Collie v The Queen

[1992] HCATrans 255

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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

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TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY. 1 SEPTEMBER 1992. AT 4.08 PM

Copyright in the High Court of Australia

MR s.w. TILMOUTH, QC:  May it please the Court, I appear

with MR C.J. CALDICOTT for the applicant.

(instructed by Caldicott & Co)

MISS A.M. VANSTONE: If the Court pleases, I appear for the

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

Director of Public Prosecutions (South Australia)

MASON CJ:	Mr Tilmouth?
MR TILMOUTH:	Your Honours, this case too involves a

question of identification but the circumstances

and the point we seek to ventilate is quite

different. Your Honours, the applicant was charged

and convicted of murder and the principal evidence

against him was his involvement in the abduction of

the deceased with two other men being the

co-accused in the case and, effectively, the Crown

case was dependent upon this identification

process.

Without wanting to refine all the facts,

Your Honours, in brief overview they were these:

the situation occurred at about 11 or 12 at night -

a winter night, a dark night. The time over which

the process of identification occurred was

approximately, on the evidence of Brannan, the key

witness, of about a minute. It involved the

sighting by him, this is on his evidence, of the

three men in a cluster together with the deceased,

dragging him or forcing him over a distance from

the exit rear gate of a flat to a parked car in the

car park outside of approximately 20 metres and the

distance from which Brannan observed these

proceedings, under those circumstances, was

approximately no closer than about 20 metres and no

further than about 30 or 35 metres. The party, as

it were, moved closer but to the right of Brannan

from his viewing.

Now, if the Court pleases; that is very

simplified, of course, but that was basically the

intrinsic circumstance giving rise to the question

of opportunity and, in our submission, obviously,

those combination of events were very poor. But

added to that the only identification - the act of
original identification was an act of in-court

identification at the committal proceedings two

years after these events. The only act of

identification which was relied upon was the

in-court identification.

More than that, if the Court pleases, as well

there had been no photo identification in the investigation process, nor had there been any line-up in the evidentiary process. The

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identification was entirely dependent upon, in the

end result, the in-court procedure which, of
course, this Court has said in Alexander is of

little probative value because the circumstances

in court combine or conspire towards identification

of accused persons.

Your Honours, on top of that material was this

consideration: Brannan had been spoken to about a

month after the events in July 1988, the

conversation with the police was August, and denied

any knowledge of relevant events. As well there

was a question about whether in fact he was at the

flats or in the vicinity at all. His evidence was

that he stayed there on this night - it was Friday
15 July 1988. He said he stayed at the flat the

next morning until 10 or 11 in the morning. The

police went there at nine and he was not there to

be found so, in addition to the doubtful

opportunity to identify, there was a real question

about whether he was there at all. And more than

that as well, Your Honours - again this is a very

broad summary for the purposes of the special leave

application - Brannan's evidence changed

considerably and, in net, it was submitted and is

submitted very strongly it changed to overcome

hurdles that were put in his way when he purported

to say he could safely identify.

For example, he first of all said that the

identification took place from behind a fence - a

school fence separating the block of flats and the

school. He first of all said that he peered over

the fence and stood on a slat or a paling to do
it - a cross member - and when it was pointed out

that there was not such a cross member he changed

his evidence to say that he peered over the fence

,by wedging his foot into a hole in the fence.	When
it was further pointed out by other objective

evidence that the hole was not big enough for that

he changed it yet again to say that he peered

through the hole in the fence. That hole,

incidentally, on his line of vision had some bushes

which partly obscured his view of the relevant

events.

Without going into details as well,

Your Honours, he changed the type of car into which

the party had gone, into which the deceased was

dragged; he changed the position of the car, again

it was submitted and is submitted very strongly, to

make his evidence fit, more the objective

circumstances which could be proved independently.

And all of those matters occurred, of course, quite

independently of the other criticisms about his

character and his motive to tell lies which are set

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out in the judgment of the Chief Justice speaking

for the Court of Criminal Appeal.

Now, it is submitted, with respect, that even

in that brief overview there was a serious question

about the weight which was to be attached to this

identification process. But more importantly,

Your Honours, when Brannan first spoke to the

police a year after the events, the description he

gave to them - this is in August 1989 a year or a

little more afterwards - was that the man he

identified as or referred to as Collie the

applicant, was a man having reasonably long hair,

although he was apparently or may have been

balding, and had no distinguishing facial features.

Now, all the evidence in the case of the

descriptive kind of the applicant, at relevant

times, was that he was a man having a completely

bald head and a red bushy beard. Its length was

another question but a red bushy beard and a

completely bald head.

DAWSON J: But he had a tattoo?

MR TILMOUTH:  He did, he had a tattoo on his head, had

tattoos on his arms as well but I do not know

whether they featured very much in the

circumstances of the case. But the point is, with

respect, a year later when the applicant's name is

first mentioned in connection with these murders, a

description is given of him which is not a
description of the applicant, and without going

into detail, as I have said, when the first

identification process took place, it was two years

later in the court of summary jurisdiction during the committal, The applicant Collie at that time

was in court, he was clean shaven and he had short
brown hair and, of course, Brannan identified him

and also said - and this was proved at the trial,

of course - that he appeared to be, as he appeared

in the committal proceedings, as he was two years

earlier when the abduction process took place.

Now, with respect, all of that led to,

obviously, the applications which the Court has

read about in the court below, but when it came to

the Court of Criminal Appeal a submission was made

that all of that identification evidence should

have been excluded because it was inherently so

weak to be of no real probative value.

Alternatively, it was submitted that there should

have been a direction in effect that it was of

little probative value along Alexander lines, or
that the Court of Criminal Appeal's independent

review of the identification material, independent

in the sense laid down by this Court in Morris

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and Chidiac, must have meant that that evidence

should have been, as it were, put to one side or a

ruling should have been made that it was of so

little probative value that it could not really

count at all, in the evidentiary sense, at the end
of the day towards founding a conviction.

DAWSON J: Except that there was other evidence against the

applicant.

MR TILMOUTH:  There was. Now that is, with respect, our

point and that is the point we lost on, of course.

Where we submit the error took place in the Court of Criminal Appeal, Your Honours, is at page 51,

and at page 51 the Chief Justice, with whom

Justices Cox and Debelle agreed, turned to the

point that I am now making submissions about, at

the top of that page:

It is now necessary to deal with certain

further submissions made on behalf of the

appellants. it was contended that the learned

trial judge should have excluded, in the

exercise of his discretion, the evidence given

by Brannan as to his identification of the

persons involved in the abduction.

And then, Your Honours, there is a reference to Alexander and Hallam and Kargar and also to the case of Kranz who was a co-appellant, and I

continue if I may, Your Honours, about halfway down

the page where it turns to a consideration of

Mr Collie's case, where the Chief Justice says,

virtually point 5:

The identification of Collie was much weaker.

It received support, however, from other

evidence. The man identified was the man who

had participated in the earlier bashing. He

was the man who, if Munting is to be believed,

told him that he need not worry further about

Kiwi -

Kiwi is the deceased, of course, Your Honours -

and who was in possession of the deceased's

hotel key and searched his room. The evidence

of Brannan as to the identification of Collie

certainly called for a clear direction to the

jury as to its infirmities as identification

evidence and also as to motives which Brannan

might have for falsehood. Nevertheless -

and this is the summation of the argument -

I think that it was of sufficient potential

cogency to warrant consideration by the jury.

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Its truthfulness and reliability was a matter

to be assessed by the jury and I do not think

that it would have been right for the judge to

have withdrawn the evidence from them.

And then it goes on to consider the case of

Lovegrove.

Now, in there, in our submission - and here is

our special leave point - our argument was and is that the question of the proper assessment of the probative weight of the identification material had

to be considered taken alone. It had to be

considered in isolation in terms of opportunity,

time and so on, the usual factors which pertain to

it. Put another way, with respect, our submission

is that it does not properly deal with the

contention that either the evidence was
inadmissible, or of so little probative weight to
simply say that it was much weaker than that of

Kranz, but it received support, however, from other

extraneous factors to the identification process.

Our argument is, if the Court pleases, as a

special leave point that when it came to a

consideration of this question, whether it be

admissibility, whether it be the question of the

proper direction which attends upon it, or whether

it be the Court of Criminal Appeal's own

independent review, it must consider first of all

that material in isolation in the category - the

closed category, as it were - of identification

material.

We concede, of course, that at the end of the

day when it comes to questions of the proviso or

whether there should be a fresh trial or an

.acquittal - the latter is, of course, what we

sought - that it may be legitimate to look at other

extraneous evidence but not when it comes to weigh

the identification material taken alone.

DAWSON J: What is the purpose for which you are weighing

the identification evidence?

MR TILMOUTH:  To ascertain its intrinsic probative value.

DAWSON J: To ascertain whether its prejudicial effect

outweighs its probative value as to be excluded

from the exercise of the discretion?

MR TILMOUTH:  That can be one but not the exclusive task of the trial judge.

DAWSON J: What is the other one?

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MR TILMOUTH:  One is whether it should be admissible at all,

although that is probably discretionary as well;

another is, of course - - -

DAWSON J:  Why?

MR TILMOUTH: With respect - - -

DAWSON J: Because the proper procedures were not followed?

MR TILMOUTH:  The only procedures that were not followed

here were questions of a line up or photographic

evidence but that was not pursued in terms of

illegality or impropriety, so that question did not

arise. So the question whether it was admissible

was, essentially, a discretionary exercise of

assessing its probative force and then perhaps if

it had none, of course, in our submission, it was

not admissible; if it had some then one step, of

course, is whether its prejudicial effect outweighs

probative value. But even if it is permissible to
take into consideration what, I submit, is the

extraneous material - meaning extraneous to

identification process but not incriminating - in

our submission one cannot use that material to

weigh what, in effect, is a subject-matter which is	sui generis, it must stand or fall under its own
weight as identification material.

DAWSON J: Is that necessarily so? I mean, its prejudicial

effect must be taken in the context of the whole of
the evidence, and if there is cogent evidence

against your client otherwise it is not as

prejudicial, is it?

MR TILMOUTH: With respect, assuming that the test or the

consideration under review is whether prejudicial

effect outweighs probative value, the only occasion

upon which the other material may be brought in aid

is where it is sufficient alone to found a

conviction, and in this case that other material,
in our submission, was not.	I could go into

reasons for that but that is a matter for

evaluating the other evidence; all of that is

suspect as well, and there were directions about

the man Munting and so on. But, in our submission,
it would only be relevant if that extraneous
material was so probative that it would be
sufficient to enable a jury to convict on that

standing alone. Otherwise, in effect, you would

have two bodies of evidence both, considered in

isolation, being insufficient to found a conviction

but in the end result, in our submission, being joined together, as it were, to make out a case

beyond reasonable doubt.

DAWSON J: That often happens.

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MR TILMOUTH:	It does, but in cases of identification, if

the Court pleases, the question of identification

is an essential intermediate step in the whole

process of the conviction - this is a reference to

Shepherd's case - that in the end result that evidence - that identification evidence - must be

probative enough for the jury to make a finding

about its reliability beyond reasonable doubt

before it can reason from that material towards

guilt of the accused.

MASON CJ:  Mr Tilmouth, we will adjourn now.

AT 4.25 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 2 SEPTEMBER 1992

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