Cook v The Queen

[1999] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S168 of 1998

B e t w e e n -

WAYNE JOHN COOK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 1999, AT 11.45 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please your Honours, I appear with my learned friend, MR P.J.D. HAMILL, for the applicant.  (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR T.L. BUDDIN, SC:   May it please the Court, I appear, together with my learned friend, MR L.M.B. LAMPRATI, on behalf of the respondent.  (instructed by the S.E. O’Connor, Director of Public Prosecutions (New South Wales))

GUMMOW J:   Yes, Mr Byrne.

MR BYRNE:   Thank you, your Honours.  This application raises what we submit is an important question of principle relating to the use of identification evidence in criminal trials.

GUMMOW J:   The principles are settled, are they not?

HAYNE J:   Do you seek to add to Domican?

MR BYRNE:   I do not seek to add to Domican.  What we would seek to do in this case is to perhaps clarify the manner in which Domican should be applied, both in courts of trial and by the Court of Criminal Appeal.

In our submission, the summing up in this matter discloses a failure to adhere to the standards, and the very high standards, that were established by this Court in Domican and, in addition, we would submit that the Court of Criminal Appeal has wrongly applied the principles established in Domican, once that court was satisfied that there had indeed been not only a single error, but two significant errors in the manner in which the summing up had dealt with the question of identification which, as your Honours, of course, are aware, was the sole basis upon which the applicant’s guilt was sought to be established.

The first difficulty in relation to the case so far as the question of identification is concerned is that one of the chief identification witnesses, one of two chief primary identification witnesses, described a photograph of the applicant as being a person who, and I quote the words, “looks extremely like” the offender.  That evidence was left to the jury on two separate occasions in the course of the summing up as being a positive identification.  That is, what we would submit, a clear breach of what this Court held in Pitkin v The Queen.

GUMMOW J:   Now, the Court of Criminal Appeal refused leave under rule 4, did it not?

MR BYRNE:   In relation to that aspect, yes, your Honour.

GUMMOW J:   That appears at page 106, line 20.

MR BYRNE:   Yes, your Honour.  The court did accept, and might I refer your Honours to page 105 of the application book at line 5 at the top of the page:

Nevertheless, the authority of Pitkin’s case is clear, and to describe Mr Tomlin’s evidence as “identification” was erroneous –

The manner in which that was, as it were, overcome by the Court of Criminal Appeal is disclosed at page 106 of the application book where it is said by his Honour, again at line 5:

it was no part of the appellant’s case that the process of selecting a photo by Mr Tomlin was not evidence of identification but only of resemblance.

It is not, with respect, the appellant’s case.  That is the evidence.  The evidence was that ‑ ‑ ‑

HAYNE J:   We have to have some regard to how this case was conducted at trial, do we not, Mr Byrne?

MR BYRNE:   Yes, your Honour, some regard has to be paid, with respect, but it cannot be put on the basis that if counsel for the accused at the trial had not put it on the basis that this was only evidence of resemblance, then nothing could be done about that.  The problem with this summing up was that the learned judge twice described evidence of resemblance as evidence of positive identification.  That was, with respect, an error.  It was an error which was recognised and accepted by the Court of Criminal Appeal, but the appeal to that court was dismissed on the basis that there had, in effect, been no reliance on the fact that that evidence was only evidence of resemblance.  It is not, with respect, a thing that can be abandoned.  That is the state of the evidence.  It does not get any higher than that.  It is only evidence of resemblance, and to describe it as evidence of positive identification, not once, but twice, is a serious error which is likely to lead a jury to give inappropriate weight to the value of that evidence.

The second serious shortcoming, we submit, is evident from the terms of the summing up, occurs in the manner in which the learned judge dealt with what was said to be discrepancies between the descriptions given by the two, or perhaps three, primary prosecution witnesses, and it went to a matter of detail in the evidence but, nevertheless, a matter of important detail.  Again, the Court of Criminal Appeal accepted that there had been an error in the manner in which the jury was directed as to the discrepancy which was said to exist.

The Court of Criminal Appeal dismissed this ground of appeal on the basis, again, that it was not relevant to the manner in which the trial was run.  If I can just take your Honours directly to the particular passage which deals with this ground of appeal.  It is at page 103 of the application book.  At line 40 on page 103 the learned judge says:

These matters ‑ ‑ ‑

referring to the questions of discrepancy:

should have been referred to earlier when giving the direction required by s116, and not left to the summary of counsel’s argument but –

And then his Honour used the words:

having regard to the way the trial was conducted, I am satisfied that the alleged deficiencies in the Crown case were sufficiently brought to the jury’s attention –

Your Honours, that manner of dealing with that ground of appeal is, in our submission, a direct and almost an explicit breach of the standard which was established by this Court in Domican 173 CLR 555. If I can take your Honours to the joint judgment of the majority of six Justices at page 561 and the last full paragraph on the page. It is there said:

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.

In this case, again, the words used by the learned judge in dealing with this ground of appeal were:

having regard to the way the trial was conducted –

in our respectful submission, expressly the thing which this Court said was a matter to which no regard should be paid in determining such a ground of appeal.

The further material in the judgment of the majority immediately on the following page, at page 562, perhaps bears out the other aspect of the complaint which was made in the Court of Criminal Appeal, and which is repeated here.  At line - - -

HAYNE J:   At page 101 to 102,  the Court of Criminal Appeal refer to the direction.

MR BYRNE:   Yes, your Honour.

HAYNE J:   On its face, they seem to be referring to the direction in terms that track precisely Domican.

MR BYRNE:   Yes.

HAYNE J:   Yes.  What is said to be the deficiency in the charge, not that a Domican direction was not given but that an incomplete Domican direction was given.  Is that the complaint?

MR BYRNE:   The complaint is that the direction did not meet in any sense the standard which was established by Domican.  That passage on page 562 of the report that I was about to take your Honours to, perhaps illustrates what we say was the deficiency in the summing up.  What the joint judgment said was – just referring to the fifth line there:

A warning in general terms is insufficient.  The attention of the jury “should be drawn to any weaknesses in the identification evidence”.  Reference to counsel’s arguments is insufficient.  The jury must have the benefit of a direction which has the authority of the judge’s office behind it.  It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

In this case, and perhaps responding more directly to your Honour Justice Hayne’s question, at page 102 of the application book the learned judge accepted, after referring there to the fact of what was described as “an important discrepancy in the descriptions” made by the prosecution witnesses.  He then sought to, as it were, explain the basis on which the matter was not of such significance.

The first explanation which commences at line 30, just below line 31, is that in the facts of this case the witness, Mr Seguel, and the police were perhaps not describing the same person.  He then goes on to say at line 41, “in my view” they were “almost certainly not” describing the same person.  With respect, that view simply was not open on the evidence in the case because it was clear that the police and Mr Seguel had said that the person they saw was wearing a distinctive item of clothing – what was said to be, on the one hand, maroon, on the other hand a purple garment described as a sloppy joe which had a hood, a rather distinctive item, but both of them said that that particular person was wearing that garment, and they were clearly describing the same person, unless it may, perhaps remarkably, have been that there were two people in the immediate vicinity with a purple sloppy joe with a hood.  So, that basis for determining that the directions were not to the requisite standard was not, in our submission, a proper basis.

The second matter that the learned judge referred to, and this is at line 45 and below, was that the question of the discrepancy did not appear to have been given any attention by counsel.  Again, with respect, that is not a reasonable conclusion on an analysis of the trial proceedings.  If I can refer your Honours to, for example, the cross‑examination by counsel for the applicant at his trial, which is reproduced at page 24 of the application book.  In his cross‑examination of Mr Tomlin, the witness who gave evidence that the person he saw, alleged to be the applicant, had spiky hair.  There were a long series of questions asked about the fact that it was spiky hair.  At page 24 of the application book, counsel for the applicant refers on no less than 10 occasions to the fact that it was spiky hair within the space of 12 questions.

In his cross‑examination of Mr Seguel, which is contained at page 13 of the application book, initially, there was a series of questions from line 22 through to line 32 – four questions directed towards the length and nature of the hair of the person who he had seen.  Further questions at application book page 14 about the hair being dark and wavy.  That is in contrast to this spiky hair that was seen by the other witness.

Further cross‑examination in relation to the hair of the person said to be the applicant, of the police officer who is said to have been in the vicinity is at application book page 42.  Again, further questions referring to the fact that the police officer said the person had shoulder‑length hair.  So, we have this one person described by one witness as having spiky hair, the other witness as having short, wavy hair, and the other witness as having shoulder‑length hair.  It is an important discrepancy in the evidence, and it was completely ignored in the summing up.  It cannot be said on any basis that that was doing what Domican requires; namely, isolating and identifying for the benefit of the jury a matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

Your Honours, the manner in which the Court of Criminal Appeal dealt with that ground of appeal was to say having regard to the way the trial was conducted, that was not a matter of significance.  But, the manner in which the trial was conducted is perhaps disclosed by a short reference

made to what counsel for the applicant at his trial had apparently said in his address to the jury.  This is at page 78 of the application book, at line 51, where it is said in the last paragraph:

The defence –

and this is, I should interpolate, summarising the defence address:

The defence also says to you about Mr Tomlin, well if that is the driver and he is the man who subsequently identified as being at the car by Mr Seguel then remember that the man the police saw going down the steps had shoulder length hair.

So something was said about it.  The evidence clearly disclosed it to be a matter of real significance.  A significant discrepancy in the description.  This was a case that relied, not primarily on identification evidence, but solely and absolutely exclusively on identification evidence.

The identification evidence was presented to the jury in an inadequate manner for two reasons:  it was firstly misdescribed, according to the judgment of this Court in Pitkin as being positive identification evidence, when it was merely evidence of resemblance.  Secondly, it was left to the jury without telling them what the weaknesses in that evidence were, contrary to what the Court held in Domican. 

I am reminded that the evidence of resemblance that was given by the witness, Mr Tomlin, is the only evidence which actually puts the applicant at the scene of the offence.  There were other witnesses whose evidence was before the jury who had, indeed, selected other photographs, photographs of other people, as being the people they identified as being responsible for the offence.  Those are our submissions, may it please the Court.

GUMMOW J:   Yes, Mr Buddin.

MR BUDDIN:   Your Honours, neither of the two matters that are agitated were the subject of complaint at trial.  Particularly in relation to the first of the matters, the matters that might be described ‑ ‑ ‑

GUMMOW J:   That is quite so, but that is not necessarily a determinative factor.

MR BUDDIN:   No, but it was certainly a matter that would have been very easy to correct, particularly the question of ‑ ‑ ‑

HAYNE J:   It is not ease of correction that underlies this.  It is that those most intimately connected with the trial, who had the conduct of the trial and who understood the significance of issues raised at the trial, did not complain of the treatment given to the issue at trial in the course of the charge.  They are in a better position, so it would ordinarily be, to understand the significance to be attached to issues.

MR BUDDIN:   In essence, the import that is now said to attach to the two matters that are agitated did not occur to trial counsel as being matters of such moment as to require intervention. 

Just in relation to the so‑called Pitkin point, his Honour’s remarks have to be seen in a context of an introduction to a direction that the concerns about identification evidence remain even if there are two witnesses, rather than one.  That was really the import of what his Honour was seeking to convey to the jury. 

This case is significantly different from Pitkin.  Pitkin was a case in which there was only one witness; it was a witness who said that the person in question “looked like”, so it was a simple resemblance, and that clearly was not sufficient to discharge the onus of proof.  But, this is a very different case.  This is a case in which the defence was one of confess and avoid.  The applicant admitted in his evidence that he was present in Brougham Street.  What that meant was that Mr Seguel, the person who stopped his vehicle, deliberately for the purpose of observing what he thought was a suspicious incident, was reliable as an identifier.  The question was, was he also reliable as an observer.  It was well open to the jury to accept that he was a reliable observer, because the question really turned on whether or not Mr Seguel observed the applicant going to the boot of the car with keys in his hand, or whether or not the applicant was there as the fourth person innocently going about his business and urinating.  It was well open to the jury to accept Mr Seguel in relation to that matter beyond reasonable doubt.

Mr Seguel’s evidence was to the effect that he observed the applicant and two others emerging from the vehicle, he subsequently saw the applicant coming back and seeking to gain access to the boot, unsuccessfully, with a set of key, and then a little later returning to the scene with the other two and taking up the original positions, at which stage the police arrived.  So, Mr Seguel was, in fact, at the end of the day, really challenged on his observations, not his powers to identify.  This case is a long way from Pitkin and a long way from Domican.

In relation to the question of whether or not Domican was observed, or the strictures of Domican was observed, it is submitted that they were complied with.  There were general directions in complete terms and they were comprehensive - pages 62 to 65 – I will not take your Honours to it.  His Honour then did precisely what this Court said he should do in Domican; he pointed to the particular and potential weaknesses in respect of the witnesses – subject to what I have just said about Mr Seguel - in terms of the length of observation, the circumstances in which observations was made, the lighting at the different locations, the lapse of time between observation and identification, and the question of the photographs and their representativeness.  The Court of Criminal Appeal, apparently with approval, referred to that catalogue of matters to which his Honour referred.

Those matters, both general and specific, are in conformity with what this Court said in Domican at page 565. As Domican, itself, says – might I take your Honours to page 560 of Domican at about point 8 or 9, and I would invite your Honours to read the last complete sentence:

A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice.

Over to 561, at about point 3, the sentence starts “But that requirement”:

does not oblige the judge to put to the jury every argument put forward by counsel for the accused.

Then if your Honours would go to about point 5 after the quote with the reference to footnote (15):

Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence.  Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence.

In summary, this was a case in which Mr Seguel placed the applicant at the car at a relevant point in time, five minutes, the evidence disclosed, after observations had been made by Mr Tomlin, admittedly with the gloss that my learned friend puts on it with entitlement and, in those circumstances, this is not a classic Domican case in any event.  However, Domican, in all its particulars, have been complied with.  No objection was taken, and in the circumstances, special leave should be refused.

GUMMOW J:   Yes, thank you, Mr Buddin.  Mr Byrne.

MR BYRNE:   Just very briefly, your Honours, the man Seguel who was referred to as a person whose identification was reliable, application book page 14 line 20.  This is what he first said to the police when he was asked about what he had observed:

“I didn’t get a very good look at the boys.  All I can remember that they were young, anything between fifteen and twenty years, all appeared to have dark skin”.

A person who did not get a very look at the boys, according to his first version, is the chief witness relied upon; the only witness who gives evidence of identification.  This, in our submission, was a particularly weak case of identification evidence.  A case which relied, as we submitted earlier, exclusively, solely on identification evidence.  It was a case which called for very careful and, more importantly, correct directions.  In our submission, the directions that were given, particularly in relation to Mr Tomlin’s evidence, were conspicuously incorrect and likely to mislead a jury of lay people as to the weight that that evidence should give.

The Court of Criminal Appeal accepted that there had been misdirections given.  In those circumstances, the general principle which is set out in the joint judgment of the majority in Domican at page 565 should, in our submission, have been applied. At about point 8:

If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused.

In this case, in our submission, the warning was not only inadequate, it was incorrect in an important respect, and there was no other evidence which could have established guilt.  Those are our submissions.

GUMMOW J:   The decision of the Court of Criminal Appeal of New South Wales depended upon the application of established principles.  It has not been demonstrated there are sufficient prospects of success in showing a departure from the principles in Domican v The Queen 173 CLR 555 to warrant a grant of special leave in this matter. Accordingly, special leave is refused.

AT 12.16 PM THE MATTER WAS CONCLUDED