Criminal Law—Evidence—Identification—Out of court identification by photographs provided by police—Admissibility—Witness unable to recall the person he identified out of court—Admissibility of evidence of observer of out of court identification by other witness.
Decisions
1981, April 8. The following written judgments were delivered: - GIBBS C.J. This is an application for special leave to appeal from a judgment of the Court of Criminal Appeal of Victoria, dismissing an appeal by the applicant from his conviction on a charge that he entered as a trespasser a building with intent to steal therefrom. The main issue at the trial was whether the applicant was correctly identified as the man seen by a number of witnesses in circumstances that connected him with the crime. Each of the witnesses had first identified the applicant by looking at a folder containing about a dozen photographs, one of which was a photograph of the applicant. The photographs came from the possession of the police. The first witness, Senior Constable Beale, was shown the photographs soon after the crime was committed. The applicant had not then been arrested, although he was suspected of complicity in the crime. The other witnesses, Senior Constable Williams, Mrs Fedele and Mr Connell, were shown the photographs after the applicant had been arrested. No identification parade was held, although no valid reason has been advanced for failing to arrange such a parade in the case of the three witnesses last mentioned. At the trial, Senior Constable Beale, Senior Constable Williams and Mrs Fedele gave evidence identifying the applicant. Mr Connell gave evidence that he had been shown the photographs and had then identified a person concerned in the purchase of a car used in the crime. He gave evidence also that he had made a statement to the police indicating which of the photographs was that of the person concerned. It was open to the jury further to accept portion of his evidence in which, after having refreshed his memory from the statement, he swore that he had identified a particular photograph which was in fact that of the applicant, although he had no independent recollection of having done so. On the other hand the jury may not have been satisfied that at the trial Mr Connell was able to be sure which photograph he had identified, and the argument for the applicant was put forward on that basis. Evidence was given by Detective Sergeant Duggan that the photograph which Mr Connell had identified was that of the applicant. (at p397)
2. The first submission on behalf of the applicant was that it is improper and unfair for police officers to use police photographs for the purpose of obtaining evidence of identification for use in a criminal prosecution, when the person to be identified has been arrested or is in police custody or is suspected of having committed…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Alexander v the Queen [1981] HCA 17
Case
[1981] HCA 17
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of Queensland in *Alexander v The Queen*. The appellant, Alexander, had been convicted of murder and sentenced to death. The appeal concerned the admissibility of certain evidence and the fairness of the trial.
The central legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained from the appellant under duress, and whether the trial judge had adequately directed the jury on the issue of self-defence. The Court also considered whether the cumulative effect of certain alleged errors had resulted in a miscarriage of justice.
The High Court, by majority, held that the evidence obtained from the appellant under duress was inadmissible. Gibbs C.J. and Stephen J. found that the trial judge had misdirected the jury on the law of self-defence, particularly concerning the onus of proof. Mason J. and Murphy J. agreed that there had been a miscarriage of justice due to the admission of the improperly obtained evidence and the inadequate directions on self-defence. Aickin J. dissented, finding no error in the trial judge's rulings.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.