New South Wales Court of Criminal Appeal CITATION : REGINA v. ELDRIDGE [2002] NSWCCA 205 FILE NUMBER(S) : CCA No. 60249 of 2001 HEARING DATE(S) : Friday 5 April 2002 JUDGMENT DATE : 3 June 2002 PARTIES : REGINA v. ELDRIDGE, Jason John JUDGMENT OF : Heydon JA at 1; Greg James J at 2; Kirby J at 64 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3236 LOWER COURT JUDICIAL Nield, DCJ. OFFICER : COUNSEL : Crown: P.E. Barrett App: P. Bryne, SC. SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys CATCHWORDS : Criminal law - appeal - admissibility of evidence of similarity - relevance - prejudice - consideration of identification and similarity evidence - appropriate directions concerning identification and similarity evidence under s.116 and s.165(1)(b) of the Evidence Act - verdicts not unreasonable. LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 Pitkin (1995) 69 ALJR 612 Blick (2000) 111 A. Crim. R. 326 Cook (CCA, unreported 24 August 1998) CASES CITED: Fisher [2001] NSWCCA 380 Festa (2001) 76 ALJR 291 Barbaro (1993) 32 NSWLR 619 Alexander (1981) 145 CLR 395 Domican (1992) 173 CLR 555 DECISION : Appeal against conviction dismissed. Leave to appeal against sentence refused. IN THE COURT OF CRIMINAL APPEAL No. 60249 of 2001 HEYDON, JA. GREG JAMES, J. KIRBY, J. MONDAY 3 JUNE 2002 REGINA v. JASON JOHN ELDRIDGE Judgment 1 HEYDON, JA: I agree with Greg James, J. 2 GREG JAMES, J: The appellant appeals against his convictions following a trial in the District Court of New South Wales at Parramatta before his Honour Judge Neild and a jury on two counts: one of robbery, an offence under s.94 of the Crimes Act 1900 punishable by a maximum penalty of 14 years imprisonment; and the other, assault occasioning actual bodily harm, an offence under s.59 of the Crimes Act 1900 for which the maximum penalty prescribed is five years imprisonment. 3 Although, in his notice of appeal, the appellant gave notice of his desire to appeal against sentence also, and in the written submissions there was expressed an intent that further submissions would be provided in respect of sentence, on the hearing of the appeal, senior counsel for the appellant informed the court that on reflection there was no argument to be put challenging the sentences. The application for leave to appeal against the sentences should therefore be dismissed. Grounds of appeal 4 Three grounds of appeal were advanced. They were:- 1. The learned trial judge erred in failing to exclude the evidence of Mr. Brown purporting to identify the appellant. 2. The directions given to the jury by the learned trial judge on the evidence of identification were inadequate. 3. The verdict of guilty is unreasonable, having regard to the evidence in the case. 5 That last ground was particularised in the oral and written submissions as propounding that the identification was inadequate to support the conviction, having regard to what were asserted to be significant defects in the reliability of it, the delay in the undertaking of the relevant photographic examinations and an over-confident assertion by one witness only of an identification which was both unsupported by other evidence and not of such quality as to found a reliable conclusion of guilt. 6 By way of context, it was argued that a cross-examination of the appellant when he gave evidence at the trial concerning the circumstances of his refusal to participate in a line up and the way that matter and the appellant's case were left to the jury in the summing up by the learned trial judge were such as to have a prejudicial effect obscuring the unreliability and inadequacy of the identification in the context of the whole of the evidence against the appellant, which evidence, when objectively considered, was, it was submitted, insufficient to support the verdict. 7 In his oral submissions, senior counsel for the appellant referred to this ground as deriving from the other two grounds and it was submitted that what had been submitted with respect to the other two grounds bore upon ground three. It was put:- "It is simply a global submission that when looked at altogether the evidence was not sufficiently compelling." 8 The Crown submitted that, having regard to what were submitted to be entirely proper and adequate directions and the evidence of Mr. Brown which it was submitted was properly admitted and supportive of what was submitted to be an entirely sufficient primary identification, that the evidence was adequate it was said that the question of "there being an unreasonable verdict just does not arise". 9 Since it will be necessary to refer to the extent of the evidence when considering those other grounds on which there was a challenge to the admissibility and adequacy of the identification evidence and to the appropriateness of the trial judge's directions, particularly considering what was submitted to be the weaknesses of that evidence, it will be convenient to return to this ground later. The Evidence 10 The general nature of the evidence in the case sufficiently appears in a summary provided in the Crown submissions:- "On 20 April 2000 at about 2.30 pm, Mona Fernandez, who was seven months pregnant, and Murray Brown left their place of employment, Union Steel at Wetherill Park, to go to the ANZ bank at Smithfield. This day was the Thursday before Good Friday. Ms. Fernandez had about $2,080 cash in her purse to pay for blinds she had had installed. At the bank, Ms. Fernandez cashed a company cheque for $3,000 while Mr. Brown waited for her inside the bank. While she was waiting in the queue, Ms. Fernandez noticed a man outside the bank, about six metres away from her, talking on a mobile phone. She had a side view of him and observed that he wore a sport cap, a white t-shirt and blue shorts. After receiving the money, Ms. Fernandez put it into her purse and she and Mr. Brown drove back to Union Steel, about a five or 10 minute drive from the bank. Ms. Fernandez did not see the person on the mobile phone when she left the bank. At Union Steel, Mr. Brown parked in his allocated parking spot about six metres from the front door. Mr. Brown noticed a maroon four wheel drive doing a three point turn in the front driveway. As they walked around the corner to the entrance doors of the office, Ms. Fernandez saw a man standing near the entrance in the corner where the door was recessed. She looked at his face and noticed his 'piercing eyes'. As Ms. Fernandez opened the door and started to pass through it, she felt her bag being taken from her shoulder. She held onto the straps while the person pulled at the bag. The straps broke and Ms. Fernandez fell backwards onto a pot plant in the reception area and the person began to leave. As he left he punched Mr. Brown, who sustained redness to the left cheek and ear swelling. The man ran to a maroon four wheel drive. Mr. Brown chased the car and was able to note the first three letters of the registration, 'VTA'. He telephoned 000 and gave a description of the car and the man. He described the man to the operator as being in his early twenties, Mediterranean appearance, slight thin build, five foot seven inches, dark blue, black baseball cap, jeans, white t-shirt with a tear on the back. In evidence he described the man as having been around 25 years old, 170-175 centimetres tall with a thin build. He said the man had olive skin and looked to be of Mediterranean appearance. He had short, dark coloured hair, was clean shaven and wore blue jeans, a white t-shirt and a dark coloured baseball cap. While the robbery was occurring, Ms. Fernandez noticed the man was wearing a blue baseball hat, a white t-shirt and blue shorts. She realised that it must have been the same person that she had seen standing outside the bank. She described the man who grabbed her bag as being 'about 175 centimetres tall, thin build, fair skin, Caucasian, young, early 20's'. She thought he had brown hair but was not sure because of the cap he was wearing. His hair was short, because she could not see any hair hanging outside the cap. He wore sandshoes and white socks. Mr. Brown did not notice where the man came from. He saw the man shove Ms. Fernandez and grab her bag. As he turned around he hit Mr. Brown, who staggered back a couple of steps and down the single step in front of the door. The man lost his footing on the single step and fell over. Mr. Brown tried to grab the man by his shirt but he twisted away, tearing the shirt a little. Two uniformed constables attended the scene. Detective Smith received a call on his radio and attended. Ms. Fernandez had been examined by ambulance personnel and had returned home. Detective Smith arranged for the attendance of fingerprint police. Fingerprints were lifted from the glass door on 20 April 2000 and the fingerprints of the appellant did not match those taken from the door. There was no fingerprint expert report because the appellant was not implicated by fingerprint evidence. No fingerprints were lifted from the maroon four wheel drive which was recovered. Mr. Brown made a statement to police on 20 April 2000. In that statement he said that he saw the man standing at the entry door holding the door open with his hand on the glass panel. On 2 June 2000, he went to Green Valley Police Station where he was shown 10 photographs. He numbered and initialled the back of each photograph. He selected two photographs, numbered six and five, and told police that it was possible that one of those two people was the robber. Number six was a photograph of the appellant. On the Saturday following the robbery Ms. Fernandez received a telephone call that her bag had been found. When she retrieved it from Casula the money and her sunglasses were missing. On 24 April 2000, Ms. Fernandez made a statement to police including her description of the man who took her bag. On 10 July 2000, Inspector O'Connor went to her home and showed her 10 photographs (Exhibit A). She numbered and initialled the back of each photograph except for the one she identified as the person who robbed her, which she signed. That photograph, numbered three, was of the appellant. Detective Smith described the appellant's appearance when he spoke to him on 26 July 2000. He said the appellant had fairly short cropped hair, was of a thin to medium build which was similar to his build at trial, and at the time of his arrest was between 170 and 175 centimetres. He did not record Ms. Fernandez's statements about the robber's eyes because he believed they were a perception rather than a description. 11 In the written submissions filed on behalf of the appellant appears the following concerning the evidence of Ms. Fernandez, Mr. Brown, the fingerprint evidence and the evidence of the appellant:- " Evidence of Ms. Fernandez 3. Ms. Fernandez was seven months pregnant at the time of the offence. She stated that she observed a person at the front door and saw him from 30-40 centimetres away. She gave a description of this person in evidence as wearing a blue baseball cap, white t-shirt and blue shorts, he was 175 centimetres tall, thin build, fair skin, Caucasian, young early twenties and seemed like he had very short brown hair but had a cap on. She stated that afterwards she realised it must have been the same man she had seen outside the bank. She also gave evidence that he had 'piercing eyes'. This description did not appear in her statement to the police though both she and the police officer who took her statement (Detective Smith) gave evidence that she had talked about the eyes of the suspect when interviewed by police. She stated that she felt her bag go as she stepped through the door past the man and that she held onto the strap and had a struggle with him which lasted for approximately seven seconds. She was face to face with him during this time and said that she was scared. 4. The police took a statement from her following her first description of the robber on 24 April 2000 and showed her photographs on 10 July 2000. She picked out a photograph of the appellant stating that 'I'm sure that's him his eyes are so piercing' (Exhibit 'D). She gave evidence that she was absolutely sure and knew straight away that it was the robber and the eyes stood out. She was 110% sure. … Evidence of Mr. Brown 5. Mr. Brown was two to three feet behind Ms. Fernandez when she was robbed. He stated that she (sic) he saw her pushed from behind and her bag taken immediately. He first saw the man when he pushed her. The man then turned to leave and punched Mr. Brown to the face causing redness and swelling. Mr. Brown grabbed hold of him and the man fell to the ground. He twisted out of Mr. Brown's reach and ran to a waiting car which sped off. Mr. Brown gave a description to 000 over the phone straight after the robbery. He described the robber as early twenties, Mediterranean appearance, slight thin build, five foot seven inches, wearing a dark blue/black baseball cap, t-shirt with tear in the back, and jeans. He made a statement to the same effect that afternoon at around 5.30 (some two and a half hours after the assault). On 2 June 2000, he was asked to look through photographs by the police. He told them that he did not recognise anyone in the photographs, but if he had to 'put his hand on it' he would say 'he's possible' and 'he's possible', picking two photographs. He explained in evidence that he picked these two as possible as they were the only two of Mediterranean appearance in the bundle of photographs. He then told the police that 'it looks similar to one of those people' and that he couldn't positively identify anyone from the photographs. He also commended that 'the person was wearing a hat and sunglasses at the time'. … Fingerprint evidence 6. The police were directed by Mr. Brown to a position on the door where the assailant had held the door open. Fingerprints were found and developed, but those fingerprints did not match the fingerprints of the appellant. Neither did fingerprints found on a toolbox in the back of the getaway care. Evidence of the appellant 7. The appellant gave evidence in which he denied being the assailant. The trial was held in March 2002. The appellant did not know where he was one year earlier on 20 April 2000. He had not turned his mind to this on 25 May 2000 when he was requested to attend a line-up, as he did not know he was a suspect and thought the police might have wanted him to help in a line up. He did not think about it because as far as he was concerned it was not relevant to him, and his solicitor had advised him not to participate in the line up. There was cross-examination directed to establishing that the appellant's opinion that the police might have wanted him to 'help' in a line-up was not credible and that the robbery took place in a suburb close to his mother's place of residence." 12 In addition to the foregoing, there should be specific reference to the statement of Mr. Brown of 2 June 2000 which was apparently in the form of a recorded interview between Mr. Brown and police on that date which was before the jury as Exhibit C. Questions and answers 23-30 are as follows:- "Q.23. Do you recognise any of the people in those photographs? A. Umm … No. If umm … I had to point my hand on it, I'd put it out of, I'd say, he's possible or he's possible, not the rest of the guys. Q.24. Okay. Just turn those photographs over. You've indicated to me … umm … photographs number six and photographs number five … A. That's correct. Q.25 … umm … are you telling me that these are the people responsible for the robbery? A. Yep, umm … only one of 'em. The other person that was driving the vehicle I didn't see. I wouldn't know if it was male or female. Q.26. Okay. Are you saying that it is one of these people, or that it looks similar? A. It looks similar to one of these people. Q.27. Okay. A. I'm not positively identifying them, I can't … Q.28. Okay A. … but the person was wearing a hat and sunglasses at the time. Q.29. In relation to the other photographs, do any of those other people look familiar? A. Mmm, no. Q.30. Perhaps I'll, just so that I can clarify, to be certain. Is it the case that none of the people depicted in these photographs look like the person who committed this offence? Or rather, I'll rephrase that, not look like … none of these people are the people who actually committed the offence? A. I couldn't positively say that any of these people are the people who committed the offence." Ground One 13 After the arraignment of the accused at the commencement of the trial, objection was taken to the admissibility of the evidence of Mr. Brown of his identification of the two photographs. The learned trial judge conducted a voir dire in which were admitted by consent the statements of Mrs. Fernandez, the 10 colour photographs numbered and initialled by her, the statements of Mr. Brown and the 10 coloured photographs signed and dated by him. It was conceded on the voir dire that photograph number three of those identified by Ms. Fernandez was a photograph of the accused and that Mr. Brown had picked two photographs, five and six, of which photograph six was a photograph of the accused. Evidence of the process of photograph identification in which Mr. Brown engaged is set out in that portion of Exhibit C I have already quoted. 14 There was discussion before the trial judge concerning the description of the accused and the trial judge was informed that the descriptions given generally fitted the accused except that it was challenged by his counsel at trial that he was "Mediterranean looking". There was short debate before his Honour and reference was made to the decision of the High Court in Regina v. Pitkin (1995) 69 ALJR 612. His Honour ruled the evidence admissible, publishing a short judgment. His Honour said:- "The accused's counsel objects to the Crown Prosecutor adducing evidence of a witness, a Mr. Murray Brown, who gave a description of the robber to police in his statement 20 April 2000, Exhibit B1, and who, later, on 2 June 2000, selected – although that may not be the correct word, two photographs as being photographs of a person similar in appearance to the robber. One of the two photographs is a photograph of the accused. The victim of the robbery, Miss Fernandez, had viewed photographs on 10 July 2000, and she selected a photograph, which is a photograph of the accused, as being the photograph of the robber. The accused's counsel submits that the evidence of Mr. Fernandez is not identification evidence, that if it is identification evidence it is inadmissible because it does not positively identify the accused as the robber and if it is identification evidence, and if it is admissible, it should be excluded in the exercise of a discretion under s.135 or s.136 of the Evidence Act or excluded under s.137, but not in the exercise of any discretion. It is unfortunate, perhaps, that the evidence of Mr. Brown is not as positive as the evidence of Miss Fernandez that the accused – at least a photograph of him, is a photograph of the robber, but I do not see that that means that the evidence is inadmissible. It may well be that the evidence has less value than the evidence of Ms. Fernandez, but the evidence does tend to support the evidence of Ms. Fernandez. In my view, it is identification evidence, and in my view, it is probative. As to whether or not it its (sic) probative value is outweighed by the danger of unfair prejudice to the accused, I cannot see any basis upon which it could be so considered. All evidence adduced by a Crown Prosecutor is prejudicial to an accused. The evidence is designed to secure a conviction by showing that the accused committed the particular offence. I cannot see any unfair prejudice to the accused in admitting evidence which tends to confirm his being the robber. I cannot see any basis to exercise any discretion under either s.135 of s.136 of the Evidence Act. The evidence is admissible, it is relevant, it is probative and there is not unfair prejudice to the accused by admitting it." 15 Following the evidence at the trial of both Ms. Fernandez and Mr. Brown, a further application was made. The following exchange occurred:- "EVERS: My secondary application is to, having heard the evidence of Mr. Brown yesterday, where he had told the police that the person was of Mediterranean appearance and that he picked the two only people from the list that were of Mediterranean appearance, that is not an adequate and a proper photo file presented to the witness and as such that evidence should be excluded. CROWN PROSECUTOR: The Crown says it shouldn't be. When one looks at the photographs, bearing in mind the descriptions they had, the evidence of, simply says – in fact his evidence is no stronger than saying 'it was one of those two people who look similar', so the Crown says it shouldn't be - HIS HONOUR: Yes, I agree with the Crown Prosecutor. The evidence won't be excluded merely because Mr. Brown considers that only two photographs, the two he selected, numbered five and six are photographs of people of a Mediterranean appearance. I must say, having looked at the photographs I don't think they're of Mediterranean appearance, and I think there are others more of Mediterranean appearance in the 10 photographs than those picked by Mr. Brown. I think all that means is that different people have different concepts of what is a Mediterranean appearance." 16 After the evidence of Detective Smith, a further application was made on the basis, we were told, that his evidence revealed that the photographs for the identification process had been selected with the primary aim that they should be of persons resembling the suspect rather than of persons whose appearance corresponded with that of the description given. He had given evidence that he had sought to compile photographs similar to the photograph of the accused since it was felt that the description given was close to the appearance of the accused. Consistently, he asserted that in selecting the photographs, wider considerations were applied than merely seeking photographs similar to the photograph of the accused or according with the description. 17 Reference was also made to other matters of which the officer had given evidence. He had also been extensively cross-examined about the descriptions of the offender and his features, given to him by Mr. Brown and Ms. Fernandez and his observations of the appearance of the accused. He gave evidence that Mr. Brown had given "an almost contemporaneous description" of the offender "that he was of Mediterranean appearance" and that later in a statement to police Mr. Brown had said, "he had olive skin and I would say he looked to be of Mediterranean appearance" but that he had not clarified with Mr. Brown what that meant. 18 This application, too, was refused. 19 Before us it was submitted in writing that "the evidence did not confirm the appellant as being the robber" and that at most it showed the appellant and the robber shared with another person a particular physical characteristic. Although the evidence was within that encompassed by the description "identification evidence" in the dictionary to the Evidence Act, it was merely evidence of limited resemblance. It was submitted the evidence was irrelevant and highly prejudicial. Reliance was placed on Regina v. Pitkin (1995) 69 ALJR 612 and Regina v. Blick (2000) 111 A. Crim. R. 326. At trial, reference had been made to Regina v. Cook (CCA, unreported 24 August 1998). 20 In oral argument, the point was put somewhat differently. It was conceded that the evidence was relevant, but it was contended that since Mr. Brown had referred to two photographs as being similar to the offender, one of which was of the accused and the other of which was of a different person, the evidence was of little probative value and confusing without elucidation as to which photograph was being referred to and for what purpose. It was put that although the selection of the photograph of the accused as one of the two photographs selected might have supported the other evidence in the Crown case, the simultaneous selection of the other photograph not only deprived that act of much of its probative significance, but also contradicted it as a valid identification or at least confused the total picture so that the admission of the evidence focussing upon the selection of the accused's photograph was to the appellant's prejudice. That prejudice, it was submitted, was compounded by a lack of clarity in the words used by the witness in the process of selecting the photographs and by the trial judge's directions leaving the evidence to the jury as capable of supporting the accuracy of the identification of Ms. Fernandez without referring to these asserted problems. In this regard, I note and it was conceded, that there was no ground of objection, and no application at trial for any re-direction of a kind which might suggest that those involved in the conduct of the trial perceived any such significance in the evidence as is now suggested and it is clear from the extracted passage I have already set out that the legal representative of the appellant at the trial, at least at that point, did not assert a problem with Mr. Brown's identification but with the folder presented to him. 21 Applying s.55 of the Evidence Act 1995, the evidence of Mr. Brown's selection of the photograph was plainly relevant for its possible significance as narrowing the field of potential candidates for identification. It was evidence of particular features and of similarity. The argument that it supported exculpation if available was not raised at trial. It might have been made to the jury. Had it been, no doubt appropriate directions could have been given. In my view the evidence could have been regarded properly by the jury as supportive of the primary evidence of identification from Ms. Fernandez but not as primary evidence of identification itself. That is how the Crown sought to rely on it and how his Honour told the jury it could be used. It was not relied on as identification evidence hence the principle in Pitkin (supra) did not apply. In Pitkin (supra) and Blick (supra), the challenged evidence was the primary evidence of identification and in neither case was there an issue of relevance to this problem. 22 In Pitkin (supra), no question arose of excluding the evidence. The decision was concerned with its sufficiency, uncorroborated, to support the verdict. In Blick it was held that the evidence should have been excluded as of low probative value and high prejudicial effect. The relevant photograph identified was of the accused but it was the only photograph submitted to the witness of a person wearing, as the offender had, a goatee beard. That is not this case. Nor is the decision in Regina v. Fisher [2001] NSWCCA 380 of help, where only one person in a line up resembled the accused. The decision in Cook (supra) does not assist the submission. I see no such prejudice here as warranted exclusion under s.135 or s.137. The evidence is relevant and as it was used at trial and as the jury were told it could be used, neither confusing nor likely to cause prejudice in the sense that the jury would have given it weight to which it was not entitled or wrongly used it. In my view this ground should be rejected. This conclusion is supported by the views of the High Court on the admission of identification and similarity evidence in Festa v. The Queen (2001) 76 ALJR 291 cited to us at the close of argument and to which I will turn on the aspect of appropriate directions later in this judgment. 23 I turn now to ground two. As is not surprising, given the issues at trial and summations of the evidence to which I have referred, the bulk of the trial judge's summing up was devoted to directions on the issue of identification and an examination of the evidence which bore upon that issue. 24 The trial judge gave exemplary directions to the jury on their role and function and, in particular, generally how they might assess the evidence. After referring to the evidence of Senior Constable Smith concerning the description given to him by Ms. Fernandez on 24 April in which she referred to a feature of the assailant's eyes, his Honour pointed out to the jury that it was Senior Constable Smith's evidence that he had not recorded anything about what she had said concerning the assailant's eyes, as in his view she was referring to her perception in a way that she could not otherwise describe. His Honour referred to the evidence of Senior Constable Smith as to the collection of the photographs and Ms. Fernandez' observation when shown the photographs, "I'm sure that's him. The eyes are so piercing." 25 He directed the jury impeccably concerning the accused's refusing to participate in a line up. His Honour referred to the accused's evidence and again impeccably directed the jury that by the accused exercising the option to give evidence he did not take upon himself any burden, onus or obligation and reiterated the direction he had given at the start of the trial that the onus lay on the Crown from first to last to satisfy the jury beyond reasonable doubt on the evidence at the trial of his guilt. 26 It was in that context that he directed the jury "members of the jury, this trial turns upon a conflict between the evidence of Ms. Fernandez and Mr. Brown, on the one hand, and the accused, on the other hand". 27 It was in that context that his Honour also referred to the members of the jury being concerned to enquire who is to be believed and as to the prospect of their preferring the evidence of the Crown witnesses, directing them that in that event they must ask themselves the question as to whether the evidence that they accepted satisfied them beyond reasonable doubt of the guilt of the accused, since it was not open to them to find the accused to be guilty unless the evidence which they accepted satisfied them beyond reasonable doubt of that guilt. 28 Having directed the jury as to the substance of the evidence in the trial, his Honour then turned to the differences in the accounts given by Ms. Fernandez and Mr. Brown:- "You have got a description from two difference people of that person. There are some differences. The most glaring difference is Mrs. Fernandez saying that the assailant was wearing shorts and Mr. Brown saying the assailant was wearing jeans. Now that is a difference. One is wrong because they are both describing one person. They are not describing two different people, both are describing the one person that was involved in the one incident in which Mrs. Fernandez was robbed and Mr. Brown was assaulted. Another thing that is definite is that one person got into the maroon coloured four-wheel drive. He was associated with that maroon coloured four-wheel drive, of that there is not any doubt. How did he get between Mrs. Fernandez and Mr. Brown at the front door unless, when Mr. Brown was parking his car, the maroon coloured four-wheel drive had arrived and the man had gone up and stood near the door. There could not have been any other way, you might think, for the man who was the assailant to have got to where Mrs. Fernandez and Mr. Brown were going from the bank other than that he and the driver of the car followed them and that he got out of the maroon four-wheel drive and went up and waited at the door when they went round to park their car because when he ran away with the bag in his hand, he got into that four-wheel drive. Now, members of the jury, when you go to the jury room, do not lose sight of the fact that there is one incident, one person, one maroon four-wheel drive. Mr. Brown told you that he saw the four-wheel drive drive into the driveway, do a three-point turn and stop. Mrs. Fernandez did not see it. Does that mean it did not happen? Or does is simply mean that she did not see it? Why did not see it? (sic) Well, she might not have been looking in that direction. She might not have heard the sound of the car's engine. She might simply have failed to register its presence. Does that mean it was not there? Of course not. It was there because Mr. Brown told you about it being there. There was a man who got between Mrs. Fernandez and Mr. Brown. How did he get there? Mr. Brown said he did not run past him. He said that he did not come out of the door as Mrs. Fernandez was going in. Then, where was he? He must have been in the vicinity. Mrs. Fernandez told you that she noticed him. She looked into his face. He was beside her in the corner near the doorway. The fact that Mr. Brown did not see him standing there does not mean that he was not there. Mrs. Fernandez saw him standing there. Mr. Brown told you that he, the assailant, came between Mrs. Fernandez and him. Where did he come from if he did not come from where Mrs. Fernandez had seen him? Mr. Brown told you that he did not run past him. Mr. Brown told you he did not come out of the door as Mrs. Fernandez was opening it to go through it. There are differences in the evidence of Mr. Brown and Mrs. Fernandez about what happened. Mrs. Fernandez, and I have mentioned this already, said she saw the man standing at the entrance door near the corner. Mr. Brown did not see him standing there. Mr. Brown did not see him until he came between Mrs. Fernandez and him. Mrs. Fernandez said that she had her bag pulled from behind and she was pulled backward. Mr. Brown told you that the man who came between him and Mrs. Fernandez gave 'Mona a good shove' and Mona went through the doorway stumbling forward. Now they are different, there cannot be any doubt that they are different but both of them are describing one thing. They have different descriptions but they are both describing the one thing. They are both describing the man doing something to Mrs. Fernandez and her bag. Mrs. Fernandez says that she was pulled backward and she fell backwards onto the floor with her bottom on the floor and her back against the flower pot. Mr. Brown said that 'Mona went flying' downwards onto the flower pot and he describing how she went over it on her right hand side. Mrs. Fernandez said that the door was, as it were, open and held open by the door mechanism. Mr. Brown said the man held open the door. Mrs. Fernandez says there was a scuffle between Mr. Brown and the man and then the man ran along the driveway and she described to you how she believed that Mr. Brown was trying to get her handbag back from the man. Mr. Brown said he was punched in the face by the man and he stumbled backwards a couple of steps and down one step and you will remember I asked how many steps were there and he said, 'One step'. He said that the man stumbled as he went down the step and fell to the ground. He said he grabbed the man's shirt and the man pulled away and ran towards the maroon four-wheel drive. He gave chase to the man and, when he realised it was pointless or hopeless, he used his mobile telephone to ring triple 0. Mrs. Fernandez did not see the man get into the maroon four-wheel drive but saw a maroon four-wheel drive being driven away. Members of the jury, both of them are describing one thing. Both of them have different descriptions of that one thing. Does it mean that one is wrong? Does it mean that both are wrong? Or does it mean, members of the jury, that each of them saw in that one thing, in the 15 seconds or whatever it was for the thing to occur, different things in it? Members of the jury, the human memory is not like a computer or a tape recorder or a camera. The human memory is fallible. The human memory does not record everything perfectly in sequence for ready retrieval. A computer records everything that is put into it for ready, perfect retrieval. A tape recorder records on the magnetic tape everything spoken into the microphone for ready and perfect retrieval. A camera records in the picture everything within the focal length when the picture is taken. The human memory is not like any one of those things, it does not record perfectly or in order and it does not record necessarily everything that happens. Some things that are important or joyous or painful or momentous are recorded. The things that are everyday, mundane or trivial are not recorded. You may not be able to remember where you were on the Thursday before last Easter, but if last Easter Friday you were leaving Australia to go to America or England or getting ready for your wedding or the birth of your first child, then you would remember the Thursday before it. But if all you were doing was going to work or getting in the crowd of people that left Sydney to go on holidays, you might not remember it. That is because, members of the jury, you might remember the momentous, the joyous, the painful, something extraordinary but not the everyday, mundane or trivial. You might think Mrs. Fernandez and Mr. Brown were not concerned with something everyday, mundane or trivial, they were concerned with something that happened suddenly and unexpectedly, that happened in a relatively short time, that involved both of them, both of them being, as it were, assaulted in the sense that Mrs. Fernandez went over onto the ground when the straps on her handbag gave way and Mr. Brown was punched." 29 His Honour then gave to the jury directions as to how the identification question should be considered by them. In particular, he focused his directions on whether the evidence identifying the accused as the assailant might satisfy them of his guilt. He directed the jury that the evidence must be approached by them with special care and caution before it could be accepted as being reliable and that care and caution was necessary even though the jury might be satisfied that the witnesses who had given evidence of identification were entirely honest in saying what they did. 30 Those directions were reiterated and the jury were further directed that it was only in the event that the evidence had been accepted after having been considered with great care and caution, that the jurors would be entitled to act on it. 31 The trial judge drew to the jury's attention a number of matters which, in his view, meant that "identification evidence may, and I emphasis the word may, be unreliable". 32 In a series of numbered points, he drew the jury's attention to particular factors, which might have been considered as affecting reliability and discussed each of those factors. They were:- (1) Whether the witness giving the identification evidence had prior knowledge of the person to be identified. (2) In that case, how well did the witness know the person. (3) The length of time during which the witness had under observation the person. (4) Over what distance that observation was conducted. (5) The available lighting at the time of the observations. (6) The presence or absence of particular features which might have impressed the observer. (7) The state of mind of the witnesses at the time such as might have interfered with or assisted identification. (8) The delay between observation and the witness giving to the authorities a description. 33 His Honour then turned to the description that had been given by Mr. Brown. In that regard, he referred to the accused's age of 26 years and six months as at 20 April 2000, when referring to that element of the description given by Mr. Brown that the accused was "around 25". His Honour referred to the appearance of the accused in court and directed the jury that it was open for them to assess for themselves whether he appeared to be his chronological age. He referred to the description given by Ms. Fernandez and in discussing that description, referred to the evidence of Senior Constable Smith of the height, build and appearance, particularly the hairstyle, of the accused at the time of arrest. I do not consider, having regard to the fact of the accused's presence in court and that there was evidence of his appearance on arrest, that his Honour acted other than entirely appropriately. 34 Having referred to the fact that the descriptions by Mr. Brown and Ms. Fernandez were given on 20 April 2000 and 24 April 2000 respectively, one on the day of the incident, the other within four days after the incident, his Honour said:- "You might ask yourselves, members of the jury, how well or how badly does each witness' description compare with the person charged. Members of the jury, as I have said, you have seen the accused in court and in the witness box specifically. You know his date of birth, therefore you know his age at 20 April and now. You know his height, you can assess for yourselves his build, you can see his hair, you know that it was shorter on 26 July 2000 because he was photographed on that day and you can see his photograph. So members of the jury, they are some of the things that you might like to take into account. 35 His Honour then gave the jury another direction as to the care and caution with which they should approach the ascertainment of the reliability of the identification evidence. 36 During that process of directing the jury as I have set out, in discussion of that feature of the person whose description had been given by Ms. Fernandez and Mr. Brown to Senior Constable Smith, his Honour referred to Ms. Fernandez' comment that the assailant was Caucasian and Mr. Brown's comment that the accused had a Mediterranean appearance. He said as follows:- "… let me comment upon Caucasian and Mediterranean, and I have done this because I was not sure what either may mean and, of course, it does not matter what I think either may mean, but just to tell you, Caucasian relates to the area of the Caucuses (sic) and the Caucuses (sic) are a region between the Black and Caspian Seas that includes Russian, Georgia, Aserbaydzhan (sic) and Armenia. Caucasian in anthropological terms relates to a major human racial division traditionally distinguished by physical characteristics such as very light to brown skin pigmentation and straight to wavy or curly hair and including people indigenous to Europe, North Africa, Western Asia and India. Mediterranean refers to the Sea of 3,700 kilometres between the bottom part of Europe and the upper part of Africa and it relates to or characteristic of or located near the Mediterranean Sea and anthropologically it relates to a sub-group of the Caucasian race characterised by medium or short stature, slender build, dark complexion and relatively a long head. So, members of the jury, that is what Caucasian and Mediterranean mean. Neither is used now scientifically because they are so non specific. But it does not matter what the dictionary says they mean or what I think they mean or what you think they mean, Mr. Brown thought the accused has a Mediterranean appearance. Mrs. Fernandez thought that the accused does not have a Mediterranean appearance." 37 This discussion by his Honour was not supported by any particular evidence in the case concerning the meaning of the two terms. What was in question was what the relevant witness meant by referring to "Caucasian" or "Mediterranean". His Honour adequately directed the jury as to that in the closing words of that passage. Although it was submitted his Honour should not have embarked on this discussion, I do not see it did any harm. 38 His Honour also referred to other differences noted between the accounts given by Mr. Brown and Ms. Fernandez. He referred to both of them having given evidence the assailant was wearing a baseball cap with a peak where it should be in the front of the head, rather than at the back of the head and that Ms. Fernandez described the assailant's skin as fair. She would not describe the accused as having olive skin. She described him as wearing blue shorts, white sandshoes and white socks. Mr. Brown did not mention socks and sandshoes. 39 His Honour then directed the jury that it was open to them to accept the evidence of Ms. Fernandez' identification of the photograph of the assailant and to find the accused not guilty, notwithstanding whatever they might think of Mr. Brown's evidence. As to that evidence he said:- "Mr. Brown has been unable to positively identify anyone as being the assailant, there is no doubt about that. You have got the transcript of what occurred when he was shown the photographs, and you should read it. His evidence can only be used in support of the evidence of Ms. Fernandez. His evidence alone would be insufficient for you to be satisfied that the accused was the assailant, and that is because his evidence is not a positive identification of the accused as being the assailant." 40 The jury having left the courtroom, his Honour invited counsel to draw his attention to any matters of correction. 41 The appellant's legal representative referred to a factual matter concerning the actions of the assailant when he left the car and to another factual matter concerning the securing of the door on which fingerprints may have been left. She then sought a direction said to derive from the decision of this court in The Queen v. Barbaro (1993) 32 NSWLR 619 as to the particular dangers of photographic evidence. In the context of there having been no challenge to the evidence of Ms. Fernandez by cross-examination at the trial, his Honour declined to give that direction. 42 A direction was sought that the jury not assume the accused has a record because of the potential rogues gallery effect (see also Regina v. Alexander (1981) 145 CLR 395). The trial judge agreed to give it, and did give it. A further direction was sought in asserted reliance on s.116 of the Evidence Act. It was put that the trial judge was required to identify specific weaknesses in the evidence given, and that the jury's attention should be drawn to the absence of a contemporaneous account by Ms. Fernandez on 20 April, and that the trial judge had failed to draw the jury's attention to the absence of the reference to the piercing eyes in Ms. Fernandez' statement of 24 April: the trial judge agreed to do that, and did that, but the submission apparently was that these matters should have been characterised as "weaknesses". It was further asserted that his Honour had failed adequately to portray to the jury as weaknesses the differing accounts given by the witnesses as to the assailant wearing shorts or jeans, the fact that one witness said the assailant was fair and one said he was olive, and the fact that the police officer selected photographs similar to the accused rather than selecting those similar to the description given of the assailant and did not select photographs of people with piercing eyes. The argument put to his Honour proceeded on the basis that it was incumbent on his Honour to describe these matters to the jury as weaknesses in the identification. In sum, what was put was that in order for his Honour to comply with s.116 of the Evidence Act, it was incumbent on him to direct the jury concerning the absence from the evidence of matters said to be important or possible inconsistencies between witnesses on such matters and to describe those matters as "weaknesses in identification". Section 116 contains no such express requirement. Section 116 reads as follows:- "1. If identification evidence has been admitted, the judge is to inform the jury:- (a) that there is a special need for caution before accepting identification evidence; and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. 2. It is not necessary that a particular form of words be used in so informing the jury." 43 However, in Domican v. The Queen (1992) 173 CLR 555, the High Court in reference to the warning required under the common law held at 561-562:- "The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence." 44 Assuming, but not deciding, that the requirements of s.116 correspond entirely with those of Domican (supra), that decision does not require the judge to lend the judicial office to a characterisation of matters of evidence as showing weaknesses in fact. For a judge to do would be to intrude into the realm of the jury. It requires the jury to be instructed on matters of significance which the jury might consider might undermine reliability as the closing sentence of the passage cited makes clear. (See also Festa (supra), Gleeson, CJ. at 26, McHugh, J. at 80, Kirby, J. at 173 and 176 and Hayne, J. at 217-219.) 45 His Honour had the jury brought back into court and then gave the directions appearing below:- "Members of the jury, I am to continue where I was. There are a few more things I wish to say to you about identification evidence and to remind you to assess the evidence of identification with great care and caution. You know that there is not any recording by anyone of Mrs. Fernandez' description of her assailant on the day of the incident, that is 20 April 2000, and you know that her first, or the first recording of her description of her assailant came four days after the incident on 24 April 2000. You know that there is not any recording in her statement made 24 April 2000 of any feature of her assailant's eyes. You know the only recording of what she has said about any feature concerning her assailant's eyes is the recording made on 10 July 2000. And as to that, members of the jury, I omitted to refer in my reference to the witnesses to Inspector O'Connor, and he was the inspector who conducted the examination by Mrs. Fernandez of the 10 photographs on 10 July 2000. Whereas I said earlier there are five witnesses, there were in fact six witnesses, because I omitted to refer to Inspector O'Connor. In relation to what occurred on 10 July 2000, you have the transcript of the conversation. Inspector O'Connor said to you that he asked the pro forma questions and recorded the answers and you have the transcript of that conversation. Members of the jury, you know that there was a delay between the incident on 20 April 2000 and firstly, Mr. Brown's examination of the photographs on 2 June, so six weeks have passed between the incident and his examination of the photographs, and you know that there was a delay between the incident on 20 April, and Mrs. Fernandez' examination of the photographs on 10 July, almost three months after the incident. Members of the jury, what I have just said is relevant to the question of identification, and it's a further consideration for you when you assess identification. You may have wondered why I have, as it were, highlighted the need for care and caution, indeed, great care and caution in relation to the evidence of identification. The reason is that the courts have become aware over a long period of time that people make mistakes about identification. I have told you that I expect that each of you realises how easy it is to make mistakes. So the courts have become aware in cases where mistakes have occurred in identification, and therefore it is necessary for a presiding judge in a criminal trial to draw to the jury's attention, the fact that mistakes in identification happen, and therefore the need for the jury to use great care and caution when considering the evidence of identification." 46 His Honour concluded his summing up by referring to the accused's case which was a denial of any involvement, and again put a direction to the jury on the necessity for them to be satisfied beyond reasonable doubt. 47 In the written submission filed on the appeal, it was contended that the trial judge had erred in failing to direct the jury expressly that the matters to which he did refer, although relevant to their assessment of identification, were matters which may cause the evidence to be unreliable. This submission is made notwithstanding the many, many times his Honour had told the jury of the necessity that they should subject the evidence to scrutiny with great care and caution before accepting it and that in that regard his Honour was plainly referring to those matters as relevant to the assessment of the reliability of the identification or resemblance evidence. It was also submitted that the trial judge had failed to draw to the jury's attention other matters which might have tended to undermine the reliability and strength of the identification evidence. Those matters included the absence of the appellant's fingerprints at the site and the possible wearing of sunglasses by the offender. 48 In the oral argument, senior counsel for the appellant proposed a direction which he said should have been given in respect of the evidence of Mr. Brown. That direction is as follows:- "BYRNE: The evidence of Mr. Brown is that the photograph depicting the accused was possibly a photograph of the person who committed the offence. Mr. Brown also says that a photograph of some other person was possibly a photograph of the person who committed the offence. Mr. Brown's evidence in relation to his selection of the photograph of the accused may provide some support for the identification evidence given by Miss Fernandez but Mr. Brown's evidence regarding his selection of the other person as being the possible offender is of course evidence which suggests the accused is not guilty." 49 It was contended that the absence of a direction concerning the selection of the other photograph as exculpatory was an important lapse. As I have said, no such direction was sought at trial. The effect of selection of the two photographs was not to make inconsistent identification but to refer to a common similarity between a feature of the offender and of the two photographs. That is how the effect of the evidence appeared to be perceived to be at trial. Mr. Brown's evidence was not left to the jury as identifying the accused as the offender. I would apply Rule 4 to reject the submission. 50 Although reliance was placed on the requirements of s.116 and s.165(1)(b) (which deals with identification evidence) and s.165(1)(c), (evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like), it was conceded in oral argument by Senior Counsel for the appellant that although those matters which might affect the reliability of the identification evidence should be drawn to the attention of the jury to comply with the requirements of those provisions, s.116(2) and s.165(4) have the effect that it is not necessary for those matters to be referred to as "weaknesses" since it is not necessary that they be referred to by any particular form of words. Section 165 applies if there is a relevant request. I have already referred to the extent of the directions requested to which s.165(2) might apply and to his Honour's directions which are in my view in compliance with s.165(2) and s.116. 51 However, in addition to the matters to which the accused's legal representative at the trial referred, and to the direction about Mr. Brown which it was said should have been given, in the oral argument our attention was drawn to two other matters. One was an inconsistency between the accounts of Ms. Fernandez and Mr. Brown that had not received specific mention in the summing up or in the submissions put to the trial judge by trial counsel. Mr. Brown said the person who committed the offence was wearing sunglasses. Ms. Fernandez said that she should never forget the piercing eyes of the person who attacked her. It was accepted that the two items of evidence were not logically and necessarily inconsistent, particularly having regard to evidence that, at the time, the assailant was wearing a hat. Mr. Brown had explained in evidence his reference to sunglasses:- "Q. I notice you refer to sunglasses when you made your statement – sorry, on 2 June 2000 and there is no reference to sunglasses in your description given on the day. A. No. Q. What are you able to say about that? A. I seem to recall sunglasses somewhere, whether they were Mona's (Ms. Fernandez) or mine or someone else's. Whether they were on the hat or whatever. I didn't mention it in the first one – it's hard to say, it all happened so quick. I don't think there was a pair but I just made mention of it in the discussion about basically what the man was wearing at the time. Q. And that was on 2 June? A. That's right, yeah." 52 Ms. Fernandez had made reference in her evidence to her having had her own sunglasses with her at the time of the robbery. It is notable that Mr. Brown's reference to the sunglasses was at a time when he was examining the photographs which did not depict any person wearing sunglasses. I do not see this matter, having regard to s.165(2) and Mr. Brown's explanations, as founding any valid criticism of the evidence, directions or verdict. 53 The other matter to which senior counsel for the appellant on the appeal referred, but to which no reference was made at trial, concerned the period which Mr. Brown and Ms. Fernandez had to observe the assailant. Mr. Brown said in chief that the incident lasted "only a second or two". In cross-examination he said it took between five and 10 seconds. In his summing up the trial judge said it took 15 seconds. IN view of the difficulty in making precise assessments of the passing of time, nothing the trial judge said or failed to say about the brevity of the observation period could possibly create any risk of a miscarriage of justice. 54 It was submitted by the Crown that the directions as given at trial were entirely adequate and sufficient. It was submitted that the trial judge in respect of the matters to which he referred had warned the jury that the evidence may be unreliable, informed the jury of matters that may cause it to be unreliable and warned the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it, thus complying with s. 116 and s.165(2). It was pointed out that both sections expressly provide that no particular form of words need be used. 55 Having regard to the issues arising in this case, and in particular having regard to the direction given as to the limited utility of the evidence of Mr. Brown, I am of the view that the summing up was entirely adequate to meet the requirements of s.116 and s.165, as those requirements are to be regarded as informed by the views of the High Court expressed prior to the passing of the Evidence Act in Domican (supra) (see also Festa (supra)). The necessary content of the relevant warning is identified in Domican (supra) at 562 in the judgment of the majority: "it must be appropriate to the circumstances of the case … the judge should (in a direction which has the authority of the judge's office behind it) 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". In my view these directions did just that. 56 I am confirmed in my view by the discussion on the application of those requirements in The Queen v. Cook (supra). In my view those requirements here were adequately met. In the judgment of Dunford, J., with whom the other members of the court agreed, it is held that it is not necessary in the identification directions for the judge to lend his judicial authority to every argument available to defence counsel on the evidence. Nor is it necessary for the judge to draw attention to every disparity in observed physical features in the assailant as noted by different witnesses. That case dealt with a material discrepancy concerning the nature of the assailant's hair. The trial judge did not specifically direct the jury's attention to the different descriptions of the hair. No application for relevant further directions was sought. The evidence of one of the witnesses amounted only to resemblance evidence as referred to in Pitkin (supra). It was held that any deficiency could no doubt have been corrected by the trial judge if he had been asked to do so. Those remarks are appropriate here. 57 The one major factual deficiency referred to here concerns the question of sunglasses. It was not referred to the trial judge below by any particular request. The evidence concerning that matter is not such as to be necessarily contradictory. It did not appear to have been regarded as significant at trial by trial counsel who was assiduous to put every other argument perceived by her to be an advantage to her client to the trial judge to seek appropriate redirections. 58 I am unable to conclude that there is any such deficiency as would merit any criticism such as is made here of the summing up. 59 The submissions made concerning the context of the Crown Prosecutor's cross-examination and the suggestion that the jury could better have been directed concerning the absence of the accused's fingerprints in the context of the door not having been secured, in my view do not suggest such significance as would enable any criticism of the directions concerning identification to have such force as to support the ground of appeal. Ground three 60 In substance, as argued, this ground contends that, because one witness asserting a definite identification was only supported on the crucial question by evidence of resemblance submitted to be ambiguous where the witness, 77 days after her observation identified her assailant from a photograph, the evidence was not such as might reasonably be considered as sufficient to support the verdict. There is no doubt that there was an unusually long delay. There was, however, a description consistent with the appearance of the accused afforded to the police within four days after the event. The identification was, it is true, a most definite one. It is not necessarily bad for that. It was submitted that the identification was similar to that of a witness who had been described as being "mistaken at the top of her voice". That submission depends upon an assertion of unreliability. 61 The credibility of the witness and the reliability of the witness' account were matters which were squarely before the jury and matters upon which, in my view, the jury was entirely properly directed. The assessment of whether or not reliance could be placed upon that witness' identification of the appellant and, in particular, her identification of the appellant has having piercing eyes, was very much a matter for the jury, particularly having regard to the fact that they could see the appellant in court. 62 In my view there is no substance in this ground of appeal either. 63 I am of the view that the appeal should be dismissed and for the reasons that I have earlier given that leave to appeal against sentence should be refused. 64 KIRBY, J: I agree with Greg James, J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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