Collie v The Queen

[1992] HCATrans 264

-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A32 of 1991

B e t w e e n -

GARRY JOHN COLLIE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

DAWSON J

Collie 2/9/92

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY. 2 SEPTEMBER 1992, AT 10.03 AM

(Continued from 1 September 1992)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Tilmouth.

MR TILMOUTH: 

May it please the Court, yesterday we were

€ndeavouring to make the point, which is really the
-focus of the application for special leave, that

whether it is the preliminary stage before a trial,

at the end of the Crown case before a trial on an

application to exclude identification evidence or for a direction of not guilty by the trial judge, or on the appeal courts independent review of

identification evidence in the Morris and Chidiac

sense, that the identification evidence had to be
considered for its probative value, in isolation

from the other evidence.

That submission draws heavily by analogy from

the recent decision of this Court in Domican, and
may I very quickly take the Court to Domican to
extract what we submit is the relevant analogous

principle. The reference, Your Honours, is

106 ALR 203. I do not bother with the facts - each

of Your Honours participated in the majority

judgment in Domican - but the principle we argue

flows through to the submission we make here, appears at the bottom of page 209 and over to page 210. The majority, which included each of

Your Honours as I have said, at line 36 on page 209

said this:

As the learned Acting Chief Justice

pointed out, the adequacy of a warning in an

identification case must be evaluated in the

context of the evidence in the case. But its

adequacy is evaluated by reference to the

identification evidence and not the other

evidence in the case. The adequacy of the

warning has to be evaluated by reference to

the nature of the relationship between the

witness and the person identified, the

opportunity to observe the person subsequently

identified, the length of time between the

incident and the identification, and the

nature and circumstances of the first

identification - not by reference to other

evidence which implicates the accused. A

trial judge is not absolved from his or her

duty to give general and specific warnings

concerning the danger of convicting on

identification evidence because there is other

evidence, which, if accepted, is sufficient to

convict the accused. The judge must direct

the jury on the assumption that they may

decide to convict solely on the basis of the

identification evidence.

Collie 10 2/9/92

Now, of course, with respect that discussion of

principle was in the context of the appropriate

warning regarding identification evidence but, with

respect, the principle is just the same when it

comes to an analysis of the admissibility of the

Adentification evidence. The judge, in our

submission, by light reasoning, must consider that

evidence taken alone, not by reference to other

incriminating evidence, and the judge must view it

on the assumption that the jury might or might not

rely on that evidence as distinct from the other

incriminating - - -

DAWSON J: Well that may or may not be, but what is the

question the judge must ask himself?

MR TILMOUTH:	The judge, with respect, must ask himself: looking at the opportunity, the time, the
circumstances, the relationship, et cetera, whether
this evidence is of sufficient probative value to
go to the jury.
DAWSON J: But that is never a test for anything.	I mean,

by itself anything that is probative can go to the

jury, no matter how slightly - whether it is highly

probative or not highly probative.

MR TILMOUTH: Well, there are three ways, with respect, of

putting that. Going back to Alexander, it is true

to say, as Your Honour put to me yesterday, that

the basis of exclusion seemed to reside in the

Christie discretion, prejudicial effect outweighing

probative value. Now, as to that my submission

would be that probative value generally does not

change a great deal, because that resides

principally in questions of opportunity, time,

et cetera.

DAWSON J: But prejudicial effect does, according to the

context.

MR TILMOUTH: Well, with respect, in our submission, we

would depart from that.

DAWSON J: But, before we get to that, that is the test, is

it?

MR TILMOUTH: Well, it is not the exclusive test, in our

submission.

DAWSON J: Well, you said that yesterday. What is the other

one, if it is not exclusive?

MR TILMOUTH: There are two other tests: one is the

question of unfairness, a separate discretion,

unfairness to the accused1 a further test might be,

and in our submission is, whether at the end of the

Collie 11 2/9/92

Crown case the evidence is so weak that it ought to

be withdrawn from the jury. In Turnbull's case in

England and in the case of R v R in New South

Wales, it was said that a judge may look at that

identification evidence and if it is too weak he

.may withdraw it from the jury and if there is no

-other sufficient evidence to found a conviction, he

may then direct a verdict.

DAWSON J:  How do you reconcile that with Doney?

MR TILMOUTH: Well, in Doney's case, with respect, R v R was

cited in the context of developing the point that

it is the jury's function to assess the facts and

not the trial judge's function to direct a verdict

where there is evidence. But Doney's case, with

respect, left untouched the further question

whether in identification cases, there is, I

hesitate to say, a special rule, but where there is

a further discretion because of the inherent

infirmities in identification evidence that would

justify a judge in saying, "I will not at this

stage allow that evidence to go any further to the

jury; that is to say, the evidence

identification.".

DAWSON J:  I could understand that, but if then there was no

evidence left at all, the judge may direct an

acquittal.

MR TILMOUTH: That is right, but there is a two-stage

process in that: first of all, what is the status

of the identification evidence? Is it strong

enough to go to the jury? If not, is there other

evidence on which the jury might found a verdict.

Now, in our submission, that was the third error

which occurred in the reasoning of the Court of

Criminal Appeal.

DAWSON J: But why are there three tests? I mean, how do

you decide whether it is unfair or you are

otherwise going to exclude it? But you can only do

so on the basis that its prejudicial effect

outweighs its probative value. That is why it

would be unfair, but what is the other test?

MR TILMOUTH: Well, with respect, it goes further than that,

although I can accept, with respect, that one of

the main problems of an attack might be prejudicial

effect. But looking at them each in turn, the

unfairness in this case, irrespective of

prejudicial effect, was that the first

identification was in court at the committal in

contrived circumstances. That was inherently

unfair to the accused, quite aside from the

infirmities of the actual opportunity to identify

in this case. As to probative value and

Collie 12 2/9/92

prejudicial effect, the probative value, with

respect, in this case was always slight. Quite

apart from the fact that it was simply in court identification, there are all the factors I put

yesterday.

On the other hand, prejudicial effect, with

respect, is always likely to be very strong,
irrespective of how high or low one pitches the

other material relied upon by the Court of

Criminal Appeal. That is because, the prejudicial

effect in identification evidence is quite

literally in the main witness pointing the finger

at the accused in the dock in the court room in

front of the jury. That, as this Court pointed out

in Domican, has very grave seductive influence upon

the jury and, in our submission, it is the fear

fact of identification in those circumstanc'es which

is primarily the prejudicial effect and where, if

one assesses the opportunity to identify or the
other circumstances as inherently weak, the

prejudicial effect will almost invariably therefore

outweigh probative value and, in any event, that

was the status of the facts in this case.

The other thing I would put to Your Honours,

and particularly to Your Honour Justice Dawson in

further answer to your question about prejudicial

effect and probative value, in this case, if a

judge were to say, well I can see that the

identification evidence is weak but, on the other

hand, there is this other material, identified here

by the Court of Criminal Appeal. I might have

excluded it or not let it go to the jury if it

stood alone, but I will let it go because of this

other material, is, with respect, to make

assumptions about whether the jury will be

influenced by that other material or not. And that

suffers from the same defect, with respect, as a

warning which included the other supportive

material, as in Domican. This Court said, "It does

not matter whether there is other supportive

material; you have to give the warning on the

intrinsic difficulties of the identification

evidence.".

MASON CJ: Mr Tilmouth, can I ask you this question: have

you had a look at Scott's case in the Privy Council

in 1989?

MR TILMOUTH:  I have not looked at it expressly for the current argument, may it please the Court.

MASON CJ: Well, Turnbull was taken up and applied in

Scott's case, and it was recognized that in certain

circumstances the trial judge could exclude

Collie 13 2/9/92

identification evidence, in some circumstances

going beyond cases of exclusion for prejudice.

MR TILMOUTH: That is right, with respect.

MASON CJ:= And also it was recognized that the judge could

take the identification evidence away from the jury

in exceptional circumstances.

MR TILMOUTH: Yes, indeed.

MASON CJ: But I thought that in Scott's case the view was

taken that neither of those powers should be

exercised in cases where there was other evidence

to support the identification. In other words, the
power to exclude, the power to withdraw from the

jury, should be exercised only in cases where the

suspect identification evidence stood alone.

MR TILMOUTH: Yes, but, with respect, my memory of the facts

of Scott's case do not survive to this morning.

But, with respect, Your Honour the Chief Justice

has hit upon another key point here, which is akin

to the point made by this Court in Davies and Cody,

and that is, where there is other evidence

supporting the identification, not another basis of

conviction, and the English·authorities, and the

point left open in R v Rand not touched upon

therefore in Doney, was whether a judge had that
two-stage process in identification cases of

looking at it, first of all, in isolation, and

deciding that the identification was weak. There

was no other evidence capable of supporting

identification, therefore the identification

material should be withdrawn from the jury. The

question of whether they could convict on other

material, or whether there was no case to answer, justifying a direct verdict, was a separate step.

DAWSON J:  But why should you consider it in isolation? Essentially it boils down to a question of

credibility, does it not? Do you believe the

identification witness or not? Of course, if there

is other evidence, it may well be that it

buttresses his cred~bility.

MR TILMOUTH:	My answer to that, with respect, and if one goes back to page 51, without analysing the
evidence, all the material relied upon by the Court
of Criminal Appeal may have, for the sake of
argument, been capable of supporting a conviction
on other grounds, but was not capable of supporting
the process of identification, and that is the
important difference, in our submission.
DEANE J:	But you do not really want us to say that you

assess it in isolation. What your asking us to say

Collie 14 2/9/92

is that you assess it in the context of everything
that suggests it is unreliable but you ignore all

the things that might say it is reliable.

MR TILMOUTH: Well, with respect, what we say about the

-~ther material in page 51, is that it is unreliable

for other reasons, quite separate from

identification.

DEANE J:  I mean, there are two propositions: one is you

could ask us to say all in-court identifications

are unreliable and therefore should be kept away

from the jury; or you are asking us to say in-court

identification should be kept away from the jury

when, in all the circumstances of the case, they

are unreliable.

MR TILMOUTH:  Probably more the latter than the former.

DEANE J: Well, once you say the latter, you are not asking

us to treat the identification evidence in

isolation.

MR TILMOUTH: Well, with respect, we are, for the reason

that the threshold question is the inherent weight

of that material. The only occasion we would have

to -

DEANE J:  But if you treat it in isolation it will be this

man saying, "That is the man I saw carrying the

body to the car, or carrying the deceased to the

car.".

MR TILMOUTH: That is right, together with the other

material I mentioned yesterday.

DEANE J: But that is the point, the other material is not

the identification evidence; it is circumstantial

material which you say makes the identification

evidence unreliable.

MR TILMOUTH: Well, no, with respect. The other material

relied upon by the Court of Criminal Appeal was

quite separate again from the material we say that

underpins the dangers in the identification process

in this case. What our point about page 51 is, is

that it appears that the court is applying to the

question of admissibility of identification

material or its own independent review, other

material which is divorced from the idenfication

process. And, in our submission, that is wrong.

The only time a court could say, "Well this identification is inherently weak, but I would

admit it because it is supported by other

material.", is when that other material goes to the

identification process, but not when that other

Collie 15 2/9/92

material is simply other incriminating evidence

quite separate from it.

DEANE J: Well, that would mean that in every case where

identification evidence was challenged, there would

pe two trials: one by the trial judge, dealing

with everything relevant to the identification and

then the next trial by the jury, dealing with
everything including the identification evidence,

if it is not excluded, relevant to the question of

guilt.

MR TILMOUTH: Well, with respect, it would not quite

degenerate, as it were, into two trials. There

could be an application, of course, at the

beginning of the trial, argued essentially, we

would submit, on the depositions, unless of course

there was an application for a voir dire on

accepted grounds, including unfairness or

illegality and the like; the Bunning v Cross type

area. But the other basis upon which this evidence

seems to be assessed, or rather the other stage -

certainly on the English authorities and by

implication from R v R - is at the close of the

Crown case, and that is the matter of arguing on

the evidence as it has come out before the jury.

There might be a question afterwards if a judge

decides to exclude the evidence, but say there is

sufficient other material to go the jury whether

there should be a discharge, or whether them having

heard the identification evidence can be cured by

direction. But it would not essentially, as a

matter of procedure, with respect, involve a great

more time and effort in the trial court.	It can be
taken care of for those two mechanisms.

But in the end result, if the Court pleases,

when one goes back to look at page 51, in our
submission, the real danger is that trial judges

and, indeed, the trial judge who has to rehear this

case, will take it as a binding principle that when	it comes to assessing the identification evidence,
he is entitled to look at other extrinsic material.
And, if the Court pleases, irrespective of the facts of this case, as I submit, the problem here
is that courts may reason that in looking at
identification applications to exclude, that they
can take into account other extraneous matters.
And, in our submission, not only would that have a
binding effect on a trial judge who would rehear
this case, but it would have a binding effect on
other judges generally, because it is a
pronouncement of the Full Court.

So, if the Court pleases, in our submission,

the special leave point touches three areas of

Collie 16 2/9/92

importance in the criminal justice process: the

proper approach at the start of a trial to

considering whether identification should be let in

and the scope of the discretion to exclude; we

submit it goes beyond unfairness and prejudicial

-~ffect outweighing probative value and so on.	It
also touches the question of what a trial judge

should do when faced with that application at the

close of the Crown case and, in any event, it
effects the proper role of the Court of Criminal

Appeal in independently assessing the

identification evidence; it must look at it, as we
submit, by analogy with Domican, standing alone

before it can then consider the other material,

which is only rightly considered when it comes to

an application of the proviso, or as to whether there should be an acquittal as distinct from a

retrial.

It should finally be said, with respect, our

submission would be that if that other material was

examined closely - I have not done it, of course,

on a special leave application - there are very

strong arguments that it would not be anywhere near

sufficient to independently found a conviction, but

that would be a matter of going into the facts.

DEANE J:  Can I just bring you back to this case. I mean,

there are a number of steps: one is the witness

says that he was there and observing somebody being

put into the car.

MR TILMOUTH:  Yes.

DEANE J: Well now, by reason of completely external

evidence, you challenge that on the basis that the

police were there an hour before and they did not

see him.

MR TILMOUTH:	Yes.
DEANE J: Well now, would you suggest that if that was all

that his evidence that he was there should be kept

from the jury?

MR TILMOUTH: Probably not, with respect, but I should add

there was some evidence from the man he was

supposed to be with, David Carter, but he said to

the police that he was not there either, but it was

stronger than that.

DEANE J: Well, add that; do you suggest that there should

be a preliminary trial before the trial judge to determine whether his evidence that he was there

should be kept away from the jury?

MR TILMOUTH:  Not a preliminary trial, with respect.

Collie	17	2/9/92
DEANE J: Well, a voir dire.

MR TILMOUTH:  A voir dire, argued largely on the

depositions, if there are adequate.

DEANE J: -Well then, if that is not kept away from the jury,

the next query is: should the evidence of somebody

who was there, that he can now identify the person

in the witness box as the person whom he saw, be

kept away from the jury?

MR TILMOUTH:  Yes.

DEANE J: Now, your answer to that is that there should be,

I will say, a trial; you will say, a voir dire on

the depositions - - -

MR TILMOUTH:  Yes.

DEANE J: - - - to determine that question. Well now, the

point that perplexes me is: how far down the road

you would go in keeping things away from the jury,

because the further you go down that road, the more

you are going to erode trial by jury in this

country, and it is something that, I think, you

have to approach on the basis, not as the Court of

Criminal Appeal did in your favour. I think it was

of sufficient potential cogency to warrant
consideration by the jury, but on the basis of, are

there compelling reasons for keeping a jury in

ignorance of this evidence, as distinct from giving

them a very strong warning about the dangers

inherent in it?

MR TILMOUTH: Well, with respect - - -

DEANE J:  I am not trying to lecture you, but I just wanted

to direct your attention to why it is that your

argument has not taken me very far along the path.

Perhaps you could put something in relation to it.

MR TILMOUTH: Well, there is a lot in what Your Honour has

said in content but, in effect, it is well
understood and Doney's case is warning enough to

counsel of the sacred place of the function of the

jury, as distinct from the trial judge in criminal

trials. But the very reason for the warning in

identification evidence, quite independent of the

other material, is the seductive effect of

identification material and the fact that its

dangers are generally not appreciated by jurors,

when that danger, of course, is appreciated by

experiences in the court.

It would be artificial, with respect, to

suggest that those kind of considerations can

affect the framing of an adequate warning but could

Collie 18 2/9/92

not possibly influence the question of whether that

evidence should go to the jury at all. That would

be to say, in effect, as an exclusive rule of

admission, that identification evidence is always a

matter of weight, not of admission, and the danger

~ould be, in my respectful submission, to too

-narrowly circumscribe the traditional discretion of

trial judges to stop material which is inherently flawed. It may be called the Christie discretion, or it may be analogous to the Lee discretion,

unfairness, or it may even be wider as we argue in

identification cases. But in the end result it

would be for the court to turn a blind eye on the
issue of admissibility to dangers it well knows and
appreciates, but which the jury may not. But to

say, "Well, it will go to the jury and I will give

them a warning.", in our respectful submission, is

to ignore that class of case - they may be

relatively rare - of which this is one, where it is

so inherently flawed that it should be withdrawn,

and that would not be to encroach upon the jury's

traditional function to determine the facts.

DAWSON J: But why if it is flawed should it be withdrawn?

That is a matter for the jury. I mean, here the

identification evidence is not strong, but that is

not a reason for rejecting it; it is a reason for
leaving it to the jury. They will be able to
perceive that. It is not like confessions; you

seem to want to make an analogy there, where there are other reasons in relation to voluntariness why

you exclude them, policy reasons. There is no

policy reason here. If it was a Bunning v Cross

situation, no doubt the confession might be

excluded, but no one is suggesting that; it is just

a question of fact.

MR TILMOUTH: Well, in my submission, it can also be a

question of admissibility. As to the analogy of

confessions, of course, there is a separate role

for the trial judge to determine voluntariness, and

there are, of course, prejudicial - a jury might

tend to weigh a confession too highly, thinking the

police are reliable, but just the same thing
applies here, as I have pointed out already, the

sheer fact of pointing the finger in a trial court

in front of a jury is a very powerful psychological

influence.

DAWSON J: But why is it, if it is palpably weak, the

evidence?

MR TILMOUTH: Well, with respect, for the simple reason

pointed out by this Court in Domican, that juries

do not fully appreciate why it is weak, whereas the

trial judge - - -

Collie 19 2/9/92

DAWSON J: That is the reason why a warning should be

given - - -

MR TILMOUTH: Well, there are some classes of cases, with

respect, where a warning could not be sufficient to ~vercome the inherent flaws in the evidence itself,

and a judge should have the power, not so much to

stop the case, but to take that evidence away from

the jury. And, could I add this as well:

Chief Justice Gibbs in Alexander - I do not read

it, Your Honours - pointed out this very problem

which has been left unresolved by the cases. He

pointed out that in theory the manner in which an

accused was identified out of court goes to weight

rather than admissibility but he went on to point

out that in Davies and Cody, where you have, in

effect, the only evidence being the single

photograph, that it was very hard to distinguish

that from being a matter of weight as distinct from

a matter of admissibility.

DAWSON J: And yet they ordered a retrial in Davies.

MR TILMOUTH:  They did but for other evidence which, if

Davies and Cody is correct, went to identity not to

incrimination for other reasons. Likewise, in

Alexander, one might say that the Court has gone

close to saying as a matter of law, although it is

still discretionary, that where the police choose

deliberately to use photograph evidence in

preference to a line-up, once they have gone into

the evidentiary stage, that they may face

exclusion. It is true to say that that might be on

the basis of prejudice or on the basis of, perhaps,

Bunning v Cross. But nevertheless there does

appear by reason from Alexander and Davies and Cody

to be a reserve discretion, as it were, in cases of

identification to withdraw that evidence from the

jury consistent with the jury's function to

arbitrate all the fact, as in Doney's case.	In our
submission, the reach of the discretion, in

identification cases is a proper ground in itself

for the granting of special leave.

DEANE J: But your real argument here is not directed to the

unreliability of identification evidence at all, is

it? Your subterranean argument is really that this

man was a terrible liar.

MR TILMOUTH:  It is, but as I endeavoured to point out in

starting - - -

DEANE J: Assume, against your subterranean argument, that

this man in the witness box is finally being

absolutely honest, you could not really then say

that this identification evidence should be

excluded?

Collie 20 2/9/92

MR TILMOUTH: Perhaps not but, with respect - - -

DEANE J:	It would have to be a strong warning.
MR TILMOUTH:	Yes, but that, with respect, is not really the

-~rgument. Although, of course, his credibility

played a large part in the trial, it is not really

a large part in my submission because yesterday I

endeavoured to put it aside. What my argument

focussed upon, with respect - - -

DEANE J: You did not seem to me to put it aside as we had

him looking through the hole in the fence instead

of standing with his foot on the crossbar.

MR TILMOUTH:  True, but with respect it started out by

saying it was short time, short distance, a close

cluster of people, dark conditions, et cetera, but

the real thing is that first description he gave a

year later, which could not have been the

applicant. The applicant, as the Court noted, was

a quite noticeable person. The description he gave

then could not have been the applicant. The

description he gave at the committal two years

later could not have been the applicant, and the

description he gave in the trial court with hair

and a long black beard - not a red bushy beard -

could not have been the applicant either.

DAWESON J:  But those are matters which are equally obvious

to the jury as they are to the trial judge.

MR TILMOUTH: That is true, but there is still, with

respect, a threshold stage for the trial judge.

With respect, I would only be repeating myself now

to go through it again. But, in the end result, in

our submission, when one looks at what the Full

Court has said, the identification evidence of

Collie was much weaker. It received support,

however, and then it looks at extrinsic material

and then concludes, "Nevertheless, I think it was

of sufficient potent cogency", is to confuse, with

respect a question of admissibility with the

question of the application of the proviso of

whether there should be a retrial. That is

binding, as I have endeavoured to find out, on

trial judges, who will in our submission use it to

say, "Well I may have excluded this evidence, but

because it is supported by this other material I

will include it.". That, in our submission, is the

wrong principle and the reason why special leave is

appropriate. If the Court pleases.

Collie 21 2/9/92

MASON CJ: The Court need not trouble you, Miss Vanstone.

The Court is of opinion that the actual decision of

the Court of Criminal Appeal is not attended with

sufficient doubt to justify the grant of special

leave to appeal.	The application is therefore
refused.

AT 10.35 AM THE MATTER WAS ADJOURNED SINE DIE

Collie 22 2/9/92