sufficient and any problems which the complainant’s evidence presented were capable of being evaluated by the jury on the basis of those directions (at [48]).
2. Section 34AB represents an attempt by the Legislature to codify the common law test for ascertaining when a Domican warning should be given. Accordingly, the direction is only required where positive identification evidence is given of the identity of a person alleged to have committed an offence, not where evidence is given that merely has a tendency to identify a person alleged to have committed an offence. It does not follow that s 34AB(3) only applies where identification evidence consists of evidence obtained from a witness identifying the accused from a line up or photo array. A direction pursuant to s 34AB(3) was not required (at [52] to [55]).
3. In any event, a reasonable jury, properly instructed, would inevitably have convicted the appellant even if the evidence of the complainant identifying the driver of the Commodore as her attacker was disregarded (at [63]).
Evidence Act 1929 (SA) s 34AB, referred to.
Domican v The Queen (1992) 173 CLR 555; R v Turnbull [1977] QB 224; Festa v The Queen (2001) 208 CLR 593, applied.
Sindoni v The Queen (2011) 211 A Crim R 187, discussed.
Sindoni v The Queen (2011) 211 A Crim R 187; Winmar v Western Australia (2007) 35 WAR 159, considered.

R v SMITH
[2017] SASCFC 153
Court of Criminal Appeal: Kourakis CJ, Stanley and Hinton JJ

KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by Stanley J.
I only add that even if the complainant’s identification of the driver of the Commodore as the rapist were put aside, the remaining evidence excluded the possibility that the rapist was anyone other than the driver. The way in which the Commodore trailed the complainant is consistent with the driver being the rapist. There was no evidence of any other passing car. The only other person seen walking in the area can be excluded as the rapist.
STANLEY J:
Introduction
This is an appeal against conviction.
The appellant was convicted by a jury of two counts of rape. At his trial, there was no dispute that the rapes had occurred. The sole issue was whether the appellant was the rapist.
The issue on the appeal is whether the judge was required to issue a warning to the jury in relation to evidence given by the complainant identifying the man who raped her as the driver of a motor vehicle who had driven past her on three occasions shortly before the offending occurred.
Factual background
The prosecution case was that near midnight on 25 January 1994 the complainant was raped by the appellant in a public toilet behind shops on Military Road, Largs North.
The prosecution case was that, at the time of the rapes, the complainant was 14 years old. On the night of the offending, she was walking from her home to the residence of her mother’s partner. She walked along Strathfield Terrace, Taperoo, and into Military Road. As she was walking, she observed a cream coloured Commodore sedan pass her three times. On the first occasion, the vehicle was on the other side of the road travelling quite slowly in the opposite direction. The interior light of the vehicle was on and she was able to observe the male driver. On the second occasion it came from the other direction. The interior light was still on. At the same time, there was another older man walking in the same direction on the footpath behind her. The car was travelling very slowly. As the vehicle passed, the driver appeared to look at the complainant and wave. By this time, the older man had passed the complainant and was slightly ahead of her.
When the vehicle passed her on the third occasion, it again came from the opposite direction to which she was walking. This time, the interior light was not on and the driver did not appear to look at her or gesture towards her. The vehicle was not travelling as slowly as before.
The complainant gave evidence that she did not see the vehicle stop or anyone get out of the vehicle at any point on Military Road. However, some time later she heard footsteps behind her and turned to look to see who was there.
The complainant gave evidence that she saw a male who she recognised as the driver of the vehicle walking towards her. She said this person caught up with her near a block of shops, which included the Regent deli behind which was located a toilet, grabbed her and dragged her down an alleyway into a toilet cubicle where he assaulted her and raped her. He then left.
The complainant made her way to a nearby public phone booth and telephoned her mother. Her mother arranged for somebody to pick her up. Once the complainant returned to her mother’s home, police were called and she was taken to the Queen Elizabeth Hospital and examined by a doctor.
The complainant described the rapist as being about 35 to 40 years old, about five feet 10 inches tall with dark, messy, straggly hair which was not very long. He had a small moustache, not quite shaven, dark hair on his chest with a little bit of grey in it, and a mediterranean olive complexion. He had a clear Australian voice with no accent. She did not recall any scars on his face.
At the appellant’s trial, it was an agreed fact that he was associated with a cream or white coloured Commodore, with a South Australian registration number SOV-484. Police had observed the appellant getting into this vehicle on 12 February 1994. On the following day, he was spoken to by police while sitting in the driver’s seat of this vehicle.
Importantly, testing on samples taken from the complainant showed strong support for the hypothesis that the appellant’s DNA was present in the mixed DNA profiles obtained in a low vaginal swab and a labial swab taken from the complainant.
The prosecution case at trial
At trial, the prosecution case was circumstantial. It had four limbs. The sole issue was whether the evidence established the appellant was the offender. Those four limbs were:
1.DNA matching that of the appellant was found in a low vaginal swab and a labial swab taken from the complainant. That DNA was the major contributor to the sperm fraction in both samples;
2.the offender’s ability to immediately take the complainant to a particularly secluded location gave rise to an inference the offender was familiar with the area. The appellant lived in the area at the time and had admitted knowing the location where the rape occurred;
3.the appellant’s appearance had similarities to the description given by the complainant; and
4.the complainant gave evidence that the offender had been the driver of a cream Commodore shortly before the rapes. The appellant admitted having a connection to such a vehicle at the time.
The issue on appeal
The sole ground of appeal relates to the last limb of the prosecution’s circumstantial case. The appellant complains of the failure of the trial judge to give the jury an identification warning. Such a warning could be required either in accordance with s 34AB of the Evidence Act 1929 (SA) (the Act), or pursuant to the common law. The appellant submits the judge should have warned the jury about the dangers of acting on the complainant’s evidence that the male she saw in the Commodore and the offender were the same man.
No such direction was sought at the trial.
The submissions of the parties
The appellant submits that the judge should have warned the jury that miscarriages of justice have occurred because of honest mistakes made in giving evidence of identity. The jury should have been directed to consider with care the circumstances surrounding the purported identification or recognition of the driver as the offender, such as the length of time the complainant had to observe him, the lighting conditions, and the fact that the man was in a vehicle driving past. In addition, the jury should have been directed as to factors which might have affected the complainant’s ability to observe and recall accurately, such as fear, anxiety and the possibility that even honest witnesses may jump to conclusions about identification.
The appellant submits that the failure adequately to direct the jury as to the identification evidence resulted in a miscarriage of justice, given that the forensic evidence of Dr Donnelly was that a plausible explanation for the presence of the appellant’s DNA in the mixed DNA profiles obtained from the swabs taken from the complainant was that there had been transfer of the appellant’s DNA as a consequence of his girlfriend at the time, who was a prostitute, having had sex with the rapist.
The appellant submits that, in these circumstances, the appeal should be allowed, the conviction quashed and re-trial ordered.
The respondent submits that the judge was not required to give an identification warning to the jury, either pursuant to s 34AB or in accordance with the common law.
The respondent submits that the evidence of the complainant that the male driving the Commodore and the rapist were the same person is evidence that falls outside s 34AB. The Director contends that s 34AB, including in particular s 34AB(3), is confined to a particular kind of identification evidence, namely, identification evidence obtained from a line up or photograph board. Accordingly, there was no need for the statutory warning. Further, there was no requirement for any warning in accordance with the common law. The common law recognises the need for a warning in two cases. First, in the case of positive identification evidence. Second, in cases not involving positive identification evidence but where the evidence of identification is indispensable to a guilty verdict. The complainant’s evidence was not positive identification evidence of the kind that attracts the warning in Domican v The Queen.[1] The complainant did not give any evidence that directly identified the appellant as the man who raped her. Her evidence, if accepted, proved no more than that the rapist had been driving a cream Commodore in Taperoo on the night of 25 January 1994. By itself, that evidence could not establish the offender’s vehicle was the vehicle with which the appellant was associated, let alone that the appellant was the rapist.
[1] (1992) 173 CLR 555.
The respondent submits that, while there are authorities that support the proposition that evidence that has fallen short of positive identification can necessitate the Domican warning, those cases are ones in which the effect of accepting the evidence establishes guilt or, at least, is so indispensable a link in a chain of reasoning towards an inference of guilt, that failure to issue a warning would constitute a miscarriage of justice. This case can be distinguished from those authorities. This case does not present the risks that underpin the need for the Domican warning.
In the alternative, the respondent submits that if a warning was required, there was no substantial miscarriage of justice and the proviso should be applied.
Direction given by the trial judge
The judge summarised the complainant’s evidence as follows:
When she turned around she saw a man, whom she considered to be the driver of the cream Holden Commodore… [The complainant] disagreed with the defence’s suggestion that she could have been mistaken that the offender was the driver of the cream Holden Commodore because the behaviour of the driver had caused her such concern ... So it is at the corner of Strathfield Terrace and Military Road where she first identified the offender as being the driver of the Holden Commodore... [Y]ou will, of course, bear in mind that the offending occurred at night and [the complainant’s] observations of the offender in the car were from a distance and there was no light in the toilet where she was ultimately raped, only light coming in from the outside…[the complainant] was clear in her evidence that the offender was the same man who had been driving a cream-coloured Holden Commodore and she saw him on three occasions while he was driving that car.
The judge then reminded the jury of the defence submissions, which were to the effect that they could not be satisfied on the complainant’s evidence that the driver was the offender, because she had limited opportunity to view the man and any attention that the man was said to have shown her may have been consistent with the man gesturing to the older man walking behind her.
As I have noted, the defence did not ask the judge to provide the jury with any further direction or to give an identification warning.
Identification: common law principles
In Domican v The Queen,[2] the High Court stated the law in relation to identification evidence and when a warning must be given to a jury, as follows:[3]
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the Judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
[Footnotes omitted.]
[2] [1992] HCA 13, (1992) 173 CLR 555.
[3] [1992] HCA 13, (1992) 173 CLR 555 at 561-562.
The Court cited with approval the judgment of Lord Widgery CJ in R v Turnbull,[4] who said:[5]
First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? ... Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.
[4] [1977] QB 224.
[5] [1977] QB 224 at 228.
The nature of the warning required will depend on all the circumstances of the case. The judge’s overriding duty is to give such directions and warnings as are necessary in the circumstances of the particular case to enable the jury to properly carry out its task as the judge of the facts and thereby avoid the risk of a miscarriage of justice.[6]
[6] Sindoni v The Queen [2011] VSCA 195 at [64], (2011) 211 A Crim R 187 at 205.
Domican requires that where identification evidence represents a significant part of the proof of guilt of an offence, a jury must be warned of the potential unreliability of that evidence and also of any particular weaknesses in the evidence. In Domican, the Court said that an identification warning is required where evidence as to identification represents any significant part of the proof of guilt of an offence and its reliability is disputed. In Turnbull, the test was formulated in similar terms as requiring a warning whenever the case against an accused depends wholly or substantially on the correctness of identification evidence of the accused which is alleged to be mistaken. The evidence considered in Domican was disputed positive identification evidence. Positive identification evidence is where a witness claims to recognise the accused as the person seen at the occasion relevant to the offence. In Festa v The Queen,[7] McHugh J pointed out positive identification evidence may be direct or circumstantial proof of an offence.[8] It is direct proof where the witness asserts that the accused is the person who committed the offence. It is circumstantial evidence when its acceptance provides the ground for inference, alone or in combination with other evidence, that the accused committed the offence. Where positive identification evidence, whether used as direct or circumstantial evidence, forms a significant part of the prosecution case, a Domican warning must be given. However, if the evidence is evidence of resemblance or similarity, sometimes described as circumstantial identification evidence, where a witness provides evidence of the offender’s general appearance or some characteristic or propensity which is said to be similar to the accused, that evidence does not ordinarily require a Domican warning.
[7] [2001] HCA 72, (2001) 208 CLR 593.
[8] [2001] HCA 72 at [54], (2001) 208 CLR 593 at 610.

As McHugh J explained:[9]
[9] [2001] HCA 72 at [56]-[60], (2001) 208 CLR 593 at 610-612.
Unfortunately, another class of evidence is sometimes called "circumstantial identification evidence". It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance – usually, but not always, weak – that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.
When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence.
Thus in R v King, the Court of Criminal Appeal of South Australia held that no special warning was required where the witness did not profess to recognise the accused as the person he had seen on the day of a robbery. The witness had described the man he saw as being about 6 feet 1 inch tall, of slim build, with blond hair which was fairly straight, and with a tattoo on his shoulder. Hogarth ACJ, Mitchell and Zelling JJ drew a distinction between positive-identification evidence and evidence that described a person in terms that broadly agreed with the physical characteristics of the accused.
Their Honours said:
"Recognition constitutes a mental process whereby one person, by observation, is able to establish to his own satisfaction the identity of another person. In so doing he no doubt takes into account the general physical characteristics of the person who he is recognising. But a complete catalogue of these personal characteristics, if supplied to a stranger, would be insufficient to enable that stranger to achieve the same act of recognition. At most he could say that the person at whom he is looking could be the man to be recognised, in that the description fits him. He could not say 'it is the man'; and it is evidence of the last category which constitutes recognition; it is that type of evidence of which the cases speak when they refer to evidence of identification. It is that type of evidence which the law requires, in certain circumstances, to be accompanied by a warning to the jury." (original emphasis)
Their Honours went on to say, correctly in my opinion, that "evidence which may be relevant on the issue of identity is not necessarily evidence of identification within the meaning of the cases". They held that the evidence of the witness was not evidence of that character.
[Footnotes omitted.]
Hayne J agreed with McHugh J. He said:[10]
As the reasons of McHugh J demonstrate, it may sometimes be convenient to distinguish between positive‑identification evidence and evidence of similarities between the accused and the perpetrator of the crime. It is, however, important to recognise that evidence which the prosecution relies on, to demonstrate that it was the accused who committed the alleged crime, may take many forms. The convenience of classifying some or all of those different kinds of evidence should not be allowed to obscure the fundamental reasoning that underpinned this Court's decision in Domican v The Queen. In particular, deciding where the boundaries between classes of evidence may lie must not obscure the purpose of what is now commonly called a Domican direction. As was said in the joint judgment in Domican:
"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. … [T]he jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'."
The warning must "isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence". "The jury must have the benefit of a direction which has the authority of the judge's office behind it." The purpose of the warning is self‑evident. It is to draw to the attention of the jury the difficulties in evidence which, because it is so seductive, has so often led to proven miscarriages of justice.
Giving effect to that purpose does not depend upon, or require, the classification of evidence as positive‑identification evidence or as evidence of similarities, as circumstantial or direct. The problem is more concrete than that. It is that witnesses may, with perspicuous honesty, give evidence that it was the accused they saw, or a person like the accused, or a person having particular physical characteristics (like those of the accused) and yet the painful experience of the law is that they may be mistaken. The duty of the judge is to draw the jury's attention in every such case, where the reliability of the evidence is disputed, to how and why the evidence may not be reliable. The trial judge did not do this sufficiently at the appellant's trial.
Of course, what is required will depend on the nature of the evidence that is given. If a witness says it was the accused that was seen, every element of the Domican direction will ordinarily be required. If, at the other end of the spectrum, the evidence is no more than "I saw a man wearing a red shirt" little more may be needed than to point to whatever difficulties the defence asserts that the witness may have had in observing and accurately recollecting the event. In this regard, as in every other aspect of a trial judge's charge to the jury, the content of the directions must be moulded with due regard to the issues at trial; they are not to be a mere recitation of general propositions derived from decided cases.
[Footnotes omitted.]
[10] [2001] HCA 72 at [217]-[219], (2001) 208 CLR 593 at 658-659.
In this case, the appellant, on his trial, put in issue the reliability of the complainant’s identification of the man who raped her as being the man she had seen a short time earlier driving the cream Commodore. That was not evidence that the appellant was the man who raped her. It was not positive identification evidence of the kind referred to in Domican and Festa that directly identified the appellant as the person who committed the charged offences. The complainant’s evidence did not establish that the appellant raped her. The evidence went no further, if accepted, than to establish that the offender was the driver of a cream Commodore. The evidence was merely one strand in the circumstantial case relied upon to prove the appellant had committed these offences. That does not, however, make the evidence positive identification evidence used as circumstantial proof of the charge of the kind referred to by McHugh J in Festa which requires a warning. Positive identification evidence of that kind occurs where there is evidence of identification of the appellant being present at or near the scene of a crime in incriminating circumstances where acceptance of that evidence provides the ground for an inference, alone or with other evidence, that the accused committed the crime in question. That is not this case. The evidence of the complainant did not place the appellant in or near Strathfield Terrace or Military Road.
This case can be contrasted with Sindoni v The Queen[11] where the applicant was convicted after trial by jury of intention of causing serious injury by shooting a security guard outside a club. It was not in issue that the applicant had been at the club that night but he maintained he had left by taxi and did not return after being refused re-entry to the club. The critical witness at trial was the taxi driver who picked up the applicant from the club. The taxi driver gave evidence that while he drove the applicant to his home, he drove him back to the club where, shortly after the applicant left the taxi, the driver heard three gun shots. He gave evidence that soon thereafter he saw his passenger running away from the scene. No other witnesses could identify the gunman, who, according to some witnesses, was wearing a balaclava. The trial judge gave a general direction to the jury that identification is always difficult but did not give the jury a Domican warning. The Victorian Court of Appeal set aside the conviction because, as the taxi driver’s evidence identifying the applicant was a critical part of the Crown case, the judge was obliged to give a Domican warning to the jury.[12] The Court reasoned that the conclusion that the taxi driver correctly identified the applicant as the person he had dropped off at the club shortly before he heard gun shots and soon after observed running away, was an intermediate fact which constituted an indispensable link in a chain of reasoning towards an inference of guilt.[13] Sindoni can be distinguished from this case. Acceptance of the complainant’s evidence that the man in the cream Commodore raped her is not an intermediate fact which constitutes an indispensable link in a chain of reasoning towards the verdict that the appellant was guilty of raping the complainant. That is because the complainant’s evidence of identification, standing alone, could not prove the appellant’s guilt. For the reasons set out above, the complainant’s evidence of identification of the man in the Commodore as her rapist was not a critical part of the prosecution case.
[11] [2011] VSCA 195, (2011) 211 A Crim R 187.
[12] [2011] VSCA 195 at [59], (2011) 211 A Crim R 187 at 204.
[13] [2011] VSCA 195 at [68], (2011) 211 A Crim R 187 at 206.
The complainant’s evidence more closely resembles that class of evidence described by McHugh J in Festa as circumstantial identification evidence. While it is not evidence that asserts that the general appearance or some characteristic of the appellant is similar to that of the man who raped her, it is evidence which, while not directly implicating the appellant in the offences committed against her, with other evidence points to the appellant as the person who committed the rapes.
In Festa, McHugh J considered that where circumstantial identification evidence has no element of positive identification, a judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. This is because it usually does not have the potential unreliability of potential identification evidence. But, as McHugh J observed, the circumstances of a particular case may require warnings, but the warnings that must be given to juries concerning positive identification evidence do not apply to most forms of circumstantial identification evidence.
In Festa, Hayne J referred to the purpose of the Domican direction, which is to draw to the attention of the jury the difficulties of identification evidence. But, as his Honour said, what is required will depend on the nature of the evidence that is given. His Honour referred to a “spectrum” of evidence such that the content of the direction must be moulded with due regard to the issues at trial. Hayne J explained the spectrum of evidence extended, at one end of the spectrum, from a witness who says it was the accused that was seen committing the crime, to evidence at the other end of the spectrum, that is no more than a witness saying the crime was committed by a man wearing a red shirt.
In considering whether a Domican warning was necessary in this case to prevent a miscarriage of justice, consideration of the rationale for the provision of such a warning informs the analysis of the issue which arises on appeal.
In Bromley v The Queen[14] Brennan J (as he then was) explained the rationale for judicial warnings in the following terms:[15]
The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer "partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind": see also per Lord Ackner and per Lord Diplock in Hester. If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given. As Barwick C.J. said in Kelleher:
"The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play."
When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted. In such a case, there is a miscarriage of justice warranting the quashing of the conviction: R. v. Bassett. Because a Court of Criminal Appeal may and frequently does quash a conviction when no warning is given with respect to the evidence of a witness in one of the accepted categories, the rule of practice requiring a warning might be thought to have acquired the force of law: cf. Kelleher. But in truth the rule of practice acquires only such force as is needed to ensure that, in the circumstances of the particular case, there is no miscarriage of justice: cf. Chamberlain v. The Queen [No.2]. When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage, none need be given. The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content.
[Citations omitted.]
[14] (1986) 161 CLR 315.
[15] (1986) 161 CLR 315 at 324-325.
Central to the need for a Domican warning is the common law’s recognition of particular problems that inhere to identification evidence that may not be apparent to a jury absent a warning. The failure to draw these problems to the attention of a jury carries the risk that reliance upon such evidence without identifying for the jury the problems that inhere to such evidence may cause a miscarriage of justice. In Winmar v Western Australia[16] the Court of Appeal of Western Australia considered, in the context of identification evidence, the dangers of convicting on disputed identification evidence and how the judge identifies the specific problems with such evidence so as to require the trial judge to give a warning about those problems. Those problems are first, that an honest and confident identification witness may be mistaken as to identification; second, the vulnerability of identification evidence to suggestion; and third, that the witness giving identification evidence may not have had an adequate opportunity to observe and therefore, identify, anyone.[17] In Winmar the Court of Appeal of Western Australia considered that how a trial judge identifies the specific problems which give rise to the necessity for a Domican warning is informed by a consideration of the nature of judicial warnings generally. Two factors must exist to require a warning. First, there must be some aspect of the evidence which gives rise to a perceptible risk of miscarriage of justice. Second, the risk of miscarriage of justice must be one which is not necessarily obvious to a jury. It must derive from a factor of which a judge has special knowledge, experience or awareness.[18] It is the special knowledge, experience or awareness of the trial judge which gives rise to the need for a warning. Accordingly, where a judge has no special expertise or knowledge and the problem is one readily understood by a jury, a warning is not only unnecessary but is an unwarranted intrusion into the constitutional function of the jury.[19]
[16] [2007] WASCA 244, (2007) 35 WAR 159.
[17] [2007] WASCA 244 at [10]-[14], (2007) 35 WAR 159 at 163-164.
[18] Winmar v Western Australia [2007] WASCA 244 at [21]-[22], (2007) 35 WAR 159 at 165; Carr v The Queen (1988) 165 CLR 314 at 325.
[19] Carr v The Queen (1988) 165 CLR 314 at 324-325; Bromley v The Queen (1986) 161 CLR 315 at 324.
In Winmar the Court noted that the first problem is a problem present in every case of identification evidence requiring a Domican warning, while the others may well be present, to a greater or lesser degree, in most cases.[20]
[20] [2007] WASCA 244 at [15], (2007) 35 WAR 159 at 164.
It can be seen that the first problem does exist at some level in this case. There is a risk that the complainant’s evidence that the man she saw driving past in the cream Commodore was the person who raped her, could be the result of an honest mistake. However, recognition of that risk does not lead to the conclusion that a warning of that risk is necessary to prevent a miscarriage of justice in this case. It is important to recognise that the risk with which the authorities are concerned arises in circumstances of positive identification evidence where that evidence, necessarily, is sufficient to prove the offence charged. That is not the position in this case for the reasons already explained. Even if the complainant was mistaken in identifying the man in the Commodore as her attacker, that evidence standing alone could not convict the appellant. Her evidence, if accepted, did not prove the appellant was the person driving the vehicle or the person who raped her. Her evidence provided a strand in a circumstantial case from which an inference of guilt could be drawn from consideration of a number of other pieces of circumstantial evidence. That the complainant’s evidence might be found convincing by a jury to establish a circumstantial fact is not the risk with which the common law is concerned. The problem is where the identification evidence standing alone tends to be conclusive on the prosecution case. As Kirby J observed in Festa:[21]
The history of wrongful criminal convictions in this and other countries is littered with instances of convincing, honest identification testimony subsequently proved to have been erroneous. If believed, such evidence tends to be fatal for the accused.
[21] [2001] HCA 72 at [166], (2001) 208 CLR 593 at 643.
The need for the warning arises from the probative weight a jury might naturally give to the convincing but mistaken evidence of identification adduced from an honest, confident witness. The evidence must provide direct, or at the very least significant, proof of the guilt of the accused to require a Domican warning. Otherwise all potentially unreliable evidence given by an honest witness as to any circumstantial fact will require some warning. Examples of where the evidence of a witness is led to prove a fact that forms part of a wider circumstantial case establishing the identity of an offender can be readily postulated. For example, evidence as to the colour or make of a car. Acceptance of the evidence of observation does not, standing alone, necessarily prove that the witness observed a specific car. Even if it did, the jury might receive assistance with the assessment of the evidence either by way of directions, or reminders of the evidence and/or counsel’s submissions, but without the necessity of a Domican warning.

The second problem is the vulnerability of identification evidence to suggestion. This is the risk that a witness will identify someone from a line-up or photobook because they expect the group to include the offender. This problem does not arise. However, a not dissimilar problem does arise. That is the risk of assumption, namely, that the complainant having seen a man behaving suspiciously shortly before she was attacked would assume that the person who attacked her was the same man. But this is a problem readily understood by a jury as a matter of common sense and experience. Indeed, the appellant conducted his defence on this very premise. In his closing address, the appellant’s counsel at trial specifically called upon the jury’s own experiences to understand how an assumption of this very kind might have been made by the complainant.[22] In summing up the trial judge drew the jury’s attention to this submission.[23] Apparently, trial counsel considered this sufficient as there was no request made of the trial judge to provide the jury with any further direction or assistance on this topic.[24] This situation is easily distinguished from the problem the authorities recognise of the seductive influence on the perception of a witness of the police showing him or her a line-up of people or an array of photographs by the assumption that the offender must be amongst the people put before the witness. That is a problem that a jury may not think to guard against without an express warning to that effect.
[22] T 263.
[23] Summing up p 17.
[24] Perara-Cathcart v R [2017] HCA 9 at [60].
It can be accepted that the third problem existed in this case. There was an issue as to whether the complainant had an adequate opportunity to observe the driver of the Commodore for the purposes of identifying him as the man who subsequently raped her. The circumstances involving the nature of the lighting and her distance from the vehicle were factors relevant to the risk of her being mistaken. In addition there was the factor of the stress she experienced at the time of the attack. However, the Commodore drove past three times. It was travelling slowly. On two occasions the interior light was on and the driver was looking directly at the complainant. These are not matters which would require a specific warning to be given to the jury. The need for a Domican warning arises from the court’s special knowledge of problems that inhere in identification evidence which jurors do not have. In the circumstances of this case the jury did not require any direction as to factors relevant to identification that they would not otherwise appreciate. A jury would appreciate the factors that in this case were relevant to the accuracy of the complainant’s identification of the driver as her attacker, namely, the state of the lighting and her distance from the vehicle when she made her observations. Further, as the Court in Winmar emphasised, a direction about stress is not something routinely to be given to juries.[25]
[25] [2007] WASCA 244 at [87] and [120], (2007) 35 WAR 159 at 178 and 187.
As Hayne J explained in Festa the need for a warning and the nature of the warning in relation to identification evidence depends on the circumstances of the case. The authorities recognise that some circumstances will require a Domican warning, some will not, and some will require a direction that can be characterised as a partial Domican direction.[26] That is to say, directions of the kind Hayne J proposed in Festa where the judge needed to do no more than point to whatever difficulties the defence asserts the witness may have had in observing and accurately recollecting the event.
[26] Mills v The State of Western Australia (2008) WASCA 219 at [7], (2008) 189 A Crim R 411 at 414.
In my view the circumstances of this case did not require a “full” Domican warning. The complainant’s evidence identifying the driver of the cream Commodore as the man who raped her did not represent a significant part of the proof of the appellant’s guilt.[27] Neither did the prosecution case against the appellant depend wholly or substantially on the accuracy of that evidence.[28] Her evidence did not, standing alone, prove the appellant’s guilt of the charges. It was merely evidence of a circumstantial fact. That fact, of itself, did not connect the appellant to the Commodore which she testified was driven by the man who raped her. Accordingly, the complainant’s evidence was not directly probative of the ultimate fact in issue, namely, did the appellant rape the complainant. It was evidence subsidiary to that fact from which the conclusion of guilt flows.[29] This was evidence that fell within the category of circumstantial identification evidence identified by McHugh J in Festa.[30] In those circumstances the directions given by the judge were sufficient. Any problems which the complainant’s evidence presented were capable of being evaluated by the jury on the basis of those directions. As the majority said in Domican, the adequacy of a warning must be evaluated in the context of the evidence in the case.[31] It is significant that experienced defence counsel did not take exception to the judge’s directions. As the High Court said recently in Perera-Cathcart v The Queen,[32] it is the obligation of the trial judge to decide the real issues in the trial and to direct the jury on only so much as they need to know to decide those issues. The absence of a request from defence counsel for any further direction affords some practical implication that the trial judge succeeded in that task.[33] A Domican warning was not required to prevent a miscarriage of justice.
[27] Domican v The Queen (1992) 173 CLR 555 at 561.
[28] R v Turnbull [1977] QB 224 at 228.
[29] Festa v The Queen [2001] HCA 72 at [252]-[253], (2001) 208 CLR 593 at 669.
[30] [2001] HCA 72 at [56], (2001) 208 CLR 593 at 611.
[31] Domican v The Queen (1992) 173 CLR 555 at 565.
[32] [2017] HCA 9 at [53].
[33] [2017] HCA 9 at [60].
Section 34AB of the Act
Section 34AB provides:
34AB—Identification evidence
(1)In a criminal trial, evidence of the identity of a person alleged to have committed an offence is not inadmissible, and is not to be excluded, merely because it was obtained other than by means of an identity parade involving a physical line-up of persons.
(2)In a criminal trial, evidence of the identity of a person alleged to have committed an offence obtained by means of an identity parade is to be excluded unless—
(a)—
(i)an audio visual record of the identity parade is made and kept in accordance with the regulations; and
(ii)if the regulations prescribe procedures for the conduct of an identity parade—the identity parade is conducted in accordance with the prescribed procedures; or
(b)     the judge is satisfied that the interests of justice require the admission of the evidence despite the failure to comply with paragraph (a).
(3)In a criminal trial where the identity of a person alleged to have committed an offence is in issue, the judge must, if evidence of the identity of the person is admitted, inform the jury—
(a)     of the need for caution before accepting identification evidence; and
(b)     of the reasons for the need for caution, both generally and in the circumstances of the case.
(4)In giving any such information, the judge is not required to use any particular form of words but may not suggest that identification evidence obtained from an identity parade by any means other than by a physical line-up of persons is inherently or intrinsically less reliable than evidence obtained from an identity parade by such means.
(5)To avoid doubt, this section does not—
(a)make evidence admissible that would otherwise be inadmissible; or
(b)affect the court's discretion to exclude evidence.
(6)In this section—
identity parade means a contemporaneous presentation (whether by a physical line-up or by means of images) of a number of persons to a witness for the purpose of identifying a person.
The critical provision is s 34AB(3). This is the provision which imposes a mandatory requirement on a judge to inform the jury of specified matters where evidence of the identity of a person is admitted in a criminal trial where the identity of a person alleged to have committed an offence is in issue.
At issue is whether s 34AB(3), in the circumstances of this case, compelled the judge to inform the jury of the matters set out in placita (a) and (b). The answer turns on whether the evidence of the complainant is “evidence of the identity of a person” within the meaning of s 34AB(3). That answer depends upon the proper construction of s 34AB(3). That involves a consideration of the text, context and purpose of the provision.[34]
[34] Plaintiff M70/2011 v The Minister for Immigration and Citizenship & Anor [2011] HCA 32 at [50], (2011) 244 CLR 144 at 177; Certain Lloyds Underwriters v Cross [2012] HCA 56 at [23]-[24], (2012) 248 CLR 378 at 388-389; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50 at [184], (2016) 91 ALJR 177 at 211.
While the starting point for ascertaining the meaning of any statutory provision is its text, in this case I do not consider that starting point provides the answer to the operation and reach of s 34AB(3). The phrase “if evidence of the identity of the person is admitted” is an expression potentially so broad in its operation that circumstantial evidence adduced in a trial where identity is in issue, which might form a link in a chain of reasoning that leads to the identification of any person, would be captured by a literal construction of that phrase. A consideration of the context in which s 34AB(3) appears in the provision as a whole contraindicates such a constructional choice. That context is a provision which is concerned to overcome the practical problems associated with obtaining identification evidence from a line up or identification parade. The principal purpose of s 34AB is to put photographic means of identification on an equal footing with an identification parade. So much is clear from a consideration of subsections (1), (2) and (4) and the definition of “identity parade” in (6). That is the context in which the legislature has provided for the warning. That context points to a narrower meaning and operation to be afforded to s 34AB(3) than its literal words might possibly support, while nonetheless consistent with the text of the subsection, which remains the alpha and omega of the task of statutory construction.[35] The reference to “identity of the person” in s 34AB(3) takes its meaning from the earlier phrase “where the identity of a person alleged to have committed an offence is in issue”. The particular mischief which s 34AB addresses was the inferior weight afforded by the common law to identification evidence obtained by photographic means relative to identification parades. Section 34AB does not address all forms of evidence that might go to proof of identity. It addresses that limited category of identification evidence where a witness sees an alleged offender or a person in circumstances consistent with that person being the alleged offender, and is asked whether he or she can identify that person from an identification parade or a photo book. This points to a similarly limited subject matter for s 34AB(3). The Parliament in enacting s 34AB(3) did not intend to extend the nature or scope of the traditional common law warning concerning the need for caution before accepting identification evidence and the reasons for such caution, both generally and in the circumstances of the particular case. So much is clear from the Second Reading Speech which expressly stated that it was not proposed to dilute or remove that warning.[36] Equally, there is no indication of a legislative intention to extend or magnify the warning. In my view, understood in that context, s 34AB(3) represents an attempt by the legislature to codify the common law test for ascertaining when a Domican warning should be given. That is supported by McHugh J’s succinct summary of the ratio in Domican, namely, that juries be given directions concerning:
·the dangers of convicting on recognition evidence where its reliability is disputed, and
·the factors (if any) that may affect the reliability of that evidence in the circumstances of the particular case.[37]
It can be seen that this formulation closely reflects the terms of s 34AB(3). Its effect is to impose as a statutory obligation that which the common law made an exercise of the judicial function to prevent a miscarriage of justice.
[35] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39], (2012) 250 CLR 503 at 519.
[36] Hansard Second Reading Speech of the Attorney-General on Evidence (Identification Evidence) Amendment Bill, 25 September 2013.
[37] Festa v The Queen [2001] HCA 72 at [64], (2001) 208 CLR 593 at 614.
Accordingly, the direction is only required where positive identification evidence is given of the identity of a person alleged to have committed an offence, not where evidence is given that merely has a tendency to identify a person alleged to have committed an offence. By positive identification evidence I mean identification evidence that is used as direct or circumstantial evidence of the offence, i.e. direct evidence of the accused being seen to commit the offence or evidence which, while not being direct evidence of the accused committing the offence, is nonetheless evidence of identification which constitutes an indispensable link in a chain of reasoning towards proof of the offence.
On this basis, I reject the Director’s construction that s 34AB(3) only applies where identification evidence consists of evidence obtained from a witness identifying the accused from a line up or photo array. That would confine the operation of s 34AB(3) too narrowly. However, it does not follow that his submission that s 34AB does not apply to this case must fail.
For the reasons given above, this was not a case where the common law required such a warning. Accordingly, I do not consider a direction pursuant to s 34AB(3) was required.
The proviso
In Domican the majority said:[38]
If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused.
[38] (1992) 173 CLR 555 at 565-566.
Even if I am wrong and a Domican warning was required either in accordance with the common law or pursuant to s 34AB, I am nonetheless satisfied that the jury must inevitably have convicted the appellant independently of the identification evidence. Undertaking my own independent assessment of the evidence, and making due allowance for the natural limitations that exist in the case of this Court proceeding on the record, I am satisfied that the appellant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdict of guilty, putting aside the impugned evidence of identification given by the complainant.[39] As the High Court made clear in Festa the proviso can be applied in a case in which the directions on identification are inadequate but the prosecution case is overpowering, irresistible or so strong there was no substantial miscarriage of justice.[40]
[39] Weiss v The Queen [2005] HCA 81 at [41], (2005) 224 CLR 300 at 316.
[40] [2001] HCA 72 at [28], [124], [213], [221] and [255], (2001) 208 CLR 593 at 604, 633, 657, 659 and 669.
This was the appellant’s third trial. He did not give evidence at this trial. There had been two mistrials. The appellant gave evidence in the two earlier trials. Transcript of that evidence was adduced at this trial and read to the jury.
There was no issue that the complainant had been raped. The issue was the identity of the offender.
The evidence convincingly proved that the appellant was the man who raped the complainant. The DNA evidence was highly incriminating. There was no dispute at trial that the offender deposited semen by some mechanism into the complainant’s vagina. The evidence was that the DNA profile obtained from the sperm fractions, taken both from the complainant’s low vaginal swab and the labial swab, had a likelihood ratio that it is greater than one hundred billion times more likely to obtain that profile if the appellant was the contributor of the DNA rather than someone unknown. Nonetheless, the forensic scientist, Dr Donnelly, gave evidence that from a scientific viewpoint he could not exclude the possibility that the DNA profile obtained from the complainant’s low vaginal swab and labial swab could be explained by the appellant having had unprotected intercourse with a woman known to him, who worked as a prostitute, who then had unprotected intercourse with the offender, resulting in the transfer of the appellant’s DNA. However, that hypothesis can be excluded as a reasonable possibility by the appellant’s evidence given at two earlier trials that, in that period, when he had sex with the woman who worked as a prostitute, whose name was Linda, she insisted he use a condom. He also gave evidence that he used a condom to ensure he did not get HIV. That evidence was consistent with him being in a relationship about this time with a woman named Sonia, who he described as his girlfriend. He said that later Linda became his girlfriend and, at that time, stopped working as a prostitute. He gave evidence that when this occurred they ceased using a condom but she was still working as a prostitute when police stopped him in a white Commodore a few weeks after these offences were committed. The hypothesis is inconsistent with the appellant’s evidence that when working as a prostitute his girlfriend insisted on using a condom.
Standing alone the DNA evidence is compelling and capable of proving the appellant’s guilt. But it is supported by other incriminating circumstantial evidence, namely that, at that time, the appellant lived around the immediate Taperoo area where the rapes occurred, admitted he was familiar with the Regent deli and had a friend who lived in a house behind the deli. This was significant as the modus operandi of the rapes gave rise to an inference that the rapist was familiar with the secluded location behind the deli to which the offender immediately took the complainant to rape her.
Some further support for the case against the appellant were the similarities between the complainant’s unchallenged description of the offender and the evidence of the appellant’s appearance around that time, and the evidence of the complainant concerning the suspicious behaviour of the driver of the cream Commodore and the fact of the appellant’s association with a vehicle matching that description at around that time. While this last strand of circumstantial evidence is considerably weaker when the complainant’s evidence of identification is set aside, that evidence nonetheless adds weight to the very strong circumstantial case mounted by the prosecution. Likewise, while these two strands of circumstantial evidence, standing alone, would be insufficient to prove the appellant’s guilt, when considered with the rest of the circumstantial evidence, they establish irresistible proof of his guilt.

In these circumstances I consider that a reasonable jury, properly instructed, would inevitably have convicted the appellant even if the evidence of the complainant identifying the driver of the Commodore as her attacker is disregarded.
Conclusion
I would dismiss the appeal
HINTON J:
I agree with Stanley J for the reasons he gives that in the circumstances of this case neither the common law nor s 34AB(3) of the Evidence Act 1929 (SA) required the trial Judge to give the jury an identification warning.
I also agree with Stanley J as to the application of the proviso. Given that the appellant did not give evidence at his third trial, this Court is in no different position to the jury to assess what weight to attribute to the evidence he gave in his first two trials as read to the jury.
The defence DNA transfer hypothesis depended upon accepting the appellant’s evidence in the first trial as to the nature of his relationship with a woman by the name of Linda as amounting to a reasonable possibility. At the relevant time Linda was a prostitute. At the beginning of their relationship he would wear a condom when they engaged in sexual intercourse, but not long into the relationship he ceased to use condoms. Exactly when in point of time the relationship commenced and when the appellant ceased using a condom is not clear on the evidence.
In his second trial, defence counsel, who was the same counsel as at the first trial, led no evidence from the appellant in chief as to whether he was in a sexual relationship with any particular woman at the time of the alleged rapes.
In cross-examination the appellant referred to his girlfriend at the time as being Sonia, with whom he had been in an on-and-off relationship between 1991 and 1996. He said nothing about Sonia having intercourse with other men around the relevant time.
Thus the defence DNA transfer hypothesis raised in the appellant’s third trial not only depended upon accepting the appellant’s evidence in his first trial as amounting to a reasonable possibility, but doing so despite the very different evidence he gave in his second trial.
There is nothing in the evidence that allows this Court to accept the appellant’s evidence in his first trial as giving rise to a reasonable possibility over that in his second trial.
In addition the factual basis upon which the DNA transfer hypothesis depended was not established. It was put by defence counsel to the forensic scientist called by the prosecution as follows:[41]
Q.If I could take you through those assumptions once more Dr … . The first assumption is that A is a male who has unprotected vaginal intercourse with a female B. A ejaculates into B’s vagina. Within 12 hours of that event B has unprotected vaginal intercourse with C, another male, while A’s semen is still in B’s vagina. C does not ejaculate, or if he does he captures his ejaculate or emits it in such a way that it doesn’t get onto the surface of his penis. Then C, within 12 hours of that last event, has vaginal intercourse with another female D. C does not ejaculate into D’s vagina and, again, it’s unprotected vaginal intercourse, in other words, without the use of a condom. So I’ll ask you the question again. Would the transfer of A’s sperm to D’s vagina through this chain of interactions be a plausible scenario.
A.It’s plausible. I don’t know how plausible, but it could happen.
[41] Transcript, 19 June 2017, p 219.
The appellant’s evidence in neither the first nor the second trial, as read in the third, was capable of supporting the factual foundation upon which the DNA transfer hypothesis was founded. Neither Linda nor Sonia were called to give evidence. To accept the DNA transfer hypothesis required the jury to speculate. The mere fact that the cellular material detected on the swabs taken from the complainant was consistent with the defence DNA transfer hypothesis was neutral. It was not necessarily inconsistent with the prosecution hypothesis. In my view, the “plausible” theory was not a rational or reasonable possibility open on the evidence.
In the circumstances I am satisfied that the appellant’s guilt is the only rational conclusion on the evidence and thus that it had been proven beyond reasonable doubt.