Weglewski v The State of Western Australia

[2020] WASCA 28

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   WEGLEWSKI -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 28

CORAM:   BUSS P

BEECH JA

VAUGHAN JA

HEARD:   16 JANUARY 2020

DELIVERED          :   6 MARCH 2020

FILE NO/S:   CACR 51 of 2019

BETWEEN:   LECH EWARYST WEGLEWSKI

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   FIANNACA J

File Number            :   INS 400 of 2017

Catchwords:

Criminal law and appeals - Evidence - Identification evidence - Evidence identifying or describing objects - Distinction between positive identification evidence and description evidence - Whether identification warning required to avoid a perceptible risk of miscarriage of justice

Legislation:

Nil

Result:

Extension of time to appeal refused
Leave to appeal refused
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant	:	T R Stephenson
Respondent	:	B M Murray

Solicitors:

Appellant	:	T R Stephenson
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Criddle v The State of Western Australia [2017] WASCA 17

Crupi v The Queen (1995) 86 A Crim R 229

Durani v The State of Western Australia [2012] WASCA 172

Eravelly v The State of Western Australia [2018] WASCA 139

Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593

Hirst v Police [2006] SASC 244; (2006) 95 SASR 260

Huggins v The State of Western Australia [2018] WASCA 61

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Okoli v The Queen [2019] WASCA 91

R v Clout (1995) 41 NSWLR 312

R v GW [2016] HCA 6; (2016) 258 CLR 108

R v King (1975) 12 SASR 404

R v Lowe (1997) 98 A Crim R 300

R v Whalen [2003] NSWCCA 59; (2003) 56 NSWLR 454

R v Zullo [1993] 2 Qd R 572

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Theos v The Queen (1996) 89 A Crim R 486

Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159

JUDGMENT OF THE COURT:

1. The appellant seeks an extension of time to appeal against his convictions of five offences, all arising out of a single incident.  He and Mr Jacob Harris were tried together on an indictment charging them with aggravated home burglary, aggravated assault with intent to rob, aggravated grievous bodily harm, stealing and aggravated unlicensed possession of a firearm.  Both accused were convicted of all five offences.

2. The appellant advances a single ground of appeal, complaining of the trial judge's failure to give warnings, or his giving of inadequate warnings, concerning:

   (a)the danger of accepting unsatisfactory eyewitness identifications of objects alleged to have been used by the offenders in the offences;

   (b) the need for the jury to closely examine (i) the circumstances in which the identifications of those objects were made by the witnesses and (ii) discrepancies between the witnesses' description of the objects and the objects' actual appearance;

   (c)the use of digiboard evidence against both the appellant and Mr Harris; and

   (d)the dangers of relying on the DNA of a further alleged co-offender that was found on one of the objects.

3. In our opinion, the circumstances of the case did not require any warnings of the kind for which the appellant now contends.  In short, that is because nothing in the circumstances of the case gave rise to a perceptible risk of a miscarriage of justice, there being no feature of the evidence giving rise to a hidden danger which may have adversely affected its reliability and which may not have been evident to the jury.  Consequently, we would refuse the applications for an extension of time to appeal and for leave to appeal, and would dismiss the appeal.

4. In order to explain these conclusions, we will outline the evidence and the parties' cases at the trial.

The evidence at trial

1. As noted above, the appellant was tried with his alleged co-offender Mr Harris.  A third alleged co-offender, who the prosecutor named as Mr Jade Monk‑Karipa, was not tried and has not been charged.

2. The evidence led by the State may be summarised as follows.

3. Mr Eric Hansen, Ms Amanda Sycamore and four children lived at 51 Kiln Road, Carabooda.  The property is on a dead-end road and is located in a semirural area. There is a shed at the front of the property, between the house and the road.  The house has a front porch area.  The front porch leads down to a grassy area between the house and the shed.  The grassy area can be accessed from the porch in two ways:  a step opposite the front door or a bridge perpendicular to the front door.

4. At 11.12 pm on 23 March 2017, closed circuit television (CCTV) footage from a house at the bottom of Kiln Road captured a car driving up the dead‑end road.[1]  It was dark, so only the car's headlights were visible.  Shortly afterwards, through their bedroom window, Mr Hansen and Ms Sycamore saw the car's headlights come to a stop on the road outside the front gate of their property.[2]  As it was a quiet street,[3] Mr Hansen and Ms Sycamore went out to investigate.[4]

   [1] ts 646; exhibit 42A.

   [2] ts 122, 123, 129, 147 - 148, 166, 189 - 190, 191, 231 - 232.

   [3] ts 122, 189.

   [4] ts 122, 123, 189, 232.

5. When they got outside onto the grassy area between the house and the shed, Mr Hansen saw two people go into the shed through the open door.  Mr Hansen called out something like, 'What are you doing?  Piss off'.[5]  The car's horn started beeping and the two people came out, 5 to 10 seconds after they had gone inside.[6]  At some point, the sensor light on the outside of the shed door turned on.[7]  Ms Sycamore gave evidence that the shed's main lights, big fluorescent lights, were also on, as well as a dim citronella light on the front porch.[8]  Both Mr Hansen and Ms Sycamore saw the two people come out of the shed.[9]  The two people then headed towards Mr Hansen and Ms Sycamore.[10]

   [5] ts 123.

   [6] ts 150, 166 - 167.

   [7] ts 123, 148 - 149, 150, 191.

   [8] ts 190, 232 - 233, 237.

   [9] ts 123 - 124, 150, 191.

   [10] ts 123,150, 167, 191.

6. Mr Hansen's evidence was that one was shorter and stockier and the other was taller and skinnier.[11]  He thought they were both wearing black, but 'that could have been the shadows or what not'.[12]  The shorter one had a gun, which Mr Hansen thought was a rifle.[13]  The taller one had what Mr Hansen thought was a pole or a baseball bat.[14]  When they were coming towards Mr Hansen and Ms Sycamore, the shorter one yelled, 'Get on the ground or I'll shoot'.[15]  At this point, Mr Hansen ran off into the darkness.[16]

   [11] ts 137, 157 - 158.

   [12] ts 137.  See also ts 157.

   [13] ts 124, 137, 150 - 151, 158.

   [14] ts 124, 151, 158.

   [15] ts 124, 151.

   [16] ts 124, 151.

7. Mr Hansen was cross-examined on various aspects of what he had and had not told the police and put in his police statements.  He agreed that he never told the police that the man was carrying a pole, having instead referred to it as a baseball bat.[17]  He agreed that his police statements did not refer to his having seen the same car on two occasions in the days before the incident, although he said he mentioned this to the police.[18]  He also agreed that his witness statements did not refer to the Subaru as being green, although, again, he said he told the police of this.[19] 

   [17] ts 159, 165.

   [18] ts 160 - 161.

   [19] ts 162 - 164.

8. Ms Sycamore's evidence was that the two people made to chase Mr Hansen but instead chased Ms Sycamore towards the house.[20]  The person who, as she could see, had the gun yelled, 'Get on the ground or I'll fucking shoot'.[21]  Ms Sycamore ran inside the house and attempted to hold the front door shut.  However, the man with the gun got his foot in the door and used the gun to smash through the glass in the door.  He managed to push his way in and drag Ms Sycamore out onto the front porch by her hair.  He threw her down near the step leading down to the grassy area.[22]

   [20] ts 191, 233 - 234.

   [21] ts 192, 233.

   [22] ts 192 - 194, 195, 196, 234 - 235.

9. Ms Sycamore's evidence was that the gunman was wearing a balaclava with a cut-out for the eyes that was 'roundish' in shape, a black cable-knit jumper, ski gloves, black pants and black lace-up steel-cap boots.  His clothing covered all of his skin except his eyes.  He was not much taller than Ms Sycamore, who is 167 cm, and was quite ugly, with a big pot belly.  She thought he was white, had an Australian accent and was in his late 30s.[23] 

   [23] ts 194 - 195, 234, 239, 250.

10. Ms Sycamore described the gun he was holding as a pistol.  She said it was wrapped in black electrical tape.[24]  Subsequently, she did a sketch of the gun.[25]  The squiggly lines she drew on the gun were to indicate the electrical tape wrapped around the gun, which covered 'pretty much the whole of' the gun.[26]  At the time she saw the gun, it was clear to her that it was covered in black electrical tape.[27]

    [24] ts 192, 236.

    [25] ts 219; exhibit 6.

    [26] ts 236.

    [27] ts 236.  See also ts 256.

11. When the gunman dragged her onto the front porch, the second person was located on the bridge leading down to the grassy area.[28]  He was holding a metal pole, which Ms Sycamore described as about one and a half metres long, gold and hollow, in a position that made it look like he was ready to strike.[29]  In cross‑examination she confirmed that she saw quite clearly the gold metal pole.[30]  His face was visible from the bridge of his nose up to his hairline, with a bandana covering the rest of his face.  He had black bushy eyebrows, dark brown eyes and tan skin.  He was much taller and had broader shoulders than the gunman, but was not fat.  He was wearing a pair of runners, a pair of jean shorts and an acid wash jumper with a circular logo, maybe a surf brand, on the front.  Based on his accent, she thought he was Maori.[31]

    [28] ts 196 - 197, 220.

    [29] ts 196 - 197.

    [30] ts 238.

    [31] ts 196 - 197, 238 - 239.

12. After throwing Ms Sycamore near to the front step, the gunman held the gun to her face and yelled at her, telling her to give him the money.  He said, 'Get outside you fucking slut.  Get on the ground.  I'll fucking kill you'.[32]  She was screaming at him, telling him to leave them alone and that there were kids inside.  She also tried to swat the gun away from her face.  The gun connected with her left forearm, leaving a mark.  He then turned, cocked the gun and pointed it at her again, saying, 'Give me the money or I'll fucking kill you'.[33]  The gun fired.

    [32] ts 195.

    [33] ts 198.

13. The gunman was standing at the bottom of the step and Ms Sycamore was crouched on the porch at the top of the step, with her legs on the step.[34]  The gunman shot Ms Sycamore in the right ankle from point‑blank range.  She felt a sharp pain and her ankle started bleeding.  She asked him 'why he fucking shot [her].  What did [she] do to deserve it?'  He continued yelling at her, telling her to get him 'the fucking money'.[35] 

    [34] ts 217 - 218.

    [35] ts 198 - 199.

14. He then went to cock the gun again, turned away from Ms Sycamore and started fiddling around with the gun.  Ms Sycamore put her head down, put her hands over her head and closed her eyes.  She heard a click when the gunman pulled the trigger again - the gun had not fired.  In response, Ms Sycamore laughed at him and said, 'Is that all you've got?'  Her eyes remained closed and she heard him cock the gun again.  She heard and felt him shoot her left foot, grazing it.[36]

    [36] ts 199 - 200.

15. After the second effective shot, Ms Sycamore heard her son punch the wall between the porch and her two sons' bedroom from the inside.  The gunman ran inside the house and Ms Sycamore saw her sons' bedroom light turn on.  She heard the gunman yelling at her 7‑year‑old and 8‑year‑old, saying 'Where's all your mum's fucking money?'  Her 7‑year‑old replied, 'My mum doesn't have any money'.[37]  While this was happening, Ms Sycamore pleaded with the pole-bearing man to get the gunman out of her kids' room.  The pole-bearing man told her to shut up.  Ms Sycamore said the gunman was inside for 'maybe a minute', or, in cross-examination, 'maybe two minutes, three minutes'.[38]  Following this, she saw the light turn off, heard the bedroom door slam and saw the gunman come back through the open front door.[39]

    [37] ts 200.

    [38] ts 240.

    [39] ts 200.

16. The gunman came to where Ms Sycamore was positioned, now directly outside the front door, and kicked her straight to the face above the right eye.  She asked him what she had done to deserve this and said, 'Why are you doing this to me?'  He responded, 'Where's the money?' and kicked her again.  This time Ms Sycamore put her right arm up to block the kick and the kick connected with her forearm, breaking her ulna.  She said, 'You just broke my fucking arm … Why did you break my arm for?'  He responded by kicking her to the back of the head.[40]

    [40] ts 201, 219.

17. At this point, Ms Sycamore heard the car's engine revving and its horn tooting.  The man with the metal pole said, 'Let's go', and he and the gunman ran towards the car.  By now, the car had made its way up the driveway from the road to the edge of the grassy area, about 3 metres from Ms Sycamore.  As the gunman was getting in the car, he yelled, 'Put the fucking money in the letterbox and we'll be back at 12 o'clock'.  The gunman got into the front passenger seat and the pole-bearing man got into the back seat behind the driver.[41]  She could not provide a description of the driver.[42]  At that point in time she was in hysterics and did not pay attention to the driver.[43]  The car reversed out of the driveway and drove away down Kiln Road.[44]

    [41] ts 197, 202 - 203, 240 - 241.

    [42] ts 202.

    [43] ts 240.

    [44] ts 203, 241.

18. She recognised the car, by its shape and colour, from having seen it drive past two days earlier.[45]  She was sure it was the same car.[46]  She described the car as an old family wagon with a squared-off back, dark green on top and a darker colour on the bottom.[47]  She did a sketch of the vehicle for the police.[48]  She drew lines down the back of the car, to show its square back.[49]  Following the shooting, when she was in hospital, she did some research on Google and identified the car as a Subaru Liberty.[50]

    [45] ts 197.

    [46] ts 226, 243, 248.

    [47] ts 223 - 224.

    [48] ts 226; exhibit 8.

    [49] ts 226, 242 - 243.

    [50] ts 243 - 244, 248.

19. By the time the car reversed out of the driveway to drive away, Mr Hansen had made it to a neighbour's house at the bottom of Kiln Road.  Having heard two gunshots, he heard the car coming down the road and went to hide in the bushes at the front of the neighbour's house.  He saw the car turn right out of Kiln Road and said it 'took off'.[51]  CCTV footage from the same house that had captured the car driving up Kiln Road at 11.12 pm captured it heading down the road at 11.19 pm.[52]  Mr Hansen said he thought the car was a green Subaru Forester.[53]

    [51] ts 127, 170 - 171.

    [52] ts 298, 646; exhibit 42A.

    [53] ts 127. See also ts 139.

20. Both Mr Hansen and Ms Sycamore gave evidence that the same car had driven past their property on previous occasions.  Mr Hansen said that he had seen the same car, an older model green Subaru Forester, drive by the property on two or three occasions prior to the shooting.  Those drive‑bys occurred in the five days leading up to the shooting, perhaps the night before the shooting and a couple of nights before that as well.  He said they happened after work, as the sun was going down.  On each occasion he only saw the driver, who he described as a 'bigger stockier bloke with a beard'.[54]  He was pretty sure that, at least on the last two occasions, the driver was the same person.[55]

    [54] ts 137 - 138. See also ts 160 - 161.

    [55] ts 138.

21. Ms Sycamore said the same car had come past on two previous occasions.  At around 3.30 pm on 22 March 2017, the day before the shooting, while she and Mr Hansen were outside the shed, the car had come up Kiln Road, done a U-turn and driven back past the property 'really slowly'.  She had seen a male driver and a male passenger.  The driver's build was quite large, his skin colour was white, and he looked to be in his 30s.  He had a beard, brown hair that fell halfway down his neck and was wearing a hat.[56]  In cross-examination, Ms Sycamore agreed that, in a statement to the police, she had described the driver as having long, straight, shoulder-length brown hair.[57]  The same car also drove past the day before, on 21 March 2017, again while she and Mr Hansen were outside the shed.  This time, she could not see the occupants of the car.[58]  In cross-examination, she agreed that, in her police statement, she had said that the driver on the earlier occasions was the shooter on the occasion of the main incident.[59]

    [56] ts 224 - 225.

    [57] ts 249.

    [58] ts 225.

    [59] ts 249 - 250.

22. CCTV footage from the house at the bottom of Kiln Road captured, on 21 March 2017, a car (similar in appearance to that described by both Mr Hansen and Ms Sycamore) driving up Kiln Road at 4.39 pm and driving back down the road at 4.40 pm.[60]

    [60] ts 645; exhibits 42A, 42B.

23. At about 11.28 pm on 23 March 2017, shortly after the shooting, police attended the property.[61]  As a result of the information provided to them, the police were on the lookout for a green Subaru Forester, or something similar in appearance.[62]

    [61] ts 257.

    [62] ts 270, 288, 637.

24. At about 12.45 am on 24 March 2017, approximately 90 minutes after the shooting, a police officer, Senior Constable Bradley, stopped a green Subaru Outback station wagon on Joondalup Drive, near Carramar, a few suburbs south of Carabooda.  The appellant was driving and Mr Harris was in the front passenger seat.[63]  The car was later found to be registered in the name of the appellant.[64]  After two more officers arrived at the scene, Senior Constable Bradley conducted a search of the car.  He found four rounds of ammunition in the driver's door and centre console,[65] two of which had been fired.[66]  In a hidden compartment in the tailgate of the vehicle, between the metal outer skin and plastic inner lining, he found a firearm, two black balaclavas and a glove.[67]  Following this discovery, the appellant and Mr Harris were placed under arrest.[68]  A team of forensic officers arrived at the scene shortly afterwards and, after a more thorough search of the car, found a metal pole in the footwell behind the driver's seat.[69]  The metal pole was silver in colour.[70]

    [63] ts 270 - 273.

    [64] ts 641 - 642.

    [65] ts 274.

    [66] ts 491; exhibit 27.

    [67] ts 274 - 275, 276 - 277, 279.

    [68] ts 281.

    [69] ts 328 - 329.

    [70] Exhibit 18.

25. The items found in the car were seized and submitted for DNA testing.  Mr Harris' DNA was identified on the firearm and on one of the balaclavas.  The appellant's DNA was identified on the other balaclava.  Mr Monk-Karipa's DNA (to a greater extent) and the appellant's DNA (to a lesser extent) were identified on the metal pole.[71]  As to the four rounds of ammunition and the glove, either (1) DNA was not detected on them or (2) the DNA profile that was detected on them was not suitable for comparison purposes.[72] 

    [71] ts 595 - 596, 599 - 601, 606, 607, 608; exhibit 37.

    [72] ts 602 - 604; exhibit 37.

26. The police also found a white Samsung mobile phone in the handle of the driver's door.[73]  The contents of that phone were later downloaded.[74]  On the State case, it was clear from the phone's location when it was seized and from the content of its messages that it was the appellant's phone.[75]  On the State case, three of the messages found were of particular interest:

    (1)At 8.51 pm on 20 March 2017, a message was sent from 'Muzzy' (who on the State case was Mr Mariusz Weglewski, the appellant's brother) to the phone saying: 'Hi bro I've done them bullets if you can can you bring home a 54 me for tomorrow please'.[76]

    (2)At 8.42 am on 23 March 2017, a message was sent from the phone to a number associated with Mr Harris saying: 'Bro said that would do recon for that one call me'.[77]

    (3)At 12.14 am on 24 March 2017, about an hour after the shooting, a message was sent from the phone to Muzzy saying: 'Nie ich do farmo'.  According to a Polish translator, the most plausible interpretation of this message is 'Don't go to the farm'.[78]  Mr Hansen gave evidence that he knew a Mariusz Weglewski, who had been introduced to him by a mutual friend, had sold him some solar panels and had later visited his property.[79]

    [73] ts 300; exhibit 15.

    [74] ts 647.

    [75] ts 709 - 717.

    [76] Exhibit 47.

    [77] Exhibit 47.

    [78] ts 650 - 652; exhibits 43, 47.

    [79] ts 142 - 144.

1. At about 5.10 am on 24 March 2017, after finishing their search and seizure of exhibits at the car, the forensic officers arrived at the Carabooda property.[80]  As part of their investigation, they found shoe impressions on the driveway leading from slightly before the door of the shed to the grassy area between the shed and the house.[81]  One of the forensic officers, Senior Constable Cook, later compared two of the impressions found at the scene with impressions made by a pair of black Nike shoes in Mr Harris' possession on the night of his arrest.  She concluded that Mr Harris' shoes could have made the impressions, but she could not exclude the possibility that the impressions were made by another shoe with the same sole design and dimensions.[82]  She was adamant that the shoe impressions could not have been made by police‑issued boots.[83]  The forensic officers also found two cartridge cases on the lawn near the front step where Ms Sycamore had been shot,[84] both of which had been fired.[85]  DNA could not be detected on one of the cartridge cases and the DNA profile on the other one was not suitable for comparison purposes.[86]

   [80] ts 393.

   [81] ts 414 - 419, 422 - 424; exhibit 21.

   [82] ts 429, 438.

   [83] ts 444 - 445.

   [84] ts 388 - 389; exhibit 20.

   [85] ts 492 - 494; exhibit 27.

   [86] ts 602; exhibit 37.

2. At about 4 pm on 24 March 2017, the police executed a firearms search warrant at the house of Mariusz Weglewski, the appellant's brother.  The State case was that the appellant was living with his brother.  In a room with documentation belonging to the appellant (on the State case, the appellant's bedroom),[87] the police found six rounds of ammunition,[88] all of which had been fired.[89]  In relation to these rounds, either (1) DNA was not detected on them or (2) the DNA profile that was detected on them was not suitable for comparison purposes.[90]

   [87] ts 459, 462, 464.

   [88] ts 461.

   [89] ts 496 - 497; exhibit 27.

   [90] ts 603; exhibit 37.

3. Senior Constable Inskip, a firearms expert, examined the pistol seized from the appellant's car.  He gave evidence that it was manufactured to be a blank firing imitation pistol, designed to discharge blank rounds and make a noise rather than fire projectiles.[91]  However, he said that this pistol had been modified post-manufacture to allow projectiles to be fired.[92]  He said that one of the cartridges found at Mariusz Wegewski's house had been modified post-manufacture.[93]  He said that the ball bearing found in Ms Sycamore's leg could have been fired by the pistol.[94]

   [91] ts 499, 501 - 502.

   [92] ts 502 - 504.

   [93] ts 497.

   [94] ts 503 - 504.

4. Senior Constable Inskip also examined:

   (1) the fired cartridge cases found at the Carabooda property, in the appellant's car and at Mariusz Weglewski's house; and

   (2) the pistol seized from the appellant's car,

   to determine whether the fired cartridge cases came from the exhibit pistol.[95]  To do this, he test fired the pistol a number of times and compared the impression made by the firing pin on each test-fired cartridge to the impression found on each of the fired cartridges seized by police.[96]  He was able to conclude with practical certainty - the technical threshold required for him to be satisfied that the impressions came from a common origin[97] - that the impressions on the fired cartridge cases were formed by the same firing pin as that found in the pistol seized from the appellant's car.[98]  He acknowledged that there was a possibility the cartridges were fired by different guns, but only if the firing pin had been changed between firearms.[99]

   [95] ts 511.

   [96] ts 511 - 512.

   [97] ts 513, 528 - 529.

   [98] ts 515 - 526.

   [99] ts 528 - 531.

5. When Ms Sycamore was in hospital following the shooting, she took part in a digiboard identification procedure.  She was shown two sets of 12 photographs, one set containing Mr Harris and the other set containing the appellant.  In the set containing Mr Harris, she selected a person who was not Mr Harris.  In the set containing the appellant, she made no selection.[100]

   [100] ts 226 - 228; exhibits 9A, 9B, 9C.

6. On 29 March 2017, after Mr Hansen returned to his Carabooda property, he noticed, and reported to police, that he was missing two chainsaws and a jerry can.[101]  He described some of the items' unique features to the police, including a crack near the start cord of one of the chainsaws and two missing screws on the cover of the other.[102]  The following day, the investigating officer conducted a secondary search of the green Subaru.  He found two chainsaws and a jerry can that matched the description provided to him by Mr Hansen, and showed them to Mr Hansen.  Mr Hansen agreed that they were his, following which the investigating officer returned the items to him.[103]

   [101] ts 139 - 140.

   [102] ts 140 - 142, 640; exhibit 4.

   [103] ts 639 - 640.

7. The prosecutor invited the jury to find that the gunman was Mr Harris, the man with the metal pole was Mr Monk-Karipa, and the driver of the car was the appellant.[104]

   [104] ts 107, 117, 682 - 683.

The appellant's case at trial

1. Neither accused gave or adduced any evidence at trial.  The defence case for both accused raised a single issue - identity - and did not challenge that offences had been committed by someone.  Each contended that the State had not proved beyond reasonable doubt that he committed the offences.

The prosecutor's closing

1. Because, as will be seen, the legal principles concerning whether any identification direction was needed invite attention to whether identification evidence was a significant part of the prosecution's case in proving guilt, we outline below how the State put its case in closing. 

2. The State case was circumstantial.  In closing, the prosecutor identified 12 features of the evidence the combined force of which would, he submitted, persuade the jury beyond reasonable doubt of the guilt of Mr Harris and the appellant.  The 12 features were as follows:

   (1)Mr Harris and the appellant were arrested together around 90 minutes after the shooting.[105]

   [105] ts 685 - 687.

   (2)When Senior Constable Bradley performed the traffic stop, the appellant was in the driver's seat and Mr Harris was in the front passenger seat.  Ms Sycamore's evidence was that the gunman got into the front passenger seat and the pole-bearing man got into the back seat behind the driver.  Mr Harris was found in the front passenger seat and a metal pole was found in the footwell behind the driver's seat.  The prosecutor invited the jury to find that this evidence supported the State case as to the roles Mr Harris and the appellant played during the burglary.[106]

   [106] ts 687.

   (3)The police found a pistol, a metal pole, two balaclavas, a black glove and four rounds of ammunition inside the appellant's car. The prosecutor made two submissions arising out of this evidence.  First, the items in the car were consistent with the witnesses' descriptions of the items used by the burglars.  Secondly, the location of the items in the car - the pistol, balaclavas and glove having been found in a hidden compartment in the boot - was telling.  As the prosecutor rhetorically asked the jury, '[i]f someone else had committed these offences, how would they know to hide [the items] in the secret compartment of [the appellant's] car and why would they hide [them] there?'[107]

   (4)The ballistics evidence from Senior Constable Inskip supported the conclusion that the two fired cartridge cases found on the lawn at the Carabooda property were fired from the pistol found in the appellant's car.  The prosecutor invited the jury to find that, in all the circumstances, the possibility that the firing pin may have changed from one gun to another in the 90 minutes following the shooting was fanciful.[108]  The prosecutor said that the inconsistency in the evidence between the gun that was seized from the appellant's car (not covered in electrical tape) and the gun observed by Ms Sycamore (covered in electrical tape) could be explained by the trauma to which Ms Sycamore was subject and the fallibility of human memory.[109]

   (5)The ammunition found in the appellant's car and at Mariusz Weglewski's house. The prosecutor said that a number of pieces of evidence supported the State case that the appellant was staying in Mariusz Weglewski's house in the room in which the fired cartridge cases were found. Among other things, he sought to draw a connection between the message from 'Muzzy' that said, 'I've done them bullets',[110] and the cartridge case found in the house that had been modified. He said that the modification to the cartridge was a tell-tale sign that attempts were being made to seat projectiles in the blank cartridges. The prosecutor referred to Senior Constable Inskip's evidence that the two fired cartridge cases in the appellant's car and the six fired cartridge cases in Mariusz Weglewski's house were, within the limits of practical certainty, fired from the pistol found in the car. He submitted that this demonstrated that the appellant had a clear and indisputable link to the type of ammunition that was used to shoot Ms Sycamore.[111] 

   (6)The DNA evidence.  The prosecutor said that the DNA evidence was consistent with the State case.  Mr Harris' DNA was found on the handgun, consistent with the State case that he was the gunman.  Mr Monk-Karipa's DNA was found on the metal pole, consistent with the State case that he was the pole-bearing man.  The appellant's DNA was also found on the metal pole, consistent with him handling the pole at some stage, although not necessarily during the commission of the offences.  Mr Harris' DNA was found on the outside and inside of one of the black balaclavas, consistent with the State case that he was wearing a balaclava during the commission of the offences.  The appellant's DNA was found on the outside and inside of the other black balaclava, consistent with it being his and having been worn by him in the past.  The prosecutor invited the jury to find that there was really no chance of indirect transfer of DNA.[112]

   (7)The shoe impressions evidence.  The prosecutor submitted that the location of the shoe impressions found at the Carabooda property was consistent with Mr Hansen and Ms Sycamore's evidence as to the path the offenders took on the night when they went into and out of the shed.  He repeated Senior Constable Cook's findings that the shoe impressions at the scene shared common class characteristics, meaning a common pattern and the same dimensions within that pattern, with shoe impressions made by the shoes in Mr Harris' possession.  He said that the jury could compare the impressions for themselves and suggested they would find, if they did so, that the patterns were the same.  The prosecutor submitted that the inconsistency between Ms Sycamore's evidence that the gunman was wearing steel-capped boots and the black Nike shoes seized from Mr Harris could be explained by Ms Sycamore making a mistake.  Ultimately, the prosecutor invited the jury to find that the shoe impressions evidence, taken together with all the other evidence, put Mr Harris at the scene of the crime on the night of the shooting.[113]

   (8)Mr Hansen's chainsaws and his jerry can were found in the appellant's car.  The prosecutor submitted to the jury that there was no reasonable explanation for how they came to be in the boot of his car other than that they were stolen during the course of the incident.[114]

   (9)The appellant and Mr Harris were arrested in a green and grey 1996 Subaru Outback station wagon registered to the appellant, which was consistent with the descriptions of the vehicle given by Mr Hansen and Ms Sycamore.[115]

   (10)The CCTV footage from the house at the bottom of Kiln Road showed a car with the same appearance as the appellant's driving up and down Kiln Road on 21 March 2017, consistently with the evidence of Mr Hansen and Ms Sycamore.  The prosecutor submitted that close examination of the photographs of the Subaru on the day of the incident and the stills taken from the CCTV footage two days earlier established that it was the same vehicle.  The CCTV footage was also consistent, the prosecutor submitted, with the text message found on the phone alleged to be the appellant's saying, 'Bro said that would do recon for that one.  Call me'.  The prosecutor suggested that 'recon' was short for reconnaissance and that the evidence suggested that at least one reconnaissance mission was conducted in the week of the shooting using the appellant's car. Both witnesses' descriptions of the driver did not fit the appellant's brother, who was clean-shaven and had a buzz-cut.  Generally speaking, they fitted the appellant, but, in any event, the jury could be sure that it was the appellant's car that was used.[116]

   (11)Ms Sycamore's evidence as to the gunman's physical appearance and clothing was consistent with Mr Harris' appearance and the clothing found in his possession. The prosecutor highlighted her evidence that he had a big pot belly, which the prosecutor said was consistent with how he looked in CCTV footage from Joondalup Police Station on the night he was arrested. The prosecutor also highlighted Ms Sycamore's evidence as to the gunman's balaclava, black cable-knit jumper, ski gloves, black pants and black boots, which he said was broadly consistent with the clothes Mr Harris was wearing when he was arrested and clothes found in the car or in his possession.  The prosecutor said that her digiboard identification of Mr Harris was very uncertain, she was 'clearly … very unsure' and '[a]t the end of the day … that's all that needs to be said about that'.[117]

   (12)The text message to 'Muzzy' from the white Samsung phone, sent shortly after the shooting, saying, in Polish, 'Don't go to the farm'.  The prosecutor submitted that the phone was the appellant's and that the message was sent by him to his brother to warn his brother not to go to the Carabooda property. The reason the appellant sent it was because he was involved in what had happened that night and, because Mariusz Weglewski was the one with a pre-existing relationship with Mr Hansen, he was warning Mariusz: 'Don't go there'. The prosecutor said there were three things to note about the message.  First, it was sent about an hour after the shooting.  Secondly, it was sent in the middle of the night.  Thirdly, it was in Polish, not English, which was because the appellant intended it to be covert.[118]

   [107] ts 688 - 689.

   [108] ts 689 - 690.

   [109] ts 690 - 691.

   [110] See [30](1) above.

   [111] ts 692 - 695.

   [112] ts 695 - 697.

   [113] ts 697 - 701.

   [114] ts 701 - 702.

   [115] ts 702 - 703.

   [116] ts 703 - 706.

   [117] ts 707 - 709.

   [118] ts 709, 717 - 718.

Defence counsel's closing

1. In closing, the appellant's counsel pointed to a number of discrepancies, inconsistencies or uncertainties in various aspects of the evidence, including the following:

   (1)It was 'pure speculation' to describe the earlier car sighting as a reconnaissance drive.[119]

   [119] ts 733.

   (2)Ms Sycamore's description of the driver in the drive‑bys did not match the appellant.[120]

   [120] ts 733 - 734.

   (3)Just because the appellant owned the Subaru did not mean he was driving it at the critical time.[121]

   [121] ts 734.

   (4)Ms Sycamore did not identify the appellant as the man she saw driving in the drive‑by.[122]

   [122] ts 734 - 735.

   (5)In her police statement she had said that the drive‑by driver was the man who shot her.[123]

   [123] ts 735.

   (6)Ms Sycamore said the gunman had steel‑capped boots, and was very clear about it.[124]

   (7)She said several times that the other man had a gold pole, whereas the pole found in the appellant's car was silver.[125]

   (8)The CCTV footage of the car on the night in question was too unclear and distant to identify the car.[126]

   (9)On Ms Sycamore's version, there was no opportunity for the two men to take the chainsaws and the jerry can.[127]

   (10)Ninety minutes is a long time after the crimes occurred - much may have happened in the meantime.[128]

   (11)Ms Sycamore said the gun was wrapped in black plastic - she was adamant about it.[129]

   (12)Bright red shorts and thongs are unlikely attire if the appellant had been committing a robbery.[130]

   (13)It is notable that there was no DNA of Ms Sycamore on the gun, even though in her evidence she said that she pushed the gun away with her forearm.[131]

   (14)The DNA on the balaclavas may have been the result of indirect transfer.[132]

   (15)Overall, there were too many remaining questions and gaps in the evidence to be satisfied beyond reasonable doubt of the appellant's guilt.[133]

   [124] ts 736.

   [125] ts 736 - 737, 739.

   [126] ts 737 - 738.

   [127] ts 738.

   [128] ts 739.

   [129] ts 740, 741.

   [130] ts 740 - 741.

   [131] ts 743.

   [132] ts 744, 746.

   [133] ts 749.

The judge's directions to the jury

1. The appellant's criticisms of the judge's directions go to what the judge failed to say, rather than asserting error in what his Honour said.  Consequently, it is sufficient to provide a broad outline of a limited number of aspects of the judge's comprehensive directions to the jury.

2. The judge outlined a number of general principles applicable to all criminal trials.  In so doing, the judge told the jury that in assessing the evidence of a witness it was not a case of having to accept all of the witness's evidence or rejecting all of it.  Rather, it was open to the jury to accept part of a witness's evidence and reject other parts.[134]  In deciding what parts of the witness's evidence they accepted, the jury could have regard to other evidence in the case, including physical evidence as to items found at the scene or in the vehicle.[135]  His Honour then made the following comment as to the facts:[136]

   It seems to me that - and this is a comment that you can disregard, but it does seem to me that ultimately it is the evidence of Ms Sycamore which is the most significant in this case in terms of the persons who came up to the house because she saw them in close proximity.  In relation to Mr Hansen you would need to consider how much opportunity he had for observation given that, as soon as they started running towards him, he took off.

   That's a matter for you, but Ms Sycamore obviously had the person with the gun in particular in close proximity to her and in fact, as counsel have made the point, the gun was held effectively at her face at some point in time.  That might say something or assist you to draw some conclusion about who might be the more accurate in their description of what happened.

   In that regard I should say that I spoke earlier about witnesses only being able to say what they saw and heard.  It's a matter for you but in relation to Mr Hansen's description of the firearm that he saw you might recall that he persistently said, 'That's what I thought it was,' and so you need to make your own assessment of what significance that has, whether he is actually describing what degree of observation he had of that particular item.

   [134] ts 798.

   [135] ts 798 - 799.

   [136] ts 799.

3. The judge explained the principles relating to drawing an inference in a criminal trial.  In doing so, the judge explained that the jury did not need to be satisfied beyond reasonable doubt in relation to each fact from which an inference is drawn.  Only where the particular finding is an essential link in the jury's reasoning must the fact be proved beyond reasonable doubt.[137]  In this context, the judge identified one fact as an essential link needing to be proved beyond reasonable doubt.  That fact was that the gun found in the back of the Subaru was the gun used in the shooting of Ms Sycamore.[138]

   [137] ts 804 - 805.

   [138] ts 805.

4. The judge carefully explained the various bases for criminal responsibility alleged by the State and the elements of each of the offences. There is no criticism of what his Honour said in these respects.

1. The judge then gave a detailed outline of the evidence of Ms Sycamore and Mr Hansen.

2. The judge's outline of Ms Sycamore's evidence included the following:

   (1)she described the gun as being wrapped in black plastic tape, as the appellant's counsel had reminded the jury in her closing address;[139]

   (2)she described the pole held by the other man as gold coloured;[140]

   (3)she recognised the vehicle on the night of the burglary as the same one that had driven past two days earlier.  She said it was dark green on top and a darker colour on the bottom.  It had a squared off back and was a family wagon.  The appellant's counsel had pointed out that the car had a slope;[141]

   (4)she described the driver who had previously driven past as 'oldish', wearing a hat, with long brown hair, a beard, white skin, in his 30s and large with his stomach around the steering wheel;[142] and

   (5)as to the photoboards, the judge pointed out that, given that Ms Sycamore never actually saw the face of the offenders other than the area of the eyes, the value of any facial identification would have been doubtful.  In any event, whatever the jury made of her evidence as to the photoboards, what was certain was that she did not identify either of the accused from the photoboards.  If the jury had a doubt as to whether she was identifying someone else, that would be a matter for them.[143]

   [139] ts 842.  See also ts 844.

   [140] ts 842, 846.

   [141] ts 844 - 845.

   [142] ts 845.

   [143] ts 846.

3. The judge's outline of Mr Hansen's evidence included the following:

   (1)he remembered that one of the individuals had a gun, 'or what I thought was a gun', while the other had a baseball bat or a pole;[144] and

   (2)the judge commented that, while it was a matter for the jury, they might think that Ms Sycamore was in a better position to see the firearm when it was held up to her face.[145]

   [144] ts 847 - 848.

   [145] ts 848.

4. In the course of outlining the State case, the judge reminded the jury of submissions made by defence counsel.  For example, in the context of the metal pole being found in the car, the judge reminded the jury that, as defence counsel had emphasised, Ms Sycamore's evidence was that the pole was gold, whereas the pole found in the car was not gold.  The judge told the jury that that was a matter for them to take into account in determining whether it was the same metal pole.[146]

   [146] ts 850.

5. In outlining the appellant's case, the judge summarised many of the points made by defence counsel in her closing address.[147]

   [147] ts 861 - 864.

Grounds of appeal

1. The appellant advances a single ground of appeal.  After amendments made by leave at the hearing of the appeal, the ground is in the following terms:

   1.In his direction to the jury the learned trial judge:

   (a)failed to give any, or alternatively, gave an inadequate warning regarding the danger of accepting unsatisfactory identifications by the eye‑witnesses of items alleged to have been used by the offenders in the offences.

   (b)failed to give any, or alternatively, gave an inadequate warning regarding the need for the jury to closely examine the circumstances of how identifications had been made by the eye‑witnesses of the objects alleged to have been used by the offenders, and, of the material discrepancies between the descriptions given to Police by the eye‑witnesses of the objects and of their actual appearance;

   (c)failed to give any, or alternatively, gave an inadequate warning regarding the use of Digi‑Board evidence against both the Appellant and the alleged co‑offender Harris where that evidence taken together with other evidence was only consistent with an absence of positive identification of either offender by the eye‑witnesses;

   (d)failed to give any, or alternatively, gave an inadequate warning regarding the dangers of relying upon the DNA of Monk‑Karipa being found on a metal pole recovered from the Appellant's car by Police as supporting any contention that the pole had been used in the offences and that it was Monk‑Karipa who had used the pole where there was no warning to the jury that they should not have regard to the presence of his DNA on the pole as indicating that this was the pole used by the third offender unless they were satisfied beyond reasonable doubt that Monk‑Karipa was in fact the third offender present at the time of the offences,

   and, in the circumstances there was a miscarriage of justice.

2. The appellant requires an extension of time within which to appeal.  The applications for an extension of time within which to appeal and for leave to appeal were referred to the hearing of the appeal.[148]

   [148] Order of Mazza JA, 23 June 2019.

3. We will outline the appellant's submissions in the course of explaining why, in our view, the ground of appeal is without merit.  In short, that is because:

   (1)what gives rise to the need for a warning by the trial judge in relation to the evidence is that an aspect of the evidence gives rise to a perceptible risk of a miscarriage of justice;

   (2)no feature of the evidence at the appellant's trial gave rise to a perceptible risk of a miscarriage of justice - there was no feature of the evidence that may have adversely affected its reliability and which may not have been evident to the jury.

4. We will outline the relevant legal principles in order to provide the framework for consideration of the appellant's complaints as to the absence of warnings by the trial judge concerning particular aspects of the evidence at his trial.

Legal principles

Identification warnings - general principles

1. Generally speaking, in the course of directing the jury, a trial judge must give such warnings as may be called for by the particular case, not only against following impermissible paths of reasoning, but also about the care needed in assessing certain types of evidence, of which identification evidence is one example.[149]  What gives rise to the need for such a warning in relation to the evidence is that an aspect of the evidence gives rise to a perceptible risk of a miscarriage of justice.  A perceptible risk of that kind arises if there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury.[150]  Such a risk is perceptible to the court because judicial experience has shown that evidence of this description may be unreliable.[151]

   [149] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49].

   [150] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86, 91; R v GW [2016] HCA 6; (2016) 258 CLR 108 [50]; Huggins v The State of Western Australia [2018] WASCA 61 [719]; Eravelly v The State of Western Australia [2018] WASCA 139 [27]; Okoli v The Queen [2019] WASCA 91 [42].

   [151] R v GW [50]; Eravelly [27]; Okoli [42].

2. The general principles concerning identification of an accused person by a witness were outlined in Criddle v The State of Western Australia as follows:[152]

   It is well‑recognised by the law that identification witnesses may be honest and convincing, but nevertheless unreliable.  Such evidence has frequently led to proven miscarriages of justice.  As a result, in Domican v The Queen, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:

   [T]he seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

   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': Smith v The Queen (1990) 64 ALJR 588, 588. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence': Kelleher v The Queen (1974) 131 CLR 534, 551. 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 (561 ‑ 562).

   Later, their Honours said:

   A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence which, if accepted, is sufficient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence.  If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused.  Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice.  But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused (565 ‑ 566).

   While Domican v The Queen concerned visual identification, in our opinion, analogous dangers arise in other forms of identification which rely on sensory perception.  Accordingly, where disputed voice identification is led, a Domican warning should be given:  Bulejcik v The Queen (397 ‑ 399); R v Evan [2006] QCA 527; (2006) 175 A Crim R 1 [73] (Keane JA) and J D Heydon AC, Cross on Evidence (10^th ed) [1445]. So, too, should a Domican warning be given in the case of disputed identification by smell.

   [152] Criddle v The State of Western Australia [2017] WASCA 17 [107] ‑ [109].

3. In Okoli v The Queen, this court elaborated on the reasons and justification for the requirement of a warning concerning identification evidence, saying as follows:[153]

   In the case of identification evidence, it is the 'seductive effect'  of such evidence that is not obvious to the lay mind, and in respect of which the court has special knowledge, experience and awareness, thus giving rise to the requirement of a warning.  As five members of this court observed in Winmar v The State of Western Australia, what lies at the heart of the identification warning is the proposition, not obvious to a lay jury, that a confident and honest witness giving identification evidence may, nevertheless, be entirely wrong.  …  In other words, it is the possibility of an honest but mistaken witness very convincingly identifying an accused that gives rise to the need for an identification warning.  It is the court's special knowledge, expertise or awareness of such a possibility which warrants the giving of an identification warning, and which informs its necessary content.  Such a warning must be given where identification evidence is any significant part of the proof of guilt.  Identification evidence challenged on the ground that it is dishonest is not materially different from other evidence, the credibility of which is challenged.  Insofar as identification evidence is said to be dishonest, it is not its character as identification evidence that gives rise to any need for a warning as to the evidence.  Subject to presently immaterial exceptions, credibility and honesty are not matters of which courts have special knowledge or awareness; rather, they are matters properly within the province of the jury.  (footnotes omitted)

   [153] Okoli [44].

4. Unless a warning is required, a judge ought, ordinarily at least, leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties.[154]  It is juries, not judges, who are entrusted by law with the function of evaluating the honesty and reliability of evidence in the light of ordinary experience.[155]  Where the courts have no special expertise and knowledge, a warning is not only unnecessary, but is an unwarranted intrusion into the province of the jury.[156]

Positive identification evidence, description evidence and circumstantial identification evidence

[154] Azzopardi [52]; Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [19].

[155] Winmar [20].

[156] Winmar [23].

1. As is apparent from the outline of the State case, this was not a case where the State relied on a purported direct identification of items alleged to have been used by the offenders in the burglary.  As explained below, there is a difference between identification evidence and description evidence. 

2. In Hirst v Police, Duggan J, with whom Doyle CJ and White J agreed, stated:[157] 

   It is appropriate to bear in mind the difference between identification evidence and evidence descriptive of the offender.  The second category of evidence can be used as part of the circumstantial case relied upon to establish that the same person was responsible for all offences.  Evidence of this nature does not involve an expression of opinion as to the identity of the offender and warnings appropriate to identification evidence are not applicable to it.  (citations omitted)

   [157] Hirst v Police [2006] SASC 244; (2006) 95 SASR 260 [62].

3. While this observation concerned identification of a person, rather than an object, for the reasons given at [71] ‑ [74] below, there is no distinction in principle in those two types of identification.

4. Duggan J included as identification evidence that which involved - either expressly or implicitly - an expression of opinion as to the identity of the offender.  In so doing, his Honour relied on what was said by the Full Court of the Supreme Court of South Australia in R v King.[158]  In R v King, a witness described certain physical characteristics of a man he saw on premises shortly before a robbery.  However, the witness did not identify the accused as that man.  The Full Court held that the evidence was not evidence of identification which required a warning to the jury; it was for the jury to assess the value of such evidence in the same way as it would value any ordinary statement made in evidence.[159]  A distinction was drawn between positive identification evidence and evidence that described a person in terms of the person's physical characteristics.

   [158] R v King (1975) 12 SASR 404.

   [159] R v King (411).

5. In a passage that was subsequently approved by McHugh J in Festa v The Queen,[160] the Full Court stated:[161]

   [E]vidence which may be relevant on the issue of identity is not necessarily evidence of identification within the meaning of the cases.

   [160] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [60].

   [161] R v King (411).

6. The reference to 'meaning of the cases' was a reference to those cases in which evidence of positive identification calls for a judicial warning.

7. The Full Court had earlier referred to identification in the sense of recognition and as constituting 'a mental process whereby one person, by observation, is able to establish to his own satisfaction the identity of another person.'[162]

   [162] R v King (410).

8. R v King was not followed in R v Zullo.[163]  But in Festa, McHugh J stated that R v Zullo was wrongly decided on this point and should not be followed.[164]  McHugh J differentiated between 'positive-identification evidence' and 'circumstantial identification evidence' - the latter not amounting to recognition but being proof of a circumstance that with other evidence may point to the accused as the person who committed the offence.[165]

   [163] R v Zullo [1993] 2 Qd R 572.

   [164] Festa [61].

   [165] Festa [55] - [56].

9. McHugh J went on to state:[166] 

   When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence.  A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence.  But the circumstances of a particular case may require a warning.  When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence.  But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence.  (emphasis added)

   [166] Festa [57].

10. This passage acknowledges that, in some cases, circumstantial identification evidence (or description evidence) will warrant a judicial warning.  But that is not automatically so; indeed, it usually does not have the potential unreliability of positive identification evidence.  Consideration ought to be given to whether, in all the circumstances of the case, evidence which is relevant to the issue of identity but which is not itself evidence of positive identification ought to have a Domican type warning. 

11. In this court the observations of McHugh J in Festa were applied in Durani v The State of Western Australia.[167]

    [167] Durani v The State of Western Australia [2012] WASCA 172 [55] - [59], [68].

12. These authorities demonstrate that the last sentence in the passage from Hirst v Police set out at [60] above is overstated. There will be cases in which warnings appropriate to positive identification evidence are applicable to description evidence. Nevertheless, the authorities confirm that there is a distinction between positive identification evidence and circumstantial evidence relevant to the issue of identity such as description evidence. The latter evidence usually does not have the potential unreliability of positive identification evidence; the warnings that must be given as to positive identification do not apply to most forms of circumstantial identification evidence.[168]  As McHugh J's observations in Festa demonstrate, in assessing whether the latter type of evidence requires a judicial warning, the court should apply the reasoning that justifies and necessitates a warning in the case of positive identification evidence. 

Identification of objects

[168] Festa [57]; Durani [57].

1. In a number of cases, it has been said that the principles concerning evidence of identification of human beings can apply to evidence of identification of inanimate objects.[169]  As the High Court has recently observed, like identification evidence as to a person, identification evidence as to an object can have a seductive effect that may lead to a miscarriage of justice.[170]

   [169] R v Clout (1995) 41 NSWLR 312, 321; Theos v The Queen (1996) 89 A Crim R 486, 495; R v Lowe (1997) 98 A Crim R 300, 317; R v Whalen [2003] NSWCCA 59; (2003) 56 NSWLR 454 [46].

   [170] Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219 [81], citing R v Clout.

2. The circumstance that the evidence seeks to establish identity by virtue of similarity of features, rather than outright or direct identification, is not determinative of whether a warning is required.[171]

   [171] Theos (495); R v Clout (321); R v Whalen [46].

1. A warning relating to identification evidence, or similarity of features, will not be required unless that evidence is, at least, a significant part of the proof of guilt of the accused.[172] 

   [172] Theos (495); R v Lowe (317); R v Whalen [47].

2. The principles were outlined by Hunt CJ at CL, with whom Smart and Ireland JJ agreed, in R v Lowe in terms we would adopt:[173]

   I see no distinction in principle between visual, voice and object identification.  I am satisfied that a warning as to the danger of convicting should be given where the identification relates to an inanimate object, such as the clothing worn by the offender or a weapon used by him in the commission of the [crime], and where that evidence represents a significant part of the proof of the guilt of the accused.  Just as with voice identification, object identification is not a distinct category of evidence.

   It should not be overlooked, however, that the purpose of giving identification warnings is to ensure that the jury is made aware of the potential unreliability of identification evidence which they may not otherwise have appreciated.  When it comes to the matters 'of significance' which may reasonably be regarded as undermining the reliability of the identification evidence, and which the judge is obliged to bring to the jury's attention, the propensity for identification evidence to be unreliable differs to some extent where it relates to objects rather than persons.  For example, the difficulties in describing a person's face and in retrospectively estimating that person's height, weight and age are less likely to affect a description or an estimate of an inanimate object.  Whereas the possibility of mistake plays the greater part in relation to the identification of a person, the lack of distinctiveness will usually play the greater part in relation to the identification of an inanimate object.  (footnotes omitted; emphasis added)

   [173] R v Lowe (317).

3. In our view, applying the principles outlined in [57], [58] and [67] ‑ [74] above, whether a warning of this kind is required in a case involving evidence of identification or descriptions of inanimate objects depends upon whether the evidence: (1) gives rise to a hidden danger, of which the court has special knowledge, experience and awareness, that may adversely affect its reliability and may not be evident to a jury; and (2) is a significant part of proof of guilt of the accused.  As explained below, in the present case these conditions were not satisfied.

Disposition

1. The appellant's principal complaint is that, in circumstances where the State case was that the appellant's car and various objects found in it had been used by the offenders in the commission of the offence, the judge failed to give an appropriate warning about the dangers of relying on the witnesses' descriptions of: (1) the objects allegedly used in the offences; (2) the car used; and (3) the offenders and the clothing worn by them.[174]

   [174] Appellant's submissions [74]; appeal ts 5.

2. The vast bulk of the appellant's submissions is taken up with cataloguing what the judge failed to do in his summing up to the jury.  The appellant complains of the absence of detailed reference by the trial judge to (1) various discrepancies between the descriptions given by the witnesses of items and the items found in the car and (2) other specific features of the evidence.[175]  In his written and oral submissions, the appellant says little to explain why the circumstances of the case required a warning of the type for which he contends.  In particular, little is said to identify the danger or dangers said to give rise to the need for the warning.

   [175] Appellant's submissions [78] - [83], [90] - [92]; appeal ts 7 - 8, 10.

3. The appellant accepts that none of the witnesses gave identification evidence concerning the objects to which the appellant refers: with one exception, none of them was asked to identify any of the objects found in the appellant's car.[176]  (The exception is that Mr Hansen specifically identified the chainsaws and jerry can found in the appellant's car as his.  The appellant makes no complaint in that regard.)  Nevertheless, the appellant submits that the decision in Theos establishes that an identification direction is required even when the prosecution case concerns objects not persons and even when it is circumstantial, and does not rely on direct identification evidence.[177]  He submits that Theos establishes that the warnings 'must be given' even if the prosecution runs its case on a circumstantial basis.[178]

   [176] Appeal ts 9, 12.

   [177] Appellant's submissions [71]; appeal ts 5, 6, 8, 17.

   [178] Appeal ts 6.

4. Contrary to the appellant's submission, the decision in Theos does not establish that an identification warning must always be given when the prosecution case relies on descriptions of objects used in the offending as part of a circumstantial case.  Rather, Theos establishes no more than that the fact that particular evidence is part of a circumstantial case does not, in itself, exclude the need for an appropriate warning - consideration must be given to whether a warning is necessary.  As Tadgell JA, with whom Southwell AJA substantially agreed, said in Theos:[179]

   Even if [the evidence there under consideration] were relied on by the Crown not as evidence of positive identification but as purely circumstantial evidence it would, I think, be necessary to consider carefully whether a warning should be given to a jury to scrutinise it with care.  (emphasis added)

   This passage is consistent with what was said by McHugh J in Festa [57], set out at [67] above, in distinguishing between positive identification and circumstantial identification of persons.

   [179] Theos (495).

5. Further, the evidence said to give rise to the need for a warning in Theos was, for present purposes, of a fundamentally different character from the evidence in the appellant's trial.  In both Theos and Crupi v The Queen,[180] to which the court in Theos referred, conventional positive identification evidence was given by a witness and relied on by the prosecution, in combination with other evidence, to support a circumstantial case that the accused was the offender.  In Theos, the relevant witness was shown photographs and he said the gun depicted in them looked like a gun he had seen at the accused's premises.  He was also shown photographs which he said depicted, or closely resembled, the accused.[181]  In Crupi, the relevant witness was shown a number of shirts and she identified one of the shirts as having been worn by one of the robbers.[182]  As already observed, no witness gave evidence of that kind in the present case.

   [180] Crupi v The Queen (1995) 86 A Crim R 229.

   [181] Theos (488 ‑ 489, 493 - 494).

   [182] Crupi (240).

6. In response to questions from the bench, the appellant identified the hidden danger giving rise to the need for an identification warning as the danger that the jury may be 'too ready to accept' that the items found in the appellant's car were the items used in the offending 'based on the identification evidence that they heard from those witnesses.'[183]

   [183] Appeal ts 12.

7. The appellant did not explain the basis on which the jury may be 'too ready to accept' that the items found in the car were the items that had been used in the offending.  In our view, there was no feature of the evidence in respect of which the court had special knowledge, experience and awareness and about which the jury needed to be warned.  Whether the jury were satisfied, on the whole of the evidence, that the items found in the appellant's car were the items used in the offending was a matter for their evaluation, using their common sense and experience, in the light of the whole of the evidence. 

8. In this regard, it was well open to the jury to be satisfied that some items found in the car had been used in the course of the offending and others had been removed from the complainants' premises in the course of the offending.  No ground of appeal or submission of the appellant suggests otherwise.  In the light of the ballistics evidence of Senior Constable Inskip (summarised in [34] above), which was barely challenged and the weight of which was not undermined in cross-examination, the conclusion that the gun found in the appellant's car was the gun used during the offending was inevitable.  Given that the gun was found with two balaclavas and a glove in a hidden compartment in the car, the inference that one of the balaclavas and the glove were the balaclava and glove referred to by Ms Sycamore as used in the course of the offending was compelling.  The presence of Mr Hansen's chainsaws and jerry can in the appellant's car was explicable only if they had been stolen during the course of the offending; there was no other explanation, and the appellant offered no explanation, for how Mr Hansen's property came to be in his car.  The alleged danger that the jury may be 'too ready' to come to the conclusion invited by the prosecution is mere assertion.

9. In oral submissions, the appellant subsequently identified a further danger in the form of a risk of impermissible reasoning on the part of the jury.  It was that the jury might 'assume that they could simply take into account all of the circumstances and decide that [the pole found in the car] was the pole [used in the offending] even though one or both of the witnesses had described the pole to have looked different.'[184]

   [184] Appeal ts 19.

10. This alleged 'danger' is misconceived.  For the jury to take into account all of the circumstances in deciding whether, notwithstanding that one or both of the witnesses had described the pole to have looked different from the pole found in the car, the pole found in the car was the pole used in the offending is not impermissible reasoning.  To the contrary, it reflects the proper discharge of the jury's function in evaluating the evidence as a whole. 

11. In conventional identification cases, what calls for a judicial warning, and informs its content, is the court's special knowledge, based on the experience of the courts, of the possibility that an honest, but mistaken, witness may very convincingly, but wrongly, identify an accused or an object associated with the crime.  In the present case, no risk of that kind, or of any analogous kind, arose.  Nor was there any other kind of hidden danger in the evidence, affecting its reliability, of which the jury might not be aware.  Nothing in the circumstances of the case gave rise to a perceptible risk of a miscarriage of justice in relation to the witnesses' descriptions of the car and objects involved in the offending.  The trial judge properly summarised for the jury the defence's contentions as to the deficiencies in the evidence.[185]  In the circumstances of the case, that was all that was required.

    [185] ts 850, 860 ‑ 866.

12. These reasons are sufficient to dispose of pars (a) and (b) of the ground of appeal.

13. Further, consideration of the 12 points made by the prosecutor in closing the State case, detailed in [40] above, demonstrates that the 'identification' evidence was not a significant part of the proof of the appellant's guilt.  The State relied only on the general nature of the objects the witnesses said were used in the offending - a gun, a pole and the items of clothing - coupled with the presence of objects of the same nature in the appellant's car 90 minutes after the offence was committed.  The State did not rely on the detail of the descriptions the witnesses gave of those objects.  Moreover, the State relied heavily on the independent evidence, from Senior Constable Inskip, which, as already noted, practically compelled the conclusion that the gun in the appellant's car was the gun used in the offending.  The significance of that evidence to the State case was reflected in the requirement, the subject of appropriate direction by the trial judge, that the jury needed to be satisfied beyond reasonable doubt that the gun in the car was the gun that had been used in the offending.  The State also relied heavily on the presence and location of both the appellant and Mr Harris in the appellant's car 90 minutes after the offending - see points (1) and (2) in [40] above - and on the unexplained presence of Mr Hansen's chainsaws and jerry can in the appellant's car.  In contrast to these features of the evidence, the matters referred to in pars (a) and (b) of the appellant's ground did not form a significant part of the proof of the appellant's guilt.  For this further reason, they did not require the judge to give any relevant warning to the jury.

14. The appellant says little in support of par (c) of the ground, describing it as 'not central'.[186]  The circumstances did not require any warning concerning 'the use of Digi‑Board evidence against both the Appellant and the alleged co‑offender Harris'.  The State did not contend that Ms Sycamore could identify either of the accused from the digiboards.[187]  The judge told the jury that, whatever the jury made of her evidence as to the photoboards, what was certain was that she did not identify either of the accused from the photoboards.[188]  The circumstances did not call for any warning by the trial judge.  Paragraph (c) of the ground is without merit.

    [186] Appeal ts 24.

    [187] ts 708.

    [188] ts 846.

15. In support of par (d) of the ground, the appellant submits that the State case concerning the significance of the presence on the pole of DNA associated with Mr Monk-Karipa invited circular reasoning; the judge should have warned the jury that before they could use the presence of Mr Monk-Karipa's DNA in support of the State case they would need to be satisfied beyond reasonable doubt that he was the third offender.[189]  To the extent that the State case invited circular reasoning in this respect, while that might have been a matter on which the judge chose to comment, it did not involve a hidden danger of a kind which required a judicial warning.  Further, and in any event, contrary to the appellant's submission, it was not necessary for the jury to be satisfied beyond reasonable doubt as to Mr Monk‑Karipa's involvement.  His involvement was not an indispensable link in a chain of reasoning towards guilt; rather, the State relied on it as one of a number of circumstances.  It was a strand in the cable, not a link in the chain.  Consequently, it did not require proof beyond reasonable doubt.[190] Moreover, the invitation to conclude that Mr Monk-Karipa was the other offender could not be said to be a significant part of the proof of the appellant's guilt. See [88] above. Paragraph (d) of the ground is without merit.

    [189] Appellant's submissions [88]; appeal ts 24 - 25.

    [190] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579, 581; Williams v The State of Western Australia [2017] WASCA 206 [81].

16. For these reasons, the appellant's sole ground of appeal is without merit.

Conclusion

1. The absence of merit in the appellant's sole ground of appeal means that it would be futile to grant an extension of time within which to appeal.  We would make the following orders:

   (1)The extension of time within which to appeal is refused.

   (2)Leave to appeal on the sole ground of appeal is refused.

   (3)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SL
Associate to the Honourable Justice Beech

6 MARCH 2020