R v Dickman [2017] HCATrans 71 (6 April 2017)

Last Updated: 6 April 2017

[2017] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M162 of 2016

B e t w e e n -

THE QUEEN

Appellant

and

GLYN DAVID DICKMAN

Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 APRIL 2017, AT 9.59 AM

Copyright in the High Court of Australia

MR G.J.C. SILBERT, QC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the appellant in this matter. (instructed by Solicitor for Public Prosecutions (Vic))

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the respondent in this matter. (instructed by Barbaro Thilthorpe Lawyers)

KIEFEL CJ: Yes, Mr Silbert.

MR SILBERT: If the Court pleases. This comes before the Court pursuant to a grant of special leave of 18 November last year on four grounds. Ground 3 appears to be epexegetical of ground 1. Ground 2 accounts for the decision of this Court in IMM, which seems to be colloquially referred to as IMM, on 14 April last year, the Court of Appeal judgment under attack having been delivered on 23 November 2015. Ground 4 effectively supports the dissenting view of Justice Whelan in the Court of Appeal.

The matter is detailed in the appellant’s submissions which are probably reasonably non-controversial and more importantly in the appellant’s reply dated 10 February. Your Honours will have the appellant’s speaking notes, the order of which I can probably conveniently follow. It is submitted that this is not an identification case. It perhaps started off as an identification case but at a time when the witness, Gerrie, who was a reluctant witness, was coercively examined before the Magistrates’ Court it started to transform from an identification case into something else – into more of a circumstantial case being susceptible to direct evidence from Mr Gerrie at that time.

Now, no one expected Mr Gerrie would actually give evidence notwithstanding his coercive examinations. It is rather heretical for a member of the Hells Angels to give evidence against another member of the Hells Angels and it was not until, effectively, he gave evidence that the case transformed from what it was into what it became.

The defence case was opened and remained a denial that the respondent was present at the Thomastown location of the Hells Angels where the offences were committed. If your Honours look at appeal book page 475 of volume 1, at line 8 there is a discussion there between the trial judge and my learned friend, Ms Shaw, at lines 8 and 9 where Ms Shaw says:

No. I’ve been saying to my learned friend – I said in my opening my client wasn’t there.

HIS HONOUR: Yes.

So, that was the initial battleground on which the dispute was drawn. Now, the issue ultimately boiled down to whether the appellant or Boris was the old man identified by the complainant Faisal Aakbari. At page 509 in volume 2 of the appeal book at lines 13 – between lines 13 and 20, the matter really settled into a question - your Honours will see at line 30 my learned friend:

No, Your Honour has missed an important step, with respect. The issue of whether Boris is the old man is the critical issue.

HIS HONOUR: Yes, I understand that.

MS SHAW: So the question is - - -

HIS HONOUR: If Boris is the old man, all over red rover. That’s the end of the case.

MS SHAW: That’s very well the case.

Now, at that point in time the case was really whether the respondent could be identified as the old man shown on the CCTV footage who was responsible for beating the complainant at the Thomastown premises. In spite of the respondent’s denial that he was present at the Thomastown location where the offences occurred, the defence at some stage admitted to the jury that he was present with the witness, Gerrie, notwithstanding the denials I have read to your Honours. Further, there was a - - -

BELL J: Did that represent a change from the way the matter had been opened to the jury?

MR SILBERT: It appears to have, yes, your Honour, and that is the point I am actually making. There seemed to be a significant forensic concession made by the defence, namely, that the respondent and Gerrie were at the Thomastown premises, and that would be the change your Honour Justice Bell identifies, or it is submitted that that did represent a change. Indeed, at volume 2 of the appeal book at page 591, perhaps commencing at line 28 on page 591 of the appeal book - and this is the address of my learned friend to the jury, the closing address:

And what the phone calls show, members of the jury, and especially the earlier ones starting at 2.50 in the morning, is that Mr Dingle is talking to Mr Aakbari and they are trying to find the key or locate the key because Boris wants to go back home and you have heard from Mr Gerry, they want to go back to the club rooms and have a sleep.

Now, it is submitted that that is the change that your Honour adverts to at that point in time because the matter had been opened on the basis that he was not there.

BELL J: And this was an acceptance that Boris and the respondent were one and the same?

MR SILBERT: I am not sure that that concession goes that far. I can take it only that it is a concession that Boris, who was not there, was there.

BELL J: I see, yes.

MR SILBERT: But it is submitted that that address still cannot stand with the denial that Boris was the old man. Specifically, yes, Boris was there. The submission of the Crown to the jury would be that Boris was the “old man” based on the evidence that had been led. So one was an explicit concession and a change to the other seems to be a simple shifting of the ground.

Now, the case was left to the jury. It is submitted that it was a powerful prosecution case combining, primarily, two blocks of evidence: the complainant’s evidence identifying the respondent on the CCTV footage, which was tendered as exhibit 3, at page 256 of the appeal book, and there is no need for me to take your Honours to that. Then that links in with the evidence of the witness, Gerrie, also identifying closed-circuit television footage which was tendered as exhibit 22.

Now, primarily, the evidence of the - the then accused was the person claimed to be responsible was depicted on that CCTV footage where the complainant identified him and where Gerrie identified both himself, Gerrie, and Boris, or the “old man” who was alleged to be the accused.

BELL J: It was not in issue that the track of the CCTV identified by the complainant showing an individual in a camouflage jacket with a ponytail - - -

MR SILBERT: Yes.

BELL J: - - - that that individual was the same individual as the man identified by Mr Gerrie as Boris on three other portions of the tape.

MR SILBERT: Well, on a superficial reading of the transcript there is a problem there because they do not seem to have been shown the same exhibit. I know what your Honour is getting at but when one looks at the – when one looks at exhibit 22 which was the whole of the CCTV shown to the witness, Gerrie, there is present within exhibit 22 track 11 is identical as track 2 on exhibit 3 and track 23 is the same as track 1 on exhibit 3.

Now, why this was done I cannot explain to the Court but maybe we are a little bit lucky but having viewed exhibit 22, exhibit 1 is incorporated within it. I think that probably answers your Honour Justice Bell’s question in relation to that. So it was the same – it was identical footage on 22 as was exhibit 3.

BELL J: May I also inquire, the judgment refers to the complainant by the initials “FA”. Was there a pseudonym order or something of that kind? Is there some reason for that?

MR SILBERT: I do not know, your Honour, and he was a resident of Germany and came in and out of the country and one would have thought - I do not know. Maybe the tentacles of the Hells Angels – I do not know. I cannot give your Honour the answer to that. He is referred to as “FA” but there does not seem to be an order compelling him to be referred to as “FA”. I do not know why that was done.

BELL J: Thank you.

MR SILBERT: Now, Aakbari identified his attacker as “the old man”. When cross-examined about that it appears that the old man was said to be in his 60s which, I suppose, makes age fairly relative - - -

KIEFEL CJ: Aakbari was only 18, was he not?

MR SILBERT: He was only 18.

KIEFEL CJ: That might explain it.

MR SILBERT: Well, hopefully it does explain it, your Honour. He stated that there was only one old man at the Dallas nightclub and it was the person who was his attacker at the Thomastown location and that comes from appeal book 227 and 235 to 241 and I do not need to take your Honours to that. So, based on the defence concession at 509, which I have taken your Honours to at appeal book 509, that if Boris is “the old man” it was “all over red rover”, that evidence standing alone was sufficient at that point in time for a finding of guilt.

There was, however, a substantial amount of other evidence contributing towards the strands in the circumstantial case. Your Honours will have seen there was evidence from a search of the respondent’s home providing evidence that he was known as Boris. There were phone records confirming his travel from Adelaide to Melbourne at the critical time. There were telephone calls at the relevant times, and there was no - - -

KIEFEL CJ: Is that the telephone calls at the nightclub after – I am sorry, at Thomastown – after the incident?

MR SILBERT: Yes. Yes, at around that time. Then there was no evidence of any person being present at the time of the assault besides Aakbari, FA, the complainant; the “old man”; Chaouk, who was the co-accused; and Gerrie, who became a witness in the trial. The evidence was that those four were present at the critical time.

BELL J: Was Gerrie said to be present at the time the assault occurred?

MR SILBERT: He was, but your Honour will have seen from his evidence he was either asleep and/or drunk and/or had no memory of anything that occurred. The most that the coercive examination could get out of him and the most that could be led from him in-chief was that he was there and that he had Boris with him.

BELL J: Is it right that there was CCTV footage depicting Gerrie, Chaouk and the person that Gerrie described as Boris together leaving the Dallas nightclub?

MR SILBERT: Yes, there is, your Honour, and that is on exhibit 22 on one of the tracks - I think it is track 23. The three of them walk out of the Dallas nightclub. They walk towards a black Porsche that is parked by the roadside. If one looks at the track, the lights of the Porsche then – the headlights go on and the car leaves the kerb. So the answer to that is yes.

I do not know other than a cursory track through the evidence that it is necessary - the offence occurred on 27 September 2009. The co-accused, Chaouk, was identified on a photo board on 29 September 2009 by the complainant, FA, and a face image was composed on 29 September, that face image having been tendered and appearing at appeal book 673, and there is no need for me to take your Honours to that.

Then on 2 October, which appears to be where the trouble in this matter arises – well, no, on 2 October the CCTV footage – exhibit 3 – was shown to the complainant and he made what identification he made on the CCTV footage on 2 October. The trouble comes on 5 October when a photo board is shown to him which contains no photo of the accused man and he makes an erroneous identification on that photo board on 5 October. That appears at appeal book 680.

Indeed, it was disclaimed by the defence during the trial that Cooper, the person erroneously picked on the photo board, was an alternative suspect. The case was not run on the basis that Cooper was responsible for the assault. That appears, I think, at page 152 of the appeal books. Then on 23 August 2011 - so we are going two years on - there is the identification of the respondent on the photo board. That is at appeal book 686 and 259.

Now, the evidence, when one analyses it, can be boiled down to the direct evidence of Michael Gerrie which I have recounted to your Honours based on CCTV footage and the fact that he drove Boris to Melbourne - tracks 16, 18 and 23 of the exhibit where he identifies himself and he identifies the respondent, and the reference there is appeal book 458.

You then get to the evidence of the complainant, the face image, at appeal book 673, the CCTV identification of 2 October 2009 which becomes exhibit 3. You then get these two photo board arrays, the first array of 1 October with the erroneous identification of Cooper, and the one two years later where he picks the accused.

Now, the Court of Appeal seized on that as if there is some sort of estoppel if someone makes an erroneous identification. The Crown had to lead that evidence. There is no question that prosecutorial ethics demanded that that wrong identification be led. If it had not been led, the Crown would have been open to criticism. It had to be led and, indeed, it was part of the defence case - - -

BELL J: Accepting that it was necessary to lead the evidence that within days of the assault the complainant identified Michael Cooper as his assailant, as I understand Ms Shaw’s submission, she does not accept that the admission of that evidence necessarily carried the consequence that it was open to lead the later photo identification given the circumstances in which it occurred.

MR SILBERT: The submission in relation to that is it was clearly a misidentification. The Crown having been obliged to lead it, the jury had to know that it was wrong. They had to, for example, know that there was no photograph of the accused on that photo board. The photo board was meaningless on its own. The two arrays really only have some meaning when they are viewed in context and viewed in combination.

BELL J: But what is your response to the submission it was incumbent on the Crown to lead the photo identification of Cooper but it would have been open for Ms Shaw to have succeeded on the application to exclude the subsequent identification and that the suggestion if one goes in it has to all go in is at least put in issue in Ms Shaw’s submissions? I am just seeking a response to that.

MR SILBERT: Yes, paraphrasing. Yes, I can candidly say it might have been better had it not been led. If the submission is it is not fatal that it was led, it was under section 55 of the Evidence Act probative, although everyone agrees of low probative value but once it became relevant it is submitted that it was admissible at that point and that pursuant to the provisions of the Act, the Crown having led it with an array of warnings and the fact that it was of low probative value, it probably played very little part at the end of the day when combined with the first array.

Now, technically it is submitted that it was relevant and that made it admissible. As I say, everyone runs cases differently. It might have been better and avoided all sorts of difficulty if it was not led. But it was admissible. It was relevant and on that basis it was open to the Crown to lead it. It was curtailed by so many warnings and effectively disclaimed by the Crown Prosecutor in final address where she said it does not go into the mix, there is a whole lot of very strong evidence forming a circumstantial case - - -

NETTLE J: She said it was in the mix – it is in the mix, she says. I do not rely on that alone but it is in the mix.

MR SILBERT: In the mix but not terribly significant in relation to the other evidence.

NETTLE J: One hopes that there are not too many identifications done by photo board like that in Victoria. It broke all the rules that one can conceive of.

MR SILBERT: Absolutely, your Honour, and we do not see them often at all. I respectfully agree with what your Honour says. But it was the least important part of the evidence in a circumstantial case because when one put Gerrie together with Aakbari, the telephone intercepts and the video search of the respondent’s premises, it became a very strong circumstantial case irrespective of those photo board identifications.

Now, to some extent it was a red herring, as I say, perhaps unnecessary but legitimately used as a forensic artifice by the defence to cast doubt on the prosecution case. It was properly admissible although characterised as of low probative value. So, in the context of all the strands of the case it is submitted it was an effect de minimis when viewed as against the other evidence.

So the Crown’s submission is that this verdict was inevitable. The prosecution case that went to the jury, it is submitted, was overwhelming based on the CCTV footage, the way the case was opened and the way the case organically developed in the course of running. So the defence that the respondent was not there clearly disappeared and the defence that the “old man” was not Boris seemed to dissipate as the evidence was led as well. So the case ended up, it is submitted, as a powerful case and it is submitted it was not open to the jury to entertain a doubt as to guilt when looked at the major strands of the evidence.

Now, that probably takes me to the IMM point. The evaluative assessment of probative value and prejudicial effect undertaken by the majority was conducted before IMM was decided by this Court. It follows, it is submitted, that the majority’s approach to section 137 of the Evidence Act was based on a false premise to the extent that it factored reliability into the equation, thus the majority’s examination of the trial judge’s treatment of section 137, it is submitted, was flawed.

BELL J: Save for this, Mr Silbert. It seemed to me that the IMM point might in this instance have a semantic quality to it in that everyone proceeded on the acceptance that this was weak identification evidence and that its probative value was low.

MR SILBERT: Yes.

BELL J: It is the point that one finds in the joint reasons, taken from the illustration by - - -

MR SILBERT: Justice Heydon.

BELL J: Justice Heydon.

MR SILBERT: Yes. I completely agree. Nonetheless it is there. The majority, it is submitted, reached a conclusion that the relevant identification evidence should have been excluded by further devaluing the probative value of the evidence such that it was outweighed by unfair prejudice. Now, that approach, it is submitted, did not focus on the unfair prejudice because the value of that photo board identification was so discounted, both by the Crown and by the extensive warnings of the judge, that it really disappeared into the other evidence comprising the crux of the case.

So it is submitted that there was no unfair prejudice effectively in this. Here is a man who makes a wrong identification. Two years later, with a lot of prompting, perhaps makes a right identification, but that identification on its own would not have been sufficient for this case to have run.

BELL J: At its highest it was evidence that on the occasion in August 2011, when shown photographs of 11 different men - - -

MR SILBERT: Yes.

BELL J: - - - having been told that the police believed the offender was one of them he selected the photograph of the respondent as the person who most closely resembled the man he remembered from two years earlier.

MR SILBERT: Yes. Absolutely, your Honour, and on its own that would have been of no value at all. It would not have got to a jury if that had been the only evidence.

BELL J: Yes, if that had been the only evidence, but it might be thought to have relevance in the Festa v The Queen way in a circumstantial case.

MR SILBERT: Yes, your Honour, and that is the way in which we submit that it is probably usable. Now, on the other hand it is submitted – and again taking your Honour Justice Bell’s point about the semantic differences within IMM, on the other hand, the evaluative assessment, it is submitted, was correctly conducted by Justice Whelan in dissent in the Court of Appeal based on, effectively, the methodology of IMM and that appears at the appeal book - I need not take your Honours to it - at 726 to 727 of the appeal book, lines 44 on 726 to line 14 on 727.

So, the submission is that the conclusion of the trial judge and of Justice Whelan was correct and effectively upheld the role of the jury and I do not need to go into Baden-Clay and what have you in evaluating the weight of the evidence, the evidence was there, it was a matter for the jury at that point in time and they had what is submitted is a very strong case. Now, unless there are some matters the Court want to raise with me, they are, effectively, our submissions.

NETTLE J: Mr Silbert, what do you say about Ms Shaw’s point that prejudice of the evidence was that it revealed to the jury that the police believed the accused to be the culprit?

MR SILBERT: Clearly that inference was opened by the second photo board, the fact that two years later a photo board contains a photo of the accused, but it is submitted that the prejudice is minimal effectively at that point once the CCTV footage combined with Gerrie’s evidence is present, then whatever the police believe became irrelevant at that point. There was, effectively, real evidence establishing “the old man” was Boris and that Boris was there.

The issues that the case had been fought on had changed remarkably at that point in time and the police belief at that point, it is submitted, contained no great prejudicial value. The jury would have assessed the weight of the evidence before them. The police clearly made a mistake. The complainant had clearly made a mistake and it is not suggested that someone who is beaten within an inch of his life and makes a wrong identification is thereafter precluded from making a correct identification.

Now, as I say, I do not rely heavily on the second photo board but it is submitted that the prejudice which really means the jury would attach more weight to it than it was entitled to have, the prejudice could not have existed given the warnings and given the way the case went to the jury.

KIEFEL CJ: Thank you, Mr Silbert.

MR SILBERT: If the Court pleases.

KIEFEL CJ: Yes, Ms Shaw.

MS SHAW: If the Court pleases. The Court has our outline of oral argument. We point out that this was not a case where the Court of Appeal quashed the conviction. Rather, the Court of Appeal held – the majority held that the wrongful admission of the Dickman photo identification, if I can call it that, meant that the accused – there was a substantial miscarriage of justice, and so there is a retrial.

My learned friend’s outline and his commencing submissions focus not on the two special leave points, namely, the admissibility of the photo board identification and whether or not the Crown did not rely on it, but on the ultimate question of whether or not in fact conviction was inevitable. So I apologise, your Honours, if my submissions focus on those questions in the oral outline and obviously in our written submissions.

Can I perhaps identify by way of overview our submission in relation to those grounds, grounds 1 to 3 that relate to the admission under section 137, and we submit that they raise a single issue, namely, whether the majority was wrong to find that the evidence of FA’s selection of the respondent from a photo array on 23 August 2011 should have been excluded by application of that section.

We submit there are two aspects to that inquiry: as to the first, probative value; and on the voir dire and on the appeal to the Court of Appeal, the Crown rightly accepted it had at best slight probative value, for reasons we will explain, and that concession appears at appeal book 1, page 385.

KIEFEL CJ: The question comes down to danger of unfair prejudice, does it not?

MS SHAW: It does, your Honour, and that issue, your Honours, needs to be viewed in the context, we say with respect, of the course of proceedings at trial because in essence what happened was Mr Aakbari’s evidence was pre-recorded prior to the opening, halfway through the submissions for exclusion, and part of the argument that the respondent was putting forward was that this photo board identification should be excluded under section 114(2), namely, that the police had wrongfully influenced Mr Aakbari to make this particular identification.

So, the cross-examination necessarily included an attempt to show that the evidence of Mr Aakbari in selecting Mr Dickman in the photo board identification on 23 August 2011 was of low probative value. In his evidence-in-chief, he acknowledged he had identified Mr Cooper as the old man and he acknowledged he had identified Mr Dickman as the old man. That was the state of the evidence as the Crown led it in-chief.

As a result of it being put to Mr Aakbari necessarily to expose the low probative value of this evidence, it was necessary to go through the sequence of events that led to this second identification, and that sequence was not in a case where, as my learned friend suggests as an alternative scenario, Mr Aakbari having identified Mr Cooper, decided on reflection that he was wrong and therefore came and made a second identification.

The sequence that was put to him was that after effectively the Cooper identification - this was confirmed in Mr Condon’s evidence on the voir dire – police had told Mr Aakbari he was wrong. They had then sent him an email and had further conversations with him in February 2010 where they informed him that they had the person or persons they believed were responsible for the assault upon him and they would be presenting him with a photo board.

So Mr Aakbari’s evidence at the conclusion of his cross-examination was, in effect, “Yes, that was the sequence, I had his evidence in-chief, I had identified Cooper”. Having been told by the police that they believed the person who was responsible for the assault was in this photo board, he then chose the person who was the closest to the old man. In other words, he never resiled from his identification of Cooper but faced with the police intervention and faced with their proposition to him that in fact the old man is in this photo board, as he believed - and in fact the emails confirmed, this is not just an inference; this is actually what was conveyed to him - he then was left to choose the closest.

Now, that evidence, and over the opposition of defence, the Crown sought to pre-record that and it occurred before the ruling on the voir dire, and it occurred before the opening. So at the time his Honour came to rule he well knew that what he was ruling upon was, as a result of cross-examination, this evidence now had an extremely low probative value, but in order to expose that probative value, the evidence that the defence relied on was the belief of the police and the opinion of the police that the culprit was Mr Dickman.

So, in our respectful submission, that is the danger of unfair prejudice, that this recording was then played to the jury after the Crown opening, after the ruling, and so what the jury heard, and why the Crown now resile from this evidence having a relevant probative value, whereas they persisted with it even after the cross-examination, while they resile from it now, it was never resiled from at trial, it was never resiled from by the prosecutor in her address and in fact it was the subject of the trial judge’s charge.

Then the accused was faced with the double prejudice of the jury hearing by reason of the need to expose the low probative value of the second identification, firstly, in a general level that the police believed the accused was guilty in that they believed the culprit was in this photo board identification. That opinion clearly would ordinarily be inadmissible but it was necessary to expose the low probative value of the evidence.

Secondly, it left the jury with a difficulty in trying to evaluate the probative value of Mr Aakbari’s identification when that identification is upon the premise that the police have told him that the culprit is in there and he is picking or selecting the closest. So how do the jury in that circumstance evaluate to what extent that identification has probative value when it is, in effect, informed by Mr Aakbari’s belief that the police have said, “The culprit is here”?

So it had that two-pronged level of prejudice: one in relation to the jury hearing inadmissible opinion evidence from the police; and, secondly, in relation to the fact that no directions could cure, firstly, the prejudice – any direction would only reinforce it and, indeed, the respondent’s counsel in address submitted to the jury, “You are the judges of the facts. It is not the police opinion that matters. It is your decision as to the facts.” Counsel representing a member of the Hells Angels asking a jury to accept that kind of call placed the accused in an impossible position.

The judge in order to expose the weaknesses of the identification evidence also reminded the jury in his charge that, indeed, the police had told Aakbari that the culprit was in this photo identification. In other words, this was, in our respectful submission, an example of where there is a danger of unfair prejudice, unfair because not only does it put before the jury otherwise inadmissible evidence necessary to expose the low probative value but it is incapable of cure by directions. Any directions would only highlight prejudice.

So, in our respectful submission, in that respect, to suggest that the judge’s directions were clear and strong, that is correct in relation to the low probative value of the photo board, absent consideration of that low probative value.

EDELMAN J: Ms Shaw, the probative value or the relevance of the Cooper identification was because Mr Aakbari’s identification of Cooper would tend to suggest that if he were – he had a sufficiently accurate ability to identify people then it was not the respondent that was the assailant but somebody else.

MS SHAW: That was fundamentally the submission that was made to the jury.

EDELMAN J: Yes, if that is the case, then would there not have been then a danger that to adduce that evidence would render - or without the evidence of the subsequent identification of the respondent in 2011 would make the Cooper identification inadmissible under 135(b)?

MS SHAW: Your Honour, in our respectful submission, the difference between that scenario and this case is that the Crown led both the Cooper and the Dickman identification so the occasion to consider that issue never arose. In other words, on the pre-recorded evidence the Crown led that evidence and the respondent says in his reply that was their duty to do so.

There was no suggestion and the Crown disclaimed any suggestion that the issue of whether or not they needed the Dickman identification to meet the unequivocal assertion that it was Cooper, the Crown disclaimed that that had any relevance to the issue of probative versus prejudicial value and nor could it.

So, in our respectful submission, this was not a case where, for example, the Crown were not sure what they were going to do. The Crown made a considered decision to lead from Aakbari both the Cooper identification and then the Dickman identification. The Crown say and maintain that that was their duty. So what then arose and the defence – that having been led, pre-recorded after it was led, the defence maintain their objection to the Dickman identification and the Crown persisted in leading. So, in our respectful submission, that theoretical possibility was not something that arose in this case because the Crown led it.

Your Honours, can I just correct factually some of the matters that have been asserted by the appellant, and firstly that it was suggested that the defence case was a denial that the respondent was at the Thomastown club rooms. That passage at 475, appeal book 1, that my learned friend refers to – “my client wasn’t there” - is a reference to my client not being present at the time of the assault.

The defence case as it was put to the jury, as it was put to Gerrie, in terms of photographs led through the police of the upstairs Thomastown club rooms was that - and supported by telephone intercept conversations that Mr Gerrie and my client had driven from Adelaide – and this was uncontested – the previous evening, that they had brought an overnight bag with them that when they arrived in the afternoon they put in the upstairs sleeping quarters, and then from there they went to the Dallas club.

The telephone intercepts, which commence in the early hours of the morning, disclose that Boris – and there was no dispute that Boris was Mr Dickman in the sense of the evidence that was available – was wanting to go back to the club rooms to sleep but he did not have a key. So there were conversations about, “Boris wants to go back to the club rooms for a sleep. Can someone go back and let him in?” It was put to Mr Gerrie at page 461, point 9, that in fact when they went back to the club rooms that is in fact what Mr Dickman did, or the respondent did.

Now, Mr Gerrie, of course, had the position that he was drunk and he went behind the bar and fell asleep, but he agreed that their clothes were upstairs and he agreed that in the morning they went upstairs to get the clothes and left together.

In effect that case was put to the jury during the defence address at pages 592 and 599 that the phone calls could be relied upon to prove or infer the intention of the respondent who was from Adelaide and had to drive back the next morning because Mr Gerrie had to go to work, but he was going back there to sleep, he was not the old man, he was not from Melbourne as described from Mr Aakbari, he was not the boss, he did not even have a key to the club rooms, and that other people were clearly present at the club rooms.

The evidence at 592 and 599 of the address, that submission was put to the jury and the trial judge put to the jury in the summing-up at appeal book 659, line 20, that the Crown had to exclude the possibility that he was upstairs asleep.

As part of the defence case which came through cross-examination of the police officers, the alleged assault – and there was no dispute about the assault – was at about 5.50, the police were at the premises at 6.28, and at that time there were four cars there, there were ladies leaving, a Mr Green came to the door, there was evidence that a Mr Spies was also at the Dallas club rooms, who was over 60, and the defence were putting to the jury that in the absence of having identified who was driving these cars, in the absence of the police conducting a proper investigation at 6.21 - that is not even going in, and it being known there were girls there, and Mr Gerrie’s car was still there, then one could not exclude the possibility that there were other people there.

BELL J: Is it the position that there was no dispute then as to Mr Gerrie’s identification on the CCTV footage of himself, Boris and Mr Chaouk leaving the Dallas nightclub, no dispute that he was accurate in identifying the man in the camouflage top with the long ponytail as Boris and that Boris was the respondent. Is that the way - - -

MS SHAW: No, your Honour, that is not correct.

BELL J: I see.

MS SHAW: In fact, the evidence of Mr Blezard, the police officer, was that he viewed the CCTV and he considered that the person that Mr Aakbari - that is on the footage Mr Aakbari looked at was in fact Michael Cooper.

BELL J: I understand that but from the submissions made by the appellant, it is said that the CCTV footage, although numbered by reference to different tracks shown to Mr Aakbari, is the same CCTV footage shown to Mr Gerrie. In that CCTV footage there is depicted a person wearing what appears to be a camouflage top and that person has a long ponytail. Now, firstly, is it accepted that the CCTV footage shown to Mr Gerrie and Mr Aakbari was the same footage?

MS SHAW: It is unclear. I agree with my learned friend that Mr Aakbari was shown number 1, track 1, and Mr Gerrie was shown the later track that might have included number 1. So if I accept - but I am willing to accept your Honour’s premise that it was the same, can I respond - - -

BELL J: Well, if we could just move to this? In the CCTV footage there is one person who appears to be wearing a camouflage jacket and to have a long ponytail. Is it accepted that there was only one person answering that description in the CCTV footage that was shown to Mr Aakbari and to Mr Gerrie?

MS SHAW: Yes, it is.

BELL J: Is it accepted that it was – that each of them were shown footage depicting that one person in the camouflage jacket and the long ponytail?

MS SHAW: Yes.

BELL J: Do I understand it to be accepted that the respondent is a person known as “Boris”?

MS SHAW: Yes.

BELL J: That was not in issue.

MS SHAW: No.

BELL J: So that when Mr Gerrie selected the CCTV image of the man with the ponytail wearing the camouflage jacket and said it was Boris, it is not in issue that he, Mr Gerrie, and Boris and the man Chaouk left the nightclub together. Is that right?

MS SHAW: Yes.

BELL J: Is it right that Mr Aakbari identified that man in the camouflage top with the ponytail in the CCTV footage as the old man?

MS SHAW: Yes.

BELL J: That was an identification of the old man at the Dallas nightclub and it was the old man who he said attacked him at the Thomastown club house?

MS SHAW: Yes.

BELL J: So that to some extent discussion of who else might have been at the Thomastown clubhouse was of lesser significance in the context the Mr Aakbari was saying, “The person who assaulted me with the baseball bat was the person who I had first seen at the Dallas nightclub and who had gone from the Dallas nightclub to the Thomastown clubhouse.”

MS SHAW: Your Honour, that is where we take issue.

BELL J: I see.

MS SHAW: The issue is this: first of all, Mr Blezard said that the person on the CCTV –the police officer – he recognises Mr Cooper. Secondly, but more importantly, Mr Aakbari had commenced to give a statement to the police on 28 September. On 29 September he prepared a FACEview with a picture and a description of the offender showing straight white hair, 55 – that is, a man looking 55, not someone who is 18 and thinking he looks older – and in fact calling it a small ponytail and showing a grey beard. That is set out at appeal book - - -

BELL J: Ms Shaw, I understand a number of the forensic points that you make in this regard, but the matter that I am raising with you is the significance of Mr Aakbari’s identification of the man with the camouflage jacket and the long ponytail as the “old man”.

MS SHAW: Yes.

BELL J: And the fact that he was giving an account that the man who was later to assault him at the Thomastown clubhouse was a man who had been present with him at the Dallas nightclub.

MS SHAW: Your Honour, I apologise. I am endeavouring to address that by pointing out two factors that argue against those propositions flowing one from the other. The first is that the description of Mr Aakbari on 29 September, in the FACEview, is inconsistent with the appearance of Mr Dickman.

BELL J: I understand.

MS SHAW: The second is that, as the trial judge rightly directed the jury, the CCTV footage, the track 1 that Mr Aakbari was shown, was very distorted and was, in effect, a single suspect being put before him. The third point, which is even more important, is that after the CCTV footage Mr Aakbari selected Mr Cooper. The fourth point is – and these are obviously matters that go to – are jury questions but demonstrate that this is fragile, the CCTV is fragile, a fragile basis to draw to effectively ultimately say a conviction is inevitable.

So, following the CCTV, Mr Aakbari then was engaged in the Cooper identification photo board – the CCTV was on 2 October, the Cooper identification board was on 5 October. So after he has purported to say the old man is in the CCTV, in what we submit is a very distorted and suggestive environment, he then selects Mr Cooper, and he never resiles from Mr Cooper.

The Crown position was that Mr Cooper did not look anything like Mr Dickman because Mr Cooper was 55, or over 50. He was obese or fat, as Mr Aakbari described him. The defence put before the jury and the video footage showed in February 2010 that the accused was in his 40s, quite athletic, sprightly looking, not an obese old man. So Mr Aakbari, having identified Mr Cooper and not having resiled from that, undermined, as his Honour directed the jury, the suggestive nature of this CCTV – not that his Honour directed the jury to undermine it, but that was the defence case.

BELL J: Well, Detective Blezard thought that the man with the camouflage jacket and the long ponytail in the CCTV footage was Michael Cooper. Is that right?

MS SHAW: Yes.

BELL J: On any view, it is accepted that that man, in fact, was the man Boris because Mr Gerrie identified him in the three tracks.

MS SHAW: Your Honour, not necessarily on any view. What was put to the jury and what his Honour put to the jury was this was a matter for the jury to decide.

BELL J: Yes, of course.

MS SHAW: Have the Crown excluded the possibility that the person on the CCTV was, in effect, Michael Cooper. In other words - or someone, more accurately, who looked like Michael Cooper excepting that Mr Cooper did not look like the accused, excepting that the accused was not the boss, was not from Melbourne.

BELL J: Was Mr Gerrie challenged - was it put to him that the man whom he identified as “Boris” was a person other than the person whom he had travelled from Gawler to Melbourne with?

MS SHAW: It was not directly put to him but it was raised directly by reason of the conflict with Mr Blezard and we rely on MJW v The Queen in this Court that if there is an inconsistency within the Crown case the defence are not required to explore and explain those inconsistencies. So, the Crown case was as led from Mr Blezard that Mr Blezard believed this person was Michael Cooper. The defence case was there is a conflict on the Crown case, the Crown must exclude that hypothesis.

The defence was saying to the jury, look, here is Mr Gerrie’s – Mr Aakbari’s original description, fitting someone who looked like Mr Cooper. Here is Mr Aakbari identifying Mr Cooper. Here is Mr Blezard saying that this is Mr Cooper and these two people are different. So these are all matters that went to the reliance that one could place upon the identification of Mr Aakbari – Mr Aakbari of Cooper but, more importantly, the issue of displacement and suggestion arises because once you have an original description that is inconsistent then you have a CCTV, then you have a selection of Mr Cooper, then the dangers of the CCTV identification are even more profound.

Of course, Mr Cooper, was at the club rooms on the Monday when the police served their warrant. Mr Cooper was from Melbourne. Mr Cooper was, indeed, a person who was over 55 and fitted the description. So, these are jury questions, in our respectful submission and the retrial - - -

BELL J: But it was not put to Mr Gerrie that the person whom he asserted was Boris was a person other than Boris, namely a person other than the accused at trial. That was not put.

MS SHAW: It was not put directly, no. The way the case was run was that there was a conflict within the Crown case and that the Crown had to establish that – prove or disprove that position. We set out our argument in relation to that applying in MJW. Our position was always that in the alternative the issue is not who was at the Dallas nightclub because there was no dispute that the respondent was there.

The issue was who was “the old man” who was beating up Mr Aakbari back at Thomastown and so the issue essentially that was being addressed was that well, even if this is Mr Dickman effectively, it has occurred in circumstances where he has given a prior description before and he has identified someone else after. That goes into whether or not that, as his Honour directed the jury, is a safe basis to act.

KIEFEL CJ: Ms Shaw, in the context of the appeal brought by your client to the Court of Appeal and the appeal to this Court by the Crown, the matters that you have been going into go to the question of the low probative value of the evidence in question. Is that correct?

MS SHAW: And substantial miscarriage because this was an order for a retrial and the question was whether or not the admission of the photo identification created a prejudice that was an error of law and the question of substantial miscarriage was whether or not a conviction was inevitable. Our submission below – or the submission below was that bearing in mind the conflicting arguments that were obviously able to be put about the reliability of that CCTV - - -

KIEFEL CJ: But you are focusing on the CCTV evidence. Is not the question whether or not there was a substantial miscarriage because the evidence of the photo board went into evidence?

MS SHAW: That is so.

KIEFEL CJ: But you are focusing on the CCTV. It just seems to me that we are reviewing the whole of the trial rather than focusing upon the issues which you ran in the Court of Appeal and which are before us now.

MS SHAW: I apologise, your Honour, I was endeavouring to address the Crown argument but I agree, your Honour, that in essence the issue below related to the admission under section 137.

KIEFEL CJ: Yes.

MS SHAW: The question of unfair prejudice or the danger of unfair prejudice as we have set out in our outline was the fact the two streams of prejudice that I have identified.

KIEFEL CJ: The substantial miscarriage point related to that evidence as well.

MS SHAW: That is so.

KIEFEL CJ: So, why are we reviewing the CCTV evidence and its effect, other than in the context of the photo board evidence later of you would say opinion rather than identification, putting that aside.

MS SHAW: Your Honour, it was addressing the approach in Baini that in order to establish there – in terms of a substantial miscarriage, the – once we submit the error is shown by the admission the Crown must articulate the reasoning by which they say conviction is inevitable. So, in that way, the Crown have put to the Court, effectively, that a conviction, as I understand it, was inevitable.

KIEFEL CJ: What they are saying is if the evidence of the photo board had been excluded, the evidence otherwise is overwhelming and you are saying it is not.

MS SHAW: Yes, that is so and importantly, your Honour, we are submitting that, as was put to the jury arguendo, where it is a circumstantial case which, in essence, is what it boiled down to then if there is a discrepancy between the description given by Mr Aakbari, particularly the FACEview description, and the description that is consistent with the Cooper identification and that is not able to be explained or excluded by the jury, that one inconsistency, in accordance with the approach of this Court in Peacock, one inconsistency or one circumstance that cannot be explained in a circumstantial case is sufficient to raise a reasonable doubt. So, if the jury considered that the Crown had not excluded that the inconsistency in the description caused them to have a doubt about the CCTV - - -

KIEFEL CJ: I might be misunderstanding the thread of your argument in relation to substantial miscarriage, but it seemed to me that you must be saying that the evidence of the photo board evidence actually had much more probative value than it did in relation to your argument for exclusion because the Crown’s argument is that if – I am sorry, I will put it on the basis of your argument.

Your argument would be that, but for the photo board evidence, there was a chance of acquittal. Well, does that not assume that the photo board evidence has rather more probative value, that is to say, your case in relation to substantial miscarriage is on a basis different from that with respect to the exclusion of the evidence and whether it ought to have been excluded. In relation to that you say it is low probative value and a great danger of prejudice, but the inference I am drawing from the way you are approaching substantial miscarriage must be that it had high probative value.

MS SHAW: No, your Honour, not that it had high probative value, but that it was left to the jury on the basis that they could attribute probative value. In other words, his Honour directed the jury at page 632 of appeal book 2 that they could:

The prosecution rely on identification evidence. That is, the complainant identified the accused’s photo on a photo board on 23 August 2011 –

and went on to explain that this was part of the prosecution case. His Honour never said to the jury, “Put out of your mind the photo board”.

KIEFEL CJ: No, I understand that. But is not your case on substantial miscarriage necessarily that, but for the photo board evidence going in and left there, as you point out, before the jury, there would have been a chance of acquittal?

MS SHAW: Yes, or a reasonable doubt.

KIEFEL CJ: Or reasonable doubt.

MS SHAW: Yes, because we do not know what part - - -

KIEFEL CJ: But does that not assume that it has particular importance for the jury?

MS SHAW: Your Honour, our submission is that it might well have assumed importance, but wrong importance, namely, the reliance on the belief of the police that the culprit was in the photo identification board, or the over-estimation - - -

KIEFEL CJ: Well, your substantial miscarriage case then is exactly the same as your case as to why it should have been excluded - the danger of – that is really what - - -

MS SHAW: Yes.

KIEFEL CJ: The whole issue here is just that point.

MS SHAW: Yes. If his Honour had said to the jury – if the Crown had said, “We don’t rely on it”, in fact in their address the Crown did rely on it, in particular, your Honours, at – could your Honours go to page 550? The Crown in their written submissions suggest that the Crown’s position was below at 550, line 21, that:

there are real problems with this type of evidence –

and there the Crown then go on to deal with the identifications that are inconsistent with the Crown case and therefore the Crown effectively disclaimed liability of those identifications, including the identification of Mr Cooper. However, at page 551, line 20, the Crown say:

Prosecution say then, when you come to the photo board that has the accused man on it, well he got that right. We say that that’s our case is that he was actually correct when he picked the accused man’s photograph -

and then go on to say, “Except you cannot convict on that alone”, from the Crown’s point of view. But the judge did not suggest to the jury that they could not convict on that alone. He put to the jury, as I have said, that the Crown case relied on identification evidence, and he reminded the jury of the Crown’s submission that it did not rely on that alone, which is at page 657 of the appeal book. But at no stage did his Honour direct the jury that they could not rely on that identification alone.

So, irrespective of what is now being suggested as to the way the case was run, in fact the record shows that the Crown did rely on it and the record shows that his Honour left it to the jury, with the usual directions, as to any consideration of identification evidence.

BELL J: It is relevant to look at the Crown’s submission, I think, also at appeal book 552, lines 5 to 13, in terms of the way the matter was left by the prosecutor.

MS SHAW: By the Crown.

BELL J: Yes.

MS SHAW: I accept that, your Honour, and his Honour, as I have said, in some respects presented a difference to the jury. He left it to the jury as part of the evidence before them they could rely on, but then, when it came to the Crown case, said they do not rely on it alone. It is not suggested that it had low probative value or it would be something that they could not rely on alone, it is just that they did not purport to.

So in that sense, one, in two respects, cannot now unpick what may have been the jury’s reasoning. The extent to which they did adhere to his Honour’s direction that the identification evidence was part of the Crown case but his Honour did not put a case that, effectively, the Crown case is circumstantial, it is relying merely on the Dickman identification board as an item of circumstantial evidence, it was put to the jury that it was identification evidence and then supported by other items of circumstantial evidence.

BELL J: Can you take us to exactly where it is dealt with by his Honour?

MS SHAW: Your Honour, if I can go back to that - page 632, line 21. His Honour then goes through and gives general directions about identification. At page 635, for example, line 7, he says:

Now I am not saying that you should not rely on identification evidence.

That is, in terms of putting his directions in context.

However, to avoid a possible miscarriage of justice, you must take -

into account all of these warnings, which are the usual warnings that one would give, irrespective of the probative value, its strength or otherwise. But I accept that when his Honour, as I have pointed out, came to summarising the prosecution case, he did identify their position at 657, when his Honour was summarising the cases for the prosecution and for the defence, that is, repeating the arguments - line 11. He then outlined what the prosecution contended and that their contention was that their case did not depend on the identification evidence alone.

Now, that is a far cry from saying it has been eschewed or effectively put to one side, disavowed. In essence, it was left to the jury to decide how much weight they would give to it and in fact what other evidence they might rely on to support it. So it was but one part but the danger was that the jury might well start with that photo identification and then look to other circumstantial evidence to support it. There is no reason why in that summing-up that his Honour’s charge is the starting point for what his Honour outlines as the prosecution case.

EDELMAN J: That is the reason I asked you about 135(b) earlier. Is there not a converse danger that without the subsequent identification the jury could start with the Cooper identification and reason that that identification stood alone and it showed that the complainant might have been fairly accurate at identifying people and that this was not the accused person?

MS SHAW: Your Honour, there are two things about that. We submit first of all that clearly the Crown were aware of that when they led both identifications and that is, in essence, we submit, an issue for them to explain.

EDELMAN J: Yes, but it might be a factor which one needs to assess when one is comparing the probative value with the prejudicial effect of the identification of Mr Dickman.

MS SHAW: Your Honour, can I perhaps put it this way. First of all, if in fact the Dickman identification was an acknowledgement that the Cooper identification was wrong, then one could understand why in fairness there might be an argument for that. On the other hand, if the Dickman identification is only because the witness has been told that the Cooper identification is wrong and he is now picking the closest, it does not in any way rebut or qualify the Cooper identification.

In essence, in our respectful submission, it was an attempt by leading it perhaps to do it that way, to say it is rebutted, but in fact the cross-examination disclosed that this was not a rebuttal. It was merely being left with, “Now you’ve got to make a second choice. Who is your second choice?” and therefore he picked the closest.

EDELMAN J: So it was not led as a rebuttal at all?

MS SHAW: No.

EDELMAN J: It was always led on that second basis.

MS SHAW: It was led by the Crown before the ruling in evidence-in-chief, that is if you identify Cooper as the old man, you identify Dickman as the old man, and it was only cross-examination that exposed, through the introduction of the prejudicial evidence, what in truth was the real nature – that is, the foggy night – of this particular photo identification.

Your Honours, as I said, it was incurable by directions and his Honour reminded the jury that the process that was conducted was clearly relevant to the way they evaluated that photo identification at page 646. They needed to consider whether or not the process was conducted fairly and whether the complainant was influenced to identify the accused, for example, by the behaviour of the police. The complainant was told - he said he was told he would be shown a photograph board with suspects the police believed were responsible for the assault.

So, the danger of unfair prejudice - and to answer your Honour the Chief Justice’s question, the reason why this is a substantial miscarriage was that these matters were put to the jury for their consideration and no directions could cure them because they were part of the explanation for why this photo identification of Mr Dickman had lesser probative value than that which the witness purported to assert in his evidence-in-chief, namely, identify “the old man” - Mr Dickman was the old man.

NETTLE J: Ms Shaw, could I just ask in passing, did this evidence go in under 114 or 115 or do you say on some other basis?

MS SHAW: Your Honour, going – being excluded or - - -

NETTLE J: No, I mean, on what basis was it admitted? Was it under section 114 or 115 or at common law?

MS SHAW: It was under section 114. I am not – certainly both – there was a dispute below as to what basis - - -

NETTLE J: Well, it would not have been admissible under 114, would it, because of section 114(2)?

MS SHAW: Well, that was what was argued below and his Honour ruled that subsection (2) had not been satisfied focusing on what occurred during the photo identification itself. So below the defence argued that it should be excluded because the Crown could not satisfy the precondition in 114(2). His Honour ruled that, in fact, what was addressed by that subsection was the conduct of Mr Condon during the photo identification itself and therefore admitted it under that section.

So, your Honours, and true it is that counsel also argued under 114(2) which was clear from the CCTV footage of that photo identification that Mr Aakbari when being shown the photographs had his hand or finger in the vicinity of number 9 and Mr Condon said to him, are you pointing at number 9 and repeated this. It was argued that this was, in effect, influencing his selection but his Honour rejected those arguments.

I point out, of course, that Mr Aakbari accepted that of all the photographs in that array, number 9, Mr Dickman, was the only one who had a beard of any length and that is what differentiated him from any of the others in the selection. So that was another limb to probative value that the quality of the photo array was one that had low probative value and two photos were of the same person.

BELL J: The suggestion that it was visual identification evidence within 114 as distinct from picture identification evidence under 115 seems perhaps curious.

MS SHAW: Your Honour, it is fair to say that counsel were chopping and changing about the sections but counsel for the respondent contended that it was 114 applied.

BELL J: In any event, the sole ground on which you succeeded below and which forms the basis of the present appeal is the exercise of the 137 discretion.

MS SHAW: That is so and we submit that the point – the fourth point identified by the Court of Appeal, namely the informing the appellant – I am sorry, the respondent that his identification was wrong and effectively the police providing him with information that he – of who they believed was the topic, in effect, that we were addressing. So if your Honours go to 758, at paragraph 107, in the majority reasons:

Fourthly, by the time FA selected the applicant’s photo as being that of the ‘old man’, he had been told that earlier he had made a mistaken identification. Thus, when he came to view the photoboard on 23 October 2011, by his own admission, FA had a preconceived view that a photo of his assailant was included in it.

It is that topic that we perhaps have been focusing on in terms of unfair prejudice and we submit, therefore, that the Court of Appeal was correct to find that under section 137 the probative value, which was accepted and is accepted now and eschewed almost as being negligible, was outweighed by the prejudice that was involved in exposing that low probative value. It goes without saying, your Honours that if it is of low probative value less prejudice is required to satisfy exclusion under section 137.

Your Honours, my learned friend – if I can just correct another submission made – it was disclaimed that Cooper was an alternative suspect. What was relied on was appeal book 152. I point out that what - there is an indistinct answer on that page but clearly it is referable to the first line of that page. Your Honours will see that 152, at the top, what counsel is saying is:

I don’t have any objection if Your Honour receives them for the purpose of this inquiry.

That is, on the voir dire. What happens after that, it is clarified for the purposes of trial – that is, that was not a concession for trial – at appeal book 1, 380. During discussions with the trial judge, Ms Dalziel puts to the judge, at line 23:

it was conceded . . . that it is not the defence case that Mr Cooper was the offender.

Now, it appears at line 28 that that is Ms Dalziel. In my respectful submission, that is a mistake and it is actually counsel for the respondent. Because what he says is:

No, Your Honour, that’s not right: I have to correct that. What I said was for the purpose of the voir dire we wouldn’t object to that proceeding on that basis and I said Your Honour can have the statements about that – because my client wasn’t there –

that is, at the time of the beating:

so he can’t say. That was my submission and it still is.

Ms Dalziel then puts a proposition and counsel responds:

But I never said that.

BELL J: Was there any exploration at trial of Mr Cooper as the possible offender?

MS SHAW: Only in that the Crown were able to say that he was investigated and charges were dropped. The defence argued that the person that Mr Aakbari identified looked like Mr Cooper. He believed he was Cooper or he looked like him and there was a circumstantial case against Mr Cooper. That circumstantial case included that he was from Melbourne, he was in fact at the club rooms on the Monday when the police came, that he looked like Mr – the person – or he was identified by Mr Aakbari as the offender. Those matters were put to raise a reasonable doubt about the reliability of the CCTV and of course the Dickman photo ID, which the defence were endeavouring to meet.

BELL J: Were any questions raised with the police in the course of evidence about the possibility that the offender was Mr Cooper?

MS SHAW: Only that the defence asked the police whether or not Mr Cooper was there when they served the warrant and they agreed he was, on the Monday. So, in essence – and they were asked – I have to remember whether this is the voir dire or trial, but I think it was trial – insofar as Mr Cooper’s appearance was concerned, of Mr Blezard, that he was obese, he was fat – I am sorry, the same thing – he was over 55 and I think reference to hair. So that was specifically raised with Mr Blezard as to his appearance.

BELL J: The prosecution led no evidence of Mr Cooper’s alibi?

MS SHAW: No. Your Honours, I should give you one further reference to when this discussion occurred, at appeal book 2, and this was raised after the opening, to answer perhaps your Honour’s query - appeal book 1, I am sorry, 474. So after the opening when clearly the defence had opened on Mr Cooper, counsel for the respondent says at line 18:

Your Honour, I’ve made my position plain all the way along. I agreed to my learned friend she could open in that general way to cover the topic.

. . .

Your Honour heard my opening. My position has been consistent.

And in my opening I relied - - -

BELL J: When was this discussion?

MS SHAW: After the opening by the defence. So after the opening by the defence when the defence relied clearly on the Crown - Mr Aakbari identifying Cooper, the Crown raised this issue and I said:

My position has been consistent.

Referring back to that earlier discussion, and Ms Dalziel said:

I need to know that, your Honour, because I need to know whether I need to rebut it.

HIS HONOUR: Well, I think you know it.

Page 475, this is the passage my learned friend relied on:

MS SHAW: No. I’ve been saying to my learned friend – I said in my opening my client wasn’t there.

That is, he was not there at the time of the beating to say whether or not it was Mr Cooper:

We don’t know what happened and we’re simply relying on the history.

So the defence case was, we were not there at the time of the beating. It was argued to the jury – the inference was from telephone intercepts I have canvassed, that we were upstairs, and yet you have Mr Aakbari saying it was Mr Cooper and there was a circumstantial case against Mr Cooper, and the Crown did not at any stage after that raise the issue of exclusion of Mr Cooper. So, in essence, the defence was saying we cannot say whether it was Mr Cooper because we were not there. However, it was either - Mr Aakbari believed it was him and it was certainly someone who looked like him who is different to the respondent.

BELL J: The discussion that you have just taken us to took place after the Crown had closed its case. Is that right?

MS SHAW: No, your Honour, it took place after the opening.

BELL J: After the opening? I understand.

MS SHAW: After the Crown opening and the defence opening.

BELL J: I understand, yes.

MS SHAW: Your Honours, can I just correct one other matter that was put by my learned friend at appeal book 509, line 13? My learned friend suggested that based on this exchange there was no dispute that the defence were conceding that Mr Gerrie’s evidence in relation to Boris being on the CCTV was not in dispute.

So, if your Honours go to this page 509. In our respectful submission, this is a discussion not about the CCTV but about the comparison and the direction his Honour should give in relation to the Crown’s reliance on voice identification. In other words, there were some phone calls in which my client can – the Crown could infer he was involved up until an hour before the alleged – the assault at 5.50 and there was at the time of the assault some voices that were heard in the background which the Crown acknowledged was dangerous to act on because it was clearly the tone of the voice was distorted, there was shouting and so on.

But the Crown asked the jury to consider it and it was left to them – open to leave to them, on the basis although there had been some argument about that earlier, it matters not, so what his Honour was saying was that the Crown rely on voice identification. If the jury find that, in fact, the person whose voice is present at the time of the assault is Boris and the accused it is “all over red rover”. So, his Honour is there referring to not the Dallas clubrooms – sorry, the Dallas Showgirls Club, not the Gerrie CCTV but what is actually happening at the time of the assault.

BELL J: Nonetheless, it was true, as I think you indicated at 509, line 14, the critical issue in the trial was whether Boris was the old man.

MS SHAW: Yes, that is so. That is the old man is identified by Mr Aakbari so what I simply wanted to point out was my response that may well be the case or that is very well the case however you put it, was that the jury if they found that it was Boris or the accused on the voice comparison as at the time of the assault, that might well be – mean that they would not need not go any further if they took that path and his Honour gave very careful directions about the dangers of acting on that and the Crown can see that it was dangerous to make that comparison bearing in mind the amount of material and the distortions. So, I simply wanted to correct that that was completely unrelated to the issue of Gerrie and the CCTV.

So, your Honours, having responded to your Honours’ questions in terms of not following our outline but without repeating any of those matters, in essence, we have set out in our outline - our oral outline of argument at point 8 the various matters that were relied upon as demonstrating the unreliability or the dangers of the – firstly, the reliance on the Dickman identification but, more importantly, the overall reliability of Mr Aakbari’s evidence and, in particular, that as far as the CCTV showing was concerned that was indeed a very, very, foggy night.

Importantly, as we emphasised, FA in terms never resiled from the Cooper identification and he positively adhered to his original descriptions of the offender, which were inconsistent with the appearance of the respondent. The respondent’s argument to the jury was, “Look, if there is one inconsistency, whether it be because he has got white hair and Mr Dickman has red hair, whether it be because he is fat and Mr Dickman is athletic, that one inconsistency is sufficient for a reasonable doubt in a circumstantial case”.

So these various features that we summarise, in our respectful submission, explain why it is that this was a case which was very much for the jury to decide, because Mr Aakbari’s evidence, on its face, was unwavering in adherence to his description of the old man having long white hair with some grey. It was straight, not an afro. The photos and the footage of the respondent show that he has got extremely frizzy hair and it was submitted that the FACEview description in exhibit 12 is the uncontaminated description.

BELL J: Was it put that the images in the video recording of the execution of the search warrant on the respondent’s Gawler premises depicted the respondent in a way that materially differed from his appearance at the time of the incident?

MS SHAW: No, your Honour, because that was only February and the events were in October.

BELL J: Yes. So that some of the submissions that you are making are matters that it was possible for the jury to evaluate because they could look at the CCTV footage of the man whom Mr Gerrie identified as Boris.

MS SHAW: Yes.

BELL J: And they could look at the images of the respondent and come to their own view about consistency or otherwise, and the same with the photo in the photo board.

MS SHAW: Your Honour, that is correct.

BELL J: Yes.

MS SHAW: Those are matters that clearly were part of the directions that applied in terms of displacement suggestion and the like. Importantly, your Honours, even though what we submit is that Mr Aakbari never suggested or was not shown the February 2010 video, for example, he never suggested that his description in the FACEview, exhibit 12, was incorrect. It is after that we submit that contamination suggestion occurs and, importantly, the unequivocal identification of Mr Cooper.

So those matters, your Honours, in a case where it was put as identification evidence, it was put as a matter that the jury could act on in terms of the Dickman identification being an identification of Mr Dickman, even though it was only the closest, meant that the admission of that evidence did constitute a substantial miscarriage because of the two strings of prejudice that we have identified.

Your Honours, the matters that we submit go to issues such as the question of substantial miscarriage are not just the incurable potential prejudice of the evidence that the police believe but go to the question of whether or not a conviction was inevitable, as opposed to open, we submit supported a rational hypothesis consistent with innocence.

To summarise those, the original FACEview and description, we point out that the description that Mr Aakbari came to only emerged effectively in a statement signed on 6 or 7 October after the FACEview, after the CCTV and after the Cooper identification. So the passage of Mr Aakbari’s recall and his descriptions must be seen in the way in which the usual factors that affect the reliability of evidence, displacement and suggestion, interacted.

Your Honours the other matters that were relied on, of course, were that the police, obviously Mr Blezard, and Mr Aakbari had the view that the culprit looked like Mr Cooper, who on the Crown case did not look like Mr Dickman. There were other wrong identifications in 2011 at the time of the photo board showing and the important circumstantial piece of information that the old man was a boss from Melbourne and, for example, in pointing out the photos on the wall, him having control of what was happening at the clubrooms, whereas clearly the respondent was a visitor from Adelaide.

Your Honours, in effect we submit that the court below was correct to find that the introduction of the evidence under section 137 ought not to have occurred. It was a case where the Crown relied on the evidence. More importantly it resulted in the prejudice. The order is not for an acquittal; it is for a retrial, effectively the Court deciding that this is a substantial miscarriage in the sense that it is a departure from a fair trial and conviction is not inevitable. Your Honour can I just mention very softly that we have filed an affidavit in relation to costs, which we draw to the Court’s attention.

KIEFEL CJ: Yes, we have the affidavit. Thank you, Ms Shaw. Any reply, Mr Silbert?

MR SILBERT: Yes, a couple of matters if I can deal with. In relation to the alibi raised, I think, by Justice Bell in relation to Mr Cooper at volume 1, page 151 of the appeal book from line 25 downwards - this is the voir dire:

All right, next topic. You were asked some questions about Mr Cooper yesterday. Why was he exonerated?---His alibi evidence was investigated and it turned out to be – it was true, so he was not involved in the offence.

What sort of inquiries were made in to checking his alibi?---Mr Cooper’s alibi was he was a heavy haulage truck support vehicle - - -

Then it cuts out and goes on to the top of 152 - my learned friend:

Your Honour, can I short circuit this? I understand that a number of statements were provided by Mr Stary to the police. I don’t have any objection if your Honour receives them for the purpose of this inquiry.

BELL J: Senior counsel says that this was with respect to the voir dire and in the event the evidence of the alibi was not run at the trial.

MR SILBERT: Well, this discussion, your Honour, probably cuts it off as far as the trial goes:

It appears there’s no issue - or is there something in particular you want to lead about Mr Cooper?

That is the judge:

It seemed to be suggested in the course of the questioning that in fact Mr Cooper really should still have been a suspect and I wanted to clarify whether or not the exoneration was a strong one or what because it seemed to be - - -

HIS HONOUR: Is that a suggestion, Mrs Shaw?

MS SHAW: No, your Honour, obviously not . . .

I mean, (indistinct) it’s clearly not an issue.

It was run as your Honour Justice Bell said on the voir dire and it was discarded as being an issue as far as the trial was concerned and it was resolved at that point in time.

BELL J: No question asked of the investigating police in the trial raised the issue of Mr Cooper?

MR SILBERT: Yes, it appears not. Based on what happened in the voir dire, no.

BELL J: I understood from Ms Shaw that a question had been asked whether Mr Cooper was present at the Thomastown clubroom when the warrant was executed by the police.

MR SILBERT: Yes, well after the event, yes – on the Monday, following the event.

BELL J: I see.

MR SILBERT: Dealing with a couple of points, the matter was always dealt with under section 114, to answer Justice Nettle’s inquiry. In fact, everyone seemed – well, it was done by consent – everyone was in agreement in the Court of Appeal. The Court of Appeal remarked that it was done under section 114 and they did not have to get involved in the question of which was the applicable provision of the Evidence Act. His Honour in fact made a ruling that the accused had refused to take part in such an identification parade. There is a ruling there to that effect, which explains section 114. Whether 114 is the correct section - - -

NETTLE J: A matter for another day!

MR SILBERT: I do not need to get involved in at this stage, your Honour. Everyone proceeded in the Court of Appeal on the basis that it was. Just dealing very briefly with this bodgie identification, the primary identification was the CCTV, which followed the event. There is no doubt about that. The Crown, and I repeat, was obliged as a matter of fairness to lead the Cooper identification. It could not have not done so. It had to do so. In context, the subsequent identification had some relevance, although the Crown says, clearly it was of low probative value. At the appeal book volume 2 at 646 his Honour in his charge to the jury dealt with the question of identification. On 646 from line 11:

You have also in terms of considering whether the identification was conducted fairly, got evidence in relation to the photo board identification on 23 August 2011.

Going on from there at 24:

In terms of whether the process was conducted fairly, was the complainant, another question to consider, was the complainant influenced to identify the accused? For example by the behaviour of the police. The complainant was told, he said he was told he would be shown a photo board with suspects the police believe were responsible for the assault. So the complainant’s evidence was that that was his belief, that he was to be shown suspects the police

believed were responsible for the assault. He said yes, he picked a photo most similar to the person he might have seen.

That goes into the Festa category that your Honours referred to and then there is a discourse that I do not need to read which goes on in relation to those photo boards. The primary advice in relation to the two photo boards and any suspect, it is submitted, being shown a photo – any person being shown a photo board, it is submitted, expects to see a photograph somewhere there of a suspect that he is being asked to identify.

Now, the first photo board had Mr Cooper and no photograph of Mr Dickman. The vice of the second one, aside from the fact that it was two years after and that obviously is a major detracting factor from any validity is that the accused man was shown on that photo board and quite clearly Mr Aakbari expected and was told there was likely to be a depiction of the accused on that photo board. So, he was expecting to see it.

Of course, he was expecting to see it. Little point in showing a photo board, the police just got it completely wrong at the first instance and it is submitted that again the low probative value of that is dissipated by the fact that the CCTV footage that was contemporaneous to a man who had been badly injured was shown to him on 2 October very soon after the event.

The crux of the Crown case, as far as identification goes, was the CCTV once Gerrie was able to identify that. The jury would well have understood the issues, it is submitted, in relation to this case because the whole case was fought on the question of identification. The jury, ad nauseam, had identification evidence led to them and explained to them and were warned in relation to it. If the Court pleases, those are our submissions.

KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow in Brisbane and in Melbourne.

AT 11.46 AM THE MATTER WAS ADJOURNED