R v Southon

R v SOUTHON
[2003] SASC 205
Court of Criminal Appeal: Duggan, Lander and Sulan JJ

DUGGAN J In my view the appeal should be allowed and a retrial ordered. I agree with the reasons for decision of Sulan J.
LANDER J I agree with Sulan J’s reasons. I agree the appeal should be allowed and that there be an order for a retrial.
SULAN J The appellant was convicted of assault occasioning actual bodily harm and wounding with intent to cause grievous bodily harm. He has appealed against the conviction.
Introduction
The case against the appellant relied upon identification evidence. A major issue at trial was the identification of the appellant by two principal witnesses, Joshua Bayly (“Bayly”) and Michaela Gund (“Gund”). The appellant did not give evidence. Nevertheless, the two principal witnesses were challenged about the accuracy of their evidence identifying the appellant as the assailant. One of the main issues upon which the appellant relies is that the learned trial judge failed to adequately warn the jury about the dangers of relying upon evidence of identification.
The Case for the Prosecution
The offences occurred on 1 July 2001. The prosecution case was that on 30 June 2001, the day prior to the offences, the victim, Bayly, and his friend, Gund, attended a wedding. On their way to the wedding they stopped at a BiLo supermarket car park located on Tapleys Hill Road, Fulham. A drug transaction took place between Gund and the appellant at the car park. The evidence was that Bayly and Gund were travelling in a motor vehicle driven by a friend. Bayly was seated in the rear of the car. He saw Gund walk to a red VB Commodore which was parked about two car widths away. Bayly saw Gund go to the rear of the Commodore but he could not see what occurred because the boot of the Commodore was up. Gund then returned to the vehicle and they drove to the wedding.
Bayly was aware that a drug transaction had taken place. He understood that the appellant was to receive a quantity of LSD in exchange for a quantity of ‘speed’ which the appellant had supplied to Gund. During his evidence Bayly identified the appellant as that person. In cross-examination, Bayly said that he had been seated in the back seat of the vehicle in which he had been travelling and he observed the appellant from about two cars widths away from the Commodore which was parked in the same row. He agreed that he was not able to see what Gund was doing at the rear of the Commodore. He had never met the appellant.
Gund gave evidence that she met the appellant at the BiLo supermarket car park and there obtained some speed from him. She said that she met the appellant for the first time that day.
Later that day, at about 7 pm, the appellant came to Gund’s unit where she was living with Bayly. Both Bayly and Gund spoke to the appellant. Gund had been unable to obtain the LSD and so she returned the speed to the appellant. Bayly told the appellant that he may be able to obtain LSD and the appellant said, if this was so, he would return to the unit that evening at about 10 p.m. and would pay cash for the LSD. The appellant then gave Gund a quantity of speed.
Bayly went out that evening to see if he could obtain some LSD for Gund to give to the appellant. He was unsuccessful. Whilst he was away, the appellant returned to the unit. Gund gave evidence that the appellant became angry whilst he was there and that he smashed a bottle of wine in the kitchen. He told her that he would be back in an hour and that if she did not have a thousand dollars, something would happen.
Not long after this incident, Bayly returned. There were two other people with Gund at the unit when Bayly was there. Gund subsequently received a telephone call from the appellant. The appellant told Gund that he was calling from the telephone box located near the intersection of Mitton Avenue and Marlborough Terrace at Fulham Gardens, not far from the unit. The appellant asked about the LSD. Gund did not want the appellant to come back to the unit so Bayly left the unit to walk to the telephone box. As he approached the intersection, he saw the appellant in the telephone box. Bayly also observed a yellow Mitsubishi Magna sedan parked nearby with a female seated in the passenger seat. Bayly gave evidence that there was light emanating from the telephone box and from nearby shops.
Bayly described the appellant as coming out of the telephone box and running towards him. The appellant ran to the Magna motor car and grabbed something from inside the car. Bayly started to run away and as he was running the appellant threw a bottle which smashed on the road cutting Bayly’s foot. Bayly said that at the time the incident occurred, there were lights on in the telephone box and there was an interior light operating inside the car. This incident is the subject of the first count.
Bayly then ran to the unit where he spoke to Gund. Bayly stayed outside because he was bleeding from the injury to the foot and Gund did not want him inside the unit. Gund said that she saw a small cream-coloured car pull up in the driveway and she saw the appellant get out. She saw a young woman in the car. She observed the appellant walk towards Bayly. Bayly was positioned against the window near the screen door. She did not see a knife but she saw the appellant “laying into Bayly”. The appellant was outside the unit for about ten minutes and he then left.
In cross-examination it was suggested to Gund that her identification of the appellant was wrong and that the person who assaulted Bayly at the front door of her unit was not the same person with whom she had dealt at the BiLo car park. Gund admitted that she was under the influence of drugs at the time that the incident at her unit took place, but she maintained it was the same person, and that she is certain it was the appellant.
Bayly gave evidence that whilst he was at the front door of Gund’s unit, he saw the same yellow Magna motor car which had been parked near the telephone box. He said that he could not get into the unit because Gund had shut the door, so he curled up in a ball at the bottom of the door. The appellant approached him and demanded the registration papers of a motor car which was parked out the front of the unit. Bayly said he did not know to whom the vehicle belonged. When Bayly said this to the appellant, the appellant demanded a thousand dollars. He said he was hit a couple of times on the head and then he felt something in his back. Bayly did not realise he was being stabbed until he felt blood. The attack upon him continued for a couple of minutes. The appellant then returned to his car and drove off.
Gund said that when Bayly returned from having been at the telephone box, she saw a lot of blood covering the floor in front of the door. She said she did not want him inside the unit because he was bleeding. Gund was looking out of the window of the unit at the time. She heard Bayly saying, “Stop it, stop it”.
When the appellant left the unit, she telephoned for an ambulance which arrived and Bayly was taken away. The police attended and she spoke to them. There was a great deal of blood on the tiles and she cleaned it up.
At about 11.00 am the following day Gund saw the appellant walking up her driveway. She said that she locked the door of her unit. The appellant demanded to come inside. Eventually Gund let the appellant in. The appellant demanded the keys to the car parked at the front of the driveway. She told him that she did not have them and that the keys were at another unit in the complex. Gund left the unit on the pretence of getting the keys. She went to her friend’s unit and telephoned the police. When Gund eventually returned to her unit the appellant was in the process of taking her stereo, television and CDs. The appellant then walked out of the unit and Gund saw that there were police everywhere. The appellant started to run away. Gund spoke to a police officer and the appellant was apprehended and arrested.
A number of other witnesses gave evidence about the incident at the unit. Alicia Lee lived in the unit next to Gund. She saw a broken wine bottle in Gund’s unit on the night of the offence. Lee went inside the unit and she saw a man with blonde hair, about six foot, very thin, and yelling. She saw the person leave the unit not long after. Lee recalled seeing a smashed wine bottle in the kitchen which she cleaned up. In the early hours of Sunday morning she heard yelling outside the front of Gund’s unit. That was at the time when Bayly was assaulted.
As to the assault which occurred in the street near the telephone box, the prosecution called James Dodd who gave evidence that in the early hours of the morning of Sunday, 1 July 2001, he heard someone running across the front porch of his house which is on Marlborough Terrace. He heard shouting and someone say, “You’ve got fifteen minutes”. Dodd then heard what sounded like a bottle smashing.
As to the second count, Peter Parsons and his fiancé, Jacinta Green, lived next door to Gund. At about 12.15 am on the Sunday morning, Parsons heard a male voice that said, “You better pay up”. Green did not hear this but she described hearing a male say, “I’m going to get you”. Green also said she looked out of her front door and saw a car turn at the end of Gund’s driveway. She described the car as a light brown Magna sedan.
On 22 October 2001 Bayly was shown a number of photographs by police. He was asked to identify the person who had assaulted him. Bayly identified the appellant. A similar exercise was conducted with Gund. She picked the photo of the appellant and told the police officer, “I think No. 5 [the appellant] looks similar, but I am not sure”.
DNA Evidence and Stains
Some time after his arrest the appellant’s shoes were seized. Bloodlike staining was located on the soles and sides of the shoes. A bloodlike stain was also located on the top of the left shoe. Two samples were taken from both shoes and were tested using DNA technology. The DNA profile of the two stains from the shoes matched the DNA profile of the victim. The evidence of the expert, which was unchallenged, was that the chance of another person unrelated to the victim having the same DNA profile was in the order of less than 1 in 40 million.
A forensic scientist, Catherine Both, gave evidence about the manner in which blood could be transferred. She did not examine the shoes and could not give any detailed evidence about the position of the bloodstains on the shoes.
The Defence Case
The appellant did not give evidence or call witnesses at the trial.
As to the first count, counsel for the appellant suggested to the jury that it was a reasonable possibility that Bayly had stepped on some broken glass that had previously been shattered.
As to the second count, the defence challenged the evidence of identification. Defence counsel argued that it was reasonably possible that the bloodstains could have got on to the shoes the following day when the appellant came to the unit shortly before his arrest. Counsel for the prosecution submitted that by that day the blood found in the unit would have dried and in any event blood located on the top of the shoe was as a result of blood splashing at the time of the attack. He submitted that by the following day the blood on the street and around the unit would have dried and it was therefore highly unlikely that it would have got on to the shoes on that day.
The Appeal
Ground 1
The appellant complains that the learned trial judge should have warned the jury that they should approach the evidence of Gund with great caution. The evidence of Bayly was that after the two of them returned to Gund’s unit from the wedding, Gund injected herself with some of the speed that she had obtained from the appellant. In cross-examination Bayly was asked (at page 82):
“Q       And you came back.
A      To the house, to the unit.
Q      And she tried some of the speed.
A      Yes.
Q      How much.
AI don’t know, she went and did all that herself, probably a point, two points.
QHow did she take it.
AShe injected it.
QWhat happened when she injected it.
AShe said it wasn’t that good. So -
QWhat happened to her, did she go off the planet.
ANo.
QAren’t they the words you used in your statement to the police; that when Michelle Gund injected it, she was ‘off the planet’.
AShe was already off the planet, I didn’t say she was off the planet from when she had that stuff.
QShe was already off it.
AShe already had heaps that day. She was off the planet already. I didn’t say in my statement that.
QSo when you said in your statement she was ‘off the planet’, that was from the day’s use.
AYes, she was off the planet generally, like, just from what she’d had before, yes.”
Gund agreed that she had been taking drugs. When she was asked about her condition, she said she was feeling affected by the drugs that she had injected earlier on. She agreed in cross-examination that at the time that the stabbing took place, she was distressed, emotional and under the influence of drugs.
In his summing up, the trial judge made no reference to the evidence about Gund’s consumption of drugs. In my view, the trial judge should have reminded the jury about that evidence when he dealt with the identification evidence. I will come to that in more detail later in these reasons when I discuss the trial judge’s directions about identification.
As to the submission that a formal warning should have been given to the jury that they should approach the evidence of Gund with caution, Mr Cuthbertson, for the appellant, relied upon the decision of the High Court in Bromley v The Queen.[1] In that case the appellants were convicted of murder. The prosecution called an eye witness who was present when the appellants assaulted the victim. The witness described the attack by the appellants upon the victim. It transpired that the witness was a schizophrenic and on the night in question, at a time after the alleged murder, he had an episode of schizophrenia and was admitted to a mental hospital. It was argued that the fact that he was a schizophrenic made his evidence so inherently unreliable that the trial judge should have directed the jury that it would be dangerous for them to act upon this evidence unless it was corroborated.
[1] (1986) 161 CLR 315
In Bromley, Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed, held that witnesses who may have a mental illness do not fall into a category in which a judge is under a duty to warn the jury that it would be dangerous to convict on the uncorroborated evidence of that witness.[2] His Honour referred to a decision of the House of Lords in Reg. v Spencer[3] in which the prosecution case relied wholly on the uncorroborated evidence of a number of patients in a secure hospital, each of whom had a criminal record and suffered from a mental disorder. The House of Lords concluded that the extent to which a trial judge should warn a jury of the dangers of convicting on evidence which does not fall into the established categories where a corroboration warning is required will depend on the facts of each case. Gibbs CJ agreed that no new category of case should be created where a corroboration warning was required. Gibbs CJ said:
“What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the forewarning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is, ‘Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?’ There is nothing formal or technical about this rule.”[4]
[2] Ibid at 319
[3] [1986] A.C. 128
[4] Ibid at 319
The trial judge did not caution or warn the jury about Gund’s evidence and in particular he made no reference to her being under the influence of drugs when she was confronted by the appellant at her unit or at the time when she observed the appellant attacking Bayly. There was no requirement to do so. The jury had an opportunity to observe Gund. The jury had been directed that it was their duty to determine the facts and that they should make an assessment of the witnesses and determine what evidence they were prepared to rely upon, having seen and heard the witnesses. In his address to the jury, counsel for the appellant made specific reference to Gund being under the influence of drugs. Although it might have been desirable to remind the jury about Gund’s drug taking, I do not consider that this was a case where a specific direction or special warning about Gund’s evidence was required.
I reject this ground of appeal.
Ground 2
The appellant contends that the trial judge ought to have given a “suspect witness” direction in relation to the witnesses Gund and Bayly as self admitted drug users and traders in drugs who may have their own interests to serve.
Mr Cuthbertson for the appellant submitted that the trial judge should have directed the jury that they should proceed with caution when considering the evidence of both Gund and Bayly who were self admitted drug users and traders in drugs.
A trial judge has an obligation to advise a jury to proceed with caution in a case where the principal witness for the prosecution can reasonably be suggested to have some purpose of their own to serve in giving false evidence. Certainly a caution should be given in cases where there is material to suggest that a witness’s evidence may be tainted by an improper motive. There is no requirement to give a warning similar to an accomplice warning in those circumstances.[5]
[5] See R v Kilbourne [1973] AC 729 at 740; R v Rigney (1975) 12 SASR 30 at 37;The Queen v James (1983) 36 SASR 215 at 217, 260; R v Collie (1991) 56 SASR 302 at 312; R v Carabott (2002) 83 SASR 293 at 296
I do not consider that the evidence of Gund and Bayly fell into any category where a caution needed to be given. Both Gund and Bayly admitted that they were users and dealers in prohibited drugs, but there was nothing in their evidence or in the circumstances of the case which would suggest that they had any interest of their own to serve in giving evidence against the appellant. Bayly had been assaulted and stabbed. There was no suggestion of an ongoing dispute with the appellant or that Bayly and Gund were assisting police or giving evidence to avoid prosecution of themselves. There was nothing in the case to suggest that they had their own interests to serve. The jury were aware of the fact that their relationship with the appellant involved trading in drugs. The jury were entitled to have regard to their general character in assessing their credibility and reliability. On the other hand there was nothing about the circumstances of their evidence which called for any special caution or warning.
This ground of appeal must fail.
Ground 3
The appellant complains that the trial judge failed to correctly direct the jury in relation to identification evidence and, in particular, he failed to adequately warn the jury of the dangers or risks of identification evidence and the reasons for such a warning. He complains that the trial judge failed to adequately warn the jury in relation to the evidence before them. He further complains that the trial judge failed to remind the jury of the evidence of previous inconsistent statements made by Bayly and of his inability to make an identification and to direct them about the relevance of that evidence in the trial.

The prosecution case relied significantly upon the identification of the appellant by Bayly. It relied upon the evidence of Gund that the person who came to her unit on the day of the appellant’s arrest was the same person with whom she had dealt in the car park and was the same person who attacked Bayly at her unit later that evening. Both Bayly and Gund were shown a folder of photographs about three months after the incidents. Bayly positively identified the appellant. Gund was inconclusive, but said that the photograph of the appellant looked similar to the person with whom she had dealt and who had attacked Bayly.
The case against the appellant was that the person who visited Gund’s unit and was arrested by police nearby was the same person who had thrown a bottle at Bayly near the telephone box and the same person who attacked and stabbed Bayly at the unit. There was no dispute that the person arrested near the unit on 2 July 2001 was the appellant.
The warnings as to identification evidence have been the subject of much discussion. Depending on the nature of such evidence, trial judges may be required to give the jury a clear warning about the dangers associated with such evidence.[6]
[6] Festa v The Queen (2001) 208 CLR 593; R v Coxon [2002] SASC 165; Domican v R (1991-1992) 173 CLR 555
Where there is evidence which identifies the accused as the person who committed the crime, or from which the jury is asked to conclude that it was the accused who committed the crime and the reliability of that evidence is disputed, a trial judge is required to warn the jury of the dangers associated with such evidence.[7] The extent of the warning will vary according to the circumstances of the case.[8] The warning will remind the jury of mistakes that can occur when witnesses are asked to identify a person who committed the crime. Such factors as the lighting at the time, whether the witness knew or had seen the accused before, the length of time that the witness had to observe the accused, whether the witness was panicking at the time, and other matters which may have distracted the witness are just some of the factors to which the judge might refer. The circumstances of the identification are also relevant. For example, if the identification was made at a line-up and it was some months after the event, the judge should caution the jury about the possibility of error. If the identification was by way of photographic array, then the judge should direct the jury about the deficiencies of such a method of identification.
[7]Domican v R (1991-1992) 173 CLR 555 at 561-562; Festa v The Queen (2001) 208 CLR 593 at 610
[8] Domican v R (1991-1992) 173 CLR 555 at 561-562
There is also evidence which identifies the accused but forms part of the circumstantial evidence upon which the case depends.[9] On occasions, a witness will pick out an accused in a line up, or by some other method, and identify the accused as a person who looks similar to the person who committed the crime.[10] In effect, the witness is saying that the person who is picked out is of a similar height and build, has similar facial characteristics and has similar coloured and length hair and other identifying features as the person who committed the crime. This evidence is circumstantial evidence. It is evidence to which the jury are entitled to have regard when considering whether the prosecution has proved that the accused was the person who committed the crime. In those circumstances it may be necessary for a trial judge to give a warning comparable to that which may be given when there is direct evidence of identification.
[9] Festa v The Queen (2001) 208 CLR 593 at 611 per McHugh
[10] Ibid
In other cases of circumstantial evidence, such a warning may not be necessary. There are occasions where a witness may describe some characteristic or clothing worn by the person who committed the crime, and it is subsequently found that the accused has those similar characteristics. For example, there may be evidence that a person who committed a robbery had one arm, walked with a limp, was wearing blue jeans with a stain on the knee and a red coat. Investigations reveal that the accused has one arm and walks with a limp. At his home is found clothing similar to that described by the witness. In those circumstances, no identification warning would be required and the evidence would be treated as any other circumstantial evidence in the case.
The nature of the warning was also discussed in Domican v The Queen.[11] In their joint judgment, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:
“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 circumstance in the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weakness in the identification evidence’. Reference to counsels’ 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.”[12]
[11] (1991-1992) 173 CLR 555
[12] Ibid at 561-562
In the case of a photographic array, a trial judge must inform the jury that it is a lesser form of the identification process than a line-up and to identify to the jury the disadvantages of the use of photographs. Such disadvantages should include factors such as that a photograph is two-dimensional, that it does not necessarily depict the colour of hair, eyes and skin accurately, and it is usually of the head only.[13]
[13] See Alexander v The Queen (1981) 145 CLR 395 at 409; The Queen v Britten (1988) 51 SASR 567 at 569 and 571
Where a witness identifies the accused as having similar characteristics to the person who committed the crime, the question whether an identification warning is required and the terms of such warning will depend upon the circumstances of each case. The trial judge should identify to the jury what that evidence is and how the jury can use it. Depending upon the nature of the evidence, there may be a requirement for the judge to warn the jury about the dangers of relying on such evidence and to identify to the jury why the warning is given and the weaknesses in the evidence. The warning should be specific and should alert the jury to those matters of significance which may affect the reliability of the evidence.
The trial judge, in summing up to the jury, said:
“Evidence falls into two areas. You have direct evidence of a crime and you have secondary evidence. The direct evidence is someone who says ‘I know the accused. I saw the offence. The accused was the person that committed that offence’; evidence in the nature of [Ms] Bayly.
Often, of course, we haven’t got direct evidence and the authorities are obliged to prove a whole lot of other factual matters, factual circumstances, and say look at the combination of them and look at the sum of them which must mean that the accused committed the offence beyond reasonable doubt. That is called circumstantial evidence and you have no doubt heard about that and been given warnings about how you must treat that particularly if it is the only type of evidence you have in a case.
Here you have both. You have the evidence of Mr Bayly of observing the accused at Bi-Lo, some conversation between Ms Gund and this person at the back of the wreck of the Commodore after they attended the wedding – shortest attendance – where, after ten minutes, they left. Then Bayly getting the phone call, returning, discussion, and then going to the phone box and the incident as outlined to you this morning, put to you by the Crown, occurred. Then, subsequently recognised him, when he was curled up – the accused who acted in the manner he described. Indeed, subsequently, although a few weeks later, identifying the photograph number 5. You will recall that he positively identified that it was Mr Southon that did this act, did both acts. Indeed he was asked - and you will recall those two questions that were put to him – that he didn’t know the man that assaulted him. He said that wasn’t correct, he did. It was certainly put that he made up his mind to implicate Darren. He said ‘No, that is not the position, it was the accused that did both these acts.’
That was supported in some respects by Ms Gund. You will recall her outlining the events of this evening and subsequently returning home after this drug involvement at the Bi-Lo and then the accused coming and obviously angry conversation, the smashing of the bottle, supported by the other lady who saw this, leaving, and then subsequently Josh, coming down to the phone box, coming back, seeing the blood and seeing the pushing by Darren of Josh and of course the events that led on from there. But, again, reiterated that it was Darren, the same person in the car park, and then pointed out that their involvement in drugs on that day but it certainly did not impair her memory it was the accused that was there at Bi-Lo, there at the house that evening, in her unit, there with Mr Bayly on the front porch.”
After the jury had retired, both counsel for the prosecution and defence requested that the trial judge give a warning to the jury about the identification evidence. The judge directed that the jury return and he gave the following additional direction:
“Identification is always a very important issue, identification of an accused. Sometimes, of course it occurs the person has only a momentary glance at an accused person and you can see all the issues where a [courts] says you must go to great lengths and take great care in identifying – in accepting that evidence if it is identification of the accused. You may have had this [this] month in jury service – it can, if it is only a momentary glance at a person and you have to recall that a long time after – so you have to take great care before accepting evidence of identification of an accused. Here of course it could be said that Mr Bayly only saw this man for the first time that night. So you have to obviously take care to concern yourself with his evidence and his evidence about identifying the accused and the evidence that he gave. I know you will.
I did make a mistake when I was talking about the photographic evidence, the photographic array which was produced to the people. I did explain of course the limited use of that because it is only a head shot and nothing more. When you have a look at it, as the Crown said, there are some photographs there that indeed are similar. So you can see the concern with that type of evidence. If it was evidence only standing by itself you may have a concern but here, of course, the Crown say it is coming with other evidence. Where I did go wrong I think is that was not produced to some three and a half months later. I think I rather glibly said a month. 22 October. So that wasn’t produced to well over three months after to these people for their identification or for their perusal. That was the identification Mr Bayly, photograph five, and Ms Gund was uncertain. I apologise. Would you kindly adjourn.”
The evidence of both Bayly and Gund was of the kind that needed careful directions, both as to its nature and how it could be used by the jury. Not only did the evidence of each require a general warning about the danger of relying upon identification evidence, but the jury’s attention should have been drawn to a number of factors. In the case of Bayly, these factors include the fact that Bayly had never met the appellant previously, that when he saw him in the car park at BiLo, Bayly was seated in the back of a vehicle about two car widths away from the position at which the accused spoke to Gund, and Bayly’s view was obstructed by the boot of the car. As to the later incident when the appellant chased Bayly and allegedly threw the bottle, the jury should have been directed to consider the lighting, the amount of time which Bayly had to observe the accused, the distance between the appellant and Bayly and the fact that Bayly was running away from the appellant. As to the identification of the appellant at the unit by Bayly, the jury should have been directed to consider the fact that Bayly had his back to his assailant, that he was curled up in a ball whilst he was being hit and that he did not realise that he had been stabbed. As to the photographic identification some months later, the jury should have been directed about the inherent difficulties of photographic identification, some of which I have mentioned earlier in my reasons.
As to the evidence of Gund, the jury should have been directed to consider the fact that Gund had never seen the appellant prior to meeting him at BiLo supermarket, that at the time that she met him she was involved in an illegal transaction and that she may well have been under the influence of drugs. As to when the appellant came to the unit whilst Bayly was away, the jury should have been directed to have regard to the fact that Gund was under the influence of drugs and that she was distressed by what was occurring. Further, they should have been directed to consider the time during which the appellant and Gund were together and her opportunity to adequately see and identify characteristics of the appellant. As to the identification of the appellant at the time of the assault, the jury should have been directed to have regard to the fact that Gund was panicking and in fear and that she was standing on the other side of a door looking through a window. In respect to Gund’s identification of the appellant the following day, the jury should have had regard to the fact that on the previous day Gund had been under the influence of drugs and they should consider whether she might have assumed that the person who visited her the following day was the same person that she had seen on the day previously. Again, as to the photographic identification, the judge should have directed the jury that Gund had failed to make a positive identification and the direction as to the danger of photographic evidence of identification should have been given.
I consider that the failure of the trial judge to give specific directions and to adequately direct the jury as to identification amounted to a misdirection.
Ground 4
The appellant complains that the trial judge failed to direct the jury adequately in relation to circumstantial evidence and to relate that direction to the evidence in the trial.
In addition to the evidence of Bayly and Gund, there was evidence which was capable of linking the accused to the crime. Some time after his arrest, the accused’s shoes were taken from him and blood-like stains were observed. Samples were taken from shoes. There was an area near the lacing at the top of the shoes which was examined. Analysis of the DNA revealed that Bayly’s DNA profile matched the DNA profile which was present on the accused’s shoes. Further, there was evidence of a diary found in the telephone box. This diary contained both the appellant’s name and Gund’s telephone number. The prosecution submitted that the jury should conclude that it was therefore the appellant’s diary and there was a connection between Gund and the appellant.
The appellant complains that the trial judge failed to direct the jury that in considering the circumstantial evidence the accused could only be found guilty if the only rational inference that could be drawn from the circumstances point to the guilt of the accused.[14]
[14] Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234
The trial judge directed the jury in general terms about circumstantial evidence. He did not direct them that they could only reach a verdict of guilty based upon the circumstantial evidence if there was no other reasonable hypothesis consistent with innocence of the appellant. Further, he did not identify the items of circumstantial evidence.
In Shepherd v The Queen[15] Dawson J, with whom Toohey and Gaudron JJ agreed, discussed circumstantial evidence and the requirement to give a Peacock type direction. Dawson J said:
“Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given.”[16]
[15] (1990) 170 CLR 573
[16] Ibid at 578
The significant item of circumstantial evidence in this case was the DNA on the shoes. The evidence about the diary was weak evidence and, in my view, would have been of limited value to the prosecution case. The other evidence relied upon is the identification evidence. I consider if a Peacock direction had been given, it would have been unnecessarily confusing. This was not a case in which an expanded direction in respect of circumstantial evidence was required. In my opinion, the trial judge was correct in not giving such a direction.
As to the failure of the trial judge to identify the circumstantial evidence, it may have been desirable to identify the circumstantial evidence relied upon with greater clarity and to direct the jury as to the use that could be made of it. However, the trial judge dealt with DNA evidence and told the jury that they must consider when and how it came to be on the shoes. He directed the jury in clear terms that they cannot convict unless the prosecution has proved its case beyond reasonable doubt. In my view, the directions on circumstantial evidence were adequate.
This ground of appeal must fail.
Ground 5
The appellant complains that the trial judge erred in his direction of the standard of proof in respect of the specific intention required for the offence of wounding with intent to do grievous bodily harm. The trial judge directed the jury, in general terms, that the Crown has to establish the guilt of the accused and that the prosecution must prove their case to the satisfaction of the jury beyond reasonable doubt. He told the jury that the accused carries no onus of proof. When dealing with the charge of wounding with intent to do grievous bodily harm, the trial judge said:
“The second charge is wounding with intent to do grievous bodily harm and you can see the elements coming through there. As I say, each one the Crown has to prove to your satisfaction beyond reasonable doubt.”
The trial judge then dealt with the elements of the offence. Later he said:
“But as has been pointed out to you, you have the right, if you felt there was no intention to cause grievous bodily harm, you have the right to bring in a verdict, a lesser verdict of unlawful wounding on that charge.
Indeed, when you come back, for instance, if you would as the defence here has been put to you that it wasn’t the accused who did this act, if you accepted that, you would naturally find the appellant not guilty and on that count you would then be asked, “Do you find the accused guilty of unlawful wounding”. If it was your view that it wasn’t him that was there, you would say, “not guilty” or if it was your view that he was there and there was no intention to cause that grievous bodily harm, he would then be guilty of unlawful wounding.”

Mr Cuthbertson for the appellant submitted that in that passage the effect of the judge’s direction was to reverse the onus of proof by suggesting to the jury that they must make a positive finding. I do not agree with that submission. The trial judge made it clear in his summing up that the onus of proof was on the prosecution in respect of each and every element of the charge. I do not consider that the jury could have been left in any doubt that the onus lay on the prosecution to prove the case.
In my view, this ground of appeal fails.
Ground 6
The appellant complains that the trial judge erred in failing to adequately sum up the case for the prosecution and the case for the defence.
The appellant did not give evidence. The trial judge referred the jury to the evidence. He made reference to the arguments of defence counsel and the jury could have been left in no doubt that the defence case, in so far as the defence presented any case, was that the prosecution had failed to prove beyond reasonable doubt that the accused committed the crime.
In my view, this ground of appeal fails.
The application of the proviso
Having regard to the misdirection relating to identification, the question arises whether this Court should apply the proviso in s 353(1) of the Criminal Law Consolidation Act 1935.
The application of the proviso requires the appellate court to examine the error having regard to the evidence in the trial.[17] The question for the court is whether, despite the error, it can be concluded that there is no real possibility that the error had affected the outcome. If the answer is in the affirmative, then the proviso will apply and the conviction will not be disturbed.[18] The application of the proviso was discussed in Conway v The Queen.[19] Normally once a substantial error is identified, a new trial will be ordered unless it could not reasonably be supposed that the error or wrong had influenced the result.
[17] Heron v R (2003) 197 ALR 81 per Kirby J at 92
[18] Ibid
[19] (2001) 209 CLR 203
The evidence of Bayly and Gund as to the identification of the appellant was crucial evidence in the case. Although the other circumstantial evidence, in particular the DNA evidence was strong, in my view it is not possible to conclude that a conviction of the appellant was inevitable.[20] One of the arguments advanced by counsel for the appellant in respect of the DNA evidence was that blood containing the DNA could have found its way on to the appellant’s shoes when he attended Gund’s unit on 2 July on the day of his arrest. Although Ms Both, the forensic scientist, was of the view that this was unlikely, it is not possible to conclude that the jury would have convicted on the DNA evidence alone. It is not possible to know with any certainty what weight the jury gave to the identification evidence and what weight it gave to the DNA evidence. In my view, there is no way of knowing with certainty if the judge had warned the jury, in the manner outlined earlier, whether that warning would have influenced the jury’s deliberations.[21]
[20] Festa v The Queen (2001) 208 CLR 593 at 655
[21] Domican v The Queen (1991-1992) 173 CLR 555 at 566
In my view, in this case it is not possible to conclude that despite the error, conviction was inevitable or that the error would not have influenced the result.
I would allow the appeal and order a retrial.

[2003] SASC 205

1 July 2003