Utting v The State of Western Australia
[2009] WASCA 40
•16 FEBRUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: UTTING -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 40
CORAM: McLURE JA
BUSS JA
MILLER JA
HEARD: 16 DECEMBER 2008
DELIVERED : 16 FEBRUARY 2009
FILE NO/S: CACR 52 of 2008
BETWEEN: DAVID JOSEPH UTTING
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 100 of 2007
Catchwords:
Criminal law - Appeal against conviction - State case based very substantially on forensic and circumstantial evidence - Whether any recognition or identification evidence which required a direction or warning from the trial judge - No direction or warning required
Legislation:
Nil
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A C McIntosh
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Mills v The State of Western Australia [2008] WASCA 219
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
McLURE JA: I agree with Buss JA.
BUSS JA: On 14 March 2008, the appellant, David Joseph Utting, was convicted, after a trial in the Supreme Court before McKechnie J and a jury, on two counts in an indictment which alleged contraventions of ss 294(1) and 392 of the Criminal Code, as follows:
(1)On 28 December 2006 at Thornlie David Joseph Utting stole from Andrew Michael Wyatt, with violence, a quantity of money the property of Andrew Michael Wyatt.
And that David Joseph Utting was armed with a dangerous weapon, namely a shotgun.
And that David Joseph Utting was in company with another.
And that David Joseph Utting did bodily harm to Andrew Michael Wyatt.
(2)On the same date and at the same place David Joseph Utting, with intent to maim, disfigure, disable, or do some grievous bodily harm to Andrew Michael Wyatt, unlawfully did grievous bodily harm to Andrew Michael Wyatt.
He was sentenced to a net effective head sentence of 8 years 10 months immediate imprisonment, backdated to 27 February 2008, with eligibility for parole.
The appellant has appealed to this court against his conviction on each count. On 30 July 2008, Miller JA ordered that his application for leave to appeal be heard together with the appeal.
The State's case in opening
The State's case against the appellant, as summarised by counsel in opening, was that in the early hours of 28 December 2006, shortly before 5 am, the complainant, Mr Wyatt, was brutally attacked and robbed by two armed men wearing masks at a house at 26 Crossford Street, Thornlie.
The State alleged the appellant was one of the offenders. He was said to have been armed with a loaded shotgun. The other offender, who has never been apprehended, was said to have been armed with a knife. The complainant was a drug dealer. He had attended the house at Thornlie in the early hours of 28 December 2006 for the purpose of supplying methylamphetamine to a woman named Candice, who lived at the house with another woman named Leah.
The forensic and other circumstantial evidence relied on by the State
The State relied on several pieces of forensic and other circumstantial evidence to prove that the appellant was the offender with the shotgun. This evidence included, relevantly:
(a)A 2‑centimetre long dark hair was found on the inside of the mask worn by the offender with the shotgun. DNA obtained from the hair matched the appellant's DNA profile. Also, DNA obtained from a stain on the inside of the mask matched the appellant's DNA profile. Further, DNA obtained from several bloodstains on the outside of the mask matched the complainant's DNA profile. See ts 258 ‑ 262, 307.
(b)During the assault and robbery, the offender armed with the shotgun discharged the gun on several occasions. A box of shotgun cartridges of the same type as those discharged by the offender was found by the police in the home of the appellant's girlfriend. His fingerprint was on the box. The appellant admitted in a video‑recorded interview with the police that he stayed regularly at his girlfriend's home. See ts 226 ‑ 227, 240 ‑ 246.
(c)The appellant had an association with the occupants of the house at Thornlie (that is, Candice and Leah). He estimated in the video‑recorded interview that he had been at the house about fifty times before the assault and robbery.
Other evidence relied on by the State
During the assault and robbery, the complainant tore the mask from the face of the offender with the shotgun. The State contended that the appellant's appearance in the video‑recorded interview was consistent with a general description given by the complainant of the offender.
The complainant's evidence
The complainant's evidence‑in‑chief was, relevantly, as follows:
(a)The complainant's nickname was 'Guz' (ts 142).
(b)As at 27 and 28 December 2006, he knew Candice and Leah, and he knew they were living in the house at Thornlie (ts 143).
(c)Before 28 December 2006, he had visited the house to deliver methylamphetamine he had sold to Candice (ts 143).
(d)On the evening of 27 December 2006, or in the early morning of 28 December 2006, he agreed by telephone to sell Candice an 'eight ball' of methylamphetamine for $900 (ts 145 ‑ 146).
(e)The complainant met Candice and Leah in Station Street, Cannington, at about 3 am or 4 am on 28 December 2006. It was agreed they would go to the Thornlie house to complete the drug transaction. Candice and Leah travelled in their white Falcon vehicle and the complainant drove his red Ford Laser (ts 146 ‑ 147).
(f)When he arrived at the house, the complainant parked his vehicle in the driveway and followed Candice and Leah into the house (ts 147).
(g)Candice and Leah led the complainant to a bedroom at the rear of the house. He had not previously been in that room (ts 147).
(h)The complainant went into the bedroom with Candice and Leah. He had with him the methylamphetamine, a smoking pipe, scales and a black shoulder bag with $5,000 in cash, being the proceeds of sale of other methylamphetamine (ts 148).
(i)Shortly after the complainant went into the bedroom, two men entered the room. They were yelling. The complainant described one of the men as 'tall and lean, skinny' (ts 150). He was armed with a 12‑gauge shotgun and was wearing a full‑face latex mask. The other man was 'shorter, slim'. He was also wearing a mask. Both men had white skin. The complainant saw their skin colour during the struggle that followed (ts 151).
(j)The taller man with the shotgun entered the bedroom first. The complainant ran at him and grabbed the shotgun. The gun discharged. The other man commenced stabbing the complainant with a knife (ts 152).
(k)The three men moved, in the course of the struggle, from the bedroom to other rooms in the house. When they arrived at the kitchen, the complainant noticed he was bleeding. He grabbed the blade of the knife when he realised the shorter man was attempting to stab him again (ts 152 ‑ 153). The taller man struck the complainant on the head with the butt of the shotgun. The top of his head was cut (ts 154).
(l)The complainant was soon bleeding 'pretty badly'. The offenders took his black shoulder bag with the cash (ts 155). The bag also contained two mobile telephones belonging to the complainant (ts 157).
(m)During the struggle in the house, the complainant tore the mask from the taller man with the shotgun. The complainant then gave this evidence:
Do you recall what happened to the mask when you pulled it off?‑‑‑It went on the ground.
All right.Did you notice anything further about that person at that time?‑‑‑He had long hair.
Long hair, and did you notice anything else about the hair?‑‑‑It was black (ts 157).
(n)The complainant said he knew a man named Joel Minchin and that Minchin was definitely not the person from whom he had pulled the mask (ts 157).
(o)The prosecutor asked the complainant whether he heard either of the offenders say anything in the course of the struggle. This exchange occurred:
During the time that these men first came towards bedroom 4 yelling and the time that they left the house with your black bag, do you recall anything being said by either of them?‑‑‑One of them saying a name. I wasn't sure exactly what the name was.
You heard a name called?‑‑‑Yeah.
You don't know which one of them it was?‑‑‑No.
At what stage was that? Do you recall, or can you recall when that happened?‑‑‑That was in the kitchen after I'd been stabbed (ts 161).
(The prosecutor said in opening that the complainant 'thought he recognised this taller fellow as someone who he thought had used to stay at some stage at this house, and at one stage he thought he heard one of the robbers call the other Dave or Ben' (ts 16). The complainant did not, however, give evidence to this effect in evidence‑in‑chief.)
(p)The complainant gave other evidence about the hair of the taller offender who was carrying the shotgun:
You have told us something that you noticed about the hair of the shotgun‑wielding person when you pulled the mask. You said his hair was long and it was black?‑‑‑Yes.
What was it about the colour of the hair, if anything, that you noticed?‑‑‑It looked like it had been dyed.
Why do you say that?‑‑‑It was that funny blue‑blacky sort of colour (ts 163).
(q)The complainant said the police had shown him a series of photographs of different people, but he was not able to identify either of the offenders from those photographs (ts 164).
(r)The complainant estimated the time between his grabbing the shotgun and the offenders leaving the house at '5, 10 minutes' (ts 164).
The complainant was cross‑examined.
Counsel for the appellant cross‑examined the complainant on a written statement he had given to the police:
I see. You in fact told the police the guy that you pulled the mask off looked in his 20s. Is that right?‑‑‑Yes. Late 20s.
No, you didn't say late 20s. You said 20s. You want to make it late 20s today, do you?‑‑‑That's what 20s means, in his 20s.
You also said this guy that you saw, that you took the mask off, used to live at the house, you thought?‑‑‑Yes, I thought he did.
He used to live in the back room, you thought. Is that right?‑‑‑That's what I thought (ts 179 ‑ 180).
A little later, the appellant's counsel cross‑examined the complainant further on his written statement to the police:
You told the police that this tall person, you thought, had dyed hair. Is that right?‑‑‑Yes.
Dyed black hair?‑‑‑Mm.
Is that right?‑‑‑Yes.
Would you agree with me, when you - you gave a statement to the police on 4 January 2007, didn't you?‑‑‑Yes.
Do you recall that? Would you agree with me you never told the police that this person had long hair?‑‑‑I can't remember.
You can't remember. You can see the man sitting there. He's got long hair, hasn't he?‑‑‑I've always said - I'm pretty sure I've always said he had long hair, but I can't remember, to be honest (ts 181).
The complainant agreed with the appellant's counsel that at the time he was attacked and robbed, there were 'probably' a few people that 'weren't happy' with him (ts 187).
Counsel for the appellant put to the complainant that when he tore the mask from the face of the taller offender, the complainant recognised the offender as his mate, 'Chris'. The complainant denied this proposition. He said, 'It couldn't have been Chris because Chris has got no hair' (ts 189).
Some other features of the evidence
Detective Senior Constable Carl Casilli investigated the offences and gave evidence at the trial. He said, in cross‑examination, he recollected that when the appellant was interviewed by the police 'maybe his hair was black' (ts 277). He also said that the appellant was six feet four inches in height and when he was interviewed by the police he had 'some tattoos' (ts 277).
Neither Candice nor Leah gave evidence at the trial.
The appellant's case at trial
The appellant did not give sworn evidence or call any witnesses.
An edited version of the video‑recorded interview between the appellant and the police (which occurred on 23 January 2007) was, however, played to the jury. It became exhibit 14.
During the video‑recorded interview:
(a)The appellant admitted he had 'a connection with the [Thornlie] house' (vroi 7).
(b)He admitted he had been 'to Leah's house' around '50' times (vroi 11).
(c)He said he had 'never met' the complainant (vroi 15).
(d)He said he did not know who 'Guz' was (vroi 16).
(e)He said he 'may have come across [Guz] at a house out in Beckenham' (vroi 28).
(f)He said he was 'not a hundred percent sure but [was] 99.9 per cent sure there's just no way that [Guz] knows me' (vroi 29).
(g)He agreed he was 'linked via Leah's house' (vroi 29).
(h)He understood 'the link between [him] and Guz and Leah' was 'that house' (vroi 30).
(i)He understood 'what [the police were] saying [was] that [Guz] claims to know me, how I don't know' (vroi 32).
(j)He said he had no idea what Guz 'looks like' and had 'never met him' (vroi 49 ‑ 50).
(k)He told the police 'so what if he has seen me, how would I know that he's not (indistinct) in drugs and shit' (vroi 54).
The police questioned the appellant about the mask that had been worn by the taller offender and left at the Thornlie house. The appellant explained that he and his girlfriend, Jasmine, had purchased some drugs at the Thornlie house on the evening of 27 December 2006 (that is, several hours before the complainant was assaulted and robbed) and had gone to a nearby 'skate park' to use the drugs. At the park, the appellant had found the mask and put it on his face to frighten, in jest, his girlfriend. He abandoned the mask at the park after he and his girlfriend had used the drugs. This explained the presence of his hair and DNA on the mask. The appellant said, in the video‑recorded interview:
A. … Yeah, um, I got up we had a case [sic], um, we're very clean users, me and Jasmine, um, we always put our stuff away, um, we made sure all our tools are either - (indistinct) snapped off if we - we're going to use them again ‑ ‑ ‑
Q. Okay. Good.
A. - - - are inside the lids so nothing - nothing can come from it. Um, and we always wrap them up in the paper and throw them in the bin, a bit of paper, so I come in always - I don't know, and a, um, (indistinct) me and Jasmine had a bit of an argument, oh, yeah, of course, um, um, when I was throwing my - my tools in the bin, a fucking, um, and they're big (indistinct) bins, um, a blue one I think, a blue or a green one, I can't remember, um, there was a rubber mask laying, ah, half - half over, half shoved in with that little hole thing where they pick the - the skip bins up ‑ ‑ ‑
Q. Mm.
A. ‑ ‑ ‑ you know when the truck comes along and the metal bit goes there and it goes , 'Yee, yee,' and fix it up, sort of half jammed in there. Um, I grabbed it (indistinct) what the fuck it is, right, um, I've grabbed it, I had a look. There's a bit of cloth in it, I didn't even - give it a big of squash up and make sure there was no one's fit - emptying place, do you know what I mean, I mean I was putting mine there so it might have been someone, put the fucking thing on, put the fucking thing on, went around to the car, I snuck up on Jas, give her a good fucking scare which she hates because she's all girly, starts - she starts crying again, right, I give her - I give her a good scare and that; she's ripped it off my head; we had more of an argument, and that - my memory was the end of our night because of that.
Q. Okay. Where - what happened then?
A. Um, I couldn't - I'm really pretty sure we went home from there.
Q. Home to?
A. Berwick Street.
…
Q. Okay. Can you remember what happened to that rubber mask after she ripped it off your head?
A. Um, I think I may have kicked it back towards the bin or I may have just left it where she - where she ripped it.
…
Q. Okay. Now are you sure you left the mask there?
A. Positive.
Q. Positive you left the mask there?
A. Positive, yeah, positive.
Q. Okay, and then you went back to Berwick Street?
A. Yep.
Q. Okay. Had you ever worn a mask like that before?
A. Not like that, no.
Q. No? Do you own a mask like that?
A. No (vroi 21 ‑ 23).
Later in the interview, there were further questions and answers relating to the mask and the appellant's DNA:
Q. - ‑ ‑ but as you alluded to the fact earlier that the police have your DNA we found a hair in the mask ‑ ‑ ‑
A. Yeah.
Q. - ‑ ‑ and we found DNA samples in the mask.
A. Yeah.
Q. That DNA was - - -
A. I think I stuck my tongue through the mouth, the mouth piece ‑ ‑ ‑
Q. Yeah.
A. - ‑ ‑ like that to Jasmine, just snuck up to the window ‑ ‑ ‑
Q. Yeah.
A. - ‑ ‑ and, um, like the mouth piece was only like really thin ‑ ‑ ‑
Q. Yeah, yeah.
A. - ‑ ‑ so I had to stick my - really stick my tongue through it and it's just like a little slit and I had to stick my tongue through it ‑ ‑ ‑
Q. Mm hm.
A. - ‑ ‑ snuck up the window, 'Ah ha.'
Q. And that part of the mask was swabbed as well, and through that we linked you to the offence because your DNA's is [sic] in that mask.
A. Of course, of course (vroi 24 ‑ 25).
Detective Senior Constable Casilli said, in cross‑examination, that there was a skate park in the vicinity of the Thornlie house, at night there are 'some sort of lights' at the park, and there was a bin at the park of the kind described by the appellant in his video record of interview (ts 278).
Plainly, the jury rejected the appellant's exculpatory statements in his interview with the police.
The ground of appeal
The sole ground of appeal reads:
In all the circumstances, the learned trial Judge's discretion miscarried when he failed to adequately direct the Jury as to the 'recognition' and 'circumstantial identification' evidence, such that there was a miscarriage of justice;
Particulars:
a)the complainant both generally described and thought he recognised his attacker;
b)that recognition was such that it left open the strong inference that the Appellant was the offender.
The learned trial judge's summing up
The learned trial judge, in his summing up, said, relevantly:
Finally I turn to an overview of the case and it's a short case, the issues have been very crisply met by counsel. It would seem to me, this is an observation, that the key questions are: first, has the prosecution proved there was a robbery; have they proved that things were stolen? That depends on your view of Mr Wyatt and his honesty.
Secondly, and centrally, if you are satisfied that there was a robbery, was Mr Utting one of the robbers; has the state proved that, and that is really the central issue it seems to me of this case. As to the first, it's the state's submission that although Wyatt is hardly a worthy individual, he gave his evidence with honesty and candour that he said that he did have this money and it was taken from him.
The defence submission challenges his honesty; …
…
As to the other major question, has the state proved that it was Mr Utting who wielded the shotgun, the state doesn't say he was the knife‑wielder, it says he was the man with the shotgun. It points to the surrounding circumstances and I will just touch on some of it but all the evidence [is] available to you.
First of all, the state says there were two men; they were each masked, they were each armed. In other words, this is clearly a joint enterprise. One mask was torn off in the struggle and as you know, one of the most significant features of the state case is that the mask had Wyatt's blood on the front part, and DNA which matched the accused man Utting's profile on the inside of the mask and the hair.
So there is a mask found at the scene by police which the state says is linked clearly to the crime in two ways: one is it's linked clearly to the crime because it has Wyatt's blood on it and it wasn't just a mask from somewhere; and secondly, it has the accused's DNA on the mask, and clearer evidence really the state would say you cannot find to his being present.
There were no fingerprints or footprints. Having regard to the evidence of the fingerprint and footprint experts, the lack of such footprints does not exclude Mr Utting as being present. On the other hand, the presence of his DNA on the mask in the house is highly significant.
Added to that is the fact that the unit is the one to which the accused man Utting had access as he has said in his video record of interview; he was there earlier it is said by him, and the fact that the unit to which he went from time to time, the one where his girlfriend lived, was found a box of shotgun cartridges of the same type as the discharged cartridges and he's linked to the unfired cartridges by his fingerprint on the box.
The prosecution also rely on the phone records and the SMS records, pointing out that the two have to be read together. We all have the various documents. It was Mr Wyatt's evidence that the spoken phone calls preceded some of the text messages. As to Mr Minchin, the prosecution says firstly Mr Wyatt knows him and says it was not him; and secondly, the fact of the SMSs are sent some hours after the incident is itself an indication he was not one of the men.
The defence accepts that the accused's DNA was on the mask; however, when interviewed by the police a month later the accused provided a plausible and truthful explanation as to how it came to be there. He said that he found the mask at or near the blue skip‑type bin in the nearby park and you will remember Constable Casilli said there did appear to be a skip in the park ‑ after he and his girlfriend had attended Candy's house to obtain some amphetamines and shot up in the park, had their needles in the park.
It was while he was disposing of the needles carefully that he put on the mask to scare his girlfriend. She didn't appreciate it and he put the mask back. That is how his DNA came to be on the mask. The defence points out that except for the mask, which of course is a movable object, no DNA was found at the scene belonging to the accused; nor was his footprints, nor his fingerprints. In other words, nothing links him to the crime scene.
They say although the prosecution points to Wyatt's description bearing similarities or consistency with the build of the accused ‑ tall, I think, slim ‑ the accused is in fact six feet four inches tall and that degree of tallness was not mentioned by Wyatt.
In the course of his evidence Wyatt described the age of the person. In the transcript at page 179 and 180 he was being cross examined by Mr Scudds who asked him:
You in fact told the police the guy you pulled the mask off looked in his 20s. Is that right?‑‑‑Yes, late 20s.
No, you didn't say, 'Late 20s,' you said, '20s', you want to make that late 20s today do you?‑‑‑That's what 20s means, in his 20s.
You will recall that Wyatt thought that the man he took the mask off used to live at the house in the back room and you will recollect that Detective Casilli gave evidence that Wyatt was unable to pick out a photograph of the accused man when shown a photoboard which contained him. Now, that is all - a very brief summary of the competing arguments but what you make of it is a matter for you. I don't comment on those arguments.
…
… in the end the issues in this case, the resolution of them may not be easy but the issues seem to be fairly clear‑cut. Was there a crime of robbery that occurred? If there was, was Mr Utting one of those, those shotgun‑wielding persons?
In order to convict you would have to be satisfied beyond reasonable doubt that the answer to each of those questions was yes. As I have stressed many times your acceptance of the evidence, the drawing of inference is a matter entirely for you (ts 306 ‑ 309).
The appellant's trial counsel did not seek any re‑direction (ts 313).
The closing addresses of counsel at trial
The closing addresses of counsel at trial were not transcribed. After the appellant commenced this appeal, his solicitors requested that the closing addresses be transcribed, but the tape recordings of the addresses could not be located. By letter dated 5 December 2008, the appellant's solicitors wrote to the trial prosecutor and the appellant's trial counsel, relevantly, as follows:
Unfortunately, the Court cannot find the tapes to transcribe the closing addresses and have written to us indicating it will be necessary for us to obtain affidavit evidence from each of you as to your recollection of what was said by the prosecutor in his closing in relation to the issue of Mr Wyatt's (the complainant) belief the offender 'used to live at the house in the back room' and the connection between the Appellant and the house where the offence occurred, as led at trial by the State in the Appellant's record of interview.
The Office of the Director of Public Prosecutions filed an affidavit sworn 9 December 2008 by the trial prosecutor, Jeffrey Alan Scholz. Mr Scholz deposed, relevantly:
3.I have been asked by the Appellant's current lawyers to state my recollection of what I said in my closing to the jury '… in relation to the issue of Mr Wyatt's (the complainant) belief the offender used to live at the house in the back room' and the connection between the Appellant and the house where the offence occurred, as lead [sic] at trial by the State in the Appellant's record of interview.'
4.It is my recollection that I said nothing to the jury in my closing about Mr Wyatt's 'belief'. In relation to the Appellant's connection with the house where the offence occurred it is my recollection that I reminded the jury of the Appellant's statements in his police record of interview that he knew the female occupants of the house and that he had visited that house on many occasions including the night before or in the early hours of the morning of, and prior to the commission of the offences, to obtain drugs.
The affidavit was received as an exhibit in the appeal. The appellant did not make application to cross‑examine Mr Scholz. No affidavit of the appellant's trial counsel was filed.
The appellant's submissions
The appellant's written submissions asserted that, in the circumstances, the learned trial judge should have directed the jury that if they considered 'the evidence of the complainant (that he thought he recognised the offender as someone who had previously lived at the house) as being a reference to the appellant', his evidence was 'gravely undermined by his non‑selection of the appellant from a photoboard'.
Also, according to the appellant's written submissions, the learned trial judge should have directed the jury that the complainant may have been mistaken in his evidence that he thought he had previously seen the offender. His Honour was required to warn the jury of the danger of convicting on the complainant's 'recognition evidence'. See Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [10] ‑ [17], [21] ‑ [24]; Mills v The State of Western Australia [2008] WASCA 219 [73] ‑ [81].
Counsel for the appellant, in oral argument, conceded (properly, in my opinion) that the complainant did not, in fact, give any identification or recognition evidence (appeal ts 6). Counsel contended, however, that although the evidence in question was neither identification nor recognition evidence, it was nevertheless 'significant' in the context of the case and required a warning modelled, by analogy, on the kind of warning which the High Court held in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561 ‑ 562 was necessary where evidence as to identification represents a significant part of the proof of guilt of an offence.
The merits of the ground of appeal
The State's case against the appellant relied very substantially on forensic and other circumstantial evidence. See [7] above.
As I have mentioned, the prosecutor said in opening that the complainant 'thought he recognised this taller fellow as someone who he thought had used to stay at some stage at this house, and at one stage he thought he heard one of the robbers call the other Dave or Ben' (ts 16). The complainant did not, however, give any evidence to this effect during evidence‑in‑chief.
Although there was evidence from the appellant, in his video record of interview, that he had been to the Thornlie house about fifty times, there was no evidence that he had ever lived at or resided in the house.
The appellant's trial counsel raised with the complainant, in cross‑examination, his statement to the police to the effect that he thought the taller offender used to live at the Thornlie house. There were two relevant questions and answers:
You also said this guy that you saw, that you took the mask off, used to live at the house, you thought?‑‑‑Yes, I thought he did.
He used to live in the back room, you thought. Is that right?‑‑‑That's what I thought (ts 180).
The prosecutor did not re‑examine on the point.
This evidence, combined with the evidence that the appellant was a frequent visitor to the Thornlie house, did not constitute identification or recognition evidence. In any event, these pieces of evidence did not represent a significant part of the State's case in proof of the appellant's guilt on the counts in the indictment. The prosecutor, in his closing address, did not refer to the evidence adduced from the complainant in cross‑examination to the effect that he thought the taller offender used to live at the Thornlie house. At best, the evidence was a minor part of the proof.
In my opinion, when the evidence in question is evaluated in the context of the whole of the evidence at trial, and the State's reliance very substantially on forensic and other circumstantial evidence to prove the appellant's guilt, the learned trial judge was not required to give any direction or warning, as contended for by the appellant. No such direction or warning was necessary, in the particular circumstances of the case, to avoid a perceptible risk of a miscarriage of justice in relation to the jury's assessment of the evidence.
Conclusion
The ground of appeal is without merit. I would therefore refuse leave to appeal.
MILLER JA: I agree with Buss JA.
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