Gordon v The Queen S178/1995 [1996] HCATrans 349 (9 September 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S178 of 1995

B e t w e e n -

JAMES ANDREW GORDON

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BRENNAN CJ

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 SEPTEMBER 1996, AT 11.09 AM

Copyright in the High Court of Australia

MR G. CORR: May it please the Court, I appear for the applicant. (instructed by B.R. Mills, Aboriginal Legal Services (New South Wales))

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

BRENNAN CJ: Yes, Mr Corr.

MR CORR: Yes, your Honours. The Court of Criminal Appeal found that it was fair that a person who appeared to be in their mid-forties should be identified by comparison to a number of people who appeared to be approximately 30. The rationale for this appears to be that the person was, in fact, approximately 30 and that he should be compared with those people he would expected to look like.

KIRBY J: Do we have the photos? It was conducted by photograph, was it not?

MR CORR: It was, indeed.

KIRBY J: Are they available to the Court?

MR KELEMAN: We have brought the video along and if the Court is minded to, we are happy to make it available to the Court. I do not know whether you have video facilities inside. It is a standard video.

KIRBY J: Somewhere in the bowels of the Court. Is it important for the applicant's case?

MR CORR: Well, it was accepted by the Court of Criminal Appeal in Justice Grove's argument at page 88 of the application book. In the third paragraph, he said:

They could be criticized if they asked for an identification to be made of the appellant where he, aged thirty one, was placed in a photographic line-up, as it were, with men of maturer years, say in the mid forties, which is, to my eye, the appearance that the appellant displays in the photograph.

BRENNAN CJ: What is the question of principle?

MR CORR: The question of principle is whether, when a person is placed in a line-up or a photographic identification of some sort, whether, if there has been some change in their features either by themselves or naturally occurring, they should be placed with the people they would be expected to look like or those people that they do, in fact, look like. If the logic of - - -

BRENNAN CJ: Is this a general question of legal principle or is it just a question of the way in which you fairly conduct a line-up or similar identification procedure?

MR CORR: Well, I think it goes to the general fairness of identification evidence generally because if the person is sufficiently distinguished from the other persons in the line-up or the photographic identification becomes that they are the only person who is there - - -

KIRBY J: On that point, the Court has recently, in Domican, given its elucidation of the principles and very strictly so that there would not seem to be much room for any more development of principle. The principles are there; identification evidence can result in miscarriages, it has to be conducted with great care and if it is not, it can lead to a miscarriage of the trial so that the Court has said what has to be said on that.

MR CORR: Yes.

KIRBY J: This is just an application of that, is it not?

MR CORR: I would say that it is a further elucidation of that, your Honour. In particular cases, given particularly now that under the new Evidence Act it has become virtually mandatory for a person to take part in a line-up or otherwise, the evidence of them not taking part in a line-up becomes available but it is quite important for this Court to say that the fairness that must be shown in these particular circumstances and that this fairness must be manifested in a line-up or photographic identification.

McHUGH J: What is the consequence of this proposition that you are putting forward? What happens? You simply say you want the conviction quashed. That is the order sought. You do not say what is to happen to the case. What is to happen to the case?

MR CORR: In this particular case I would submit that there would have been such tainting of the evidence of the persons who made the identification that it would be impossible for a fair trial to be held because they have identified this person.

McHUGH J: So, what does this mean: the evidence is not admissible?

MR CORR: Yes, I would say so, in any future trial. It would not be possible for Mr Gordon to get a fair trial in any future case, that he has been identified by the complainants in the circumstance which was completely prejudicial to him but any future identification they make is going to be tainted by that previous identification.

McHUGH J: So, notwithstanding the fact that the lights were on, the accused was in the house for perhaps over an hour and the identification takes place five days later - - -

KIRBY J: And very rapidly. There was an instantaneous response apparently.

McHUGH J: - - - by two people, the evidence would not be admissible?

MR CORR: Yes, because the persons who they were to be shown for comparative purposes were so different from the accused, from Mr Gordon. We would submit that his difference of age would be similar to a person, say, who had dyed their hair, that instead of it being placed with their new hair colour, being placed with their original hair colour, someone who had dyed their hair blond and they are the only blond person in the line-up of people with dark hair. It is a similar sort of logic or a post-operative transection.

McHUGH J: It seems to me a strange principle that as a matter of law a trial cannot be fair because the accused who is, in fact, 30, but looks like he may be 45, is put in a photographic line-up with other people who are and look 30 and it is said that is prejudicial.

MR CORR: Yes, because he is the only person who looks similar to the person who was described.

McHUGH J: So, on your case, it must depend upon the fact that the woman complainant had said that he looked middle-aged. If she had not said that, what would be your ground of objection then?

MR CORR: Again, that he did, in fact, stand out from the others. He was noticeably different. Even if she had not described him as middle-aged, that may well have been her perception of the person. Even though it is not annunciated, it is quite possibly still within her consciousness that that is what he looks like and if a person is significantly different from the other persons, I would submit, it is similar to just being shown one person and said, "Is this the person?" It is not a fair line-up, it is not a fair identification from photographs, it is just being shown one person and saying, "Is this it?"

It is similar to the dock identification: "Is this the person who did the crime?" It is not going to be someone else, it is just the person will naturally go to the person in the dock or, in this case, to the only person who looks anything like the person who was identified by the complainants, a person who is middle-aged. There is no possible way known, I would submit, that this could be described as having been a fair identification and that is my point, your Honours, and those are my submissions.

BRENNAN CJ: Yes, thank you very much, Mr Corr. However, we need not trouble you, Mr Keleman.

The decision of the Court of Criminal Appeal was correct and for that reason special leave will be refused.

AT 11.18 AM THE MATTER WAS CONCLUDED