Domican v The Queen

[1991] HCATrans 357

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S133 of 1991

B e t w e e n -

THOMAS CHRISTOPHER DOMICAN

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

Domican(2) 1 12/12/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 DECEMBER 1991, AT 11.06 AM

Copyright in the High Court of Australia

MR P.J. HIDDEN, QC:  May it please the Court, I appear with

my learned friend, MR P. BYRNE, for the appellant.

(instructed by J.J. Cullen & Associates)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR P.G. BERMAN for the Crown.

(instructed by the Director of Public Prosecutions

(New South Wales))

MASON CJ: Yes.

MR HIDDEN:  Your Honours, this is an appeal brought by

special leave granted by this Court on 6 August of

this year against a decision of the Court of

Criminal Appeal of New South Wales dismissing the

appeal of the appellant against his conviction on a

charge of attempted murder. We have prepared a

brief outline of argument, Your Honours. Might we

hand that up.

MASON CJ:	Thank you.
TOOHEY J:	Mr Hidden, could I just ask you in the light of the outline of argument, the grant of special leave
was confined to a ground described and enumerated 2
in the draft notice of appeal, which is not before
us and I do not know what it said, but the notice
of appeal raises two apparently disparate matters:
identification and fresh evidence.

MR HIDDEN: Correct.

TOOHEY J:  Do they both arise out of the ground 2 in the

draft notice of appeal?

MR HIDDEN:  No, Your Honour. Perhaps if I could just go to

the notice of appeal Your Honour is - - -

MASON CJ: It is the wrong notice of appeal, is it not? It

is dated 5 October, from recollection, whereas the

grant of special leave refers to a document dated

12 October, I think.

MR HIDDEN:  I am sorry. Would Your Honours bear with me a

moment?

MASON CJ: That was my impression when I looked at it.

MR HIDDEN:  Your Honours, I am sorry, I cannot explain that.

MASON CJ: Yes, well it is dated 4 October 1991, and we do

not know from the papers what ground 2 was in the

notice of appeal filed on 12 October 1991.

TOOHEY J: In any event, the outline of argument is

restricted to the question of identification, so we

are not concerned with the fresh evidence point.

Domican(2)	2	12/12/91
MR HIDDEN:	Yes, that is so, Your Honour.	May I say,

Your Honours, I am unable to explain that

situation, but it was certainly our understanding

that the draft notice of appeal filed ab initio was

in the form of the one which bears the date

4 October 1991, and that it was, indeed, the second

ground of that draft notice in respect of which

this Court granted special leave.

MASON CJ: Yes, the only mistake then was in not excising

ground 3.

MR HIDDEN:  Yes.

DAWSON J: But you do not intend to argue ground 3?

MR HIDDEN:  No, Your Honour. Your Honours, the appellant

was found guilty by a jury of shooting at a man

called Christopher Flannery with intent to murder

him. The evidence is summarized in the judgment of

the Court of Criminal Appeal commencing at page 224
of the appeal book.

Suffice it to say, Your Honours, the evidence

against the appellant fell into three categories:

one was the evidence of an alleged accomplice, a

man named P .... - perhaps I should say,

Your Honour, publication of whose name was

suppressed during the trial proceedings. Another

was the evidence of two prisoners, in particular,

one Frederick Glen Many, corroborated by one

Eric Harold Heuston, as to admission said to have

been made to them by the appellant whilst in

custody awaiting trial on this matter.

The third strand of the Crown case was

identification of the appellant as the shooter, and

that primarily rested upon the evidence of

Mrs Kathleen Flannery, the wife of the alleged

victim, although there was some other evidence of

sightings of the appellant a little before the

which it was said lent support to her evidence of occasion in question and on a few occasions after identification.

Your Honours, it is perhaps sufficient by way

of factual background to say this:  Mrs Flannery's

evidence was that she and her husband, who,

incidentally, has since disappeared, returned to

their home in Arncliffe in the early evening of

27 January 1985. On their driveway there was

already a car parked. They drove the vehicle they

were in on to the driveway behind the other

vehicle. They alighted from the vehicle and,

according to her, as they did a green car pulled up
outside their home on the street and there was a

hale of bullets. Mr Flannery immediately pushed

Domican(2) 12/12/91

Mrs Flannery down behind the car in which they had been for her protection, and she said she saw one

of the bullets penetrate his hand as he did so.

She said, as I understand it, Your Honours, after

the fusillade of bullets she briefly raised herself

so as to look across the car in which they had been

to the vehicle in which the shooter was, and she
said she saw a man who was actually in the driver's
seat of that vehicle, being the side of the vehicle

furthest from her, who apparently was trying to

remove the magazine of the weapon, perhaps to
reload it.

On any view of it, it was a brief sighting,

although she said she looked at him. The man she

said appeared to have a wig and a false moustache. The car then drove off and she saw no other person in the car.

Now, Your Honours, it was the Crown case,

through the evidence of the accomplice witness,

that there had been a plot to kill Mr Flannery for

reasons which remain obscure and that, indeed, this

appellant was to do the shooting and he was to

disguise himself by way of a wig and false

moustache.

Mrs Flannery did not, at the time, know the

appellant. Now, she said that on a couple of

subsequent occasions, separated by a period of some

weeks after the shooting, she saw a man whom she

later said was the appellant undisguised in the

vicinity of her home, on one occasion in a milk

truck - driving a milk truck - on another occasion

in an orange Falcon motor vehicle, and it seems

that in April of that year she saw a series of

television programmes on the Mike Willesee show in

which there was reproduced BBC panorama interviews

with the appellant which, presumably, had been

recorded some time before.

She said, at that time, she recognized the man

in the television programmes as the man who had

fired the rifle on the occasion in question and

whom she had subsequently seen on a couple of

occasions, and she said she was then of course able

to name him. However, she did not name him to the

police until very much later, September or it may

have been October, I am not quite sure,

Your Honours, 1985. In the meantime she had made a

number of statements to the police in which she had

mentioned the appellant by name in other contexts but had referred to the shooting in such a way as to suggest that she could not identify the man who

had had the rifle.

Domican(2) 4 12/12/91

Her explanation for that was, not that she was

not able to identify the man but that she was

afraid to, and she said what finally led her to
name him was an incident, apparently late in

August 1985, when a bomb was found under her car, and apparently for reasons which do not appear from

the evidence she believed the appellant to be

associated with that and that finally led her to

name him and, indeed, she did so and police showed
her a series of photographs, including one of the

appellant, on which a police artist had sketched a

wig and a moustache, as he had on a number of the

other photos in the folder, and she identified that

photograph.

Now, Your Honours, it is common ground that

the appellant at the time of the shooting owned a

green car, in fact it was a Mazda coupe - a

Mazda 121. He, it seems, on the day after the

shooting rang Newtown police to say that that car

had been stolen a few days before, and that was

common ground.	The Crown, of course, said that was
a sham;	the appellant said it was genuine. A

number of residents in the street where the
shooting took place saw a green car drive away; one

said quickly, others said not particularly quickly.

One witness said he believed it was a Mazda - it

was a young witness who apparently knew something

about cars. The son of Mrs Flannery, Peter

Flannery, gave evidence of seeing the appellant in

a green car in the vicinity of their home a couple

of days before the shooting and, as I have said,

Your Honours, there was evidence from Mrs Flannery

herself of having seen the appellant undisguised on a couple of subsequent occasions in the vicinity of her home in different vehicles, and on one occasion her mother, Mrs Jones, was with her and she said

that she also saw the appellant, on this occasion,

in the orange Falcon.

Both the mother, Mrs Jones, and the son,

Peter Flannery, also said that they were able to

put a name on the man they had seen because of the

television programmes. Be that as it may,

Your Honours, we would submit that the

identification of the appellant by Mrs Flannery as
the man who was the shooter on the day, given all

the circumstances, was about as dangerous as one

can imagine.

BRENNAN J: Did the appellant get his green car back?

MR HIDDEN:  I do not think so, Your Honour. I do not think

there is any evidence about that. I believe he did

not, but I think the evidence is silent on that.

There is simply no evidence one way or the other.

Domican(2) 5 12/12/91

Your Honours, the learned trial judge, in the course of summing up, gave his directions on the

identification evidence commencing at page 138 of

the appeal book. His Honour gave the customary

general directions about identification evidence,

in particular the real risk of mistaken

identification, the fact that honest and forthright

witnesses can be wrong. At page 139 His Honour

enumerated the sort of matters that one would

always look at in determining the weight of

identification evidence - they are enumerated 1, 2,

3, 4 there - the circumstances of the original

sighting and the circumstances of the subsequent

identification, and the lapse of time between.

His Honour then went on to give some examples

of situations in which identification might be very

dangerous and another in which it might be quite

safe because of long opportunity to observe the

offender. His Honour, at page 142 of the appeal

book, referred to:

Sudden and unexpected acts of violence

such as Mrs Flannery described -

and he went on to say that the terror caused by

such an event might sharpen the observation of

some, but blunt the observation of others.

In effect, Your Honours, from there to

page 144, His Honour adds little by way of

directions concerning the identification evidence.

On a couple of subsequent occasions, Your Honours,

which we will turn to if necessary, His Honour

referred again to the identification evidence but
simply to recount some of the submissions of

counsel for the appellant to the jury. It must be

said, Your Honours, that no further direction by

counsel was sought.

The complaint before the Court of Criminal Appeal, Your Honours, was that those directions
were, as a whole, inadequate.	The Court of

Criminal Appeal, in the leading judgment of the learned President, Mr Justice Kirby, dealt with

that ground commencing at page 254 of the appeal

book. At page 255, at about line 23, His Honour

enumerated the matters to which it was said

His Honour should have made specific reference by

way of warning to the jury, the first being:

The limited opportunity which Mrs Flannery had

to observe and identify the offender.

His Honour fleshed out some of the details of that.

The second being the time which she had to observe

the offender. I think the first, Your Honours,

Domican(2) 6 12/12/91

related more to Mrs Flannery's position rather than

to the length of time. The second was the time.

The third was the stress under which she must have

been at the time of observation.

The fourth, which is at the bottom of page 256, was that when first describing the event, she

wrongly described the car she had seen as a green

Jaguar rather than a Mazda. Your Honours, there

was evidence that she was familiar with Jaguars.

On the Crown case, it certainly was not a Jaguar;

it had to be a Mazda. His Honour went on - the

fifth point was that in her earlier statements,
Mrs Flannery made no reference to the fact that the
shooter had apparently a false wig and moustache.

That was conveyed by her to police at a later

stage.

The sixth matter was the delay in making the

identification. It becomes clear there, it was not

until 7 October 1985 that she made a formal

statement to the police identifying the appellant.

And, as His Honour said:

The seventh point was in the meantime, she had made a number of statements the effect of

which was that she could not identify the

shooter -

and, of course, she proffered her explanation for

that in evidence in the trial.

The eighth was a minor complaint concerning

her eyesight which does not carry any great weight.

The ninth, Your Honours, at page 259 may require a

little explanation, that is:

There was some evidence of an incorrect

identification of the appellant and false

sightings of him when he was said to be

running at a time when it was later

established that his leg was in plaster. This

identification was later withdrawn.

Your Honours, that was a reference to evidence of

Mrs Flannery which appears at pages 72 to 77 of the

application book, which was to this effect: it

seems that on a number of occasions in statements

to the police she had said that she had seen the

appellant yet again in September 1985 on foot with

another man outside her home, and that she had seen

the men run away and was able to recognize the

appellant as one of them.

In the trial she did not adhere to that

positive identification, and it would seem for the

first time said, "I am not 100 per cent sure it was

Domican(2) 7 12/12/91

Mr Domican." Now, there was evidence from the

appellant in the trial that at the time of which

she was speaking, he had injured his leg and his

leg was in plaster and he was incapable of running

anywhere. That is basically what the ninth point

was about.

The tenth point, Your Honours, was also the

fact that there was no suggestion that Mr Flannery

himself had ever identified the appellant as his
assailant; of course, by the time Mr Flannery
disappeared, it seems in May of that year, and was
long gone by the time the trial came on for

hearing.

Now, the court went on, Your Honours, at

page 259 to say:

It should be said at once that it would have been desirable for the foregoing matters

to be drawn by the trial judge to the

attention of the jury. His Honour was not

helped in that regard by counsel then

appearing for the appellant at the trial.	Not
a single application was made for a
redirection based upon any suggested
inadequacy of the warnings about
identification evidence.

The court then goes on to deal with a number of

authorities to which we will return, Your Honours,

and at page 262 concluded this at line 3:

The case is a border-line one. The

instruction given to the jury by Roden J falls

short of the standard required by Allen and

Finn -

New South Wales cases to which we will turn,

Your Honours.

However, there are a number of reasons why I	do not consider that the intervention of the
Court is required on this ground. Numerous
cases say that it is essential to evaluate the
adequacy of the warnings given in the context
of the evidence in the particular case.

His Honour then refers to Dickson and Allen to

which we will shortly refer. His Honour says:

There is no rigid, settled, absolute or

binding formula, default in the observance of

which will necessarily require that the

verdict be quashed.

A little later His Honour said:

Domican(2) 12/12/91

Most important, in this case, unlike many

others (eg Finn) the identification by

Mrs Flannery and her mother (which have been

the principal targets of the present attack)
do not stand alone in linking the appellant to

the crime.

And His Honour refers to the various other

sightings of the appellant at different times, to

the evidence of the accomplice, and as His Honour

says -

and, for what it is worth, the evidence of the

two prisoners, Many and Heuston.

Now, Your Honours, the effect of the judgment

appears to be that the directions on identification

did fall short of the high standard which the
authorities require, but no complaint could be made
of that in the light of the strength of the rest of

the case against the appellant. It is primarily in

that that we respectfully submit the court fell

into error.

It is probably necessary first, though,

Your Honours, to deal with some of the authorities

in this country and in England concerning

directions about identification evidence. The

matter has not been dealt with in any detailed way,

to our knowledge, by this Court before. As

Your Honours would know, the significant case of

Davies and Cody v R, (1937) 57 CLR 170, to which I

do not think we need specifically turn,

Your Honours, was one in which this Court set aside

a conviction and ordered a new trial precisely

because a trial judge had failed to give an

adequate warning concerning a form of

identification which was extremely dangerous.

In Kelleher v Reg, which was a substantial

case dealing with a number of matters,

Mr Justice Gibbs, as he then was, spoke generally

about the need for identification directions at

page 551.

BRENNAN J: What volume?

MR HIDDEN:  I am sorry, Your Honours, 131 CLR 550, at

page 551. After some discussion about

identification directions and a reference to

English authority, His Honour says, at about

point 5:

However, it seems to me that although it is

perfectly true that the adequacy of a summing
up can only be decided in the light of the

circumstances of the particular case, and that

Domican(2) 9 12/12/91

where a warning is necessary no particular

form of words is required, it is in practice

generally desirable that where the case for the prosecution includes evidence of visual

identification by a person previously

unfamiliar with the accused, an appropriate

warning should be given to the jury, since
jurors may not appreciate as fully as a judge

may do, or even at all, the serious risk that

always exists that evidence of that kind may

be mistaken. The failure to give an adequate

warning where one is required may have the

result that the conviction must be quashed - a

course that has been taken in a number of

recent cases -

and His Honour there refers to a number of

authorities, and continues:

If a warning is necessary, the duty to give it

will not be satisfactorily discharged by the

perfunctory or half-hearted repetition of a

formula, and a warning in general terms will

not alone be sufficient; the jury should be

given careful guidance as to the circumstances

of the particular case, and their attention

should be drawn to any weaknesses in the

identification evidence.

It is on that passage in particular, Your Honours,

that we rely.

Your Honours, much more recently - in a case

which is not on our list, but may we hand up copies

to Your Honours - this Court referred in passing

but significantly to identification directions in

Smith v Reg, (1990) 64 ALJR 588.

Your Honours, that was the case in which this

Court held that expert evidence concerning the

susceptibility of human beings to error in making

identification was inadmissible. But the effect of

this Court's judgment was that it is inadmissible

precisely because the matter is adequately covered

by judicial direction. And the Court said, towards

the bottom of the first column:

As Hampel J pointed out in the Victorian

Court of Criminal Appeal in the present case,
an important safeguard and the most effective

method of bringing to the attention of jurors

the inherent dangers and problems in

identification evidence is a thorough

explanation and direction by the trial judge

as to the nature of such evidence generally,

and as to the factors which may affect the

Domican(2) 10 12/12/91

consideration of such evidence in the circumstances of the particular case.

Your Honours, if we might turn shortly to some

English authority. The classic English case, of

course, remains: Reg v Turnbull and Another,

(1977) 1 QB 224. It was in the course of that

directions that ought be given in every case involving identification evidence. Those

case, Your Honours, that the English Court of general

directions, which are familiar, appear at page 228

of the report, just below C, starting with the

words:

First, whenever the case against an

accused depends wholly or substantially on the

correctness of one or more identifications of

the accused which the defence alleges to be

mistaken -

pausing there, Your Honours, to that opening clause

we will return -

the judge should warn the jury of the special

need for caution -

and, basically, the court there details the

standard directions that are given concerning the

real possibility of mistake, the fact that honest

and forthright witnesses may yet be mistaken.	And
just below G, the court says -

Finally, he -

that is, the judge -

should remind the jury of any specific

weaknesses which had appeared in the

identification evidence.

Your Honours, the Privy Council in England

considered Turnbull recently in Reid and Other v

Reg, (1990) 1 AC 363. These were, in effect, four

appeals and in respect of three of the appellants
the Privy Council set their convictions aside, they
being cases in which virtually the only evidence
against them was evidence of identification. In
respect of one, however, the man Quelch, the court
dismissed his appeal, it would seem from page 397

of the report, on the basis that, in his case,

there was evidence of a confession, which the court

believed the jury must have accepted, but it would

seem also, from the passage of the judgment around

C, that the court found that, in his case, in all

circumstances the identification directions were

adequate.

Domican(2) 11 12/12/91

I am sorry, Your Honours, page 367 details the argument which was put to the court, the court then

dealt with the general argument and at page 384

said:

Their Lordships have no hesitation in

concluding that a significant failure to
follow the guidelines laid down in Reg.

v. Turnbull will cause the conviction to be

quashed because it will have resulted in a

substantial miscarriage of justice.

And Their Lordships then went on to refer to the

particular appeals. It is perhaps noteworthy,

Your Honours, that in the course of the judgments,

Their Lordships refer to page 380 with approval, to

the Victorian case of Reg v Dickson, to which we

will shortly refer Your Honours, and at page 383

referred also with approval to the New South Wales

Court of Criminal Appeal decision in

Reg v De-Cressac, to which we will also shortly

take Your Honours.

Now, Your Honours, before turning to authority in New South Wales may we refer, briefly, to - - -

BRENNAN J:  Can I just delay you for a moment there. I do

not quite understand the line of reasoning from 383

to 384. If it is said that this is an unsafe and

unsatisfactory basis, in other words where the

court is not satisfied that an adequate warning has

been given, then the court may set it aside on the
basis that it is unsafe and unsatisfactory, would

one not have to look at the whole of the evidence

rather than the sufficiency of the direction?

MR HIDDEN:  Your Honours, in our respectful submission, no.

I mean, there may be cases in which the

identification evidence is such a small part of the

Crown case that failure to give adequate directions upon it would not escape the application of the

proviso - the common form of proviso - that there

is, none the less, in the light of the other

evidence, no substantial miscarriage of justice.

There may be such cases, Your Honour. We would

certainly submit the case at bar is not one of

them, but we would submit, subject to that, unless

the proviso can be implied because of the

tremendous weight of the other evidence in the

case, it could never be said that a case in which

disputed identification evidence was a significant

part of the Crown case, and inadequate directions

were given upon it, was one in which it could be

said there was no substantial miscarriage of

justice or the verdict is not unsafe, in our

respectful submission, Your Honour.

Domican(2) 12 12/12/91

It perhaps arises out of the varying uses of

that expression, Your Honours; that the expression

"unsafe and unsatisfactory" has been used simply to

refer to the proposition that the verdict is

against the weight of the evidence, but more recent

authority seems to have expanded the expression to

include deficiencies in the trial which do not,

necessarily, go to the weight of the evidence but

which cause one to have misgivings about the safety

of the verdict because of the deficiencies in the

trial. If Your Honours please.

Your Honours, in Victoria, it is perhaps convenient to refer to this line of authority

first, Your Honours, because to some extent it is

picked up or referred to in New South Wales

authority. In Reg v Burchielli, (1981) VR 611, the

Victorian Full Court dealt with identification

directions, commencing at page 616 of the report.

That was a case in which the court was of the view

that the identification evidence was, in many

respects, unsatisfactory, and at page 616, at

line 41, the court said:

The situation which faced the learned Judge

when summing up to the jury was thus one

calling for a particularly strong warning as

to the dangers lurking in the evidence, to use

a phrase used by Winneke, C.J. in R.

v. Boardman. It may be useful to state again

briefly why it is necessary to give a jury a

particular warning in cases raising problems

of identification.

Now, their Honours then go on to refer to the Irish

case of the People v Casey. On the next page to

Turnbull, on the next page to Arthurs

v Attorney-General for Northern Ireland, and on the
next page to the decision of this Court in

Kelleher.

The court then considered, at page 620, the

direction actually given by the trial judge in the

case of Hand, and went on, at the bottom of

page 620, to specify the matters which the court

held were not adequately explained to the jury.

These were, in this case, Your Honours, largely

matters of a general nature concerning

identification evidence and, in particular,

identification from police photographs, which was

part of the evidence in that case. And

particularly, Your Honours, at page 621 at line 12,

Their Honours said this:

Further in pointing out to the jury the

considerations which might affect the
correctness of a witness's identification of

Domican(2) 13 12/12/91

the applicant his Honour expressed those

considerations as comments of his own which

the jury might use or reject as they thought

fit rather than as questions that they should

positively consider. In other words, to use a

phrase taken from Davies and Cody v R, his

Honour did not give the weight of his judicial

authority to those considerations.

Your Honours, the matter was raised again in

Reg v Clune, (1982) VR 1 at page 6. In the last

complete paragraph, the Fill Court said:

There has been a number of recent cases

that deal with the nature of the caution

obliged to be given to the jury, when

identification of an accused is a significant

factor in the prosecutions's evidence. The

latest is R v Burchielli. That case states

again the circumstances in which a warning

concerning the dangers inherent in

identification evidence should be given and is

a useful repository of citations from a number

of recent leading authorities. I would also

particularly refer to the decision of the

Court in R v Preston. Despite its comparative

antiquity it remains a most valuable guide to
a judge's obligations in relation to

directions concerning identification evidence.

What precisely it is that the jury should be

told must depend upon the circumstances of the

particular case. Moreover, it is not

necessary that a set formula be followed.

DAWSON J: The next sentence perhaps you should read.

MR HIDDEN:  Yes, the next sentence is of some importance,

Your Honours, and to this we will refer. At the

top of page 7:

The strength of the warning to be given

will depend in large measure upon the extent

to which the Crown case rests for its proof

upon the identification evidence. In the

present case the Crown relied, no doubt

strongly, upon proof of possession by the

applicant of certain of the stolen property.

That evidence standing alone would be

insufficient to sustain a conviction of armed

robbery, but it would, if accepted by the

jury, tend to render more probable the

accuracy of Mrs Carter's identifications.

Their Honours go on to say:

However, as the fact remains that, without

their accepting the identification evidence

Domican(2) 14 12/12/91

the jury could not have convicted of armed

robbery, it was, I think, incumbent upon the

Judge to have given the jury a warning that

was both strong and complete. This, in my

opinion, he did not do.

Their Honours go on to deal with the particular defects perceived in that case and, at page 8,

towards the middle of the page, Their Honours say:

Finally, it would now appear to be

appropriate that the jury not only be told

that honest mistakes in identification of

offenders have occurred in the past but that the purpose in so informing the jury is that

knowledge of such mistakes arises from

judicial experience and so is probably not one

shared by the jury.

Your Honours, in Reg v Dickson, (1983) VR 227,

the matter arose again. This again was a case in

which the identification evidence loomed large. At

page 230, the court said, towards the middle of the

page:

This was a case in which it was of great

importance in the interests of justice, that a

cogent and effective warning be given to the

jury warning them of the actual dangers that

lurked in the evidence in the case.

A little later Their Honours went on:

It is made clear by Burchielli's Case and

the cases on which it is based, that what is

an adequate warning depends on the

circumstances of the particular case. Judges' charges in criminal trials ought not to be the places for the compulsory recitation of

formulae. What is required is that the trial

judge in words which he chooses and in a form

which he considers proper, gives his own

authoritative warning as the judge,

effectively warning the jury that particular

dangers exist in the evidence before them, by

identifying, explaining and bringing home to

the jury those dangers.

At page 231, at line 8, the court said:

It is difficult to convey to the jury the

reality of particular dangers which exist in

the evidence without drawing to the attention

of the jury two things which they are unlikely

to know. The first is that experience in the

courts over the years has shown that in a not

insignificant number of cases erroneous

Domican(2) 15 12/12/91

identification evidence by apparently honest

witnesses has led to wrong convictions. For

this knowledge the judge draws largely on

accumulated judicial experience.

Again, Your Honours, in Dickson, the directions

were considered to be inadequate.

Your Honours, finally, in our review of Victorian authority, may we take Your Honours to

Reg v Hentschel, reported in - - -

TOOHEY J: 

Mr Hidden, just before you do, where are these

cases taking us? The principles are well
established and are recognized by the Court of

Appeal.

MR HIDDEN: 

That is so, Your Honour. They are taking us to

this, Your Honour, that what is now well

established is that identification evidence is

fraught with dangers with which lawyers are
familiar but lay people probably are not, and for
that reason juries must be warned in general terms
of the dangers of identification, in particular

warnings that miscarriages of justice have occurred

and honest and forthright witnesses may yet be

mistaken.

TOOHEY J: Is that the complaint about the direction in this

case, that the jury was not warned in general

terms, or that it was not warned in specific terms?

MR HIDDEN:  No, it is not, Your Honour. The primary

complaint is that, in our submission, the

authorities also say that a warning in general

terms is not enough. The judge must identify the particular problems raised by the evidence in the

case at hand and not merely recite them as

submissions of counsel, but point to the dangers

which he or she perceives in the evidence, giving

his or her judicial authority to them, that is to

the fact that the dangers are there.

That is primarily what this case is about,

Your Honours, and in our submission that was not done here, and indeed the Court of Criminal Appeal

seems to have said as much. Your Honours,

Hentschel, (1988) VR 362, was primarily a voice

identification case, and that is largely what the

decision was about. In the dissenting judgment of

Mr Justice Hampel, His Honour enunciated some

general principles which, while his judgment was

dissenting, are not in doubt.

MASON CJ:  Mr Hidden, could I interrupt you? I had thought

that the basis for granting special leave in this

case, or one of the bases of granting special leave

Domican(2) 16 12/12/91

in this case, was that there was some kind of

conflict of authority as between courts of the

States.	So far I have seen no indication of any
conflict of principle at all.	The cases seem to be
uniform.

MR HIDDEN:	I think the truth is, Your Honour, that they end up that way, yes. There is some apparent conflict
between Victorian and New South Wales authorities
in the earlier New South Wales authorities, but it
does seem that by the time we get to Finn, which is
perhaps the major recent New South Wales authority
on the point, there is no tension.
MASON CJ:	You are not suggesting that it is necessary for

us to settle a question of important principle in

this case?

MR HIDDEN:  We are, Your Honours, but it may not be that

one. The question of important principle which we

submit this Court ought settle is the question

whether the strength of identification directions

varies according to the presence or absence of

other evidence implicating the accused in the case.

McHUGH J: But was not special leave granted on the basis

that perhaps Finn and Dickson went too far, and it

was said that in Victoria in Vincec's case that

there had been some cutting back of Dickson and

Burchielli?

MR HIDDEN:  Yes.

TOOHEY J: But how would that be relevant to a grant of

special leave here because the Court of Criminal

Appeal in this particular case took Finn and Allen

as the yardstick.

MR HIDDEN: Yes, that is so.

TOOHEY J:  If there were Victorian cases that cut back those

principles, there is nothing in the judgment of the

Court of Criminal Appeal that suggests that the

court thought that any regard should be had to

those other cases.

MR HIDDEN: Yes, that is so, Your Honour. In answer to

Your Honour Mr Justice McHugh, my reading of the

transcript of the special leave application - my

learned junior was there - was that the other

question to which I have referred was of

considerable interest to the Court, that is, the

suggestion that the strength of identification

directions might vary according to the weight of
other evidence in the case tending to implicate the

accused. It certainly appeared from the course of

argument, Your Honour, to be a matter - - -

Domican(2) 17 12/12/91

TOOHEY J: That is a self-evident proposition, is it not?

MR HIDDEN:	I hope so, Your Honour.
TOOHEY J:	I mean you could see that
MR HIDDEN:	It certainly is the one for which we contend.

TOOHEY J: Well, in the sense that identification evidence

might be slight, but there might be just an

overwhelming body of evidence that places the

accused at the scene.

MR HIDDEN:	I am sorry, Your Honour, I - - -
DAWSON J:	You are contending the opposite, are you not?
MR HIDDEN:	Yes, I am contending the opposite, Your Honour.

I misunderstood Your Honour's question.	Well,
Your Honour, not necessarily.	We would submit that

in any case in which identification evidence is a

significant part of the Crown case, then full and
proper directions must be given. Without them, the

jury is unable to properly evaluate that evidence,

and in such a case we cannot know what might

influence the jury's decision.

Of course, Your Honours, this is a classic

case. Here you have three strands of evidence:

one, an indemnified accomplice whose credit and

character was heavily under attack;
another, admissions alleged to have been made to fellow prisoners. Their credibility was heavily

under attack. The third strand was the

identification by Mrs Flannery of the appellant as

the shooter. Now, whatever much weight one might

give to the other two strands, you could never say
that the third strand was not a significant part of

the Crown case, and we will never know what caused

the jury's verdict. It may have been all three.

It may have been any combination of the three.	It
may be that they rejected the evidence of the

criminals and relied on Mrs Flannery's

identification.

TOOHEY J: Yes, I understand that argument in relation to

the facts of the case, but I thought you were

enunciating some principle a few minutes ago that

suggested that inadequacies in identification

evidence could never be made up by evidence of a
different sort implicating the accused in the

offence.

MR HIDDEN:  I am sorry, Your Honour. I expressed myself

poorly. Clearly, as a matter of fact, that might be so, as a matter of common sense. A jury might

have its doubt about identification evidence or

Domican(2) 18 12/12/91

might consider an identification on its face

unreliable, but in the light of other evidence in

the case also tending to implicate the accused,

might be more inclined to accept the identification

evidence.	As a matter of fact and as a matter of
common sense that is impeccable.	But what is

essential, we would submit, is that before they do

that, they know with the weight of judicial
authority all the dangers of the identification

evidence, general and specific to the case. They

cannot assess the identification evidence without

the appropriate warning.

BRENNAN J: But at the end of the day here, granted your

three strands argument, what you are asking this

Court to do is to say, having regard to the nature
of the evidence here, the particular direction

given by the trial judge, though it canvassed the
general propositions, was not sufficiently

particular.

MR HIDDEN: Correct, Your Honour, yes.

BRENNAN J: That is a big step for an ultimate Court of

Appeal to be looking over the shoulders of trial

judges, telling them what to say in particular

cases.

MR HIDDEN:  Your Honour, it is a little more than that, with

respect. I mean, the Court of Criminal Appeal so

held that the directions in all the circumstances

were not adequate and did not meet the standards set down by the recent cases in New South Wales.

But, what the Court of Criminal Appeal seems to

say, however - the court did not apply the proviso, and in this case it could not have. What the court

said was, the duty to meet those standards is

lessened, is not the same, when there is other

evidence in the case, apart from the identification
evidence, tending to implicate the accused. That,

we would submit, Your Honour, is a serious error

which requires this Court's correction.

It might be appropriate, Your Honours, if we

take Your Honours directly to the authority on that

point alone. We have already referred

Your Honours - it is necessary in this context,

Your Honours, to go to the South Australian

decision of Bartels, but perhaps before we do - the

source of the error, Your Honours, may be the fact

that in most of the major identification cases

identification evidence has been the whole, or

almost the whole, of the Crown case. It is in that

context that the Court of Appeal in Turnbull, at

page 228, said in the passage to which I earlier

referred, prefaced his remarks about identification

directions by saying:

Domican(2) 19 12/12/91

whenever the case against an accused depends
wholly or substantially on the correctness of

one or more identifications of the accused which the defence alleges to be mistaken -

they are the words which prefaced what then fell

from the Court of Appeal about identification

directions.

Likewise, in the passage from the Victorian Full Court in Clune, at page 7, Their Honours say:

The strength of the warning to be given will

depend in large measure upon the extent to

which the Crown case rests for its proof upon

the identification evidence.

McHUGH J:  The trial judge's directions in this case were

not perfunctory, they were very detailed. They

run over six pages, between 138 and 144, in terms

of identification.

MR HIDDEN: But, with respect, Your Honour, nearly all

general stuff.

McHUGH J: That is true, but I thought it was the point that

was made on the special leave application that

cases like Burchielli and Finn required that the

judge point to the specific weaknesses, and that

was what you were relying on when you were saying

that the Court of Appeal was wrong for that

reason.

MR HIDDEN: With respect, Your Honour, I do not think that

was quite the case. The Court of Appeal did say

that His Honour should have done that, and did not,

but it did not matter because of the other evidence

in the case. As I understand it, Your Honour, that

was the thrust of the special leave application,

and the point that was principally being made.

DAWSON J:  You would contest the proposition that you

evaluate the adequacy of the warning in the context
of the evidence. Is that the proposition you

dispute?

MR HIDDEN: If, by "the evidence", Your Honour means the

whole of the evidence - - -

DAWSON J: Yes, the whole of it.

MR HIDDEN:  - - - with respect, yes.

DAWSON J: That is what the Court of Appeal said, that you

evaluate the adequacy of the warnings in the

context of the evidence, and you say that is quite

wrong.

Domican(2)	20	12/12/91
MR HIDDEN:	Yes, Your Honour.	We say you evaluate the

adequacy of the warnings in context of the

identification evidence.

DAWSON J:  And you cannot supply the deficiencies in the

identification evidence by reference to other

evidence until you have identified the

deficiencies - or until the jury has - and it can

only do that with an adequate warning. That is the

way you put it?

MR HIDDEN:  Yes, Your Honour, precisely.

BRENNAN J: But if you look at pages 262 and 263 of the

Court of Appeal's judgment, there is a

consideration of the adequacy of the warning in the

context of the conduct of the trial, and that must

surely be right, must it not? I mean, if the whole

issues is, "Did you have one second or one minute

to observe the face?", and the judge says, "Well,
that is the contest here, that is all that is

necessary in such a case", and here, as the court

notes, on page 263, the attack was not on some

honest mistake that Mrs Flannery might have made;

this was a case of being said that Mrs Flannery was

putting the finger on Domican deliberately.

MR HIDDEN:  Yes. Your Honour, in our respectful

submission - I think this is also a matter that

arose in the special leave application - far from

diminishing the need for a warning, that only
increases it. True it is, the line of

cross-examination - well, to be honest,

Your Honours, it is perhaps not quite that easy to

divine from the line of cross-examination precisely

what was being put, but the implication was, as

Your Honour said, that Mrs Flannery had

subsequently heard that the appellant was involved

and was prepared falsely to identify him as the man

she had seen on the day.

DAWSON J:  So the issue is credibility, not on the issue of

identification but credibility generally.

MR HIDDEN: Yes. She certainly was cross-examined generally

as to her credibility. What is not quite clear

from the line of cross-examination, I think,

Your Honours, is whether it was being suggested

that Mrs Flannery suggested that the shooter was

the appellant, well knowing that he was not; or

whether she was not sure whether it was him or not,

had subsequently heard that it was and said, "Well,

that'll do me, I'll say it was". I find it a

little difficult to divine what the line of

cross-examination was precisely, but certainly

there was a strong element of sheer credibility in

it.

Domican(2) 21 12/12/91

DAWSON J: It was not that she did not have sufficient

opportunity to see him or anything like that, it

was that she was telling lies, for one reason or

another?

MR HIDDEN:  No, Your Honour, I do believe it was both. I

mean, clearly she was cross-examined and clearly

the counsel went to the jury on the basis that her

opportunity to observe was inadequate, but in

effect, as I understand it, the case that is being

put was that she could not have seen a thing

anyway, in the time available and in the stress of

the event. So she really could not have seen who

the assailant was and could not have made any

proper identification. Subsequently she has heard

it was the appellant, so she has been prepared to

say that it was indeed him who she saw.	So it is a
combination of unreliability and lack of
credibility, lack of honesty.

BRENNAN J: But you can see readily, can you not, in the

conduct of a case like this, why counsel for

defence would not have wanted any redirection along

the lines of honest but mistaken identification?

MR HIDDEN: That may be so, Your Honour, but as I have said,

counsel does not appear to have abandoned the

submission that even if she is honest, she is

wrong, but, Your Honour, in our respectful

submission, the very fact that it did turn, to some

extent at least, into a credibility issue in the

sense of an honesty issue, heightens the need for

the warning.

It was all the more incumbent upon the judge

to say to the jury, "Look, frankly counsel says

you'll think this woman is a liar, but if you don't

think that, you've still got to assess - if you

accept her as an honest witness, you've still got

to assess whether she's accurate. Counsel hasn't

said very much about that, but I'm going to tell

you about it". It heightens the need for the

classic warning rather than diminishes it, in our

submission.

Your Honours, on this question of the significance of other evidence in the case and the

effect it might have upon the warning, may we take

Your Honours to two recent cases: firstly, in New
South Wales, Reg v Bigeni, 47 A Crim R 363.

Your Honours, in that case the leading judgment was

given by the learned President who had himself

given the leading judgment in Finn, in which case -

that is in Finn - Mr Justice Kirby had spoken about

the need to give identification directions with a

high degree of specificity.

Domican(2) 22 12/12/91

It is sufficient to say that in Bigeni's case,

Your Honours, a ground of appeal that an inadequate

identification warning was given failed, but when

one looks at the facts of Bigeni, one can see why.

What seems to have been the case with Bigeni was

that it was common ground that Bigeni and his

companions were at the scene where the crime

occurred. It was a rape by a number of men. The

only question was:  who assaulted her? That is,

how many of the men and which ones of them it was.

There is no doubt that Bigeni was there with the

other men.

It would seem, Your Honours, that the question of identification really came up pretty much as an

afterthought, and a direction was sought and a

rather perfunctory one given.	It was not really a
case in which identification was in issue.	It was

not suggested that Bigeni was not there or that the woman had not seen him on the occasion in question.

Her case really was in effect by a process of

elimination:  "The man who did X to me must have

been Bigeni, because it wasn't the others, and
Bigeni was there".

But it is in that context that the general proposition enunciated by Mr Justice Kirby must be

read. That general proposition appears at the

bottom of page 372 where, after reference to a

number of authorities, His Honour said:

The adequacy of the judge's instruction on

identification must be considered in the light

of all of the evidence, the issues in contest
at the trial and especially the strengths or

weakness of the other evidence linking the

accused to the crime. Thus, a different

obligation exists where the identification

evidence stands alone, than where other direct

or circumstantial evidence strongly supports

the jury's verdict.

Your Honours, with great respect, we submit that

that proposition goes too far. His Honour did not

need to go so far to justify the court's decision

in Bigeni, because the reality in Bigeni was that

identification was not an issue in the case. In

our respectful submission, that general proposition

of His Honour must not be allowed to stand.

May we take Your Honours then to Reg

v Bartels, a decision of the Supreme Court of South

Australia, (1986) 44 SASR 260. Now, again,

Your Honours, this was a case where the court held

that in all the circumstances adequate

identification directions had been given and that, indeed, in one particular complaint about certain

Domican(2) 23 12/12/91

identification evidence it could not be classified

as identification evidence at all. But the

important statements of principle, Your Honour,

appear, firstly, in the judgment of

Mr Justice Johnston, commencing at page 270 of the

report, His Honour referred to the earlier decision

of that court in Reg v Goode, and at about point 3

extracted a passage from that decision which reads:

"It may not be possible to deduce from them any more detailed principle than this -

that where a vital part of the case for the

prosecution depends on the identification of

an accused person who displays on sight no

extraordinary and peculiar characteristics by

witnesses who have never seen him before, the
circumstances of the case may make it

necessary that an appropriate warning be given

about the dangers of such evidence, and that

the mere fact that there is incriminating

evidence additional to that of the identifying

witness or witnesses does not necessarily

dispense with the need for such a warning."

Now, His Honour goes on to say"

In R v Evans, King CJ ..... referred to the

warning as being applicable "where the
prosecution case depends upon the identifying

witness or witnesses wholly or to a

substantial degree".

Your Honours will notice much the same words as were used by the Court of Appeal in Turnbull and

repeated by the Privy Council in Reid, but

His Honour then went on to consider the words of

Mr Justice Wells in Reg v Easom.	In that case
Mr Justice Wells said:

"Whenever a case depends wholly or to

some degree upon a claim or claims by any one

or more witnesses that a particular person was

present at a time and place -

he goes on to say appropriate warnings should be

given. And His Honour noted that:

Those remarks of Wells J were described by

Mitchell ACJ ..... as a "classical summary of

the duty of a trial judge where identification

is an issue".

Now, at page 271, Mr Justice Johnston went on to

say:

In my view the formulation of Wells J. is

to be preferred.

Domican(2) 24 12/12/91

A little later, His Honour said:

In a given case the Crown relies on

evidence of identification or it does not. If it does its case may, in the words of Wells J.

depend "wholly or to some degree upon a claim

or claims by any one or more witnesses that a

particular person was present at a time and

place". But whether the Crown presents only

that evidence or additional evidence it is

relying on that evidence. If that particular

evidence of identification is of the sort that

calls for a warning (that is, made by a

witness to whom the person being identified

was not known, particularly where the

opportunities for observation are not good or

the conditions present difficulties, or the

person was seen for only a short time, or the

moment was highly charged emotionally to

mention some matters of importance), then in

my view the warning is necessary and should be

given.

TOOHEY J: But in all these cases, Mr Hidden, it is really a

matter of emphasis, is it not? The principle does

not seem to be at issue at all. If the statement

by Mr Justice Wells, at least on the face of it,

may have been made in a situation in which there

was no other evidence and identification, one just

cannot tell from the passage that has been read.

But is there anything in these judgments that is at odds with what the Court of Criminal Appeal said in

the present case?

MR HIDDEN: Yes, Your Honour, with respect.

TOOHEY J: Could you identify it?

MR HIDDEN: Yes. Your Honour, with respect, firstly, our

submission is that the dicta of Mr Justice Wells,

adopted by Mr Justice Johnston and

Mr Justice O'Loughlin in Bartels are different, materially different, from the earlier dicta from

the English cases where they speak about "wholly or

substantially relying upon identification

evidence", and different from the general statement

of principle by Mr Justice Kirby in Bigini. It is

not just a question of degree; there is a very

important difference.

The South Australian court is saying, "It is

not a question of whether the case is wholly or

substantially an identification case; it is simply

a question of whether the Crown relies at all on

identification evidence, no matter to what extent

the Crown relies upon it or no matter to what

Domican(2) 25 12/12/91

extent identification evidence looms large in the

case as a whole. If the Crown relies on

identification evidence then the warning must be

given, no matter what the rest of the case is."

Now, that is a very important distinction, in our

submission, Your Honours.

TOOHEY J:  But that almost begs the question, does it not,

to say that the warning must be given. The next

question is, "Well, what warning?". And then you are into the area of how strong the warning ought

to be and the extent to which inadequacies in the

warning might be compensated for by other evidence

implicating the accused which takes us right back

to where we are in the present case.

MR HIDDEN:  No, Your Honour. In our submission, what the

South Australian court is saying is that

inadequacies in the warning can never be

compensated for by the other evidence in the case.

TOOHEY J:  And where is that said?

MR HIDDEN: It is inherent, Your Honours, we would submit.

Perhaps if I could take Your Honours back to the extract of Mr Wells and perhaps it should be read

in full. This is at page 270:

Whenever a case depends wholly or to some

degree upon a claim or claims by any one or

more witnesses that a particular person was

present at a time and place, and his presence

there at that time is critical in the proof of

guilt, it is necessary for a trial judge to

give careful consideration to his direction to

the jury upon the issue of identification.

Where the person identified is well-known to

the witness, no more than a few words may well

suffice. Where, however, the conditions in

which the person questioned was seen presented

difficulties to an observer, the person was	only seen a very short time, the circumstances
could well have induced heightened emotions in
the witness, or there is, in general, some
other feature in the case that casts a shadow
over the witness's mental processes of observation, retention, recollection, or recognition, care must be taken to ensure that the jury is brought to appreciate the dangers
of giving too ready an acceptance to evidence
of a later identification.

Your Honour, in our submission, those last words

necessarily import within them all the current

learning on careful warnings about identification

evidence.

Domican(2) 26 12/12/91

BRENNAN J:  It is going to end up with our having to look at

the direction here in the context of the evidence,

and saying whether or not there is something wrong

with this verdict in the light of that direction.

MR HIDDEN: 

Your Honour, of course, that must always be the

ultimate question for an appellate court: must the
verdict be set aside in the light of an inadequate

direction?

BRENNAN J: 

We have got to decide whether or not a

particular direction, in a particular case, conducted in a particular way was adequate.

MR HIDDEN:  Your Honour, the Court of Criminal Appeal has

already said it was not.

BRENNAN J:  We are not bound by what the Court of Criminal

Appeal says in that regard.

MR HIDDEN:	I appreciate that, Your Honour.
BRENNAN J:	We would have to form that view for ourselves,

would we not?

MR HIDDEN:  Yes. Your Honours, that being so, perhaps we

should continue with our review of the authorities

on identification directions generally, quite apart

from the question of the effect that other evidence

in the case may have upon them. But perhaps,

Your Honours, just before leaving that question,

might we also take Your Honours to the judgment of

Mr Justice O'Loughlin in Bartels. His Honour, also, at page 284 of the report adopts the remarks of Mr Justice Wells in Easom as correctly stating

the law.

Your Honours, the New South Wales cases, or

the major ones dealing with identification

directions, commence with Reg v Aziz,

(1982) 2 NSWLR 322. At page 328,

Mr Justice Samuels, giving the leading judgment of

the court, referred just under letter C, to

Burchielli and Dickson, and said, just above

letter D:

This Court has adopted a somewhat different

approach, by emphasizing that adequate

directions must essentially depend upon the

nature of the case in hand.

His Honour then went on to refer to a passage in

Reg v Albert, an unreported decision which

curiously, I think, Your Honours, remains
unreported despite its constant repetition, where

the court said:

Domican(2) 27 12/12/91

"It is appropriate to bear in mind at all

times that the warning that the law requires

be given in each case will vary according to

the particular circumstances of each case.

This is inherent in the statement of principle

enunciated by the High Court in the case

referred to and enunciated also by courts of

the highest authority in England. The

essential principle is that the jury must be

warned appropriately, must be warned

thoroughly, and must have the benefit of the

assistance of some discussion of the way in

which the warning and the need for caution has

to be taken into account in the light of the

particular circumstances of the case in hand.

That is as far as the requirement goes in

point of law. There is no standard of

arbitrary formula which has to be adopted in

the case of a warning so far as a particular

identification is concerned."

Now, Your Honours, in Reg v Allen, 16 A Crim R 441,

the most significant part of the judgment,

Your Honours, is from pages 444 to 445. At

page 444, towards the bottom of the page after some

reference to authority, the then Chief Justice

Sir Laurence Street said:

Within those authorities, it is plain

that there is no settled and absolute formula
that a trial judge must adopt when warning a

jury in relation to the weight they can place

upon identification evidence. Likewise, there

is no validity in the proposition that a trial

judge must in effec~ follow a check list of

specific heads of warnings to be delivered to

the jury. The question is not, in my view, to

be reduced to a formality or to a ritual of

this nature. Rather, the question is to

determine, in the light of the identification

evidence tendered, and the whole of the

context in which that identification was made,

whether the jury has been warned

appropriately, and warned thoroughly, of the

dangers which the experience of the courts

have disclosed as inhering in identification

evidence. It is necessary that the jury must

not only be warned appropriately and

thoroughly, but that they must be given

assistance in regard to the way in which the

warning of the need for caution is to be taken

into account.

These broadly-stated requirements must be

applied in the light of the particular

circumstances of each particular case. In a

situation where there has been a far from

Domican(2) 28 12/12/91

convincing context for identification, and

where there is no satisfactory basis for

feeling confident of the reliability of the

evidence in that regard, then the warning must

be detailed and explicit.

Very apt words here, in our submission,

Your Honours. His Honour says, a little later,

speaking of the adequacy of the warning:

This may at times involve attention being

directed to specific heads of the evidence,

and the raising of specific matters for the

jury's deliberation.

Your Honours, in Reg v De-Cressac,
(1985) 1 NSWLR 381, again the then Chief Justice

Sir Laurence Street deals with the principles relating to warnings to the jury.

MASON CJ:  Mr Hidden, where is all this taking us? We seem

to be wandering through all the decided cases that

deal with identification evidence and warning.

MR HIDDEN:  Your Honours, really only in so far as

Justice Brennan raised the question of this Court

for itself determining whether the warnings in this
case were adequate, we are taking Your Honours to
the authorities which deal with the degree of

specificity with which warnings should be given,

and the extent to which they must not be merely

general principles, but must be related to the

evidence in the case at hand.

BRENNAN J: There is no doubt about that proposition, is

there?

MASON CJ:  What is more, it was accepted by the Court of

Criminal Appeal.

MR HIDDEN: Yes.
MASON CJ:	The Court of Criminal Appeal conceded that the

warning did not measure up to the standards

prescribed by Allen and Finn in that respect.

MR HIDDEN:  Yes, Your Honour, that is quite so. We will say

no more about that if this Court does not feel that

it should for itself determine the adequacy of the

warnings given in this case.

BRENNAN J:  I would not like you to think that anything that

I have said to you means that it is a function that
I do not think might fall to be determined by this

Court, but the principles seem to me to be beyond

question.

Domican(2) 29 12/12/91

MR HIDDEN:  Yes. If Your Honour pleases. Well,

Your Honours, that being so, the -

DAWSON J: But the question is whether in performing that

exercise we can look at the strength at the other
evidence in the case. That is the question you are

asking, is it not?

MR HIDDEN:  Yes, precisely, Your Honours. As to that,

Your Honours, we have made our submission and we

submit that the law is correctly stated in the

South Australian decision of Bartels.

DAWSON J: Well, that is the question, is it not? Not much

more can be said about it.

MR HIDDEN:  Yes indeed, Your Honours. In our submission,

once the Crown relies upon identification evidence

the extent of the warning is entirely unaffected by
the presence and weight of other evidence

implicating the accused.

DEANE J: But that cannot be so. I mean, if the

identification evidence was the only evidence

against the accused, it would call for much greater

emphasis than if it was only one item of evidence.

It may be that there is a minimum warning that has

to be given in every case where identification

evidence is relied on, but if it were the only

evidence which would found the conviction, I would

have thought that the warning would need to be much

stronger and emphatic.

MR HIDDEN: Well, in our respectful submission, Your Honour,

no. In such a case, of course, it would obviously

be emphasized because it is the only issue. It is

the only thing that would be talked about. But

where one has a case, in our submission, where

there are strands to the prosecution case such as

this - - -

DEANE J:  We may not be at odds in that all I am suggesting

to you is that even though it may well be there is

a minimum warning necessary in every case where it

is relied on, it is simply wrong to say that that

minimum warning will not vary according to whether

it is the only evidence that could justify

conviction.

DAWSON J: Surely your point is the deficiencies or

potential deficiencies are neither more nor less,

whether it is the only evidence or if there is

other evidence.

MR HIDDEN: Precisely, Your Honour.

Domican(2) 30 12/12/91

DAWSON J: It is against the deficiencies that the warning

is directed.

MR HIDDEN:  Yes, precisely, Your Honour. In other words,

the question remains for an appellate court, quite

apart from other evidence, were the warnings

adequate given the identification evidence in the

case at hand and, in determining the adequacy of
the warning the appellate court should look only at
the identification evidence. That is the variable,

the nature of the identification evidence.

BRENNAN J:  And the conduct of the trial?

MR HIDDEN: It may be, Your Honour, although I find it

difficult to conceive of a case where it would be.

This is a classic example. The conduct of the

trial here was, obviously to some extent, a full-on

attack upon Mrs Flannery's honesty, although it

does not appear to have been entirely that.

DEANE J:  What if it were common ground that there could be

no honest mistake, that the witness was either

lying or that the identification was made?

MR HIDDEN:  If there was such a case, Your Honour, it might be different.

DEANE J: Well, this could well have been one because the

whole point of discrediting Mrs Flannery's

identification and her honesty may well have been

that carried over to her other identification and

got rid of that. I mean, it may well have been

that the most effective way of attacking her other

identification of your client was homing in on the

basis that this suggested identification just could

not have been an honest mistake.

MR HIDDEN:  Your Honour, I suppose that even if that were

the issue primarily run, the question must always

remain, if the jury considered the witness as

honest, is he or she none the less accurate? That
question can never be disposed of, even if there

were a head-on attack of that nature.

DEANE J: But it may go to the importance of the direction

or the extent to which it needed to be dealt with.

MR HIDDEN: Well, suffice to say, Your Honour, it will

remain our submission that, given that the accuracy

of the witness's evidence must remain in issue,

then the warning must be adequate to warn the jury

of the dangers of mistake in the case at hand.

Now, that is what we submit is not the case here.

Your Honours, really, that is the thrust of

our submissions. It should also be pointed out, we

Domican(2) 31 12/12/91

are mindful of the fact that the notice of appeal

as drawn seeks only an order that the conviction be

quashed and a new trial ordered. Notwithstanding

that, we would ask Your Honours to hear us, if it

is appropriate now, on the question whether, if the

Court is of the view the conviction should be set

aside, a new trial should be ordered.

That could be dealt with very briefly,

Your Honours, and is referred to in our outline.

We would submit that if the Court is of the view

that the conviction should be set aside, the Court

should exercise its discretion not to order a new

trial for two reasons. The first is the nature of

the other evidence in the case. Firstly, the

obvious danger, unreliability of the identification

evidence.

The nature of the other evidence in the case,

consisting as it does of the evidence of an

indemnified accomplice and of two prisoners, one of

whose credibility is very much more in doubt now

because of certain evidence led about him - - -

DEANE J: But, Mr Hidden, if we were to uphold the appeal

and order a new trial, it does not mean that there

will be a new trial.

MR HIDDEN:  I appreciate that, Your Honour.

DEANE J: Before we decided not to order a new trial in the

event that the appeal were upheld, and if an order for a new trial were asked in that event, would we not have to read the whole of the transcript?

MR HIDDEN: Yes, that is the difficulty, Your Honours.

Your Honours do not have the rest of the

transcript. As to the evidence.which is summarized

with the witnesses, Many and Heuston, Your Honours

could acquaint yourselves with the subsequent

history of that matter in the related appeal of

Reg v Drummond and Domican (No 2), (1990)

46 A Crim R 408, in particular at 414 to 419.

DEANE J: But that sounds a bit like a detective job you are

asking us to take on.

MR HIDDEN:  Your Honours, bearing in mind the decision

whether or not to order a new trial is
discretionary and, to some extent, pragmatic, the

other matter upon which we rely, Your Honours, is

that the appellant was sentenced under the

pre-Sentencing Act system to penal servitude for

14 years with a non-parole period of 10 years, to

date from 24 October 1986, the date on which he was

taken into custody.

Domican(2) 32 12/12/91

His non-parole period has been redetermined as

a minimum term under the Sentencing Act and will

expire on 1 October 1992. Those are my

instructions, Your Honour.	I have not actually
calculated the figures.	Your Honours, if it is

appropriate to return to that submission, may I do

some checking of the figures. Perhaps it could be

attended to in reply if necessary. That figure may

be wrong.

Subject to correcting that matter if it be

appropriate, Your Honours, those are our

submissions, if the Court pleases.

MASON CJ: Thank you, Mr Hidden. Yes, Mr Blanch?

MR BLANCH:  May it please the Court, I hand up an outline of the Crown's submissions.

MASON CJ: Yes, Mr Blanch.

MR BLANCH:  May it please the Court. The case law has been

adverted to in the course of my friend's address to

the Court. If I might, therefore, go through that

simply by making this submission: that the law as

to identification directions is uniform throughout
the States in Australia and accords to a large

extent with the directions that are given in the

United Kingdom and Canada. The American

authorities we have referred to just by way of

contrast and, of course, it is necessary to look at

it as a contrast because of the American attitude

of the judges not intruding on the jury's function

to any great extent.

I have included the American authorities

because there is, in fact, in our submission, a

danger arising out of a tooth-comb approach to

supervision of judges summings up as, we would

submit, occurred in this case, that a body of law

may develop which would encourage intermediate

courts of appeal to go over summings up that are

given in a practical trial circumstance that would

encourage judges at trial to go into vast and,

indeed, inordinate amounts of detail which is a

factor that the President of the Court of Appeal,

in giving the judgment in this case, seemed to have

to some extent in mind. It is certainly a factor

that the Victorian court had in mind in Haidley and

Alford, the case that I have referred to, in

paragraph 4(a) dealing with the Victorian court's

attitude to these cases, as in Aziz' in New South

Wales.

In essence, we would say that on any basis of the test that would be applied in any event, the

Domican 33 12/12/91

summing up given by Mr Justice Roden, the trial

judge in this case, was detailed and very specific.

DAWSON J:  So your case is that the Court of Criminal Appeal

are just wrong in saying that, apart from the
question of other evidence, the warning was

inadequate.

MR BLANCH:  We would say that, yes, Your Honour. However,

it is difficult to make simple statements about the
fact in the context of this sort of thing because
it would be our submission that in identification

cases, as in cases dealing with whether the defence

has been adequately put to a jury, that it is not

really a question of black and white, it is a

question of assessing grades of warnings and it is necessary to look at those warnings in the context of the particular trial and whether the jury is in

a position - - -

DAWSON J:  Of course, no one disputes that, that the type of

warning is dictated by the type of identification that is in question, but what is disputed here is

that inadequacies in a warning, having regard to

the type of identification, can be supplied by the

strength of the other evidence.	What do you say
about that?

MR BLANCH: That is a submission that I would put to the

Court, that it can be, appreciating the debate that arose in the case of Bartels in South Australia.

Two cases I would refer to: firstly Turnbull.	I
think my friend has already conceded that the

classic statement in all this begins in Turnbull by

saying where the case for the Crown "depends wholly

or substantially" upon identification evidence.

And that, I think, was repeated by Mr Justice Gibbs

in this Court in Kelleher.	I would just need to
turn that up.

I am looking at Kelleher, (1974) 131 CLR 534.

Mr Justice Gibbs' judgment, the aspect of it that I	am interested in looking at, appears at the bottom
of page 550, where His Honour said:

It is therefore obviously necessary that at a

trial where the evidence implicating the

accused is evidence that he was identified by

a witness or witnesses who were not previously

acquainted with him, both judge and jury

should be constantly alert to guard against

the possibility -

and he then goes on to quote Arthurs case, and the

passage that says -

Domican(2) 34 12/12/91

"It is manifest that in cases where the

vital issue is whether the identification of

the accused person."

So, if anything can be read into those passages, His Honour was looking at cases where the

evidence implicating the accused is identification evidence or in the form it was put; and he quoted

in Arthurs case where the vital issue was
identification.

I simply wish, just as a matter of cases that actually say things about that, although of course

I would immediately concede that that is not an

issue that was raised in the context, but they are the form of words that are chosen, where the vital issue is - or in Turnbull where the whole issue or the substantial issue is - and the practical reason

that I would put to Your Honour for saying that it

is open to look at the rest of the evidence is

simply that the adequacy of the warning does need

to be evaluated in the context of the whole of the

trial and the whole of the evidence as it was given

to the jury and how the trial was conducted.

DAWSON J:  I should say, Mr Blanch, that judgment is

reserved in a case before this Court in which the
defence relied upon the misidentification of a
witness, who she said had done the shooting, and
objected to the full warning being given because

they wanted to rely on that evidence.

MR BLANCH:  Yes, Your Honour.

DAWSON J: Whether that is right or wrong I do not know, but

it is - - -

MR BLANCH: Just as to that aspect - - -

DAWSON J:  And that was done in the context of the onus of

proof.

MR BLANCH:  In this case, as to the conduct of the case, I

do not know that my friend, when he was asked,

specifically pointed to aspects of that, because it

was put to him on the basis that the case might

have been conducted purely and simply on the basis

that she is making the whole thing up. That is

partly true but partly not true, as he said, but to

note the pages where that appears: at page 55 of
the appeal book, at line 15, it was suggested to

her that she had fabricated the claim about a man

with a wig; at page 57 at line 42 it was put to

her that she had fabricated the story that it was

the accused who had fired the shot; but at page 68

at line 6 it was said:

Domican(2) 35 12/12/91

I suggest to you that your identification of

Mr Domican was a fabrication? A. No.

All the way through? A. No.

I suggest to you that you didn't even get the opportunity to see what the shooter looked

like? A. No.

Because I suggest to you that there was such a

rain of bullets that you didn't lift your head

at all, if you were there? A. I certainly did.

McHUGH J: But at 196, in his summing up, the trial judge

put it on both bases, did he not?

MR BLANCH:	Yes, and it is because of that, Your Honour, I am sure, because counsel for the defence was
obviously primarily relying on the fact that it was an invented story but, also, not abandoning the
fact that identification was relevant.

MASON CJ: Mr Blanch, we will adjourn now and resume at 2.15

pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Blanch?

MR BLANCH:  May it please the Court. It is our submission

to the Court, firstly, that the judgment of the

Court of Criminal Appeal does not identify an

error, but rather what Mr Justice Kirby is talking

about in his judgment is the fact that, on a

sliding scale, perfection had not been reached in

the directions that were given, and then of course

he needed to evaluate his assessment that

perfection had not been reached against the need to

assess whether there had been a miscarriage of

justice and, in our submission, there was nothing

wrong in him doing that, and also in adverting to

the other circumstances in the case.

The other circumstances in the case are

summarized - or the points in the Crown case were

summarized by the trial judge for the jury in

points 1 to 10 appearing at pages 194 to 196 of the

appeal book. There is somewhat more than just the

three areas that my friend referred to, although

Domican(2) 36 12/12/91

they are the three main areas, but as I say those

10 points of the Crown case are referred to there.

In so far as Mr Justice Kirby might be said to

be laying down any strict rule, or a check list of

matters that should be put to a jury, it would be

our submission that if that interpretation can be

read into what he said, then it is not correct to

say that. What the courts have always said is what

has been read out this morning, and I will not say

it again, but they are adequate warnings to suit

the circumstances of the case, and there certainly

cannot be any backsliding from that. But to

suggest that there is a check list of matters that

should be put to a jury is something that would be

far too burdensome in the trial process. That is a
matter that was adverted to in Haidley and Alford

by the Victorian Full Court in looking at the

developments in Burchielli and Dickson and, in our
submission, it is a matter of significance and

importance in the administration of criminal

justice that this area of the law does not become

bogged down in strict requirements that are laid

down for trial judges by appellate courts, and that

matter is a matter of some real significance, in

our submission.

However, we would not interpret what

Mr Justice Kirby said as being that. He, in fact,

adverts to that problem. It is simply, in our

submission, the fact that the language that he has

used is the sort of language that is apt to lead

subsequent courts to believe that that is the

situation, and the only way of illustrating that is

to look as briefly as I can at the directions that

were given, or the criticisms that were made of the

directions that were given here.

Those criticisms are enumerated by

Mr Justice Kirby from page 255 of the appeal book.

He talks about the limited opportunity which

Mrs Flannery had to observe and identify the	offender, yet generally those matters were put by
the trial judge - and I would just refer quickly,
the page is 139 and 140 of the summing up where the
opportunity the witness had of getting a clear
picture of the person is specifically put by the
trial judge. It is put again at page 158 of the
appeal book. At page 158 there is a summary of the
evidence when the judge is going through the evidence setting out where she was and what she saw and ducking down behind the car and so on.

The second matter that is put is the time she

had for observation. On those same pages that I

have referred to before at 139 and 140 and, again,

Domican(2) 37 12/12/91

at 158, the trial judge made observations about

that.

The third factor that His Honour mentions is

stress which she was under. That is specifically

put at page 196 of the summing up. The trial judge

went through the matters that the defence had put

as far as criticisms of her identification and the

stress matter was specifically referred to.

DEANE J: But is that not really your problem? If you look

at page 196, that middle paragraph, that is really

just about the minimum that the trial judge should

have said applying the general directions to the

facts of this case, and what he has done is, he has

put it as a defence argument and withheld any

endorsement at all of it by himself.

MR BLANCH:  No, Your Honour. I appreciate that that is the

criticism that is made but, in this context, there

are a number of matters that were put at page 196

in a quick summary of the defence submissions. But

in relation to the factor of stress, for example,

there is an additional reference at page 142 where

he talks about sudden and unexpected acts of

violence such as Mrs Flannery - - -

DEANE J: Well, he does, but he really puts it in a way that

says, "You may think it goes against Mrs Flannery's

evidence; you may think it strengthens it."

MR BLANCH: Well, Your Honour, in our submission that is

appropriate. These are matters for the jury. If

what is being sought is a direction from the judge that these are matters where it would be dangerous

to act upon, that is, the judge giving the jury a

direction as opposed to the judge signalling that

these are the sorts of cases and this is the sort

of evidence where care is needed - - -

DEANE J: But once we come to the facts of this case, the

critical facts are: in the heat of this episode

she saw someone who, on the Crown case, is

disguised with a wig and a moustache on;

subsequently she sees somebody on television and

identifies that person, without his wig and

moustache, as the person she saw at the incident.

MR BLANCH:  I think there are street identifications before

that, Your Honour.

DEANE J: That is not the critical identification. The

closest you get to a real direction bringing it to

the facts is that paragraph in the middle of

page 196, and if you turn to pages 143 to 144, the

last paragraph on one page and the first paragraph

on the next, His Honour seems to actually suggest

Domican(2) 38 12/12/91

that that method of identification by seeing

somebody on a television set, that you had seen for

a minute months before with a wig and a moustache

on, adds credence to the identification.

MR BLANCH: Well, Your Honour, that is to overlook what was

said at page 142 and putting it into context

starting at page 138, because at page 138 he begins

with the standard directions, indeed adding in what

I am not sure is part of the standard direction

that there have over the years been cases in which

injustices have been done.

That is a phrase that originally came from the

Irish case of Casey which began a lot of the

discussion about this. It was not reproduced in

Turnbull but has come up from time to time and it

raises, in itself, the question:  how far should

judges intrude in the jury's function in this

respect in the sense that a judge making such

statements to the jury is almost at the stage of
giving evidence to a jury about these cases rather

than leaving it for the jury's determination?

It is because of this area of debate that I

included the far end of the spectrum on this debate in some of the American cases, because the American courts - although I would not quote them as

authority here on the subject - at least give an

idea of a whole different approach to what is

exactly the same concept and that is trial by jury. authorities, is a signalling to the juries of the

dangers and how those dangers arise.

What he has done here is to give the full

extent of that general warning by saying, "Well,

I'm telling you that miscarriages of justice have

occurred in the courts before", and then he goes on

to explain why the miscarriages of justice have

occurred and he talks about the circumstances.	I
am only up to page 139 at this stage, where he is

giving that general direction.

Then, when he gets to page 142, at line 8, he

is actually dealing there with the detail of the

material and then it goes on, as Your Honours

suggested, to discuss it further. He comes

backward again at page 196 in repeating the

defence's submissions about it.

But our submission about that, Your Honour, is

simply this, that if the jury, in the face of those

directions, did not appreciate that the

identification was an important issue and that

special care was needed, it is difficult to imagine

that anything else that he could have said to them

Domican(2) 39 12/12/91

about it would have alerted them more to the

problem, unless what is expected of the trial judge

is to say, "I'm saying to you it would be dangerous
to convict on that sort of evidence".

It depends, of course, on the facts of all the

cases, but one might be forgiven for feeling that
the need for care in an identification in those

circumstances is something that was self-evident

without the necessity even for these warnings, but

His Honour has given all those warnings. In our submission, that is adequate.

The fourth matter that was criticized was the

fact that when describing the incident for the

first time the car was described as a green Jaguar.

There were photographs tendered which are more of a

curiosity than anything else because it seems an

odd thing to suggest, but it is just interesting to

look at the photographs of the back of the

Mazda 121 and the photographs of the Jaguar.

In any event, that matter was referred to in

the summing up at page 159, not in the way that

Your Honour Justice Deane suggests, but it was

referred to in the summing up at 159.

The fifth point of criticism was that - I am

sorry, they are different photographs. They need

to be seen two at a time. In respect of the fifth

matter, it was referred to generally by the trial

judge at page 159, and more specifically at 143,

and the trial judge came back to it in terms of

repeating the defence submission again in that

passage at 196.

The sixth matter of criticism was referred to

again - that is the delay in making the

identification - at page 196, and at pages 142

and 143.

The seven~h matter was put as a defence

argument at page 196, and was referred to again in

the summing up at page 161. That was the fact that

Domican was not identified, initially, as the

assailant.

MASON CJ:  Mr Blanch, this is perhaps an immaterial point,

but I had thought a Mazda 121 was a very small car,
but in these photographs, I must confess, a

Mazda 121 does look rather like a Jaguar.

MR BLANCH:	I think it is in the magic of photography as to the size of the photograph, Your Honour, by the
police photographer.  But I could concede the fact,
Your Honour, if it needs conceding, that a
Mazda 121 is a small car.  I am sorry, I do the

Domican(2) 40 12/12/91

police a disservice, Your Honour.	They are defence
exhibits.

The eighth point was a failure to draw

attention to the fact that Mrs Flannery had tried

glasses. The evidence about that is at page 43

where it appears that at some stage she went to get

some reading glasses, and she wore them on one or

two occasions and discarded them because she found

them uncomfortable, and I would have thought that

that had very little to do with the case at all.

The ninth criticism is the evidence of

incorrect identification of the appellant and false

sightings. My friend has explained that in terms

of the evidence of Mrs Flannery at page 72, and

there is then some further evidence from Mr Domican

about his leg being in plaster, at page 298 and - I

am sorry, the Court does not have a copy of the

transcript. The sightings would appear to also

include - the only other sighting that is referred

to is the sighting that appears at page 272 of the

appeal book, and that is where fresh evidence was
sought to be called before the appeal about a
sighting by Peter Flannery, the son, and evidence
he had given in committal proceedings. That
evidence was rejected by the Court of Criminal

Appeal as fresh evidence, so it is hardly material

that was available to the trial judge for the

purposes of a direction in any event.

And the tenth matter is that since there was

material to indicate that Christopher Flannery and

the appellant knew each other, it might be

concluded that if Mrs Flannery had the opportunity

to see him, so too did Mr Flannery and yet there

was no evidence of the fact that that had occurred.

There, of course, was no evidence at all to

suggest that Christopher Flannery had seen the

person who was firing the shots and even if he had,

and even if he had said something such as, "That's

Domican firing the shots", it would be very

questionable whether the trial judge would have

ever allowed that in to evidence in any event,

particularly if it had been said after they had

moved in to the house, for example. So, it would

be our submission that those last criticisms just

have no cogency at all.

But in the end result, the criticism that is

made by the Court of Criminal Appeal is a lack of

perfection rather than an inadequacy in the

directions, and it would be our submission that in

that case the decision of the Court of Criminal

Domican(2) 41 12/12/91

Appeal is unexceptional. The only matter that we

would raise in that context is a criticism which we

would, with respect, make of the judgment of the

Court of Criminal Appeal, that this judgment of the

President of the Court of Appeal, together with the

judgments given in Finn and Bigeni, are judgments

that might lead trial judges to embark upon a much

greater degree of specificity in directions to the

jury than is required or, indeed, is desirable.

I note with some interest in respect of the Privy Council case of Reid that, although the Privy

Council referred to Burchielli and, I think,

Dickson and Finn and De-Cressac, it does not appear

that Haidley and Alford, the Victorian case which
put some sort of a halt to what appear to have been

regarded as excessive requirements in this area,

was referred to the Privy Council.

This Court has made a statement about

identification cases. The statement that I would

refer to the Court, in general terms, is simply the

statements made in the judgment of the Court of

Criminal Appeal in New South Wales in De-Cressac

where these problems were adverted to, in the

judgment of the then Chief Justice.	De-Cressac is
reported in (1985) 1 NSWLR 381.

In the judgment, at page 383, the

Chief Justice enumerated the complaints which had been made in the grounds of appeal, and it is a

good indicator of the sort of complications that

the criminal law can get into if these sorts of

directions or the specificity of directions that

might be indicated by what we would say is a
misreading of Mr Justice Kirby's judgment would

lead to. And here is a case where grounds of

appeal were put on enumerating some 14 specific

directions which had been sought and as a result of which it was alleged there had been an error of law

because each one of those directions had not been

given. It is really the passage then that follows

in the Chief Justice's judgment on page 384 that we

would adopt, where he says that:

Those particulars might themselves be

regarded as open to criticism -

on the basis that there is an -

assumption that there is a series of

individual items that a trial judge is obliged

to refer to, almost as if they provided a

check-list -

and then he goes on to quote from Davies and Cody

and Albert and Allen and the essence of it all, in

Domican(2) 42 12/12/91

our submission, is really in that passage quoted
from Allen, that it is a matter for an evaluation

of the particular case at the particular time.

Very often, it is a matter in the overall context

of assessing whether there has been a miscarriage

of justice. No doubt, in the ultimate, the

requirements of specific directions in

identification cases have arisen because of concern

about miscarriages of justice and it is because

that is the essential inquiry that, in our
submission, it is appropriate when assessing the
question to look at it on that basis and on the

broad basis of all the evidence that is available

in the case and that, in this case, comes down to

the factors referred to by the trial judge.

Of course, all of that leaves aside the

ultimate question of how the proviso could be
exercised and the discretion to exercise the

proviso could be applied in a case such as this

where, clearly, the Court of Criminal Appeal is not

identifying any fundamental error in the directions that were made but, rather, talking about a want of perfection. And, perhaps, there has never been a

trial at first instance before a jury where there

has been perfection.

MASON CJ: Thank you, Mr Blanch. Mr Hidden.

MR HIDDEN: If the Court pleases. Your Honours, if it

conforms with the current practice of the Court, I

had intended to invite my learned junior, Mr Byrne,

to address the Court in reply.

MASON CJ: That is permissible.

MR BYRNE:  May it please Your Honours. If I can deal,

firstly, with the submission with which my learned

friend finished his submission and that is that in

this case what is complained about is a want of

perfection. It perhaps goes back to an observation

which Your Honour Justice Deane made about there

being a concept of a minimum warning being

required. In my submission, it is not a question

of obtaining perfection in the directions given in

the summing up but of obtaining what I would submit

is the minimum standard of an adequate warning in

all the circumstances.

DEANE J: But the real problem here that I see from your point of view is this, that you have directions

which are adequate as general directions which do

contain some specific references but which you say

are inadequate.

MR BYRNE: Yes, Your Honour.

Domican(2) 43 12/12/91

DEANE J:  The Court of Criminal Appeal has unanimously said

that it is a borderline case, but they think the

directions are just on the right side of the

border. We have reached the stage where there is

really no question of principle of law involved.

Now, in that context, is it really any part of the

function of this Court to subject a trial judge's

directions in what is not a lay-down misere case to

a second lot of critical examination, and then superimpose its view over that of the Court of

Criminal Appeal? I know you have got special leave

and we are here, but surely there is something to

be said for the approach that in this sort of case

this Court should not engage in the sort of

exercise that we are now coming to.

MR BYRNE:  Your Honour, perhaps the response to that is that

the Court of Criminal Appeal - my reading of the

judgment was that the standard had not been

reached. It was not a situation where the

borderline had been crossed, in effect, in favour.

It was said by the Court of Criminal Appeal that

the standard established by cases such as Allen and

Finn had not been reached.

DEANE J: Well, I read it a little differently. I read it

as saying more should have been done to reach the

desirable standard, but the departure from the standard was not of sufficient significance to warrant the intervention of the appellate court.

MR BYRNE: Well, Your Honour, if the position is accepted,

and perhaps to answer the earlier part of

Your Honour's question first, it is not my

submission that it is necessary or part of the

function of this Court to go through the process
again, that being the process that the Court of

Criminal Appeal has already completed, but the primary point of this appeal is that once it was

established to the satisfaction of the court, and

as Your Honour, with respect, properly observed, to

the unanimous satisfaction of the court, that the

standard had not been reached in so far as the

specific warnings that were required in this case,

then the result should have been for the court to

order that a new trial be held.

In answer perhaps to Your Honour's question

about whether or not the standard had been reached
and whether it was just over the borderline, at

page 262 of the appeal book at line 3 it says

there, in my submission, clearly that the standard

established or required by Allen and Finn was not

reached by the summing up in this particular case.

McHUGH J:  The court seems to have taken the view that the

instructions to the jury were deficient, but there

Domican(2) 44 12/12/91

was no miscarriage of justice because the gap

brought about by the lack of specificity was filled

by the direct and circumstantial evidence which

incriminated the appellant.

MR BYRNE:  Yes, Your Honour. I accept that that was the

decision that the court made, and that really is

the basis of the challenge made in this appeal.	If
I could perhaps put it this way.	The reason why

those standards have been established by those cases that are referred to, and indeed by many others in various jurisdictions, is to provide a

safeguard against the risk of wrongful conviction.

If a Court of Criminal Appeal, in reviewing a

trial, comes to the positive conclusion that the standard reached, or the standard required to be reached, was not met in the particular case, then

it can, in my submission, be said that the

necessary safeguard was not present in that case and the risk of wrongful conviction is therefore

still present.

Your Honours, if I could just go on to deal with some other matters that were raised by my

learned friend in his submissions. He said that it was the Crown's contention that the warning in this

case was in fact adequate and that the directions
that were given, both in their general part and in

the specific matters which they addressed, adequately put the matter before the jury.

If that submission is right then, in my

submission, it would mean that the 10 points of

inadequacy identified by Justice Kirby in his

judgment - and those 10 points have been gone

through, they appear in the appeal book at

pages 255 to 259 - if the submission that the

warning was adequate in this case is right, then it

must mean that those 10 points are wrong.

The general requirement established by the

authorities is, in my submission, for the summing

up to draw attention to the specific weaknesses in

the identification evidence. Those 10 matters are

specific weaknesses in the identification evidence

and, for that reason, they should have been the

subject of directions by the learned trial judge

drawing them to the attention of the jury.

I should concede as, indeed, it was said by

Mr Justice Lee in the case of Finn to which

Your Honours have earlier been referred - the

particular passage of His Honour's judgment is at
page 435 of that case, 34 ACR 425. The particular

passage to which I would wish to draw attention is

Domican(2) 45 12/12/91

at page 435 in the judgment of Mr Justice Lee,

about half-way down the page where he says:

In the present case the failure of the learned trial judge to refer to the matters set out by Kirby ACJ in the latter part of his

judgment constituted a significant deficiency

in the adequacy of his Honour's charge to the
jury and the verdict cannot be allowed to

stand.

It might be recalled, Your Honours, that there were

11 specific matters referred to in Finn's case as

being deficiencies. His Honour Justice Lee went

on:

The matters referred to were all matters which went directly to the question of whether the

identification evidence was in fact safe to

act upon. To have omitted to deal with one or

perhaps two of those matters may not have

mattered but in their totality they

constituted at least a significant base from

which doubt might emerge.

BRENNAN J:  Where did this idea emerge that the trial judge

was under a duty to give the jury a specific
warning with respect to every item of weakness in

identification evidence? ·

MR BYRNE: In my submission, Your Honour, that flows through

the authorities on the topic of identification

evidence and the particular subject of judicial

directions. It starts - - -

McHUGH J:  The source of it is Turnbull at page 228,

paragraph G.

MR BYRNE: It starts before that, Your Honour.

McHUGH J: Did it?

MR BYRNE: Yes, in this Court in Kelleher Mr Justice Gibbs

said, in a passage to which the Court has earlier

been referred - if I could just read it briefly, it

is at page - - -

McHUGH J: It is 551, I think.

MR BYRNE: It is. It is the very last line of the page,

Your Honours, the last passage:

the jury should be given careful guidance as

to the circumstances of the particular case,

and their attention should be drawn to any

weaknesses in the identification evidence.

Domican(2) 46 12/12/91

As Your Honour Justice McHugh observed, that is

reflected in Turnbull as well, and that particular

passage is at page 228 of Turnbull and, again,

without referring it to Your Honours, it is said by

the court in Turnbull, finally, that the trial

judge:

should remind the jury of any specific

weaknesses which had appeared in the

identification evidence.

And that theme, if I can call it that,

Your Honours, continues throughout the directions

and it really is reflected in the persistent

requirement that directions of this kind should, in

effect, be tailored to the individual circumstances

of the case.

BRENNAN J:	I can understand that - - -
MR BYRNE:	Yes, Your Honour.
BRENNAN J:	- - - but if I understand the implications of the argument properly it is this: that if a trial
judge fails to identify, in his charge to the jury, a weakness in the identification evidence, though
he gives the general direction and makes it
applicable to the circumstances of the case, then absent the provisos application, the accused is
entitled to have a verdict of guilty set aside.

MR BYRNE:  Yes, Your Honour. The standard established is a

very high one and the reason why it is established

so high is because of the particular dangers

attaching to this type of evidence. It cannot, I

do not think, be put any other way. It is a high

standard. It has been described in other cases as
being a very stringent standard but certainly it is

high. There must be a degree of realism, perhaps,

approached -

BRENNAN J: Well, take it one way or another, there is

either a degree of realism, or that is the law.

MR BYRNE: His Honour Justice Lee perhaps introduced, if I

say, with respect, a degree of realism by saying

that where there was a complaint about 11 specific

matters and perhaps one or two of those matters
were not put, then that might not be a sufficient

basis to overturn a conviction.

BRENNAN J:  How does that jell with that last line on

page 551 of Kelleher v Reg?

MR BYRNE: Well, the single line from Kelleher v Reg simply

acknowledges the need, in my submission, for a

surnrning up to contain specific directions about the

Domican(2) 47 12/12/91

weaknesses which are associated with the

identification evidence in the particular case.

That has perhaps been expanded upon and extended by

the State courts subsequently in Dickson's case in

Victoria in particular, and perhaps putting it at

its highest, in Finn's case in New South Wales.

BRENNAN J:  I must say, it seems to me as though the Courts

of Criminal Appeal have engaged in a lot of

rhetoric which produces a tremendous burden on

trial judges which is incapable of being

discharged.

MR BYRNE: Well, Your Honour, the reasons for the imposition

of that burden, if that be correct, have been

identified, particularly in England. In

Turnbull's case that was a special sitting, as it

were, of the criminal division of the
Court of Appeal of five judges and that immediately
followed the publication of the Devlin Report

which, as Your Honours would be aware, was a report

commissioned by the government to inquire into what

had by then become notorious cases in England of

wrongful convictions based on mistaken identity.

There were a large number of recommendations made

in the Devlin Report and the court was convened to

sit in Turnbull - and did not consider Turnbull

alone; there were a number of other cases dealt

with at the same time - only a matter of weeks

after the publication of the Devlin Report to try

and establish some judicial guidelines to safeguard

against the future risk that these mistaken

c6'nv~ctions that may occur again. It reay well be,

Your Honours, that the standard that has been

established is a burden on tria~ judges but, in my

submission, there is very good reason for placing

such an onerous burden on them.

BRENNAN J: Yes.

Your Honours, just a couple of other very

by my friend on the American cases, it would be my	brief matters. In relation to the submissions put	submission, Your Honours, that the American cases
are not of great guidance in this country because
the system in America is different from that here in two significant respects: the first is that it
is not, as I understand it, conventional for judges
in America to address juries on the facts of the
case. The second matter of importance is that in
America it is, again as I understand the position,
common practice in a majority of the States to
of evidence that was considered by this Court in
permit expert evidence from psychologists, the kind are dealt with by American juries they do have before them factual material upon which they can

Domican(2) 48 12/12/91

base their verdict which directly alerts them to

the dangers of identification evidence.

Your Honours, the only other matter that arose

was a matter which Your Honour Justice Brennan

raised on the question of the way in which the case

was run and whether that should have an influence

on the nature of the directions that were given.

There is one matter arising from that which is, in

my submission, of significance.

There was, as has been recognized, no

application made at the end of the summing up for

further directions on the topic of identification.

I would ask Your Honours to bear in mind what was

said by Sir Laurence Street in his judgment in

De Cressac's case which has been referred to

Your Honours earlier. But if I just may briefly

refer to page 388 of that judgment,

(1985) 1 NSWLR 381. Just referring briefly to what

was said at page 388 below point F, His Honour

there said:

Whilst accepting the practical

significance of the matters upon which the

Crown relies -

and that was a submission based on the failure to

take an objection -

mere absence of objection, or acceptance of a

supplementary direction as adequate, will not

inhibit appellate intervention if,

notwithstanding the inferences that can be

drawn from absence of objection, it is

apparent that the summing-up was deficient in

a significant respect.

Your Honours, even though the point, as it were,

were not taken in this case, in my submission, that

should not stand in the way of appellate

intervention.

Your Honours, just one final matter. The

question of the appellant's release date was raised

earlier. I have been given a document by my friend

which is an official record of his current release

date. I only have one copy of that. If I might be

permitted to hand that up. I am sorry, it is to

correct the material that appears at page 286 of

the appeal book.	There is an error there. May it
please the Court.

MASON CJ:  The Court will consider its decision in this

matter.

AT 3.02 PM THE MATTER WAS ADJOURNED SINE DIE

Domican(2) 49 12/12/91