R v Patch and Manns[2023] QCA 94

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  At about 3.30 pm on 25 February 2021, the United Petroleum Service Station in Yuleba was robbed by two people.  One carried a machete and brandished it during the robbery.
2. [2]
   The two offenders wore similar clothing during the robbery, namely:

   1. (a)
      each wore a two-toned grey hooded jumper with black stripes extending from the elbow to the wrists, dark blue or black long trackpants and dark shoes;
   2. (b)
      each wore a white mask covering the lower part of the face; and
   3. (c)
      one offender had a yellow cap worn under the hoodie, and the other had a blue cap.^[1]
3. [3]
   The offenders walked in through the front door of the service station and into the staff area behind the counter.  Perhaps because no-one was there, they retreated from the staff area for a few moments.  During that time, BlueCap brandished the machete, hit the counter with it, and then both offenders moved back into the staff area.
4. [4]
   At that point, the staff member in charge, Ms Jonqua, appeared from the kitchen area where she had been handling a food delivery.
5. [5]
   BlueCap waved the machete several times towards the till and told Jonqua to get the money from the till.  Meanwhile, YellowCap told the food delivery man^[2] to get on the ground.
6. [6]
   Jonqua handed the notes from the till to YellowCap.  She then took the coins from the till, placed them in a bag, and handed them to BlueCap.
7. [7]
   Both offenders left the staff area, but BlueCap turned back and asked Jonqua for a packet of cigarettes, which she got.  Both offenders then left the service station via the front door and ran away.
8. [8]
   Police arrested the appellants.  Each were charged that they, in company with the other, and armed with a machete, robbed Jonqua.
9. [9]
   On 21 July 2021, each were found guilty at the end of a two-day trial before a jury.
10. [10]
    The appellants challenge the verdicts on slightly overlapping grounds.  The one common ground is that the verdicts were unreasonable or could not be supported having regard to the evidence.^[3]  The other grounds raised by the appellant Patch are:

• Ground 2 – a miscarriage of justice occurred because the “identification” evidence of Ms Jonqua ought to have been excluded from evidence; and
• Ground 3 – a miscarriage of justice occurred because the learned trial judge failed to adequately direct the jury on the issue of identification.

11. [11]
    For the appellant Manns, the other ground is:

• Ground 1 – the reception into evidence at the trial, some 18 months after the offence occurred, of evidence positively identifying the appellant as one of the offenders constituted a miscarriage of justice because, on the day of the actual offending, the witness failed to positively identify the appellant as one of the offenders.

The evidence at the trial

12. [12]
    As each appellant relies upon a ground contending that the verdict was unreasonable, this Court is required to review the whole of the evidence at the trial.  That evidence came from:

    1. (a)
       Jonqua;
    2. (b)
       Detective Sergeant Forest;
    3. (c)
       CCTV footage from inside and outside the service station;^[4] and
    4. (d)
       agreed admissions.^[5]

Agreed admissions

13. [13]
    The formally agreed admissions, Exhibit 3,^[6] were in the following terms:

3. “1.
   Each defendant was arrested by Detective Sergeant Forrest at about 4:30pm on 25 February 2021.  Each defendant denied any knowledge or involvement in the Robbery of the Service Station.

3. 2.
   Upon their arrest each defendant was searched and that:

a. None of the $300 stolen from the service station was located on either defendant;

b. The 30 pack of cigarettes was not found on either defendant;

c. The machete used in the robbery was not found on either defendant;

d. Neither defendant was wearing any of the clothing worn during the robbery; and

e. The defendants were found to each be carrying fishing gear.

3. 3.
   A search of the house where the defendants reside was undertaken within an hour after the robbery.  None of the stolen items, clothing used in the robbery, or machete were located within the residence.

3. 4.
   Tammy Benecke, the manager of the General Store located in Stephenson Street, Yuleba, whilst at the General store, saw:

a. At about 1:00 PM – The two defendants walking with fishing gear towards the creek;

b. At about 4:15 PM – The defendants retuned to her general store with the same fishing equipment and purchased a drink.  The store manager advised Mr Patch that the service station has been robbed.  Mr Patch did not respond.  He paid for his drink and then proceeded out of the store towards the direction of his residence with Mr Mann; and

c. The defendants wearing the same or similar clothing on both occasions she saw them in the afternoon of 25 February 2021.

3. 5.
   The offenders depicted in the CCTV footage committing the armed robbery in company offence were wearing clothing vastly different to what PATCH and MANNS were observed to be wearing by witness Tammy Benecke.

3. 6.
   Police conducted a search of the bushland and creek around the robbery location and area where the defendants were arrested, a search of the skate park and a search of the area immediately around the Petrol station and general store and located no items of interest.

3. 7.
   DNA sample was taken from Thomas Jeffrey PATCH.

3. 8.
   DNA sample was taken from Dakoda Shannon MANNS.

3. 9.
   A DNA sample was obtained from the star picket on the fence that the defendant’s [sic] were alleged to have jumped over.  That sample was taken for forensic testing and was not capable of returning a match to the defendants’.

3. 10.
   A fingerprint analysis was conducted on the $20 note that Thomas PATCH used at the General Store.  No fingerprints linking that note to the Service Station were able to be detected.”

Evidence of Jonqua

14. [14]
    Jonqua was the manager of the service station and had worked there since 2017.  She had lived in Yuleba all of her life, some twenty-three years.  She described Yuleba as a small community and she knew pretty much everyone who lived there.^[7]  On the day of the offence, she was expecting a food delivery at 3.20 pm.  The normal driver, Eric, brought the delivery into the kitchen, and then Jonqua put it away.  The kitchen was separated from the staff area (behind the counter) by a corridor.^[8]  She described the sequence of events in her evidence-in-chief:^[9]

    1. (a)
       she heard a loud bang on the counter;
    2. (b)
       she walked out to see what it was, and a person was standing at the counter area; when she first saw him, he was across the counter;
    3. (c)
       she went back into the kitchen because she was scared and did not know what was happening; Eric was in the kitchen at the same time;
    4. (d)
       two men came around the counter and near the kitchen corridor;
    5. (e)
       one of them told her to get the money out of the till; that person was the man she first saw out across the counter; he was the one who hit something on the counter;
    6. (f)
       Jonqua took the notes out of the till and handed them over; she then put the coins from the till in a cream cash bag;
    7. (g)
       the second man, who was also standing near the kitchen, told Eric to get down on the ground; Eric did so;
    8. (h)
       after she handed over the money, the two men “went to leave, but then one of them said to grab a packet of smokes”; Jonqua grabbed a packet of cigarettes and gave it to him;
    9. (i)
       she could not recall which of the men asked for the cigarettes, or which one she gave them to;
    10. (j)
        after that, they ran out the front door;
    11. (k)
        Jonqua watched them go out the door then rang triple zero; and
    12. (l)
        when the police arrived, she showed them the CCTV footage from the service station.
15. [15]
    Jonqua then identified the CCTV footage.^[10]  She identified various parts of what the footage showed, particularly the staff door through which the two men came into the staff area behind the counter, and that the cigarettes were kept at a point which was behind the camera.^[11]
16. [16]
    Having watched the CCTV footage, questioning of Jonqua then turned to her conversation with the police and her nomination of the appellants as the offenders.  The relevant parts of Jonqua’s evidence-in-chief on that topic were as follows:^[12]

    1. (a)
       she told the police that one of the offenders was Patch and the other Manns;
    2. (b)
       asked how she would identify them she answered: “Their voices: they both spoke, so I knew their voices, and I watched them walk in and out of the store and I could see how they walk and slouch and everything.”
    3. (c)
       she nominated the “first guy” as Patch;^[13] he was the person who had the machete;^[14]
    4. (d)
       she identified the second person as Manns; he was the person who told Eric to get on the ground;
    5. (e)
       she confirmed that she identified both Patch and Manns by their voices, the manner of them walking, and Manns’ “slouch”, which she explained by saying: “Dakoda’s got a certain slouch in his shoulders”;
    6. (f)
       the house Patch lived in was just across the road and to the left of the service station;
    7. (g)
       Patch came into the service station “pretty much almost every day”, in order to “grab food, drinks, smokes.”
    8. (h)
       she had known Patch pretty much all of their lives; they went to school together from primary school through to year 9, and were in the same class most of the time; those classes were small, with only about 10 students;
    9. (i)
       she knew Manns because he used to live in Yuleba and had come into the service station a couple of weeks before the robbery;
    10. (j)
        Patch and Manns had come into the service station store together quite a few times;
    11. (k)
        having given that evidence, she was asked:^[15]

“Okay.  Now, so those are the reason why you nominated these two - - -?---Yes.

- - - defendants as the persons who came into your store that day?---Yes.”

17. [17]
    Jonqua was then asked to consider the fact that the two men had their heads and faces covered, and in light of that how sure she was that it was Patch and Manns.  She answered:^[16]

“I’m pretty sure, very sure.

Very sure?---Yes.

Do you have any doubt?---Definitely not.”

18. [18]
    In cross-examination by counsel for Manns, the following points emerged:

    1. (a)
       the CCTV footage revealed that she spoke to one or both of the persons in her store; she asked them questions such as whether they wanted the change put into a bag;^[17]
    2. (b)
       she played the CCTV footage to police when they arrived, so that they could get a description of the people who came into the store; she recalled a conversation with the police officer where she nominated Patch and Manns as the offenders, saying: “Yeah, they always come in, and it’s just the way those two walk.  Yeah, I know how they walk, and they tried to disguise their voices, but it sounded like those two people I said”, and “[b]ut I can’t be sure, but it sounded like them”.^[18]
    3. (c)
       Jonqua accepted that she told the police officer that she could not be sure it was Patch and Manns,^[19] but qualified that by saying, “Yes, at the time I was just in a lot of shock.”;^[20]
    4. (d)
       Jonqua reiterated that the reason she said she was not sure it was Patch and Manns, but it sounded like them, was because she “was just in shock.  That’s why [she] said that”;^[21] and
    5. (e)
       it was put to her that she had convinced herself that Patch and Manns were the robbers, but that Manns was not actually one of them; she denied each proposition.^[22]
19. [19]
    In cross-examination by counsel for Patch, the following relevant aspects emerged:

    1. (a)
       she accepted that, in her earlier evidence, she had said it was the “first guy”, namely Patch, to whom she gave the money, whereas the CCTV footage showed it was the other person (YellowCap);^[23]
    2. (b)
       she agreed that she told the police officer at the time that she identified Patch by the way he walked, and specifically by the way he moved his arms;^[24]
    3. (c)
       she saw Patch walk out which was the opportunity to identify him by the way he walked;^[25]
    4. (d)
       she denied the proposition that she did not recognise Patch by the way he moved his arms,^[26]
    5. (e)
       she accepted that, by reason of their attempt to disguise their voices and wearing masks, “their voices would have been distorted in some way – not a true representation of how they would normally sound”;^[27] and
    6. (f)
       she denied that she was mistaken that Patch or Manns robbed the store, answering “I’m certain”.^[28]
20. [20]
    In re-examination, Jonqua reaffirmed that when she spoke to the police officer and said words to the effect of, “I can’t be sure ...  but [it] sounded like them”, she was “in a lot of shock.  [She] didn’t know what was going on.  It didn’t register”.^[29]
21. [21]
    Further, in re-examination she said that, at the time she identified Patch and Manns to the police, she “was very sure – really sure” and “[v]ery sure”.^[30]

Evidence of DS Forest

22. [22]
    DS Forest gave evidence concerning the arrival of police, being briefed on the situation, and planning what to do as a result.  He said they searched for Patch and Manns, and eventually found them coming up from the creek and carrying some fishing gear.  He said their fishing gear was dry.^[31] In cross-examination, DS Forest accepted that it was a hot day.  He examined the fishing gear being carried by Patch and Manns and it was dry.  He disagreed with the proposition that because it was a hot day there was a good chance everything would be dry given the time between leaving the creek and arriving home, saying:

“Well, no.  … [M]y experience with fishing in the west, no.  … [Y]our gear wouldn’t be all as dry as what I was when – when I got home.  No.  No.”^[32]

The CCTV footage

23. [23]
    Two videos of the CCTV footage were tendered in evidence.^[33]  The main one is the footage taken from inside the service station from a camera looking out over the staff area towards the front door.  The relevant points that are revealed from that footage can be summarised as follows:^[34]

    1. (a)
       30:30: BlueCap, having entered the store followed by YellowCap, signals to YellowCap to go into the staff area;
    2. (b)
       30:34: BlueCap is shown standing just inside the door to the staff area, with the machete out in his right hand; YellowCap is in the process of turning around to go out of the staff area which he does by 30:37;  there is an obvious altercation between the two men as BlueCap pushes YellowCap in the chest and to one side before then moving along the counter where he bangs on the counter at 30:42; BlueCap hits something with the machete at 30:45 and then walks back to the entrance way to the staff area;
    3. (c)
       30:47: BlueCap looks in over the counter waving his machete, and then waves the machete at YellowCap, perhaps telling him to go through the door;
    4. (d)
       30:49: both men are in the staff area, YellowCap first and BlueCap with the machete out and hanging by his right-hand side;
    5. (e)
       30:51: BlueCap can be seen gesturing with the machete towards the till; YellowCap is out of sight;
    6. (f)
       30:53: BlueCap is partly obscured below the camera, but gestures with the machete towards the till again; YellowCap is still out of sight;
    7. (g)
       31:00: BlueCap steps back and becomes more visible in the camera, and again gestures towards the till with the machete;
    8. (h)
       31:04: BlueCap stands with his left hand in his hoodie pocket, and gestures again towards the till with the machete; YellowCap is still out of sight;
    9. (i)
       31:05: Jonqua appears with her hands raised and walking towards the till; BlueCap is visible to her right, approximately two metres away;
    10. (j)
        31:07: while Jonqua is facing the till, BlueCap steps towards the bottom of the scene and motions downwards with his machete; at that point, BlueCap is looking away from Jonqua and YellowCap begins to appear behind BlueCap;
    11. (k)
        31:09: whilst in the process of retrieving money from the till, Jonqua looks to the right towards YellowCap; at that point, he is about three metres away and facing her at an angle;
    12. (l)
        31:11: Ms Jonqua has turned around from the till and is looking towards where BlueCap is whilst holding the notes in her hand; at that point, YellowCap is walking towards the rear of the staff area;
    13. (m)
        Jonqua looks towards BlueCap for five seconds between 31:11 and 31:16;
    14. (n)
        31:13: Jonqua is looking towards where BlueCap and YellowCap must be (although they are out of sight of the camera), and speaks to them;
    15. (o)
        31:16: Jonqua proffers the cash in her hand as YellowCap walks towards her; she watches YellowCap until he takes hold of the money at 31:16; at that point, he is within one to one and a-half metres of Jonqua;
    16. (p)
        31:23: Jonqua, in the process of locating a bag to put the coins into, looks towards the rear of the office area; in the right hand side of the footage, YellowCap’s lower half can be seen, as can a small part of BlueCap;
    17. (q)
        31:26: Jonqua again looks to the rear of the office area; the bottom half of YellowCap can be seen on the righthand side of the footage;
    18. (r)
        31:32: still in the process of getting a bag for coins, Jonqua looks to rear of the office area; by that point, YellowCap has moved up next to her and about one metre away, and part of BlueCap’s shoulder can be seen on the right side of the footage;
    19. (s)
        between 31:37 and 31:40, Jonqua, in the process of extracting the tray of coins from the till, looks to the rear of the office area and speaks to one of the offenders;
    20. (t)
        31:46: Jonqua has put the coins in the bag, and is looking to the rear of the office area; this episode of watching lasts until 32:54; by this point, BlueCap has moved into vision to her left, and YellowCap is out of sight of the camera; Jonqua steps towards the two men, proffering the bag, and looking in their direction;
    21. (u)
        31:49: BlueCap steps forward in front of Jonqua to take the bag from her hand; Jonqua looks at him from a distance of no more than one metre;
    22. (v)
        31:51: YellowCap is walking towards the staff area door, BlueCap has turned away from Jonqua and started to walk after YellowCap; Jonqua watches them;
    23. (w)
        31:53: YellowCap is through the staff door and BlueCap is about to pass through it; while Jonqua watches him, he turns around and walks towards her, using the machete to indicate a point to the rear of the staff area; the area BlueCap is pointing to is consistent with where Jonqua said the cigarettes were kept; BlueCap walks towards where Jonqua was positioned (she is out of sight) to a point where, at 31:57, he is no longer in view;
    24. (x)
        31:59: BlueCap is walking away towards to the staff door where YellowCap is standing and looking in;
    25. (y)
        32:04: both men have reached the outside door to leave the store; and
    26. (z)
        32:09: both men are outside and leaving when Jonqua appears in the staff area with a phone in her hand and running out to see where they have gone; she commences a phone call while looking out through the front door; Eric’s lower half appears in the video range at 32:17.
24. [24]
    The CCTV footage from outside the service station shows the two men approaching from the western side between 30:06 and 30:22, and then leaving at 32:04.
25. [25]
    The CCTV footage reveals that Jonqua had the opportunity to hear the voices of BlueCap and YellowCap on at least four occasions during the robbery, namely:

    1. (i)
       when she was told to get money from the till;
    2. (ii)
       when she spoke to them about the cash and perhaps received an answer;
    3. (iii)
       when Eric was told to get on the floor; and
    4. (iv)
       when BlueCap asked for cigarettes.
26. [26]
    Further, the CCTV footage showed Jonqua looking at or watching the two men on six occasions, three of them relatively prolonged rather than mere glances.  Those episodes have been identified in paragraphs [23](m) and [23](t) above.

Patch, Ground 2; Manns, Ground 1; Attack on identification evidence

27. [27]
    Each of the appellants contend that Jonqua’s identification of them was flawed and either insufficient to satisfy the jury beyond reasonable doubt of the identity of the particular offender or, alternatively, should have been excluded for the same reason.
28. [28]
    For that purpose, each of the appellants focuses upon what is contended to be Jonqua’s identification evidence.  In each case, it is said to be confined to identification of the way in which they walked or slouched,^[35] and by voice identification.^[36]
29. [29]
    In my view, the appellants unduly confine the evidence given by Jonqua in respect of her nomination of Patch and Manns as the offenders.
30. [30]
    In her evidence-in-chief, Jonqua referred to a number of factors concerning her recognition of each of the offenders.  The first was that she heard them speak and recognised their voices.  BlueCap told her to get money out of the till and asked for some cigarettes.  YellowCap told Eric to get on the ground.  Jonqua said that both had spoken, she “knew their voices”, and could identify them by their voices.^[37]  The case for Manns accepted that Jonqua spoke to one or other of the offenders.^[38]  Even though the voices were somewhat disguised or distorted by wearing facemasks, it was not put directly to Jonqua that that fact prevented her from being able to identify their voices.  She denied that she was simply making her best guess or was mistaken, saying that, at the time, she was “sure it was them”, and “very sure – really sure” it was Patch and Manns.^[39]
31. [31]
    Jonqua was questioned about the comment she made to police officer Rhodes at the time, namely that she could not be sure, but it “sounded like them”.  She explained that she had said that because she was in a state of shock, though she was, at the time, very sure it was them.^[40]
32. [32]
    The second was that she watched them walk and she “could see how they walk and slouch and everything”.  She specified that Manns had “a certain slouch in his shoulders”.  Jonqua added that she told the police officer at the time that she recognised the way in which Patch walked “because of the way he moved his arms”.  Under cross-examination, Jonqua accepted that Patch normally did not come into the store wielding a machete or with one arm tucked within a hoodie.  However, she maintained that she still was able to recognise Patch by the way he moved his arms.^[41]  She explained that she saw him walk out.^[42]
33. [33]
    As far as Manns was concerned, Jonqua’s evidence was that he had a certain slouch in his shoulders.^[43]  It was not put to her that that description was wrong, merely that she had not seen him very often.  Manns’ case accepted that Jonqua did have contact with Manns on the occasions he came into the store from time to time.^[44]
34. [34]
    The third was that she had known Patch for most of their lives, having gone to school together from primary school through to grade 9, and being in the same small class of about 10 students during that time.  That evidence was unchallenged.
35. [35]
    The fourth was that Manns and Patch had come into the store together “[q]uite a few times”, and she knew Manns as a person living in Yuleba.  That evidence was unchallenged.
36. [36]
    After those four points were covered in examination-in-chief, and immediately after Jonqua gave evidence about how long she had known Patch for, and her contacts with Manns, the following exchange occurred:^[45]

“Okay.  Now, so those are the reason [sic] why you nominated these two - - -?---Yes. 

- - - defendants as the persons who came into your store that day?---Yes.”

37. [37]
    In my view, when the evidence is properly read, the above four reasons were why Jonqua said she nominated Patch and Manns as the offenders.  It was not confined to questions of the way they walked and the way their voices sounded.
38. [38]
    Immediately after that, Jonqua was asked whether she was sure of her identification in light of the fact that both offenders had their faces covered:^[46]

“Right.  They had their faces – heads covered, the faces covered, right?  How sure are you it is these two defendants?---I’m pretty sure, very sure.

Very sure?---Yes.

Do you have any doubt?---Definitely not.”

39. [39]
    Those answers are a reflection of Jonqua’s evidence as to her degree of confidence that she was correct in nominating both Patch and Manns as the offenders.

Consideration

40. [40]
    In my view, the evidence given by Jonqua was recognition evidence and not identification evidence.  The difference was explained by the Court of Appeal of Western Australia in ISN v The State of Western Australia [No 2]:^[47]

3. “[94]
   There is a difference between recognition and identification evidence.  The difference was described by Buss JA in Mills v The State of Western Australia:

‘In general, identification evidence describes the evidence of a witness who identifies an accused as the offender in circumstances where the witness first saw the accused at or near the crime scene.  In general, recognition evidence describes the evidence of a witness who recognises an accused as the offender in circumstances where the accused was previously known to the witness or had previously been seen by the witness other than at or near the crime scene.  Where the witness’s previous knowledge of the accused was tenuous, or the witness’s previous sighting of the accused was fleeting, the witness’s evidence that he or she recognised the accused at or near the crime scene may, in substance, resemble ‘identification evidence’.  The nature and character of the witness’s previous connection with the accused is the crucial issue, rather than the characterisation of his or her evidence as ‘recognition’ evidence.”

41. [41]
    In Neville v The Queen,^[48] the distinction between the various forms of identification evidence was adverted to,^[49] and the court there adopted what was said by McKechnie J in Kelly v The Queen:^[50]

3. “[36]
   ‘Introduction

Identification evidence has troubled courts for more than a century because identification evidence often appears cogent and is generally given by a witness who is creditworthy and thus often persuasive.  This can make the evidence dangerous because a believable witness may nevertheless be honestly mistaken.

A number of special rules have been developed dealing with different aspects of the problems arising from identification evidence.  It is important to remember that the rules deal with different aspects.  Each case must be examined in the light of the particular issue with which it is concerned.

Issues in identification evidence

In dealing with identification evidence at trial, and also its subsequent examination on appeal, it is important to isolate the particular issue or issues raised in the evidence.  Different issues have given rise to different rules.

…

Observation of a suspect who is known to the observer

This is not evidence of identification but of recognition.

Recognition and identification

There is a difference between recognition and identification.  A suspect known to a witness may be recognised by that witness at a place which, for convenience, I will refer to as the crime scene.  While examination is undertaken by the court as to the circumstances under which the recognition at the crime scene was made – sometimes very similar to issues of identification – other problems associated with identification are absent.  The witness had had a prior opportunity to be familiar with the suspect.

Identification occurs when the witness does not know or recognise the suspect who is observed by the witness at the crime scene.  In these circumstances there is a later opportunity to see the suspect and for the witness to compare the features of the suspect on that later occasion with their (the witness') recollection of the person they observed at the crime scene.

…

(b) The subsequent identification

The reliability of the identification

This includes questions as to the time elapsed between the actual observation and subsequent identification and the effect the time might have had on the observer's ability to accurately bring the features of the suspect to mind.

If the initial observation was short and the time elapsed was long, the judicial discretion to exclude the evidence may be enlivened.  In any event, a trial judge is bound to direct a jury as to general and particular matters which may affect the identification.”

42. [42]
    The unchallenged evidence was that Jonqua had known Patch virtually her entire life, going to school with him in very small classes.  Further, he lived across the road from where she worked and she saw him on an almost daily basis.  The unchallenged evidence also was that she had seen Patch in the store with Manns on quite a few occasions.
43. [43]
    As for Manns, it was unchallenged that he had a distinct slouch to his shoulders.
44. [44]
    These were part of the features Jonqua referred to in her nomination of Patch and Manns as the offenders.  She recognised each of Patch and Manns by their differing features such as voice, how they walked, and her knowledge of each offender from past contact.
45. [45]
    When her evidence is properly understood, Jonqua identified each offender in a composite way, and differentially even though the two offenders were dressed in almost identical clothing.  The process of recognition is an act of the mind.^[51]  The consequence is that ambiguity in the articulation of that state of mind must be resolved before that articulation can be relied upon as evidence of recognition.^[52]  It was therefore a factual issue for the jury to decide whether Jonqua had the requisite state of mind, namely recognising the offenders as Patch and Manns.
46. [46]
    Jonqua immediately recognised them at the time, leading her to nominate them to police as the offenders.  Her certainty at the time had only one caveat which might be drawn from the conversation she had with police officer Rhodes, the first officer on the scene.  That arose in cross-examination by Counsel for Manns.  Jonqua played the CCTV footage so that Rhodes could get a description of the offenders.  Jonqua accepted that she had this exchange with Rhodes:^[53]

“Well, do you remember you saying to him words to the effect, ‘Yeah they always come in, and it’s just the way those two walk.  Yeah, I know how they walk, and they tried to disguise their voices, but it sounded like those two people I said’?---Yeah.

Do you recall saying that?---Yes, I remember that.

Do you recall saying – Constable Rhodes words to the effect, ‘Okay’.  And then do you recall that?---Yes.

You recall you then responded to him, ‘But I can’t be sure, but it sounded like them’?  You recall saying that?---Yes.

And at the time – and, sorry, do you recall Constable Rhodes saying to you, ‘Okay, no worries’?---Yes.”

47. [47]
    In that passage, it is clear, in my view, that Jonqua’s expression “can’t be sure” relates only to the aspect of recognising the offenders’ voices.
48. [48]
    Jonqua explained that her response to officer Rhodes was the product of being in shock.  There is no reason why the jury could not accept that explanation, particularly when one sees on the CCTV footage that Jonqua’s immediate reaction after the men had left the service station was to lean down onto the side of the door for support, and then immediately squat down.  It was open to the jury to accept those actions as revealing a degree of shock caused by the events.  Her evidence that she suffered shock at the time was not challenged.
49. [49]
    Added to that is the fact that the CCTV footage reveals that Jonqua looked in the direction of the offenders on at least six occasions while they were in the store.  That occurred when they were in relatively close proximity to her in the staff area and no more than three metres away.  On two occasions, the period during which she was watching or looking at one or other of the offenders was relatively prolonged in the circumstances.
50. [50]
    Contrary to the submissions for the appellants, this is not a case where Pitkin is applicable.  There, a witness identified the defendant from three photographs, with the comment: “This looks like the person”.  The High Court observed that the dangers of using photographs of suspects were:^[54]

    1. (a)
       identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used;
    2. (b)
       a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders; in that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a “suspect” who “looks like” the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender;
    3. (c)
       a witness’s evidence that she identified a photograph of the accused which was in the possession of the police may suggest to the jury that the accused either has a criminal record involving the relevant kind of crime or is otherwise unfavourably known to the police as a person likely to commit that kind of crime; and
    4. (d)
       that danger of prejudice is likely to be increased in a case where the police have produced a number of different photographs of the accused taken at different times.
51. [51]
    None of those dangers exist in the present case.  Jonqua went far beyond what the witness in Pitkin did, described by the High Court as:^[55]

“In the present case, the words used by Ms Vella in selecting the three photographs did not, as a matter of literal meaning, amount to positive identification.  They were plainly consistent with an intention by Ms Vella to indicate nothing more than that the person depicted in the three photographs looked like the offender whom she had seen.”

52. [52]
    In my view, it cannot be advanced that the jury did not have an adequate opportunity to carefully weigh Jonqua’s evidence.  In fact, they asked for all of her evidence concerning the incident to be given to them again.  Plainly, the jury was scrutinising her evidence carefully.  After that was done, the learned trial judge proposed to give the identification directions again.  That was not opposed by defence Counsel, nor was any further direction sought.
53. [53]
    In my view, some of the points advanced by the appellants do not have the force for which they contend.  One example is the attack based on the evidence concerning arm movements.  That was not included in evidence-in-chief as one of the various factors relied on to nominate the appellants.  It was introduced in cross-examination in this way:^[56]

“No.  And you went on to tell the police officer at the time that you actually recognised the manner in which he walked because of the way he moved his arms.  That’s true, isn’t it?---Yes.

And that’s, in fact, how you did identify the way in which he walked because you did not see him walk into the service station.  That’s true, isn’t it?---I saw him walk out.

I suggest to you, madam, that he didn’t walk out.  He ran out the door.  That was your evidence, I believe, in-chief, that they ran out the front door?---I don’t remember that.

I can play the CCTV footage to you again if you need or – are you willing to accept the suggestion that they ran out the front door?---I’ll accept the suggestion.

So, in fact, you never saw them walk in or walk out of the building, did you?---Not walk.

No.  So you identified Mr Patch and the manner which he walked by the way that he moved his arms.  That’s what you told the officer on the day---Yes.”

54. [54]
    The question emphasised in the passage above suggested that the CCTV footage showed that the offenders ran out the door.  That was not correct.  It is true to say that, in her evidence-in-chief, Jonqua did use the phrase “they ran out the door” when answering how they left.^[57]  But that is not what the CCTV shows, nor was it her answer in the passage quoted above.  The jury could accept that response as signifying a vernacular description rather than a precise one as to how they left.
55. [55]
    Another example is the focus on distortion of voices.  In cross-examination, Jonqua accepted that she told officer Rhodes that “they tried to disguise their voices”.  That, and the fact they were wearing facemasks over their mouths, led to the suggestion that “their voices would have been distorted in some way – not a true representation of how they would normally sound”, a proposition accepted by Jonqua.^[58]  However, there was no exploration or clarification as to just what was meant by the voices being “distorted in some way” or “not a true representation of how they would normally sound”.  Notably, it was not suggested to her that, whatever the disguising or whatever the distortion, recognition of them by voices was not possible.
56. [56]
    In any event, to focus on individual components is, in my view, apt to mislead.  For the reasons explained above, Jonqua’s recognition of the appellants was the product of a composite set of factors.  The jury were entitled to consider it that way, and it was open to them to accept her evidence that she was certain in her recognition of them as the offenders.  Particularly is that so when one recalls that Jonqua was cross-examined as to her lack of surety and whether it was the case that she had really been unsure, but had convinced herself over time that it was Patch and Manns.  She denied that, and then, in re-examination, made it plain that she had been sure at the time of the offence and was still sure.
57. [57]
    In my view, the evidence of Jonqua was admissible.  It did not lack cogency.  She explained the means by which she recognised the two men, namely by: (i) her familiarity with them individually (particularly Patch); (ii) her familiarity with them, having seen them together in the store quite a few times; (iii) their way of walking; and (iv) hearing their voices.  She was sure of that at the time, and at the trial.  Once the evidence of her qualification to officer Rhodes is properly understood, it does not betray any uncertainty as to anything but the sound of the voices.  But her recognition of the offenders did not rest on that alone, nor did that so heavily qualify her evidence that it should have been excluded.
58. [58]
    No application was made by either defence Counsel, pre-trial or at the trial, to exclude Jonqua’s evidence.  Once that evidence was admitted, it was a matter for the jury to weigh it as they thought fit.  Evidently, they accepted it.

Unreasonable verdict – Patch, Ground 1; Manns, Ground 2

59. [59]
    Counsel for each of the appellants recognised that the success of this ground depended upon the same arguments canvassed in respect of the grounds attacking the admissibility of Jonqua’s recognition evidence.  For Patch, two other points were made:^[59]

    1. (a)
       the comparison of the way the offender walked and Jonqua’s recognition of how the appellant had walked previously was flawed because she accepted she had never seen Patch walking while holding a machete, or with a hand in his jumper pocket; further, any comparison regarding the way in which Patch moved his arms was flawed because the offender’s arms were positioned so he had his hands in his jumper pocket, and that had not been observed before; and
    2. (b)
       it was implausible that the appellants were involved in the robbery when they had been seen before and after the robbery in “vastly different” clothing to that worn at the time of the offence.
60. [60]
    For Manns, the only additional point was that the jury were evidently troubled by the evidence of identification because they asked for the evidence to be read back to them.^[60]
61. [61]
    The legal principles applicable where the ground in that the verdict was unreasonable are well known.  They were recently restated in Dansie v The Queen.^[61]  Dansie reaffirmed the approach set out in M v The Queen.^[62]
62. [62]
    The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[63]

“[8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M.  The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.

[9] The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”.  The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence.  That was the point of the carefully crafted passage in which their Honours stated:

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground].  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

63. [63]
    The High Court also said:^[64]

“[12] The authoritative guidance to be gained from the joint judgment in M has not diminished with time.  M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the “test set down in M” required a court of criminal appeal to undertake an “independent assessment of the evidence, both as to its sufficiency and its quality” and that consideration of what might be labelled “jury” questions does not lie beyond the scope of that assessment.  Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”.”

64. [64]
    In Pell v The Queen,^[65] the Hight Court said:

“[39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

65. [65]
    In R v Miller,^[66] this Court said:

“[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.  The mere identification of weaknesses in the prosecution case is not enough to sustain the ground.  As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

Consideration

66. [66]
    In my view, it was open for the jury to accept the evidence of Jonqua as truly identifying Patch and Manns as the offenders on the day.  Many of the reasons for that conclusion are canvassed in relation to the previous grounds of appeal.  The only qualification expressed by Jonqua was to officer Rhodes, and only in relation to her recognition of their voices.  But that was only one factor in her evidence as to recognition of the offenders.  The CCTV footage reveals that, for much of the time during which the offence was committed, Jonqua was in close proximity to both offenders, spoke to them, heard them speak either to her or to Eric, was able to observe them both generally and as they walked out, and observed them together and separately – particularly when BlueCap came back in to ask her for a packet of cigarettes.  On the basis of what she saw and heard – and her familiarity with Patch and Manns both individually and together – she nominated them as the offenders on the day of the offence.  As to that, she gave evidence, which the jury could accept, that she was certain of her recognition of them on the day in question, as she was at the trial.
67. [67]
    The suggested flaw in the comparison of the way Patch walked is, in my view, misconceived.  Jonqua’s evidence as to the way in which Patch walked or moved his hands stands in contrast to her evidence about Manns.  As to Manns, she had said he had a particular alignment of his shoulders which she referred to as “slouching”.  It was not suggested to her that the offender depicted on the CCTV did not have such a slouch, nor was it put to her that Manns did not have that feature.  As to Patch, there was no exploration in cross-examination as to just what Jonqua was referring to about the way Patch walked or the way he moved his arms.  Nor was it put to her that the movements of BlueCap in the CCTV footage did not reflect those of Patch on other occasions.  Things were left at a more general level.  As this aspect was merely one of a number used by Jonqua to recognise and nominate Patch as one of the offenders, the jury were not compelled to reject her evidence by any doubt as to this factor alone.
68. [68]
    As to the point made about their clothing, that is also misconceived.  The admissions were that, at about 1.00 pm and 4.15 pm, Ms Benecke (the store manager) saw the appellants wearing different clothing.  The admission was also that what the offenders were wearing in the CCTV footage was “vastly different” to what the appellants were wearing when observed by Ms Benecke.^[67]
69. [69]
    It is difficult to understand why any implausibility is created by the fact that the appellants might have been wearing different clothing several hours before the event, and close to an hour after the event.  That fact hardly impacts on the central issue in the case, namely whether Jonqua’s evidence of recognition at the time of the offence could be accepted as credible and reliable.  The jury could reason that the offenders did not wish to be recognised, and therefore put on clothing that covered their arms and legs and substantially obscured their faces.
70. [70]
    It is true that the jury asked to hear all of Jonqua’s evidence for a second time at the end of the summing up and when they had commenced their deliberations.  I do not accept that doing so betrays that they were troubled by the evidence.  They had just been given quite stern directions concerning the identification issue, and specifically on the matters that might impact adversely on identification.  That the jury asked to hear the evidence again only reinforces, in my view, that they took particular care to examine that evidence in the light of the directions of the judge.  Indeed, the learned trial judge proposed to give the same direction again after the evidence was read, and there was no opposition to that being done.
71. [71]
    In my view, it has not been demonstrated that there were flaws or inconsistencies in the recognition evidence such as would give rise to a significant possibility that, even taking into account the advantage of the jury, innocent persons have been convicted.

Misdirection – Patch, Ground 3

72. [72]
    This ground contended that a miscarriage of justice occurred because the learned trial judge failed to adequately direct the jury on the issue of identification.  It was submitted that, whilst the direction given was in terms of the Bench Book, there was  a misdirection because the focus was only upon aspects of the evidence of Jonqua, whereas the direction should also have gone to other evidence which undermined the reliability of the identification evidence.

Consideration

73. [73]
    The contention advanced under this ground faces two initial difficulties.  The first is that the learned trial judge asked Counsel for Patch about which matters he wished to advance as a weakness in the identification evidence.^[68]  Counsel’s response not surprisingly focused on the aspects of Jonqua’s evidence such as walking and moving arms, hearing the voice, and the qualification in her conversation with officer Rhodes.^[69]
74. [74]
    The second difficulty is that there was no application for a redirection such as is now contended, either at the end of the summing up, or after the second time that the identification direction was given (when Jonqua’s evidence was read for the second time).
75. [75]
    The direction by the learned trial judge focused, as it had to do, on the evidence of Jonqua.^[70]  No part of the direction is criticised except that where the weaknesses were pointed out.  As to that, her Honour identified:

    1. (a)
       identification by moving the arms, and that Jonqua accepted he was not walking in a usual way because he was holding a machete and had one arm tucked into his hoodie;^[71]
    2. (b)
       the fact that voice identification would have been impacted by the wearing of a facemask and the attempt to disguise his voice, making it distorted;^[72]
    3. (c)
       the limitation on identification of Manns because of Jonqua’s limited contact with him, and the impact of wearing a facemask and trying to disguise the voice;^[73] and
    4. (d)
       the potential to infer that Jonqua was not sure on the day of the robbery that the robbers were Patch and Manns, by reference to what she said to officer Rhodes, and that she later became more certain when giving evidence.^[74]
76. [76]
    That direction was repeated after the jury heard Jonqua’s evidence for the second time.
77. [77]
    At the hearing of the appeal, Counsel for Patch handed up a draft direction identifying the extra matters that, it was contended, should have been put to the jury.  There is little purpose in setting out all of the many items which were included in that draft direction.  It suffices to refer to a few examples:

    1. (a)
       that the offenders were observed in clothes which were “vastly different” when observed by Benecke;
    2. (b)
       that neither Patch nor Manns attempted to evade the police prior to their arrest;
    3. (c)
       that a search did not reveal any of the stolen items on Patch or Manns;
    4. (d)
       neither Patch nor Manns were found with any weapons;
    5. (e)
       searches of the surrounding area by police did not locate any items of interest;
    6. (f)
       DNA taken from a star picket on the fence the offenders jumped over was not capable of returning a match for either Patch or Manns; and
    7. (g)
       a fingerprint analysis on a $20 note used by Patch that afternoon had no fingerprints linking that note to the robbery.
78. [78]
    Otherwise, the items in the draft directions were ones which the learned trial judge included, though in less voluble terms.
79. [79]
    In my view, the submissions on this ground should be rejected.  The items listed above in paragraph [77] are all items that might affect the weight to be attributed to Jonqua’s evidence, but do not go to the issue of identification.  Those weaknesses affecting Jonqua’s evidence itself were the ones that the learned trial judge identified, namely issues concerning walking and moving arms, the effect on voices by wearing facemasks and attempting to disguise the voice, lack of engagement with Manns prior to the event, and the doubts expressed by Jonqua to officer Rhodes.  All of those were sufficiently identified in the directions that were given.
80. [80]
    Some of the matters raised were contained in the admission document which was before the jury as an exhibit, and referred to by Counsel for Patch,^[75] by Counsel for Manns,^[76] and by the learned trial judge in the summing up.  The facts contained in the admission documents were the subject of considerable emphasis by Counsel for Patch in his address.  What was said there encompasses many of the points advanced above.
81. [81]
    In my view, the submissions confuse the question of evidence that might go to the broader issues of the weight to be accorded to Jonqua’s evidence, rather than weaknesses in the identification or recognition evidence itself.  The jury were adequately directed so that they took into account the weaknesses in Jonqua’s evidence as to how she identified Patch and Manns as the offenders.  The jury’s question which resulted in Jonqua’s evidence being given to them for a second time reflected that they were focusing on the strengths and weaknesses in that evidence.  They were given the same direction for a second time at the end of that evidence being read.  No application was made for a redirection either the first time; more conspicuously, no redirection was sought the second time.
82. [82]
    This ground fails.

Conclusion

83. [83]
    All of the grounds have failed.  Both appeals should be dismissed.  I propose the following orders:

1. In appeal number 152 of 2022, appeal dismissed. 
2. In appeal number 153 of 2022, appeal dismissed. 

84. [84]
    GOTTERSON AJA:  I agree with the orders proposed by Morrison JA and with his Honour’s reasons for them.
85. [85]
    BRADLEY J:  I agree with Morrison JA and the orders his Honour proposes.