Millar v The Queen M108/1999 [2000] HCATrans 545 (8 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M108 of 1999

B e t w e e n -

SHANE PAUL MILLAR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 SEPTEMBER 2000, AT 10.20 AM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC: If the Court pleases, I appear for the applicant. (instructed by Wallington Brand Gattuso)

MR J.W. RAPKE, QC: If the Court pleases, I appear for the respondent. (instructed by Peter Wood, Solicitor for Public Prosecutions (Victoria))

McHUGH J: Yes, Mr Tehan.

MR TEHAN: Your Honours, this application requires the grant of special leave in order to uphold the authority of this Court in relation to warnings which this Court has said should be delivered in cases involving identification.

In Reg v Domican, this Court said that it was the duty of a trial judge, where identification was in issue, to draw to the jury's attention any weaknesses in the identification evidence, and to undertake that exercise, having regard to the particular circumstances of the case. The Court went on to say that mere reference to counsel's arguments is insufficient. The Court referred to what Chief Justice Gibbs had said in Reg v Kelleher, that is that the duty was not discharged by the perfunctory or half-hearted repetition of a formula. In my submission, that is what happened in the instant case.

If I could take the Court to page 72 of the application book, the learned trial judge commenced his directions upon identification at that page, at line 19. He gave the general warning at that page and - - -

McHUGH J: You do not object to the terms of the general warning.

MR TEHAN: I do not object to the terms of the general warning which carries through to the top of page 74. Then at that page, at line 5, his Honour directed the jury's attention to the factors that they might take into account in assessing the identification evidence. That travelled through to page 76, where, at the bottom of that page, his Honour said:

Now, it is a matter of heeding the warning that I have given you, and scrutinising identification evidence in the context of all the evidentiary material which is before you, bearing upon this issue of identification, and I propose while I am dealing with the subject, to refer to some of the evidence and some of the submissions -

and that is exactly what his Honour then commenced to do. Travelling through the Crown's submissions at page 77 and the submissions of counsel for the accused at page 79, completing his analysis by saying at line 26 on that page:

You should bear all those criticisms in mind - - -

McHUGH J: That includes the reference at line 12:

she received consultation and was filled in by the rapid eye movement, and she dealt with that.

It is a very detailed summing up on the issue of identification, running, what, seven pages, almost eight full pages on the issue of identification. I mean, there are people that think that, as a result of this Court's directions, trial judges' hands are unduly tied in directing juries, but this is a very comprehensive direction.

MR TEHAN: We do not complain about the general warning; we do not complain about the general matters that the judge identified for the jury to look at when looking at identification evidence. What we submit is that this Court has said that a judge is bound to point out any weaknesses which exist in the identification evidence. It is simply not sufficient, as this Court has said, to refer to the criticisms or arguments of counsel. That is exactly what the judge did in this case. That is what he said at line 26 on page 79 of the application book.

HAYNE J: But at 77, for example, his Honour is going on telling the jury that the witness in question did not say she had seen his face in the first statement. The face "jumped out" while she was under the shower.

MR TEHAN: They were all submissions, your Honour. They were the Crown's submissions. Line 11, "Mr Jackson submitted" this; then at line 31:

On the other hand, as Miss Sutherland said to you -

and then you have the submissions of counsel. That is what his Honour was doing. No one can be critical of his Honour summarising the respective arguments of counsel - - -

McHUGH J: One summary, I wonder how long the submissions were.

MR TEHAN: But the important thing is that what his Honour failed to do is the very thing this Court said ought to be done in Domican, and that is to identify for the jury's attention the weaknesses in the identification evidence. In this case, there were a number of them. The identification was by way of photograph six months after the event. The identification was based upon a vision which had come to the witness in the shower shortly after the event when she apparently vomited. She was crouched down on all fours at the end of a desk facing a glass plate at the time that she alleges she saw the applicant. She had not said that she looked at the bandit face to face until six months later.

She had looked at the man's face for only a couple of seconds. The bandit was very close to her. Her recollection of the applicant coming between her and the witness Harrison came to her weeks afterwards when she was underwent one session of rapid eye movement, the purpose of which was to push the image away, although she said - and this is from her evidence - "it opened up her memory". She had not seen a scar on the bridge of the bandit's nose, nor had she seen any other distinguishing marks on his face. She had not seen his eyes. The man that she identified in the photograph did not have whiskers and she did not go through every photograph in the folder.

Now, they are just 10 witnesses in the identification evidence. The two major ones which, of course, are the fact of the vision, the identification being based upon a vision that she had had in the shower, and the second one being in relation to the process of rapid eye movement. What happened in the Court of Appeal was that, in one way or another, the Court of Appeal simply said, "Well, it was enough that the judge did what he did".

McHUGH J: But he went further; the judge went further than that, because the judge, from 81 onwards, again for another eight or nine pages, deals again with the evidence in great detail. At page 89, line 15, the judge says:

You bear in mind that the matters that you should look at, I direct as a matter of law that you should look at. You should bear in mind the comments by Mr Jackson in support of Mrs Crellin's identification. The comments made by Miss Sutherland to the contrary as to why it is an unsatisfactory -

So, the judge was directing, as a matter of law, that the jury had to take those criticisms into account.

HAYNE J: Having pulled out of the examination and cross-examination, each of the questions and answers that might be said to reveal difficulty about this identification.

MR TEHAN: I am sorry, your Honour, was that page 81?

McHUGH J: Page 89.

HAYNE J: Page 89.

MR TEHAN: Yes.

HAYNE J: You have seven pages of "she said this, she said that", et cetera.

MR TEHAN: Yes, I agree with that. What his Honour had been doing prior to that was simply summarising her evidence, telling the jury what her evidence was.

McHUGH J: But then he directs them as a matter of law as to what they should look at, and that they should bear in mind those comments by Miss Sutherland.

MR TEHAN: All he did, your Honour, with the greatest of respect, was to indicate to the jury that - what he was saying at line 16 was simply reiterating that he had directed them in terms of the general warning and that he had directed them in terms of the matters that they should consider. But then he went on to say, "You should bear in mind the comments". The fact of the matter is that that is insufficient, in my submission, in attempting to point out the weaknesses in the identification evidence.

HAYNE J: Did counsel for the accused at trial say that the direction on identification was insufficient?

MR TEHAN: No.

HAYNE J: That is, did counsel who heard the directions, complain about it?

MR TEHAN: No. But there is an error in this case and it can only be put right by this Court granting special leave. The specific error is that the weaknesses in the identification evidence were not pointed out by the trial judge. That error went through to the Court of Appeal. Special leave should be granted to overcome that error. If the Court pleases.

McHUGH J: Thank you. We do not need to hear you, Mr Rapke.

An appeal in this matter would enjoy insufficient prospects of success to warrant a grant of special leave to appeal. Special leave is therefore refused.

AT 10.31 AM THE MATTER WAS CONCLUDED