R v White - [2008] SASC 265

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHITE
[2008] SASC 265
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
3 October 2008
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - DIRECTION TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Appellant convicted by verdicts of jury of one count of aggravated serious criminal trespass and one count of aggravated robbery - one ground of appeal that trial judge failed to correctly and adequately direct jury on issue of recognition - five sub-grounds - another ground that convictions unreasonable or cannot be supported having regard to evidence.
Held: Appeal dismissed.
(Per Duggan, Vanstone and David JJ): Trial judge correctly and adequately directed jury as to issue of recognition.
(Per Duggan, Vanstone and David JJ): Jury's verdict could not be considered unreasonable or not supported by evidence.
(Per Duggan Vanstone and David JJ): As to ground 1.5, Domican does not support proposition that if evidence of identification is fit to be left to jury, the correct approach is for jury to assess that evidence without considering other evidence.
(Per Duggan J): As to ground 1.5, once recognition evidence properly admitted and appropriate warning given, open to jury to consider it in conjunction with other evidence - prosecutor did no more than invite jury to consider recognition evidence in conjunction with other evidence in case - prosecutor's remarks would not have resulted in jury using other evidence to overcome any perceived defects in recognition evidence.
(Vanstone and David JJ): As to ground 1.5, warning as to recognition evidence must be given by trial judge, but once given, it would be illogical and artificial for trial judge to instruct jury to assign recognition evidence weighting before introducing it to remainder of evidence.
Criminal Law Consolidation Act 1935 (SA) s 137(2), s 170(2), referred to.
Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; R v Burchielli [1981] VR 611, applied.
R v Turner (2000) 76 SASR 163, distinguished.
R v Bennett & Ors (2004) 88 SASR 6; R v Coxon (2002) 82 SASR 412, discussed.

R v WHITE
[2008] SASC 265
Court of Criminal Appeal: Duggan, Vanstone and David JJ

DUGGAN J: I agree that this appeal should be dismissed for the reasons prepared by David J.
I add these remarks on the complaint raised in ground 1.5 of the grounds of appeal.
In the passage from the prosecutor’s closing address which is set out in the judgment of David J the prosecutor made the point that there was other incriminating evidence in the case in addition to the claimed recognition of the appellant by the victim. He referred to the fact that the person involved in the robbery had “intimate inside knowledge” and that the additional independent evidence was strong enough to “bolster” the recognition evidence.
According to the argument it was necessary for the jury to consider the reliability of the recognition evidence in isolation and without regard to the circumstantial evidence in the case. It was submitted that the comments by the prosecutor would have encouraged the jury to use the circumstantial evidence to improve in some way the quality of the recognition evidence. It was argued that the prosecutor’s suggested approach should have been corrected by the trial judge.
In recent years there has been controversy in this State as to the proposition inherent in the appellant’s submission.
R v Bennett[1] is the latest in a series of cases which have touched on the issue. In that case Doyle CJ left the matter open. He said:[2]
There is no reason to doubt that, ultimately, the jury must consider any identification evidence along with the other evidence in the case, in deciding whether they are satisfied beyond reasonable doubt that the accused is guilty. The question is whether before doing so the jury should first consider the reliability of the identification evidence in isolation. If they do not, identification evidence that is unreliable might be put into the scales by the jury because it is supported by other evidence pointing to guilt. It might be said that if that happens, the purpose of the warning about identification evidence is undermined. On the other hand, it might be said that if the identification evidence is supported by other evidence pointing to guilt, it is appropriate to take that matter into account in deciding whether to act on the identification evidence.
Although the court heard submissions on the point, we did not hear full argument on the point. Some of the cases referred to by Gray J were not referred to in argument. Although, as I have said, the decision in Goode is authority for the approach taken by Gray J, differing views have subsequently been expressed in this Court and the law relating to identification evidence has developed somewhat since the decision in Goode.
I have come to the conclusion that it is better not to express a final view on this point, without the benefit of full submissions, and accordingly I refrain from doing so.
[1] (2004) 88 SASR 6
[2] Ibid at [80]
Perry J said:[3]
I agree with Doyle CJ that there may be some differences of opinion expressed in the authorities decided in this Court on the question whether the reliability of positive evidence of identification should first be considered by the jury in isolation from other evidence in the case. While I refrain from expressing a concluded view on the matter, in my opinion, the relevant principles should be as follows:
(a)     In determining the adequacy of the warning, one has regard only to evidence relating to the circumstances of the identification, not to any other evidence in the case.
(b)     The jury must be directed that in determining whether they accept evidence of positive identification, whether direct or circumstantial, they must have regard only to the evidence relating to the identification.
(c)     Points (a) and (b) do not apply to what the Chief Justice describes as similarity evidence.
(d)     If the jury is not satisfied beyond reasonable doubt of the accuracy of the evidence of positive identification, it must be disregarded for all purposes in the case. It cannot be put into the scales in some reduced form in determining whether or not the charge is made out.
(e)     Point (d) is subject to the qualification that where evidence of positive identification includes similarity evidence relating to a tangible item, or distinguishing characteristic, for example, an item of clothing or something carried or use of a vehicle fitting the description of a vehicle used in the crime, the colour of hair or the like, and the jury, while not satisfied that the evidence amounts to positive identification, if satisfied beyond reasonable doubt of the evidence relating to the existence of any such item, or distinguishing characteristic, may use it as part of the body of circumstantial evidence.
(f)    Once evidence of positive identification of either kind is accepted by the jury it should then be taken into account in the general body of evidence in the case in determining whether the charge is made out.
[3] Ibid at [102]
Gray J concluded:[4]
In accordance with the views earlier identified in Goode, Turnbull, Davies and Cody, Domican, Festa, Murphy and Coxon, the jury were entitled to assess the probative value of Mr Sprague's evidence in the context of the evidence as a whole. No miscarriage of justice could have arisen as a result of the judge's summing up on the topic of identification. Had the judge correctly characterised Mr Sprague's evidence as direct, no further warning would have been necessary.
[4] (2004) 88 SASR 6 at [131]
Counsel for the appellant referred to R v Turner.[5] In that case Mullighan J quoted a passage from Domican v The Queen[6] which included the following observation:
As the learned Acting Chief Justice pointed out, the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case (R v Domican (No 3) (1990) 46 A Crim R 428 at 446; R v Dickson at 230; R v Allen at 444-445). But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification — not by reference to other evidence which implicates the accused.
[5] (2000) 76 SASR 163
[6] (1992) 173 CLR 555
Mullighan J was of the view that Domican’s case supported the proposition that, if there is evidence of identification fit to be left to the jury, the correct approach is for the jury to assess that evidence without considering the other evidence in the case.[7]
[7] (2000) 76 SASR 163 at 183
Whether or not the approach suggested by Mullighan J is correct, it is my respectful view that the joint judgment in Domican was addressing a different question, namely, the adequacy of the caution. Their Honours said that the other evidence in the case is not to be taken into account in evaluating the caution.
The argument on this issue in the present case was quite limited. However, I do not think that the circumstances give rise to a consideration of the issue referred to in the passages quoted from Bennett. In my view, the prosecutor was doing no more than inviting the jury to consider the recognition evidence in conjunction with the other evidence in the case. Once identification or recognition evidence is properly admitted and an appropriate warning given in relation to it, it is open to the jury to consider it in conjunction with additional evidence arising from the circumstances of the case.[8]
[8] Festa v The Queen (2001) 208 CLR 593 per Kirby J at [164]; R v Bennett (2004) 88 SASR 6 per Doyle CJ at [80]; per Perry J at [102]; per Gray J at [122]-[129]; R v Coxon (2002) 82 SASR 412 per Gray J at [85]
I do not accept that the prosecutor’s remarks would have resulted in the jury using the circumstantial evidence to overcome any perceived defects in the recognition evidence or to improve its quality. Furthermore, the evidence of recognition was quite strong. The appellant had visited the victim’s home on a number of occasions. She deposed to identifying him as soon as she saw his face. The evidence that the appellant was familiar with both the premises and the victim was of some weight, but its probative value was limited. The case rested almost entirely on the recognition evidence. The directions to the jury on that evidence, including the warning given by the trial judge, were quite adequate.
In my view, the prosecutor’s remarks could not have resulted in the jury adopting an incorrect process of reasoning.
VANSTONE J: I agree with the other members of the court that this appeal should be dismissed. I agree generally with the reasons of David J for so finding, but in respect of the ground referred to as 1.5, I prefer to express my own reasons.
In his final address, counsel for the prosecution suggested that in considering the victim’s identification of the appellant as one of the offenders, the jury should have regard to what he called other “independent pieces of evidence” supporting it. Ground 1.5 suggests that such a submission invited impermissible reasoning and should have been the subject of correction by the trial judge.
In support of this contention the appellant relied on a passage in the judgment of Mullighan J in R v Turner (2000) 76 SASR 163 at 183. There, Mullighan J cited a passage in Domican v The Queen (1992) 173 CLR 555 at 565 as support for his position that when a jury had before it evidence of identification, it must “reach a conclusion about that evidence without considering the other evidence in the case”.
In Turner’s case there was a question as to whether or not the victim of the robbery had identified the appellant in a police line-up. Although all members of the Court of Criminal Appeal agreed that the appeal should be allowed, the reasons of Doyle CJ demonstrate that his decision turned on the failure of the trial judge to bring home to the jury that there was a real issue as to whether or not the victim had identified the appellant. Similarly, Perry J, in his reasons, emphasised the necessity of evaluating the evidence going to show there was an identification at all. My reading of the case is that the passage in the reasons of Mullighan J, now relied on by the appellant, was neither part of the ratio decidendi of the case, nor subscribed to by Doyle CJ and Perry J. In any event, the expressed opinion of Mullighan J was, after all, merely an interpretation of a passage in the reasons of the High Court in Domican.
As Duggan J observes, some controversy about this point followed the delivery of the Turner decision. However, in my view, no controversy remains. I agree with the views expressed by Prior J in R v Coxon (2002) 82 SASR 412 at 419 and Gray J in R v Bennett & Ors (2004) 88 SASR 6 at 28-32 to the effect that the statement of Mullighan J in Turner – as it has been interpreted – reflected a misapplication of the passage in Domican. Gray J cited several authorities in support of his statement of the true position.
I consider that it is one thing to warn a jury about aspects of a body of evidence presented to it. That is done with reference not only to identification or recognition evidence, but also to some other categories of evidence, such as accomplice evidence. It would be quite another thing to instruct a jury to evaluate the identification evidence in isolation and then to, in effect, assign it some sort of weighting, before introducing it to the remainder of the evidence in the case. Not only would a jury find it difficult to reach a corporate view about its evidentiary value, but to ask it to do so would be invading its territory. Moreover, the artificiality of such a process is obvious.
I recognise that in R v Bennett & Ors (2004) 88 SASR 6, Doyle CJ at 19-20 and Perry J at 22-23, in separate reasons, declined to express a concluded view on this issue. In my view it is preferable to be clear about it for the benefit of the trial judges who, on a regular basis, direct juries about identification or recognition evidence. As I read the reasons of David J, we are in agreement as to this matter.
DAVID J:
Introduction
This is an appeal against conviction.
The appellant was convicted by verdicts of a jury of one count of aggravated serious criminal trespass, which is an offence pursuant to s 170(2) of the Criminal Law Consolidation Act 1935 (SA) and one count of aggravated robbery, which is an offence pursuant to s 137(2) of the Criminal Law Consolidation Act. He was jointly charged with Mr Michael Loe, who was also convicted of both offences, but his convictions are not the subject of this appeal.
Both offences took place on one occasion at the home of the victim (whom I will refer to as “V”) on 6 August 2004. It was alleged that after forcing their entry into V’s premises and assaulting her, the appellant and Mr Loe took a significant amount of money from one of the bedrooms in the home.
The case against the appellant as presented at trial was based on V’s recognition of him as a person she knew. The case against Mr Loe was based on a fingerprint, which was found on a folder left by the two assailants.
This appeal primarily concerns the directions the trial judge gave to the jury about recognition and identification evidence. There is also an overarching complaint that the verdicts of the jury were unsafe and unsatisfactory.
Background
V gave evidence that on 6 August 2004 she was living at Smithfield Plains with her husband and daughter. At that time she was suffering from a number of illnesses, for which since 1994 she had been on medication including Panadeine Forte, morphine injections, muscle relaxants and morphine tablets. She gave evidence that she had undergone several operations to her stomach and was still suffering from a condition whereby she has small, undetected strokes.
V gave evidence that on the day of the offences she was in bed watching a midday movie when there was a knock at the door. She was home alone at that time. She got out of bed, went to the door and saw a man standing there. On the prosecution case, that man was Mr Loe. She said she had never seen this person before. He was holding a red folder and told her he was doing a survey. She became suspicious and tried to shut her flyscreen door, but he wedged his foot in between the door and the frame and yelled out “Now”. A hood in the nature of a calico bag was then placed over her head before she was pushed inside and dragged down to her knees. She said she was mumbling, crying and struggling under the hood. She was told to “shut up” and thrown to the ground with a knee placed in her back as the hood was secured. She said she was being slapped and punched to the head.
V said she heard two people speaking. After some time, one of the assailants said she could sit on the lounge. Having got to her feet, V used the opportunity to lift the hood to her forehead. When she did that, she was looking directly into the face of one of the assailants, whom she recognised as the appellant. She said she had met the appellant quite a few times through her daughter’s fiancé. Her examination‑in‑chief regarding their meetings went as follows:
Q.Could you describe the circumstances of your first meeting with [the appellant].
A.I think it was New Years.
Q.When you say “New Years” what are you referring to.
...
A.Near Christmas, Christmas time.
Q.Do you know what year it was.
A.No.
Q.What happened.
A.He just came around and we had a pool table at the time and he used to shoot pool with my husband and [my daughter and her fiancée] and my other children.
Q.On that occasion how long did [the appellant] stay at your house for.
A.He stayed two, three hours, sometimes not very long.
Q.Did you speak with him.
A.Yes.
Q.How long did you speak with him for.
A.I’d speak to him, you know, general occasional talk, you know.
Q.Did you see [the appellant] on any other occasions.
A.No.
Q.How many times had you met [the appellant].
A.Quite a few times. I couldn’t say how many. He was always with [my daughter and her fiancé].
Q.Are you able to recall any specific details about other times that you met [the appellant].
...
A.Not really, no. Because most of the time I was sick in bed.
Q.Was there any way you could perhaps indicate to the jury how many times it was that you met [the appellant]. Can you limit it down any further than you have.
A.Yes, I’d say about six or seven times.
Q.Although you might not be able to recall exactly what happened when you met him, do you recall how long you spent with him on those occasions.
A.Not very long, about half an hour.
...
Q.Do you recall if you spoke with him at all on those occasions.
A.Yes.
Having lifted the hood up to her forehead, she said she had a clear, well‑lit view of the appellant. She was asked to describe the appellant as she saw him at that time, starting with his height:
A.Like my husband, he’s short.
Q.What was his build.
A.On the chubby side.
Q.Did you make any observations in relation to his age.
A20s, 30s.
Q.What about his hair, did you make any observations as to that.
A.Always had a crew cut and a little bit spiked at the top (INDICATES).
Q.What colour was it.
A.A blonde colour, browny.
Q.You mentioned some glasses before.
A.Yes.
Q.What type of glasses were they.
A.Reading glasses - well, everyday glasses.
...
Q.You stated that you recognised [the appellant], can you see that person in court today.
A.Yes.
Q.Can you indicate that person to the members of the jury.
WITNESS INDICATES [THE APPELLANT].
She said that upon seeing the appellant, she called him by his first name and asked “why are you doing this to me?”. He did not respond. She turned around and ran to a neighbour’s place, from where she called the police.

After the police arrived, she went back into her house and identified a folder which was the same as the one she had seen the man holding at the front door. On her return she also noticed that the bedroom was in a complete mess. Drawers had been turned out and a money tin, which before the incident contained between $600 and $700, had been emptied. She also discovered that her purse had been emptied which, prior to the robbery, had contained $160.
In cross‑examination, it was put by counsel for the appellant that she was mistaken about her recognition of the appellant as one of the assailants. There was never any suggestion that the offences did not occur, rather the issue was whether it was, in fact, the appellant who was involved. I will refer to relevant parts of V’s cross‑examination when I deal with the grounds of appeal.
The prosecutor also called V’s daughter and her daughter’s fiancée. Both gave evidence that the appellant was a friend of V’s daughter’s fiancée. V’s daughter gave evidence that the appellant went to her mother’s house a few times and had been there on New Year’s Eve in 2003. V’s daughter’s fiancée gave evidence that he had first met the appellant in 1999. He said that the appellant had met his fiancée and her parents. He gave evidence that the appellant had been to his fiancée’s parents’ Smithfield Plains premises a “... fair few times, I don’t know, 10 to 15, I’m pretty sure”. He also gave evidence that V would sometimes talk about money in front of the appellant, and on one particular occasion she brought out a tin full of change. After the robbery he said he confronted the appellant and accused him of being responsible, which the appellant denied.
V’s husband was also called. He gave evidence that he would put money in a drawer in his bedside table, and as of 6 August 2004 there was about $4,600‑$4,700. He was not at home at the time of the robbery, but when he returned, the money from the drawer, and a set of watches, were both missing. Like V, after the robbery, he also noticed that there was a screwdriver which did not belong to him in the bedroom. He gave evidence that he knew the appellant as a friend of his daughter’s fiancée. He said he had met him about six times.
The appellant was interviewed by the police, but exercised his right not to answer any questions. At trial, the appellant elected not to give evidence.
Evidence was called in relation to Mr Loe. A fingerprint, which matched Mr Loe’s fingerprint, was found on the red folder which was left behind. V did not identify Mr Loe, and the prosecution case relied upon that fingerprint evidence. Mr Loe gave evidence denying he was at the house on the day of the offending, but saying he had been there sometime earlier to buy a drug off V, and in so doing, gave her the folder, which she threw at him. He said that accounted for the folder being present at the house and his fingerprint being on it. The jury heard evidence from V denying his earlier presence at her home.
Grounds of Appeal
Ground 1
1.The learned trial judge erred by failing to correctly and adequately direct the jury on the issue of identification/recognition.
1.1     The learned trial judge gave directions which effectively reversed the onus of proof.
1.2     The learned trial judge invited the jury to place reliance upon evidence which was not probative.
1.3     The learned trial judge failed to adequately direct upon the matters of concern and inconsistencies in the evidence of identification/recognition.
1.4     The trial judge failed to give directions on identification in the required form.
1.5     The trial judge failed to correct a request by the prosecutor to rely upon circumstantial evidence in conjunction with that of identification in an impermissible fashion.
It is to be noted that the prosecution concedes that the strict directions required in cases of identification are also required in cases of recognition. For the purposes of my judgement, I will refer to the issue as one of recognition.
Ground 1.1
1.1 The learned trial judge gave directions which effectively reversed the onus of proof.
During the course of his summing up the trial judge said, “What you need to consider is whether [V] could have been mistaken”. Mr Anders, counsel for the appellant, argues that this direction reversed the onus of proof and cast some onus upon the appellant to establish that V could have been mistaken. At the end of the summing up, counsel for the appellant at trial made the same submission and sought a redirection. The trial judge brought the jury back and said to them:
Ladies and gentlemen, there are two quick matters which I would like to raise.
[The judge dealt with matters in relation to Mr Loe.]
The second point relates to [the appellant] on the question of identification. I suggested that you need to consider whether [V] was mistaken in her recognition of [the appellant]. Perhaps the correct way of putting that is that the onus rests with the Crown and the question is whether the Crown has proved beyond reasonable doubt that the person whom [V] claims to have recognised to be [the appellant] was in fact [the appellant]. Has the Crown proved that element of its case beyond reasonable doubt?
Mr Anders argues that the further direction was insufficient to cure the original direction which he says had the effect of reversing the onus of proof.
I disagree. In my view, even if there was no redirection, the trial judge, viewing his summing up as a whole, made it perfectly clear to the jury that all of the elements of the offences, including identity, had to be proved by the prosecution beyond reasonable doubt. There are numerous references to it in his summing up.[9] When using the above words, all the trial judge was doing was again emphasising the key issue in the trial, namely, the accuracy of V’s recognition. All references to the onus, including that in the redirection, make clear that the onus of proving accurate recognition was upon the prosecution.
Ground 1.2
1.2 The learned trial judge invited the jury to place reliance upon evidence which was not probative.
[9] R v White & Loe, DCCRM-05-96, Summing Up, Judge Clayton, 2 April 2008, pp 2, 5, 9, 15, 19.
When summarising the prosecution case, the trial judge said:
The prosecutor referred to the evidence that [the appellant] had been at the premises previously and submitted that you might think that there is little doubt that [V] knew [the appellant]. The prosecutor said she was quite sure of her identification. In fact, you may recall that she said that she would swear on her grandchildren’s grave it was [the appellant]. She said it was definitely [the appellant].
Mr Anders argues that the trial judge should not have pointed this out to the jury or allowed the prosecution to place reliance upon that passage of evidence, because it was inflammatory and of limited assistance. As I understand his argument, such evidence cannot cure the uncertainty of the recognition evidence, because no matter how adamant V was, she may nevertheless have been mistaken. However, this evidence about which Mr Anders expresses concern was elicited through cross‑examination in response to proper persistent suggestions that V was mistaken. I set out the relevant passage:
Q.You say that [the appellant], you saw him in your house.
A.Yes.
Q.And I’m saying you are mistaken about that.
A.No, it was definitely [the appellant].
Q.And you’re absolutely deadset 100% certain.
A.I would swear on my grandchildren’s life it was [the appellant].
In her own way, the witness was saying how certain she was of her recognition of the appellant. She was entitled to express her level of certainty. Provided the trial judge gave the appropriate directions about the dangers of the recognition evidence, which he earlier did, there could be no unfairness to the appellant.
Ground 1.3
1.3 The learned trial judge failed to adequately direct upon the matters of concern and inconsistencies in the evidence of identification/recognition.
Mr Anders argues that pursuant to the High Court’s decision in Domican v The Queen[10] a trial judge is required to alert the jury to any material discrepancies between the description a witness gives of an accused to police and the actual description of an accused.[11] In particular, he argues that V told the police the appellant was six feet tall, whereas in fact, he is much shorter than that. In cross‑examination V was asked the following questions:
[10] Domican v The Queen (1992) 173 CLR 555.
[11] See also R v Burchielli [1981] VR 611.
Q.Did you tell the police that the person who you described as [the appellant] was about six feet tall.
A.No.
…
Q.Page 3 of your statement of 26 November 2004. Did you say to police “[The appellant] is aged in his 20s, about six feet tall”.
A.No.
…
Q.Did you say in that statement that “he was in his 20s, about six feet tall”.
A.I could have, it’s there, I must have.
…
HIS HONOUR
Q.The question was, what did you tell the police.
...
A.Yes, I just said that he was short.
XXN
Q.Did you pick up that mistake when you read your statement.
A.I think I could have, yes.
Q.Did you say something about it.
A.I think I was thinking of the person at the door at the time.
In his summing up, the trial judge said to the jury:
[V] told the police that [the appellant] was six feet tall. That statement was not accurate …
As can be seen, the discrepancy between V’s description of the appellant to police and his actual description was brought to the attention of the jury. It was then a matter for it to consider in assessing the accuracy of V’ recognition.
Ground 1.4
1.4 The trial judge failed to give directions on identification in the required form.
As I understand Mr Anders’ argument, it is that the directions as to particular weaknesses in the recognition evidence required by Domican v The Queen,[12] where not given in a form which attributed them the trial judge’s authority. Mr Anders relies upon the following passage from the majority judgment in Domican v The Queen[13] which states:[14]
[12] Domican v The Queen (1992) 173 CLR 555.
[13] Ibid.
[14] Ibid 561‑562, 564.
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.
…
However, as we have already pointed out, mere repetition of counsel’s arguments is an insufficient discharge of the trial judge’s duty to draw the jury’s attention to any weaknesses in the identification evidence. If the matters to which counsel has referred may reasonably be regarded as undermining the reliability of the identification evidence, the trial judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on that evidence. Consequently, the learned trial judge’s directions on the issue of identification were not adequate and constituted a misdirection. [Footnotes omitted.]
Mr Anders argues that the trial judge’s summing up to the jury in this case fell far short of that form requirement. I set out the trial judge’s directions:
It is customary to warn juries that they should approach evidence of identification with caution. The experience of the courts is that honest witnesses can be mistaken in making an identification and that miscarriages of justice have occurred as a result. Witnesses can be mistaken even though quite sure of the identifications. A mistaken witness who is sure of her identification can be a convincing witness. And acceptance of that evidence can lead the jury into error.
The ability to form and retain an accurate impression of the culprit, including his physical appearance and features, his dress and any other distinctive features may be affected by many factors, including the witness’s involvement in the incident, her state of mind at the time of the observation, as well as the frailty of human observation and memory and a tendency to reconstruct events in the mind.
In this case, the accused has raised other matters which may have affected [V’s] evidence. They include the medication which she was taking; her use of alcohol; her ill-health and the fact that she was either drowsy watching television or asleep in bed at the time of the knock on the door. Then there are the traumatic circumstances in which the event occurred and the relatively short time that [V] had in which to make observations.
You may, from time to time, have made mistakes yourselves as to the identity of persons. Yesterday counsel asked how often have you thought that you saw someone in a supermarket only to find out that it was not that person at all. Mistakes like that can happen, even when the person is previously known, even well-known to the observer. Of course in the case of a stranger the risk of error is even greater.
Whilst I am required to alert you to the dangers attendant upon acting on identification evidence, I must, however, also say to you that if after carefully examining the evidence of [V], and after considering the caution which I have just given, you are satisfied about the correctness of the identification of an accused as an offender, then you are entitled to act upon the evidence of identification.
In approaching your task you should examine carefully [V’s] previous dealings with [the appellant], the circumstances in which the observation was made at the time of the alleged crime; how long did [V] have the person identified under observation? At what distance? In what light? Was the observation impeded in any way? How often had she seen him before? If she had only seen him occasionally, did she have any special reason for remembering him? Was there anything distinctive about his appearance? They are the sort of things that you need to consider.
In my view, the trial judge gave appropriate warnings in his directions about the recognition evidence. Although when dealing with particularities he prefaces them with the fact that the accused raised and detailed them, he nevertheless put the full weight of judicial authority behind his warnings about those matters. He dealt with the warning both generally and in relation to the evidence in this case.
Ground 1.5
1.5 The trial judge failed to correct a request by the prosecutor to rely upon circumstantial evidence in conjunction with that of identification in an impermissible fashion.
In his address to the jury the prosecutor said:
So it’s not just the blunt recognition that you can rely on, it’s more than that. It’s the whole set‑up of this whole enterprise. There’s a number of pieces of independent evidence other than recognition which the Crown says is strong enough to bolster that, a whole series of independent pieces of evidence you can use which clearly suggests the person involved in this robbery had some sort of intimate inside knowledge.
In reference to the prosecution address, the trial judge in his directions to the jury, said:
Just returning to the case against [the appellant] for a moment, the prosecutor asked why did only one male get the protection of the hood? He suggested the reason was because the other was not known to [V]. He said that the invitation to sit on the couch indicated some knowledge of the state of her health. He said that the fact that only the bedroom was searched indicated some knowledge of the home and that the circumstances suggested that the person involved probably had some inside knowledge.
Mr Anders argues that consistent with the decision of Mullighan J (with whom Doyle CJ and Perry J agreed) in R v Turner,[15] the trial judge should have directed the jury that they had to evaluate the evidence of V’s recognition of the appellant independently of other circumstantial evidence before them. He argues that it is impermissible to “bolster” the evidence as to recognition with the circumstantial evidence which indicated that whoever committed these offences in company with Mr Loe was familiar with both the premises and V herself.
[15][15] R v Turner (2000) 76 SASR 163, 182‑183 per Mullighan J.
In Turner there was a question as to whether evidence obtained through an identification parade constituted positive identification evidence or merely circumstantial identification evidence. Doyle CJ and Perry J, differing on this point from Mullighan J, both considered that the evidence concerning the identification parade was admissible. They held that it was for the jury to decide whether the piece of identification evidence was positive or merely circumstantial by assessing that piece of evidence on its own. They said that the trial judge would therefore have had to give the jury the relevant warnings; that is, a warning as to both circumstantial evidence and identification evidence.
Mullighan J found that the identification parade evidence did not amount to positive identification evidence, as the trial judge had incorrectly conveyed. Even if it did amount to positive identification evidence, he found that the trial judge did not give adequate warnings about how the evidence could be used. He noted that the trial judge erred in not directing the jury on the assumption that they may decide to convict on the basis of the identification evidence alone, and instead went on to say that they did not only have the identification evidence before them, but also other circumstantial evidence. Lastly, and most relevantly to this case, Mullighan J found that the trial judge erred in inviting the jury to consider the circumstantial evidence together with that from the identification parade in such a way as to suggest it may assist the jury in deciding whether the evidence from the identification parade did, in fact, itself constitute positive identification. In addition, prior to suggesting the use of the evidence in this way, the trial judge had not given any warning in respect of the circumstantial evidence.
The decision in Turner has to be read in the light of the decision of this Court in R v Coxon.[16] In Coxon, there was an item of positive identification evidence, and other items of circumstantial identification evidence. The trial judge directed the jury that it should ignore the items of circumstantial identification evidence because they were alone insufficient for a conviction. The members of this Court in Coxon each considered, clarified, and assessed the correctness of Mullighan J’s comments in Turner. Prior J set out the following passage of Mullighan J:[17]
[16] R v Coxon (2002) 82 SASR 412.
[17] Ibid 418.
...
“Assuming there is evidence of identification fit to be considered by the jury, the correct approach is for the jury to reach a conclusion about that evidence without considering the other evidence in the case; see Domican v The Queen (1992) 173 CLR 555 at 565. However, if the evidence is less than a positive identification, such as where the witness says the accused ‘looks like’ or ‘similar to’ the offender, that evidence may be used as circumstantial evidence but not as evidence of identification: Murphy v The Queen (1994) 62 SASR 121.”
…
Prior J then went on to conclude:[18]
[18] Ibid 419.
Domican is not authority for what appears in the passage cited from Mullighan J’s judgment in Turner. In Domican, the High Court was dealing with the question whether a warning in an identification case is adequate. As to that, the judgment of the High Court in the passage cited by Mullighan J was that the adequacy of such a warning was to be evaluated by reference to the identification evidence alone and not the other evidence in the case. Neither in that part of the judgment, nor elsewhere within it, is there a statement denying that other evidence may be supportive of the evidence the subject of the warning.
... Domican stands as authority for the proposition that a trial judge must warn of the dangers associated with identification evidence. Given that the jury may decide to convict on that basis the adequacy of the warning is to be considered separately from other evidence, which may nonetheless support the disputed identification evidence. ... [Footnotes omitted.]
Lander J noted the difference between positive identification evidence and circumstantial identification evidence. He agreed with Prior J as to the principle for which Domican stood, but sought to put Mullighan J’s comments in context:[19]
In R v Turner Mullighan J was concerned with a direction which was given when relating a circumstantial direction to an identification direction and before a circumstantial direction. ...
…
I think the dictum of Mullighan J must be understood in the context of the case before that Court and in particular the directions given by the trial judge in that case.
...
Because the trial judge appeared to have coupled a direction in relation to circumstantial evidence with the identification warning Mullighan J believed the direction to be objectionable.
It is clear ... that Mullighan J was referring to the direction being objectionable, not the use of the evidence after an adequate direction has been given.
It is the intention of the direction which Domican requires that the jury will assess the positive identification evidence without regard to any other evidence in the trial, whether direct or circumstantial.
However, after the jury has assessed the evidence in accordance with the Domican type direction the jury is at liberty to use that evidence, whether it is direct or circumstantial evidence, along with any other direct or circumstantial evidence in the case to arrive at its verdict.
[19] Ibid 421‑423.

Gray J similarly viewed Mullighan J’s comments with reference to the type of identification evidence with which that case was concerned. He said:[20]
In Turner the Court was concerned with the adequacy of a trial judge’s warning to a jury where the evidence of identification was less than a positive identification. I agree with Lander J that the remarks of Mullighan J were directed to the adequacy of the warning given in that case. So understood the remarks of Mullighan J were a correct application of the principles enunciated in Domican.
In the present case once the evidence of [positive] identification had been admitted with an appropriate warning, that evidence could be considered by the jury along with the circumstantial evidence when reaching its verdict. [Footnotes omitted.]
[20] Ibid 424‑425.
The prosecution argues that the circumstantial evidence indicating inside knowledge was not used to bolster V’s recognition of the appellant, but was used to establish that the offender, whoever he may have been, came from a class of persons who had inside information. That might be so, but having established that, it would then, as a matter of logic, bolster the recognition evidence.
In the present case, the trial judge did not refer to any form of circumstantial evidence when giving the warning as to how the jury should act upon the recognition evidence. However, having given the warning, he noted that the jury was also entitled to use the circumstantial evidence, which might, together with the evidence as to recognition, lead the jury to a finding of guilt. He was correct in so directing them.
I would reject the arguments in relation to ground 1.
Ground 2
2. The learned trial judge erred by failing to adequately present the defence case.
This ground was not pursued on appeal.
Ground 3
3.The convictions are unreasonable or cannot be supported having regard to the evidence or was a miscarriage of justice.
Mr Anders argues that the prosecution case relied entirely upon recognition evidence, which alone was insufficient to support a conviction. In his argument Mr Anders relies upon the brevity of the recognition, the medication V had taken and the state of panic which she must have been in at the time of the robbery. In other words, V’s evidence was so inherently unreliable that a jury could not base a conviction upon it. Mr Anders adds as part of his argument that the circumstantial evidence indicating one of the assailants had some form of inside information was so broad that it became intractably neutral and incapable of use in conjunction with the recognition evidence.
In my view, the question was very much a matter for the jury. There was no dispute that V attempted to tell the truth in the witness box as best she could, and there was no dispute that the offences occurred. The jury was made aware of the dangers of relying upon the evidence of V’s recognition of the appellant. V gave evidence, corroborated by other witnesses, that she had seen him on a number of previous occasions, and that as soon as she saw the assailant she proclaimed that it was the appellant. In addition, there was an amount of circumstantial evidence to indicate that the assailant, in company with Mr Loe, was a person familiar with the premises. In those circumstances, I am of the view that the jury’s verdict could not be considered unreasonable or unsupported by the evidence.
I would reject that ground of appeal.
Conclusion
For the reasons given above, I would dismiss the appeal.