Barbor v The Queen

[1992] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A23 of 1991

B e t w e e n -

FLORIAN BARBOR

Applicant

and

THE.QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

DAWSON J

Barbor 1 1/9/92

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 1 SEPTEMBER 1992, AT 2.57 PM

Copyright in the High Court of Australia

MR K.V. BORICK: If the Court pleases, I appear with

MR B.F. STOKES, for the proposed appellant.

(instructed by Scales & Partners)

MR P.R. BREBNER: If the Court pleases, I appear for the

respondent. (instructed by P.J.L. Rofe, QC,

Director of Public Prosecutions (South Australia)

MR BORICK:  If the Court pleases, I would like to briefly

summarize the reasons why it is said that this case

is deserving of the grant of special leave to
appeal, and then to take Your Honours to relevant

passages in the trial judge's judgment in relation

to the exercise of his discretion, and to the

judgment of the Court of Criminal Appeal.

To guard against the danger of mistaken

identification, a number of safety steps have been

put in place. They are firstly the Alexander

rules; secondly, the discretion to exclude;
thirdly, the warning·that has to be given to the

jury; fourthly, a special warning in the case of

photo identification; and finally, a stringent

review by the Court of Criminal Appeal.

It is submitted in this case that the

Alexander rules were not complied with at all, that

there was a failure to observe any of the

safeguards, and in the ordinary case the

identification evidence would not have been

admitted. In refusing to exercise his discretion

to exclude, the learned trial judge was influenced

by the fact that the identifiers were police
officers whose attention was directed towards the
specific purpose of identification. They were in

fact police officers who had engaged in

surveillance work in a house opposite a place where

heroin trading was taking place.

The effect of the combination of the ruling of

the exercise of discretion and the Court of

Criminal Appeal's judgment was to exclude and is to

exclude police officers from the requirements of Alexander. It is submitted that ruling not only diminishes the value of the safeguards, but it

exacerbates the dangers, because the jury are

encouraged to believe there is something special in

a police officer's training which separates him

from the ordinary man.

DAWSON J: What do you say they should have done?

MR BORICK:  In terms of the Alexander rules, at the very

least - - -

Barbor 2 1/9/92

DAWSON J: What do you say they should have done in this

case?

MR BORICK:  The police officers, Your Honour?

DAWSON J:.- Yes.

MR BORICK:	I suppose they could have taken photographs of the individual. That is one thing they could have
done, but in our submission there is no - - -

MASON CJ: What, when they were observing them?

MR BORICK:  Yes.

DAWSON J: At night with a flashlight?

MR BORICK:  Not necessarily. They had other opportunities

in the daytime, but I envisage that they could have

used equipment which could have been used to

photograph people going in and out of this place.

That is simply one thing they could have done, but

there is no -

DAWSON J: What do you suggest otherwise?

MR BORICK:  Perhaps there is no other technology that could

be used to bolster up the human eye.	In the end,
Your Honour, it - - -

DAWSON J:  You are not suggesting they should have conducted

a line-up, are you?

MR BORICK:  They could have conducted a line-up when

the - - -

DAWSON J:	How?
MR BORICK:	Immediately after the first two police officers

had looked at the photographs in the car. The

photographs had been sent over from Sydney with the

names on the back. Those police officers were

unable to say whether they looked at the names on

the back first. But the man who did most of the identification of Barbor, Reichstein, he was not

present on that occasion, and it was recognized

that when it came to his identification, then

either a line-up could have occurred or certainly

steps could have been taken to ensure that the

accused - - -

DAWSON J: They were observing this witness for the purpose

of apprehending him if they decided that he was

guilty of some crime, so that before they did that,

they should have somehow extracted him and lined

him up - the others - so that Reichstein could have

identified him.

Barbor 3 1/9/92

MR BORICK:  Yes.

DAWSON J: That is pretty impractical, is it not?

MR BORICK:  No, it is not impractical - and this is the crux

-0f our special leave point - police officers stand

in no different position to any other individual.

There is no special training - - -

DAWSON J: They are. They are in the course of

investigating the commission of a crime. They are

not just in the place of witnesses.

MR BORICK: With respect, Your Honour, they stand in no

special position when it comes to the ability to

remember faces.

DAWSON J: No.

MR BORICK:  That is our point and has been our point from

beginning to end. The learned trial judge in the

exercise of his discretion and the Court of

Criminal Appeal in their judgment have based their

reasoning upon the fact that police officers have

some degree of special training which enables them

to identify, if you like in this case, from

photographs, and that is just not the case.

DAWSON J:  If you can point us to those passages which you

rely on.

MR BORICK: Yes, I will. Could I just refer Your Honours to

the only information that I have with regard to the

ability to train people. It is in a recent

Canadian textbook of Duetscher and Leonoff. Under

the heading of Training, the authors refer to

various studies which have taken place. They say: ~

Training, however, appears to be

ineffective in the critical area of face

recognition.

They then went further and said:

Any attempt to teach a strategy contrary to

this "natural" proce~s is simply

counter-productive. Thus, given the state of

the science, police officers and other law

enforcement personnel cannot be trained so as

to directly improve face recognition skills.

That is based upon various studies that have been

undertaken in Canada, and from our research, the

only textbook that we could find or any other

writing dealing with this question of the ability

to train people, and in particular police officers,

to improve face visual skills.

Barbor 4 1/9/92

I take Your Honours to the passage in

Justice Duggan's ruling at page 55. He had prior

to that, Your Honours, set out some aspects of the

evidence of the police officers who had been

looking at this place through the house from over

the road. He had gone through the passages dealing

with the incident in the car where two police

officers, Maiden and Munns, had got the photographs

from Sydney and had looked at them there. At

page 55, line 20:

On two of those occasions both Reichstein and Maiden were present, so in a sense there were

nine individual sets of observations and on

each of these occasions the attention of the

police officers was directed towards the

specific purpose of identification.

Then His Honour referred to other aspects of the

police work, and at page 58 starting at the top of

the page, His Honour said:

Nevertheless the manner in which the

police officers went about the photographic

identification gives rise to some concern. It

would seem that those responsible for

supervising the investigation gave little

thought to the procedure to be adopted and the

desirability of recording what took place on

each occasion. It should be borne in mind

that an identification involving the use of

photographs should be undertaken with the same
degree of care accorded to the identification

parade procedure.

At the bottom of the page at line 24, His Honour

then said:

when photographs are shown to a witness in

circumstances such as these make it all the more important why a detailed record of the	procedure should be kept including an accurate	account of all conversation concerned with the
identification.
The lack of adequate note taking in the present case has made it difficult to
determine precisely what occurred on each of
the occasions when an identification was made
and the procedure was much more informal than
it should have been.

His Honour then made the point that he was

satisfied there was no inherent unreliability.

Further down the page at line 19, His Honour

appeared to set out a - - -

Barbor 5 1/9/92

DAWSON J: What was the purpose of the identification here?

To identify the person who was going into the

particular premises as the person who was

eventually charged?

MR BORICK.:  Yes, Your Honour. They saw a man who they did

not know before. They saw him on a number of

occasions - Reichstein on more occasions than the

others - Maiden, I think, on three occasions;

Reichstein on six or thereabouts; Munns only saw

him once. That was the extent of it. It was

really down to two police officers. There was an

argument at trial as to whether the circumstances

of identification in terms of lighting, at night

time, across the road were sufficient -

DAWSON J:  It was whether the person in the dock was the

person they saw?

MR BORICK:  Yes, Your Honour, but in the meantime of course,

the photo identification process had taken place.

DAWSON J:	But what did that have to do with it?
MR BORICK:	That is when they - photographs were sent over

by Sydney police to Adelaide, looked at by two

police officers. As I say, it may well be that

they looked at the names first. _

DAWSON J: Perhaps they did, but the identification was not

with the person in the photographs; it was

with the person in the dock and the person who went

to the premises, unless I am wrong.

MR BORICK:  But the subsequent identification in the

courtroom, so to speak, depended entirely upon the

identification from the photographs. Those police

officers having seen the photographs with the

names on the back, it is submitted, they had made

their minds up that that was the man that they had

occasion, and the question was whether they had	seen. But they had only seen the same man on each
made a mistake, as in any identification case. It is submitted they clearly made a mistake with
respect to Taub, because - - -

DAWSON J:  I still do not understand, I am sorry. The

question was	not whether the man that they saw
entering the	premises was the man in the
photograph.	That was not the question at trial.
The question	was whether the man they saw entering
the premises	was the man that was in the dock, was
it not?

MR BORICK: With respect, Your Honour, the man that they

identified in court was the man from the

photograph. That was their initial identification

Barbor 1/9/92

of him. Without that, how could it be said that an

in court identification was not in a sense

contaminated? I think there is certainly plenty of

authority to that effect.

DAWSON J~ It would not be in this case. The man they

arrested, if you like, was the man whom they saw

entering the premises.

MR BORICK:  He was eventually arrested, yes, but the

identification procedures which the trial judge

regarded with concern, and the Chief Justice in his

judgment described as sloppy identification work,

all stemmed from photographs, on the back of which

was the name. Our proposition is that if that had

happened and no notes were made of it and then the

photograph shown to another civilian witness - let

us assume they are not police officers.- if that

had happened, there is no way, with respect, that

this identification would have been admitted. The

only way it became admitted was because of the view

of the learned trial judge and subsequently the

Court of Criminal Appeal that police officers stand

in a different position with regard to the

identification procedures set down in Alexander.

So that all of the risks were there.	In our
submission - - -

DAWSON J: Were the photographs tendered in evidence?

MR BORICK: Yes, they were tendered in evidence.

DAWSON J: For what purpose?

MR BORICK:  For the purpose of the police officers

identifying which individual they had identified

firstly as Barbor and next as Taub. So that was

the reason, because that was the connection: why

they went to Sydney, why they spoke to Barbor and

Taub in Sydney, otherwise the jury would have been	left without any explanation as to how they got to
these two people. It is clear enough that if it
had happened to lay witnesses, that names had appeared on the back and the police had shown them
names, it could never be admissible.

If there is to be some difference between

police officers and lay witnesses when it comes to

identification safeguards of the Alexander type,

then we would say that at the very least police

officers should be required to keep adequate notes

of when and where and how an identification was

made. That is a particular - - -

DAWSON J:  I am sorry, there must be something wrong with

me, Mr Borick. I still do not understand why the

relevant identification was not the identification

Barbor 1/9/92

of one or other - in this case Barbor - entering

the premises as being the person who was arrested

in the dock. Is that not all that is relevant?

MR BORICK: With respect, no, Your Honour.

-

DAWSON J:	Why not?
MR BORICK:	Because of the intervening photographic

identification. They had identified Barbor from

the photograph with his name on the back.

DAWSON J:  In other words, they had information to say,

"This is the person you are looking for."

MR BORICK: Yes.

DAWSON J: And they went looking for him.

MR BORICK: Yes.

DAWSON J: And they said they found him.

MR BORICK:  From a photograph.

DAWSON J: No, from what they observed.

MR BORICK:  Their evidence was that they had identified him

first from the photograph.

DAWSON J: They might have, but the important evidence was

that he was going in and out of these premises

which were connected with drugs.

MR BORICK:  That is what the police officers said.

DAWSON J: Yes, exactly; that was the point.

MR BORICK:	The important aspect of this application for special leave is the Alexander rules and whether
they are applicable to police officers, because if
they had been lay people, the trial judge most
certainly would not have admitted the evidence. If
the contamination which occurs because of a photo
identification of this sort is applicable to lay
witnesses, it must be equally applicable to police
officers. But as I said, particularly in relation
to Reichstein, the man who saw most of Barbor, he was not there when the photos were there with the - and the police officers themselves in evidence said
that they realized that they should have done
things differently. They could have done things
differently with regard to Reichstein. He was back
at the police station and they could have brought
the photographs back there, made sure he did not
look at the names on the back and properly recorded
his identification.
Barbor	1/9/92

DAWSON J: They looked at the photographs before they went

out to identify him, did they not?

MR BORICK:  No.

DAWSON J:_ I may have it wrong. They looked at the

-photographs before they went to identify these

witnesses going in and out of the premises.

MR BORICK:  Yes, they looked at the photographs in Adelaide.

DAWSON J: Yes, it was not a case of a civilian witness,

after something had happened, being shown a

photograph and being asked:	"Is that the man?"
That is a different situation.

MR BORICK: With respect, no, Your Honour. If a civilian

witness was shown photographs of a suspect and the

name was on the back and - - -

DAWSON J: After the event.

MR BORICK:  No, before they made the identification. They

were shown photographs with the name on the back

and were told, "Here's Barbor and here's a

photograph of him. Is that the man you saw?"

DAWSON J: Yes, but that is after the events which

constitute the crime have taken place. Here they

look at the photographs and they go and observe the

people, and the identification is on the spot - not

of photographs or from photographs, but from what

they see, unless I am wrong.

MR BORICK:  I am not sure I am ad idem with Your Honour.

The photographs were taken after the surveillance work, not before the surveillance work.

DAWSON J: I see. That is what I asked.

MR BORICK:  I am sorry, Your Honour. The surveillance

occurred first and they saw a man and then they got

a name from another person they had arrested, the

name Taub, and the name Barbor came into it. So

they contacted Sydney and the police officers sent

over photographs - not police mug shots, but social

photographs - of Barbor and Taub. There were about

a dozen of them, and there were other people in

these photographs. On the back they wrote down the

names of Barbor and Taub.

The two police officers who picked the

photographs up from the airport, Munns and Maiden,

walked out of the area in the airport where they

got them, sat in the police car, Munns looked at

them and then Maiden looked at them. They can only

say they had a feeling that they did not look at

Barbor 9 1/9/92

the names first. Then they took the photographs

back to the CIB office, they were put on somebody's desk - they could not remember whose - and that day

or the next day, Reichstein - he could not remember

which, because he made no notes - looked at them

and he purported to make an identification from the

-photographs.

DAWSON J:  That the people they had been watching were the

people in the photographs, yes, I follow.

MR BORICK:  The two of them, yes, Barbor and Taub. Then the

photographs were just left lying around the CIB

office for another couple of weeks or thereabouts

and another police officer looked at them and he

purported to identify Barbor, but he was never

called to give evidence. His identification was

not admitted. A similar process happened with
regard to Taub. It is clear that in regard to Taub

they were wrong. All of these police witnesses and

other identifying witnesses said that Taub had long

hair, and it was shown conclusively from videos and

films and photographs of him that he did not; they

were wrong. He also had a very strong alibi case.

It is submitted in this case that the same

police officers were shown to have been wrong by

the facts of the case and by the verdict of the

jury. These police officers, it is suggested,

could well have been wrong in regard to Barbor, and

that in the case itself was a very good example of

why the Alexander rules make sense and why they

should apply to police officers.

To return to the point that I was making a

short while ago, if there is to be a difference for

police officers because of the nature of police

work, in my submission it could not extend to the

failure to take notes. There is one thing that

police officers are trained to do and are good at

doing and something which they can be trained to

do, and that is to take notes.

The learned trial judge at trial recognized

this problem. As he said, it was difficult to

determine precisely what happened because they did

not take notes. In our submission, it deprived the

accused Barbor of one essential chance he had in

the course of what happens in a police

investigation, a chance of knowing what went on.

When police officers are required to take notes,

and three of them take notes at different times at observations, that is when the cross-examiner gets

his opportunity to attack a police case. When no

notes are taken, no one really knows what is
happening, the accused person is deprived of that

opportunity.

Barbor 10 1/9/92

DAWSON J: What you say happened was, just taking your

client, they conducted the surveillance; they saw

a man; they then received photographs, which had

the name of your client on the back. They then

said, "Yes the man we saw is the man in the

_photograph", and they then went and arrested your

client, in effect.

MR BORICK:  In Sydney, yes, from that, and it is against a

background where one of them who had given evidence

said that the man he identified had a moustache -
this man called Munns - he only ever saw Barbor
once, and Reichstein, who was the main identifying
witness and the one that we, in a sense, complain

most about, said that Barbor did not have a

moustache.

DEANE J: But if in-court identification was not going to

be excluded, the photographs helped your client,

did they not?

MR BORICK:  The photographs were of my client, Your Honour.

DAWSON J: No, helped.

DEANE J: They helped - in the sense, if the police had just

gone into the witness box and said, "We surveyed

for so many days; we saw the person concerned ten

times, and that's the man", that would have been

far more damaging to your client than if the Crown

led the evidence that their identification followed

upon somebody giving them a photo and suggesting it

was the man.

MR BORICK:  Yes, if one would assume if there had been no

photographic identification here and just assume

they had other evidence against Barbor, brought him

to Adelaide and put him up for committal and the

police officer said, "That's the man", yes, I

accept that.

DEANE J: Which means that there are two possibilities: one

is if the Crown led the photographs on the basis

that it bolstered the evidence in the same way as

an identification parade would have, well then, one

can see the basis of complaint, but if evidence of
the photographs was led as part of a process

leading up to oral identification in court, then

unless the oral identification was going to be

excluded, the preliminary evidence of the

photographs from this distance would seem to have
been a matter of fairness and assistance to the

accused rather than damaging. That may be quite

wrong, but it is just the impression I get of it.

MR BORICK:  I respectfully submit that that second

proposition you put to me is not correct, that the

Barbor 11 1/9/92

police officers were extremely pleased to have got

these photographs and to have made this, as they

purported to do, an identification. That is at the
point they made the identification. It could be

said that they were still in the detection process

~nd therefore you -

DEANE J:  Did they identify your client orally in the course

of their evidence?

MR BORICK: Yes. Our submission to the learned trial judge

was to use his discretion to exclude -

DEANE J: Yes, I follow that.

MR BORICK:  - - - because of the contaminating process of

the identification.

DEANE J: But what I was putting to you was really that the

only real attack can be on the failure to exclude

the oral identification.

MR BORICK:	Yes.
DEANE J:	I am not suggesting it is helpful, so do not

agree. If your attack on the failure to exclude

the oral identification fails, the photographs

assist the accused because it provided a very

strong argumentative basis for attacking the oral

evidence of identification.

MR BORICK:  Yes, but that was not the way the trial was

conducted and, if leave were given, that could be

developed at length to see just how the trial was

conducted, but for present purposes, the

proposition we advance is that if this judgment

stands, then the application of the discretion is

lessened. The requirement of the Full Court to

stringently review the evidence of identification

is lessened, for the primary reason that police

officers are capable of being trained and that

assumption and proposition is wrong.

DAWSON J: Can I just ask one more question about the

photographs:  they were sent by the Sydney police

in the context that, "These are the men you're

looking for .. , is that right? I just want to know

why they suggested to the police here that these

were the people they were looking for.

MR BORICK:  I think it was more, "Here are the names that

you are looking for .. , because there had been only a

telephone conversation between them, so the Sydney

police would not have known the identity or the

face of the man they were looking for; all they

had was a name. So, over come the photographs with

Barbor 12 1/9/92

the names on the back. Now, that may have been

avoided if a police officer had come over - - -

DAWSON J: So then you say thereafter the police looked for

the names that were on the photographs because of

_.the photographs?

MR BORICK:	Yes, and they were unable to say that they did not. A good example of the way the police officers
dealt with that is set out in page 53 of the - if
Your Honours would look at the passage that is set
out where Munns was being questioned about what
happened at the photo identification stage,
line 15:

Q. You're not really giving evidence of a

fact, are you, this is just your impression or

feeling?

A. I can't assist you any further than that, this is must my feeling now, yes.

That is, his feeling that he did not look at the

names on the back. Following that:

Maiden said that logic would dictate that he

(Maiden) would look at the front of the

photographs -

Those sorts of passages reinforce our submission to

Your Honours that it should never have happened;

that they were relying on feelings and logic to

establish that the very safeguards which Alexander

says must be in existence were not covered right at

the - even though this was in the detection stage.

But once they had identified down there at the

airport by that process, irrespective of how good

or bad it was, Reichstein, back in the CIB, was now

outside the detection, so they had got their man,

and the full force of Alexander should have come

special leave to appeal in this case, to look at	into effect with regard to Reichstein. It is submitted that this Court should give
the question of what police officers should do and what happens in a police station is equally
important, in our submission, as with confessional
material. Police officers are in a position to
cheat in this area and, with respect, this Court should give leave to appeal to look at this
question of just what police officers are supposed
to do with regard to photo identification.

May I just take Your Honours back to page 59

of the transcript - dealing now with His Honour

Justice Duggan's reasons for the exercise of his discretion. I had read from the top of the page

Barbor 13 1/9/92

earlier and I referred to the fact at about line 8,

that he said he was satisfied there was "no

inherent unreliability", and then further down, at

line 19 he said:

-- I am not persuaded that there is a clear

possibility that any of the identifications

were flawed by the existence of a suggestion,

however, arising, which had the effect of
removing the essential element of independence

in each case - - -

DAWSON J:  Now there, what identification is he speaking of;

the identification of whom with what?

MR BORICK:  Both Taub and Barbor.

DAWSON J: Of whom with what?

MR BORICK: Well, really the photo identification process.

DAWSON J: As identifying those people as the people who

were in the photographs.

MR BORICK:	Yes.
DAWSON J:	I see.
MR BORICK:	Yes, that is what he is talking about. And the

submission I make to the Court with regard to

His Honour's reference to looking for "no inherent

unreliability" or looking for "independence" is

that that is not the Alexander test. The Alexander

test requires him to look for reliability because

there is an inherent unreliability there anyway.

So he looks to see if there is some reliability in

this, and secondly, he looks to see whether there

have been safeguards against error and, in my

submission, it was an error of law to suggest that

the test is whether there is some independence,
whatever His Honour meant by that expression.	It

is certainly not the test that Alexander proposes.

If I could take Your Honours to the passages

in the judgment of the Court of Criminal Appeal

dealing with this topic of training of police

officers. It would be convenient for me to start

at page 68 of the transcript, and then to take

Your Honours through some passages - Their Honours

at that stage said that:

It seems to me that those passages in the

learned Judge's reasons as a whole indicate

that he applied the correct tests in

considering this question -

Barbor 14 1/9/92

that is the question about admissibility of

identification -

and that he took into account all the relevant

considerations and did not allow to be taken In our submission, that was incorrect. It was for

-- into account any extraneous considerations.

the Court of Criminal Appeal to make their own

assessment, not just to say the learned trial judge

had exercised his discretion on some correct

principles and left it at that - page 68 at

line 34. Then His Honour the Chief Justice at

page 69 at the top of the page referred

specifically to the submission that we have made

with respect to Reichstein, which is the same

submission I put to this Court, and then His Honour

said, at line 8:

I would agree that an identification

parade may in certain circumstances be just as

important for a police identifying witness as

for any other identifying witness. I think,

however, that it would be unreasonable to

expect the police in the circumstances of the

present case to have adopted that procedure.

Reichstein was part of the police team

investigating the matter.

Now, there was South Australian authority and certainly the English rule is that if a police officer is part of the investigating team, he has

got to separate himself from the identification

process and care has to be taken. At page 70 the

Chief Justice, at line 5, said:

I think the police work in the present case was sloppy, but I think it was a matter for

the discretion of the trial Judge as to

whether that factor was sufficient to justify

the exclusion of the evidence.

Again Their Honours, although they have said it was

sloppy - and, with respect, the police work was bad

in this case - the Court of Criminal Appeal - - -

MASON CJ: What was the evidence that His Honour was

referring to in that passage?

MR BORICK:  The sloppy evidence, Your Honour.

MASON CJ: The what evidence?

MR BORICK:  Sorry, does Your Honour mean the evidence of -

what was sloppy about it -

Barbor	15	1/9/92
MASON CJ: No, at line 12:

His Honour took the view, and in my opinion in

the circumstances of the present case

correctly, that he ought not to exclude the

evidence -

MR BORICK:  The identification evidence, Your Honour.

MASON CJ: The whole of it?

MR BORICK:  Yes, Your Honour.

MASON CJ: But if you look at 66, His Honour there describes

the attack that was made on the admission of the

photographs. At that stage his understanding seems

to be that there is an attack on the admission of

the photographs, and then secondly, he seems to go

on to say:

the circumstances of the observations were to
unsatisfactory as to render the observations

unreliable.

They are the two grounds that were put forward.

MR BORICK:  There were two accused at trial, and the

arguments were presented a little differently. Counsel for Taub had argued very strongly, and supported by myself for Barbor, that the

circumstances of the observations, that is of the
surveillance, should not have been admitted because

of time of night and fleeting observations; those

sorts of arguments. That had been rejected by the

trial judge, and I think the learned Chief Justice

is just referring to that there. But the

fundamental problem certainly raised for Taub and

raised in the Court of Criminal Appeal and again

here is the failure to observe proper procedures.

MASON CJ: But that seems to go to the admission of the

photographs.

MR BORICK:  The proper procedures, yes, and the two things

are quite separate.

MASON CJ:  I would have thought the attack should have been

on the reception of the evidence of identification

in court.

MR BORICK:  Once the identification from the photographs was

admitted, then Barbor was clearly - and Taub for

that matter - identified at that point, and the

in-court identification - I am not even sure now

whether any occurred. There it was; they had

their man and it did not matter. Certainly at the

Barbor 16 1/9/92

committal proceeding there had been some sort of

identification, but it was always based -

DAWSON J: That would have been the identification of him as

the man in the photograph.

MR BORICK: Yes, and therefore the man who was at the house.

That had to be the process, because that is exactly

the way the identification went.

DAWSON J: But the identification - it would have been

fairer, so far as the photographs are concerned, if

they have been given a series of photographs and

been asked, "Can you identify the man you have been

surveying?", or whatever the verb is.

MR BORICK: That happened later - - -

DAWSON J: A series of photographs?

MR BORICK:  - - - for the civilian witnesses. For the

civilian witnesses they put together about 10 lots

of photographs.

DAWSON J: Yes, and you say that was at least one procedure

that could have been followed with the police?

MR BORICK: Yes.

DAWSON J: Well, I follow that.

MR BORICK:	Yes, but it certainly did not happen here and I would accept, in practical terms, when the police
officers go down to the airport and they get
photographs, they are going to look at them, but it went very badly wrong because the Sydney police
officers had put the names on the back. Now, what
went on between Sydney police officers and Adelaide
police officers there, is it is not possible for an
accused to get behind.  That is the reason why we
submit that the Alexander rules were so important
for safeguarding our fair trial.

Could I just refer Your Honours to a passage

on page 71, again in the judgment of the learned

Chief Justice. At line 25 he said:

Reichstein and Maiden were trained police

officers, manning an observation post for the
express purpose of memorizing the features and

characteristics of the person visiting the

premises.

There is, as I have put to Your Honours, no such

training. His Honour said:

Barbor 17 1/9/92

This was not a case of any fleeting

identification -

at the top of page 72, and then the passage we

complain most about, line 4:

It was an identification by police officers

whose duty and task it was to memorize and be

able to identify persons who visited those

premises. I think therefore, that it was

entirely open to the jury to be satisfied

about those identifications.

DAWSON J:  Now, what you say is that they had a fleeting

chance to identify someone by the surveillance

procedures - - -

MR BORICK: Well, they had a chance and they saw the same

man.

DAWSON J: But any such identification would be inherently

unreliable, but they received photographs which

identified named persons as persons in the

photograph. They thereafter assumed that the
persons in the photograph were the persons that

they observed in the surveillance operations and

that was the reason why the whole of the evidence

was unreliable.

MR BORICK:  Yes.

DAWSON J: The photographs because there was only one and it

suggested to them the answer and having done that,

it suggested who were the persons they had

observed. That is the way you put it.

MR BORICK: Yes, that is the way it goes, yes.

DAWSON J: Yes, I see.

MR BORICK:

And remembering always that it was - it is said

that they had a number of chances to observe him.

DAWSON J:  If, on the other hand, they had been given a

series of photographs and asked, "Well, can you

identify the people you have observed in these

photographs", that may have been a fairer way of

doing it.

MR BORICK: Well, no question of that and that is the

safeguards that have been built into the law and

what we say is that we should have been given the

advantage of some of them -

DAWSON J: Or alternatively, if they had lined up a series

of people and they had said to the police officer,

"Now, tell us which one of these was the person you

Barbor 18 1/9/92

observed"; that is another way of doing it, you

say?

MR BORICK:  Yes. The effect of this decision if it stands,

Your Honour - and the words, "there are some

_~ircumstances where police can behave this way or

that way" in the words of the Chief Justice, but we

are not told what they are. What is in fact a

result of it is that none of the Alexander

safeguards were observed here, not one single one,

and surely if that stands and that there can be

occasions because of the exigencies of police work,
they can do what they like, then there is a huge
risk, as demonstrated by the acquittal of Taub, and
if they had at least given us the notes, or taken

notes - - -

MASON CJ:  I think you are traversing matters you have put

to us already.

MR BORICK:  We submit further that the suggestion that a

police officer is in any way different to lay

witnesses exacerbates the danger, because that is
the very way that the jury could well have thought

here, that because they are police officers, they

have got some special training, whereas they have
not, and that should have been recognized from the

outset and was evidence not admitted. For those

reasons it is submitted that this is a proper case

for the grant of special leave.

MASON CJ: Yes, Mr Brebner.

MR BREBNER:  If the Court pleases, if I may commence with

one factual matter: a number of photographs were,

in fact, transmitted from Sydney to Adelaide, there

were a total of about eight or nine of them. One

was a photograph of the applicant Barbor alone; a

second photograph was a photograph of the applicant

Barbor, the man, Taub, and a third man named Zenu,

who in fact pleaded guilty, pictured together. The

other photographs were photographs of young men,

either singly or in pairs, and one photograph

showed three men together. So there was, in fact,

a selection of photographs before the police

officers and not just photographs of the applicant

and the applicant and/or Taub.

MASON CJ: But at least there was an identification of the

applicant.

MR BREBNER: There was, Your Honour.

MASON CJ:  In one of the photographs, on the back.

MR BREBNER: That is correct, Your Honour. Essentially it

is my submission that the case raises no question

Barbor 19 1/9/92

of special importance and turned on the application
of established principles to its own facts.

Further, it is my submission that both the learned

trial judge and the members of the Court of

Criminal Appeal adverted to the correct principles

~elating to the discretionary rejection of evidence

of identification by means of photographs and that

the Court of Criminal Appeal did not modify or

misapply those principles in any way so as to

justify the grant of special leave.

DAWSON J:  How far can you take into account the fact that

there is other evidence connecting the accused with

the crime in admitting evidence of identification

which might otherwise be excluded? If you can take

it into account, why can you take it into account?

MR BREBNER:  In my submission, it is a matter that bears on

the quality of the evidence of identification, and

thus bears on its potential probative force.	As
was recognized in Alexander's case, if the

identification evidence is so inherently weak, its

prejudicial effect will outweigh its probative

value and it should therefore be excluded in the

exercise of the discretion. And it is also one of

my submissions in this case, which was accepted by

the learned trial judge and by the Court of

Criminal Appeal, that the quality of the

identification evidence, as it related to Barbor,

was good, it had significant probative force and

should not be excluded in the exercise of the

discretion.

DAWSON J: What you are saying is that the prejudicial

effect of weak identification evidence may not

be - - -

MR BREBNER: Present in this case.

DAWSON J: No, may not be to the same extent if there is

other evidence which supports the case against the
accused.	Is that the way you are putting it?

MR BREBNER: That is so, Your Honour, and as I say, I also say that, standing on its own, the quality of the

evidence for the identification of the applicant

was quite good in any event.

DEANE J: But why is the evidence of a photo admissible

anyway? I mean, it is one thing to have evidence

of an identification parade, because that is a

procedure that has evidentiary weight. But, if I

show you a photo of X and say, "Is that the man you

saw?", how can evidence be given that you said that

was a photo of the man you saw? If somebody else

gives it, it is hearsay. If you give it, it has

Barbor 20 1/9/92

got nothing to do with the issue. The issue is:

is the man in the dock the man you saw?

MR BREBNER:  It is a means of linking the man you saw with

the man in the dock and it enables the jury to see

~he impression of the man you saw and make up their

-minds as to whether the man you say you saw

resembles the man in the photograph.

DEANE J:  In other words, you can go into the witness box

whether the man in the dock is the man I saw, but a
couple of months ago somebody showed me a photo and and say, "I don't remember sufficient to say saw."

DAWSON J:  "And the man in the photo I now can say and you

can see is the man in the dock"; that is the

final -

MR BREBNER:  And that was, in fact, dealt with in

Alexander's case.

DEANE J: Well, is that the way this evidence was led?

MR BREBNER: Yes, Your Honour.

DEANE J: The police said they could not identify the man in the dock from their recollection and therefore they sought to do it by an indirect way, that is to say, "I identified the photo and the man in the dock I

can see is the man in the photo, even though I

can't identify the man in the dock as the man I

saw."

MR BREBNER: It unfolded in this fashion, Your Honour: the

photographs were transmitted from Sydney, they

viewed the photographs, they said, "This man is the

man we saw": the photographs were tendered in

evidence. They said, "That man in the dock is the

man we saw; he is the same man who is depicted in

this photograph."

DEANE J: Well, in that case, I will ask you again: why is

the evidence of the photograph admissible? What

does it achieve to say, "Not only do I identify the

man in the dock as the ~an I saw, but here is a

photo somebody else showed me with his name on the

back of it and I call that to bolster my evidence"?

MR BREBNER:  It is admissible so the jury can look at the

photograph, look at the man in the dock and decide

if they were in fact the same.	In my submission,
it - - -

DAWSON J:  I would have thought you would have said, in

fairness it was admissible to demonstrate what the

Barbor 21 1/9/92

whole identification process was, with all its

flaws.

MR BREBNER: Yes, I respectfully adopt that, Your Honour.

DEANE J: = But was it led that way, that this photo was being

put in over the objections of the accused in view
of the Crown's desire to be fair to them, or was it

put in as: this photo is something the Crown

relies on to bolster its own case?

MR BREBNER:  More in terms of the former than the latter,

Your Honour. The Crown effectively relied on what

I might term, for the purposes of brevity, the dock

identification.

DEANE J: Yes, well, I follow the logic of that, but it

certainly does not really seem to be the way that

either the trial judge or the Court of

Criminal Appeal have approached it. They both seem

to have dealt with it as if the issue was not

whether the dock identification was admissible, but

whether the photographs of themselves and the

photographic identification was admissible and

should have been rejected.

MR BREBNER:  It was argued before the learned trial judge on

the basis that the whole of the evidence of

identification should be excluded in the sense

that, because reliance was placed on photographs
and because it was argued the identification was of

such inherently poor quality, the dock

identification should not be made. And though it

does not appear particularly plainly from the

reasons of the Court of Criminal Appeal, that was

the way in which it was approached in the

Court of Criminal Appeal. The attack was to the

whole of the evidence of the identification.

DEANE J: And while I am interrupting unduly, can I ask you

this, partly as a matter of curiosity: were the

police asked to explain why, on a surveillance

thing where they could not be seen during the

daytime surveillance, they did not take photos?

MR BREBNER:  I think, and I am relying on recollection, that

they were cross-examined on that topic and

effectively said that it did not occur to them at

the time.

DEANE J:  To take a photo?

MR BREBNER: Yes.

MR BORICK:  They could not afford a camera; that was one of

the reasons.

Barbor 22 1/9/92

MR BREBNER:  It was a lack of equipment and lack of

foresight. It is my submission that the learned

trial judge and the Court of Criminal Appeal have

based their decision on the quality of the evidence

when it is viewed objectively, and not on the mere

_-fact that the witnesses were police officers. Like

most identification cases, this one depended on an

assessment of the quality of the evidence of

identification and a judgment as to whether the

lack of an identification parade should in the

circumstances of the case lead to exclusion.

In my submission the evidence as to the

inherent reliability or quality of the

identification was such that it was open to the

learned trial judge and to the Court of Criminal

Appeal to find that it was of good quality and for

that reason should not be excluded as being more

prejudicial than probative. As appears from the

learned trial judge's reasons and the reasons from

the Court of Criminal Appeal, there were a number

of observations made during which the man later

identified as Barbor was observed.

The observations were made from the front room

of a suburban house across a suburban street.

Effectively, on each occasion when the man

identified as Barbor was seen, he was seen to get

out of a car and walk to the door of a house

immediately across the street from the observation

post manned by the police officers. On each

occasion when he came out of the house, he would

have been looking directly towards the observation

post, and on each occasion the police officers

manning the observation post would have seen not

only his face, but both right and left profile, and

indeed, head, body, face from all angles.

On a number of occasions the observations were

made in daylight; on two occasions they were made

by Reichstein at night, after he had seen the man

identified as Barbor in daylight, and the learned

trial judge on the voir dire, and the jury at

trial, had a view of the locus in quo and were able

to make up their own minds as to the distances

involved and whether the proximity of the street

lighting in the area would have helped or hindered.

But the long and short of it was, this was far

from the situation of a fleeting observation on one

occasion. It may well be, as my friend says, that

it is impossible to memorize features, but the long

and short of it was that these men were

concentrating on the overall appearance of the man

they later identified as Barbor and they did see

him on more than one occasion; they had ample

opportunity to familiarize themselves with his

Barbor 23 1/9/92

overall appearance and it is to be contrasted to

the situation one often encounters of a victim of a

physical assault who is concentrating more on the

fact of the attack than on the appearance of the

attacker.

:

It was submitted to the Court of Criminal Appeal, and it is undoubtedly correct, that police

and civilian identifying witnesses are on the same

footing and that police officers are not in some

special class of particularly reliable

identification witness and clearly, in my

submission, the reception or exclusion of all

identification evidence from police officers or

civilians depends on the quality of the evidence as

judged by the circumstances and the number of

observations and matters such as those which I have

adverted to, and any other factors which may become

relevant on the facts of this case.

And it is my submission that it is clearly

implicit in the reasons of the learned trial judge,

and indeed in the reasons of His Honour

the Chief Justice who delivered the leading

judgment in the Court of Criminal Appeal, that they

approached it on that footing. Nowhere does the

Chief Justice directly say that the principles in relation to identification evidence and the

safeguards pertaining thereto can be relaxed in

favour of police officers and, in my submission, nor did he say that by implication at any stage.

And where he does talk at page 69 of:

an identification parade may in certain

circumstances be just as important for a

police identifying witness as for any other

,, identifying witness.

he is, in my submission, saying that in the context

of Reichstein's photo identification, and the

comment is in the context of whether an

identification parade should have been arranged for

Detective Reichstein on the facts of this case.

And it is further my submission, in relation to

that passage, that when it is read as a whole, the

Chief Justice is saying that in the circumstances
of this case, it was reasonable for Reichstein to

look at the photographs; he is not saying that an identification parade would be dispensed with, for

the mere fact that Reichstein is a police officer.

In other words, in my submission, when the

passage is read as a whole, the Chief Justice is

saying, all other things being equal, an

identification parade is just as important for a

police officer as it is for a civilian, but in the

circumstances of this case, and by necessary

Barbor 24 1/9/92

implication bearing in mind the quality of

Reichstein's identification, it was reasonable to

use photographs for reasons other than the fact

that Reichstein was a police officer.

As the Court of Criminal Appeal and the

-learned trial judge both pointed out, the applicant

was in Sydney; there were questions of cost,

inconvenience and uncertainty about whether he

would participate in an identification parade or

not.

In so far as the names being on the back of

the photographs is concerned, it was the overall

effect of the evidence of all the police officers

that they would not have looked at the names first, and any uncertainties in their modes of expression on that topic, in my submission, did no more than

provide the applicant with further talking points

in front of the jury.

With regard to the informality of the

procedures adopted and the lack of notes, quite
clearly these were very important considerations
and they were recognized as such by both the

submission, whether these factors should have led

learned trial judge at page 59 and by the

to the exclusion of the evidence was essentially a

matter for the learned trial judge. It was but one

factor that had to be considered, along with a
number of other factors and, in my submission, the

converse may to a certain extent be true; if notes

had been prepared, then perhaps the applicant would

have been deprived of another talking point in

front of the jury.

In any event, the informal conduct of the

identification procedures and the lack of note

taking was criticized by both the trial judge and

the Court of Criminal Appeal, thus providing a

salutary warning and some guidance for the future,

and in my submission, in all the circumstances,

nothing more was necessary in this case.

In so far as any purported inconsistency in the verdicts is concerned, it is my submission that

the two verdicts are not in a practical and

commonsense way inconsistent. The evidence as

against the applicant and the man, Taub, differed

considerably. The differences are canvassed by the

Court of Criminal Appeal. The quality of the

identification of Barbor was vastly superior and

there was support for the identification of Barbor.

In Taub's case, quite the reverse; he produced some cogent alibi evidence.

Barbor 25 1/9/92

It is, in my submission, implicit in the

Chief Justice's reasons that he recognized and applied the correct tests to the situation where it

is said that verdicts are inconsistent. And the

it was, looked like him, but they were all

long and short of it is, it may well be that the mistake

factors which were before the jury and were for

their consideration. If the Court pleases.

MASON CJ: Thank you, Mr Brebner. Yes, Mr Borick.

MR BORICK:  Could I just refer the Court to page 26 of the

transcript, where there is a summary of the

sightings by the various officers. With regard to

Barbor, you will see that he is there on six

occasions, but when he and Maiden are there, Maiden

said the man had a moustache; Reichstein did not

see a moustache; Allen was never called and Munns

never saw Barbor at Coombe Road, which was the

important sighting. By looking at that you see the

very great significance of Reichstein in this case

and when you look at Taub, you will see that there

are more police officers involved and the jury did

not accept that identification. The fact that

there was an alibi for Taub is not to the point

when it comes to the issue that we say raises

special leave here.

MASON CJ: Thank you, Mr Borick. The Court will take a

short adjournment.

AT 4.00· PM SHORT ADJOURNMENT

UPON RESUMING AT 4.07 PM:

MASON CJ:  We agree with the criticisms that were made by

both the trial judge and the Court of Criminal

Appeal of the procedures adopted by the police in

this case. Notwithstanding these criticisms, we do

not think that the decision of the Court of

Criminal Appeal that the trial judge was not bound

to exclude the identification evidence is attended

with sufficient doubt to justify the grant of

special leave to appeal. In that respect, it would

seem that the relevant question was seen by both

sides as being whether the whole of the

identification evidence should be received or

excluded. In the result, the application is

refused.

AT 4.08 PM THE MATTER WAS ADJOURNED SINE DIE

Barbor 26 1/9/92