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Gray v The State of WA [2010] WASCA 114
heard 17 May 2010; delivered 24 June 2010

This was an application for leave to appeal against a conviction of unlawful wounding and aggravated robbery.

[3] The complainant gave evidence as follows. Three men secured a violent entry through the front door of his home at about 6.00 pm on 21 July 2008. The three men, who were armed with bats and lumps of wood, were people who he had seen before. He identified them ... Two other people entered the house after the three identified by the complainant. The other two were wearing disguises.
[4] The co-accused were yelling and brandishing weapons. The complainant backed into the hallway moving towards the backdoor or the backroom. He received two gashes to his head, the first from a hit over the head with a baseball bat (ts 46) and the second was caused by the appellant throwing an ornament (a Balinese statue) which hit the complainant on the head (ts 45, 47, 73). The incident took around four or five minutes in total (ts 49).
[5] The complainant had seen (but not spoken to) the appellant and Harvey at a gathering at Robertson's house some three weeks prior to the home invasion ... the complainant referred to the appellant's haircut and a tattoo on his forearm of the word 'ANARCHY'. There was photographic evidence at trial of the appellant's appearance at the time of the offences. He had a distinctive 'mullet' haircut. The tattoo on his forearm is also very distinctive; it occupies the majority of the inside of the appellant's forearm.

The jury were convinced by the victim's evidence. He claimed that he had met the appellant before. The appellant claimed that the trial judge failed to adequately direct the jury on the dangers of convicting someone based on such evidence. Leave to appeal was denied: the trial judge's directions were found to be adequate.

It's important to bear in mind, and indeed, you're probably well aware of it, but common experience suggests a potential for unreliability of recognition evidence based on a single sighting of a person, particularly if that person was not well known to the witness providing the recognition evidence, because mistaken identity is a reality. And evidence of recognition based on personal impression, however bona fide the person forming the personal impression might be, can be unreliable. And it may be that unless that impression is supported by other facts, it's reliability might be doubtful. Such evidence is frequently given with confidence by respectable and honest witnesses who are nevertheless mistaken. Many of us have had the experience of going up to someone, in the street or a social occasion, thinking they it is someone other than it turns out to be. So there's therefore a special need for caution before accepting identification or recognition evidence ...
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You should not rely on these case notes for any purpose. They contain my views at the time they were written. They do not represent my employer's views, and may be outdated or differ from my current views.