Smith v The Queen S234/2000 [2001] HCATrans 215 (25 May 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S233 and S234 of 2000

B e t w e e n -

MUNDARRA DOOLAN SMITH

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

GAUDRON J

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 25 MAY 2001, AT 10.19 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please the Court, I appear for the appellant with my learned friends, MR M.D. AUSTIN and MR T.S. CORISH. (instructed by Sydney Regional Aboriginal Corporation Legal Service)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MR R.D. ELLIS and MS B.K. BAKER, for the respondents. (instructed by S.E. O'Connor, Director of Public Prosecutions (New South Wales))

GLEESON CJ: Thank you. Mr Byrne, just before you begin, we have been given some photographs which I assume are copies of the relevant photographs.

MR BYRNE: Yes, your Honour.

GLEESON CJ: I presume they have the same numbers on them as yours?

MR BYRNE: Mine are not, in fact, numbered, your Honour.

GLEESON CJ: That is helpful. They might not even be in the same sequence.

GAUDRON J: Not in the right-hand corner, with a black "Copy Exhibit" - - -

GUMMOW J: "K" and "O".

MR BYRNE: I apologise, on exhibit K they are numbered in the right-hand corner; on exhibit O they are not numbered.

GLEESON CJ: Now, would you mind looking at exhibit K, No 24.

MR BYRNE: Yes, your Honour.

GLEESON CJ: Do you see in the extreme right of that photograph a person depicted?

MR BYRNE: Yes, your Honour.

GLEESON CJ: Look at 25; is that the same person?

MR BYRNE: Yes, as I understand it.

GLEESON CJ: Look at 26; is that the same person?

MR BYRNE: Yes, in the extreme right.

GLEESON CJ: Look at 27; is that the same person?

MR BYRNE: Yes, your Honour.

GLEESON CJ: At 28; same person?

MR BYRNE: Yes.

GLEESON CJ: At 29, 30, 31 and 32; same person?

MR BYRNE: Yes, your Honour.

GLEESON CJ: And 33 and 34, same person?

MR BYRNE: Yes, your Honour.

GLEESON CJ: Now, 35. There is a person with a hood on. Is that the same person?

MR BYRNE: I understand so, your Honour, yes.

GLEESON CJ: And are they all your client?

MR BYRNE: They are all alleged to be.

GLEESON CJ: I mean, are they the people alleged to be your client?

MR BYRNE: Yes, your Honour.

GLEESON CJ: So, the person shown with the hood on in photograph No 35, whether it is your client or not, is the same as the person shown on the right-hand extremity of 34, 33, 32, 31, 30, 29, 28, 27, 26, 25 and 24?

MR BYRNE: Yes, your Honour.

GLEESON CJ: That is the person alleged to be on lookout?

MR BYRNE: Yes, that was the general role that he was alleged to have played.

GLEESON CJ: Thank you. I just wanted to get that straight.

MR BYRNE: Certainly, your Honour.

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: Excuse me, your Honours. My learned friend, the Solicitor, has just asked me to inform your Honours that he in fact has the actual exhibits, the photographs, the original photographs that were in the trial proceedings and he proposes to refer to those.

GLEESON CJ: One of the reasons I asked the question was that there is reference in some of the papers to the relevant man being hooded. The photographs show him hooded on some occasions and not hooded on other occasions.

MR BYRNE: Yes, certainly, your Honour.

GLEESON CJ: Some of the photographs appear to give a quite clear view of his face.

MR BYRNE: I suppose, your Honour, that is a question for determination.

GLEESON CJ: Yes, that is a jury question.

MR BYRNE: It perhaps is ultimately a jury question but it appeared that this case was run on the basis that the evidence of the photographs themselves would not have been a sufficient basis for the jury to conclude that the accused was the person in the photograph.

HAYNE J: I understand that, but why? I just do not understand how that could be so.

MR BYRNE: Your Honour, it was, as I understand it, put on the basis that the photographs were simply not of sufficient quality to enable the jury to conclude that the person standing in the dock before them was the person depicted in the photograph.

GLEESON CJ: I find that very surprising, Mr Byrne, but may I ask you this? This may be a little gap in our criminal procedures, but I do not suppose the Court of Criminal Appeal had before it any photograph of the appearance of your client at his trial.

MR BYRNE: No, your Honour, no.

GLEESON CJ: Judge Latham did though. She could see him.

MR BYRNE: She did.

GLEESON CJ: I mean, we would not know, the Court of Criminal Appeal would not know, whether your client at his trial had a beard, for example.

MR BYRNE: No.

GLEESON CJ: That is just an example that I pluck out of the air.

MR BYRNE: I can refer your Honours to that part of the judgment of her Honour the trial judge, which appears to indicate that the photographs themselves, as evidence, were not a sufficient basis on which to establish the case against the appellant.

GLEESON CJ: Thank you.

MR BYRNE: That is, your Honour, at page 73 of the first volume of the appeal book. The judgment deals with the admissibility of the evidence, so far as this appellant is concerned, of officers Crampton and Peterson. Her Honour, in the opening paragraph, in the final sentence of that paragraph, says:

It is common ground that if I were to exercise my discretion to exclude the evidence of identification -

that is by the police officers -

there is no other evidence to place before the jury linking these two accused with the robbery at Caringbah -

As I understand the way the trial was run and, indeed, the way the matter was run in the Court of Criminal Appeal, the photographs themselves were not considered to be a sufficient basis by themselves on which to conclude - - -

KIRBY J: If a retrial were ordered, would it be open to the Crown to withdraw that concession? Because, at least, on my impression, there are a number of photographs where, at least in the stills - maybe not in the video, but in the stills - there is a lighted face which, given the imperfections of evidence in many cases, would be open to a jury to consider and decide for themselves, with all the warnings that Domican and other cases require, as to whether it is sufficient. Now, in your submission, is it competent to the Crown to withdraw that or are we obliged to proceed on the basis that that was a concession made at the trial and we should just assume that that will continue in any future proceedings of this case? I just do not know.

MR BYRNE: No, I do not know the answer to that, but I would suggest that there would be difficulties if the Crown were to run the case - - -

KIRBY J: Well, certainly, you could make a lot of forensic play of it, but I am just wondering, as a matter of Crown practice or law, is it competent to the Crown to withdraw in a second trial a concession made in the first? I suppose it is.

MR BYRNE: In our submission, it is not something that should be permitted to be done as a matter of fairness. That effectively permits the Crown to run the case a different way at a second opportunity and this Court have said in its judgment in King v The Queen (1986) - - -

GAUDRON J: But that was a different basis for guilt; not asserting guilt on the same basis but relying on evidence that is less than what they had before, if you like.

MR BYRNE: This is the same evidence, but the Crown would now be saying, on a new trial, that it has assumed some greater probative value than it had on the first trial where that does not readily appear to be apparent.

GAUDRON J: Yes.

GLEESON CJ: Mr Byrne, could you look at photographs 25 and 26 in exhibit K?

MR BYRNE: Yes, your Honour.

GLEESON CJ: Am I right in thinking that your client's mother was called as a witness at this trial?

MR BYRNE: Yes, your Honour.

GLEESON CJ: Did anybody ask her whether they were photographs of her son?

MR BYRNE: They did not, your Honour. That was not a matter which should necessarily fall to the counsel for the defence, asking her, but she was not asked that question by anybody. It should be said also, your Honours, because it is a matter of relevance, that there was no evidence, as I recall the trial proceedings, to suggest that there was any significant difference in the appearance of the appellant in the manner in which he stood before the jury from the way he looked around about the time of the robbery. Now, that would have been - - -

GLEESON CJ: Yes. Tell me, did anybody ask the mother whether her son owned clothing of the kind we see in photographs 25 and 26?

MR BYRNE: No, your Honour, not as I recall it.

GLEESON CJ: Nobody asked whether, for example, her son owned a hooded tracksuit top, Adidas manufacture, or a distinctive peaked cap of the kind we see there worn?

MR BYRNE: No, none of those questions were asked. The mother's evidence, as I recall it, was limited exclusively to questions of her habitual, conventional behaviour on particular days of the week, and cross-examination was confined to that issue, as well.

GLEESON CJ: And the accused gave no evidence himself.

MR BYRNE: No, he did not give evidence. Just in relation to that matter of the clothing, your Honours, there was a search warrant executed on the premises where the appellant lived and there was no clothing found which was in any way similar to the clothing which is depicted on the person who is alleged to be the accused. That was the only other matter in evidence - - -

GLEESON CJ: And the accused ran an alibi defence?

MR BYRNE: An alibi of sorts, it might perhaps fairly - - -

GLEESON CJ: Or gave an alibi notice.

MR BYRNE: Very late, your Honour.

GLEESON CJ: Yes, and gave no evidence in support of the alibi.

MR BYRNE: No, it was an alibi of, perhaps, limited proportions. The extent of it, essentially, was and initially it was contended by counsel for the appellant in the trial that it was not, in fact, an alibi but it was held to be an alibi but leave was granted to serve the alibi notice late.

GLEESON CJ: So what happened was that there were two policemen who said that is Mundarra Smith in that picture and Mundarra Smith said nothing and Mundarra Smith's mother said nothing.

MR BYRNE: That is the extent of it.

GLEESON CJ: Yes.

MR BYRNE: The question, your Honours, which is raised by the appeal is whether or not, what we would contend to be, the opinion of the two police officers who gave evidence was admissible to prove the identity of the person in the photograph.

HAYNE J: Do you not go back logically prior to that and ask about its relevance first? Just how is it relevant?

GUMMOW J: Do you not start at section 55?

MR BYRNE: Certainly, your Honours. The question in the first place is whether or not it can be said that their view, their observation of the photograph is relevant in the sense that it would assist the jury in determining a fact in issue.

HAYNE J: Now what observation are we speaking of? Are we talking about their observation made out of court? Are we talking of their observation in court? We may need to distinguish between them.

MR BYRNE: Your Honour, in the way in which this case was run it is probably both matters because evidence of the out-of-court identification was admitted.

HAYNE J: What is the relevance of the fact that someone, police officer or not, out of court, says to himself or herself, "I know the person in this picture"? What is the relevance of that fact?

MR BYRNE: It is not a relevant matter, in our submission, in the trial proceedings. It is a matter which, in our submission, should be confined to what has been described by the Court in Alexander v The Queen as the detection process. That is the way in which that material should be able to be used.

GAUDRON J: That is really just a shorthand way of saying, or an illustrative way of saying it has no relevance, is it not? It does not prove anything.

MR BYRNE: It is of use in the detection process but it is not relevant in the court proceedings.

GAUDRON J: Yes. It does not prove anything of relevance in the court proceedings. It may, theoretically, be of relevance to say to the sergeant in court, "Have a look at that picture". He does and then thereafter there may be evidence that clearly is probative of something in the trial but the real question is, is it not, assume you have the police in the witness box, you show him the photo and the real question is, is he not usurping the jury's task at that point?

MR BYRNE: In our submission, evidence of this kind is effectively usurping the jury's task. It might be relevant, in this situation, if, for example, there was a police officer or any other person able to say that he or she was aware that the accused person, the person who stands before the court, owned clothing of the kind depicted in the photograph or owned a hat of the kind depicted in the photograph or had some, at that time, distinguishing feature which is depicted in the photograph. That is real evidence of that person's observation of the accused at a relevant time but simply to look at a photograph and say, "That's the accused, Smith", is, in our submission, not relevant in the sense that it does not place the jury in any better position than they would be themselves to make that assessment.

It is a position where the existence of specific features of the individual concerned might be available to be the subject of evidence as the Supreme Court of Canada in that case of Leaney, to which we have made reference, said. In that case there was a video film taken, a moving picture taken and it was said there that the evidence of a person who was familiar with the accused, who was able to say that he was a person who had a particular gait, that that was admissible because it was something that assisted the jury, which they otherwise would not have been aware of, but simply to permit - - -

GUMMOW J: Why, because the accused would be sitting still when he was seen by the jury?

MR BYRNE: Yes, your Honour, and the precise details are not disclosed, but it may have been that the accused had that particular gait at that particular time because of an injury that he suffered or something of that kind, but - - -

GUMMOW J: Yes.

GLEESON CJ: But what if an accused grew a moustache or a beard or dyed his hair or shaved his head or something like that. Let me take a rather famous case. Let us suppose an accused was alleged by an eyewitness to an event to have had a Merv Hughes type moustache, which he was sensible enough to shave off by the time he came to trial. Would somebody be able to go into the witness box and say, "That is a picture of my husband"?

MR BYRNE: No, they would be entitled to say at the time that is relevant for the purpose of the proceedings, "My husband had a Merv Hughes style moustache which he has" - - -

GLEESON CJ: Take picture No 2 in exhibit K. I assume, although I do not know, that the man in the open-neck white shirt is a customer?

MR BYRNE: I am not sure. He is either a customer or a bank officer.

GLEESON CJ: It does not matter. Let us assume he is a customer and, therefore, completely unknown to any of the participants in these events, a total stranger to everybody else shown in the photograph, and for some reason it becomes material in the case to prove who that is. Let us suppose he is away or dead or something like that by the time the trial comes on. Could I woman be called to go into the witness box and say, "That is a photograph of my husband"?

MR BYRNE: It depends upon the reason why that evidence might be required. If it was material that was in dispute, or if it was a matter that went to one of the elements of an offence in some way, we would submit not, but she would be entitled to say - perhaps it does not emerge from that photograph - that if there is evidence of the day on which the photograph was taken, she would be entitled to say, for example, that when her husband left home, saying that he was heading to the bank, he was dressed in a white open-neck shirt with a dark jumper and pair of slacks, or something like that. That is real evidence - - -

GLEESON CJ: Just remind us why she could not go into the witness box and say that, "That person shown in the photograph there in the open necked white shirt, I recognise as my husband".

MR BYRNE: In some circumstances she may be able to do that but she would not be able to do that if, for example, her husband was accused of committing some offence in the bank. That is the issue here, if the issue as to who that was in the photograph was disputed.

GLEESON CJ: Let us suppose there was a claim for victim's compensation and for some reason the husband was not in a position to give direct evidence himself, that he was in the bank at the time, and there was an issue in the victim's compensation claim about whether the husband was in the bank at the time, could the husband's wife go into the witness box and say, "That person there in exhibit K, photograph No 2, is my husband"?

MR BYRNE: In our submission, no.

GAUDRON J: It might be different if there were a live photographer, might it not? If a live photographer said - well, if it were the photographer giving evidence, who said, "So and so sat for this photograph". That is one thing, is it not? "I took the camera", and so forth.

MR BYRNE: Yes, the person who took the photograph is entitled to give evidence of the circumstances in which it was taken - - -

GAUDRON J: But the wife should be able then to go on, should she not, and say, "Well, he was wearing those clothes. He has features which are identical with the features of my husband".

MR BYRNE: She could if she could describe the features. The other thing, of course, that could be done in order to prove identity in that unusual circumstance would be to tender the photograph itself. The photograph itself is relevant and for the wife, for example, to tender another photograph of her husband and ask for the two to be compared and say it is a question then for the tribunal of fact to determine whether the people depicted are the same. But the wife's, what essentially amounts to an opinion of who is depicted in the photograph, is not admissible to prove that that is the person depicted in the photograph where that matter is disputed.

HAYNE J: Again, rather than speak of it in terms of admissibility, can I just understand it, in terms of relevance for the moment? Can I do so by reference to section 55? The fact in issue with which we are presently concerned is the identity of the accused with the figure who appears at the right-hand of pictures Nos 24 to 35 of exhibit K. Do you accept that that is the relevant fact in issue?

MR BYRNE: Yes.

HAYNE J: The question then becomes, does the evidence in court of a witness, police or civilian, which says, "I say the two are the same", that is that, "I say there is identity", does that assertion in court constitute evidence that could rationally affect assessment of the probability of identity?

MR BYRNE: It may. It depends on the circumstances.

HAYNE J: Well, I can understand the caution in the answer and the reason for caution. I am not for the moment criticising it, but can I just understand what sorts of circumstance you enter by way of caveat because it seems to me once you take the step of relevance, you are on a very slippery slope.

MR BYRNE: Well, a person's opinion as to the identity of a person depicted in the photograph, where the jury is in a position equally to form its own opinion, is of no assistance and, therefore, does not rationally affect the assessment of the probability of the existence of the fact in issue.

KIRBY J: Why does not a policeman have a bit more experience in looking at videos and perhaps in a small town, as was suggested in one of the submissions, knowing people and - I mean, then you run into the problem of prejudice but at least in terms of experience a policeman might have much - and he or she might have better equipment to stop the video and examine it and magnify it and all the other things that are facilities available to that branch of occupation.

GAUDRON J: And which facilities can be made available in court.

MR BYRNE: Yes, certainly. They were not, in fact, used - - -

KIRBY J: They cannot make available the knowledge of the usual suspects.

GAUDRON J: No, well, that is the real - - -

MR BYRNE: No.

HAYNE J: Just so.

GAUDRON J: Just so, and that is the real vice in this, is it not?

KIRBY J: But that is a vice dealt with by the exclusion provision. That is down the track after relevance and after opinion.

MR BYRNE: Yes.

GLEESON CJ: What if the mother had said, "That is not a picture of my son"; would that have been admissible?

MR BYRNE: No. We would submit, no, that is equally a question of opinion, unless - - -

KIRBY J: What about, "I don't think that is a picture of my son"?

MR BYRNE: There are two things that the mother might have - I withdraw that. There are three things - - -

KIRBY J: "I've known him, boy and man, all these past years and I don't think it's him."

MR BYRNE: There were perhaps three things that the mother might have said. She might have said, "Yes, it is him". She might have said, "I can't say one way or the other", or she might have said, "It isn't him". Each of them is, in our submission, an opinion.

GAUDRON J: But could she say, "It resembles him"?

MR BYRNE: She could give evidence of distinguishing characteristics of her son which are depicted in the photograph. She could say, "I am aware of my son's facial appearance and, for example, he has got an earring and that person in the photograph has an earring in the same place that he has an earring". She may say, "He has a broken tooth and that person in the photograph has a broken tooth".

GLEESON CJ: I would say that the jury in this case must have thought it is a very unusual system of justice that deals with this question without hearing from the mother, although she is called as a witness in the case.

MR BYRNE: One of the difficulties with that is that the mother's ability to make some assessment, to give her opinion of what is depicted in the photograph, is, in a sense, dangerous because it is going very close to a presumption that that is him in the photograph, that she is able to say something about it. If the prosecution were confident that that would be the answer, one would have expected them to ask that question of the mother, but it was not asked. They are refraining from asking that question and it must have been based on something, but it is unlikely that they would have simply forgotten that that was available to them.

HAYNE J: Perhaps the same logic that underpinned the concession that was made.

MR BYRNE: Well, there may be some relation between the two. That concession that was made, there is not any specific reference during the course of the proceedings, but it does appear to be the basis on which the learned judge made the determination as to the admissibility of the evidence of the opinion of the officers.

GLEESON CJ: I am not sure whether we know this from the papers, but did counsel for the prosecution in address invite the jurors to look at the pictures and look at the accused?

MR BYRNE: I am not aware of that.

GUMMOW J: Have we got the address?

MR BYRNE: There was, in the summing up reference to the use which the jury could make of the pictures, but it did not include any clear direction to the jury that it was a matter for them to use their own observations of the accused and compare it with the exhibits. That did not seem to be the basis on which the prosecution had run its case.

GLEESON CJ: I wonder what the jury made of what was going on; there seems to have been conducted at a very high level of atmospheric rarity.

GUMMOW J: They may have made the same things we are making of it.

GLEESON CJ: Yes.

MR BYRNE: Your Honours, the specific circumstances of this case are perhaps - if I can put this without seeking to be flippant about it - are, in a sense, representative of a more serious problem. It is not so much what happened in this particular case that is the important point raised by this appeal, but whether the practice, which was adopted, the procedure to gather evidence and put it before the jury, is one which should be permitted in future. As your Honours can see from the transcript in this very trial, there were two accused before the court and both of them had been the subject of evidence of this type.

GLEESON CJ: Mr Byrne, on page 9 of the transcript of the application for special leave - were you appearing for your present client?

MR BYRNE: No, your Honour.

GLEESON CJ: Who were you appearing for?

MR BYRNE: I was appearing for an applicant by the name of Morris.

GLEESON CJ: Right, that is what I wanted to get straight, because I have difficulty reconciling this with something that was said in the judgment in the Court of Criminal Appeal. You said:

In relation to one of the other applicants there was, as I recall the evidence, a consent to participate in an identification parade but that did not occur.

KIRBY J: That is your client, is it not? He did consent.

MR BYRNE: My client here, yes.

GLEESON CJ: Your present clients?

MR BYRNE: Yes.

GLEESON CJ: Was there any evidence as to the circumstances in which that did not occur?

MR BYRNE: Yes, it was common ground that it did not occur. There was an explanation given by the officer in charge of the case.

GLEESON CJ: Explanation given in evidence?

MR BYRNE: Yes.

GLEESON CJ: And what was that?

MR BYRNE: Could I just take your Honours to that. It is in the evidence of an officer by the name of Rotsey, whose evidence commences at page 125. The explanation that he gave for not - can I just take your Honours firstly to the evidence-in-chief. I apologise, your Honours. There is reference to it - perhaps it is as useful to - - -

HAYNE J: It is page 130, is it not?

MR BYRNE: 135, it certainly is, in detail. And thank you, your Honour, it is at 130 in-chief, at line 35. The question put to the officer after establishing that the appellant indicated that he would participate in an identification parade, just at line 35, "The main reason" for not conducting a parade was:

having spoken to the staff at the bank nobody was in real position to identify any of the offenders to an extent that I thought an identification parade was warranted.

Can I take your Honours from there to page 135 of the appeal book, and that material, again, at line 35. Question put to the officer, "Why didn't you carry that" - an identification parade - "out?" He said this:

Because it was my opinion that witnesses to the offence did not have a satisfactory view of the offenders' identifying features to warrant conducting an identification parade. That was the main concern.

If I might just interrupt the reference to the transcript there to say that each of the two police officers who identified the appellant in the photographs were unable to nominate any identifying feature at all. Theirs was one of those identifications which was one of an instant impression, if you like. They looked at the photo and said, "That's him, I know him." The same process of identification might have been used, if it was in any sense valid, with the witnesses to the offence.

There was, in fact, eight people who were present in the bank, who were shown photographs amongst which was included a photograph of the appellant, but none of those eight people were able to identify in any form the photograph of the appellant. When I say "in any form", there was no witness who said in relation to the photograph of the appellant, "Well, that looks similar to", or anything like that. In fact, two of those witnesses picked out photographs of people other than the appellant as being people who were involved and apparently playing the role.

GLEESON CJ: Mr Byrne, while we are at the transcript, where exactly do we find the evidence that you say was inadmissible?

MR BYRNE: The evidence is the evidence of officer Crampton; that commences in the trial proceedings at appeal book, page 147, his evidence commencing at line 55 - - -

GLEESON CJ: Yes, but where is the inadmissible evidence?

MR BYRNE: The inadmissible evidence is at page 148, alongside - - -

GAUDRON J: Starting at line 20, is it?

MR BYRNE: It effectively starts at line 20, your Honour, yes, where he is explaining the process that he went through, looking at the photographs. In the following paragraph alongside line 30, he says:

In the photograph I have marked with a number 3 I recognise the person standing up as Wanjon Murray or Mundarra Smith -

and then he goes on to explain the circumstances in which he had known him.

GLEESON CJ: Now, that is in the present tense.

MR BYRNE: Yes.

GLEESON CJ: He is giving evidence in court of an act of recognition that he is making in court.

MR BYRNE: He is actually referring, your Honour, to what he did on 4 July 1997.

GLEESON CJ: Well, I am sorry - - -

MR BYRNE: I know it is in the present tense, but he is talking about what happened. He is reading from a - - -

GLEESON CJ: No, that is in the past tense. He speaks in the past tense at line 23 and he speaks in the present tense at line 29. Now, does the argument as to admissibility distinguish between those two pieces of evidence or is it that it - - -

MR BYRNE: No, your Honour. The argument is that both of those items of evidence are inadmissible.

GLEESON CJ: So, it would not make any difference to the outcome of this appeal if he had gone straight to the evidence that he gave at line 28 or 29?

MR BYRNE: No, it would not, your Honour. That is the evidence of officer Peterson.

GLEESON CJ: Yes.

MR BYRNE: The other - I am sorry, that is Crampton.

HAYNE J: Just before you leave Mr Crampton's evidence, it is to be understood, is it, also in light of the succeeding questions and answers in which he deposes to, in effect, how well or to the extent to which he knows Mundarra Smith?

MR BYRNE: Yes.

HAYNE J: Yes.

MR BYRNE: Your Honour, our contention is that the whole of each of these witnesses' evidence was inadmissible because the process that was used in order to obtain the evidence is one which does not produce admissible evidence. That is our primary contention, but the secondary argument we have - - -

GAUDRON J: I do not understand what you mean by that, the process does not produce. I mean, either the evidence is probative or not and what does it have to be probative of, a fact in issue or a fact relevant to a fact in issue. Now, I suppose if you come back to the fact relevant, it might be whether that photograph resembles that person in the dock. That would be the only thing. If you say that is not probative, and I understand that is not probative, none of this is relevant to anything. What that subsequent evidence is there for is to provide some sort of basis for asserting probative value of this evidence.

MR BYRNE: Yes, or assessing the level of its probity, assessing how probative it is.

GAUDRON J: Well, if it has no probative value - - -

MR BYRNE: No, if it has none, nothing is nothing.

GAUDRON J: - - - then the rest of it is entirely irrelevant. The question really is, "Can it ever have probative value?", when the question is, ultimately, a jury question. Now, you might say it could have probative value if these were experts.

MR BYRNE: It is a separate issue perhaps.

GAUDRON J: That is a separate issue.

MR BYRNE: But the notion of somebody being an expert in the identification of a particular individual is not one that we would submit is proper for - - -

GAUDRON J: Well, let us take - - -

HAYNE J: Expert photo analysts, so - - -

MR BYRNE: It may be a different thing to say - and that gets back to the distinguishing features - it may be a different thing for a photo analyst to say - - -

GLEESON CJ: Radiologists might say, "That is a photograph of a gallstone".

HAYNE J: Either that or you have swallowed a golf ball.

MR BYRNE: There have been cases where evidence has been attempted to be introduced where people with a particular expertise, a technical expertise, have said, "Well, looking at that photograph, I can determine that the eyes of the individual person are a certain distance apart, or the forehead is of a certain width". There have been cases where people have been asked to give evidence - orthopaedic surgeons have been asked to give evidence of the likely age of an individual from pictures of them.

GLEESON CJ: Mr Byrne, where is the other piece of evidence that - - -

MR BYRNE: I am sorry, I will take your Honour to that. The first officer was Crampton; the second one was an officer by the name of Peterson. His evidence commences at page 158 of the appeal books and the relevant evidence that he gives is just below line 20, where he is reading from his statement and he says:

About 11 am on Thursday, 24 July 1997 Detective Senior Constables Ward and Rotsey showed me nine photographs - - -

GLEESON CJ: Well now, there again, some of it is in the past tense and some of it is in the present.

MR BYRNE: Yes.

GLEESON CJ: "After looking through the photographs I am able to identify the person".

MR BYRNE: Yes. The statements of each of those officers, I should say, your Honours, are reproduced in the appeal books. In relation to Crampton, his is at page 83 to page 85.

GLEESON CJ: Now, had there been some kind of advance ruling on the admissibility of that evidence?

MR BYRNE: There was a voir dire conducted, your Honour.

GLEESON CJ: Right, and your client has two names, is that right, two different names?

MR BYRNE: He is apparently known by two names, yes.

GLEESON CJ: Right. So that evidence on page 148 at line 29 is not evidence that the person was either your client or somebody else?

MR BYRNE: No, sorry, yes. One of those names is - - -

GLEESON CJ: That is all right. He goes by two names.

MR BYRNE: Yes. One of them is what might be described as his Aboriginal name and the other a westernised name. The statement of Crampton was a three-page statement at page 83. The statement of Peterson a single-page statement at page 86. There was a voir dire conducted and each of those two witnesses were called on the voir dire and their evidence is reproduced - the evidence they gave on the voir dire is reproduced in the appeal books. Crampton is at page 13 and following. Peterson at 17 and following.

GAUDRON J: Can I just divert you? The photographs seem to have been tendered through the witness Peterson at page 159, or the first two photocopies.

MR BYRNE: I think your Honour will find those are proceedings on the voir dire at page 59.

GAUDRON J: I see - 159.

MR BYRNE: I am sorry, did your Honour say 159?

GAUDRON J: Yes.

MR BYRNE: Page 159 is the trial proceedings.

GAUDRON J: He was shown nine photocopies of photographs, "they are the photographs." Then he says "did you sign those" photocopies? "Yes". Then they tender the photocopies. What is going on in this trial?

MR BYRNE: I accept that, your Honour. There is one very significant - - -

GAUDRON J: Were they represented?

MR BYRNE: Yes.

GAUDRON J: And the Crown was represented. Well, I mean, you know, this is a very busy Court. We should not have to deal with things like this. One could only assume, if this is the sort of process that is going to go on in the criminal courts of New South Wales, we are going to be flooded with criminal matters.

MR BYRNE: Yes. Your Honours, there is one matter that I should raise that - I am not sure whether the Crown can assist. I have not raised it with them. But, as one reads both the voir dire proceedings and the trial proceedings and the way in which exhibits were tendered and photocopies of exhibits were signed and so on, it is not entirely clear from the evidence - and there is no place that I can discern it and no place that either Mr Corish or Mr Austin have been able to discern it - that it is clear that both officer Crampton and officer Peterson identified, in fact, the same photographs. It would be a matter of some significance, but it is not referred to anywhere.

GUMMOW J: Were they shown exhibit K and exhibit O?

MR BYRNE: Yes, but it is not - - -

GLEESON CJ: Where does exhibit K get in? Where do we see exhibit K being tendered in evidence?

MR BYRNE: Exhibit K was introduced - I have a reference to that. Your Honours, line 37 on page 115 is where exhibit K was admitted, the book of photographs.

KIRBY J: What is your theory of the proper conduct of the trial, given particularly, say, photographs 25 and 26, where there is quite a well lit version in exhibit K of the face? Is it really your theory that banks put up these video cameras, the material is available, police do happen to know some suspects and that, if pressed, they cannot give evidence as to their identification of the people, or at least their opinion that that is the person? Do you say a policeman could not give an opinion looking at No 25 and say, "Well, I believe that is X because I have had dealings with him"?

MR BYRNE: No, your Honour.

KIRBY J: Subject to the exclusion - I agree that there is the exclusion at the end if it is outweighed by - - -

MR BYRNE: That is a separate matter.

KIRBY J: But, I mean, why bother putting up the video things? Every person who goes into a bank is going to try to hide their face, well, why - - -

HAYNE J: Because this was a single issue trial, was it not?

MR BYRNE: Yes.

HAYNE J: The single issue in this trial was, "We have a photograph of the offence actually occurring." "Was the offender the man who is in the dock?" That was the only issue in this trial.

MR BYRNE: Yes, your Honour, that is right.

HAYNE J: That was an issue for the jury. It was not an issue for a policeman to get into the box and start advocating particular answers to it, which, in the end, is all this evidence amounted to.

GAUDRON J: There are, however, reasons why the banks put up these video cameras. They are to act as a deterrent and secondly to aid in the investigation process. They may also aid in the trial process, if matters are properly proved. Undoubtedly the photographs were admissible, on any view, assuming they were properly proved.

MR BYRNE: Yes, no question; we do not challenge that at all.

GAUDRON J: Whether the photocopies and enlargements were properly proved in this trial, seems to me to be a very large question, but certainly the video was admissible and had people properly proved them, which they may have, but it does not seem to me that they have, stills from the video would have been admissible.

MR BYRNE: Yes, we accept that. All of the real evidence was admitted without objection and we do not challenge - - -

GUMMOW J: Now, exhibit K went in at 115 and then, as Justice Hayne points out to me, at line 55 it is clear enough there was one copy to go around among the jurors and then exhibit O went in at 129 - - -

MR BYRNE: Yes, line 23.

GUMMOW J: About line 23. I do not know whether there was a duplicate set of them or not. Then there were these mysterious photocopies.

MR BYRNE: Well, the photocopies that were signed by officer Crampton were - again, it is unclear whether they were the same photos as were identified by officer Peterson. The Peterson photos went in at 160 as exhibit Q. That is line 2 on page 160. The photos that had been signed by officer Crampton appear to have merely been marked for identification. They were not admitted as exhibits during the course of his evidence, as I read the transcript. That is at page 150, line 25.

Your Honours, just if I can add, with respect, to something your Honour Justice Gaudron just observed about the use to which these photographs can legitimately be put, that they obviously have a use if the photographs are of sufficiently good quality, because they by themselves will often be enough to prove the case, whether they be still photographs or video photographs. But the real use to which they can legitimately be put is the use which was contemplated by this Court in Alexander's Case and that is, in the process of detection in identifying a particular person who might be considered to be a suspect so that that person's identity can be further investigated by reference to the eye witnesses to the offence.

In this case, what effectively happened was that the process of the accused person becoming a suspect, that is, his being nominated as a person in the photograph by an investigating police officer was converted into the evidence, not which established him as a suspect but the evidence which proved his guilt.

HAYNE J: Why is that not all entirely beside the point? The relevant point being that there is a visible record, available to the jury, of the offence being committed. The jury have before them what happened and the question is: who were the actors in it? I say, a single issue trial.

MR BYRNE: Certainly, your Honour. It did seem, however, that there was not any issue raised with the proposition that the photos, by themselves, were not good enough to prove guilt. I do not know why that was done; perhaps the actual photos that were before the jury might - which I have not seen, I have to confess - the actual exhibits may shed some light on that.

HAYNE J: Are budgetary constraints in New South Wales so tight that a trial at which a man can face six, eight, ten years imprisonment is to be conducted with 12 jurors sharing one set of photographs? If it is the position, that is startling, and, for my part, entirely unsatisfactory.

MR BYRNE: I am not really in a position to talk about budgetary constraints, but - - -

GUMMOW J: Well, the Solicitor-General may be.

GLEESON CJ: Where is exhibit K?

MR BYRNE: Exhibit K is probably in the possession of my learned friends.

GLEESON CJ: I would like to see it.

MR BYRNE: May it please, your Honour.

GAUDRON J: I take it exhibit K was compiled by somebody from a video.

MR BYRNE: There was an officer from Chubb, the security company, who gave evidence at the commencement of the proceedings about - and that was that man, Mr Small - about how that document was put together. My understanding is it was not a video, it was one of those rapid-exposure cameras which takes a series of still photographs very quickly, as can be seen in these pictures there. The movement from one picture to another is relatively brief - short.

KIRBY J: It has to be activated, does it? I think I read that it had been activated.

MR BYRNE: I am not sure whether they are not permanently on - - -

KIRBY J: I thought I read that it had been activated.

MR BYRNE: I am not sure about that.

GLEESON CJ: It seems to me in photographs 19 and 20 that we first get a look at the relevant offenders face and then we go on from there.

MR BYRNE: I have to concede, having seen them, that they are certainly no worse in quality than these copies that have been produced recently and the copies that are actually reproduced in the appeal books are much worse, but the real evidence - - -

KIRBY J: Now, the jurors had these actual photographs and they had the accused sitting in court and they were entitled to look at the accused and look at the photograph?

MR BYRNE: Yes.

KIRBY J: So, as far as we know, they did what juries have done for centuries; they just looked at the evidence, did not worry too much about the verbal statements of the police. Would that not have been open to them?

MR BYRNE: No, it would not have been open to them on the way in which the learned judge left the case to the jury.

GUMMOW J: We had better see that, I think.

MR BYRNE: Certainly.

GUMMOW J: Why are these exhibits handed back to one party? They should be with the Court.

MR BYRNE: Sorry, your Honour.

GUMMOW J: These exhibits should be with the Court.

MR BYRNE: The exhibit K?

GUMMOW J: Yes.

MR BYRNE: We do not have access to them, of course, once the trial - - -

GUMMOW J: I know. The Court does not at the moment either. They are usually deposited with the Court.

GLEESON CJ: You are showing us where the trial judge left it to the jury on a basis other than that they could just sit there and compare the photographs and the features of your client.

MR BYRNE: And as the relevant directions commence at page 191, as your Honour Justice Hayne has said, that the learned judge identified the case as a single issue case - perhaps in the middle of page 191 line 25, if I can take your Honours to that part of the summing up, after referring to the elements of the offence of robbery; being armed. Her Honour said:

No-one has put that issue, or any of those issues, or any of the ingredients that I have just read out to you, in dispute.

GUMMOW J: Well, yes.

MR BYRNE:

The only, I would suggest, issue in this trial is whether or not the accused -

note that there were two of them, of course -

were two of those four persons. That is really the only issue, and that is why the Crown case depends entirely, or almost entirely, on that identification evidence from Constables -

in the case of this appellant, Crampton and Peterson. Trevallion identified the other.

GLEESON CJ: Sorry, what page is that, Mr Byrne? I see.

MR BYRNE: Page 191, your Honour.

GLEESON CJ: Yes, thank you.

MR BYRNE: Her Honour went on to deal - - -

KIRBY J: Is that to be read against the background of the concession by the prosecutor that they could not rely on the film or photograph alone?

MR BYRNE: Yes, your Honour.

KIRBY J: Have you put on the record where that concession is made?

MR BYRNE: It does not appear on the record as I read the transcript. The only place where it is evident is that passage - - -

GUMMOW J: You took us to page 73.

MR BYRNE: Yes, that is the only place that I could - - -

GUMMOW J: Line 22.

MR BYRNE: - - - yes - see where there is a record of the concession having been made.

KIRBY J: I see.

HAYNE J: And the jury rather wondered what was going on, as is evidenced by the question they asked.

MR BYRNE: Yes, I accept that.

HAYNE J: Which, no doubt, you will come to at page 216.

MR BYRNE: Yes.

HAYNE J: And the redirection that then ensued. They were asking, "Can we look at the photos?", and they are given a direction upon, "Well, it all depends on the evidence of the policemen".

MR BYRNE: Yes. Your Honours, it went - - -

GLEESON CJ: It is a pretty sensible question.

HAYNE J: And a rather unusual answer to bring in by counsel for both sides.

MR BYRNE: They had previously asked for a magnifying glass, which was also surprising, perhaps.

HAYNE J: Why not? Why should they not have got one and why should they not have sat there, having stared at the accused throughout the trial, and formed their view, with whatever warnings are appropriate to the process.

MR BYRNE: The interesting, perhaps, response to the request for a magnifying glass was to say, "Well, the two officers who had made the identification had not used a magnifying glass so you are not allowed to either because" - - -

GUMMOW J: Where do we see that illumination?

MR BYRNE: That is, your Honours, a little earlier.

GLEESON CJ: But that supports what you are saying, does it not?

MR BYRNE: It does, in my submission.

GLEESON CJ: Because that demonstrates again that it was being put on the basis that the critical evidence was the evidence of recognition by the police officers.

HAYNE J: The magnifying glass incident seems to be around page 181.

MR BYRNE: Yes. The request at page 180 line 40 and then the whole issue went off or was decided on the basis of what the police officers did, as your Honour the Chief Justice has said. That is the crucial evidence.

GLEESON CJ: The time will come, you know, Mr Byrne, and the time has come in some countries where an appellate court considering a matter like this will have in front of it a picture of the accused. The time will come and the time is here, in some jurisdictions, in which the trial will be videoed and the appellant court will observe the demeanour of the witnesses in the box. What the consequences of that will be is another interesting question but there are some places in the world now where trials are videoed as a matter of course and the witnesses who want to do so can buy the video tapes of their evidence, perhaps even buy all the video tapes of their evidence. But, so far as we know, there was no beard or moustache grown or no hair shaved or no relevant feature of the appearance of your client at the trial that made it difficult to compare him with the photographs, except such difficulty as might have arisen from the photographs themselves.

MR BYRNE: There was no reference to any change in his appearance.

HAYNE J: And there was a photo of him in evidence on the day of his arrest, see page 290.

MR BYRNE: Yes, there was. The photo that was taken on the day of his arrest was also admitted without objection, but not left as having any really significant weight in the trial at all.

GLEESON CJ: Let it be supposed that there had, on the Crown case, been a marked change in appearance, in other words, let it be supposed that a thin man depicted in the bank's security photographs had, by the time the matter came on for trial, become a fat man.

MR BYRNE: Yes.

GLEESON CJ: As I would understand it, you would say the police would be able to go into the witness box and say, "We knew Mundarra Smith very well and we knew him in these circumstances and at the time this offence was committed he was a thin man".

MR BYRNE: Yes, certainly. They would be able to say that, certainly.

GLEESON CJ: But they would not be able to take the extra step of saying, "And I recognise that as a photograph of Mundarra Smith". That is the impermissible step.

MR BYRNE: Yes.

GAUDRON J: But they could say, could they not, "He was a thin man of a physique similar to that".

MR BYRNE: They could say that he was of a certain height, if his height had not changed.

GAUDRON J: Yes, but if for some reason you could tell the physique from the photograph, he could say, "And when I knew him he was of that physique - of that build - of the build shown in the photograph".

MR BYRNE: Yes. That is a distinguishing feature, an identifying feature which they are allowed to give evidence about.

GAUDRON J: Yes.

MR BYRNE: But, these officers, both of them, gave evidence of no identifying or distinguishing features, it was simply the bare evidence asserting recognition, that was all.

GLEESON CJ: And, indeed, by reason of the concession that you have drawn our attention to, the accuracy or the reliability of that act of recognition performed in the witness box became the focal point of the trial.

MR BYRNE: The recognition performed in the witness box and the recognition out of court as well because evidence of both was effectively given. Your Honours, that matter - if I might just perhaps make a further reference to it, the question of this concession, because it is obviously a matter of some concern - at page 17 of the written submissions that have been filed on behalf of the appellant we have made reference to the fact of that concession having been made and the assertion is there made that the images on the photographs were of such poor quality that the jury could not be satisfied beyond reasonable doubt basing their conclusion on the evidence of the photographs alone.

KIRBY J: Where are you reading now, I am sorry?

MR BYRNE: I am sorry, your Honour. It is at page 17 in the written submissions that we have filed on behalf of the appellant. Mr Austin conducted the - - -

GAUDRON J: Where - but we do not have that concession elsewhere. We cannot find it in the transcript.

MR BYRNE: It is not expressly made in the transcript, as I read it.

GAUDRON J: And it was not made before the Court of Criminal Appeal?

MR BYRNE: As I understand it, it was.

GAUDRON J: It was.

MR BYRNE: Mr Austin conducted the case in the Court of Criminal Appeal and the case, in Smith's Case, was at all times conducted on this basis, I understand. Your Honours, there are a number of references in the summing up which tend to support that proposition. I have already referred your Honours to the first reference that was made at page 191, but it went on further from there. Page 193, her Honour said - this is just alongside line 30:

As I have said, the most important aspect of the evidence in this trial to which you must have regard is the evidence of identification. Insofar as the accused Smith is concerned, that identification comes from Constables Crampton and Peterson.

No reference to the ability of the jury to use the exhibits as - - -

GLEESON CJ: Was it argued at the trial, and was it argued in the Court of Criminal Appeal, that the evidence of recognition given by Constables Crampton and Peterson was not relevant?

MR BYRNE: That argument has not been made, as I understand it. I was not in either case, but - - -

GAUDRON J: It was argued, was it not, that it was admissible, if at all, only as opinion evidence?

MR BYRNE: No, your Honour, the argument in both places, in the trial proceedings and in the Court of Criminal Appeal, was that it was opinion evidence and for that reason inadmissible.

GLEESON CJ: You would only get to that reason if the argument was relevant.

MR BYRNE: Yes, certainly. Relevance is a preliminary step.

GLEESON CJ: If the argument were irrelevant, you would not get past section 55 of the Evidence Act.

MR BYRNE: That is right.

GLEESON CJ: You would not be talking about opinion evidence, you would not be talking about exercising discretion.

MR BYRNE: Yes.

GUMMOW J: There are some certainties in the law of evidence that are there. No one seems to believe it, but there are, even under this Act.

KIRBY J: Maybe that is rash.

MR BYRNE: Your Honours, there is a further reference that is of significance at page 195 of the appeal book, where the learned judge in summarising the case, alongside line 10:

the evidence of Constables Crampton and Peterson is capable of establishing that the accused Smith was one of the four offenders -

and then this statement made alongside approximately line 15:

But whether or not that evidence does establish that the accused Smith and Nicholas were accurately identified, depends upon your assessment of those witnesses. In other words, it depends upon your assessment of Constables Crampton and Peterson as to the identification of Smith - - -

GLEESON CJ: All of which prompted the question from the jury to which reference has earlier been made.

MR BYRNE: Yes, certainly. There was one reference which I should take your Honour to in relation to this question of change in appearance. It is a matter that, as far as I am aware, has not been the subject of previous comment, but at page 197 - and it goes to this question of change in appearance - alongside approximately line 50, the learned judge says:

You will also need to consider if the appearance of either of the accused has changed between the time the photographs were taken, that is the bank security photographs, and the present day. In that regard, of course, you are entitled to look at the bank security photographs yourselves -

Your Honours, that direction is, with respect, highly objectionable, because it presumes that the photograph taken by the bank security camera is a photograph of the accused. It does not appear to have been the subject of any earlier comment since then, but that is a statement to an observation which should not have been made. Different perhaps, it might have been, if the jury had been asked to look at the photograph taken of the appellant on the day of his arrest, to which Justice Hayne has made reference.

KIRBY J: Were all these points reserved at the trial?

MR BYRNE: I raise that, because that is, as I read the material, the only reference to change in appearance, which - - -

KIRBY J: But you raise it. I mean, I want to know whether we have to deal with it.

MR BYRNE: Well, it is indicative of the fact that there is no real evidence of any change in appearance. No one has come along - - -

KIRBY J: But no application was made to her Honour to withdraw that direction or to redirect?

MR BYRNE: Apparently not, no.

GLEESON CJ: The trial judge pointed out in her exchange with counsel after the jury's question - and this is reflected in what she ultimately directed the jury - that there were a lot more photographs in evidence than there were photographs that had been relied on by the police for their purposes of identification.

MR BYRNE: Yes.

GLEESON CJ: They were entitled to look at all the photographs and not merely the photographs the police relied on, but she told them they were to do that for the purpose of deciding whether the identification of the police was correct.

MR BYRNE: Yes. Is this 219 your Honour is reading from.

GLEESON CJ: Page 219.

MR BYRNE: Again, that seems to support the proposition that it was the evidence of the police entirely that was relied on in order to establish identification not the real evidence of the photographs themselves.

HAYNE J: Some emphasis is given to that at 220, lines 7 to 12:

in order to determine whether you are satisfied beyond reasonable doubt that those constables -

accurately identified.

KIRBY J: But look at 217.

GAUDRON J: That was never the question. I mean, that really shows up how absurd this all is. The question is, was he the man in the picture, not whether the constables correctly identified him. It is adding an extra layer to the trial process.

KIRBY J: At 217, at line 15, her Honour says:

The standard direction which I gave them in terms of identification from bank security photographs was that they were entitled themselves to make a comparison between the accused and the persons shown in the photographs if they thought that they had a sufficient opportunity to observe the accused and use the photographs in that way.

It is only then that she goes on to say:

that doesn't allow them however to ignore the central issue -

which is the police evidence but did her Honour sufficiently correct that so-called central issue by giving the direction that she first refers to there at 217, because that is what the jury, as a matter of commonsense, is going to be doing, they are sitting there staring.

MR BYRNE: Yes.

KIRBY J: I mean, given the imperfections of most evidence, given that here there is actual evidence of the offence with certain imperfections but not the imperfections you normally get where you never have the film of the actual offence occurring, if there was a direction of the kind that her Honour first mentioned at 217, that would seem to be an accurate direction. Did she give that direction?

MR BYRNE: I am not sure that she actually said that in so many words.

KIRBY J: Well, I have not been taken to it and, if she did, I would like to be taken to it. If she did not, well, that is relevant because she obviously thought she had.

MR BYRNE: Yes.

GLEESON CJ: Now, does that cover what you wanted to put to us, Mr Byrne?

MR BYRNE: Your Honours, the only matter that we would perhaps wish to give emphasis is this, that there may be aspects of this individual case which surprise your Honours in the way it was conducted, but the importance of this appeal is not limited to this individual case. The fact is - and it is readily apparent from the fact that there were two cases of this kind before this very trial - there were three matters, three separate individual applicants, on the application for special leave. I am told that there are a number of matters which are awaiting trial in New South Wales where evidence of this kind is at issue.

GUMMOW J: The problem is the phrase "of this kind" I am afraid.

MR BYRNE: Well, evidence of identification by police officers of photographs when those police officers were not present at the scene of the offence. It is a device which is being used by the police to avoid using the much more desirable procedure, the procedure which has been, in effect, prescribed by the Evidence Act, and that is to use an identification parade or to use photographs and show them to the eyewitnesses of the crime, not to, as it were, use these photographs and take them to police stations where it is thought that the police might be able to assist and then use that evidence.

GLEESON CJ: Do we take judicial notice of that?

MR BYRNE: Well, your Honour, the mere fact that there are, in effect, four separate cases which are involved in this appeal - I appreciate there is not four separate appeals, but there are two cases in this trial and there are the other two cases which were the subject of a - - -

GAUDRON J: What you are asking us to do is to decide the matter on the question of admissibility and not on the way the trial was conducted.

MR BYRNE: Yes, certainly. There may be, and your Honours may have the view that there are shortcomings in the manner in which this trial was conducted. The important point for the future really is this Court's determination of whether this practice should be permitted.

GLEESON CJ: You talk about "this practice", but you made it clear, right from the outset of the special leave application, that the points you want to argue do not turn upon the fact that the witnesses in question were police officers.

MR BYRNE: That is right.

GLEESON CJ: And that is still your position, is it not?

MR BYRNE: Yes, certainly.

GLEESON CJ: I attempted to elicit that when I asked about the evidence given by the wife of that man in the blue jumper and the white open-neck shirt. The point you want to argue is a point that applies in both civil trials as well as criminal trials and applies to evidence of people who are not police officers as well as people who are police officers.

MR BYRNE: Yes.

KIRBY J: Could I just ask you, how would it get in as opinion evidence? What is the criterion under the Act for that?

MR BYRNE: Your Honour, our contention is that it is opinion evidence and - - -

KIRBY J: I am inclined at the moment to agree with that. I think the Supreme Court of Canada said that it is a matter of impression and therefore it is a matter of opinion rather than a conclusion from facts on which you can be tested, but is there something in the Act that confines opinion to particular categories of people with particular expertise and would policemen fall within that category or not?

MR BYRNE: In our submission, they would not. The general provisions in relation to opinion evidence in the Act are contained, firstly, in section 76. These have been annexed to our written submissions, but the general rule is that where an opinion is sought to be admitted to prove the fact about which the existence of the opinion is expressed, it is not admissible. What the evidence of these police officers was to say, "In my opinion, that is Mundarra Smith", therefore it is Mundarra Smith.

KIRBY J: How then do you get a doctor's evidence in, who says, "I believe there is a clinical diagnoses of doubt or I believe there is a clinical diagnoses of myocardial in infarction"?

MR BYRNE: That is section 79, which is generally perhaps loosely referred to as the "expert evidence" provision.

KIRBY J: Well, why would a policeman not be a person, by reason of training, study and experience, accustomed to studying still photographs of people in this situation?

MR BYRNE: There was no evidence of that in this case.

KIRBY J: You say, whatever may be the possibility, the basis was not laid, just that they were policemen?

MR BYRNE: There was no evidence given of their experience in looking at photographs or matters of that - - -

KIRBY J: There would be photographic examiners in the police department, would there not? One would think so.

MR BYRNE: Not for the purpose of making identifications of people. There may be a certain expertise in determining things about the photograph, but not for the purpose of making identifications.

GUMMOW J: Where it has been retouched, when it was taken, that sort of stuff?

MR BYRNE: That sort of things, yes.

GAUDRON J: The angle and the distance and that sort of thing, yes.

MR BYRNE: Yes.

KIRBY J: It just seems a little artificial that a policeman from Goondiwindi, who has to deal with particular people and sees a film in Goondiwindi, cannot come forward and say, "It is only my opinion, but I do this all the time, and I think that this is so and so." Then it is left to the jury to see, having regard to the evidence, whether they agree with the opinion or not.

MR BYRNE: But it is not an expertise. A person cannot be said to have - and it does not appear that this section was ever designed to accommodate that sort of evidence; it was not contemplated, at least, in the ALRC's report.

GAUDRON J: There might be some expertise in Goondiwindi about the breeding of horses, but I have never heard it suggested that it itself was a basis for any other expertise.

MR BYRNE: Particularly greyhounds, perhaps.

KIRBY J: I think the local constable would have lots of expertise in lots of departments.

MR BYRNE: It has not been suggested by the Crown at any stage of these proceedings, and I do not understand my learned friend to suggest that this evidence would be admissible by virtue of section 79, it is not expert evidence as such. Somebody cannot be said to be an expert in the identification of an individual.

GAUDRON J: Well, the real difficulty is, is it not, for a person to be recognised as an expert, there has to be a generally recognised body of reliable information upon which the opinion is based.

GUMMOW J: Yes, and the school of expertise, if you like, against which this alleged expert can be tested.

GLEESON CJ: This was never admitted as opinion evidence. It was your argument that because it was opinion evidence, it should have been rejected, but both the trial judge and the Court of Criminal Appeal said this is not opinion evidence.

MR BYRNE: Well, the trial judge did make an observation that if it was opinion evidence, it was, in any event, admissible. That was in the course of that judgment that I referred your Honours to earlier, the judgment on the admissibility of this evidence following the voir dire proceedings. This was at page 80 of the appeal book. Her Honour said this:

Assuming for present purposes that the evidence of the three police officers -

two in this case, of course -

can be characterised as opinion evidence, I would nonetheless conclude that it is evidence which comes within section 78 of the Evidence Act and that accordingly it is admissible.

That is at page 80. Section 78, which is loosely referred to as the lay opinion section, permits opinion evidence to be given - - -

KIRBY J: It has to be about the event. Police would have had to be there.

MR BYRNE: That is right. Where the persons perceived the event. It does not contemplate the viewing of photographs.

GLEESON CJ: Mr Byrne, I do not want to delay you unduly, but I am little concerned about the possible implications for other litigation on some of the issues we are looking at. Could I ask you to go back again to exhibit K1 and the man in the open white shirt.

MR BYRNE: Yes.

GLEESON CJ: Let it be supposed that in some other civil - where was this bank?

MR BYRNE: Caringbah in Sydney.

GLEESON CJ: Let it be supposed that in some other civil litigation it became relevant to an issue to know where William Jones was on a certain day and he was denying that he was in the vicinity of Caringbah on this day, and he says he was in Victoria, and that is a fact that requires resolution in a civil case. And then let it be supposed that one of the parties of that litigation says, "Just a minute, that is William Jones pictured here at Caringbah" on that particular day.

Now, that may be being tried by a judge with or without a jury. Somebody, you would say, could tender the photograph, and invite the judge or jury, if it were possible to do so, to compare the photograph with William Jones.

MR BYRNE: Who is before the court, presumably.

GLEESON CJ: May or may not be, in the example I have given.

MR BYRNE: Yes.

GLEESON CJ: But it is not open to anybody to call Mrs Jones to say, "I do not know anything about the circumstances in which that photograph was taken, but I know or I recognise the person in the photograph as my husband."

MR BYRNE: No, it would not be, because that is evidence of an opinion.

GAUDRON J: But she could do a number of things.

MR BYRNE: Yes, there is certainly a number - - -

GAUDRON J: She could say, "My husband had those clothes; it was his habit to hold his hands in the manner depicted in the photograph" - - -

MR BYRNE: The hairstyle is quite significant.

GAUDRON J: The hairstyle was similar; he had similar coloured hair; and, "Here is another photograph of him that was taken two weeks prior to the day in question, that I took of him."

MR BYRNE: Of course, people from the bank would be allowed to come and say that that depicts the Caringbah bank and we have other evidence to establish the time at which the photograph was taken, the date on which it was taken, but - - -

GLEESON CJ: But you cannot say - - -

MR BYRNE: No.

KIRBY J: It seems a funny way to go about it. I mean, I could understand - it may be what the Act requires, but I could understand that the law would say you can have the wife say, "Look, I have lived with this man for 39 years, and I believe it is my husband.", and the judge to say, "People can make mistakes in interpreting photographs and people have constantly made mistakes about identification evidence, and you have to be given warnings about this and that." But to say that she cannot say "It is my hubby" seems a little bit unrealistic, but it may be what the Act requires.

MR BYRNE: It may be, with respect, unrealistic, but it is an unusual situation where a matter of that kind is going to be in dispute. I appreciate the example that your Honour has formulated, but it is going to - - -

GLEESON CJ: The man may be dead.

MR BYRNE: And if he is, the relevance of the fact that he was there on that day to the case - it is hard to think of an example where that might be sought to be done.

GAUDRON J: An issue may or may not arise whether a particular person is dead.

MR BYRNE: Yes.

GAUDRON J: A photograph may be the critical evidence, if you like.

GLEESON CJ: There might be a dispute in a family law case to which it is relevant to decide whether he could possibly have been in Caringbah at a bank on the day this happened.

MR BYRNE: In those circumstances there is available means of giving evidence of the person's distinguishing features.

GAUDRON J: And of proving other photographs for comparison.

MR BYRNE: Yes, certainly.

GAUDRON J: Indeed, the point may well be that in 99 cases out of 100, there will not be any dispute.

MR BYRNE: Yes, and perhaps it should be said in determining what might be said to be the secondary issue in this case as to whether that sort of evidence, if it is seen under the Act to be admissible, should be admitted. Permitting a person to give evidence that a person depicted in a photograph is a close relative of theirs is a very different conceptual identification from permitting a police officer to say that, "I saw photographs in the confines of a police station and I made a recognition".

GLEESON CJ: That is what I am trying to understand. What I am trying to understand is the significance to your argument of the fact that we are dealing with police officers and that this is a criminal trial.

MR BYRNE: It is of no relevance to our primary argument, with respect, but it is relevant if our primary argument is rejected. Our primary argument is that the evidence is not admissible because it is opinion evidence, but if it were to be held that it is, in some way, admissible, either perhaps as expert opinion evidence or as lay opinion evidence, then the secondary consideration arises, and that is whether it should be admitted because of the inevitably prejudicial impact that it has, but that does not relate to our primary argument.

GLEESON CJ: All right. Thank you, Mr Byrne. Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours, I was not proposing to submit that this trial could not have been run in another way, but it is our proposition that the prosecution was legally entitled to run it in the way that it did, whether or not there might have been other approaches that could have been taken. Can I take your Honours first to the actual photographs. I will hand them up, your Honours. There is only the one set.

GLEESON CJ: I think we have seen them and we have satisfied ourselves that they are not materially better or worse in quality than the documents that we have.

MR SEXTON: On the contrary, your Honour. That is why I wanted to take your Honours to only three photos, if I may.

GLEESON CJ: All right.

GAUDRON J: And you could not run to five copies any more than you could run to 12?

KIRBY J: Things are not as generous as in her Honour's day.

MR SEXTON: No.

GLEESON CJ: I will look at them and then do what F.E. Smith suggested the jury were going to do with the small child once it had passed him along.

MR SEXTON: Yes, quite so, your Honour. In the larger set, which is the blue bound which is exhibit K, there is a photograph exhibit 35. I am really going to the photographs that were identified specifically by the two police officers in question. If your Honours have the photocopies, they can be found in those as well.

HAYNE J: In aid of what proposition are we going to these?

MR SEXTON: I am going to the question, your Honour, initially of the clarity of the photographs. I know that that only underlines the point, your Honour, that the trial could have been seemingly run in a different way.

GLEESON CJ: Yes, I think you were right to make the point that exhibit K 35 is a good deal clearer than our 35.

MR SEXTON: Yes. Now, that was identified by Constable Peterson. I will not take your Honours through the way in which this was done at the trial and - - -

KIRBY J: Not very clearer. It is not very much clearer. It still looks like a spectre from Hamlet.

MR SEXTON: What I am doing, your Honour - - -

KIRBY J: It is the ghost. It is the ghost. It is Hamlet's father who wandered into the bank.

MR SEXTON: Your Honour, Hamlet was the only person who was not in this case that - - -

GLEESON CJ: Yes, but Hamlet is not, on the argument against you, permitted to go into the witness box and say, "That is dad".

MR SEXTON: Quite so, your Honour. Now, in the smaller set, your Honours - there is a sticker in the smaller set. There are two photographs. They are the second-last and the third-last photos. I think your Honours have already seen these two, and your Honours will see that the first of them, that is the third-last, is a person leaning against what, some kind of perhaps air conditioning unit, I am not sure.

GAUDRON J: Automatic teller machine, I suspect.

MR SEXTON: An automatic teller machine. Your Honour knows more about banks than I do.

GAUDRON J: And perhaps more about this trial.

MR SEXTON: I cannot concede that, your Honour. In the second photograph, again, next to the same object, but in this case, as the Chief Justice pointed out, wearing a hood. Your Honour, those were two - the third-last photograph was identified by Constable Crampton and the second-last by Peterson, as with the other one. Now, your Honours, in the light of that - - -

KIRBY J: I am beginning to see why the judge or the Crown at the trial thought that there were sufficient imperfections in the photographs to allow them to be the source of identification. I mean, if one looks at the photograph, if it is of the appellant, the one with the hood near the bank automatic teller machine, it does not look like the photograph, exhibit N, to me, of the accused. It seems a more angular shaft of the face, which - - -

MR SEXTON: Your Honour, this is the point of evidence of persons who are well acquainted with the person in the photograph, which is what we say happened at the trial, that, of course, it may well be that for a stranger it is quite difficult to make an identification from a photograph, but for a person who is well acquainted - - -

GUMMOW J: What about a juror? We are going round and round in some rarefied whirl, and I just do not understand it.

MR SEXTON: Well, your Honour, it may be difficult for the juror for the same reason.

GUMMOW J: Well, we are doing it.

MR SEXTON: Your Honour is looking at it. Your Honour does not have to make the - - -

GUMMOW J: Well, you are inviting us to look at it for a purpose.

MR SEXTON: For this purpose, your Honour, to say that they are certainly clear enough for a person who was well acquainted.

KIRBY J: Well, you say that, but you must understand that the prejudice and the dangers that that has - say, policemen in Redfern who have had dealings with particular accused people - I mean, it is pregnant with danger and with prejudice.

MR SEXTON: Your Honour, that is a separate argument under section 137.

GAUDRON J: And the possibility of abuse.

MR SEXTON: But, your Honour, they are separate.

GAUDRON J: Of course, they are.

MR SEXTON: It is a matter for section 137 of the Act, which I will come to.

GUMMOW J: It is a matter of section 55, so far as I am concerned at the moment and unless you address me on that we are in deep trouble on this appeal.

MR SEXTON: I was going to start with section 55, your Honour, because to say that - the reason there is not a great deal about it in our submissions is because it had never occurred to us that this evidence was not relevant.

HAYNE J: Yes, just so.

GAUDRON J: Probative. Yes.

KIRBY J: Well, it had not been put against you, I think, in fairness to you.

MR SEXTON: It is also true that it was not argued on that basis below, but - - -

GAUDRON J: This evidence, to my knowledge, was not tendered. Such evidence was not tendered before this Act came in, was it?

MR SEXTON: There is no reason why it could not be, your Honour.

GAUDRON J: You say so.

MR SEXTON: Because there is no reason to exclude it.

GAUDRON J: Relevance.

MR SEXTON: Subject to the question of prejudice which his Honour Justice Kirby has raised.

GAUDRON J: And as I remember it was always said that you could not call evidence of the conclusion that the jury was supposed to reach.

HAYNE J: And the key to it here is the evidence amounts to, either in court or out of court, somebody saying not, "That is the man", somebody saying, "I recognise that as the man". Now, what is the logical relevance of X saying, "I recognise"? How does that bear upon the fact in issue?

MR SEXTON: Your Honour, the fact in issue is whether, in this case, Mr Smith was involved in the robbery.

HAYNE J: Yes.

MR SEXTON: The recognition of the figure in the photograph goes to whether or not Mr Smith is that figure and was present at the robbery.

HAYNE J: How does the fact that one, five, 25 other people say, "I recognise the man depicted at the right of pictures X to Y as being Smith" affect the process of reasoning which the jury are called on to undertake other than by them saying, "Well, look how many there are. It must be right"? It is not logical.

MR SEXTON: No, your Honour. The process of logic, your Honour, is that the recognition is being done by persons, in this case, well acquainted with Mr Smith.

GUMMOW J: What is "well acquainted with"?

HAYNE J: The level of acquaintance is somehow built in. "I know Smith. I recognise Smith. Therefore admissible", are the steps in the argument you have just laid out, are they not?

MR SEXTON: It is certainly a relevant consideration to that process, your Honour, because if there was no acquaintance at all, it is hard to see that the evidence would have any probative quality.

GAUDRON J: What was the jury question that had to be determined? What was the question the jury had to determine? It certainly was not, was it, the question that Judge Latham identified, namely, whether the police had correctly identified the person - - -

MR SEXTON: It is not the ultimate question, your Honour.

GAUDRON J: No. What was the question?

MR SEXTON: "Was Mr Smith involved in the robbery?".

GAUDRON J: Yes. All right, we can come back one step beyond that and it was whether Mr Smith is the man shown in these photographs.

MR SEXTON: Yes, your Honour.

GAUDRON J: And that was still the jury question, not the question whether the police had correctly identified him.

MR SEXTON: There is a close connection, in this case, between those two questions,

GAUDRON J: There is a close connection, but there is a point of distinction, is there not? The question never was, for the jury, whether they had been correctly identified. The question was whether this was this man. A question that they could determine by their own eyes or with the assistance of photo-enhancing equipment, could they not?

MR SEXTON: Are you saying that it could have been enhanced in this case, your Honour?

GAUDRON J: Yes. Well, let us assume there were not any problems about the photographs. Let us assume they were perfectly good photographs, for a change. The jury could determine that question, could they?

MR SEXTON: Yes.

GAUDRON J: Would evidence be admissible then, from Sergeant Crampton and Sergeant - or whatever, that they recognised the person in the photograph?

MR SEXTON: It would still be admissible, in our submission.

GAUDRON J: Why?

MR SEXTON: Your Honours, there are two ways of looking at the question of relevance. One is to say that there is no difference between looking at, for example, these photographs, extracted as they are from the camera at the bank, than being on the scene as a bystander, evidence that must be admissible. That is one way of looking at it, in our submission. The other way is to take the kind of example that the Chief Justice gave about one of the customers in the bank, and to ask the question of why that person could not be identified, if it were necessary, by someone who knew them well, because that was - - -

GLEESON CJ: Well, the question of whether Mundarra Smith was at the National Australia Bank at Caringbah on 26 June 1997 is a question that could be relevant to an issue in a whole variety of kinds of litigation, not necessarily a question that only arises because it is alleged that Mundarra Smith happened to be robbing the bank at the time. One thing I would like to get clear in my mind, is what, if any, difference it makes that the question is being looked at by us in the context of an allegation that he was there robbing a bank.

Let it be supposed that, in some civil litigation, it is relevant to know whether or not Mr Smith was at the National Bank at Caringbah on 26 June 1997, and a party to the litigation sets about seeking to prove that he was by, first of all, tendering a photograph which he proves was taken at the bank on 26 June 1997. So the photograph goes in. And then he calls a witness - and Mr Smith may be nowhere near court for anybody to compare his features with the photograph, he calls a witness who says, "I am well acquainted with Mundarra Smith." The next question that arises is, "What further evidence can that witness give?" It seems to be agreed that the witness can say, "Mundarra Smith is a person is of Aboriginal appearance who commonly dresses in an Adidas track suit and owns a distinctive peak cap of a certain kind and is about six feet tall and is about 25 years old and weighs about 12 stone."

A question that we may have to answer is whether the witness can go on and say, "I am well acquainted with Mundarra Smith" - perhaps "I am Mundarra Smith's mother, and I recognise the person in the photograph as Mundarra Smith." Now, does the answer to that question depend on such things as whether Mundarra Smith is present in court for a judge or a jury to compare him with the photograph?

MR SEXTON: Not in our submission, your Honour. We say that there are some difficulties about the Evidence Act, but it would fly in the face of commonsense that that evidence could not be given. That would be our submission. Can I just address Justice Gummow's concern on the question of relevance? We would say that this is similar to the notion of voice identification in the sense that if the accused does not give evidence and there is only a - - -

GUMMOW J: The only fact here is appearance and the appearance is disclosed through observation by the eyes and the individual is in the dock.

MR SEXTON: He may not be, in some cases.

GUMMOW J: Well, the example we are dealing with, he is.

MR SEXTON: Yes.

GUMMOW J: The jury can look at him. They do not have to hear him. They do not have to see him walk. They do not have to do anything but look at him. Now, examples that take other situations where people are out of court, for example, which you have just been dealing with, do not seem to me to meet the point.

MR SEXTON: Except that proposition, your Honour, means that if films or photographs taken in these kinds of circumstances are not, themselves, extremely sharp, then their use will be effectively nullified - - -

GUMMOW J: Why?

MR SEXTON: Because the jury will not be able to make an identification from those, whereas, in fact - - -

GUMMOW J: Well, they were trying to make a fist of it here and they were prevented from it.

MR SEXTON: This is not, your Honour, can I say, the ideal case from that point of view.

GAUDRON J: And it may be no bad thing that it is effectively nullified. The notion upon which the criminal law proceeds is that people are not guilty unless it is proved beyond a reasonable doubt, and if it cannot be proved beyond a reasonable doubt, then so be it.

MR SEXTON: Your Honour, it seems a very strange result that one would have the actual film or photographs of the offence taking place and that they could not be of any use in the proceedings.

GAUDRON J: Of course they can be. Nobody is saying they were of no use. They were tendered. Unless you are saying that it was to the advantage of the defence to have them tendered so that they could ask the jury to determine whether the police were correct in their identification. You would not need to tender the photographs, would you? Let us think about this on your argument. Would you need to tender the photographs from the bank?

MR SEXTON: In this case, your Honour?

GAUDRON J: Yes.

MR SEXTON: There was no - - -

GAUDRON J: No, no. I am just asking how the trial is going to be run if you are right. Do you need to tender the photographs?

MR SEXTON: I should say on this question, your Honour, that one factor that the jury would clearly have taken into account, and we would say were entitled to take into account, in assessing the evidence of the police officers as to whether or not the person in the photograph was Mr Smith, was the appearance of the photographs and the appearance of Mr Smith before them.

GUMMOW J: Yes, but you would be tendering the photographs on a false issue, really, namely, the cogency of the police evidence.

MR SEXTON: No, your Honour, well it goes to the - that is why I say that the clarity of the photographs has some significance here because the jury would be - - -

GAUDRON J: Well, if the photographs are not clear the best evidence of the policeman can be, "It is my best guess". If the photographs are not clear and his evidence is based on unclear photographs, in truth, his evidence can only be, "It is my best guess".

MR SEXTON: Well, you see, your Honour, we do not - - -

GAUDRON J: Is that not right?

MR SEXTON: No, it is not right, your Honour, because there can be - - -

GAUDRON J: Then, what else could it be?

MR SEXTON: Because, your Honour, there is a large difference between a person who has a good knowledge of the person in the photograph looking at it from - - -

GAUDRON J: We are talking about unclear photographs.

MR SEXTON: Yes.

GAUDRON J: The premise from which you start, for this part of your argument, is that the photographs are unclear.

MR SEXTON: No, your Honour, I was saying that in some cases the photographs will be quite clear. They are not, in fact, unclear here.

GAUDRON J: All right. Well, then, let us look at the probative value of unclear photographs. Now, what - we concede the photograph is unclear. What can the policeman's evidence say? It can only be, can it not, "My best guess is"?

MR SEXTON: That analysis would exclude the evidence of family members of next-door neighbours.

GAUDRON J: Well, we keep talking about unclear photographs. Let us - - -

MR SEXTON: Well, your Honour, there is a range on the spectrum between a photograph that is useless and a photograph that is absolutely clear.

GAUDRON J: And if the photograph is absolutely clear then maybe there will be very few cases where there will be any dispute about the fact.

MR SEXTON: Well, except in the case of change of appearance, for example, that may be - - -

HAYNE J: Does not this reveal the principle difficulty that you have to face in your argument? Do you accept that the evidence given by the police in this case was evidence of their conclusion about the identity of the person depicted in the photograph with the accused?

MR SEXTON: We say it is not opinion evidence, your Honour.

HAYNE J: I am not asking about opinion. They gave evidence of a conclusion that they had reached, they say as a matter of recognition, that the person depicted in the bank security photographs was the accused.

MR SEXTON: Yes, your Honour.

MR HAYES: That is, they gave evidence of the conclusion that they had reached about the existence of a fact in issue.

MR SEXTON: Yes, your Honour.

HAYNE J: How does evidence of a witness, "I, the witness, have reached a conclusion" about the existence of a fact in issue - - -

MR SEXTON: I am sorry, perhaps, your Honour, it is not the fact.

MR HAYES: The knife in the napkin has become apparent to you, has it not?

MR SEXTON: I was only going to say, your Honour, it is not the fact in issue, but it is a step in reaching that conclusion.

HAYNE J: Would you accept that a fact in issue on the trial of the appellant was whether it was the appellant who was the person depicted in the photograph.

MR SEXTON: It goes to a fact in issue, your Honour.

HAYNE J: I do not understand that to be either a positive or negative answer to the proposition I put. Was a fact in issue on the trial of the appellant whether it was the appellant who was the person depicted in the bank photographs?

MR SEXTON: It is not the fact in issue that the jury is deciding, but it is an issue in the trial.

GLEESON CJ: It is a fact relevant to - - -

GAUDRON J: Because what the fact - the jury was deciding on the way it was left to them was nothing like that, was it? It was entirely different, whether the police had correctly identified him.

GUMMOW J: Which is a false issue.

MR SEXTON: I am sorry, your Honour, that is not the ultimate fact in issue either.

GAUDRON J: No.

KIRBY J: Can you tell me did her Honour give the direction that she thought she gave at 271?

MR SEXTON: I do not think so, your Honour.

KIRBY J: So that was a mistake on her part that she thought she had given that.

MR SEXTON: Well, I cannot find it, your Honour. That is all I can say.

KIRBY J: Did the Crown make the concession - you accept the Crown made the concession, do you?

MR SEXTON: No, your Honour, it is not a concession. It is the way in which the trial was run.

GUMMOW J: One has to look at page 3, perhaps, of the appeal book.

HAYNE J: Lines 53 and 54 where you can see the genesis of what was described as the concession in rather elliptical terms.

MR SEXTON: Did your Honour say - - -

HAYNE J: Three.

MR SEXTON: At lines 3 - - -

HAYNE J: 53 and 54.

MR SEXTON: Well, I am not sure that - - -

GLEESON CJ: It is little ambiguous there.

MR SEXTON: - - -that it is binding anywhere. I do not want to resile from the way the trial was run because it is on the record and it is quite true to say, given the quality of the photographs, that it is puzzling that it was not also run, at least, in some other way, but the question is whether it was legally possible to do it in the way that it was. That is our proposition.

GAUDRON J: What is the best thought process, from your point of view, engaged in what you call the recognition process? I ask you this because it seems to me that one needs to get that clear to determine why this might or might not be relevant. You look at the photograph and you say, "I know somebody who looks like that", do you? Well, what is the thought process - - -

MR SEXTON: The thought process is look at the photograph and say, "That is X".

GAUDRON J: Yes, but "That is X" is the conclusion. I mean, it may be that your brain processes work very quickly.

MR SEXTON: I suppose, one might enter the caveat, "That is X, unless this is a doctored photograph of someone made up to look exactly like X", that might be a - - -

GLEESON CJ: Well, can I ask you this? What is that you are drinking?

MR SEXTON: It is water, your Honour.

GLEESON CJ: Is that a statement of fact or an opinion?

MR SEXTON: I would say it is a statement of fact.

GLEESON CJ: What are the thought processes by which you came to that conclusion?

MR SEXTON: From drinking from the glass on the last occasion, your Honour, and, I suppose, from its - - -

GLEESON CJ: I think probably what you are saying is, "That I recognise the liquid that I am drinking is water". Exactly why you are doing it or whether there is a process of reasoning involved is a different question, but we do it all the time.

MR SEXTON: Your Honour, I can come back to the question of opinions and facts, but we say this is not opinion evidence, but if your Honour is asking me that in the context of relevance - - -

GAUDRON J: Well, I am asking you in the context, yes, of particularly blurred photos. You have said these photographs are not entirely clear, and it seems to be the - - -

MR SEXTON: But, your Honour, putting aside the question of police officers for a moment, which introduces another element, although that is really a section 137 question, I think the way my friend puts his argument. If one looks at the notion of family and neighbours and civil cases and so on, really the way in which that evidence has to be assessed by the tribunal of fact depends upon the quality, for example, of the photograph and the way in which the evidence is given by the person, who says that they recognise it, and the degree of association that they have. It is quite possible, in our submission, to recognise a person who is well known - - -

GAUDRON J: But somewhere, at some stage, at least, your argument has to come to grips with the unclear photo, because that is what you concede you have got, and it may well be that you are in a different area of discourse with the unclear photograph.

MR SEXTON: But that will go to the question, your Honour, of how that evidence is assessed and how it can be tested. If it is a very bad photograph, it is obviously open to put the proposition that no one could recognise anybody from that photograph.

GAUDRON J: Exactly. You see, with the clear photograph, you will very rarely need evidence of the kind here in question in a criminal trial, or perhaps, rarely in any other matters too.

MR SEXTON: But, your Honour, that is where section 137, of course, could come in. Section 137 could apply in cases where the evidence was not given by a police officer, because its probative quality would be low, its prejudicial quality might be reasonably high, but we say that does not affect the threshold question of relevance. It must be relevant, in our submission, for a person with a degree of association with the accused to point to a photograph, for example, taken at the scene of the crime and to recognise the accused. The weight of that evidence is something that could vary enormously and it may be excluded on the basis of section 137, but as a threshold question of relevance, in our submission, it must be relevant.

GUMMOW J: Why?

MR SEXTON: Because, your Honour, if the fact in issue is the accused's involvement in the bank robbery, one fact that is relevant to that is his presence at the scene, therefore, whether he is the figure in the photograph.

KIRBY J: If one were convinced that - - -

GUMMOW J: Whether the person in court is the figure in the photograph.

MR SEXTON: Assuming that he is in court, yes, your Honour.

GUMMOW J: Well, he will be, will he not? We do not have trials in absentia yet.

MR SEXTON: No. In the case of a criminal case, that is right, your Honour. But this is a proposition that is more general than that.

GAUDRON J: Well, I do not know. The proposition in a civil case may not quite be the same.

GUMMOW J: Exactly.

GAUDRON J: And the question for the jury is whether the person charged, that is to say, the person in the dock, was the person in the photograph and, therefore, the person who participated in the robbery.

KIRBY J: If one took the view, which apparently the Supreme Court of Canada did, that this evidence is opinion evidence, that it is a conclusion based on the facts of the policeman's experience and his knowledge and his encounters and his looking at the photographs in the police station and knowing the girl, and so on, if you take the view that it is opinion, you do not seek to support this case on that footing?

MR SEXTON: Well, yes, we do, your Honour. We say that it would still be admissible. We say that is not the correct approach and I will take your Honour to that, but if there is a spectrum of fact and opinion, we would say that this has to be pretty close to the factual end, a bit like the glass of water.

KIRBY J: You say that but the whole point of 30 years of experience of the common law in this country and elsewhere, the mistakes that can happen with identity evidence and that those mistakes can be made by policemen as well as by anybody else.

MR SEXTON: But that does not go to the question of whether it is fact or opinion, your Honour. It goes to the question of the kind of protections that you have, including section 137.

KIRBY J: No, it is a question of whether when you say that is a person, especially based on imperfect material, as is the case here, that you are stating a fact or stating opinion. How can it be a fact? It is an inference drawn from looking at the photograph and remembering the encounters you have had with the appellant.

MR SEXTON: But, your Honour, if one was shown a photograph of one's parents, for example, it is the same principle. We would say it would be a strange result to describe that as an expression of opinion.

KIRBY J: I do not see why. It is my opinion that that is Mr Smith.

GAUDRON J: And what else could it be in the case of an unclear photograph, a matter which you keep refusing to deal with?

MR SEXTON: Well, your Honour, it is still, in our submission, a factual question, but in the case of an unclear photograph there are a lot of other considerations that arise and that may go to the admissibility and would certainly go to weight, but would also go to admissibility. But we still say that it is a question of fact and not of opinion. If it be considered a question of opinion, then we say it would be admissible under section 78, and I will come to that.

I should say this evidence has, of course, been admitted in a range of cases, in this country and in England, and it is quite true, to answer your Honour Justice Kirby, that in some of those cases it probably has been suggested, although it has never been analysed or argued fully, that it was, what was then called, lay opinion evidence. But, as your Honour knows from, perhaps, our written submissions, we have made the argument that, in fact, it is not opinion evidence.

KIRBY J: I know you keep saying that but I just - - -

MR SEXTON: I will take your Honours to it.

KIRBY J: I find it difficult to get my mind around the notion that something which is a conclusion, especially from imperfect primary material, that X is the person in the photograph is not an opinion, as distinct from a fact. The fact is known to God and maybe to the appellant but the policeman does not know it. He was not there and, therefore, all the policeman has is the photograph and he can state his opinion.

MR SEXTON: But, your Honour, on that approach and on my learned friend's approach, that would be equally true in the case of a very clear photograph of one's parents, for example, and, of course, it can be analysed in a way that that is put forward as an expression of opinion. It does not seem to us that that is the right analysis for that kind of situation and, if that is correct, then all that it means with your Honour's examples is that there would have to be safeguards for that situation, but it does not mean that the evidence is opinion evidence.

KIRBY J: But even with your parents you sometimes see a photograph and you think, on a quick glance, "That is a parent" or "That is a family member" and then you look again and it is not.

GLEESON CJ: There is a very famous photograph said to be of Mr McAlary which, as you may know, is the subject of Australia-wide contention.

MR SEXTON: Yes, there is, your Honour. Well, your Honour, I imagine the people who knew Mr McAlary at the time could probably make a pretty good judgment about that and we would say that they would make it as a judgment of fact. It is a clear photograph, as I recall.

GLEESON CJ: If the mother of Mr Smith had given evidence at the trial that the person in the photograph was not her son, would that have been admissible?

MR SEXTON: I think, on our argument, it would be admissible, your Honour.

GAUDRON J: And that she could not say one way or the other, would that be admissible?

MR SEXTON: That would have to follow, also, your Honour.

KIRBY J: And all of this is getting between the jury and the primary evidence and diverting the trial into, "Do you believe the mother and do you believe the policeman?", as distinct from, "What do you think looking at the accused sitting there, staring at him and looking at the evidence?", which is what it should be, one would think.

MR SEXTON: Ideally, your Honour, but that assumes that that comparison can be made, from the materials.

HAYNE J: But that identifies, does it not, that there may be an important refinement of the issue that I first put to you. The issue for the jury is not to be cast in past tense; it is to be cast in the present tense. Is the person, who is depicted in the photograph we now have before us, the person who is standing trial in the court today? And how does someone else's conclusion about that question bear upon the jury's chain of reasoning?

MR SEXTON: Because there may be persons who are much more easily able to recognise the accused from the materials before the court.

GUMMOW J: He is before the court.

GLEESON CJ: That is what I would like to understand a little better than I do at the moment, Mr Solicitor. What is it about these photographs, or what was it about what was going on at the trial - I can think of some possible answers - but what was it that produced the result that people who were well acquainted with the accused, including his mother, were in a better position to recognise him as the object of those photographs than the jury were?

MR SEXTON: I cannot answer that in terms of the trial, your Honour.

GLEESON CJ: It may have been, for example, as was discussed earlier, that if he had grown a beard or a moustache or shaved his hair or gained a lot of weight, you could think of an explanation, but, so far as I know at the moment, I cannot think of why close personal acquaintance with him produced the consequence that you are in a better position to recognise him from these photographs than the jury were. But there may be an explanation.

MR SEXTON: Well, it was not evident to me from the materials, your Honour, that is all I can say.

GLEESON CJ: That does not necessarily conclude the matter, the fact that evidence is not rendered irrelevant or inadmissible by reason of the fact that there is another process of getting to the same conclusion

MR SEXTON: When I said that at the start, your Honour, I was saying that it is puzzle for anyone coming to this trial for the first time, looking in hindsight, obviously, but it does not, in our submission, negate the use of the evidence if it was otherwise admissible and if it was not ruled out by, for example, section 137. There is a puzzle, but the answer to it does not emerge from the transcript.

GLEESON CJ: The fact that the ultimate issue was also for the jury does not make it inadmissible, does it? I mean, presumably, a policeman could have said, "I was at the bank of Caringbah and I saw the accused there."

MR SEXTON: Well, we say that, your Honour, if, in fact, one way of looking at this kind of evidence is if the police officers had been present at the bank, they would, presumably, have had the same reaction. In other words, the customers and other person for whatever reasons, probably they were extremely frightened, were unable to focus on any of the individuals, but two police officers who happen to be there, these two police officers would, for example, have had the same reaction. They would have said, "Well, I recognise that person."

It illustrates in our view why the evidence is certainly relevant, because they must be able to give that evidence.

GLEESON CJ: But does this bear on whether it is a matter of fact or opinion. If a police officer had been there and had said, "I am well acquainted with Mundarra Smith, and I recognised him as one of the four men," would that be a statement of fact or statement of opinion?

MR SEXTON: We say it is a statement of fact, your Honour, and that is why we say if all that one has done is to obtain a photographic record of the event and show it to someone, perhaps a police officer, perhaps someone else who knows Mr Smith well, then it is factual evidence for the same reason.

KIRBY J: You say it might be mistaken factual evidence but it is factual evidence.

MR SEXTON: And it is evidence that can be tested. It can be certainly put that it cannot be done from the photographs or, for example, if the circumstances were such that that could be done to someone who was actually there as a so-called eyewitness but it seems to us artificial. It would be possible as a philosophic exercise to say that all statements are statements of opinion but if one is going to have two categories, statements of opinion and statements of facts, we would say that those kinds of statements fall on the line and are counted as statements of fact.

Now, your Honours, I have addressed the question of relevance and I was going to go, I hope briefly, to that issue of fact and opinion. I will just refer your Honours to some of the authorities and then to simply look at the section, I hope briefly, of section 137, which assumes, of course, some probative value and therefore relevance.

KIRBY J: The roads to 137 lie either through relevance, probative value getting in on that footing or opinion, and getting through that footing, lay opinion. Am I understanding the scheme of the Act correctly?

MR SEXTON: Yes.

GLEESON CJ: Well, just a minute. Relevance is always the gate.

MR SEXTON: Yes.

GLEESON CJ: There is only one gateway into the admissibility of evidence and that is relevance. If it is not relevant, you put the glasses down.

MR SEXTON: We accept that, your Honour. So, we start with the question of relevance.

GUMMOW J: It may be relevant but it may be opinion evidence. That is bad, too, unless you then bring yourself to the qualifications for that and by that route you then may get to 137, but you always have to start at the gate, 55.

MR SEXTON: Yes. Your Honours, on that question of opinion evidence - I will not take your Honours to them in detail. The term "opinion" is not defined in the legislation but we would say that the descriptions or definitions in the cases largely suggest that opinion embodies the notion of an inference or a conclusion that is drawn from established facts. It was said by Justice Giles in Miller v Krupp (1991) 34 NSWLR 129 at 130 that it:

can be described as evidence of a conclusion, usually judgmental or debateable, reasoned from facts.

KIRBY J: Exactly what this one looks like. "I know Mr Smith. I have had dealings with him and his girlfriend. I know his face. I have had dealings with him over several years. I have been close to him. I have seen him at close range. I have seen him at distant range. I have seen him recently. I look at that photograph. From all this, I infer".

MR SEXTON: In our submission, that is not the way in which that thought process would work, your Honour. Even telescoping it, we would say that it is not an inference to be - - -

GAUDRON J: But, now, what if you add in the factor, "The photograph is unclear". I mean, I think there may be a difference if you say that. It is a perfectly clear photograph.

MR SEXTON: We would say not, your Honour. It may not, of course, be this case but we would say not because what the person recognising, or saying that they recognise, is doing is to say that, "Notwithstanding the fact that the photograph is not as clear as it might be that, nevertheless, I recognise that person. It is a person who is known to me."

GAUDRON J: I am just wondering whether your evidence can say that in the case of an unclear photograph. I wonder if, at best, the evidence is, "It is my best guess that that is a photograph of"?

MR SEXTON: Well, that is a question of weight and probative value, your Honour.

GAUDRON J: It may be a question of an opinion and you may be able to say, "In my opinion, it is a photograph of", but once you are talking about photographs that are not clear - - -

MR SEXTON: We say not, your Honour, but it is in a sense the same point that Justice Kirby makes, that because it is possible to analyse any statement in the way that your Honour does, but the question is - - -

GAUDRON J: No, no, I am just suggesting that you may well be right in saying evidence that I recognise something is a statement of fact and it is a statement of fact, whether it is a photograph or not; query to what extent I recognised a photograph is ever relevant in a case such as this; but once you get to the thing where you say, "I was shown some photographs, the photographs were unclear, but dah, dah, dah, dah, dah". I mean, in that process, do you not have to say, "The photographs are unclear, but"?

MR SEXTON: We say it is not a statement of opinion; it is a statement of fact. That may more easily be in error and may be the subject of quite a different assessment by the tribunal of fact and may be tested in quite a different way before the court, but it is still a statement of fact.

GAUDRON J: Can I just be sure about this. These policemen did not say, "This is a perfectly clear picture of Mr Mundarra Smith, and anybody could recognise it as such", did they?

MR SEXTON: Your Honour, I think their evidence was that, on being shown the photographs, they had no difficulty in instantly recognising Mr Smith.

GAUDRON J: The case does not go forward on the basis, "This is a perfectly clear picture of Mr Mundarra Smith and anybody who knows him will recognise it as such".

GUMMOW J: They just said, "I recognise". That is what Crampton said.

MR SEXTON: I think on the voir dire, your Honour, there is some evidence of when they were shown the photographs, but I - - -

GUMMOW J: And Peterson said, "I am able to identify".

MR SEXTON: It certainly was not suggested that they had any difficulty in the exercise here.

HAYNE J: Well, I am sure they did not suggest they had any difficulty.

MR SEXTON: Nobody, I think, suggested it, your Honour. Your Honour, we referred in our written submissions to the Interim Report on Evidence of the Australian Law Reform Commission, ALRC 26 in 1985. I think, your Honours, we have handed up copies of that. I just wanted to read this passage from volume 1, at paragraph 738, where the Commission said the distinction between fact and opinion:

can serve a useful purpose and is, in the end, unavoidable. Evidence at the extreme end of the continuum, which most would be prepared to classify as evidence of opinion, will generally be open to more dispute than material at the opposite end, which most would classify as evidence of fact. For accuracy of fact finding and to minimise confusion and time-wasting, therefore, it is necessary to exercise some control upon material at the opinion end of the continuum.

If one looks at it in that way, the question is here where in the continuum this kind of evidence is placed, which is why it may not be possible to be dogmatic in a philosophic sense of dividing it into those two categories.

GLEESON CJ: We will adjourn until 2 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ: Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours, I propose to deal with just one more point on the question of fact and opinion, then to return very briefly to relevance and then to just deal, shortly I hope, with section 137. So far as fact and opinion is concerned, this matter was, as your Honours know, dealt with by the Court of Criminal Appeal who said - it is at page 318 of the appeal book:

to a witness who knows a person well enough to recognise that person on sight, there is no more inference involved in recognising that person as a person whose face is shown in a photograph than there is in recognising the same person when meeting that person in the street.

That really encapsulates the proposition that we put in relation to this question of fact and opinion.

We have set those decisions out at paragraph 3.9 of our written submissions. Can I mention one or two of them: Goodall [1982] VicRp 3; (1982) VR 33, the main judgment was by Justice McInerney. I will not go through them all, your Honours, but two of them from the New South Wales Court of Criminal Appeal, Rix, which is 29 June 1989, otherwise unreported, where the leading judgment was by Justice Clarke; Morrison, 30 November 1995, otherwise unreported, the leading judgment by Chief Justice Gleeson; a number of English cases in the English Court of Appeal; Palmer in the New South Wales Court of Criminal Appeal (1981) 1 NSWLR 211. Chief Justice Street wrote the main judgment.

In all of those decisions, relevance was assumed. In fact, in almost all of them the evidence was admitted except in one of the English cases where there was a particular form of prejudice which caused its exclusion. Can I add to those cases the Canadian Supreme Court decision in Leaney (1989) 2 SCR 393, just for this point? The evidence in that case was given by five police officers, but four of them - or the evidence that they wanted to give, four of them had not had any - and did give - prior contact with the accused.

By any standards, it is hard to see how that evidence would be admissible. But in the judgment of Justice Lamer, who was in dissent on that question, but he notes at page 403 that it was common ground that the recognition evidence of the remaining officer, who was familiar with the accused, was admissible, which appears to assume that the evidence was also relevant.

As I said, your Honours, I will not go to each of those decisions individually but they are all to the same effect, including the decisions of the English Court of - - -

GLEESON CJ: In that case of Morrison, I cannot pick up the relevant part. Can you give me a page reference?

MR SEXTON: I can, your Honour. It is at page 18, your Honour, about point 5, right at the middle of the page. There is just a sentence saying:

Nevertheless, the evidence was admissible and properly left to the jury -

which comes to the conclusion of a discussion of some other challenges to it.

GLEESON CJ: Those detectives based their observations on a distinctive manner of walking.

MR SEXTON: Now, your Honours, can I go then to the question of section 137 of the Act, which has not really been canvassed today; not by my learned friend, but if one assumes, for these purposes, that our argument is correct that the evidence was relevant and was not opinion evidence then the argument becomes one, as it did at the trial, of whether, under section 137, its probative value was outweighed by the danger of unfair prejudice to Mr Smith.

We say, of course, that the evidence was highly probative and I will not take your Honours in detail to the evidence that was given by the two police officers, but it goes to the degree of association which was high in this case and far from fleeting so that in those circumstances one then moves to the question of unfair prejudice, not prejudice, but unfair prejudice. The trial judge considered that there was a danger of unfair prejudice and in those circumstances took steps to limit the way in which the evidence was to be put before the court. There was not, for example, to be a reference to the fact that part of the association was based upon Mr Smith having been arrested on two occasions, so one of the police officers had spent several hours with him on each of those occasions.

But at the conclusion of that exercise the trial judge had the view that the probative value of the evidence was not "outweighed by the danger of unfair prejudice" and, in our submission, if one gets to that point, then it really involves the application of the principles in House v The King.

GAUDRON J: There are two discretions you have to deal with, are there not? There is the one which is really no discretion at all and it is if its probative value is outweighed, which seems not to be if the judge is of the opinion or the like but seems to be an objective analysis in 137, and then you have your discretion in 135 which is "may refuse" if "the evidence might" - not is:

might . . . be misleading or confusing, or

(c) cause or result in undue waste of time.

Now, on one view, this evidence was going to result in undue waste of time, if the question was for the jury whether or not the person in the dock was the person depicted in the photograph.

MR SEXTON: Anyway, the question for the jury is whether Mr Smith was involved in the robbery.

GAUDRON J: The ultimate question was that, yes.

MR SEXTON: Yes.

GLEESON CJ: How long did this trial last?

MR SEXTON: I think it was over a couple of days, but Mr Ellis is just - three days Mr Ellis says, your Honour.

GLEESON CJ: I was only going to ask whether or not, by the time this trial was over, the members of the jury had spent more time in the company of the accused than either of these police officers ever had.

MR SEXTON: I imagine they had, your Honour. Your Honour, when it comes to House v The King, we would say that on any of the categories of error, if I can call them that, which are identified in House v The King - - -

GAUDRON J: Well, let us be clear, House v The King relates to section 135 only, does it not?

MR SEXTON: No, your Honour, we say it relates to section 137.

GAUDRON J: Could you have a look at the terms of section 137?

MR SEXTON: Yes, I have, your Honour. Can I say this about section 135, your Honour. The case does not seem to have been put on the basis of 135 because it does seem to propose a higher test.

GAUDRON J: What, 125? I would have thought not.

MR SEXTON: Well, higher test for the accused.

GAUDRON J: I would have thought not. Sufficient if the evidence "might" be "misleading or confusing".

MR SEXTON: But its probative value has to be "substantially outweighed" by one of those dangers.

GAUDRON J: By a danger, a risk.

MR SEXTON: In terms of prejudice, it is a higher test, we would say, because of the word "substantially".

GAUDRON J: No.

KIRBY J: Presumably, that was the intention of the drafter, because 135 is "may" and 137 is "must". Therefore, the scale of things suggests whoever drafted it must have thought that when you got to 137, you were really dealing with - you just had to exclude, as distinct from could.

MR SEXTON: If the probative value is outweighed.

GAUDRON J: And that seems not to be a question about the trial judge's satisfaction. That is - - -

MR SEXTON: It cannot be anything else, your Honour, in our submission.

GAUDRON J: Obviously, the trial judge must be satisfied, but it seems not to be the traditional discretion that is considered in House v The King. It seems to be an objective question. On appeal, the question seems to be whether its probative value was outweighed, not whether the trial judge erred in any of the ways identified in House v The King. That is looking at the terms of the section.

MR SEXTON: Your Honour, section 135, by the use of the word "may", seemingly gives the trial judge a discretion even if the matters within the section are established. Whereas in section 137, if the matter in the section is established, the decision must be made but the question of whether it is established is a decision for the trial judge, and must be susceptible to - - -

GAUDRON J: Of course, but it is not - - -

MR SEXTON: - - - appeal on the basis of House v The King.

GAUDRON J: What I am putting to you is on the wording of 137, the question of probative value - I am putting that it is for an appellate court for itself to determine in relation to 137 whether the probative value of the evidence was outweighed by the danger of unfair prejudice and not whether the trial judge exercised in her or his discretion in any of the ways specified in House v The King.

MR SEXTON: We would say, your Honour, that it is very unlikely that the intention of the legislation would be that - - -

GAUDRON J: Forget the intention, look at the words.

MR SEXTON: - - - that this Court, for example, would review the decision of a trial judge in that way in the absence of any error being demonstrated.

GAUDRON J: Mr Solicitor, it seems to me very surprising that this Court is entertaining a case of this kind, for all sorts of reasons that were adverted to in this morning's proceedings. But can you look at the words of the section and not tell me what it is about this Court that would surprise you?

MR SEXTON: I will not say that that would be nothing, your Honour, but - - -

KIRBY J: It is not worded in the normal way of a discretion that enlivens House v The King. It is not worded as "may" as 135 is. Section 135 is definitely a House v The King problem.

MR SEXTON: Yes, your Honour.

KIRBY J: I think her Honour is right about 137, because it seems to be posing an objective duty, as distinct from a discretion.

GAUDRON J: The question is not necessarily what about this Court would surprise you, but how a Court of Criminal Appeal was to discharge its function.

MR SEXTON: I was including a Court of Criminal Appeal, your Honour. In our submission, section 137 was not intended to enable a review of a decision by a trial judge in the absence of any demonstrated error. That would simply throw open to appellate review every single decision by a trial judge under section 137.

GAUDRON J: You have to read something into the section then.

KIRBY J: Only would that be in the case where it was the very serious circumstances contemplated by 137, namely, "must refuse" when:

the probative value is outweighed by the danger of unfair prejudice to the defendant.

It is a pretty serious situation that is posited.

MR SEXTON: It is, your Honour, but it is posited for the trial judge.

KIRBY J: Yes, but it is not without review. I mean, we have review - - -

MR SEXTON: No, it is not without review, but the categories in House v The King enabled that kind of decision to be analysed to see if, for example, an irrelevant matter has been considered or a relevant matter has not been considered, or if the result is absurd on its face. They are all ways in which that review can be conducted, but to simply have it at large, to be re-exercised by an appellate court - - -

GAUDRON J: Well, it is not being re-exercised. How does a trial judge determine whether the probative value of evidence is outweighed by the danger of unfair prejudice to the defendant? Not by the feel of the air, not by seeing whether the air is fresh, not by looking to see if something comes out of a clear blue sky; it is a rational process which involves the objective assessment of the probative value and the risk of prejudice, all of which can as well be done, and probably better done in hindsight, by a Court of Criminal Appeal than by a trial judge.

MR SEXTON: I am not saying it cannot be done, your Honour; I am saying that it is, in our submission, very unlikely that the section would have had that intention. What Judge Latham did in this case was to do exactly what your Honour says. She said that the evidence was highly probative and she said why. She said that there was a danger of unfair prejudice and she tried to minimise that. On that basis she then went ahead and said that the evidence was admissible.

GAUDRON J: Well I do not know that section 137 contemplates the trial judge taking steps to minimise it either. I mean, perhaps 135 will allow that course.

MR SEXTON: Well, your Honour, that is part of the exercise, in our submission.

GAUDRON J: Well, where do you find it in section 137?

MR SEXTON: When I say minimise it, this was, I suppose, ultimately a decision for the Crown as to how the evidence is led, but they led it in a way - - -

GAUDRON J: If you decided that the evidence fell within 135 and not 137, then, of course, you might well take steps to minimise, but I do not see that that is an exercise that is contemplated by the words of 137, which looks to me to be an absolute prohibition.

KIRBY J: You might get a textual foundation from the words "evidence adduced". That is to say, you look to what was actually adduced, and if it was confined in a particular way then you then text the outweighing in that context. That may be the way in which you put it.

MR SEXTON: The word "danger", in our submission, your Honour, deals with this because it will affect the way in which the prosecution will put forward the evidence.

GLEESON CJ: Well some importance also attaches to the meaning of the word "prejudicial", does it not? It does not mean, pointing to the guilt of the accused; it refers to the danger that it will be misused unfairly by the jury.

MR SEXTON: Yes.

GAUDRON J: Or given a weight that it does not deserve.

MR SEXTON: Yes, your Honour.

KIRBY J: Can you tell me this: once it was very rare in an Act of Parliament to see a command to a judge, "You must do this". It used usually to be left in the terms of the discretion and that is the world in which House v The King and the interference with discretionary decisions arose, but now we are seeing this "must" more frequently and it appears here. Is there any case that deals with that, that says, this is also a judgment, it is an evaluation and therefore you apply House v The King principles, or not?

MR SEXTON: I think the only case that we could find, which is Blick, which is referred to in paragraph 5.2 of our submissions, treats 137 as a House v The King exercise; that is a decision of the Court of Criminal Appeal in New South Wales reported at [2000] NSWCCA 61; (2000) 111 A Crim R 326. In our submission, that identifies the correct process. We do not step back from the proposition that any court, carrying out the same exercise as Judge Latham, we say would come to the same conclusion, when one weighs the probative value and the danger of unfair prejudice, but, in our submission, although there is a difference between section 135 and 137, that 137 still is to be subject to, in terms of appellate review, House v The King principles and, as your Honours are aware, we say - - -

GAUDRON J: Well, you say the question is, "Was it open to the trial judge to conclude that the probative value was not outweighed?". You say that is the ultimate question.

MR SEXTON: Yes, your Honour.

GAUDRON J: "Was it open to them to conclude? If so, was there any error of the House v The King kind displayed in the process by which?"

MR SEXTON: Yes.

GAUDRON J: But the question whether it was open to conclude seems to me to raise objective considerations rather than simply the discretionary matters or the tests of the mal-exercise of a discretion identified in House.

MR SEXTON: But House itself, your Honour, when it talks about a result that is absurd, on its face, there is an objective factor at work there which enables an appeal court to look at, in a sense, the result of the exercise and say that no one could have reached this result by a rational approach.

GAUDRON J: No, forget about the rational approach. Although it has one sort of meaning, it is a meaning that is overlaid with Wednesbury-type unreasonableness considerations. It is much better to say, "Was it open to the trial judge to conclude?".

MR SEXTON: Yes, well - - -

GAUDRON J: That really involves analysing the evidence and the risk that it involved.

MR SEXTON: And, in our submission, identifying some error in the trial judge's analysis, your Honour. Your Honours, that is what we had to say about section 137. There is one other matter that I should very briefly take the Court to, simply the way in which the trial judge left the ultimate issue for the jury, the ultimate issue being whether Mr Smith - and there was one other person on trial, of course - were persons involved in the bank robbery, and we say that if one looks at these references in the appeal book, the Court will find that was the way it was left to the jury as the ultimate issue. They are at pages 191, line 30; 191, line 55; 192, line 5; and 192, line 45.

So that, in our submission, there was never a false issue before the jury. The ultimate issue was squarely put to them in the terms in which it should be put and that was what was left to the jury by the trial judge. One of the aspects for them to take into account in coming to that decision was the evidence that was admitted and which is in dispute in these proceedings. Unless there is any other matters, your Honours, those are our submissions.

GLEESON CJ: Yes, thank you, Mr Solicitor.

MR BYRNE: Your Honours, there is just one matter arising out of the discussion that has just taken place. Your Honours, it would be our submission that the learned judge did not properly deal with the discretion which she had pursuant to section 137.

KIRBY J: You agree that it is a discretion then? That is the very question Justice Gaudron has just been debating. It is a power, on one view.

MR BYRNE: It is loosely described as a discretion.

GAUDRON J: It is an obligation.

MR BYRNE: It is under a section of the Evidence Act which is referred to, I think, as discretions.

KIRBY J: Yes, that is a point.

GLEESON CJ: In that case that we were referred to from the Court of Criminal Appeal, Justice Sheller said it was "a balancing progress that may be analogous to a discretion".

MR BYRNE: Yes, certainly.

GLEESON CJ: But he said it would be "risky to think that it was a discretionary exercise in the full House v The King sense". I think Justice Sheller was warning against regarding it as a simple House v The King problem.

MR BYRNE: Yes. It requires, in our submission, the learned judge, as Justice Gaudron said, to make an assessment of the probative value of the evidence and that is something which, we would submit, in this case the learned judge did not do. Can I take your Honours to page 68 of the appeal book?

GLEESON CJ: Yes.

MR BYRNE: If I can just introduce the submission I am about to make by referring to the material alongside line 25 to illustrate the way in which the case was run in the trial proceedings. What counsel for the appellant submitted alongside line 25 on page 68 was this:

All that needs to go to the jury is the fact that these photographs were taken in the bank at the time. We will not object to that, but the jury can then make up their own mind based on the photographs just being put to them without the police being involved.

Now, there was a further submission which went directly to the section - - -

GUMMOW J: What are you reading from, Mr Byrne?

MR BYRNE: I am sorry, your Honour, that is page 68 of the appeal book.

GUMMOW J: Thank you.

MR BYRNE: That was the basis on which it was contended in the trial that the case should be run, but in relation to the admissibility of the evidence of identification given by each of the two police officers, counsel for the appellant requested the learned judge to address that issue at the bottom of page 68 in the final entry there alongside line 55 where it says:

(Ms Black submits that the evidence of the offers who have identified the defendant Smith is extremely flimsy.)

Then it cites her Honour as - and I appreciate that it is a summary, but, her Honour as saying:

that goes to the weight of the evidence and not its admissibility. That is a matter for the jury.)

In our submission, it was necessary for the learned judge to make an assessment of the weight or probative value of the evidence in order to determine admissibility, not to leave that as a matter to be determined by the jury.

GLEESON CJ: Mr Byrne, can I ask you a question or two about section 55?

MR BYRNE: Yes, your Honour.

GLEESON CJ: If Constable Peterson had given evidence in court that he was in the vicinity of this bank while the robbery was going on and he recognised one of the four men as your client there would be no doubt about the relevance of that evidence.

MR BYRNE: Yes.

GLEESON CJ: The fact in issue being whether your client was present in the bank.

MR BYRNE: Certainly.

GLEESON CJ: I would just like to understand why, because, from one point of view, all that Constable Peterson is talking about is himself. He is saying, "I did something, I recognised". He is giving evidence of his own act of recognition. If that is all that those words "I recognised" et cetera mean, why could that rationally affect the assessment of the probability of the existence of a fact in issue?

MR BYRNE: Your Honour, the fact in issue is the presence of the person at the bank where the robbery occurred. The jury do not have the benefit of any aids, in the sense that they can be assisted by what happened there. The witness in that case is giving evidence of his own perception of what happened, and that is - - -

GLEESON CJ: That is right. In other words, the statement "I recognised Mundarra Smith as one of the robbers" is not merely a statement about the person who is making it.

MR BYRNE: No.

GLEESON CJ: It is an assertion of a perception: "I saw him, I heard him, I felt him." He is saying that the evidence to him of his senses was that your client was present. Now, when the same witness, in the witness box, says something different, says, "I see that photograph and I recognise Mundarra Smith as the person in the photograph", he is not merely talking about himself, he is saying, "The evidence of my senses", in this case, "my sense of sight", "is that the human object depicted in the photograph is the person I know as Mundarra Smith". Right?

MR BYRNE: Yes.

GLEESON CJ: Now, in either case, whether of visual identification at the time of the robbery or identification in a photograph, the witness is saying that the evidence of his senses is that a certain state of affairs external to him exists.

MR BYRNE: Yes.

GLEESON CJ: That is, presence of Mundarra Smith in the bank or depiction of Mundarra Smith in a photograph. It is only because the meaning of what he is saying goes beyond an assertion about something internal to himself that it could rationally affect the assessment of the probability of the existence of a fact in issue.

MR BYRNE: Well, there is perhaps another distinction, your Honour. When the witness is giving evidence of what he perceived live, as it were, in the event which is the subject of the evidence that he is giving, what he observed at the bank robbery, the jury are assisted by that evidence because they were not there. The difference with the photograph is that the jury have that photograph before them.

GLEESON CJ: I do not understand the relevance of that to section 55. The admissibility or inadmissibility of evidence does not depend upon whether there is other evidence that proves the same thing. Whether or not it could rationally affect the assessment here, I presume by the jury, of the probability of the existence of a fact in issue, not only that they might think, from their observation of your client that he is the person in the photograph, but that somebody else thinks and asserts the same, what is the difference between the two examples I have given in terms of the capacity of the information conveyed by the constable to rationally affect the assessment of the probability of the existence of a fact in issue?

MR BYRNE: In our submission, the fact that a person who knows the accused thinks that the photograph depicts the accused does not rationally affect the probability of the fact in issue because the jury is in equally as good a position themselves to make that determination. It does not help them to know that somebody who knows the accused thinks that that is a picture of the accused. They can make that assessment themselves, whether or not that is a picture of the accused. On the other hand, the incident at the bank itself - - -

GLEESON CJ: In other words, you seem to say because the jury are in as good a position as Constable Peterson to make that decision, it could not rationally affect their decision that Constable Peterson agrees with them.

MR BYRNE: Yes, that is our submission.

HAYNE J: That is to say that the reaching of a conclusion by another about an issue which is before the jury does not bear upon whether the jury should, for itself, reach that conclusion.

MR BYRNE: Unless there is some feature about the material which places the witness seeking to give the evidence in a better position than the jury. That was the distinction that was drawn in Leaney, that you could give that evidence about, in that case, the gait of the accused person because the jury were not in a position to see that.

Similarly, it might be, if a person has a particular facial characteristic that is distinguishing, the witness is entitled to say that is present in this photograph, but the mere fact that a person who asserts that he knows the accused thinks that that is a picture of the accused is not of any assistance to the jury. Your Honour, the Chief Justice raised this question in discussion with my learned friend prior to the adjournment when your Honour said, "Why is a person who knows the accused in any better position than the jury to make a judgment of recognition or identity?'.

HAYNE J: What sets this case apart from some of the others, on one view, is the singularity and narrowness of what was in issue. This was not a case, for example, where there was an issue about, "Oh well, he has grown a beard, shaved his head, bleached his hair", whatever. There was not an issue about how he walked. The only issue, despite the best efforts of counsel below at trial, was is what is shown in the photograph, "A photograph of the man, whom you, ladies and gentlemen of the jury, see in front of you".

MR BYRNE: Yes, that was the issue, "Is it him?", and that is all they actually said, "That is him". They did not go beyond that. Their evidence was, in no sense, evidence which attributed some sort of identifying features to the accused person.

GLEESON CJ: Is this a way of expressing the proposition that it could not rationally affect the jury's assessment of the probability that Smith was present in the bank, that a person who was in no better position than the jury to compare the photograph with Smith was of the view, based on the photograph, that Smith was present in the Bank?

MR BYRNE: Yes, your Honour, and to answer another question that your Honour has posed, at the end of the evidence in the trial, when the jury went to consider their verdict, the jury had spent a considerably longer period of time in the presence of the accused than either of these witnesses had. In the case of one witness, he had seen him approximately half a dozen times for a period of a couple of minutes on each occasion.

GLEESON CJ: Yes, that is what is troubling me at the moment. I am puzzled a little about that and that is I wish we had a video of this trial. I am not sure whether Mr Smith was sitting before the jury in a navy blue suit with a white shirt and a tie on and manicured fingernails or whether he was sitting with an Adidas tracksuit top on in a more customary manner of dress for him, but there is nothing in the evidence that seems to suggest anything turned on that.

MR BYRNE: No, there is not. No, I do not know the answer.

HAYNE J: To go back to this "rationally affect" question and relevance, when the Act speaks of "rationally affecting" it is speaking of a process of logic; is that right?

MR BYRNE: Yes.

HAYNE J: And there is no process of logic which says, simply, "Because A has reached the conclusion on the data before me that the result is X, I should reach the conclusion X on identical data".

GLEESON CJ: Unless A is in a better position to know.

HAYNE J: Identity of data is critical.

MR BYRNE: Well, in this case there were, as I said, no distinguishing features. It was simply evidence, "That's him".

KIRBY J: Except there is not quite an identity of data, because the police had a prior knowledge, so they said, of your client, and therefore there was an ingredient into it that the jury would not have. That is, as I take it, what is said to elevate it to a different status.

MR BYRNE: That is fair to say that they did know, they did have an acquaintance with the appellant at a time closer to the time than the jury had, but not a great significance in the times, it was not that long involved.

Your Honours, there was one other matter I did want to mention in relation to the directions that were given by the learned judge in her summing up. This was a case in which the police officers' evidence was spoken of time and time again as being recognition evidence, as though evidence of recognition has some quality which makes it stand apart from identification evidence as a general category. The directions that we have cited in our written submissions, which are, in turn, citing the judgment of the criminal division of the Court of Appeal in England in Turnbull's Case in 1977, refer to the need, in an appropriate case, to give juries directions that recognition evidence can be mistaken. There was not in this case any such direction given.

KIRBY J: Was it sought?

MR BYRNE: It was sought. Counsel in the course of the argument in relation to the admissibility evidence did say - this is at page 65 of the appeal book, line 25:

It would be appropriate to warn the jury that even relatives can make wrong identifications.

Now, that direction was not given in this case and it seemed to be proceeding on the basis that recognition evidence had some sort of special quality which made it immune from error. That also seemed to be the basis on which the Court of Criminal Appeal distinguished recognition evidence from identification evidence generally.

Your Honours, the cases recognise that there should be directions given in relation to this matter and this was a case which called for such directions. The inclination to error in recognition can, perhaps, be hardly better stated by saying that it is a fairly common experience of human beings to say and to use the very phrase, "I didn't recognise him or her".

KIRBY J: Was there a request for redirection at the end of her Honour's charge?

MR BYRNE: There was not, your Honour. I have to concede that was not done. It was made in advance and quite a long time before the summing up.

GLEESON CJ: Mr Byrne, if this case were to go back to a new trial, presumably one way for the prosecution to run it would be to say, "We make no such concession as that that was made, if it was made, on the first occasion and we are going to invite the jury to compare these photographs with the accused", in which case, as I would understand it, the trial would be over one way or the other very quickly. The jury would not be spending three days in the company of the accused. They would be spending a very short time indeed. The photographs would be in and they would then and there compare him either favourably or unfavourably with the pictures. Is that right? I suppose there - - -

MR BYRNE: That is certainly the way the trial, perhaps, should have been run. I accept that.

GLEESON CJ: Yes.

MR BYRNE: Whether it can be run in the future that way is another issue, perhaps.

GLEESON CJ: Suppose we were running this case afresh.

MR BYRNE: Certainly, yes. I accept that.

GLEESON CJ: Forget about the fact that it is a new trial and what has happened before. On your theory of it, in a case like this, in a case identical with this, the Crown should have either run the case without calling these police officers by inviting the jury to compare the accused with the photographs or, if the prosecutor made an assessment that a case conducted on that basis could not safely lead to the conviction, the case would be withdrawn.

MR BYRNE: Yes.

GLEESON CJ: Because at that stage - and the prosecutor does not know what Smith's mother is going to say, but on your argument it would not be open to Smith's mother, in defence, to look at those photographs and say: that is not my son.

MR BYRNE: No, that would be evidence of opinion, in our submission.

GLEESON CJ: On the assumption that Smith's mother was in no better position than the jury to say whether that was her son in the photograph.

MR BYRNE: Just that bare evidence, yes, but the mother could, for example, come along and say: he has a distinctive scar somewhere, all of those reservations, but the mother could not come along and simply say, "My opinion is it is not him", or words to that effect.

Your Honours, just one matter in relation to those authorities that my learned friend has referred to as occasions on which evidence similar to this has been admitted. All of those authorities precede the Evidence Act and for that reason their correctness needs to be assessed whether they have, in fact, survived the provisions of the Evidence Act - - -

GUMMOW J: I would have thought that section 55 was one respect in which the Act is not revolutionary.

MR BYRNE: No, your Honour, but the provisions relating to identification evidence are - - -

GUMMOW J: Certainly.

MR BYRNE: - - -and perhaps not so revolutionary, but the provisions relating to opinion evidence and the discretion, so-called - - -

GUMMOW J: In some of the cases, it is not quite clear whether it was not allowed in as opinion evidence of some sort.

MR BYRNE: My understanding is that most of them - - -

GUMMOW J: One of the neighbours in The Queen v Smith had seen the accused; he had been in the forces, and he was accustomed, so he says, to recognising people when they were wearing balaclavas.

MR BYRNE: The general line of those authorities is to describe it as opinion evidence, although it has to be said that that is perhaps a loose expression.

GUMMOW J: It is used very loosely, I suspect.

MR BYRNE: Your Honours, those are all the submissions that we had to make.

GLEESON CJ: Thank you, Mr Byrne. Yes, Mr Solicitor?

MR SEXTON: Just one short point, your Honours. My learned friend seemed to say then that the trial judge had not given any warnings on the danger of this evidence. Can I just refer your Honours to the appeal book at 196 and 190, where it seemed to us that pretty comprehensive warnings had been given.

GLEESON CJ: Yes, thank you.

KIRBY J: These are Domican-type warnings, are they?

MR SEXTON: They are warnings about the dangers of what the trial judge called identification evidence, but it is really not identification evidence under the - - -

GAUDRON J: No McKinney-type warning?

MR SEXTON: Your Honour, my learned friend says there were not any warnings and - - -

GAUDRON J: I am just asking. Was there a McKinney-type warning?

MR SEXTON: Perhaps at 190, your Honour. It is a version of it. We say they are adequate, your Honour.

GLEESON CJ: Thank you, Mr Solicitor.

MR BYRNE: Your Honour, there is just one final matter. It is really only a matter of perhaps the approach that was taken by the learned judge which might be regarded as an off-the-cuff commonsense approach to this evidence, or evidence of this kind, but at page 52 of the appeal book questions were asked by counsel for the co-accused of this appellant and it is just below line 15. The question was asked:

Were any steps taken to have the bank photographs viewed by the public at large?

Her Honour said that:

members of the public who were in the bank at the time of the robbery?

And then said this alongside line 25:

Well what would be the point of that. If they weren't there during the robbery how could they assist?

That is really the point that we have sought to make here.

GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 10.15 next Tuesday.

AT 2.53 PM THE MATTER WAS ADJOURNED