TREVOR KEENAN MUNDY v THE KING [2023] SASCA 59

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE SLATTERY) DCCRM-21-573 Appellant: TREVOR KEENAN MUNDY Counsel: MR G LANG - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Respondent: THE KING Counsel: MS S AGNEW - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 23/05/2022 File No/s: SCCRM-21-494 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. MUNDY v THE KING [2023] SASCA 59 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice David) 8 June 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - GENERALLY On 4 July 2020, a robber demanded money from an On The Run employee before stabbing her hand with a pair of scissors and stealing approximately 90 dollars from the till. The appellant was convicted by a jury of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The issue at trial was the identity of the offender. The prosecution case relied on the evidence of Police Constable Butler that the appellant, on an occasion two days earlier, was dressed in the same clothing or largely the same clothing as worn by the offender at the time of the robbery. The appellant appeals his conviction on the grounds that the trial Judge erred in failing to give adequate warnings in relation to the evidence of Constable Butler and that the verdict was unreasonable and/or cannot be supported having regard to the evidence. -- 1 of 27 -- Held, per Lovell and David JJA, allowing the appeal, setting aside the conviction and entering an acquittal: 1. The trial Judge did not direct the jury on the dangers and potential unreliability of identification evidence. In that context, the trial Judge's directions on the potential unreliability of Constable Butler's evidence, and in particular the contamination of his evidence by the displacement effect, were inadequate. 2. Having regard to the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Held, per Kourakis CJ, addressing Ground 3 but otherwise agreeing with the reasons and orders of Lovell and David JJA on Ground 1: 1. Given the verdict was not supported by the evidence, it is unnecessary to decide Ground 3. Criminal Law Consolidation Act 1935 (SA) s 137; Evidence Act 1929 (SA) s 34AB(3), referred to. Alexander v The Queen (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 555; Evans v R [2007] HCA 59; Fennell v The Queen (2019) 93 ALJR 1219; Festa v The Queen (2001) 208 CLR 593; Gately v The Queen [2007] HCA 55; M v The Queen (1994) 181 CLR 487; Nominal Defendant v Clements (1960) 104 CLR 476; Pell v The Queen [2020] HCA 12; R v Blundell [2019] SASCFC 84; R v Boyle [2022] SASCA 50; R v Clout (1995) 41 NSWLR 312; R v Connolly (No 2) [1991] 2 Qd R 171; R v Crupi (1995) 86 A Crim R 229; R v Festa [2001] HCA 72; R v Fraser (1995) 65 SASR 260; R v Martin (1996) 65 SASR 590; R v W, CT [2019] SASCFC 18, considered. -- 2 of 27 -- MUNDY v THE KING [2023] SASCA 59 1 KOURAKIS CJ: I agree that the verdict was not supported by the evidence for the reasons given by Lovell and David JJA. In short, the fingerprint may have been left on the occasion of an earlier innocent visit to the service station. The circumstances in which Constable Butler received information about the clothing of the offender was fraught with the risk of conflation of the descriptions and images he received, with such memory as he had of Mr Mundy’s clothing two days earlier. The fallibility and plasticity of memory gives strong reason to doubt his testimony. Moreover, mass produced clothing of the kind worn by the offender often looks much the same, with only minor variations, as other brands. I am not satisfied on a review of the evidence that it proved that Mr Mundy was the offender beyond reasonable doubt. Finally, this is not a case in which the jury enjoyed an advantage over an appeal court in assessing Constable Butler’s evidence. It is in the nature of honest evidence based on a largely inscrutable claim of recognition that its seductive certainty can conceal its mistaken basis. 2 I agree with the observations made by Lovell and David JJA on the inadmissibility of the previous consistent statements of Constable Butler. Constable Butler’s evidence-in-chief should have been limited to a description of what Mr Mundy was wearing when he spoke to him. Whether or not any cross- examination would have allowed the evidence of his previous consistent statements to be led in re-examination is a different question altogether. 3 On the question of the adequacy of the directions, I wish only to warn against the giving of standard or template directions. In the case of identification of a person, the High Court in Domican v The Queen,1 eschewed formulaic directions. What is required is a warning carrying the authority of the judge isolating and identifying significant matters reasonably capable of undermining the reliability of the identification. 4 In R v Clout,2 Kirby A-CJ made the point that inanimate objects may be mistakenly identified. However, the sources of mistake are quite different. 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. 5 In the case of inanimate objects the problem is quite different. Particular features may be described but, in the case of some mass produced goods, the commonality of their features is great. For some inanimate objects, like the common hammer, the lack of any unique identifier may make the evidence of 1 Domican v The Queen (1992) 173 CLR 555. 2 R v Clout (1995) 41 NSWLR 312. -- 3 of 27 -- [2023] SASCA 59 Kourakis CJ 2 identification ‘glaringly improbable’.3 However, in both human and inanimate identification, the danger of displacement is ever present. 6 There is no authority that the warning given in respect of evidence of identification of an inanimate object must mirror warnings given on the identification of humans. In R v Crupi4 the Court held only that when identification of an object is a significant part of the prosecution case ‘a warning based on the Domican considerations’ may be given. 7 The comments of the High Court in R v Fennell5 were made in the context of an unreasonable verdict ground of appeal. However, in an appropriate case, a trial judge may guard against a miscarriage of justice by giving directions on the matters which caused the Court in R v Fennell to set aside the verdict.6 Those matters are the realities of human experience, the fallibility and plasticity of memory, contamination of recollection, internal biases, scientific research into the difficulty of assessing credibility and reliability and the experience of the courts that miscarriages of justice have been caused by certain species of identification evidence (in that case, the inscrutable evidence of recognition of a common hammer). 8 The appeal in this case will be allowed, the conviction set aside and an acquittal entered on the unreasonable verdict ground. I find it unnecessary, therefore, to decide Ground 3. 9 LOVELL AND DAVID JJA: The appellant was found guilty by a jury of aggravated robbery.7 At trial, the prosecution alleged that the appellant, wearing a T-shirt wrapped around his face and brandishing a pair of scissors, approached the counter of an On The Run service station and demanded money. When the employee, Ms Lauren Curyer, attempted to press the panic button, the appellant stabbed her hand with the scissors. He collected the cash from the open till and fled the premises. 10 The issue at trial was of identity. The prosecution case relied largely on circumstantial evidence, including evidence given by Police Constable Butler (Butler) that he had spoken to the appellant two days earlier and that when later looking at the CCTV footage of the robbery, the only discernible difference in clothing was that the offender had the T-shirt previously worn by the appellant wrapped around his face; otherwise, the clothing was identical. The prosecution also relied upon fingerprint evidence and in particular the positive match between the appellant’s left ring finger and the fingerprint impression on the countertop. 3 Fennell v The Queen (2019) 93 ALJR 1219 at [78]–[81]. 4 R v Crupi (1995) 86 A Crim R 229, 241. 5 Fennell v The Queen (2019) 93 ALJR 1219 at [5], [78], [81]. 6 Fennell v The Queen (2019) 93 ALJR 1219 at [81]. 7 Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). -- 4 of 27 -- [2023] SASCA 59 Lovell and David JJA 3 11 The appellant appeals his conviction on a number of grounds which contend, inter alia, that the trial Judge erred in failing to give adequate warnings in relation to the evidence of Butler and that the verdict was unreasonable and/or cannot be supported having regard to the evidence. Circumstances of the offending 12 At trial, the prosecution alleged that at about 8.00 pm on 4 July 2020, the appellant, wearing a T-shirt wrapped around his face and holding a pair of scissors, approached the counter of an On The Run service station (OTR) at McRitchie Crescent, Whyalla. Ms Lauren Curyer was working behind the counter. On the prosecution case, the appellant said to Ms Curyer: “I need money”, “I need money now”, and demanded she open the till, which she did. The appellant proceeded to reach over the counter to remove cash from the open drawer. Ms Curyer attempted to press the panic button located under the counter but as she did so, inadvertently bumped the till with her right hand, pushing it closed. The appellant stabbed her in the back of her right hand with the scissors. Ms Curyer stood back as the appellant collected the remaining notes from the till. He fled the store premises with approximately $92 in cash. Ms Curyer sustained a two-centimetre stab wound to the back of her right hand. 13 CCTV recordings captured the offending. A crime scene examiner attended the scene shortly after the offending took place, locating three fingerprint locations on the countertop (Locations 1, 2, and 3), and one on the drawer of the cash register (Location 4). Location 2 was later identified as a match to the left ring finger of the appellant, albeit had been subject to a degree of degradation. 14 Prior to the positive fingerprint match to the appellant, two young males had been identified as persons of interest in the investigation. 15 The appellant was arrested in Port Augusta on 8 July 2020 and interviewed by police. He declined to answer questions, except to volunteer; “It’s not me I’ve been here Port Augusta.” The prosecution and defence case at trial 16 The issue at trial concerned the identity of the offender. The defence case was that the prosecution could not prove, beyond a reasonable doubt, that it was the appellant who committed the offence. The prosecution case was circumstantial and relied upon the combined force of the following three features of circumstantial evidence to prove that it was the appellant who committed the offence: 1. The evidence of Butler that the accused, on an occasion two days earlier, was dressed in the same clothing or largely the same clothing as worn by the offender at the time of the robbery. 2. The evidence of the victim, Ms Curyer, as to the physical features of the offender; and -- 5 of 27 -- [2023] SASCA 59 Lovell and David JJA 4 3. The fingerprint evidence. Grounds of Appeal 17 The appellant appeals his conviction on five grounds as follows:8 1. The verdict of the jury was unreasonable and/or cannot be supported having regard to the evidence. 2. The trial Judge erred in failing to properly or adequately direct the jury as to the appropriate manner in which to assess witnesses generally, and a police witness in particular, and/or the need for caution generally in assessing a police witness. 3. The trial Judge erred in failing to properly or adequately direct the jury as to the evidence of purported identification of clothing. 4. The trial Judge erred in failing to place the weight of his judicial authority behind any warning he did give as to the purported identification of clothing. 5. The trial Judge erred in failing to remind the jury, following a question as to the degradation of a critical fingerprint, that the question of whether it was the appellant’s print was not formally agreed and remained a matter ultimately for them. 18 Permission to appeal was granted on Ground 1 with the remaining grounds referred to the Court of Appeal. 19 It is convenient to commence with Grounds 2, 3 and 4. Grounds 2, 3 and 4 20 The appellant contends that the trial Judge failed to adequately warn the jury about the dangers of identification evidence. 21 The disputed identification evidence was given by Butler. There were two stages to Butler’s relevant evidence. First, he had seen and talked to the appellant two days before the robbery and could remember what clothing he was wearing. Secondly, having viewed footage of the robbery and a still photo of the robber captured by the CCTV recording, he said that the robber was wearing clothes that were similar to, or indistinguishable from, the clothes worn by the appellant two days earlier. That was all that was required to be led. That simple summary belies the issues created by Butler’s evidence as his evidence was not so confined. At trial, as Butler had viewed the CCTV footage and photo, the appellant relied upon 8 The appellant initially relied upon an additional ground in relation to the trial Judge’s directions on the fingerprint evidence. That ground was later abandoned. -- 6 of 27 -- [2023] SASCA 59 Lovell and David JJA 5 the displacement effect said to have contaminated Butler’s memory, making his evidence of identification unreliable. 22 Before discussing Butler’s evidence, we make the following observations. 23 With any issue about the reception of evidence, the first question is whether the evidence is relevant. Identifying the relevance of the evidence is an extremely important step. In determining relevance, it is fundamentally important to identify what are the issues at trial. Behind the ultimate issues there will often be many facts relevant to facts in issue. Thus, it is important to determine two questions. First, for what purpose is the evidence led and secondly, to what fact in issue, or fact going to a fact in issue, does the evidence go to prove (or disprove)?9 24 No objection was taken to Butler’s evidence. It is not clear that any attention was given at trial to the question of the relevance of some of Butler’s evidence. It may be that some agreement was reached between counsel. 25 Before turning to an analysis of Butler’s evidence and the trial Judge’s directions, it is necessary to consider the legal principles involved in identification evidence. Legal principles 26 Where the prosecution relies to a significant extent on identification evidence in proof of guilt, a trial judge must warn the jury of the dangers of convicting on such evidence. In Domican v The Queen (Domican), Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated:10 Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. (citations omitted) 27 The rationale behind these directions is founded upon the experience of courts that miscarriages of justice can arise from the “seductive effect” of 9 R v W, CT [2019] SASCFC 18. 10 Domican v The Queen (1992) 173 CLR 555, 561–2. -- 7 of 27 -- [2023] SASCA 59 Lovell and David JJA 6 identification evidence.11 The purpose of giving identification warnings is to ensure that the jury is made aware of the potential unreliability of identification evidence which they may not otherwise have appreciated. 28 As to how the adequacy of directions on identification evidence is to be assessed, Kirby J in Festa v The Queen said:12 The adequacy of a warning to the jury concerning the dangers of identification evidence is not measured, as such, by its length. It depends on its content, balance and weight. What is required is not a particular set of words or a rigid formula, with a failure in compliance resulting in the verdict being quashed. The law requires that the judge bring his or her authority to bear so that the jury understand that mistakes can occur from genuine but wrongful identification. The warning given must not be “the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence”. (citations omitted) 29 Recognising human fallibility in perception and recollection and the risk of injustice that an incorrect identification may produce, a trial judge must direct the jury not only as to the broad considerations affecting identification evidence but also to the specific factors capable of impinging upon the reliability of the identification evidence before them.13 30 Mere repetition of counsel’s arguments is an insufficient discharge of the trial judge’s duty to draw the jury’s attention to any weaknesses in the identification evidence.14 A trial judge must give judicial imprimatur to those weaknesses. Where defence counsel raises matters that may be reasonably regarded as undermining the reliability of identification evidence, the trial judge must direct the jury that they are bound to consider those factors when determining whether to rely upon that evidence.15 The issue in this case was the likely effect of “displacement”. 31 The displacement effect may occur in a variety of circumstances, but it generally refers to the concept that the memory of a person’s features may be altered by later experiences such as looking at a photograph or reading a description of a suspect. The courts have long recognised that after a witness has viewed a photograph of an offender, the witness’s recollection of the offender and their recollection of the photograph can be difficult to separate. 32 As Stephen J observed in Alexander v The Queen:16 11 Domican v The Queen (1992) 173 CLR 555, 561. 12 Festa v The Queen (2001) 208 CLR 593 at [173]. 13 R v Crupi (1995) 86 A Crim R 229, 243. 14 Domican v The Queen (1992) 173 CLR 555, 564. 15 Domican v The Queen (1992) 173 CLR 555, 564. 16 Alexander v The Queen (1981) 145 CLR 395, 409. -- 8 of 27 -- [2023] SASCA 59 Lovell and David JJA 7 Lastly, there is the “displacement” effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting. 33 The adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. It is not the duty of a judge to repeat every argument of defence counsel in giving directions on identification. But as the High Court pointed out in Domican, its adequacy must be evaluated by reference to the identification evidence and not the other evidence in a case which implicates the accused.17 34 Where the evidence led does not amount to “positive” identification evidence, but can be classified as “similarity” evidence, the Domican directions are not mandatory. Similarity evidence cannot support a finding of guilt by itself; rather, it has probative value as circumstantial evidence.18 The trial Judge here correctly directed the jury that Butler’s evidence did not positively identify the appellant as the offender. The trial Judge correctly directed the jury that Butler’s evidence was to be assessed as a piece of circumstantial evidence not in itself capable of proving the case against the appellant beyond a reasonable doubt. In those circumstances, while the directions specified in Domican are not mandatory, what directions are necessary will depend on the nature of the evidence itself and its relevance to the prosecution case. 35 Identification evidence is also now dealt with in s 34AB of the Evidence Act 1929 (SA) (the Act). Section 34AB(3) makes plain that the directions referred to in Domican must be given: (3) In a criminal trial where the identity of a person alleged to have committed an offence is in issue, the judge must, if evidence of the identity of the person is admitted, inform the jury— (a) of the need for caution before accepting identification evidence; and (b) of the reasons for the need for caution, both generally and in the circumstances of the case. 36 The terms of s 34AB(3) do not have the effect of diluting the directions required by Domican. The reference to “inform” as opposed to “warn” in s 34AB(3) does not mean that a “lesser or diluted direction” should be given.19 17 R v Clout (1995) 41 NSWLR 312, 321 (Kirby A-CJ), citing Domican v The Queen (1992) 173 CLR 555, 565–6. 18 Festa v The Queen (2001) 208 CLR 593 at [173]. 19 R v Blundell [2019] SASCFC 84 at [23] (Peek J). -- 9 of 27 -- [2023] SASCA 59 Lovell and David JJA 8 37 Turning to the issues in this matter, while the most common form of identification evidence is evidence of facial features of a suspect, identification evidence is not limited to facial features and can include the identification of objects such as clothing. As Kirby A-CJ (as his Honour then was) observed in R v Clout (Clout):20 The fact that the identifying link between the accused and the crime is not an aspect of human physiognomy can scarcely be determinative … The fundamental problem is the same, and in one sense more acute, in the case of the identification of objects as in the case of the identification of humans. Every human is distinct and unique in appearance. Differences exist even between identical twins. But objects, such as knives or trucks will typically, today, be mass-produced, bearing similarity to thousands of other virtually identical objects. 38 The Victorian Full Court reached the same conclusion. In R v Crupi, Crockett, Nathan and Vincent JJ observed:21 A further argument advanced on behalf of the respondent to which we should make some brief reference was to the effect that Domican was concerned with the identification of persons and not objects. It is sufficient to say in response to this proposition that this Court accepted in R.v.Marijansevic (unreported 9/12/1993) that there could well be circumstances in which the identification of an object could be a significant part of the Crown case such that a warning based on the Domican considerations would be appropriate. (emphasis added) 39 When dealing with what may be required where the evidence involves identification of inanimate objects, Kirby A-CJ in Clout observed:22 The general warning about the dangers of convicting persons upon identification evidence need to bring to the notice of juries at least the following: 1. The fallibility of human memory; 2. The risks of convicting persons upon the basis identification evidence and the injustices which have occurred in the past from such mistakes; 3. The danger of contamination of memory by facts later discovered; 4. The high importance of securing an early record of the uncontaminated recall of the witness before the passage of time to prevent later in elaboration or distortion in the retelling of the event; and 5. The specific danger the memory may sometimes become enlarged (even quite innocently) to include matters which the observer expects, or is expected to recall. 20 (1995) 41 NSWLR 312, 321. 21 [1995] VSC 149 at [49]. 22 (1995) 41 NSWLR 312, 321. -- 10 of 27 -- [2023] SASCA 59 Lovell and David JJA 9 40 In Evans v R, Kirby J reiterated what he had said in Clout. He observed:23 [A]s this Court and other appellate courts have repeatedly pointed out, the history of miscarriages of justice is littered with cases where serious wrongs have occurred on the basis of imperfect evidence of identification of the accused or imperfect evidence of resemblance. It is for that reason that courts in this country have insisted, even in cases where the prosecution case is otherwise strong, upon clear and detailed, accurate and properly cautionary instructions to the jury about the special dangers of convicting an accused person on the basis of identification or resemblance evidence. The need for warnings or cautions about the dangers of evidence of “resemblance” or “similarity” should not be diluted simply because they arise in new and different circumstances. 41 In Fennell v The Queen (Fennell),24 the prosecution alleged that Mr Fennell had used a hammer to murder the victim. Mr and Mrs Matheson purported to identify a hammer discovered in a mangrove area near the victim’s belongings. Mr and Mrs Matheson gave evidence that Mr Matheson had lent the hammer to Mr Fennell. At trial, the prosecution described the evidence as significant. The High Court observed that the identification evidence relating to the hammer was the most significant of the “strands in a cable”.25 The High Court stated that the evidence given by Mr and Mrs Matheson purporting to identify the hammer, which they had not seen for approximately two years, was “glaringly improbable”.26 42 The Court, relying on Clout, stated:27 The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. And especially is that so in a case like this where the jury has been subjected to the seductive effects of a species of identification evidence that has in the past led to miscarriages of justice. (citations omitted; emphasis added) 43 The “species of identification” evidence referred to in Fennell is similarity evidence related to an inanimate object. 44 Thus, the authorities establish that a trial judge, where the identification relates to inanimate objects such as clothing worn by the offender, should give the jury a warning as to the danger of convicting an accused if that evidence represents a significant part of the proof of guilt of the accused and there is a dispute about the reliability of the evidence. As the court stated in Domican, if those conditions are met, the terms of the warning need not follow any particular formula, but it must be cogent and effective. It must be appropriate to the circumstances of the case. In cases involving inanimate objects the relevant factors to be identified will often differ from facial identification. Much will depend on the nature of the 23 [2007] HCA 59 at [72]. 24 Fennell v The Queen (2019) 93 ALJR 1219. 25 Fennell v The Queen (2019) 93 ALJR 1219 at [5]. 26 Fennell v The Queen (2019) 93 ALJR 1219 at [78], [81]. 27 Fennell v The Queen (2019) 93 ALJR 1219 at [81]. -- 11 of 27 -- [2023] SASCA 59 Lovell and David JJA 10 evidence, its relevance to the prosecution case and the nature of the dispute as to its reliability. 45 Where those conditions are met, the directions are required to ensure juries are properly instructed about the dangers presented by visual identification of persons or objects. Recognising human fallibility in perception and recollection and the risk of injustice that an incorrect identification may produce necessitate a trial judge directing the jury not only as to the broad considerations affecting identification evidence, but also to the specific factors capable of impinging on the reliability of the identification evidence before them. 46 There can be no doubt that, as discussed later in these reasons, Butler’s evidence was a significant part of the prosecution case. Due to the obvious problem of its reliability arising from the displacement effect, there was a serious challenge to the reliability of the evidence. The convergence of those factors required a direction warning of the general dangers of identification evidence. 47 Before turning to the question of the trial Judge’s directions, it is necessary to discuss Butler’s evidence in detail as the evidence, as produced at trial, was problematic and beset with difficulties. Evidence of Constable Butler 48 As mentioned, counsel for the appellant at trial did not object to the admissibility of Butler’s evidence relating to the identification of the clothing worn by the offender. 49 In evidence in chief, Butler stated that at about 8.00 pm on 4 July 2020 he responded to a call out to a robbery at the OTR. Butler, working alone, drove around the area searching for potential suspects. Butler stated that he heard via police radio a description of the offender including his clothing. Butler said that he received information that the “offender had what appeared to be a T-shirt wrapped round their face, had black-and-white trainers, tan-coloured chinos and a black nylon bomber jacket – or black or blue, dark”. Butler was asked whether the description reminded him of anyone he had recently seen and Butler said that “It matched the exact clothing description” of Mr Trevor Mundy who he had spoken to about 48 hours earlier. 50 Butler’s evidence about what he heard over the radio invited hearsay evidence if led for the truth of its content. Of course, it may be led for a non- hearsay purpose. However, the prosecutor asked if the description he heard reminded him of anything. The evidence of Butler’s thought processes was not admissible and prejudicial. It was not evidence of identification. What he saw the robber wearing in the CCTV and how that compared with his memory of what the appellant was wearing two days before was the relevant identification evidence. His thought processes took the matter no further and as led, was simply self- corroborating evidence. -- 12 of 27 -- [2023] SASCA 59 Lovell and David JJA 11 51 As this Court observed in R v Boyle:28 In general terms, a party may not call evidence supporting the credibility of a witness called by that party. To put that another way, a witness may not be asked in evidence in chief whether he or she has made a statement, outside of the court hearing, consistent with their present testimony. It is sometimes called the ‘rule against narrative’ or ‘the rule against self-corroboration’. The witness cannot narrate such a statement if it was oral or refer to it if it was in writing and other witnesses may not be called to prove it. This rule exists independently of the rule against hearsay. 52 Butler was then asked about the incident two days before. He described how he came to be in contact with the appellant and described what the appellant was wearing. Butler stated: [W]hen he was standing in the front yard of 60 Head Street he had on black trainers with a white sole on the front and black laces, tan chinos. He had a T-shirt on that was half black and half white fabric and a navy blue nylon bomber jacket with a silver zip up the front and a silver zip on the left arm. 53 This was the first step in Butler’s identification evidence. Butler then returned to the topic of his discussion with the radio operator. He was asked whether he received any further information “as to the offender’s appearance”. 54 Butler stated that he said to the patrol officer, to whom he was speaking, “that fits the description of Trevor Mundy, could you please send me a photo or a video from the CCTV you’re looking at and I’ll tell you whether or not it’s the same as what I’m thinking of”. The CCTV footage and photo were sent through to Butler. We presume the evidence was led to explain to the jury how it was that Butler came to examine the CCTV footage and photo, although that does not appear to have been a contentious issue at the trial. 55 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. The statement made by Butler shows a consistency of thought, but the difficulty is that the statement comes from the same source as the relevant evidence, namely himself. As Thomas J observed in R v Connolly (No 2),29 “[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. 56 Butler’s evidence on this point, while it explains why he received the CCTV footage and the still image of the offender, was not an issue at trial. If it became an issue, the evidence could have been led either by agreement or in a neutral way 28 [2022] SASCA 50 at [27]. 29 [1991] 2 Qd R 171, 173. -- 13 of 27 -- [2023] SASCA 59 Lovell and David JJA 12 without disclosing the content of any conversation. The out-of-court narrative statement should not have been led. 57 Butler was sent the CCTV footage showing the offender walking into the OTR as well as a still image of the offender. No evidence was given as to when he viewed those items although it could be inferred it was within a short time of the request. 58 Butler was asked if there was any difference between what he saw in the photo (and footage) and “what [he] saw of Mr Mundy two nights prior”. Butler stated that the only difference he could see “was that the male had the T-shirt that he’d been wearing on [2 July 2019] wrapped around his face”. This was the identification evidence. 59 Butler was cross examined about whether looking at the photo may have “unconsciously impacted” his memory of what he had seen the appellant wearing two days earlier. He confidently denied that proposition. Butler, when pressed in cross examination, claimed to have given the officer to whom he was speaking “a description of exactly what [he] believed the offender to be wearing and asked for the photo to be sent through so that [he] could confirm or deny it”. That had not been his evidence in chief; he had made no reference to having given a description to the officer over the radio, before receiving the CCTV footage and photo, of what he claimed he could remember the appellant had been wearing. On being further challenged, Butler claimed to have given a description of what the appellant had been wearing to the officer before he received the description of the offender from the officer. That evidence makes no sense; there would have been no reason for Butler to have given a description of what the appellant was wearing before he heard the description over the radio of what the offender had been wearing. 60 While Butler’s evidence was inconsistent and confusing, the effect it may have had on the jury should not be underestimated. Butler was claiming to have given a description of the appellant’s clothing before he received the CCTV footage and photo. This would, if true, be relevant to the question of displacement which was the major point of the cross examination. Butler, apart from saying he gave a description, gave no evidence about the content of the description. The prosecution called no evidence from any officer who allegedly received that description. Thus, counsel for the appellant, and the jury, were left only with the self-corroborating statement from Butler. 61 The evidence was left in an unsatisfactory and confusing state. Butler’s answers in cross examination are inconsistent and difficult to follow. Self- evidently there was a sequence of events leading to Butler’s evidence of what he observed the appellant wearing two days before the robbery. But the simple existence of that narrative does not make it admissible, and certainly not admissible for its truth. Evidence of a prior consistent statement is hearsay evidence and not to be admitted for a testimonial purpose. Nor, ordinarily, can it -- 14 of 27 -- [2023] SASCA 59 Lovell and David JJA 13 be admitted to aid in the assessment of, that is to bolster, the witness’s credit.30 What was relevant and admissible was what he observed two days before and his subsequent identification on the CCTV, not what his thought processes were as to why he thought about that matter. 62 However, there is an exception to this rule against self-corroboration. If a witness’s credit is challenged on the ground that his account is a late invention or a reconstruction, the earlier statement may be admissible.31 While this is sometimes referred to as “recent invention”, the principle is concerned with any fabrication subsequent to the events in question.32 63 The allegation relating to a suggestion of recent invention must be clearly made. As Windeyer J observed in Nominal Defendant v Clements (Clements):33 The kind of imputations and allegations that – if sufficiently clearly made – will let in prior consistent statements are: First, that the witness’s testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated. 64 It is not necessary for the basis for the admission of self-serving statements to be an explicit assertion. As Windeyer J further observed in Clements:34 It is not enough that a witness has been cross-examined as to credit, however much is credibility may appear to have been shaken. There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting the story subsequently made up by him or for him. Furthermore, the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify. 65 However, an attack on credibility or a suggestion of invention does not necessarily permit self-serving statements to be led in rebuttal. The cases emphasise that the court must be careful not to hamper legitimate cross examination nor confuse suggestions of exaggeration and fabrication with suggestions, which are in fact rebutted by evidence of a self-serving statement.35 30 Gately v The Queen [2007] HCA 55 at [105] (Hayne J with whose reasons Gleeson CJ, Heydon and Crennan JJ agreed). 31 Nominal Defendant v Clements (1960) 104 CLR 476, 490 (Windeyer J). 32 R v Fraser (1995) 65 SASR 260, 274. 33 Nominal Defendant v Clements (1960) 104 CLR 476, 494. 34 Nominal Defendant v Clements (1960) 104 CLR 476, 495. 35 R v Martin (1996) 65 SASR 590 at [593] (Doyle CJ). -- 15 of 27 -- [2023] SASCA 59 Lovell and David JJA 14 66 While the appellant challenged Butler’s evidence, the cross examination did not suggest that Butler had recently invented his evidence. His viewing of the CCTV footage and photo clearly had the potential to contaminate his evidence. Butler’s claim that he gave his description of what the appellant was wearing to the unidentified officer before he saw the CCTV and photo had the effect of rebutting or limiting the suggestion of displacement. But there was no independent evidence to support Butler’s claim that he gave any description. 67 To avoid or explain the displacement effect it may have been open for the prosecution to establish that prior to viewing the CCTV footage and photo, Butler gave a full description to the officer on the radio. There was no evidence to that effect. 68 While there was no suggestion that Butler was anything other than an honest witness, his approach to his own evidence falls well short of how a police investigation should be undertaken. It is critical in any investigation that a description of an offender, or in this case a description of what the appellant was wearing two days before the robbery, be recorded at the earliest opportunity. Such a description is the benchmark against which any subsequent evidence of identification must be measured. It would not be appropriate, for example, to show a civilian witness, who perhaps had seen the appellant two days before the robbery, the CCTV footage of the robbery without having taken a statement from them and therefore having a record of his or her memory of what the appellant was wearing before possible contamination. This procedure was not adopted by Butler. When it was clear that he was likely to be a witness, Butler should have treated himself as one. Police officers have no special ability to recognise clothing and are of course subject, like everyone, to the potential displacement effect arising upon seeing a photo or CCTV. He ought not to have viewed the CCTV and photo without having given a written statement exhausting his memory. The unfairness to the appellant in not doing so is manifest. 69 Butler’s evidence was dangerous. His evidence of the information he received from the officer over the radio was inconsistent and may have been as confined as a blue puffer jacket and tan chinos; a very generic description of clothing. However, his claimed memory of the appellant’s clothing was not so confined, as he described the appellant’s shoes and the positioning of various zips on the puffer jacket. He purported to identify the T-shirt the robber had wrapped around his face as identical to the T-shirt worn by the appellant two days earlier. The evidence is more specific than a generic description of some clothing. Butler purports to identify the robber’s clothing in its entirety as to be indistinguishable from the appellant’s clothing in its entirety seen two days earlier. In the unusual circumstances of this case, it was necessary for the trial Judge to give a general warning and then identify the specific weaknesses in the evidence. 70 Further, the evidence of his out-of-court statements were, in our view, inadmissible without a proper evidential foundation being laid. There was no -- 16 of 27 -- [2023] SASCA 59 Lovell and David JJA 15 independent record of his memory before seeing the CCTV footage and photo. Butler was confident in his assertion that his memory was not “impacted”. Due to the way Butler conducted his investigation, the appellant had no ability to test Butler’s confident assertion. 71 Although dealing with positive identification evidence, McHugh J observed in R v Festa: 36 Experience has shown that juries are likely to give positive-identification evidence greater weight than that to which it may be entitled. Few witnesses are as convincing as the honest - but perhaps mistaken - witness who adamantly claims to recognise the accused as the person who committed the crime or was present in incriminating circumstances. That is why this Court insisted in Domican v The Queen that juries be given directions concerning: • The dangers of convicting on recognition evidence where its reliability is disputed, and • The factors (if any) that may affect the reliability of that evidence in the circumstances of the particular case. (citations omitted) 72 The prosecutor in his final address reminded the jury of Butler’s description of what he remembered the appellant wearing two days before the robbery. The prosecutor also reminded the jury of what Butler thought and said when he heard the description of the robber come over the police radio. 73 In his closing address to the jury, counsel for the appellant made submissions on the inherent danger contained within identification evidence. A fair reading of counsel’s address establishes that he expected the trial Judge to give the usual general warnings about the unreliability of identification evidence. Counsel then made specific criticisms of Butler’s evidence and in particular that his recollection of the clothing of the accused had been displaced by the footage and the photograph that he received from the officer over the radio. That is, the CCTV displaced “in part or in whole whatever memory he had from two nights ago”. 74 Counsel further emphasised the absence of written record or other source which could be said to corroborate Butler’s recollection of the appellant’s clothing on 2 July 2020. 75 It is against that background that we turn to consider the trial Judge’s directions on the question of identification. Trial Judge’s directions 76 The trial Judge was left in a difficult position given the way the evidence was adduced. Prior to the trial Judge commencing his summing up, counsel for the 36 [2001] HCA 72 at [64]. -- 17 of 27 -- [2023] SASCA 59 Lovell and David JJA 16 appellant requested that the trial Judge give two specific directions in relation to Butler’s evidence. First, a direction regarding the potential “displacement effect” occasioned by Butler’s receiving the CCTV extracts prior to giving evidence and secondly, an identification direction adapted to reflect the circumstances of Butler’s identification of clothing. Counsel referred the trial Judge to the Criminal Trials Bench Book directions and the need for directions to be adapted to the identification of objects, including clothing. It is clear from his address that counsel anticipated that the trial Judge would give the standard general directions about the dangers of identification evidence. 77 In his summing up, the trial Judge summarised defence counsel’s submissions on the issue of identification and displacement. The trial Judge observed: In those circumstances … Constable Butler, on the submissions of Mr Lang, associated the information he received on the night and reasoned back to the information in his memory about what he thought he saw two days earlier. That is called the displacement effect, where a photo and a video displace an original memory of what he was wearing. … Constable Butler did not make an identification of the accused from the CCTV footage and the photograph he received. Constable Butler did not identify that the person who robbed the OTR on that night was the accused. He gave evidence that when he heard the description of the robber and then received the information, he became aware that the robber was wearing clothes similar to those he had seen worn by the accused two days earlier when he had a 15-minute conversation with him. You are therefore not to use that evidence as positive evidence of identification. This evidence can rise no higher than a strand of circumstantial evidence and you will assess its individual strength and then its combined strength with the other evidence which you accept. (emphasis added) 78 While the trial Judge correctly summarised Butler’s evidence, that, as discussed earlier, was not the evidence of identification. 79 The trial Judge proceeded to direct the jury in relation to their assessment of the evidence of Constable Butler: Mr Lang submitted that notwithstanding Constable Butler might be honest, he was confident but mistaken and his evidence might be vulnerable to suggestion, and you will need to assess that evidence to ascertain whether he had an adequate opportunity two days earlier to observe and hence identify the clothes that were being worn by the accused on that night and whether they were similar to the clothes worn by the robber on the night in question. You will need to keep in mind that it is possible for a mistaken witness to be convincing and, therefore, on that basis, you will need to exercise caution when assessing the evidence of Constable Butler. So you will identify the evidence that he gave concerning his observations, you will assess his memory, you will take into account the two days that had expired between seeing the accused and then hearing the information and then seeing the information over the police -- 18 of 27 -- [2023] SASCA 59 Lovell and David JJA 17 systems and whether, for example, you assess his reasons in reverse by seeing the clothes worn by the robber and reasoning backwards. You would also need to take into account any matter that might in your mind cast doubt upon the evidence given by Constable Butler and you will take those matters into account in assessing his evidence. If you consider his evidence is reliable, you will act upon it. In those circumstance [sic], I consider it is appropriate for you to hear again the evidence of Constable Butler in examination-in-chief and cross-examination 80 The trial Judge followed by reading to the jury the entirety of Butler’s evidence. He then continued and stated: You are to decide this case on the evidence before you and I direct you therefore, that although the evidence of Constable Butler was not given before you on the basis that he could identify the person who robbed the OTR, he was able to give evidence of similarity of identification between the clothes worn by the person he spoke to two days earlier and the clothes being described to him on the night. Although not strictly identification evidence, you must observe the directions that I have given you about that evidence and if you consider it reliable, then you may act upon it only as a strand of circumstantial evidence. 81 The trial Judge was wrong in observing that Butler’s evidence was not identification evidence. Evidence of similarity including similarity of inanimate objects, is a species of identification evidence. We assume the trial Judge meant that the evidence of similarity was not positive identification evidence and thus was only to be treated as circumstantial evidence. 82 At the conclusion of the summing up and in the absence of the jury, counsel submitted that the evidence went further than what the trial Judge described as “similarity of identification” between the clothes worn by the person Butler spoke to two days earlier and the clothes being described to Butler on the night. Mr Lang suggested that Butler had, in effect, stated that the clothing of the offender was identical to, in all respects, what he observed the appellant wearing on 2 July 2020. This included the positioning of particular zips on the jacket. That is, it was not evidence that the appellant was wearing some similar items. The robber was wearing the exact clothing the appellant had been wearing when observed two days earlier. 83 Counsel complained that the trial Judge had done no more than repeat his arguments and had not given a warning about the dangers involved with identification evidence. Counsel submitted that a “warning is required, that the evidence is actually quite dangerous”. The trial Judge observed that he had directed on displacement. Counsel reiterated that what was required was an actual warning and that the trial Judge had only repeated counsel’s address in relation to the displacement effect. 84 A fair reading of the transcript demonstrates a misunderstanding between counsel and the trial Judge. The trial Judge did not appreciate that counsel was -- 19 of 27 -- [2023] SASCA 59 Lovell and David JJA 18 requesting that he needed to give the standard directions warning to the jury about the dangers of acting on identification evidence, even though it was not facial identification, followed by the trial Judge identifying himself the weaknesses in the evidence and not simply relying upon counsel’s submissions. The trial Judge appeared to assume that as the evidence was not “positive” identification evidence, but rather evidence of similarity only, the standard directions set out in Domican were not required. 85 The trial judge re-directed the jury as follows: You will exercise great caution when you assess the evidence given by Detective Butler because it is evidence of identification of the clothing that was worn on that night. So, you will recall the way in which it went and I have read the evidence out to you so that he heard it, he said “I think that’s the same clothing worn by a person I saw two days ago, please send me a photograph”. First of all, because that is identification evidence, I have said to you that you will exercise great caution in assessing it and that is because, as I have already said to you, there was no record of any description taken by him on the night, there was no note made by him on the night and he was working from his memory. That is the basis upon which I have given you the direction in relation to the displacement effect, that is the displacement effect is where the photograph essentially displaces the original memory of what he was wearing, bearing in mind that it happened two days earlier. That is a matter for you. On this basis, and bearing in mind the directions I have given you about the evidence, I am going to give you a separate direction in relation to this evidence and that is that you will need to be satisfied beyond reasonable doubt of your acceptance of the evidence given to you by Officer Butler. So, you will need to be satisfied beyond reasonable doubt of his evidence in relation to identification as in terms of his memory of what he saw two days earlier and the description of the clothes that he says the accused was wearing two days earlier when he saw him at Head Street. 86 The trial Judge warned the jury to exercise great caution when assessing Butler’s evidence. He also redirected on the displacement effect and then directed the jury that they had to be satisfied of Butler’s evidence beyond a reasonable doubt before using it. Discussion 87 Given that the evidence had been admitted, the trial Judge was left with the difficult task of dealing with it. In light of the nature of the evidence and how it had been adduced, strong and clear directions about the dangers of this type of identification evidence, both generally and specifically, were required. 88 The trial Judge did not at any stage direct the jury on the dangers of identification evidence. We accept that the evidence did not amount to “positive” evidence of identification, and was, as the trial Judge directed, similarity evidence that was to be treated as a piece of circumstantial evidence that, alone, could not prove the offence beyond reasonable doubt. However, in the context of the case it was an extremely important piece of evidence for the prosecution and, on the face of it, bedevilled by problems. In those circumstances we consider that the trial -- 20 of 27 -- [2023] SASCA 59 Lovell and David JJA 19 Judge was obliged to tell the jury of the dangers of this type of evidence. That is, the jury should have been directed as set out in Domican. What directions the trial Judge gave need to be assessed in that context. 89 The trial Judge was required to tell the jury that identification evidence (or as in this case similarity evidence) can be unreliable and that, in the experience of the courts, it has led to innocent people being convicted in the past. He was required to bring his authority to bear so that the jury understood that mistakes can occur from genuine but wrongful identification. The purpose of such directions is to ensure the jury is made aware of the potential unreliability of identification evidence which they may not otherwise have appreciated. 90 Such directions were necessary to provide the jury with context on the issue of displacement and why it was very important to secure an early record of the uncontaminated memory of Butler. The displacement effect is a reason why the identification evidence may be unreliable. In the circumstances of this case, it did undermine the reliability of the identification evidence. This should have been made specifically clear to the jury. While the trial Judge did direct in general terms about the displacement effect, he did not do so in the context of the dangers of convicting on the evidence where its reliability was contested. That is, the difficulty involved with evidence which has been contaminated by the displacement effect was not brought home to the jury due to the absence of warnings about the dangers and unreliability involved in identification evidence. 91 On the facts of the case, displacement was likely to have been operative. In the absence of any written, or indeed oral, support for Butler’s identification, the jury should have been directed to treat his confident assertion about his memory with a great deal of caution. At the very least, the dangers of the displacement effect needed to have been highlighted. 92 The trial Judge, when redirecting the jury, told them they should exercise great caution when assessing Butler’s evidence “because it is identification evidence”. But in the absence of a direction warning the jury about the dangers of identification evidence that direction had no context. That is, the jury were not directed as to why his evidence needed to be treated in that manner. 93 The failure to give the jury the necessary directions about the dangers of acting on identification evidence means this ground of appeal must be allowed. However, there are a number of other aspects about the evidence and directions which require comment. 94 As discussed earlier, some of Butler’s evidence was not strictly admissible. However, it was led without objection. Once the evidence was before the jury, the trial Judge was required to deal with it. -- 21 of 27 -- [2023] SASCA 59 Lovell and David JJA 20 95 In his directions to the jury, the trial Judge, when summarising Butler’s evidence stated: He gave evidence that when he heard the description of the robber and then received the information, he became aware that the robber was wearing clothes similar to those he had seen worn by the accused two days earlier when he had a 15-minute conversation with him. 96 With respect to the trial Judge, that was not the identification evidence. The evidence of identification was what Butler said the appellant was wearing when he saw him two days before the robbery and then his comparison with the CCTV. As already discussed, the information Butler received was relevant, on the prosecution case, only to the question of why he sought the CCTV footage and photo. Butler’s reaction to receiving the information, and what he expressed to the officer on the radio, was not relevant to his observations made on 2 July 2019. No doubt receiving the information may have prompted him to consider what he remembered but that, on the prosecution case, was not relevant. It is what he remembered that was relevant and admissible. The way the evidence was led could be interpreted in one of two ways. First, it may have undermined the later recollection of Butler by planting in his mind a description of clothing which he then expected to see on the CCTV and/or photo. This was not put to the jury by either counsel or the trial Judge. Alternatively, it could be seen to be an out-of- court statement that bolstered, improperly, Butler’s credibility. The trial Judge’s directions left it as the latter, or at least the jury may have interpreted it that way. 97 On the trial Judge’s redirection, the problem again arose. The trial Judge stated: You will exercise great caution when you assess the evidence given by Detective Butler because it is evidence of identification of the clothing that was worn on that night. So, you will recall the way in which it went and I have read the evidence out to you so that he heard it, he said “I think that’s the same clothing worn by a person I saw two days ago, please send me a photograph”. First of all, because that is identification evidence, I have said to you that you will exercise great caution in assessing it … 98 Again, with respect to the trial Judge that was not the identification evidence. The out-of-court statement was left to the jury as the actual identification evidence when its only use was to bolster, improperly, the credibility of Butler. The trial Judge ought to have directed the jury on the proper use that could be made of that evidence. It could only be used to explain why it was that Butler wanted to view the CCTV. On the prosecution case that was not a relevant issue. 99 Neither counsel sought to correct the trial Judge’s directions. 100 As discussed, the trial Judge redirected the jury that they had to be satisfied of Butler’s evidence beyond a reasonable doubt before they could use it. It is clear from the transcript that the trial Judge considered that such a direction was not required. We agree. As mentioned, it appears from the transcript that the trial Judge did not appreciate what the appellant’s counsel was requesting him to redirect on. -- 22 of 27 -- [2023] SASCA 59 Lovell and David JJA 21 While the trial Judge no doubt had the intention of assisting the appellant with that direction, the direction logically could not do so in the absence of the warning on the dangers of identification evidence. It was not a question of proof beyond a reasonable doubt. It was a question of the jury understanding that Butler’s evidence was of a type, in the court’s experience, that was potentially unreliable. 101 However, the danger of acting on Butler’s evidence needed to be made clear to the jury. Butler’s evidence was contaminated by his viewing the CCTV and there is now no independent record of what he remembered of the appellant’s clothing before he viewed the CCTV footage. The risk involved in identification made in those circumstances is obvious. As the trial Judge directed, an honest witness can be mistaken. The failure of Butler to appreciate the danger of the displacement effect at all when conducting his investigation means his confident assertion that it played no role in his subsequent identification demonstrates that little weight can be placed on his evidence. 102 As we have already found, the trial Judge did not give appropriate warnings on the potential unreliability of this identification evidence. He was in error in not doing so. The failure to give these important directions means this ground of appeal must be allowed. Ground 5 103 The fingerprint evidence is dealt with later in these reasons when considering Ground 1. The appellant complains that the trial Judge gave insufficient directions concerning the possibility that the fingerprint identified as the appellant’s had degraded such that it may have been deposited up to two days before the robbery. 104 The trial Judge directed the jury on the fingerprint evidence. He directed the jury that as they were the finders of fact, they did not have to accept the evidence of an expert. However, in line with how the trial was conducted, the trial Judge said that, as there was no challenge to the expert’s evidence, they would have little trouble in accepting her evidence. 105 The evidence of the possibility of degradation of the appellant’s fingerprint was before the jury. It is not necessary for a trial Judge to mention every point made by an accused in their summing up. Counsel did not seek any further direction from the trial Judge. We would dismiss this ground of appeal. Ground 1 106 The appellant contended that the verdict of the jury was unreasonable and cannot be supported by the evidence. 107 The prosecution case at trial was a circumstantial one. It relied on Butler’s identification of the robber’s clothing discussed in Grounds 2, 3 and 4, in addition to evidence given by the victim, Ms Curyer, and the fingerprint evidence. At trial, the prosecution accepted that neither the identification evidence nor the fingerprint -- 23 of 27 -- [2023] SASCA 59 Lovell and David JJA 22 evidence was capable, independently, of proving the offence beyond a reasonable doubt. It was the accumulation of the evidence, including the evidence of Ms Curyer, which excluded any reasonable hypothesis consistent with innocence. Fingerprint evidence 108 A crime scene examiner attended the OTR shortly after the robbery. He located three fingerprints on the counter where the robbery occurred (Locations 1, 2 and 3). The examiner also located a fingerprint on the front of the cash register (Location 4). 109 A fingerprint expert, Ms Stacey Miller, compared the prints photographed by the examiner to the appellant’s fingerprint impressions, and also to prints on the National Fingerprint Database, with the following results: 1. Location 1: two fingerprint impressions were located on the photograph but could not be identified. They were not a match to either the appellant’s prints or any prints on the National Fingerprint database. 2. Location 2: a match was identified for the ring finger of the left hand of the appellant. 3. Location 3: multiple impressions that were not suitable for comparison. 4. Location 4: three impressions, two of which were not suitable for comparison, and one which was suitable. The one that was suitable for comparison could not be identified. 110 The appellant submitted that while his fingerprint was found on the counter (Location 2), the CCTV footage did not positively establish that the robber had put his finger in precisely that position on the counter. Further, the appellant submitted that the CCTV footage and stills obtained from that footage could be interpreted as establishing that the robber did put his fingers in the position where the prints at Location 1 were obtained. That is, if the robber, who was not wearing gloves, put his fingers in the position at Location 1, and given that the prints left at Location 1 did not match those of the appellant, the appellant was therefore excluded as the robber. The appellant submitted that the prosecution could not establish that the counter had been cleaned either properly or regularly. As the appellant had been in Whyalla at least two days before (on Butler’s evidence), the prosecution could not disprove the hypothesis that the appellant left his fingerprint on the counter on this or some other occasion before the robbery. The appellant pointed to Ms Miller’s evidence that his fingerprint could not be aged and was of a quality consistent with having been disturbed or degraded over time. 111 The appellant also submitted that the CCTV established that the robber handled the cash register in a manner consistent with the prints at Location 4. The one fingerprint suitable for comparison was not the appellant’s fingerprint. -- 24 of 27 -- [2023] SASCA 59 Lovell and David JJA 23 112 The appellant submitted that the combination of the evidence here could not exclude, as a reasonable hypothesis, that someone else committed the robbery. 113 The respondent acknowledged that there were shortfalls in the fingerprint evidence. For example, the difference in angles between the police photographs of the prints and the CCTV made it impossible to determine the precise location of the print at Location 2. As no fingerprint can be dated, it was not possible for the prosecution to be precise as to when the print was deposited. The prosecution was unable to say with confidence when the counter was last cleaned. Finally, the prosecution accepted that there were fingerprints left in the vicinity (Locations 1 and 4) of where the robber had his hands which were positively not left by the appellant. However, the respondent submitted that while it was not possible to say with “absolute precision” what part of the counter the robber touched, there was no doubt that the appellant’s fingerprint was found at Location 2. The finding of the appellant’s fingerprint, the respondent submitted, was uncannily close to where the offender touched the counter. Degradation of the print could be explained by the robber’s own clothing brushing the area where the print was found or by others touching the same area after the robbery. 114 The respondent submitted that the appellant’s attack on the fingerprint evidence relies unreasonably on the proposition that every contact depicted on the CCTV would lead to an identifiable print. 115 The respondent submitted that the fingerprint evidence was not to be assessed in isolation. The jury had to assess that evidence in combination with Butler’s identification of the clothing along with the evidence of Ms Curyer. It was open to the jury to accept that, when viewing the evidence in its entirety, the appellant was guilty notwithstanding that the prints at Locations 1 and 4 were not his. 116 Ms Curyer identified the physical features of the offender including his dark brown eyes, bushy eyebrows, approximate height of 180 centimetres, brown- coloured skin tone, “deepish-type” voice and estimated his age to be in the twenties. She described a black and white lycra T-shirt wrapped around his face and a black beanie worn on his head. The appellant did not give evidence at the trial and there was no evidence of whether he possessed a deepish voice. However, that apart, although generic in nature, the description given by Ms Curyer was not inconsistent with the appellant’s physical characteristics. 117 The prosecution at trial and on appeal conceded that the fingerprint evidence alone could not found a conviction. It was accepted that the strength of the prosecution case was the combination of the fingerprint evidence and Butler’s identification of the clothing. -- 25 of 27 -- [2023] SASCA 59 Lovell and David JJA 24 Discussion 118 The function of this Court in determining an appeal on an unreasonable verdict ground was settled in M v The Queen.37 The question this Court must ask itself 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”.38 The Court must make its own independent assessment of the evidence in arriving at its answer. 119 The High Court in Pell v The Queen observed that:39 [T]he approach that an appellate court must take when addressing “the unreasonableness ground” was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself: “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”. The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms: “But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt.” (footnote omitted; emphasis in original) As their Honours observed, to say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M. (citations omitted) 120 We have reviewed the evidence. We have already set out the problems with Butler’s evidence. Butler failed to record his memory before viewing the CCTV. He clearly failed to understand the significance of the displacement effect either when conducting his investigation or when giving his evidence. Butler’s investigation was manifestly unfair to the appellant (although not deliberately so). His identification, in the unusual circumstances of this case, should be given little if any weight. 121 In those circumstances, Butler’s evidence gives little or no support to the fingerprint evidence. 122 As the High Court stated in Fennell:40 37 (1994) 181 CLR 487. 38 M v The Queen (1994) 181 CLR 487, 493. 39 Pell v The Queen [2020] HCA 12 at [43]–[45]. 40 Fennell v The Queen (2019) 93 ALJR 1219 at [81]. -- 26 of 27 -- [2023] SASCA 59 Lovell and David JJA 25 Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. And especially is that so in a case like this where the jury has been subjected to the seductive effects of a species of identification evidence that has in the past led to miscarriages of justice. (emphasis added) 123 Having reviewed the whole of the evidence, we consider it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 124 We would allow this ground of appeal. Orders 125 We would grant permission to appeal on Grounds 2, 3, 4 and 5. We would allow the appeal on Grounds 1, 2, 3 and 4. We would order that the appeal be allowed, the conviction be set aside and an acquittal entered. -- 27 of 27 --