New South Wales Court of Criminal Appeal CITATION: Aslett v R [2009] NSWCCA 188 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 10/07/09 JUDGMENT DATE: 29 July 2009 JUDGMENT OF: Allsop P at 1; Kirby J at 2; Johnson J at 82 (1) Appeal allowed. DECISION: (2) Convictions quashed and sentences set aside. (3) The appellant should have a new trial. CATCHWORDS: CRIMINAL LAW - appeal and new trial - identification evidence - in-court identification - failure by trial judge to discharge jury - failure to direct jury that evidence of no value on identification issue - failure to specify weaknesses in identification evidence - the displacement effect - application of the PROVISO - conviction not inevitable. Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 CATEGORY: Principal judgment Crofts v The Queen (1996) 186 CLR 427 Qoro v Regina [2008] NSWCCA 220 R v Taufua (unreported, NSWCCA, 11.11.96) R v Tahere [1999] NSWCCA 170 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 CASES CITED : Domican v The Queen [1991-1992] 173 CLR 555 Davies & Cody v The King [1937] 57 CLR 170 Alexander v The Queen [1980-1981] 145 CLR 395 R v Akgul [2002] VSCA 222; (2002) 5 VR 537 at 543 R v Skaf [2004] NSWCCA 37 R v Adamson (unreported, NSWCCA, 26.11.92) Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 PARTIES: Jamie Wayne Lee ASLETT (App) Regina (Resp) FILE NUMBER(S): CCA 2007/10137 COUNSEL: G Bashir (App) D Arnott SC (Resp/Crown) SOLICITORS: S O'Connor - LAC (App) S Kavanagh - DPP (Resp/Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/21/0108 LOWER COURT JUDICIAL OFFICER: Johnstone DCJ LOWER COURT DATE OF DECISION: 8/5/08 IN THE COURT OF CRIMINAL APPEAL 2007/10137 ALLSOP P KIRBY J JOHNSON J Wednesday 29 July 2009 Jamie Wayne Lee ASLETT v REGINA Judgment 1 ALLSOP P: I agree with Kirby J. 2 KIRBY J: Jamie Wayne Lee Aslett (the appellant) was tried before a jury in the District Court at Parramatta in respect of four charges, each said to have been committed on 29 May 2006. The charges were: Count 1: Aggravated take and drive motor vehicle with person therein (contrary to s 154C(2) Crimes Act 1900) ("the Act"). Maximum penalty: imprisonment for 14 years with a standard non parole period of 5 years. Count 2: Aggravated take person with intent to obtain advantage (contrary to s 86(2)(a) of the Act). Maximum penalty: imprisonment for 20 years. Count 3: Aggravated indecent assault (contrary to s 61M(1) of the Act). Maximum penalty: imprisonment for 7 years with a standard non parole period of 5 years. Count 4: Robbery in company (contrary to s 97(1) of the Act). Maximum penalty: imprisonment for 20 years. 3 Mr Aslett pleaded not guilty to each count. After a short trial, the jury returned a verdict of guilty in respect of all charges. On 8 May 2008, the appellant was sentenced to an aggregate term of 8 years 6 months with a non parole period of 6 years. The earliest date upon which Mr Aslett will be eligible for parole is 9 November 2013. 4 Mr Aslett appeals against his conviction in respect of all offences. He also seeks leave to appeal against the sentences imposed. 5 Before going to the Notice of Appeal, I should briefly describe the circumstances relied upon by the Crown as giving rise to each offence. The incident. 6 The complainant was a female student aged 20 years. On Monday 29 May 2006, she went to a cafe in Parramatta at about 9.00 pm to meet two friends. She was driving her father's car, a red Ford Mondeo. She parked in a carpark behind the cafe. 7 At 10.45 pm or thereabouts, she left the cafe. She was alone and crossed the carpark, which was almost empty. She went directly to her car and once sitting behind the driver's wheel, placed her bag beside her. As she was about to start the car, there was a knock on the window. She saw someone standing outside the vehicle on the passenger's side. He had his hand back as if to punch the window. She turned her head away as this person punched the window, shattering the glass. The police later searched the carpark and found glass. 8 The complainant quickly learned that there were in fact two men outside her vehicle. One entered through the front door, telling her to get into the back. The other entered the vehicle through the back door. She squeezed between the driver's seat and the passenger's seat into the back. The man in the back then directed her to get down. He pushed her head so that she was in a "crunched up ball position". She remained in that position throughout her ordeal. She never saw the face of either man and was therefore in no position to describe them or identify them. 9 A demand was made for her bag, her phone and her money. She told them where the bag was, which they then searched. She had two mobile phones, $80 in cash and an ATM card. She was asked how much she had on the card. She said that she was not sure. She was also unsure of the location of the nearest ATM. The driver, at this point, threatened her. He reached behind and put his hands down the front of her pants saying: "Don't fucking lie", or "Don't lie or we'll rape you." He demanded her PIN number, which she provided. The car was started and the search began for an ATM. 10 The car was driven to the Tollgate Hotel at Parramatta, where there was an ATM. She was asked to repeat the PIN number, which she did. The driver repeated it back, but did so incorrectly. He then got out of the vehicle and entered the hotel. The other man remained in the back of the vehicle throughout. 11 The driver returned to the vehicle within a short time, saying that the PIN number was incorrect. She was told to type her PIN number into the phone, which she did. As she did so, she said that there was a daily limit of $800 on the account. The driver then left the vehicle and returned a short time later. 12 Bank records relating to the complainant's account were tendered as part of the Crown case. There were two transactions late on 29 May 2006. The first was at 11.06 pm when an incorrect PIN number was entered. The second was at 11.10 pm when $800 was withdrawn. 13 The complainant, in her evidence, said that at one point the person in the back put his hand over her mouth and nose. She noticed there was material, maybe a glove, on his hand. He also touched her breasts and buttocks on the outside of her clothing. In contrast, when she described the action of the driver in putting his hand down the front of her pants, she made no reference to material or gloves. 14 Once the driver returned with the money, the vehicle left the carpark. The person in the back returned her purse, saying that all her cards were still inside it. A short time later the vehicle stopped. She was told to get out and not to look at them as she did so. She did as she was told. The vehicle then drove off. She had been inside the vehicle for a little over thirty minutes. The vehicle was later recovered by the Police near the Parramatta Leagues Club, where it had been abandoned. 15 Once released, the complainant went to a Thai restaurant which was nearby and made a 000 call. The call was made at 11.20 pm and was recorded. As she spoke to the operator, she looked through her purse and discovered a photo identity card. The recorded conversation was in these terms: (Exhibit C) "XIAN: He even left his licence here with me. Operator: You're joking. Does it look like him? XIAN: I didn't see him but the name is Jamie Wayne Lee, it's a photo card." 16 The photo identity card was that of the appellant. It was a plastic card the same size as a driver's licence, with a photo of the appellant. However, it was blue, unlike a driver's licence which is white and yellow. 17 There was no challenge to the complainant's evidence. The Crown case included CCTV footage taken at the entrance to the Tollgate Hotel between 11.00 pm and 11.10 pm. It showed a male person approaching and speaking to the security guard at 11.02 pm. The same male person then approached again and, on this occasion, entered the hotel. He was shown leaving at 11.05 pm. He returned at 11.08 pm and then left once more at 11.09 pm. Two frames from this footage became Exhibit O. They were of poor quality, not clearly showing facial features. They did, however, give some indication of the clothing worn by the driver. The person was depicted wearing a white jacket, a black T-shirt which had white writing in two locations, and a black baseball cap with a white logo on the front. 18 The security guard from the Tollgate Hotel was called to give evidence. Indeed, it was his evidence which is said to give rise to the errors which are the subject of this appeal. When giving evidence, he made an in-court identification, which I will shortly describe. Before going to that evidence, I should refer to an aspect of the police investigation, which is relevant to the security guard's testimony. 19 After the 000 call, the complainant was interviewed by the police in the early hours of 30 May 2006. The police took possession of the photo identity card of the appellant. They then obtained a search warrant in respect of his home. At 7.20 pm on 31 May 2006, a search was conducted pursuant to the warrant. A dark baseball cap was found in what was described as "the first bedroom". It had a white motif of the New York Yankees on the front. The police also took possession of a black T-shirt which had been hanging on the clothesline. There was white writing on the front of the T-shirt in two locations. With some charity, the cap and the T-shirt broadly resembled the cap and the T-shirt in the photographs extracted from the CCTV footage (Exhibit O). On 28 June 2006, that is almost a month later, Mr Aslett was arrested. Upon arrest he was photographed from various angles. The photographs ultimately became an exhibit (Exhibit S). They were professional photographs and very clear. 20 Returning to the day of the incident, the police interviewed the security guard within a short time of the occurrence. He had started work that evening (29 May 2006) between 9.00 and 10.00 pm. He recalled an altercation where he was attempting to calm those involved. As this was happening, he noticed someone approaching the entrance to the hotel, who appeared to be under age. He also noticed a red Ford Mondeo in the carpark. He asked for identification. The person produced his driver's licence. He was then allowed into the hotel. Shortly after, he came back out. He went to the car, checked the "trunk", and came back to the hotel a second time. 21 The security guard said that he had "two good looks at him". He was young, very jumpy and nervous. He provided the following description: (T 28: 5.11.07) "A. He had a ponytail at the time, long hair, baseball hat, very short and small, baby face." 22 When cross examined, the security guard elaborated. He said that the man was about 150 cm tall, or even shorter (T 35). He was a "short guy with a pony tail". He added: (T 36) "Q. ... You told the police that the – one of (the) things you noticed about this person that stuck out was the amount of hair, is that right, lot of hair? A. Yeah. Q. And the other thing that stuck out for you about this person you saw at the hotel was that person had long sideburns? A. Yeah." 23 The security guard also said he had a goatee beard. He was wearing a white T-shirt and cargo pants. 24 Having given a statement on 1 June 2006, incorporating this information, the security guard was interviewed a second time after the appellant had been arrested and photographed. On 6 July 2006 he was shown an array of photographs, that is, five weeks after the incident. The array included the photographs of Mr Aslett. He said this: (T 36) "Q. And it was done on a computer screen, and each individual photograph came up and you were able to look at them and you were asked to sign a form at the end as to whether or not you could identify anyone is that right? A. That's right. Q. And that's after you'd looked at these photographs? A. That's correct. Q. And there was a question in that form to the effect that you were not -- A. Sure. Q. No, I'll just read out the question to you, and this is at the end having looked at all of these photographs the 20 of them, you were asked this question, have you seen any of these persons under any circumstances, and you answered, no I haven't, is that correct? A. Yeah. Q. And that was a form filled in by the officer who did this photographic display is that right? A. Mm that's correct." 25 As mentioned, when the security guard gave evidence, he identified the appellant, who was then sitting in the dock. I will deal with that evidence more fully below, in the context of Grounds 1 and 2 of the appeal against conviction. 26 Evidence was tendered that a number of items were sent for fingerprint analysis. No identifiable fingerprints were found. Various items were tested for DNA, but no match was found. Neither the black T-shirt nor the baseball cap seized from the appellant's home was tested for DNA. 27 The appellant gave evidence denying each charge. He acknowledged, however, that the photo identity card was his. It had been issued on 21 April 2006 (Exhibit B). The identity card, incidentally, depicted the appellant facing the camera. He appeared to have relatively short hair. He said that on 29 May 2006, the day of the incident, he looked the same as in the photo identity card (T 122: 7.11.07). He said he did not have the card with him that night. He only carried it with him when he wanted to buy cigarettes or enter a hotel. He had a number of cousins and they regularly swapped clothes. He provided an elaborate account of his whereabouts that evening. 28 The appellant also said that he was not wearing the black T-shirt that night. He had a number of hats, but could not recall a black cap with a New York Yankees logo on it. He said that he had never had long sideburns, nor a goatee beard. Indeed, he could not grow facial hair, except in a small area on his chin, "about 20 hairs, if that" (T 123). When cross examined he was not asked whether he ever had a pony tail. The Notice of Appeal. 29 The conviction appeal identified two grounds as follows: Ground 1: The trial miscarried owing to the failure of the Judge to discharge the jury on the application of trial counsel following the in-court identification by Mr Bozkent, the security guard, of the appellant whilst he was in the dock. Ground 2: The trial Judge erred in failing to give adequate directions in relation to the identification evidence. 30 The sentence appeal identified the following grounds: Ground 1: The sentencing Judge erred in failing to properly apply the standard non parole period in relation to Count One (aggravated taking and driving a motor vehicle) such that he failed to determine an appropriate sentence. Ground 2: The sentencing Judge erred in fixing terms of imprisonment when sentencing the applicant for offences carrying standard non parole periods as s 45(1) Crimes (Sentencing Procedure) Act 1999 prohibits this. Ground 3: The sentences are erroneous as they contain an element of double punishment for the fact that they were committed by the applicant while he was on parole. 31 I will begin by dealing with the conviction appeal. Ground 1: Refusal of application to discharge. 32 The Crown opened the case before the jury, describing the events of that evening. The assumption was made that Mr Aslett was in the back seat and his companion was the driver. That, no doubt, was a reasonable assumption on the material then available, since the security guard had seen the driver and had then not identified Mr Aslett when shown his photograph. The prosecutor said this: (T 7: 5.11.07) "... the Crown says that one of the persons got into the driver's seat and another one, the accused, got into the rear seat. There is various demands for the money and phone and she was searched." 33 The Crown then provided the jury with an outline of the case against Mr Aslett in respect of the aggravated indecent assault, again describing the actions of the person in the back seat, not those of the driver: (T 7: 5.11.07) "The Crown says that while the accused was searching her the accused ran his hands over the complainant's buttocks and breasts ... " 34 The Crown later added these words, again describing the actions of the person in the back seat: (T 7: 5.11.07) "At one stage the Crown says the accused placed his hands over the complainant's eyes and nose and she could feel material on his hands and the Crown says that that's indicative that the accused in the back seat was wearing gloves and the Crown says that is important because there was forensic or scientific examination of the car and no fingerprints were found." 35 According to the Crown, only the driver left the vehicle. The back seat passenger remained with the victim. 36 When the security guard was called, he gave an answer, identifying the accused who was then in the dock. The transcript is as follows: (T 26: 5.11.07) "Q. And while talking to those men, trying to calm them down, did you notice anything or any one approaching? A. Just this gentleman behind you was coming up to the pub and – " 37 Counsel for the appellant, in the absence of the jury, made an immediate application for a discharge. He referred to the in-court identification and said this: (T 31: 5.11.07) "... In my submission it can't be overcome by any directions and so what we have before the jury is a witness, a very crucial Crown witness, purporting to identify this man in court." 38 The debate on the discharge then began. It included the following exchange: (T 31/32: 5.11.07) "HIS HONOUR: I might be a bit confused but isn't it your case that the accused was in the back of the car and remained in the back of the car throughout. CROWN PROSECUTOR: No, our case is the accused is the driver your Honour. There's something I have to correct on my opening but -- HIS HONOUR: Well then I was totally confused. CROWN PROSECUTOR: That was based on your Honour that I said the person groped her, sorry touched her breasts and buttocks and that turned out to be the person in the passenger seat. But your Honour I'll have to correct that in front of the jury ..." 39 His Honour repeated that he was confused because he thought "it was the other way round". The Crown prosecutor then said this: (T 32: 5.11.07) "I think I may have gotten myself confused when the witness herself said that she was touched on the breasts and buttocks by the person sitting next to her ..." 40 But the Crown, wrongly, wished to take full advantage of the identification. He said this: (T 32: 5.11.07) "CROWN PROSECUTOR: ... Well your Honour it's very interesting in fact had he picked the photo, the person from the photo identification array, your Honour would have had to have warned the jury about the fact that photos are only two dimensional, that mistakes are made. He comes back into court and sees the person in full 3D. It wasn't a line-up, it was a photo array, just not enough and it's a matter for the jury in the end what they make of the fact that when looking at photos he couldn't pick someone but when he saw him alive and in the flesh he was able to say – " 41 Counsel for the accused then responded in these terms: (T 33: 5.11.07) "WILLIAMS: -- cases such as Alexander and the long line of cases warn of in court identification, particularly your Honour where there has been a lack of identification at another time. HIS HONOUR: I would have thought it helped you. WILLIAMS: In my submission it doesn't. Because a witness sitting here and saying the man sitting behind you Mr Crown is the –" 42 His Honour ruled that he would not discharge. He did not provide reasons. The jury was brought back. No direction was given concerning the in-court identification. Rather, counsel for Mr Aslett was then invited to cross examine. 43 On this appeal, attention was drawn to Crofts v The Queen (1996) 186 CLR 427, where Toohey, Gaudron, Gummow and Kirby JJ identified the issue on an application for discharge in these terms: (at 440/441) "... No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event tht occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? ..." 44 In Qoro v Regina [2008] NSWCCA 220, Johnson J (Giles JA and Hall J agreeing) summarised the issue in these words: "29. The failure to discharge a jury is not a ground of appeal in itself. The appeal is against conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question on appeal is whether there was such a high degree of necessity for the jury's discharge on 7 September 2006 that the failure to order such a discharge has resulted in a mistrial... Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. This Court must decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice: Crofts v The Queen at 441." 45 These statements of principle assume that reasons have been given by the trial Judge for his or her refusal to discharge. That is plainly desirable, either at the time of the ruling or soon thereafter. 46 Here there were no reasons. One must go to the transcript to determine what the trial Judge's reasons were. The Crown, in its submissions, encapsulated those reasons, as they emerged from the transcript, in these words: (CS: para [20]) "... It can readily be inferred from the remarks of his Honour that he concluded the evidence was relevant, admissible and there was little danger of unfair prejudice to the appellant, indeed, quite the opposite. ..." 47 Assuming that to be a sufficient statement of his Honour's reasons, it may be said at once that the evidence was certainly relevant. The only issue in the trial was the issue of identity. The security guard, in the evidence which provoked the discharge application, identified Mr Aslett as the person who sought entry to the hotel, a red Ford Mondeo vehicle waiting in the carpark. 48 In Crofts v The Queen, the Court drew attention to the "seriousness of the occurrence in the context of the contested issue", when referring to the matter which provoked the discharge application. Here, the in-court identification was plainly serious. Indeed, it transformed the Crown case. The case opened, and the case Mr Aslett expected to meet, was a circumstantial case. The Crown sought to draw the inference that Mr Aslett was involved in these offences from a combination of circumstances. On paper, the security guard appeared to be a witness who assisted Mr Aslett. He had been shown a good photograph of him five weeks after the incident, yet he failed to identify him. He also provided a description of the person he dealt with to the police. That description, in some respects, did not match Mr Aslett, as I will later describe. Once the security guard identified Mr Aslett in court, the Crown case appeared immeasurably stronger. He became a witness unmistakably adverse to Mr Aslett, as his counsel recognised. The suggestion by his Honour that his evidence "helped Mr Aslett" was, with respect, clearly wrong. Certainly there was a contradiction in his evidence. However, the contradiction was between his expected evidence, where he was not able to identify Mr Aslett from photographs, and his evidence in court, where he said he could, having seen him in the flesh. 49 Was the evidence admissible? Absent compliance with the conditions of s 114(2) of the Evidence Act 1995 (which required an identification parade subject to certain exceptions, which were not demonstrated), the evidence was not admissible (R v Taufua (unreported, NSWCCA, 11.11.96) (Priestley AP, James and Barr JJ); R v Tahere [1999] NSWCCA 170, per Spigelman CJ at para [32]). The evidence was not led by the Crown. It was volunteered by the security guard. However, when considering the discharge application which immediately followed, it was not recognised that the evidence was inadmissible. 50 The Crown suggested that it could be inferred that his Honour saw "little danger of unfair prejudice to the appellant, indeed the opposite". Unfair prejudice, in this context, meant prejudice arising from the likelihood that the jurors may give the evidence more weight than it deserved, or that it may divert the jurors from their task (Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, per McHugh J at 609, para [51]). 51 The dangers of identification evidence are well known. They were described in Domican v The Queen [1991-1992] 173 CLR 555 in the following terms by Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ: (at 561) "... 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 the directions which judges must give in criminal trials where identification is a significant issue." 52 In-court identification has been recognised as presenting danger in an acute form. In Davies & Cody v The King [1937] 57 CLR 170, the Court (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ) said this: (at 182) "Similarly, if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question ." (emphasis added) 53 In Alexander v The Queen [1980-1981] 145 CLR 395, Mason J made the following comment: (at 426/7) "... Traditionally it has been accepted that a witness identifies the accused at the trial as the person whom he observed at the scene of, or in connection with, the crime. This 'in court' identification, sometimes described as primary evidence, is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial circumstances conspire to compel the witness to identify the accused in the dock . ..." (emphasis added) 54 Gleeson CJ, in Festa v The Queen (supra), made the following statement, although he recognised that there was no absolute rule that such evidence must be rejected: (at 399) "18. Of all forms of identification evidence, one of the most notoriously dangerous is in-court identification, which is usually performed in circumstances that strongly suggest the answer that is ultimately given. Even here, however, there is no absolute rule requiring rejection of such evidence; and there may be circumstances in which it is appropriate to allow it. ..." 55 The security guard did not know the appellant. He was not identifying someone with whom he was familiar. He had been shown an array of photographs by the police some time before he gave evidence, which included a photograph of Mr Aslett. There existed, in these circumstances, the danger described as "the displacement effect". In Alexander v The Queen, Stephen J said this: (at 409) "... there is the 'displacement' effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting." 56 The trial Judge, in determining that the matter should proceed, did not advert to these issues or recognise the prejudice associated with them. If the trial were to proceed, it was important that the jury be immediately told that the in-court identification was of no value on the identification issue (as the witness must inevitably point out the person who is on trial), that being a direction suggested by the bench book. It was also important that such a direction should be repeated and emphasised in the summing up. However, no such directions were given. 57 I believe that the jury should have been discharged. I would find error. The evidence was inadmissible. It had little probative value. It was highly prejudicial. It went to the heart of the matter in contest, namely the identity of Mr Aslett. The evidence changed the entire complexion of the case from a circumstantial case to a case with direct evidence of Mr Aslett's involvement. There was, I believe, the risk of a substantial miscarriage of justice unless the jury was discharged. 58 The trial had just begun. The security guard gave evidence on the first day. There was little inconvenience in starting again. Further, the Crown case, as described during the debate on the discharge application, was a different case from that opened. Indeed, it appears that the change occurred opportunistically, once the security guard made his in-court identification, as the Crown recognised the advantages arising from it. The trial Judge said that he was confused. The Crown acknowledged error in his opening. It was most unsatisfactory. It was also unfair. The change by the Crown added to the risk of miscarriage and the need for a discharge. 59 The Crown, on this appeal, relied upon the proviso in the event of error. It is useful to consider Ground 2 and the course of the trial when dealing with the issue of whether the accused lost the chance of an acquittal fairly open to him. Ground 2: Inadequate directions on identification. 60 At the end of the evidence and before addresses, there was a discussion concerning directions to be given in the summing up. The discussion included the following exchange: (T 3: 7.11.07) "HIS HONOUR: Yes, I had in mind giving a special direction as to the weight that they could put on an in-court identification. Is there a standard wording for that in the bench book? CROWN PROSECUTOR: Your Honour, it doesn't happen often so we'll have to check that for your Honour as well. There certainly is standard -- HIS HONOUR: Presumably it will say something like it should be given extremely little weight? WILLIAMS: Yes –" 61 The bench book in fact said this, concerning an identification by a witness in court: "... a direction should be given at the time – and repeated, if appropriate, in the summing up – that such evidence is of no value to the identification issue (as the witness must inevitably point out the person who is on trial) and that the evidence is given only in order to complete the picture and to avoid any speculation as to why it was not given." 62 Counsel for Mr Aslett sought the warnings required by s 116 and s 165(1)(b) of the Evidence Act. The Crown then addressed. The Crown's address included these words, referring to identification from photographs (such as that attempted unsuccessfully by the security guard): (T 9: 8.11.07) "... Here we have and quite interesting because his Honour will warn you about the circumstances of the identification being made and what was the light like, what was the distance. Had a positive identification been made, based on the computer pictures at the police station, one of the warnings you would've been given was it's only a two dimensional computer picture, so be particularly careful because a two dimensional is different to a three dimensional. ..." 63 The Crown then dealt with the evidence of Mr Bozkent, the security guard. He concluded his address on this aspect with these words: (T 10) "... I've been through Mr Bozkent's evidence and I would say that that of itself would satisfy you beyond a reasonable doubt, that it was this accused who did the four offences which I'm about to touch upon." 64 That can only have been a reference to the in-court identification. Mr Bozkent had not identified Mr Aslett in the photo array. So a matter which the standard directions suggested by the bench book was "of no value to the identification issue" was put forward by the Crown as sufficient proof of identity beyond reasonable doubt. 65 Counsel for Mr Aslett then addressed. He drew attention to Mr Bozkent's failure to identify Mr Aslett when shown the photographs five weeks after the incident. He contrasted that with his ability eighteen months later, when confronted by the accused in the dock, to say: "Yes, that's him sitting in the dock" (T 20). 66 His Honour then summed up. The summing up included the following: (SU 16) "The Crown relies on the identification of the accused by Mr Bozkent while he was in the witness box. I need to give you a special direction in relation to identification evidence." 67 His Honour then gave what may be termed "general directions on identification", warning that it may be unreliable, such that special caution was required. He added that such a warning was given in every case where identification was disputed (SU 18). His Honour then said this in relation to the in-court identification of the accused: (SU 18) "In the context of the identification of this accused by Mr Bozkent in court however, you were asked to take into account the fact that he did not recognise him from photographs taken in the identification process only a short time after the offences. You can also take into account the fact that when an accused is sitting in the dock, as he was at the time of that identification, certain assumptions might be made on the part of the person identifying them, merely because he is sitting in the dock." 68 No objection was taken by counsel then appearing for the appellant. No request was made for a redirection. The Crown drew attention to Rule 4. 69 The obligation upon the trial Judge under s 116 of the Evidence Act is identified in these terms: " s 116 Directions to jury (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." 70 The section repeats, in an abbreviated form, the obligations identified by the High Court in Domican v The Queen (supra), where the Court said this: (at 561/2) (authorities omitted) "Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the 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." (emphasis added) 71 Whilst his Honour gave directions on the special need for caution generally, he did not, in my view, relate that need "to the circumstances of the case" (s 116(1)(b)). Specifically, he did not, with his authority as the judge, identify the weaknesses in the identification evidence (cf R v Akgul [2002] VSCA 222; (2002) 5 VR 537 at 543, para [25]). 72 Here, there were a number of weaknesses in the identification evidence. First, the security guard was identifying a stranger whom he had seen during a six minute interval as he sought entry to the hotel and then passed back and forth. No doubt he was one of many he dealt with that evening. 73 Secondly, within five weeks of the incident, the security guard was shown an array of twenty photographs. The array included a clear photograph of Mr Aslett (Exhibit S). He was not able to identify any person within that array. Then, after an elapse of eighteen months, the security guard said that he recognised Mr Aslett in court, when in the dock. There was the risk in such evidence of "the displacement effect" (cf R v Skaf [2004] NSWCCA 37 at para [80]). 74 Finally, and contrary to the submission made by the Crown in address, the in-court identification was of no value on the issue of identification. It was to be contrasted with an identification parade, which is the usual means by which identification evidence is introduced. In R v Adamson (unreported, NSWCCA, 26.11.92), Gleeson CJ said this, referring to identification parades: (at 3) "... in an ordinary identification parade, steps are taken to ensure that the suspect does not stand out from the group in which he is placed. The persons involved in the parade should so far as possible consist of persons who resemble the suspect in height, general appearance and position in life. ..." 75 In contrast, when a person is sitting in the dock on trial, he does stand out. Indeed, the circumstances conspire to compel the witness to identify the accused (Mason J in Alexander v The Queen (supra para [53])), and "strongly suggest the answer that is ultimately given" (Gleeson CJ in R v Adamson (supra para [74])). 76 In my view there was error. I would uphold Ground 2. 77 The Crown urged the application of the proviso. It described the case against the appellant as one of "overwhelming strength". I believe that significantly overstates the strength of the Crown case. The discovery by the complainant of the photo identity card in her purse was, unquestionably, important evidence, incriminating Mr Aslett. His explanation (that he regularly swapped clothing with his cousin) was thin. The issue nonetheless remained how the card came to be in the purse of the complainant. That issue was not dissimilar to the issue that arose in Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521, where the appellant's cap with his DNA was found at the scene of the robbery. In the context of that case, Gummow and Hayne JJ said this: (at 534/5) "44. On its face the DNA evidence appears overwhelming and the appellant's explanations for how a cap with his DNA came to be found at the scene of the robbery were thin. (He asserted that the robber must have planted the cap there and he offered some suggestions of who might have procured that.) But the apparent thinness of this explanation for the incriminating evidence of the cap may, we do not say must, have taken on a different appearance if his alibi witnesses had given evidence and were believed. 45. It may readily be accepted that the evidence called at the appellant's trial demonstrated, beyond reasonable doubt, that the cap found at the robbery scene was his cap. But a further question had to be decided. Was it the appellant who had taken the cap to and dropped it at the robbery scene? No one said the robber had worn the cap. Had someone else taken the cap there, whether in the overalls the robber wore or the bag the robber carried, and dropped the cap? That was what the appellant sought to put in issue with the alibi evidence, not whether the cap found was his. ..." (emphasis in original) 78 Here, the other evidence tending to identify the appellant was not overwhelming. The photo identity card incorporated a photograph taken five weeks before, which did not suggest long hair (Exhibit B). The security guard's description did not match Mr Aslett in all respects. He told the police, moreover, that the person he dealt with handed him a driver's licence (T 82). Whilst there are similarities between a driver's licence and a photo identity card, there are also differences. The security guard, as a person on the door of a hotel, was aware of these differences. He gave the following evidence, when shown the photo identity card (Exhibit B): (T 28: 5.11.07) "Q. If you could just look at exhibit B please? Are you able to recall if that's the identification you looked at? A. I actually remember a driver's licence. Q. If you could hand that back but that's not a driver's licence, is it? A. I know, that's right." 79 The CCTV footage did not greatly assist. No doubt the security guard checked the identity of the person he admitted to the hotel against the card he was shown. However, that does not establish that the card he was shown was a photo identity card as opposed to a driver's licence, and much less that the card he was shown was the photo identity card later found in the purse of the complainant. 80 I am not persuaded that a jury, on the evidence properly admitted, and acting reasonably and properly directed, would inevitably have convicted the appellant (Festa v The Queen (supra) per Hayne J at para [229]). It is not appropriate to apply the proviso. It is unnecessary to consider the application for leave to appeal against sentence. Orders. 81 I therefore propose the following orders: 1. Appeal allowed. 2. Convictions quashed and sentences set aside. 3. The appellant should have a new trial. 82 JOHNSON J: I agree with Kirby J. ********** 30/07/2009 - Allsop P referred to as Allsop J - Paragraph(s) [1] 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.