Pitkin v The Queen S193/1994 [1995] HCATrans 189 (2 June 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S193 of 1994

B e t w e e n -

KIRK PITKIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DEANE J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 JUNE 1995, AT 12.19 PM

Copyright in the High Court of Australia

MR S.J. ODGERS: If it please the Court, I appear for the applicant. (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR N.R. COWDERY, QC: May it please the Court, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

DEANE J: Mr Odgers.

MR ODGERS: Your Honours, there is really not much I can add to the written summary of argument. It is, with respect, a fairly simple straightforward point: is it open to a jury to convict on the evidence of the sort in this case where a so-called identification witness says in court, "Well, I picked out some photographs and I said, `That looks like the man who did it'.", and that is the sum total of the prosecution case.

DEANE J: Was there any other evidence of Miss Vella's picking of the photos?

MR ODGERS: A police officer essentially confirmed that she was asked to look through some books and she picked out three photos and - - -

DEANE J: Were the books in court?

MR ODGERS: I believe they were, yes.

DEANE J: I gather we have not got the photographs here?

MR ODGERS: That is so, your Honour.

DEANE J: Has the Crown got them?

MR COWDERY: No, we do not. your Honour.

MR ODGERS: But, with respect, your Honour - I may be jumping the gun - the Court of Criminal Appeal - - -

DEANE J: I am just trying to understand the - - -

MR ODGERS: Yes. The Court of Criminal Appeal thought that some significance could be attached to the fact that, for example, she picked out three different photographs of the accused but once she has picked out one it is hardly surprising that she finds two more which resemble the accused.

DEANE J: We start with what I would imagine is common ground and that is that your client looks like the person who committed the robbery.

MR ODGERS: That is right.

DEANE J: That being so, it is, on one approach, not surprising that the lady picked out three photos of a man who looks like the person who committed the robbery and said, "Well, that looks like the person who committed the robbery". Against you, as I understand the judgment of the Court of Criminal Appeal, is the proposition that in some context the statement, "Oh, that looks like him" means "That's him".

MR ODGERS: In some contexts it does but there was just simply no evidence to assist the jury in coming to that conclusion. She did not say what she meant by it and there was no other evidence which would assist the jury to determine it.

DEANE J: What was the evidence about your client's association with this shopping centre?

MR ODGERS: There is none.

DEANE J: There is none.

MR ODGERS: And he was only interviewed 10 months after the event and he said, "I don't know where I was on the day", so he could not assist in respect of that.

DEANE J: Presumably he was not a barrister with a diary.

MR ODGERS: Presumably. He was in fact told he had been identified and he said, "You've got the wrong person". That does not really take us any further. Essentially, I cannot say any more than that the words that the witness used were words of resemblance and to infer from them words of identity is a logical jump which, in some circumstances, can be drawn if there is evidence to assist making that jump, but there was none.

DEANE J: Against you it is put there is no question of general principle or no issue of principle in this case.

MR ODGERS: Yes. Well, I can only rely on what has been put on page 4 of the argument which are the reasons why special leave should be granted. I cannot say any more than is there. The fact of the matter is that the prosecution ran its case this way. They could have done all sorts of things to remedy it but they did not. To convict a man in those circumstances is essentially to say, "Well, you've got to prove that she's not picking you out and its not you who's being identified" and, in my submission, the consequences of this decision are really quite startling in terms of the implications for the burden of proof and how a criminal trial is to be run. I do not think I can say any more than I have said.

DEANE J: Thank you, Mr Odgers. Yes, Mr Cowdery.

MR COWDERY: Your Honours, again we rely on the submissions that have been made in the written summary of argument for the respondent.

The situation was that Miss Vella had had three sightings of the individual concerned within a period of about 20 minutes: the first sighting at a car; the second sighting entering the shopping centre; the third sighting leaving it having taken the bag.

DEANE J: There is no doubt she was in a position to identify.

MR COWDERY: Yes.

DEANE J: As I put to Mr Odgers, by now it is common ground that his client looks like the man who committed the crime. What more is there in the case?

MR COWDERY: There was a description given by the victim, Miss or Mrs Clarke, which was not detailed but broadly consistent with the description - - -

DEANE J: That was from the back.

MR COWDERY: Yes, or from partly side-on, I think, at one point. But it was only broadly consistent with the description given by Miss Vella.

DEANE J: Which means it confirms, in terms of the jury seeing the applicant, that the applicant looks like the man who committed the crime but we are led to ask what more was there by way of evidence against the applicant?

MR COWDERY: Only the circumstances of the identification by Miss Vella, and might I just remind your Honours that the situation was that there were a number of books of photographs. She picked out three different photographs as she went through the books.

DEANE J: But of the same man.

MR COWDERY: Which happened to be of the same man taken at different times and with different hairstyles.

DEANE J: But who looks like the man. But if it is the same man he is still going to look like the person who committed the crime and the evidence against him is that he looks like the person who committed the crime.

MR COWDERY: That is one interpretation, we would submit. The other interpretation is that they were simply the words that were chosen and used by Miss Vella in the process of making the identification. She must have been aware of the reason why she was there, what she was doing and that is the way she chose to express it, "This looks like the man I seen grab the lady's handbag".

DEANE J: Do we know what she was asked?

MR COWDERY: We do. There is not much, your Honour. If I could refer to the transcript of the trial. So far as that event is concerned, your Honours, in her evidence in-chief at page 28 on 5 April 1994, she said that she had been asked to come back to the police station; the constable gave her a folder of photos to look at; that they were in the same room. Question:

Did you indicate anything to him about those photos?---When I seen the photos I said, "This looks like the person that I had seen."

The book with the three photographs in it was then tendered and the trial judge asked:

You said to him "This looks like - - -"?---"The person that I seen take the lady's handbag."

Now, that is the evidence. She was not cross-examined on it, perhaps not surprisingly, but that is where the issue lay so far as the evidence was concerned.

TOOHEY J: In what circumstances in this sort of case is there a line-up held, Mr Cowdery?

MR COWDERY: My recollection of the evidence is that - I am sorry, your Honour, I may be confusing it with another matter.

TOOHEY J: I was asking more as a matter of practice but, if there is evidence relating to this particular case, perhaps we should know about it.

MR COWDERY: Yes. I am informed that there was no request made - - -

TOOHEY J: It may have been because of the lapse of time between the incident and the arrest.

MR COWDERY: Indeed, your Honour, that may well have been the case.

DEANE J: It was 10 months, yes.

MR COWDERY: Yes. He was spoken to - at page 42 of the application book there are some matters recited:

Ten months after the event the appellant was spoken to by the police. He denied any involvement. He was unable to say where he was on that day. At the trial no attempt was made at in court identification.

His Honour said there:

It appears, and significantly to me, that the three photographs selected by Ms Vella, of the person she was identifying -

which, of course, involves an interpretation of the words used, we accept -

were taken at different times, in different clothes and with different hairstyles.

Your Honours, the court below took the view that the words used were capable of being accepted by a jury, if the jury saw fit, as words of identification rather than of simply resemblance. It was an issue for the jury. The jury, it would seem, interpreted them that way, as words of identification.

DEANE J: Of course there is an added problem in this sort of case in that not only is there the ordinary problem of identification by photos, there is the added problem of the only evidence in this case in a context of the unavoidable prejudice involved in evidence being led that the police had three photos of this individual taken at different times. You can imagine what might be said in a jury room.

MR COWDERY: Yes, that is quite so, your Honour. Your Honours, the submissions we make, in short, are that the Court of Criminal Appeal was correct in deciding that the words were capable of being words of identification and that it was a matter for the jury as to whether or not it accepted them as such and that, in any event, no issue of general importance arises on this application.

DEANE J: Thank you, Mr Cowdery. Mr Odgers, what is the position of your client? Has he served his non-parole period?

MR ODGERS: He has served his minimum term, yes.

DEANE J: And has been released?

MR ODGERS: Yes, I believe that - - -

DEANE J: Or is not?

MR ODGERS: I will get instructions.

DEANE J: Let me reframe that. He is not serving the sentence imposed in respect of this particular offence?

MR ODGERS: There is no doubt about that. The minimum term has expired.

DEANE J: Sometimes they are still in on that sentence though.

MR ODGERS: I stand corrected, your Honours, I am sorry. Page 1 of the summary of argument. He was sentenced on 14 April 1994 with a minimum term of 15 months. So, of course, he is still serving his minimum time as we speak.

McHUGH J: It was 15 months with an additional term, was it not.

MR ODGERS: Yes, with an additional term of 9 months. So, the minimum term will expire on 14 July.

DEANE J: Yes, 14 July.

MR COWDERY: At page 51 of the application books, your Honours, the sentence details are set out.

MR ODGERS: I am sorry, it is 5 July 1994.

DEANE J: There will be a grant of special leave in this case. The question arises as to what procedure should be followed. Have you any suggestions, Mr Odgers?

MR ODGERS: I do not know whether this Court can grant bail, but my application would be for a grant of bail in the circumstances.

DEANE J: One possibility would be the Court has in mind, of course - rather I have in mind expense and the like. Would you, Mr Odgers, or you, Mr Cowdery, wish to expand on your argument on the appeal to what has been said in the application for leave?

MR ODGERS: I would not be.

MR COWDERY: I doubt very much whether there is anything further that can be said, your Honour.

DEANE J: Then would counsel - and I am not indicating it would be acceded to, but would counsel wish to make a joint application that the Court as presently constituted proceed forthwith to deal with the appeal?

MR ODGERS: I am happy to do that, your Honour.

MR COWDERY: Yes, your Honour.

DEANE J: You join in that application?

MR COWDERY: Yes, your Honour.

DEANE J: The Court will proceed to hear the appeal. Mr Odgers, is there anything further - - -

MR ODGERS: I have nothing further to add, your Honour.

MR COWDERY: I have one matter to add, on reflection, your Honour.

DEANE J: I hope it is not a killer.

MR COWDERY: In fact it might be a killer for me, on reflection. In the police officer's evidence in the trial at page 8 on 6 April 1994 he was being asked in cross-examination whether he had told Ms Vella to look through the books of photographs and he said, "Yes, that's correct." Question:

Suggested to say something to you if she recognised anyone in those folders?---Well, if she recognised someone to indicate to me, yes.

And you say that in respect of photographs 14E, 39B and 51C that's what she did?---That's right, yes.

That is the only additional piece of evidence, your Honour.

MR ODGERS: I would ask you to read the next line.

MR COWDERY: Next question:

And in respect of those photographs is this what she said "This looks like the person that I seen"?---It could have been something like that. I didn't record the conversation.

That is the only additional material to which we draw the Court's attention.

DEANE J: Mr Odgers, could you arrange for one full copy of the transcript of evidence to be lodged with the Court Registry, preferably today.

Both counsel are agreed that the Court has been acquainted with those aspects of the evidence that are directly in point, is that so?

MR ODGERS: Yes, your Honour.

MR COWDERY: Yes, your Honour.

DEANE J: Very well. The order of the Court is that the appeal is allowed, the convictions are quashed, the Court will publish its reasons in due course.

AT 12.41 PM THE MATTER WAS CONCLUDED