New South Wales Court of Criminal Appeal CITATION : Regina v Demiroz [2003] NSWCCA 146 revised - 02/09/2008 HEARING DATE(S) : 26 May 2003 JUDGMENT DATE : 26 May 2003 JUDGMENT OF : Sheller JA at 68 & 70; Hidden J at 69; Carruthers AJ at 1 DECISION : Appeal allowed, convictions quashed, new trial ordered on all counts. CATCHWORDS : Criminal law - evidence - identification of accused in issue - whether judge erred in not giving directions and warning on identification evidence - mandatory requirements of s 116 of the Evidence Act considered Crimes Act 1900, ss112(2); 154A(1)(b) LEGISLATION CITED : Criminal Appeal Act 1912 s6(1) Evidence Act, ss 128; 165(1)(b); 165(2) Domican v The Queen (1992) 173 CLR 555 CASES CITED : Mraz v The Queen (1955) 93 CLR 493 R v Bruno (CCA, unreported, 19/6/97) R v Clarke (1997) 97 A Crim R 414 PARTIES : Regina v Muammer (aka Paul) Demiroz FILE NUMBER(S) : CCA 60406/02 COUNSEL : Appellant - A. Francis Crown - M. Grogan SOLICITORS : Appellant - Heenan & Company Crown - S.E. O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/0306 FILE NUMBER(S) : LOWER COURT His Honour Judge Viney QC JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60406/02 SHELLER AJ HIDDEN J CARRUTHERS AJ Monday, 26 May 2003 REGINA v Muammer (aka Paul) DEMIROZ Judgment 1 CARRUTHERS AJ: Muammer Demiroz (also known as Paul Demiroz and to whom I shall refer as the appellant) appeals against his convictions at the Penrith District Court on 7 June 2002 upon two counts of aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act 1900 (hereinafter the Act) and one count of drive vehicle taken without consent of owner under s 154A(1)(b) of the Act. 2 On 3 June 2002 the appellant was arraigned at the Penrith District Court before his Honour Judge Viney QC and a jury of twelve upon an indictment containing three counts in the following terms: "1) That he on or about 10 May 2001 at Lidcombe in the State of New South Wales in circumstances of aggravation, namely that he knew that persons were present in the dwelling house at the time, did break and enter the dwelling house of Joseph Lee situated at 34 Dudley Street and while in the said dwelling did steal certain property, namely a black handbag containing credit cards, cheque books and other personal items; a set of keys and a 68 centimetre Sony television, the property of Joseph and Cam Lee. 2) That he on 10 May 2001 at Lidcombe in the State of New South Wales in circumstances of aggravation, namely, that he knew that a person was present in the dwelling house at the time did break and enter the dwelling house of Joseph Villegas situated at 294 Vaughan Street and while in the said dwelling did steal certain property, namely a Tanada brand acoustic guitar, a Sony DVD player, a Hanimex tripod; a Canon video recorder and a polaroid Joy Cam in a carry case the property of Joseph Villegas. 3) That he on or about 10 May 2001 at Lidcombe in the State of New South Wales did drive a conveyance, namely a Toyota Tarago registration number AEI 85S knowing that the said conveyance had been taken without the consent of the owner." 3 On 7 June 2002 his Honour sentenced the appellant as follows: In respect of each of counts 1 and 2 the appellant was sentenced to a term of imprisonment for eight years to commence on 8 March 2002 and to expire on 7 March 2010. A non-parole period of five years was specified to expire on 7 March 2007. In respect of count 3 the appellant was sentenced to a term of imprisonment for a fixed term of three years to commence on 8 March 2002 and to expire on 7 March 2005. Thus, all sentences were to be served concurrently. 4 There are two grounds of appeal: 1. The trial miscarried by reason of the learned trial judge failing to direct the jury in relation to the dangers of identification evidence as required by s 116 of the Evidence Act 1995. 2. The trial miscarried by reason of the learned judge failing to direct the jury in accordance with s 165 of the Evidence Act 1995. 5 The prosecution case may briefly be stated as follows. At the time of the alleged offences the appellant was living by himself at 2 Queen Street, Auburn. The prosecution alleged that on 10 May 2001 the appellant drove a Tarago van, stolen between 4 pm and 5 pm the previous day, to Dudley Street, Lidcombe, where, between 10 pm and 6 am, he broke into the premises at 34 Dudley Street and placed the stolen goods in the van, which he had earlier parked in Dudley Street. (Counts 1 and 3.) 6 In respect of count 2, it was alleged that the appellant broke into the premises at 94 Vaughan Street at about 5 am by cutting the fly screen around a door allowing the latch to be opened, whereupon he stole a number of items, which he then placed in the Tarago van still parked in Dudley Street. All items were recovered in the stolen van after the appellant's arrest. 7 The Crown case in relation to both counts 1 and 3 was a circumstantial one, relying in large part upon the evidence in respect of count 2. 8 Indeed, the trial was conducted upon the agreed basis that, in the circumstances of this case, a finding of guilt in respect of count 2 would necessarily result in a finding of guilt in respect of counts 1 and 3. 9 The principal Crown witnesses were Errol Singh, AZ, and his father, BZ. 10 It is relevant to note that the appellant is a tall, well-built man with a moustache. Dudley Street has been described in evidence as a busy, main road carrying a lot of traffic. 11 AZ gave evidence that in May 2001 he was living with his parents and siblings at XX Vaughan Street, Lidcombe. He gave evidence that in the early hours of 10 May he was asleep in his bedroom when he was awakened by the noise of his dog barking. He said he looked out of his window. His evidence continued: "Q. What did you see? A. I saw a man with a big build walking past our place looking at our property. He had a camera and a tripod in his hand. Q. Now you said the man was a big build, did you see what clothes he was wearing? A. Yes, he was wearing dark black clothes. Q. Now you said he was looking at your property, can you describe what you actually saw him doing? A. Well basically he was sort of like in a hurry, had the camera, had a camera and the tripod on his hand and he was looking around continuously like at our window and around our property, I guess to see if anyone was seeing him or something and --- Q. Don't see what you think the man was thinking. A. Okay. Q. Just describe what you can see? A. Sorry. Basically I saw him looking at our property continuously and he was walking towards Dudley Street." Dudley Street runs at right angles to Vaughan Street. Vaughan Street runs east/west. Dudley Street, therefore, runs north/south. 12 The witness lost sight of the man. However, he spoke to his father who was already awake, and whose bedroom also faced Vaughan Street. They both looked out the window and AZ said: "... after a couple of minutes later we saw the same man walk back." 13 He was walking from the Dudley Street corner towards Oxford Street which also runs at right angles to Vaughan Street. Thus, it also runs north/south. Apparently the AZ residence is located in Vaughan Street between the intersections of Dudley Street and Oxford Street. AZ's evidence continued: "Q. When you saw him walk past the front of the house, again how much of the man were you able to see, could you see head and shoulders, could you see the whole body? A. I can see the whole body. Q. At that stage could you see if he was carrying anything? A. Yes, he didn't have anything at that stage. Q. How quickly was he moving when you saw him walking back? A. It wasn't that quick, it was just like a stead (sic) pace, he was just walking but he looked suspicious. Q. Once you saw the man go past did you lose sight of him? A. When he walked past I lost sight of him, but then I went into my Mum's room, my Mum's bedroom and from there I could see him, basically -- Q. Where did you see him? A. He was basically in my neighbour's property along the driveway and walking towards the back. Q. And the neighbour whose property you say you saw him walking down, what number in the street is that? A. Probably number 94. Q. That was number 94 that he was walking down, and do you know who lived in umber 94? A. Yes, my neighbour and Joseph on the bottom level. Q. Now you say you saw the man, you say, on the driveway walking towards the back of the house, is that where you saw him? A. Yes, I saw the man walk through the gate along the house property towards the back. Q. As he got to the back of number 94 were you able to see where he went? A. No, basically once he went over the boundary he just turned in so I can't see nothing after that. Q. When you say he turned in did he go further towards the rear of the 94 yard? A. Well basically he was in the rear of the property and just turned left towards the door. Q. After you'd seen the man go down the side in number 94, did you do anything after that? A. Talked to my Dad. Q. Where were you when you talked to your Dad? A. Went back to his room. Q. So that was facing Vaughan Street? A. Vaughan Street. Q. After you'd spoken to your father did you see anything else? A. After that we looked outside the window again and we seen the same man walking past with a guitar, a black guitar bag in his hand. Q. And what sort of pace was the man walking at then? A. He was like average, like slightly fast but not too fast, but he was walking. Q. Did you notice anything else about the man, the way he was looking or where he was looking? A. Well basically again he was looking at our property again. Q. At that stage was your dog doing anything? A. Yes, the dog was continuously barking the whole time. Q. Where was the man when you first saw him with the guitar? A. Basically I seen him come out of the neighbour's property. Q. And when he came out of the neighbour's property which direction did he go in? A. He was going towards Dudley Street. Q. And did you lose sight of him – were you able to see him as he walked -- A. Towards Dudley Street?" 14 AZ then gave evidence that he went outside his family residence and waited for his father to come out. They both then ran up the street towards the Dudley Street intersection. 15 His evidence then continued: "Q. And did you see the man when you were running with your Dad? A. Yes. Q. Where did you see him? A. Basically he went into his van. Q. What does the van look like? A. What does the van look like? A. It was a blue Tarago van. Q. And once you saw the man get into the blue Tarago van what did you do then? A. We ran after him, the window was slightly open and basically we were screaming at him to come out of the car. Q. Once you'd yelled at him to come out of the car was it just you yelling that? A. I was yelling most but my Dad was yelling as well. Q. From the time you wee yelling at the man in the van did anything else happen? A. Well basically we got into a – basically, he didn't want to come out of the car, he was leaning onto the other side, as if he wanted to, I guess, run away from the other side. And at that time someone else came up as well, and basically we're trying to get him out of the car, we got into a scuffle and tried to throw like a punch through the window and tried to block it, we got into a scuffle, eventually he came out of the car, and at that time we were screaming, yelling, just in self-defence, basically." 16 After some discussion his Honour granted AZ the benefit of a certificate under s 128 of the Evidence Act which granted him privilege in respect of self incrimination in other proceedings. AZ then gave evidence that he and his father dragged the man out of the driver's cabin of the van and subdued him on the ground outside the van, that is to say, on the roadway. 17 Other residents in the district came out to the scene and shortly thereafter the police and an ambulance arrived. 18 AZ was asked in chief: "Q. When you first saw the man inside the van are you able to describe what clothing or anything else he was wearing?" He responded: "He was wearing big black clothes, like they were black. I remember outside he had a glove, he had gloves on his hands." They were described as "like thick working gloves". 19 AZ was further asked in chief: "Q. When you first saw the man walking down Dudley Street – sorry, down Vaughan Street, how clearly were you able to see him? A. I mean it's pretty clear because my bedroom is not that far away from the fence so it's maybe like four or five metres away from the fence and it's fairly clear because it's bright, it's like the day time. Q. How close was the man to the fence-line? A. Maybe like forty – thirty/forty/fifty centimetres away from the front fence, just along the footpath. Q. Your bedroom window is that – if you're standing in your bedroom would you be street level or would you be higher than the street? A. I'm higher than the street. Q. Is there any front fence or anything that blocked your view of the man when he was walking along Vaughan Street? A. No there isn't, our fence is only a low fence, our front fence, maybe a maximum of one metre high and it's just a metal fence like nothing in the way of my view." 20 And further he said in evidence: "Q. At that stage were you able to see – or what of the man's face were you able to see as he walked past? A. Basically I could see his face because it was looking at our windows, so at that time I remember he had a moustache and like – and then I could see his side face that was all, like when he was walking, so I could see his face." Q. When you say the man walked back from Dudley Street across the front of your property, what of his face were you able to see at that stage? A. Basically like along the side of his face again and like I said every now and then he was looking at our property, at our windows and that, so I could see like the front of his face and the side of his face. Q. When you went round to your mother's window that you said looks across to number 94 that's on the side of the house, what were you able to see of the man's face then? A. Basically I could see the side of his face and as he was walking up towards the back of the property just basically the back of him, like the back of his head. Q. Looking from your mother's bedroom window across to number 94 is there any fence in between the two properties? A. There is a fence but it's not that high but you can see, like it's not that high, it's (sic) doesn't obstruct anything like – like you can, if anyone wants to walk through that property you can see him. Q. Is your mother's bedroom floor height higher than the ground level there? A. Yes. Q. When the man – you next saw him on Vaughan Street with the guitar, what of his face were you able to see then? A. Sorry, what? Q. When you saw the man again with the guitar? A. Yes. Q. Were you able to see his face then? A. Yes. Q. How much of his face did you see at that stage? A. Basically the same as before, like I could see his side of his face and as I said he was always looking at our property and I could see his face from the front. Q. When you went out onto Vaughan Street you've said that you could see the man with the guitar and he was around about number 98? A. That's right. Q. From the moment you saw him at the front of 98 until the man was inside the Tarago van, did you lose sight of him? A. No." 21 I interpolate here that evidence was given that the appellant was severely injured when he was overpowered by AZ and others (upon the mistaken belief, the appellant claimed, that he was the thief). Indeed, the appellant was required to spend six days in Westmead Hospital as a result of the injuries inflicted upon him. In cross-examination of AZ most of the questions were directed to the overpowering (to use a neutral term) of the appellant. 22 BZ gave evidence that he was awoken in the early hours of 10 May by the barking of the dog. He looked out the window of his bedroom. He said he saw someone walking in front of his house away from Dudley Street. He lost sight of him but some time after, he said, "I saw the same person taking something with three legs." The interpreter added after that "like a tripod". At that stage, according to BZ, he was walking towards Dudley Street. His evidence in chief continued: "Q. Did you see anything of the man's face as he was walking past then? A. His face was not covered. Q. Were you able to see a side view, a front view or a back view of his head? What did you see? A. Side of his – left side of his head. Q. The – if I can ask you about the lighting in front of your house that morning, what was the lighting like? A. Very big lighting, large. Q. What was the light source? A. The council lights." 23 The witness said his son then came into the room and they both looked out the window and saw "that person outside was coming back". 24 BZ then saw the man walking from Dudley Street and he was not carrying anything. 25 BZ's evidence continued: "Q. And what's the next thing that you saw or did?" 26 He then said he went out into the street with his son and they went towards Dudley Street. As they approached Dudley Street he saw a Kombi van under a tree about four houses away from the corner. He said "I saw the person who was carrying the guitar at the steering wheel of that vehicle". 27 BZ then went up to the vehicle and grabbed the man by the right shoulder. The man resisted. The man was wearing a very large glove and he was trying to start the car. "Somehow the door opened and I pulled him out". He then gave evidence of how the man was overpowered on the roadway. 28 During the course of his evidence in chief BZ gave the following evidence: "Q. At this stage I'd like to ask you about when you first saw the man walk past your bedroom window, how much of his face were you able to see at that time? A. From – well this side, all of this side, right side because of the lights. Q. Once the man – you said the next thing you saw him walking back with the thing with the three legs, how much of his face could you see? A. *All(?)* He was holding it in his left hand and he was just walking, looking, on the footpath, walking. Q. But how much of his face were you able to see? A. Well I wasn't looking just to see his face. Q. When you saw the man walk back from the direction of Dudley Street after you'd seen him with the three-legged thing, were you able to see his face then? A. Yes, I saw his face. Q. How much of his face did you see then? A. From this to this side. From here, up to this side. Q. Are you suggesting only a profile view? A. Just because he was walking, sort of looking like this and he had his hand in his pocket and he was walking, sort of walking this way and I saw. Q. Are you saying it's just a profile view of the man that you only see the side of his face? A. Yes. Q. When you saw the man walk back going towards Dudley Street carrying the guitar, how much of his face did you see at that stage? A. Well when he was walking back to other side, I saw the side of his face that I did not see when he was walking the other way. Q. Did you notice what the man was wearing on that morning? A. I wasn't aware of it." 29 Again BZ's cross-examination was mainly directed to the injuries inflicted upon the appellant during the course of the overpowering process. 30 Mr Errol Singh gave evidence that on the morning of 10 May 2001 he was living at Unit 4, 33 Dudley Street, Lidcombe. The front of the townhouse in which he lived, however, faced Vaughan Street. 31 It was necessary for Mr Singh to commence work early and about 5 am he was out the front of his home putting on his work boots and warming up the engine of his car. He was facing Vaughan Street. His evidence continued: "Q. While you were there did you hear or see something? A. Yeah I heard noises from across the road – double storey house and the dog was barking, it had been barking for a little while and that was pretty unusual for that time in the morning so I was just watching out, putting my shoes on and then I heard a noise coming through the side there and didn't take much notice 'cause the guy that lives there usually comes back home late sometimes, I think he was a security guard or something so – but I never saw his car or anything there. So I was just watching and then saw a gentleman walk out, come out of there with a guitar suitcase and that was strange, so -- Q. Now from what you saw of the man who had the guitar in the case, what did he look like? A. A big guy, dark hair, he had a moustache. Q. Did he look like the guy who lived in that house to your knowledge? A. No no." 32 Mr Singh said that the man was walking in the direction of Dudley Street. 33 Mr Singh's evidence continued: "Q. Once you'd seen the man walk out with the guitar, did you see anything after that? A. Well I was just watching his – he started to walk out pretty fast and at that time, neighbours' house, the double storey house. The lights went on and they came running out, yelling out 'Thief' and then by that time, the gentleman started running. They started chasing him and I just put me shoes on and took off after as well. Q. You say the neighbours came out and started yelling 'Thief'. Did you recognize the people that came out and started yelling? A. Yes. Q. Who was that? A. Well I didn't know their names at that time. I know their names now. It's AZ and his family, his father and that. They came out. Q. whereabouts was the man when you saw AZ and his father and that come out? A. With his – he walked across past their house and was just, at that time everything just happened, he walked and they came running out and sort of started chasing them and then I knew there was something wrong, so I put me shoes on and took off as well. Q. So at the time when you saw them come out and start chasing, how far had the man gone with the guitar? A. He was – they came out and he was virtually at the corner there, just starting to turn the corner. Q. At that stage, to put your shoes on, did you lost sight of what was happening? A. Yes I did, yeah." 34 Mr Singh said that he ran out to the corner and he was asked whether he could see where AZ was or the man with the guitar. His evidence continued: "Q. Whereabouts were they? A. They were up the top of the street, up the top of the street, probably about 20 metres up, something like that and they were sort of struggling. There was a few other people there as well and they were just like having a – just trying to grab him or, you know, put him to the ground or something like that. Just wrestling with him. Q. When you saw them with the man on the street, did you see if there were any vehicles near where they were? A. There were vehicles there. I don't – because it just happened so quick. There was cars – because we live on a main road, so the cars were going by, so yeah." 35 Mr Singh said that he walked about twenty metres along Dudley Street and saw a group of persons who had "the guy ... on the middle of the road on the floor". It is clear from the context that Mr Singh was using the word "floor" to refer to the roadway. 36 He was asked whether he saw "how the guy went down to the floor", and he replied, "No, not really". 37 I cannot discern from Mr Singh's evidence that at any stage he actually saw a person being dragged out of the van. 38 During the course of his evidence in chief Mr Singh said: "Q. You said that the man that was on the ground was the same man that you'd seen carrying the guitar? A. Yeah, definitely. Q. How confident are you of that? A. Definitely. Q. Why do you say that? A. Because I saw his face. I saw him, saw his face because he came out – I didn't see – I couldn't see his face as he was coming out of the house, but once he got onto the footpath where the light was, saw him. Definitely it was him. He was a big guy and – yeah." 39 Finally, in relation to the Crown case, it should be noted that there was no fingerprint evidence linking the appellant to the van or the stolen property. The expert evidence was to the effect that no fingerprints were located on the stolen goods or the Tarago, but that smudge marks were found, consistent with a trace left by a glove. A yellow glove, which the appellant admitted he wore, was found near the van. 40 The appellant gave evidence that he left home between 4 and 4.30 am on the morning of 10 May 2001 as he wished to go for a walk, to take his dog for a walk and to pick up some cigarettes, and milk from a local newsagency. 41 He was walking towards Lidcombe along Vaughan Street and came to the intersection of Vaughan and Dudley Streets. He was walking on the footpath. He stopped on the corner and patted his dog who was a puppy. He said that he hard some noises, people talking, and he turned around and noticed there were two people talking beside a van. They were yelling and talking loudly. He noted the younger one had a bat in his hand. He then said that these two men attacked him and that he was struck by the bat. He then gave evidence of being assaulted at some length, the police arriving and being taken by ambulance to Westmead Hospital. He said that he was wearing gloves on the morning because it was cold and recognised the glove, to which I have already referred, as one of the gloves which he was wearing. He said that he has not seen his dog since. 42 For present purposes I do not think it is necessary to refer to any of the other evidence that was led in the case. No admissions were made by the appellant to police officers. The addresses by counsel were apparently not recorded. 43 I respectfully agree with counsel for the appellant before this Court that whilst the Crown relied upon other circumstantial evidence, the principal issue in the trial was whether it was the appellant who was the man observed by the relevant witnesses in Vaughan Street carrying stolen objects. 44 Indeed, his Honour said very shortly after he commenced summing-up: "The crucial question in regard to each charge is 'Was it the accused?'. The Crown has to prove it was the accused and prove that beyond any reasonable doubt." 45 His Honour gave the jury a standard direction on circumstantial evidence. His Honour summarised the evidence and the submissions of counsel for the Crown and counsel for the appellant. No re-directions were sought by either counsel. 46 As is clear from the grounds of appeal which I have set out above, the focus of the appellant's case before this Court is the fact that his Honour gave no directions or warnings to the jury as to the dangers of identification evidence. I emphasise that counsel at the trial for the appellant sought no such direction. Nevertheless, it is necessary for this Court to determine firstly whether such a direction should have been given and, if so, what are the consequences of his Honour's omission to give such a direction. 47 In the seminal identification case Domican v The Queen (1992) 173 CLR 555, the High Court stressed that the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to directions which judges must give in criminal trials where identification is a significant issue. 48 In a joint judgment (Mason CJ, Deane, Dawson, Toohey, Gaudron & McHugh JJ) the Court said at 561-2: "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 articular 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." (Citations are not quoted.) 49 It is, with respect to the arguments on behalf of the Crown to the contrary, my firm view that the instant case is one where evidence as to identification of the appellant represented a significant part of the proof of guilt of the offence. It is abundantly clear from the aspects of the evidence to which I have referred that the common law principles relating to identification evidence were relevant. 50 When enacting the Evidence Act 1995, the legislature was alive to the importance of identification evidence and the corresponding dangers to which it can give rise, when it enacted s 116 of that Act. This section is in the following terms: "116(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 the 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." 51 This provision is couched in stronger terms than the common law as expounded in Domican. It applies immediately identification evidence has been admitted. I do not accept a submission that was put before this Court on behalf of the Crown, that the statutory phrase "if identification evidence has been admitted" is intended to be confined to the case where there has been a contest as to whether evidence is admissible as identification evidence and subsequently admitted (over objection) as identification evidence. It is, in my view, relevant to every situation where evidence of identification is led before the jury. 52 It is obvious from the terminology of s 116 that the judge has no discretion as to whether he or she should caution the jury in relation to identification evidence, once identification has been admitted. The caution is mandatory. 53 Of course, decisions which have been given on the common law are of assistance in determining the content of the directions to be given in accordance with the statute: see R v Clarke (1997) 97 A Crim R 414. 54 Nevertheless, by reason of the application of s 166, the legislature further acknowledged the dangers of identification evidence by enacting s 165(1)(b) of the Evidence Act which categorises identification "evidence as evidence of a kind that may be unreliable". Strictly s 165(1)(b) does not apply to the instant case because there was no request by either party to warn the jury that the identification evidence may be unreliable. 55 It was necessary for the judge in the instant case to explain to the jury: 1. Why there is a special need for caution – why identification evidence in general may be unreliable, thus explaining why there was a special need for caution: see Clarke at 428; and 2. Why the specific identification evidence before them may be unreliable, by pointing out particular matters which may cause it to be unreliable. 56 It was inherent in the instant case that the identification evidence was of crucial importance to the Crown, because it was argued on behalf of the appellant, that AZ and BZ falsely sought to identify the appellant as the thief because they were concerned for the consequence of their having been involved in a serious assault upon the appellant. Insofar as Mr Singh's evidence was concerned it was argued by the appellant that it was a case of mistaken identification. 57 It is interesting to note that no attempt was made by the Crown to obtain "in court" identification of the appellant by these three important Crown witnesses. 58 It was argued on behalf of the Crown before this Court that it was not suggested that the witnesses had made a mistake. In effect, it was argued, the witnesses were not purporting to identify the appellant in the usual sense. The Crown case was that the person who was in the vehicle was necessarily the same person who had been seen shortly before by the witnesses. If the appellant was the man in the van then the evidence was overwhelmingly the case, it was argued, that the appellant was the thief. 59 In short, the identification of the appellant as the man in the Tarago was based upon the assertion that the person removed from the van was the same person who was restrained and handed over to the police. It was argued that this issue did not depend upon identification evidence. 60 However, as was pointed out in argument, it must not be overlooked that AZ and BZ were the only two witnesses who deposed that the appellant was the person whom they removed from the driver's seat of the van. They can get no support from the evidence of Mr Singh in this regard. 61 Therefore, as the evidence of the appellant was that he was never in the van a crucial issue of credit arose between the appellant and AZ and BZ. Thus the significance of the identification evidence cannot be dismissed lightly. In the context of the present case, one must bear in mind that: "... the 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: see Domican at 565." 62 I have already noted that there is a distinction between the requirements of the common law as expounded in Domican and those of the relevant legislation. This is because s 116(1) required that the direction must be given, whenever identification evidence has been given as distinguished from the common law requirement that a warning had to be given only where the identification evidence represented a significant part of the proof of the guilt of the accused. 63 I am satisfied therefore that regrettably his Honour (in the absence of assistance from counsel) overlooked the mandatory requirements of s 116 of the Act and omitted to give the jury appropriate directions and warnings. An error of law has been established. This raises the question then whether the proviso to s 6(1) of the Criminal Appeal Act, 1912, should be applied. 64 In R v Bruno, (CCA, unreported, 19 June 1997) this Court (Gleeson CJ, Powell JA, Studdert J) declined to apply the proviso in a case not unlike the present. 65 The present case was a strong Crown case. However, one could not conclude that the omission to give appropriate identification directions and warnings did not deprive the appellant of a chance which was fairly open to him of an acquittal: see Mraz v The Queen (1955) 93 CLR 493, per Fullagar J at 514. If the appropriate identification directions and warnings had been given, the possibility existed, in my view, that the appellant may have not have been convicted. 66 Accordingly I would propose the following orders: 1. The appeal be allowed. 2. The convictions be quashed. 3. That there be a new trial on all counts. 67 SHELLER JA: I agree. 68 HIDDEN J: I also agree. 69 SHELLER JA: The orders, therefore, will be as Carruthers AJ proposed. *********** 02/09/2008 - This judgment has been amended to provide pseudonyms for witnesses and their unique address. 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