Bliesner v The Queen - [1991] HCATrans 34

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B34 of 1990
B e t w e e n -
DENBEIGH OWEN BLIESNER

Applicant

and
THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 FEBRUARY 1991, AT 3.26 PM

Bliesner

8/2/91

MR A.J. GLYNN:

May it please the Court, I appear on behalf

of the applicant. (instructed by
Robertson O'Gorman)

MR M.J. BYRNE:

May the Court please, I appear with my

learned friend, MS L.K. WELLS, for the respondent.
(instructed by the Director of Public
Prosecutions).

BRENNAN J: Yes.

MR GLYNN:

I understand the Court has my outline.

May I ask

Your Honours to read in paragraph 8, the word
"honesty" as "honest".
May it please the Court, this an application

for special leave to appeal out of time against the
judgment of the Court of Criminal Appeal which
dismissed an appeal against conviction for the
offence of rape.
There were two grounds set out in the

affidavit in support of the application for special

leave. I propose to only argue part of one of
those grounds and that which I propose to argue,
Your Honours, is this question: is the evidence of
the physical and emotional reaction of the
identifier at the time of identification admissible
in law?

BRENNAN J: Perhaps we should deal with the question of

time. Mr Byrne, do you have any objection on the
question of time?

MR BYRNE:	No, Your Honour.
MR BYRNE:	Your Honour, the complainant in this matter was

raped by a man who came to her door posing as a
vacuum cleaner salesman.

The offence occurred on 26 April 1988. On

22 July 1988, she was taken to a meat works where

she was asked to view employees who were attending
for work. After one or two half-hearted attempts
at identification of others, she observed the
applicant and made what can only be described as a
fairly positive identification and three witnesses
who were present gave evidence, not only of the
fact that she made the identification and what she
said in that regard, but also of her physical and
emotional reactions at the time of making the
identification.

TOOHEY J:

And it is only the latter aspect with which we

are concerned, is it, Mr Glynn?

MR GLYNN:

Yes, Your Honour.

Bliesner

8/2/91

TOOHEY J: Anything she said at the time is not challenged?

MR GLYNN:

Yes, Your Honour.

I take no issue with that.

TOOHEY J: Yes, thank you.

GAUDRON J:	And no objection was taken to the evidence?
MR GLYNN:	No, it appears not, Your Honour, but the point

was argued without objection before the Court of
Criminal Appeal, but as best I can read the record,
it appears that this specific point was not taken
and the information that is available to…

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.

Continue reading Bliesner v The Queen

Details

AGLC: Bliesner v The Queen [1991] HCATrans 34
Case: [1991] HCATrans 34
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by Denbeigh Owen Bliesner. The applicant sought to appeal against a judgment of the Court of Criminal Appeal, which had dismissed his appeal against a conviction. The core of the dispute revolved around the admissibility of certain evidence presented at trial.

The legal issue before the High Court was whether evidence detailing the physical and emotional reactions of an identification witness at the time of making an identification was admissible. Specifically, the applicant sought to argue that this aspect of the witness's testimony, which described her physiological and emotional responses, should not have been admitted.

The Court was informed that the complainant identified the applicant as her assailant, who had posed as a vacuum cleaner salesman. At the time of identification, the complainant exhibited significant physical and emotional reactions, including feeling "high," sweating, and feeling sick. The applicant's legal team indicated that while the fact of the identification itself was not challenged, the admissibility of the description of these reactions was the point of contention. The applicant's counsel noted that while no objection was taken at trial, the point was argued before the Court of Criminal Appeal, though it appeared not to have been specifically taken on the record. The evidence in question was drawn from the testimony of the complainant and other witnesses present at the identification.

Orders