Mundy v The King [2023] SASCA 59 (8 June 2023)
During a criminal trial, a court must carefully direct a jury as to the dangers in acting on the evidence of a witness to a crime who purports to identify someone as the person committing the crime. This is primarily because a court must recognise human fallibility in perception and recollection and the accompanying risk of an injustice than an incorrect identification may produce.
It is usually the case that the eye witness identification will relate to the facial features of a person accused, but not always.
In this case, the evidence was that the clothing worn by an offender captured on CCTV during the robbery of a service station was identical with the clothing worn by Mr Mundy (the appellant) two days prior to the robbery being carried out.
The appellant was found guilty of aggravated robbery by a jury. It had been alleged that he had robbed an On the Run service station by menacing an employee with a pair of scissors while disguising his appearance with a t-shirt wrapped around his face. In the course of the robbery, the offender had stabbed the female employee concerned in the back of her right hand.
The issue at trial was the identity of the robber. A police officer had viewed CCTV footage of the robbery and gave evidence that the clothing of the offender was identical to that worn by the appellant when he had spoken to him two days earlier. In addition, the Crown case relied on a fingerprint impression on the service station countertop which matched that of the appellant and evidence from the victim of the robbery as to the physical features of the person who robbed her.
A central ground of appeal was that the trial judge did not direct the jury on the dangers of identification evidence. The Court of Appeal upheld that ground on the basis that in the circumstances the identification of the clothing worn by the offender depicted in CCTV being identical (as opposed to merely similar) with clothing worn by the appellant some two days earlier was to be characterised as 'identification evidence' even though it did not purport to amount to a direct facial identification of the appellant.
In those circumstances, the court found that the trial judge was obliged to tell the jury of the dangers of identification evidence, in accordance with the High Court case of Domican, but failed to do so. The trial judge had assumed that the evidence was evidence of 'similarity' because it did not amount to a positive facial identification and because of that, a warning was not required. The Court of Appeal found that this was an error.
In the absence of the 'identification' evidence, the fingerprint was the only evidence which might link the appellant with the crime but, the appellant argued the prosecution could not prove beyond a reasonable doubt that it had not been deposited by the appellant on another occasion when he attended the service station to make a purchase.
The Court of Appeal decided that the evidence of identification should be given little, if any, weight. The Crown case had relied on the combination of the identification evidence and the fingerprint evidence to prove its case. It was common ground that without both, the Crown could not prove its case beyond a reasonable doubt because there would be a reasonable possibility that the appellant was not the offender. If the identification evidence was entitled to little, if any weight, then the verdict of guilty as found by the jury must be set aside.
The Court of Appeal upheld the appeal, set the appellant's conviction aside and entered a verdict of acquittal in its place.