Irving v The Queen B19/1996 [1997] HCATrans 405 (8 December 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B19 of 1996

B e t w e e n -

TERRY IRVING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 8 DECEMBER 1997, AT 10.32 AM

Copyright in the High Court of Australia

MR R.W. GRIFFITH: Your Honours, in this matter I appear with MR V.K. COPLEY, QC for the applicant. (instructed by Arthur Browne & Associates)

MR M.J. BYRNE, QC: I appear with my learned friend, MRS L.J. CLARE, for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

MR GRIFFITH: Your Honours, the applicant in this matter seeks an extension of time within which to make application for special leave. He asks that special leave be granted, that his appeal be allowed and he asks that the verdict be quashed; in the alternative, that this matter be remitted to the Court of Appeal for consideration of the evidence that he sought to adduce before that court; in the alternative to that, that a new trial be ordered.

In our submission, your Honours, the special leave point is in two parts, as follows: first, when evidence of identification of the accused as the offender is in issue, should the Crown ensure that the evidence of original out of court identifications is properly adduced in evidence before the jury, and secondly, is the failure to call such evidence a serious irregularity constituting a miscarriage of justice in this case.

The applicant was convicted of armed robbery in the District Court at Cairns on 8 December 1993. Six eyewitnesses were shown photo boards containing 12 photographs.

BRENNAN CJ: You can take it that we have read the papers that have been laid before us, Mr Griffith.

MR GRIFFITH: Thank you, your Honour. Your Honour, where it is factually relevant the identification processes were videotaped and transcripts were produced. Neither of those matters were placed before the court. Your Honours, Detective Pfingst, who was the arresting officer, was listed as one of the witnesses to be called at the outset of the trial. She was not called. In our submission, and the Crown now accepts this, an explanation was given for her not being called which was false. Your Honours, in our submission, that explanation contained an inference that Detective Pfingst would be unavailable for some period of time. In our submission, both the District Court and the Court of Appeal were misled by that explanation.

TOOHEY J: In what sense are you using the term "false", Mr Griffith? Simply as inaccurate or do you imply something more than that?

MR GRIFFITH: No, your Honour, we are not suggesting or seeking to rely on any inappropriate behaviour by the Crown Prosecutor. Simply, that it was wrong in that it was put to the court that she was having an operation that day when, in fact, she was not. The fact that she would have been available to give evidence a short time later is borne out in the transcript by the fact that she was present in court at 9.15 am the next morning. That is the only respect in which we seek to rely on that.

BRENNAN CJ: Mr Griffiths, one of the problems in this case which seems to turn upon the way in which this case was conducted, both on the part of the prosecution and the defence, is that the evidence relating to the way in which the case was conducted emerges by affidavit which was not before the Court of Criminal Appeal. Now, as you know, this Court is a court of appeal only. How do we cope with problems of the inadequacy of representation or error in the conduct of the prosecution when that evidence emerges only after the Court of Appeal has dealt with it?

MR GRIFFITH: Naturally, your Honour, we are clearly not seeking to adduce evidence in this Court. The thrust of our submission is that the applicant sought to bring that evidence before the Court of Appeal and that the Court of Appeal were in error in that they did not sufficiently or at all consider the nature of the new evidence which the applicant sought to adduce before them. In that respect, in our submission, it is proper that your Honours have regard to the evidence he sought to adduce in order to decide whether the Court of Appeal, with respect, fell into error by not considering it, fully , or at all.

BRENNAN CJ: If that is the way you put it we need to identify what evidence it was that the applicant sought to adduce before the Court of Appeal.

MR GRIFFITH: Thank you, your Honour. Your Honour, before the Court of Appeal the applicant sought - in his oral submissions he submitted that that court should admit the transcripts of the identification procedures and, further, that Detective Pfingst be called in that court. That is found in the application book at page 44, lines 29 to 31, and at page 47, lines 35 to 36, respectively.

BRENNAN CJ: What about the allegation at page 47, line 52, which does not seem to have been developed, that he did not receive "a fair trial"? Has that got anything to do with his representation?

MR GRIFFITH: Your Honour, no. The fact that the allegation that he did not receive a fair trial, in our submission, relates to the fact that the evidence of what transpired when the out-of-court identifications took place was not placed before the jury and those matters should have been placed before the jury and should have been led by the prosecution.

TOOHEY J: Could I just take you back, Mr Griffith, to the way in which the position of Detective Pfingst was aired before the Court of Criminal Appeal? It was a fact that she had given evidence at the committal proceedings and it was a fact that she had not been called at trial.

MR GRIFFITH: Yes, your Honour.

TOOHEY J: During the trial itself, was anything made on behalf of the present applicant as to the fact that she had not been called?

MR GRIFFITH: No, your Honour, it was not but, in our submission, by that stage it was too late. If I can rely on these factors: the incorrect nature of the explanation; the fact that on our reading of the transcript there was no mention before the District Court of the fact that she would not be called until the evidence of Detective Sturgess, who was the corroborating officer, who was the last police office to be called; and the nature of Detective Pfingst's testimony is that there are certain matters which only she could properly have adduced.

Your Honours, we must concede that the conduct of the applicant's defence in the trial could have been done in a different way, certainly with respect to the fact that questions were not asked in cross-examination about what occurred out of court. It is difficult to see any forensic advantage that could have been gained by failing to do that, and as a result it is difficult to categorise that as a conscious tactical decision on the part of learned defence counsel. In any event, in our submission, any weaknesses in the way the matter was conducted by learned defence counsel are not the point.

With respect, in our submission, the point is the nature of this evidence is such that it should have been led by the Crown, bearing in mind the fact that this was identification evidence of a photo board. These were identifications that were conducted during the evidentiary stages of the procedure, bearing in mind the risks identified by this Court in doing that, and bearing in mind the anomaly with respect to the absence of Detective Pfingst and the inaccurate explanation for her failure to give evidence. Bearing in mind those matters, it is not, in our respectful submission, fatal to the application to say that learned defence counsel could perhaps have conducted the trial in a different way. These were matters that should have been led by the Crown. If I can refer you to some authorities on - - -

TOOHEY J: Sorry, before you get into the area of authorities, and following on from something the Chief Justice put to you about the extent to which this Court might be drawn into questions of evidence that had not been explored before the Court of Appeal - and in a sense the matter came to the Court of Appeal on the accepted footing that a detective who in the ordinary circumstances would have been an expected witness was not called, what is the complaint that you make about the way in which the Court of Appeal dealt with that situation? I mean, it may be, for instance, that on one approach that it would be unnecessary for this Court to consider, or be asked to consider, questions of evidence that were not before the Court of Appeal, and it may be that a sufficiently arguable case can be made out that the court approached the matter on the material before it on the wrong footing. I do not know quite how you are putting the matter.

MR GRIFFITH: Your Honour, in our submission, once an examination of the evidence that should have been before the court is made, it is clear that the differences are so remarkable that, with respect, the conclusion is inescapable, that had they been before the jury the verdict would have been different. Those matters that the applicant sought to bring to the attention of the Court of Appeal, however, given that he was unrepresented he was not particularly successful in doing that, in our submission, had the Court of Appeal examined particularly the transcripts of what occurred when the identifications were made, they would have reached a different conclusion with respect to the safety of the verdict.

In our submission, they did not do that, and that much is clear from their Honours' judgment. It would appear that their Honours understood the applicant's complaint to be primarily that Detective Pfingst had been leading the witnesses in their identification. Examination of those transcripts indicates that that was not the problem. In our submission, they should have considered the matter in order to decide whether they should receive it or not. Our complaint about the way that was done is that the Court of Appeal did not consider the material before deciding whether it was properly receivable by them or not, and, with respect, in order for this Court to reach a finding as to whether the Court of Appeal fell into error in doing that, your Honours could properly have reference to the material which the applicant sought to adduce.

Perhaps if I could mention, in terms of Mickelberg's Case, this Court, in that matter, was asked to receive fresh evidence and decided that it could not but, in the process of doing so, closely examined the evidence which was sought to be adduced in this Court. In our submission, your Honours, a fortiori, the Court of Appeal in this matter which had the power to receive that evidence could have and should have examined the material before deciding, rather than simply ask an unrepresented applicant to give his submissions as to what the relevance of it was. I do not know if that answers your Honour's question?

TOOHEY J: Yes, thank you.

MR GRIFFITH: Your Honours, in our submission, the failure to have that evidence of the out-of-court identifications placed before the jury resulted in a miscarriage of justice. Failure to call Detective Pfingst, in our submission, deprived the applicant of the right to test the reliability of the identification evidence. We would refer your Honours to Whitehorn's Case, Justice Murphy at 661 point 7 and Justice Deane at 664 point 2 commencing with the words "On occasion however". Again at 664 point 5; at 664 point 7 with respect to the obligation to call or make available all witnesses who testified at the committal. At page 664 point 9 with respect to the obligation to notify the accused a reasonable time before the commencement of the trial if such a witness is not to be called. At page 666 point 1 and the conclusion he reaches at 669 point 3 to 669 point 5.

In our submission, your Honours, the applicant was denied, without a satisfactory explanation or, in this case, an incorrect explanation, the opportunity of testing by cross-examination of a person who the Crown was, prima facie, required to call the reliability of the identification evidence.

HAYNE J: What kind of attack do you say could have been mounted on the identification evidence if Detective Pfingst had been called?

MR GRIFFITH: Your Honour, the basis for the attack on the identification evidence is that four witnesses we claimed to identify the applicant in evidence in court, when they made their actual identifications out of court, did not identify him. Similarly, five witnesses in court who claimed to identify the shirt, on examination of the out-of-court identifications indicates, in our submission, that none of those persons identified the shirt.

Detective Pfingst was a professional trained witness. It would reasonably be expected that her evidence would be more reliable than the evidence of lay witnesses. In an evidentiary sense, she was the author of the documents comprised by the video tapes and those documents, if I can use that term, would have been most properly tendered through her.

Your Honour, it must be conceded that these matters, perhaps, could have been better explored in cross-examination of the witnesses but, bearing in mind, your Honour, in our contention the fact that Detective Pfingst was not to be called was not notified until very late in the trial. It may well be that a decision had been made to cross-examine her with respect to what was said out of court to make up for any inadequacies in cross-examination of the witnesses.

BRENNAN CJ: Mr Griffith, the Court has decided to extend your time by another five minutes if you wish to take it.

MR GRIFFITH: Thank you, your Honours. Your Honours, in our submission, the evidence which the applicant sought to adduce before the Court of Appeal was admissible, relevant and necessary in the interests of a fair trial. Its admissibility is established by Alexander's Case. With respect to its relevance, we would refer your Honours to Pitkin where the eyewitness selected three photographs with the comment, "This looks like the person." The Court stated at page 614 in the left-hand column at letter B that:

Obviously, the fact that an accused person "looks like" a person who in fact committed a crime is, of itself, insufficient to sustain a conviction of that accused of that crime.

We further refer your Honours to the right hand column of the same page, letters F to G, where the Court concluded that identification by photo board needs to be "clear and unambiguous". At page 615F in the left-hand column where the Court stated that:

ordinary considerations of fairness dictate that any such evidence be subjected to careful scrutiny before it is accepted as constituting evidence of positive identification.

Your Honours, in our submission, such scrutiny is not possible where the arresting officer who conducted the identification procedures is not called by the Crown and nor is any other evidence illuminating what transpired at the time the identifications were actually made.

The relevance of the evidence that the applicant sought to adduce and the effect its absence had on the trial, your Honours, is borne out, in our submission, by the learned trial judge's comments to the jury in summing up, in the application book, at page 10, lines 30 to 34, lines 40 to 44, and at page 13, lines 42 to 46, where he said:

As I said, you may take into account that four of them, independent of each other, all chose number 7, the accused, as the offender.

In our respectful submission, your Honours, his Honour would not have been able to make observations of that nature to the jury, on three separate occasions, if this evidence had been adduced. Similarly, his observations - - -

BRENNAN CJ: Was there any evidence given before the jury about the bank video camera had not worked?

MR GRIFFITH: No, your Honour, there was no evidence or explanation as to why the bank video camera had not worked. On our reading of the transcript, it was simply not mentioned.

BRENNAN CJ: That is something that does not arise directly on your argument.

MR GRIFFITH: No, your Honour.

BRENNAN CJ: But according to what the police are said to have told the solicitors on, I think it was 7 or 8 December, the bank video camera had malfunctioned and there was nothing to see.

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: Yet, there was a statement by Cindy Parker, received by the solicitors on 7 December, which said that the police had shown her a photo taken by the bank video camera.

MR GRIFFITH: Yes.

BRENNAN CJ: But Ms Legrande said that she had no reason to doubt the police statement. Is there any explanation of that?

MR GRIFFITH: There is no explanation of that, your Honour. The fact that we have not directed submissions to it is probably - the reason for that is that that is a matter that we would have thought more properly brought up on the hearing of a substantive appeal rather than in relation to the special leave point. Your Honour is correct; there was no explanation for that inconsistency.

BRENNAN CJ: Nor any explanation for counsel declining to continue with the brief the night before?

MR GRIFFITH: No, there is no explanation for that either.

BRENNAN CJ: Nor any explanation as to why the transcripts were not in the possession of counsel before the commencement of the trial, that is the photo board - - -

MR GRIFFITH: No, your Honour.

BRENNAN CJ: Photo board transcripts.

MR GRIFFITH: Yes. Your Honour, those transcripts were received and stamped as received by the applicant's solicitors on the morning of the trial but would appear did not make it to court, and, in our submission, were passed across the Bar table.

HAYNE J: Sorry, what did you say?

MR GRIFFITH: The transcripts were stamped as having been received by the applicant's solicitors on the morning of the trial, that is 8 December 1993. It would appear, from the applicant's affidavit of 2 April, that that document did not make it to court. Relying, once again, I think, paragraph 34 of his affidavit, the documents were passed across the Bar table to defence counsel after the jury had been empanelled. In our submission, your Honour, that is not a - given the identified risks of this form of identification, particularly the risks involved and the fact that an accused person will not be present, in our submission, that is not a sufficient safeguard to prevent difficulties of the nature of Pitkin occurring. Is that time, your Honours, or might I proceed?

BRENNAN CJ: No, that is your warning time.

MR GRIFFITH: Thank you. Your Honours, in our submission, it is not satisfactory or sufficient to say that these were issues which could have been explained and more effectively explained in cross-examination. This is an inherently unreliable form of identification which police officers persist in using during evidentiary stages of their investigation - and if I might add, in parenthesis, by the time these identification procedures were made, the applicant had been identified via the number plate of the car, despite consistent advice to the contrary by this Court.

With regard to the risks, might I refer your Honours to Alexander, Chief Justice Gibbs at 400 point 6, at 400 point 9, particularly his Honour's comments on observing whether a witness was convincing and making an identification, Justice Stephen at 409 point 4, Justice Mason at 430 point 7, Justice Murphy at 436 point 4, and also Pitkin's Case per the Court at 615C in the left-hand column.

Your Honours, in our submission, the risk identified in those passage just referred to is precisely what went awry in this matter. Because of the anomalous manner in which the prosecution case was presented, what few safeguards could have been available failed. In those factual circumstances, your Honours, in our submission, it is unsatisfactory for the Crown to respond by submitting that in such essential and crucial area of evidence should be brought out by the defence, considering also that the applicant would have run the risk of losing his right of last reply in order to have done so. Your Honours, in - - -

BRENNAN CJ: I am afraid your time has expired, Mr Griffith.

MR GRIFFITH: Thank you, your Honour.

BRENNAN CJ: Mr Byrne.

MR BYRNE: If the Court pleases. Could we say, just to put the matter in context, the video tapes of the identification, it would seem from the material, at least from our reading of the material, that the defence must have been on alert from the word go that such tapes were in existence. They were mentioned in the statements of witnesses, particularly Detective Pfingst, and we cannot, with respect, ascertain from the transcript or from other material when precisely transcripts were in the hands of the defence team. It seems clear, however, that cross-examination on such transcripts were directed to most of the identifying witnesses.

BRENNAN CJ: Not the first three witnesses.

MR BYRNE: That is so, certainly not, but the first witness was recalled after cross-examination had been put to other identifying witnesses and no cross-examination on that point took place at that time but, yes, we take your Honour's point.

What seems to have occurred in the Court of Appeal is that this material was treated as fresh evidence. That is apparent from page 53 of the application book where, in the first paragraph of the judgment of the court, his Honour Justice McPherson stated that the applicant "sought to adduce fresh evidence". That is at line 9. That evidence his Honour identifies as being the videos of the photo board identification.

Clearly,and unfortunately, in our submission, it was not fresh evidence as that phrase is used. It was evidence which was available at trial. That, in our respectful submission, seems to be why the Court of Appeal declined to enter into an examination of that material.

BRENNAN CJ: But if you look at the last paragraph on that page, Mr Byrne, Justice McPherson says that he has:

reached the conclusion that none of the matters -

that is including the fresh evidence -

would justify this Court.....to permit the adduction of any of the evidence sought.

And that is to permit the adduction of evidence which ought to have been forthcoming from a prosecution witness.

MR BYRNE: Yes, we accept that. It simply does not appear to have been argued in that way before the Court of Appeal.

BRENNAN CJ: How is it supportable?

MR BYRNE: We have a lot of difficulty, with respect, contending that what occurred in Cairns was a fair trial. It is apparent from - - -

BRENNAN CJ: Well then, what should be the response of the Crown to that situation?

MR BYRNE: It is a matter for this Court. There are two ways of approaching it, in our respectful submission. One is to remit it to the Court of Appeal to properly consider the material, or the other is for this Court simply to deal with it on the basis that there has been an error. The error, in our submission, does not go to any point of fresh evidence or to any point of failure to call a witness, it goes to a combination of factors, principal of which was that the summing up by the learned trial judge misled the jury as to the real state of affairs.

BRENNAN CJ: In the circumstances, the admissibility of which may be in doubt - and I am referring to the affidavit evidence - gives the gravest misgiving about the circumstances of this case: a serious crime; counsel brought in at the last moment; material which is relevant to cross-examination of identification not in counsel's hands at the time that the trial starts; evidence in relation to the bank video not adduced; and then there follows problems in relation to the calling of Detective Pfingst who evidently broadcast or authorised the broadcast of a description of the alleged offender which, at least in terms of age and perhaps in terms of height, does not suit the accused. It is a very disturbing situation. And in all of this, the accused has been denied legal aid for his appeal.

MR BYRNE: We can do little but agree, yes. It has to be said that the real gravamen of the complaints your Honour has just listed did not emerge or certainly did not emerge clearly from the material the applicant himself put up before he was legally represented.

BRENNAN CJ: Mr Byrne, having regard to the concession that has been made, if I understood the concession correctly, is there any reason why this Court should not proceed to make orders that would be appropriate to achieve a new trial?

MR BYRNE: No, your Honour.

BRENNAN CJ: Instanter?

MR BYRNE: There is nothing, in our respectful submission, we could add to the matters we have put forward this morning. We certainly do not withdraw the concession and, in those circumstances, we do not oppose any instanter order by this Court.

BRENNAN CJ: Yes, very well. Thank you. Mr Griffith, I take it you have no objection to that course?

MR GRIFFITH: That is correct, your Honour. We have nothing to add.

BRENNAN CJ: In the light of the concession which counsel for the Crown has properly made, the order of the Court is that special leave be granted to appeal to this Court; that the appeal be heard instanter; that the appeal be allowed; that the order of the Court of Appeal be set aside; that in lieu thereof the appeal to that court be allowed, that the conviction be quashed and that a new trial be ordered. That is the order of this Court which can be reduced formally to writing by the parties.

The Court will adjourn until 11.30, Canberra time, to take the next applications.

AT 11.06 AM THE MATTER WAS CONCLUDED