New South Wales Court of Criminal Appeal CITATION: Raad v Regina [2007] NSWCCA 311 HEARING DATE(S): 30/10/2007 JUDGMENT DATE: 13 November 2007 JUDGMENT OF: Handley AJA at 1; Hidden J at 2; Hoeben J at 3 DECISION: Appeal dismissed. CATCHWORDS: Conviction appeal - robbery armed with an offensive weapon - whether verdict unreasonable or cannot be supported having regard to the evidence - identification by victim - inconsistencies in description of offender - effect of alibi evidence - matters not volunteered by victim - importance of photo identification process. LEGISLATION CITED: Crimes Act 1900 CASES CITED: M v The Queen (1994) 181 CLR 487 PARTIES: Ahmed Raad - Applicant Regina - Respondent FILE NUMBER(S): CCA 2007/00002866002 COUNSEL: RJ Button SC - Applicant Ms N Adams - Respondent Crown SOLICITORS: S O'Connor, Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/3182 LOWER COURT JUDICIAL OFFICER: Nicholson DCJ LOWER COURT DATE OF DECISION: 16/03/2007 IN THE COURT OF CRIMINAL APPEAL 2007/00002866002 HANDLEY AJA HIDDEN J HOEBEN J Thursday 13 November 2007 Ahmed RAAD v REGINA Judgment 1 HANDLEY AJA: I agree with Hoeben J. 2 HIDDEN J: I agree with Hoeben J. 3 HOEBEN J: Offence and appeal On 16 January 2007 the appellant was indicted before his Honour Judge Nicholson SC on the following charge: On 29 November 2005 at Riverwood in the State of New South Wales, being armed with an offensive weapon, namely a knife, robbed Nicolas Borel of a LG mobile phone, a Festina men's wrist watch and $300, the property of Nicolas Borel contrary to s97(1) of the Crimes Act 1900. 4 The appellant pleaded not guilty. The trial then proceeded before his Honour and a jury until 19 January 2007 on which date the jury returned a verdict of guilty. 5 His Honour passed sentence on 16 March 2007. The appellant was sentenced to a term of imprisonment with a non-parole period of 2 ½ years commencing 16 March 2007 with a balance of term of 18 months. 6 The appellant appeals against his conviction pursuant to s5(1)(a) of the Criminal Appeal Act 1912. There was no application for leave to appeal against sentence. 7 One ground of appeal is relied upon. It is to the effect that because of weaknesses in the evidence of a single identification witness, and taking into account all of the other evidence at trial, the verdict of the jury should be set aside on the ground that it was unreasonable and cannot be supported. Evidence at trial 8 It should be noted that most of the Crown case was not in dispute. The only issue was identification. It was the evidence of the victim that he had seen the appellant on three occasions, once before the robbery (the basketball incident), once at the time of the robbery and once after it (the public telephone incident). On behalf of the appellant there was evidence that he did not fit the habits and description of the robber in a number of ways. The appellant also relied upon alibi evidence from his sister and fiancé to undermine the Crown case. The appellant did not give evidence. Evidence of victim 9 The victim came to Australia from France on a one year working holiday visa in 2005. He came to Australia to improve his English. In October 2005 he and a friend, who could speak both French and English, commenced to live in an apartment in a block of flats at 4 Michigan Avenue, Riverwood. 10 After living at those premises for a couple of weeks, the victim attended the Riverwood Community Centre one afternoon. On that occasion he saw about fifteen men taking turns playing an indoor basketball game. The court was lit and the victim stood on the sideline for 30 minutes waiting for the game to finish. While he was waiting, he observed that one of the players was playing with more energy than the others and spoke a lot. He noticed that this player had quite short hair on the sides and that it was longer on the top. The closest that the victim got to that player was about one or two metres away. After that group finished playing the victim played basketball. 11 Under cross-examination the victim said that most of the fifteen men whom he saw playing basketball were of Middle Eastern appearance. The more energetic man was wearing a short-sleeved t-shirt. The victim did not pay particular attention to his clothing or shoes. The police had never taken or offered to take him to the Riverwood Community Centre to see if that man could be found. 12 About two weeks later on 29 November 2005 at about 5.30pm the victim had returned from the city and was walking from Riverwood Railway Station to his flat in Michigan Road. He noticed a person walking quite slowly in front of him and at the end of Roosevelt Street, just before the intersection with Michigan Road, he overtook that person. Before overtaking that person the victim noticed that the man was wearing a dark blue jacket like a windcheater, shorts and fashionable Nike shoes. The victim also noticed that the man's legs below the knees were shaved. The victim described the man as being the same build as him and that he was about the same height as the victim, ie approximately 180-182 cms. 13 As the victim passed the man, he recognised him as the same man that he had seen fifteen days previously playing basketball, ie the energetic man. The victim entered Michigan Street and walked down the footpath towards his flat. At this time there was a lot of light and it was very sunny. The victim was about four metres into the entry way to the building when he felt a hand grab his right arm. He turned around and looked down to see a knife being held very close to his abdomen. He noticed that it was the person that he had just passed who was now wearing a cap. The knife had a blue plastic handle with a thick blade at the base that tapered like a fishing knife. The man was holding the knife against the victim's abdomen using his right hand. 14 The victim could see the man's face very well because he was very close to him. "Not even half a metre from me so I saw his face well". He said that it was not easy for him to give an age but he estimated the man's age to be 27, 28 or 30 years old. 15 The victim had trouble understanding what the offender said. Having taken the victim's mobile phone, watch and $300 in cash the offender started to run towards the interior of the building then exited after which the victim lost sight of him. The victim estimated that the whole incident took approximately two minutes. The victim said that, at the beginning, he was looking at the knife but then looked at the offender's face to try to gauge what was going to happen next so that he concentrated on looking at the offender's face. 16 After the incident the victim went inside his flat, locked himself in and waited for his friend to come home. After a few hours his friend came home and they both attended the Riverwood Police Station. His friend assisted with the translation but the victim said that the police officer was quite insistent that he should tell the story in his own words. When speaking to the police officer the victim also did a few drawings (exhibit 1). The drawings included the shoes worn by the robber and the robber's hairstyle. The hairstyle showed a square cut on top and was very short at the sides. The victim could not recall whether the white baseball cap worn by the robber had any writing or logo on it. Exhibit 1 also included a sketch of the location of the robbery, the knife and other details about the robbery. 17 Under cross-examination the victim agreed that the timing of the robbery could have been as early at 5.20pm or as late as 5.40pm. The victim agreed that in his statement of 29 November 2005 he had described the man who had robbed him as follows: "About 26 years old, 182 centimetres hall, skinny build, of middle eastern appearance, he had black hair and it was longer on top and was really short along the sides and back. When I saw him today he was wearing a dark blue sports jacket with blue jeans and the legs rolled up around the knee length. He was wearing white new Nike shoes with the new design of the two balls on the heel. I think the style of shoe is called a bong or bounce or something similar." 18 When cross-examined about the offender's face the victim said that he was not asked about the colour of the robber's eyes and he did not remember giving a description of the shape of the robber's eyes or eyebrows, nose, chin, jaw, mouth or head. He described the robber's body shape as "skinny". He did not actually remember why he did not give a description of the face to the police. When asked if it could be that he simply did not get a good look at the man's face, the victim's response was "No. It's possible". 19 In re-examination the victim said that he had a mental image of the robber's face and still had that image when he went to Riverwood Police Station. He could not remember if Constable Nilan asked him to describe the robber's face. The victim said that in his training as an interior designer he was trained to look at every detail. The victim said that out of the two minute period of the robbery he was looking at the robber's face for about one and a half minutes. 20 About two or three days after the robbery, the victim was using a public telephone which was at the intersection of Roosevelt and Union Streets. The victim could not recall the precise time of day but it was still daylight although the sun was setting. The quality of the light was declining. 21 While the victim was talking on the phone he saw a man appear from his left who was walking on the other pavement. The telephone booth was on the right side of the street and the man was walking on the left side. The victim recognised him as the person who had robbed him "two or three days before. At the same time he looked at me and as I saw his expression on his face I realised that he also had recognised me". The victim was approximately four or five metres away when he saw the expression on the man's face change. The man was wearing a red t-shirt with the number eight on the back. 22 The man cut through to Roosevelt Street and went onto the footpath opposite and walked for about fifteen metres until the intersection with Minnesota Street where another person joined him. At the same time the man got a baseball cap out and put it on his head. The man then turned around and started walking quite quickly with his friend towards the victim. "I immediately understood that they were coming for me so I put a quick end to the conversation and I left, walking fast first and then running. I went directly to my flat, locked myself in and did not put the lights on or anything. I stayed in at home". 23 When his friend arrived home they attended the Riverwood Police Station. The victim explained to the police that he had seen the person who had robbed him two days previously. He gave them a description of the person he had seen near the public telephone booth and he believed that the officer gave it to the police patrolling the area. The following day the victim moved out of the area and went to Sydney. In cross-examination the victim said that the cap worn in this incident was pulled lower on the person's head. Also the red t-shirt had sleeves to just above the elbow. The victim agreed that the photographs which he observed in the identification parade being only head and neck shots did not give any indication as to the height of the man, the clothing worn, the view from the back of the head, how the person moved, his body shape or build. 24 On 12 January 2006 the victim attended Campsie Police Station and participated in a photo identification procedure shown and recorded by Senior Constable Jouni. The victim was shown 20 photographs on a computer and without hesitation identified the person who had robbed him in photograph number 9. He initialled the black and white print outs of the photographs he identified. 25 Senior Constable Jouni gave evidence as to how the computer identification process was carried out. It commenced at 11.07am and concluded at 11.28am. The process was recorded by camera. 26 When undergoing the identification process the victim understood the following: (a) As each photograph appeared on the screen it had a number to the left of the photo on the screen. (b) Each photograph would remain on the screen for a number of seconds before proceeding to the next photograph. (c) The process would continue until all of the 20 photographs had appeared on the screen. (d) The persons depicted in the photographs had not necessarily been convicted of a criminal offence. (e) The persons depicted in the photographs were not necessarily persons in custody. (f) The person or persons who allegedly committed the offence may or may not be depicted in the photographs. (g) He was in no way obliged to select anyone. (h) To look at all the photographs before he made any comment. (i) If he recognised anyone, to click on the image displayed on the screen or select the button for that person. (j) If he required, the computer presentation could be paused. 27 As photograph 9 appeared in the course of this process the victim immediately identified it. At the completion of the viewing, Senior Constable Jouni asked the victim if he had seen any of the persons under any circumstances to which the victim answered that he had seen number 9, the first time playing basketball at Riverwood, the second time when he robbed him with a knife and the third time in Michigan Road near the public telephone. In cross-examination the victim agreed that when he viewed photograph number 9 as part of the photo identification procedure it showed distinctive eyebrow shaving, something which he had not mentioned to the police on 29 November 2005. He agreed that in the array of photographs some of the men had the same hairstyle as the robber while others had different hairstyles. The victim left Australia in September 2006 and returned for the trial in January 2007. Police witnesses 28 Senior Constable Condon was the officer in charge of the matter. He gave evidence that on 7 December 2005 the appellant declined to participate in an identification parade, or participate in an interview. At that time a photograph was taken of the appellant and it was assigned a COPS photo reference number. This became Photo Number 9 which was subsequently identified by the victim. 29 The photo identification line up was created as follows. Based on the physical description and facial features of the appellant, 500 photos were returned by the PhotoTrack Suspect Identification System. Nineteen photographs from that 500 were randomly chosen and the system then placed the photos randomly in order from number 1 to number 20, including the photograph the appellant. The viewing of the photo line up by the victim was then arranged. 30 Senior Constable Condon gave evidence that he and another officer had measured the time and distance it took to walk from the appellant's address at 29 Truman Avenue to the victim's address at 4 Michigan Road. They found that it took five minutes to walk the 600m in a non direct route, ie the most direct route for a vehicle. There was, however, a more direct route through the corridors of the unit blocks between the two addresses. Appellant's case 31 Maria-Louise Thompson was the appellant's fiancée, having first met him on 6 February 2005. She used to stay at the appellant's place from time to time. She produced a diary entry for 29 November 2005 which read "Stayed in bed, two junkies had a fight outside". She had been at the home of the appellant that day because she was sick and stayed in his bed all day. 32 She said that towards the end of the day the appellant knocked on the window of his bedroom to tell her to have a look at two men having a fight outside. She looked out the window and saw some people there she recognised, but others she did not. She observed two men having a fight. She observed that the appellant was inside his property behind the fence. She said "Just had a glance and I shut the curtain and then went back into bed". She thought that she saw the two men fighting at about 5.50pm, ie about 10 minutes before the 6pm news. She watched them for about a minute. She would have written up her diary entry later than evening after 6pm. She had a habit of entering events and appointments in her diary. 33 Ms Thompson said that she recalled that during the day the appellant's mother, his sister Rashida and a friend of Rashida's were at the house. Earlier in the day a little boy named Ali aged about 18 months was in the house. Rashida and the appellant were babysitting him. She said that she did not know the appellant to be interested in or play basketball. The appellant had been working out with weights at the Riverwood Community Centre but had stopped attending there when he signed up with another gym – Fitness First at Rockdale. She described the appellant's build in November 2005 as being muscularly large. She also said that the appellant had distinctive tattoos on both forearms. 34 Ms Thompson had never seen the appellant wear a dark blue sports jacket or a red t-shirt with the number eight on the back, or to be in the possession of a fishing knife. She had seen him wearing blue jeans but she had not seen him wearing them rolled up. She said that the appellant did own Nike Tuned Air shoes, but not the kind described by the victim which were Nike Shocks. Ms Thompson said that she gave the appellant's lawyers her diary on 19 November 2006. 35 In relation to that last matter a subpoena dated 24 November 2006 was served by the defence on the Commissioner of Police. The police records produced in answer to that subpoena referred to a COPS entry created on 29 November 2005 at 17.42 hours of two Caucasian males with tattoos all over their bodies wearing jeans fighting at that time at 6 Truman Avenue, Riverwood. This COPS entry was created from information received from somebody named Rosemary who said that it had been going on for five minutes. 36 In cross-examination Ms Thompson agreed that she wished to help the appellant. She said that her evidence about the appellant no longer going to the Riverwood Community Centre was from what he had told her or from what someone else may have told her. She was not able to say for certain that he did not go to the Riverwood Community Centre after February 2005. She was working five days per week as a real estate agent and could not exclude the possibility that the appellant had worn the blue sports jacket, the red t-shirt or the shoes described by the victim in her absence. 37 The appellant's sister, Rashida, also gave evidence. She said that she had made a diary entry regarding 29 November 2005 that read "Ginger came over, took Sarah to see Rings, Ali two and a half hours paid". She recalled that on that day that a friend whom she had not seen for 2 - 4 years came over and stayed for about two hours. While Ginger was there Rashida and her brother were babysitting Ali. Rashida said that there was a fight in the street, two men were arguing, yelling and swearing aggressively and wanting to fight each other. The appellant got involved and tried to stop it. She said that the appellant had been home from 4pm until 6.45pm as she remembered him helping her to baby-sit Ali and trying to stop the men from fighting. 38 Rashida said that the appellant was "not a great fan of basketball" and she had not known him to play. She had seen him a few times at Riverwood Community Centre in the first half of 2005 doing weights. She gave the appellant's lawyers her diary on 19 November 2006. She had not seen the appellant in a blue sports jacket or a red t-shirt. She had see him wearing jeans but not rolled up. She described the appellant as being of a muscular build with tattoos on his forearms. She had not seen the appellant with a fishing knife. 39 In cross-examination she agreed that she was very keen to help the appellant. She said that the appellant had remained home the whole time that she was with Ginger and that he had helped her baby-sit. She said that the first time she had been asked to recall the events of 29 November 2005 was a little over nine months later. 40 Richard Isbell, an Out-of-Homecare worker for the Department of Community Services, gave evidence. He had previously worked at the Riverwood Community Centre from the end of 2001 until September 2006. In November 2005 he was employed as the Youth Service Co-ordinator at the Centre. 41 Mr Isbell said that between January or February 2005 and August 2005 the appellant had attended the Centre and used the weights. He thought the appellant had stopped coming to the Centre in July or August 2005. He recalled the appellant playing basketball twice, once with a group of people which he thought was in the first quarter of the year, and the other time he was shooting a few hoops by himself. That second occasion was about a month later. He could not recall the appellant playing basketball with a group of people in November 2005. He said that the appellant was not a real basketball player but was rather "a full on gym guy" who worked out and that he was well built and strong. He said that he was the second biggest man at the Riverwood Community Centre and had tattoos on his forearms. 42 In cross-examination Mr Isbell agreed that he could not be looking at the basketball court all the time and conceded that it was possible that the appellant had played basketball in mid November 2005: "He might have come in one afternoon for example and played, yeah, that could've happened". 43 Some comments should be made about the exhibits. Photographs of the appellant taken in March 2005 were tendered. These showed tattoos on the outside of his right and left forearms. There appear to be three Old English symbols tattooed on the right forearm and four symbols on the left forearm. In evidence one tattoo was described as being 10cms in length and the other somewhat smaller. Those tattoos appear to be 2cms in width. The appellant had a tattoo on the inside of his right forearm which depicted a sword or dagger. The tattoos can be described as obvious but not prominent. The photographs show that the appellant's right eyebrow was partially shaved. A small vertical section of the eyebrow had been removed. A similar mark can be seen on the photograph of the appellant, which was taken on 7 December 2005. 44 The 20 photographs which comprised the photographic line up all show young men of Middle Eastern appearance. Although their hairstyles are not identical, most of them fit the description given by the victim. All of the photographs depict persons of the same age and of generally similar appearance. In that regard the victim identified photograph number 9 as soon as it was shown to him as the person who robbed him and did not wait until all 20 photographs had been displayed. 45 The significance of the diary entries being provided to the appellant's lawyers on 19 November 2006 and the subpoena addressed to the Commissioner of Police of 26 November 2006 was that the diary entries could not be fabrications to fit in with material subsequently produced in answer to the subpoena. Appeal 46 The ground relied upon was: The verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence. 47 The appellant reminded the Court of the dangers of identification evidence and emphasised the following "weaknesses" in the Crown case. In respect of the basketball incident, although the appellant was wearing short sleeves the victim made no mention of tattoos on the forearms despite the length of time during which the victim had the man under observation, at times from very close quarters. On the evidence of the appellant's fiancé, his sister and Mr Isbell it is unlikely that the appellant was an energetic and dominating basketball player as stated by the victim. The difficulties of identification were increased because most of the players were of Middle Eastern background. 48 In relation to the armed robbery, it was submitted that the description of "skinny" was quite inconsistent with the reality of the appellant's physique. No description, oral, written or drawn, was given of the face of the offender, either on 29 November 2005 or at any time. There was affirmative evidence from the appellant's sister and fiancée that he did not own or wear the clothes or shoes described by the victim. Given the terrifying circumstances of the incident and the short time that the offender was under observation by the victim, it was easy for the victim to be mistaken. The first recorded description of any kind was not given until 4 hours after the incident. 49 It was submitted that the appellant had a powerful alibi with regard to the date and time of the robbery. Fabrication of the diary entries was unlikely given the subsequent production by the police of the COPS entry. The afternoon was memorable and there was a reason why such diary notations would be made. The appellant's sister, it was submitted, was undamaged in her evidence that the appellant did not leave her company at the relevant time. 50 In relation to the public telephone incident, the victim gave no evidence as to the tattoos despite the fact that the man was wearing short sleeves. There was affirmative evidence from the appellant's fiancé and his sister that he did not own clothes which were described by the victim. The face of the man was covered to a degree by the cap that was pulled down on his return and the victim was upset after this incident. 51 In relation to the photo identification procedure, the appellant submitted that there was a six week delay between the last sighting of the offender and the photo identification process. It was submitted that the photo identification procedure was unsatisfactory in that not all the faces fitted the fundamental characteristic of hairstyle described by the victim. The photo of the appellant depicted him with a distinctive shaved eyebrow and yet that feature formed no part of the description of the robber given by the victim. The victim did not have the chance to see the build of the men in the photo identification parade. It was submitted that if he had, he may have immediately excluded the appellant. 52 The appellant submitted that there was nothing to link him to the crime except for the identification evidence. It was submitted that the jury had no advantage over this Court in that this was not a trial where credibility needed to be determined. It was never suggested that the victim was anything other than honest but mistaken. The trial called for a careful analysis of the evidence and this Court could undertake that exercise just as well as the jury. 53 The appellant appreciated that an important part of the Crown case was that from a randomly generated array, the victim picked a man who lived about 600 metres from the scene of the robbery. The appellant submitted that the significance of this was limited. This was because there was no evidence as to where the other men in the photo array lived. In addition the victim had lived in the Riverwood area for some time before the day of the robbery and may well have seen the appellant in the suburb during that period. Six weeks later because of the similarities in hairstyles the victim confused the appellant with the true offender. Crown submissions 54 The Crown submitted that this was not a case where the victim had only seen the offender once for a few seconds under stressful circumstances before being asked to identify him. The victim had seen the offender three times before being asked to participate in the identification procedure. It was at no time suggested to the victim that these three sightings were not of the offender. The Crown also submitted that because of his training in architecture and interior design the victim did have some special expertise in observing detail. 55 In relation to the tattoos, the Crown submitted that the only occasion when the victim could have reasonably observed these was on the occasion of the basketball match. At the time of the robbery the offender's arms were covered and in the phone booth incident light was deteriorating and the distance between the offender and the victim was in the order of 15 metres. 56 It seems that the Crown was unaware of the tattoos until the photographs of the appellant were tendered and the evidence of his fiancée and his sister was given. Accordingly, the victim was never asked about tattoos nor was he cross-examined about them. All that could be said was that he did not say anything about them either when interviewed by the police or in evidence. 57 The Crown submitted that given the circumstances of the basketball match, the number of men involved and with the victim having no particular reason to observe the offender closely, he may simply not have noticed the tattoos. This is consistent with the victim's evidence that the man he saw playing basketball "must have" been wearing a t-shirt but he could not describe what he was wearing in any detail. 58 In those circumstances, given that the victim only had one real opportunity to observe the tattoos and that he was never asked any questions about them, it was submitted that his failure to volunteer the fact that he had seen tattoos lost much of its significance. 59 In relation to the use of the word "skinny" the Crown submitted that the victim was a French National and gave his evidence with the assistance of an interpreter. When he reported the robbery to the police on 29 November 2005 it was his flatmate who interpreted for him. The Crown submitted that it is not clear whether the word "skinny" came from the victim or from his flatmate when interpreting. The victim was never asked what he meant by the word "skinny". The victim did not use the word "skinny" in his evidence in chief but it was twice put to him in cross-examination that he had used that word when describing the offender. The Crown submitted that it was unclear what the victim meant to convey by the use of the word "skinny" in his statement to the police. 60 In relation to the shaved eyebrow, the Crown accepted that this would have been present at the time of the robbery. The Crown agreed that the victim did not tell the police that his attacker had a shaved eyebrow but was never asked in terms whether the offender had actually had a partially shaved eyebrow. The Crown submitted that a partially shaved eyebrow such as was depicted in the photographs was not a significant facial feature and that the jury would not have been troubled about this aspect of the evidence given the identification evidence overall. 61 Apart from the generic similarities such as ethnic background, hairstyle and mode of dress, the Crown also relied upon the height of the appellant matching the height of the offender. The evidence of the victim was that the height of the offender was approximately 182cms, ie the same height as himself. Since the jury had the opportunity of observing both the victim and the appellant and no submission was made on behalf of the appellant at trial as to there being a discrepancy between the height of the appellant and the evidence of the victim, the Court was asked to infer that the victim's evidence was consistent with the height of the appellant. This had particular significance, it was submitted, since the victim would have had no idea of the height of the appellant when he identified him from the photo array. 62 In relation to the evidence of the appellant's fiancée and sister, the Crown submitted that the issue of the reliability of their evidence was very much a jury question. Both witnesses had agreed that they wished to assist the appellant which was consistent with their close relationship to him. The evidence of Mr Isbell as to the appellant's playing of basketball was inconsistent with their evidence on that subject. Since this was the only issue against which their evidence could be evaluated, the Crown submitted that the jury would have been entitled to treat their evidence on other issues with some scepticism. 63 In relation to the alibi evidence itself the Crown submitted that the evidence of the appellant's fiancée did not exclude him being involved in the offence. This was because of the relatively short distance between his home and that of the victim which would have taken five minutes to walk. For a running person, taking a more direct route, the time needed to cover that distance would have been much less. 64 The Crown accepted that the evidence of Rashida was in a different category and if it were accepted the appellant could not have participated in the offence. In that regard the jury would need to accept not only that she was a reliable witness but that she had had the appellant continually under observation between 5.20 and 5.50pm. The Crown submitted that the jury was in the best position to make that assessment. 65 The Crown emphasised the photo identification procedure. The Crown submitted that it was of particular significance that the victim unhesitatingly identified the photo of a person who happened to live very close to the scene of the crime. The challenge to this procedure was not made out since the uncontested evidence was that the "Photo Track Suspect Identification" program was entirely random. In those circumstances it would have been an extraordinary coincidence for more than one person in the array to have lived within a short distance of the victim's home. 66 The Crown rejected the proposition that the photo identification was due to a "transference" of other recollections due to the fact that the victim may have seen the appellant around the neighbourhood and confused him with the "true offender". The Crown submitted that this was unlikely for two reasons. Firstly, the victim had left the neighbourhood within three days of the offence after the public telephone incident and secondly that it was the victim's evidence that he had seen the offender on three separate occasions. 67 The Crown submitted that the cumulative effect of the victim first noticing the man said to be the appellant and then two weeks later recognising him prior to being robbed by him and then recognising him again two days later, made the identification evidence strong. 68 In conclusion the Crown submitted that the summing up by the trial judge was comprehensive. His Honour had specifically and in some detail warned the jury of the problems regarding identification evidence. That warning occupied some 18 pages of the summing up and gave specific instances of where honest persons had been mistaken in their identification. The jury, it was submitted, could have been left in no doubt as to the restraint they had to exercise before accepting the identification evidence given by the victim. Consideration 69 M v The Queen (1994) 181 CLR 487 sets out the test to be applied by the Court. At 493 the majority (Mason CJ, Deane, Dawson and Toohey JJ) said: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations." 70 And at 494: "The qualification was that no circumlocution was involved in speaking of a doubt which a reasonable jury ought to have entertained because account must be taken of the advantage which a jury has in seeing and hearing the witnesses. To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a Court of Appeal cannot. But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the Court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based upon that evidence. In doing so, the Court is not substituting a trial by a Court of Appeal for trial by jury, for the ultimate question must always be whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 71 Applying those principles I am satisfied that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. 72 The assessment of the reliability of the evidence of the victim, as compared with that of the appellant's fiancée and sister, was a matter for the jury. The jury made its evaluation of that material against the background of the very specific warnings as to identification evidence given by the trial judge. 73 Clearly the failure on the part of the victim to give evidence in chief concerning the appellant's tattoos and his shaved eyebrow are matters which could have undermined his reliability as a witness. On closer analysis, however, the appellant's submissions on those matters do not have the persuasive force which was urged upon the Court. 74 In relation to the tattoos, since no questions were asked of the victim on that subject, all that can be said is that he failed to say anything about them. This may have been because his attention was not directed to them or because he did not note them. Given that the only real opportunity the victim had to observe the tattoos was during the basketball game, it is quite likely that he did not notice the tattoos. At that time the victim had no reason to notice any particular physical characteristics of the offender. On my observation of the photographs the tattoos were not so prominent that they could not have been missed by a casual observer watching a game of basketball involving 15 persons. 75 The same considerations apply to the partially shaven eyebrow. From the photographs of the appellant taken in March and December 2005 this feature is not particularly prominent. The only opportunity the victim had to observe this feature was during the robbery. The fact that he did not give a description of the offender's eyes or eyebrows is explainable on the basis that he may not have noticed the shaved eyebrow (which was quite possible) or that he was not asked anything about those features. 76 Too much significance should not be attributed to the use of the descriptive word "skinny" in relation to the appellant. How this word came to be used was, as the Crown submitted, not clear. No attempt was made by either side to clarify what the victim meant by the word if in fact he was the originator of the word rather than his flatmate who interpreted for him. From my observation of the photographs and the appellant he would be correctly described as lean and fit. This may have been what the victim meant. Of perhaps more significance is the estimate given by the victim of the offender's height which appears to accord with that of the appellant. 77 Finally, the circumstances surrounding the victim's identification of the appellant's photograph in the photographic array in circumstances where the appellant lived 600 metres away from the crime scene, was powerful evidence supporting the identification of the appellant as the offender. As was submitted by the Crown, given the random nature of the selection process for the other photographs in the array, it would have been an extraordinary co-incidence for more than one person in the array to have lived in such close proximity to the scene of the offence. 78 The order which I propose is that the appeal be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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