TONEJ v THE KING [2026] SASCA 45

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) DCCRM-23-016515 Appellant: GENTIAN TONEJ Counsel: MR N REDMOND - Solicitor: SHAW LEGAL & ADVISORY Respondent: THE KING Counsel: MR A WILSON WITH MS R TAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 13/04/2026 File No/s: SCCRM-25-016196 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. TONEJ v THE KING [2026] SASCA 45 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Stanley and the Honourable Justice B Doyle) 1 May 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED EVIDENCE - ADMISSIBILITY - ADMISSIONS - INFORMAL ADMISSIONS - SELF-SERVING STATEMENTS The appellant was convicted of manufacturing a large commercial quantity of a controlled substance. The real issue at trial was whether the appellant was residing at or otherwise linked to a one-bedroom unit searched by police on 1 October 2022, where the ingredients and accoutrements of the manufacture of fantasy were found. The circumstantial case linking the appellant to the unit included evidence given by a police officer that, shortly prior to the unit being searched, he saw a man outside the units who bore a very strong likeness to an image on an identification tag found within the unit, which bore the appellant’s name and date of birth. The police officer gave evidence at trial that he had remarked to his colleagues upon the very strong likeness. The trial judge summarised the prosecution and defence arguments respecting the identification evidence but did not separately warn the jury about weaknesses or dangers associated with that evidence, or the use which could be made of the officer’s out of court statement. The appellant’s first ground of appeal concerns the absence of such directions. -- 1 of 28 -- The appellant was arrested in the car park at the rear of the units about a week after the unit had been searched. A video of the appellant’s arrest was tendered in evidence. The appellant denied that he lived at the unit. The appellant then gave evidence at trial denying that he resided at the unit and saying that whilst he had showered at the unit some weeks prior to the search (and left some personal belongings there), he had not been at the unit between that occasion and the time he was arrested, save for attending at the units once when there was no-one home. He said he had not been outside the units on the day the unit was searched. In relation to the arrest video, the judge directed the jury that they might think that some of the appellant’s statements were self-serving and that the jury were entitled to consider that fact when deciding what weight to give the statements. The appellant’s second ground of appeal complains that in circumstances where the arrest video was not relied on as a ‘mixed statement’, the direction occasioned a miscarriage of justice. Held, granting an extension of time and leave to appeal, and allowing the appeal: 1. the weaknesses or dangers associated with the various aspects of the police officer’s identification evidence required a warning to the jury that had the authority of the judge’s office behind it; 2. the failure to give such a warning was material in the requisite sense. Whilst the evidence, if acted upon, did not place the appellant inside the unit, it was inconsistent with the appellant’s version of events (which had to be negatived as a reasonable possibility). There is no basis to apply the proviso; 3. there was no real prospect that the jury might fail to understand that they could give different weight to aspects of the statements made by the appellant while he was being arrested. The direction relating to self-serving statements therefore served little purpose, and had the potential to encourage the jury to consider that the appellant’s sworn testimony warranted more scrutiny than the testimony of disinterested witnesses. It would have been preferable if the impugned direction had not been given. However, because of the success of the appellant’s first ground of appeal, it is not necessary finally to resolve whether it occasioned a miscarriage of justice requiring the quashing of the conviction. Controlled Substances Act 1984 (SA) s 33(1); Criminal Procedure Act 1921 (SA) s 158(2); Evidence Act 1929 (SA) s 34AB, referred to. R v Smith (2017) 129 SASR 237; R v Taheri [2017] SASCFC 92, distinguished. Alexander v The Queen (1981) 145 CLR 395; Brawn v The King (2025) 99 ALJR 872, [2025] HCA 20; Bromley v The Queen (1986) 161 CLR 315; Davies and Cody v R (1937) 57 CLR 170; De Silva v The Queen (2019) 268 CLR 57; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; Hargraves v The Queen (2011) 245 CLR 257; Liberato v The Queen (1985) 159 CLR 507; Lindsay v The Queen (2015) 255 CLR 272; Mahmood v Western Australia (2008) 232 CLR 397; Mule v The Queen (2005) 79 ALJR 1573, [2005] HCA 49; Mundy v The King [2023] SASCA 59; Murphy v The Queen (1994) 62 SASR 121; Nguyen v The Queen (2020) 269 CLR 299; R v Allen (2011) 109 SASR 396; R v Barbaro (1993) 32 NSWLR 619; R v BEC (2023) 16 QR 1; R v Connolly (No 2) [1991] 2 Qd R 171; R v Parsons; R v Brady [2015] SASCFC 183; R v Soma (2003) 212 CLR 299; R v Sutton (1990) 159 LSJS 96; R v Turner (2000) 76 SASR 163; R v Weetra (2010) 108 SASR 232; Robinson v The Queen (1991) 180 CLR 531; Strauss v Police (2013) 115 SASR 90; Weiss v The Queen (2005) 224 CLR 300, discussed. -- 2 of 28 -- TONEJ v THE KING [2026] SASCA 45 Court of Appeal – Criminal: Livesey P, Stanley and B Doyle JJA 1 THE COURT: Following a trial by jury, Gentian Tonej (‘the appellant’) was convicted of manufacturing a large commercial quantity of a controlled substance.1 The appellant appeals against his conviction on two grounds. 2 There is no real doubt that the one-bedroom unit in Woodville North attended and searched by police on 1 October 2022 was being used to manufacture a large quantity of fantasy. The ingredients and accoutrements of manufacturing fantasy were found throughout the kitchen and living areas of the unit. The issue at trial was whether the appellant was involved in the manufacture. The forensic focus of the trial was upon evidence linking the appellant to the unit. 3 The first ground of appeal concerns evidence given by Senior Constable Smith to the effect that a man who he saw walking away from the unit complex just prior to the search of the unit bore a very strong likeness to a photograph on an identification tag bearing the appellant’s name and date of birth, and that he recalled saying as much to colleagues at the time the photograph was shown to him. The appellant contends that the trial judge should have informed the jury about the dangers of this evidence and the limits on the use that could be made of Senior Constable Smith’s out of court statement to his colleagues. 4 The second ground of appeal concerns a direction given by the trial judge in relation to what were characterised as self-serving statements made by the appellant in the course of his arrest. The judge said that the jury was entitled to consider that they were self-serving when deciding what weight they should be given. The appellant contends that the arrest video was not relied upon by the prosecution as a ‘mixed statement’. A direction that a self-serving statement may be given less weight for that reason may be appropriate where it is necessary to explain, in the context of an out of court statement tendered by the prosecution, that the jury are not required to give equal weight to the entirety of a mixed statement. In the appellant’s submission, a direction of that kind served no purpose in relation to the arrest video and tended to undermine the presumption of innocence. 5 The appellant requires an extension of time and leave to appeal. Those applications were not opposed and should be granted. For the reasons that follow, the appeal should be allowed, the conviction set aside and a re-trial directed. 1 Controlled Substances Act 1984 (SA), s 33(1). -- 3 of 28 -- [2026] SASCA 45 The Court 2 The evidence at trial 6 The prosecution’s circumstantial case linking the appellant to the unit, and thereby to involvement in the manufacture of fantasy, comprised a number of strands. (1) On 1 October 2022, Detective Brevet Sergeant Renko and Constable Galletly drove past the address and saw two males at the driveway, the first of whom Detective Brevet Sergeant Renko described in terms that were inconsistent with the appearance of the appellant, and the second of whom he did not describe. Constable Galletly’s description of the second male was to the effect that the man had an ethnic but Caucasian appearance, a distinct well manicured dark beard, shaved sides down to a ‘zero or close to a zero on the sides’, black hair on top and a ponytail. As will be seen, that description is consistent with the appearance of the appellant. (2) A little later, at about 9.15 pm, Renko and Galletly attended to search the unit. A male and female, Jasmin Hanson and Connor Harrison, were inside the unit. On the prosecution case, Jasmin (or Jasmine) was the appellant’s girlfriend at the time of the search of the unit. (3) Before Detective Brevet Sergeant Renko entered, and around the time some other officers were arriving, Renko saw a male leaving the unit complex. He gave no more detailed description than that. This was a couple of minutes before Renko and Galletly entered the premises. Galletly described a male walking away from the unit from the communal driveway to the units. He said this was the second male he had earlier described, with the dark beard, shaved sides and black hair gathered in a ponytail. (4) Senior Constable Smith gave evidence that he arrived at the location around 9.05 pm. He had been told by colleagues that a male had recently left the units and so he took note of a male walking in a westerly direction along Burleigh Avenue, near the units. Senior Constable Smith said he observed a male who he would describe as late 20s, early 30s with fair skin. What was distinctive in his memory about the male was that he had his hair tied back. He had dark hair and facial hair as well. In cross-examination, Smith accepted it was dark at the time of his observations (albeit that street lights were on), that the vehicle did not slow as it drove past the man he described seeing, that he could not recall if he was driving, that he could not recall what the man was wearing and that the observations were over a period of between two and five seconds. (5) Two identification tags bearing the appellant’s name were located in the bedroom of the unit. One of these comprised an identification tag bearing a photograph of a male bearing a resemblance to the appellant and with the appellant’s name and date of birth details on it (‘the identification tag’).2 As 2 Exhibit P4, photograph 5. -- 4 of 28 -- [2026] SASCA 45 The Court 3 will be explained, Senior Constable Smith gave evidence about the resemblance between the man he had seen walking away from the unit and the man depicted in the identification tag. (6) A toothbrush located in the bedroom of the unit within a suitcase contained DNA which when analysed provided extremely strong support for the proposition that the appellant had contributed to it. (7) Two further toothbrushes were found in the bathroom of the unit. There was extremely strong support for the proposition that the appellant had contributed to DNA profiles recovered from them. (8) A piece of pad paper, as well as a Salvation Army diary, were located in the unit. The items contained notes or instructions consistent with the manufacture of fantasy, and the appellant’s fingerprints were located on both items. (9) An Albanian flag was located in the unit. The appellant is Albanian. (10) Police identified messages on a mobile phone seized from Mr Jaymz Watson, whose name was on the lease of the unit. Mr Watson had sent and received messages to a contact named ‘Genti’, with Mr Watson asking about that person’s ability to pay rent ‘soon’. (11) The appellant was located and arrested by police in the car park area of the same unit complex on 9 October 2022 (about a week after the police had attended and searched the unit). Senior Constable Smith was involved in the arrest. 7 A video recording of the arrest was tendered at trial.3 The video depicts officers arresting the appellant in a car park at the rear of the complex of units of which the unit formed part. He is shown to have a beard and relatively long hair tied up at the back of his head, with the sides of his head shaved. The appellant is seen to be smoking a cigarette at the beginning of the video.4 That was of some relevance because an ashtray containing numerous cigarette butts had been found in the bedroom of the unit. 8 The video records several interactions between a police officer and the appellant, including: • the appellant being informed of the allegations and basis for his arrest; • the appellant responding with words to the effect ‘where?’ (at about the same time, a female voice can be heard asking ‘where was this?’); 3 Exhibit P10. Relevant portions of the video were played during the appeal hearing. 4 In cross-examination, the appellant agreed that he smoked one packet of cigarettes a day. -- 5 of 28 -- [2026] SASCA 45 The Court 4 • the officer saying words to the effect ‘that unit right there’ (pointing); and • the appellant responding by saying ‘that’s not my house …’. 9 Pausing here, on the hearing of the appeal, in a commendable discharge of his duty of candour, the appellant’s counsel (who did not appear at trial) alerted the Court to the possibility that the words ‘that’s not my house’ may have been followed by the word ‘anymore’. Neither the prosecutor nor the appellant’s counsel at trial had made any suggestion to that effect. If indeed the word was uttered, it seems not to have been noticed by those conducting the trial. The appellant was not cross-examined to the effect that that was what he had said. However, the video and audio were played during the trial, and the jury had access to the recording in the jury room. The arrest video was played during the hearing of the appeal. Whilst it may be that the appellant said something after the words ‘that’s not my house’, it was not clear. 10 The appellant was then informed by the officer that at that stage the charges were allegations. He was ushered towards a police vehicle. There followed a small number of interactions, mainly comprising the appellant being informed of his arrest and other rights. 11 When asked about his current residential address, the appellant appears to have made some reference to an address written on a piece of paper found on his person by police.5 It was an agreed fact that this paper contained the following words:6 Jasmine HANSON (GF) [Mobile phone number] [Street number] Ann-Ellis Ct GRANGE Mohammad HOSSEnINI (cousin) [Mobile phone number]. 12 An officer then asked: ‘where have you been living at?’, to which the appellant responded ‘everywhere’. 13 The appellant was asked about whether he understood his rights, what was proposed in relation to where he was to be taken and his ability to apply for bail, and whether he wanted his girlfriend to be present during any interview. His brief answers appeared to convey that he understood what was being discussed. 14 The appellant did not participate in a formal record of interview. The appellant did, however, give evidence at his trial. The questions and answers were 5 In the course of cross-examination, the appellant said he told police ‘It is at the papers’. 6 Exhibit D24, agreed fact 10. The details that appeared in places designated by the square brackets are not reproduced. -- 6 of 28 -- [2026] SASCA 45 The Court 5 translated. In the course of his evidence in chief, he said that he grew up in Albania and arrived in Australia in 2008, speaking Albanian and Italian. He said he speaks ‘a little bit’ of English now. In September 2022 he was living ‘everywhere’ and ‘in the car’. He did not have a house but did stay with some friends. 15 Regarding the address of the unit, he said that ‘Rrok’ (a friend named Rrok Jakaj, who he also referred to as ‘Rocky’) took him there once so he could have a shower, about two or three weeks before he was arrested. At the time he had been living in a car. His possessions were at Mitch Harris’ house. He gave them to Mitch Harris for him to keep until he could take them home. He took some belongings from there to the unit to have a shower. ‘Rocky’ took him to the unit. Also present at the unit on that occasion were Mitch Harris, an Aboriginal male named Connor and Jasmin. That was the time he first met Jasmin, and he went out with her that night. The appellant said he was at the unit for about 40 minutes. He brushed his teeth there. He had brought with him the suitcase later found by police at the unit. He had handled the diary later found by police because he had wanted to get from it the phone number of ‘Stormy’, a friend of his. He was asked about writing in the diary and said he could not read English. He left the unit with Jasmin and left some of his belongings behind. 16 The appellant said he never returned to the unit after that occasion until he was arrested at the rear of the units on 9 October 2022, save for on one occasion when he went to the units, but no-one was home. The reason he was there on 9 October 2022 was to pick up his clothes. 17 The appellant said he knew the leaseholder’s name was ‘Jaymz’, but did not know that person. He denied exchanging text messages with him. The messages that had been tendered were not to a phone number belonging to the appellant. 18 In cross-examination, the appellant was adamant that he could not read any English. He said he could understand a little bit in English (in conversation), but not ‘100%’. The cross-examiner pursued topics relevant to the question whether the appellant was unable to read and understand English. 19 In relation to his conversational English, it was put to him that in the arrest video he was able to speak with the officers in English, and it was noted he had declined an interpreter. He said that was because he did not want to talk. 20 The appellant was cross-examined about the fact that he said in the arrest video he lived ‘everywhere’, when his evidence at trial was that at that time he was living in a car. He was cross-examined about the car that he said he was sleeping in. He explained that he had only been sleeping in the car for two days prior to the arrest and that, before then, he was living ‘everywhere … at friends’ houses’. 21 The appellant was asked about, but could not explain, why three toothbrushes containing his DNA, rather than one, were found at the unit. Later in his evidence he said there may have been two or three toothbrushes in his suitcase. -- 7 of 28 -- [2026] SASCA 45 The Court 6 22 After a cross-examination that squarely challenged the credibility of many of the appellant’s statements, the prosecutor put to the appellant that his suitcase was at the unit because he was living there, and that the man with a ponytail seen by a police officer outside the unit on the day the unit was searched was him. He denied these things. The addresses 23 The prosecutor’s address focused on whether the appellant was involved with the manufacture of fantasy at the unit, which was described as a ‘clan lab’ (a clandestine laboratory). 24 The prosecutor drew attention to the observations of Constable Galletly about the man he saw twice in the area of the unit before coming to the evidence of Senior Constable Smith and the description he gave of the man walking on the street near the unit. The prosecutor asked rhetorically: can there be any doubt that Constable Galletly and Senior Constable Smith were describing the same man? The prosecutor then pointed to the arrest photographs of the appellant and the arrest video and invited the jury to consider whether the descriptions were on all fours with the appellant’s appearance at the relevant time. 25 The prosecutor then pointed out that Senior Constable Smith had observed two identification tags and that the photo on one of the identification tags bore a very strong likeness to the male he saw walking westbound on the street. He emphasised that that male was walking, and that the appellant’s evidence was he did not drive. The prosecutor made clear he was not asking the jury to convict the appellant based on those observations of the two police officers. 26 The prosecutor then went on to the items located in the unit and described aspects of the appellant’s explanation in evidence about those items as beggaring belief. The prosecutor made reference to the DNA evidence, the communications with Mr Watson, evidence suggesting Mr Watson was not residing in the unit at the relevant time, and the fingerprint evidence linking the appellant to items containing instructions about how to manufacture fantasy. 27 The prosecutor emphasised the appellant’s attendance at the unit complex on the day of the arrest and the fact he was a smoker, consistent with the ashtray found in the bedroom of the unit. 28 The prosecutor emphasised that it was the combined strength of all the items of circumstantial evidence upon which the prosecution relied. 29 Turning to the appellant’s evidence, the prosecutor submitted that he was an unimpressive witness and that, amongst other things, his suggestion he could not read any English and spoke only a little was inconsistent with the arrest rights video and other evidence about his employment history and use of Facebook. His evidence about his living arrangements, and a number of other topics, was suggested to be incredible. -- 8 of 28 -- [2026] SASCA 45 The Court 7 30 The prosecutor acknowledged that if the jury were to accept the appellant’s evidence as a reasonable possibility it would follow there is a reasonable doubt and they should acquit him. But if they rejected his evidence they should simply put it to one side and consider whether the evidence relied on by the prosecution established guilt. In concluding, the prosecutor said: Ladies and gentlemen, you have all the pieces of evidence now. You can put them together yourself and when you do that ask yourself this question: what are the chances Mr Tonej has been wrongly implicated in this offending? For that to be the case and for Mr Tonej to be the tragic victim of circumstance in October 2022 all of these matters have conspired against him: one, a male with a striking resemblance to him just happened to be walking from the unit complex at the time of the police search on 1 October 2022. Two, Mr Tonej just happened to be keeping a suitcase of his containing his personal items in the sole bedroom of that unit when police searched it. Three, two toothbrushes with his DNA just happened to be in the bathroom. Four, the person living at the unit just happens to be an Albanian hanging their country's flag from the wall. Five, the person living at the unit happens to be a heavy smoker too, given the presence of an ashtray by the bed. Six, the lease holder of that unit, Jaymz Watson, just happens to be chasing someone for rent with the very same name as the accused. Seven, the accused just happens to have handled two separate items within that unit; the single piece of paper, P6, and the Salvation Army diary, P7. Eight, those two items just happen to contain the handwritten instructions of how to manufacture fantasy. Nine, at the time of keeping his personal belongings at the address and the unit containing those handwritten instructions with his fingerprints on them the unit just happens to contain all the chemicals and equipment necessary to manufacture fantasy and lastly, 10, the accused just happens to be arrested outside that very unit a week after the police search it on 9 October 2022. Ladies and gentlemen, give the accused the benefit of any reasonable doubt that you might have but you might think that type of bad luck just beggars belief. 31 The appellant’s trial counsel commenced by pointing to some discrepancies relating to the circumstances in which relevant observations were made by Renko and Galletly. 32 Turning to Senior Constable Smith’s evidence, counsel emphasised that the observation he made was over as little as two seconds, from a moving vehicle at night, and of a person who at that time had not been identified as a suspect, and whose clothing he could not describe. The appellant’s trial counsel submitted: I'd suggest that at best, it's an incredibly weak piece of circumstantial evidence to suggest that 'Well, if it looks similar to or strikingly similar to' whatever words that Officer Smith used, 'To Tonej, that that must have been him'. Again it's not just because they say so, that the prosecution says so. Think about just the reality, and the common sense, of observations that last one, two seconds. You can't rely on that for its accuracy, I'd suggest. 33 Counsel made submissions about what might have been defects in the investigation (such as the lack of DNA testing of cigarette butts), and the frailties in the thesis that only one person was or had been living in the unit. He made reference to the presence of two other persons in the unit when it was searched, and the fact that Mr Watson also arrived at the scene. Counsel pointed to the -- 9 of 28 -- [2026] SASCA 45 The Court 8 unlikelihood of the appellant returning to the unit after it had been raided if he had been living there and responsible for the drug manufacturing going on there. Summing Up 34 Prior to the addresses, the judge invited counsel to discuss any issues that might require consideration for the purposes of the summing up. The judge worked through a number of possible topics, before the following exchange occurred: HIS HONOUR: And then will I need to say anything about lies, Mr Coates, any lies of prosecution witnesses? MR COATES: No, your Honour. Your Honour said before lunch, in terms of the police seeing the accused, I just ask, with respect, that the language needs to be careful in that there hasn’t been any identification in this case and no suggestion that they saw the accused; at its highest, someone who looked very similar to the identification. HIS HONOUR: You’re quite right, Mr Coates. And so, perhaps, my looseness of language isn’t going to be reflected in what I say. It isn’t an identification case, of course. But picking up how Mr Mulvihill opened, the first piece of circumstantial evidence is that a male, with a striking resemblance to the accused, was seen by police exiting the unit complex on whatever the relevant date was. And that’s the piece of circumstantial evidence. But, of course, you cross-examined various police officers about the light and about the distance and their certainty, all conventional things you’d expect you would put to them, and you might provide the jury some assistance about how they consider their evidence, but you’re not going to say that it didn’t happen or they’re making it up. MR COATES: No, I haven’t suggested that to any police officer. So I’m not asking for any direction or anything like that. 35 In context, it is clear that counsel was indicating that no request was being made for a direction about any possible telling of a lie by the police officers. As for a direction about the dangers of the identification evidence, counsel neither requested nor positively disavowed a direction of that kind. 36 The summing up commenced with general directions of the conventional kind, about which no complaint is made. These addressed the role of the jury, the significance of arguments made by counsel, the need to focus only on the evidence, the nature and location of the burden of proof, and the nature of circumstantial evidence. 37 The judge gave general directions relating to the assessment of the reliability and accuracy of evidence given by the witnesses in the case. The judge continued:7 Turning, then, to the accused: he gave evidence on oath. He did not have to give evidence. An accused in a criminal trial does not have to prove anything. Gentian Tonej chose to give evidence when he was not required to. He could have remained silent and left you to decide 7 Summing Up, pp 5-6. -- 10 of 28 -- [2026] SASCA 45 The Court 9 whether the prosecution proved its case. You can give him the credit you see fit for doing so. The effect of the accused giving evidence is that in assessing his evidence and the weight to be given to it, you are to approach your task in the same way you would with the evidence of any other witness. It is for you to decide what weight you attach to his evidence in the same way as you would with the evidence of any other witness. You also saw the video of the arrest of the accused. It is an exhibit and it is evidence in this case and you can watch it in the jury room. The accused answered questions of police when he was arrested. As you heard, both the prosecution and defence rely on those answers and what you can see in that video. Remember, though: questions asked by police are not evidence, but they do provide context. It is the answers of the accused which is evidence. All parts of the exchange between the accused and police, including those which might help the prosecution and those that may help the defence, are evidence. As with any other evidence, you may accept some parts of what the accused said to police and reject other parts. You must decide the weight you give his statements to police and are entitled to give different weight to what he said at different times. When you assess the weight you give that evidence, you must keep in mind it is not sworn evidence tested by cross-examination, although in this case, Mr Mulvihill did ask the accused about his interaction with police that day and about the things he had said. You may think that, in some parts of the police interaction, the accused's statements are self-serving. You are entitled to consider those matters when deciding what weight you give the accused's statement. Both Mr Mulvihill and Mr Coates put arguments as to how you should regard the accused's evidence given court. I will mention some of the arguments they made as I come to mention specific evidence later in this summing up. Very importantly, though, even if you do not accept the evidence of the accused, you must always bear in mind it is for the prosecution to prove its case beyond reasonable doubt. Rejection of the evidence of the accused does not prove the prosecution case and nor does it make it stronger. You must always bear in mind it is for the prosecution to prove its case beyond reasonable doubt. 38 The judge then addressed the topic of expert evidence, before turning to the elements of the offence. The judge said that the real issue in the case was whether the jury were satisfied beyond reasonable doubt that the appellant was manufacturing fantasy at the unit. He gave an overview of the circumstantial evidence relied upon by the prosecution to link the appellant to the unit. 39 On the topic of the identification evidence, the judge said:8 Mr Mulvihill referred you next to the several police sightings of the male with what he described as a striking similarity to the accused. He said Senior Constable Galletly had seen the same male twice; once when driving past the complex and a second time when sitting off and watching the complex. He reminded you of the precise description given by 8 Summing Up, pp 10-11. -- 11 of 28 -- [2026] SASCA 45 The Court 10 Galletly, which was a striking match for the accused at that time, as seen in the arrest video and in the photos taken following his arrest. He said Constable Smith had also seen a male walking in a westerly direction back towards him, with long black hair, tied back in a ponytail and Mr Mulvihill reminded you also that Constable Smith had seen the identification tags at photo 5 in P4 shortly after his observation of the man on the road and had said that the man he had seen in the road had borne a very strong likeness to the identification photograph. Mr Mulvihill suggested to you that there can be no doubt about who the two officers had seen as their descriptions matched how the accused had looked a week later when he had been arrested at the same unit complex. Mr Coates said those observations by police were weak as they had been made from moving cars over just a few seconds and there were differences between Galletly and his partner Renko about how long before the raid they had seen the man and that Constable Smith could not remember whether he had been driving the car he was in or what clothes the man he saw had been wearing. 40 The judge moved through the other items of circumstantial evidence, and the evidence given by the appellant, highlighting along the way the main points made by counsel about those topics. 41 The judge then said:9 In winding up his address, Mr Mulvihill asked you to consider what are the chances that Mr Tonej has been wrongly implicated in this offending as the tragic victim of circumstance? In that respect, he said that such tragic circumstances would mean that there just happened to be a male with a striking resemblance to the accused, walking from the unit complex at the time that police were there; the accused had just happened to be keeping a suitcase of his containing his personal items in the sole bedroom of that unit when police searched it; three toothbrushes with the accused's DNA had just happened to be in the bathroom when police searched it; the person living at the unit had just happened to hang an Albanian flag on the wall; the person living in the unit had just happened to be a heavy smoker with an ashtray by their bed; the leaseholder of that unit, Jaymz Watson, had just happened to be chasing someone for rent with the very same name as the accused; the accused had just happened to have handled two separate items in the unit, P6, the paper, and P7, the diary, and that those two items had just happened to contain handwritten instructions about how to manufacture fantasy; that at the time of keeping his belongings at the address, the unit contained instructions to make fantasy which had his fingerprints on them and the unit had just happened to contain all the chemicals and equipment needed to manufacture a large commercial quantity of fantasy; and that the accused had just happened to have been arrested outside that very unit on 9 October 2022, a week after the police had searched it. Mr Coates, in winding up his address, said the circumstantial case against the accused had to be assessed having heard his explanation given on oath. He submitted you should consider that explanation provided by the accused was reasonably possibly true and that you should reasonably doubt the prosecution case and acquit. 9 Summing Up, pp 13-14. -- 12 of 28 -- [2026] SASCA 45 The Court 11 In summary, that explanation given by the accused was that he could speak a little bit of English, not one hundred-per-cent, he could read zero English, he was living out of two cars, he knew Rrok who was a fellow Albanian, he had met Mitchell Harris at work who had agreed to look after his suitcase at his house, he had then got an offer from Rrok to come and have a shower at his place, he had taken the suitcase from Mitchell Harris's place because he did not know what clothes he wanted to wear, he had used his toothbrush in the bathroom, he had got his DNA and fingerprints on the diary while looking for Stormy's phone number while being assisted by Mitchell Harris, he could not recall handling the single piece of paper, P6, he had left with Jasmin, whom he had just met, to go to her mum's after about 40 minutes at the unit, he had intended to come back to the unit to get his suitcase but did not, he had gone there once again within the next three weeks to collect his suitcase but no-one had been there, and had been going to the unit the night he had been arrested outside of it in order to get his suitcase because Jasmin had told him something had happened there. Members of the jury, even if you reject that explanation as reasonably possibly true, and as providing a rational or reasonable hypothesis or theory or explanation consistent with the accused's innocence, Mr Coates quite correctly asked you to look at this case through an objective and forensic lens and consider the prosecution case. In particular, he asked you to consider the adequacy of the police investigation and whether any gaps, holes and [loose] ends leave you feeling uncomfortable. He asked you to consider whether you can be satisfied there had been only one person living at the unit. He said there had also been a couch and other pairs of shoes there. He submitted that if you could not be sure the accused had been living there, you should acquit. Members of the jury, I have nearly finished. As you have heard repeatedly, this is a circumstantial case. Circumstantial evidence can provide very secure grounds for guilt and you must look at all the pieces of circumstantial evidence you find proved. Your regard must be to the totality of those circumstances and their united force. Do not look at those circumstances in isolation. Use your commonsense and your everyday experience of life. The proper approach is to assess the combined effect of the items of circumstantial evidence which you accept and then consider whether, as a matter of inference, they prove the accused committed this offence. Remember, at all times the accused cannot be convicted unless his guilt has been proved beyond reasonable doubt. In considering circumstantial evidence, you must take into account the possibility that it does not necessarily point to guilt. Even if you reject the explanation given by the accused as reasonably possibly true, or as providing a rational or reasonable hypothesis or theory or explanation, as this case is based on circumstantial evidence, you cannot return a verdict unless the circumstances relied on by the prosecution exclude any rational or reasonable hypothesis or theory or explanation consistent with the accused's innocence. In other words, before you can find the accused guilty of the charged offence, you must be satisfied his guilt is the only rational inference to be drawn from the facts or circumstances you find proved. 42 No request was made for any additional directions with respect to the identification evidence. Nor was any concern raised about the judge’s direction, -- 13 of 28 -- [2026] SASCA 45 The Court 12 set out earlier, about the weight that might be given to self-serving statements made by the appellant in the arrest video. Ground 1: identification warning 43 The appellant’s first ground of appeal is that a miscarriage of justice was occasioned by the absence of directions concerning the assessment of the identification evidence given by Senior Constable Smith, in that: (1) the trial judge did not provide any direction about the assessment of the identification evidence; and (2) the jury were not directed as to the use of the self-serving evidence of Senior Constable Smith about his state of mind and prior consistent statement. 44 In this field, evidence is sometimes labelled or characterised for different purposes. The purpose may be to distinguish evidence the effect of which is an assertion that the person or thing the witness saw is the person or thing alleged by the prosecution (‘positive identification’) from evidence of some level of similarity or resemblance (‘similarity or resemblance evidence’). Or the labels used may concern the nature of the fact established if the connection suggested by the evidence is accepted. The identification evidence, if accepted, may identify the accused as the culprit (a direct eye witness identification), or it may establish only that the culprit is connected with some other person, place or thing (leaving it to other evidence to link the accused to that person, place or thing) (‘circumstantial identification evidence’). Or, as is the case here, the evidence may tend to link the accused to a location that may be of some forensic significance to the crime charged. 45 Because the labels and categories employed may reflect qualities intrinsic or extrinsic to the witness’ process of comparison, they may signify different things in different cases. Seeking to label or categorise bodies of evidence may sometimes distract or confuse.10 It is, however, important to be clear about the essential nature of the evidence, the basis for its admission, and any dangers associated with the evidence and its suggested use. The nature of the evidence 46 The first aspect of Senior Constable Smith’s evidence was the evidence he gave in court recounting his recollection of the observations he made of the man outside and possibly leaving the units (the ‘description evidence’). His evidence was that he observed a male in his late 20s or early 30s with fair skin with dark hair and facial hair. Senior Constable Smith said that what was distinctive in his memory was that the male’s hair was tied back. 47 Next, there was Senior Constable Smith’s evidence with reference to the identification tag located in the unit. In his evidence in chief, he was shown a 10 Festa v The Queen (2001) 208 CLR 593 (‘Festa’) at [167] (Kirby J), at [217] (Hayne J). -- 14 of 28 -- [2026] SASCA 45 The Court 13 photograph of the identification tag. It is reproduced below for ease of understanding. 48 The following exchange then occurred: Q By reference to that image can you comment on the likeness of that photograph to the male you observed on approaching the unit. A Yes. He bears a very strong likeness to the male that I saw walking westbound on Burleigh Avenue, and I recall saying that to my colleagues at the time that it was shown to me. 49 The question, as framed, invited the witness to give evidence about the likeness between (his memory of) the male he saw outside the units and the image in the photograph. 50 The answer, in the first instance, appears to be responsive to the question. The balance of the answer, however, reveals a prior out of court identification. The context is that it had already been established that he saw the photograph at the time he was in the unit, and so it was inherently likely that he turned his mind to the extent of any likeness at that time. Further, it is necessarily implicit in the evidence that the witness recalled ‘saying that to my colleagues at the time that it was shown to me’ that he formed the view, at the time he saw the photograph, that the male on the street bore a ‘very strong likeness’ to the image in the photograph. 51 Accordingly, expressed in chronological sequence, this evidence had three distinct aspects: -- 15 of 28 -- [2026] SASCA 45 The Court 14 (1) at the time the witness saw the photograph, he considered the man in the street bore a very close likeness to the photograph (the ‘out of court identification’); (2) when or shortly after he formed that view, he conveyed that belief to other officers present (the ‘out of court assertion of identification’); and (3) at the time of giving evidence, he considered the man in the street bore a very close likeness to the photograph (the ‘in court identification’). 52 In adopting these descriptors, the word ‘identification’ is used in a general sense. An assertion that a person bears a very strong likeness to an image of a person may not in terms amount to a positive identification, but it conveys something close to that. The fact that Senior Constable Smith volunteered in his evidence in chief that he had remarked upon the very strong likeness at the time was capable of conveying to the jury that this was not a case of a mere intellectual exercise in which the witness recognised a number of common features between his recollection of the man in the street and the image. The way in which the evidence was given tended to convey that the likeness struck the witness at the time. This may not have been the witness’ intention, but it had the capacity to convey that meaning. 53 Before turning to the potential weaknesses or dangers of the description evidence and these three aspects of the identification evidence, it is useful briefly to address the question of admissibility. The admissibility of the evidence The description evidence 54 The description evidence was plainly admissible. The witness’ description of a person who may have been associated with the unit at a relevant time was rationally capable, by reason that it shared commonalities with the appearance of the appellant in the arrest video and arrest photographs, of affecting the likelihood of the appellant’s association with the unit, and thereby his involvement in the manufacture of drugs in the unit. The out of court identification 55 So too was the witness’ evidence of his earlier out of court identification. An earlier out of court identification will often be of greater probative value, and sometimes less unfairly prejudicial, than an identification made in court (such as a ‘dock identification’).11 Whilst from one perspective an out of court identification involves an out of court assertion giving it the quality of a previous consistent statement or hearsay, the law appears to treat it as a kind of original evidence: the act of identification (or, of recognising a close likeness) is a mental state which 11 The difficulties with dock identification were acknowledged in Davies and Cody v R (1937) 57 CLR 170 at 182 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ). -- 16 of 28 -- [2026] SASCA 45 The Court 15 may be relevant to proof of an issue. The existence of that mental state may be proved at trial. The person who made the out of court identification may give evidence of it in court, whether as an adjunct to the in court identification, or on a stand-alone basis, subject to the court’s discretion to exclude the evidence as more prejudicial than probative.12 The extent to which others may give evidence about that earlier identification if the person who made the identification is not available to give evidence of it (or cannot recall making the identification) may give rise to difficult questions.13 56 An out of court identification may take different forms. In the case of a civilian witness, an identification parade is often considered to represent best practice, but a selection from a number of photographs is also permissible, both at common law and under s 34AB of the Evidence Act 1929 (SA).14 57 Here, the out of court identification was made with reference to a single photograph. There was nothing improper about this in the circumstances of the case. It was obviously not planned, and Senior Constable Smith cannot be criticised for having formed the belief that he did, or for commenting on it. It is not argued that the evidence was more prejudicial than probative, and so there is no question as to its admissibility. The out of court assertion as to identification 58 Turning to the out of court assertion as to identification, the status of this evidence is less clear. That is because it was not apparent whether the statement made was part and parcel of the identification itself. If it was, then, on one view, Senior Constable Smith’s reference to it was simply the means by which he described the out of court identification, and the terms in which he expressed himself were relevant to inform the witness’ degree of confidence.15 59 However, and especially to the extent that the statement was distinct from the mental process of identification, it had a hearsay (or previous consistent statement) quality to it. It was an out of court assertion of the earlier out of court identification, and, in this case, was a previous consistent statement. Whilst in some cases, a narrative statement cannot be avoided and is necessary in order meaningfully to describe the circumstances of the identification, it may be doubted whether that was the case here. 12 See, eg, Alexander v The Queen (1981) 145 CLR 395 (‘Alexander’) at 402-403 (Gibbs CJ), Festa at [64]-[65] (McHugh J). See generally Ligertwood & Edmonds, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts (6th ed) at [4.74] and [7.94]-[7.96]. 13 See, eg, Alexander, where different views were expressed by Gibbs CJ and Murphy J on the one hand, and Mason J on the other. The view of Mason J was preferred in R v Barbaro (1993) 32 NSWLR 619. See also Murphy v The Queen (1994) 62 SASR 121 and R v Turner (2000) 76 SASR 163. 14 Section 34AB(4) of the Evidence Act 1929 (SA) prohibits a judge from suggesting that identification evidence from a method other than a physical line-up is inherently or intrinsically less reliable than evidence from a physical line-up. 15 See, eg, R v Sutton (1990) 159 LSJS 96 at 98 (King CJ, Cox and Matheson JJ agreeing). -- 17 of 28 -- [2026] SASCA 45 The Court 16 60 At all events, no objection was taken to the answer that was given, and the ground of appeal raised by the appellant does not turn on the evidence having been wrongly admitted. The appellant’s complaint is as to the absence of directions. The in court identification 61 Finally, the in court identification was admissible, at least as an adjunct to the out of court identification. If the witness had never seen the identification tag before giving evidence, different issues would arise. 62 But if, as is the case, it was permissible for the witness to give evidence of his out of court identification, there was no reason why he could not give evidence the effect of which was simply that he continued to believe there was a very close likeness between the photograph and the man he recalled seeing outside the units. Weaknesses or dangers associated with the evidence 63 The potential weaknesses or dangers associated with identification evidence arise in respect of the potentially complex mental processes of initial perception, retention, retrieval and communication,16 the capacity for those processes to be affected by cognitive biases on the part of the witness (such as suggestion, confirmation or displacement) and the capacity for the value of the evidence to be inflated by cognitive biases on the part of jurors (reflecting over-confidence in their own capacity to remember or recognise people, places or things, or their over- confidence in the capacity of others to do the same). 64 Where the adequacy of directions is in issue, the focus will usually be upon the dangers associated with those aspects of identification evidence which, although institutionally known to the court, may not be readily appreciated by a jury. This reflects what is sometimes described as the seductive effect of identification evidence.17 Those weaknesses of identification evidence which arise as a matter of common sense and common experience may not require any significant emphasis by the trial judge. What is required will turn on the circumstances of the case as well as the forensic significance that the evidence may carry in the trial. The description evidence 65 The description evidence is foundational to the other aspects of the evidence. 66 The dangers associated with the evidence are of two kinds. The first kind relates to the circumstances of observation. On Senior Constable Smith’s evidence, his observations were made at around 9 pm and from a moving vehicle. Senior Constable Smith could not recall if he was driving. If he was, that may have 16 See, eg, the discussion by Peek J in Strauss v Police (2013) 115 SASR 90 at [17]-[30]. 17 Domican v The Queen (1992) 173 CLR 555 (‘Domican’) at 561 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). -- 18 of 28 -- [2026] SASCA 45 The Court 17 impacted the quality of his observations. In any event, the window for observation may have been as limited as two seconds. 67 The second kind relates to the possible risk of displacement arising by virtue of the fact that by the time that the description evidence was given in court, the witness had seen the identification tag. Whilst such a risk may be acknowledged, Senior Constable Smith’s evidence was to the effect that what most stuck in his mind was the man’s ponytail. This is not visible in the identification tag. That observation can scarcely have been the result of any displacement, at least not from the identification tag. Senior Constable Smith was, however, present during the appellant’s arrest on 9 October 2022. At the time of his arrest, the appellant had a ponytail, a manicured beard and shaved or at least very short hair on the side of his head. 68 A third potential issue with the description evidence, and relevant to all the evidence concerning Senior Constable Smith’s identification evidence, is that a jury might consider that a police officer has a special expertise in making observations about identification. The out of court identification 69 The first risk associated with the out of court identification arises from the fact that Senior Constable Smith may have been subconsciously disposed to conclude that the person he observed outside the units might be associated with or a resident of the unit. This may have led him more readily to perceive a close likeness between the person he had seen and the image in the identification tag located inside the unit. The fact that there was one person shown in an identification tag inside the unit, and only one person observed by him outside the units, may have had a suggestive effect upon him which led him to overstate the extent of any likeness observed by him. 70 Relatedly, and relevant to that risk, is the risk associated with attempting to compare a two dimensional photograph showing only the head and shoulders of a person (from the front) and a relatively fleeting observation of a person, likely from a range of angles. It may be noted here that the feature that Senior Constable Smith had considered to be distinctive in his memory about the man outside the units was his ponytail. It is not apparent from the photograph in the identification tag whether that person had a ponytail. Nor is it obvious that the person had shaved or very short hair on the sides of his head (at least relative to the length of his hair more generally). It would seem that Senior Constable Smith’s perception of a very close likeness could only have been based upon approximate age, skin colour, hair colour, and the presence of facial hair. 71 Perhaps the witness was drawing on facial similarities that were not explained and are difficult to express. A child may bear an uncanny resemblance to their parent but in a way that the observer cannot articulate. That does not mean -- 19 of 28 -- [2026] SASCA 45 The Court 18 the observation is necessarily worthless but its worth may be hard for the jury to assess. As Kourakis CJ said in Mundy v The King:18 Humans have an innate ability to recognise and identify other humans but are, generally, unable to detail the physiognomy on which the identification is based. Therefore, the mistakes which nonetheless are undoubtedly, and often, made are difficult to expose. 72 In Festa v The Queen,19 McHugh J said that where a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive identification. The out of court assertion as to identification 73 If the statement made by Senior Constable Smith to his colleagues was part and parcel of him forming the belief that there was a very close likeness, the statement was relevant to communicate (and perhaps corroborate) that that was the belief that he formed at the time. 74 If the statement was quite separate from the formation of that belief, it was simply an assertion as to the existence and nature of the belief. 75 The respondent on appeal accepted that the evidence of what Senior Constable Smith said to his colleagues was irrelevant and amounted to self- corroborating evidence. It is therefore appropriate to proceed on the basis it did not form part and parcel of the identification. In any event, the evidence carried a risk of the jury believing that because it had been volunteered by one police officer to others, that made it likely to be a correct belief. As Lovell and David JJA said in Mundy v The King:20 Out-of-court narrative statements have an alluring and beguiling quality while possessing no logical relevance. The effect this type of evidence may have on a jury should not be underestimated. … As Thomas J observed in R v Connolly (No 2),21 “[A] witness may not lift himself by his own bootstraps to enhance his credit”. Having, in some form, said the same thing does not generally carry a witness’s credibility any further. A jury however may consider that it does so. 76 The fact that the statement here was made by one police officer to other police officers may have added to this beguiling quality. The jury might have considered there was some particular significance in the fact that a police officer had thought it appropriate to tell other officers about the very close likeness, elevating the significance or reliability of the witness’ perception above that which it would enjoy if made by a lay person. 18 [2023] SASCA 59 at [4]. 19 (2001) 208 CLR 593 at [57]. 20 [2023] SASCA 59 at [55]. 21 [1991] 2 Qd R 171, 173. -- 20 of 28 -- [2026] SASCA 45 The Court 19 The in court identification 77 A risk with any in court identification that follows an out of court identification is the risk of displacement and confirmation bias. The witness knows that the person implicated by their earlier observations is now charged with the offending. They may have a clearer memory of the photograph (or, in the case of an identification parade, the person’s appearance in the parade) than they do of their original observations. 78 In the circumstances of this case, this risk might be thought to be limited given that the witness claimed distinctly to recall features that are not evident from the photograph. As well, this may have been a case where the jury would not have attributed much separate significance to the in court identification aspect of the evidence. Forensic significance of the evidence 79 The forensic role that the evidence of identification plays in the prosecution case may make it more important that a warning be given, or may require a warning to be given with a more emphatic content. 80 Accordingly, where a prosecution case depends upon evidence of identification, or where, if accepted, the evidence could itself be treated as conclusive of guilt, it will usually be both appropriate and necessary to give a warning about the evidence. 81 However, the mere fact that the issue to which the evidence is directed is not conclusive of guilt does not mean that a warning may not be required if relevant dangers, including a risk of the jury over-estimating the probative value of the evidence, are present. 82 Of course, if the balance of the evidence is overwhelming, a failure to give a warning that would have been appropriate might be seen not to have actually occasioned a substantial miscarriage; the ‘proviso’ may require the appeal to be dismissed. 83 It may also be accepted that, in borderline cases, the lack of forensic significance given by the prosecution to a body of evidence, as well as the failure by defence counsel to request directions, may shed light on whether a warning was really required. The assessment of counsel present at trial may be revealing. 84 Fundamentally, however, the focus of consideration must be on whether the evidence carries risks about which a jury should be given the benefit of the court’s institutional experience, in the form of a warning.22 If a warning was required, the 22 Bromley v The Queen (1986) 161 CLR 315 at 319 (Gibbs CJ, Mason, Wilson and Dawson JJ agreeing), at 325 (Brennan J), R v BEC (2023) 16 QR 1 at [63]-[64] (Livesey AJA, Callaghan J agreeing). -- 21 of 28 -- [2026] SASCA 45 The Court 20 mere fact it was not requested will not preclude the conclusion that a miscarriage of justice occurred. 85 Emphasising that the effect of Senior Constable Smith’s evidence in this case was only to the effect that a person seen outside the units bore a very close likeness to the appellant, the respondent relied upon the decision in R v Smith.23 In that case, a victim of rape gave evidence that the offender was the same person she had seen driving a cream coloured Commodore past her three times shortly before she was assaulted. It is true to say that in dismissing the appeal against conviction, attention was drawn to the fact that, if accepted, that evidence established only that the offender was the driver of a cream Commodore.24 However, in that case, the Commodore drove past three times, travelling slowly. On two of those occasions, the interior light was on and the driver was looking directly at the complainant.25 Separately from any summary of the defence submissions, the judge followed his description of the complainant’s evidence with an instruction that the jury ought bear in mind that the offending occurred at night and that the observations of the offender in the car were from a distance and that there was no light in the toilet where she was ultimately raped.26 Accordingly, in that case, the judge’s directions did more than describe the defence arguments about possible weaknesses in the evidence. In any event, the present appeal must be decided with reference to the particular features of the identification evidence and the risks presented by them. Consideration 86 There are some features of the present case which might be thought to point against there having been a requirement for a warning to be given about the identification evidence of Senior Constable Smith: • there are aspects of the description evidence which are not likely to have been the product of any displacement or suggestion because they are not seen in the identification tag; • the out of court identification appears to have occurred shortly after Senior Constable Smith saw the man outside the units and therefore likely whilst his memory was relatively fresh; • there was limited exploration in cross-examination of any cognitive biases that may have been operating on Senior Constable Smith’s mind; • the evidence, even if accepted as tending to establish that the man on the street was the appellant, did not establish more than that the appellant was near or perhaps leaving a unit where his identification tag had been located 23 (2017) 129 SASR 237. 24 (2017) 129 SASR 237 at [34] (Stanley J, Kourakis CJ and Hinton J agreeing). 25 (2017) 129 SASR 237 at [46] (Stanley J, Kourakis CJ and Hinton J agreeing). 26 (2017) 129 SASR 237 at [25] (Stanley J, Kourakis CJ and Hinton J agreeing). -- 22 of 28 -- [2026] SASCA 45 The Court 21 and the prosecution’s closing address did not seek unduly to elevate the significance of Senior Constable Smith’s evidence; • some of the issues relating to the description evidence were mentioned in cross-examination and in the appellant’s closing address, and touched upon by the judge in his summary of the address; and • no further directions were sought by those who participated in the trial and who were well-placed to assess the dangers associated with the evidence. 87 However, in our view, when considered in combination, there were dangers associated with the various aspects of the identification evidence that warranted and, in the ultimate analysis, required a warning to the jury that had the ‘the authority of the judge’s office behind it’.27 88 There is no particular form of words that was called for, and the warning would not have been deficient for failing distinctly to draw out each weakness or danger associated with each of the four aspects of the evidence identified in these reasons. The warning simply had to be ‘cogent and effective’28 to guard against the main risks that the jury might not otherwise readily grasp. 89 In the present case, a direction along the following lines would have been appropriate: You heard evidence from Senior Constable Smith about the observations he made outside the units, and that the man he saw bore a ‘very close likeness’ to the image shown in the identification tag bearing the accused’s name. The experience of the courts is that evidence relating to identification likeness can be unreliable, especially where the person in question is not known to the witness making the observations. In the past, evidence of this kind has led to innocent people being convicted. Honest witnesses can be mistaken. The fact that Senior Constable Smith is a police officer, and that it has not been suggested he is lying, does not mean that his evidence may not be mistaken. The fact that he said to other officers that the man he had seen bore a very close likeness to the identification tag does not make it any more likely that he was correct about that; the only significance of that statement is that it tells you the circumstances in which he formed that view. When you are considering this evidence, you should consider the following matters: • First, you should consider the circumstances in which he made his observations. As you have heard, he was in a moving vehicle, and he might have seen the person for as little as two or so seconds. It was in the evening. • Secondly, when considering his evidence that there was a very close likeness between the man he observed and the image in the identification tag, you should bear 27 Domican at 561-562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). 28 Domican at 561-562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). -- 23 of 28 -- [2026] SASCA 45 The Court 22 in mind that the identification tag is a two dimensional image taken from a particular angle. You should consider the extent to which the features of the description of the man in the street are visible in the image. If not, what were the features in the image that were the basis for his belief that there was a very close likeness? • Thirdly, you should consider whether Senior Constable Smith’s evidence about the close likeness may have been affected by the fact he had just seen a man outside the units who might be associated with the unit. • Fourthly, you should consider whether Senior Constable Smith’s description now of the man he saw in the street has in any way been affected by the time that has passed, or any other information he has learned, since he made it. These are all matters for you to weigh up, along with any other matters that may affect the accuracy of Senior Constable Smith’s evidence that the man on the street bore a very close likeness to the person in the photograph. If after careful consideration you consider the evidence is reliable, you can act upon the evidence. Remember, however, that if you conclude, in light of all the evidence, that the man in the street was the man in the photograph, and if you accept that the accused was the man in the street outside the units, this does not make the accused guilty. It links the accused to the units around the time that police found the unit to contain the signs of the manufacture of fantasy. It is a piece of the circumstantial case. 90 Whilst on one view, a warning of this kind may not have been required by s 34AB(3) of the Evidence Act 1929 (SA) because what was involved was not direct evidence of the accused being seen to commit the offence or evidence which constituted an indispensable link in a chain of reasoning towards proof of the offence,29 it was required by the broader common law principles concerning evidence of identification. The fact that there was other evidence which, if accepted, may have been sufficient to support a connection between the appellant and the unit, did not obviate the need for an appropriate direction.30 91 The next question is whether the failure to give a warning of that kind involved a miscarriage of justice of a material kind. It will have done so if the omission had the capacity to have affected the jury’s reasoning to guilt, meaning it could have realistically affected that reasoning. This threshold requirement is not onerous and it does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.31 92 The jury might, in this case, have reasoned to guilt without any substantial reliance upon Senior Constable Smith’s identification evidence. As the earlier summary shows, there was other evidence linking the appellant to the unit, and the jury might have thought that the presence of an identification tag in the unit was 29 R v Smith (2017) 129 SASR 237 at [53] (Stanley J, Kourakis CJ and Hinton J agreeing). 30 Domican at 565 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). 31 Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20 (‘Brawn’) at [10]-[11] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). -- 24 of 28 -- [2026] SASCA 45 The Court 23 more relevant (together with the other evidence in the case) than was the possibility that the appellant was seen on the street outside the units at a relevant time. 93 The fact remains, however, that the jury may have relied upon the fact that a police officer had drawn an apparently confident link between the appellant and a person who was possibly leaving the units at a time when the unit had contained products and equipment so obviously suggestive of the manufacture of a significant quantity of drugs. 94 As the appellant’s counsel submitted on appeal, if the jury accepted the appellant was the man on the street, that may have contributed to their rejection of the reasonable possibility that the appellant’s sworn evidence was true. It will be recalled that the appellant said that between the occasion when he showered at the unit and the date of his arrest, he had only once attended at the unit in an attempt to retrieve his suitcase. He had not been at the unit complex on the day it was searched. Senior Constable Smith’s evidence could therefore realistically have contributed to the jury’s rejection of this version of events as a reasonable possibility. Rejection of that reasonable possibility was essential to a verdict of guilt.32 95 In those circumstances, the appeal must be allowed unless the proviso is engaged.33 The proviso cannot be applied unless the court on appeal is able, notwithstanding the limitations of a review of the record, to conclude that the appellant’s guilt was proved beyond reasonable doubt.34 96 The respondent did not seek to demonstrate that this Court could be satisfied of the ‘negative proposition’. Whilst this does not preclude the Court from being so satisfied,35 in circumstances where the appellant gave evidence in this case which provided an explanation for aspects of the circumstantial evidence, the respondent was right not to contend that the negative proposition could be established. Though it is fair to say there was a strong circumstantial case with several distinct strands, that is a different thing from being in a position to conclude, without having seen and heard the appellant (or the other witnesses) give evidence, that the appellant’s guilt is established beyond reasonable doubt. Ground 2: reference to self-serving nature of statements made during arrest 97 This ground focuses upon the following passage in the judge’s directions concerning the arrest video, repeated again for convenience: 32 Liberato v The Queen (1985) 159 CLR 507 at 519 (Deane J), De Silva v The Queen (2019) 268 CLR 57 (‘De Silva’) at [10] (Kiefel CJ, Bell, Gageler and Gordon JJ). 33 Criminal Procedure Act 1921 (SA), s 158(2). 34 Weiss v The Queen (2005) 224 CLR 300 at [44] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ), Brawn at [11] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech- Jones JJ). 35 Lindsay v The Queen (2015) 255 CLR 272 at [48] (French CJ, Kiefel, Bell and Keane JJ). -- 25 of 28 -- [2026] SASCA 45 The Court 24 All parts of the exchange between the accused and police, including those which might help the prosecution and those that may help the defence, are evidence. As with any other evidence, you may accept some parts of what the accused said to police and reject other parts. You must decide the weight you give his statements to police and are entitled to give different weight to what he said at different times. When you assess the weight you give that evidence, you must keep in mind it is not sworn evidence tested by cross-examination, although in this case, Mr Mulvihill did ask the accused about his interaction with police that day and about the things he had said. You may think that, in some parts of the police interaction, the accused's statements are self-serving. You are entitled to consider those matters when deciding what weight you give the accused's statement. Principles 98 Where an accused person gives evidence, a judge should not give any direction or make any comment that might undermine the presumption of innocence. As an aspect of this, the directions should not invite the jury to treat a person’s interest in the outcome of the proceedings as a factor relevant to assessing their evidence. Whilst it may often be the case that statements contrary to a witness’ interest are more likely to be reliable than self-serving assertions, a direction which points up the potential unreliability of a self-serving statement made on oath by an accused person has the tendency to undermine the presumption of innocence; after all, the accused will almost always have the greatest interest in proceedings of any witness giving evidence.36 99 In a case where evidence is received of an out of court statement made by the accused to police, additional considerations may arise. Exceptional cases aside, such a statement will have been admitted because aspects of it are inculpatory. The inculpatory aspects are admitted in exception to the rule against hearsay on the basis that they involve admissions against interest, or otherwise reflect a consciousness of guilt. Where this occurs, fairness requires that the entire statement be adduced, including any exculpatory statements made by the accused. Unless there is some positive reason for not doing so, the duty to put the prosecution case fully and fairly will oblige the prosecution to tender any mixed statement made by the accused.37 If a prosecutor wishes to rely on an incriminating aspect of a statement, they are bound to ‘take the good with the bad and put it all before the jury’.38 100 When mixed statements are received in evidence, they are invariably subject to a direction to the jury that they may give less weight to exculpatory assertions 36 Robinson v The Queen (1991) 180 CLR 531 at 535 (Mason CJ, Brennan, Deane, Toohey and McHugh JJ), Hargraves v The Queen (2011) 245 CLR 257 at [45] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See generally R v Parsons; R v Brady [2015] SASCFC 183 at [13]-[73] (Peek J, Kelly and Nicholson JJ agreeing). 37 Nguyen v The Queen (2020) 269 CLR 299 (‘Nguyen’) at [41] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). See also Mahmood v Western Australia (2008) 232 CLR 397 at [39] (Hayne J). 38 R v Soma (2003) 212 CLR 299 at [31] (Gleeson CJ, Gummow, Kirby and Hayne JJ). -- 26 of 28 -- [2026] SASCA 45 The Court 25 than to admissions and that it is for them to decide what weight is to be given to a particular statement. The rationale for the direction is that the exculpatory statements are not statements made against interest, and are not made on oath and are not subject to cross-examination.39 A direction of that kind also avoids a possible misconception by the jury, as highlighted by the Court’s observation in Mule v The Queen:40 Some jurors could have been puzzled about the consequences of the prosecution having, in effect, put the defence case before the jury. In the circumstances of this trial, if the judge had not explained to the jurors that they were entitled to attach different weight to different things that were said during the interview, they might have felt obliged to give everything that was said in the interview equal value. Consideration 101 The application of these principles to the present case requires consideration of the following matters: • first, while it is possible that things said by the appellant (or things possibly said by the appellant) might, directly or indirectly, have been inculpatory, the prosecution’s reliance on the arrest video appears to have been focused upon the fact it established the appellant’s presence at the rear of the units, his appearance, the fact that he was a smoker and that he appeared to be able to converse in English; and • secondly, to the extent that the appellant made exculpatory statements during the arrest (that the unit was not his house and/or that he was living elsewhere), these propositions were in practical terms overtaken by his sworn evidence at trial. 102 Because the prosecution did not explicitly invite reliance upon the truth of statements made by the appellant in the arrest video, there was little if any need to disabuse the jury of any assumption that they could not act on part of the appellant’s out of court statement without accepting it all. That was not a real issue in this trial. Secondly, the standard direction that is given in relation to self-serving aspects of a mixed out of court statement may, in some cases, run the risk of being understood as deprecating the value of any exculpatory statements made by the accused in his or her sworn evidence. 103 That risk was live here. Whilst the judge’s observations about self-serving statements were made in the immediate context of the ‘police interaction’, this came shortly after a passage which commenced by observing that ‘[a]s with any other evidence, you may accept some parts of what the accused said to police and reject other parts’. The jury may have been encouraged to approach any 39 Nguyen at [24] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). 40 (2005) 79 ALJR 1573; [2005] HCA 49 at [21] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ). See also R v Allen (2011) 109 SASR 396 at [25] (Kelly J, Doyle CJ agreeing). -- 27 of 28 -- [2026] SASCA 45 The Court 26 exculpatory aspects of the appellant’s sworn evidence as self-serving and therefore deserving of less weight. 104 The present case raises additional and different considerations to those addressed in R v Taheri.41 In that case, the appellant did not give evidence at trial. Further, the directions did not in terms invite the jury to consider, when deciding what weight to give the statements, the fact that they were self-serving. The appellant’s complaint in that case was that the characterisation of them as self- serving was itself deprecatory. Here, the directions were subtly different. The jury was invited to consider the fact that the statements could be seen as self-serving and, as has been noted, there was a risk that this approach would encourage the jury to treat his sworn testimony as potentially warranting more scrutiny than the testimony of the disinterested witnesses. 105 Whilst it would have been preferable if the impugned direction had not been given, in view of the disposition of the appeal required by ground 1, it is not necessary to reach a final conclusion on the question whether there was a material misdirection involving a miscarriage of justice. 106 The question of materiality in this case involves some difficulty. On the one hand, it is hard to think that any undermining of the appellant’s exculpatory statements in the arrest video was of any great significance to either party’s case. In practical terms, the statements were close to simple denials and they were likely subsumed by the oral testimony given by the appellant.42 The appellant’s trial counsel’s failure to raise any concern about the direction may tend against a conclusion that there was, in the context of the issues in dispute, a perceptible risk of miscarriage.43 Further, there were conventional directions given about the presumption of innocence, the burden of proof, and emphasising that fact-finding was the exclusive domain of the jury. On the other hand, if the direction may have encouraged the jury to scrutinise his sworn evidence from the standpoint that it was ‘self-serving’, this may well have been material. 107 In light of the issues ventilated on appeal about the arrest video, it is conceivable that additional issues may arise on the re-trial about the content and significance of the appellant’s statements in the course of the arrest. If that occurs, the appropriateness of any directions to be given about the content of the arrest video may take on a different complexion. Disposition 108 The appeal should be allowed. The appellant’s conviction must be set aside and a re-trial directed. 41 [2017] SASCFC 92 at [10]-[15] (Vanstone J, Parker and Lovell JJ agreeing). 42 cf. R v Weetra (2010) 108 SASR 232 at [14] (White J, Anderson J agreeing). 43 cf. De Silva at [35] (Kiefel CJ, Bell, Gageler and Gordon JJ). -- 28 of 28 --