Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dia v Regina [2014] NSWCCA 9 Hearing dates: 11/02/2014 Decision date: 20 February 2014 Before: Hoeben CJ at CL at [1] Schmidt J at [72] Barr AJ at [73] Decision: Leave to appeal against conviction granted. Appeal dismissed. Catchwords: CRIMINAL LAW - conviction appeal - offences of entering dwelling house with intent to commit a serious indictable offence, robbery while armed and reckless wounding - key issue in trial identification - whether trial miscarried as a result of trial judge not discharging jury - evidence of a tattoo inadvertently coming before jury - whether impugned evidence seriously damaged defence case - discretionary exercise by trial judge - whether trial judge in special position of advantage - need for appellate court to decide whether risk of a substantial miscarriage of justice - need to consider whole of evidence and conduct of trial - effect of directions by a trial judge - whether verdict was unreasonable and not supported by the evidence - purported weakness of identification evidence - effect of intoxication of principal Crown witness - circumstances in which identification made - advantageous position of jury - grounds of appeal not made out. Legislation Cited: Crimes Act 1900 - s35(3), s97(1), s111(2) Criminal Appeal Act 1912 - s 5(1)(b) Cases Cited: Crofts v R [1996] HCA 22; 186 CLR 427 at 441-442 House v The King [1936] HCA 40; 55 CLR 499 Khazaal v R [2011] NSWCCA 129 M v The Queen [1994] HCA 63; 181 CLR 48 at 493 R v Glennon [1992] HCA 16; 173 CLR 592 SKA v R [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Jaafar Dia - Applicant Regina - Respondent Crown Representation: Counsel: Mr G Brady/Mr A Connell - Applicant Ms H Wilson SC - Respondent Crown Solicitors: Nyman Gibson Stewart - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2011/324650 Decision under appeal Date of Decision: 2012-10-16 00:00:00 Before: Charteris DCJ File Number(s): 2011/324650 Judgment 1HOEBEN CJ at CL: Appeal Pursuant to s5(1)(b) of the Criminal Appeal Act 1912 the applicant seeks leave to appeal against his conviction with respect to five offences of which he was found guilty by a jury. 2The applicant was called for trial on 9 October 2012 before Charteris DCJ and a jury of twelve at the District Court of NSW. He was arraigned on an indictment charging six counts, all of which related to a "home invasion" carried out on 26 September 2011 at residential premises at Padstow. 3The jury retired to consider its verdicts on 15 October 2012 and returned the following day with verdicts of guilty to counts 1 - 5 inclusive. Those counts were: Enter dwelling house with intent to commit a serious indictable offence (robbery) in circumstances of aggravation (in company), contrary to s111(2) Crimes Act 1900. Robbery whilst armed (of McCann) contrary to s97(1) Crimes Act 1900. Reckless wounding in company contrary to s35(3) Crimes Act 1900. Robbery whilst armed (of Dunston) contrary to s97(1) Crimes Act 1900. Robbery whilst armed (of Sheen) contrary to s97(1) Crimes Act 1900. 4A verdict of not guilty by direction of the trial judge was returned in relation to a sixth count which alleged a common assault upon a person whose attendance at trial as a witness was unable to be secured. 5On 3 April 2013 the applicant was sentenced to an aggregate penalty of imprisonment with a non-parole period of 3 years and 3 months, commencing 29 September 2012 and expiring 28 December 2015, with a balance of term of 3 years and 3 months expiring 28 March 2019. No application for leave to appeal against sentence has been made. 6The grounds upon which the applicant relies for his appeal against conviction are: Ground 1 - The trial miscarried as a result of the learned trial judge failing to discharge the jury. Ground 2 - The verdict was unreasonable and not supported by the evidence. Crown case at trial 7The Crown presented a joint indictment charging the applicant and a co-accused, Mohammad Fawaz, with the six offences. Both matters were heard together. The Crown case was that the applicant and co-accused were two of a group of young men who broke into a house at Padstow at 7 o'clock on the evening of Monday 26 September 2011, terrorised the occupants and robbed them of property. 8At the time of the offences, Jade McCann with her partner Robert Sheen and his brother Kevin Dunston, lived in the house and were at home. They were joined by Aaron Thornton, the brother of Jade McCann. Two other friends, Jake Wilson and John Tsakrios, came to the house as well. Robert Sheen and Jake Wilson left the house before the offences occurred. 9At about 7pm there was a knock at the door. Mr Tsakrios answered the door. The co-accused, Mohammad Fawaz, walked into the premises and pushed past Mr Tsakrios. About six or seven other males of Middle Eastern appearance entered behind the co-accused. It was the Crown case that the applicant was one of these males. 10Jade McCann recognised the first person who came in as the co-accused Fawaz. Fawaz had attended the same school as Mr Dunston and Mr Sheen and she had seen Fawaz with her group of friends. Fawaz had previously been to her house. Mr Thornton also recognised the first male, although he did not remember his name. 11Jade McCann described what followed as: "From then it was pretty much a blur, it happened so fast. Knives were pulled out as I said, a lot of yelling and screaming for us to give pot and money. Another gentleman went to grab my brother-in-law and Kevin and took him into his room. I'm not sure what happened there, I just remember having one gentleman over the top of my brother and I just screaming at us with a knife at us. I just, all I can remember is trying to pull my brother as close away as I could. He was very scared and they just kept yelling at us that they were going to stab us if we couldn't give them anything." (T.9.10.12 at p26.43) 12A number of the assailants had knives including the applicant. They punched Mr Dunston and took him into the bedroom. They were yelling "Give me your stuff, give me your weed". Mr Dunston's nose was broken. During the incident there was lots of pushing and shoving and yelling. Mr Thornton was stabbed in the leg although at the time he could not see who stabbed him. 13Lynette Sheen (Robert Sheen's mother), who lived at the back in a converted granny flat, came into the house to see what was going on because she could hear yelling and shouting. She saw several males with knives. As soon as she saw this Mrs Sheen ran out the door and down the driveway to the granny flat. She picked up her phone to dial triple 0. As she did two of the men came into her flat, both carrying knives. They pointed their knives at her. One of them told her to give him the phone and she threw the phone at him. He took her phone and then both males ran out pointing their knives back at her. 14The offenders searched through the main house. Ultimately they took a Navman and an iPhone 4 from Ms McCann. They also took an iPhone 3 from Mr Dunston. After the males left, Ms McCann called triple 0 and they all waited until the police arrived. Mr Thornton was taken to Bankstown Hospital where he had three stitches inserted into his left leg. 15Police interviewed Ms McCann on 26 September 2011. After the statement was completed, Detective Horvat asked Ms McCann if she was a member of Facebook and after receiving a positive response, the detective and Ms McCann did a Facebook search of the site of the co-accused Fawaz, using the detective's mobile phone. One of the images that was observed on the co-accused's Facebook site was a group of Middle Eastern people outside the Bankstown Railway Station. That image was downloaded and became Exhibit A. 16Ms McCann saw that picture some 30 to 45 minutes after the incident. When the picture was printed out, Ms McCann identified Mr Fawaz on it, signing and dating the photograph. The following day Ms McCann went onto the Facebook site of the co-accused Fawaz and went through his photos to see if she could identify any of the other faces from the night of the incident. 17When scrolling across the Facebook site, a profile came up of Ali Khawaja. Ms McCann then went to Ali Khawaja's Facebook page. Ms McCann only had limited access because she was not a 'friend' of Ali Khawaja. She saw a photograph of three men and immediately recognised the person who had stabbed her brother. The photograph was printed out and tendered. This became Exhibit B. Ali Khawaja was the Facebook name of the applicant. The person Ms McCann recognised as having stabbed her brother was the applicant. 18In cross-examination Ms McCann gave a description of the person who stabbed her brother, including that he was about 5 foot tall (although she was not good with heights) and had hair that was about a millimetre long. None of the other people in the house could recognise any assailant. 19On 26 September 2011 Robert Sheen went to the Bankstown Police Station because the police wanted to take a statement from him. While there he saw and spoke to the co-accused Fawaz. Fawaz told Robert Sheen that he had gone to the house and walked in and the rest of the people who were there pulled knives out. Mr Sheen pressed Mr Fawaz for the return of the items stolen. Mr Fawaz made a telephone call and then said to Mr Sheen that the boys could only get the iPhone 4 back. He told Mr Sheen that when he got the iPhone 4 back, he would give Mr Sheen a call. The next day the police arrested Mr Fawaz and they found in his house the iPhone 4 belonging to Ms McCann. 20Mr Fawaz participated in an electronically recorded interview. He said that he went to the house by himself to see Robert Sheen. He said he knocked on the door and all of a sudden four or five people came out of cars and as the door was opened and he walked in, those persons immediately followed him inside pulling out knives. He said that he did not know these persons and had not seen them before. He said he was scared and feared for his life. He went into one of the bedrooms to try to find a knife to defend himself but ultimately opened a window, jumped and "legged it" home. He told police that he had spoken to a person that he recognised from a description given to him by Kevin Dunston and arranged for the return of the iPhone 4. The applicant's defence case 21The applicant gave evidence that he knew Mr Fawaz before the night of the incident but he did not know him well. He had met him at a festival at Bankstown. He had met him where there was a large group of boys hanging out. There was a large group being photographed and he decided to jump in the photo. He just introduced himself to Fawaz through another mate. 22The applicant said that the next time he had any further contact with Mr Fawaz was at court the week before the trial. He agreed that he had a Facebook site in the name of Ali Khawaja. He said that when you went onto his Facebook page about 14 or so photos of him came up. 23The photograph of the large number of people of Middle Eastern origin standing outside Bankstown Station was not taken at the Bankstown Station. It was taken at Paul Keating Park. Someone had edited the photo and made it look like it was at the Bankstown Railway Station. He recognised most of the people in the photo, including Mr Fawaz. The applicant was the person in the front row, the third person from the left. That photo was not on his Facebook site. The 14 photos on his Facebook site could be seen in the public domain. You did not need to be his Facebook 'friend'. 24The applicant was 5 foot 6 in height. When the police arrested him, he received legal advice from his solicitor that he did not have to do a record of interview. He provided his DNA voluntarily to the police. He also offered to take part in an identification line-up. 25He denied that he went to the house on 26 September and terrorised the people in the house. He was not able to remember where he was on that night. Ground 1 - The trial miscarried as a result of the learned trial judge failing to discharge the jury. 26In order to understand the Ground of Appeal and submissions, it is necessary to provide further information by way of background. 27Although Mr Fawaz did not give evidence at trial, he had provided a record of interview to the police. That record of interview was videoed and the video was played to the jury. While the video was being shown, the jury had before it as an aide memoire a transcript of the contents of the interview. That transcript was removed when the showing of the video was completed. 28The following parts of that record of interview are relevant to this Ground of Appeal. These questions and answers were directed to Fawaz explaining how he came to have the iPhone 4 in his possession. "Q.424 Did you have possession of any of that property that I have mentioned tonight? A. Yeah iPhone. Q.425 All right. How did you get the iPhone? A. Um I later met up with one of the people that was there. Q.426 Um and where does this happen? A. The bloke one, one of them five four people five whatever. Q.427 Um -- A. I ended up knowing who he is one of, one of them. Q.428 All right. Can you tell me how this happened? A. Robert was um telling me ah, 'cause Robert was telling me when um, when he was inside actually, it was Kevin that was telling me, Kevin was telling me that um when someone got injured or something the guy showed, revealed his face and said "remember me" or something like that, that's what Kevin told me. Q.429 And when did Kevin tell you this? A. When I was at the cop shop outside. Q.430 All right. A. Yep. Q.431 And what did Kevin say? A. He goes that um when this bloke, injured my mate, Aaron. Q.432 Um A. ... He goes um the bloke took off his hat and hood and said "remember me, remember my face" or something like that. Q.433 All right. A. And then that's the bloke that I ended up finding out who he was. Q.434 How, how did you find out who he was? A. From Kevin, like, he described him for me. Q.435 All right. So ... A. His tatt and that. Q.436 All right. What did Kevin say about his tattoo? A. That it was a sword, he has a sword here (indicating lower right arm). Q.437 Um -- A. Yeah that's it. Q.438 And what did you say to Kevin? A. I'm like oh, but like, I was shocked to find out that it was him. Q.439 All right. And who was it? A. It was my mate. Q.440 What's his name? A. I can't, can't do it man. Q.441 But you do know who it was but you ... A. I do know who it was after it." 29It was common ground that the evidence of the record of interview given by Fawaz was admissible only against Fawaz. 30After the record of interview of Fawaz was played to the jury, the following evidence was given by Detective Horvat: "Q. You've given evidence about Ms McCann providing you with some information which led you to do some research on Facebook regarding a Mr Khawaja? A. Yeah. Q. You viewed various photographs on his website? A. Yes. Q. You also ascertained that was his Facebook name? A. Yes. Q. But his other name is Mr Dia? A. Yes. Q. When you were viewing these photographs did you notice whether he had any body markings that you could see on the photographs? A. Yes. One of the photographs he is wearing a short-sleeved T-shirt and he had a tattoo on the inside of his right forearm. Q. On the inside of his left forearm? A. Right forearm. Q. What was the tattoo of? A. A sword. COUNSEL FOR APPLICANT: I object to this. I need to be heard in the absence of the jury." (T.10.10.13, p101.12) 31A discussion then took place between counsel for the applicant and his Honour. It was common ground that Detective Horvat's answer "a sword" was barely audible. His Honour did not hear it clearly, nor did others at the bar table. The tape had to be played back twice before his Honour was satisfied as to exactly what was said. Despite that difficulty, this appeal proceeded on the basis that at least one of the jury might have heard the answer and if so, that was sufficient for the matter to be properly raised. 32It was during this discussion between counsel for the applicant and his Honour that counsel for the applicant asked for the jury to be discharged. His Honour refused that application. The following exchange took place between counsel for the applicant and his Honour: "HIS HONOUR: It was really the answer of the sword that causes you concern. COUNSEL: Yes, that's the poison, yes. HIS HONOUR: Well for these reasons I reject the application for a termination of this trial and the reasons are as follows. The evidence is admissible as to the answer given by the accused in his record of interview. He had said that there was a person who had a tattoo said to be of a sword on the right arm. The accused, Mr Khawaja,(as said) knew this person and that tattoo had been described to him by one of the victims, Mr Sheen, that had caused him to contact his friend, or "his mate" as he described him, which eventually led to Mr Khawaja recovering from a park in Bankstown the stolen iPhone. In my view the evidence is admissible in the case against Mr Khawaja and there is -- COUNSEL: Mr Fawaz. HIS HONOUR: I beg your pardon? COUNSEL: Mr Fawaz. HIS HONOUR: Fawaz, I'm sorry, did I say Khawaja? Mr Fawaz. There was no objection taken to the evidence by [counsel for Fawaz] at the time. [Counsel] for the Accused Dia objected to the evidence, the answer "a sword". Initially I had not heard the word "sword" but it has been replayed twice and the witness had uttered the word "sword" as [counsel for the applicant] was objecting and by concentrating on the replay of the tape the word "sword" was mentioned. [Counsel for the applicant] now seeks that I discharge the jury. He suggests it will adversely affect his client's case on identification. I do not agree with that submission. The evidence I will confine to be only admissible in the case against Mr Fawaz. Secondly, to state the obvious, there are many persons who have tattoos in the community, many of different objects on different areas of their bodies. I do not consider that the admission of this evidence would adversely affect the evidence in respect of the accused Mr Dia. ... COUNSEL: Is it the case that your Honour is going to allow the evidence of the sword? HIS HONOUR: Well there is no objection yet by [counsel for Fawaz]. What's your position? You haven't objected to the evidence at all. COUNSEL FOR FAWAZ: No, there is no basis for me to object I don't see your Honour. HIS HONOUR: Yes very well, yes I will allow it. I don't know whether the - I don't think this issue would be magnified in submissions anyway but the evidence is - I think I raised the issue about a witness, giving rather than the best evidence giving evidence that I saw upon a forearm what seemed to me to be a sword. There is no other better evidence. It's not objected to by the accused against whom it's led. I intend to allow it but I don't see and it's my judgment I can't see that adversely affects your client's case." (T.10.10.13, p106.43-108.4) 33In the presence of the jury, the trial judge then gave the following direction: "HIS HONOUR: Members of the jury, just before I sent you out there was evidence from the witness that she had accessed the Facebook site of Mr Khawaja. As I understand it there's no issue in this case that that's the Facebook site of Mr Dia. The witness said that she observed a photograph. In her opinion there was a tattoo on the right forearm. The evidence about tattoo in relation to Mr Dia is not led against Mr Dia by the prosecution, it's only led in the case against Mr Fawaz because Mr Fawaz made some comments about a person having a tattoo. So when you come to consider your verdict you will just take that evidence in determining the issues before you as regards the accused Mr Fawaz and not in relation to Mr Dia. In the same way that Mr Fawaz's recorded interview is only admissible against him the evidence that was led from the witness about a tattoo, as she thought it was, is only admissible in the case against Mr Fawaz. I hope you understand that. Yes thank you." (T.10.10.12, p109.1) 34It was common ground in the appeal that thereafter no mention was made by any witness, counsel or his Honour of any tattoo and in particular of the applicant having a tattoo anywhere on his body. In fact the only time there was a reference to the record of interview of Mr Fawaz was by his Honour in his summing up where his Honour said: "The record of interview that Mr Fawaz engaged in - the interview that you saw played back to you - is only tendered against Mr Fawaz. You cannot use anything that is said in that record of interview in deciding the case against Mr Dia. It is exclusively led before you in the case against Mr Fawaz and it is important that you understand that you can only utilise it in his case. When you come to consider the case of Mr Dia you ignore the recorded interview of Mr Fawaz. Similarly a conversation was led from a witness Robert Sheen; you might recall he gave evidence about having a conversation with Mr Fawaz in the vicinity of the Bankstown police station. It will be a matter for you to determine what were the terms of that conversation but what Mr Fawaz said to Mr Sheen, if anything of importance, is only admissible in the case against Mr Fawaz. It is not admissible in the case against Mr Dia." (SU 11.1) 35The applicant submitted that the admission of the evidence by Detective Horvat about the applicant having a tattoo on his right forearm was highly damaging to his defence that Ms McCann had wrongly identified him. This was because when taken with the ERISP of Mr Fawaz, the overwhelming inference was that the person that Mr Fawaz said was identified by Kevin Dunston as having been present at the time of the offence and who had a tattoo of a sword on his lower right forearm, was Mr Dia. The applicant submitted that unless the evidence of Detective Horvat as to the tattoo was intended to have that effect, it was not relevant and therefore not admissible. 36The applicant submitted that on the assumption that this particular evidence of Mr Fawaz in his record of interview was accepted by the jury, the evidence of the sword tattoo by Detective Horvat was the only evidence which might corroborate the identification evidence of Ms McCann. Without that evidence the entirety of the Crown's case against the applicant depended upon the jury accepting Ms McCann and on nothing else. 37In making that submission the applicant accepted that when Kevin Dunston gave evidence in the proceedings he did not say anything about seeing any person with a tattoo and denied having any conversation with Mr Fawaz in or outside the police station (T.10.10.13, p171). 38The applicant accepted that in cases where the possible discharge of the jury is an issue, the opinion and appreciation of the trial judge of the atmosphere of the trial is given appropriate weight by an appellate court. He submitted that in this case the trial judge's opinion should not be given such weight because it was apparent from his Honour's reasons for rejecting the discharge application, that his Honour did not appreciate, or at least fully appreciate, the potential prejudicial effect on the applicant's case of the evidence as to the sword tattoo being heard by the jury. 39The applicant invited the Court to draw that inference because of the focus by his Honour on the admissibility of the evidence, as distinct from its prejudicial effect. 40The applicant submitted that this was one of those situations where it was not possible for his Honour to fashion a direction to the jury which would effectively eradicate from their minds this highly prejudicial evidence. In that regard, the applicant relied upon the observations of the majority of the High Court in Crofts v R [1996] HCA 22; 186 CLR 427 at 441-442. 41The applicant summarised his submissions as follows: "50 In the context of the appellant's case the evidence led against the co-accused that was inadmissible against the appellant contained material and a reasoning process that was highly prejudicial to the appellant. The evidence was led reasonably early in the Crown case. Ms McCann had given evidence and Constable Horvat was the second witness and still in evidence in chief. ... 51 In the context of the issues in the appellant's case, the Crown case against the appellant was made "immeasurably stronger" as a result of that prejudicial material. The failure to discharge the jury led to a miscarriage of justice." Consideration 42As the applicant appreciated, the leading case in this area is Crofts. That case concerned allegations of sexual assault on a child by a family friend. In pre-trial rulings, the trial judge directed that no mention be made of other uncharged sexual assaults on the victim by the same offender. The offender was convicted of five counts but acquitted of eight others. During the course of the trial, evidence was led by the Prosecution of other uncharged sexual offences as follows: "Q. Did that happen again? It happened many times but I never had the opportunity to do anything about it." It was in the context of a refusal to discharge the jury in those circumstances that the matter came before the High Court. 43The majority (Toohey, Gaudron, Gummow and Kirby JJ) made the following observations at p 440-442: "Obviously, the appellant was in a difficult position so far as the warning was concerned. Any specific reference to the evidence, and repetition of it, would simply underline its importance and reinforce the possible prejudice. But any generalised statement, such as the judge suggested, would run the risk of missing the target of prejudice which it was the object of the direction to cure. ... No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that 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? ... There are two other considerations which do not appear to have been taken into account, or adequately taken into account, in the Court of Criminal Appeal's decision on this point. The first is that it was specially difficult in this case for the judge to fashion a direction to the jury which would help them to eradicate from their minds the highly prejudicial statement of the complainant. It is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts. But in the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account. The difficulty in this case was that the judge could not, and did not, refer specifically to the evidence which was so prejudicial because to do so would have reinforced the prejudice. In some cases it is possible for the judge to refer to the inadmissible evidence and to explain why it must be excluded. That course was not open in this case and for that reason was not followed. ... With all respect to the trial judge and the Court of Criminal Appeal, a proper consideration of the factors relevant to weighing the prejudice to the accused, the danger to the fairness of the trial and the risk that such danger could not be eradicated by instruction to the jury necessitated, in this case, an order of discharge. Otherwise, the Court would sanction a real risk that the appellant might have been convicted on the basis of the prejudicial evidence about sexual misconduct "many times". This was not charged in the counts of the presentment. It was of a different character to the counts on which the appellant was acquitted. And it was produced by questioning which appears to have been deliberate and fraught with the danger of producing the result that predicably ensued." 44It should be noted that it was not suggested in these proceedings that the impugned evidence from Detective Horvat was deliberately led with the intention of placing inadmissible evidence before the jury. The approach followed by both sides was that this evidence should be treated on the basis that it "inadvertently" came before the jury. 45While it is true that his Honour's reasons did not focus on the prejudicial effect of the evidence on the applicant's case, his advantageous position as trial judge still needs to be given due weight. Mr Fawaz did not give evidence. The videoed statement was the only evidence of his version of events. It comprised 518 questions and answers which were set out on 46 pages of transcript. Except for the evidence of the tattoo, the balance of the evidence, as his Honour appreciated, was clearly relevant to the case against Mr Fawaz in that it showed him being in contact with at least one person involved in the offences whom he characterised as a "mate", having told police that he did not know any of the offenders who followed him into the house and that he had 'never seen them in my life'. Having seen the record of interview and the evidence from Detective Horvat, his Honour was in the best position to assess the likelihood of those pieces of evidence being linked together so as to prejudice the applicant. This is so when the particular evidence in the record of interview was somewhat obscure and formed but a small part of a much larger body of evidence. 46While I agree that due to the reasons given by his Honour for not discharging the jury, his advantageous position is not a decisive consideration, it cannot be entirely disregarded. In that regard, the observation of McClellan CJ at CL in Khazaal v R [2011] NSWCCA 129 (with whom McCallum J agreed) is pertinent: "49 ... If the assumption of the common law that jurors understand and follow the judge's instruction is to be more than hollow rhetoric it is important that appellate courts pay appropriate respect to the discretion of the trial judge who is in a far superior position to the appellate court to appreciate the atmosphere of the trial and determine whether appropriate instruction will ensure that the trial is fair." 47There is an important distinction between this matter and the circumstances considered in Crofts because in this case the trial judge was able to be more specific in directing the jury to ignore the evidence about which complaint was made. His Honour was able to give a specific direction directed to the tattoo. Following the resumption of the trial, his Honour said: "The evidence about a tattoo in relation to Mr Dia is not led against Mr Dia by the prosecution it is only led in the case against Mr Fawaz because Fawaz made some comments about a person having a tattoo. So when you come to consider your verdict, you will just take that evidence in determining the issues before you as regards the accused Mr Fawaz and not in relation to Mr Dia." That direction was specific and clear and did not in the circumstances, contrary to the applicant's submission on appeal, reinforce the impermissible chain of reasoning in relation to the appellant's identity, which the jury was not to engage in by reference to the evidence of the tattoo. 48The function of this Court is not only to assess his Honour's exercise of discretion in accordance with House v The King [1936] HCA 40; 55 CLR 499 principles but it must also decide for itself whether the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. Insofar as House v The King is concerned, I am not persuaded that his Honour acted upon a wrong principle or took into account some extraneous consideration or failed to take into account a relevant consideration or mistook the facts. 49Nor am I satisfied that the circumstances of this case occasioned the risk of a substantial miscarriage of justice. Apart from his Honour's specific direction upon resumption of the trial, no mention was thereafter made of a tattoo in the trial. As already indicated, the link between the record of interview of Mr Fawaz and the impugned evidence while present, was not particularly clear. The direction by his Honour to the jury that they could not take the tattoo into account in the case against Mr Dia was clear and explicit. Moreover, on five occasions his Honour in the clearest of terms directed the jury that when considering the Crown case against Mr Dia it was not to take into account what Mr Fawaz told the police (T10.10.13, p92.14, T10.10.13, p109.9, SU 8.6, SU 9.1, SU 28.2). There was nothing to suggest that the jury did not give full force and effect to these strong directions given by his Honour. 50The assumption that jurors understand and comply with directions of the trial judge has been emphasised on numerous occasions by this and other superior courts (R v Glennon [1992] HCA 16; 173 CLR 592 at 603). In accordance with his Honour's directions, the only evidence relevant to the relationship between the applicant and Mr Fawaz which was left to the jury when it considered its verdicts was that of the applicant that he had been introduced to Mr Fawaz on only one occasion and had simply jumped into a group of men who were being photographed. His evidence was that he and Mr Fawaz were most definitely not "mates". 51It follows that I am satisfied from my own perusal of the evidence that the refusal to discharge the jury did not occasion a risk of a substantial miscarriage of justice. Ground of Appeal 1 has not been made out. Ground 2 - The verdict was unreasonable and not supported by the evidence. 52The applicant submitted that the identification evidence led by the Crown was so flawed as to be incapable of sustaining the verdicts returned by the jury. This Court was invited to assess the identification evidence in accordance with the test in M v The Queen [1994] HCA 63; 181 CLR 48 at 493: "...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." 53In support of this ground, the applicant identified what he described as a number of "significant defects in the identification evidence of Ms McCann". For the purposes of this Ground of Appeal, the applicant accepted as did the Crown at trial, that the Crown's case against him depended entirely upon an acceptance by the jury of the identification evidence of Ms McCann. He submitted that if that evidence was unreliable, the Crown case against him must fail. 54The particular "defects" relied upon by the applicant were that Ms McCann had been smoking marijuana before the offences occurred and that the marijuana "got me stoned". It followed that her observations were made whilst she was under the influence of marijuana. The applicant also relied upon the fact that her observations were made in traumatic circumstances. 55Another "defect" upon which the applicant relied was the circumstances in which Ms McCann came to identify him. He drew the Court's attention to the following matters. Ms McCann had failed to identify him on the night of the offences, despite the fact that Exhibit A made it clear that she had seen his photograph that night. On the following day, she was scrolling through the Facebook entries of Mr Fawaz with the specific intent "to see if I could identify any of the other faces from the night". In other words, she had an expectation that one or more of the friends of Mr Fawaz, whose images appeared on his Facebook, would be among the persons who committed the offences. The applicant also submitted that there was the potential for a displacement effect in that Ms McCann had already seen a photograph of him on the night of the offences (i.e. Exhibit A). 56The applicant relied upon what he said were two obvious errors in Ms McCann's description of him. He was 5 foot 6 inches in height not 5 foot and a photograph of him taken 15 days after the offences showed hair significantly longer than the description of 1 millimetre given by Ms McCann. 57The applicant submitted that since that was the totality of the identification evidence against him, it could not be said that the jury had any advantage over this Court in assessing its probative value. The applicant submitted that evidence of such poor quality would of necessity leave this Court with a reasonable doubt, being a doubt which the jury should also have had. The applicant submitted that the issue was not whether Ms McCann was an honest witness, but whether she was a reliable witness. Consideration 58Ground of Appeal 2 should be rejected on a number of bases. 59While the demeanour of a witness is not decisive, the jury were in a far better position to assess the evidence of Ms McCann than is this Court. This is particularly so since all of the matters raised by the applicant as "defects" in her evidence were vigorously put to her in cross-examination and dealt with by her. The jury had the opportunity which this Court does not, of assessing the responses of Ms McCann whilst under pressure in a stressful adversarial context. 60Moreover, the potential dangers associated with identification evidence generally and of the evidence of Ms McCann in particular, were clearly explained to the jury by the trial judge on a number of occasions in his summing up (SU 14.6, 15.4, 18.2, 21.1, 21.8, 22.6, 23.4, 23.8). Each of the purported "defects" identified by the applicant was raised at the trial, both in cross-examination and in submissions to the jury. They were all matters that the jury was readily capable of assessing. 61Despite the advantages of the jury, it is still necessary for this Court to examine the evidence for itself and form its own opinion as to the adequacy of the evidence (SKA v R [2011] HCA 13; 243 CLR 400 at 405-406 [11] and [13]). 62Ms McCann acknowledged in chief and in cross-examination that she had consumed marijuana. While she did not advise the investigating police officer of that fact, she did tell the triple 0 operator. Although Ms McCann acknowledged being "stoned" as a result of her consumption of marijuana, what she meant by that expression was not explored. 63There was, however, other evidence which indicated that although Ms McCann might have been affected by her consumption of marijuana, that affectation did not adversely affect her powers of observation. The record of her communication with the triple 0 operator did not indicate any inability on her part to convey information clearly and concisely. Similarly, when she was interviewed by the investigating police officers on the night of the offences, neither officer assessed that she was under the influence of any substance or was otherwise unable to provide a clear statement as to what had occurred. To the contrary Detective Horvat's evidence was that Ms McCann did not appear to be affected by any substance. The jury not only had the opportunity of observing Ms McCann give her evidence, but they also were able to listen to 12 minutes of her conversation with the triple 0 operator. 64In tandem with the issue of intoxication, the applicant suggested that the traumatic circumstances of the offences would also have had an adverse impact on her ability to make accurate observations. While it is open to the applicant to raise that issue, there was no evidence that Ms McCann was so affected. There was no suggestion by the investigating police officers that she was unable to clearly convey information to them. All that can be said is that while trauma and distress may adversely affect the powers of observation of some people, there is no evidence that it had that effect on Ms McCann. 65There is little substance in the criticism of Ms McCann's description of the applicant. When giving evidence as to his height, she protested on a number of occasions that she was not "good with her centimetres" or with inches, or indeed with "maths". Her estimate of the applicant's height at 5 foot was significantly qualified. What Ms McCann did observe was that the applicant was short in stature. In that respect, the observation was accurate. The submission as to the length of his hair goes nowhere because there was no evidence as to the rate of growth of his hair. Clearly the jury saw no incongruity in the proposition that in fifteen days the applicant's hair progressed from a short crew cut length to a close cropped style, as shown in Exhibit 1. 66The criticism of the circumstances in which Ms McCann made her identification of the applicant while available to be raised, is not decisive. The images viewed by Ms McCann on the night of the offences came from the Detective's phone. They were downloaded from that phone. In her evidence, the Detective described them as "grainy" and said that she would have had difficulty in identifying the applicant from such images (T.10.10.13, p124.12). Moreover, Ms McCann was not looking at those images with the intent of identifying other persons involved in the offences but to confirm her identification of Mr Fawaz. 67It is clear that on the day following the offences, Ms McCann's intent when examining the various Facebook sites was different. She freely accepted that she did so in order to "identify" if she could, any of the other persons who had participated in the offences on the night. When doing so she was able to identify the applicant. There are obvious dangers associated with any identification from a photograph and there were some particular dangers associated with this mode of identification. These matters were not only put to Ms McCann in cross-examination but clear warnings as to the reliability of the identification were given by his Honour to the jury. 68While there are dangers in such a process of identification, it is also a method which is acceptable and evidence concerning such identification is admissible. The process of identification undertaken by Ms McCann was analogous with her attending a police station and examining a photographic array or going to a police station to view a line-up. 69Finally, the risk that the so called "displacement effect" might have influenced Ms McCann's identification of the applicant on this occasion is significantly reduced when regard is had to the fact that on the night of the offences, the intention of Ms McCann in viewing the Facebook images was to confirm the identification of Mr Fawaz, not to identify other offenders. 70It follows from my examination of the evidence that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt as to the identification of the applicant by Ms McCann as one of the offenders and therefore that he was guilty. This ground of appeal has not been made out. 71The order which I propose is that leave to appeal be granted, but that the appeal be dismissed. 72SCHMIDT J: I agree with Hoeben CJ at CL. 73BARR AJ: I agree with Hoeben CJ at CL. ********** 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. Decision last updated: 20 February 2014