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Morris v The Queen S200/1999 [2000] HCATrans 547 (8 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S201 and S204 of 1999

B e t w e e n -

MUNDARRA DOOLAN SMITH

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S200 of 1999

B e t w e e n -

JASON BRADLEY MORRIS

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S202 of 1999

B e t w e e n -

LEE WEST

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 SEPTEMBER 2000, AT 9.59 AM

Copyright in the High Court of Australia

__________________

MR P. BYRNE, SC: May it please the Court, I appear with my learned friend, MR T.S. CORISH, for the applicant, Mr Morris. (instructed by Sydney Regional Aboriginal Corporation Legal Service)

MR M.D. AUSTIN: May it please the Court, I appear for Mr Smith. (instructed by Sydney Regional Aboriginal Corporation Legal Service)

MR P.R. ZAHRA: If it pleases the Court, I appear for the applicant, West. (instructed by Sydney Regional Aboriginal Corporation Legal Service)

MR R.D. ELLIS: If it please the Court, I appear with MS M.M. CUNNEEN, for the respondent to each of the appeals. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GLEESON CJ: Yes. We have listed these three matters together, but I presume that is on the basis that, substantially, there will be one argument in favour of all three applicants and, therefore, two minutes?

MR BYRNE: Certainly, your Honour.

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: This application for special leave raises an important question in the administration of criminal justice and concerns a particularly sensitive area of evidence in criminal cases, namely, evidence of identification. The judgment of the Court of Criminal Appeal in each of these cases holds that police should be permitted to give evidence of what we contend are opinions they have formed as a result of the examination of bank security photographs. A police officer is entitled to say in evidence before the jury, in effect, "The person depicted in the photograph is the accused person".

The grounds on which it is suggested that these are cases which warrant a grant of special leave are essentially three. The first of those grounds is that it is, in our submission, impermissible for police officers who are not eyewitnesses to an offence to be permitted to identify an accused person in a photograph. It is our submission that that is evidence of opinion and is not admissible to prove the fact of identity in accordance with the provisions of the Evidence Act.

GAUDRON J: On what basis do you say it is opinion?

MR BYRNE: A conclusion by a police officer the person depicted in the photograph is the accused person is an expression of opinion rather than a statement of fact.

GLEESON CJ: You are not suggesting the fact that the person who is giving that evidence is a police officer makes any difference?

MR BYRNE: No.

GLEESON CJ: So that if I go into the witness box and say, "I had a telephone conversation with my wife", upon analysis, what I am doing, in part, is giving opinion evidence of voice identification, is that right?

MR BYRNE: It depends on the circumstances, with respect, your Honour. It may be if there is nothing more than the fact of the conversation occurring that that is an expression of opinion, that the person on the other end of the line was the relative your Honour refers to. On the other hand, if there was additional evidence such as that you had made the phone call and the number that you had rung was the number to which your wife subscribed, that would be an additional feature justifying the conclusion or the expression of - - -

GLEESON CJ: That would strengthen the opinion.

MR BYRNE: Yes. We do not contend, for one minute, that a police officer would not be able to say, for example, "The person depicted in the photograph has a plaster cast on his wrist. I am aware that at the time that photograph was taken" if there is evidence of when it was taken, "having seen the accused that he had a plaster cast on his wrist at that time". Specific features, specific characteristics can be the subject of evidence but not a conclusion of opinion that that is the man.

KIRBY J: But that seems a little unreal. Assume for a moment that the police know the offender. You say, "Well, the answer is, leave it to the jury to compare the offender to what is seen in the video film or the photographs". But, the problem with that is that it is not unknown for offenders to endeavour to change their appearance between offences and the trial, growing a moustache, having their hair shaved and doing all sorts of things, coloured and so on, so.

GLEESON CJ: What is the difference between the police officer saying, "The person in that photograph is Mr Game" and the police saying, "I saw Mr Game stand at a corner and hand a plastic container with some white powder in it to a man who, in exchange, gave him a sum of money"?

MR BYRNE: The difference between those two items of evidence is, in our submission, this: the Evidence Act establishes a regime for the admission of eyewitness identification evidence. That regime is restricted to people who observe relevant events, not people who look at photographs. The observation of the incident which your Honour the Chief Justice has described would be direct evidence of observation admissible under the Act. Evidence of this kind which constitutes the identification of a photograph is by contrast evidence of an opinion. It is not the evidence of an eyewitness to relevant events. The Act has, in our submission, carefully - - -

GAUDRON J: Opinion evidence is not defined, is it, in the Act?

MR BYRNE: It is not.

GAUDRON J: I still do not see why you say it is opinion evidence. I mean, it may be evidence which necessitates particular warnings, and, particularly, where there has been no line-up, as I think is the case here. But, why cannot you say, "I know the person depicted in that photograph". That does not seem to me to be opinion, "I know". "I know so-and-so. He is the person depicted in this photograph".

MR BYRNE: It would be different if the person had taken the photograph and way able to say, "I can say that that is the person in the photograph because I was there on the specific occasion and I took that photograph and I had it developed and so on" but, where somebody is simply looking at an image on a piece of paper and drawing a conclusion from various observable characteristics and comparing it with their knowledge of the person in question then it constitutes an expression of opinion as to identity.

KIRBY J: Given that you have excluded the police status as relevant to the opinion, it is not what one would ordinarily in common law think of an opinion. You would normally think of an opinion in common law as something that is based on a category of scientific or other specialist knowledge.

MR BYRNE: It is the kind of thing that in the general run of cases would rarely be challenged. I is unusual.

KIRBY J: I can see a point that you make in your written submissions that the fact that police come along and give this evidence would be, in the forensic setting, highly prejudicial but if the police are the witnesses who actually know the accused, then the whole point of having bank video film is to permit people to be identified. That is the whole point of it.

MR BYRNE: Yes, but the, with respect, point of the legislation, the Evidence Act, is that identifications can only be made by people who are eyewitnesses to the relevant events.

GLEESON CJ: But your argument would not be any different if the person who identified the robber was the bank manager who said, "I know that man. He is a customer of the bank and that is a photograph of the bank's customer".

MR BYRNE: That would be different if the bank manager had observed the bank robbery.

GLEESON CJ: No, I am not saying the bank manager observed the robbery, I am saying if the bank manager who was familiar with the customer gave evidence that the person shown in the photograph in the act of robbing the bank was the customer.

MR BYRNE: No, the argument would not be any different, that would be equally inadmissible, in our submission.

GLEESON CJ: Yes, so it is not an argument about police.

MR BYRNE: No, it is not, although the second basis on which it is contended that this is a matter which justifies a grant of special leave is that there is inherent in this category of evidence, this type of evidence, such unfairness that it should not be permitted. What is essentially being done here is the kind of thing that was examined by this Court in Alexander 145 CLR. Alexander's Case looked at the legitimate uses of photographs for the purpose of police investigations.

What was generally concluded by the Court in Alexander's Case was that it was permissible for the police to use photographs in what the Court described as "the investigative stage" so that photographs could be used in order to determined that a person was in fact a suspect. Then, once the person was determined as a suspect, through the use of photographs, if they had been shown to potential eyewitnesses, they should not be used any further once a firm suspect had been identified or at least singled out. What has happened here is that the process of the police coming to a view that a person is a suspect has led to a procedure where individual witnesses are shown photographs, there is no identification made, so that it becomes then admissible to tell the jury why the police formed the view that this person was in fact the suspect. It is simply the police's view of their observation of the photographs not supported by any of the eyewitnesses to the case itself.

KIRBY J: There is a bit of a protection, though, is there not, that the jury can see the accused and can see the photographs or the video film and therefore if they think the police are trying to finger somebody quite improperly, simply loading somebody up because they did not like them, then the jury can judge that.

MR BYRNE: Certainly, it is a matter for the jury, ultimately, to judge, but our contention is - - -

KIRBY J: I can see the prejudice that is done but it is a prejudice that is almost inherent in the role of police as guardians against criminality and the fact that that brings them into contact with the usual suspects, as it were.

MR BYRNE: Certainly. This, though, a relatively new procedure, not one that has been encountered before, not one that was even contemplated by the Court in Alexander's Case and one when dealt with by the Court of Criminal Appeal in Queensland was held to be - - -

KIRBY J: That is Griffith's Case, is it?

MR BYRNE: Griffith's Case.

KIRBY J: That is under the common law, of course.

MR BYRNE: Certainly, but held to be a procedure where not only was the evidence inadmissible but if it were admissible it simply should not be used because the procedure was so inherently unfair. The problem is largely created - - -

KIRBY J: How can it be done, then? The bank robber rings up and says, "I have just been robbed". The police look at the video and see somebody whom they recognise. What can then be done to bring that person to justice? Is it to be excluded altogether from the trial? Assume the police are the only people who recognise the accused. The whole point of having video films is lost.

MR BYRNE: Your Honour, the position of video films may be somewhat different under the legislation because they depict movement and so on. In this case, it was simply a photograph. A lot of the cases, particularly in England and the Canadian case, have involve, in fact, video films of robberies actually in place. This was a still photograph. The argument, generally, and the argument accepted by the Court in Griffith, Queensland Court of Criminal Appeal, and by the Supreme Court of Canada in the case of Leaney, to which we have referred, was that where the evidence to be given by the police was of no greater value than that which the jury themselves could produce by simply comparing the photograph with the person who stands charged then the material should not be admitted.

GAUDRON J: But the assumption underlying that is not universally true, is it? Let it be assume for the moment that the person concerned, as is not unknown, has dyed her hair.

MR BYRNE: Yes. Then, there is no question that evidence can be given of the fact that the accused person at the time of the robbery had hair of the same colour.

GAUDRON J: Yes, but I am just saying the assumption that the jury - so far as the ruling is that the evidence should not be admitted because of an assumption that the jury is in as good a position as anyone else to identify the person, the assumption is not universally true, in fact, the opposite is mostly the case.

MR BYRNE: In this case, at least in the case of the applicant that I represent with Mr Corrish, the officers did not give any specific evidence about the basis on which their conclusion was reached, they simply said, "I know the man and that's him".

KIRBY J: But that might have been to try and avoid prejudice to your client. If they had started revealing the circumstances in which they knew him that would have been very clearly prejudice.

MR BYRNE: Clearly, and cross-examination of the validity of the conclusion was restricted for that reason because it would have exposed his criminal association, but there was no description upon which the conclusion was based. It was not, for example, said by the officers, "Look, that person has a particularly distinctive nose or hair style or facial characteristic" or whatever it might be, "and that is the basis on which I reach that conclusion". It was simply a bald assertion, "I know him. That's him" and an assertion which essentially could not - - -

KIRBY J: But if I met you outside I would know that I knew you because I just do know you and it is just something that - it is difficult. I could not say that it is because you have a particular nose or eyes, it is just that I know you. I know the whole image.

MR BYRNE: But that is a visual observation. That would be admissible under the provisions of the Evidence Act but if your Honour saw a photograph of somebody, all you would be, with respect, entitled to conclude was that looks like me. The conclusion that it is me is an expression of opinion and an inadmissible expression of opinion, in our submission.

KIRBY J: Do you say the Supreme Court of Canada looked at this issue as well?

MR BYRNE: They have and their conclusion was that evidence of this kind should not be admitted.

KIRBY J: Was that on the basis of their statute, or - - -

MR BYRNE: No, it was a holding by the court that the evidence should not be admitted simply because it would not assist the jury in reaching the conclusion that they are called upon to reach. The witnesses giving the evidence were in no better position than the individual jurors to make the conclusion which they had made in their evidence and it was held inadmissible.

GAUDRON J: Was there any explanation for the absence of a line-up, in this case?

MR BYRNE: The position of the individual applicants varies. In the case of the applicant we represent, he was, according to the evidence, given the opportunity to participate in an identification parade but be declined to do so. In relation to one of he other applicants, there was, as I recall the evidence, a consent to participate in an identification parade but that did not occur. But the admissibility of the evidence, in our submission, does not turn on where - - -

GAUDRON J: No, but questions of prejudice or prejudicial value and unfairness may well turn on that.

MR BYRNE: I accept that, certainly.

KIRBY J: You said there were three reasons.

MR BYRNE: The third reason that we contend that this is a suitable matter for a grant of special leave is the difference in approach that now emerges between at least the Court of Criminal Appeal in Queensland and the New South Wales Court of Criminal Appeal as to the validity of this procedure.

KIRBY J: A different legal basis, though.

MR BYRNE: Certainly, but it is apparently a procedure which is frequent, as the very facts of these cases indicate. These three trials were heard in the District Court in Sydney within six weeks of each other. It is, apparently, a practice which is becoming more frequently used by police. According to what this Court said in Alexander it is, in our submission, an undesirable practice which should not be permitted to be used because it is productive of evidence which is of such a quality that it creates the risk that innocent people will be convicted and that trials of the question of identity will not be conducted fairly.

KIRBY J: This Court has always lately taken a rather strict view on identification evidence, given the injustices that can follow from it.

MR BYRNE: Certainly.

KIRBY J: I remember in Domican my decision in the Court of Criminal Appeal was reversed because this Court took, correctly as I now see, a strict view on what judges have to tell juries because of the risks of miscarriages.

MR BYRNE: Well, in our submission, the standards that have been set are particularly high and deliberately high because of the acknowledged risk of wrongful convictions. The standards that have effectively been set in Queensland and in Canada should be the standards applied in New South Wales, in our submission. Your Honours, unless there is any specific matter, those are - - -

GLEESON CJ: We will see what Mr Austin and Mr Zahra want to add.

KIRBY J: If anything.

MR AUSTIN: Only, your Honour, the situation that Justice Gaudron referred to involved my client, Mr Smith, whose judgment in the Court of Criminal Appeal, in essence, forms the basis of the judgments in all cases. These were all matters heard together at the Court of Criminal Appeal and the one judgment in Smith was the central judgment and in his case he offered to be involved in an identification parade and that was not organised. Evidence was given that because he was an Aboriginal person from Redfern that the police had an experience that they could not get persons of similar looks for an identification parade and it was left at that. So, that is the answer to the proposition there in relation to him.

The only matters, in specific terms, I take the Court to is this, that, in essence, the judgment of the Court of Criminal Appeal does not rely on the operation of the Evidence Act since that court found that this was evidence of a fact, based on that quality.

GLEESON CJ: Yes, we understand that.

MR AUSTIN: And, in essence, they are making a determination, on my submission, in relation to the common law since if the arguments in relation to the Evidence Act were successful this evidence would have been inadmissible. They are the only matters come under that argument that I would suggest may - - -

GLEESON CJ: Thank you. Mr Zahra, did you want to add anything?

MR ZAHRA: Yes, your Honour, only to confirm that it will be my submission that the approach in Griffith in Queensland and in the connoting of an authority should be followed in this State. In the matter of West, there were in fact five officers. None of them were qualified in the sense that they would suggest there were particular idiosyncrasies or any other feature about Mr West that would have otherwise assisted the jury in a matter that they would otherwise not be acquainted with. In answer to Mr Justice Kirby's question that it would be accepted that if there was a change in appearance or if there was a factor that the jury needed assistance on, then that evidence would be clearly admissible, but the neutral situation that appears in the case of West where there are in fact five police officers who, in a sense, do not refer to any particular idiosyncrasy that that in fact is the same function that the jury would be asked to carry out, that there is, in fact, no differentiation between their role and the jury and in the sense that they would be usurping that role.

KIRBY J: Except, as you say, that it adds a poisonous ingredient, that it is then known to the jury that your client has form.

MR ZAHRA: Yes. In fact, there were some specific instances in this case which showed the difficulty of cross-examination as to the circumstances in which that prior identification was made because the police officers, for example, answered those questions in terms of their position as gathering intelligence in the Redfern area that they had made many computer entries in relation to - - -

KIRBY J: But the only problem is your theory of the Act puts police officers into a special and disadvantageous class because of the inferences that is drawn from calling them because if they do in fact know the person and they are citizens and they can give evidence of that then, other things being equal, it ought to be available to the jury.

MR ZAHRA: Your Honour, we are in fact submitting that this is a universal rule in the sense that by the same token that an accused person could not call their mother and say, "I know my son and that person is not the person that is depicted in that photograph". We would say that that, also, unless there was an additional feature, an additional idiosyncrasy, or a matter which the jury could be helped along with, that that also would be inadmissible. In other words, the situation which is, if I could clumsily put it, a neutral situation, similar to the situation in West where five police officers are not referring to a special fact or an idiosyncrasy, that they are saying that they have seen the photo and in their opinion that that is in fact the accused, that that in fact is the same situation as the jury would be placed in. Unless it could be - - -

GLEESON CJ: There must be many, many circumstances that have nothing whatever to do with videos in which police routinely give evidence identifying a person accused of a crime in circumstances where it would be invidious to have to inquire too closely of the police how they came to be in a position to recognise that person.

MR ZAHRA: Yes, your Honour.

GLEESON CJ: Every time a policeman says, "I saw a man that I know as Bill Smith standing on a street corner exchanging powder for money", it may well be that the reason that the police officer can be so confident that was Bill Smith is that Bill Smith had to turn up once a week to report on bail conditions.

MR ZAHRA: Yes, your Honour, but that would be protected by the regime in the Act because, in a sense, he would be giving evidence about the matter in question and the procedural safeguards in the Act would - - -

GLEESON CJ: I understand that. I was only pointing out that in relation to the question of unfairness the problem exists in many, many circumstances that have nothing to do with video identification or photograph identification.

MR ZAHRA: But the difference, your Honour, is in fact the procedural safeguards. There are procedural safeguards in the Act if the person is giving evidence of the matter in question. There are no procedural safeguards here and in fact the situation in West highlights that fact that there was much cross-examination. I could take your Honours to the detail of this. But, there was much cross-examination of the individual police officers as to the circumstances. This was a case where there were five police officers who had given evidence of identification. Four of the police officers are said to identify the photo at the Downing Centre, together.

The cross-examination revealed that none of the police officers could give detailed evidence of the circumstances in which they were identified, whether they were with another person or who in fact gave them the photo. There are no procedural safeguards.

GLEESON CJ: Thank you. Yes, Mr Ellis.

MR ELLIS: Thank you, your Honour. Perhaps, your Honours, dealing first with the cases of Griffith in Queensland and Leaney in Canada. There are factual distinctions which are quite important. In the Canadian case there were five police officers who gave evidence, four of whom did not previously know the person depicted in the photograph. They, in essence, simply looked at the photograph, looked at the accused, and did what the jury could do or what anybody could have done. The fifth officer did have some prior acquaintance with the accused. The case, in essence, if it is read, really turned on the fact that it was impermissible for the four police officers who did not know to give the evidence.

So, the Crown says that it is a completely different factual situation as well as being a completely different legislative basis. Similarly, in the Griffith Case the situation was that the persons identified from the photos were actually wearing balaclavas, their features were distorted and the ruling really was that even someone who may have known an accused person was really in no better a position than anybody else to identify the disguised person within the photographs. So, the Crown in fact says that there is a consistency within Australia. If one goes back to 1981 in New South Wales in Palmer's Case - admittedly, it did not involve police officers giving this type of evidence, it involved, I think, a neighbour and some friend, but, nevertheless, the principle is the same.

GAUDRON J: But if it were identification evidence in the traditional form, there would have to be a number of warnings about that. Now, at the very least, one would think, there would have to be a number of warnings.

MR ELLIS: Yes, and in fact that happened in each case.

GAUDRON J: Yes. And, you would have to think there is a real risk, would you not, in cases such as this, that the defence simply would be precluded or hampered in cross-examination to test the reliability of their recognition?

MR ELLIS: I accept that, as a general proposition, and in each - - -

GAUDRON J: That has to raise a problem worthy of consideration, does it not?

MR ELLIS: In each case it can be considered via the discretion that rests in the judge under section 137 not to admit the evidence. It does not have to turn on whether the evidence is admissible but the judge can, if the situation arises where the probative value is outweighed by the danger of prejudice it can be rejected.

GAUDRON J: Yes. There is a possibility of unfairness in the conduct of the defence, is there not?

MR ELLIS: Yes, but that goes to the prejudice, I would have thought, which can be weighed up.

GAUDRON J: Well, does it? I suppose it does, yes.

MR ELLIS: And, the other aspect, your Honour, is - - -

GAUDRON J: But it may go to something deeper than that.

MR ELLIS: Well, the Crown's submission is that it does not actually go to the admissibility. There are many examples. If a police officer sees a person the same problem as his Honour the Chief Justice raised can arise where he chases a man that he knows, he does not catch him and he then gives evidence that he knows him and the same position arises, so, those factual situations have to be dealt with individually.

GAUDRON J: Yes, but what I am thinking about, really, is the old Bunning v Cross discretion.

MR ELLIS: Yes.

GAUDRON J: Now, does something of that survive in the Evidence Act, and if so, where?

MR ELLIS: I think the closest to Bunning v Cross would be section 138 which relates to "illegally obtained" or "improperly" obtained evidence. So, it is more - - -

GAUDRON J: But it is the possible unfairness to the trial processes that is concerning me, as distinct from admissibility or even probative value.

MR ELLIS: Yes. But, your Honour, the Crown's position on that is that there are two issues. There is an issue as to whether the evidence is strictly admissible, and then there is the issue in terms of prejudice and what can be done about it in any individual case. Certainly, there will, no doubt, arise cases where perhaps the acquaintance is so short or the photographs are so poor and the prejudice which might flow is so significant that prejudice can, I think, include the fact that there is a limit in terms, perhaps, of cross-examination from a tactical purpose, and can include the - or any number of the prejudices and they can all go into the melting pot and the judge can make that decision under section 138.

Under section 165 there is a requirement for the warnings to be given. So, even though the identification sections of 114, 115 and 116 do not apply because this evidence - indeed, no recognition evidence falls within the definition of identification or visual identification found within the Act, and - - -

GAUDRON J: No, but you would think there was an even greater need for warnings in the case of this - - -

MR ELLIS: That is where section 165 comes into play. I mean there is basically an overlap between those sections. You do not need section 116 in order to give the Domican-type warnings. That is given pursuant to section 165, so that there is a safeguard. In the came of Smith, her Honour - I think it was Judge Latham - in fact gave specific directions to the jury, in essence, along the normal lines of identification and the problems associated with identification. She then went on to say that the police should not be placed into any special categories, in terms of their position as a witness and in terms of their reliability.

Interestingly enough, I do not think in any of these cases there was ever any suggestion that the police had lied. The suggestion is a question of reliability rather than the truth, and there is no suggestion in any of the cases, there is no dispute about the previous acquaintanceship, as it were.

GAUDRON J: We do not know to what extent cross-examination may have been hampered simply by the fact that it came from the police. For example, one is not going to cross-examine them in the ordinary course - cross-examine the police as to lies unless one wants one's good character brought into issue. That is still the rule, I take it?

MR ELLIS: Well, if one does not give evidence, there is a little danger as a consequence of that. The character provisions in the Act are, you can in fact split your character. There is quite a - I do not know the - - -

GAUDRON J: But leave that aside, one might cross-examine them about reliability but in the ordinary course one would be confined to doing it in a perfectly general way as distinct from saying, for example, "You've only seen my client twice. On both occasions it was a dark night and he had a balaclava on" for example. If that is the truth then obviously one does not want - it goes directly to the evidence, to the reliability of the evidence but one does not want to bring it out.

MR ELLIS: I appreciate that, your Honour, but it is but one example of a particular factual situation with the case which has to be dealt with in that particular case. It does not touch upon the principle of whether or not the evidence is admissible. There is, undoubtedly, a range of cases in terms of a full suggestion from the police lying through to, "All right, I acknowledge that you do know me but you are mistaken when you say I am the person in the photograph" and anything in between. Those cases do not, as it were, affect the principle, they affected the judge's decision in terms of whether he or she will exercise a discretion.

GAUDRON J: But I am saying there may be a point at which they affect the conduct of the trial and that one is looking at something quite fundamental in this area.

MR ELLIS: Yes. I accept that, your Honour, but in that case - - -

GAUDRON J: That is not necessarily the probative prejudicial issue.

MR ELLIS: But, in those particular cases the judge can exercise the discretion to reject the evidence. There is no suggestion, I think, anywhere that there is not a discretion under the Evidence Act for a judge to reject evidence which would result in an unfair trial. I mean, it happens on a daily basis that that type of evidence is rejected.

GAUDRON J: Yes, but how would the judge know?

MR ELLIS: He would know from a voir dire which is the normal way these things are brought out into the open, in the absence of the jury. That could be done in such a given case. The worst case scenario, if you like, cannot be a justification for altering the principle. The principle exists in the sense that this evidence meets the requirement of relevance under section 55. It is not caught by the definition of identification evidence, so, therefore, those provisions do not apply. The Crown says that when you look at the Australian Law Reform Commission's report and what was intended in terms of opinion, that on this continuum from opinion - extreme opinion at one end through to fact at the other, this material does not fall at the opinion level, it falls at a fact level. If one extrapolates out from this, there are many situations where it becomes a question, "I can say that that is a glass of water" but is that an opinion or is it a fact? Most things that we find that we know are things that we have been told, have learnt, and in a sense we are stating opinions and that is why they blur - opinions and facts can blur, and the position that the Court of Criminal Appeal has adopted in following the Australian Law Reform Commission is to say, in essence, that each case has to be decided on its merits. It is in fact a position which has been adopted in the Full Court of the Federal Court, in terms of opinion evidence, and once that happens you have, the Crown would say, not necessarily an easy decision to make but you have a clear decision to make as to where in any particular case the proposed evidence falls on that continuum from clearly opinion at one end to clearly fact at the other, and each case can be determined on its particular application.

Each case can have the discretionary situation exercised. Each case will have the warnings under section 165. Certainly, the warnings that were given by Judge Latham in the District Court in this case relating to the fact that these were police officers and that they, in essence, should not be drawing any adverse inference - it is not unusual that this sort of thing will arise. Every time someone escapes from custody that sort of thing arises, every time there is a sexual assault within a gaol, that type of situation arises and the jury are instructed - - -

KIRBY J: But you can expect it in both of those cases. The thing that is different here is that these are people who are at large and the only inference that a jury will draw from the fact that a policeman gives evidence is that they are known to police. It is inescapable.

MR ELLIS: Yes, your Honour, but if the jury are instructed that they cannot use such an adverse interest then the reality is that juries are trusted to comply with directions which are given. The system cannot work if we work on the assumption that juries ignore the directions that they are given. In this type of case and in many others - I mean, for instance, what is the point in giving identification warnings if we assume the jury will not comply with them? We give the warnings on the assumption that the jury will comply, and in this case it is a clear indication that can be given under section 165 about the fact that they ought not to draw such an adverse interest and the - - -

KIRBY J: In the facts of this case - was it feasible in these cases - was it feasible for police to be used at the investigation stage - I am looking at the analogy with Alexander - that identifies the person and then has some sort of identification process which uses other eyewitnesses who could, as it were, use the police as the filter but not engage the police as giving the direct testimony?

MR ELLIS: Well, I guess, your Honour, that would depend upon who knew these individuals and who would be available to give evidence. I understand what your Honour is saying in the sense that you would need the initial police role to identify the person. I am not sure, factually, whether it would have been feasible. In one of the cases there was in fact a non-police officer called.

KIRBY J: That is the social worker.

MR ELLIS: That is the social worker.

KIRBY J: Yes.

MR ELLIS: As I indicated before in Palmer's Case it was a situation with a neighbour and a friend. So, that, again, that is the principle. The principle cannot be affected just because these are police officers. That does go to the issue of discretion and the exercise of discretion, certainly, and of the necessary directions which flow but, nevertheless, the Crown says when you look at what was intended by the Australian Law Reform Commission in this area it is clear that in fact the opinion and fact situation is on this continuum and that this type of material was not intended to be caught as opinion evidence.

I mean, there is an argument, in any event, that even if it is opinion evidence that it is admissible under section 78 and indeed Judge Latham went through that entire process of determining that it was not opinion evidence but that in any event it was considered that it was that section 78 applied because it is an opinion by a person of the observation that that person makes of a photograph or of a video and therefore - - -

GLEESON CJ: Well, I suppose every time a policeman says that, "I saw a male person do something" the policeman is expressing an opinion.

MR ELLIS: That is an opinion.

GLEESON CJ: It might sometimes be a fairly borderline situation.

MR ELLIS: Especially when they are dressed, yes, and these days the dressing does not demark people quite so clearly. I think there are many examples like that, your Honour, where we - perhaps when we say it we do not think that but if you stop and think back you think, "Well, that probably is strictly an opinion in that I am perhaps making an assumption" but it is more innate than that. You simply look at a person, as your Honour evidenced with Mr Game, and Mr Byrne was used as an example, too: "I know both of those gentlemen and I am not sure that I would be able to describe their appearance or draw them but if I see them I can say whether or not that is them".

That, really, is all that has happened in this situation. There is no special leave point because it is a factor which has occurred with non-police and police. Going backing into different jurisdictions - I think to 1982 and 1983 in both South Australia and Victoria, the same type of question arose. So, that, there is a consistency. There is no special point. If this Court in fact refuses special leave that is confirmation of the decision by the Court of Criminal Appeal and the principles or the reasons that they have given for arriving at that decision. and the Crown would say that the reasoning of the Court of Criminal Appeal is in fact appropriate and, in essence, the situation is very similar to the situation as it was at common law.

The only other matter I think I wanted to indicate was in fact that this is not a situation such as Adam where this Court recently gave special leave on the question of section 60. Obviously, there will be areas of special concern regarding the Evidence Act where legislation creates changes to the common law. The Crown says this is not one of those situations, that there is no change, there is nothing special in there, that the decision, because it is well reasoned and accords with the Australian Law Reform Commission - which as your Honours are aware the Court is entitled to take into account in interpreting what was meant by the legislation.

The Crown's submission is that the evidence here is of direct observation of a photograph. There is no difference between giving evidence of a direct observation of a video or a photograph than giving direct evidence of the observation of a person running away. If it is opinion evidence in one it is opinion evidence in the other, and in any event, the Crown says it is permissible. An example, perhaps, where it has been created that there are ad hoc experts are now, as it were, being created who can give opinions. Voice identification is one of those. So, there are many different permutations to situations with opinions but the reality is these video cameras are put in place so that there can be an identification of the felons at some subsequent time.

If the Court, as a matter of principle, rules that the evidence is simply not admissible, then we might as well scrap video cameras because it is just an interesting quirk, "Oh, there is Bill Smith robbing the bank".

GAUDRON J: That is putting the matter far too highly. That is much more than a rhetorical flourish. One knows perfectly well that these play a valuable role in investigation. One knows perfectly well that there is a difference between investigation and evidence.

MR ELLIS: I understand that, your Honour, but what I am saying is that if it goes to - not the issue of discretion in each case but if it goes to the evidence is, per se, not admissible - - -

GAUDRON J: It still would not be correct, even in that situation. Your submission would be an exaggeration. It would assist in the investigation.

MR ELLIS: It would assist in the investigation.

GAUDRON J: And, it would assist in the deterrence, also.

KIRBY J: It is not like the Crown to exaggerate.

MR ELLIS: Everybody has a flourish, I suppose, your Honour. I accept that in the investigation stages, your Honour, and as his Honour Justice Kirby point out, that in terms of that initial identification of someone it would play a part, but, perhaps, the point was overstated but the reality is that it would flow through not only to this type of evidence but it would impact upon people in terms of general recognition evidence not involving police, not even involving security cameras.

KIRBY J: Well, there will be cases where the only person who recognises the subject of the photograph or the video is a policeman.

MR ELLIS: Yes.

KIRBY J: And the idea of then excluding that evidence just because that person is a policeman does not seem to be a principled idea. You have to have some mechanism that excludes it where the prejudice outweighs the probative value.

MR ELLIS: Yes, that is perhaps what I have been poorly trying to say. Unless there is any other particular area I think that is all I could usefully add.

GLEESON CJ: Thank you, Mr Ellis. Yes, Mr Byrne.

MR BYRNE: Just very briefly. Reference was made to the fact that one of the witnesses in the cases was a social worker. That social worker was in fact a person who was in charge of a child welfare institution where the applicant was held in custody on two separate occasions as a young person.

Your Honours, if I can just return very briefly to this question of unfairness. Your Honours are aware of the very strict and precise rules that have been established governing the conduct of identification procedures such as identification parades or the showing of photographs. This practice does not only sound in procedural unfairness to the accused or suspect person, it affects the quality of the identification evidence because there is not a proper basis on which it can be tested, there is no proper record made of the way in which it comes into being. If one looks at the facts of these individual cases it is apparent that the individual police officers were together in the police station when the identifications were made. There is no record made of what one said to the other, whether they are genuinely independent observations.

It is not difficult to imagine that one officer would say to the other, "Well, that looks like Bill Smith, don't you think?" and the officer is then prompted to make the recognition, so-called, of Bill Smith, but there is just no record of any of that material, it is evidence emerging from a police station which has none of the safeguards which are normally required to be attached to evidence of identification before it can be admitted.

When all of that background is considered then the proposition that Justice Gaudron has put about the requirement for warnings is one which we would respectfully adopt. There were no such warnings given, certainly not in the case of the applicant we represent and not in the others about the dangers created by the absence of safeguards, what Mr Zahra referred to as the absence of the procedural safeguards that affect the quality of the identification evidence. Those are our submissions.

GLEESON CJ: Thank you, Mr Byrne.

MR AUSTIN: Your Honours, there are a couple of specific matters in relation to Mr Smith that I would take up, but firstly, it is - - -

GLEESON CJ: These are matters of reply.

MR AUSTIN: Yes, your Honour. In general, it is my submission, that section 78 of the Evidence Act which is the exception for lay opinion does not allow for this evidence, as the Crown claimed, and that is because that submission ignores the operation of subsection (b) which suggests that lay opinion can be given to explain the evidence of, on my submission, an eyewitness or a person giving particular first-hand evidence at the trial, that that is what the section - I will leave it at that - that is the operation of the section, and that in those circumstances it is not right to say that in all events this evidence would have been admissible under the Evidence Act. That is not the judgment of the Court of Criminal Appeal and it is my submission that it is not so admissible.

Just in relation to Mr Smith, there are two particular matters in reply that I would take up. The Crown addressed the proposition that one of the factors that could be taken into consideration in whether this evidence should be admitted or not is, for example, the quality of the photographs. The situation in Mr Smith's case, and it is highlighted by a question asked by the jury was that the court considered the photographs of such poor quality that even though they were tendered and a photograph taken of Mr Smith at the time of arrest was also tendered, the jury could not use those photographs on their own account in their observations of Mr Smith to identify him for the purpose of the case against him, and in fact, the jury asked whether they could use some of those other photographs and their examination of them to support their determination as to whether the two police officers were correct in identifying Mr Smith from two of the group of photos that were tendered.

So, in that case what actually happened was there had been a voir dire, the Crown had conceded that the photographs on their own would not be of such a quality for the jury that the jury could use them in this process and they were being asked, then, to simply assess the capacity of these police officers who claimed to recognise Mr Smith.

KIRBY J: Well, you say the unfairness was doubled, it was not only a police officer but the police officer was being used to top-up the photographs because the photographic evidence was not sufficient for the jury's purpose.

MR AUSTIN: Yes, your Honour, I say that and I also point to this other proposition and that is that when the Crown suggested that a video tape or photographs could not be used in any other way if police officers were not able to view them. That simply is not true. This evidence could always be tendered if it was of good enough quality to either tender a photograph of the accused at the time or simply the jury observed the accused at trial and the jury could always compare the appearance of the accused and make their determination and that essentially that is the basis of the criticism in the Canadian authorities and in Griffith and the basis of our criticism is that in most cases what in fact is happening is that the opinion of these witnesses, whether they are police officers or not, is being given a greater weight than it should and it is actually being substituted for what is an appropriate jury determination beyond reasonable doubt.

GLEESON CJ: Thank you. Yes, Mr Zahra.

MR ZAHRA: Thank you, your Honour. Can I just all one thing to something Mr Byrne has just said about procedural safeguards just by was of example in relation to the matter of West. There was in fact a situation where one of the police officers is said to have identified Mr West from the photograph and he was in fact the same person who had then carried out the identification with other police officers, in other words, showing them the photograph. Now, that would be a procedure that would be quite a concern if in fact civilian witnesses were in fact overseeing the subsequent identification of a particular identification witness.

One other matter, and that relates to my friend's, the Crown, submission in relation to the Court of Criminal Appeal following the Law Reform Commission about this continuum. There is in fact no need for the lines to be blurred here, that in fact rules could be established that if in fact the police officers - this is consistent with the Canadian authorities and the authority of Griffith, that if the police are giving evidence which is in fact of assistance to the jury, of matters in fact that they would otherwise not know about, for example, in the matter of Leaney where the officer was unable to ascertain a particular gait from the video, then that would be admissible evidence. But, the line does not mean to be blurred. If we have this neutral situation where the police officer is doing no more than what the jury is doing then, in fact, that should be inadmissible as opinion. Thank you, your Honour.

GLEESON CJ: Thank you. We will adjourn for a short time to consider the course we will take in this matter.

AT 10.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.02 AM:

GLEESON CJ: In these matters we are inclined to grant special leave but we are not terribly enamoured of having three cases. Is there any reason why you should not pick your best case and have the other two stood over, Mr Byrne?

MR BYRNE: No, there is no reason why that - - -

GLEESON CJ: I realise that they came up together because they were dealt with successively in the Court of Criminal Appeal, but if it be the case that this is a common problem there must be dozens of these cases. Which one would you choose?

MR BYRNE: The suggestion, your Honour, is that the applicant Smith is the most suitable vehicle.

GLEESON CJ: That looks like the one that was taken as the leading case by the Court of Criminal Appeal.

MR BYRNE: Yes.

GLEESON CJ: In the matter of Smith, there will be a grant of special leave to appeal and in the matters of Morris and West, they can stand out of the list to await the outcome of Smith.

MR BYRNE: May it please the Court.

AT 11.04 AM THE MATTER WAS CONCLUDED


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