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

Copyright in the High Court of Australia

Bliesner 1 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 2 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 me - and I

must say it is second-hand - suggests that that is,

in fact, the case.

Your Honours, the evidence objected to is to

be found in the evidence of four witnesses;

firstly, that of the complainant, Fox, at pages 34

and 35 of the record. At page 34, commencing at

about line 31, this is the evidence:

Did you recognise anyone? Was there ever a time whilst you were sitting there that you

recognised a particular person?-- Only the

man in question.

You just tell us about that.	How was the man
dressed?--	He had a red shirt on, red-checked
shirt.	I can't remember anything else how he

was dressed.

What did you do when you saw him?--	I told
one of the detectives.
What did you say to the detectives?--	I told
him that was him.

Can you remember anything else that you said

or the detectives said?--	The detectives just
said, "Keep looking."

How did you feel when you saw this man?-- I

went high the same way as I did on the day it

happened and I was sweating, the palms of my

hands. I felt very sick.

At page 35 of the record, at line 52:

Whilst all those other people -

these are the people she did not identify -

were walking in, did you get any feelings of

being high like you have just outlined to

us?--No.

Bliesner 8/2/91

Then, to the evidence of the witness, the police

officer, Terry, and this is probably the most

spectacular description. At page 65 of the record,

Your Honours, at line 58:

Were you present when she said anything at any

time throughout the time you were there?--

Yes, approximately about 6.57 - 6.58, I think

it was, she did say something in my presence,

yes.

What did she say? Can you remember?--	I
recall she stood up pointing towards the
window - moved closer to the window and

without referring to those notes that were

compiled by Detective Lynagh -

there was then some brief discussion about the

notes. Two questions further down -

We will just leave that. Doing the best, you

can, what did Mrs Fox say?-- She jumped to

her feet and said something along to the

effect of, "Yes, that's him. That's him"

pointing quite excitedly towards the window.

You said, "Quite excitedly". Would you just

explain for us what it was about her that made you draw that conclusion?-- Well, she rose to

her feet sharply; moved towards the window;

just became an excitable person in a split

instant.

Then, at the top of page 67 of the record:

Just going through it again, please,

Detective: what did she do?-- Well, at the start upon seeing the person, rose to her feet

excitedly; moved towards the window; made
certain statements about the person, and upon

him going from her sight, she sort of moved

very quickly over towards this window

(indicating) and followed him sort of with her

eyes and continually pointing.

Then, at the top of page 68:

Detective, what happened after that?-- Well,

actually she became somewhat ill. She started

to hyperventilate; started to get very dizzy.

We had to seat her again. She broke out into

a sweat, actually, and we thought at one stage

she was going to pass out.	She became very,
very physically ill.

Your Honours, perhaps in view of the time, if I

simply give you the reference to the other evidence

Bliesner 4 8/2/91

because that is probably the most spectacular

description. In the evidence of the police

office, Lynagh, at page 101, from line 45, to

page 102, line 35, and in the evidence of the

witness, Fenton, who was a meat works employee who

was present, page 125, lines 9 to 40 and lines 52 to 54 on the same page. That is the sum total of

the evidence about which the applicant complains. There is no complaint about the way in which

it was dealt with in the summing up. It is dealt

with in the summing up, Your Honours, really, in

three places: firstly, at page 204 of the record.

At about line 40, His Honour said this to the jury:

But, in deciding whether you accept her

evidence and how much of it you accept, you

must remember that what you are looking for is

not merely honesty, but reliability and

accuracy. I need hardly say, ladies and

gentlemen, regrettable though it may be, that

the possession of a group of holy pictures is

not an assurance or guarantee of reliability.

At page 213, firstly at line 1, His Honour said

this:

I come now to the question which is the

most serious in this case. It is whether it

was the accused, Mr Bliesner, who was the man

who committed this rape. It raises a question

of what we call identity, that is to say,

whether the man who entered the house and

raped Mrs Fox on 26 April last year is one and

the same as the man you now see in the dock

before you.

Then, at about line 32, His Honour went on:

I am going to lay great emphasis on the seriousness of this question and I will

continue to do so throughout this case.	The
risks of going wrong in deciding that a person

has been correctly identified are

considerable. Experience over many years has

shown that mistakes in identification do occur

and that in fact mistaken identification is

the most common of all known causes of

injustice. It is important that you should

understand that an honest witness who is a

convincing witness may yet be mistaken. There

is therefore a special need for care and

caution before you find the accused guilty in

reliance on the correctness of Mrs Fox'

evidence that the accused is the man.	Now,
that is something quite apart from the

question of whether you think that she was an

Bliesner 8/2/91

honest witness trying to tell the truth. It

raises the question not only of whether she

was honest, but whether she was accurate and

reliable in the identification that she claims

to have made.

And then finally, Your Honours, at page 226, from

line 12 to line 30 of the record, His Honour said

this:

Her identification, you might think, was

spectacular, but you must ask yourselves

whether, irrespective of whether or not it was

spectacular, it was correct. Her ability to

identify the man she saw at the meatworks on 22 July obviously depends on the opportunity she had of seeing the man who came to her

house on 26 April, that is three months

before. In other words, her identification on

22 July is only as good as the opportunity she

had of seeing the man who she said raped her

on 26 April.

Those, Your Honours, are the only references I need

to make to the transcript and I thirik they fairly

summarize the position.

TOOHEY J:  Mr Glynn, we are concerned only with a question of admissibility, are we?

MR GLYNN:  Yes, Your Honour. I am not making any

submissions in respect of an exercise of discretion

at all, simply whether the evidence is admissible.

TOOHEY J:  When I say "only" it may be that even if the

evidence was inadmissible that that would not support an application for special leave but,

primarily, it is a question of admissibility -

MR GLYNN: Admissibility, Your Honour, yes.

TOOHEY J:  - - - with which we are concerned?

MR GLYNN:  That is correct. Your Honour, there were two

further pieces of evidence, or two further matters

about which there was evidence which a jury may

have treated as supporting the identification.	The
first was that the applicant had been a vacuum
cleaner salesman for Electrolux for about four
months three to four years before the offence.	The

second was that the police found a vacuum cleaner

at his house when they searched it. The

complainant says that the man who came to her house

when he first spoke to her said he was an

Electrolux salesman, in the course of his business,

and secondly, she said that she saw in his

possession a red vacuum cleaner and perhaps I can

Bliesner 6 8/2/91

most fairly put it as of a general description,

which might match that found at the house of the

applicant but there was some dispute as to just how

accurately it matched that in question. But,

certainly, it was of a general description that

could match it.

Your Honours, in my submission, there is no

binding authority directly on the point, although

there is authority against the proposition for

which I contend from appellate courts in a number

of jurisdictions. There is, of course, the
decision against which this application is brought.

There are also decisions of the Court of Appeal in

New Zealand and an unreported decision of the Court

of Criminal Appeal in South Australia.	I should
refer Your Honours to those.

DAWSON J: Perhaps it might be helpful if you dealt with the

principle first of all. You say the evidence was

irrelevant, or inadmissible.

MR GLYNN:  Your Honour, the submission really is that it is

inadmissible because it is a matter which goes only

to the credit of the witness and is therefore a

matter admissible only either in cross-examination.

When I say "to credit", I mean the honesty of the

witness as against the reliability of the witness.

In other words, a perfectly honest witness - - -

DAWSON J: Cannot the manner in which the identification is

made go to the reliability of the identification?

MR GLYNN:	Your Honour, my submission is that this sort of evidence, namely, an emotional reaction, is
evidence which goes only to her belief. In other
words, a perfectly honest witness thinking
mistakenly that she has correctly identified - - -

DAWSON J:  In a sense that goes to reliability too. I mean,

if her belief is not a strong one it is not very

reliable. For example, if there had been a line-up

then the other, then finally came to the accused,	and she had wavered, and she had pointed to one,
you would be the first to want to introduce that
evidence.

MR GLYNN:  Your Honour, my point, with respect, was that it

is a matter admissible only in cross-examination

because it is a matter which goes only to credit.

My point really is limited to that. If

Your Honours are against me on that point -

TOOHEY J: If the complainant in this case had been

presented with a line-up and she had walked along

the line and pointed to a particular individual,

Bliesner 7 8/2/91

the evidence of other persons that she had done

that would be admissible clearly.

MR GLYNN:  Yes, Your Honour. I do not dispute that.

TOOHEY J:	If in pointing to that person she suddenly turned pale and fainted, do you say that that evidence is
inadmissible?

MR GLYNN:  Yes. That is the very point for which I contend,

namely, that evidence of her physical or emotional

reaction is a matter which can go only to her

honesty, and then is only a matter as to credit and

is limited to being raised either in

cross-examination or re-examination if her honesty,

as compared to her reliability, is impugned.

McHUGH J:  Does it not go to the strength of a belief, and

is not the strength of a belief always relevant?

MR GLYNN:  Your Honour, I appreciate that the authorities that I was going to refer to say that. My

submission is that the strength of the belief, in

fact, should not be a matter that has any weight,

my submission being that a witness completely

mistaken may hold that mistaken belief none the

less very strongly. However, if her honesty is

challenged, in other words, if it is suggested that

she is for some reason fabricating the

identification, then her physical or emotional

reaction may, but only as for any other collateral

issue, become an issue, and it would be a matter

about which she might give evidence, but which may

not be supported by or challenged by other

evidence. I must say, Your Honours, the point is

limited to that - - -

GAUDRON J: In a criminal trial, credit must be in issue at

all stages, regardless of what is raised in

cross-examination.

MR GLYNN:  It is, for a jury, yes, Your Honour. Even if a

witness is perhaps not challenged, but none the

less in practical terms, if a witness is not

challenged, by and large a jury is and will be told

that - it is for the jury, but that a particular

witness has not been challenged and they may

probably safely rely upon that witness.

DAWSON J:  Can we analyse it out? It is not evidence as to

credit, is it? The witness who is giving this

evidence is a detective or someone, is he not?

MR GLYNN:	Yes, well one of them - two detectives and the witness herself.
Bliesner	8/2/91
DAWSON J:	And he is giving evidence of a physical

occurrence or an event.

MR GLYNN:	Yes, I accept that, Your Honour.
DAWSON J:	And he is able to give evidence of the complete

event, even if it gives a significance to the event

which it otherwise would not have, but that is not

evidence as to credit.

MR GLYNN:	Your-Honour, my submission,
DAWSON J:	I mean, take the witness who is said to have made

an admission. The way in which he made the

admission surely is admissible in evidence if

someone is giving evidence of that admission.

MR GLYNN:  Your Honour, my submission is that in - - -

DAWSON J: Credit is credit as a witness. We are not

talking about this here; we are talking about an

event, what significance you give to an event.

MR GLYNN: Credit as a witness, in my submission, is not,

with respect, limited only to what people say, but

it may also be limited to their actions.

DAWSON J:  We are not talking about this. We are not

talking about a witnesses believability in the

witness box.	We are talking about an event which
occurred.	The jury have to access that event and

they are entitled to a whole description of it,

anything that might be relevant. I mean, it might

not amount to much, the fact that she sweated,

because obviously once she had formed the view that

this was the man, she is likely to sweat. That

just affects the weight of the evidence.

MR GLYNN:  That really comes back to the point that I am

trying to - - -

DAWSON J: Yes, that is a different point.

MR GLYNN:  - - - contend for, Your Honour, and that is that

it is a form of evidence which relies for its

cogency on her own belief that this is the person
who committed the offence. For that reason, it is

not relevant, in my submission, whether she is

correct in her identification; it is relevant only

if the issue of whether she is being honest in

saying that that is the man.

DAWSON J: That goes to the question of whether it was a

genuine identification or not, but that is not a

matter of credit.

Bliesner 9 8/2/91

MR GLYNN:  Your Honour, with respect, I would submit to the contrary, that in fact it is a matter of credit.

McHUGH J: But at your highest, you can only get it excluded

on discretionary grounds, because it must be

relevant, must it not, because what is relevant is

the act of identification and it is part and parcel

of the act of identification, therefore it is

relevant and you can only exclude part of it by

saying that there is a prejudicial value about it.

MR GLYNN:	Your Honour, my submission is that it is not, as such, part of the act of identification. It is an
event that occurs at the time of the act of identification, but is not part of the act of
identification.

BRENNAN J: Well, that may be so. It seems to me that the

discussion about credit rather misses the point.

Your proposition, as I understood it, was that such evidence may be admissible under cross-examination

as to credit. Is that right?

MR GLYNN:  Yes, Your Honour.

BRENNAN J: Well, if you are not saying that it is relevant

to credit in-chief, then it is a question of

whether there is any other ground on which it might

be admissible and the ground which has been put to you is that it is evidence from which the jury may draw an inference of the strength of her belief and

the question therefore is, is the strength of the

belief of the identifier, in the case of

identification, a relevant matter for the jury?

MR GLYNN:  I accept, with respect, that that is a fair

characterisation of the issue and my submission is

that it is not, certainly not in-chief.

BRENNAN J: But if one, to take the opposite case, had a

witness who said, "Well, I identify him as my

attacker. I think it is him, but I am not 100 per

cent sure". That would surely be relevant for the

jury's consideration.

MR GLYNN: Putting aside, Your Honour, whether that is even

an identification, yes, with respect, but, again,

it is a matter for the cross-examiner, not for the

examiner.

DAWSON J: Surely not. If the Crown put it in any other way

than that, it would be doing its duty.

BRENNAN J:  The Crown would have to adduce that evidence,

surely.

Bliesner 10 8/2/91

McHUGH J: Supposing, in this case, instead of reacting the

way she did, she was seen to get up in an uncertain

way and grimace and then finally say, "Yes, that is

the fellow." Why would not all of that go in?

MR GLYNN:  It would, with respect, Your Honour, in cross-

examination.	The point being that that may be a
manner -

DAWSON J: Let us get our lines straight. You would be

cross-examining the detective.

MR GLYNN:  My submission is that the detective cannot be

cross-examined about it. I am sorry, my

submissions to Your Honour are directed to whether

the witness herself can give it. As to the

detective, in my submission, he cannot.

DAWSON J:  Do you mean, is it indeed the fact the detective

gives evidence of identification, the defence

counsel knows that she did all the things that

Justice McHugh said - or he - and defence counsel

cannot. get up and cross-examine about that - cross-

examine the detective.

MR GLYNN:	Your Honour, unfortunately, frequently - I am not suggesting in identification cases, but in matters
relating to credit.

DAWSON J: But I could understand it if the detective's

credit is in question but she is surely to be

cross-examined about the manner in which the

identification was given so as to show the evidence was less cogent than perhaps he had presented it in

examination-in-chief. Surely.

MR GLYNN:  Your Honour, if my submission is correct that it

is and, perhaps Your Honours will say, "Well, it is

a question of the cart before the horse", but, if

my submission is correct, then the cross-examiner

is stuck with that limitation. He can cross-

examine the complainant or the identifying witness

but he cannot cross-examine other witnesses as

happens frequently - - -

DAWSON J: Cannot cross-examine the detective about the

hesitant manner of the identification?

MR GLYNN:	Your Honour, frequently there are matters about which, because they are matters that go only to
credit, you cannot cross-examine other witnesses about that and you have to live with that.

McHUGH J: Supposing the complainant gives no evidence of

the actual identification but it is given by the

detective. On your theory, the defence could never

Bliesner 11 8/2/91

cross-examine to show how weak the identification

really was.

MR GLYNN: Well, Your Honour, whilst I have not looked at

Alexander specifically, certainly some of the views

in Alexander's case seem to suggest that that

evidence could not given at all - the

identification could not be established if she

gives no evidence at all.

BRENNAN J:  Now, you know the nature of the problem against

you. Would you like to give us the authorities

which are also against you where you can show us

where they are all wrong?

MR GLYNN:  Your Honours, the first is Reg v Collings,

(1976) 2 NZLR 104. It was a case, Your Honours,

where a number of men where charged with the rape

of a young woman. On the day following the

offences she was taken to two locations where she

identified a number of men. At the time she
identified them, she described briefly what each

did and said that he was involved. That was given

as evidence at the trial. At page 113 of the

report, at line 40, there is a heading which is

clearly a ground of appeal:

That the trial judge was in error at law by

admitting in evidence words spoken by the
complainant at the time of identification of

the accused.

This ground is raised on behalf of

McGrath, McKeown, Miller, Newth and Thomas.

Objection was duly taken at the trail to the

admission of the evidence in question, but it

was overruled. The submission for the

appellants is that, whereas it was permissible

for Detective Sergeant Nickalls to testify

that the girl had identified the accused on

the Sunday and to indicate the nature of the

conduct then alleged by her against each of

them, the detective sergeant's evidence of

what she said at the time was wrongly allowed

to go beyond those matters. The Crown does

not, of course, seek to justify the evidence of what she said as constituting part of the

res gestae, or as amounting to an admissible

complaint. Nor could it be suggested that it

was then admissible as proof of a false denial

of the making of allegations by the

complainant. The question is essentially

whether the evidence is admissible as part of

the evidence of identification. As regards

Thomas there is the further point that the

detective sergeant said that initially this

accused made no reply to the allegation.

Bliesner 12 8/2/91

Your Honours, then to the next paragraph, or

perhaps if I could go down one further paragraph,

at about line 22:

Approaching the question as one of

principle we think that when evidence of a

prior identification out of court is

admissible, then the circumstance of that

identification and what was then said and done

by the identifier may be relevant, and indeed

important, in determining the value of that

identification. A prior identification is

certainly not corroboration of any of the

identifier's evidence, including that covering

her identification; and here the judge so

told the jury. We accept that the only use to

which such evidence can be put is to prove the

identification and how certain the identifier

was. Therefore, anything said by her at the

time which indicates hesitation or doubt in

making the identification should be

admissible. So, too, we think, should be the

evidence of some dramatic or revealing

reaction by her; Mr Larsen gave the example

of a complainant fainting on identifying a

man. But at the same time the need to confine the evidence strictly to these purposes must

be obvious, otherwise the dangers which

worried their Lordships in R v Christie as

being inherent in allowing secondary evidence

of matters which should be provable only by

primary evidence when that is obtainable - a
procedure so contrary to the spirit of the

English rules of evidence - will be present.

So that is clearly, although in my submission it is obiter, it is clear a statement against the

proposition for which I contend.

MR BRENNAN: It reads rather well, Mr Glynn.

MR GLYNN:  Your Honour, I found no authority to support me

and I have found at least two, and my learned

friend tells me he has found another, which is

against me.

TOOHEY J:	The next sentence reads even better.
MR GLYNN:	I am sorry, Your Honour, I -

TOOHEY J: Depending on whose side of the argument you are.

MR GLYNN:  Yes, I am sorry, I should have read that.

The ultimate test then is, then in every case,

must be whether what was said or done by the

identifier can be fairly said to be part of

Bliesner 13 8/2/91

the identification or indicative of its

reliability or unreliability.

Your Honours, perhaps if I - - -

BRENNAN J:  Why is evidence of identification out of court admissible at all?

MR GLYNN: It seems to be admitted, Your Honour, as being

evidence of the best, or the earliest act of
identification supporting or supplementing an in

court identification of the person as the person

involved in the offence.

Your Honour, perhaps in light of the time I

need not take you through what was said in Sutton

other than to perhaps refer to the passage in

question. That is an unreported decision of the

Court of Criminal Appeal of South Australia. I

understand, although I cannot say with certainty

that this is a matter which is on appeal to this

Court, it is No 437 of 1990 and perhaps for brevity paragraph.

What is admissible is the act of

identification. Words and conduct which are

extraneous to the act of identification must

be excluded. In general that will exclude any

utterances which purport to relate to

circumstances of the crime in respect of which

the identification is taking place, although

there may be situations, such as that which

arose in R v Collins and Others, in which some reference to the incident is necessary to give

meaning to the identification.

Their Honours then refer to the passage from

Collings, to which I have already referred, and

then over the page they continue:

Detective Fahy's evidence of what took

place at the identification consisted of the

words spoken by the alleged victim, the manner
in which she spoke those words, and her

accompanying actions and apparent emotional

reaction. It seems to me that all these

matters were part of the act of identification

and part of the material upon which the jury

was required to assess the genuineness of the

identification and the confidence with which

it was made.	I think that the evidence was
admissible.

The learned judge dealt with this

evidence carefully and correctly in his

summing up. Indeed his direction to the jury

Bliesner 14 8/2/91

that that evidence "tells you nothing about

the accuracy of the identification itself" may

have been unduly favourable to the accused.

The apparent genuineness and confidence with

which an identification is made does tend, in

my opinion, to establish the accuracy of the

identification, although it is, of course, by

no means conclusive of it.

My very specific submission, Your Honours, is that

last sentence is, with respect to Their Honours,

wrong.

Your Honours, I wish to refer very briefly to

a passage from the judgment of the then

Chief Justice, Justice Gibbs, in Alexander v Reg,

145 CLR 395. I hope, in attempting to do this as

rapidly as possible, I am not misleading

Your Honours as to the effect of what he says, but

at page 406, His Honour says this, in the last

complete paragraph starting on that page:

These cases establish that evidence by a

witness who observed an act of identification

made by another person out of court cannot be

admitted as hearsay. If the witness who made the identification gives evidence identifying the accused, the evidence of the person who

observed the prior act of identification will be admissible to show that the identification made by the witness in court was not an

afterthought or a mistake. If the witness

who made the identification does not give
evidence, obviously the evidence of the person
who observed the prior identification will not

be admissible for that reason.

His Honour then discusses Osbourne, and then on the

next page about one sentence before the start of

the first paragraph that starts on that page he

says:

I may add that in Reg v McGuire, the Court of

Appeal of British Colombia rejected evidence

of earlier identifications made by witnesses who in the witness box swore that the person previously identified was not the person who

had committed the crime.

The position is, however, different when

the identifying witness says in the witness

box that he did on a previous occasion

identify somebody as the person connected with

the crime, but that he cannot now remember who

it was that he identified. It is immaterial

for this purpose whether the identification

Bliesner 15 8/2/91

was made at an identification parade or by

means of photographs.

And this next passage is really the passage on

which I rely:

In such a case in my opinion evidence is

admissible to prove who was the person thus

identified. Such evidence would not be

hearsay: it is not tendered to prove the
truth of what the identifying witness asserted
on the previous occasion. If the identifying
witness has sworn directly as to his previous
state of mind - for example that he was of the

opinion that the person connected with the

crime was the person portrayed in a photograph

which he indicated on the earlier occasion -

the evidence as to what photograph he

indicated on that occasion is not in itself

evidence of identification. Such evidence is

material to show that a particular photograph

was indicated, not that it was correctly

indicated or that the person portrayed was the

person who had committed the crime.

Your Honours, with respect, that puts in another

way that which I contend for and that is that the

evidence of the other witnesses cannot be led for

the purpose of proving a correct identification,

and yet that is the very fact that is sought to be

proved by leading evidence of her reaction,

physical or emotional, at the time of making the

identification.

I concede, Your Honours, that that is really

the only passage that I can find that gives me

comfort in my submission.

BRENNAN J:  What would you say to the argument that the

evidence of the police officers as to her reaction
establishes that reaction as a fact? It does not

establish anything to do with the identification,

but evidence of identification is admissible and

that the strength of the identification to tend to

show a strength of the belief, and therefore taking

the evidence of the fact that is deposed to by the

police officer and adding it to the evidence of the

identifier one comes to the conclusion which is

material, namely, that there is a strong belief in

the identification.

MR GLYNN:	Your Honour, my submission is that that is the very thing that His Honour there said was not to be
done.
BRENNAN J:	I rather thought His Honour said there that you

can prove that this was the photograph that the

Bliesner 16 8/2/91

identifier identified, but that does not prove that
the identification was correct and my analogy that

I was putting to you is that you can prove that the

identifier sweated; that does not prove that the

identifier was correct which it does, when taken

with the evidence of the identifier, tend to

establish that the identification made the

identifier was made with some confidence.

MR GLYNN:  Your Honour, with respect, in my submission, the

purpose therefore for which it is led is to

establish the correctness of the identification

whereas what His Honour said may be done is that

you may establish the fact of the identification

but you may not lead evidence which tends to

establish the correctness of the identification.

That, in my submission, is the basis for my

contention.

DAWSON J:  That view of the Chief Justice was not shared by

other members of the Court in Alexander's case, was

it, for example, the present Chief Justice at

page 427?

MR GLYNN:  Your Honour, I did not think that the present

Chief Justice took a different view, with respect.

DAWSON J:	It may be a matter of interpretation.
MR GLYNN:	Yes, it probably is.  I have read His Honour's

judgment a number of times to try and see whether

he did agree or disagree. I came to the conclusion

that he, in effect, made no comment on the

proposition raised.

DAWSON J:  He does not regard it as an exception to the

hearsay rule.

MR GLYNN:	No.
DAWSON J:	He regards it as evidence admissible in its own

right and that carries with it certain

implications.

MR GLYNN:  Yes. His Honour, in fact, at the top of

page 426, set out what he said were four - he says:

problems which afflict identification evidence

have their origin in four principal sources -

and the final one really is the one which affects

this application and that is:

(d) the difficulty of accommodation the

reception of certain types of identification

testimony to accepted principles of the law of

evidence.

Bliesner 17 8/2/91

DAWSON J:	That is right then, Sir Harry Gibbs obviously did regard it as an exception of the hearsay rule
of a sort.  The present Chief Justice said that is
not so, obviously identification in the dock is primary evidence but it is not very reliable primary evidence because of the situation of the
accused and that is why prior identification
evidence is admissible because it in fact is
evidence of the same character but is more reliable
having been made at an early time and in different
circumstances. That is as I read page 427.
MR GLYNN:	Your Honour, with respect, I would submit that

the then Chief Justice did not regard it as a

category of hearsay evidence because of what he has

said at page 406.

DAWSON J: Well only not as hearsay evidence because you

call the person who made the identification, and I

am talking about a situation where that is not so.

Obviously Sir Anthony Mason would say it was

admissible in its own right.

MR GLYNN:  Yes. Perhaps I - the passage I relied on was at

page 406, the last paragraph that commences on the

page. Perhaps I misread it in - - -

DAWSON J:  The answer is in the presiding judge's question;

what is the basis for the admission of

identification evidence is there are various views.

MR GLYNN:  Perhaps I attempted too confident a single view.

Your Honours, that really is the basis for my

submission, firstly that it should be characterized as a form of evidence which cannot normally be led.

I rely upon what His Honour the former

Chief Justice said and I concede, of course, that

there is authority against me. My learned friend

has kindly informed me that he has also another

authority from the New Zealand Court of Appeal

which adopts what was said in Collings.	I have
not had an opportunity to read it so I cannot put
that before Your Honours.	Unless I have failed to

make my point sufficiently clear, I do not really

think I can take it any further, Your Honour.

DAWSON J:	Was this matter raised in the Court of Appeal?
MR GLYNN:	It was, Your Honour, yes. I am sorry, I did not refer Your Honours to the judgment in the Court of
Criminal Appeal because - - -
DAWSON J:	No, I thought you said, in fact, that it was

raised without objection in the Court of Appeal.

Bliesner 18 8/2/91

MR GLYNN:  I understand it was raised - it was referred to.

It was one of two ground that was argued.	Your
Honour, it is

TOOHEY J: Page 257, I think, Mr Glynn.

MR GLYNN:	Yes, 255, then 257, Your Honour.
TOOHEY J:	- - - both on the basis of admissibility and

exercise of discretion.

MR GLYNN:  Yes, I find it hard to press the exercise of

discretion, at this stage, it not really having

been argued in the trial.

BRENNAN J: 

We need not trouble you, Mr Byrne.

MR BYRNE: 

Thank you, Your Honour.

BRENNAN J: 

The evidence to which objection is taken was not

objected to at the trial. That consideration tends
against the grant of special leave in this case.

However that may be, the evidence objected to was,

in our view, admissible to establish the strength

of the identifier's identification. In those circumstances, special leave will be refused.

AT 4.10 PM THE MATTER WAS ADJOURNED SINE DIE

Bliesner 19 8/2/91