Warner v The Queen
[2020] SASCFC 19
•17 March 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
WARNER v THE QUEEN
[2020] SASCFC 19
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)
17 March 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
The appellant was convicted of one count of aggravated robbery pursuant to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
On 2 June 2016, a man dressed in a black hooded windcheater robbed the Foodland store at Seaford, armed with a knife. The robbery was captured on CCTV. The day after the robbery, a windcheater with a similar design was found within 2 kilometres of the store.
The only issue at trial was the identity of the robber. The prosecution relied upon the selection of the appellant in a photographic identification procedure and the similarities between the appellant’s appearance and the robber’s appearance (as captured on CCTV and described by witnesses).
The prosecution also relied upon the presence of the appellant’s DNA on the windcheater.
The appellant appeals against his conviction on the grounds that the trial judge erred in failing to give adequate directions on the identification evidence and that the conviction is unsafe and unsatisfactory.
Held, per Lovell J (Peek and Bampton JJ agreeing) dismissing the appeal:
1. Permission is granted on Ground 1 but it is dismissed.
2. Ground 2 is dismissed.
Criminal Law Consolidation Act 1935 (SA) s 137(1); Evidence Act 1929 (SA) s 34AB; Criminal Procedure Act 1921 (SA) s 158, referred to.
Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; R v Blundell [2019] SASCFC 84; Fleming v The Queen (1998) 197 CLR 250; M v The Queen (1994) 181 CLR 487; R v Baden-Clay (2016) 258 CLR 308; SKA v The Queen (2011) 243 CLR 400; R v Place (2015) 124 SASR 467; R v Klamo (2008) 18 VR 644; R v White (2008) 102 SASR 35; Pitkin v the Queen (1995) 130 ALR 35, considered.
WARNER v THE QUEEN
[2020] SASCFC 19Court of Criminal Appeal: Peek, Bampton and Lovell JJ
PEEK J: I would dismiss the appeal. I agree with the reasons of Lovell J and the orders he proposes.
BAMPTON J: I agree with the reasons of Lovell J and would grant permission to appeal on ground 1 but dismiss the appeal.
LOVELL J.
Overview
On 2 June 2016, a man dressed in a black hooded windcheater robbed the Foodland store at Seaford. While holding a knife, the man approached the checkout operator, Simon Robinson, and stole $1300 from two registers. The robbery was recorded on CCTV. The issue at trial was the identity of the robber.
The appellant was charged with a single count of aggravated robbery pursuant to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). He pleaded not guilty to that charge but the jury returned, unanimously, a verdict of guilty. The appellant appeals that verdict on the grounds that the trial judge failed to give adequate directions to the jury on the topic of identification and that the verdict, on the evidence, was unsafe and unsatisfactory.
The Evidence
The trial occupied two days of which there was single day of evidence.
Identification Evidence
The prosecution relied in part upon the circumstantial evidence arising out of the appearance of the offender in the CCTV footage as compared with the offender description given by Mr Robinson and another witness, Rebecca O’Neill. Mr Robinson described the robber as a Caucasian male with tanned skin.[1] He said that he could only see the man’s face from the nose downwards as his eyes were obscured by the hood of his windcheater.[2] He recalled seeing his cheekbones, chin and black facial hair with some grey hairs coming through.[3] He appeared to be in his late 20s to early 30s and looked slim.[4] He recalled the man was just under 6 foot in height. Mr Robinson gave evidence that the store lights were on at the time and that it was well lit.[5]
[1] T30.
[2] T30.
[3] T30.
[4] T31.
[5] T29-30.
Ms O’Neill did not give evidence but her statement to police was tendered and read to the jury. Ms O’Neill was entering the Foodland as the robber was exiting. In her statement, she described him as a Caucasian man with a dark coloured beard and thin lips.[6] She estimated his height to be around 5 foot 9 inches. She estimated him to be between 30 to 35 years of age.[7]
[6] T57.
[7] T57.
Mr Robinson[8] and Ms O’Neill[9] each recalled the man wearing a black hooded windcheater with a white logo/writing on the front.
[8] T29.
[9] T57.
The prosecution also relied upon the direct evidence of Mr Robinson in selecting the appellant in a photographic identification procedure conducted on 28 August 2016. At trial, Mr Robinson explained that he selected the appellant’s photograph as it “looked like the suspect that was there that night”.[10] He said that he was sure that even if the police had shown him more photos, he still would have picked that photograph as depicting the robber.[11] He further explained that the man’s gauntness and jawline were the predominant features he used to identify the robber.[12] In cross-examination, he denied that it was his view at the time that the police must have had someone in mind in the photo booklet.[13] He confirmed that none of the men in the other photographs had the same gaunt features.[14] He said he was 85% sure that the photograph he selected depicted the robber.[15]
[10] T38.
[11] T38.
[12] T38.
[13] T48.
[14] T49.
[15] T50.
The Windcheater and DNA Evidence
The morning after the robbery, Rebecca James found a windcheater in her driveway approximately 2 kilometres from the Foodland store.[16] She gave non-contentious evidence on how she found the windcheater and how it was collected and bagged by police. Ms James did not know the appellant. Counsel for the prosecution alleged that this windcheater was the windcheater worn by the robber (and seen on the CCTV footage).
[16] Exhibit P8.
The windcheater was tested for DNA. Rebecca Pinyon, forensic scientist, gave evidence that there were two contributors to the DNA profile.[17] When compared with a reference sample from the appellant, tests found a likelihood ratio of greater than 100 billion to one in favour of the proposition that the DNA profile found on the windcheater was that of Mr Warner and an unknown person rather than two unknown people being the source of the DNA.[18] The prosecution relied on the circumstantial evidence arising from these results to prove the appellant’s guilt.
[17] T75.
[18] T77.
Other evidence
Exhibit P15 is a Statement of Agreed Facts. Importantly, it states the age of the appellant at the time of the robbery (34 years old) and his height (as between 175 – 180cm or 5 foot 11 inches). The seventh agreed fact reads:
7.The description of the offender that was broadcast over the police radio by the attending officers was as follows:
7.1 male wearing black jumper with hoodie
7.2front of jumper has a peace sign, black track pants with stripes down the side, under 6 feet, well-tanned but Caucasian, not clean shaven
Grounds of Appeal
The appellant relies on two grounds of appeal:
1.The verdict is unsafe or unsatisfactory, in that:
1.1The evidence of identification was deficient to the extent that the jury, acting reasonably must have entertained a sufficient doubt to have entitled the accused to an acquittal.
1.2The alternate pathway to conviction based upon circumstantial evidence was insufficient as to the quality and quantum of the evidence to the extent that the jury, acting reasonably must have entertained a sufficient doubt to have entitled the accused to an acquittal.
2.The Learned Trial Judge erred in failing to give adequate directions to the jury on the topic of identification:
2.1The Learned Trial Judge erred in failing to give the jury a direction as to the deficiencies in the identification evidence specifically related to the circumstances of the case, in line with Domican v The Queen (1992) 173 CLR 555.
2.2The Learned Trial Judge gave an inadequate warning to the jury as to the appreciable dangers of relying upon identification evidence.
2.3The Learned Trial Judge erred in refusing the Defence application at the close of the summing up to correct the directions consistent with the Domican principles as per 2.1 above.
Ground 1 was referred to this Court on the question of permission to appeal. Justice Peek granted permission to appeal on Ground 2. It is convenient to deal first with Ground 2.
Ground 2: Inadequate Directions on Identification
Principles concerning Directions on Identification Evidence
In Domican v The Queen[19], the High Court held that specific directions are required on the weaknesses of identification evidence. Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated:[20]
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
(Footnotes omitted)
[19] (1992) 173 CLR 555.
[20] Domican v The Queen (1992) 173 CLR 555 at 561 - 562.
The rationale behind these directions is founded upon the experience of courts in miscarriages of justice arising from the seductive effect of identification evidence.[21]
[21] Domican v The Queen (1992) 173 CLR 555 at 561.
As to how the adequacy of directions on identification evidence is to be assessed, Kirby J in Festa v The Queen[22] said:[23]
The adequacy of a warning to the jury concerning the dangers of identification evidence is not measured, as such, by its length. It depends on its content, balance and weight. What is required is not a particular set of words or a rigid formula, with a failure in compliance resulting in the verdict being quashed. The law requires that the judge bring his or her authority to bear so that the jury understand that mistakes can occur from genuine but wrongful identification. The warning given must not be “the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence”.
(Footnotes omitted)
[22] (2001) 208 CLR 593.
[23] Festa v The Queen(2001) 208 CLR 593 at 645 [173].
Section 34AB of the Evidence Act 1929 (SA) deals with evidence of identification obtained by use of photographs rather than a physical line-up. In R v Blundell[24], Peek J (with whom Kourakis CJ and Hughes J agreed) remarked that s 34AB(3) does not have the effect of diluting the directions required by Domican.[25]
[24] [2019] SASCFC 84.
[25] R v Blundell [2019] SASCFC 84 at [23].
The Primary Judge’s Summing Up
The appellant submitted that the primary judge’s directions on the topic of identification were inadequate. It is necessary to consider the summing up as a whole.
The initial part of the summing up is dedicated to customary directions on the role of the jury, the burden of proof, the accused’s right to silence and the credibility of witnesses. The primary judge then summarised the evidence.
The primary judge referred to Mr Robinson’s identification of the robber and noted:
This is, as you might have gathered from what counsel have said to you, the key issue in this case and I will return to the topic of identification shortly.
Having described the elements of the offence, the primary judge returned to the question of identification evidence. She drew the distinction between direct evidence and circumstantial evidence, classifying Mr Robinson’s evidence, correctly, as direct evidence. Direct evidence is evidence which, if accepted, tends to prove a fact in issue. Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred. A fair reading of Mr Robinson’s evidence reveals a positive identification (with some qualifications).
The primary judge commenced her warnings concerning the dangers with identification by dealing with the evidence of Mr Robinson. The primary judge stated that the jury should approach Mr Robinson’s identification with caution. She warned the jury that:
The experience of the courts is that honest witnesses can be mistaken in making identifications and miscarriages of justice have occurred as a result. Witnesses can be mistaken even though quite sure of their identification. A mistaken witness who is sure of his identification can be a convincing witness and acceptance of that evidence can lead a jury into error. The ability to form and retain an accurate impression of a culprit including that person’s physical appearance and features, his dress or any other distinctive features may be affected by many factors including the witness’s involvement in the incident, his state of mind at the time of the observations as well as the frailty of human observation and memory and a tendency to reconstruct events in the mind over a period of time. You have probably all had experience in your own lives of mistaking a person’s identity. How often have you thought that you saw someone you knew, perhaps on a bus, only to find that it was not the person that you thought it was. It can happen even when the person is previously known, even well known, to the observer but of course the risk of error is much greater where the person is a stranger.
The primary judge then turned to the specifics of Mr Robinson’s evidence. She stated:
In approaching your task, you should examine first the circumstances in which the original observation occurred. How long did Mr Robinson have the robber under observation? At what distance? In what light? Was his observation impeded in any way? Was there anything distinctive about the appearance of the robber?
Then you should consider the circumstances in which Mr Robinson identified the accused as the culprit, namely the photographic identification process that you can see in the video Exhibit P4 using the photo booklet Exhibit P3.
The primary judge then warned the jury about the dangers involved in the use of photographs when identifying a suspect. Having referred to a number of matters, including the fact that Mr Robinson may have been under pressure to pick a photograph of someone who looked like the offender, the primary judge stated:
This robbery occurred on 2 June 2016 and the photo identification occurred on 28 August 2016. Did anything occur between the time of the observation of the culprit and the identification to the police which could have contaminated Mr Robinson’s memory of the culprit? How sure was Mr Robinson in selecting the accused? Did Mr Robinson express any reservation either then or now. You must consider the video of the identification process and the submissions of both counsel when you consider those issues.
It was in this context that the primary judge turned to the question of the weaknesses in the identification evidence. She stated:
In particular I remind you of what Mr Coates said to you this morning. He said there were weaknesses in the identification. He reminded you of the short time during which the offender was under observation. You will recall Mr Coates’ reference to Exhibit P6 and the time stamps on these CCTV stills showing the robber in the store for about 23 seconds in total and Mr Coates’ suggestion that Mr Robinson could only have seen the robber for a matter of seconds. He reminded you of the limited view that Mr Robinson had of the robber’s face basically from the nose down due to the combination of the hoodie and the beanie, the traumatic nature of the event being experienced by Mr Robinson at the time of the observations, and Mr Robinson’s comments at the time of the identification, which you can see on the video that you have, which Mr Coates suggested indicated a lack of certainty on the part of Mr Robinson and the possibility that Mr Robinson was not identifying the offender so much as identifying the person most like the offender. Mr Coates also referred to Mr Robinson’s evidence to you that he was only 85% sure that the person in the photograph was the person who took money out of the till on 2 June 2016.
(Emphasis added)
The primary judge concluded:
So, ladies and gentlemen, they are all matters for you to consider but whilst I am required to alert you to the dangers attendant upon acting on identification evidence, I should also say to you that if after careful consideration of Mr Robinson’s evidence and after properly considering the warning that I have given you together with the submissions of both counsel you were satisfied beyond reasonable doubt about the correctness of the identification of the accused, then you are entitled to act upon Mr Robinson’s evidence of identification.
After the judge finished summing up, counsel for the appellant requested that further directions be given on the topic of identification evidence. Mr Coates said:
My only concern is with respect to the identification directions and it may be that I misheard but as I heard it, with respect to any weaknesses in there, your Honour referred to simply the arguments of counsel in that regard.
In my submission, it perhaps needs to go further than that, that your Honour would be required to point out those weaknesses with the judicial imprimatur as opposed to simply those being the arguments of counsel.
The judge declined to redirect on the basis that her reference to counsel’s submissions was made in the context of matters the jury had to consider.
Consideration
The appellant submits that the directions were inadequate for the following reasons:
·the primary judge’s direction (on page 6) that the jury should approach the identification evidence with caution fell short of what was required, namely that the jury must approach the evidence with caution;
·the “simple reference” to appellant counsel’s submissions on the identification evidence was insufficient and was a type of direction warned against in Domican;
·the primary judge failed to isolate and identify factors which undermined the reliability of the identification evidence (as required by Domican) and to the extent that the judge did so it was only by reference to defence counsel’s submissions;
·the primary judge’s direction (on page 8) that the weaknesses are “matters for you to consider” and that the jury could act upon the evidence of identification seriously undermined any impact of the previous directions; and
·the primary judge erred in failing to redirect the jury. Without the redirection, the jury were left with inadequate directions on potential deficiencies in the identification evidence.
While a primary judge must give directions in accordance with the principles enunciated in Domican, there is no prescribed form of words that must be used. What is required is that the judge bring his or her authority to bear so that the jury understands that mistakes can occur from genuine but wrongful identification. The primary judge did not err, in the circumstances of this case, in directing that the jury should approach the identification evidence with care.
The appellant further contended that the primary judge should have given directions on the weaknesses in the identification evidence without referring to defence counsel’s submissions.
It is plain from Domican that “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”.[26] A trial judge must give judicial imprimatur to those weaknesses. Where defence counsel raises matters that may be reasonably regarded as undermining the reliability of identification evidence, the trial judge must direct the jury that they are bound to consider those factors when determining whether to rely upon that evidence.[27]
[26] Domican v The Queen (1992) 173 CLR 555 at 564.
[27] Domican v The Queen (1992) 173 CLR 555 at 564.
The impugned directions must be considered within their context. It is not erroneous to refer to defence counsel’s submission on the topic, so long as there are directions which give the necessary judicial authority to the particular weaknesses in the identification evidence. The weight of judicial authority should be given to the direction of the dangers in relying upon identification evidence. The directions must amount to a warning. The directions must not be "the perfunctory or half-hearted repetition of a formula”, but give guidance to the jury of the dangers inherent in identification evidence and draw the jury’s attention to the potential weaknesses in the evidence. Whilst it would have been preferable for the primary judge not to mention the submissions of counsel, in my view, in context, the primary judge was clearly putting her judicial authority behind the directions.
Before referring to defence counsel’s submissions, the primary judge gave clear and cogent directions on the weaknesses of the identification evidence. The judge couched those directions in terms of the experience of the courts with miscarriages of justice arising from incorrect identifications. As discussed, the primary judge followed these directions with several concise questions concerning Mr Robinson’s observation of the robber.
The primary judge then brought into focus the weaknesses in the photographic identification process and the factors affecting its reliability (including that photographs are two-dimensional, static and limited, do not depict the manner of moving, posture, a variety of facial expressions, complexion, body size or colouring).
Having given those directions, the primary judge stepped through the weaknesses in the identification evidence as outlined by defence counsel. The primary judge commenced the directions with the phrase “in particular, I remind you what Mr Coates said to you this morning”. As is often the case, context is important. The effect of those words was to link the submissions of defence counsel to the preceding cautionary directions.
It is clear that the primary judge was endorsing the fact that Mr Robinson could only have seen the robber for no more than 23 seconds, that he had a limited view of the robber due to the combination of the “hoodie and the beanie” and that the evidence established that he was only 85% certain of his identification. The primary judge had previously indicated that the jury should approach photographic identification with particular care.
In the course of the directions which have been referred to earlier in these reasons, in my view the primary judge adequately highlighted the problems with respect to the evidence. She pointed out the difficulties associated with the identification evidence of Mr Robinson.
The reference to counsel’s submissions at this juncture did not deprive the directions about the weaknesses in the identification evidence of their judicial authority. In context, it was a short-hand method of identifying the evidence from which the jury may infer that there were weaknesses in the identification evidence; in my view, the jury would have understood it in that way.
To put that another way, the jury would have understood that the primary judge was identifying potential weaknesses in the evidence of Mr Robinson on topics she had raised earlier in the summing up when posing questions to the jury. In context, the primary judge was not repeating in a perfunctory or half-hearted way counsel’s submissions at some later stage of the summing up. The primary judge’s reference to counsel’s submissions was part of the fabric of the warning about the dangers inherent in identification evidence. The primary judge’s direction ensured that the jury understood the possible weaknesses in identification evidence and the need for it to take particular care in its use. The fact that the primary judge referred to counsel’s submissions did not detract from the warnings.
Further, I do not consider that the categorisation of the weaknesses as “matters” for the jury to consider would have obfuscated the preceding directions.
For these reasons, I would dismiss Ground 2 of the appeal.
Ground 1: Unsafe and Unsatisfactory Verdict
Pursuant to s 158 of the Criminal Procedure Act 1921 (SA), this Court is required to allow an appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. The ground of appeal, as often occurs, alleges that the verdict of the jury is “unsafe and unsatisfactory”.[28]
[28] While it is preferable that the actual words of the statutory formulation be used (see Fleming v The Queen (1998) 197 CLR 250 at 256 [12]), “unsafe and unsatisfactory” is well understood to be a short hand description of s 158(1)(a).
However the ground of appeal is expressed, the test to be applied when dealing with this ground was enunciated by the High Court in M v The Queen[29]. The question on appeal is whether this Court considers “that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.[30] When considering the ground of appeal, the Court must give full weight to the jury’s advantage in having seen and heard the witnesses give their evidence.[31]
[29] (1994) 181 CLR 487.
[30] M v The Queen (1994) 181 CLR 487 at 493.
[31] M v The Queen (1994) 181 CLR 487 at 493.
As the High Court stated in R v Baden-Clay:[32]
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.
(Footnotes omitted)
[32] (2016) 258 CLR 308 at 329 [65] - 330 [66].
While bearing in mind the advantage enjoyed by the jury, the Court, on appeal, must conduct a thorough assessment of the evidence both as to its sufficiency and quality. As the High Court stated in SKA v The Queen:[33]
In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.
(Footnotes omitted)
[33] (2011) 243 CLR 400 at 406 [14].
In R v Place[34], this Court noted the approach adumbrated by the Victorian Court of Appeal in R v Klamo:[35]
[34] (2015) 124 SASR 467 at 493 [78].
[35] (2008) 18 VR 644 at 653 [38] - 654 [40].
The approach required of appellate courts in considering the “unsafe and unsatisfactory” ground involves the following steps:
1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
A guilty verdict can only be said to have been “reasonably open” to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion. In Libke v R, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the “unsafe and unsatisfactory” ground:
… But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
In other words, the question posed in M v R, namely:
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the
accused’s guilt?
requires the court of criminal appeal to decide:
… whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a “solid obstacle to reaching a conclusion beyond reasonable doubt” or whether, instead, the “path to a conviction was open”.
(Footnotes omitted)
On appeal, counsel for the appellant accepted that once identification evidence is admitted, and appropriate directions given, it is open to the jury to consider that evidence in conjunction with any other circumstantial evidence that goes to proving the involvement of the accused.[36] The question is, when considering the totality of the evidence, was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt? To adopt the expression utilised in other cases, was there was a solid obstacle to the jury reaching the verdict beyond a reasonable doubt?
[36] R v White (2008) 102 SASR 35 at 38 [12].
The appellant submitted that the defects in the identification evidence were such that the verdict was unsafe and unsatisfactory. In particular, the appellant submitted that it is inherently unsafe to rely upon an identification of a robber by the lower portion of his face only. The crux of the submission was that an identification without hair, eyes, forehead and ears is inherently unreliable. The appellant submitted that this unreliability is compounded by the fact that the observation was brief and in traumatic circumstances. The issues with the identification evidence, in the appellant’s submission, could not be cured by the DNA evidence.
The appellant also submitted that Mr Robinson was equivocal when selecting the appellant in the photograph identification procedure; that is, it was not a positive identification of the appellant. The identification procedure was recorded and shown to the jury.[37]
[37] Exhibit P4.
At trial, Mr Robinson was examined on his selection:[38]
[38] T37-38.
QThere was a point in the video where you said 'I do believe he does look like the person that I did see that was there. I am just going to say it's No.3'.
AYes.
QAnd then later on you said 'I do believe that it's the gentleman that was there that night that we were robbed or held up, I guess so'.
AYes, I do.
QWhen you were selecting photograph 3 were you selecting who you thought was responsible or were you selecting who you thought, out of the eight people, looked the most like the person responsible. Can you see the difference.
AYes. So, it looked like the suspect that was there that night.
QAnd does that look the most like of those people or how sure are you that the person that you picked was the person.
AI'm sure as even if they had showed me more photos, I still would have picked him.
QAnd you mentioned, I think, in the video that there were some aspects about the face, in particular, I think the gauntness and the jaw line.
AYes.
QAre they the predominant features that you used to identify the male.
AYes, it was.
Mr Robinson was then cross-examined on why he selected the appellant’s photograph:[39]
[39] T49-50.
QSo you said that initially when you made that selection that you had a picture, 'I have picked, I do believe he does look like the person that I did see that was there, I'm just going to say it's number 3'. So is the number 3 that you selected was someone who at least their jawline and the sort of gaunt face, those are things that just look like the person that robbed you.
AThey were the similar features that look like the suspect on the night.
QI suppose what I am driving at if I say those features were there that looked like the suspect, is it a situation where you'd say 'Well, it looks similar to but I couldn't say for a hundred per cent certain that that is exactly the same bloke that did in fact rob me'.
AAs I stated before even if they showed me more photos, it still would have been him.
QHim as someone that you selected that looked similar to the person that robbed you.
AYes.
QWhat I am asking is, is it fair to say that you could look at that photo and particularly say the bottom half of it and say 'Well, the jawline and the gauntness look similar to the robber but I couldn't be a hundred per cent certain that that is the actual bloke who robbed me'.
AI would say I'd be 85% sure.
Mr Coates, for the appellant, submitted that Mr Robinson’s evidence that he selected the person who looked similar to the person that robbed him is an equivocation. He argued that when taken in conjunction with the “generic” description of the robber’s age, height, racial profile and the brief observation of the bottom half of his face, there must have remained sufficient doubt to acquit. Mr Coates submitted that Mr Robinson’s evidence did not amount to positive identification evidence that would support, standing in isolation, a conviction beyond reasonable doubt.
Mr Coates conceded on appeal, however, that it was open to the jury to infer that the windcheater worn by the robber was the same windcheater found the day after the robbery. DNA testing revealed the presence of DNA and the fact that there were two contributors. The likelihood ratio of the appellant being a contributor to the DNA profile on that windcheater, as opposed to an unknown male, was greater than 100 billion to one. The other contributor remained unidentified.
Mr Coates argued that the DNA evidence relating to the windcheater gave rise to an “alternate hypothesis”, as there was an unknown contributor. The unknown contributor, it was submitted, could have been the robber. Mr Coates submitted that the existence of an unknown contributor rendered the DNA evidence equivocal so as to provide a block to the pathway to guilt.
Consideration
I reject the submissions of Mr Coates. I do not agree that Mr Robinson’s evidence betrayed a lack of confidence in his selection. Mr Robinson said he was “85% sure” that the photograph depicted the man he witnessed. He confirmed in cross-examination that he did not think that police must have had a suspect at the time. He gave evidence that even if they had presented more photos to him, he still would have selected the photo of the appellant. Mr Robinson made plain in his evidence that he did not select the appellant because he looked the most like the robber, but rather because he thought he was the man who robbed the store. He identified distinguishing features (namely, his jawline and facial gauntness) and remained sure of his description when cross-examined. Mr Robinson observed the robber in a well-lit room. Indeed, Mr Robinson made plain that he had “seen a lot of what his face looked like in that short amount of time”.[40] In my view, Mr Robinson gave positive evidence of identification.
[40] T45.
Mr Robinson’s identification evidence is distinguishable from the impugned identification in Pitkin v the Queen[41], where the witness merely remarked that the selected photograph depicted a man “that looks like” the robber, without any evidence by way of explanation or elucidation.[42] Mr Robinson explained why he thought the photograph of the appellant depicted the robber he had witnessed.
[41] (1995) 130 ALR 35.
[42] Pitkin v the Queen (1995) 130 ALR 35 at 39 - 40.
Even if I am incorrect in my classification of Mr Robinson’s evidence, it was still probative evidence the jury were entitled to have regard to when looking at the evidence in its entirety.
The windcheater found less than 2 kilometres from the scene, the morning after the robbery, was the same colour and had the same white logo as the windcheater seen worn by the robber on CCTV. It was clearly open to the jury to find that this windcheater was the one worn by the robber. The likelihood ratio of the appellant being a contributor to the DNA profile on that windcheater, as opposed to an unknown male, was greater than 100 billion to one. As to the “alternate hypothesis”, it was open to the jury to consider that the appellant had come into contact with a person (the unknown contributor) wearing the jumper. However, the DNA evidence should not be considered in isolation. It must be looked at in light of the identification evidence, including the selection of the appellant in the photographic identification procedure.
Taken together, the evidence was sufficient for the jury to infer the appellant’s involvement in the robbery. In my view, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. There was no solid obstacle to the jury being satisfied beyond a reasonable doubt of the appellant’s guilt.
For these reasons, I would grant permission to appeal on Ground 1 but I dismiss the ground.
Order
I would dismiss the appeal.
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