R v B[1999] QCA 105

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 429 of 1998

Brisbane

[R v B]

THE QUEEN

v

B  Appellant

McPherson JA

Thomas JA

Shepherdson J

Judgment delivered 13 April 1999

Separate reasons given by each member of the Court, McPherson JA and Thomas JA concurring as to the order made, Shepherdson J. dissenting.

APPEAL AGAINST CONVICTION DISMISSED

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 13 April 1999

1. The appellant was convicted at a trial in the District Court at Mount Isa on an indictment charging one count of unlawful use of a motor vehicle and another of wilful damage. The appeal is practically confined to one ground, which challenges the adequacy of the summing up at trial in relation to the evidence identifying the appellant as the person who committed the two offences.
2. William Sadler was provided by his employer with a Holden Rodeo utility, which is the vehicle the subject of the first count. On 21 January 1998, he went to the Post Office Hotel at Cloncurry, leaving the vehicle outside with the keys still in it. After drinking about eight stubbies of beer, he left the hotel at about 10.30 pm to find that the vehicle had been taken from where he had parked it. He called the police, and Constable C A Ogden arrived at the scene.
3. While waiting at the hotel, Sadler said he saw the vehicle pass by, and, when Ogden arrived, he sat in the front passenger seat of the police car which was being driven by Ogden, and they went on a search for the missing utility. They saw and followed it through various streets in Cloncurry, and then along the road out to the airport. Both vehicles were travelling on the airport road, with the police car in pursuit, when the utility suddenly braked and turned off into a paddock smashing through a wire fence, which was the subject of the second charge. The police car was brought to a halt at the roadside, and Ogden set off in pursuit on foot; but, although the utility was found abandoned some distance further on, the driver eluded him.
4. When the utility was later examined, no fingerprints or other evidence identifying the driver was found. The prosecution case at trial therefore rested on visual identification of the appellant by Ogden in the course of the pursuit through Cloncurry and along the airport road. Sadler said he had not recognised the driver of the utility, and he was not asked to try to identify him in a line-up or by means of photographs. At the trial, his evidence was that all he could remember about the driver was that he had a roundish sort of face with short-cropped hair resembling a crew cut. Sadler had had a fair bit to drink, and described the chase in the police car as "one hell of a ride", in which he said he was probably too interested in watching everything else. He did, however, recall that the driver's side window in the utility was down. He was not sure whether the passenger side window in the police car was up or down, but thought it might have been down.
5. The reliability of Constable Ogden's evidence at the trial was therefore critical to the prosecution case against the appellant. The Holden utility was first seen and followed down Ham Street. About 30m before the intersection with King Street, Ogden pulled up some 3 metres behind the utility, at a point where it had stopped to allow someone to alight from the passenger side of the vehicle. Ogden said the driver turned and, for about two or three seconds, looked in his direction. Ogden saw his face, and recognised him as the appellant. The utility then sped off down King Street. Ogden activated all the lights and the siren on the police car, and set off in pursuit. In King Street he pulled into position beside the utility as both vehicles were travelling along and activated the spotlight on the police car. In its light, he could see the driver's face, whom he said he again recognised as the appellant. He could see he had short hair, and he noticed acne and sweat on his face. The driver had both hands on the steering wheel and was looking straight ahead. At that stage the two vehicles were travelling at about 40 to 60 kph.
6. In Margaret Street, he succeeded in pulling level with the utility, and again for another two or three seconds he had another look at the driver. The utility then turned into Zingarri Road, which went in the direction of the airport. The two vehicles travelled along it for about five to ten kilometres reaching speeds of 100 kph or more, in the course of which Ogden drew level with the utility on another three occasions, each for about three to four seconds, during which he looked at the driver again. It was on the third and last occasion when he was looking at the driver that the utility braked suddenly; he passed it by, but kept the utility in view in his rear vision mirror. It turned to the right off the road, proceeded over the embankment and down through the fence, which it damaged (count 2), and into the paddock. The police car was stopped and; from there, Ogden went after his quarry on foot.
7. In cross-examination, counsel for the appellant put to Ogden that in his evidence he was "gilding the lily" a bit to make his identification of the appellant seem better than it really was. Ogden, counsel suggested to him, had mentioned the matter of acne on the driver's face only after he had seen him in court that day, whereas it was not referred to in his original statement. Ogden admitted that acne was not mentioned in that statement; but denied that he had looked closely at the appellant in court that day. He agreed that, between the driver and the rear of the utility, there was a wire mesh divider with spaces of about 5 cms or 2 inches, as well as headrests behind the seat of the utility. He nevertheless claimed that, with the spotlight, he was able to see the driver's face when he turned and looked back at him in King Street. He could recall that the driver was wearing a shirt that was dark coloured but not what its exact colour or design was. Ogden admitted that, in the course of interviewing the appellant, he had suggested he had looked at the appellant on three or four occasions, yet he now was suggesting seven or more. He could not say for sure whether the police car passenger window was up or down.
8. In relation to Constable Ogden's evidence of identification, there were two distinct questions for the jury. The first was whether Ogden was telling the truth in court when he said he had in fact identified the appellant as the driver of the utility. The second was whether, even if he was telling the truth, his evidence was reliable. As to the first question, the jury evidently considered him to have been an honest witness. If they had been left with a reasonable doubt about it, they would not have found the appellant guilty. The question whether Ogden had, as he claimed in evidence, seen acne on the driver's face was a matter that went to his credibility. If he had not seen it, but was saying he had, he was being untruthful; and no credit at all could have been given to what he said. Once that issue of credit was resolved in favour of Ogden, as the verdict shows it in fact must have been, what he observed of the appellant's face, including the acne on it, became a detail that went to support the reliability of Ogden's identification.
9. That was the approach adopted by the judge in presenting the issue of identification to the jury in summing up, and, with respect, it was plainly correct. He first of all told the jury it was:

"... true you must be careful when approaching evidence of identification. There have been in the history of the law a number of examples of false identification made by people who were clearly convinced that their identification was correct. The first thing that you will consider when approaching questions of identification is the truthfulness of the witness who makes the identification. The Crown, of course, puts Constable Ogden forward as a policeman ... who has given his honest identification. Now, the defence, while mainly challenging the accuracy of Constable Ogden's evidence, at least considered and asked you to consider the possibility that he has purposely gilded the lily."

Having discussed the rival contentions on that issue, his Honour proceeded:

"So far we have just been talking about the truthfulness of the identifying witness. I think the main thrust, you might have thought so also, related to whether or not Constable Ogden could be mistaken in his positive identification."

His Honour went on to explain that "common experience" was that such mistakes happen, and he gave the jury some examples appropriately set in a rural environment. What he said the jury had to do was "to take into account all the relevant features relating to the identification".

10. The learned judge then proceeded to discuss the evidence on that subject by dividing it into three main categories. First of all, he said, "one that springs to mind, and no doubt you will make a note of this, is the knowledge that the identifying witness has of the person identified". His Honour explained what he meant by that. Considered by that criterion, he reminded the jury of various evidentiary details which had been emphasised in the addresses on either side. The Crown put it that only six days before the chase on 21 January 1998, Constable Ogden had, in connection with another matter, had a very good opportunity to look at the accused the appellant, and had in fact done so for some 5 to 10 minutes. By contrast the defence said that it was only one occasion, and that it did not appear that in fact Constable Ogden had made careful note of what the appellant was like on that occasion.
11. A second circumstance of identification which his Honour said might be important was "how long the person identifying had the identified person under observation" in this case. Again, his Honour contrasted the Crown's version of the evidence of events with what the defence said about the opportunities, or lack of them, which Ogden had of recognising the driver in the course of the high speed chase. Thirdly, his Honour instructed the jury to ask themselves in an identification case like this whether the person described by Ogden as the driver had any "matching particularly strange identifying features" in common with the appellant. His Honour went on to contrast the matters of evidentiary detail stressed by each side; that is the strengths of the prosecution case, as submitted by the Crown, and its weaknesses as identified by the defence in their respective addresses. Finally, his Honour concluded his directions with the following remark:

"The defence finally, in summary, says, well, when you look at it carefully, there was not much care taken at all and, secondly, the opportunity for careful observation was lacking. Then the defence emphasised that Sadler himself was able to make no identification at all."

12. On appeal, it was submitted that, having regard to what was said in Domican v The Queen (1992) 173 CLR 555, his Honour's directions to the jury on the issue of identification were deficient in several respects. Reliance was placed mainly on the passage in the joint judgment in that case at 173 CLR 555, 561-562:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

13. On behalf of the appellant, Mr Devereaux of counsel submitted that the directions of the trial judge in the present case fell short of what was required. In the first place the summing up had failed to warn the jury of the "dangers" of convicting on identification evidence once its reliability was disputed, as it was at this trial. It cannot, however, be suggested that failure to use the word "danger" or "dangers" is fatal to the summing up. In the passage quoted above from Domican, their Honours specifically observed that the terms of the warning "need not follow any particular formula". Domican, it was said in R v Zullo [1993] 2 QdR 572, 578, "should not be applied as if what the High Court said were a statute". It is therefore not fatal to a proper direction that the word "danger" is not used. There is direct authority to that effect in R v Clarke (CCA (NSW) Oct 31 1997 unrep) discussed in Glisson & Tilmouth Australian Criminal Trial Directions at [3-800-40-70], under the chapter heading "Identification".
14. Taken by itself the omission of the word "danger" in the present case is not decisive. Nor, on similar reasoning, is the failure of the trial judge in his direction to the jury to use the expression "warn" or "warning". What Domican requires is that the directions to the jury about the identification evidence be "cogent and effective" and "appropriate to the circumstances of the case". What the judge did here was to tell the jury "you must be careful when approaching evidence of identification", before going on to say that in the history of our law there have been a number of examples of false identification made by people who were clearly convinced their identification was correct. Mr Devereaux submitted this was inadequate because his Honour did not go on to add what the result was in those cases, namely that innocent persons were convicted. This, it may be conceded, was a possible blemish in the summing up; but it was surely implicit in the context of what his Honour said about cases of "false identification" in the history of our law that he was referring to cases in which persons were wrongly convicted because of false identification. The recitation of a ritual formula is not what is called for to satisfy the requirement that on identification the direction must be cogent and effective.

15. The real question here is whether his Honour's summing up satisfies the other requirement mentioned in Domican v The Queen (1992) 173 CLR 555, which is that the attention of the jury be drawn to any weaknesses in the identification evidence; that reference to counsel's arguments is insufficient; and that the jury must have the benefit of a direction "which has the authority of the judge's office behind it". It is with the second and third of those requirements, and especially the third, that we are concerned here. The final passage of the extract from the joint judgment in Domican requires that the trial judge "isolate and identify for the benefit of the jury any matter of significance" which may reasonably be regarded as undermining the reliability of the identification evidence. It cannot be said that his Honour failed in that regard. It was expressly conceded that his Honour went "fairly carefully" through what he considered to be the salient points on either side. The summing up covered some seven or eight pages of transcript, in which the competing strengths and weaknesses of the identification evidence were examined in detail from the standpoint of the prosecution and defence. What is said, however, is that this process was carried out by the method, described in Domican as "insufficient", of referring to counsel's arguments, and that it therefore did not have behind it "the authority of the judge's office".
16. That criticism is, however, not altogether accurate. The trial judge introduced his recitals of the competing evidentiary strengths and weaknesses with a reference to a particular subject or category, of which, it has already been said, he isolated three. They were: (1) the witness's acquaintance with the person identified; (2) the duration of the observation on the occasion; and (3) particular features of the appellant's appearance that were used by Ogden to identify him. To the relevance of each of these matters, his Honour clearly lent the authority of his office as judge. It is, with respect, not easy to see how he could have gone further without compromising his fundamental judicial duty of impartiality between the prosecution and defence. The appellant did not himself give evidence at the trial, so that the evidence of Constable Ogden was uncontradicted. To have described particular parts of his testimony as "weaknesses" in the identification evidence would have lent the weight of judicial office to a perception that at least some of Ogden's testimony was untruthful or inherently unreliable. In relation to some matters, about which there was plainly room for differing views, describing them as "weaknesses" would have usurped the jury's function of assessing the weight and reliability of his evidence, and of deciding which parts of it they accepted, and with what, if any, qualifications. Examples are the number of times the police car drew level with the utility; the state of the light on the occasion when Ogden looked at the driver's face; and how much he was in fact able to see of it on the first occasion in Ham Street when he said the driver turned round.
17. In the end, it seems clear that the course adopted by the judge was almost certainly the only one that was available in the circumstances as they appeared in evidence. That is to say, he drew the attention of the jury to the specific matters or subjects which they ought to consider in assessing the reliability of identification evidence, and he explained why they were important. He did not characterise them as "weaknesses" because to have done so would have involved an impermissible conclusion about matters of fact which it was for the jury to determine. When invited on appeal to formulate the appropriate direction which should have been given, Mr Devereaux simply repeated that his Honour was supposed to point out what the jury might consider were the factors which undermined the evidence. But it was whether those factors were present and did in fact undermine the identification evidence that was the very matter in dispute. The problem is one that was referred to in the dissenting judgment of Brennan J in Domican v The Queen (1992) 173 CLR 555, 568; but, in that respect, the present case departed markedly from the circumstances in Domican v The Queen. There, at the time of the shooting, the identifying witness Mrs Flannery did not know the appellant. It was only some nine months later that she identified him from photographs which had been altered to show the appellant wearing a wig and a false moustache like the one she claimed to have seen the gunman wearing. By that time the appellant was a definite suspect, whom Mrs Flannery had seen on television, and claimed to have seen on a number of occasions jogging allegedly in the vicinity of her home at a time when, it was proved, he had his leg encased in plaster. The gunman she saw was some distance away, hiding behind another vehicle, and she alleged he was leaning across the passenger's seat. Her opportunity to observe him was therefore only "fleeting" and, as a result of the shooting, (some 30 shots were fired in her direction) she suffered shock.
18. In this account of events, which is taken from the report of Domican, the word "allegedly" appears to have been used to indicate that only a few of the evidentiary facts of the identification in that case were disputed, and that the others were not. The present case was different in many, if not all, respects. Constable Ogden had had the opportunity to view the appellant for some time only six days before the incident. There was therefore little delay in making the identification. If the jury accepted his evidence about the appellant's facial acne and his general appearance, it would have gone some way to confirming the reliability of his identification. In that particular, they were in a position to make their own comparison with the appellant in the dock at the trial. Ogden had, on his account of it, several opportunities to make, admittedly brief but studied, and not simply fleeting, observations of the driver of the utility. He was not in the position of one like Mrs Flannery, who suddenly and unexpectedly finds himself or herself in the middle of a shooting affray, in which attention is not being deliberately focused on the perpetrator.
19. We are bound to see that the necessary directions are given to ensure that juries are conscious of the risks that are inherent in honest but mistaken acts of identification. But the present case is not one that called for, or indeed permitted, the trial judge to single out particular matters that "can reasonably be regarded as undermining the reliability of the identification evidence" without intruding on the function of the jury in deciding whether Ogden should be accepted as a witness of truth, and, if so, which parts of his identification evidence should be accepted as reliable rather than mistaken. The technique adopted in the summing up of first isolating the potential problems of reliable identification in the prosecution case, and then stating the rival contentions about them, was in the circumstances a legitimate course for the judge to use. What, in the end, is required by the majority judgment in Domican v The Queen (1992) 173 CLR 555, 564, is -

"If the matters to which counsel has referred may reasonably be regarded as undermining the reliability of the identification evidence, the trial judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on that evidence."

20. In my opinion, the judge in his summing up here sufficiently discharged that duty. There is no reason to doubt the safety or correctness of the jury's verdict of guilty. The appeal against conviction should be dismissed.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 13 April 1999

1. The facts are sufficiently set out in the reasons of McPherson JA and Shepherdson J which I have had the advantage of reading.
2. In the present case the issues of truthfulness and reliability on the part of the principal Crown witness, Constable Ogden, were fairly raised. The distinction between truthfulness and reliability is an important one, and is illustrated by the classic case of the honest but mistaken witness where the courts are particularly concerned to warn juries of the dangers of identification evidence.
3. In this case the risk of a wrong result, or of a miscarriage of justice, lay in possible untruthfulness on the part of Constable Ogden rather than in any risk that the jury may not have been adequately instructed in the inherent dangers of identification evidence according to the requirements of Domican v R.[1] The question of honesty of an identifying witness may of course pose a preliminary question to a jury considering such an issue. But the subject of general credibility is considerably wider than that of the need to instruct juries on the dangers of evidence by which one human being identifies another.
4. Despite some success on the part of defence counsel in exposing variations in the details related by Constable Ogden on different occasions between the time when he prepared his statement and when he gave evidence at trial, his identification was based upon previous knowledge and observation of the appellant who if Constable Ogden is to be believed, was a person of readily recognisable appearance. Six days previously Constable Ogden had in investigating another matter had occasion to look at the appellant for a period of between five and ten minutes. The essential risk in the present case was not the risk of error which is the primary concern of cases such as Domican and Turnbull[2] but rather whether Constable Ogden was telling the truth.
5. That question was very much in issue in the trial. Defence counsel mounted a direct attack on Constable Ogden's truthfulness, inter alia accusing him of evasion, "gilding the lily" and "having a punt each way".
6. Sometimes the two issues may merge to such an extent that they become inseparable, but the present case does not seem to me to be one where the risk which Domican seeks to forestall was a real risk. In any event, it seems to me that the directions given by the learned trial judge adequately exposed the essential points that needed to be considered on such an issue. In the end the submission for the appellant is that his Honour did not give the stamp of judicial authority to certain "matters of significance" on which the defence relied. There is no complaint that his Honour failed to mention all relevant matters. Rather, the appellant contends that his Honour erred when, in identifying relevant issues (such as prior knowledge of the person identified, time and opportunity for observation and so on) his Honour proceeded to put the arguments of each side rather than adopt the defence submissions as matters that the jury was obliged to take into consideration. That submission is based upon the following extracts from Domican:

"The attention of the jury "should be drawn to any weaknesses in the identification evidence" (Kelleher v The Queen (1974) 131 CLR at p551).  Reference to counsel's arguments is insufficient.  The jury must have the benefit of a direction which has the authority of the judge's office behind it (Davies and Cody v The King (1937) 57 CLR 170 at pp182-183).  It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

...

If the matters to which counsel has referred may reasonably be regarded as undermining the reliability of the identification evidence, the trial judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on that evidence"^[3].

7. Some value judgment is involved in determining the relevant "matters of significance" which need to be given the stamp of authority of the judge's office, and different minds may well take different views on such questions. It is undesirable that courts of appeal should descend to undue nicety in identifying such matters, though it will be obvious enough when something of sufficient importance has been omitted. Reasonable latitude ought to be allowed to a trial judge in the choice of the matters which in the context of the trial warrant such treatment. Domican itself recognises that the requirement of fairness "does not oblige the judge to put to the jury every argument put forward by counsel for the accused ... Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence".[4]
8. Counsel for the appellant listed the following matters as those which should have been put to the jury as matters of significance that could reasonably be regarded as undermining the reliability of the identification evidence:

1. The different number of times Constable Ogden claimed to have had the opportunity to identify the driver during the chase.

2. The limited opportunity for Constable Ogden to see the driver's face as he turned around while the vehicle was stationary in King Street.

3. The fact that the remaining opportunities for identification arose during a car chase.

4. The fact that the descriptive feature of acne was mentioned by Constable Ogden at trial but not in his original statement.

9. Items (a) and (d) above are plainly matters of credibility and I fail to see that the learned trial judge was bound to enter the arena to the extent of giving judicial authority to such points. They were in any event ventilated and fairly put by his Honour to the jury. Items (b) and (c) above are instances of a point that was adequately explained to the jury, namely the danger of relying upon fleeting observations. Once again the summing-up on these points was in my view perfectly fair.
10. I do not consider that the summing-up as a whole reveals any error or breach of principle. The primary issue in this case would seem to have been one of credit, and the jury was prepared to accept the evidence of Constable Ogden which remained in all respects uncontradicted.
11. I also record my general agreement with the reasons of McPherson JA. The appeal should be dismissed.

REASONS FOR JUDGMENT - SHEPHERDSON J

Judgment delivered 13 April  1999

1. At a trial in the District Court at Mt Isa the appellant was convicted on 18 November 1998 on one charge of unlawfully using a motor vehicle and one charge of wilfully and unlawfully damaging property.
2. The offences were committed at Cloncurry on 21 January 1998 - the latter offence occurred when the vehicle the subject of the earlier charge was driven through a fence.
3. The offences were committed shortly before midnight on 21 January 1998. The only witnesses for the Crown were William Sadler, the owner of the relevant vehicle, a Holden Rodeo Utility and Constable Craig Alexander Ogden then of Cloncurry Police Station. The appellant did not give or call evidence.
4. Of the two witnesses at the trial only Ogden identified the appellant as the driver of the utility.
5. Sadler was a truck driver who, in his employment, was given the use of the Holden Rodeo. On 21 January 1998 he had driven to the Post Office Hotel in Cloncurry and parked the vehicle at the back of the hotel leaving the keys in the vehicle. At about 10.30 p.m. after having drunk about eight stubbies of beer, he left the hotel only to find the utility gone; he eventually called the police and Constable Ogden arrived. Sadler gave evidence that he saw his vehicle pass the hotel shortly before the police arrived, that he told this to the police, got in the police vehicle and set off to find the Rodeo.
6. He went on to say they found the Rodeo and followed it along a number of streets; he first saw the Rodeo turning left into King Street from Gregory Street; that at that stage he couldn’t see anybody in the vehicle, that he first saw there were two people in the Rodeo “when we pulled up, when we got close to it to identify the vehicle”; that he did not then notice any thing at all physically about the driver “but later down the road I did”; that on the road to the airport the police vehicle caught up to the Rodeo and "got right up along side of him".
7. Sadler said the driver's side front window of the Rodeo Utility was wound down as possibly were the windows in the police car. He described the driver as having a roundish sort of face with short cropped hair - a crew cut. He saw a passenger in the Rodeo - he presumed the passenger was a woman as the passenger had "longish sort of hair". He said that on the airport road the Rodeo braked suddenly and turned off the road and went through a fence. Sadler did not recognise the driver of the vehicle. He was not asked later to try to identify the driver by photographs or a line-up; he conceded his view of the driver was brief - "I had a quick look from the side that's about all". He told the court that at the committal hearing in Cloncurry on 8 July 1998 he did not identify the accused [who was present in court] as the driver.
8. Constable Ogden gave evidence that he first saw the Rodeo as "a set of tail lights at the very end of Ham Street", that the vehicle was stationary and he pulled up behind it, that there were three persons in the vehicle but one alighted from the passenger side. He said his main focus at that time was on the driver, that the Rodeo sped away and he could see two people in the car, that before the Rodeo sped away the driver of the Rodeo turned and looked in his (Ogden's) direction, that his focus was on the driver, that the driver looked at Ogden or in Ogden's direction for a period of two to three seconds, "it wasn't for a very long period", when the driver looked in his direction he was able to identify the driver as [the appellant - naming him]. He was asked "How was it that the driver turned, turned right or left?" and he answered "Over his left shoulder and looked like that". (T28/5) [The appellant was aged 16 years at the time and therefore is not named]
9. Ogden went on to say he pursued the Rodeo through a number of streets and quite early in this pursuit activated all the police lights and siren. The lights included a passenger side spotlight on the police vehicle. The pursuit ended along the airport road when the Rodeo braked and the police vehicle passed the Rodeo, which turned right down an embankment beside the roadway and drove through a fence into a paddock before leaving the area.
10. Ogden gave evidence-in-chief that during this pursuit he managed to pull level with the Rodeo several times. The first of these was in King Street (T30/5). He said "I wanted to get level with the offender's vehicle so that I could have a clear look at his face or attempt to have a look at his face"; he was able to do that (T30/8). He said he could see the driver was the defendant - "I observed the defendant I could see that he had short hair, I was so close that I could actually see acne upon his face and I could see sweat upon his face, I could see he had both hands on the steering wheel and was looking directly ahead". He said the vehicles would have been travelling between 40 and 60 kmph but he was unsure of that (T30/45). He told the court that on this occasion a spotlight which was in a fixed position on the passenger side of the police car and which covered a very broad radius, was alight. He said he could see the driver of the vehicle for possibly two to three seconds.
11. Ogden said he then drove the police vehicle behind the Rodeo and was next able to draw along side the Rodeo in Alice Street where he said he was able to get a clear view of the driver of the Rodeo for "I would say three to four seconds" (T31).
12. Constable Ogden went on to say that the Rodeo was driven along the Airport Road, that he was trying to keep the Rodeo in his sight and that on Airport Road he came up beside it on 3 occasions. While he could not say the exact distance the two vehicles travelled he said "It would have been at least 5 klms and possibly up to 10 klms" on Airport Road (T33).
13. He said that on the first of these three occasions he had a look at the driver for possibly three to four seconds, that on the second of these three occasions when he drew level with the Rodeo, he had a look for a period of three to four seconds and that on the third occasion when he drew level he was looking at the driver again and the Rodeo braked, the police vehicle passed the Rodeo and Ogden viewed the Rodeo in his rear vision mirror "from that point on". He saw the Rodeo leave the road, go through the fence and get away from the police car. Ogden said he did not see the appellant get out of the Rodeo and at no time was he "able to catch anybody at the scene of the utility".
14. After Ogden had given evidence-in-chief as to his having identified the driver on the occasion when the Rodeo pulled out and sped away and on the occasions in King Street and Alice Street when the police car drew alongside, Ogden was asked "When you saw the driver on these occasions was there anything noticeable or notable about the driver in his looks". He replied "I had reason to view the defendant a few days previously ... it was ... on 15 January as a result of another investigation I was helping the detective in Cloncurry with" - this investigation did not involve the appellant as a suspect. He told the judge and jury that when he saw the appellant on 15 January he "noted that he has distinctive features and that no person that I had come across in Cloncurry looked like him". When asked about the distinctive features he said - "he is a tall gangly sort of boy". He went on to say "I noticed that he was a tall gangly boy, he has since put some weight on. He had acne upon his face. He had short black hair. His features are just distinctive it stuck in my mind".
15. He was then asked in evidence-in-chief "And on the night of the 21st January the driver of the vehicle or the driver in the utility what did you notice about him or did you note anything particular about him?" and he answered "I noticed I recognised him as a person that I had come in contact with previously".
16. When Constable Ogden was cross-examined he said the two vehicles would have travelled at about 100 to 110 kph on the Airport Road (T37).
17. The following matters emerged in his cross-examination:

1. in a statement Constable Ogden had made on 6 March 1998 he failed to say  that one of the distinguishing features he noticed on the driver was acne on his face;

2. that although the Rodeo was later examined no evidence of fingerprints or other scientific evidence was available (T39/20);

3. there was a mesh divider on the front of the utility tray and head rests on the seats;

4. at the relevant time Constable Ogden had not lived long in Cloncurry and did not know the inhabitants well;

5. although he followed the Rodeo for seven to twelve klms Constable Ogden could give no description of the passenger; he considered the two persons in the vehicle were male and he could not recall long hair on the passenger.  He said a number of times that his focus was solely on the face of the driver;

6. Constable Ogden had taken a statement from a Linda Ann Oliver who apparently lived where the appellant lived but she was not called at trial, although to Ogden's knowledge she was in Cloncurry (T47);

7. Ogden was asked how many times he had made an observation of the appellant pulled along side that he could identify and he answered "I would say five occasions, the two times in town that I pulled level, three times out of town that I pulled level, the stationary time and viewing the offending vehicle driving down ... ".  He was interrupted by defence counsel who then asked  "How many times did you get along side?" and he answered "It would be in excess of possibly seven times".  (T51) He was then asked "You interviewed my client on 31 January and you put to my client in that record of interview that you only got up beside the vehicle three or four separate occasions" and he answered "That's right I did say that".  When asked to explain the difference between the possible seven times and the three or four occasions mentioned at the interview he said "Yes I can.  When I went back over the route I took the route very slowly and I recalled occasions that I had neglected to put in previously".  He conceded he was "Out by one occasion" but denied that he was out "By up to four" - "or at least three".         

18. When he was re-examined, Ogden said that on 15 January 1998 he looked at the appellant for "five minutes ten minutes" and that he "was standing very close to him, few metres away from him".

The principal ground of appeal relied on was Ground 2

19. This ground read "His Honour the learned trial judge failed to direct the jury about the dangers of convicting on identification evidence when the reliability of that identification evidence is disputed pursuant to the guidelines outlined by the High Court in R v Domican (1992) 173 CLR 555". Particulars are given in the notice of appeal.
20. The appellant's submissions to this Court are:

1. there was no proper warning by the learned trial judge and in the circumstances of this case when the only evidence connecting the appellant with the offences was that of Constable Ogden, lack of a proper warning constituted a miscarriage of justice;

2. His Honour's directions to the jury on the matter of identification did not have the authority of the judge's office behind it (Domican p.562) and were merely a repetition of counsels' arguments;

3. there were a number of inconsistencies in Ogden's evidence of identification and those inconsistencies were "matters of significance" which might reasonably be regarded as undermining the reliability of the identification evidence (Domican at p.562) and the learned trial judge in effect failed to isolate and identify them for the benefit of the jury.   

21. First as to the claim that there was no proper warning. The learned trial judge quite correctly told the jury "that the real question which will exercise your minds is the question of identification of the accused as the driver, and there of course the only evidence on which you could be satisfied beyond reasonable doubt comes from Constable Ogden".
22. His Honour then went on to say:

"Members of the jury it is true that you must be careful when approaching evidence of identification.  There have been in the history of our law a number of examples of false identification made by people who were clearly convinced that their identification was correct."

23. This passage constituted the warning which His Honour gave to the jury.
24. His Honour then went on to say:

"The first thing that you will consider when approaching questions of identification is the truthfulness of the witness who makes the identification." (T68)

25. In Domican the High Court of Australia has given directions to judges presiding at criminal trials where evidence of identification of an accused represents a significant part of the proof of guilt of the offence. The present case is one such - indeed the evidence of Constable Ogden is the only evidence of identification.
26. Domican is not limited to evidence of visual identification of an accused. In Domican six members of the High Court said (at pp.561-2):

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed (18).  The terms of the warning need not follow any particular formula (19).  But it must be cogent and effective (20).  It must be appropriate to the circumstances of the case (21).  Consequently the jury must be instructed "as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case (22).  A warning in general terms is insufficient (23).  The attention of the jury "should be drawn to any weaknesses in the identification evidence" (23).  Reference to counsel's arguments is insufficient.  The jury must have the benefit of a direction which has the authority of the judge's office behind it (24).  It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

27. The numbers quoted refer to cases mentioned in footnotes. It is not necessary to refer in detail to each of these footnoted cases, but I do think that trial judges called on to sum up on identification evidence can reasonably be expected to consult the footnoted cases in order to obtain guidance as to how to orally warn the jury and at the same time make that warning cogent and effective.
28. I do mention footnote (18) which cites Kelleher v The Queen (1974) 131 CLR 534 at p.551; Reg v Turnbull (1977) QB 224 at p.228; Reg v Burchielli (1981) VR 611 at pp. 616-619; Reg v Bartels (1986) 44 SASR 260 at pp.270-271.
29. Of these four cases I refer to the relevant passages in Kelleher and Turnbull. In Kelleher at p.551 Gibbs J (as he then was) said:

"I would respectfully endorse the words of Lord Morris of Borth-y-Gest in Arthurs v Attorney-General (Northern Ireland) (1970) 55 Cr.App.R.161, at p.168:

"It is manifest that in cases where the vital issue is whether the identification of the accused person is certain and reliable the judge must direct the jury with great care.  However careful is his general direction as to the onus of proof, the judge will feel it necessary to deal specifically with all the matters relating to identification."

In that case, which was one in which the witness who had identified the accused man knew him well, the House of Lords held that a summing-up which dealt fairly and amply with the evidence of identification could not be held as a matter of law to be defective if it did not contain a general warning to the jury of the dangers of acting on evidence of visual identification, and their Lordships left it open whether it was necessary to lay down any rule for the guidance of courts in a case in which a witness had identified someone he did not previously know and whom he had had only a limited opportunity to observe.  In Reg. v Long (1973) 57 Cr.App.R.871, the Court of Appeal (Criminal Division) held that in such a case a judge is not bound, as a matter of law, to give the jury a specific warning about the danger of convicting on such evidence.  However, it seems to me that although it is perfectly true that the adequacy of a summing-up can only be decided in the light of the circumstances of the particular case, and that where a warning is necessary no particular form of words is required, it is in practice generally desirable that where the case for the prosecution includes evidence of visual identification by a person previously unfamiliar with the accused, an appropriate warning should be given to the jury, since jurors may not appreciate as fully as a judge may do, or even at all, the serious risk that always exists that evidence of that kind may be mistaken.  The failure to give an adequate warning where one is required may have the result that the conviction must be quashed - a course that has been taken in a number of recent cases in Australia ... .  If a warning is necessary, the duty to give it will not be satisfactorily discharged by the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence."

[emphasis is mine]

30. Before leaving Kelleher, I would add that in his reasons for judgment immediately preceding the above quoted passage, His Honour had said (at p.550-1):

"It is now well recognized that grave miscarriages of justice are liable to occur in criminal cases by reason of the fact that witnesses, however honest and careful, may make mistakes in identification, particularly where the person identified was unknown to the witness before the commission of the crime.  Experience, including recent experience, has shown that such miscarriages can occur even when all the precautions provided by the law as safeguards against mistaken identification have been fully observed.  It is therefore obviously necessary that at a trial where the evidence implicating the accused is evidence that he was identified by a witness or witnesses who were not previously acquainted with him, both judge and jury should be constantly alert to guard against the possibility that the evidence may be mistaken and an innocent man convicted."

31. In Reg v Turnbull (1977) QB 224 Widgery CJ in reading the judgment of the Court of Appeal said:

"Each of these appeals raises problems relating to evidence of visual identification in criminal cases.  Such evidence can bring about miscarriages of justice and has done so in a few cases in recent years.  The number of such cases, although small compared with the number in which evidence of visual identification is known to be satisfactory, necessitates steps being taken by the courts, including this court, to reduce that number as far as is possible.  In our judgment the danger of miscarriages of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment.

First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications.  In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.  Provided this is done in clear terms the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.  How long did the witness have the accused under observation?  At what distance?  In what light?  Was the observation impeded in any way, as for example by passing traffic or a press of people?  Had the witness ever seen the accused before?  How often?  If only occasionally, had he any special reason for remembering the accused?  How long elapsed between the original observation and the subsequent identification to the police?  Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?  If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given.  In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them.  Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury  should be reminded that mistakes in recognition of close relatives and friends are sometimes made."

32. The present case was not one where the appellant was well known to Constable Ogden, and each of the above extracts from two of the cases noted at (18) mentions the nature of the warning the judges are required to give the jury. Kelleher makes it quite plain that a warning in general terms is insufficient (footnote 23 refers only to Kelleher at p.551) and that the attention of the jury should be drawn to any weaknesses in the identification evidence (footnote 23). Indeed, in Turnbull (at p.228) it was said that the learned trial judge should remind the jury of any specific weaknesses which had appeared in the identification evidence.
33. Against the backdrop of the cases cited in the footnotes and bearing in mind each warning is to be tailored to the circumstances of the particular case it is possible to distill some matters which in my view should be present in a warning. They are - the historical reasons for the warning - those stated by Gibbs J in Kelleher - that mistakes have occurred in the past and persons have been wrongly convicted on mistaken evidence of identification, that lawyers know these mistakes occur and most jurors probably do not (Burchielli at p.616); that a mistaken witness can be a convincing witness and a number of witnesses can all be mistaken (Turnbull at p.228).
34. The above observations of Widgery CJ in Turnbull (at p.228)can be of considerable help to trial judges in reminding them of a significant number of aspects of identification evidence that may need particular attention depending upon the circumstances of the case (see Finn (1988) 34 ACrimR 425 at p.436 (cited by the High Court in Domican at footnote (19)), where Lee J, after quoting what Widgery CJ had said at p.228 of Turnbull went on to say:

"In suggesting that that would be of assistance to trial judges I wish to stress as emphatically as I can that I am not in any way suggesting that any trial judge would merely ask a series of questions along the lines of what is contained in what I have read out, but it is a helpful summation of perhaps many of the significant aspects which do arise in identification cases and thus alert the judge to those matters which are in the evidence before him and thus enable him to deal adequately and fully with them.  I do not suggest also - and I make this clear - that particular circumstances in particular cases may add significantly to the list referred to by Widgery LJ, but the very reference to the list seems to me useful reminder of the kind of area over which the judicial mind should range in discussing the evidence with the jury in identification cases."                                     

35. It is quite apparent from the cases and especially from Domican that the High Court is very concerned to minimise the risks of innocent persons being convicted of crimes, where the convictions are based on mistaken identification evidence. I note that in Domican Brennan J (as he then was) said at p.569:

"The requirements of a direction necessarily vary with the evidence and the conduct of a case (Reg. v Dickson [1983] 1 VR 227 at p.230); the standard is determined by what is required to alert the jury to dangers of which they may not be sufficiently aware, notably the "ghastly risk [of mistaken identification] run in cases of fleeting encounters" (Reg.  v Oakwell, [1978] 1 WLR 32, at pp.36-37; [1978] 1 All E.R. 1223, at p.1227, cited in Reid (junior), [1990] 1 AC at p.380); and "the risk that honest and convincing witnesses may be mistaken, especially where their opportunities for observing a previously unknown offender were limited" (Reg.  v Dickson, [1983] 1 VR, at p.231, cited in Reid (Junior), [1990] 1 AC at p.381)."

36. In my view the warning given by the learned trial judge in the present case was insufficient to bring home to the jurors the dangers of convicting on the independent evidence of Constable Ogden. The words actually used by His Honour do not say that in the past people have been convicted on the basis of false identification by persons who were clearly convinced their identification was correct. It is true that the fact of false evidence leading to convictions may be inferred from what His Honour said, but given that jurors are unlikely to know that in the past mistakes in visual identification which led to convictions have occurred and can occur (see Burchielli at p.616) simply to tell the jury the need to be careful when approaching evidence of identification meant that the warning was not effective. In the present case the warning also needed to bring home to the jury the historical reasons, and that a mistaken witness can be a convincing witness.
37. In Domican the High Court in support of its statement that the warning must be cogent and effective, at footnote 20 on p.562, relied on Reg v Dickson (1983) 1 VR 227 at p.230. At that page the Full Court of the Supreme Court of Victoria had said:

"It is made clear by Burchielli's Case and the cases on which it is based that what is an adequate warning depends on the circumstances of the particular case.  Judges' charges in criminal trials ought not to be the places for the compulsory recitation of formulae.  What is required is that the trial judge in words which he chooses and in a form which he considers proper gives his own authoritative warning as the judge, effectively warning the jury that particular dangers exist in the evidence before them, by identifying, explaining and bringing home to the jury those dangers.  He should convey to the jury that they must give consideration to those dangers.  Every warning on visual identification must be tailored for the particular case, as to what it includes or leaves out and as to the way in which it is given."

38. In the present case, the learned trial judge having given the warning which I have earlier set out, then addressed the jury on the aspect of truthfulness of Constable Ogden and the failure by Sadler to make any identification at all, although as the defence said, Sadler had a far better opportunity than Ogden to see the driver of the utility.
39. His Honour then went on to refer to a defence submission that in common experience mistakes in identification are made. He gave an example. He mentioned matters the jury had to take into account being "all the relevant features relating to the identification" (T70). The first matter was the knowledge that the identifying witness had of the person identified. His Honour referred to Ogden's evidence as to his having looked at the accused only six days earlier, saying:

"The Crown says this is a case in which Constable Ogden only six days earlier had had a very good opportunity to look at the accused.  He was investigating a matter which did not make the accused a suspect but involved him actually looking at the accused for some 5 to 10 minutes which is a very long time.  If you take the trouble to watch the clock for 5 or 10 minutes you will realise how long that takes, and the Crown says that is what happened in this case. 

Constable Ogden, who the Crown submits to you is an intelligent, efficient policeman, actually looked at the man at the accused for some 5 to 10 minutes only six days earlier.  To that the defence says - Well it was only one occasion. It's not as if he knew him well.  It was just an occasion where even the fact that he wasn't a suspect means that he probably didn't look at him as carefully as he might otherwise have done and on that occasion the defence says to you, his recollection of what the accused was wearing, for example, appears to be completely absent, so it doesn't appear says the defence that Constable Ogden did make a careful note of what he was like on that occasion."

40. The next "circumstance of the identification" which His Honour told the jury they might consider was important, was how long the person identifying had the identified person under observation "on the important occasion in this case" (T71).
41. Again His Honour discussed the evidence on this aspect in the format of saying "the Crown case is" or "the Crown would say" and "to that the defence says". His Honour told the jury:

"So the Crown case is that that night Constable Ogden had a great deal of time in which he was able and did look at the accused - or the driver shall we say the driver.  To that the defence says well it appears that Constable Ogden's occasions have increased from three or four now on a previous occasion and he said now up to seven occasions, that might make you doubt his veracity or his accuracy.  He might consciously or unconsciously be gilding the lily".

42. Next the learned trial judge told the jury the opportunity to observe was important (T72). Again, His Honour discussed this aspect in terms of what the Crown said and what the defence said and included a reference to the Crown having said there was good light because there was "this side spotlight". [obviously meaning the spotlight on the passenger side of the police car].
43. His Honour told the jury they had to ask themselves in identification cases "did the person described by Constable Ogden and the accused have any matching particularly strange identifying features?". His Honour referred to a defence submission that there was nothing particularly out of the ordinary in the look of the driver and then said:

"Constable Ogden described him as having some acne and that was challenged by the defence.  There was sweating and he had dark short hair.  He appeared to be apparently a tallish fellow.  Well the Crown puts these forward as features into which the accused fits.  The defence says yes - but so what?  They are not very special features and the defence adds the submission that there was no mention of acne until today.  The defence reminds you that there is no identification of the clothing that was being worn by the driver on that occasion.  And the defence points out that there is no corroborative evidence at all, nothing left in the car, a cap, something like that that could be traced to the accused.  Most relevantly no fingerprints to which the Crown says well that's not surprising ... ."

44. I have found it necessary to mention the above aspects of the summing-up because of the submission by Mr Devereaux, counsel for the appellant in this Court, that not only was there a lack of proper warning but the learned trial judge's directions amounted to a mere repetition of counsel's arguments and not "a direction which has the authority of the judge's office behind it." (Domican at p.562)
45. In his submissions Mr Devereaux has identified the following matters which he submits were specific weaknesses in the identification evidence and matters of significance which might reasonably be regarded as undermining the reliability of the identification evidence:

1. the different number of times Constable Ogden claimed to have had the opportunity to identify the driver of the vehicle;

2. the limited opportunity for Ogden to see the face of the driver as the driver turned his head around while the Rodeo was stationary in King Street;

3. the fact that the remaining opportunities for identification arose during a car chase during which the Rodeo was on occasion seen to weave across the road;

4. the difference between Constable Ogden's evidence at trial that he saw acne on the driver's face during the chase and his statement of 6 March 1998, in which he failed to mention this matter.

46. It may well be that each of these discrepancies in (a) and (d) above when viewed separately and in isolation from the other three matters might not amount to a matter of significance. However, it must be remembered that the only evidence of identification of the appellant as the driver came from Constable Ogden and any weaknesses in his identification evidence were significant on the question whether the Crown had proved beyond reasonable doubt that the appellant was the driver. Thus in this case the judge's obligation to comply with Domican was even more important. Ogden's evidence of identification was the Crown case against the appellant. In my view, these discrepancies (a) and (d) taken together and combined with the matters in (b) and (c) were capable of amounting to a matter or matters of significance which might have reasonably been regarded by the judge and by the jury as undermining the reliability of Ogden's identification evidence. It is true that His Honour did tell the jury of the defence submission that Ogden did not mention acne until the trial. It is also true that Ogden told the court that when he looked at the accused on 15 January he saw he had acne. At the trial he told the court that when in King Street, he pulled level with the utility, he was so close he could actually see acne upon the driver's face. In cross-examination Ogden said that seeing the driver had acne was a distinguishing feature, and that he must have forgotten to put that fact in his statement of 6 March 1998.
47. On my reading of the summing-up, the learned trial judge did not identify any matter of significance which might reasonably be regarded as undermining the reliability of Constable Ogden's identification evidence although such matters were present. When addressing the jury on each of the features he regarded as relevant to the identification of the appellant as the driver, His Honour invariably recited what the Crown said and what the defence said. Ogden was the sole witness who had purported to identify the appellant as the driver and his evidence contained certain weaknesses. If the jury were not satisfied beyond reasonable doubt to accept Ogden's visual identification evidence they must have acquitted.
48. In Domican the High Court has emphasised the need for the trial judge to isolate and identify for the jury any such matters of significance and, where there are weaknesses in the identification evidence, the need for the jury to have the benefit of a direction "which has the authority of the judge's office behind it". Trial judges in cases such as the present do have considerable burdens placed on them when it comes to summing-up.
49. The jury's consideration of each weakness or all weaknesses (set out in paragraph 45 (ante)) involved consideration of the credibility of Constable Ogden. Each weakness was also concerned with the quality of his evidence of visual identification. In respect of those weaknesses there was no direction to the jury with the authority of the judge's office behind it. In my view simply to state each side's arguments in respect of those weaknesses does not amount to a direction with the authority of the judge behind it. The High Court have said "Reference to counsel's arguments is insufficient".
50. Domican has given judges a difficult role. The trial judge tells the jury the facts are for them alone, yet in giving the direction "with his authority behind it", the trial judge in a case such as the present is apparently expected to or may well tilt in favour of the accused person the balance of an otherwise balanced summing-up.
51. It may be that this is the price the community is expected to pay, in order to avoid the "ghastly" risk of a conviction based on mistaken identification.
52. It is not unimportant that in the present case, the appellant's counsel in seeking re-directions asked the learned trial judge to give "a Domican direction" and quoted from part of the High Court's judgment.

His Honour declined to give any further directions on identification.

53. The need to draw to the jury's attention weaknesses in identification evidence is not novel - see Kelleher and Turnbull. I have concluded that the learned trial judge's failure, in the respects above set out, gave rise to a miscarriage of justice and I would allow the appeal, set aside the convictions and order a new trial.
54. I note that in an article "Practical Advocacy" (1993) 67 ALJ 440 at 441, Mr Justice Phillips, Chief Justice of Victoria has discussed Domican's case and concluded by saying:

"And finally, the ascertainment of the 'weaknesses' is plainly best done before final addresses commence - the advocates' duty to the judge in this respect is then discharged and they have the advantage of knowing, before that vital period of any trial, of the matters which will later be put to the jury with the  'the authority of the judge's office' behind them."   

55. I would recommend that the advice of Mr Justice Phillips be followed and that at the conclusion of the evidence in a case where evidence as to identification represents any significant part of the proof of guilt of an offence, and before addresses begin, the trial judge should, in the absence of the jury, hear submissions from trial counsel with a view to finding out what (if any) each side says are the weaknesses in the identification evidence or any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. Of course counsel's views do not conclude matters for the trial judge who is expected to apply his mind independently to the matters raised in Domican.