Wiaceck v The State of Western Australia

[2011] WASCA 254

WIACECK -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 254

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 254
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:209/2010	Heard:	23 SEPTEMBER 2011
Coram:	McLURE P BUSS JA HALL J	Delivered:	18/11/11
No of pages:	27	Judgment Part:	1 of 1
Result:	Leave on ground 2 is granted but appeal dismissed
Category:	B
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Parties:	KHRIS JANE WIACECK THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against convictions Fraud offences Whether trial judge erred in failing to discharge a juror who made a comment during cross-examination of a witness No reasonable apprehension of bias Identification evidence Necessary for trial judge to give warning if jury placed reliance on the identification evidence Redirection inadequate Whether substantial miscarriage of justice Turns on own facts
Legislation:	Crimes Act 1958 (Vic), s 568(1) Criminal Appeals Act 2004 (WA), s 30(4) Criminal Code Act Compilation Act 1913(WA), s 409 Criminal Procedure Act 2004 (WA), s 115(2)
Case References:	Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20 Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Evans (1995) 79 A Crim R 66 Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 'I' v The State of Western Australia [2006] WASCA 204; (2006) 165 A Crim R 420 Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 Mahmood v The State of Western Australia [No 2] [2008] WASCA 259 Quaid v The Queen [2011] WASCA 141 R v Stretton [1982] VR 251 Webb v The Queen (1994) 181 CLR 41 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WIACECK -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 254 CORAM : McLURE P

BUSS JA
HALL J

HEARD : 23 SEPTEMBER 2011 DELIVERED : 18 NOVEMBER 2011 FILE NO/S : CACR 209 of 2010 BETWEEN : KHRIS JANE WIACECK

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : FENBURY DCJ

File No : IND 669 of 2010

Catchwords:

Criminal law - Appeal against convictions - Fraud offences - Whether trial judge erred in failing to discharge a juror who made a comment during cross-examination of a witness - No reasonable apprehension of bias - Identification evidence - Necessary for trial judge to give warning if jury placed reliance on

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the identification evidence - Redirection inadequate - Whether substantial miscarriage of justice - Turns on own facts

Legislation:

Crimes Act 1958 (Vic), s 568(1)

Criminal Appeals Act 2004 (WA), s 30(4)
Criminal Code Act Compilation Act 1913(WA), s 409
Criminal Procedure Act 2004 (WA), s 115(2)

Result:

Leave on ground 2 is granted but appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms M M In De Braekt
Respondent : Mr D Dempster

Solicitors:

Appellant : Megan In De Braekt
Respondent : Director of Public Prosecutions (WA)

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

Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Evans (1995) 79 A Crim R 66
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293

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'I' v The State of Western Australia [2006] WASCA 204; (2006) 165 A Crim R 420
Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414
Mahmood v The State of Western Australia [No 2] [2008] WASCA 259
Quaid v The Queen [2011] WASCA 141
R v Stretton [1982] VR 251
Webb v The Queen (1994) 181 CLR 41
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99


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1 McLURE P: I agree with Hall J. I would add the following observations.

2 The statement made by an unidentified member of the jury to the prosecutor ('object, object') during the course of cross-examination of Detective Sergeant Hawley by the appellant's counsel was insufficient to give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror had not discharged or would not discharge his or her task impartially.

3 Fictional and non-fictional portrayals of courtroom scenes are now commonplace on television and in film. It is to be expected that most members of the community from which jury panels are chosen would be broadly familiar with the fact that rules of evidence and procedure govern the conduct of counsel during a trial and that a transgression of the rules will result in an objection by opposing trial counsel. The members of the jury at the appellant's trial had first-hand experience of this phenomenon prior to the juror's statement to the prosecutor. The juror's statement expressed an opinion that counsel for the appellant had gone beyond the rules in her cross-examination of the witness. Indeed, at one stage, the appellant's counsel asked questions of the witness of which he clearly had no first-hand knowledge (ts 359 - 360). The statement does not in terms indicate or suggest any lack of impartiality. In all the circumstances, there was no necessity to identify and question the juror who made the statement. The trial judge acted prudently and appropriately in reminding the jury of its obligation to act fairly and impartially.

4 I agree that the trial judge erred in his directions relating to the identification of the appellant as the offender. Mr Harman did not give positive identification evidence capable of establishing that the appellant committed the offence the subject of count 1 in the indictment. At its highest, his evidence went no further than not excluding the appellant as the offender. The jury was not so directed.

5 On the other hand, the evidence of Mr Thornton was direct, positive identification evidence capable of establishing that the appellant was the offender who committed the offence the subject of count 2 (which evidence was also relevant to the identification of the offender who committed the offence the subject of count 1). It is apparent from the prosecutor's closing address that the State relied on Mr Thornton's direct evidence of identification of the appellant as part of its case (ts 646). That evidence was a significant, albeit not essential, part of the proof of the

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appellant's guilt on both counts. Accordingly, a Domican warning was required: Domican v The Queen (1992) 173 CLR 555, 561- 562.

6 Where, as in this case, there is other evidence which is itself sufficient to convict the accused, a Domican warning is still required because of the uncertainty as to (1) whether the jury will accept, in whole or in part, the other evidence and (2) the weight the jury will give to the direct, positive evidence of identification. However, the circumstantial evidence relied on by the State in this case linking the appellant to the offences was relevant to the jury's assessment of the reliability of the direct, positive evidence of identification and should also have been drawn to the jury's attention.

7 I turn now to the proviso. The High Court in Domican suggests that a court of criminal appeal should determine whether the actual jury in the appellant's trial must inevitably have convicted her independently of the identification evidence. That approach is not consistent with modern authority: Weiss v The Queen (2005) 224 CLR 300. See also Darkan v The Queen (2006) 227 CLR 373; AK v The State of Western Australia (2008) 232 CLR 438; Gassy v The Queen (2008) 236 CLR 293. Consideration of the proviso is not to be undertaken by attempting to predict what a jury, whether the jury at trial or some hypothetical jury, would or might have done. Rather, the task is to decide whether a substantial miscarriage of justice has actually occurred. That is an objective task and not materially different from other appellate tasks and must be undertaken by the appellate court on the whole of the record of the trial, including the verdict: Weiss [37] - [47].

8 On my assessment of the evidence as a whole, the errors made by the trial judge would, or at least should, have had no significance in determining the verdict. The relevant circumstantial evidence relating to the identity of the offender is detailed in the reasons of Hall J. I am persuaded that that evidence alone proved beyond reasonable doubt the appellant's guilt of the offences on which the jury returned its verdict of guilty. Further, this is not one of those cases in which the error at trial renders the proviso inapplicable irrespective of this court's assessment of the strength of the evidence properly admitted at trial.

9 BUSS JA: The appeal should be dismissed. I agree with the reasons of Hall J and the additional comments of McLure P.

10 In my opinion, no substantial miscarriage of justice has occurred as a result of the trial judge's errors. On my examination of the trial record (in

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particular, the circumstantial evidence relating to the identity of the offender which is set out in the reasons of Hall J) I am satisfied beyond reasonable doubt of the appellant's guilt. Her conviction of the two counts of fraud was correct and should not be disturbed.

11 HALL J: The appellant was convicted of two counts of fraud contrary to s 409 of the Criminal Code (WA) following a trial in the District Court. This is an appeal against those convictions.

12 There are two grounds of appeal. The first issue raised by those grounds is whether a remark made by a juror during the course of the trial was such as to raise a reasonable apprehension of bias and whether the trial judge erred by failing to identify and discharge the juror concerned. The second issue is whether the trial judge failed to give an appropriate direction in respect of identification evidence.

The prosecution case

13 On 4 July 2009 Mr Ronald Harman advertised for sale a Mercedes Benz motor vehicle for a price of $65,000. Mr Harman was acting as an agent for a private seller. He received a telephone call in response to the advertisement from a woman who gave her name as Sari Singh. The woman made a second call to Mr Harman asking to view the car. Mr Harman then met the woman. The prosecution case was that the woman using the name Sari Singh was the appellant.

14 On 20 July 2009 Mr Harman received an email purporting to be from Sari Singh expressing interest in purchasing the car provided that it was free of any encumbrances. On 5 August 2009 a meeting occurred between Mr Harman and the woman alleged to be the appellant in order to finalise the sale. The woman paid for the car with a cheque made out to the amount of $65,000. The cheque was drawn on the account of a company named All Regal Enterprises Pty Ltd. Mr Harman accepted the cheque and the woman drove away in the car.

15 Mr Harman deposited the cheque the next day and was subsequently contacted by his bank to advise that the cheque had been dishonoured as the account on which it was drawn had been closed. Subsequent investigations by the police established that the account was opened on 22 October 1996 and closed on 23 March 2004. It was also established that one of the signatories to the account had been Carol Farrell of Buntine Road, Churchlands. Evidence led by the State showed that the appellant had lawfully changed her name from Carol Elizabeth Farrell of Buntine Road, Wembley Downs to Khris Jane Wiaceck.

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16 Investigations were also conducted in regard to the email address that had been used in the email communications with Mr Harman. The State led evidence to show that the account associated with the email address was registered to an address in Herdsman Parade, Wembley. There was evidence that that address was the same address as that given by the appellant in regard to bail. Six other email addresses were associated with the account. They included two which incorporated the name Ashby. There was evidence that the appellant had a son called Ashby Keith Farrell.

17 The woman who gave the name of Sari Singh had also provided Mr Harman with a mobile telephone number. A subscriber check of that number showed that it was subscribed in the name of Mr [sic] Carol Saliba of Buntine Road, Wembley Downs.

18 The prosecution case was that the appellant had presented the cheque for $65,000 knowing it to be valueless and thereby, by deceit or fraudulent means and with intent to defraud, had obtained the Mercedes Benz motor vehicle from Mr Harman. This conduct was the subject of count 1 of the indictment.

19 At around 7.00 pm on 5 August 2009, the same day that the car had been obtained from Mr Harman, it was alleged that the appellant attended at the John Hughes Caryard in Victoria Park. There she gave her name as Sarah Anderson and attempted to sell the Mercedes Benz. She was told by a salesman, Mr Andrew Thornton, that the business did not purchase used cars outright. An agreement was then entered into for the caryard to receive the Mercedes Benz as a trade-in in return for which the appellant was to receive another vehicle, a Hyundai Getz, and a cheque for $28,010. As it was late in the day the appellant was told to return the next day to pick up the cheque, which she did. The Hyundai was not ready for delivery the next day and the appellant was told to return at a later date to collect the car. Mr Thornton dealt with the woman who brought in the Mercedes both on the evening of 5 August 2009 and when she returned to collect the cheque the next day, 6 August 2009.

20 The false representation by the appellant that she was the owner of the Mercedes was alleged to be the deceit or fraudulent means that were used by her to gain a benefit with intent to defraud. The benefit was alleged to be the cheque in the sum of $28,010. This conduct was the subject of count 2 of the indictment.

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21 In addition to the close proximity in time of the events relating to counts 1 and 2 and the fact that they both involved the same Mercedes car, the prosecution relied upon additional evidence to prove that the appellant was the woman who had attended the John Hughes Caryard. That evidence included that the woman had provided a mobile telephone number to Mr Thornton which was the same as the number given to Mr Harman.

22 The woman had also asked that the Hyundai vehicle be put into the name of a company, ITSA Pty Ltd. Mr Harman had also been given that name by the woman to whom he sold the Mercedes as the name that she wished that car to be transferred into. The State led evidence to show that the $28,010 cheque was deposited into a Bank of Queensland account in the name of ITSA Pty Ltd after which $27,700 was transferred in two separate amounts into an account in the name of Carol Elizabeth Farrell.

23 On 17 August 2009 the appellant attended at the John Hughes Caryard and was spoken to by a different salesman, Mr Guy Gambin. Mr Gambin said an arrangement had previously been made to handover the Hyundai but on that day Mr Thornton was absent so he dealt with the appellant. Mr Gambin said that he recognised the appellant as being the woman that he had seen Mr Thornton dealing with in early August. He said he went through the normal handover procedure with the appellant. By this stage the police had already undertaken investigations and Mr Gambin alerted them to the appellant's presence at the caryard. The appellant was then arrested.

Ground 1 - The failure to discharge a juror

24 On the morning of the fourth day of the trial, in the absence of the jury, the State prosecutor advised the trial judge that there was an issue that she wished to raise. She said that after the lunch break on the previous day she had heard a comment made by a member of the jury during the course of the cross-examination of Detective Sergeant Hawley by defence counsel. The State prosecutor said that she became aware of one of the jurors whispering at her 'object, object'. She said that she was not sure which of the jurors had said this.

25 Defence counsel expressed concern about the comment and urged the trial judge to make an inquiry as to which of the jurors had made it. It was submitted that the comment gave rise to a perception of bias on the part of the juror concerned. It was further submitted that the comment was not consistent with the appellant receiving a fair trial and that the juror should be discharged.

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26 The trial judge concluded that the comment did not require him to make any enquiries with a view to identifying the juror. He was of the view that the issue could be adequately dealt with by a reminder to the jury as a whole to remain objective and not to jump to conclusions. His Honour did not accept the submission that the comment indicated bias or a lack of impartiality.

27 His Honour then gave the following direction to the jury:

I'd just like to mention something and the prosecutor heard somebody in the jury whisper or say a couple of words during the period when the defence counsel was cross-examining a witness - a witness yesterday. Something that sounded like 'object, object', or something like that.

Can I just - I'm not going to ask whoever it was to stand up or confess or anything like that, but it does raise concern about what view you're taking of the matter so far perhaps, what impressions you might or might not have. Can I say this to you; obviously the trial is still going. We haven't heard any evidence or anything from the defence side yet. And then you need to have the case summed up by the counsel and me at the end.

So it's very important that in carrying out your functions you maintain an open mind and don't jump to conclusions or draw any conclusions until you go into the jury room at the end of the trial and you are asked to start doing that.

I'm not suggesting that this is a major problem, but it's just it was a tiny little - or it was an event which I thought warranted me to say it really is very important to keep an open mind and to make sure that you follow the rules that I've explained. That I will explain and that I have explained so far. Be objective, calm, unemotional and it is very important. And basically give the accused person a trial as fair as you would hope for yourself, if you were unfortunate enough to be in the dock (ts 421 - 422).

Ground 1 - The merits

28 The test to be applied by a trial judge in deciding whether to discharge a juror or jury on the ground that one of their number is alleged to have demonstrated partiality in the course of a trial is set out in Webb v The Queen (1994) 181 CLR 41. In that case Mason CJ and McHugh J said that the test was:

Whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially (53).

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29 The power to discharge a juror arises under s 115(2) of the Criminal Procedure Act 2004 (WA). That section provides that a judge may discharge a juror from a jury if satisfied that the juror should not be required or allowed to continue in the jury and if the discharge would leave at least 10 jurors remaining. The decision whether to discharge a juror has been described as discretionary: Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99 [54] (Kirby J); Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 [89] (Roberts-Smith JA). However, in Wu Gleeson CJ and Hayne J said that although the application of a reasonable apprehension of bias test may raise difficult questions, it is doubtful that it is useful to describe the exercise of the power to discharge a juror in these circumstances as discretionary [9]. It may be more accurate to refer to it as the exercise of a power which depended upon certain facts or findings. The question on appeal, however, remains whether error has been demonstrated. Where no error of principle is involved, an appellate court will be slow to substitute its opinion for that of the trial judge: Webb (53 - 54).

30 In applying the test, it is necessary to consider the likely effect of the directions given by the trial judge. Criminal trials are conducted on the assumption that juries understand and follow the instructions and directions given to them: Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22 (Barwick CJ).

31 There is no rule requiring a trial judge to question a juror in respect of an occurrence or incident that raises an issue of impartiality. Whether it is necessary to do so will depend upon the particular circumstances. In some cases it may be necessary to do so in order to ensure that the judge properly understands any situation that has arisen that raises the spectre of possible bias: 'I' v The State of Western Australia [2006] WASCA 204; (2006) 165 A Crim R 420 [16] (Steytler P). The nature and extent of any inquiry is a matter for the judge's judgment in the circumstances: Evans (1995) 79 A Crim R 66, 69.

32 The test referred to in Webb is based on the important principle that confidence in the administration of justice requires the appearance as well as the fact of impartiality; the parties and the general public must be satisfied that justice has not only been done but that it has been seen to be done: Webb (50) (Mason CJ & McHugh J), (68, 72) (Deane J).

33 In the present case, the fact that one of the jurors had whispered the word 'object' twice in an apparent encouragement to the prosecutor to make an objection to questions asked by the appellant's counsel in

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cross-examining a prosecution witness is not obviously indicative of bias. It does not indicate that the juror had formed a view as to the appellant's guilt or had pre-judged any matter in issue between the parties. The circumstances are to be distinguished from those in other cases where, for example, a juror has shown partiality by offering flowers to the mother of the alleged victim (Webb), or by expressing a view as to their own inability to bring in an unbiased verdict due to knowledge of the accused or their family (R v Stretton [1982] VR 251).

34 The words in question were said to have been spoken during the last portion of the cross-examination of Detective Sergeant Hawley. Sergeant Hawley was the officer responsible for the police investigation. He had conducted inquiries that established, amongst other things, the subscriber details of the mobile telephone number and bank account details for All Regal Enterprises Pty Ltd, ITSA Pty Ltd and Carol Farrell. That part of the cross-examination during which the juror comment was said to have occurred related to suggested difficulties encountered in investigating cases of identity theft and the lack of any video film footage of the appellant's meeting with Mr Harman. There was no contest between the prosecution and defence on these issues and they formed a very minor part of the overall evidence. Sergeant Hawley's credibility was not in issue. In those circumstances, a comment from a juror that an objection should be made could not reasonably be viewed as indicating either pre-judgment or bias against the appellant.

35 It should also be noted that counsel for the appellant (who appeared at both the trial and on the appeal) had been persistent in pressing her own objections during the course of the trial. I make no comment as to whether all of those objections were well made. However, it should not be supposed that jurors are unaware of the process of making objections. A view that it may be open to make an objection does not in itself indicate any view as to the issues for determination by the jury in the trial. Nor does it indicate that the juror lacked impartiality or had pre-judged the merits of the case.

36 This was not a case where the nature or significance of what a juror had said was unclear such as to require further inquiry. The comment indicated nothing more than that a juror thought that it was open to the prosecutor to make an objection. Since the comment did not raise any reasonable apprehension of bias there was no need to seek to identify the juror concerned. Indeed, to have sought to do so would only serve to give the impression that the comment was far more significant than could reasonably be supposed.

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37 The requirement that justice be done and be seen to be done requires that judges and juries determine cases on their merits and without prejudice or sympathy or the appearance of it. A direction in this regard is commonly given to juries at the start of a trial, as it was here (see ts 98). This does not mean that jurors are expected to maintain stony-faced impassivity throughout the trial. In performing their duty to listen to the proceedings and assess the evidence, they may well have spontaneous reactions or even form preliminary views. If jurors do this it is not necessarily inconsistent with their duty, nor would it lead reasonable observers to doubt that they will discharge that duty impartially.

38 In the circumstances of this case, the trial judge was correct to come to the conclusion that the comment was not of a nature that required him to make further enquiries. It was also open to him to conclude that the appropriate course was to give a general direction to the jury of the type that he did. Taking into account the direction that he gave, I do not consider that a fair-minded and informed member of the public would have a reasonable apprehension or suspicion that the individual juror, or the jury as a whole, had not discharged or would not discharge its task impartially. Accordingly, I would dismiss ground 1.

Ground 2 - Identification evidence

39 The issue at trial was whether the appellant was the woman who had obtained the Mercedes Benz from Mr Harman, sold it later on the same day at the John Hughes Caryard and collected the cheque for $28,010 the following day. The prosecution case was that it must have been the same woman who committed the two offences given the close proximity of the events, the provision of the same mobile telephone number and the requests for both the Mercedes and the Hyundai to be registered in the name of ITSA Pty Ltd.

40 The prosecution also relied upon the circumstantial evidence referred to above linking the appellant to the cheque drawn on the account of All Regal Enterprises Pty Ltd given to Mr Harman, her link with the mobile telephone number subscriber details, her link with the account address for the Sari Singh email address and the use of the name Ashby on other email addresses connected with that account. On the prosecution case this evidence could be used to draw the inference that the appellant was the woman who obtained the car from Mr Harman in respect of count 1.

41 In respect of count 2 the prosecution relied upon the use of the same mobile telephone number, the use of the name ITSA Pty Ltd, the fact that after the cheque was deposited into that company's bank account, funds in

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approximately the same amount were transferred into an account in the appellant's name and that the appellant had attended on 17 August 2009 to collect the Hyundai. On the prosecution case this was evidence from which the inference could be drawn that the appellant was the woman who attended the John Hughes Caryard on 5 and 6 August 2009.

42 There was also evidence of visual identification at the trial. On 22 September 2009 Mr Thornton took part in a digiboard identification procedure in which he identified the appellant as the person who he had dealt with on 5 and 6 August 2009. He identified the appellant from the digiboard that he was shown without equivocation. The DVD of his digiboard identification process and a copy of the digiboard were tendered in evidence-in-chief.

43 Mr Harman also participated in a digiboard identification process, however he was unable to identify the appellant with any degree of certainty. He nominated two faces on the digiboard as being possibly those of the woman he had dealt with. One of the faces was that of the appellant, however he nominated this on the basis of the hair worn by the person in the photograph and the other image (which was not the appellant) on the basis of the person's face. Clearly in these circumstances Mr Harman's evidence had very little weight, if indeed it had any value at all.

44 The prosecution initially placed no reliance upon the digiboard identification process involving Mr Harman. No reference to that process was made in Mr Harman's evidence-in-chief. However, it was brought up by the appellant's counsel in cross-examination. The obvious reason for this was to suggest that Mr Harman's failure to identify the appellant should create doubt as to whether she was the woman who had acquired the Mercedes from him. Mr Harman confirmed that he had selected two photos. A copy of the digiboard was then called for and produced and marked for identification. In re-examination Mr Harman was asked to confirm that he took part in the digiboard procedure on 21 August 2009. A DVD of the process was then produced and played. That disk and the copy of the digiboard that had been previously marked for identification were then tendered by the State.

Ground 2 - Directions on identification

45 Close to the beginning of his directions the trial judge told the jury that the key questions in respect of both counts were whether the jury was convinced beyond reasonable doubt that the appellant was the person who

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obtained the Mercedes from Mr Harman and was also the person who later sold it to the John Hughes Caryard.

46 His Honour returned to the question of identification later in his directions. The first evidence that he referred to in this regard were the two digiboard identification procedures undertaken by Mr Harman and Mr Thornton. His Honour said:

Now there's digiboard - this digiboard identification process that you've seen, I'll like to deal with or make some remarks about that. You've seen a DVD of - and you'll be able to play this, you've seen a DVD of the two occasions when police showed a collection of facial images called a digiboard, a photoboard - a digiboard I think is what they call it, to the two witnesses, one of them, Mr Harman, now aged 76, that was - he was the person who parted company with the Mercedes for the dud cheque and that was on the 4th or 5th - 4th - sorry 5 August that that occurred.

He was shown the digiboard on 21 August and the other person as you know was Mr Thornton, who passed over the cheque for $28,000 who on the 6 August and he was shown the digiboard and he was shown the digiboard on 22 September 09. He was the one who accepted the Mercedes Benz valued as a trade in as $42,000 on the Hyundai Getz and the cheque as I've explained.

Now, you know that Mr Harman, who's evidence was criticised by the defence counsel, one only wonders what sort of experience he regards all of this as, but he's 76 years of age and it's up to you - you can take on board counsel's remarks.

Some of might - you're perfectly entitled to disagree with them or agree with them, it's entirely up to you, but he on occasions had some difficulty in his evidence. I'm not criticising him for that in any way personally. He, as you know, he nominated two images. He was - one of which was Ms Wiaceck and I think that his evidence was that number 8 for the face and number 10 for the hair, or something like that. Number 10 being Ms Wiaceck, you will see it.

Now, clearly in isolation, and if that was all they're in - is in it, in the matter, his identification of that is not particularly strong evidence, far from certain, and he had plenty of opportunity to see the woman and that was what his evidence was. And it is weak identification evidence by itself, unarguably, you might think.

You know that Mr Thornton, who was given his opportunity some six weeks or so later, you've seen the DVD of that, he fairly smartly and certainly identified number 6, the accused person. So you do have that material and you can make of those processes what you will.

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But the defence, subject to what I've said and has been said to you already, the defence says that both witnesses had come to court before they were shown the images, and had seen the accused before, and they've simply nominated the image most like the woman they saw in court, and therefore that these identifications aren't worth much.

Neither witness agreed with this at all. It was put to them. Thornton, I think, denied having come to court at all. If you find the witness did see the accused person after the purchase of, or the sale or purchase of the Mercedes, or its trade in, as the case may be; that is, you think that the accused's evidence might be true on this, then that reduces the weight to be given to the digiboard sort of evidence.

If you think the two witnesses made the identification from their own recollections of seeing the person at the time, then it is a piece of evidence you can consider in your determination of the question of whether the accused was the woman involved.

Now, remember there are variations in the evidence about hair length, straightness, waviness, height and things like that. Remember there was some delay in the process, of the digiboard process.

Harman, as I said, was asked; Mr Harman, about 16 days later; Thornton about six weeks later. Those are factors to be considered by you in assessing the accuracy of the identification, especially of perhaps Thornton, which was confident and assertive. Bear in mind also that the digiboard image is two-dimensional, not three-dimensional, and it doesn't show height.

Now, of course the evidence relied on by the prosecution that it was the accused person who was the woman involved in these two offences is not restricted to the digiboard image identification processes. If it was I would be placing much more emphasis in respect to these matters in the course of my remarks than I have (ts 564 - 566).

47 His Honour then referred to the other evidence relating to the issue of identification that I have summarised earlier in these reasons.

48 After the jury retired (at 3.25 pm) counsel for the appellant submitted that the directions in regards to the visual identification evidence were not adequate and did not comply with the requirements set out by the High Court in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. His Honour responded to that suggestion by saying:

This is not a case where the identification evidence is - I mean it's there, but it could not be said that this is an identification evidence case at all. Identification is an issue, but the primary, primary proof relating to it, is a circumstantial case, to which I've already referred.

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I think that when I did make reference to those pieces of the evidence which were in the nature of identification evidence, both by what I said and the way in which I said it, I gave an indication to them that if that was all there was, it was a weak case. I do think I have addressed the very issues that you're now articulating (ts 580).

49 His Honour did not give a redirection to the jury on the issue of identification at that stage. The jury continued to deliberate until 6.11 pm when they were sent home. At that stage they had indicated that they were close to a verdict. The jury were told to return on the following working day, being Monday 23 August 2010.

50 Before the commencement of proceedings on 23 August 2010 the appellant's counsel sent an email to the chambers of the trial judge indicating that she wished to be heard further on the question of whether there should be a redirection on the issue of the visual identification evidence. By the time proceedings commenced the jury had indicated that it had reached verdicts on the two counts. The jury were asked to wait while the trial judge heard argument on the redirection question.

51 During the course of argument, counsel for the State conceded that in respect of count 2 there was a possibility that the identification evidence of Mr Thornton could be the sole evidence on which the jury might decide to convict and in those circumstances a redirection of the type sought might be appropriate. His Honour then gave the following redirection to the jury:

Now, ladies and gentlemen, I know that I've got a message from you to say that you'd reached a verdict. It's now half past 10 and I think we got it probably about 10 to 10 and I'm sorry about the delay.

The reason - in part reason for the delay is that I've been asked to say something further to you about the law. And so this is a little difficult, because I've heard that you have reached verdicts. But I've decided that I should just say what I'm about to say to you and then just ask you to think about - or go out and think about it. And let us know when you're ready to deliver your verdict, having heard what I am about to say.

And it relates to the evidence of identification in the case. And you'll recall that in relation to count 1, the - or firstly, you know that the accused person denies that she was the person who gave the cheque to Harman in relation to count 2.

She denies that she was the person who brought the Mercedes into the - to Skippers and got the cheque for 28,000. You do know that some days later she was arrested when she was there. She says for a - another reason. The

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prosecution said she was there to collect the Hyundai. She was near a Hyundai and you're aware of that.

But as to the first two incidents, the - there you have had evidence of this digiboard procedure. You'll I'm sure, remember Mr Harman didn't identify the accused person by face, but he thought that the hair was hers. But she - he identified another person as being the woman on the digiboard. And when I discussed that with you earlier, I think I said that if that was all there was. You couldn't be - it was a pretty unconvincing piece of identification evidence.

In some contrast to that, in relation to count 2, Thornton, who saw the board six weeks later - you saw the DVD of it, was firm and fairly quick in his accurate identification of an image of the accused person. Or perhaps putting it this way - I'll rephrase that. He picked a face which was the accused person and of course, the accused person says she wasn't there, but that's - you saw that procedure.

So in my remarks to you earlier I spoke about the way the prosecution case had been put to you and that it was a circumstantial case. And it didn't rely solely on identification evidence at all. It was - you looked at all of the circumstances and there was a lot of material that had nothing to do with the digiboard evidence.

But of course, there is a chance that you mightn't have found that method of analysis at all attractive and have gone straight to the digiboard evidence. And so it's because of that that I now say these things that I'm about to say to you.

You'd be aware - well, perhaps I'll say to you. It is the experience of the law, that there are mistakes made in identification and there have been terrible miscarriages of justice over the years, because of mistakes. And in part, it's because of the very variety of observation that is apparent here. People can make mistakes. They can do - they can be doing their best to be honest, but they can be wrong.

You've had descriptions of the height of a woman that varied greatly, from five foot three, or four, to five foot eleven; variations in hair colour and length and style.

And you need to be very careful when assessing identification evidence of this kind and you need to look at the circumstances of how it was arrived at. Now, you have a video of the procedure that was adopted, so you can assess that. You have the two boards, and counsel made some submissions to you about the boards, whether they were fair, in the sense of people of all similar appearance, or whether there wasn't much - there was too much dissimilarity.

And you're [sic] heard the defence counsel say to you that the digiboard was unfair because the woman had long hair and there weren't very many

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people with long hair, for example, on it, and you can take those matters into account.

And so I wish to emphasise to you that you must be very careful before relying upon digiboard evidence, identification evidence. That's not to say you can't rely on it, but you've just got to pause and consider it carefully and consider the submissions that have been made about it. There are variations in description, and those matters should be kept in mind.

As I've said to you, Mr Harman's identification was, I think, unarguably weak, and the prosecutor certainly didn't suggest to the contrary. The identification of Thornton appears, you might think, appeared to be strong and conclusive. You'd need to consider whether he did see the woman between when the incident occurred and before the digiboard procedure took place; that was six weeks.

He denied that he had, and he hadn't been to court at all and hadn't seen her, and so you have that. So I think really, as I say, I give you this warning because of the experience of the courts over the years that errors are made in identification.

You need to look at all of the circumstances, and I suppose in thinking about that of course as well, you need to look at how much time the person identifying had to see the face of the person they say was the-person.

In that regard of course, you have Harman, who had some contacts with the woman, but of course his identification of her, as I say, is weak, and so I don't really feel I need to say much more about that.

In spite of having seen her on the number of occasions that he did, he was uncertain and picked two faces, only one of whom - one of which was the accused, and from his evidence, he only included that face because of the length of hair apparent in the photograph, not from the face itself.

Harman [sic], however, saw the woman who brought the Mercedes Benz in and he had dealings with her arising out of that, and you need to think whether he would have had any particular reason to recollect what occurred.

He was a car salesman. This deal turned out to be a bad deal for the caryard, you might think, and so you can look at the circumstances of his dealings with the woman and whether he'd be likely to have remembered or not. He dealt with her face to face.

His identification is denied and so mistakes can be made. I'm not saying there is a mistake or there isn't, but I'm just saying to you that you need to be especially careful and be aware mistakes can be made and have been made in the past. That is the experience of the courts.

So if your reasoning in the case relating to the circumstantial evidence as I explained the other day; that is, considering all of the circumstances, if you

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have taken the view that, 'Well, we think that the case has been proved because of the digiboard evidence', well, be aware of my warning.

I reiterate the prosecution didn't put the case to you based upon that. That evidence was included, but the case is based upon a circumstantial case referring to everything that happened and working back, if you like, from the end. So I'd ask you then please just to retire and just have a talk about what I've said and let us know. Thank you (ts 612 - 615).

Ground 2 - The merits

52 Identification was the central issue in this case. That issue did not fall to be determined entirely on the visual digiboard identifications of Mr Harman and Mr Thornton. Nonetheless, that evidence formed part of the entirety of the circumstantial evidence which the jury could use in order to conclude that the appellant was the offender.

53 Whilst it is clear that the prosecution had not intended to rely upon the visual identification of Mr Harman given its inherent weakness, that evidence was nonetheless before the jury and it was not suggested by either the State prosecutor or the judge that they should completely disregard it. Whilst its weakness was recognised it was nonetheless left to the jury as something they could take into account.

54 As I have noted previously, the evidence of Mr Thornton was of a different nature. It was significant evidence and relied upon by the prosecution as materially strengthening its case. That having been said, this was not a case in which the visual identification was in any respect a crucial or indispensible link in the prosecution case. The strength of that case, independent of the visual evidence, will be considered later in these reasons.

55 As regards the necessity for giving a warning in respect of identification evidence, the High Court in Domican said:

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

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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).

56 In the present case the trial judge was clearly influenced by his view that the visual identification evidence, at least of Mr Harman, was inconsequential in the context of the prosecution case as a whole. However, the strength of the prosecution case independent of the identification evidence does not justify a failure to give a warning as to the dangers of identification evidence. In this regard, the following was said in Domican:

[T]he adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. 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).

57 The directions initially given to the jury referred to the weakness of Mr Harman's evidence, but contained no warning regarding identification evidence, either generally or specifically relating to the visual identification evidence in issue. It was not suggested to the jury that they should discount Mr Harman's evidence entirely, rather it was left to them to give it such weight as they saw fit. Mr Thornton's evidence (and
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indeed Mr Gambin's evidence of having recognised the appellant when she came to collect the Hyundai) was evidence that, on any view, the jury could have relied on its reasoning process. In these circumstances, regardless of the strength of the other evidence, a warning appropriately adapted to the circumstances of the case was called for.

58 It must be remembered that in the present case the directions initially given by the trial judge were supplemented by the redirection given on the Monday morning. There is clearly a danger that by that time, the jury having indicated that they had reached verdicts, their thinking was set and unlikely to be influenced by any redirection. Nonetheless, it must be accepted that jurors act upon the directions that they are given. Furthermore, that redirection was given at the instigation of the appellant's counsel who urged upon the judge that it could properly and effectively be given at that stage of the proceedings (ts 610). The jury did retire after receiving that redirection and returned with its verdict about half an hour later.

59 It must be said, however, that there are some difficulties even with the redirection. His Honour did refer to the dangers of mistaken identification and the need to consider factors such as the length of time that the witness had to see the person and the time that then elapsed before the identification procedure. However, he referred to the prosecution case as not relying solely on the visual identifications. That, of course, is correct, but his Honour then placed his directions into context by saying 'there is a chance that you mightn't have found that method of analysis at all attractive and have gone straight to the digiboard evidence. And so, it's because of that that I now say the things I'm about to say to you'. The impression given was that the warning applied only if the jury was relying solely or primarily on the visual identification evidence. This impression was reinforced by the last two paragraphs of the redirection that appeared to contrast the circumstantial case as presented by the prosecution with a case that was reliant on the visual identification evidence.

60 What the redirection failed to make clear was that the warning applied not only where the jury relied upon the visual identification evidence as the sole evidence proving identification of the appellant but that it applied if the jury had placed any reliance upon it. The fact that such evidence forms only part of what is otherwise a strong circumstantial case does not mean that its nature changes or that no warning is required. In assessing a circumstantial case it will be for the jury to assess the strands of evidence which comprise it. A strand may not in itself be indispensible but it may be a factor which assists in resolving whether the

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jury is satisfied beyond reasonable doubt. The reference in Domican to the necessity for a trial judge to give a direction on the assumption that the jury may decide to convict solely on the identification evidence, should not, in my view, be taken as meaning that any direction should be confined to that possible course of reasoning. To confine a direction in that way would render any warning ineffective because it would not realistically relate to the way in which a jury is likely to approach its task in a case involving circumstantial evidence.

61 In my view, the directions originally given were inadequate on any view. Those directions could not be justified by the fact that the prosecution case was otherwise a strong one independently of the visual identification evidence. The visual identification evidence, at least of Mr Thornton, was significant in that it had the potential to play a part in whether the jury was satisfied that the only reasonable inference was that the woman who committed the frauds was the appellant.

62 The redirection was also inadequate. Whilst it addressed the factors relevant in assessing the visual identification evidence it did so in a way that confined its application. This problem was compounded by the fact that the redirection was made at a very late stage. For these reasons I am of the view that ground 2 has been made out.

Proviso

63 Even if a ground of appeal might be decided in favour of an appellant, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred: s 30(4) Criminal Appeals Act 2004 (WA).

64 In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, the High Court considered the proviso in s 568(1) of the Crimes Act 1958 (Vic), which is essentially the same as s 30(4) of the Criminal Appeals Act. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ referred to three essential propositions:

First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt [39].

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65 Their Honours said that the task to be undertaken requires an appellate court to make its own independent assessment of the evidence to determine whether the accused was proved, beyond reasonable doubt, to be guilty of the offence, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record. Their Honours noted that there will be cases where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply.

66 The appellate court's task must also be undertaken on the whole of the trial record, including the fact that the jury returned a verdict of guilty. See Weiss [43]. Whilst the appellate court should not engage in speculation, there are cases in which it is possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the jury.

67 The High Court noted in Weiss that there may be cases where it would be proper to allow an appeal even though the appellate court is satisfied beyond reasonable doubt of the appellant's guilt. Two examples in this regard were referred to. The first included cases 'where there has been a significant denial of procedural fairness at trial' [45]. The second included cases where the errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the proviso [46].

68 In Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, Brennan, Dawson and Toohey JJ held that the proviso was not intended to apply 'when the proceedings before the primary court have so far miscarried as hardly to be a trial at all' and also that the proviso does not apply 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings' so that 'the accused has not had a proper trial and … there has been a substantial miscarriage of justice' (373).

69 In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, Gleeson CJ and Kiefel J accepted that there are some errors that 'are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strength of the prosecution case, or the appellate court's view as to the guilt of the accused' and that 'the proviso cannot be applied where the error at trial denies or substantially frustrates the capacity of an appellate court to decide whether a conviction is just' [23]. Gummow and

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Hayne JJ referred to a class of cases in which the error at trial is of a 'radical' nature such that the application of the proviso is impossible [54].

70 In Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358, the High Court allowed an appeal in circumstances where the trial judge had fallen asleep during parts of the trial. As a consequence of the trial judge falling asleep, the jury was distracted from attending to the evidence at various stages of the trial including when one of the appellants was giving his evidence. It was not possible, in the circumstances, to place any reliance upon the jury's verdict because the relevant miscarriage involved the jury not paying attention to all of the evidence adduced at the trial [129]. In these circumstances, it was held that the proviso was not engaged.

71 However, the fact that an accused gave sworn evidence in his or her own defence at the trial and that the jury's assessment of the accused's credit may have been influenced by an error of law or an irregularity at the trial does not necessarily preclude an appellate court from applying the proviso: Quaid v The Queen [2011] WASCA 141 [235] (Buss JA). The critical question is whether, notwithstanding that the accused gave sworn evidence and notwithstanding the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the appellate court is nevertheless satisfied beyond reasonable doubt of the accused's guilt. See Mahmood v The State of Western Australia [No 2] [2008] WASCA 259 [3] (McLure JA), [210], [215] (Buss JA); Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 [33] (Buss JA).

72 In the present case, the error was a failure to give an adequate warning in respect of the visual identification evidence. The significance of such a failure is to some extent determined by the significance of the evidence in question at the trial. I would not characterise the failure to give an adequate direction on the visual identification evidence as being 'so fundamental' or involving 'such a departure' from the essential requirements of a fair trial as to preclude this court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has occurred irrespective of the strength of the prosecution case. In these circumstances, it is necessary to go on to consider whether this court is satisfied beyond reasonable doubt that the appellant's guilt was established on the whole of the evidence and therefore that no substantial miscarriage of justice occurred.

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73 In Domican, it was noted that there may be circumstances where a case is so compelling that a Court of Appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence (565 - 566). This might suggest that in applying the proviso in a case like the present an appellate court should disregard the visual identification evidence which was led at trial. However, as Weiss makes clear, an appellate court considering the proviso is to take into account the whole of the trial record. There appears to be no reason in principle why an appellate court could not have regard to the visual identification evidence but in doing so apply the caution appropriately reflected in the warning that ought to have been given in respect of that evidence. However, in the present case, there was significant circumstantial evidence independent of the visual identification evidence. Even if the visual identification evidence of Mr Harman and Mr Thornton was discounted, the prosecution case against the appellant was overwhelming. In particular, I refer to the following evidence that was either unchallenged or not seriously in contest:

Count 1

1. The woman who dealt with Mr Harman gave her name as Sari Singh.

2. The woman took possession of the car at 4.00 pm on 5 August 2009.

3. The woman gave Mr Harman a cheque for $65,000 drawn on the account of All Regal Enterprises Pty Ltd.

4. One of the signatories to the account (which by then had been closed) was a director, Carol Farrell of an address in Buntine Road, Churchlands.

5. The woman asked for the car to be transferred into the name of ITSA Pty Ltd.

6. An account in that company's name was later used to receive the proceeds obtained in respect of count 2 and to transfer them into an account in the name of Carol Elizabeth Farrell.

7. The woman provided Mr Harman with a mobile telephone number which was subscribed for in the name of Carol Saliba, of the same house number as that of Carol Farrell's at Buntine Road, Wembley Downs.

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8. The appellant had legally changed her name from Carol Elizabeth Farrell of Buntine Road, Wembley Downs.

9. Mr Harman received emails from an email address in the name of Sari Singh which was opened and closed on 12 April 2009.

10. The account associated with the email address was registered to an address in Herdsman Parade, Wembley.

11. The address in Herdsman Parade, Wembley was the appellant's address at the time she was charged. She was taken there by police following her arrest and gave that address for the purposes of bail.

12. Other email addresses associated with the internet account included two which incorporated the name Ashby.

13. The appellant has a son named Ashby Keith Farrell.

Count 2

1. The same Mercedes motor vehicle obtained from Mr Harman on 5 August 2009 was taken approximately three hours later to the John Hughes Caryard by a woman who introduced herself as Sarah Anderson.

2. The woman sought to trade the Mercedes for a smaller vehicle. She agreed to take a Hyundai Getz. She asked that that vehicle be transferred into the name of ITSA Pty Ltd.

3. The woman gave the same mobile telephone number to the salesman with whom she dealt, Mr Thornton, as that previously given to Mr Harman.

4. It was agreed that the woman would receive a cheque for the difference in assessed value of the Mercedes of $28,010. She returned to the caryard the following day to collect the cheque which was made out in the name of ITSA Pty Ltd.

5. The cheque for $28,010 was deposited into a bank account in the name of ITSA Pty Ltd. Those funds were then transferred in two separate amounts into an account in the name of Carol Elizabeth Farrell.

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6. On 17 August 2009, the appellant attended at the caryard to collect the Hyundai Getz. She was apprehended whilst seated in the vehicle.

74 The appellant gave evidence in her defence. She contended that she had mistakenly gone to the caryard on 17 August 2009 and was not otherwise involved in what had occurred. Her explanations for why she attended the caryard were fanciful in the extreme.

75 In my view, the circumstantial evidence adduced by the prosecution in this case was overwhelming. This is so even if one puts to one side the visual identification evidence of Mr Harman and Mr Thornton. Taking into account all of the remaining evidence, this was a case in which the circumstantial evidence was not merely strong, it was a case where a conviction of the appellant on the two counts was inevitable. The only reasonable inference available from the collected force of the circumstantial evidence was that the appellant was guilty on both counts.

76 Accordingly, in my view, notwithstanding that the trial judge was in error in respect of the identification directions, there was no substantial miscarriage of justice in this case and thus ground 2 must be dismissed.