Recognition evidence: is a Domican warning required?


Judges are required to give a Domican warning to the jury (or to themselves in a trial by judge alone) in many trials where identification evidence is admitted as part of the prosecution case and its reliability is disputed. Domican warnings are given because courts have special knowledge that miscarriages of justice have occurred because of evidence from honest and convincing, but mistaken, witnesses who may incorrectly identify a person or their characteristics as matching the offender.

Domican warnings need to be given in any case involving a positive identification, and may need to be given in cases involving circumstantial resemblance identification evidence (where identification evidence forms a significant part of the proof of guilt).

But what about in cases where the evidence identifying an accused person is properly characterised as ‘recognition evidence’ rather than ‘identification evidence’? That is, evidence from ‘a witness who recognises an accused as the offender in circumstances where the accused was previously known to the witness or had previously been seen by the witness other than at or near the crime scene’ (see Mills v The State of Western Australia [2008] WASCA 219, [73] per Buss JA).

In ISN v The State of Western Australia (No 2) [2021] WASCA 112, the Court of Appeal considered whether recognition evidence required a Domican warning.

ISN v The State of Western Australia (No 2) [2021] WASCA 112:

In the District Court, the appellant was tried by jury and subsequently convicted of four sexual offences against a child under the age of 13 years (called ‘T’). At trial, the defence argued that T was mistaken in thinking that ISN was the person who abused her. T’s evidence identifying ISN was properly classed as recognition evidence because T had known ISN her entire life, in circumstances where ISN was a frequent visitor to her family home and often stayed over on weekends, when ISN and T’s father would drink alcohol.

On appeal, it was argued that the trial judge was obliged to, but did not, ‘give a comprehensive Domican warning’ (at [92]). The Court of Appeal first considered whether Domican warnings ordinarily need to be given in cases of recognition, before turning to the specific question of whether a Domican warning needed to be given in this case.

Do recognition cases ordinarily require a Domican warning? In short, the Court of Appeal concluded that Domican directions are not usually required for recognition evidence, but there are exceptions. As put by the Court of Appeal:

‘A Domican warning… is not mandated for cases involving recognition. This is because, generally speaking, recognition evidence is more reliable than a stranger’s evidence of identification. Nevertheless, ordinarily in cases involving recognition, a jury is reminded that mistakes in recognition, even of close relatives or friends, are sometimes made… However, there will be recognition cases which, having regard to the particular circumstances, involve just as much danger of mistaken identification as cases involving the identification of a stranger. In these cases, a Domican warning is required.’ (at [96]–[97])

Did T’s evidence require a Domican warning? Ultimately the Court of Appeal found that it may have been preferable for the trial judge to have given a more comprehensive and specific warning about the reliability of T’s evidence. However, having regard to the nature of the trial and the directions which were given, the trial judge did not err (at [103]).

The trial judge had given a Longman direction and provided general warnings about the fallibility of human memory and the possibility of mistaken recollection (at [101]). Further, there was no prospect that the jury would not have considered the possibility that T was mistaken in her recognition of ISN as the offender:

‘As the element of identity was the only element in issue in the case, it is inconceivable that the jury would not have had regard to the possibility that T was honestly mistaken in her evidence of recognition. The jury was made aware of the experience of judges and lawyers that mistakes can happen and that innocent people can be convicted as a result of mistaken recognition evidence.’ (at [100])

Accordingly, the ground of appeal was not successful. The appeal was ultimately dismissed (as the other grounds of appeal were also not made out).

The judgment:

The judgment was delivered last year (but I’ve only now gotten around to writing about it as I taught identification and recognition just last week in my Evidence law course). The judgment can be accessed here.

Ban v The State of Western Australia [2020] WASCA 91

In brief:
This appeal concerns a murder which has received much attention from the media in Western Australia. The background to this case is neatly summarised by Quinlan CJ and Mitchell JA:

‘Sometime between 26 June 2016 and 2 July 2016, Annabelle Chen (the deceased) was murdered in her bedroom in the house in which she resided in Mosman Park (the Mosman Park house).  Her body was found by fishermen in a suitcase in the Swan River on the morning of 2 July 2016.  The deceased was not identified until her daughter, Tiffany Yiting Wan (Ms Wan), reported the deceased as a missing person on 1 September 2016.

The appellant, who was the deceased’s former husband, and Ms Wan were subsequently charged with murdering the deceased.

At trial, both accused gave evidence and ran a ‘cut-throat’ defence.  Each alleged that the other had killed the deceased without his or her involvement.  At the conclusion of the trial, the jury found the appellant guilty of murder and Ms Wan guilty of being an accessory after the fact to murder.’

The appellant argued several grounds of appeal, including that the trial judge was obliged to, but did not, give directions which would obviate a perceptible risk that the jury may reason that if it acquitted one accused of unlawfully killing the deceased, it must convict the other accused for doing so. That is, the trial judge failed to adequately direct the jury that it was open to them to find both accused not guilty of the unlawful killing.

Ultimately Quinlan CJ and Mitchell JA (in a joint judgment) found that the ground was not established and dismissed the appeal. In dissent, Mazza JA would have allowed the appeal on this ground.

The majority summarised the appellant’s submission on this ground as follows:

‘The appellant complains that the trial judge essentially left the case to the jury as one of ‘whodunit’. The appellant submits that the irresistible suggestion from his Honour’s directions, when viewed as a whole, was that at least one of the two accused killed the deceased. The appellant says that the trial judge failed to adequately direct the jury that, if they were not satisfied of the guilt of either accused (when looking at the State’s evidence in the individual case against each), then they could find both not guilty of the unlawful killing of the deceased. The appellant submits that this was a failure in the summing-up that was not fair to him.’ ([314])

They continued to say that ‘The concern reflected in this ground of appeal is that the jury might… having concluded that Ms Wan was not guilty of murder, [have] reasoned that the appellant must therefore be found guilty. If there was a real and not remote possibility that the jury might reason in that way, a direction of the kind contemplated by this ground would have been required.’ ([320])

However, the majority found that when considered as a whole, the trial judge’s direction did instruct the jury that they could only convict the appellant of manslaughter or murder if the admissible evidence against him satisfied them, beyond reasonable doubt, that he had in fact unlawfully killed the deceased. Their Honours found that the trial judge did expressly direct the jury that they must acquit the appellant if they were not so satisfied, and that this was emphasised by the question trail document provided to the jury ([321]-[323]). Therefore, a reasonable jury following the directions and the question trail document would not have reasoned that they could not acquit both Ms Wan and Mr Ban ([324]).

In dissent, Mazza JA found that:

‘… [the trial judge did not tell the jury] that it was open to it to deliver verdicts of not guilty in respect of both accused. This may not have been apparent to the jury, particularly when the paramount factual issue for the jury to consider was framed as ‘whodunit?’ or ‘who did it?’. In the context of the present case, where there were only two suspects, at least one of whom unlawfully killed Ms Chen, the framing of the case in this way, to my mind, implied, or at least may reasonably have been understood as implying, that someone was guilty. It brings with it the perceptible risk of the jury reasoning, impermissibly, to guilt by a process of elimination that proceeds in this way: if we are not satisfied beyond reasonable doubt that one accused killed Ms Chen, it follows we must be satisfied beyond reasonable doubt that the other accused killed Ms Chen.’ ([383])

His Honour also noted that the trial judge’s expression of the issue as ‘whodunit’ gave rise to a perceptible risk that ‘the jury may have understood that it could impermissibly reason to guilt by weighing up which of the accused’s versions they preferred’ ([384]). Further, because of the ‘cut-throat’ defence cases and ‘the understandable desire to bring somebody to justice for the unlawful killing of Ms Chen’ there was a perceptible risk that a jury may think it inconsistent to acquit both accused ([385]).

The judgment:
The judgment was delivered on 15 June 2020. You can access it here. See especially paragraphs [294]-[326] and [351]-[389].

TBU v The Queen [2020] WASCA 76

In brief:
The appellant was convicted of importing tobacco products with the intention of defrauding the revenue, contrary to the Customs Act 1901 (Cth). The appellant was jointly tried with a co-accused (Mr Hussain) who was acquitted. The appellant argued several grounds of appeal, including that the trial judge erred by permitting Mr Hussain to give hearsay evidence which was prejudicial to the appellant’s case, and by failing to direct the jury about the limited purpose for which the evidence could be used. Ultimately the Court of Appeal refused leave to appeal on this ground but a majority allowed the appeal on another ground and accordingly ordered the conviction be set aside and a new trial take place.

Further Background & Reasons:
The relevant evidence was Mr Hussain’s response to questions in examination in chief relating to why his ABN was used for the transaction declaration. The co-accused said that ‘In this case, me, Danial and [the appellant] is involved. So Danial is not living in Australia, did not have any business number. [The appellant], he just clearly told Danial that he doesn’t want to involve his self in the – in this case. So he didn’t want his name, he didn’t want his ABN number’. In response to a follow-up question, he continued ‘And at that time I said, “okay. Maybe he don’t want so I can do.” But I don’t mind it because Danial told me it’s only naswar, not tobacco molasses, there’s nothing else.’

The trial judge allowed this evidence to be given after an objection by the appellant’s trial counsel, her Honour noting that she could provide the jury with a warning that they could only use the evidence to go to the co-accused’s knowledge and intent, not for its truth. The trial judge ultimately gave no such warning.

Mitchell JA (with whom Buss P and Mazza JA agreed on this ground) found that none of the appellant’s submissions in relation to the hearsay evidence had any merit.

First, it was not inadmissible hearsay. The out of court assertions were relevant for a purpose other than their truth: ‘Mr Hussain’s evidence as to his understanding tended to negate the inference, which might otherwise be drawn from the prosecution evidence, that he knew that tobacco products were being imported and that he intended to defraud the revenue.  The evidence was admissible for the purpose of establishing Mr Hussain’s understanding of the position when he provided his ABN to Seabridge.  The evidence was therefore relevant as going to Mr Hussain’s state of mind, and its use for that purpose did not infringe the hearsay rule’ ([162]).

Second, given that the trial judge could direct the jury about the permitted use of the evidence if required, ‘there was no basis for her Honour to have excluded the evidence on the ground that its probative value in the case against Mr Hussain was outweighed by its capacity to lead the jury to reason incorrectly to a conclusion as to the appellant’s guilt’ ([164]).

Third, though the trial judge did not ultimately provide the jury with any direction about the permissible use of the evidence, it was not required because of the way in which the evidence emerged and with an appreciation of the whole conduct of the trial ([172]). There was ‘no real risk that the jury would use Mr Hussain’s answer as evidence of what the appellant had said to Danial.  No-one suggested to them that this was the effect of the evidence, and the evidence was not given in those terms’ ([172]).

This case provides a good reminder that although the trial judge’s capacity to give directions may factor into decisions about the admission (or non-exclusion) of evidence, ultimately those directions may not be required when regard is later had to the entirety of the trial.

The judgment:
The judgment was delivered on 15 May 2020. You can access it here. See especially the paragraphs cited above.