High Court of Australia Deane, Toohey and McHugh JJ Pitkin v The Queen [1995] HCA 30 ORDER Appeal allowed Cur adv vult 28 June 1995 Deane, Toohey and McHugh JJ THE COURT. The appellant, Mr Kirk Pitkin, was convicted in the District Court of New South Wales of one count of stealing and of another count of allowing himself to be carried in a motor vehicle without the consent of the owner. An appeal to the New South Wales Court of Criminal Appeal (Hunt CJ at Common Law, Smart and Levine JJ) on the ground that the convictions were unsafe and unsatisfactory was unanimously dismissed. At the request of both parties, the present appeal, which is from the judgment of the Court of Criminal Appeal, was heard immediately after the grant of special leave. The appeal was allowed, the order of the Court of Criminal Appeal dismissing the appeal to that Court was set aside and in lieu thereof it was ordered that the appeal to that Court be allowed and the appellant's convictions be quashed. The Court indicated that it would subsequently publish its reasons for making those orders. This we now do. The background facts fall into a small compass and can be briefly stated. At approximately 1.30 pm on 17 December 1990, Ms Diane Clarke was in a supermarket known as "Jewels Foodbarn" in the Sydney suburb of Rooty Hill. She was holding a shoulder bag under her arm and pushing a shopping trolley. A male stranger gave her a "forceful shove" and "reefed" her handbag from her. The man ran from the shop and got into a red Holden Commodore which was driven away. The Holden Commodore had been stolen from a Mr Povey earlier in the day. The Crown case is that the person who stole Ms Clarke's handbag and was driven off in the stolen vehicle was the appellant. Ms Clarke did not see the offender's face. To quote her, she "[j]ust saw the back of him running away". The only description she could give of the offender was that he had "short hair", was of "slight build" and wore "a T-shirt and a pair of football shorts". She said that she "estimated from his build" that he was "probably around about his twenties" but added that she "couldn't honestly say how old he was" since she "didn't see his face". On the day in question, Ms Michelle Vella was at the Rooty Hill shopping centre. On three separate occasions she observed a man who was clearly the offender. On the first occasion, Ms Vella observed the offender for "about two or three minutes" from a distance of about 14-15 m. He was "jiggling" a piece of blue tape "between" the driver and passenger doors of a parked green car, while another man waited in a red Holden Commodore next to the green car. The two apparently became aware of the fact that Ms Vella was watching them. The offender entered the red Holden Commodore and they drove away. Approximately 20 minutes later, Ms Vella saw the red Commodore double-parked outside the Jewels Foodbarn. She saw the offender leave the car and enter the supermarket. Shortly afterwards, she saw him run out of the supermarket "with a lady's handbag". He got into the passenger seat of the red Commodore and the car "sped off". Ms Vella made a note of the registration number of the car which, as has been indicated, turned out to have been stolen earlier in the day. Ms Vella's description of the man was "having short brown hair, light brown", "medium build", "wasn't very tall", "mid-twenties", "Australian", "black football shorts" and a "white T-shirt" with "red striping across it". His hair was "very short", "like a crew-cut". About half an hour after the incident, Ms Vella was shown a number of photographs by police at Mt Druitt Police Station. She picked out three photographs of the appellant. Those photographs had been taken on three different dates, the closest being some three and a half months before the date of the alleged offences. Ms Vella's evidence was that, when she picked them out, she said: "This looks like the person that I seen take the lady's handbag." A police witness who gave evidence of Ms Vella's selection of the three photographs said that he "didn't record" what Ms Vella had said but that it "could have been something like": "This looks like the person that I seen." Some 10 months later, the appellant was arrested and charged with having stolen Ms Clarke's handbag and with taking and driving [1] the Commodore motor vehicle. He denied any involvement in either offence. Perhaps not surprisingly in view of the lapse of time, he stated that he was unable to remember his movements on 17 December 1990. Apart from evidence of the matters mentioned above, no evidence was led on the appellant's trial which implicated him in either offence. There was no identification of the appellant either in a line-up or in court. There was no evidence of fingerprints on the stolen car or handbag which were both recovered. Apart from the appellant's unsworn statement that he had had long hair, there was no evidence about the length of the appellant's hair at the time of the alleged offences. 1. At the trial, the indictment was amended to allege that the appellant had allowed himself to be carried in the motor vehicle without the consent of the owner: see Crimes Act 1900 NSW, ss 117 and 154A(1)(b). In other words, the evidence implicating the appellant was confined to evidence of Ms Clarke's and Ms Vella's verbal descriptions of the offender and his clothes and of Ms Vella's selection of the three photographs. It could not be seriously suggested — and was not argued — that the verbal descriptions — "Australian", "short light brown hair", "slight" or "medium" build, "not very tall", "twenties", "football shorts" and "T-shirt" — positively identified the appellant as the offender. That meant that the prosecution case against the appellant ultimately rested upon the fact that Ms Vella, who had seen the offender, identified three photographs of the appellant with the comment "This looks like the person". Obviously, the fact that an accused person "looks like" a person who in fact committed a crime is, of itself, insufficient to sustain a conviction of that accused of that crime. Yet, prima facie, the evidence led against the appellant in the present case went no further than that. Once it is accepted that the appellant "looks like" the offender, Ms Vella's selection of three photographs of the appellant with the comment "This looks like the person" prima facie proves nothing more than what she said. In that regard, there is no significance in the fact that Ms Vella selected three photographs rather than one. All that establishes is that there were at least three photographs of a person, the appellant, who looked "like" the offender. The basis on which the Court of Criminal Appeal held that the convictions of the appellant were not unsafe and unsatisfactory appears in the following extract from the judgment of Levine J who delivered the main judgment in that Court: True it is that the Crown relied on the testimony principally of Ms Vella but there was to my mind, a coincidence of description by this witness with that of the victim, Ms Clarke as to clothing, shorts and a T-shirt, and build. Ms Vella made a positive identification within half an hour of having seen the same person three times: the first occasion jiggling the blue tape at the green Commodore and the second, going into and the third, coming out of, the Foodbarn and that it was the same person, there was to my mind strong circumstantial evidence as to time, place and taking into account the suspicious circumstances when the person was first observed by Ms Vella. A jury is usually instructed to apply its worldly wisdom and common sense and those qualities are not to be abandoned by an appellate court in performing its function as a matter of law in determining whether verdicts are unsafe and unsatisfactory. It is my view that one should not be too quick to impugn language used by an identifying witness To my mind common sense dictates that it cannot reasonably be expected that every person who embarks upon the exercise of identification, will at the appropriate time and in the appropriate way assert positively, "that is the person that I saw ". It was open to the jury to understand the expression "that looks like the person that I seen " as a manner of speech amounting to positive identification by that lady whom the jury had had the benefit of seeing and hearing. It was open to the jury to understand what the witness had said, absent event that about which complaint or concern is here expressed by the appellant namely as to evidence as to her state of mind, as a statement of identity rather than a statement of resemblance. Two comments need to be made about what is said in the first paragraph of that extract. The first is that, in the circumstances of this case, nothing really turned upon any "coincidence" of Ms Clarke's and Ms Vella's descriptions of the offender. It was common ground that the person Ms Vella saw was the person whom Ms Clarke saw running away after the theft. That being so, the general correspondence of their descriptions — 20s, short hair, slight or medium build, football shorts, T-shirt — was, regardless of whether the appellant was or was not the offender, eminently predictable rather than being noteworthy as a "coincidence". The second comment is that his Honour's statement that Ms Vella "made a positive identification" attributes a different meaning to Ms Vella's comment from the meaning which the words which she used literally convey. The real point of what is said by Levine J in the above extract from his Honour's judgment would seem to lie in the second and third paragraphs. Obviously, as his Honour pointed out, both a jury and an appellate court should not abandon wisdom or common sense. However, neither wisdom nor common sense supports the conclusion that, in circumstances where the Crown case against an accused rests solely on a witness's purported identification of him through being shown photographs in a police station, that identification need not be clear and unambiguous. The use of photographs of suspects by law enforcement agencies for the purpose of identifying an offender is a necessary and justifiable step in the course of efficient criminal investigation. Nonetheless, it is attended by some danger of consequential and unfair prejudice to an accused. One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used. In that regard, once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness's recollection of the actual appearance of the offender. Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a "suspect" who "looks like" the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender. Yet another danger from the point of view of an accused is that a witness's evidence that she identified a photograph of the accused which was in the possession of the police may suggest to the jury that the accused either has a criminal record involving the relevant kind of crime or is otherwise unfavourably known to the police as a person likely to commit that kind of crime. That danger of prejudice is likely to be increased in a case, such as the present, where the police have produced a number of different photographs of the accused taken at different times. In the context of the above danger of prejudice to an accused in prosecution evidence of identification by a witness's earlier selection of a photograph or photographs, ordinary considerations of fairness dictate that any such evidence be subjected to careful scrutiny before it is accepted as constituting evidence of positive identification. If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification. All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt. That point was made by Mason CJ, Dawson and Toohey JJ in Knight : [2] In those circumstances, the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognised. As Dixon J said in Martin v Osborne: [3] In Plomp [4] Dixon CJ cited his previous observation in Martin v Osborne and acknowledged the difficulty found in stating the rule, a difficulty which he said "has not been overcome by employing the expression "more consistent" as if there could be degrees of consistency". There are not, as Dixon CJ observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance. Under our system of administering criminal justice, a person is not to be convicted of serious crime on the sole basis of a verbal ambiguity. 1. (1992) 175 CLR 495 at 502-503; 63 A Crim R 166 at 171-172. 2. (1936) 55 CLR 367 at 375. 3. (1963) 110 CLR 234 at 243. In the present case, the words used by Ms Vella in selecting the three photographs did not, as a matter of literal meaning, amount to positive identification. They were plainly consistent with an intention by Ms Vella to indicate nothing more than that the person depicted in the three photographs looked like the offender whom she had seen. It may well be, as Levine J speculated, that Ms Vella did intend to convey, by the words that she used, that the person depicted in the photographs actually was the offender. It may also well be, as Hunt CJ at Common Law suggested in his judgment, that the phrase "that looks like" was used in a colloquial sense by Ms Vella and was "certainly capable in [the] circumstances of asserting an identification of the appellant". Nonetheless, the plain fact remains that the words used by Ms Vella were consistent with an absence of positive identification. That being so, the evidence of her selection of three photographs was, of itself, incapable of sustaining a finding by a reasonable jury that the appellant was, in fact, the person who stole Ms Clarke's handbag and was driven off in the stolen vehicle. In the absence of any evidence by way of explanation or elucidation of Ms Vella's words and of any other evidence implicating the appellant, the convictions were necessarily unsafe and unsatisfactory.