R v Winters - [2010] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WINTERS
[2010] SASC 100
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice White and The Honourable Justice Layton)
14 April 2010
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE
Appeal against convictions for two offences of aggravated creation of a risk of harm contrary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one offence of damaging property contrary to s 85(3) of the CLCA - charges arose out of incidents in a police pursuit on 3 June 2006.
Whether the trial Judge erred in warning the jury of the dangers in identification evidence in respect of two identifications admitted by the appellant - whether the unnecessary direction would have led to the error in the jury's consideration of other identification evidence.
Both the appellant's trial counsel and the trial Judge were mistaken about the existence of evidence establishing that it was the accused who was depicted in an exhibit photograph - whether those errors may have caused a miscarriage in the jury's consideration of the possibility that displacement had affected one or more identifications.
Whether the trial Judge erred in failing to give separate directions relating to the identification evidence of each of two police officers - whether the directions fell short of the requirements for directions established in Domican v The Queen (1992) 173 CLR 555.
Held: the unnecessary direction did not cause a miscarriage of justice - it was appropriate in the circumstances of the case for the directions not to distinguish between the two officers' evidence of identification - the errors about the depiction of the appellant in the photograph did not lead to a miscarriage of justice.
If any of the trial Judge's errors had caused a miscarriage of justice, the proviso under s 353(1) of the CLCA should be applied.
Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 29(3), s 85(3), s 353(1), referred to.
Smith v The Queen (2001) 206 CLR 650; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; Weiss v The Queen (2005) 224 CLR 300; Cesan v The Queen (2008) 236 CLR 358, applied.
Dhanhoa v The Queen (2003) 217 CLR 1; R v Easom (1921) 28 SASR 134; R v Burchielli [1981] VR 611; R v Spero (2006) 13 VR 225; R v Turner [2000] SASC 27; R v Dupas (No 3) [2009] VSCA 202; R v Razzak [2004] NSWCCA 62, considered.

R v WINTERS
[2010] SASC 100
Court of Criminal Appeal: Nyland, White and Layton JJ

NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by White J.
WHITE J: The appellant was found guilty by a jury of two offences of aggravated creation of a risk of harm, contrary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and of one offence of damaging property, contrary to s 85(3) of the CLCA. The two contraventions of s 29(3) of the CLCA were aggravated offences as the jury accepted that the appellant knew, when committing the offences, that the victims were police officers acting in the course of their duty.
The three charges arose out of a police pursuit on the afternoon of 3 June 2006 near Mount Hope on Eyre Peninsula. The prosecution case was that the appellant had twice driven a Toyota Prado 4-wheel drive at police vehicles in the course of his attempts to avoid their pursuit, and that on one occasion, he had caused the Prado to collide with a police vehicle.
At the trial, the principal issue for the jury’s determination was whether the appellant was the person who had committed the offences, as it was not disputed that the charged conduct, by whoever it was committed, amounted to contraventions of ss 29(3) and 85(3) of the CLCA.
The appellant complains that the directions to the jury by the District Court Judge concerning the identification evidence were wrong in some respects and inadequate in other respects. Although there were shortcomings in the Judge’s directions, I do not consider that they were such as to cause a miscarriage of justice. Even if that conclusion be wrong, I consider that this as an appropriate case in which to apply the proviso under s 353(1) of the CLCA. Accordingly, I would dismiss the appeal. The reasons for that conclusion follow.
Background Circumstances
At the beginning of June 2006 the appellant was living in a caravan at a campsite at Point Drummond on the Eyre Peninsula. Point Drummond is approximately 90 km north-west of Port Lincoln and is a secluded site.
On 3 June 2006 two officers from the Department of Primary Industries and Resources (the Fisheries officers) saw a Toyota Prado, a boat and a caravan at the campsite at about 8.00 am but did not then see the appellant. Registration records indicated that the owner of the boat was Peter Gallaher, who lived on a farm property two or three kilometres to the north of the campsite. On their return at approximately 1.00 pm, the Fisheries officers noted that the Prado and boat trailer were at a nearby boat ramp, and that the boat was off-shore. The boat, with the appellant as its sole occupant, returned to shore at approximately 3.00 pm and the Fisheries officers spoke to the appellant. They inspected his catch, issued a written caution to him for having an undersized snapper, and seized that snapper.
After giving the Fisheries officers his name and address, the appellant observed one officer use a radio or telephone in their vehicle. He was apprehensive that the officer was contacting the police. The appellant had reason to be fearful of the police attending. He knew that the Prado and the caravan in which he was living were stolen and that there were a number of outstanding warrants for his arrest. The appellant’s apprehension was justified as the Fisheries officer was in fact telephoning the police. Unknown to the appellant, the Fisheries officers had also been in contact with the police earlier that day, and police were already on their way to Point Drummond.
The two Fisheries officers then left the area of the ramp. The precise time at which they left was not established by the evidence. However, they met a police officer, Brevet Sgt Waldowski, a short distance away at approximately 3.20 pm, and the three of them then travelled to the appellant’s campsite in the expectation of meeting the appellant there. While at the camp site, at approximately 3.30 pm, the two Fisheries officers saw the Prado towing the boat drive past on a nearby road in the direction of Peter Gallaher’s farmhouse and then disappear from view. The Prado was too far away for them to be able to identify the driver.
At about 3.45 pm, two police officers (Constables Roberts and Green) who had travelled to Point Drummond from Port Lincoln in a marked police car, saw a 4WD (which was not towing a boat) perform a U-turn and drive away from them at speed. They pursued the 4WD and radioed Sgt Waldowski for assistance. The warning lights and sirens of both police vehicles were activated.
It is not necessary to describe in detail the pursuit which ensued on roads and in paddocks. At one stage in a paddock the 4WD turned and drove back towards the Roberts/Green vehicle. Constable Roberts signalled for it to stop but the 4WD did not comply. As it drove past the police vehicle, each of Constables Roberts and Green made observations of its driver, the sole occupant.
The 4WD then drove to a roadside gate where it stopped. When the police car approached, the 4WD reversed sharply back towards it in an apparent attempt to ram it. This was the conduct comprising the first contravention of s 29(3) of the CLCA. Constable Roberts took evasive action by reversing the police vehicle, but was unable to prevent the 4WD striking the police vehicle on the rear of the driver’s side. That collision comprised the offence of unlawful damage.
The 4WD then left at speed and was followed by the two police vehicles with Sgt Waldowski’s vehicle initially being the lead vehicle. On two occasions during the course of the pursuit, the 4WD passed close to Sgt Waldowski’s vehicle and on each occasion he was able to make observations of the driver. In addition, at one stage, the 4WD turned and approached the vehicle occupied by Roberts and Green. Constable Roberts again had to take evasive action to avoid a collision. This conduct was the subject of the second charge of creating a risk of harm. Each of Constables Roberts and Green was able to make observations of the driver at this time as well.
The police pursuit of the 4WD was terminated upon the instructions of a senior police officer at 4.10 pm. At that time the 4WD was travelling north on Flinders Highway, in the direction of Elliston. Further police searches failed to locate the 4WD or its driver.
On the evening of 3 June 2006, the police saw a boat at Peter Gallaher’s farmhouse which was similar to that which the Fisheries Officers had seen the appellant using earlier that day. However, the evidence did not establish with certainty that it was the same boat.
The appellant was arrested on 12 July 2006. Subsequently, on 24 August 2006 the two Fisheries officers identified the appellant’s photograph on a photo‑board containing 12 photographs. On the same day, Constable Roberts also identified the appellant on a photo-board as being the driver of the 4WD. On 25 August 2006 Sgt Waldowski did likewise (albeit from a differently arranged photo-board).
A stolen Prado which generally matched the description of the 4WD involved in the pursuit on 3 June 2006 was found outside Elliston in 2007. It had been dumped and its number plates had been removed.
The Appellant’s Evidence
In his evidence at trial, the appellant admitted that he had been living in the caravan at the campsite at Point Drummond, that he was using the Prado, that he knew that both the Prado and the caravan had been stolen, and that he was the person to whom the Fisheries officers had spoken at the boat ramp at Point Drummond at about 3.00 pm on 3 June 2006. He said that shortly after the two police officers left the ramp area he, being fearful that the police had been called, fled the area on foot, abandoning the Prado, the boat and its trailer on the beach. The appellant said that he had then moved across country, keeping himself hidden from the police. From time to time he was able to observe aspects of the police pursuit of the Prado. After sleeping in the open on the night of 3 June 2006, he hitched a ride into Port Lincoln on the following day and by this means was able to avoid police detection.
The Prosecution Case
The prosecution case that the appellant was the driver of the 4WD relied upon both direct and circumstantial evidence. The direct evidence was the identifications of Sgt Waldowski and Constable Roberts.
The circumstantial evidence included the evidence that the make, model and colour of the 4WD involved in the police pursuit matched that of the Prado which the appellant had been using at Point Drummond. There was no evidence of any other Prado of matching make, model and colour being in the area at the time.
The appellant was the only person on the beach when the Fisheries officers left sometime after 3.00 pm. There were three people in a carpark at the top of a hill some distance away, but they had left that area before the Fisheries officers left the ramp. Two of the men in the carpark (Messrs Gallaher and Lambert) were, in any event, known to Constable Roberts, and he said that neither of them was the driver of the 4WD involved in the pursuit.
The Prado used by the appellant was next seen at approximately 3.30 pm (by the Fisheries officers who were at the caravan campsite with Sgt Waldowski). For its driver to have been someone other than the appellant, an unknown person in the remote and secluded area of Point Drummond who had not previously been seen by anyone would have had to come to the boat ramp within minutes of the appellant decamping and then driven off with the Prado and boat. Further, if, as seems probable, the boat which the police saw at Peter Gallaher’s farmhouse on the evening of 3 June 2006 was the boat which had been used by the appellant earlier in the day, that unknown person would have had to have known that the boat and trailer could be detached and left at that farmhouse.
The descriptions of the driver of the 4WD made by each of the pursuing police officers generally matched the descriptions given by the Fisheries officers of the person to whom they had spoken at the ramp and who had identified himself as the appellant. In addition, all three police officers described the driver of the Prado as wearing a blue check shirt of the same kind as that which one of the Fisheries officers said the appellant was wearing.
Finally, as the appellant’s own evidence acknowledged, he had a motive for wishing to avoid apprehension by the police.
Directions Concerning the Identifications by the Fisheries Officers
The appellant’s first submission on appeal was that the Judge had inappropriately directed the jury that they could use in their deliberations the identifications of the appellant made by the two Fisheries officers and, further, that the Judge had done so in a way which would have caused the jury to think that the identifications by the Fisheries officers were indistinguishable from those of the police officers.
The Judge commenced his directions concerning the identification evidence by referring to “the photographic identification from four witnesses” (being the two Fisheries officers and the two police officers) and then reminded the jury of the circumstances in which each identification was made. In the directions which followed, the Judge did not, other than in some respects to which I will refer shortly, distinguish between the identifications of the Fisheries officers, on the one hand, and the identifications of the police officers, on the other. The merging of the directions concerning the two sets of identifications can also be seen in the following passages:
You must be satisfied beyond reasonable doubt about the accuracy and reliability of the photographic identification of the accused by the two Fisheries officers and the two police officers before acting upon that evidence. You must be so satisfied before you can consider that evidence with any circumstantial evidence of which you might be satisfied which you consider links the accused to the crimes, or any of them. …
Finally, you must consider each of the photographic identifications separately. What each of the four witnesses identified was the view of each of them as to the photographs. The photographic identification of each is not evidence you can use in assessing the reliability of the identification of the photograph of the accused by each or any of the others. [Emphasis added]
At the time that the Fisheries officers gave their evidence, the prosecutor did not know whether the appellant would give evidence. Accordingly, at that time the Fisheries officers’ identification of the appellant was important to the prosecution circumstantial case.
However, that evidence ceased to be so important once the appellant admitted in his evidence that he was the person to whom the Fisheries officers had spoken on the beach at about 3.00 pm on 3 June 2006. That admission made it unnecessary for the jury to be satisfied of the reliability of the Fisheries officers’ identifications, and unnecessary for the Judge to give the warnings which the law requires concerning the jury’s consideration of their evidence.[1] It would have been appropriate instead for the Judge to tell the jury that the identifications by the Fisheries officers were not in dispute.[2]
[1] Dhanhoa v The Queen [2003] HCA 40 at [19]; (2003) 217 CLR 1 at 9.
[2] Ibid at [20]; 9.
If the only thing which could be said about the Judge’s directions concerning the identification evidence of the Fisheries officers was that it was superfluous, the submission that a miscarriage of justice had occurred would be difficult to sustain. That is not to say that the giving of irrelevant or unnecessary directions should be condoned. On the contrary, irrelevant or unnecessary directions may have the effect of confusing a jury.[3] The appellant contended that in the circumstances of the present case the directions had had a more harmful effect.
[3] Ibid at [53]; 16.
First, he contended that the Judge’s directions would have suggested to the jury that the identifications made by the police officers which he impugned were to be equated with the identifications of the Fisheries officers. Such a suggestion was wrong, because the Fisheries officers, unlike the police officers, had each seen and spoken to the appellant before 3 June 2006. Mr Williss said that he had spoken to the appellant in January 2005, and again in March 2006. Mr Gassner said that he had seen the appellant “a few times” over the period of 18 months before 3 June 2006. Both Fisheries officers were familiar with his appearance and each recognised him on 3 June 2006 as being the person to whom they had spoken previously. Thus, the Fisheries officers’ evidence concerning the identification of the appellant was more in the nature of recognition evidence.
There is a well recognised distinction between evidence from witnesses of recognition of a person who is already known to them, on the one hand, and evidence of identification of a person whom the witnesses have never seen previously. The risk of a mistaken identification is much less if the person was know to the witness. That is why less by way of warning to a jury is required in the case of witnesses who were familiar with the appearance of the person being identified before the occasion upon which they made the relevant observations.[4]
[4] R v Easom (1921) 28 SASR 134 at 144; R v Burchielli (1981) VR 611 at 615-6; R v Spero [2006] VSCA 58 at [25]-[30]; (2006) 13 VR 225 at 233-235.
The appellant submitted that the equating of the two different forms of identification in this case may have had the effect of undermining the significance which the jury gave to the Judge’s warning about the need for care in assessing the identification evidence of the two police officers. Put slightly differently, the inclusion of the recognition evidence of the Fisheries officers in the directions concerning identification evidence may have led the jury to underestimate the dangers in acting upon the evidence given by the police officers.
Secondly, the appellant submitted that the Judge’s directions may have caused the jury to reason in an impermissible way, that is, by considering it unlikely that four witnesses could have been mistaken in their identifications of the appellant. Again, putting this submission slightly differently, the suggestion was that the jury might have reasoned that they could have more confidence in the impugned identifications made by the two police officers because the same identification was made by the two Fisheries officers who had had greater contact with the appellant on 3 June 2006, and accordingly superior opportunities to observe his appearance. In this way the jury may have reasoned that the Fisheries officers’ identification bolstered the reliability of the identifications of the police officers. Such a process of reasoning would have been inappropriate.[5]
[5] R v Burchielli [1981] VR 611 at 617, 621; R v Turner [2000] SASC 27 at 35; R v Dupas (No 3) [2009] VSCA 202 at [364]; R v Razzak [2004] NSWCCA 62 at [26].

There is force in these submissions, and they have given me some pause. However, there are countervailing considerations. The Judge did not equate altogether the identification evidence of the police officers with that of the Fisheries officers. He reminded the jury that the Fisheries officers’ identifications related to the person to whom they had spoken on the beach, and that the police officers’ identifications related to the person they had seen driving the 4WD. The Judge also reminded the jury expressly that both Fisheries officers had seen the appellant before 3 June 2006.
In addition, after giving the jury a warning in conventional terms of the risks of mistaken identification, the Judge then focussed his directions on the identifications made by the two police officers. The Judge said:
You must carefully examine the photo identification evidence, in particular of police officers Roberts and Waldowski. In doing so you should examine carefully the circumstances in which the identification was made. How long did the witness have the person identified under observation? At what distance? In what light? Under what circumstances? Was the observation impeded in any way? Had the witness ever seen the accused before? If so, how often? If only occasionally, had he any special reason for remembering the accused? Was there anything distinctive about the appearance of the person identified or the accused? How long elapsed between the observation of the person identified and the subsequent identification to the police? Was there any material discrepancy between the description given to the police and the accused’s actual appearance? Did anything occur between the time of the observation of the person identified and the identification to the police, which could have contaminated the witness’s memory of the person identified?
Experience has shown that people can pick out a photograph of a person who has been seen before or since a particular incident, like the police pursuit of the Prado, as the person previously or subsequently seen, rather than the person seen in the incident.
As can be seen, the directions in these paragraphs were specifically directed to the identifications of Constable Green and Sgt Waldowski.
The Judge also specifically directed the jury as to the risk of witnesses making an identification on the basis of their recollection of the person on previous occasions, rather than on the basis of their observations of the person at the time of the subject incident. That direction seemed to relate particularly to the identification evidence of the Fisheries officers rather than those of the police officers, as there was no suggestion in the evidence that either police officer had seen the appellant before 3 June 2006.
Further, the Judge specifically directed the jury that each of the photographic identifications of the four witnesses had to be considered separately. The Judge said:
Finally, you must consider each of the photographic identifications separately. What each of the four witnesses identified was the view of each of them as to the photographs. The photographic identification of each is not evidence you can use in assessing the reliability of the identification of the photograph of the accused by each or any of the others.
The effect of this direction was to tell the jury that each identification had to be considered separately, and without reference to the identification made by any other witness. That is, the jury was directed that it could not use one identification to bolster another. There is no reason to suppose that the jury would have misunderstood this direction, or failed to give effect to it.
Finally, I consider that it must have been obvious to the jury that the opportunities which the police officers had to observe the driver of the 4WD were much more limited than the opportunity which the Fisheries officers had at the boat ramp. The observations of the latter on 3 June 2006 were made over several minutes, perhaps 10-15 minutes, and in circumstances of relative calm while the appellant was relatively still. On the other hand, the police officers made their observation of the driver of the 4WD in very short timeframes (measured in seconds), in the stress of the pursuit, and when the 4WD was moving, sometimes at speed. These matters must have been obvious to the jury, militating against the likelihood that they would have equated the Fisheries officers’ identifications with those of the police officers.
Accordingly, although I think it unfortunate that the Judge included the identifications of the Fisheries officers in his directions concerning identification, I consider that they were sufficiently distinguished from those of the police officers so that no miscarriage of justice resulted.
The Mistake Concerning a Photograph of the Appellant
At trial, the appellant argued that the possibility that the identifications of each of Constable Roberts and Sgt Waldowski were affected by displacement had not been excluded. He argued that each had, on or after 3 June 2006 and before making their identifications from the respective photo boards, seen a photograph of him, and accordingly that the image in that photograph may have displaced in their minds any image they may once have had of the driver of the 4WD.
In this respect, the appellant referred to a photograph of himself holding a squid and standing next to a boat and the Prado (the squid photo). The squid photo was one of a set of three found by the police inside a cupboard in the caravan at Point Drummond. The set was photographed by a Police Crime Scene Examiner (Mr Gornall) on the late afternoon of 3 June 2006. The photograph of this set formed part of exhibit P1 at trial; a copy of the squid photo became exhibit P2; and the original of the squid photo became exhibit P1-7A.
Constable Roberts said that he had not entered the caravan at all on 3 June 2006 and so had not seen any photographs. He also said that he had not seen any of the photographs of the appellant before making his selection from the photographic display board on 24 August 2006.
Sgt Waldowski had entered the caravan on the late afternoon of 3 June 2006 and had directed Mr Gornall to take the photographs of the set of three. He said that he had not looked at the squid photo in detail at the time, but had requested Mr Gornall to take the photograph of the set of three because he thought that a photo showing a blue Prado may be of interest. He maintained that his identification of the appellant was based upon his observations of the driver of the 4WD, and not upon his observations of the male seen in the squid photo.
Much of the cross-examination of Sgt Waldowski was directed to the possibility of displacement. Likewise, much of the appellant’s trial counsel’s submissions to the jury were directed to the same topic, and were made on the basis that the squid photo was a photograph of the appellant.
At the conclusion of the address of the appellant’s trial counsel to the jury, the Judge asked him, amongst other things, whether there was any evidence establishing that the person shown in the squid photo was in fact the appellant. The Judge said that he himself could not recall any evidence to that effect but asked the appellant’s trial counsel to consider the evidence overnight.
On the following morning, the appellant’s then counsel told the Judge that there was no formal evidence indicating that the man shown in the squid photo was the appellant. He said that he would make that acknowledgment to the jury. Shortly afterwards, the appellant’s trial counsel said to the jury:
I further point out to you that there is actually no evidence before us that that photo tendered as exhibit P1 photo No 7, what I will refer to as [the squid photo], there is no evidence before you that’s even Andrew Paul Winters and I know in my address to you I submitted that it was Andrew Paul Winters. I accept that, in fact, there was no evidence to that effect.
In his directions to the jury concerning possible displacement, the Judge said:
There may also be a risk, as I mentioned earlier, that when a person looked at the photograph sometime after the incident, he might have subconsciously associated the photograph identified, where he did identify the accused, with someone he had seen before or after the incident, rather than what he actually saw during the police pursuit. Remember this when assessing the evidence. In this case Mr Richards submitted to you that Officer Waldowski identified the photo of the accused on the photo board as the person he saw in the photo in the caravan rather than the person he saw driving the Prado. Although you will also take into account Mr Richards’ information to you this morning that there was no evidence directly that that was a photograph of the accused.
You should consider this evidence which you might consider weakens or strengthens the force of the identification of the accused by the witness who did identify him. [Emphasis added]
On the hearing of the appeal, counsel for the respondent pointed out, quite fairly and properly, that both the trial Judge and defence counsel had been mistaken in thinking that there was no evidence identifying the appellant as the person in the squid photo as the appellant had given evidence that he was the person in that photo.[6] One of the Fisheries officers, Mr Williss, also gave evidence that the appellant was the person shown in the squid photo.
[6] T408, lines 27-31.
The appellant submitted that in these circumstances the mistaken acknowledgment by his trial counsel that there was no evidence that he was the person in the squid photo, together with the Judge’s reference to that acknowledgment, had had the effect of withdrawing the displacement theory from the jury’s consideration or must, at the least, have affected significantly the jury’s consideration of that issue.
I do not consider that this submission should be accepted. First, the effect of the Judge’s directions, considered as a whole, was undoubtedly to tell the jury that they had to consider the possibility of displacement. I set out earlier the passage in the summing-up in which the Judge gave an express direction to the jury to consider the possibility that Sgt Waldowski’s identification was affected by displacement. The mistake made by the Judge and defence counsel led the Judge to say no more than that the jury should take into account the defence counsel acknowledgment that there was no direct evidence that the appellant was the man shown in the squid photo. The jury was not directed that the appellant was not the man seen in the squid photo. The Judge’s direction did not remove the possibility of displacement from the jury’s consideration. On the contrary, it was a direction as to the material to be taken into account when considering the possibility that Sgt Waldowski’s identification was affected by displacement.
The jury had heard twice that the appellant was the man in the squid photo. That being so, they may well have recognised themselves the mistakes made by counsel and the trial Judge.
Quite apart from that, the jury was able itself to compare the man they saw in the dock and in the witness box with the man shown in the squid photo. The appellant has quite a distinctive round face. There was no suggestion in the evidence that his appearance had changed between the time when the photo was taken and the time of trial. The jury was entitled to make its own comparison of the appellant with the squid photo and to draw its own conclusion. In Smith v The Queen[7] two police officers who had had previous dealings with the accused had given evidence to the effect that he was one of the robbers depicted in security camera photographs. The High Court held the police officers’ evidence was inadmissible as it was for the jury to reach its own conclusion on that topic. The plurality said:
The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion.[8]
In my opinion, that reasoning is apposite in the present case.
[7] [2001] HCA 50; (2001) 206 CLR 650.
[8] Ibid at 655.
Of course, if the jury had been reminded that the appellant had acknowledged that he was the man depicted in the squid photo, that would have removed any doubt about the question altogether, but in the circumstances of this case, that acknowledgment was not necessary in order for the jury to conclude for itself that the appellant was the man depicted in the squid photo and to take that into account in considering the defence submissions concerning displacement.
The Adequacy of the Directions Concerning Identification Evidence
Finally, the appellant submitted that the Judge’s directions concerning the identification evidence of the two police officers were inadequate. The Judge should, it was said, have directed the jury separately about each identification, identifying in each case the various matters which may have affected the reliability of the identification by each officer.
The law relating to the directions to be given a trial judge when identification is in issue is well settled. The judge must give the jury a cogent and effective warning, appropriate to the circumstances of the case, about the dangers of acting on evidence of identification when the reliability of that evidence is disputed.[9] The terms of the warning need not follow any particular formula, but the jury must be instructed as to the factors which may affect the consideration of the identification evidence in the circumstances of the case before them.[10] A warning in general terms is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it and which isolates and identifies any matter of significance which may reasonably be regarded as undermining the liability of the identification evidence.[11]
[9] Domican v The Queen (1992) 173 CLR 555 at 561-2.
[10] Ibid at 562.
[11] Ibid.
The appellant submitted that the Judge should have given separate directions in accordance with the above principles in relation to each of the identifications of Constable Roberts and Sgt Waldowski. As I understood it, the appellant was not suggesting that separate directions in relation to each witness giving identification evidence are required in all cases. Instead, he was submitting that the particular circumstances of the present case required such separate directions.
Separate directions may well be required when there are relevant differences between the circumstances of the identifications made by two or more witnesses. In such a case, the directions required by authorities such as Domican v The Queen[12] and Festa v The Queen[13] may require directions adapted to the particular circumstances of each witness, highlighting for the jury the particular matters which may affect the reliability of each identification.
[12] (1992) 173 CLR 555.
[13] [2001] HCA 72; (2001) 208 CLR 593.
However, the identifications of Constable Roberts and Sgt Waldowski, in the present case were not of this kind. Although their observations were made at different times during the pursuit, they had much in common. Both made their observations of the driver of the 4WD during the course of the police pursuit; both had only two opportunities during the course of the pursuit to see the driver of the 4WD; each of their opportunities to observe the driver were quite short, lasting for a few seconds only; in each case the 4WD was moving at the time the observations were made; and in each case the circumstances of the pursuit and the behaviour of the 4WD must have given rise to some level of stress and anxiety in each of the two police officers. Further, neither of the police officers recorded a contemporaneous description of the driver of the 4WD and more than 11 weeks elapsed before they were asked to attempt an identification from a photo board.
Given that commonality I consider that the one set of directions, applicable to both identifications, was not inappropriate. That is because the matters bearing upon the reliability of the identification in each case were similar. I note again that the Judge did give directions which focussed the jury’s attention on the reliability of the police officers’ identifications as distinct from those of the Fisheries officers. In my opinion, it was not an error for the Judge to give the one set of directions to the jury concerning the risks affecting the reliability of the police officers’ respective identifications.
There was one significant difference between the circumstances of each identification. That is the matter already mentioned, namely, that Sgt Waldowski had seen the squid photo in the appellant’s caravan in the late afternoon of 3 June 2006. That meant that the jury had to consider the possibility of displacement and as already seen, the Judge did direct the jury separately in relation to that aspect of his identification.
Earlier in these reasons, I set out the passage from the Judge’s directions in which he highlighted for the jury particular issues which they should consider in relation to the identifications of the two police officers. In my opinion, the jury would have understood that those issues had to be considered separately in relation to the two identifications.
In many cases, trial judges may in circumstances such as the present think it appropriate to give separate directions in relation to each disputed identification. However, for the reasons already given, it is not necessary in all cases to do so. The matters to which I have referred above indicate that it was not inappropriate for a single set of directions to be given in relation to the identifications of each of Constable Roberts and Sgt Waldowski.
Accordingly, I do not consider that the manner in which the Judge directed the jury concerning the identification evidence of the two police officers has given rise to a miscarriage of justice in this case.
The Proviso
If I had considered that the shortcomings in the Judge’s directions had given rise to a miscarriage of justice, I would in any event have regarded it as appropriate to apply the proviso, and to dismiss the appeal on the ground that no substantial miscarriage of justice has actually occurred.
Even without the identification of the two police officers, the prosecution’s circumstantial case, as set out earlier, was very strong. I have reviewed the entire transcript of the evidence at trial and considered the exhibits so as to make my own assessment of whether the guilt of the appellant was proved.[14]
[14] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358.
In my opinion, the prospect of there having been some opportunist near the remote and isolated beach at Point Drummond on the afternoon of 3 June 2006 who drove off in the Prado within minutes of the appellant leaving the beach on foot, and who drove the Prado in the subsequent pursuit, is so slight that it can be dismissed as a reasonable possibility. I have not overlooked the appellant’s reference to the three men seen by the two Fisheries officers in the carpark on the afternoon of 3 June 2006. It seems, however, that they had gone before the Fisheries officers had left the appellant at the beach and, in any event, Constable Roberts knew two of them and said that neither was the driver of the 4WD involved in the pursuit. The possibility that the third may have become involved can, in my opinion, be discounted.
For this additional reason, I consider that the appeal should be dismissed.
Conclusion
For the reasons given above, I would dismiss the appeal.

LAYTON J: I agree that the appeal should be dismissed. I agree with the reasons expressed by White J and have nothing further to add.