SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The appellant, Lanceton Douglas Namie, pleaded not guilty in the District Court at Mt Isa to burglary by breaking (count 1); attempted rape (count 2); and sexual assault (count 3, an alternative to count 2).  Both offences occurred on 26 December (Boxing Day) 2009.  After a three day trial, he was convicted on counts 1 and 2. 

2. He has appealed against his conviction on the following grounds. First, he contends that the judge erred in not directing a verdict of not guilty. Second, he contends the judge erred in not properly applying the principles enunciated in Pitkin v The Queen.^[1]  Third, he contends the jury verdicts were unreasonable and cannot be supported having regard to the evidence.  Fourth, he contends that the learned trial judge wrongly instructed the jury that the female complainant's experience with Aboriginal people was relevant to the identification evidence.  Fifth, he contends that the learned trial judge erred in instructing the jury that the fact that both complainants had previously seen a person with a name which was similar to the appellant's name was a relevant circumstance.

The evidence at trial

3. Before returning to these grounds of appeal, it is necessary to review the evidence at trial.

4. The complainant in count 2, a young English woman, gave the following evidence. On 26 December 2009 she was living at the Travellers' Haven backpackers hostel in Mt Isa. During the day she drank three full strength beers and three glasses of wine. She and her boyfriend, the complainant in count 1, were sitting by a table near the pool and spoke to a number of people including an Aboriginal man who introduced himself as "Lanton or some name like that". She had difficulty understanding him. He was in his late 40s, medium build, with a "slight gut" and "a bit of a beard sort of right down to his chest". The beard was about six inches or 15cm long.

5. After about 15 minutes, she and her boyfriend went to his room in the hostel where they had sex and fell asleep on the bed naked. She was lying face down. The bedroom door was shut but not locked. She woke up to feel a penis thrusting between her buttocks trying to penetrate her vagina. The penis touched her vagina. She was still half asleep and her first thought was that these were her boyfriend's sexual advances. She turned around and saw "Lanton", whom she recognised "as one of the men that had been at the table earlier". His penis was exposed. He was behind her, moving off the edge of the bed. She abused him and told him to leave. He ran out the door. It was still fairly light in the bedroom as it was about 5.00 pm in summer. There was a window at the head of the bed and the curtains were open. She saw his face as he backed out. She noticed his beard and recognised him because she had seen him recently as one of a group of people she had been talking to outside. He was the Aboriginal man with the beard and wearing denim jeans and a coloured singlet. When she saw him in the bedroom, he had no shirt and his jeans were around his knees. She did not see him try to dress as he ran out the door.

6. When the offender fled, she and her boyfriend dressed. He got up first and ran outside to find the offender. She followed him. They spoke "to the people who were still there to see if they'd seen anything and they just sort of confirmed who it was".

7. She made a complaint to police and gave them a statement. Police asked her to participate in a photoboard identification at 8.35 pm. This process was videotaped (ex 8) and played to the jury. The photoboard was tendered (ex 9). It was not a board but a sheet of A4 paper containing 12 photocopied black and white photographs of bearded Indigenous men aged between about 30 and 45.

8. I have viewed the female complainant's videotaped identification process a number of times because it is particularly difficult to hear her, but in the end I was confident of the following. The police officer explained the process of a photoboard identification in these terms: "There is one pers.. there might be one person that might be the offender today". If the female complainant could not identify anybody, that was "OK". She agreed that she had not been shown any photographs previously by any police officer, and nor was she told by any police officer to identify any particular photograph. The police officer asked her if she could give the number on the photoboard of the person who had attempted to rape her. She responded: "I'm not positive but I think that's him" pointing to number 6, a photograph of the appellant.  She added that she thought that was him.  The police officer asked if the person in that photograph was similar to the offender.  She responded: "Yeah, as far as I saw of him."  The police officer asked why he was similar.  She responded: "The face was similar and he looked kind of similar – he looked a bit, you know, weary – the lines.  There's quite a bit of facial hair – that was the same.  It makes me think, yeah, I think it's him."  She endorsed the back of the photocopied photoboard with the notation: "#6" and signed and dated it.

9. In her evidence at trial she added the following. The beard on the person in photograph 6 was shorter than the offender's beard. She was not drunk as she had consumed the beer and wine over some hours, between mid to late morning and 3.30 or 4.00 pm. She did not invite anyone other than her boyfriend to have sex with her.

10. In cross-examination she gave the following answers. She had been in Queensland for about 11 months working as a barmaid, mostly in Brisbane, on the east coast and Mt Isa.  She had worked in Mungindi^[2] where there was a large Aboriginal population.  At the time of the offence, she was employed as a barmaid at the Isa Hotel.  The man who introduced himself as Lanton was drunk; his words were fairly slurred.  She was not really conversing directly with him; the whole group was "just sort of generally talking".  She had never seen him before.  She was still half asleep when she first saw the offender in the bedroom.  As he left, his jeans were down around his knees.  As far as she could remember, they were full length jeans and he was not wearing a shirt.  The period of time from when she first saw him until he ran out the door was very brief and the incident was "a bit of a shock" to her.  She thought the bedroom door was open when the incident occurred.  She did not discuss her opinion as to the identity of the offender with her boyfriend as she thought "he just had a glance at him" but they "consulted with the people who were outside who'd been there earlier … to see if they'd see him go out". 

11. She was not exactly positive that photograph 6 (the appellant) was a photograph of the offender, but it looked like him. She could not be positive because she had only seen him for "that short amount of time". She knew that the person who was sitting at the table drinking shortly before the incident and the offender were the same person. She gave her statement to police before undertaking the photoboard identification. She then completed her statement to police by including the circumstances of the identification process.

12. Defence counsel did not suggest that she had not been sitting at a table with the appellant earlier on Boxing Day or that she was mistaken in her identification of him as the offender.

13. The complainant in count 1 gave the following evidence. On 26 December 2009 he had been living for a few months in room 17 at the Travellers' Haven backpackers hostel in Mt Isa. His girlfriend, the complainant in count 2, lived in another room. They had a few drinks and became tired as it was a hot day. During the day, he drank about eight full strength beers. He was tired but not drunk. They retired to his room, undressed and went to sleep. He shut the bedroom door but did not lock it. His girlfriend slept next to the wall. The curtain on the bedroom window was closed but it was full daylight and the room was "quite lit up". The next thing he heard was his girlfriend "chasing out a black fellow". He saw the offender's face for only a couple of seconds and recognised him as someone with whom he had been drinking the previous day (Christmas Day). He also had drinks with the offender a day or so before Christmas, but was uncertain when.  He recognised mainly his fairly long, six centimetre "goatee" beard.  The offender pulled up his pants, which were like cut off denim jeans, and ran away.  He was not wearing a shirt.  By the time the male complainant dressed and went outside, he was unable to locate the offender and returned to the female complainant.  They contacted the night manager who called police.

14. At 9.18 pm that evening, the police asked him to participate in a photoboard identification to pick the photograph most like the offender. The photoboard differed from ex 9 which was shown to the female complainant in that photographs 4 and 6 had been interchanged.  The process was videotaped (ex 10) and the tape was played to the jury.  I have also watched that videotape.  He stated that no-one told him to choose a particular numbered photograph and no-one discussed the numbers of the photographs with him.  He viewed the photoboard of 12 black and white photocopied photographs of bearded, Indigenous men of an age similar to the appellant (ex 11).  After a time, he pointed to photograph number 4 (the appellant) and said: "He's probably the closest one but I'm not sure if he's him."  The police officer asked him why he was the closest.  He responded that the man in the photograph had "the same type of look" and that photograph number 4 was "the closest one" and "looks most like him".  In answer to a question from the police officer, he said the offender was wearing shorts and had his shirt off. 

15. The police officer then asked him questions not directly related to the photoboard identification process. These questions and answers were admitted without objection. Police asked how he knew the person in the photograph. He responded that he only knew him from the previous day (Christmas Day) when he was drinking with fellows at the backpackers where the male complainant was living. Police asked if he knew any names used by this person, and he responded, "Lance". He added that this person had two sisters who were then staying at the backpackers.

16. In his evidence at trial, he described the identifying features of the offender as "Aboriginal" and "goatee", explaining he was not very good at describing people. He was shown the photograph he identified and asked if there was a specific reason why that face was the most familiar. He responded, "The cheekbones, the eyes, the goatee."

17. In cross-examination, he agreed that he had probably consumed too much alcohol on Christmas Day when he met a group of people, some of whom were Aboriginal and one of whom he believed was the offender. He was sitting across the table from this person. There were other Aboriginal people present, but this person was the only one at the table with a goatee. He thought the female complainant was also there "off and on". On Boxing Day, he drank eight beers between 8.00 or 9.00 am and 1.00 pm. He had a minor drug-related criminal history but had not taken marijuana during this period. After the offender fled, the male complainant may have discussed the offender's identity with the female complainant; he was not sure; but he did not think so. He "didn't need to because [he'd] seen him".

18. Defence counsel did not suggest to the witness that he was not sitting across the table from the appellant on Christmas Day; or that he was not drinking with him on an earlier occasion; or that he was mistaken in his identification of the appellant as the offender.

19. The photocopied photographs of the appellant in the photoboards (ex 9 photograph 6 and ex 11 photograph 4) depicted him as a distinctive looking Aboriginal man with a long goatee and deep lines running down his face on either side of his nose from his cheekbones to the corners of his mouth.

20. The remaining witnesses were police officers whose evidence is not relevant to this appeal, save that on 26 December 2009 a police officer located the appellant at the Arthur Petersen Centre, Mt Isa. He was wearing a blue shirt and a pair of jeans.

21. The appellant did not give or call evidence. The jury retired to consider their verdicts at 10.27 am on the third day of the trial and delivered their verdicts at 11.57 am that day.

Were the jury verdicts unreasonable?

22. The first three grounds of appeal can conveniently be dealt with together. The first ground of appeal is that the judge erred in not directing verdicts of not guilty. A trial judge is obliged to leave the case to the jury where the evidence, even if tenuous, weak or vague, taken at its highest for the prosecution, is capable of supporting a guilty verdict:  Doney v The Queen.^[3]  In practical terms, this ground of appeal is subsumed by the third ground of appeal, that the guilty verdicts were unreasonable or cannot be supported having regard to the evidence.  If so, the verdicts must be set aside: s 668E(1) Criminal Code 1899 (Qld).  The question for determination is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt: MFA v The Queen.^[4]  This test is less onerous for the appellant than the test to determine whether the judge erred in leaving the prosecution case for the jury's consideration. 

23. The appellant's second ground of appeal is that the judge erred in not applying Pitkin.^[5]  Pitkin was convicted of stealing and allowing himself to be carried in a motor vehicle without the owner's consent.  The prosecution case turned on the evidence of two eye witnesses who described the offender and his clothing.  They had not previously met the offender and each described him as having short hair.  One witness did not see the offender's face.  The only evidence implicating Pitkin came from the other witness who saw the offender on three occasions on the day of the offences.  She first saw him for about two or three minutes from a distance of some 14 or 15 metres.  He was jiggling a piece of blue tape between the driver and passenger doors of a parked car while another man waited in a red Holden Commodore.  When they saw someone watching, the offender got into the Commodore and they drove away.  About 20 minutes later, she saw the Commodore double parked outside a food store.  The offender left the car and entered the supermarket.  Soon after, she saw him run out with a woman's handbag.  He got into the passenger's seat and the Commodore sped off.  She noted the registration number of the Commodore which was later found to have been stolen.  She described the offender as having short brown hair like a crewcut, medium build, not very tall, and in his mid-20s.  About half an hour later police showed her some photographs.  She picked out three photographs of Pitkin and said "this looks like the person that I seen".  Ten months later, Pitkin was arrested and charged but he denied all involvement.  He told police he had long hair at the time of the offences. 

24. In refusing Pitkin's appeal against conviction, the New South Wales Court of Criminal Appeal stated:

"… common sense dictates that it cannot reasonably be expected that every person who embarks upon the exercise of identification, will at the appropriate time and in the appropriate way assert positively, 'that is the person that I saw ...'. It was open to the jury to understand the expression 'that looks like the person that I seen' as a manner of speech amounting to positive identification by that lady whom the jury had had the benefit of seeing and hearing. It was open to the jury to understand what the witness had said, … as a statement of identity rather than a statement of resemblance."

25. Pitkin successfully appealed to the High Court. Deane, Toohey and McHugh JJ noted that the witness's words "did not, as a matter of literal meaning, amount to positive identification. They were plainly consistent with an intention by [the witness] to indicate nothing more than that the person depicted in the three photographs looked like the offender whom she had seen." Her words:

"were consistent with an absence of positive identification.  That being so, the evidence of her selection of three photographs was, of itself, incapable of sustaining a finding by a reasonable jury that the appellant was, in fact, the person who [committed the offences].  In the absence of any evidence by way of explanation or elucidation of [the witness's] words and of any other evidence implicating the appellant, the convictions were necessarily unsafe and unsatisfactory."^[6]

26. The evidence in this case is quite different from Pitkin.  The only evidence directly implicating Pitkin in the offences was that of an eye witness who was a stranger to the offender and who subsequently selected three photographs of Pitkin with the observation that the photographs looked like the offender.  By contrast, in this case it was uncontentious that the complainants had both spent some time with the appellant not long before the offences.  Earlier in the day, the female complainant was sitting in a group with him for about 15 minutes downstairs in the hostel where the offences occurred.  The male complainant had been drinking with him in the hostel the previous day and on another occasion a day or two earlier.  The photocopied photographs of the appellant in ex 9 and ex 11 portrayed him as a distinctive looking man, not because of his Aboriginality, but because of the deep lines in his face running vertically from his cheekbones to the outer corners of his mouth and his long goatee.  The female complainant gave uncontroverted evidence that when she was awakened by the offender, she saw his face and immediately recognised him as the distinctive looking Aboriginal person with whom she was sitting in the hostel earlier that day.  This man had introduced himself by a name like "Lanton".  The male complainant also identified the offender as the person whom he knew as "Lance" and with whom he had been drinking on two recent occasions in the same hostel.  The evidence that the complainants chose a photocopied photograph of the appellant from the photoboards as looking like the offender was not led as positive evidence of identification.  As explained in R v Southon,^[7] it was led only as circumstantial evidence supporting the complainants' positive identifications of the appellant as the offender. 

27. The appellant contended that the prosecution evidence established nothing more than a possibility that the appellant was the offender: the differences in the complainants' accounts were so fundamental they could not be reconciled. Further, the female complainant's identification of the appellant as the offender could have been tainted by discussion with others outside. The weaknesses in the identification made it too tenuous to be relied upon.

28. It is true that the complainants' identifications of the appellant as the offender occurred over a very short period, in distressing circumstances where both were awoken suddenly and the offender immediately ran out of the room. But the complainants had recently met the appellant who was a most distinctive looking man with a goatee. They both saw the offender's face, albeit briefly, at 5.00 pm in summer in Mt Isa so that there was enough light for the complainants to clearly see the offender.

29. It is also true that there were some differences between the complainants' accounts as to the order of events immediately after they were awakened. But I do not consider these especially noteworthy in the circumstances. They woke up at different times, had been drinking earlier and would have been shocked by the unpleasant incident. Nor do I think it critical that the female complainant thought the offender was wearing full length denim jeans whereas the male complainant thought they were "cut off" denim jeans or shorts.

30. The fact that the female complainant spoke to people outside the bedroom to inquire if they saw where the offender went did not taint her identification. She gave evidence that she asked these people "if they'd seen anything and they just sort of confirmed who it was". Unsurprisingly, the appellant's counsel at trial did not risk drawing attention to this hearsay statement by exploring it. Her evidence does not, in my view, suggest her identification of the appellant as the offender was tainted by her discussions with people outside the room. It is more consistent with her positively identifying the appellant as the offender before she spoke to them.

31. The female complainant's evidence identifying the offender as the appellant, a distinctive looking man with a goatee with whom she was sitting earlier that day, was in this case sufficient in itself to support the guilty verdicts. Her identification was further supported by the male complainant's evidence also positively identifying the appellant, whom he had met before, as the offender. The complainants' evidence, that the person they were drinking with earlier introduced himself as "Lance" or "Lanton", was persuasive evidence, in the absence of a contrary suggestion or competing evidence, that this person was the appellant, Lanceton.  The evidence of the complainants' separate selection of a photocopied photograph of the appellant as looking like the offender was a piece of circumstantial evidence supporting their identifications of the appellant as the offender.  The black and white photocopied photographs on the photoboards (ex 9 photograph 6 and ex 11 photograph 4) were very two dimensional and not life-like.  The complainants' reluctance to positively identify them as photographs of the offender was unsurprising and suggests they were careful witnesses, not prone to hyperbole.

32. Providing the jury were given sufficient directions about the dangers of identification evidence generally and the specific weaknesses of the identification evidence in this case, in the absence of any competing evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the offender in each count. It follows that the judge was not obliged to take the case from the jury at the close of the prosecution evidence. It also follows that the jury verdict was not unreasonable and can be supported by the evidence. For the reasons I have explained, this case is factually distinguishable from Pitkin.  It follows that the first three grounds of appeal are without merit.

The judge's directions to the jury

33. Before dealing with the appellant's fourth and fifth contentions, that the judge erred in his directions to the jury, it is necessary to set out in full his Honour's directions concerning identification so that the appellant's complaints can be appreciated in proper context.  Those directions were as follows:

"Before considering the elements of the charges, I need to go in more detail to the reliability of the prosecution evidence in relation to the evidence about the photoboard. The evidence is that the witnesses, [the male complainant] and [the female complainant], went to the police station. It was on the day of the alleged event, as stressed by the prosecutor. They went to the police station and they each made a selection of who, as [defence counsel] stresses, they ought (sic) was the - can I put it this way, culprit? [Defence counsel] stresses that this was not positive identification on the part of the witnesses.

[The prosecutor] says that the evidence, nevertheless, has certain strengths and when you consider the whole of the evidence you would be satisfied beyond reasonable doubt about the guilt of the [appellant]. [Defence counsel] submits to the contrary.

So I'll now go to some details about this subject of identification, as it is called, and in this instance we have the photos, or photoboards, even though they're not on a board, and the actual photos there are before you, members of the jury, as you well know. I just don't know the specific exhibit numbers, but that doesn't matter. They're there for when it will be obvious for you tomorrow when you go out to deliberate with all the documents, the exhibits before you. It is obvious to you at this stage and central to the prosecution case, but there are other features which [the prosecutor] has pointed to but central to the prosecution case. It is the prosecution's contention that it was the [appellant] who entered the dwelling of [the male complainant] and it was the [appellant] who sexually interfered with the [female] complainant …; the defence joins issue.

What I mean about the centrality here is the centrality of the identification evidence by use of the photographs. That's important to the prosecution case, obviously, but there are other features to it as well, which I'll come to in the course of my summing-up, that is relied upon by the prosecutor.

Included in that is the use of names by the different witnesses. You've heard the witnesses refer to the name - when I go to my notes it will be obvious - Lance was used. That was by [the male complainant] and another name by [the female complainant], the prosecutor says quite similar to the [appellant's] christian name. That's relied on by the prosecution in addition to the photoboard identifications, as I'll call them.

Members of the jury, the issue of identification is very much a jury question, one for you to decide as a question of fact. The case against the [appellant] depends to a significant degree on the correctness of the two visual identifications of the [appellant], which, of course, the [appellant] does not accept as being accurate at all.

But, members of the jury, I warn you of the special need for caution before convicting in reliance on the correctness of the identification evidence that has been advanced in the present case. The reason for this is that it is quite possible for an honest witness to make a mistaken identification. Notorious miscarriages of justice have sometimes occurred in such situations. A mistaken witness may, nevertheless, be convincing. Even a number of apparently convincing witnesses may be mistaken. Here we are concerned with the evidence of [the male complainant] and [the female complainant].

And when I refer to the identification evidence, I'm not overlooking the submission made by defence counsel, … , who does not accept that a positive identification was made in any event. Nevertheless, the matter is open to you, the jury, to consider that having regard to the whole of the evidence it was the [appellant] who entered and who sexually interfered with the [female] complainant, … . That would be an issue for you, but you will have to be satisfied about guilt beyond reasonable doubt.

Members of the jury, you must examine carefully the circumstances in which the identification by the witnesses was made. How long did the witness have the person said to be the [appellant] under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the [appellant] before? If so, how often? If only occasionally, had the witness any special reason for remembering the [appellant]? What time elapsed between the original observation and the subsequent identification to the police?

The evidence of each individual witness while important in itself should not be regarded by you in isolation from other evidence adduced at the trial, and this is what [the prosecutor] stresses; that is, apart from the evidence about the photoboards, consider the evidence about clothing and the evidence about the use of names similar, in the prosecutor's submission, to the christian name of the [appellant].

Members of the jury, where evidence is given by a casual acquaintance to the [appellant], and it would no more than that in the present case, you would think - where evidence is given by a casual acquaintance to the [appellant], you should treat the evidence of identification with care. You should be cautious about concluding that identification has been established in such a case and scrupulous to be satisfied first that the identifying witness is not only honest in his or her evidence, but also accurate.

The identification by one witness may support evidence of identification by another, but you must bear in mind that even a number of honest witnesses may be mistake about such a matter.

The evidence that's capable of supporting the visual identification evidence in the present case has been stated by the prosecutor and the specific weaknesses of the prosecution evidence have been stated by defence counsel, … . I will now state these matters for myself, but I want to point out that I do so not simply for the purpose of repeating counsel's submissions, which I will go to at the end of my summing-up when I attempt to summarise the things that they've said. I mention them with the authority of my office behind them and with the direction that you must take these matters into account when you deliberate on the matter tomorrow.

[The prosecutor] has addressed on this matter and what could be said as being strengths to the prosecution identification fact are these matters: [the female complainant] met a man, and this is on 26th of November (sic) 2009 - met a man who said he was Lanton. That's the name I just didn't remember before, Lanton. She met this man, Lanton. The timeframe was very close as to the meeting and when she says she saw him in the room, room number 17. I don't give you an exact time, but it was obviously on the same day, on her evidence, and separated by hours, I think would be consistent with the evidence to say that. It was on the same day. [The female complainant] says that this man was seated across the table from her on this day. You might think that she had a clear view of him. She saw him for approximately 15 minutes. It was not long, but not fleeting and in fairness it would not be correct so say that she would have been looking at him for the whole of that 15 minutes.

The next point is that in the room - that is room 17 – there was, you might think, sufficient light to see what was going on, just to make important observations. It was 5 p.m. and it was in the summertime. The curtains were drawn, but you might think the offender could be seen, even though the sighting at that stage in the room would have been brief. But according to the witness, [the female complainant], she saw the face of the offender. It would have been a short sighting, but, nevertheless, you might think that there was sufficient time to make an observation of him and to recall that. She had been drinking, but she said in evidence that she was not drunk. Again, the person had introduced himself as Lanton. When she met the person who said he was Lanton she, [the female complainant], said that she couldn't understand him because he seemed to be under the influence of alcohol and that might be a reason for remembering him; he was affected by alcohol. That may be a reason and a positive thing so far as the identification evidence is concerned.

The next point is that the complainant had been in Australia for some time, but not a - she's an English lady, but she had spent some time in Langindi, so she had seen Aboriginal people before. It was not the first time that she had had any experience with Aboriginal people and that has a bearing on the identification evidence.

The identification procedure was undertaken in the evening of the - the same evening as the incident. There was a short time between the observations made by [the female complainant] in the room and the going to the police office and the police station and being shown the photoboard.

And then you would have regard to what the witness said concerning the similarity between what was seen in the photoboard and what was observed in the room in relation to the matter of facial hair. And the witness also made reference to lines on the person's face. That is a feature of the identification as well.

Going to the evidence of [the male complainant], he says that he met a man who said he was Lance and that was on Christmas Day, the day before, obviously, 26 November 2009 (sic), but it was not too distant, you may think, from when the man was seen in the room, room 17. [The male complainant] said that he was with this man for a couple of hours. It wasn't a short time. He, [the male complainant], saw this man across a table, a short distance. He had a clear view, you may think. Then [the male complainant] says that he saw this person in room 17 and recognised him as the one from the day before, which was not a long time from the first meeting, obviously.

[The male complainant] says that he saw the person in the doorway from the bed at the time of the incident. It was a short distance for the purpose of making the observation. There was light in the doorway of the room, which was reasonable, you may think. He said that he could see [the female complainant] beside the door and could see the offender in the doorway and says he had a fairly clear view of all of that. He says he saw this person for a couple of seconds only, which is a short time, but he says that he recognised the person.

When the photoboard procedure was undertaken it was at 9 - about quarter past 9 on - in the evening of 26 November (sic), not a long time after the sighting, you may think. And [the male complainant] describes the person with a goatee and says - and then says familiar features were cheek bones, eyes and goatee. Those can be taken into account, members of the jury, as positive features supporting the identification, but on the other hand, I have to remind you of the following specific weaknesses. [Defence counsel] has done that himself, but I now, as I said before, point them out to you as being matters that you must take into account as weaknesses in the evidence that has been tendered against the [appellant].

In relation to [the female complainant], the fact that she had consumed alcohol, even if she might not have been under the influence, is relevant. In particular, she had consumed three heavy bears (sic) and three wines. She only had a short introduction to the alleged offender and this was amongst other aborigines. The time was spent talking with other people. There was nothing really significant or memorable about the encounter. The prosecution says something else about that, but consider both aspects. There are strengths and weaknesses depending on your view associated with all this evidence.

The name that [the female complainant] said she was given sounded like Lanton, but the person who gave it was intoxicated, slurring his speech and generally difficult to understand and I think that that affects any significance in the use of the term "Lanton" and as being similar to the [appellant's] actual name.

When sighted later it was an entirely different context. It was within the room and this person who was in the room was without his shirt and so on.

Mr - sorry, [the female complainant] had never seen the offender – the alleged offender previously - that is before 26 November (sic) – and she was in shock at the time when the man came into the room. The alleged offender, as I say, had no shirt on at that time of being in the room. The alleged offender was moving away from her quickly and turning and in turning her view of him was restricted, you might think, to looking over her shoulder behind her. The alleged offender did not speak to her. His back was to her as he went through the door and along the corridor. There was light coming in through the doorway. The lighting was in the room, but it would have been affected, you might think, by the curtains.

And so far as the evidence of [the male complainant] is concerned, there was significant alcohol consumption by him on both Christmas Day and Boxing Day 2009. He saw the alleged offender the previous day, the Christmas Day, with a large group of people including aborigines. While [the male complainant] says he was with the group a long time, there was nothing special about his interaction with the alleged offender. He didn't stand out, you might think, on the evidence for any particular reason.

The second encounter, the next day, Boxing Day, was when he, [the male complainant], came out of a sleep. Again there was the consumption of alcohol. He, [the male complainant], saw the alleged offender for a few minutes standing at the doorway on the other side of the female witness while the female was shouting. [Defence counsel] demonstrated that to you by reference to the photograph a little while ago and there might have been, you would think, an orange tint to the lighting in the room.

There are discrepancies between [the female complainant] and [the male complainant]. She says that the alleged offender - she says they met the alleged offender on Boxing Day for five (sic) minutes with a group of - with a group of others. He says they met the alleged offender for several hours on the Christmas Day while drinking with others. That difference is there for you to consider.

Then the other point is that [the female complainant] says - she said words to the offender when he was in the room. She got off her - she got out of the bed and ran out - sorry, when she saw him, the offender got off the bed and ran out of the door. She says she got up naked and chased him out. He went out not stopping at the door with his jeans around his knees.

[The male complainant] says that he woke up, saw [the female complainant] at the door with the towel around her shouting and the alleged offender was there standing in the doorway at the time as well. So it's a different account between the two witnesses. It's already been highlighted for you, but I mention it specifically as something that must be taken into account.

[Defence counsel] said something about the photo - the nature of photographic evidence. What he said was right. They are flat. They do not give a three-dimensional representation. When identification is attempted with the aid of photographs there are, members of the jury, introduced peculiar difficulties due to the various ways in which photographic representations differ from nature. There are two-dimensional and static quality. The fact that they as here are often in black and white and the clear and well-lit picture of the subject which they usually provide - well, that's not the case here, the last point that I mentioned. They're not those sort of photographs, the ones that we have. They're not - I think what sometimes happens is that you do get shiny sort of photographs or something like that. That's not the case, but they do differ from nature. That's true. They're two dimensional; they're static and often in black and white, and because they do not, as [defence counsel] has pointed out, and I agree with him, you do not get a section of how the person concerned would look in profile or looking at different angles and so on. That can make a difference. You might have even noticed that from your own experience when you see a photograph and someone will say it doesn't look like Bloggs or whoever it might be and that can sometimes happen. You must bear that in mind as well.

So in something of a summary, although I've got some distance to travel yet with my summing-up, but at this stage I'll endeavour to summarise some of the things that I've been saying. The prosecution case, you'll appreciate, is that you take all of the evidence into account. The pointing out by the witnesses of a certain person on the photoboards - it is said that the officer came along and said in evidence that that person that they pointed out was the [appellant].  Defence say what they, the witnesses, said at the time of the so-called identification would cause you to pause. They're not confident about what they were saying. They were not positive identifications. The prosecution says it's material evidence. It goes before you. You will consider it in conjunction with the evidence about the clothing. [The prosecutor] has gone to the details of that. You would consider it in conjunction with the evidence about the use of the name and I've gone over that a little while previously, two names referred to - two different names referred to by each of the two witnesses that you might think similar to the name Lancton, being the name of the [appellant].

The prosecution says consider all these matters and you would be satisfied beyond reasonable doubt about the guilt of the [appellant]. The prosecution is entitled to put the case to you in that way.

However, I direct you as follows: if on the evidence, all this evidence, there is any reasonable possibility consistent with innocence, it is your duty to find the [appellant] not guilty. And that applies to all the charges that are before you. This direction that I give you follows from the requirement, as I've said a number of times, that guilt must be established beyond reasonable doubt. I'll repeat that. If on the evidence there is any reasonable possibility consistent with innocence it is your duty to find the [appellant] not guilty."  (my emphasis)

34. The next morning the judge summarised counsel's addresses. His Honour told the jury to watch the videos of the complainants' viewing of the photoboards and make up their own mind about the significance or lack of significance of things said by the complainants.

35. The judge summarised the defence case in this way. The question was whether the appellant was the person who came into room 17. There were discrepancies between the male and female complainants' evidence. Their earlier sightings of the appellant were brief. The incident in room 17 was brief and stressful for them. They were uncertain when they viewed the photoboards whether the photographs they selected were of the offender. As defence counsel emphasised, they must scrutinise the identification evidence with care; photographs have limitations. Defence counsel suggested that the complainants were honest but mistaken witnesses and that honest witnesses can be unreliable. The judge specifically told the jury that this proposition was true. Defence counsel submitted that the complainants were unreliable witnesses and emphasised the discrepancies in their evidence. Counsel emphasised that when viewing the photoboards neither complainant positively identified the appellant as the offender. There was no DNA or fingerprint evidence linking the appellant to the offences. There was nothing distinctive about the person suggested to be the offender. The complainants had been drinking alcohol. They gave different versions of what happened in room 17 during the commission of the offences. The appellant was entitled to remain silent and the prosecution had not proved its case beyond reasonable doubt.

36. Neither counsel sought any redirection.

The judge's directions about the female complainant's experience with Aboriginal people

37. The appellant contends that the judge erred in directing the jury that the female complainant had seen Aboriginal people before; that this was not the first time she had had any experience with them; and that this had a bearing on the identification evidence. The impugned directions are set out earlier in these reasons in the italicised portion of [33].  The appellant submits that there was no evidence at trial to establish the proposition that some limited contact with Aboriginal people would reduce the likelihood of incorrect cross-racial identification.  The directions impermissibly suggest that such limited experience enhanced the prospect of the witness correctly identifying the appellant as the offender. 

38. The judge gave the directions when he was identifying for the jury the strengths and weaknesses of the complainants' purported positive identification of the appellant as the offender, as discussed by the prosecution. In my view, the directions do nothing more than point out the distinction between a witness who has never before seen an Aboriginal person and may perhaps be more likely to wrongly identify any Aboriginal man as the offender simply on the basis of the man's Aboriginality, from a witness who has had experience with Aboriginal people. The former situation may require the jury to scrutinise the evidence with particular care, more so than in the latter situation. The female complainant's experience with Aboriginal people was not put forward as a positive strength of her identification, but rather as a matter which, the prosecution submitted, meant that her identification did not have a particular weakness.  When the judge's lengthy directions on identification are considered in their full context, it is clear the impugned direction did not receive much emphasis and was unlikely to have been a major concern in the jury's deliberations.  It was a common sense observation made by the prosecutor, and repeated by the judge when explaining the prosecution case, which the jury were entitled to consider in carefully scrutinising and assessing the quality of the female complainant's positive identification of the appellant as the offender.  Importantly, the judge told them that if there was any reasonable possibility consistent with innocence they must find the appellant not guilty.  The judge also carefully warned them about the special need for caution before convicting in reliance on the correctness of identification evidence in this case.  I do not consider that, in context, this impugned direction amounted to an error of law or that it has caused a miscarriage of justice.  The fourth ground of appeal also fails.

The judge's directions as to the complainants' evidence about the name of the person previously seen by them

39. The appellant contends that even if the complainants correctly selected the photo of the appellant from the photoboard as the person they met earlier, there was still a reasonable doubt as to whether they correctly identified the person they had met earlier as the offender.  The complainants' evidence about their recollections of the name of the person they met earlier, whom they identified as the offender, was only relevant if the jury was satisfied about the accuracy of their identification of the appellant as the offender.  The judge's directions about the complainants' recollections of the name of the person they met earlier are contained in the emboldened passages set out in these reasons at [33]. 

40. Defence counsel did not suggest to the complainants that the person whom they had each met on at least one previous occasion, and who gave his name as something like "Lanton" to the female complainant and "Lance" to the male complainant, was not the appellant. That the complainants recalled that this person introduced himself as "Lanton" or "Lance", and that the appellant's name in fact was "Lanceton" and that he was in Mt Isa at the time of the offences, were significant pieces of circumstantial evidence. The appellant correctly submits that there was no evidence other than from the complainants that their identification of the appellant as the offender was correct. But the appellant's contention, that the complainants' evidence of their recollections of the man they met earlier introducing himself as "Lance" or "Lanton" was only admissible if their identification of the offender as the appellant is correct, is misleading. It was evidence relevant only to whether the appellant was the person with whom the complainants had been drinking earlier, an issue which was neither denied nor admitted by the appellant. But in the absence of any suggestion to the complainants that this person was not the appellant, and in the absence of competing evidence, the only rational inference was that the complainants had been drinking with the appellant at the backpackers prior to the offences.

41. It is unfortunate that the judge's somewhat diffuse directions about identification evidence did not clearly instruct the jury to consider the possibility that, if the complainants had met with the appellant on earlier occasions and then honestly but mistakenly identified him as the offender, their selection of his photo as looking like the offender may have been based on their memory of him from these prior meetings rather than from their memory of the offender. Certainly, it would have been helpful to instruct the jury that the complainants' recollections of the appellant introducing himself as "Lanton" or "Lance" some time before the commission of the offences was only relevant to their identification of the appellant as the man they each met beforehand. But neither counsel asked for a direction or redirection in such terms.

42. The effect of the judge's directions was that the complainants' recollections of the person whom they met before the offences as "Lanton" or "Lance" was a piece of circumstantial evidence relied on in the prosecution case. Defence counsel did not suggest these recollections were wrong or unreliable. The trial was a short one and the evidence was not complex. The judge gave strong and clear warnings to the jury about the grave dangers of identification evidence because of the possibility of honest but mistaken identification and that there was a need for special caution before convicting in reliance on identification evidence. The judge also directed the jury that, if there was any reasonable possibility consistent with innocence, they must find the appellant not guilty. The jury must have clearly understood that the central issue was whether the prosecution proved beyond reasonable doubt that the complainants correctly identified the offender in room 17 on Boxing Day 2009 as the appellant. When the impugned directions are considered in their full context, I do not consider they amount to an error of law or have resulted in a miscarriage of justice.  It follows that the fifth ground of appeal also fails.

Were the judge's directions to the jury on identification evidence otherwise adequate?

43. I rejected the first three grounds of appeal only on the condition that the jury were given adequate directions about the dangers of identification evidence generally and the specific weaknesses of the identification evidence in this case. Apart from the fourth and fifth grounds of appeal, which I have rejected, the appellant does not contend otherwise. The judge's lengthy directions to the jury on identification evidence, set out at [31] of these reasons, adequately warned the jury of the general dangers of mistaken identification; the need to scrutinise the complainants' identification evidence carefully before acting on it; that an honest witness could be mistaken; and that a number of apparently convincing witnesses could be mistaken. The judge pointed out the various shortcomings in and concerns about the identification evidence peculiar to this case. Importantly, his Honour warned the jury that they could only convict if there was no reasonable possibility to be drawn from the evidence consistent with innocence. I consider the directions on identification evidence were adequate in the circumstances. It follows that the appeal must be dismissed.

Conclusion

44. The appellant has not made out any of his grounds of appeal. The appeal against conviction must be dismissed.

ORDER:

Appeal against conviction dismissed.

45. MUIR JA:  I agree that the appeal against conviction should be dismissed for the reasons given by Margaret McMurdo P.

46. DALTON J: I agree that the appeal against conviction should be dismissed for the reasons given by Margaret McMurdo P.