SUPREME COURT OF QUEENSLAND

1. McMURDO P:  Keane JA has set out the issues and the most pertinent facts so that my reasons for also refusing the appeal can be quite shortly stated.

2. In addition to the matters set out by Keane JA, I mention the following. Although it was not suggested by counsel that the shotgun could have been discharged into the deceased's head otherwise than deliberately by the killer, s 23(1)(a) Criminal Code was left for the jury's consideration.  Mr Weir's shotgun, the weapon used to kill the deceased, was tested and found to be safe in all respects. 

3. It was also examined for fingerprints. The only fingerprints found on it belonged to the deceased. The appellant's fingerprints were not located at the crime scene nor in Mr Weir's Rover car.

4. On 16 September 1997 the videotape of Mr Weir's forced confession to growing cannabis was located inside a video camera in the rear of the deceased's vehicle, which had been in the possession of the appellant. The deceased's fingerprint was located on the video camera.

5. Mr Weir gave evidence that his ordeal on 11 September 1997 at the hands of the deceased and "Fraser" took place over about four hours. He reported the attack and the shooting of the deceased to Council subcontractor, Mr Paxman, at the front gates of the former lion park property ("the property") at about 2 pm. After Mr Weir made his complaint and when Mr Paxman was speaking by phone to police, Mr Paxman saw a vehicle similar to the deceased's blue Rodeo come out of the gate of the property. The other Council subcontractor with whom Mr Paxman was working, Mr Rosentreter, did not see this vehicle.  Ms Styles saw a man arrive at the front gate of the property in a blue dual cab utility similar to that of the deceased, unlock the gate and drive inside sometime after midday.  Mr Box, whom she met there, also saw this vehicle arrive and depart at least once after 12.15 pm.  The only persons seen to leave the property after the deceased's killing were the appellant in the blue Rodeo and Mr Weir on foot.

6. The appellant gave evidence that the deceased was the only person he saw when he visited the property on 11 September 1997; he did not see any vehicles other than the deceased's. He could give no explanation as to how the video tape of Mr Weir's interrogation and forced confession came to be inside a video camera in the deceased's vehicle in his possession on 16 September 1997.

The identification evidence (Grounds of appeal 2 and 4)

7. As I apprehend it, the trial commenced on the understanding of both counsel that Mr Weir's evidence of identification was limited to his qualified recognition of the voice of the appellant from 11 voice recordings played to him by police. Defence counsel did not object to the evidence of voice identification. In his evidence in chief at trial, Mr Weir was asked about the committal proceedings in May 1998 brought against him for the charge of murdering the deceased, a charge later dropped. He said, "The man I knew as Fraser was there", that is, at Mr Weir's committal proceedings. Mr Weir completed his evidence in chief on 23 August 2006, the third day of the trial. The trial judge then acceded to defence counsel's stated preference (without objection from the prosecution) to delay cross-examining Mr Weir until later in the trial.

8. On Monday, 28 August 2006 the prosecutor asked the judge's leave to ask Mr Weir a further question before his cross-examination, to clarify what he meant by "The man I knew as Fraser was there". Defence counsel then stated that over the preceding weekend he had become aware for the first time that on 11 November 1997, well before Mr Weir's committal proceedings for murder were conducted and he purported to identify the appellant as Fraser, Mr Weir had been shown a "video line-up" of persons including the appellant; he did not identify the appellant as "Fraser"; instead he stated, "I wasn't in a position to see anybody and I didn't identify anybody at the time on the night." Defence counsel asked the judge to discharge the jury.

9. The judge was puzzled as to why this might be a basis for discharging the jury, astutely noting that Mr Weir's failure to identify the appellant seemed very helpful to the defence case. The judge suggested that the prosecution call Mr Weir on a voir dire examination in the absence of the jury to clarify his evidence about the visual identification of the appellant and to allow defence counsel an opportunity in the absence of the jury to explore in cross-examination this issue, raised for the first time in his evidence at trial.  The judge indicated that, after hearing the evidence on the voir dire, defence counsel could make further submissions (inferentially as to applying to exclude the evidence or for a mistrial).  Mr Weir when cross-examined by defence counsel in the absence of the jury said that although he in fact identified the appellant as "Fraser" in the November 1997 line-up, he told police he did not because "Fraser" had threatened him and his daughter. 

10. At the conclusion of Mr Weir's evidence on the voir dire defence counsel did not renew his application to exclude the evidence or to discharge the jury.  It seems he made a tactical decision to allow Mr Weir to give the new evidence of visual identification and to use his extraordinary and inconsistent approach to the claimed visual identification of the appellant to attack Mr Weir's credibility generally, which was after all central to the prosecution case against the appellant.  The trial then proceeded accordingly.

11. The evidence of both Mr Weir's voice and visual identifications of the appellant were clearly relevant and admissible in law. No objection was ever taken to the admission of the voice identification. I do not apprehend that objection was finally taken to the admission of the visual identification after it was explored by defence counsel on the voir dire; nor did defence counsel renew his application to discharge the jury.  There were sound tactical reasons for this approach.  No doubt he was content to conduct the trial with this new and promising avenue of cross-examination, that Mr Weir had said in November 1997 shortly after the killing that he was unable to identify the appellant as "Fraser" in a "video line-up".  Having embarked on that tactical course at trial, the appellant is not well placed to now argue that the judge erred either in not excluding the visual identification evidence, which he was not ultimately asked to exclude, or in not ordering a mistrial which he was not ultimately asked to order.  The appellant could only succeed on these grounds if he demonstrated that a miscarriage of justice has resulted from the admission of the evidence or from the failure to discharge the jury. 

12. The evidence of both the audio and visual identifications was admissible but was not, alone or in combination, of sufficient weight to convict the appellant. When combined with the other evidence in the case the jury would have been entitled to act on either or both identifications if, after heeding the judge's pertinent warnings and directions, they were satisfied of the honesty and reliability of the identifications. The careful and comprehensive warnings and directions given by the primary judge to the jury as to the dangers and weaknesses of the evidence of the identifications (set out in Keane JA's reasons) ensured that no miscarriage of justice arose out of admitting the evidence unless the verdict itself was unreasonable on the whole of the evidence. That disposes of grounds of appeal 2 and 4 which must, in my view, fail, and takes me to consideration of the remaining grounds of appeal.

Was the verdict open on the evidence?  (Grounds of appeal 1 and 3)

13. Mr Weir's audio and visual identifications of the appellant as "Fraser" standing on their own or in combination were not sufficient to establish the appellant's guilt because of the inconsistencies in the visual identification and the qualified nature of the audio identification. Mr Weir's version of events was, however, supported by other evidence.

14. The appellant gave evidence that he had possession of the deceased's blue Rodeo vehicle from about 11.30 pm on 10 September 1997. At about 1 pm on 11 September 1997 he drove to the deceased's residence at the property in the blue Rodeo at the deceased's request to help him move some goods. Whilst the deceased was in one of the houses at the property the appellant heard a very loud gunshot and he fled in the deceased's blue Rodeo. The appellant agreed the deceased was the only person he saw at the property; he did not see any other vehicles. Some of Mr Weir's goods were later found in the appellant's Landcruiser.  The video tape and camera were in the deceased's blue Rodeo which the appellant drove from the property after the killing and kept in his possession until it was taken by police on 16 September 1997.  The appellant had no explanation for why or how he was in possession of these items.  He disposed of other of Mr Weir's goods to Dion Dagger on the night of 11 September 1997 explaining, "Something has gone wrong.  I was helping a mate to collect his stuff.  I think my mate has been shot."   The appellant falsely denied to police that he was not present when the deceased was shot.

15. The only people seen to leave the property after the killing were the appellant in the blue Rodeo and Mr Weir on foot.

16. Mr Weir's evidence that he was assaulted, tortured and threatened with his own shotgun over a four hour period by the deceased and another person was supported in a general way by the finding of the video tape in the deceased's video camera and the deceased's fingerprints located on the camera, the shotgun and on the note that Mr Weir was forced to write. The bindings observed on Mr Weir when he left the property, the video taped and handwritten confessions and the significant injuries he received seemed more consistent with two assailants rather than one. Mr Weir denied killing the deceased.

17. The deceased was killed by Mr Weir's shotgun fired at close range into the back of the head. The weapon was not prone to accidental discharge.

18. There is no evidence that anyone other than Mr Weir, the deceased and the appellant were present at the time of the killing. Mr Weir's physical injuries, forced video taped confession and the methods used to tie him up seem inconsistent with this being done by the deceased acting alone. Mr Weir's evidence required careful scrutiny before acceptance but the jury were entitled to believe his account of being attacked by the deceased and "Fraser", an account supported by other objective evidence. They were also entitled to accept Mr Weir's evidence that he did not kill the deceased and that "Fraser" was the killer.

19. Mr Halse gave evidence that he saw in the vicinity of the property early in the morning of 11 September 1997 a blue Rodeo utility (a vehicle similar to the deceased's vehicle, which was then in the possession of the appellant on his own evidence). This was consistent with the appellant being at the property early on 11 September and inconsistent with his account of not arriving there for the first time until about 1 pm. The significance of this evidence is that it is consistent with the appellant's involvement with the deceased in the prolonged attack on Mr Weir and with Mr Weir's identification of the appellant as "Fraser" and inconsistent with the appellant's version.

20. The jury were entitled to reject the appellant's exculpatory evidence.

21. After acting on the judge's careful warnings, the jury were entitled to regard Mr Weir's qualified audio identification of the appellant as the killer "Fraser" as a significant piece of circumstantial evidence which, in combination with the other evidence capable of acceptance to which I have referred, established beyond reasonable doubt that the appellant murdered the deceased.  I am conscious that jurors may sometimes give positive identification evidence, especially visual identification evidence, greater weight than it is entitled: see McHugh J's observations in Festa v The Queen.^[1]  But, after taking note of the judge's careful directions on that evidence and placing it in the context of all the other evidence at the trial, the jury was entitled to consider as plausible Mr Weir's explanation for lying about not identifying "Fraser" at the "video line-up" in November 1997 (his fear for the safety of his daughter and himself) and that his subsequent identification of the appellant as "Fraser" at his own committal proceedings in May 1998 was reliable.     

22. It follows that, despite the many unanswered questions about exactly what happened in the course of events leading to the deceased's death on 11 September 1997 and why he was killed, I am satisfied that on the whole of the evidence it was reasonably open to the jury to find the appellant guilty of murdering the deceased. I am also satisfied that because of the careful directions and warnings of the primary judge, the jury would not have placed undue weight on Mr Weir's visual and audio identification of the appellant as "Fraser". Grounds 1 and 3 also fail.

23. I would dismiss the appeal against conviction.

24. KEANE JA:  On 8 September 2006, the appellant was convicted of murder after a trial before a jury in the Supreme Court of Queensland.  He was also convicted of a number of lesser offences:  entering a dwelling with intent to commit an indictable offence, armed robbery in company, assault occasioning bodily harm in company and deprivation of liberty. 

25. The appellant challenges his convictions on the following grounds:

"1.The verdict was unsafe and unsatisfactory.

2. There was a miscarriage of justice in that the Judge erred in allowing the identification evidence of Michael William Weir to go to the jury.
3. The verdict was against the evidence, against the weight of the evidence and/or unreasonable.

and

4. The learned trial judge erred in failing to discharge the jury upon the application by the appellant."

26. The first and third grounds of appeal must be understood as involving the contention that, upon the whole of the evidence, a reasonable jury could not have been satisfied beyond reasonable doubt that the appellant was guilty.^[2]

The Crown case

27. The Crown case was that, on 11 September 1997, the appellant and Tony Robert Stevens attacked Michael William Weir ("Mr Weir") at the old Bullen's Lion Park at Yatala. They tied Mr Weir up and proceeded to rob him. They threatened to shoot Mr Weir. The incident concluded when Stevens was killed by a blast from a 12-gauge shotgun which Mr Weir kept on the premises.  Stevens was shot in the back of the head from a range of between 30 and 75 centimetres.  The trajectory of the shot was downwards at an angle of approximately 15 degrees from the horizontal.  It was not suggested that the shotgun could have been so discharged into Stevens' head otherwise than deliberately by whoever it was who fired the shotgun.  The Crown case was that the shot was fired by the appellant.

The evidence at trial

28. Mr Weir was the principal witness for the Crown. He was 62 years of age at the date of trial which began in August 2006. He gave evidence that he was the caretaker at the old Lion Park. He lived in a dwelling at the old Lion Park. With Mr Weir's agreement, Tony Stevens moved into a smaller residence in the old Lion Park between four and six weeks before these events which gave rise to the proceedings occurred.

29. According to Mr Weir, Stevens was a friend of a friend. Mr Weir and Stevens had not met previously but soon discovered that they shared an interest in cannabis, a small amount of which Mr Weir cultivated in a room inside his residence. Stevens became aware of the cannabis crop, and suggested expanding the growing operation to other areas of the old Lion Park. Mr Weir did not agree to this suggestion. The relationship between Mr Weir and Stevens deteriorated. Mr Weir was unhappy with what he described as Stevens' mood swings.

30. On the morning of 11 September 1997, Stevens invited Mr Weir to come into his dwelling to see a new mattress which he had bought. As Mr Weir walked through the door, he was "king hit in the side of the face" and fell to the floor. He was aware of another man who tackled him to the floor and started punching him hard in the right-hand side. Stevens was kicking him. A knife was held to his side, and he was told to keep still. He was told to call Stevens' accomplice "Fraser". At Stevens' residence, Mr Weir's tracksuit was pulled down and his ankles were taped together with gaffer tape.

31. Mr Weir was taken back to his own residence where he was subjected to a lengthy period of torture. The assailants took Mr Weir's clothes off. He was tied up again with gaffer tape, and forced to swallow some tablets which were apparently intended to "make things easier". Mr Weir's assailants had a video camera. Mr Weir was compelled to participate in making a video which showed him in the room used to grow cannabis, and to confess for the video to large-scale cannabis production. The videotape was tendered in evidence. It appears to have been common ground that the videotape was found in the appellant's possession. In order to encourage Mr Weir's participation in the making of this self-incriminating video, Mr Weir was threatened with his own shotgun which had been found by his assailants. Stevens forced Mr Weir to sign a note saying that Mr Weir was leaving the old Lion Park. This note was found to have one of Stevens' fingerprints on it. Mr Weir heard his assailants emptying the house of his belongings. Mr Weir also heard his Rover motor vehicle being started up. Stevens and the other man threatened to kill Mr Weir and his daughter, whose photograph they had found, if Mr Weir informed on them to the police.

32. Mr Weir said in evidence that, shortly after the initial assault, his attackers had thrown an old jumper over his head. Later, this was replaced with an airline sleeping mask. Mr Weir said that he saw Fraser before the jumper was pulled over his head, once more when the jumper slipped down and once more when the airline sleeping mask was put on him.

33. I note here that Mr Weir's identification of the appellant as Fraser was controversial. In this regard, Mr Weir had not met Fraser before the incident of 11 September 1997. On 23 September 1997, Mr Weir identified the appellant's voice as Fraser's voice. Police played tapes of a number of voices to Mr Weir. He believed that he recognised one of these, "voice number 5", the voice of the appellant, as "similar" to that of Fraser; but he "couldn't swear to it". Mr Weir described Fraser as having a "Kiwi accent". The accent of the voice in question on the recording (which was played to this Court on the hearing of the appeal) is not noticeably that of a New Zealander. It may fairly be said that Mr Weir's identification of the appellant's voice was equivocal at best. The appellant also participated in a police line-up on 11 November 1997, but Mr Weir did not identify the appellant as Fraser on that occasion. In fact, he told police that he did not recognise any of the persons in the line-up. Mr Weir said in evidence that he did not identify the appellant to police on this occasion because he was in fear of the appellant who had threatened to kill him and his daughter if Mr Weir identified him as Mr Weir's attacker.

34. Near the end of Mr Weir's ordeal on 11 September 1997, Fraser went outside. Mr Weir thought that he heard Fraser call out "Are you there, Scott?" Stevens went to the back door and opened it. Mr Weir then heard the following conversation. Stevens said: "Oh, it is only you … What did you call me Scott for?" Mr Weir heard a reply: "It doesn't matter, we're going to blow him away anyway." Mr Weir heard some further whisperings, and then there was the loud report of the shotgun. Fraser then came up to the bed and leaned over Mr Weir and said: "You know what I've just done? … I've just shot Tony Stevens. Can you get rid of the body?" Mr Weir said:  "Well, there is a few waterholes inside the Lion Park … Yeah, I'll do that."  Fraser, who had cut the tape binding Mr Weir's hands prior to Mr Weir hearing the shot, then said:  "Just lie there for half an hour until you can't hear anything and you can get up."  Before Fraser left, Mr Weir said:  "Where is my Rover?"  Fraser said:  "Don't worry, it is parked in the Lion Park" or "It is parked not far, just over the fence." 

35. When Fraser left, Mr Weir got up. As he emerged from his bedroom, he saw Tony Stevens lying down flat with Mr Weir's dressing gown thrown over him. Mr Weir walked to the front gates of the old Lion Park where he saw two council workers in a truck. He told them that there had been a man killed in his house and asked them to call the police and an ambulance. At this point, according to the council workers, Mr Weir had tape wrapped around one wrist, the other wrist was red, and there were marks on his face.

36. Mr Weir was himself charged with the murder of Stevens; but there was no gunshot residue found on his person such as would have been consistent with his having fired the shotgun, and his injuries provided strong support for his account of the assault. On 12 September 1997, the government medical officer saw multiple abrasions on Mr Weir's hands, torso, legs and face, and he had a lump and a bruise on the back of his head and an abrasion over his ear. As will be seen, Mr Weir's account of the robbery was further supported by the discovery of his goods in the possession of the appellant, the finding of Stevens' fingerprint on the note that Weir said he was forced to write, and evidence that the appellant had obtained possession of a video camera on the night of 10 September. The charges against Mr Weir were dropped after a committal hearing in 1998 at which the appellant gave evidence against him. At the trial, Mr Weir said he recognised the appellant at the committal as Fraser.

37. Mr Weir's assailants took the cannabis plants from the growing room and the lights used in the hydroponic growing operation. Among the other goods stolen on 11 September, Mr Weir was able to identify a number of personal items, such as a black leather jacket, a Filofax, a leather case, a Swiss Army knife, and a Braun electric shaver. On 16 September 1997, Mr Weir's Swiss Army knife was found by police in an unregistered motor vehicle at the appellant's shed at Capalaba. The Braun shaver was found in the appellant's caravan. The appellant, at that time, said that he had purchased the razor some two or three months earlier at the Capalaba markets. A Gold Lotto card in the name of Mr Weir and an envelope addressed to him were found in a drum in a box trailer at the appellant's shed. Some grey tape, similar to that used to restrain Mr Weir, was also found in the boot of another vehicle at the appellant's shed.

38. Police interviewed the appellant who signed a handwritten statement in a police notebook. The appellant's statement was to the effect that he knew Stevens who was a dealer in cannabis. On the afternoon of 9 September 1997, the appellant found Stevens at his (the appellant's) workshop. Stevens asked the appellant to fix his Rodeo. They went out together drinking and parted company at 11.30 pm. The appellant kept the Rodeo for later collection by Stevens. The appellant denied that he had been present when Stevens was shot. The Crown relied upon this denial as a lie told by the appellant to distance himself from the killing of Stevens because of a consciousness of guilt in that regard.

39. A statement by the late Dion Dagger and evidence given by him at the appellant's committal hearing were admitted in evidence at trial pursuant to s 111 of the Justices Act 1886 (Qld).  According to Dagger, the appellant arrived at his home in a blue four-wheel drive vehicle late on the night of 11 September 1997.  The appellant was then in possession of two leather jackets, some pornographic videos, and lights specially adapted for the hydroponic cultivation of cannabis.  The appellant said to Dagger:  "Something has gone wrong.  I was helping a mate to collect his stuff.  I think my mate has been shot.  Can I store this stuff at your place for a while and you can have the jackets and videos?"  Mrs Joanna Dagger gave evidence consistent with this account.

40. A Mr Halse gave evidence that, between 6.30 am and 7.00 am on the morning of 11 September 1997, he was walking in the vicinity of the old Lion Park when he heard the rattle of a chain at the gate and saw a blue Rodeo utility.

41. The appellant gave evidence at trial that, on 11 September 1997, he drove Stevens' Rodeo to the old Lion Park, at Stevens' request, to help Stevens move some of his goods prior to Stevens moving out of the old Lion Park. When the appellant arrived at the old Lion Park, Stevens was speaking softly in a way that aroused the appellant's suspicions. Stevens directed him to a couple of speakers which had to be put in the car. While Stevens was in one of the houses at the park, the appellant heard a very loud gunshot which caused him to flee the site in Stevens' motor vehicle.

42. The appellant was pressed in cross-examination as to how he had come to be in possession of items of personal property taken from Mr Weir on 11 September 1997. He offered no explanation.

43. Of even greater significance, there was no suggestion by the appellant, whose evidence placed him squarely at the scene of the killing at the time it occurred, that there was any person (such as "Scott") at the scene other than himself, Mr Weir and Stevens. The appellant said that he saw no other vehicles in the old Lion Park, and that, immediately before the shooting, he did not hear any voices.

The first and third grounds of appeal

44. These grounds of appeal may conveniently be dealt with together. The jury were clearly entitled to conclude beyond reasonable doubt that the shotgun had been fired deliberately into the back of Stevens' head. On the evidence, and putting entirely to one side Mr Weir's identification of the appellant as Fraser, there could be no reasonable doubt that Stevens had been killed by either Mr Weir or the appellant.

45. Counsel for the appellant hypothesised that there was another person present when Stevens was shot. In my respectful opinion, the only hypothesis consistent with the appellant's innocence fairly raised by the evidence at trial was that Stevens had been killed by Mr Weir. The evidence of the appellant did not suggest that any person other than himself, Weir and Stevens were present at the time and place Stevens was shot. Not only did the appellant not say that he saw anyone else present at that time, he did not suggest that anyone else left the old Lion Park with him. Nor was such a possibility raised by Mr Weir's evidence. On Mr Weir's account of the conversation, there was no person "Scott" present in addition to Stevens and Fraser. The evidence, quite apart from Mr Weir's evidence of identification of the appellant, was plainly capable of persuading the jury beyond reasonable doubt that Mr Weir had not killed Stevens. On that evidence, including, importantly, that of the appellant, there was no other candidate, as the killer of Stevens, than the appellant. The jury could have rejected Mr Weir's evidence of his identification of the appellant, but still have acted upon Mr Weir's other evidence, supported as it was by the confessional videotape "starring" Mr Weir, Mr Weir's note with Stevens fingerprint on it, and the absence of evidence that any person other than the appellant, Weir and Stevens were present when Stevens was shot, to conclude beyond reasonable doubt that it was not Mr Weir, but the appellant who shot Stevens.

46. The appellant argued that no sensible motive was established for the appellant to kill Stevens. That argument is beset by a number of difficulties. First, the appellant did, after all, take Stevens' motor vehicle and other property. Secondly, there can be no doubt that, on 11 September 1997, Stevens and his accomplice were apparently driven by desires which, inevitably, must seem bizarre to law abiding citizens. Further, this is a case which is, at best for the appellant, one where there is an absence of proven or apparent motive as distinct from proven absence of motive. As was emphasised in De Gruchy v The Queen,^[3] this distinction is important.  It simply cannot be said that the appellant had no motive to kill Stevens.  In any event, Mr Weir, the only other candidate as Stevens' killer, had no real motive for killing Stevens, unless his account of the assault upon him was true, and if it was, his opportunity to kill Stevens is purely speculative. 

47. Finally, it cannot be said that the appellant's account of his involvement in the events of 11 September 1997 was so compelling that it should have given rise to a reasonable doubt as to his guilt. The jury were fully entitled to regard the appellant's account of the nature and extent of involvement with the robbery of Mr Weir on 11 September 1997 as wholly unconvincing.

48. The first and third grounds of appeal must, therefore, be rejected.

The second and fourth grounds of appeal

49. The second and fourth grounds of appeal may be dealt with together. The substance of the appellant's argument under these grounds is that the trial miscarried by reason of the circumstance that the jury had before it the evidence of Mr Weir that he was able to identify the appellant as Fraser, both by his voice and by his appearance. The appellant argues that this "evidence is so lacking in substance that it cannot fairly be seen as likely to assist the jury in its task, even in the light of other evidence".^[4]  Therefore, so it is said, the jury should have been discharged by the learned trial judge.

50. It will be noted that this ground of appeal is not concerned with an asserted error on the part of the learned trial judge in allowing the evidence in question to be admitted into evidence. Mr Weir's evidence of aural and visual identification was admitted without objection. In R v Morris; ex parte Attorney-General (Qld),^[5] Dowsett J, with whom Macrossan CJ and Pincus JA agreed, identified a logical difficulty involved in the notion that a trial judge may take a case away from a jury where, after evidence has been admitted, the judge concludes that it is too unsatisfactory to be relied upon by the jury.  Dowsett J said:

"As to the second ground for exclusion, namely that a conviction based upon the complainant’s evidence would be unsafe and unsatisfactory, the High Court, in Doney v. The Queen (1990) 171 C.L.R. 207 at 214 and the Court of Criminal Appeal, in R. v. Sutton [1986] 2 Qd.R. 72 at 78–79, have made it clear that the prospect of an unsafe and/or unsatisfactory conviction is not a matter of concern for a trial judge, although an appellate court may quash such a conviction. It is not open to a trial judge to take a case away from a jury simply because a verdict of 'guilty' would be unsafe and unsatisfactory. It would therefore be curious if such a view of the case were a basis for the exclusion of evidence.

     It cannot be correct to test admissibility by reference to the likely outcome of the case. I do not imply that inherent unreliability may not be a basis for the exercise of the discretion under s. 98. Circumstances may arise in which the statement itself appears to be so unreliable, either because of its contents or because of the way in which it was obtained, that it ought not be received in evidence for reasons directly related to the interests of justice. However, that is not the present case."

51. Mr Weir concluded his evidence-in-chief on 23 August 2006. On Monday 28 August 2006, counsel for the appellant informed the learned trial judge that, over the preceding weekend, he had discovered that, on 11 November 1997, Mr Weir had been shown a "video line-up" of a number of persons including the appellant. The appellant's legal representatives had, until then, been unaware that a line-up had been attempted. The appellant's counsel then applied for the jury to be discharged. This application was refused.

52. The Crown then recalled Mr Weir who explained that he had recognised the appellant in the video line-up in November 1997, but had not told the police for the reasons set out above. It was apparent from a videotape of Mr Weir's participation in the line-up that he actually told police that he had not recognised any of the men shown in the video line-up.

53. This was not the only respect in which Mr Weir's identification of the appellant as Fraser could be criticised. The full catalogue of criticisms of Mr Weir's identification evidence is contained in the trial judge's direction to the jury. I will return to this passage from the trial judge's directions in due course.

54. According to Mr Weir, however, he had a real opportunity to see Fraser's face. He was adamant that he made a visual identification of Fraser on the occasion of the line-up in November 1997 and at his committal in 1998. He admitted that he did not inform the police of his identification. He said that this was because he was in fear of his own life and that of his daughter. Were it not for this explanation, it might well have been said that there was no basis on which the jury could have preferred his evidence that he was able to identify the appellant as Fraser to his earlier assertions that he had no real opportunity to see Fraser and could not identify him from the line-up. Mr Weir gave an explanation for the change in his version of the incident. It is argued by the appellant that it is distinctly odd, in terms of this explanation, that Mr Weir was willing to make a voice identification of the appellant, but not a visual identification. It must be said, however, that Mr Weir's voice identification was so equivocal that it might arguably be characterised as an attempt to avoid committing himself to an identification of the appellant as Fraser. In the upshot, it may be argued on the appellant's behalf that Mr Weir's explanation of his conduct should not have been accepted; but whether or not Mr Weir's explanation for the change in his account was convincing was a matter for the jury.

55. Importantly in this regard, Mr Weir's evidence of identification does not stand alone. It must be seen in the light of the other evidence which established a powerful circumstantial case against the appellant. In R v Currie,^[6] Dowsett J, with whom Williams J (as his Honour then was) and Ryan J agreed, said:

"Identification evidence which is of doubtful value may in some circumstances be supported by other evidence implicating the accused in the alleged crime.  In other cases, doubtful identification evidence may stand by itself, as is the present case.  Where there is other evidence implicating the accused, a trial judge should be reluctant to exercise his discretion to exclude identification evidence simply upon the basis of its quality, although appropriate warnings must be given.  It may be that in some circumstances, the evidence is itself so lacking in substance that it cannot fairly be seen as likely to assist the jury in its task, even in the light of other evidence.  In that situation it should be excluded.  Nothing that I have said should be taken as derogating from the general discretion referred to by Mason J in Alexander.

     Where identification evidence of the sort described by Lord Widgery CJ is the only evidence implicating an accused person, there will be no difference in result whether the trial judge intervenes to exclude the evidence as suggested in Turnbull or directs a verdict of 'Not Guilty' after receiving the evidence.  Which course is followed in a particular case will be determined by counsel and by the circumstances which give to the evidence its doubtful character.  In some cases, the doubt will be obvious from the depositions.  In others, it will appear in evidence.  Sometimes, a basis for doubt will appear from the depositions, but the trial judge will nonetheless receive the evidence to see if anything relevant to the issue appears from the performance of the witness.  Sometimes a voir dire will be appropriate.  Whichever course is followed, it must be remembered that limited opportunity for observation cannot be compensated for by strength of conviction in giving evidence.

     In some cases, the extent of the opportunity for identification will itself be a fact in issue.  If the identifying person asserts a real and substantial opportunity to familiarise himself with the features of the offender, then notwithstanding any challenge to that evidence of opportunity, the jury must usually decide the question of opportunity as well as the overall question of reliability of identification, with the assistance of such directions as the trial judge can give them."

56. Similarly, in Festa v The Queen,^[7] Gleeson CJ said:

"Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is 'weak', and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence.

     For any one of a number of reasons, evidence of observations, including evidence of positive identification, may be made in circumstances which adversely affect its reliability. Those circumstances may be beyond anybody's control, or they may result, for example, from the way police have conducted an investigation. In Davies and Cody v The King ((1937) 57 CLR 170) this Court considered evidence of positive identification of an accused by a witness whose previous knowledge had not made him familiar with the accused, and who was first shown the accused, alone, as a suspect. The risk involved in identification made in those circumstances is obvious. The Court said (Davies and Cody (1937) 57 CLR 170 at 182, per Latham CJ, Rich, Dixon, Evatt and McTiernan JJ):

'[I]f a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe.'

     That passage assumed the admissibility of the evidence, and accepted the possibility that, although standing alone the 'liability to mistake' of such evidence was apparent, in combination with other evidence, even other evidence of the same kind, it might sustain a conviction."

57. In this case, Mr Weir's evidence of identification was strongly supported by the other strands of a powerful circumstantial case against the appellant.

58. The appellant also argues that "experience has shown that juries are likely to give positive identification evidence greater weight than that to which it may be entitled", citing the observations of McHugh J in Festa v The Queen,^[8] but, as McHugh J himself said immediately after the passage relied upon by the appellant:^[9]

"In the exercise of the discretion, however, the distinction between the two classes of evidence is important. Experience has shown that juries are likely to give positive-identification evidence greater weight than that to which it may be entitled. Few witnesses are as convincing as the honest - but perhaps mistaken - witness who adamantly claims to recognise the accused as the person who committed the crime or was present in incriminating circumstances. That is why this Court insisted in Domican v The Queen ((1992) 173 CLR 555 at 561 – 562) that juries be given directions concerning:

.the dangers of convicting on recognition evidence where its reliability is disputed, and

.the factors (if any) that may affect the reliability of that evidence in the circumstances of the particular case.

     In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions."

59. The learned trial judge gave the jury stringent warnings of the dangers of acting upon the identification evidence of Mr Weir in conformity with the decision of the High Court in Domican v The Queen.^[10]  These warnings were distinctly apt to avoid the risk that undue weight might be accorded by the jury to the identification evidence.  His Honour's warning to the jury was so firm and comprehensive as to counter the risk of undue prejudice to the appellant from Mr Weir's evidence of identification.  This point cannot be made better than by setting out, in full, the learned trial judge's directions on this issue:

"An important question is whether Michael Weir's account of the incidents at his house at the Lion Park on the 11th of September 1997 is true.  But if you are convinced of that, another question is whether the third man in the house, known to Michael Weir as Fraser, is the accused man Darren Golledge.

     To an extent, the case against the accused depends upon Weir's having identified a voice on tape as that of the accused.

     This identification is said to have taken place on the 23rd of September – 12 days after the incident at the lion park.  It is recorded in Exhibit 5 where you can hear Michael Weir speaking of Golledge's voice, that of the man who was number 5, as seeming similar to the voice he kept hearing from behind on the 11th of September.

     You might also think that you can detect a deal of hesitation in this identification, by such things as Weir's asking to hear, the voices of the men numbered 1, 3 and 5 again.  And although Mr Weir thought he could detect a similar tone, his equivocation, you might think, is apparent in his unwillingness to swear that, although the voice of number 5 sounded similar to that of Fraser, it was actually his.

     I must warn you of the special need for caution before convicting in reliance on the correctness of that voice identification, if that is what happened on the 23rd of September.

     The prosecution has also adduced evidence of visual identification:  principally the identification said to have taken place on the second day of the committal in May 1998 when Golledge walked into the courtroom to testify.  This claimed visual identification suffers from such significant weaknesses, and more will be said of them shortly, that you might think that, even in the context of a consideration of all the evidence in the case, you can place no reliance on it whatsoever.

     But whether the identification in question be visual or voice, identification evidence is such as to require the most careful scrutiny.  The reason for this is that, in general, it is quite possible for an honest witness to make a mistake in identification, whether it be visual or voice.  And notorious miscarriages of justice have occurred as a result of mistaken identifications by apparently honest witnesses.

     A mistaken identification may nonetheless present to you as convincing because you assess the witness as being essentially honest.  I mean by this that, in respect of both the voice and visual claims to identification, you must carefully examine the circumstances in which the identification in question is said to have been made.  In general, the powers of observation and of recollection of observation are fallible.  And the risk of mistake is especially great where the claimed identification is of a stranger.  This is such a case.  Mr Weir accepts that he had not heard the voice of the man Fraser before the 11th of September 1997.  Nor had he seen him before.

     Against that background, let me turn first to the voice identification and the many reasons there are to be cautious about concluding that the identification in September 1997 of voice number 5, if that is what happened, is reliable.

     First, as I have said, the man Fraser was a stranger to Michael Weir.  Importantly there was, therefore, no prior opportunity to become familiar with the voice.

     Secondly, Mr Weir did not rely on any distinctive feature or features of the voice.  There is no reference, for example, to a speech impediment or to a characteristic choice of phrase which would present as rare; nothing, in other words, likely to engage the memory.

     Thirdly, the time between the actual observation from the 11th of September and the playing of the recordings on the 23rd was 12 days.

     Fourthly, on the morning and before the assault upon him, Mr Weir had smoked cannabis.  He had also taken Valium.

     Fifthly, he was in a highly stressful situation and suffered considerable injury.

     Those are circumstances that are scarcely conducive to confident recollection of a stranger's voice.

     Sixthly, Golledge does not have a New Zealand accent.  Yet
Mr Weir told the police in his initial statement to the police 'he spoke with a Kiwi [accent]"; that is to say, the man Fraser.

     Next, on the 23rd of September, although there was a selection from a group of recordings, there were flaws in the process which limited the choice.  There was one stilted reading, an English accent, and a Dutch accent.

     Eighthly, there was a process of exclusion.  That is to say, Weir went about the exercise by a process of deduction, eliminating some, rather than by any prompt recognition of a similarity on the playing of voice number 5.

     Ninthly, the tape is of a conversation in which there is an explanation and a history, rather than insults or threats or questions of the type which Mr Weir says he was subjected to in the incidents on the 11th of September.

     Next, the words are not those said to have been spoken on the 11th of September by Fraser.

     Eleventhly, the duration and volume of speech heard is not said to be a re-creation.

     Next, the listening circumstances were artificial, with electronic reproduction and adjustable volume.

     Finally, at the committal hearing in May 1998, Golledge exhibited some distinctive speech patterns as, for example, the dit, dit, dee.

     The claimed visual identification at the committal in May of 1998 took place the day after Mr Weir saw the video re-enactment involving Golledge that had been made on the 18th of September.  It is even more problematic than the voice identification.

     Mr Weir gave a sworn statement to the police early in the investigation.  In it, he said, in effect, that he did not see the man Fraser.  These are his words in the statement:

'I never once saw Fraser's face or body.  I saw a flash of his figure.  I could see that he had dark coloured hair.  He spoke with a Kiwi accent.'

     In other words, he told the police that he had been left with no more than glimpsed impressions of features and short black hair.  And he explained to the police why he had not seen Fraser – that Fraser had gone to considerable lengths to disguise his appearance from Weir.  Weir had been threatened not to look at Fraser; and things had been put over his eyes to prevent his observing Fraser:  the pullover and the airline mask.  And Mr Weir's account to the police, you might think, effectively revealed Weir, understandably enough, as a man terrified of the consequences of having observed Fraser at the time and of being prevented by the pullover and the mask from actually doing so.

     By the time the initial visual identification is claimed to have been made in May 1998, more than eight months after the encounter,
Mr Weir was in possession of Golledge's statement to the police saying that he was at Weir's house when Stevens was shot.  And he had been in Court at the committal hearing the day before when he saw Golledge in the video re-enactment that had been made a week after the events of the 11th of September, when Golledge told the police his version of what had happened a week earlier when [Stevens] had been shot.

     Bear in mind also that Mr Weir did see a video line-up of a number of men.  This line-up of men, one by one, included Golledge.  But the video recording of the procedure shows Mr Weir not having identified Golledge then.

     Now, Mr Weir claimed before you that he did recognise Golledge in some video line-up, but did not reveal the fact of his recognition to the police for fear of personal retribution or for fear that his daughter would be attacked.  He says that by the time of the committal, his daughter had left for overseas, that he no longer feared for her safety, and that, in effect, he felt free for the first time to identify Golledge.

     But can this possibly be true?  12 days after the assault on the 23rd of September, and at a time when he tells you his daughter was in Australia, Mr Weir participated in the attempt at voice identification; and, in a fashion, apparently identified voice number 5, which as you know is Golledge's.

     Can it really even be possible that Weir recognised Golledge in the video line-up?  And if he did not – and it seems the prosecution now accepts that he did not – how could you possibly treat his identification of Golledge as Fraser in May 1998 as being of even the slightest value?

     There are many matters for you to consider which, depending upon your own view, might be regarded as undermining the reliability of both the visual and voice identification evidence, especially the visual."    

60. The appellant does not suggest that the learned trial judge overlooked any fairly arguable reason to doubt Mr Weir's evidence of identification. In the light of this comprehensive and detailed warning, one can be confident that Mr Weir's evidence of identification was not apt to prejudice the appellant's prospects of an acquittal.

Conclusion and order

61. In my respectful opinion, there is no substance in any of the appellant's grounds of appeal.

62. The appeal should be dismissed.

63. MULLINS J:  I agree with Keane JA.