SUPREME COURT OF QUEENSLAND

[1]  WHITE JA:  I have had the advantage of reading the reasons for judgment of Margaret Wilson AJA and agree with her Honour for the reasons that she gives that the appeal against conviction should be dismissed.

[2]  MARGARET WILSON AJA:   Leigh John Urbano ("the appellant") and Patricia Betty Moffatt were charged with robbery in company with personal violence.

[3] Moffatt pleaded guilty to the charge.

[4] A jury found the appellant guilty after a two day trial in the District Court.  He was sentenced to three years imprisonment, suspended after 18 months, with an operational period of five years.  He has appealed against his conviction.

[5] As the trial judge told the jury in her summing up, the real issue in the case was identification – whether the jury was satisfied beyond reasonable doubt that the appellant was one of the people involved in attacking the complainant.

[6] The grounds of the appeal are –

(a)The identification of the appellant by a police witness was inadmissible opinion evidence, the reception of which resulted in a miscarriage of justice;

(b)There was a miscarriage of justice because the learned trial judge misstated the evidence and failed to direct the jury on inadmissible evidence;

(c)There was a miscarriage of justice because the directions on identification evidence were inadequate;

(d)The verdict was unreasonable and cannot be supported having regard to the evidence.

Background

[7] On 12 February 2010, sometime between about 8.00 pm and 9.00 pm, the complainant Stuart James Briggs was robbed by a male and a female in the vicinity of the commuter car park for the Goodna Railway Station.

[8] Briggs lived in Redcliffe, on the streets.  He had a longstanding alcohol addiction and was a glue sniffer.  He acknowledged that the glue sniffing in particular affected his memory.

[9] At the time he was robbed he was quite intoxicated, having been drinking and sniffing glue all day.  Earlier in the day he travelled by train to Goodna to see his mates, arriving there between 9.30 am and 10 am.  After arriving, he withdrew money from a bank, spent some on food, drinks and White Ox tobacco, and spent time drinking with various people including the appellant.  He also sniffed glue.  He caught a train to Ipswich, and then boarded a train headed north and fell asleep.  He arrived in Caboolture, where he alighted and bought a meat pie.  Then he boarded an Ipswich bound train, where he vomited.

[10]  At about 8.00 pm Briggs got off the train at Goodna.  It was too late for the barbecue with youth workers he wanted to attend: that had finished about 7.00 pm.

[11]  The Goodna Railway Station is on one side of the Ipswich Motorway.  There was a pedestrian overpass connecting the station with the commuter car park, which was on the other side of the motorway.  The overpass zig zagged, passing over the railway tracks, then turning and running parallel to the tracks and the road, then turning further and crossing the motorway, ending at the car park.

[12]  The entrance to the car park from the motorway was adjacent to the Weeroona Hotel.  Vehicles which entered the car park could be driven up a hill to a point five or seven metres from the entrance to the pedestrian overpass, where they could be parked against a concrete footpath.  Access to the pedestrian overpass was from the footpath.  Beside the entrance to the pedestrian overpass was a low concrete wall painted with graffiti.  A concrete area sloped gently away from the base of the wall to the footpath.

[13]  The incident occurred on that concrete area which was afterwards found to be marked with what appeared to be blood stains.

The complainant’s evidence

[14]  In cross-examination the complainant agreed that he was fairly intoxicated by the time he got to the car park.  He agreed that the appellant had been drinking with him and others that day.

[15]  His evidence-in-chief was that just before the overpass, near the wall "where the graffiti thing is, "he saw two blokes and a woman.  She called him over.  He went over and asked what they wanted.  They demanded money, and he said, "No".  The woman grabbed him and sat him down near the wall where the graffiti was.  One of the males punched him in the nose.  The woman grabbed him around the neck yelling, "Kill him.  Kill him.  Kill him."  The male kept on punching him in the nose.  He was punched up to seven times to the nose.  He screamed, telling them to let go, but they would not.  The other bloke just stood watching. 

[16]  The complainant said he was "pissed".  He was bleeding from the nose and asked to be let go.  The woman said, "No. Give me your money".  He had a wallet in his pocket.  They unzipped his pocket.  The wallet contained money, he thought $60 in notes, and a Centrelink piece of paper with "Stuart" at the bottom.  He had had this for ages and he had had it with him all day at Goodna.  He also had a packet of White Ox.

[17]  The woman took his wallet out of his zip pocket.  He took out his tobacco, his money and the piece of paper.  They took that, and the bloke kept hitting him.

[18]  In cross-examination he said he thought the piece of paper was in his pocket, but he was not sure.  It was not in his wallet, but folded up loose in his pocket.  He could not remember taking it out of his pocket during the day.  He admitted undoing the zip and doing it up again during the day.  He could not remember if he dropped the piece of paper some time during the day.

[19]  The complainant told the Court he got away and ran down to the pub.  He went to the back of the pub and upstairs to the bar, where he told bar staff what had happened.  They gave him a tea-towel and tissues.  They asked him who had done it and he replied,

"The two fellas and a lady."

The ambulance and police came.  Police asked him who had done it:  he pointed out two people who were sitting in the smoking area out the front of the hotel.

[20]  The complainant identified the appellant in the dock as the male he pointed out to police.

[21]  In his evidence-in-chief the complainant described the male who robbed him as wearing shorts and a tank top.  He said the male had –

"…a ratty. The same ratty as mine but probably a bit longer."

He added –

"And short."

[22]  Later that evening, the complainant was interviewed by Constable Wadham at the Goodna Police Station.  In cross-examination he agreed that he told her that the male who had robbed him was wearing white shorts and a tank top which was greyish in colour, and that he had brownish blondish short hair, white brownish skin and tattoos on his arms.  He did not mention a rat’s tail.

[23]  In his evidence-in-chief the complainant described the woman as wearing a colourful dress a bit below knee length.  In cross-examination he said the dress had flowers or some kind of design on it.  He told Constable Wadham that she was Aboriginal, about 165 cms tall, with black curly short hair, and that she was wearing a dress and shorts. 

[24]  The complainant described the other male as possibly Samoan.  He had black curly hair and was wearing a red jumper and black pants.

[25]  When the complainant was shown the Centrelink paper by police, there were red marks around the edge.  He thought that was blood.  He said there was no blood on it when it was in his pocket during the day.

CCTV Footage

[26]  There was CCTV footage of the car park.  There were two sequences taken about half an hour apart.  The first commenced shortly before 8.00 pm and the second around 8.40 pm.  The CCTV footage did not pick up the wall and concrete area, because of the angle of the camera.

[27]  The first sequence showed two people coming across the pedestrian overpass from the station.  The man was dressed in denim shorts and a tank top.  The top appeared to be light coloured with a dark over-pattern on the front and the back.  He was wearing light coloured socks.  He had a rat's tail.  He was carrying a bottle, from which he drank from time to time.  He was not carrying a backpack.

[28]  The woman was wearing three-quarter length pants in a light colour over which she had a figured top.  She took this off at one stage in the second sequence: it was like a smock.  There was another top under it.  As she came across the pedestrian overpass she was carrying a slouch bag with a long strap.  She had short dark hair.

[29]  At one point another man appeared.  He seemed to be bald and to be wearing a white shirt.

[30]  At another point two girls appeared, one of them pacing up and down at the end of the pedestrian overpass.

[31]  A man crossed the pedestrian overpass wearing what seemed like a tracksuit top and no shoes.  He may have been wearing denim pants.  He appeared to be jogging. 

[32]  The second sequence showed the same man and woman who had earlier used the pedestrian overpass from the station, in the car park area.  They were obviously drunk.  Then they were shown in the beer garden of the hotel.

Jemicka Jane McKendrick-Fisher

[33]  Ms McKendrick-Fisher was 17 years old.

[34]  She arrived at Goodna by train with a friend, Naomi.  They planned to meet up with friends.  As they walked from the station to the hotel, she saw a man and a woman.  The woman was older, probably in her 40's.  She was of Aboriginal appearance with bushy hair.  The man was probably in his 20's: he had fair skin and short hair.

[35]  Around 9.00 pm she saw the man and woman in the car park.  Later she saw them at the hotel in the front smoking area.  They were together and talking to others.  She saw police go up and speak to them.

[36]  In cross-examination she agreed that on 28 March 2010 she had given a statement to police in which she had described the man as having a baldy head and being in his late 20's to 30's.

Senior Constable O'Donovan

[37]  At about 9.00 pm Senior Constable O'Donovan went to the hotel with other police.  The appellant and Moffatt were in the front beer garden.  The complainant Briggs was on the veranda being tended by ambulance officers.  He had some facial injuries and a small amount of blood around his face and on his shirt, and was dishevelled.

[38]  The appellant and Moffatt were intoxicated.  The appellant had a cut on one of his legs or around the knee area.

[39]  O'Donovan told the Court the appellant wanted him to look after his money, but he refused.  He acknowledged in cross-examination that on 2 March 2010 he had given a statement in which he had made no mention of money.

Constable Phillips

[40]  At 9.45 pm Constable Phillips went to the Weeroona Hotel where he took up with other officers.  He saw police speaking to a male and a female in the beer garden.  He identified the appellant in the dock as the male to whom he spoke.

[41]  He did a pat-down search of the appellant.  He had a backpack containing clothing and other property, and a wallet in his pocket containing money and personal papers.  With Officer Ryan he put everything back in the wallet and the wallet in the backpack. 

[42]  He put the appellant in the pod of the police van and the backpack in the back seat.  They travelled to the Goodna Police Station.

[43]  Then he went back to the hotel to collect Moffatt.  Two female officers conducted a pat-down search of her.  She was put in the van and taken to the Goodna Police Station, and from there to the Ipswich Police Station.

Senior Constable Watts

[44]  Senior Constable Watts went to the Goodna Police Station where he met Constable Wadham, who briefed him on an incident earlier that evening.[1]

[45]  The appellant, Moffatt and the complainant were all at the Goodna Police Station. Watts sighted the appellant there.  He was wearing a singlet (which he thought was blue) and denim shorts.  The complainant was seated.  He had some injuries to his face and a bit of blood on his face.  He did not appear intoxicated.

[46]  Arrangements were made for the transport of the appellant and Moffatt to the Ipswich Watch-house. 

[47]  At about 1.10 am Watts spoke to the appellant at the Ipswich Watch-house.  By then he had been given alternative clothing; his property, consisting of a backpack, clothing and a wallet, was already in the possession of the watch-house officers. 

[48] Watts searched the property.  There was cash in the wallet (1 x $20, 1 x $10, 1 x $5, 3 x $2, 2 x $1, 1 x 50c, 2 x 20c).  There was a Centrelink document in the complainant’s name bearing the signature "Stuart 8/2/10".  There were three cards in the name of the appellant – a Mastercard debit card, a Job Seeker card, and a Healthcare card.  On the Centrelink document there was something around the rim which could have been blood.  But although this was tested by another officer, there was no result to confirm whose blood it was.

[49]  According to Watts, Moffatt was aged 30-35 years.  Watts said he believed Moffatt was the appellant's aunt.  She was Aboriginal or Torres Strait Islander with brown hair, brown eyes and "portionate [sic] build".  She was unsteady on her feet, slurring her speech and incoherent.  She was wearing a long-sleeve hoodie type jumper and cream coloured shorts.  In cross-examination he agreed she was not wearing a dress.  He was shown a photograph of blood-stained cream coloured shorts which he identified as those worn by Moffatt.

[50]  DNA samples were taken from both the appellant and Moffatt.

[51]  Watts packaged the appellant and Moffatt's property and lodged it at the Yamanto Police Station, which had storage facilities.  Some items eventually found their way to the John Tonge Forensic Centre for DNA testing.  The prosecutor asked Watts –

"Now, if necessary, the trail, or the continuity – well, steps taken to take that property from the watchhouse to Yamanto to John Tonge Forensic Centre can be established through ---?"

And he replied –

"Yes."

[52]  The next day Watts attended the scene of the crime with Constable Wadham.

Constable Wadham

[53]  At about 10.00 pm Constable Wadham was at the Goodna Police Station.

[54]  The complainant was there.  He had a graze on his nose, blood down his face and blood down his shirt.  He was wearing a blue jacket and shorts.  She took a notebook statement.

[55]  The complainant described the male who had robbed him as wearing white shorts, and a tank top which was greyish in colour, and he said he had brownish/blondish hair, and tattoos on his arms. He described the female as Aboriginal, 165 centimetres in height, with short black curly hair, and wearing a dress and shorts.

[56]  The complainant said that money had been stolen – a $50 note and a $20 note.  Wadham had no recollection of his saying anything else such as tobacco had been stolen.  He was not grossly affected by alcohol.

[57]  The appellant was in a watch-house cell.  He was a little bit vocal and appeared quite intoxicated.  At about 2.40 am the next morning she spoke to him at the Ipswich Police Station.  He had sobered up considerably.

[58]  Wadham assisted Watts to conduct the search of the appellant’s property which had been lodged at the Ipswich Watch-house – a cowboy singlet like a tank top, shorts, a black duffel bag, a wallet in the duffel bag, inside the wallet a Centrelink document in the name of "Stuart Briggs", and cash.  DNA samples were taken from the appellant and Moffatt. 

[59]  Wadham said that Moffatt was wearing a long black and white tunic top (probably mid thigh length) and beige shorts that went just below the knee.  She was shown the photograph of blood-stained cream coloured shorts which had been shown to Watts: she recognised the shorts as the ones seized from Moffatt and sent for DNA analysis. 

[60]  She said the appellant’s hair was significantly shorter than it was at trial – "like closely shaved", with a rat’s tail.

[61]  She believed that Moffatt was the appellant’s aunt.

[62]  The next night a DNA sample was taken from the complainant.

[63]  On 13 February Wadham took a formal statement from the complainant at the Deception Bay Police Station.

[64]  At trial Wadham purported to identify the appellant and Moffatt, as well as the complainant, on the CCTV footage.

(a)At transcript page 1-40 she said the appellant and Moffatt were seen together.

(b) At transcript page 1-41 they appeared quite drunk, quite intoxicated and just falling around. 

(c)At transcript page 2-4 she identified the appellant and Moffatt as the people coming across the pedestrian overpass approaching the top car park above the Weeroona Hotel.

(d) At transcript page 2-5 she identified the person running across the bridge at about 8.00 pm as the complainant.  In cross-examination she agreed that it was an assumption that it was the complainant, saying,

"It matched the jacket he was wearing that night when I saw him."

(e) At transcript page 2-6 she identified the same two people in the second sequence of footage – the appellant, in white socks with a backpack, holding Moffatt. 

(f) At transcript page 2-7 she identified the appellant and Moffatt on the veranda of the hotel.

DNA evidence

[65]  Immediately before the close of the Crown case, the prosecutor told the jury of the evidence of Claire Gallagher, a scientist within the DNA analysis unit at the John Tonge Centre.  This was treated as an admission by defence counsel.

[66]  Two envelopes bearing identifying numbers were received by the laboratory, as well as DNA reference samples relating to the complainant, the appellant and Moffatt.  One of the envelopes contained a pair of cream coloured shorts which were submitted for DNA analysis.  A partial DNA profile was obtained, which matched the corresponding DNA components of the complainant's reference sample.  The probability of this occurring if the DNA in the sample taken from the shorts was from someone other than the complainant or unrelated to him was one in 170 billion.

Criticisms of the identification evidence

[67]  Counsel for the appellant focussed on two aspects of the identification evidence –

(a)Wadham's identification of the appellant on the CCTV footage; and

(b)the complainant’s identification of the appellant at the hotel.

Submissions about the CCTV footage

[68]  Counsel for the appellant submitted that the trial judge erred in allowing Wadham to assert that the person shown on the footage was the appellant.  She submitted –

(a)Wadham was in no better position than the jury to assess whether the appellant could be identified on the footage.

(b)There was no evidentiary basis for the identification.  Wadham gave no evidence of what the appellant was wearing (although she did give evidence of what Moffatt was wearing and of being present when the appellant’s property was searched). 

(c)In any event Wadham's purported identification was inadmissible opinion evidence.

(d)That defence counsel did not object to the opinion evidence was not fatal on appeal, as counsel could not concede a matter of law.

(e)As the jury may have been influenced by Wadham's identification of the people in the CCTV footage as the appellant and Moffatt, the trial judge’s error of law in admitting that evidence caused a substantial miscarriage of justice.

[69]  As counsel for the respondent conceded, Wadham's identification of the appellant on the CCTV footage was inadmissible.  It fell within the category described by McMurdo P (with whom McPherson JA and Holmes J agreed) in R v LM[2] as –

"[86]… interpretative evidence from witnesses who, like the jury, have merely viewed the recording and then given evidence of what they saw on the tape which is before the jury.  This category of evidence will not ordinarily be admissible unless the witnesses have some special knowledge to explain or clarify something in the tape recording or to assist the jury in understanding it.  If the witnesses merely describe their own perceptions of what is depicted on the tape, their evidence is not admissible because they [sic] jury could observe the tape and decide for themselves whether the appellant was committing acts to harm D:  see Smith v The Queen.[3]"

[70]  But, counsel for the respondent submitted, defence counsel's failure to object resulted from a sound forensic decision.  It was blatantly obvious who was on the footage.  Defence counsel chose not to distract the jury when stronger points were available.  He submitted that there was a forensic advantage in not objecting – the footage showed the level of intoxication.  There was also a question of timing: the robbery was supposed to have occurred about 9.00 pm, but the CCTV footage showed the appellant and Moffatt elsewhere at about that time.

[71]  Counsel for the respondent pointed to what defence counsel said in addressing the jury about the identification evidence –

"My friend said to you there's no evidence to contradict Mr Briggs. Well, maybe my learned friend forgot what he told the police when they first confronted Mr Briggs at 10 o'clock or around 10 o'clock that night. Male, white shorts, tank top greyish, brownish blondish hair, tattoos on arms, white brownish short hair. You’ve seen the video footage of a person that's described as Mr Urbano, an assumption made by police officer. And you might well think it is Mr Urbano. But is that description that you can see on there – and it's a matter for you who you think's on that video, not what the police officer tells you – a matter for you."

This was not an admission of the accuracy of the evidence or of the identification.

Submissions about the complainant’s identification of the appellant at the hotel

[72]  Counsel for the appellant submitted that, contrary to a direction given by the trial judge in her summing-up, the evidence did not establish visual identification of the appellant by the complainant at the hotel.

(a)The complainant gave evidence that police asked him who had done it, and he pointed out two people who were sitting out the front of the pub in the smoking area. 

(b) There was no evidence from the police officer that the complainant identified the appellant to them as the assailant. 

(c) There was no evidence therefore to establish that the person taken into custody by the police (the appellant) was the person specifically identified to police by the complainant as the assailant.

(d) Such a matter was not one of inference: it required positive proof. 

(e) The direction by the judge assuming such proof was a fundamental misdirection.  It was not cured by the subsequent dock identification.

[73]  Counsel for the respondent submitted that while there was no evidence from the bar staff or the police that the persons the complainant pointed out were the appellant and Moffatt, the CCTV footage and the evidence of Officers Phillips and O'Donovan demonstrated that the appellant and Moffatt were in the area of the hotel nominated by the complainant.  He submitted that it was not controversial at trial that the complainant pointed out the appellant at the hotel.

The summing-up: identification

[74]  The trial judge told the jury that they should approach the complainant’s evidence with special care.  She referred to his long standing alcohol addiction and his glue sniffing, and the effect of the glue sniffing in particular on his memory.  She said that if his memory were affected, that affected his reliability in giving evidence.  Accordingly it would be dangerous to act on his evidence alone if the jury could not find other evidence to support it.

[75] In summarising what the prosecution relied on as corroboration of the complainant’s evidence, her Honour inferentially told the jury that it was for them to decide whether the persons shown on the CCTV footage were the appellant and Moffatt.  This is what she said –

"Now, the Crown, of course, says that there is supporting evidence in this case of Mr Briggs's evidence. If you accept it, the Crown says that the accused being in possession of that piece of paper with his name on it is evidence that supports Briggs's account. And the fact that the accused is in company with Moffatt, if you accept that to be what you see on the CCTV around the time of the robbery in the area of the robbery, and that Moffatt has blood on her pants which DNA would suggest is most likely Briggs's. That that's also evidence that supports Briggs's evidence that it was Moffatt and Urbano who were two of the three robbers or people involved in the robbery." (Emphasis added).

[76]  Later, in summarising the Crown case, her Honour reminded the jury –

"...The Crown says if you look at the CCTV footage you can see the both of them together.."

In summarising the defence case she reminded them that it was for them to decide whether the person the police officer thought might have been the appellant was in fact the appellant.

[77]  Thus, her Honour made it clear to the jury that the identification of the person shown on the CCTV footage was a matter for them to decide.  In that way she deftly countered any harm that may have been done to the defence by the admission of Wadham’s evidence of identification.

[78]  In Domican v The Queen[4] the High Court held that jurors must be warned of the dangers of acting on identification evidence where it is disputed, and that their attention must be drawn to the particular aspects of the evidence which might be thought to cast doubt on the reliability of the evidence.  In R v Evan, Robu and Bivolaru[5] Keane JA (with whom Holmes JA and Atkinson J agreed) said that the need for the warning is not obviated by the existence of other evidence of circumstances tending to inculpate the accused.[6]  He continued[7] –

"...the warning required by Domican v The Queen must be focussed upon the identification evidence on the footing that the jury may decide to convict the accused solely on the basis of the identification evidence. Accordingly, insofar as each identification evidence was relied upon by the Crown as part of its case, its weight was to be assessed by the jury independently of the other evidence in the case. While other evidence might justify a conviction independently of the identification evidence, the value of each identification was to be addressed as if that might be the only basis on which the jury might decide to convict."

[79]  Here the trial judge correctly directed the jury that they could use other evidence to form a conclusion of guilt when she said –

"The evidence of each individual witness, whilst important in itself, shouldn't be regarded by you in isolation from the other evidence adduced at the trial. Other evidence tending to implicate the accused may be highly relevant and may justify conviction while the evidence of identification, if it stood alone, would be insufficient."

Her Honour did not fall into the error identified in Evan, Robu and Bivolaru; she did not tell the jury that they could use other evidence to support the correctness of the identification.

[80]  Her Honour directed the jury on the dangers of convicting on identification evidence where that evidence is disputed,[8] and she warned them about the dangers of relying on dock identification.[9]

[81]  Counsel for the appellant submitted that her Honour's directions were inadequate because she did not advert to the absence of evidence that the man the complainant identified at the hotel was the appellant and the dangers in assuming that an accurate identification had occurred at that time.

[82]  The principal issue at trial was the identity of the complainant's assailant - whether the Crown proved beyond reasonable doubt that it was the appellant who robbed him.  It was not suggested in cross examination or in address that the man the complainant identified at the hotel was not the appellant.  Experienced defence counsel did not seek any relevant redirection.  In those circumstances, her Honour did not err in not referring to the absence of evidence that the man the complainant identified at the hotel was the appellant.

Submissions about the DNA evidence

[83]  In her summing-up the trial judge referred to Moffatt’s having blood on her pants which DNA analysis suggested was most likely the complainant’s.

Counsel for the appellant submitted that this was a misstatement of the evidence, and pointed to -

(a)the lack of continuity of the exhibit (Moffatt's shorts); and

(b)the absence of evidence that the DNA sample was taken from an area that looked like blood or had a presumptive test for blood.

[84]  Counsel for the respondent acknowledged that there was a gap in continuity between the shorts seized from Moffatt and the admission that a pair of shorts was examined by reference to an identifying number.  But he submitted that it was a forensic decision not to draw attention to this – that defence counsel was attempting not to take any issue with either continuity or the results of the testing, and that to have required strict proof would have required a much greater length of time with the jury wondering why they were wasting time on such issues.

[85]  I agree with his submission that the criticism of this aspect of the summing up was unfair.  Defence counsel addressed the jury on the understanding that the shorts tested by the DNA analyst were Moffatt's and that the DNA sample was taken from blood on the shorts when he was referring to the CCTV footage;  he said –

"They play that to show you that Urbano and Moffatt were together. And they want you to say, because she's got blood on her that belongs to Briggs, therefore they must have robbed him. It's all a very long bow to draw, in my respectful submission."

Other criticisms

[86]  Counsel for the appellant submitted that the trial judge erred in failing to direct the jury to disregard inadmissible evidence given by the complainant that the appellant had earlier bashed his mate, and in failing to direct them to disregard inadmissible evidence by two police officers that they believed Moffatt was the appellant's aunt. 

[87]  However, as counsel for the appellant submitted, the defence made no complaint at the time and did not request any redirection.  The evidence of bashing came only from the complainant: defence counsel cross-examined as if it was something that adversely affected his credibility, and there was good forensic reason to leave it as it was.  Similarly, if the evidence of the relationship between the appellant and Moffatt was to be an issue, it should have been an issue for objection at trial, which it was not.

Was the verdict unreasonable?

[88]  Counsel for the appellant submitted that if the identification of the appellant by Wadham was inadmissible and the evidence did not establish a positive identification at the scene, it was not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty.[10]  She submitted that the dock identification was insufficient to establish guilt.

[89]  To the contrary, there was a considerable body of evidence from which the jury could be so satisfied, including the complainant’s saying that he was robbed by a man and woman matching the description of the appellant and Moffatt, that the appellant and Moffatt were in the vicinity at the time of the robbery, the presence of DNA on Moffatt’s shorts that was very likely the complainant's, and the Centrelink document in the complainant’s name being found with the appellant’s property.

Conclusion

[90]  I would dismiss the appeal against conviction.

[91]  MARTIN J:  I agree, for the reasons given by Margaret Wilson AJA, with the order she proposes.