FEDERAL COURT OF AUSTRALIA

Jamal v The Queen [2000] FCA 1195

CRIMINAL LAW – armed robbery – evidence – identification – dock identification of appellant by eye-witnesses – whether primary judge erred in permitting evidence of dock identification to be led in circumstances where evidence of previous out-of-court  identification admissible – whether conviction unsafe and unsatisfactory – effect of circumstantial evidence pointing to appellant as offender – the availability of the principles governing the “proviso” in the Federal Court.

Evidence Act 1995 (Cth) ss 114, 115, 137

Davies & Cody v R (1937) 57 CLR 170 at 182 referred to

Alexander v R (1981) 145 CLR 395 at 399-400, 409, 410, 427 referred to

R v Burchielli [1981] VR 611 at 621 referred to

Gbric v Pitkethly (1992) 38 FCR 95 referred to

R v Britten (1988) 51 SASR 567 at 572 considered

R v Gorham (1997) 68 SASR 505 at 508 referred to

R v Saxon [1998] 1 VR 503 at 513 referred to

R v Demeter (1995) 77 A Crim R 462 distinguished

R v Clark (1996) 91 A Crim R 46 distinguished

R v Clune [1982] VR 1 at 7-8 referred to

R v Carusi (1997) 92 A Crim R 52 at 55 referred to

Domican v R (1992) 173 CLR 555 at 561-2 referred to

M v R (1994) 181 CLR 487 referred to

Stokes v R (1960) 105 CLR 279 at 284-5 referred to

Duff v R (1979) 28 ALR 663 at 673-4 referred to

Eastman v R (1997) 72 FCR 190 at 194-5 referred to

Conway v R (2000) 172 ALR 185 at 240-1 referred to

Wilde v R (1988) 164 CLR 365 referred to

Glennon v R (1994) 179 CLR 1 referred to

TOREK HASSAN JAMAL v THE QUEEN

A 30 of 2000

BURCHETT, WEINBERG & KENNY JJ

30 AUGUST 2000

SYDNEY (HEARD IN CANBERRA)

On Appeal from the Supreme Court of the Australian Capital Territory

THE COURT ORDERS THAT:

The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On Appeal from the Supreme Court of the Australian Capital Territory

REASONS FOR JUDGMENT

1                     On 14 April 2000 the appellant, Mr Torek Hassan Jamal, was convicted in the Supreme Court of the Australian Capital Territory of one count of armed robbery.  He was sentenced by Crispin J to be imprisoned for a period of twelve years with a non-parole period of seven years and six months. 

2                     By notice of appeal filed on 2 May 2000 the appellant appeals against his conviction on two grounds:

1.                  His Honour erred in admitting into evidence the in-court identification of the appellant. 

2.                  The conviction was unsafe and unsatisfactory.

Background

3                     The Crown case was that on 21 October 1998 the appellant and his girlfriend, Ms Sarah Louise Carpenter, stole a motor vehicle and drove to the Colonial State Bank (“the bank”) in Fyshwick.  They arrived at about 3.40 pm, at which time there were no customers in the bank.  They entered the bank and for several minutes terrorised four staff members who were working there.  The appellant, who was armed with a gun, demanded money but was told by the bank’s manager, Mr Nunziante Losanno, that there was no cash available.  The appellant then pointed a gun in the general direction of Mr Losanno and said:

“This is to show you that I am not fucking joking”.

4                     At that moment the gun discharged, but no one was injured.  The appellant then instructed a teller, Mrs Rhonda Meacham, to open the Teller’s Cash Dispenser, an automatic cash dispensing facility which was operated by computer.  When Mrs Meacham told him she was unable to access the cash in the Teller’s Cash Dispenser he said to her:

“Open the fucking tin or I’ll count to three and I’ll shoot you”. 

5                     The appellant began to count and Mrs Meacham dropped to her knees, and “fiddled with the combination”.  She finally said:

“You open it, I can’t open anything”. 

6                     Mrs Meacham then threw her keys in the direction of Ms Carpenter.  The appellant told Ms Carpenter to “jump the counter” and to open the coin drawer above the Teller’s Cash Dispenser.  She did so, taking $287.80 – all in coins.  The pair then fled.

7                     The robbery was filmed on a video camera installed within the bank which was on time delay.  After the robbers left the bank Mrs Meacham filled out a Bandit Description Form.  She described the male robber as being 30 years of age, Caucasian, five foot nine inches tall, with a slight build, swarthy complexion, dark hair and stubble on his face.  None of the other bank staff completed such a form. 

The video photoboard identification

8                     On 30 October 1998 Mr Losanno and Mrs Meacham both attended at the Weston Police Complex for the purpose of undertaking an identification procedure known as a video photoboard identification.  There was evidence that this procedure involves the use of a television screen on which a series of photographic images of various individuals are displayed.  The identifying witness is asked whether any of the individuals whose images are shown on the screen is the offender.  Both Mr Losanno and Mrs Meacham were told prior to viewing the video photoboard that they should not assume that any of the persons whose photos they were about to be shown was suspected of involvement in the robbery. 

9                     Mr Losanno was the first to view the photos.  He picked out as the male robber, from among twelve photos, number eight, which was a photo of the appellant. In relation to that photo he was asked by the police officer responsible for conducting the identification procedure:

“So, on a percentage, what would you judge the person that you saw on the twenty first of October, 1998 at the bank compared to this person that you’re looking at now?”

10                  Mr Losanno replied:

“Oh, 70 percent, 75 percent”.

11                  Mrs Meacham was then invited to view the photographic images.  She was much less certain in her identification than Mr Losanno had been.  When she first saw a photo of the appellant (which, in her case, was number five) she said:

“That has some sort of … I don’t know the eyes or something.  That one has a general look.”

12                  Subsequently, after she had seen all twelve of the photos, she observed that there were two “with similarities”.  She asked to see number five again and commented:

“Number 5 has a look”.

13                  Mrs Meacham was then asked:

“So, out of the twelve photo images that you’ve seen, which is the one that you say has the likeness to the person that you saw on the twenty first of October, 1998?”

14                  She replied:

“Number five has a look.  I can’t describe it better than that.  I didn’t think the offender had, um, spots on his face.  I don’t know.  That’s the general shape of his face.  There is a similarity in the face shape there.  I – my impression was that it was a thin, longish face.”

15                  Shortly thereafter Mrs Meacham described photographs number five, eleven and twelve as all bearing a resemblance to the male robber.  She asked for these three photos to be screened again.  She was then asked, for the third time, what she could say regarding “the likeness to the person” that she saw on 21 October 1998 to any of the photos which had been screened.  She replied:

“Five, I think.”

16                  Mrs Meacham then signed a printout of photographic image five as being an authentic depiction of the person whom she had identified.

The identification evidence led at the trial

17                  At the commencement of the trial, and prior to Mrs Meacham or Mr Losanno being called to give evidence, objection was taken on behalf of the appellant to any evidence of identification being led by the Crown.  The learned trial judge heard evidence on the voir dire from both these witnesses. 

18                  It was submitted that neither Mrs Meacham nor Mr Losanno should be permitted to make an in-court, or dock, identification of the appellant.  The learned trial judge’s attention was drawn to s 114 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which provides:

114.  (1) In this section:

“visual identification evidence” means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.

  (2)     Visual identification evidence adduced by the prosecutor is not admissible unless:

(a)          an identification parade that included the defendant was held before the identification was made; or

(b)          it would not have been reasonable to have held such a parade; or

(c)          the defendant refused to take part in such a parade;

and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

  (3)     Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:

(a)          the kind of offence, and the gravity of the offence, concerned; and

(b)          the importance of the evidence; and

(c)          the practicality of holding an identification parade having regard, among other things:

(i)            if the defendant failed to cooperate in the conduct of the parade - to the manner and extent of, and the reason (if any) for, the failure; and

(ii)          in any case - to whether the identification was made at or about the time of the commission of the offence; and

(d)        the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.

  (4)     It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held.

  (5)     If:

(a)          the defendant refused to take part in an identification parade unless a lawyer acting for the defendant, or another person chosen by the defendant, was present while it was being held; and

(b)          there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such a lawyer or person to be present;

it is presumed that it would not have been reasonable to have held an identification parade at that time.

   (6)    In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.”

19                  It was not suggested before his Honour that either Mrs Meacham or Mr Losanno had been influenced in any way, whether intentionally or not, to identify the appellant as the male robber.  It was submitted by the appellant that the video photoboard identification procedure which had been followed did not constitute an “identification parade” within the meaning of that expression in s 114(2).  It was further submitted that the Crown had not demonstrated that it would not have been reasonable to have held such a parade.  There was evidence that by 30 October 1998, when Mrs Meacham and Mr Losanno attended at the Weston Police Complex, the appellant had already been in custody for several days in New South Wales in relation to other matters.  It appears that his parole had already been revoked by that date.  The learned trial judge concluded that the appellant’s incarceration in a high security prison in New South Wales meant that it would not have been reasonable for the Australian Federal Police to have held an identification parade that included him on that date.

20                  His Honour’s attention was also drawn to s 115 of the Evidence Act which deals with the admissibility of what is described as “picture identification evidence”.  Subsection 115(2) provides that such evidence is not admissible if the pictures examined suggest that they are pictures of persons in police custody.  Subsection (3) also provides that such evidence is not admissible if, at the time when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the crime. Subsection (5) provides that subsection (3) does not apply if it would not have been reasonable to have held an identification parade that included the defendant.  His Honour held that there was nothing in s 115 which rendered the evidence of the out-of-court identifications of Mrs Meacham and Mr Losanno inadmissible.  There can be no doubt that his Honour’s ruling was correct.  It was not the subject of any challenge in this Court.

21                  Before his Honour it was submitted that both the out-of-court and in-court identifications of Mrs Meacham and Mr Losanno ought to be excluded, in the exercise of his Honour’s discretion, pursuant to s 137 of the Evidence Act.   That section provides:

“137.   In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

22                  His Honour rejected the submission that the evidence of identification should be excluded in the exercise of his discretion.  He said in the absence of the jury:

“The real thrust of the challenge to the evidence was ultimately on a discretionary basis.  It was put that the probative value of the evidence was slight, having regard to the equivocation and uncertainty reflected by each witness in relation to the photographs and to the risk that their evidence of identifying the accused by seeing him in Court may have been tainted by their exposure to the photographs and their respective involvement in the curial processes that followed. 

For present purposes I think it is unnecessary to reiterate what has been said in a number of previous authorities.  Courts have long recognised the dangers of in-court identification, especially when made by people who have not previously been familiar with the person so identified.  The dangers of evidence – the fact, however, that it may be dangerous for a jury to convict on evidence of that kind alone does not justify the conclusion that such evidence is inadmissible, nor even that it should in all cases be excluded.  In each case it is necessary to consider the weight of the evidence having regard to the circumstances – to the whole of the circumstances, including the opportunity for observation by each witness, the apparent reliability of each witness, the time that has elapsed between the time of the initial observation and the time of the identification, and no doubt an abundance of other circumstances. 

In the present case it is also significant I think that there will be other evidence of identification.  This is not a case likely to depend simply upon the evidence of a single witness providing an in-court identification.  The evidence as I have indicated is prima facie admissible … I am not satisfied that this is a case in which the evidence should properly be excluded under section 137 of the Crimes Act 1995 [sic].  In particular I am not satisfied that its probative value is outweighed by the danger of unfair prejudice to the defendant. 

I must say I found both Mr Losanno and Miss Meacham to be impressive witnesses who were confident of the identification which they made in Court.  I formed the view that their evidence was of significant probative value, although of course it would be necessary for a jury to take into account the warnings about identification evidence which should properly be given in a case of this sort.  On the other hand, it would be open to the jury to consider that evidence in the context of other evidence in the case.  For these reasons … I propose admitting the evidence.”

23                  After his Honour ruled that the evidence of identification, both at the Weston Police Complex, and in court, was admissible, the jury were recalled and Mrs Meacham gave evidence.  She testified that she could see the face of the male robber throughout the entire time that he was in the bank.  She described him as having had an olive complexion, a thin bridged nose, large eyes and dark hair that was collar length.  She said that he was five foot eight inches tall with a slim build.  She described him as having had dark stubble facial hair.  She said he was wearing a hooded jacket with a cap, or something underneath the hood and that he had a gun in his right hand.

24                  Mrs Meacham was then asked the following questions by the learned prosecutor:

“On 4 August last year did you attend at the ACT Magistrates Court? – Yes, I did.

Did you give evidence in respect of the matter now before this Court at committal? – I did.

When you were at Court did you see anybody that you recognised? – Yes I did.

Who did you see? – The offender, the armed robber, from 21 October. 

Where was he when you saw him? – He was in the courtroom, Yes.

Have you seen him since that date? – I have.

Where? – I see him today sitting just there.

The witness indicates the accused for the record.”

25                  Under cross-examination Mrs Meacham conceded that when she identified the appellant as the male robber at the committal proceeding, it had been “quite obvious” that he was the man who had been charged with the armed robbery.  It was put to her that she might be mistaken in her identification, but she denied this, saying that there was no reasonable possibility of error.  She said that she was “quite positive” that the appellant was the male robber.  She said that this had been her belief from the time she first saw him at the committal hearing. 

26                  Mr Losanno described the male robber as having been five foot ten inches tall, with a brown sort of olive skin, hook nose, thin lips and an oval face.  He said that the male robber’s eyes had appeared to him, at the time of the robbery, to be blue.  He said the male robber was wearing a cap and green jacket with a hood pulled over the top, and that he had a bit of stubble on his face.  He said that he had a good opportunity to view him throughout the whole time that the robbery had taken place. 

27                  Mr Losanno was asked the following questions by the learned prosecutor immediately after the videotape of the photoboard identification was shown to the jury:

“Now, you’re asked this question, question 14 … “So on a percentage what would you just [sic] the person that you saw on 21 October 1998 at the bank, compared to this person that you’re looking at now” and your response is recorded as “70 percent, 75 percent”.  What did you mean by that? – As I – I explained that earlier, when I went to this ID thing, I didn’t know what to expect.  I sort of expected a two way mirror with people holding numbers and they turned to the side.  Your Honour probably thinks I watch too much television, but when I got to the screen and it was just the face shots and just the whole process was pretty daunting.  I believe that’s without – the man that I saw in the branch had a body, arms, a voice and I saw all of those and not just his face and I believe that’s as sure as you could be from a photo of that type. 

You’ve indicated something already in your evidence, but I’ll ask you did you give evidence at a Committal Proceeding involving these particular matters? – Yes, sir, I did.

Did you see somebody there that you recognised? – Yes, sir, I did.

Who was that? – That was the bandit that came into the branch and threatened my life and that of my colleagues.

And is that the same person that you pointed out here today? – Yes it is …

HIS HONOUR:  For the purpose of the record I think it should be indicated that it was the accused.

MR ARCHER:  And with what degree of certainty do you express that? - 100 percent.”

The other evidence led in support of the Crown case

28                  There was a body of other evidence, some of it direct, but much of it circumstantial, led by the Crown in support of its case.  In the early hours of 20 October 1998, the day before the robbery, the appellant was intercepted by police whilst driving a Nissan 300ZX motor vehicle registered VIN 668, and charged with speeding.  When asked for identification, he produced an ACT learner driver’s permit in the name of Michael Anselmo.  He was then charged with driving as an unaccompanied learner driver.  He was told by police not to continue driving.  He told police that he would make a telephone call to arrange for the collection of the vehicle.  He was then collected by Ms Carpenter.  The pair travelled to 11 Dilboong Place, Chisholm, ACT, a house which was occupied by Ms Carpenter and owned by her father. 

29                  Also staying at 11 Dilboong Place was Ms Carpenter’s former boyfriend, Mr Peter Eluga.  He gave evidence that three or four days before the robbery he heard Ms Carpenter ring the appellant and ask him to come to Canberra.  He said that in the early hours of 20 October 1998 he overheard Ms Carpenter speaking on the telephone.  She had told him that she was speaking to the appellant.  Later that morning he saw the appellant and Ms Carpenter arrive back at 11 Dilboong Place.  The appellant was carrying a green bag. 

30                  Later that day, at about 3 or 4 o’clock in the afternoon, Mr Eluga saw the appellant and Ms Carpenter come home.  He said they showed him three pairs of brown gloves, three boxes with pictures of racing balaclavas, and a slide hammer.  He said that that evening he accompanied the appellant to a video store at Erindale.  He said that he saw the appellant produce a driver’s licence in the name of Michael Anselmo, and hire two videos.

31                  Mr Eluga said that on the way home from the video store the appellant showed him a black pistol, about ten inches in length.  The appellant showed him some bullets and told Mr Eluga not to touch them so that he would not put fingerprints on them.  Mr Eluga said that he had, however, touched the magazine.  The appellant had asked him if there was anywhere he could test the gun because he thought it might jam.  Mr Eluga told the appellant that he did not know of anywhere nearby.  They then returned to 11 Dilboong Place where, together with Ms Carpenter, they watched the videos.  Some time later that day Mr Eluga said he went through the appellant’s green bag and noticed some clothes, and some 9mm bullets. 

32                  Mr Eluga said that on 22 October 1998 he met Ms Carpenter at a local shopping centre.  He noticed that she had a bag of coins in her possession to the value of about $50.

33                  On 24 October 1998 Mr Eluga was interviewed in relation to the robbery by the Australian Federal Police.  He told the police that the robbery had been carried out by “Sara Carpenter and her boyfriend”.  He also said that the appellant owned a Nissan 300ZX motor vehicle.  Further enquires revealed that a car of that type was registered to the appellant, and that it had been involved in a speeding offence at 1.57 am on 20 October 1998. 

34                  Of particular significance was the fact that Mr Eluga told police that about $250 in coins had been stolen from the bank.  That was a matter which, at that stage, was not known to the police.  It was only discovered some days later that the sum of $287.80 in coins had in fact been stolen.

35                  Subsequently Mr Eluga agreed to wear a listening device in order to obtain incriminating evidence against Ms Carpenter.  He was offered a reward for any information which he might provide in relation to the robbery.  He was also registered as an informant with the Australian Federal Police, and arranged for charges against him in relation to another offence to be dropped in return for the assistance which he provided.

36                  On 30 November 1998 a search warrant was executed at 11 Dilboong Place.  Police seized a green jacket, some gloves, and some documents in the name of Michael Anselmo. 

37                  On 8 October 1999 Ms Carpenter pleaded guilty to one count of robbery.  She was sentenced to a term of four years’ imprisonment with a non-parole period of two years.  She was called by the Crown as a witness at the trial of the appellant.  However she refused to answer any questions. 

Ground one - admissibility of the evidence of identity

38                  Ground one of the notice of appeal complains that the learned trial judge erred in admitting into evidence the in-court, or dock, identifications made by Mrs Meacham and Mr Losanno.  It was submitted that his Honour ought to have excluded this evidence, pursuant to s 137 of the Evidence Act, because its probative value was outweighed by the danger of unfair prejudice to the appellant.

39                  The appellant submitted that Mrs Meacham’s state of mind was so uncertain when she picked him out from among the photographic images shown to her at the Weston Police Complex that it could scarcely be said that she had identified him at all.  Her first real act of identification did not take place until she saw the appellant at the committal hearing.  Any identification made in such circumstances was virtually worthless.  It was submitted that had the evidence of what occurred at the Weston Police Complex been excluded, there would have been no basis upon which Mrs Meacham could properly have made a dock identification.  Although the evidence of her out-of-court identification was now acknowledged to have been admissible, it was of so little probative value that the trial judge should have disregarded it when considering whether to permit her to make a dock identification.

40                  As far as Mr Losanno was concerned, it was conceded that he had been far more confident than Mrs Meacham when he identified the appellant during the video photoboard procedure at the Weston Police Complex.  It was submitted, nonetheless, that Mr Losanno too had entertained significant doubts about the accuracy of his identification at that stage.  It was submitted that Mr Losanno’s evidence in that regard was of so little probative value that it too ought to have been disregarded by the learned trial judge when considering whether to permit him to make a dock identification.  It was further submitted that the dock identification was extraordinarily prejudicial to the appellant because Mr Losanno had “firmed up” his belief that the appellant was the male robber to the point that he now expressed that belief as being “100 per cent certain”.

41                  It is important to note that the appellant did not contend before this Court that the out-of-court identifications made by Mrs Meacham and Mr Losanno were inadmissible.  There was no challenge to the learned trial judge’s ruling that neither s 114 nor s 115 of the Evidence Act required that their evidence of what occurred at the Weston Police Complex be excluded.  Nor did the appellant contend before us that the probative value of these out-of-court identifications was outweighed by the danger of unfair prejudice to the appellant.  The only submission made was that notwithstanding that these out-of-court identifications were admissible, and were properly received in evidence, the dock identifications should not have been permitted. 

42                  The principles which govern the admissibility of evidence of identity are well established.  At common law the position is reflected in the following passage from the judgment of the High Court in Davies & Cody v R (1937) 57 CLR 170 at 182:

“We think the view accepted in England, and, as far as we know, elsewhere in the Dominions where the provisions of the Criminal Appeal Act have been adopted, should be applied in Victoria.  That view, as we understand it, is that, if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial.” 

43                  The dangers of a dock identification have been emphasised on many occasions.  It is wrong to isolate the accused or suspect by indicating to the witness that the accused is suspected or charged – Alexander v R (1981) 145 CLR 395 at 399-400 per Gibbs CJ; and R v Burchielli [1981] VR 611 at 621. 

44                  There can be no doubt that it is unsatisfactory for the accused to be first identified in the dock – Alexander at 399 per Gibbs CJ.  If the identifying witness has no prior knowledge of the accused, a dock identification has little probative value because at the trial “circumstances conspire to compel the witness to identify the accused in the dock” – Alexander at 427 per Mason J.  Evidence of identification which is limited to “in-court” identification is particularly unreliable, and is usually not sufficient to sustain a conviction – Gbric v Pitkethly (1992) 38 FCR 95.

45                  Normally witnesses are asked to identify an accused at the earliest possible opportunity after the events.  Evidence is then tendered of that act of identification, generally by the person making it, and by persons who saw it being made.  Once evidence has been led of the out-of-court identification, a dock identification is then usually permitted although it is understood that the primary evidence of identification which is relied upon is the out-of-court identification, not that which occurs in court.

46                  In R v Britten (1988) 51 SASR 567 King CJ said at 572:

“It is not to be thought that because courts have stated that dock identification is of little value where the accused is not previously known to the witness, the witness should therefore not be asked whether he can see the person concerned in court.  This should be done in every case depending upon identification notwithstanding that the evidence principally relied upon by the prosecution is the out of court identification.”

47                  To the same effect are the observations of the South Australian Court of Criminal Appeal in R v Gorham (1997) 68 SASR 505 at 508.

48                  Britten was a case where there had been an earlier out-of-court identification.  However, there have been cases in recent times where a dock identification has been permitted notwithstanding that no prior out-of-court identification took place.  Where such evidence has been led, without objection, it has been held that this does not necessarily amount to a miscarriage of justice.  Nor does it necessarily in itself render a conviction unsafe or unsatisfactory – R v Saxon [1998] 1 VR 503 at 513.

49                  In R v Demeter [1995] 2 Qd R 626 at 629 Pincus JA (with whom on this point McKenzie J agreed) held that an offender may be identified in such a way as to raise a strong prima facie case for the Crown without an out-of-court identification.  It may be open to a trial judge to permit a dock identification to be made in such circumstances.  Where an identification of that type is permitted, however, there must of course be appropriate warnings given to the jury. 

50                  In R v Clark (1996) 91 A Crim R 46 at 52 Cox J (with whom Perry and Lander JJ agreed) observed that there is no rule preventing identification of the accused in the dock, although, in many cases, the probative value of such an identification may be low.

51                  It is not necessary, in the present case, for us to express a concluded view as to whether it is ever appropriate for a trial judge to permit a dock identification to be made where that dock identification is not preceded by an out-of-court identification.  Whatever uncertainty there may have been in the minds of Mrs Meacham and Mr Losanno in their out-of-court identifications, the fact remains that each of these witnesses picked the appellant out as the male robber from a collection of photographs of individuals who were, broadly speaking, similar in appearance.  That alone serves to make their dock identifications supplementary to their out-of-court identifications, and at least in the present case, not unfair.

52                  Sometimes photographs or films of the offenders taken during the commission of an offence may be shown to a witness, and form the basis of an out-of-court identification.  Where it is not possible to arrange for an identification parade, a series of photographs may be used in order to see whether an identification is possible.  When this last method is employed, it is desirable that every precaution should be taken against informing the jury that the witness’ identification of the accused before trial has been made possible by means of a photograph in the possession of the police.  This would indicate to the jury that the accused has a criminal record.  The dangers associated with that course are sometimes described in colloquial terms as the “rogues gallery” effect – Alexander at 409 per Stephen J. 

53                  There is no suggestion that the photographs shown to Mrs Meacham and Mr Losanno were what are known colloquially as “mug shots”.  Of course the mere fact that the police had a photo of the appellant in their possession when the video photoboard process was conducted carried with it some risk that the jury might speculate as to how that had occurred.  It does not follow from this that the out-of-court evidence of identification ought to have been excluded.

54                  There is also a risk that a witness may unconsciously substitute the clear impression gained by looking at a photograph for the perhaps hazy recollection of the face he or she is trying to recall, and a subsequent identification of the accused may be really the result of a mental comparison with the photograph instead of with the living person.  This is known as the “displacement effect” – see Alexander at 410 per Stephen J; R v Clune [1982] VR 1 at 7-8; and R v Carusi (1997) 92 A Crim R 52 at 55.  Any dock identification which is preceded by an identification parade or a photographic identification is prone to this danger.

55                  In Alexander at 400 Gibbs CJ stressed that only in exceptional cases should photographs be used at a stage when some particular person is suspected by the police and they are able to arrange an identification parade or some satisfactory alternative means whereby the witness can be asked directly to identify the suspected person.  That common law principle is also reflected, to a considerable degree, in s 115 of the Evidence Act.

56                  Where evidence as to identification represents any significant part of the proof of guilt of an offence the trial judge must warn the jury as to the dangers of convicting on such evidence if its reliability is disputed – Domican v R (1992) 173 CLR 555 at 561-2.

57                  The appellant did not contend before us that there was anything unfair about the process of identification adopted by the police at the Weston Police Complex.  It was accepted that there was no impropriety on the part of the police in the manner in which the video photoboard procedure was conducted.  No complaint was made that the particular photographs which were shown to Mrs Meacham and Mr Losanno were in any way inappropriate to be used for the purpose of making an identification.  It was accepted that the learned trial judge warned the jury, in accordance with the law as stated in Domican, regarding the dangers of dock identification evidence. 

58                  The appellant’s complaint was rather that the out-of-court identification evidence of Mrs Meacham and Mr Losanno was of such little probative value that it provided no proper basis for the making of a dock identification.  The prejudice to the appellant was said to be compounded by the fact that both of these witnesses “firmed up” their earlier identifications when they identified the appellant in court.  It was submitted that the jury could not realistically be expected to appreciate just how unreliable evidence in this form really was. 

59                  We are unable to accept the appellant’s submission that in permitting Mrs Meacham and Mr Losanno each to make a dock identification the learned trial judge’s discretion somehow miscarried.  His Honour gave careful consideration to all of the matters which, pursuant to s 137 of the Evidence Act, he was required to take into account.  He concluded that the probative value of this evidence, when taken together with the other evidence which pointed to the appellant as the male robber, was sufficient to outweigh any unfair prejudice.  All that was required was that an appropriately worded warning be given to the jury as to the dangers of a dock identification.  That warning was duly delivered.  In our opinion it was open to his Honour to have admitted the evidence.  We are not persuaded that he erred in doing so.

Ground two – the unsafe and unsatisfactory ground

60                  This ground of appeal was not developed before us at any length.  Though the ground is couched in the general language considered by the High Court in M v R (1994) 181 CLR 487 at 492, it was argued upon a somewhat narrower basis.  It was submitted that the conviction was unsafe and unsatisfactory because of the unreliability of the identification evidence which was led in this case.  A similar approach to a ground of appeal couched in these terms was taken in R v Gorham (supra).

61                  There might perhaps have been some force in the appellant’s submission had, for example, Mrs Meacham’s evidence stood alone.  That, however, was not the situation. 

62                  The case presented by the Crown against the appellant was a very powerful one.  It included not merely the identification evidence given by Mrs Meacham and Mr Losanno, but also the evidence of Mr Eluga.  His evidence was an important part of the Crown case.  Of course it had to be subjected to careful scrutiny.  He undoubtedly had a motive to lie.  Indeed, the appellant’s case, through cross-examination, was that Mr Eluga had carried out the robbery.  That suggestion became difficult to sustain, however, having regard to the fact that Mr Eluga looked nothing like the description of the armed robber which was given by each of the eye-witnesses who had been at the bank.  Mr Eluga was of a stocky build.  The male robber was described by all who saw him as having been of a slim build.  Moreover, Mr Losanno was asked by the prosecutor whether Mr Eluga, whom he had previously seen outside the Court, was the person that robbed the bank.  Mr Losanno replied that he was not.

63                  If the appellant was not Ms Carpenter’s accomplice, then it must be said that he is the victim of a series of extraordinary coincidences.  There is no doubt that Ms Carpenter was the female of the duo who carried out the robbery.  The appellant spent the night before the robbery with her at her home.  He, of all people, was picked out by both Mrs Meacham and Mr Losanno from a series of photos of twelve individuals, all of whom appeared to be broadly similar in appearance.  A green jacket with a hood similar to that worn by the male robber was later found at the premises at which he had stayed overnight with Ms Carpenter.  So too were false documents in the name of Michael Anselmo which were plainly linked to him. 

64                  In addition, Mr Eluga’s evidence was, of course, damning.  That evidence was confirmed, if not technically corroborated, in several important respects.  These included:

·                    the documents in the name of Michael Anselmo which recorded the appellant as having been present in the Australian Capital Territory in the early hours of 20 October 1998, just as Mr Eluga said he was;

·                    similar documents which showed that the appellant attended a video store on the night before the robbery, just as Mr Eluga said he did;

·                    the bullet which had been discharged from the male robber’s gun in the bank being of 9mm calibre, consistent with what Mr Eluga said about the bullets which he had found in the appellant’s bag; and

·                    the reconciliation of the bank’s cash holding which showed that $287.80 in coins had been stolen during the robbery, an amount broadly consistent with the $250.00 which Mr Eluga told the police was the sum taken by the robbers before the police themselves were even aware of what amount had been stolen.

65                  Having regard to the totality of the evidence led by the Crown we are unable to conclude that this verdict was in any sense unsafe or unsatisfactory. 

66                  If, contrary to our finding in relation to the first ground, his Honour did fall into error in permitting Mrs Meacham and Mr Losanno to give in-court identification evidence, we would unhesitatingly say that this error did not bring about any miscarriage of justice.  Although the proviso which applies in standard form in State legislation governing criminal appeals is not directly applicable in the Australian Capital Territory – Stokes v R (1960) 105 CLR 279 at 284-5 – the principles which govern its application do apply to appeals in this Court – Duff v R (1979) 28 ALR 663 at 673-4; Eastman v R (1997) 72 FCR 190 at 194-5; and Conway v R (2000) 172 ALR 185 at 240-1.  If ever there were a case in which the proviso would be invoked, in accordance with the principles laid down by the High Court in Wilde v R (1988) 164 CLR 365 and in Glennon v R (1994) 179 CLR 1, it would be this case.

67                  For the reasons which we have set out above the appeal against conviction must be dismissed.

Associate:

Dated:              30 August 2000