Festa v The Queen B39/2001 [2001] HCATrans 287 (26 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B39 of 2001

B e t w e e n -

BRUNETTA FESTA

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 26 JUNE 2001, AT 12.27 PM

Copyright in the High Court of Australia

MR A.J. KIMMINS: May it please the Court, I appear on behalf of the appellant. (instructed by Ryan & Bosscher, Lawyers)

MR M.J. BYRNE, QC: May the Court please, I appear with my learned friend, MR C.W. HEATON, for the respondent. (instructed by the Office of the Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Kimmins.

MR KIMMINS: Can I apologise to the Court in relation to the state of the record book and the delay and I also apologise about the late delivery of the amended outline, which was filed this morning. Could I just indicate that in relation to that outline, the only change is that I have actually put the references to the record book as finalised; that is the only difference.

GLEESON CJ: Thank you.

MR KIMMINS: If I could take the Court really to the first ground of appeal which deals with the admission of the identification evidence. Possibly the starting point I would seek to make at this stage is concessions, I would submit, which have been made by our friends in their outline at 1.2 and 1.8, where they acknowledge that the evidence of identification was:

somewhat weak circumstantial evidence that did not advance the Crown's case in any substantial way.

And 1.8 where they reiterated again:

The identification evidence did not advance the Crown's case in any significant way.

Our friend's outline really does not deal with the questions as to the admissibility of the evidence at all. It seems that what they have suggested can follow the path that the Court of Appeal did in this particular case, that the evidence was circumstantial evidence and, as such, the principles which usually dictate the admission of identification evidence do not apply in the instant case. Our submission is that that is not correct, that the court was bound to consider the principles applicable to identification evidence. As to whether you call it direct evidence of identification or circumstantial evidence, the court should have considered those particular principles in eventually, we would submit, excluding that evidence.

So far as the relevant witnesses were concerned, we have indicated in our outline the major problems with their evidence and at page 5 of our outline we started with the evidence of Mr James as such. Could I indicate that reference is not made in my outline of submissions to this particular point, but at record 221 Mr James purported to positively identify the appellant at the Southport Courthouse as the woman he observed on the day of the robbery and at record 241 he purported to recognise her and he was, according to his evidence, 100 per cent sure.

HAYNE J: Now, that being the evidence he gave at trial, what was to happen at trial? Was the evidence to be led, not led? You criticise the quality of the identification evidence, but I do not quite understand what the consequence of the criticism is said to be.

MR KIMMINS: Our primary argument is that the evidence should have been excluded. Defence counsel at the start of the trial submitted that so far as the evidence of the four identification witnesses that we have identified, their evidence as to the identification at the Southport Courthouse should not have been led as part of the Crown case and as such it should have been excluded.

KIRBY J: Would you remind me if an application for that exclusion was made?

MR KIMMINS: Yes, your Honour.

KIRBY J: Where do we find that?

MR KIMMINS: It is not actually in the record book itself. I have referred to it at - it is transcript 63 through to, I think it was 67. I have indicated to my friend this morning that what I have done is actually, realising that the argument itself was not contained in the record book, I have photocopied the relevant pages of the transcript where his Honour actually rules on the admissibility. I have not photocopied all of the argument. If the Court wishes me to, I can provide that in due course. But possibly if I could hand those up at this stage, it may be of some small assistance. In fact, with Mr James it appears that all of the argument is, in fact, in the photocopied material between 63 through to 67.

GLEESON CJ: But on page 63, the expression, "I'm satisfied that it's admissible", is a reference to precisely what? What is the "it"?

MR KIMMINS: Sorry. The evidence of the Southport Court identification. That particular line, your Honour, is his Honour's ruling in relation to the submission made by defence counsel to have Mr Fyffe's evidence excluded.

GLEESON CJ: Evidence of the act of identification at Southport Courthouse?

MR KIMMINS: That is so, your Honour.

GLEESON CJ: Thank you.

KIRBY J: Whereabouts do we find his Honour's direction to the jury on this or do you want to go through any other points of factual foundation before you look at that, evidence relating to Mr Ogilvie and so on?

MR KIMMINS: I was going to take the Court - if the Court does not wish me to, I will go straight on to that, but if the Court - - -

GLEESON CJ: No. At the moment I think you are making a submission that the evidence was not admissible.

MR KIMMINS: That is so, your Honour.

GLEESON CJ: You have another submission that inadequate directions were given about it, but we are dealing with your first submission at the moment, which concerns the admissibility of the evidence.

MR KIMMINS: That is what I am attempting to do, your Honour.

GLEESON CJ: Yes.

MR KIMMINS: At page 70 of the material I have just handed the Court - so it is page 70 of the transcript - at about line 18 through to 25, that is his Honour's ruling in relation to the submission made by defence counsel to have Mr James' evidence excluded. So far as this man's evidence was concerned, it can be effectively summarised that he purported to identify the appellant by her voice - he heard her say six words at the Southport Courthouse - and he also identified her because he observed her run a short distance from a lift in the court building through to the court where the committal hearing was, in fact, taking place.

At record 235, he agreed with the proposition that was put to him that on the day of the committal hearing, the day that he purported to identify the appellant, he gave a statement to the police. But there was no mention in that statement that he purported to identify her because of her voice. At record 237, he agreed with the proposition that he first referred to this identification of her voice some months later at the committal hearing of the appellant in relation to the charge of armed robbery involving the Biggera Waters bank. At record 237, he agreed with the proposition as well that there was nothing unusual about her voice.

So far as the second part of the evidence of this man's identification, that is, observing the appellant's run, at record 237 he also agreed that there was nothing special about the way she ran, and at record 238, he indicated or agreed with the proposition that was put to him that there was no mention in the statement given to the police on the day in question that he was able to identify her because of the way she ran.

Further, so far as Mr James was concerned, we make reference to the fact that a police officer, a Detective Holmes, asked he, and also the other witnesses who were gathered outside the courtroom, to look out for a female and that Mr Holmes came outside of the court, obviously some time later, and he asked the witnesses whether they recognised anyone. That is at record 241.

There was also reference in my outline to part of a submission that was put forward by defence counsel and that can be found at part of the material that I just handed up to the Court at transcript 66.

KIRBY J: The important point that you raise is that when he had the opportunity to perform a neutral identification and the photoboards, that he got it wrong, he chose other people, and that when your client was in a position of extreme vulnerability, being a person in custody, he purported to perform the identification and that that was inherently extremely unfair, because the suggestion planted in his mind was that this was the person who had performed the criminal act.

MR KIMMINS: Yes, your Honour, especially after the police officers had specifically indicated to he and the other witnesses that they were to keep an eye out in case they saw the female who was involved in the robbery. The three witnesses, Ogilvie, James and Fyffe, were all there to testify against the appellant's co-accused, Renton. Renton at that stage was facing committal hearing in relation to the Biggera Waters robbery as well as the Paradise Point robbery, and the appellant herself was only charged with the Paradise Point robbery.

McHUGH J: What is the ground upon which you seek to exclude this identification evidence?

MR KIMMINS: There are a number, so far as Mr James is concerned. I have attempted to outline at pages 8 through to 10 the major areas that we allege that all four identifications should have been excluded.

McHUGH J: But why? I mean, what is the basic principle?

MR KIMMINS: Unfairness, I would submit.

McHUGH J: Unfairness. Now, in what areas does the law allow evidence to be rejected on the ground of unfairness outside confessional evidence?

MR KIMMINS: Alexander v The Queen speaks in terms of evidence of identification being excluded if it would be unfair or if it was undertaken unfairly to the appellant. Chief Justice Gibbs at pages 402, 403 talks about a discretion which a judge has in a particular case involving attempted exclusion of the identification evidence.

McHUGH J: But his Honour immediately gives content to that by saying at the bottom of 402:

It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.

So evidence is unfair when its prejudicial effect outweighs its probative cogency, but prejudicial effect is not concerned with the cogency of proof; it is concerned with the risk that a jury will use the evidence or be affected by it in a way that the law does not permit. Now, can you say anything more about this evidence, that it was extremely weak evidence? There was nothing prejudicial about it. There was no chance it was going to divert the jury from its task or to inflame it in any way. It was just very weak evidence.

MR KIMMINS: The Crown suggests that at this stage. Can I just place this before the Court. Up until that point in time the appellant had not been arrested and charged with the offences involving Biggera Waters. It was as a result of her being identified that particular day by these three persons that she was, in fact, arrested and charged and placed before the court. I know that is not the end answer, but it was sufficient in the minds of the police officers that these three people identified her to place her before the court. Now, the same effect would obviously relate to the - - -

McHUGH J: It was just very weak evidence. If accepted by the jury, they could convict her subject to a right at her trial to say that it was unreasonable or that no reasonable jury could convict on this evidence, but I just do not see any prejudice. I mean, unfairness is a special principle in relation to confessions, but in relation to other areas, such as identification, it is concerned with the prejudicial effect of the evidence outweighing its probative effect and therefore it is unfair in that sense, but it is not a term that has content of itself in the criminal law, has it, or in the law of evidence? I just cannot recollect any area where it does.

MR KIMMINS: Well, arguing by analogy in this particular case, we would suggest that the behaviour of the police in this particular case is akin to that of police where it comes to confessions. So far as the police officers were concerned, they were aware that the appellant was going to be present at the court that particular day. They had not, in the couple of months up until October - so from May to October - sought to go about organising an identification parade as per the authorities suggest. They were aware because of their operation procedures manual that they should, if they possibly could, undertake proper identification, including identification parades. They sought not to.

They knew that the appellant was going to be there on this day in October to face a committal hearing and 15 minutes before she arrives there, the police officer in charge of the investigation, whilst all three are present, asked them to specifically keep an eye out for the presence of the female who was involved in the robbery. It seems, according to the evidence, that she was possibly the only one or maybe one of two persons who fitted the description of the woman that had been given, who appeared on that floor and shortly after she went into the courtroom the police officer came back outside and, according to at least the reference at transcript 66, said to Mr James, "Did you recognise her?".

McHUGH J: Yes I know, but this seems to be a Ridgeway-type point, that by reason of the conduct of the police officers, you should exclude this evidence, but it seems to me a fair way removed from Ridgeway. There was nothing unlawful that the police officers have done. They may have breached their own instruction manual.

KIRBY J: As I understand it, your point is, we have learned in recent years in the courts of the dangers of identification evidence, that it can play a part in the thinking of juries if you have an affirmative identification; that your client was not identified when neutral procedures were followed; that the neutral procedures of identification parade, which, I think, are in police instructions and court urgings, were not observed. Instead of that, your client, in a vulnerable position where there was a suggestion that she was a guilty person, was exposed to the police; an affirmative identification was made; the affirmative identification was placed before the evidence and unless this Court says that that is not acceptable, the risk will be that that practice by Crown and police will be sanctioned - - -

MR KIMMINS: That is correct.

KIRBY J: - - - and that therefore, in order to prevent that happening and to give the signal that that is not a correct way and is dangerous and plants affirmative identification in the mind of the jury, the court has to say that in that circumstance that is not admissible, or if it is not admissible, if it is unfair.

MR KIMMINS: Yes.

KIRBY J: Now, does anything in Alexander or in Domican or in any of the other cases where the Court has dealt with the dangers of identification evidence give strength to that argument or not, or are we being invited to establish some new extended principle?

MR KIMMINS: I think the genesis of the argument finds itself in the passages in Alexander, especially in Chief Justice Gibbs' decision where he refers to the unfairness. There is also reference - - -

McHUGH J: But, as I pointed out to you, he gives it content. I can understand an argument that you would make and say: this verdict is unsafe and unsatisfactory because the jury may have acted on this identification evidence or that adequate directions were not given to it. But you seem to want to exclude the evidence and it seems to me, at the moment anyway, that you must rely on some new principle akin to Ridgeway, that by reason of the conduct of these police officers the evidence should be excluded.

I mean, supposing these people had just simply identified the appellant there, without the behaviour of the police officers. Now, would you say the evidence was in admissible in those circumstances? If not, then you are forced back to say it is the conduct of the police officers that really requires the evidence to be excluded.

MR KIMMINS: If they were singularly seated in a position outside of a courtroom, there is authority, which I have referred to here, where courts have found in the past that a spontaneous identification by a witness at a courthouse is admissible and there is nothing incorrect in relation to it. I, at this stage, do not seek to argue that that is incorrect. I suppose the major argument we have here is effectively in relation to the conduct of the authorities in the way they handled this and to add to that what Justice Kirby indicated, Mr James, when placed in a situation where he was able to observe the photographs, neglected or failed to identify the appellant at that particular time.

KIRBY J: Twice.

MR KIMMINS: Twice.

McHUGH J: That is a factor that would support an unsafe and unsatisfactory submission, but you want to go further; you want to exclude the evidence.

MR KIMMINS: Yes, your Honour.

GLEESON CJ: Just to test the principle, to take an extreme example of suggestibility, what is the principle that you say applies to an act of in-court identification? Suppose Mr James was in the witness box and the prosecutor said, "Do you see the person who you spoke to on that occasion in court?" And he pointed at the accused in the dock and said, "That is her". Is that admissible or not?

MR KIMMINS: I would submit that it was objectionable and - - -

GLEESON CJ: Now what is the principle? There would be some people on a jury who would think it would be a very funny thing that nobody asked Mr James that question.

McHUGH J: Yes. I must say I have always thought that there is something very odd about the way these cases are conducted on identification, because that question, in my experience, was never asked in court.

MR KIMMINS: No, it was not.

McHUGH J: One would have thought that that was direct evidence. Instead witnesses are allowed to give hearsay evidence of an identification that takes place outside the court.

KIRBY J: Perhaps that gives strength to your argument. It is not asked because it is realised, first, that it will have virtually no weight or no use and, second, it will be prejudicial, because of course the accused is in court and therefore that is the accused. So it does not really add strength to the prosecution case, but it can be damaging in the minds of a jury which may not know that this is weighted against the accused in that environment, that he is in the dock.

McHUGH J: I hasten to add, it has been done on occasions, and, in fact, on some famous occasions, counsel have been identified as the people, particularly in committal proceedings, as the person.

MR KIMMINS: I think the answer is really, effectively, as Justice Kirby had indicated that - - -

KIRBY J: Where does Chief Justice Gibbs refer to this? Does he talk in terms of unfairness?

MR KIMMINS: Unfairness, yes. At the bottom of page - - -

KIRBY J: Do any of the other judges in that case refer to it in those terms?

MR KIMMINS: Justice Stephen speaks of a discretionary exclusion at pages 410, 411.

McHUGH J: But Justice Stephen puts it on the probative prejudice dichotomy as well and I think, although Justice Gibbs at 402 uses the term "unfairness", he immediately proceeds to give it content by reference to the probative prejudicial dichotomy.

MR KIMMINS: Justice Stephen as well at the bottom of page 412 over to 413 - - -

KIRBY J: You do not dispute, do you - or do you dispute - the probative and prejudicial dichotomy? That is reflected in the uniform Evidence Act, which is not in force in this State, but there is this balancing. Now, this is the way the judge seems to have approached it. You do not dispute that?

MR KIMMINS: No, that is correct, your Honour.

KIRBY J: So you say he approached it in the correct way; he just reached the wrong conclusion in this case?

MR KIMMINS: Yes. There was a discretion to exclude.

KIRBY J: And you say the point was reserved at the trial and, therefore, it is open to a Court of Appeal to hold the objection?

MR KIMMINS: Yes, your Honour.

KIRBY J: Do any of the other judges in Alexander deal with the point?

MR KIMMINS: Yes, your Honour. At 417 Justice Stephen at about the third paragraph down, the paragraph starting, "This survey of the cases discloses". I know he is talking about a specific photo identification after the detection process was over, but he specifically refers there to exclusion.

KIRBY J: Is that it?

MR KIMMINS: Justice Mason at 430 and at the top of 431 talks in terms of discretion.

KIRBY J: He talks in terms of the prejudicial effect outweighing the value at 430.

MR KIMMINS: Yes.

KIRBY J: Well, that seems to be the formula.

MR KIMMINS: At 433, the second-last paragraph, he there talks about "strong censure" to police for failing to hold an identification parade, as such, and Justice Murphy - - -

KIRBY J: Page 435.

MR KIMMINS: Yes, and his Honour at 436 speaks about the Australian Law Reform Commission.

KIRBY J: Now, the English courts have had a lot of experience of this in recent years because of the Irish cases. Have they developed any approach to this issue that is different from the prejudice value dichotomy?

MR KIMMINS: I am not in a position to outline - - -

KIRBY J: You should have a look at those cases, because they have had the Gilford Four and the Birmingham Six and all the others. I mean, it has been a big issue in England.

MR KIMMINS: I have not specifically looked at those for this particular appeal.

KIRBY J: There is nothing in the Code or the Evidence Act of Queensland that touches on this?

MR KIMMINS: No, your Honour.

GLEESON CJ: That is what you want to say about the admissibility of the evidence and then you have a complaint about the directions; is that right?

MR KIMMINS: Yes, your Honour.

KIRBY J: Is the admissibility point raised in respect of Ogilvie and Fyffe and Hill?

MR KIMMINS: Yes, it is. I can take the Court respectively to the areas there, but they are just a further expansion of what is contained in my outline. The basic premise is in relation to Ogilvie, Fyffe and James, they were three witnesses at the Southport Courthouse; their identification is all tainted in the same way and the same argument applies across the board.

GLEESON CJ: I thought your submission was that the evidence of the acts of identification at the Southport Courthouse should have been included.

MR KIMMINS: That is correct. That relates to those three. So far as the final witness we talk about in the identification areas, Mr Hill - Mr Hill was not involved in the Southport Courthouse identification. Mr Hill was shown a photoboard. He is the only witness who relates to purportedly giving identification evidence in relation to the Paradise Point robbery, which is the second robbery. Our argument effectively, so far as Mr Hill's evidence is concerned, was that factually he was presented with a photoboard with 12 photographs on it. He was asked whether he could identify anyone. He initially indicated four photographs as being similar to a female person who was involved in that robbery.

Subsequently he reduced that to three and indicated that those three were similar to the person who was involved in that robbery. One of those three persons, and for that matter one of the four, was the present appellant. He indicated by way of further factual matters at record 298 that he could not "really see her face very clearly" at the time of the robbery. At record 300, he described that:

the only people I thought it would -that I had - would fit the description of what I saw would be the people in pictures 6, 8 and 11.

One of whom was the appellant.

GLEESON CJ: Now, it might be a little of an exaggeration to describe that as evidence of identification at all. He would have been entitled to say, would he not, "One of the people I saw was female", thereby excluding about 50 per cent of the population.

MR KIMMINS: Yes, your Honour.

GLEESON CJ: That would be admissible simply because it was consistent with the accused being the person.

MR KIMMINS: That is so, your Honour.

GLEESON CJ: And he would have also been entitled to say, "It was a female of about five feet six or five feet five inches in height and who looked as though she was in her mid-30s". Once again, that is not evidence of identification; it is just evidence of observations that are consistent with the accused being the person in question.

MR KIMMINS: That is so, your Honour, and we submit that so far as Mr Hill's evidence is concerned, it should have stopped there. Then to produce the photoboard of which he purports to identify her as one of four and then one of three, should have been excluded in this particular case. There is a case of Bara that we refer to - it is a Northern Territory authority of Mr Justice Kearney - where in a very similar situation he excluded that evidence because it was virtually worthless; it had no probative value at all.

KIRBY J: But there was the other factor that Mr Hill was asked something about the complexion of the accused.

MR KIMMINS: And originally he had indicated that it was an olive complexion and then at trial he testified it was a pale complexion.

GLEESON CJ: Yes.

MR KIMMINS: In fact, the case of Bara, if my memory serves me correctly, there was an identification of one of the persons and he excluded that in that case.

GLEESON CJ: Yes.

MR KIMMINS: For the remainder of my outline in relation to the ground No 1, I attempted to try and come to a conclusion as to why his Honour at first instance and the Court of Appeal upon appeal settled the way that it did. It would seem that the court there was prepared to say that all of this evidence was, in fact, circumstantial evidence and, as such, as I had indicated at the start, that it was not subject to the rules and principles which have developed in relation to identification evidence.

There are a number of cases, especially from South Australia, where they have purported to discuss the difference between direct evidence of identification and circumstantial evidence of identification. They are effectively referred to on page 11 of our outline. They are Murphy, Wilson and Turner. It is the second-last paragraph on that page. I also refer to them on page 13 of the outline and specifically refer there to various paragraphs in the judgment. I do not know whether the Court wishes me to take you to that at this stage.

If the Court wishes me to, I can take you there, but, effectively, the court there defines what direct evidence of identification is and what circumstantial evidence of identification is. It seems that the Court of Appeal here has merged both concepts together. Instead of treating them as separate and distinct, they have merged them together, and that is where everyone has fallen into error, we would submit.

GLEESON CJ: What do you understand circumstantial evidence identification to be, as distinct from direct evidence?

MR KIMMINS: If a person was able to say that, "The man I saw undertaking the robbery had one leg at the relevant time", and the accused person who was in the dock had one leg, that was - - -

GLEESON CJ: It is the example I gave earlier, a female. That it was a female of middle height and in her 30's. "I do not profess to be able to say that it is the accused, but it is consistent with the accused".

MR KIMMINS: Yes, your Honour. I do not know whether I can advance that first point any further before - - -

GLEESON CJ: Is that a convenient time?

MR KIMMINS: Yes, your Honour.

GLEESON CJ: We will adjourn until 2 pm.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ: Yes, Mr Kimmins.

MR KIMMINS: Thank you, your Honour. There is probably one final point in relation to the first point, and that is really in answer to a matter raised by Justice McHugh, in relation to whether this is, in fact, a Ridgeway-type argument - - -

McHUGH J: Bunning v Cross.

MR KIMMINS: Bunning v Cross, yes. That was all I was going to add to that, your Honour.

GLEESON CJ: Thank you.

CALLINAN J: Mr Kimmins, could I just ask you one question, and it really goes to the facts? What is the importance and significance of identification evidence in a case of this kind where there seems to be very strong evidence that disguises were used? That is right, is it not? Your client's fingerprints were found on a wig-type glue or something; is that not right?

MR KIMMINS: A can of hair spray and a bottle of what I understand is methylated spirits.

CALLINAN J: There was evidence, was there not, that there was an appearance of disguise about the bank robbers?

MR KIMMINS: Yes. There was evidence of - I think, one of the witnesses was a hairdresser who indicated that she thought that the female was wearing a wig during one of the robberies.

CALLINAN J: Well, it may not be significant but I just wondered whether in light of that the jury might be entitled to take the view that - or the jury would have been likely to attach no weight at all, in any event, to the identification evidence.

MR KIMMINS: If I could take the Court to his Honour's summing up. This is at record 365, between lines 15 and 25, where his Honour indicated that:

Some of it you may think is of poor quality and on its own may not take the Crown case much further. In other cases you may think it is comparatively strong, but that's entirely a matter for you.

Talking there about the identification evidence.

GLEESON CJ: You were distinguishing before lunch between identification evidence and circumstantial evidence. This is really related to what Justice Callinan was asking you. Did the Court of Appeal have in mind that the use the jury was likely to make of the so-called identification evidence was not that it established that it was your client who was in the robbery, but that it established that it could have been her?

MR KIMMINS: They deemed it all as circumstantial evidence, which is the second - - -

GLEESON CJ: And that is what they meant by circumstantial evidence.

MR KIMMINS: As I understand it.

GLEESON CJ: That it was not evidence that proved that she was one of the robbers, but evidence that was consistent with her being one of the robbers and was therefore part of the circumstances.

MR KIMMINS: That is what the Court of Appeal found, but realistically, what we had here was, in fact, positive direct identification. I took the Court to Mr James saying that he was 100 per cent sure. That is not a question of circumstantial evidence. He is giving, I would submit, direct, positive evidence of identification. It seems that the learned trial judge at first instance and the Court of Appeal have merged both concepts together, whereas the South Australian authorities seem to suggest that there are, in fact, two separate and distinct types of evidence. There is positive, direct identification and circumstantial evidence of identification, and the twain shall not meet. That is really the point that I have tried to make in relation to that.

GLEESON CJ: Thank you.

MR KIMMINS: That then leads on to his Honour's directions in relation to the identification point, and the starting submission was that passage I just took the Court to. On one view of what his Honour has indicated to the jury there, he has indicated that they may come to a conclusion that there is comparatively strong evidence of identification in the case. That seems to be at odds with the submissions from our learned friends that I took the Court to at the start of my submissions today, that the Crown suggested that it was, in fact, weak evidence and would not have been basically taken into account.

I will just do this as briefly as I possibly could - and I am going through the summing up. At record 367, lines 12 to 35, his Honour indicated that there was no positive identification as regard to photoboards. At record 368, line 25, his Honour indicated that whether the identification evidence was reliable was, in fact, a matter for the jury. At 368, lines 45 to 55, his Honour referred to the identification evidence being part of the Crown's circumstantial case. Between records 368, line 55, and 369, line 20, his Honour then referred to the difference between circumstantial evidence and direct evidence of identification. His Honour's view was, which he told the jury, that direct evidence of identification appears to be where a person is able to say, "I saw a particular named person committing an offence".

At record 370, his Honour indicated the jury was required with circumstantial evidence to look at all of the evidence as a whole, thus all of the identification evidence as a whole, I would submit. Record 371, his Honour described it as a "jigsaw", fitting it all together. Record 382; his Honour there refers to the evidence of Fyffe, Ogilvie and James.

GLEESON CJ: That direction on page 369 appears to limit direct evidence of identification to a case where somebody previously knew the offender.

MR KIMMINS: Yes, that is so. That is as his Honour directed the jury.

HAYNE J: Did his Honour at any point other than at 366, lines 38 and following, relate the various principles that he stated to the particular facts and circumstances of the case?

MR KIMMINS: This is in the lines 5 to 35, your Honour?

HAYNE J: No, 366, 38 and following - or 40 and following, is it, where he deals with James' evidence, and he refers specifically to James?

MR KIMMINS: Yes.

HAYNE J: But apart from that, does he ever relate the principles he identifies to the particular circumstances of the case?

MR KIMMINS: No, your Honour.

HAYNE J: What do you say about that?

MR KIMMINS: We say that his Honour's directions were fatally flawed. It is completely at odds with what this Court has held in Domican, that the duty was cast upon him to specifically discuss all of the weaknesses inherent in the evidence. The last point that I was taking the Court to was at 382, where his Honour touched upon the evidence of Fyffe, Ogilvie and James. All his Honour does there basically is to indicate that each of those witnesses later identified, or purported to identify, Festa as the female involved in the robbery. He said that in relation to each of the three. At 387, he deals with the evidence of Hill, between lines 5 and 10, simply by saying:

Mr Hill identified a photograph of Festa as being one of three possible persons he selected from a photoboard as being the driver -

of the named vehicle. At 391, at line 40 onwards, his Honour had started to talk about the case against Festa and he described it:

You will appreciate I am limited. She is not here.

So there was no address on behalf of Festa, she having voluntarily absented herself from the trial at the time. His Honour, at the bottom of the page, lines 60 to 65, indicated:

All I can do is really point out to you the weaknesses which do exist in the Crown case so far as the identification evidence is concerned.

Over the page, he then at line 10 deals with the question of flight. Then at line 35 he indicates that the jury should:

take into consideration any weaknesses which you think exist in the Crown case, having regard to the submissions made on behalf of Renton to the extent that they apply to her.

Well, very few would apply to her because the witnesses who purported to identify her had their particular weaknesses which we have outlined in the case there, which are not discussed by his Honour at all. Then at the bottom of 392, at line 60, his Honour said:

Apart from that I cannot say anything else about Festa's defence.

So far as the Court of Appeal was concerned in relation to this point, we deal with it effectively at page 13 of the outline. I am looking now at page 15 of the outline. The court identified that there were two areas that the trial judge - that two complaints were made in relation to the summing up, they dealing with a warning about voice identification and, secondly, the deficiencies of the Southport Courthouse identification. At record 430, line 35, which I have placed in my outline, the court there discusses, obviously, defence counsel cross-examining in relation to weaknesses, and then the court said:

The judge may have considered that there was no need to repeat all of the details in the summing up. After all, the jury had witnessed the cross-examination themselves.

GLEESON CJ: Just remind us, at what stage of the case was it when your clients absented herself?

MR KIMMINS: It was prior to the close of the Crown case. It was, I think, about day 12.

GLEESON CJ: Had all the witnesses that you have been referring to so far given their evidence by then?

MR KIMMINS: Yes, the four identification witnesses had testified and had been cross-examined, but there was no address on behalf of the appellant pointing out the weaknesses, so the jury were not even presented with that, and the Crown prosecutor, as I understand, did not address so far as Festa was concerned because she was not present. Thus, what I took the Court to before at 391, 392, is the sum total of submissions or directions that the jury were provided for by counsel or the judge in relation to the identification aspect, the weaknesses thereof.

GLEESON CJ: By the time your client absented herself, had the can of hair spray with her fingerprints on it been tendered?

MR KIMMINS: I believe it had not. Day 12 she absented herself and it was day 17 the jury came back with the verdict.

GLEESON CJ: And when did the hair spray get in?

MR KIMMINS: I think in one of the earlier witnesses, one of the police officers tendered photographs of the hair spray.

GLEESON CJ: Was there any challenge to the proposition that her fingerprints were on that spray?

MR KIMMINS: One thing in relation to the fingerprints, if I could deal with it at this stage, the two items of property in the whole of the unit that bore her fingerprints were the can of hair spray and the bottle of methylated spirits. Both of those are readily moveable items. There was evidence, as I understand it, that Renton, the co-accused, had been associating with the appellant and had been at her home, et cetera. So the mere fact that fingerprints were found on those two items did not mean she had to actually be at the unit to put them on. It is not as if they were on a bench top that was fixed. They were just two items that were moveable items which were found there. I accept they show some contact with the unit, but they are not as impressive, I would submit, as if it had been on something fixed in the unit.

GLEESON CJ: Was there not evidence of observations of movements at the unit?

MR KIMMINS: Yes, your Honour, that - - -

GLEESON CJ: Did that evidence show that she had been at the unit or just that a woman consistent with her appearance had been at the unit?

MR KIMMINS: The sum total of that evidence seems to come from the unit manager, that the woman who the police took away on 19 June he had spoken to around the pool at some unspecified time prior to 19 June. He was never shown a photoboard or anything like that. That seems to be the sum total of his evidence. So the last robbery was the Paradise Point robbery on 13 June and the police came to the unit on 19 June and the unit manager was unable to say at what time he actually saw her or spoke to her around the pool. There was evidence from, I think, a Miss Hunt, who indicated that she saw a female of a description in and around Renton's unit at night-time, but did not purport to identify anyone.

GLEESON CJ: Did the description match that of your client?

MR KIMMINS: It was a female wearing a tracksuit and I believe she described her as shortish, but that was about it, because of problems at night-time. There was surveillance identification by a police officer who purported to say that at midday on 18 June - so five days after the last robbery - he observed the appellant attend at the unit block in which Renton was living, but did not see where she went. Then that same police officer said at about 9 am on the morning of 19 June he observed the appellant attend at the unit block where Renton lived and she appeared to go into his unit. He did not see her leave, but the evidence then moves forward to, I think, about midday on 12 June where - - -

GLEESON CJ: Now, what was the line taken in cross-examination of that police officer?

MR KIMMINS: I do not believe he was cross-examined; that is as I understand it.

GLEESON CJ: Thank you.

KIRBY J: He gave his evidence in the presence of your client?

MR KIMMINS: Could I just have that checked, your Honour? That police officer's name was Cantwell. His evidence is at transcript 848 of the trial transcript. That is not repeated in the record book. I can have copies made if the Court wishes me to provide those.

KIRBY J: What day was that?

MR KIMMINS: That was 22 April 1997, which was day 14.

KIRBY J: When did she decamp?

MR KIMMINS: I thought it was day 12 that she left. She left on 17 April. Yes, the transcript indicates that counsel for Renton was asked whether he wished to cross-examine Mr Cantwell and he said, "No questions of this witness", and the witness was then excused. Does the Court wish me to provide copies of that man's evidence?

GLEESON CJ: No, it does not matter.

MR KIMMINS: At page 16 of my outline I refer to another South Australian decision of Gorham, where the South Australian Court of Appeal was critical in relation to the lack of directions given by a trial judge in a case where it was suggested that there had been identification.

KIRBY J: What is the principle you argue for?

MR KIMMINS: There is no actual principle; it is just another further example of Domican.

KIRBY J: What is the principle that Domican stands for that you say was not observed in this case?

MR KIMMINS: That it is incumbent upon the trial judge to point out to the jury specific weaknesses in the prosecution evidence of identification. The relevant page in Gorham is at 509, at the last two paragraphs.

The second aspect in relation to the directions was so far as a specific direction on voice identification. All I really need to say about that is contained in my outline. It is submitted that the evidence of Mr James depended upon his purported identification of the appellant's speaking at the Southport Courthouse, that the trial judge should have directed the jury in relation to the theoretical and practical weaknesses of voice identification evidence. His Honour gave no directions on voice identification at all. Unless the Court wishes to ask me anything in relation to voice identification, I will move on to the next area, ground 3, which deals with the tools of trade.

KIRBY J: What relief did the Court of Criminal Appeal in South Australia give there? They ordered a new trial - - -

MR KIMMINS: That is so, your Honour.

GLEESON CJ: Mr Kimmins, I just want to be sure I have the facts straight in relation to this next argument that you are coming to. There were a number of items of personal property seized by the police from the apartment that was occupied by Renton.

MR KIMMINS: Yes, your Honour.

GLEESON CJ: This argument that you are about to make now relates to some only of those, is that so?

MR KIMMINS: Yes, your Honour.

GLEESON CJ: Which ones?

MR KIMMINS: To the guns and the ammunition. I have arranged to be photocopied a list of all of the items that were taken from Renton's unit. It was exhibit A in the trial, but it is not in the record book. I do not know whether that will be of any assistance to the Court.

GLEESON CJ: That would be, if you could. Thank you.

MR KIMMINS: This document purports to break up into various rooms all of the items that were seized. There should be an area at the bottom of the photocopy that I have provided which signifies the guns that were discovered and the armoury as such in the lounge room ground floor.

GLEESON CJ: Was there evidence that demonstrated that the guns and ammunition had been purchased after the robberies in question?

MR KIMMINS: Your Honour, the evidence was that a vast majority of the ammunition and at least two of the three guns had been purchased subsequent to the robberies.

GLEESON CJ: How was that proved, just as a matter of interest?

MR KIMMINS: By a man called Deverson, who was the owner of a gun store which went by the name of "The Bunker".

GLEESON CJ: Now, what if there was also there a book entitled "Bank Robbing Made Easy" that was demonstrated to have been purchased after the robbery?

MR KIMMINS: We would submit that that should not have been made admissible because it could have had nothing to do with the earlier robberies.

GLEESON CJ: Well, it would demonstrate a propensity on the part of Renton.

MR KIMMINS: And that was it.

HAYNE J: Demonstrate a propensity at what time?

MR KIMMINS: At the time that the book was purchased, which was subsequent to the robbery.

KIRBY J: Why would one not infer that this is something that has been going through his mind for a little while?

MR KIMMINS: With due respect, I do not believe that one could read that inference into the mere purchase of a book at some time subsequent - - -

KIRBY J: But a jury might think that.

MR KIMMINS: The jury may think that.

KIRBY J: We have to get a bit real about all this.

MR KIMMINS: Yes. Sorry, I thought your Honour was indicating that that was something that positively could be taken into account.

GLEESON CJ: How did the trial judge direct the jury as to the use they could make of such of the tools of trade as were acquired after the robbery?

MR KIMMINS: Record 374, lines 10 to 25, is the first area. So that is a general direction in relation to all of the equipment at the unit. Then record 383, line 40, through to 384, at line 35.

HAYNE J: I am sorry, when is the end of the reference?

MR KIMMINS: 384, line 35.

HAYNE J: Yes, thank you. In particular, at about 12 to 20 and the references to "tools of trade".

MR KIMMINS: Yes, your Honour.

GLEESON CJ: Well, he really put it on the basis of propensity, demonstrated that this man is a bank robber.

MR KIMMINS: Yes, your Honour.

HAYNE J: Did his Honour say how the jury might use that in the trial of Festa, as distinct from the trial of Renton?

MR KIMMINS: The first direction that I took the Court to just before was the only thing he said in relation to it. That was at 374.

McHUGH J: The way the Court of Appeal used it was to suggest that if she knew about that, she knew he was a bank robber, and it was all part of the circumstantial case that defeated her case; that although she knew he was stealing motor cars, she did not know anything about the robbery.

MR KIMMINS: If she knew he was a bank robber as at 19 June, the day that the police arrested her and Renton, that could not in any way assist the prosecution case in relation to her involvement in the two earlier robberies. The sum total of the evidence seems to be that on 19 June a policeman saw her actually go into the premises. There is no other evidence of her associating as such with that unit, with the possibility of seeing guns, et cetera.

McHUGH J: Was there not evidence that she was there every day at that unit?

MR KIMMINS: No, she said that she saw him nearly every day.

GLEESON CJ: Did she not also give some evidence that he did not have any other female friends?

MR KIMMINS: That is what she said, but obviously the extent that the jury could take that would be that to her knowledge. There was no suggestion that she lived at the unit; there is no suggestion that - other than she saw him during the day, that, in fact - - -

McHUGH J: But if you associate her with the cars, with transferring bags from blue Lasers to white Lasers or vice versa, there is knowledge that she knows of these tools of the trade of a bank robbery, and she is then driving with him at the time when they are arrested. Why is that not a fact that can be taken into account?

MR KIMMINS: But there is nothing in the case, your Honour, to indicate that she knew of the tools of trade.

McHUGH J: But that is what the judge put to her. I mean, she is there. She had a key to that unit, did she not?

MR KIMMINS: On 19 June she did.

McHUGH J: Yes. Did she not have the receipt?

MR KIMMINS: At her unit, which she shared with another man, there was a receipt for the unit.

McHUGH J: I know that, but I mean the strength of circumstantial evidence is that it eliminates explanations. You have one fact and, yes, you explain that, and then you have to add another one and you add another one, and you get to a stage where a jury can conclude, "Why would she still be going with this fellow? She has been with guns. She sees these guns. She has been with these robbers. She knows he is a bank robber and yet she is still with him".

MR KIMMINS: It is probably the last sentence of what your Honour said that we submit is wrong because there was no evidence in the case that she knew about it. In fact, as at the time of the two robberies, two of the weapons that were discovered on 19 June were not even in Renton's possession.

McHUGH J: No, but the ammunition may have been.

MR KIMMINS: Some of it may, but there is a big difference between leading evidence in relation to some bullets and a large armoury as such.

GLEESON CJ: Where do we find objection being taken to this evidence?

MR KIMMINS: I do not believe it is actually repeated in the record that the Court has. I have set out on page 17 of my outline that originally the applicant made an application for a separate trial from Renton on the basis of pleading the fact that a deal of guns and ammunition were found at Renton's premises that had nothing to do with her. That was transcript 53.

GLEESON CJ: I was really trying to find out whether a distinction was drawn at the trial between after-acquired property - - -

MR KIMMINS: No.

GLEESON CJ: So there was no issue raised at the trial about whether or not the guns and ammunition acquired after the bank robbery should be treated differently from the other tools of trade?

MR KIMMINS: No. Whilst defence counsel was there, there was no matter raised with his Honour, as I read the transcript of the trial.

HAYNE J: How would it be on a joint trial with Renton? The evidence would be admissible against Renton, would it not?

MR KIMMINS: Yes.

HAYNE J: What application might have been made in running, as distinct from at the point of summing up by counsel on behalf of Festa, had counsel been there throughout the trial?

MR KIMMINS: He took the only ground he could at the start and asked for a separate trial on the basis of that.

HAYNE J: I understand that.

MR KIMMINS: But then after that cross-examination the only line of cross-examination one could possibly - - -

GLEESON CJ: Was his application for a separate trial partly upon the basis that some of this property was after-acquired property?

MR KIMMINS: No. His application was on the basis that it could not be connected to her, as I remember it.

GLEESON CJ: Any of it?

MR KIMMINS: Yes.

GLEESON CJ: Including that with her fingerprints on it?

MR KIMMINS: Only the ones with the fingerprints; that all the rest had nothing to do with her.

HAYNE J: That is rejected and then the evidence is led at the trial of Renton.

MR KIMMINS: Yes, your Honour.

GLEESON CJ: Once you have her fingerprints on items of personal property within the unit, subject to the possibility that Renton was such a bad man that he had come and stolen those things from her place, you have her inside the unit, have you not?

MR KIMMINS: You have her inside the unit at a time - sorry, your Honour. If I could go back this step. There was evidence of a degree of familiarity. There was no reason as such that Renton may have stolen it. He may have requested it. It might have been provided by the applicant to him. That is the first point. The second point is the finding of those objects inside Renton's premises on 19 June, the highest that the Crown could really say that evidence showed was that if the jury accepted she took them into the premises, that they were brought on to the premises by her at some stage prior to midday on 19 June.

GLEESON CJ: Was there not a female wig found on the premises?

MR KIMMINS: I had thought there was a wig stand.

GLEESON CJ: I see.

McHUGH J: Well, it was a balaclava that was found there consistent with her DNA, was there not, and Renton and a third person?

MR KIMMINS: The DNA evidence came in after she had decamped and there was no cross-examination.

McHUGH J: But in addition, was not a balaclava found in a white Laser and was there not evidence that she was driving a white Laser and that Renton was driving a blue Laser?

MR KIMMINS: For one of the robberies, that is correct, your Honour. The DNA evidence really did not get down to tintacks. As I understood it, it was just consistent.

GLEESON CJ: Let us just assume for the moment - I understand you do not concede this - that she was thoroughly tied in or it was open to the jury to conclude that she was thoroughly tied in with this unit, that she had been there, that she was a regular visitor to it and that she was a regular companion of Renton. Then, focusing on the after-acquired property, two of the three guns and much of the ammunition, would there be any difference between the admissibility of those items of property against Renton and the admissibility of those items of property against her?

MR KIMMINS: No. If I understand what your Honour has indicated to me, our submission would be that all of the evidence in relation to the after-acquired property should have been excluded. It was not relevant to both of them.

GLEESON CJ: Yes, both of them.

McHUGH J: But given the evidence of association on which the jury could find that there was this very close association between the two of them, if the evidence was admissible against Renton, was it not also admissible against her?

MR KIMMINS: No. I am going to submit in relation to the last ground that that seems to be a lot of the problems arose here. The case was really conducted as a conspiracy case instead of two separate trials being run at the same time in relation to these charges and it seems that everyone assumed that all of the evidence could be thrown in and it was all admissible against both of them, without anyone sitting down and actually working out what was admissible against Renton alone, what was admissible against Festa alone and what was jointly admissible as such. That probably came about because defence counsel was not there prior to addresses or summing up. That seems to be the point, that it should have all been raised prior to the summing up. But the fact is none of this was done.

McHUGH J: But it is very difficult to distinguish the evidence in this case. I mean, take the question of the tapes, for example, from Mr Pilbeam's car. Now, that car is used in the robbery. Tapes are taken from his car. They are found in the gold Mercedes that she used to drive.

MR KIMMINS: I know what your Honour is saying. Can I just throw in two other alternatives or hypotheses that would have to be directed there? A man called Cristef was the person who owned it and also there was evidence that Renton himself was the driver of that Mercedes. He had been observed driving that vehicle. So there were three possibilities as to how those tapes could well have got into the car, that Cristef, who was the man who was living with Festa at the time, could have taken possession of them; Renton could have left them there himself when he was driving the vehicle; or the appellant could have.

McHUGH J: They are all explanations that you put to the jury, but as I put to your earlier, the more circumstances you have to explain, the harder it becomes to accept these innocent explanations. You have the receipt for Renton's unit found in her possession. You have her driving cars and being found with him. You have all this evidence of her association with him and no other woman associating with him.

MR KIMMINS: I accept all that, but the primary point we seek to litigate on this ground is that evidence was led of items to indicate propensity to be an armed robber. That evidence should not have been led because the evidence that the Crown relied upon to show such had not even been in existence at the relevant time of the robbery and could not have been used in the robbery itself. As such they did not advance the Crown case in any way, shape or form.

GLEESON CJ: Now, just to put this into perspective. What the police did was prove, in effect, everything they found at this unit.

MR KIMMINS: Yes, your Honour.

GLEESON CJ: And a great deal of what they found at the unit was extremely incriminating, quite apart from these two of the three guns and the ammunition.

MR KIMMINS: Yes, your Honour.

GLEESON CJ: So, your submission is the judge should have excluded from the description of the items they found and from the evidence as to the items they found those particular items.

MR KIMMINS: Yes, your Honour.

GLEESON CJ: What difference would that have made?

MR KIMMINS: Those items would have gone. There is then a question as to what directions could well have been given in relation to the remainder of the property.

GLEESON CJ: Do you think the jury would have attached importance to the fact that he only was shown to have one gun instead of three?

MR KIMMINS: No. In relation to that, your Honour, the third gun was never shown to even be possibly relevant to any of the robberies and that was the first gun on that list, which was a .22 calibre sawn-off rifle fitted with a silencer. All of the descriptions given of the weapons used in both of the robberies were consistent with a shotgun and/or a semi-automatic rifle. So, at no time whatsoever was there any evidence given that the .22 calibre sawn-off rifle with the silencer could have been used in either of these robberies but reference to it was still made.

GLEESON CJ: What about the pump-action shotgun that was found in the main bedroom on the first floor?

MR KIMMINS: Firstly, your Honour, that was identified as being one of the weapons purchased from "The Bunker" subsequent to the robbery and the third rifle is actually referred to on page 1. That is underneath the ".22 calibre sawn off rifle" and that is the "5.56mm Australian Automatic Arms" - - -

GLEESON CJ: Well, I may have been drawing some inferences from the white-out that has been used here.

MR KIMMINS: Sorry. They seem to be the only items on page 1 which had anything to do with ammunition or guns.

GLEESON CJ: Well, you see there are two guns on page 1 and there is a "Pump action shot gun" referred to on page 4.

MR KIMMINS: Yes, your Honour.

GLEESON CJ: Which of those three was bought before the robbery?

MR KIMMINS: The .22 calibre sawn-off rifle.

GLEESON CJ: With the silencer?

MR KIMMINS: Yes, your Honour.

GLEESON CJ: Right. So that is pre-offence. The semi-automatic rifle was post-offence.

MR KIMMINS: Yes, your Honour.

GLEESON CJ: Some of the ammunition was pre-offence and some was post-offence and the pump-action shotgun was post-offence.

MR KIMMINS: Yes.

GLEESON CJ: Is there a proviso in your legislation?

MR KIMMINS: There is, your Honour.

GLEESON CJ: Yes.

MR KIMMINS: I do not know whether I can take my argument any further in relation to the actual tools of trade. The next point I was going to raise was in relation to the directions that his Honour gave in relation to those. It is our submission that his Honour did not address the jury fully or accurately. At page 18 I discuss the relevant points that I wish to make there. The point was never made clear to the jury that if these guns and ammunition were, in fact, admissible that there was nothing to show that she had any knowledge of it whatsoever prior to the raid by the police. There was no actual knowledge one way or the other. The only thing that really the jury could draw an inference of was that she was associating with a man who, at some stage after 17 June, when he purchased those rifles, had an intention to do something possibly illegal with it.

GLEESON CJ: By the way, those three "ammunition boxes" referred to on page 2, were they purchased post-offence?

MR KIMMINS: Your Honour, it was a little difficult to actually work out what was purchased when. It seems that Mr Deveraux indicated as follows, that on 17 June 1996 Renton purchased a 12 gauge shotgun plus the automatic rifle. At the same time he purchased 12 gauge shotgun shells, 12 gauge solid slugs, AR15 magazines - - -

GLEESON CJ: It is not clear where the ammunition boxes were purchased.

MR KIMMINS: No, not those specific ones, your Honour.

GLEESON CJ: Now, what about the moustaches, the two moustaches referred to on page 3?

MR KIMMINS: There is no information as to when they came into - - -

GLEESON CJ: They had one each.

MR KIMMINS: As my memory serves me, I do not believe that there was any allegation as such that she wore any facial hair during any of the robberies. I should possibly point this out, that as I understand the question in relation to the ammunition, the vast majority of the ammunition that was not purchased on 17 June could not have been used in either the shotgun or the automatic rifle. Possibly only the 7.62 ammunition was the only ammunition that could possibly have been used. All the rest could not have been and, as I have already indicated, there was no evidence whatsoever that anything coming remotely similar to a .22 calibre sawn-off rifle was used in either one of the robberies. So even that factor by itself, the Crown led material that they could not have been used at that time during the robbery.

The final question is in relation to the question of association. The direction that we complain about is at record 377 and it is identified between lines 40 and 60. At that stage, his Honour indicated to the jury that there was "a close association between Festa and Renton" and the jury may come to the conclusion:

that they were seen together, or where a man and a woman were seen together and one of them was identified to some extent, the other person may well have been -

and he gives the example -

Renton was identified as being with a woman. You may well come to the conclusion that the woman was Festa and vice versa.

He describes it as a "minor piece of evidence". I take the Court back to the top of the page, between lines 1 and 15. His Honour there starts to develop the question of association and on line 2 indicates that the jury may think this question of association was "a very important aspect of the Crown case".

His Honour refers to Mr Kelynack - Mr Kelynack was, in fact, the unit manager at Renton's unit block - and he makes reference there. Then in the middle paragraph on that page, on line 3, his Honour once again refers to association:

That again assists in associating her with the accused Renton.

His Honour at the top of the page has indicated association is very important to the Crown case. His Honour, we would submit, effectively then tells the jury that they could come to a conclusion if Mr Renton was identified as committing a robbery, and he was in the presence of a woman, that the jury could come to a conclusion that that woman was Festa. We would submit that that is wrong. It is incorrect to direct the jury in that way.

The jury could well have not accepted any identification evidence against Festa, but being satisfied that the Crown produced sufficiently strong identification evidence against Renton for them to be satisfied that Renton was one of the robbers. His Honour's direction there then allowed the jury to bypass, we would submit, a consideration of other factors, if they so desired, in relation to the proof against Festa and come to a conclusion, because Renton has been identified with a woman, there is a close association between Renton and Festa and, as such, were satisfied that Festa was the woman there, and convict.

GLEESON CJ: I am not sure what the difficulty there is. Let it be supposed that there was a piece of evidence that beyond argument linked Renton with a robbery. In other words, let us suppose that both robbers were disguised but Renton left his fingerprints on the ledge of the bank teller's window. So that in that respect the Crown case against Renton was established to the hilt, but there was no similar clear evidence against your client. If the evidence showed not only that your client was Renton's close and constant female companion, but that he had no other female companions, then the fingerprint evidence against Renton would be something the jury could take into account in the case against her, would it not?

MR KIMMINS: I would submit not, your Honour. The jury would be entitled to consider the case against each of them separately. If there was a case that there were separate trials for one reason or another - Renton died or pleaded guilty or something like that - and the jury were just considering the case against Festa. The jury would be entitled to have regard to the fact that Renton was involved and the Crown could lead evidence, such as fingerprint evidence - or even, in fact, if Festa's counsel admitted that Renton was the other robber, all that could be used for, we would submit, is background material.

GLEESON CJ: But one of the facts in issue in the case, or a fact relevant to a fact in issue, is whether or not Renton and Festa were at the bank at the time of the robbery. Now, evidence that proves that Renton was at the bank at the time of the robbery can be used in combination with evidence that proves that Renton never went anywhere without your client, if there were such evidence, could it not?

MR KIMMINS: It could be used as a circumstance that - - -

GLEESON CJ: If there were evidence that Renton never went anywhere without your client and there was evidence that established that Renton was at the scene of the robbery, the combination of those two items of evidence would constitute circumstantial evidence that your client was at the scene of the robbery.

MR KIMMINS: Yes, taking the extreme example your Honour poses to me. But here we are dealing with a situation where the judge directed the jury that if they are satisfied about the identification of Renton, they could then come to a conclusion that Festa was the other accused there. Conclusive proof, basically, if one took his words literally.

HAYNE J: That is to say, the example given by the Chief Justice invites attention to the nature and quality of the link that it is sought to draw between Renton and Festa.

MR KIMMINS: Yes, your Honour.

HAYNE J: What was the Crown case in that regard? What was said to be the basis of linking Renton and Festa in this case?

MR KIMMINS: The keys that were found at Festa's unit - - -

HAYNE J: That there were various links is plain, but were any of those links matters that were directed specifically to Renton's conduct, alleged against him, or concerned the likelihood or otherwise of Festa being with Renton at the times of the alleged offences?

MR KIMMINS: No, your Honour. There was no evidence.

GLEESON CJ: I thought there was evidence that Renton had no other female companions.

MR KIMMINS: No. There was an unrecorded interview between police and Festa and the policeman alleged from his notes that Festa had said that Renton did not know any other females. Now, that is to the best of her knowledge, if one accepts the notes to be correct; that to her knowledge he did not know any other females down the Gold Coast. It did not prove that he did not know anyone or did not have a business association in the business of armed robbery with some other female.

GLEESON CJ: Did Renton give evidence?

MR KIMMINS: No, your Honour.

HAYNE J: The question becomes: what were the jury told about how they might reason? Or were they simply left in a position where the boyfriend is a bank robber; if you are convinced of that, so is she?

MR KIMMINS: That is what we would submit that his Honour directed the jury. I do not know whether I can advance my submissions any further.

GLEESON CJ: Thank you.

MR KIMMINS: Thank you, your Honour.

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: May the Court please. Again, with what has been called the identification evidence and may we seek to put it in what we believe are uncontroversial contexts. There were two robberies relevant to the present appellant. They occurred on 27 May and 13 June 1996 at two National Australia Bank branches on the Gold Coast. A number of cars were taken and used in association with those two robberies. Renton at the relevant time was a person who was at large from prison; he was someone who was identified as being associated with a number of the cars used in respect of the robberies; and he was a person shown to be in possession of large amounts of cash shortly after the commission of the first robbery and continuing to his apprehension on 19 June.

That cash was reflected, as your Honours may have picked up from the record, in his renting of the unit in the name "D. White" for a substantial cash bond; he purchased a yellow Toyota, for cash; and various receipts were found in the unit relating to new furniture and electrical goods, which were purchased for cash from the time spanning the robberies. It was non-controversial also that a male and a female were associated with the two robberies and also with some of the cars used in connection with those robberies.

The appellant, when spoken to by police, said, as has been reflected this afternoon, three things of note. Again, taking one step back to put it in context, Renton had been recently released from prison; he was at large in the sense that he had not honoured relevant obligations as to his liberty; he had been writing to the appellant from prison; and he contacted her shortly after his release from prison. She told police that she saw Renton every day after he came down to the Gold Coast. She said she drove him around, they went shopping, and she also told police that she drove him around as he was stealing cars.

Now, in that context, the fact that she tells police that she was with him stealing cars and that Renton, as I will come to shortly, was someone identified as being associated with those cars, it is not surprising, firstly, that there was evidence that there was a female who resembled the appellant seen in respect to those cars and given the appellant's statements to police about her involvement, it is not surprising that there would be evidence, so-called identification evidence, relating to her involvement with some of those stolen cars. It was made clear to the jury that this evidence, that is, identification evidence, was circumstantial. It was never put as anything other than that and, again, I will come to it shortly - - -

GLEESON CJ: What exactly do you mean by that? What do you mean when you say it was circumstantial? Do you mean it was evidence that was no more than consistent with her guilt?

MR BYRNE: I mean it, your Honour, in two respects. One, there were, with one exception I will point out, no positive identifications. It was circumstantial evidence in the form that your Honour the Chief Justice mentioned to my learned friend this morning: similarities, description, percentage of being sure, 70 per cent, that that may be the person involved. It was that type of circumstantial evidence. But it was also circumstantial in another sense, in that so far as the first robbery is concerned, there was nothing identifying her with the robberies; it was identification of - and I use that, please note, "identification" consistently throughout as a term of art - it was identification of her as someone associated with the cars, so to that extent, it was circumstantial evidence of her involvement with the robberies in respect to which the cars were used.

In the second robbery it was somewhat different because a witness, Hill, was a hairdresser whose shop was nearby the branch of the National Bank that was robbed. He again sees her, or sees a person, in a car, that that car was directly, in that case, related to the robbery.

GLEESON CJ: So the witnesses, apart from Hill - the three witnesses, for example, who identified her at the Southport Courthouse, were not witnesses to the robberies.

MR BYRNE: That is Fyffe, Ogilvie and James.

GLEESON CJ: Yes.

MR BYRNE: That is so, your Honour.

GLEESON CJ: So there are sort of double layers of circumstantiality here, but their evidence was circumstantial, amongst other things, in the sense that even if they had positively identified her, they were not identifying her as a bank robber; they were identifying her as a person who was associated with some cars, which in turn were associated, or said to be associated with the bank robbery.

MR BYRNE: Quite correct, with respect, and one could have broken it up as a trial judge to say, if the evidence was of that nature, that is direct evidence of her involvement with the offence of unlawful use of a motor vehicle, but it is circumstantial evidence of her involvement with the armed robbery. But that would have been an unnecessary complication even if the evidence had gone that far, in our respectful submission.

Before moving to the details of the identification evidence, could I note two things. One, the Bunning v Cross or illegality point, that is, breach of the commissioner's guidelines so far as courthouse identification. That point was not, as far as we read the record, a point raised either before the trial judge or in the Court of Appeal. It was simply stated as my learned friend has stated it this morning: there was unfairness because of the identification process taking part at the courthouse, which is the point your Honour Justice Kirby identified this morning.

KIRBY J: But the expression in terms of the prejudice outweighing the utility, is that not how Bunning v Cross expresses it?

MR BYRNE: Assuming there is an illegality, then one uses that balancing exercise, your Honour, that is my understanding. But here, my point is a simple one, it never got that far because there was no illegality alleged. There was impropriety perhaps and lack of best practice, but no breach of commissioner's guidelines.

KIRBY J: Do we have the commissioner's guidelines?

MR BYRNE: My learned friend has set out the relevant section in his outline and they are not disputed. My learned friend tells me he has also supplied actual copies of that as well.

It is also relevant, before I come to the particular evidence, that the witnesses, Fyffe and James, do, as I read the evidence, purport to identify the male person associated with the stolen cars on the day of the first robbery as Renton. Photoboards are used and those two witnesses pick out the person, Renton. Coming to that aspect, can I go to my learned friend's outline, under his heading, "Ground 1, Exclusion of Identification Evidence". We take issue with the statement that is made there, namely that:

The prosecution called three witnesses ie Fyffe, Ogilvie and James who purported to positively identify the Appellant as being involved in the Biggera Waters robbery -

We take issue on two points. Firstly, as I have attempted to make good the submission, it was in respect to the cars, not the robbery itself, except by inference. Secondly, the positive identification, with one exception which I will point out, does not appear to be borne out by the evidence led from the witnesses. The witness, Fyffe, at record 264, about line 22 - and this is his best description. It is extracted in cross-examination of the witness. Question:

And I understand you to say that you're about 75 percent sure that it's her?-- That's right.

So we say it falls into the category, as it was properly and correctly identified by the trial judge, as "circumstantial evidence" rather than positively identifying that person. Similarly, with the witness, Ogilvie, record 186, about line 42 - - -

KIRBY J: Is this quite correct, because circumstantial evidence is usually evidence which, though not going directly to the point, put together with other circumstantial evidence tends to prove the point, whereas this is evidence which is directly tendered in relation to the point, the very point that is in issue? It is not really circumstantial. It is not some other thing that is coming tangentially at the point in issue. It is directed at the point in issue but is imperfect.

MR BYRNE: I take your Honour's point that that really could be a description of most kinds of circumstantial evidence. For example, the smoking gun in the hand is an example of circumstantial evidence which perhaps goes straight to the point, as is a statement such as this that the person is seen in association with a particular Laser motor vehicle, "I am 75 per cent sure that that is the appellant".

GLEESON CJ: If you took as a first step, the person was female.

MR BYRNE: Yes. In your Honour's example the person was between five foot and five foot six, she had dark hair.

HAYNE J: But these witnesses went further. They, to an extent, linked it to this appellant, did they not? Is the proposition underlying your contention one that really amounts to a qualification by the witness of the certainty with which the identification of the particular person who is concerned qualifies it as circumstantial and not direct evidence?

MR BYRNE: There is no doubt, your Honour, that there is a gradation of opinion evidence. It could at the beginning take what his Honour the Chief Justice said and say "This is female". At the other end, I suppose, it is, "That female was the appellant". In between those two points there are, of course, differing levels and I accept that - - -

HAYNE J: But where the witness links observation with the appellant, do you say a Domican warning is appropriate and necessary, even if the evidence is given in form, "Oh, look, I am pretty sure, 75 per cent sure, 90 per cent sure", whatever it may be?

MR BYRNE: Certainly, if it is in that characteristic, warnings are necessary and Domican warnings would be necessary.

HAYNE J: So for the witness who said - the first witness you took us to, that he, I think it was, was 75 per cent sure, do you say Domican warnings were necessary or not?

MR BYRNE: We say it was necessary to warn the jury in respect of the identification. Generally that was done by the trial judge. As to your Honour's direct point as to Domican, we say, yes, it is desirable that that be done and in the case here it was done in a fashion, as distinct from - - -

HAYNE J: "In a fashion" may be the operative word, Mr Byrne. I mean, his Honour the trial judge appears not to have related anything of the evidence to a series of disparate principles taken, it seems, from a general bench book about charging on identification. I thought that we had gone past that long since.

MR BYRNE: Can I respond this way, your Honour. It is a question of gradation. If it was no more than saying it was a female, then Domican would not apply. Certainly a full Domican direction is required if it purports to be a positive identification.

GLEESON CJ: But is a statement, "I am 75 per cent sure it was her" mean, "There are substantial similarities between the person I saw and the accused", or does it mean, "I think, on the balance of probabilities, it was the accused"?

MR BYRNE: Given a lay witness, I prefer the first proposition, your Honour, rather than the second.

HAYNE J: Even in that circumstance, why is it not necessary to draw to the attention of the jury that witnesses are mistaken, perfectly honestly?

MR BYRNE: Well, it is and that was done, your Honour. There were extensive directions given in respect to this identification evidence.

GLEESON CJ: At the moment I have difficulty understanding why evidence, "I am 75 per cent sure that was the accused or that was the same person", is not positive identification evidence. If this was a civil action arising out of the fact that the motor vehicle broke somebody's leg and the judge deciding the action said, "On the evidence, I am 75 per cent sure that it was the appellant who was the driver of the motor vehicle", that would carry a verdict.

MR BYRNE: But not within the criminal jurisdiction.

GLEESON CJ: I understand the standard of proof is different, but, once again, in terms of circumstantial evidence, you do not have to prove each circumstance beyond reasonable doubt; you only have to prove the guilt beyond reasonable doubt. So, why is the statement by a witness which means the same thing as "on the balance of probabilities, I believe that that was the accused", not an act of positive identification?

MR BYRNE: Your Honour, we would say the distinction, really, is this, that where there is that not a - to use the example of this Court's judgment in Pitkin v The Queen, it was not sufficient to carry the day where the identifying witness said, "That person", the person shown on the boards, as I recall, "looks like the person who did the particular act". Now, that would not be positive identification. Similarly - and we may be at cross-purposes and I apologise if I am at cross-purposes - but 75 per cent is not identification that could carry the day by itself. It is certainly relevant evidence and we would categorise it as relevant circumstantial evidence which is available for the jury's consideration, but it is in that sense we say it is not evidence of positive identification.

HAYNE J: One last point about it, Mr Byrne. It seems to me to follow then that if the cross-examiner of the identifying witness has some success in cross-examination, chips away the certainty of the identifier's evidence, we suddenly tip over from direct to circumstantial evidence on your analysis; is that right?

MR BYRNE: Again, so I am clear that I am answering your Honour's question, if a witness initially says that, "The person I saw coming out of the bank was X", and if the cross-examiner is sufficiently successful to have that witness concede that, "Well, I am 75 per cent certain that it is X", then that is no longer what we would describe as positive evidence of identification, but it is still admissible and relevant.

HAYNE J: Leave aside admissibility. I am focusing more on, at the moment, what the judge then does with it.

MR BYRNE: Yes. I am sorry, I got distracted. I will just try and find the page reference. The witnesses, Ogilvie and James, go on to speak in similar terms. There is material from them in which - and page 186 is perhaps a good example, about line 35 to 45, where in evidence in-chief she was asked about the person and said:

She was the woman that I'd seen on 27 May.

Question at line 42:

What is it that - about her that attracted your attention to her?-- . . . Just her height and her hair. She looked familiar to me, yeah.

So that is perhaps a compact example of the proposition your Honour Justice Hayne raised with me. She has qualified within 10 lines her own evidence, going from the degree of certainty to a degree of uncertainty. Similarly with the witness, James, and that is the voice identification and gait identification. He says at 235:

Well, the voice was very similar, you see.

At 221:

"She looks very familiar" -

and I point out immediately, as my learned friend made the point at 241, she said to the police officer that that she was "A hundred per cent" certain that that was the person. But there were those passages in her evidence. Before I leave that point, it really cannot be disputed, when looks at the summing up, that his Honour was clear that this was left not as evidence of positive identification, but as circumstantial evidence, and that may have complications which have been raised with me and I will try and deal with those in due course.

Moving quickly to the evidence of Hill who was the identification witness in respect to the second robbery, my learned friend's outline says:

the witness Hill to give evidence that the Appellant was one of three who was involved in the Paradise Point robbery.

I take that to be a typographical error of sorts because her evidence, effectively, is much weaker than that. At page 300, line 25, she said this:

I said that of all the people on the board -

that is, the photoboard -

the only people I thought it would - that I had - would fit the description of what I saw would be the people in pictures 6, 8 and 11.

She said that that was on the basis of what the "hair was like" and the "skin colour". At page 343, lines 1 to 5 - this was the tape which was done with her at the time - she said this:

I identified the persons depicted in photos 6, 8 and 11 as having the same type of hair and skin tone as a female person I saw sitting in a red Laser outside the National Australia Bank, Paradise Point, on 13/6/1996."

So, no suggestion there of positive identification and really, rather, with respect, weak circumstantial identification. There was a point raised in respect to her evidence this morning, I think by your Honour Justice Kirby. He was the witness who appeared to be confused as to skin tone, be it olive or pale. I simply refer the Court to the evidence at page 302, lines 20 to 50, where the witness gives his explanation for that confusion.

KIRBY J: Did he say that she had an olive complexion and he agreed that she was fair or was it vice versa?

MR BYRNE: Without going to it now, my recollection is that he equated olive to quite dark and, hence, when he gave the description of pale, he meant pale olive. As I say, that is the explanation given by the witness. When one looks at that evidence it is respectfully submitted that there was no error shown in failing to exclude it. It was relevant and admissible for the jury's consideration. It then comes to consider whether the trial judge's directions in respect to that evidence was sufficient. Again, if I can begin by going to the summing up. His Honour leaves no doubt, in our respectful submission, how the jury was to approach this evidence. At page 363, line 15, his Honour said this:

Ladies and gentlemen, it's not in dispute in this case that the Crown relies solely -

and I add emphasis there, if I may -

on what we call circumstantial evidence . . . Part of that circumstantial evidence is what - or is in this case is what we call identification evidence. That is, the attempts by the witnesses to try to identify the offenders or persons they've seen in the vicinity . . . Much of that evidence, I suppose we could say, is not very strong . . . it's purported identification of the accused persons -

and his Honour returns to that theme at page 368, line 45, where he again describes that evidence as being "circumstantial evidence" and part of the circumstantial case. To complete references on the topic, at page 376, line 36, his Honour said:

The Crown agrees that it relies solely -

again, my emphasis -

on circumstantial evidence.

So there, in our respectful submission, could be no dispute as to what his Honour told the jury and what use they could make of this evidence.

GLEESON CJ: But there is an ambiguity in the word "circumstantial", is there not, that has emerged in the course of argument? Of course the evidence was all circumstantial in the sense that nobody purported to have seen either accused robbing the bank.

MR BYRNE: Yes, your Honour.

GLEESON CJ: So, even if a witness had said, "I have known Brunetta Festa and her friend, Mr Renton, for years and I saw them in a white Laser", or whatever the car may have been, "around the corner from the bank robbery on this particular day", that would be circumstantial evidence.

MR BYRNE: That is the second layer that I referred to earlier, yes.

GLEESON CJ: Yes. But it would also, in proof of the circumstance, be direct evidence of identification.

MR BYRNE: It would be direct evidence that those persons were in the vicinity of the bank at the relevant time, yes.

GLEESON CJ: Yes, and all the weaknesses and dangers of direct identification evidence may need to be explained to the jury in connection with circumstantial evidence of that kind, may it not?

MR BYRNE: That is accepted. We do not shrink from the proposition that appropriate directions need to be given to the jury. Whether one categorises this evidence as positive identification or circumstantial evidence, the jury have to be properly instructed as to what use and how they use that evidence.

GLEESON CJ: And as to the risks associated with it.

MR BYRNE: Associated risks, indeed.

GLEESON CJ: In other words, you do not relieve yourself of the necessity of giving appropriate warnings about identification evidence just by describing the evidence as circumstantial.

MR BYRNE: We accept that. Before we come to the details of that, may we skip to our learned friend's outline under ground 2, "Trial Judge's directions re identification". I apologise again if there is confusion. I have been working on the initial document my learned friend supplied. It is on page 13 of that document. It is the third paragraph under the heading, "Ground 2, Trial Judge's directions re identification". He there sets out six points of it would seem criticism of the trial judge's directions in this case.

Our response to those can be shortly stated. In respect to (a), we would say the answer is nil; there was no evidence that could be regarded as direct identification of the appellant here. (b) "how the jury could use this evidence", our answer is as part of the circumstantial case, given appropriate warnings, as your Honour the Chief Justice has mentioned so far as it is identification evidence. (c) and (d), we would respectfully submit that his Honour did those things and we can take your Honours to the points. And (e) and (f), we say do not arise in the facts here because from the citations we have given before, his Honour was at pains to point out that this was to be used by the jury as circumstantial evidence, not direct evidence.

If there is any doubt that evidence of this type can be categorised as circumstantial evidence, our learned friend has been good enough to refer to the South Australian line of authority, Murphy v The Queen and Reg v Turner which illustrate that point as being given. His Honour did give warnings as to the identification evidence. Those warnings perhaps begin at page 363, at the bottom line there. His Honour tells the jury that they "must be very careful". He goes on over on page 364 to talk about time of "observation", that "people do make mistakes", that "a mistaken witness can also be an honest one". At line 46:

how long the witness had the person under observation; how far . . . the lighting . . . the length of time which elapsed -

At the top of page 365, "any material discrepancies in the description". I do not mean to take your Honours word for word through all of this, but his Honour does go on over the next page to point out and give warnings to the jury as to various general matters. Then at page 366 he deals specifically with the evidence of Mr James and gives what we would say was required there. It is a Domican direction in the sense that his Honour is specifically pointing out weaknesses in that witness' evidence. At the next page his Honour points out at about line 21:

I don't think any of them claim to be a hundred per cent positive in their identification -

He points out at line 45 that they:

may have worn disguises. That, of course, makes identification additionally difficult -

and he concludes his directions at about line 55 on the next page. So, our submission is that his Honour has dealt with identification at some length. He has, so far as the witness James, descended to particular detail because of the characteristics in that witness' evidence which was different from the other witnesses but, in a sense, he has given appropriate warnings, given the nature of the evidence.

HAYNE J: Did he, other than in respect of James, 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?

MR BYRNE: Not specifically, no, your Honour.

HAYNE J: That is Domican.

MR BYRNE: That is Domican. We accept that. It really comes down to a judgment of whether the evidence of this type required a full Domican direction in respect to each witness and each weakness or whether the directions were adequate. The Court of Appeal, appraised of that point, believed that they were in the circumstances of the case and the circumstances include, as we have attempted to make the point in our written outline, that this was quite a strong circumstantial case.

McHUGH J: But there is a passage in Domican to the effect that whatever the case, if evidence of identification plays any significant part in the Crown case, the warnings must be given. Surely their identification evidence played a significant part in this Crown case, in fact, it was almost essential to the Crown case against the appellant.

MR BYRNE: We take your Honour's first point. In respect to the second, with respect, it was not that clear. Take out of the equation that there were these degrees of certainty given by the witnesses. If it were simply said there was a female person of olive complexion of that height with the person identified as Renton, then that, in our submission, would have been sufficient to carry the day, given the other circumstances.

KIRBY J: I think I told you before, Mr Byrne, that I was reversed in Domican.

MR BYRNE: I understand that, your Honour.

KIRBY J: I took the view that the Crown case in Domican was a very strong Crown case, but the point that the Court made, which I accept is correct, is that we do not know how the jury reasons and they might have sort of wrapped it all up on the issue of identification. I think Domican has to be seen in its historical context. It was given at a time of the concerns about miscarriage of justice caused by identity evidence.

MR BYRNE: But that being so, your Honour, there was still the statement, which we have set out in paragraph 1.11, by the majority in Domican that said this:

Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to a legal error, will not constitute a miscarriage of justice.

I mention that only because the door is not irretrievably shut, as I read the judgments in Domican, where there is an error on the directions.

KIRBY J: It did put the barrier up a few notches.

MR BYRNE: Certainly, the pole has gone up a bit that the Crown and trial judges have to clear, your Honour. We accept that.

KIRBY J: And popular television - I mean, there was a program on the television last week about the mistakes that are made by perfectly honest people in identity evidence. So that is the reason for this rigour.

MR BYRNE: Yes, and accepting that as we do and must, it probably is appropriate to move to the two other grounds of appeal because they show circumstances which we would say connect the appellant inextricably with the offences that were committed. Those things are what has been called the tools of trade and also the association evidence between the appellant and the person Renton.

So far as the context of the tools of trade, just to take up questions that were asked of your Honours to my learned friend this afternoon, the application made by counsel for the appellant below at trial was recorded at page 53 of the transcript, which is not reproduced. If I might read it. It is in these terms:

The application is that the contents of the unit, all those items, the existence of those are not admissible against Ms Festa.

His counsel had before that listed items which included the receipts found in the unit in the name of White, the book on disguises, theatrical makeup, false hair and your Honours had the list of items before you, but the point simply is it was a blanket application to exclude all of that in the case of the appellant.

Now, the difficulty, with respect, with such a submission is that this Court has recognised that there are circumstances naturally where there will be mixed categories of items found when searches are carried out in respect to investigations. This was precisely such a case. It was not simply the weapons and the ammunition, but there were the other items, such as the instructions in respect to a scanner, a Realistic brand scanner, two scanners of that type being found, one at the scene of the second robbery and one in one of the cars used in the first robbery. There was an earpiece fitting the scanner at the scene of the second robbery found in the unit. Disguise instructions, wig stands and the cans and bottles bearing the appellant's fingerprints. All of those items, with respect, formed a group which the jury were entitled to have regard to.

The cases referred to against us, namely, Thompson and Wran, Driscoll v The Queen and Connolly are quite distinguishable. In Thompson and Wran - your Honours may recall it was a case of safe-cracking - the items found in possession of the appellants were items used to enter safes, whereas what happened in the two safes that were stolen is that they were blown open with explosives such that, really, the items found had no relation to the offences committed.

In Driscoll and Connolly the objection essentially taken by this Court and the Court of Criminal Appeal Queensland was that there was over and above relevant items, there was evidence led of an arsenal or armoury of weapons which could only go to propensity and not directly to the crimes in question.

McHUGH J: Driscoll's alleged answer was that they were tools of trade -Mr Morey - or something to that effect, was it not?

MR BYRNE: "I didn't use them to kill him", yes, something like that, your Honour.

HAYNE J: ......blank was all that was missing.

MR BYRNE: Unfortunately for Mr Driscoll the weapon he identified and had with him was very similar to the machine pistol which the police identified as the murder weapon. That is relevant in a sense here in that the weapons used by the robbers, whoever they may have been, the male and female, were an assault rifle and a shotgun in the first robbery, a shotgun seen, as I recall it, with the female in the second robbery. Those items are not found, but what are found are an assault rifle and a shotgun purchased subsequently.

HAYNE J: Can I understand the chain of reasoning which you say the jury might properly employ against this appellant in respect of some or all of these items. What are the steps that you say the jury could lawfully or properly take in their reasoning process?

MR BYRNE: It is difficult to answer that simply but I will attempt to break it up and if I am not answering, your Honour, please pull me up. I am sure you will. There was a series of robberies being carried out on the Gold Coast by a male and a female. There were cars used in association with those robberies, again, linked to a male and a female. There was, we would say, positive identification of that male as the person Renton and there was the evidence, touched on briefly, about the appellant's relationship with Renton at the relevant time, namely, she would be with him constantly, if I can use that as a neutral phrase at the moment.

So if Renton is the male involved in the series of armed robberies, using weapons of this type, the jury could, given the other evidence - and I am leaving aside the guns at this stage - using the evidence of the identification, the association, link the appellant with the person Renton as persons carrying out those offences.

HAYNE J: I understand that.

MR BYRNE: Now, supportive of that and relevant to the jury's consideration, we say, is that when the raid is carried out, weapons of the same type, albeit not the same weapons, are found in a unit to which both of them have access. The weapons are not hidden in cupboards. One of them is lying across a lounge. There is ammunition in there which is not capable of being used by either of the two recently acquired weapons but is consistent with being used by an assault weapon of another type such as was seen in the first robbery. Those weapons form - they are not by themselves, but they are part of what is described in the written outline as an "armed robber's kit", not just of weapons, but of scanners, of disguises, of wig stands, of gum remover and things with the appellant's fingerprints on.

HAYNE J: But at the moment all you have mentioned about her is she had access to a unit in which these items were found. Is that the central, the only, connection that is drawn?

MR BYRNE: No, in the sense, your Honour, that the jury was capable of realising that she was linked to Renton regarding the robberies independently of this.

HAYNE J: There is a lot of other evidence against her. Let us for the moment assume that to be so. Perhaps the question is wrong and you need to be attacking the question rather than attempting to answer it, but the question I have in mind is: how does the jury reason from, "Police found these items in this unit", to any conclusion about this appellant's involvement or guilt?

MR BYRNE: Because as the way the evidence emerges this is a unit used by both of them. It may be in the false name adopted by the male, but they are both linked to that unit.

KIRBY J: She did not live there overnight, did she? She had her own - she lived with her friend.

MR BYRNE: She lived at a different address, but she was surveilled as attending there both with the gold Mercedes and in the yellow Toyota which was purchased from proceeds of the robbery. There was a female swimming costume together with a child's costume found in a cupboard of the room, as I recall it, where the gun and things were found. There were witnesses who placed her as using the swimming pool, as attending regularly, and, as has been pointed out, she had the keys to the unit and attended that unit on the morning that the search warrant was executed.

KIRBY J: Did the evidence show that she had a child?

MR BYRNE: Yes.

McHUGH J: She fled with the child. She removed the child from school, did she not?

MR BYRNE: Yes, she did, your Honour.

KIRBY J: So you have to really hypothesise either it is her or it is some other probably female person who has access to the unit who was not seen during the surveillance - - -

MR BYRNE: And who had access to the gold Mercedes, which was linked by registration number to the person Cristef with whom the appellant lived.

HAYNE J: Again, does it come to she had access to a unit in which, after the particular offences, there are found some items acquired after the offences as well as other items, which at their lowest are capable of being used unlawfully, and the more likely analysis are very likely to be used in unlawful activities?

MR BYRNE: Yes. She is linked, we would say, as to those weapons as much as the male appellant because of her connection.

HAYNE J: How then does that fit with Pfenning? Is that a fit that has to be made or does it not have to be made?

MR BYRNE: We say is goes back further than Pfenning. This Court in Thompson and Wran v The Queen, Sir Garfield Barwick and Justice Menzies said this - and this is at 3.9 of the written outline:

Evidence that the prisoners had in their possession material which might have been used to do the break and enters . . . or was of the same character as what was used in the commission of those crimes, was admissible to identify them with the crimes.

That is at page 306. Here there is a series of armed robberies. After the second one, when surveillance is carried out, a raid is taken and here we have weapons of a type used in the earlier plus instruction manuals of items used in the earlier ones. They are a mixed group. On that reasoning we would submit that they were relevant to the jury's consideration as to the involvement of these persons in those crimes.

It would be quite a surprising result, leaving aside the guns, if the search warrant was executed and Realistic brand scanners, ammunition capable of being used in the earlier guns, wigs, disguises, everything else, that was held to be inadmissible because it does link them with the crimes. No application here was made to sever the exclusion of all of that evidence from the guns. We say that historically, but we say also that such an application should not have been successful even if it were made in the circumstances here because the evidence was sufficiently relevant and admissible to link them to the crimes. I do not know if that answers your Honour's question.

McHUGH J: The trial judge seemed to leave this evidence about the weapons as independent evidence against the present appellant. I can understand a case in which the Crown, in effect, said, "We are going to prove that Renton was the robber and we rely on all this material, including the possession of these guns, as showing a propensity on his part. It is all part of the circumstance. We are going to prove he robbed these banks with a woman and we are going to prove by other evidence that the woman must have been the present appellant".

Now, in that sense, although the evidence is admissible to prove his involvement, it is also evidence against her because of the way - that is not the way it was sought to be used in this case. It was put to the jury as independent evidence against her but only if she had knowledge of it.

MR BYRNE: It was a very, with respect, succinct and brief direction given by the trial judge on the point, but we say there was no error in it. If anything, it was in favour of the appellant because it said, "If she had no knowledge, just ignore it". It did not go the further step.

The final ground of appeal is in respect to the association between the two persons. We have attempted to give details of that in the written outline. Could I add to paragraph 4.4 of the written outline where a recounting is given of what she said to the police - there was a part missed there. She told the police that she used to go shopping with Renton every day; that he did not have a girlfriend, and in fact did not know anyone else down here - that presumably is a reference to the Gold Coast.

She also said that she was driving him around and he was stealing cars. That is at record 3.03, lines 11 to12, which are not reproduced in the record. Could we also point out that the passage criticised by our learned friend was, in context, his Honour simply stating what the Crown's argument may be given that the Crown did not have an address in respect to this appellant as she had become unrepresented by the time of addresses. That is made clear at 4.2 and the context is given.

GLEESON CJ: What was the evidence that established that she had keys to the apartment?

MR BYRNE: Keys were found on her when she and the person Renton were detained on 19 June. There was also, if I may use the term, circumstantial evidence going to that in that she was seen at the unit alone except for a child having access to the pool and the unit, so one could. perhaps, infer that she had keys to enable her to carry out those tasks. But the direct evidence came from the keys being in her possession on the 19th.

KIRBY J: Is it legitimate to argue and do you argue that if you took in isolation the issue of association or, perhaps, the presence of the tools of trade in rented flats, it is one thing, but when you take them all together and add the fingerprints on the spray can and the entirety of the evidence, that the composite picture, or the jig saw puzzle, as the judge described it, is a powerful circumstantial case against her.

MR BYRNE: With respect, it was an extremely powerful case, given that the period of time over which these offences were committed, given the linkage of the two of them together with cars, with the unit, her statements to police, it really was quite a strong case.

KIRBY J: Or at least that it is one that a jury might, if properly instructed, regard as a strong case.

MR BYRNE: Certainly, your Honour.

GLEESON CJ: How did the strength, I would have thought, coming from those keys - bearing in mind the evidence as to Renton's propensities and activities and what was actually in that unit - - -

KIRBY J: And the books he was reading.

MR BYRNE: And the items that they had, yes.

GLEESON CJ: - - - he would hardly be likely to give some keys to the unit to some innocent person who would have been amazed on entering the unit to find the sort of stuff that he had there.

MR BYRNE: Quite so.

HAYNE J: That might demonstrate that somebody is an offender in the second degree by reason of that very fact, but does it demonstrate - can it be taken to demonstrate offending as a principal?

MR BYRNE: In our submission, yes. If it were alone, then perhaps your Honour's point we could not respond to. But it is not alone; it is linked with all of the other evidence in which there was a male and a female who were carrying out these offences.

HAYNE J: Was the prosecution case at trial that the items found in the unit were items of one rather than another of the accused, or did the Crown not nail its colours to a particular mast about whose items these were?

MR BYRNE: I do not believe the Crown could or had the material to nail its colours to the mast.

HAYNE J: Yes, and they were simply items found in the unit.

MR BYRNE: That is my understanding, your Honour, yes.

KIRBY J: You basically have to have a theory that this was a case such as one sees sometimes in French movies of a person with an infatuation who knew of what Mr Renton was up to, saw the guns, saw all the paraphernalia and the wigs and so on, touched the items, but was herself not involved. She was there for a different purpose.

MR BYRNE: She was there innocently.

KIRBY J: Innocently for some different purpose - friendship, love, something - but not involved in the crimes.

GLEESON CJ: And there is a missing female companion of whom she knows nothing.

KIRBY J: That may not be impossible. That does happen.

MR BYRNE: Anything is possible, but she was also, as the evidence discloses, in possession of a large amount of cash. Items taken from the cars were found, as has been pointed out, in the Mercedes; as has not been pointed out, back in the unit at Kangaroo Place, which is where she resided with the person Cristef. Near a garage where she was said to be a frequent visitor there were stolen items from two of the cars found there, but there were direct linkages between her not just with the person Renton, but with the cars and the unit, and a female is linked with the robbery, who, according to Hill, at least matches her description on the photoboard.

CALLINAN J: Mr Byrne, that raises a question I was going to ask you. In every case she was linked with a motor car used in a robbery; is that right or wrong?

MR BYRNE: There were the two robberies. She was linked with - - -

CALLINAN J: Yes. Linked with a car used in each of those two robberies?

MR BYRNE: She was linked with two cars in respect to the first robbery and one car in respect to the second robbery.

CALLINAN J: So the answer is really yes, she was.

MR BYRNE: Yes.

CALLINAN J: So that she was linked with them. That evidence could have been given and then all the other evidence to which you have just referred, and even if the so-called identification evidence had not been given, there would still have been the circumstantial case against her, quite a strong circumstantial case.

MR BYRNE: Indeed, your Honour.

KIRBY J: Yes, but, Mr Byrne, does that not run into the very thing where I was ticked off and corrected in Domican, that in the privacy of the jury room, we do not know that the jury did not say, "Let's look first at the identity evidence and we will deal with the matter on the identity evidence", and they deal with it in that realm and they do not get to all the other questions.

CALLINAN J: I just want to ask you this - and it really bears to some extent upon what Justice Kirby just put to you. Inevitably somebody, once those witnesses were called, linked the motor cars or identified the motor cars and that they had seen the motor cars in circumstances associated generally with the two robberies, then inevitably somebody was going to say, "Well, can you recognise or did you recognise the woman in the car?". Is that not right?

MR BYRNE: It would be strange if that question was not asked, your Honour.

CALLINAN J: It would have been asked either by the Crown or by the defence inevitably, I would have thought, and the answer would have been elicited of the kind - answers of the kind that were, in fact, given. Is that not right?

MR BYRNE: That is my understanding, your Honour, if I am understanding your question correctly.

CALLINAN J: If you add to that the fact that everybody could reasonably anticipate that that was going to happen, then the police attempts to have those witnesses, those four witnesses, identify in some way or another the appellant in anticipation of these inevitable questions might bear a different complexion.

MR BYRNE: Well, to use an example, if the witnesses had been shown, as some of them were here, photoboards or a number of photographs from which they could not identify the appellant - - -

CALLINAN J: "But do the best you can. What can you tell us about this?", and if they say they cannot tell the police officers anything about the images on the photoboards, they say, "Well, look out for her and see if you see her around the court". In those circumstances, perhaps, what they did does bear a different complexion.

MR BYRNE: I accept that, your Honour.

CALLINAN J: Can I just ask you the same question as I asked Mr Kimmins. What is the significance of the so-called identification evidence in a case of this kind where it seems likely that a disguise was used?

MR BYRNE: His Honour gave directions, as I pointed out on the way through the summing up, that that may be a factor which could affect the identification.

CALLINAN J: As a general proposition in cases of this kind, do you advance any general proposition of what should or should not be said of identification evidence in such a case?

MR BYRNE: Certainly, it is a factor in respect to which a warning should be given in an appropriate case. To put it in context here, though, disguises were used in respect to the robberies. As I recall it, both participants wore balaclavas in respect to the first and there was a chicken mask or something used in respect to the second. The identifying witnesses saw, not the robberies, with the exception of Hill; they saw the cars and so that the - - -

GLEESON CJ: They were not driving the cars around with a chicken mask on.

MR BYRNE: Indeed, your Honour anticipates me. There was evidence that the female involved was wearing a wig, according to two hairdressers who happened to be two of the identifying persons, but certainly there were no disguises in the sense of masks or balaclavas at that time.

I did not fully answer your Honour Justice Callinan before you asked me about association with cars. There was also evidence that the gold Mercedes was associated with one of the robberies in the sense that items seemed to be removed from one of the stolen vehicles and placed in the gold Mercedes. So there was that linkage as well.

KIRBY J: Perhaps Justice Callinan's question may lead to a suggestion that the judge should, in those circumstances, say to the jury something to the effect, "Mistakes can happen, and serious mistakes can happen, causing miscarriage of justice and where a person deliberately sets out to disguise themselves in order to throw off the scent or to change the appearance, then there may be an even greater risk, because the variations of human appearance will be modified and, therefore, you have to be specially careful because the features that might have led to an accurate identification have been diminished and the features that can lead to an inaccurate identification have been increased".

MR BYRNE: That, with respect, seems quite correct and sensible. Those are our submissions.

GLEESON CJ: Thank you, Mr Byrne. Yes, Mr Kimmins.

MR KIMMINS: In relation to Justice Callinan's earlier questions, so far as the cars were concerned, the two cars - there was a white Laser and a blue Laser, and that was used in the first robbery at Biggera Waters - there was identification by the three witnesses at the Southport Courthouse of the appellant being the driver of one or both of those vehicles. The three witnesses who purported to identify her at that time were giving evidence that they observed her doing what she was doing with the vehicle at a time immediately after the robbery. So it was in the process of getting away from the bank that those identifications were made.

So far as the Paradise Point robbery, which is the second one in chronological order, the only evidence in relation to identification there of her in the vehicle was by Mr Hill. Mr Hill was the one who said that of the 12 photographs on the photoboard, three of them looked similar, and one of those was, in fact, a photograph of the appellant.

So far as the question of keys were concerned, Officer Durre, at record 184 indicated that on 19 June, when police intercepted the appellant with Renton at the appellant's premises, that he observed her take the keys out of her handbag. It was put to him that in an oaths acted statement he had said:

"Festa then found two keys on a round key ring in the lounge room."

So that seems to be the evidence in relation to her possession of keys. The important point is that was on 19 June, six days after the last robbery. If I can put into chronological order the various dates, 25 May 1996 was the Biggera Waters robbery; 13 June 1996 was the Paradise Point robbery; 17 June was the day that Mr Renton purchased the guns and ammunition from "The Bunker"; and 18 and 19 June were the two days that surveillance police officers observed her having anything to do with Mr Renton's unit.

My friend took the Court, so far as the tools of trade argument, to the decision of Thompson and Wran v The Queen. Could I refer the Court to page 316, at about line 55 on that page, where the Court said, or Chief Justice Barwick and Mr Justice Menzies:

In all cases, however, where such evidence is admitted, it is to identify an accused person with the crime charged against him, and evidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature, is, in the absence of some special connexion, inadmissible -

The final point I wish to touch upon is what my friend started with so far as the various witnesses on the identification. With Mr Fyffe, who was the man, Mr Byrne put to the Court, said at one stage he was 75 per cent sure about the identification of the applicant as being the female person, at record 255, between lines 10 and 15, he indicated as follows, "I recognised the female driver" from that day at Oleander Street, when asked as to how he knew her. This is the woman at the courthouse. Further down the page, he said:

If I seen her with a pair of sunglasses on I would have been a hundred per cent certain there and then that that was the female.

The final point is that, having regard to most of my learned friend's submissions so far as the four identification witness' evidence before this court, was to basically denigrate or downgrade their evidence, to say that it was virtually worthless. I finally draw the Court's attention, once again, to the trial judge's summing up where, at record 365, he indicated to the jury that - and I read some of it:

you may think is of poor quality and on its own may not take the Crown case much further. In other cases you may think it is comparatively strong, but that's entirely a matter for you.

I thank the Court.

KIRBY J: Is there anything that you want to say, that you have not already said, about, as it were, Mr Byrne's closing peroration, that when you look at all of the matrix of facts here, it is an extremely powerful circumstantial case against your client? You want to snip it up into tools of trade and guilt by association, but you would have to be terribly, terribly unlucky to have been the innocent person who wandered into a place with this heavy weaponry, books on robbing banks, disguises, and all the other things, and no other female in sight, and a good citizen who sees all this and does not run away but hangs in there - I mean, it is a very powerful circumstantial case.

I just put that to you because that is what is going in my mind and I think this is Mr Byrne's peroration and you are entitled to a little bit of a peroration, if you have one or if it is relevant. You might say, "Well, I stick to my little snippets and you have just to concentrate on them".

MR KIMMINS: My primary point is that what was found at the unit was what was at the unit as at 19 June. The last robbery was six days before. The only thing the Crown could actually positively prove that she had any connection with was the can of hair spray and the methylated spirits.

KIRBY J: Not quite, because they did prove that she was there in the flat and seeing all these weapons and not going off to the police and saying, "Look at this, there is this" - - -

MR KIMMINS: But that is the real problem, your Honour. The only evidence that was given at the trial was when the police marched through the door at midday on 19 June, they saw one weapon, which was the automatic rifle, which was on a lounge chair, and there were some bullets on a table. The pump-action shotgun was in a cupboard in one of the bedrooms and the sawn-off .22 rifle was wrapped up in cloth and put underneath a stairwell.

GLEESON CJ: As you would have.

KIRBY J: It is only the automatic weapon that is lying around.

MR KIMMINS: That is when the police went through the door.

CALLINAN J: But what about the $5 note she had? She had a whole lot of $5 notes and other currency, did she not?

MR KIMMINS: She had, yes, your Honour. At the highest, one might say - - -

CALLINAN J: She had a great deal more money than you would expect her to have. Was it proved that she had any means of employment or she worked or anything?

MR KIMMINS: I do not believe that there was any evidence one way or the other in relation to that.

CALLINAN J: Well, she had a great deal of money.

McHUGH J: But on her own view she was not an innocent. She knew he was stealing cars and she was driving him around while he was stealing cars.

MR KIMMINS: I accept that. They are factors which can be placed in front of the jury, but the problem is she was entitled to have a trial where admissible evidence was adduced against her and the - - -

KIRBY J: On the offence of which she was charged - that is your point.

MR KIMMINS: Yes, and she was entitled to have directions given by the trial judge that the jury should properly take into account various things. We would submit that her trial was flawed because of the admission of inadmissible evidence and because of the directions given by the trial judge or the non-directions given in relation to very important aspects. We cannot sit here and work out what was actually going through the jury's mind at the relevant time, as your Honour Justice Kirby indicated. It could well have been that the jury got out there and said, "Let us have a look at the identification evidence. Well, some people have purported to identify her. Well, that is sufficient".

McHUGH J: This case throws up to me some of the problems of the Mraz directions. I have been thinking for some time now that the formulation in Mraz about miscarriage of justice might have been understandable at the time, but in these days of long trials - here is a 17-day trial. I have to concede I am very concerned about the directions about identification evidence. It does not seem to me they complied with Domican and yet this is a very strong case all over.

If one could examine the transcript for one's own purposes, notwithstanding the omissions about identification directions, I would think that you could not come to the conclusion there was any miscarriage of justice in this particular case and that this woman was properly convicted. But Mraz would say, "Well, if they have been deprived of a chance, then you have to set aside their conviction". I think the time is coming when Mraz may have to be looked at, really.

MR KIMMINS: There is also a question in relation to the two robberies as such, the fact that one, in relation to the Paradise Point bank, was later in time. That was the one that she was obviously arrested on by the police on 19 June. They connected her, obviously, with that, purported to rely upon the fact of matters that were found at the unit.

GLEESON CJ: Do not spend too much time on the merits, Mr Kimmins. They are not the best part of your argument.

KIRBY J: I think you have had your peroration.

MR KIMMINS: Thank you very much.

GLEESON CJ: We will reserve our decision in this matter.

AT 4.05 PM THE MATTER WAS ADJOURNED