Gothachalkenin v Phelps B23/1995 [1996] HCATrans 122 (15 March 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B23 of 1995

B e t w e e n -

SAUL GOTHACHALKENIN

Applicant

and

BRADLEY PHELPS

Respondent

Application for special leave to appeal

TOOHEY J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1996, AT 12.16 PM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC: If the Court pleases, I appear with MR S.J. HAMLYN-HARRIS, for the applicant. (instructed by J.A. Hodgins, Legal Aid Office, (Queensland))

MR M.J. BYRNE, QC: If the Court pleases, I appear with my learned friend, MS L.J. CLARE, for the Crown. (instructed by D. Field, Solicitor to the Director of Public Prosecutions (Queensland))

TOOHEY J: Thank you. Yes, Mr Fleming.

MR FLEMING: If the Court pleases, in this matter there remains, as a result of this case, in the Court of Appeal, a proposition that the rules of identification might be different for different classes of people. That is either an express proposition or an implied proposition, especially from the joint judgment of Justices Pincus and Dowsett. That was handed down in a case which, we would submit, further exacerbates the error, namely, the facts were so weak that there ought not to have been a conviction in the first place.

McHUGH J: Yes, but one of the problems in this case is that the rules of identification to which you refer to, are directed to jury cases and it is by no means obvious to me at least that they have any application whatsoever to a magistrate or a judge. No doubt, they have to be careful in acting on the evidence, but why should the trained judicial officer be required to take into account the sort of matters that are referred to in cases like Domican.

MR FLEMING: Your Honour, we accept those propositions, except that, here, there still seems to be a proposition in what the Court of Appeal said that it will be different for different classes of people, and it is that proposition that we want to contend for today. We are conscious of the continuing debate in relation to the difference between magistrates and juries, in matters such as this and the admissibility of evidence as distinct from the weight of evidence. However, the proposition which we say is in error is that there are different classes of people who can have different attitudes to identification.

TOOHEY J: Could you explain what you mean by that, Mr Fleming?

MR FLEMING: Yes. The facts in this case relate to - - -

TOOHEY J: I think we are familiar with the facts.

MR FLEMING: Thank you, your Honour. Mr Congoo was a security officer. He, in a sense, apprehended the assailant, as he thought, and brought him back, and was immediately identified by an elderly man. Now, that seemed to play some significance in the way in which the Court of Appeal handled it. Their Honours Justices Pincus and Dowsett said that they can see no criticism of that, despite the fact that if the person had been a police officer who was apprehending the assailant, the situation would have been very different, and it is that proposition which, we say, is in error.

Can I take your Honours to the judgments of Justices Pincus and Dowsett, especially at page 46. We would further submit that the analogies are quite inappropriate in this passage as well. Starting at line 12:

If a presumed offender is, as in the present case -

and the whole of that paragraph, with particular regard to lines 20 and 21.

KIRBY J: I am a little surprised to hear you embrace quite so enthusiastically Justice McHugh's point. It is true that the principles have been laid down in jury situations, but the danger of wrong identification is common to all humanity, and therefore all judicial officers, as well as jurors, have to ensure that they remind themselves of that danger, because so many cases of wrongful conviction have arisen out of wrongful identification, but what their Honours say in the passage you have criticised is really, in a sense, just common sense.

What is a person to do when another accuses an individual of having assaulted them? Just sit there and do nothing? I think what happened here was what used to happen in Australian society; somebody went off and got who he thought was the assailant and then the victim identified him. Now, so long as the decision maker appreciates the dangers of mistaken identity, what happened was, in a sense, a natural reaction to events, and is that not all that their Honours are saying there? Is not that all that is being said?

MR FLEMING: We would submit not. We would submit that they go one step unacceptably further and say - if I can pick up some of the language that your Honour has just used - what might have happened in Australian society has now been limited, especially in respect of police, but their Honours seem to be saying that, apart from police, what happened in Australian society is still an acceptable way of going about identification.

KIRBY J: What do you say, in practicality, should have happened in the situation?

MR FLEMING: Given the fact that a policeman was present at the site where the identification took place, there should have been much more care in the way in which the alleged assailant was introduced.

KIRBY J: That seems like a lawyer's test; these are just ordinary citizens who hear about an assault, rush off, get who they think is going to be the person - they do not have time to pause about these nice rules that we have devised for police identifications because of the special risks.

MR FLEMING: Your Honours, there was a policeman present, in fact, when the identification took place.

KIRBY J: That is true.

MR FLEMING: He was present in the office beside Mr Puckey when the alleged assailant was brought back to the back door and there should have been some intervention to ensure that that circumstance could not arise.

Your Honours, the case is entirely unsatisfactory for many different reasons, including the scarcity of information on the identification. The person was identified as being a black Aborigine with fuzzy hair, a beard and wearing light-coloured clothes. The evidence is quite clear that there were many Aboriginal people present within Cairns at that time and in that vicinity. Mr Congoo himself was an Aboriginal person. The ideas that were implanted in Mr Puckey's mind are of concern because Mr Congoo immediately said to him, "I know who it is". He went away and found that person and brought him immediately back. Mr Puckey was sitting beside the police officer when he came into the office where the identification subsequently took place and may have heard - and certainly if he had effective hearing he would have heard - the conversation between the staff there and the police officer to the effect that Mr Congoo had gone out to find the person who had assailed. That person was then brought back to behind a screen door, and Mr Puckey then identified that person through a screen door.

KIRBY J: Did not the magistrate direct his attention to these questions on pages 30 and 31 and say these objections to the standard that was observed in the identification go to weight rather than admissibility? He appears to have given consideration to the issue of weight and took into account the fact that your client declined to give any evidence - or omitted to give evidence.

MR FLEMING: Yes. However, we would submit that the magistrate did not in fact take into account many of the issues of identification. For example, he says at line 50 of page 30:

However, in this instance, the accused was presented to the complainant virtually within minutes of the attack.

There is no evidence whatsoever for that proposition by the magistrate.

KIRBY J: Is that not an inference that was reasonably open? It all happened in the mall.

MR FLEMING: No, with respect, your Honours. We are left entirely without any evidence as to the time frame in which this occurred. The security officer said that he saw the applicant here some 20 minutes before in another location. We do not know whether that was prior to the assault or after the assault. Mr Puckey is an elderly man - he is 83 - it took him some moments to recover from the assault; he waited for his wife to come back from shopping - we have no idea of he time frame there - he then went to make a report. We do not know how long it took because he discussed the matter with his wife before they went to make a report, and it was only after that that Mr Congoo went out to find the alleged assailant, who Mr Congoo had already said he knew from that rather vague description. We would submit that there is no clear evidence of, for example, the light where the identification took place. It was behind a screen door. There is no evidence of the precise clothes that he wore, whether they were long trousers, short trousers, whether he had shoes, but only that they were light-coloured clothes. There was no evidence of the age of the assailant. There was no evidence of the height or the build of the assailant and there was no evidence, as I said, of any time frame in which this identification took place. We would submit that the conviction, in any event, is unsafe.

Your Honours, the dangers in respect of identification of this nature have been explored, and we accept the propositions in both Davies v Cody and in Alexander that it will depend upon an analysis of all of the evidence. We do not see an inconsistency between the statement in Davies v Cody and Alexander as was possibly suggested in the joint judgment that I have referred to. Those dangers include the predisposition of somebody to identify. In the present case we would submit those predispositions have not been referred to by either the Magistrates Court or on appeal in the Court of Appeal. They include the term, "Come back here, you black bastard", after the assault occurred. They include Mr Congoo saying to Mr Puckey, "I know him". They include the applicant here being brought back in the presence of Mr Congoo, and they include an identification as he reached the back door and before there was even a clear sight of him through a flyscreen, that, "That is the man". We would submit, your Honours, that in those circumstances the conviction continues to be unsafe.

His Honour the President at page 38, at the end of his rather short reasons, said at line 15:

If a complaint, with a description of the offender, leads to the speedy apprehension in the immediate vicinity of a person meeting that description and the complainant observes those events, or sees the person apprehended in company with the person who apprehended him or her, the complainant's confirmation that the person apprehended is the offender does not give rise to an inherent risk of error.

The difficulty in this particular case was that there was no evidence. If I may break down those propositions, at line 16 there was no evidence of a speedy apprehension; there was no evidence that it was within the immediate vicinity. In fact, the evidence is unsatisfactory in respect of that. It seems that everybody in the courthouse knew the locations of things which were being spoken about, but nothing clearly appears on the record.

There is no evidence of that person meeting that description, with the greatest respect, for the reasons that we have already said, and there is also - certainly the complainant observed those events, but he then did, in fact, see the person apprehended in the company with the person who did the apprehending.

TOOHEY J: I must say, Mr Fleming, when you put the matter in that way, it seems to add up very much to a proposition that this Court should grant special leave to appeal in order simply to review the evidence, which has already been reviewed by the Court of Criminal Appeal.

MR FLEMING: We are very conscious of those propositions but we say that it supports our application to review the stance taken by the Court of Appeal because it shows that it was, in fact, a very weak case as well. We do not ask only for a review of those facts. We say that upon those facts and the fact that the court said that you can apply different rules to somebody other than a policeman, this Court ought to review.

KIRBY J: Courts can lay down rules for policemen because it will then be expected that policemen will observe them, but courts cannot lay down rules so easily for the spontaneous action of citizens.

MR FLEMING: We accept that proposition except that the convictions continue to be as unsafe if they are obtained by the same sort of evidence which was found unacceptable from policemen, and we would submit that that is what has happened here. If it is unacceptable - - -

KIRBY J: What has happened to the sentence? Has the sentence been served or has that been stayed?

MR FLEMING: Yes, your Honour.

KIRBY J: It has been stayed?

MR FLEMING: No, the sentence has been served.

KIRBY J: I see.

MR FLEMING: Your Honours, finally, the analogy used by Justices Pincus and Dowsett at lines 30 to 40, at page 46, we would submit has nothing to do with the facts of this particular case. Your Honours, for those reasons we submit that there ought to be special leave. Indeed, we may go so far as to say that if there was special leave it is a matter, because of the weakness of the Crown case, that it can be dealt by this particular Court. If the Court pleases.

TOOHEY J: Yes, thank you, Mr Fleming. We need not trouble you, Mr Byrne.

I note that an extension of time is sought in this matter. In the circumstances the appropriate order is to extend the time in which to make the application, but to refuse the application for special leave to appeal. I say that because having regard to the evidence against the applicant, this application gives rise to no question of general principle, nor is there any reason to conclude that the administration of justice in the particular case justifies a grant of special leave. The order will be as I have proposed.

AT 12.35 PM THE MATTER WAS CONCLUDED