R v Coupe[1997] QCA 438

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 277 of 1997.

Brisbane

R v. Coupe

THE QUEEN

v.

BRADLEY JAMES COUPE

Appellant

Pincus JA

Lee J

Cullinane J

Judgment delivered 9 December 1997

Separate reasons for judgment of each member of the Court;  Pincus J.A. and Cullinane J. concurring as to the order made, Lee J. dissenting.

APPEAL AGAINST CONVICTION DISMISSED

REASONS FOR JUDGMENT - PINCUS JA

Judgment delivered 9 December 1997

This is an appeal against a conviction in the District Court on a charge of unlawfully using a motor vehicle.  It was argued that the verdict is unsafe and that certain photo identification evidence given by a Mrs Isaacs should have been excluded.  The Crown witnesses were M F Wust, the owner of the Fairlane motor car the subject of the charge, Mrs Isaacs and two police officers, Constable Horgan and Senior Constable Otte.  The appellant gave no evidence. 

Mr Otte gave evidence that on the day Mr Wust’s car was taken, 1 October 1996, he saw the appellant with other youths at a 7-Eleven store at Maroochydore.  He saw him again with another male person at 4.30 a.m. crossing Alexandra Parade going "[m]ore or less straight towards" Sea Breeze Caravan Park.  Otte said the appellant was then wearing a light coloured top with a pair of dark track pants.  Mr Wust said that about 5 a.m. he was awakened from sleep, in a tent at that caravan park, and found that his Fairlane car had been moved, but was still inside the caravan park.  He gave chase but the car was driven off, through a fence.  He saw people in the car but could not identify them.  The police were told about this and the Fairlane was located;  Mrs Isaacs saw it about 5.15 a.m., in a damaged condition;  as will appear, she saw a person in it and near it, who according to her evidence was the appellant.   At 6.30 a.m. Mr Otte, investigating the offence, went to an address at 27 Aerodrome Road.  The police explained to a male person who answered the door what they were there for, and while they were talking another male person jumped out of a rear window.  Otte gave chase and located the appellant hiding in a cupboard in a block of flats about two blocks away.  The appellant was wearing a white top and dark track pants.  Ms Horgan supported Mr Otte’s version of the events which happened at Aerodrome Road and Mr Otte’s account of the appellant’s clothing.

Mrs Isaacs gave evidence, as I have said, to the effect that she saw the appellant in the Fairlane, then damaged. On her version of events, she had ample opportunity to see him in the car and in its vicinity.  In the absence of any contradiction - in fact, there was no challenge in cross-examination to the Crown case, except the evidence of Mrs Isaacs - one would have thought this to be ample evidence on which to base a conviction.  The difficulty, and it is a substantial one, is the unsatisfactory nature of Mrs Isaacs’ photo identification evidence.  She picked the appellant out, weeks after the offence was committed, from a photo board shown to her by police, which depicted a front view of the head and (in some instances) part of the torso of 12 apparently male persons;  the appellant’s photo was number 8.  No complaint is made about the selection of the photographs;  it is the process which resulted in Mrs Isaacs’ identification of photo number 8 as being that of the person she saw in and around the car which is rightly criticized.  The police told Mrs Isaacs that somewhere on the photo board there was the person the police thought was responsible for the offence.  Mrs Isaacs initially picked out number 4, then number 3 or number 4.  Ms Horgan was asked whether it was any of the others and she said, "No, too long a necks, too different".  The conversation then proceeded:

"Ms Horgan:  No.  So which one out of 3 or 4?

Mrs Isaacs:   I don’t even know about number 3.

Ms Horgan:  Could be-----

Mrs Isaacs:  Could be this one or this one. (pointing to 4 and 8).  Oh, now I change it, don’t I.

Ms Horgan:  That’s all right.  Just have a close look at it with regards to what they were wearing and just try to picture it in your mind.

Mrs Isaacs:  I don’t think it’s 4.  I think it was 8.  I think it was 8.

Ms Horgan:  Right, you think it was number 8?

Mrs Isaacs:  Yep, number 8.

Ms Horgan:  Number 8?

Mrs Isaacs:  Yep, with black hair."

During further discussion Mrs Isaacs added:  "That’s the one I think it is anyway.  I don’t know whether I’m right or wrong".

That this evidence of the unsatisfactory nature of the identification from the photo board is available is fortunate;  the wise precaution was taken of videotaping the attempt by Mrs Isaacs to pick out the person she saw, from the 12 photo board images.

But it is of importance to note that the person Mrs Isaacs saw in the Fairlane, and close to it, was wearing (she said) a white shirt and black track pants;  the shirt was "more of a T-singlet thing", being collarless.  When she last saw him on the day in question, the person was running off towards Aerodrome Road, that being the road in which the appellant was, a little later, located by police.  As can be seen in photo number 8, taken after the appellant’s arrest on the same day, he was wearing a white or whitish collarless shirt - looking like a T-shirt.  The description Mrs Isaacs gave to police was recorded by them on the day of the offence, weeks before the photo identification.

When Mrs Isaacs gave evidence she mentioned having picked number 4 and number 3, but she said she "knew" the offender was number 8.  She also admitted having told the police initially something about the person she saw having curly hair, but later said he had a crew-cut. 

Mrs McGinness, for the appellant, argued that the evidence of Mrs Isaacs’ identification from the photo board should have been excluded.  In Hasler [1987] 1 QdR 239, there was reference to a number of authorities dealing with the discretion to exclude admissible evidence (244), concluding with a reference to Noor Mohamed [1949] A.C. 182 at 192:

"If [the evidence in question] can in the circumstances of the case have only trifling weight, the judge will be right to exclude it.  To say this is not to confuse weight with admissibility.  The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible."

Of the reasons for doubting the worth of Mrs Isaacs’ identification from the photo board, the most obvious is that initially she picked not photo number 8, but photo numbers 3 or 4.  A second point is that after she changed to 4 and 8 as alternatives, she was asked to have regard to what the persons depicted were wearing;  this would have inclined her to pick number 8, since the appellant was depicted in that photograph as wearing a white or very light coloured shirt, whereas number 4 was depicted as wearing a blue shirt.  Then there is the point that Mrs Isaacs said at the end she did not know whether she was right or wrong.  As against that, there is the fact, relied on by Mr Clark for the respondent, that Mrs Isaacs changed to consideration of numbers 4 and 8 (from numbers 3 and 4), it appears, in response to a question from Ms Horgan, "So which one out of 3 or 4?".

But there can be no doubt that the events accompanying this photo identification were such as gravely to damage the force of Mrs Isaacs’ ultimate insistence that she had accurately picked out the appellant as the person she saw.  The question whether, in these circumstances, Mrs Isaacs’ evidence should have been excluded depends on balancing any residual weight her evidence could have had against the prejudicial effect of the evidence.  If Mrs Isaacs’ evidence of identification from the photo board had been the only evidence pointing towards the appellant’s guilt, then the verdict would have been unsafe;  but it is a different question whether, there being some other evidence pointing towards the appellant as the offender, Mrs Isaacs’ unsatisfactory photo identification evidence should have been excluded.  Its prejudicial effect is no doubt thought to be that the jury might attribute too much weight to it;  but why should one assume this?  The difficulties about it were evident.  The judge dwelt on its deficiencies, and described Mrs Isaacs’ identification as "fairly unsatisfactory, particularly coming, as it did, over a month or around about a month after she had actually seen this person at the car".  His Honour went on to talk about the difficulties with identification evidence, generally and with reference to the particular case.  Mrs Isaacs’ evidence of identification was weak and by no means positive;  but we were referred to no authority in favour of the general proposition that such identification evidence must be excluded.  A Crown case might consist of a number - sometimes a large number - of elements or components, some of which the jury might think to be weighty, others less so and others perhaps of no weight at all. 

I can see that evidence which is technically admissible, but rationally of very little weight, might have to be excluded,  in the interests of fairness, if it be of such a character that a jury is likely to give it too much importance.  It does not appear to me, on reflection, that Mrs Isaacs’ evidence was in that category.  It was poor identification evidence, but it was not an irrational view that (if the jury thought Mrs Isaacs was attempting to be truthful) Mrs Isaacs having ultimately picked out a photo of the appellant rather than that of one of the other 11 young men depicted, increased the likelihood of the correctness of the prosecution theory that it was the appellant rather than some other youth wearing a light coloured top and dark pants who took and damaged Mr Wust’s Fairlane.

It should be added that, as was pointed out for the respondent in argument in this Court, there was reason to think that counsel for the appellant below deliberately decided not to object to the photo identification by Mrs Isaacs.  If that occurred, it was presumably because counsel took the view that the other evidence Mrs Isaacs gave relevant to identification, namely her description of the person she saw in and near the Fairlane, had some independent weight, irrespective of the photo identification;  the possibility is that counsel thought that it was better to let the photo identification in because the evidence about it and cross-examination on it would generally discredit Mrs Isaacs’ evidence, relating to the description of the person she saw in and near the car, as well as the photo evidence itself.  Against that it must be said that (as Mrs McGinness argued for the appellant) it might have seemed a much better strategy to argue at the trial that the photo identification evidence should be excluded.

But it seems a proper inference that a decision was made not to object to the photo evidence;  counsel for the appellant below must surely have given some thought to the possibility of doing so.  Had it been the case that an objection to the photo evidence on discretionary grounds must surely, or at least should, have succeeded, counsel’s failure to object would have had less importance.  But, at least in this case, that the evidence was not objected to constitutes an additional and substantial reason to decline to allow an appeal on this ground.

A number of authorities draw attention to dangers in identification by photograph:  important examples are Alexander (1981) 145 C.L.R. 395, and Pitkin (1995) 130 A.L.R. 35.  One entirely accepts these statements for the purpose of deciding the present case;  but it is of interest to note that work has been done on the topic, to determine to what extent photo identifications are in truth unreliable.  Examples are to be found in two works in the Supreme Court library at Brisbane:  Ross and others "Adult Eyewitness Testimony", Cambridge University Press, 1994, and Wells "Eyewitness Identification", The Carswell Co. Ltd., 1988.  In the Ross book, one of the articles, summarizing studies which have been done, casts doubt upon the proposition that people are recognised better in line‑ups than from photos (167, 168);  further details appear at 178.  The Wells work asserts (71) that:

"In spite of . . . obvious reasons for preferring a lineup to a photospread, experiments have generally failed to demonstrate superior performance by eyewitnesses when they identify from a live lineup versus a colour photo spread . . . It seems peculiar that live lineups have not been shown to be superior to photo spreads in terms of identification accuracy".

Lastly, in Sporer and others "Psychological Issues in Eyewitness Identification",  Earlbaum, 1996, it is suggested (223, 224) that photo spreads are as good as line‑ups except where the suspect is absent from the line-up;  then photo spreads produce significantly more false identifications.  None of these studies of course, bears directly on the present case, in which the question has to do with particular deficiencies in the photo identification process.

I pass now to consider whether the weakness of Mrs Isaacs’ evidence makes the verdict unsafe.  The other evidence was, as I have said, not only uncontradicted but unchallenged - that just before the car was taken the appellant, wearing a white shirt and dark trousers, was seen walking across towards the caravan park, at about 4.30 a.m.;  that shortly after that the car was taken;  that the police, making inquiries early that morning, approached a house which contained the appellant and other people, and explained what their inquiries were about;  that the appellant fled from that house and was found hiding nearby.  In addition to the impugned photo board evidence, Mrs Isaacs gave other identification evidence, referred to above.  This was, the jury was entitled to infer, recorded by the police before they arrested the appellant, and it corresponded with the evidence of Mr Otte and Ms Horgan as to the clothes the appellant was wearing on the morning in question.  Mrs Isaacs told the jury she noticed the hair of the person she saw at the car was "[c]rew cutty" and said that "because it was short . . . it looked curly" and that the appellant had an "[o]live complexion" "was pretty well built.  He wasn’t thin".  These were matters which the jury was entitled to take into account, using their observations of the appellant in court.  That the appellant was seen moving towards the place from which the car was taken, at 4.30 a.m., and that he fled away from inquiries about the offence, and hid, about 2 hours later, could make a rational jury think it was rather likely that it was he who took the car.  Such correspondence as the jury thought there was between Mrs Isaacs’ observation of the person she saw in and near the car, on the one hand, and the police description of the appellant’s clothing, as well as the appellant’s physical appearance in court, on the other, might also have been treated by a reasonable jury as assisting the Crown case.  But the question is whether, adding to that Mrs Isaacs’ flawed photo identification evidence, a reasonable jury could have thought the Crown case proved to the requisite standard. 

It would have been rather an odd coincidence if the facts were that the appellant went towards the place where the offence was committed, about the time it was committed, when one would not have expected many people to be about, but another young male person similarly dressed, in fact committed the offence, and both went a little later, separately, towards Aerodrome Road.  Mrs Isaacs reads as a poor witness.  But it was open to the jury to conclude, having seen and heard her give  evidence, that she would not have insisted, in the face of all the difficulties, that she was right about the identification unless there were in the end solid ground for so thinking;  in short, a reasonable jury might have thought her photo evidence enough to bring the Crown case to a satisfactory conclusion, at least in the absence of any contradiction of that case.

I would dismiss the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 277 of 1997

Brisbane

Before  Pincus JA

Lee J

Cullinane J

 R v. Coupe

THE QUEEN

v.

BRADLEY JAMES COUPE

Appellant

REASONS FOR JUDGMENT - LEE J

Judgment delivered 9 December 1997

I have read the reasons of Pincus JA.  Unfortunately I have come to a different conclusion.

The grounds of appeal are as follows:

“1. The verdict was unsafe and unsatisfactory, given the state of the evidence of identification.

2. The evidence of identification of the witness, Isaacs was so unreliable that, on the balance of the evidence available, a reasonable jury could not have been satisfied beyond reasonable doubt of the guilt of the appellant.”

There is no ground of appeal concerning the Trial Judge’s summing up as such, as there  should be when specific complaint is made, but, in the context of the Court’s task of reviewing for itself the whole of the evidence in the case to see whether it was open to the jury to find guilt beyond reasonable doubt: M v. The Queen (1994) 181 CLR 487 at 493, the Court must consider not only the evidence, but the trial Judge’s summing up in relation to it, and special directions given, if any.  This is because the evidence cannot be looked at in a vacuum.  The summing up and directions must, as is their very purpose, have a bearing upon the way the jury assesses and views the evidence^[1] and applies the evidence to the law.

The central issue at the trial, in what was entirely a circumstantial case in which the appellant did not give evidence, was whether the jury was entitled to conclude beyond reasonable doubt that it was the appellant who committed the offence of unlawful use of the motor vehicle in question on 1 October 1996, ie, whether the jury were entitled to conclude to the requisite standard  that the appellant had been correctly identified and so was guilty.  The grounds relied upon and the submissions in relation thereto, require this aspect to be considered on two bases:-

1. Whether any weight at all could properly have been given by the jury to the video-photo board identification of the accused by Mrs Isaacs on 11 November 1996 (ie 6 weeks after the incident), as well as her oral evidence in relation to it, having regard to the method in which the photo board identification was conducted and the manner in which her final identification, if it could properly be described as such, was extracted from her.  This was the approach of defence counsel at trial (summing up R 54L10). If the video identification evidence and her oral evidence in respect of it can properly be classified as of no value at all, the question is whether the balance of the evidence is sufficient to support a conviction, and not whether the balance of evidence in some way supports or can be seen as confirming or adding to or supporting video identification evidence, as the learned trial Judge directed the jury (R52/53, R57).
2. Alternatively, even if it be correct to say that the jury were entitled to regard the video identification and Mrs Isaacs’ evidence in relation to it as of some although weak weight, the question still arises as to whether the video identification and her evidence was so unreliable that, even with the balance of the evidence, a reasonable jury should have entertained a reasonable doubt as to his guilt.

Mrs Isaacs in evidence said that she saw a man at about 5.15am in and then near the car (after it been stolen from the Seabreeze Caravan Park at about 5.00am).  It was barely daylight at the time (1 October 1996) even though she said she could see clearly.  She said she did not see much of the man when he was seated in the car.  She previously told police in a contemporaneous statement that he was in the car for about  two minutes but in oral evidence, changed her version and said that he in fact sat in the car for up to 10 minutes.  Her explanation and evidence concerning this inconsistency was that she was mistaken in her earlier statement.  After he got out of the car, she said he stood near the car for a time and then moved across near the house next door to where she lived and ran back again to the other side and locked the car, although in the video presentation, she was not sure if he in fact locked the car.   She gave various times as to how long she had seen this man in this area.  She said that he quickly moved off in the direction of Aerodrome Road which was the last she saw of him. 

Aerodrome Road was in a direction away from her house (ex. 2).  Constable Horgan estimated that the car was approximately 40 metres away from her house.  She was standing at the front door.  Exhibit 2 and the evidence of Constable Horgan shows that the car was in Gardak Street and on the footpath on the left side facing the T-junction of that street with Wrigley Street.  Mrs Isaacs’ house was across the opposite side of Wrigley Street and opposite the mouth of Gardak Street.  The car was therefore on the opposite side of Wrigley Street but partly into  Gardak Street with the front pointing in the general direction of her house.  Mrs Isaacs wore glasses and even though she said that she was short-sighted, she said that her eye-sight was “very good, except for short distance”.  Presumably she meant that she needed glasses for reading although this is not entirely clear.  She said in evidence-in-chief:

Q: “Could you just give us a description of the person you saw at the car?  --  On the morning I seen this person, he was about five six; five seven.  He had short pretty well done, you know, not straggly hair, and a white - a bit white shirt and black track pants.  Big - they were a bit big for him, both his shirt and his pants.

Q: And the shirt, could you describe the shirt for us?-- I call them sweat-shirts, but I don’t think they’re really called sweatshirts, they’re more a T-singlet thing, I think.

Q: Did it have a collar on it?-- It didn’t have long sleeves, it had sleeves, much like what I’ve got on, because its a bit big and the sleeves were kind of down to about there.”

She added that it did not have a collar but a round neck and the shirt was white.  Elsewhere she said that it was the sort of thing that teenagers wear. 

The questioning continued: 

Q:  “Now you mentioned he had short hair, how short?.. Crew cutty, I think, on the front, square at the back. 

Q:  And did you notice anything else about the hair at the time? -- I thought it was curly, but I - I don’t know why, I think it was because it was short that it looked curly. 

Q:  And how about his complexion? -- Olive complexion.

Q:  And his build? -- Well built.  He was pretty well built.  He wasn’t thin.”

She said the police arrived about a half an hour later.  She said she thought the person she saw was about 16 or 17.  She said that she gave the police a description of the man she had seen and in cross-examination said that she initially told police she thought the person had curly hair.  When asked did she later change that story she said, “No, I say he had a crew-cut,” although she confirmed that she said she thought the person she saw had curly hair.  She agreed in cross-examination that the person she later picked out in the photo-board identification did not have curly hair.  That was not in dispute.  She answered in the following way:

Q: “The person you picked out in the photo board doesn’t have curly hair, does he? -- No, he doesn’t.  But I thought about that and I asked my sons about that, and said, ‘How could I not have known the boy had curly hair’, if he didn’t have curly hair, and my younger son said to me --”

She was naturally cut off at that point but one inference from the answer is that she was not sure herself.  Constable Horgan said that Mrs Isaacs gave police the following description of a person she saw, when they arrived at her house about a half an hour or so after 5.15am, and which Constable Horgan recorded in her notebook as follows:

“Male, black short hair, stocky build, five foot six inches, olive skin, tanned, nil facial hair,  17 to 18 years wearing long black pants, probably track pants, a long sleeved white shirt, not tucked in, a sweat shirt.”

Constable Horgan was questioned in cross-examination as follows:

Q: “Now, when she first gave you her description, was there some question as to whether the person had curly hair or not? -- Yes, she was uncertain as to that.  At first she said that he had curly hair and then she said, ‘No, I don’t he did.  I’m not sure.’

Q: OK.  So at first, she said the person had curly hair, then she said she wasn’t sure about that question -- That’s right. 

Q: So, there was some uncertainty about that?  -- That’s right.”

Yet in her video recorded verbal description to Constable Horgan during the preparation of the video-identification with photo-board on 11 November 1996, when asked for a description of the person she saw (and before she had been subject to cross-examination which occurred much later), Mrs Isaacs spontaneously volunteered that the person she saw had “short black hair, I think it was curly, but I don’t know”.  She kept coming back to “curly” hair on her own volition.  When being cross-examined subsequently at the trial she responded as follows:

Q: “And you were mistaken about the curly hair too, were you? -- Yeah.  Well, I don’t - I was mistaken that he had curly hair, but I wasn’t mistaken about the boy that I seen.

Q: Right -- it’s just the hair looked curly, because it was crew cutty.”

This demonstrates one possible weakness about Mrs Isaacs’ identification. 

Senior Constable Otte and Constable Horgan and two other police officers approached a house at 27 Aerodrome Road at 6.30am.  They were all in uniform and presumably there was a police car outside.  Constable Horgan had identified the house’s location by “x” marked on ex. 2, which is opposite the mouth of Sixth Avenue which forms a t-junction with Aerodrome Road.  Constable Horgan said that she previously knew that the house at this particular address was a “crash pad” and occupied by young people who came and went at random and apparently at any time of the day or night.  Constable Horgan, in answer to a question that when she attended those sorts of houses people sometimes scuttle away when they see the police coming, said “Yes, on occasion they do”.  She agreed that this was especially so with young people.  She also agreed that often when groups of young people standing around the streets see a police car coming they take off in all directions.  She agreed that it was not uncommon for that to occur.

Senior Constable Otte, the officer who conducted the investigation, said that after knocking on the door it was answered by a “male person”.  He said, “We explained what we were there for” although the precise conversation was not given.  He said that while they were talking on the front balcony, they noticed a male person jump out of the window.  It appears from questioning  of Constable Horgan that this was a rear window or a window at the back of the house.  Constable  Horgan said that she saw out of the corner of her eye somebody going out of the window.  She said she just saw a flash of white but did not know whether that person had a shirt on or off at the time.  There is no evidence that the appellant was present or heard this explanation, whatever it was, but rather to the contrary as he had jumped out the rear of the house.

Senior Constable Otte and Constable Horgan said they pursued the person who disappeared out the back of the house and located him in a cupboard under a block of units some 400 metres away.  Obviously the police did not keep in view the whole time the person who absconded from the house as he was located hiding in a cupboard under a block of units.  However, it seems clear from answers given by the appellant to questions as to why he ran away, (i.e. that he hated or disliked police), it was the appellant who in fact absconded from the rear window of the house.

It will be recalled that prior to this time, the police had been given a description by Mrs Isaacs of the man she saw near the car some time between 5.00am and 5.15am.  That description included, “a long sleeved white shirt, not tucked in, a sweat shirt”.  Senior Constable Otte said that the person he saw when apprehended under the units had on a white top which he described as, “long sleeved, sort of jumper type”.  Constable Horgan said that she was present when the accused was discovered at which time he had his white shirt off his body and over his arm.  She said that it had, “longish” sleeves.  Strangely, Senior Constable Otte said that Constable Horgan was not with him when he located the appellant under the units.  As indicated, notwithstanding the description which Constable Horgan said was given to her by Mrs Isaacs early that morning, Mrs Isaacs, when giving evidence in Court, demonstrated the length of the sleeve worn by the person she saw.  As indicated, she said in Court that, “it didn’t have long sleeves, it had sleeves much like what I’ve got on, because it’s a bit big and the sleeves were kind of down to about there”.

It might be thought that Mrs Isaacs’ description in Court that the appellant did not have on a long sleeved shirt, was more appropriate for a “t-shirt” or “more of a t-singlet thing I think” or as she described it in the video “which teenagers wore”.  If her description in Court for the shirt was correct, then either her initial description to Constable Horgan that the shirt had long sleeves was incorrect, or the police were mistaken in describing that the person they apprehended had a shirt on with long sleeves.  This demonstrates another possible weakness in Mrs Isaacs’ identification and in the identification evidence generally.

After he was apprehended, the appellant was taken to the police station and a photograph was taken.  This became photo number 8 on the identification board, which Constable Horgan prepared.  Also photograph number 8 was the only photograph on the board of a person with a white collarless shirt which could roughly be described as “sweat shirt”, or a “t-singlet thing”, which was Mrs Isaacs’ description of it.  Unfortunately the photo board does not show the length of the sleeves.  On the photo board there were only two other persons in white shirts but both had collars and in one, the collar was blue.  Both of those shirts were quite different to the shirt worn by the appellant (no.8).

Before considering the photo identification and the evidence of Constable Horgan who  conducted it and that of Mrs Isaacs’ in more detail, reference should be made to other evidence  which, according to Crown, justified the conviction when taken in conjunction with the video identification.

The other evidence is as follows:

1. Sergeant Otte, whose shift was from midnight to 8.00am on the day in question, had seen the appellant and a group of other youths at the 7/11 Store just after midnight.  Its location does not appear on the evidence.  He said he had to go there for milk etc for his refreshments.  He was apparently in uniform.  He did not know the appellant previously.  He gave no evidence of what the appellant was then wearing.  He said that he noticed the appellant by his behaviour there, which, as Mrs McGuiness submitted, might support an inference that he was either unruly or disorderly.  Senior Constable Otte, who was apparently on patrol throughout the early morning, said that he later saw the appellant and a group of youths entering a house at 27 Aerodrome Road.  The precise time or the distance from the 7/11 Store was not mentioned.  There was a McDonalds restaurant close by and apparently at or near the corner of Wirraway  Street and Aerodrome Road.  This was reasonably close to number 27 Aerodrome Road and apparently on the same side of the street as number 27 but on the other side of Aerodrome Road to that where the caravan park was situated.  This seems to be so from the Map Exhibit 2, which was shown to Senior Constable Otte.
2. Senior Constable Otte said that at about 4:30am, while he was driving on patrol with Constable Horgan, presumably in a marked police car,  back along Alexandra Parade (having come from Mooloolaba and travelling in the direction of Maroochydore along Alexandra Parade) and just after a set of lights where the McDonalds restaurant was situated, he saw the accused and another male person crossing the road.  He said they were going from the McDonalds side of the road across to the other side.  When asked where he was heading in relation to Sea Breeze Caravan Park he answered,“More or less straight towards it”.  The evidence proceeded -

Q:  “Can you tell us what he was wearing at that stage -- it was a light coloured top with a pair of track pants.  I couldn’t be too much more  --

Q: What colour track pants? -- dark.  At that stage, just the headlights hit him, so I only had him in view for probably three to four seconds, I suppose.

Q: So, I think you’ve indicated a light coloured top and dark track pants? - That’s right.”

He did not say that the shirt was white in colour, which might be thought would be easily seen even in the brief flash of the headlights.  The learned trial judge, in referring the jury to the “other” factors relied upon by the prosecution as “confirming or adding to” Mrs Isaacs’ purported identification, said that the accused was seen in the area with a “white” shirt on top.  (R53).  In cross-examination, Senior Constable Otte was further asked about where he had seen persons crossing the road and whether it was after he had passed through an intersection.  His evidence proceeded:

A: “No, not through that actual intersection, no.  We come around the corner.  There’s a new building, development type there, near McDonalds.  He was crossing a road just there when the headlights hit him.”

Q: Right.

Q: Right.  Okay. -- You say it was light by this time? -- No.  Headlights, I needed the headlights to illuminate the accused and his mate.”

He was sure that he had only seen two people and said that he would regard it as fairly unusual to see young people at that time of the day going down checking the surf, although he did not exclude the possibility.  The caravan park adjoined the beach.  When asked  how he could be sure it was the appellant, he said:

“I seen him earlier on at 7/Eleven and the behaviour there, the behaviour at the 7/Eleven, I just noticed who was involved.”

It is clear from the foregoing that Sergeant Otte had at most a fleeting glimpse for three or four seconds as his headlights swept around the corner and picked up the two persons crossing the road, one in a “light coloured” shirt.  That evidence, along with the submission that the flight of the appellant from the house at 6.30am, were relied upon by the Crown as circumstantial evidence which supported or as confirming or adding to the subsequent identification by Mrs Isaacs of the appellant from the photo board.  It is abundantly clear that those items of evidence could not support or shore up the photo identification, although, had the photo board identification been satisfactory, those items of evidence, along with the photo board identification and Mrs Isaacs’ evidence generally might well have been enough  in a circumstantial case to satisfy the jury beyond reasonable doubt that the appellant had been correctly identified. 

I now come to the video-identification which took place some six weeks after the events in question.  To properly understand what follows, and to properly evaluate Mrs Isaacs’ oral evidence as to the identification, it is necessary to view the video which I have closely done on several occasions.  It is difficult to put into words, what the video itself reveals.

It commenced at 11.21am on 11 November 1996.  Constable Horgan said at the outset that this was a photo board identification relating to the unlawful use of a motor vehicle on 1 October 1996.  She said to Mrs Isaacs that Mrs Isaacs was a witness to the offence, and asked her to describe the person she saw.  As indicated, Mrs Isaacs gave a general description of what the accused was wearing, namely black track pants, white shirt to the hips of the type “that teenagers wear”, he was well built and solid and had short black hair.  She added, “I think it was curly but I don’t know”.  Constable Horgan asked her if she could identify that person if she saw him again and said that she would show Mrs Isaacs a photo board.  She then said to Mrs Isaacs :

“Somewhere on the board is a person that we think is responsible for the offence.  See if you can pick the person out and what number.”

Mrs Isaacs first response was, “Mainly number 4".  Constable Horgan repeated, “Mainly number 4?”, as a question.  Mrs Isaacs then said with emphasis, “No, 4, 4.”

Constable Horgan immediately said, “Just have a close look at all of them” after which Mrs Isaacs looked again at the board for a long time.  Mrs Isaacs then said, “Yep, 3 or 4” in a convincing way.  Constable Horgan then pushed the photo board back to her and asked as a question, “None of the others?”.  Mrs Isaacs looked again at the board, “No, too long necks, too different.”  The latter statement obviously excluded the remaining ten photographs on the board (apart from numbers 3 and 4), which also excluded number 8, a photograph of the appellant.

Constable Horgan then asked,“Which one out of 3 or 4?”, to which Mrs Isaacs replied, “I don’t even know about number 3.  Mrs Isaacs then said, “Could be this one or this one (pointing to 4 and 8)” and added the words, “Oh, now I change it don’t I ?”.  Immediately Constable Horgan then said, “Just have a close look at it with regards to what they were wearing and just try to picture it in your mind”, to which Mrs Isaacs, after some few seconds, and spending some further time, said, “I don’t think it’s 4.  I think it was 8.  Yep, with black hair.”

Constable Horgan then immediately commenced speaking over what Mrs Isaacs was saying as Constable Horgan took steps to end the interview.  However, Mrs Isaacs could be heard clearly to say the following, “That’s the one I think it is anyway.  I don’t know whether I’m right or wrong”. 

It is obvious that this photo board identification was conducted in an appalling fashion.  It was quite wrong for the police officer to tell the witness that their suspect was on the photo board.  Mrs Isaacs first picked number 4, and repeated number 4 with emphasis.  She was then asked to have a close look at the board, which, as Counsel for the appellant submitted, would be likely to have indicated to Mrs Isaacs that she was wrong.  As a result, Mrs Isaacs then said she thought it was number 3 or 4 after which Constable Horgan asked, “None of the others?”, again likely to have indicated to Mrs Isaacs that neither 3 nor 4 was the person the police suspected.  Even so, Mrs Isaacs replied, “No, too long necks, too different.” which of course excluded photo number 8, the photograph of the appellant.  Constable Hogan then asked, “Which one out of three  or four”, to which Mrs Isaacs replied that she did not even know that it was number 3.  She then indicated that it “could be” either four or eight by pointing to those numbers and added the words, “Oh, now I change it don’t I?”.  It was then that the constable immediately directed Mrs Isaacs to the clothing by the statement, “Just have a close look at it with regards to what they were wearing and just try to picture it in your mind”.  It was only this apparent statement which resulted in Mrs Isaacs, after some delay, eventually picking out photograph number 8.  Even then, she said she could be wrong and didn’t know whether she was right or wrong.

It is difficult to see how that was an identification at all, as opposed to being merely a weak identification.  She was in fact led to photograph number 8.  It cannot be concluded that she herself positively selected number 8 before any reference was made by the police officer to the clothing merely by her saying it “could be” 4 or 8 after indications to her that her earlier positive identification of number 4, and then numbers 3 or 4 were not correct.

To make it worse, Mrs Isaacs’ evidence-in-chief proceeded as follows:-

Q: “Now, did you recognise the person that you’d seen at the car that morning, 1 October?  Did you recognize his photograph on this board of photographs you were shown by the police?  -- Yes.

Q: And which one was the person that you’d seen?  -- Number 8.

Q: When you were first shown that photo board -----? -- Mmm

Q: -----what was your initial response? -- It was quite funny.  I picked number four and number three although I knew it was number eight but because four and three looked like two of my sons friends, one’s Gordon and one’s Kerry.  Well they sort of come into my mind and I picked them out on the board.  I know it wasn’t them but it looked much like them but I knew the boy was number eight but I just said four and then three.  It was just something that happened.

Q: Was there something familiar about-----?-- Yes.  

Q: -----  number four and number three? -- Yes.  I knew I knew them, Gordon and Kerry.  They looked like them.

Q: Now, you indicated number four and three, did you also indicate number eight? -- Yes, after.  I said it wasn’t three or four, it was eight.

Q: And how certain are you that it was number eight?-- I know it was number eight.   I knew it - I knew it before I said four and three that it was number eight but I - I don’t - something happened and I just said four and then three.

She was then shown the photo board as the board she was shown on the identification.  The questions proceeded -

Q: “And can you point out - tell us what number it looked - first of all, can you tell us if there’s anyone there that you recognize?  -- Yes, that boy, number eight.  And I thought that was Kerry and I thought that was Gordon, number three was Kerry and four was Gordon.

Q: And number eight, is that the person you saw at the-----?-- That’s the boy - yes, it is.”

In cross-examination, she was further questioned about the photo board.  The evidence proceeded -

Q: “And she said something like this to you, did she not, I haven’t got her exact words but she said something like this.  ‘Somewhere on the board is the person we think is responsible.’? -- No, she didn’t.  I don’t think she said that to me at all. 

Q: Don’t you? -- No.  I think that she just said, could I pick somebody off the board if there was anybody on the board that I thought might be responsible.

Q: Yeah? -- No, she didn’t ask - tell me there was somebody on there that was.

Q: That’s how you recall it, is it? -- Yes, she didn’t say that.  She just asked me if I’d look at the board and see if there was anybody on there that I could recognize.

Q: She didn’t say this to you? -- Just listen to what I say to you.  Are you sure she didn’t say this question? -- ‘I’ll show you a series of 12 photographs.  Somewhere on the board is the person we think is responsible.’  You say she didn ‘t say that?  -- No.  No.

Q: Definitely not?  -- No, I don’t think she did.  I think she said that to look at - the first part’s right but could I - if there was anybody on the board I could pick out that I’d seen that morning.

Q: Did you expect when this was happening, did you expect that the person  responsible would be one of the 12 on the board -----?-- No.  No, I didn’t.  Because I thought he was too young to be  - to have a picture like this with the police.  I didn’t think he’d be on a police record thing.

Q: In any event, you were looking for - you were looking at these photos to see if one of them was of the boy or man that you had seen on that -----?--  Yes, but as soon as I seen the board, I knew it was number 8.  As soon as I seen him I knew it was him as soon as I looked at it.

Q: Did-----?-- Because I - I knew him.

Q: You didn’t - you picked out - firstly you picked out number 4, didn’t you? -- Yes.  And then number 3 because I was looking at them and I - I seen - number 4 to me looks like Gordon so it come into my mind.  I said 4.  And then 3 looks like Kerry, so I said 3.  I don’t know why I done that.  I picked out two of my son’s friends.

Q: You didn’t say to officer-----?-- No.

Q: -----Horgan-----? -- No, I didn’t.

Q: ----- “Number 4, looks like - looks like one of my son’s friends”, did you? -- No, but I went to Court I did.  The first time I told them but I knew it was 8 as soon as I looked at it.  That was just something happened to my mind.  I don’t know what - I don’t know - I just seen Gordon and Kerry and decided to pick them.

Q: You see what I am suggesting to you, Mrs Isaacs,  is that when you looked at this photo you just weren’t sure whether or not any of those people was the man that you saw in that car that morning were you? -- Yes, I was.  I definitely was.  I knew it was number 8 the minute I seen the photos I knew it was number 8.

Q: But you said it was 4 or 3, didn’t you? -- Yes.   Yes.  I said it was - yes, I did.

Q: You made a mistake, didn’t you?-- No, I did not.  I picked Gordon and Kerry.

Q You picked Gordon and Kerry?-- Yes.

Q: Isn’t that - I’m not trying to be nasty or anything, isn’t that your way of  explaining why you made a mistake in that-----?--No. 

Q: -----identification?--  No.  I didn’t.  It isn’t, no. 

Q: I’m not-----? -- I picked them because they came into my mind.  “That’s Gordon and that’s Kerry” and that’s what I said.  Gordon - 4 and 3.

Q: Yeah?--  Although I knew it was 8.  I knew I was wrong.  I knew it but I couldn’t stop myself from saying 4 and 3.

Q: You see I’m not suggesting for a moment, Mrs Isaacs, that you’re telling lies.  Please don’t think I’m suggesting that-----?-- I don’t think you think I’m telling lies because I’m not. 

Q: I am just saying-----?--   I never tell lies.

Q: I’m just suggesting to you that you were mistaken about number 8-----?-- No, I’m not.  I know its him.

Q: And I’m suggesting that when you say that you were reminded by Gordon and Kerry-----?-- Mmm.

Q: -----that that is your way of explaining that mistake?-- No, it isn’t.

Q: You never said anything about Gordon and Kerry-----?--  No.

Q: -----with Miss Horgan, did you? -- No.  No, I didn’t.  I said it to myself in my own mind.

Q: And do you remember at the end of the interview when she was, do you remember officer Horgan saying to you something about ‘Have a look - have a close look as to what they were wearing or what he was wearing.’?-- Yes.

Q: Do you remember?--Yes.  She could have, yes.

Q: And then you -----?-- I said - I said, ‘Oh, my goodness.  The ones I’ve picked haven’t even got dark hair’, because they haven’t.  The ones in real - if you seen the real Gordon and Kerry are not dark headed, they have fair hair.

Q: So 4 and 3 don’t look like Gordon and Kerry at all? -- In the faces they do.  Yes.

Q: But their hair is all wrong?  -- Yes. 

Q: But when Officer Horgan said something to you about what the man was wearing-----?-- But I didn’t even really have to have another look.  I knew it was 8 all the time.  I knew it was number 8.  Yes ?-- I don’t know why I - I know what I said 4 and 3 but it’s hard for me to explain.  I - just something happened to my mind and I said ‘4 and 3', Gordon and Kerry.

Q: Well, let me suggest this to you and you tell me if I’m right or wrong.  Wasn’t it that when Officer Horgan said, ‘Think about what he was wearing’ you looked at number 8 and he had a white T-shirt on? -- No, no.

Q: And that’s what tipped you off, wasn’t it?  -- No, because he hasn’t - you can hardly see a white T-shirt.

Q: Well, you can see a white T-shirt there though-----?-- Not much.

Q:  -- can’t you?  -- Not much, but.  In the front there’s -----

Q: He’s the only one wearing a white T-shirt?  -- There’s a curly headed one with white T-shirt right there.  I could’ve picked him. 

Q: A curly headed one?  -- Yeah.

Q: Yeah? -- I know who it was.  I know it was 8.  I knew it right from the beginning, that it was 8.  I knew - I know who I seen. 

Q: At the end of the interview with Officer Horgan you said something like this, ‘I don’t know whether I’m right or wrong.’?-- I did not.  I said, ‘My goodness.  I know I’m wrong.’

Q: ‘My goodness.  I’m -----’?-- ----- with 4 and 3.  I said it’s number 8. 

Q: Okay?  - I said, ‘I don’t know what I’m doing.’

Q: All right.  Mrs Isaacs, will you agree with me that you could be mistaken -----?-- No, I cannot be mistaken.  I know who I seen. 

Q: ----- picking out number 8? -- No, no.  I know it was number 8.  I know who I seen. 

Q: You were mistaken about the time that you had him in view, weren’t you?  -- No, I’m not mistaken - five to ten minutes before -----

Q: But-----? --  -----he got out of the car - five to ten minutes out of the car, when he was running away.  He ran back.  That would’ve been another five minutes at least.

Q: Yeah? -- He locked the car door, he ran across the road and then he ran back across and ran.

Q: But do you agree with me that when you told the police he was in the car  for two minutes, that you must’ve been mistaken? -- Well, two minutes - I suppose.  Yes, I’ve got to agree if I said two minutes. 

Q: Yeah -- Yes.

Q: And you were mistaken about the curly hair too, were you? --

Q: Yeah? -- Well, I don’t  - I was mistaken that he had curly hair, but I wasn’t mistaken about the boy that I seen.

Q: Right? -- It’s just the hair looked curly, because it was crew cutty.”

It must be observed that Mrs Isaacs’ explanation as to why she identified number 4 or number 3 as two of her son’s friends is ridiculous in the extreme and completely unbelievable.  This emerges very clearly from even a casual observation of the video itself which belies this explanation.  She was asked to look for the person she had seen on the night and the video shows conclusively that this was precisely what she was attempting to do so.  There was not the slightest indication from her that she was identifying on the board the persons who looked like her son’s friends.  Also the video itself destroys her statements in oral evidence that she immediately recognized number 8 as the person she’d seen by the car on 1 October 1996 and that she knew it was him immediately she saw the photo board.  She had been told specifically the purpose of the interview by the police officer who told her that the police believed the person responsible was on that board.  She was asked if she could identify the person responsible.  Also not only did she deny that Constable Horgan told her that there was somebody on the board that the police thought was responsible, she said that she was simply asked to look at the board and see if there was anybody on there that she could recognize or she had seen on the morning in question.  The video as well as the evidence of Constable Horgan shows this to be totally incorrect.  How Mrs Isaacs was able to give that answer does not appear, but it would obviously  be the correct statement which a police officer should make to a witness at the commencement of a photo board identification. 

Mrs McGuiness, counsel for the appellant, submitted that the evidence of Mrs Isaacs’ identification from the photo board should have been excluded.  She submitted that the identification was of little probative value and was highly prejudicial, citing R v Hasler ex parte Attorney-General [1987] 1 Qd.R. 239 at 244 and a passage referred to therein from Noor Mahomed v R [1949] A.C. 182 at 192.  She also submitted that it was unfairly or illegally obtained because of the way the identification was sought.  It was submitted that Constable Horgan breached s. 3.9(3) of the Police Service Administration Act which requires officers to comply in all respects with the relevant directions by proceeding as she did.  Mrs McGuiness, in support of the submission that the identification evidence was so defective and  unreliable as to be of no probative value, and was outweighed by its prejudicial effect, cited Alexander v The Queen [1980] 145 CLR 395 per Gibbs J at 402-403.  She further submitted that the final words used by Mrs Isaacs did not amount to positive identification, R v Pitkin (1995) 130 ALR 35.  It was submitted that the Trial Judge’s comments criticising the value of Mrs Isaacs’ photo identification evidence should have led His Honour to exclude it from consideration during the trial, or alternatively by use of very strong directions during summing up.

It was further submitted by Mrs McGuiness that the learned trial judge did refer in the summing up to certain problems in relation to identification but not all of them.  No mention was made about her several references to curly hair or the long sleeves.  His Honour dealt with the identification evidence in his summing up as follows (pp. 52-55).

“A number of submissions have been made to you about the evidence you have received relevant to that question.  The prosecution has submitted to you that when you consider all the evidence, including Mrs Isaacs’ evidence, you should conclude, beyond reasonable doubt that it was the accused in the motor vehicle, in other words, that Mrs Isaacs’ purported identification is correct.

Then the prosecution pointed to a number of other factors as confirming or adding to Mrs Isaacs’ purported identification.  They point to the fact that the accused  - there is evidence the accused was seen in the area moving towards the direction of the caravan park shortly before the car went missing.  He was dressed in these  black or dark lower track suit type clothing on the bottom and a white shirt on the top.  That a person similarly dressed was seen by Mrs Isaacs get out of the car, she identifies it as the accused, that the accused in a general sense matches up the description that Mrs Isaacs gave to the police initially.  That when police went to his house, he ran away.  The description of that is not of youths scattering when they see a police car coming, it is of someone actually climbing out the window, bolting and hiding, and the prosecution suggests to you that that suggests a consciousness of guilt at least of something and they suggest it is open to you to infer that the consciousness of guilt was that of guilt because he had been seen in or about this car, and of course the prosecution also point to Mrs Isaacs‘ identification

The defence argued to you that you would not be satisfied to the standard of proof required, that is, proof beyond a reasonable doubt.  They focus mainly on the evidence of Mrs Isaacs and say that evidence is, to use Mr Parker’s phrase, fatally flawed, that it is so unreliable that you would simply discard it entirely and look only at the other available evidence.  And when you look at the other available evidence, Mr Parker submits to you, it is not sufficient to justify a conclusion of guilt to the standard required by the criminal law.  That is essentially the position, members of the jury. 

Mrs Isaacs’ evidence is part of the evidence.  If it stood on its own, you might think that you would have doubts about whether you could rely upon it, for obvious reasons; in particular, the way Mrs Isaacs approached the photo board.  You know the police officer, when she showed her the photo board told her in effect that the person they thought was the guilty party and was one of the persons on that board.  That, you might readily understand, has a tendency to cast the onus on the person looking at the board to find on there somebody who resembles the person they saw and there may be a tendency then for the person looking at the photo board to settle on the person that looks most like the person that they remember they saw, or whose features they remember.  It is, you might think, not a good idea for a police officer to make that sort of suggestion at a time when an identification  or attempted identification is to take place.  Nevertheless, that is what the young constable did so you have to keep that in mind when you are considering Mrs Isaacs’ evidence.  Mrs Isaacs, at that point, was a person who had been informed, whether she recalls it or not now - who had been informed that there was a photograph on that board which was a photograph of the person the police thought was the offender.  Then when she looked at the board, you will recall, she said, ‘Maybe number 4,’ and then she said, ‘Or 3 or 4' and you will recall - well, perhaps you don’t, but if you look at that photo board you will see that 4 is the right-hand side on the top and 3 is next to it, just left of that photograph.  And you will recall that following on that and before the police officer made any suggestion that she look at - or try and remember how people were dressed and look at the way they were dressed  - before the police officer said that to her, she actually pointed to photograph number 8.  She pointed at number 4.  She said, ‘Oh, this one or this one,’ and she pointed to 8.  And then the police officer told her to look at how they were dressed and try and picture in her mind what it was like that night.  And it was then that she settled on number 8, which turns out to be the photograph of the accused person.  That identification which she undertook, you might think, is fairly unsatisfactory, particularly coming, as it did, over a month or round about a month after she had actually seen this person at the car.”

His Honour then proceeded to give warnings in general terms covering such factors as whether this was the first time the witness had seen the appellant, from what distance and over what period of time, whether there any reason why she should take particular note, what was the state of the light, the period of time which elapsed between when she first saw the person and when she made her first identification (in the photographs).  His Honour also said that memory diminishes the longer the period involved.  His Honour then concluded at 57 as follows:-

“All these are matters which are relevant to a purported identification and a tribunal of fact, such as yourselves, in considering identification evidence, very obviously have regard to all those sort of things.

However, you do not regard identification evidence necessarily, or what purports  to be identification evidence, in isolation.  It is part of all the evidence.  You look at any other evidence which may tend to support the identification and, ultimately, after you consider all the evidence, you then need to ask yourselves whether you are satisfied to the standard required by the criminal law, that is, beyond reasonable doubt, that it was indeed the person the identification evidence suggests who was the person who committed the offence.”

After informing the jury that the question ultimately was a matter for them, and directing the jury to look at all the evidence to see if they were satisfied that the guilt of the accused person  was the only reasonable conclusion they were able to come to, His Honour’s summing up continued at 58 as follows:-

“When you - I should say this, I have made mention of the fact that the accused ran away when the police approached the house and I made a comment to you that there may be a difference between what he did and a group of youths on a corner dispersing or scattering if a police car comes up.  What he did, perhaps you may think is in a different - maybe seen in a somewhat different light because as the police were talking to somebody at the front of the house, he actually climbed out of a window and ran away and hid.  There is evidence before you that he said he did that because he did not like police.  Do you accept that as an adequate or sufficient reason?  Is it believable that he would take the position of actually going out a window and running away and hiding in cupboard just because he did not like the police or is it an indication of some sort of guilty conscience.  If it is an indication of a guilty conscience, well, guilty about what? 

There is nothing in the evidence here to suggest that there was any other reason to be guilty about anything so far as the police were concerned other than what is suggested in the prosecution case that the accused was involved in the unlawful use of this motor vehicle.”

The problem with this case is that defence counsel did not seek to have the video identification evidence excluded but, as submitted on behalf of the Crown, the defence probably left it in to enhance the submission that Mrs Isaacs’ evidence was wholly unreliable.  The record shows that there were no submissions prior to addresses or summing up.  Nor were any redirections sought by Counsel who appeared for the appellant at the trial.  Nevertheless, it is clear from a long line of authority that an appellant is not necessarily bound by the conduct of Counsel at the trial, although it is a significant factor to be taken into account.  (See Stirland v.  Director of Public Prosecutions [1944] A.C. 305 per Viscount Simon L.C. at 328, R. v.  Morgan [1978] 1 WLR 735 at 740A and R.v. Wilson (C.A. 355 of 1994), 24 October 1994 unreported.

One of the problems concerned in many cases in respect of which an appeal is lodged is  that the Court of Appeal frequently does not have a record of Counsels’ addresses to the jury.  This obviously has a bearing on the trial judge’s summing up.  This difficulty has been noticed on several occasions in this Court.  I agree with the observations of White J.  in The Queen v.  Chevathen (C.A. No.  222 of 1997, 3 October 1997 unreported):

“It might be thought a useful practice, engaged in by a number of Trial Judges, to have counsels’ addresses transcribed for future reference.  This would be of benefit where grounds for appeal other than that presently under consideration are raised.”

As indicated, there were no submissions prior to the commencement of summing up.  A useful practice, engaged in by many trial division judges in all but the simplest of cases, tends to eliminate problems of this kind.  At the end of all of the evidence and before summing up, the Judge identifies with both the Crown Prosecutor and Defence Counsel the precise issues and special directions which would be given in the summing up.  When this is done, it assists both counsel in their addresses as well as the Judge in summing up, although of course it does not relieve the Judge of his ultimate duty to give appropriate directions to the jury in every case.  Such a practice is particularly valuable in cases where identification in issue, having regard to the High Court decision in Domican v.  The Queen (19912) 173 CLR 555 which imposes a positive duty on the trial judge, even if the direction is not sought, to direct the jury as to the factors which may affect their consideration of identification evidence, including weaknesses and factors which detract from its accuracy.  It is not enough to give a warning in general terms or merely to repeat counsels’ submissions.  A common practice for the trial judge is to ask both  counsel to identify the respective strengths and weaknesses of the identification evidence to assist in their own addresses as well as being of assistance to the trial judge.  Other examples of the utility of such a procedure spring to mind without being exhaustive.  eg.  the specification directions required by Edwards v.  The Queen (1993) 178 CLR 193 particularly at 208-211 when the prosecutions is relying upon lies as alleged admissions.  There are many other types of cases also.

However, having observed the video on several occasions and having closely examined Mrs Isaacs’ evidence as well as the submissions, the photo board identification and her oral evidence in relation to it is in my opinion completely valueless.  It should have been totally disregarded by the jury, as was defence counsel’s submissions at the trial (the summing up R54L10), even though counsel for the appellant at the trial did not then formerly seek to have it excluded.  It had no weight at all.   At best it was ambiguous.  It was not a positive identification  and suffered many of the defects referred to by the High Court in Pitkin v.  R where it was stated that evidence of identification from photographs should be subjected to careful scrutiny before it is accepted as evidence of positive identification.  Mrs   Isaacs’ evidence on the video was the only identification evidence in the case.  It was accepted that the unresponsive identification of the appellant in the dock whilst she was giving evidence took the matter no further and such late identification evidence was less reliable once there was a purported identification through a photograph: Pitkin v.  R.  It was not possible that the other evidence in the case could “support” or could be seen as “confirming or adding to” or otherwise shoring up that identification evidence.

This leaves Mrs Isaacs’ evidence as to what she saw on the morning in question, the description she gave police, and the evidence of Sergeant Otte of having seen someone he identified as the appellant at 4.30am in the morning walking in the general direction of the caravan park near the beach in a “light coloured” top and also the evidence of his flight at 6.30am in the morning.

It is not enough for Mrs Isaacs to identify a person merely by saying that he was young, 16 or 17, in a light shirt with long sleeves and dark track suit type pants with curly hair, which just happen to coincide in a general way with what the accused was wearing, even without the two significant inconsistencies, ie.  the curly hair and the long sleeves.  She had never seen the appellant before.  She said that the type of T-shirt she saw the man wearing was the type of T‑shirt commonly worn by teenagers.  It must be recalled that she was at least 40 metres away at the front of the house in the early morning light.  There is also the possible question as to her eyesight.  There is also her statement on the video identification that none of the ten other photographs (apart from numbers three or four), could be the person she saw because in answer to the question by the Constable, “none of the others?”, she immediately said, “No, too long necks, two different”.  This obviously excluded photo number eight (the appellant) as the person she claimed she saw near the car on 1 October 1996.  As indicated, the apparent confusion over the length of the sleeves as well as her constant reference to “curly” hair throws considerable doubt on the accuracy of her identification.

Even if Sergeant Otte was correct in identifying the appellant in the fleeting 3 or 4 seconds he saw two male persons in the headlights of his car as he turned the corner, with the appellant in a “light coloured” shirt, not a white shirt as the learned trial judge directed the jury at p. 53 l.8, this of itself does not mean that the appellant was bent on going to the caravan park to steal the car in question (or any car for that matter).  The evidence shows that teenagers were roaming around the streets at all hours.  To say that he was observed crossing the road, “more or less” in the direction of the caravan park, does not mean that that was his destination, rather than proceeding to the nearby beach, and even if it was, that his purpose was then to steal the car.  Senior Constable Otte did not exclude the possibility that teenagers might be checking the surf out early although he thought that would be unusual at that hour.

This leaves the question of the alleged flight from the back of the house when four uniformed police officers arrived at the front and spoke to a “male person”.  The learned trial judge in properly commenting to the jury that whilst the appellant was not obliged to give evidence, referred only to the appellant’s explanation to the police that he ran away because he did not like police.  His Honour told the jury that there was nothing in the evidence to suggest that there was any other reason to be guilty about anything so far as the police were concerned other than what was suggested in the prosecution case that the accused was involved in the unlawful use of the motor vehicle.  As indicated, there is no evidence to show that the appellant was close enough to have heard what Senior Constable Otte said to the male person at the front of the house.  Mrs McGuiness submitted that he had obviously been observed in an unfavourable fashion soon after midnight by Senior Constable Otte in the 7/Eleven Store, probably misbehaving.  He might also have absconded for another reason including another offence quite apart from this one.  This of course was a jury question when considered with all the other evidence, but on its own would not be sufficient to warrant a conclusion that the accused was identified beyond reasonable doubt as the offender. 

It is true that in a circumstantial case, all pieces of evidence capable of bearing upon a question in issue, even if weak but which the jury accepts, may go into the melting pot to be considered by the jury as a whole.  This means that all of the individual items of circumstantial evidence which a jury is satisfied was established and which are not consistent with an innocent explanation, may then be considered as a whole to see if it is sufficient to identify beyond reasonable doubt the person concerned to the exclusion of all other reasonable or rational hypotheses consistent with innocence.  The jury must be able to conclude from that group of accepted items of circumstantial evidence taken as a whole, that the only rational conclusion, to the exclusion of all other reasonable hypotheses, is that the appellant was identified as the offender at the car on the early morning of 1 October 1996, and was guilty.

Apart from the photo identification and the oral evidence of Mrs Isaacs in relation to it, I am firmly of the opinion that no reasonable jury could have been satisfied beyond reasonable doubt as to the identification of the accused.  Indeed, the prosecution itself considered that a photo identification was essential in order to link the appellant to the stolen car at 5.15am when Mrs Isaacs observed it and a person near it. 

As indicated, because the video identification in Mrs Isaacs’ evidence in relation to it had no validity at all, no reasonable jury could have acted on it.  They were not directed that they should, or even could disregard it entirely and look only at the remainder of the evidence as defence counsel submitted (R54L10).  In my opinion, the balance of the evidence could not be said to “support” that defective photo board identification in such a way as to give validity to it.  It was the only purported identification in the case.  The appellant should not be bound by counsel’s decision to allow that evidence in or because counsel did not seek to have it excluded.

Even assuming that the video identification and Mrs Isaacs’ oral evidence in relation to it was capable of some even though minor weight, that evidence, when coupled with all the evidence in the case, is in my view incapable of allowing a reasonable jury to conclude beyond reasonable doubt that the appellant was correctly identified.  It is appropriate to refer to the following passages from the judgment of Gibbs CJ in Alexander v The Queen at 403:

“If the trial Judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice.  In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case.”

In my opinion, that passage makes it clear that the verdict and conviction was unsafe and unsatisfactory and cannot stand.  The appeal should be allowed and the conviction set aside.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 277 of 1997

Brisbane

Before Pincus J.A.

Lee J. 

Cullinane J.

R .v. Coupe

THE QUEEN

v.

BRADLEY JAMES COUPE

Appellant

REASONS FOR JUDGMENT - CULLINANE J

Judgment delivered 9 December 1997

The appellant appeals against his conviction on a charge of unlawfully using a motor vehicle.

I have had the benefit of reading the judgments of  Pincus J.A.  and Lee J. in which each sets out the evidence against the appellant and in particular the nature of the identification evidence provided by the witness Mrs Isaacs and the circumstances in which it was made.

I agree with the conclusion that Pincus JA reaches in respect of the ground that the  evidence of Mrs Isaacs should have been excluded. The evidence was not objected to and I think it is a reasonable inference to draw that the conduct of the case below involved a conscious decision not to object to the evidence.

The remaining ground then is whether a reasonable jury could have been satisfied beyond a reasonable doubt of the guilt of the accused. The relevant principle is to be found in the joint judgment of Mason CJ, Deane, Dawson, Toohey JJ in M v The Queen (1994) 181 CLR 487 at p 493:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. See Whitehorn v The Queen (1983), 152 CLR, at p. 686; Chamberlain v The Queen [No. 2] (1984), 153 CLR at p. 532; Knight v The Queen (1992), 175 CLR 495, at pp. 504-505, 511. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. Chamberlain v The Queen [No. 2] (1984), 153 CLR, at p. 621.”

Their Honours went on to say at p. 494:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeking and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages employed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (40). ”

To the various unsatisfactory aspects of Mrs Isaacs' identification evidence referred to in the judgment of Pincus JA I would also add the fact that photograph No 8 on the identification board (which was a photograph of the appellant) was the only photograph in which a person was shown wearing a white T-shirt which coincides with the type of T-shirt Mrs Isaacs had described.

There was evidence placing the appellant in the area not very far away from where the offence was committed somewhat earlier in the evening and he was seen at about 4.30am walking in the general direction of and fairly close to the caravan park from which the vehicle was taken shortly after. The clothing which he was observed to be wearing was similar to that which Mrs Isaacs observed on the person who got out of the vehicle and the general description of the appellant matched that of the person who Mrs Isaacs observed at that time. When the police arrived at the house at 27 Aerodrome Road later the appellant fled and was found hiding in a cupboard in a block of flats some blocks away. At this time he was wearing clothing of a kind which was consistent with what had been observed earlier by the police officer Otte and by Mrs Isaacs.

The evidence though placing him close to the scene of the crime and involving flight together with what I would describe as general descriptive evidence would not have been sufficient alone to justify a conviction. In order to reach a verdict of guilty the jury must have placed some reliance upon the identification evidence of Mrs Isaacs. This appeal resolves itself to the question whether it was open for a jury to ascribe any value to that evidence.

Mrs Isaacs in evidence claimed to have always identified photograph number 8 as the photograph of the person she saw and gave an explanation as to why she had originally identified another photograph or other photographs. The explanation was that though these photographs bore no relationship to the person who she had observed they reminded her of people who she knew and thus she made reference to them. It is difficult to conceive that the jury could or would have accepted this as an explanation. In evidence Mrs Isaacs denied that she had been told by the police officer that a photograph of the person suspected by the police was on the sheet. This, however, can plainly be heard in the recording.

The circumstances in which the Mrs Isaacs identified the appellant from the photoboard  were captured on video and this was placed before the jury. This Court has the advantage of being able to see what occurred. This was no doubt a valuable piece of evidence in terms of the jury's task in evaluating what if anything could be made of Mrs Isaacs' identification evidence. In addition the trial judge gave both general and specific warnings about the evidence of Mrs Isaacs and left the jury it seems to me in no doubt about the generally unsatisfactory nature of her identification evidence and the reasons for that. The appellant does not complain about these directions.

Mr Isaacs’ identification of the appellant had, as will be apparent, a number of deficiencies and there are aspects of her evidence which it is difficult to believe a reasonable jury could accept. But were the jury obliged to treat her evidence identifying the appellant from the sheet of photographs as lacking any probative force?

Although hesitantly and after inappropriate comment from the police officer Mrs Isaacs did fix on the appellant’s photographs and once she had done so, adhered to it. The matter lies fairly close to the margin but I do not think that it can be said that the jury, having seen and heard her give evidence and having seen the video, must have rejected her. Once this conclusion is reached it follows in my view that it was open for a reasonable jury to be satisfied beyond a reasonable doubt on the evidence taken as a whole. I would dismiss the appeal.