Domican v The Queen

[1991] HCATrans 197

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Slll of 19.90

Bet.ween -

THOMAS CHRISTOPHER DOMICAN

Applicant

and

.THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J
GAUDRON J

McHUGH J

Domican 1 6/8/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 6 AUGUST 1991, AT 2.28 PM

Copyright in the High Court of Australia

MR P. BYRNE:  May it please the Court, I appear for the

applicant in this matter. (instructed by

J.J. Cullen & Assocsiates)

MR R.N. HOWIE, QC: I appear with my learned friend,

MR P.G. BERMAN, for the respondent. (instructed by

s. O'Connor, Solicitor for Public Prosecutions)

Your Honour, before my learned friend starts,

there were members of the press here earlier who

spoke to me about the matter. Mr Domican is

currently under trial on another matter in Sydney

at the moment - presently. I am concerned that

reports of whatever happens here might be reported

and might cause that trial to abort or concerns of

prejudicing Mr Domican in the course of that trial.

I certainly myself made it clear to members of the press who spoke to me about it. I do not know

whether this Court has the power to make a non-

publication order, but I was wondering if this

Court might stress the importance of not

prejudicing the current trial of Mr Domican by any

report of this matter.

DAWSON J: Well no doubt if there are any members of the

press here they have heard what you have to say,

and little more can be said about it.

MR HOWIE:	Thank you very much.
MR BYRNE:	Your Honours, this is an application in which

initially I need the leave of the Court to extend

the time within which the application might be

made.

The grounds upon which the application for extension of time are based are set out,

Your Honours, in the material in the affidavit in

support of the application for special leave, in

particular at page 3 of the appeal book, which

contains paragraph 8, and it is there set out the

reasons why there was a delay in filing the

application in this Court.

The amount of time involved, Your Honours, is

something in the order of four months. I would ask

th~ Court in the circumstances to grant leave to

extend the time within which an application might

be lodged.

There was some delay caused, as is disclosed

there by applications for legal aid. As

Your Honours may be aware, the process of obtaining

legal aid for the purpose of an application to this

Court involves initially obtaining an advice from

senior counsel that such an application has merit.

Domican 2 6/8/91

The material which needed to be considered in order

to give that advice was quite voluminous and that

exercise necessarily took some time.

DAWSON J: Well, if we proceed to the merits for the time

being, Mr Byrne.

MR BYRNE:  My pleasure, Your Honour, thank you.

Your Honours, I have prepared an outline on

behalf of the applicant.	I hand up four copies of
that.

DAWSON J: Yes, Mr Byrne.

MR BYRNE:  Thank you, Your Honour. The case raises

initially an important question of the need for a

jury to be given a warning as to the dangers of

identification, but more particularly, rather than

the need for such a warning, of what the nature and content of that warning might be. It is submitted,

Your Honours, that that is a matter which is a

legitimate subject for special leave on two bases.

The first basis is that there appears in the

judgment of the Court of Criminal Appeal in this

case to have been a departure from previous

decisions of that court on this subject and it

would also appear, having regard to some of the
other cases from other States, that there is a

difference of approach in, or at least between,

those jurisdictions.

DAWSON J:	The difference being?
MR BYRNE:	The difference being, Your Honour, if I can take

for example in Victoria in the case of Dickson,

which I have referred to - I have copies of the

authorities that I propose to refer to. If I can just briefly outline the nature of the difference.

DAWSON J: Well you just tell us what you say the difference

is at the moment.

MR BYRNE: 

The primary point upon which this application

turns is the degree to which a trial judge must be
specific in his explanation to a jury of the

weaknesses that exist in identification evidence. In this particular case the trial judge did

not direct the jury with adequate specificity as to

the weaknesses in that identification evidence.

DAWSON J: What do you say he should have said?

MR BYRNE:  In this particular case, Your Honours, he should

have directed the jury as to the specific

Domican 6/8/91

weaknesses. If I can go to those, Your Honour,

perhaps the most convenient place to refer to them

is in the appeal book in the judgment of

Mr Justice Kirby in the Court of Criminal Appeal.

They commence, Your Honours, at page 67 of the

appeal book.

It is not contended in this case, I should

say, that His Honour's general warnings regarding the dangers of identification evidence were other
than proper. What is the point sought to be raised

here is that His Honour, the trial judge, should
have gone further in drawing to the jury's

attention the specific weaknesses that existed in

the evidence that had been presented to them.

Those matters were, as I say, dealt with in

the Court of Criminal Appeal and they commence at

page 67 of the appeal book at about point 9 on that

page. The matters were, firstly, the limited

opportunity which the identifying witness had; in

other words, the vantage point from which she
observed the offender. Secondly, the question of

time for observation. Thirdly, the stress under

which the observation was made. Fourthly, the fact

that she had made a significant mistake in her

description of what she had seen. She said, in her

evidence, that she was familiar with a particular type of motor vehicle, namely, a Jaguar XJS motor

vehicle.	The motor vehicle in question was, on the
Crown case, apparently a Mazda motor vehicle.	She

described it as being a Jaguar, being familiar with

those cars, and she apparently made a mistake.

The fifth matter was that she had not made any

reference in any statement she had made to the fact

that the person that she saw was disguised, and

disguised quite heavily. The sixth matter was that

there was a significant delay in the making of the

identification. The seventh matter, putting it

briefly, was that the identifying witness had had

person whom she saw, or whom she claimed to have	several opportunities to provide the name of the	seen, to the investigating police, and she had
failed to do so.
There is another minor matter regarding her eyesight. There is a further matter that there was
evidence before the court that she had previously been wrong on other occasions when she had sought
to identify the applicant in relation to other
matters.

The final matter referred to by the Court of

Criminal Appeal, Your Honours, was that - - -

Domican 4 6/8/91

GAUDRON J:  Why should these matters be specifically drawn

to the jury's attention by the trial judge?

Presumably they were canvassed in detail in

counsel's address.

MR BYRNE:  With respect, Your Honour, I do not know that one

can make that presumption. There should be an

expectation, I agree, that they were, but whether

they were or not does not appear to - - -

GAUDRON J: Well for my part, assuming that the matters had

been canvassed in address, and the evidence was

fairly summarized by the trial judge, I would have

thought there would be no need for the sort of

particularity that you now assert.

MR BYRNE:  Your Honours, the decided cases on this topic

unanimously say, in my submission, that there

should be particularity. The degree of specificity

required varies from case to case and it would

appear that the Court of Criminal Appeal in New

South Wales has indeed diminished the standard

which it has sought to apply in previous cases.	In
order to establish that point I will need to take

Your Honours to an earlier decision of the court on

that topic.

If I just might summarize the position in

relation to what are said to be weaknesses in this

identification, weaknesses which were not

adequately drawn to the jury's attention by the

trial judge. What this identification effectively

involved was a fleeting glimpse of a stranger

wearing a heavy disguise from an imperfect vantage

point where the vision of the identifying person

was significantly obscured and where the

observation was made under the stress of a hail of

gunfire.

The precise evidence given by Mrs Flannery

when she sought to make this observation was that

as this hail of gunfire came at her and her

husband, her husband sought to push her down to

protect her next to a vehicle, and as she was being

pushed down, which was the period of time during

which she had the time to make the observation of

the person firing the gun, a bullet went through

her husband's hand, which was pushing her head

down. It was a situation of extreme stress and

hardly conducive to accuracy or indeed reliability

in observation, recollection, perception.

Your Honours, so far as the need to be

specific is concerned, perhaps the most useful

starting point in relation to that question is the

judgment of this Court in Kelleher, 131 CLR 534.

The particular passage which I wish to refer to,

Domican 6/8/91

Your Honours, comes in the judgment of

Mr Justice Gibbs, as he then was. If I can hand up

four copies of that judgment, Your Honours.

I have only extracted the specific page -

Kelleher is quite a long case, and it is only the

passage on this particular page that is relevant to

the issue here. At page 551, Mr Justice Gibbs -

and I refer particularly towards the end of the

page - said:

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.

Your Honours, so far as I am aware, this Court has not dealt with the question of the content of

an identification warning apart from that short

passage in the judgment of Mr Justice Gibbs in

Kelleher.

The Court has dealt with more specific aspects of identification evidence in cases such as Davies

and Cody, where the Court dealt with the question

of confrontation identification, loosely described

as that, and in Alexander v Reg the Court dealt

with the more specific question of the use which

might be made of photographs in the process of

identification. As I say, so far as I am aware,

this Court has not dealt in any detail with the

more general question of the nature and content of

identification warnings.

From Kelleher the next most useful reference

perhaps is to be found in the - - -

DAWSON J:  Mr Byrne, is it convenient to refer to the actual directions given by the trial judge?

MR BYRNE: Certainly, Your Honour.

DAWSON J: T~ey are in a fairly short compass, are they not?

MR BYRNE:  Yes, Your Honours. They are contained at page 25

of the summing up. It is not numbered,

unfortunately, in the appeal book at the bottom.

It is at about half-way down page 25 that

His Honour commences directions on the question of

identification evidence and they - - -

Domican 6 6/8/91

McHUGH J:  I must tell you, Mr Byrne, that I read the Court

of Criminal Appeal's judgment and I was almost

shocked by the contrast I thought with the trial

judge's direction and quite fooled myself. I did

not think that they deserved the implied criticisms

that they got from the Court of Criminal Appeal.

MR BYRNE:  Your Honour there is, with respect, an important

distinction to be made, in my submission, regarding

the directions given by the learned trial judge. There are two aspects of directions on the

question of identification. One is what might be

described as the general warnings to be given to a jury, such as the history or the judicial learning

that has been acquired as ~o the nature of mistakes

and so on, the need to be careful, the fact that

people can be mistaken, all of those sorts of

issues which are, as I say, perhaps more general

warnings as to the need to be careful.

Then there are the specific warnings that need

to be given in the circumstances of the individual

case, and it would be my submission that the

authorities generally establish that it is

incumbent upon the trial judge - not only counsel

who might be appearing for the accused person, but

it is incumbent upon the trial judge to bring to

the jury's attention the specific weaknesses in the

identification in the instant case.

I would not, for one moment, cavil with what

Your Honour Mr Justice McHugh has said about the

adequacy, the fairness, the completeness, indeed

the judgment. The directions given by the learned

trial judge on the general topic of identification

were unobjectionable.	They were more than fair and
more than complete.	I have no comment to make

about those other than what I have just said, and I

agree, with respect, with what Your Honour

Justice McHugh has said. But the point in this

application is not to do with the general warnings,

but the specific warnings.

McHUGH J:  I know, but at the bottom of 30 and 31, and on 29

in the second paragraph, His Honour dealt with:

Sudden and unexpected acts of violence

such as Mrs Flannery described -

and said that you have got to weigh up those

circumstances, and in 30/31 he dealt with it. He

did not deal with everything the Court of Appeal

set out in those ten omissions.

DAWSON J:  He dealt with th~ matter of disguise, perhaps

indirectly, but it must have been before the jury.

Domican 7 6/8/91

The length of time between the observation and the

identification. He dealt with the stress of the

moment and the effect that that would have on an

accurate observation of the aggressor and that, in

the context of the more general directions, is a

fairly full direction, is it not?

MR BYRNE:  Not in my submission. I am not saying that he

said nothing at all about it. My submission is

that what he said about the specific weaknesses was

inadequate.

DAWSON J:  What do you say he left out? I do not want what

the Court of Criminal Appeal said.

MR BYRNE:  If I can go back, Your Honours, to what was said

by the Court of Criminal Appeal.

DAWSON J:	No, what do you say he left out?
MR BYRNE:	Those matters that are referred to in those ten factors that - - -

DAWSON J: Well, His Honour did refer to the limited

opportunity which Mrs Flannery had to observe and

identify the offender.· He referred to the stress

of the particular moment which, no doubt, the

circumstances were well in evidence, and that also

covers the time which Mrs Flannery had to observe

the offender.

The third point is stress. Well, he did cover

that. The second is discrepancies in her

identification which really do not go to the

opportunity.

MR BYRNE:	They do go, with respect, Your Honour, to the important question of the accuracy of her -
DAWSON J:	Of course they do.

MR BYRNE:  But that was not pointed out to the jury.

DAWSON J: Well, that is not really in the same category as

the circumstances which would make her

identification suspect. That is the result of the

identification. Well, any way, let us just go

through them. There was a reference to the

disguise. There was a reference to the delay in

making the identification and, again, the

discrepancies in her evidence were not put at that

point. There was no direction given as to the fact

that Mrs Flannery had her eyes tested by an

optometrist, but that was said by the Court of

Criminal Appeal to be a minor point.

Domican 8 6/8/91

The last one is merely a comment. That was

the opportunity for Christopher Flannery to

identify. But that does not go to any defects in

her evidence, really, inherent defects.

MR BYRNE: Well, it is a matter - - -

DAWSON J:  So that, really, when you do analyse it,

most of it is ..... one way or another.

MR BYRNE:  There was reference made to them in the sense -

if I can take, for example, the question of the

vantage point which Mrs Flannery had for the

observation that she made.	The reference made to
that was in terms by His Honour,	"Well, when you

consider the reliability of that evidence, you need

to consider the vantage point."

It was not put to the jury on the basis: "When

you consider this you need to consider the vantage

point" and the evidence is that the vantage point

she had was less than perfect, that it was obscured

by the person being in a motor vehicle, that the

person's location in the motor vehicle was such

that he was in addition obscured by the front

passenger seat of the vehicle.

All His Honour said to the jury was that you have to have regard to the vantage point. He did

not say - and there are some real problems in

relation to that - he did not go on to point out to
the jury as, in my submission, the authorities
require, the specific weaknesses of the

identification evidence.

DAWSON J:  We have laid the battleground. Now you say the

authorities do require a greater degree of

specificity than that. Perhaps you might take us

to them.

MR BYRNE:  Yes, thank you, Your Honour. Your Honours, I

have referred to what Mr Justice Gibbs, as he then

was, said in Kelleher. If I can also refer

Your Honours to the judgment of the Criminal

Division of the Court of Appeal in the United

Kingdom in Turnbull.	I have four copies of that,
if I can hand that up.

Your Honours, the passage which I wish to

refer Your Honours to in Turnbull's case is at

page 228, at about point G. It is only a single

sentence but this, as Your Honours will probably

recall, was a judgment which followed the

publication of the Devlin Rport on identification

evidence in criminal cases. The point made there:

Finally, he -

Domican 9 6/8/91

the learned trial judge -

should remind the jury of any specific

weaknesses which had appeared in the

identification evidence.

That, or the guidelines, as they are sometimes

referred to in Turnbull's case, have been recently

reaffirmed by the Privy Council in a case which is
reported as Reid (Junior) v Reg, (1990) 1 AC 363.

It was an appeal to the Judicial Committee from

Jamaica.

That case, Your Honours, is reported at 384C,

which is the particular passage I wish to refer to.

I hand up four copies of the judgment in that

matter.

Your Honours, it is a long judgment, but I

only seek to refer to it for the purpose of

pointing out that those guidelines, or what are

described as guidelines, established in Turnbull

back in 1977, have only recently been endorsed by

the Privy Council. The particular passage is at

page 384, at about point c.

GAUDRON J: Well, Their Lordships were talking about

"significant failure".

MR BYRNE:  Yes, Your Honour. I would submit that in the

light of the evidence in this case that the failure

by the learned trial judge to be specific in

drawing to the jury's attention the weaknesses of

the identification evidence was a significant
failure.

Perhaps if I can move Your Honours from the English authorities to the Australian cases I wish

to refer to. The first of those is a judgment of

the Full Court of the Supreme Court of Victoria in

R v Dickson, (1983) VLR. 227. I can hand up copies

of those, Your Honours.

The particular passage that I would wish to

draw Your Honours' attention to in that case

appears at page 230, at about point 7, in the

paragraph commencing:

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

Domican 10 6/8/91

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. He should convey to

the jury that they must give consideration to
those dangers. Every warning on visual

identification must be tailored for the

particular case, as to what it includes or

leaves out and as to the way in which it is

given.

Your Honours, if I can summarize Dickson's

case. That was a case where the learned trial

judge had given a quite detailed direction as to

the manner in which the jury should approach the

identification evidence in the case. But the Full

Court of the Supreme Court held that,

notwithstanding the detailed consideration which the trial judge had given the matter, there were

shortcomings in what had been done and that those

shortcomings were fatal to the adequacy of the

direction which he had given.

It would be my submission that if one compared

what the learned trial judge in Dickson's case did
with what the learned trial judge did in this case,
then the comparison is a fairly even one as the
Full Court of the Supreme Court of Victoria held

what he had done, even though it was quite

detailed, was insufficient.

In my submission, in this case, even though

the general directions were certainly adequate, the

summing up as a whole is nevertheless insufficient.

That, indeed, I should say, was the conclusion

which the Court of Criminal Appeal in fact reached

in relation to the summing up by the learned trial

judge in this case.

Your Honours, the last case that I would

propose to take Your Honours to on the question of

the degree of specificity required is a judgment of

the Court of Criminal Appeal in this State in the

case of Charles Andrew Finn, 34 A Crim R, and I

hand up copies of that judgment.

Again, Your Honours, Finn's case was a case in

which quite detailed directions were given by the

learned trial judge to the jury, but the challenge

was put to the Court of Criminal Appeal that that

summing up was inadequate and the basis on which it

was put was, if I might say so, a very similar

basis to the challenge which has been made in this

case.

Domican 11 6/8/91

The court analysed the nature of the evidence

and the manner in which the summing up dealt with

that evidence and found that there were certain

inadequacies in the directions which were given by
the trial judge. Those specific inadequacies are

set out at the bottom of page 432 and following and

are said to number 6. The conclusion reached

initially by Justice Kirby in the Court of Criminal

Appeal was this:

In these circumstances -

that is, in view of the purported inadequacies

it seems to me that the charge given to the

jury was inadequate and that the conviction of

the appellant is therefore unsafe and

unsatisfactory and should be quashed.

He went on to say:

The standard which we have accepted in this

State was not reached. That standard is

stated in the decision of this Court in Allen

(1984) 16 A Crim R 441, which is conveniently

set out in De-Cressac at 384. It requires a

very high degree of specificity in the

warnings that are given about identification

evidence.

Now that was perhaps the high watermark of

this area, His Honour holding that what is required

is a very high degree of specificity. If I can

refer, in addition, Your Honours, to the material

which emerges from the judgment of Mr Justice Lee,
who gave the next judgment. It is at page 435 and

at about point 5:

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

in the adequacy of His Honour's charge to the	judgment constituted a significant deficiency	jury and the verdict cannot be allowed to
stand. 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.

If I can go from what I would submit are those

general statements of the approach which should be
taken by a trial judge to the conclusion

which - - -

Domican 12 6/8/91

DAWSON J:  They are all cases in which identification

evidence was crucial, are they not?

MR BYRNE:  Yes, Your Honour, and it was in this case as

well.

DAWSON J: Well, could you say that the case against the

accused depended wholly or substantially on the

correctness of the identification?

MR BYRNE:  It is impossible to say whether in the ultimate

it depended wholly or substantially, but the manner

in which the Crown ran the case was that certainly

it depended substantially. I cannot say that it

depended wholly, but it certainly depended

substantially.

DAWSON J:	My impression was - I have forgotten the name of the witness now, but there was another witness who
gave a quite detailed account of his dealings with
all of this and that possibly was much more
significant than the identification.

MR BYRNE: It is a difficult thing to say. That particular

witness was a person who was an accomplice - if he

was to be believed, he was an accomplice.	He had
been granted an immunity from prosecution.	He may

be the sort of witness who a jury might reject

absolutely as a person of simply no credit at all.

I am perhaps going ahead of myself to the

second ground of this application, but there were

effectively three strands in the Crown case in this

prosecution. Firstly, the identification evidence

of Mrs Flannery. Secondly the evidence of the

person Your Honour Justice Dawson's - - -

DAWSON J: Whose name was?

MR BYRNE:  Mr Patience. But he was a witness of dubious

credibility.

The third person was the man, Frederick

Glen Many, who gave evidence that the applicant had

confessed to him whilst in custody that he was

responsible for this crime.

_ There was evidence before the Court of

Criminal Appeal from a solicitor at the supreme

court that some time after the trial Mr Many had

said to her that his evidence in this trial was

completely false.

Those three strands of evidence were

essentially the Crown case, and any one of them

might have been sufficient to establish his guilt.

It is a matter for conjecture, of course, as to

Domican 13 6/8/91

which one it was, or if there may have been more

than one, which satisfied the jury.

If I can just say briefly, Your Honours, that

the conclusion reached by Mr Justice Kirby in this

case is set out at page 74 of the appeal book in

the first paragraph. The case is a borderline one.

The instructions given to the jury by Mr Justice

Roden falls short of the standard required.

Your Honours, it is my submission that once

that conclusion was reached and, in my submission,
that conclusion was inevitable on the authorities

which His Honour referred to in reaching that

conclusion, once that conclusion was reached then

this should have been a case in which the Court of
Criminal Appeal granted a new trial.

What the Court of Criminal Appeal sought to do was to say, in effect, that the standard or the

quality or the degree of specificity that is given

in an identification warning can vary according to

the other evidence in the case.

GAUDRON J:  To some extent it depends how you approach that

issue. The underlying question must be whether or

not there is a risk that the jury acted on a wrong

view of the evidence or gave it weight that it

would not bear. There may be, in some cases, some

other evidence may dispel that risk.

MR BYRNE:  I would accept, with respect, Your Honour, that

position if it were evidence that were not disputed

that went directly to the quality - for want of a

better word - of the identification evidence. If,

for example, there was some evidence in the.case -

and this is really what was dealt with by

Turnbull - which was not expressly raised during the trial but nevertheless was there.

GAUDRON J:  You said where it goes to the reliability,

really, that is the end of the matter because

MR BYRNE:  Yes, there is no other evidence in this case that

suggests that this evidence is any more reliable

than the way in which it was presented to the jury.

For example, the confession said to have been made

in the gaol to Mr Many cannot be used as evidence

which supports the identification or the quality of

the identification evidence because it does not

affect it in any way.

In this case the quality of the evidence, in

my submission, was poor but it was not presented to

the jury with sufficient particularity to enable

them to assess it in its true light.· I would

Domican 14 6/8/91

submit that the authorities are unanimous on the

question that when a jury is directed as to the way

in which they should use identification evidence

they must be told not by counsel representing the

accused but by the learned trial judge that there

are specific weaknesses in that evidence. As I

say, the conclusion reached here was that they were

not told that and for that reason the instructions

fell short. It would be my submission that - - -

GAUDRON J:	They fall short, perhaps, of what is accepted but does that mean that in the particular case
there was a risk of the jury acting either on a
wrong view of the evidence or in giving it weight
that it would not bear?
MR BYRNE:	It does, in my submission, Your Honour, yes. The

identification evidence in this case can fairly be

described as being evidence of poor - I would with

respect, go further and say of very poor - quality

and it was not presented to the jury in that way.

It was presented to the jury in a manner: this is

the evidence; these are the reference points you

might use to determine what you think of that

evidence. It was not suggested to them: there are

these specific weaknesses in relation to it.

DAWSON J: What are the specific weaknesses which were not

pointed out to them which you say were crucial?

MR BYRNE: Well, it was not put to them in terms,

Your Honour, that the observation was made from a

distance; that adversely affects the quality of

the evidence. It was not put to them that the fact

that it was made from a difficult vantage point

where the person being observed was significantly

obscured; that affects the reliability of the

evidence. It was not put to them in specific
terms, "Well, this witness was under an immense

strain at the time she made the observation upon

which she bases her identification"; and that

seriously affects the reliability of the evidence.

DAWSON J:  The trial judge did say that to some people the

effect of violence of that sort may be to obscure

their judgment and later recollection. It

undoubtedly was before the jury that the

identification took place from behind a car. His

Honour does not refer to that specifically

but - - -

MR BYRNE:  It was not only that factor, Your Honour, that

the identifying witness was behind a car but the

person she was seeking to identify was in the

driver's seat of a vehicle further away from her

and that her vision of him was obscured by the

Domican 15 6/8/91

passenger seat; it was one of those two-door cars

where the passenger seat had been brought forward.

DAWSON J:  I would have thought one of the most important

facts was the fact that the person to be identified

was wearing a disguise which was meant to obscure

his identification. That is only mentioned

indirectly by His Honour the trial judge.

MR BYRNE:  I accept what Your Honour says; that is an

important factor, but those things were not

presented to the jury, to use the expression used

in the authorities, as "specific weaknesses" in the

identification evidence.

The other thing was, material which suggests

that the witness might be wrong or might be

mistaken should be specifically referred to and

those factors that are set out in those 10 matters

referred to by Mr Justice Kirby include matters

which clearly suggest that the witness is mistaken

in respect of one observation that she has made

which must be taken into account in determining the

reliability of the important observation so far as

the prosecution case is concerned; that is, that

the person she saw was the accused.

DAWSON J:  No objection was taken to the directions given by His Honour the trial judge?

MR BYRNE:  Not at the trial level, no. The point was made

and I think the authorities, with respect,

establish that, that it is not only the duty of

counsel appearing for the accused but it is the phrase - - -

duty of the trial judge to - as the case as I say

DAWSON J: True, but in determining what was adequate in the

circumstances, those who were present and their

reaction is of some significance.

MR BYRNE: Yes, Your Honour, I would accept that position.

McHUGH J: The trial judge summarized the facts at page 85,

put the Crown's propositions and the material facts

and then at page 87, point 4:

A number of the Crown witnesses came

under criticism -

he referred to Mrs Flannery and:

her identification evidence was unreliable.

The shock, her fear and t.he fact that on her

own account the man was disguised, would make

Domican 16 6/8/91

her identification unreliable ...... she did not
name the accused until September 1985.

I mean, it does not undermine your arguments but I would be very surprised if your client was

convicted on Mrs Flannery's evidence having regard

to the trial judge's directions and the inherent

quality of the evidence itself.

MR BYRNE:  What Your Honour says may well be right; the

difficulty is no-one will ever know - I suppose the

members of the former jury know - but if I can put

it this way: the risk is, in this case, that

because of the inadequacy of the directions given
by the learned trial judge, the jury may have

attached more weight to that evidence than they

should have.

DAWSON J:	Now we are starting to go through the processes again that presumably the Court of Criminal Appeal
went through. Did they anywhere pose the test in wrong terms? They said it was a borderline case.
MR BYRNE:	Yes.
DAWSON J:	Did they lay down any point of principle in a way

which you would criticize?

MR BYRNE:	The point of principle which I would criticize is this: once the Court of Criminal Appeal came to
the conclusion that the warning in this case was
inadequate then it should have followed - - -

DAWSON J: It did not. It said that he could have done more

and you pointed out that the trial judge could have

done more, but was it ·inadequate in the sense of

falling short of what the law requires, they said,

"Well, it is a borderline case".

MR BYRNE: Well, no, with respect - - -

DAWSON J: They made it quite clear, I think, did they not,

that in fact a degree of specificity is required?

MR BYRNE:	Yes.
DAWSON J:	In saying that it was a borderline case when,

obviously, His Honour the trial judge did descend

to detail, they must be saying just that.

MR BYRNE: With respect, Your Honour, they said this, that

the case is a borderline one; the instruction

given to the jury falls short of the standard. In other words they were saying, "It may be there, it

may not be, in our opinion it does not quite make

it - it falls short".

Domican 17 6/8/91

GAUDRON J:  I would have read that "borderline" reference to

the further consideration whether, in the

circumstances, there really was a miscarriage of

justice having regard to the other evidence.

MR BYRNE:  I take Your Honour Justice Gaudron's point; that

may be.

GAUDRON J: Which is, I think, what the question that was

really then being asked: was there a miscarriage

of justice?

MR BYRNE:	I think that is right.
DAWSON J:	I know you have not gone to that point yet, but

that may be a real question: whether, in looking

at identification evidence - which may or may not

have been the crucial evidence, who can say - you

can take into account the fact that there was other evidence so as to lessen the obligation to give the

proper warning in relation to the identification evidence. I know in one of the passages we have

just referred to by Lord Justice Widgery he seems
to suggest that that is so, but when you come to

actual cases there is a certain difficulty in

accepting that proposition, is there not?

MR BYRNE:  Yes, there is. Your Honour, I would suggest,

with respect, that this type of evidence should be

approached the same way irrespective of the other

evidence in the case. It might be compared - - -

DAWSON J: That you will put, you say, that it is simply

wrong to say that the trial judge can have a lesser
obligation with respect to the directions he is

required to give merely because there is other

evidence. You say in this case the other evidence

was equally suspect and may have been rejected

entirely by the jury and for that reason alone - you cannot say that in this case, but generally, well, anyway that is enough for your purposes in

this case.

MR BYRNE:  Yes, Your Honour. The point which

Your Honour Justice Dawson has just put is in line

with what was said by the Supreme Court of

South Australia in a case of Bartels - which I have

copies of, or extracts from. That is reported,

Your Honours, at 44 SASR 260, the particular

passage at page 270 going on to 271. Again, that

is a fairly long case, Your Honours, and I have

extracted the relevant parts. If I can just hand

that up? It might be compared, Your Honours, with

the situation where an accomplice warning, as was

required in this case, is required. The

requirement to give the accomplice warning does not

disappear because there is other evidence. The

Domican 18 6/8/91

need for the warning is caused by the evidence

itself; not because it is the only evidence in the

case.

DAWSON J: Justice Johnston was the only one who referred to

this point, was he?

MR BYRNE:  I apologize, Your Honours, I should refer

Your Honours to the later reference by

Justice O'Loughlin at page 284, where he refers to

the same passage that Justice Johnston has referred

to. That is at about point 7 and, indeed, to the

same comments made by Acting Chief Justice Mitchell

when she was - that was in another case when she

described it as a classical summary of the duty of

the judge where identification is in issue. It

does not add a great deal; it really is the same

material as Justice Johnston has referred to but it

is, it would seem, endorsed by Justice O'Loughlin.

Your Honours, I might say, finally, in respect

of the identification ground, it would be my

submission that because of the apparent departure

from the standards already established by the Court

of Criminal Appeal in this particular case and

because of the failure of the Court of Criminal

Appeal to grant the applicant a new trial once it

had been established that the directions given to

the jury on the subject of identification were

inadequate, to alert them to the dangers in this

particular case, that that is a matter which is an

appropriate question for the grant of special

leave.

I would also, in support of that proposition,

ask this Court to consider that the Court has not,

on any prior occasion, dealt in detail with the

question of when a warning is required and if a

warning is required, what the nature and content of

that warning should be.	May it please
Your Honours.

GAUDRON J:	I take it you do not rely on the other matters?
MR BYRNE:	I am sorry, I do wish to go to the ground in

relation to the fresh evidence. I propose to be

much briefer in relation to that matter,

Your Honours.	I have set out a summary of the
arguments - - -

GAUDRON J: Is it evidence at all?

MR BYRNE:	I am sorry?
GAUDRON J:	Is what you are dealing with evidence in any

event? I mean, the most you could do, could you

Domican 19 6/8/91

not, is cross-examine on the basis of this

material -

DAWSON J:  Was this not covered in Davies and Cody anyway?

There you have a witness who swore an affidavit and

said that his evidence was untrue and then swore

another affidavit saying the affidavit was untrue

and that was not fresh evidence. This is no

different to that, is it?

MR BYRNE:  Your Honours, in my submission it is. You have a

position where a witness's evidence has been, in

effect, shown to be or disclosed to be false.

DAWSON J: It has not been; he might have been telling an

untruth the second time round.

MR BYRNE:  Yes, it is a matter for the jury, ultimately, of course.

DAWSON J: It is not fresh evidence.

MR BYRNE:  It was a situation where the Court of Criminal

Appeal determined that it was appropriate to be

permitted as fresh evidence and once having

permitted it and finding it to be cogent and - - -

DAWSON J: Justice Gaudron is suggesting to you it is not

fresh evidence at all and that seems to me, for the

moment at any rate, to have some merit, that

proposition.

GAUDRON J: Indeed, is it evidence at all in this sense that

the most you could do with it is use it as the

basis for cross-examination.

MR BYRNE:	Yes, you may not be able to call it in its - - -
GAUDRON J:	You could not tender the solicitor, or indeed

call her, I should say.

MR BYRNE: Yes, Your Honour. Well, Your Honours, the

material that is contained in the summary of

argument and the outline that has been prepared

probably puts it as high as it can be put and I do

not seek to add anything to that.	May it please
the Court.

DAWSON J: Thank you, Mr Byrne. Mr Howie.

MR HOWIE:	Your Honours have gone through - - -
DAWSON J:	Just one moment.  We will not need to hear you on

the last ground.

MR HOWIE:  Not on the last ground, right, thank you. The

situation really is quite clear, from reading those

Oomican 20 6/8/91

cases that my friend has referred to, that there is

no fixed standard or formula and one can always, I

suppose, on appeal, perfect the directions that one

might have thought that the trial judge might have

given at the time in the cold light of the appeal

court and after consideration of the summing up.

DAWSON J: But the trouble here is that the Court of

Criminal Appeal apparently viewed the direction as

being inadequate but said that in the circumstances

of this case where there was other evidence that

overcome the inadequacy.

MR HOWIE:  No, well, what they were saying, though, was it

not - the view, we would say, and the proper

function of the Court of Criminal Appeal is to look

at the identification directions and the warnings

in the context of the trial with summing up as a

whole and then determine even if they are defective

whether, in the circumstances of this particular

case, those deficiencies and the warnings and

particularly looking at what the deficiencies are

would have resulted in the possibility of a

miscarriage of justice.

GAUDRON J: But there are some deficiencies which inevitably

constitute a miscarriage of justice. What is put

against you is where the jury is left with an

impression or may have been left with an impression

that the evidence would carry more weight than it

could, that is a deficiency that is, in itself, a

miscarriage of justice no matter what the other

evidence is, save perhaps where the evidence

actually bolsters the evidence which is, in its

nature, unreliable.

MR HOWIE: Well, no, I suppose it is, at the end of the day,

whether there was such a defect in the

identification evidence that it could not be relied

upon in the absence of any other evidence or that

the - - -

GAUDRON J: Not that it could not be relied upon in the

absence of other evidence, but that without a

warning there was a risk it might have been relied

on in a way that would not have happened if a

warning had been given.

MR HOWIE:  But what particular warning? I mean, the jury

here - it was made clear by His Honour, no contest

about this, that they had to appreciate and they
had to take a look at the identification evidence

with care and he gave all the standard

directions and not just in some - as His Honour

Mr Justice Harry Gibbs was saying in Kelleher, not

a perfunctory or a half-hearted recitation of some

formula but in a real sense indicated to them the

Domican 21 6/8/91

dangers in identification evidence and the dangers

in this particular identification evidence in many

aspects.

Now, all that is put against is that there are

other aspects which he did not refer to; factual

type matters which he did not refer to which may

have indicated to the jury that there was some

defect in the identification evidence which they

may have otherwise overlooked. I mean, what the

Court of Criminal Appeal said is you have got to

look at it in the context of the trial. Clearly,

this material would have been canvassed by defence counsel and the prosecution ad nauseam in which he

does bring into account some matters; he does

direct some matters in relation to Mrs Flannery's

evidence - both at pages 87 when he is going

through the arguments by counsel - and it cannot be

that he has to give his judicial weight to every

conceivable factual matter. What he has got to

give his judicial weight to is that - - -

DAWSON J:  But the Court of Criminal Appeal said it did fall

short of the standards required:

The instruction given to the jury by Roden J

falls short of the standard required by Allen

and Finn.

That was their view.

MR HOWIE:	Yes, but the standard it fell short in was only in the specificity of all of those matters, or of every matter that he should have perhaps referred
to. That was the falling short. There are a
number of matters which he did not actually refer to. Many of those matters, if you go to them, in
fact were credibility questions rather than
reliability questions of identification. Most of
the attack upon Mrs Flannery was not that she was
unreliable in her identification evidence, but in
never identified Mr Domican at all.
fact she was not telling the truth, that she had

And this is where the long delay came into

account, this is where the fact that it was said

that somebody else had told her that Mr Domican had

done the shooting and therefore that is why she

later on told police about it. That is why she had
never mentioned Mr Domican to the police earlier

on. That is why this identification evidence was

not just unreliable, it was in fact untrue.

And so much of his directions were posited to

questions of credibility, or most of the arguments
now that are being raised were matters of

credibility of Mrs Flannery, rather th.an matters of

Domican 22 6/8/91

her reliability. And many of these factors that

disguised, or the fact that the man was disguised

have not been addressed are really fairly blatant.

and that might affect your ability to identify him,

we would say, would be obvious to a jury.

McHUGH J:  I think that is right, and speaking for myself,

it seems to me that a jury would have to be almost

stupid to have been under any delusions or

illusions about identification evidence. Having

said that, it may be that this is a case for

special leave simply so that this Court can clarify

the whole issue as to whether these cases like Finn

and Dickson just go too far in what they - - -

MR HOWIE: Well, actually Burchielli and Dickson have been

back-pedalled from in Victoria. There is a case of

Vincec, which I can hand you up, which is perhaps

the latest from the Court of Criminal Appeal in

Victoria, (1990) 50 A Crim R, and that is of the

Full Court in Vincec, in which they are again

emphasizing that, really, you - it is very much

like this because the complaint here was not a

complaint in generalities, it was a complaint about

specifics. It was a complaint, relying no doubt on

Dickson and the other trend of authorities in

Victoria, that the trial judge had not addressed

his mind to every matter. At page 206:

Nor do we consider, notwithstanding the careful and helpful argument presented on

behalf of the applicant, that the warning

given by the judge was deficient in either its

amplitude or its strength. The need and the

reason for the witness's evidence to be given

careful scrutiny were succinctly but fully

explained to the jury. In relation to the

question of the witness's reliability in
connection with her evidence of identification

the judge referred to all the matters which,

in the context of the case in hand, might

relevantly have borne on the question of

reliability. It is true, and much was made of

this upon the hearing of the application, that

the judge did not in relation to every aspect

of the warning remind the jury of the evidence

that bore on an evaluation of that particular

aspect. For example, the judge warned that the distance at which the observations were

made was one of the matters to bear in mind.

But he did not then point out the evidence as

to the distances, namely, that they were such

as would exist between two people standing

beside the door of a car ...•. or that between

two persons seated in a car. There are other

instances. However, it is to be remembered

Domican 23 6/8/91

that the evidence bearing on these matters was

dealt with in the summing up in the course of

the judge's summary of the witness's evidence.

The complaint was not that there was an

omission to remind the jury of the evidence;

rather that it was not linked to the judicial

directions on the issue of identification as

each direction was given.

Now, there are matters in here, we say - and at the

bottom of page 206 and over to 207 they refer to

earlier decisions and say that people are making

too much of them, of Burchielli and Clune, the

earlier cases which seemed to set some precedent,

and saying, "Look, there is no formula; you don't

pick bits and pieces out of these cases; you have

to look at individual matters and you have to

assess the warnings in the context of the case, as

it were".

A similar situation was one the court looked

at in a case called Haidley and Alford in the Full

Court of Victoria. I could hand that up to you,

but it is again where the court was pulling back

from these very strong statements in Burchielli and

Dickson, which they said were being given far too

much weight. Down at the bottom of page 231, after

talking about Burchielli and various other cases:

I have made these observations because much of

the argument before us proceeded upon the

basis that the mere failure of the trial Judge

to apply some proposition which could be

extracted from a judgement in one of the cases

led to the conclusion that there had been a

miscarriage of justice. Yet where there is a
miscarriage in an "identification" case, it is

not because some rigid proposition or formula

has not been applied or recited, but because

there is a reasonable possibility that

witnesses as to identification have been

mistaken.	The existence of such a possibility
may be inferred from, or at least not be

excluded when there has been, a failure to

give a direction that is appropriate to the

circumstances of a particular case, but it is

necessary to guard against elevating the
developed rules and practices relating to

identification evidence above the end they are

designed to produce. The ultimate question

for this Court, so far as the directions of

the trial Judge are concerned, is whether the

summing-up was sufficient to bring home to the

minds of the jury any dangers lurking in the evidence given by the identifying witnesses,

to use the phrase of Winneke C.J.	in R. v
Boardman.

Domican 24 6/8/91

And right at the end, Mr Justice Brooking, at 255,

adds to what was said by the Chief Justice and

again refers to Williams, right at the bottom, at

about 40:

"It may be that too much emphasis is being

placed on the language of the Court in

Burchielli's Case. As the Court was at pains

to point out, it was not to be understood as

saying that in every case where identification

is an issue every one of the matters mentioned

should be referred to in the charge. Yet

there is an inevitable tendency of trial

Judges to adopt a cumulative approach that

takes up issues raised in prior cases. On a

literal reading of the main judgment, if all

the matters of possible warning including the

dicta approved in other judgments are
enumerated, they exceed some 50 items. This

follows if, for example, the jury are directed

to all such circumstances as to the time the

witness was under observation, the distance,

the quality of light, the nature of other

distractions, the nature of any and what

obstructions, and so on.

And then he says that:

such cumulative approach should -

not be carried on with. But Allen is the same - in

New South Wales. Allen is one of the cases which

Mr Justice Kirby said was one of the test cases or

one that set the high test. At the bottom of

page 444, having ref·erred to earlier cases of the

Court:

Within those authorities, it is plain

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

upon identification evidence. Likewise, there jury in relation to the weight they can place	is no validity in the proposition that a trial
judge must in effect 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

Domican 25 6/8/91

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.

Just later, in the passage about half-way down the

next paragraph, starting:

It is the need to accommodate the warning to the circumstances in which the use of

identification evidence will fall for

determination by the jury that leads, in my
view, to the desirability of recognising a

considerable range within which the trial

judge must determine the extent and nature of

the warning which is called for. The

overriding responsibility of the trial judge

is to ensure a fair trial. The adequacy of a

warning and factual assistance -

that is why we talk about this case, the factual

assistance -

given to the jury in an identification dispute

are essentially to be evaluated in the light

of this ultimate and important requirement,

that is to say, the ensuring of a fair trial.

The ultimate test aired by the Court of Criminal

Appeal is posed at page 446 and in this case was one in which the deficiency was in some of these

specific matters but the court did not disturb the

verdict:

Undoubtedly, in the more deliberate

atmosphere of this appellate court, one can
formulate directions and warnings -which might

have been given by his Honour to the jury, and which might have conformed to what was said in

Turnbull's case, and which might have been

requisite under the law as it stands in

Victoria. There are specific elements of

warnings of identification customarily

encountered that are not seen to be included

in his Honour's warnings. The final question,

however, which this Court must answer is whether the jury had been thoroughly and

adequately warned on the dangers of

identification evidence, and whether they had

had a requisite degree of assistance in

relating those warnings to the factual matters

before them for their deliberation.

When it comes to the question, as it is in

this case, where the only defect is a defect in

particularity - that is, relating to some of the

factual matters - we would say that the absence of

Domican 26 6/8/91

any complaint by defence counsel is an important

matter. That was said to be so in Vincec because

where you are relying upon or where the complaint

is that certain factual matters were not brought to

attention or were not emphasized then, clearly, we

would say, the absence of any complaint by counsel

in the atmosphere of the trial in the knowledge of

how important the identification was in its
relevance in the question here, in this trial,

which was so much about her credibility rather than

her reliability, that the absence of counsel in

such a situation is important.

Now, it is true in Davies and Cody that the

absence of counsel cannot allow the judge to not do

his duty but as to extent of the warning necessary

in a particular case that we would say that

counsel's view or the absence of counsel objection

is important.

GAUDRON J: There is one aspect that I could be assisted on,

I think. You mention that the dispute was about

the credibility of Mrs Flannery and doubtless that

may have been at the forefront of the contest

established at the trial but there must always have

been an issue as to reliability and if counsel did

not concentrate on it it seems to me that perhaps

it was even more important for the trial judge to

draw attention to those matters which did not go to

credibility or did not detract from credibility but

which called the reliability into issue.

MR HOWIE:	No, but many of these matters that are raised as being complaints about it are matters of
credibility.

GAUDRON J: Yes, some are but they are not all.

MR HOWIE:  Not all, but if you have a look at the ones which

are not. I mean, if we go to those, nearly all of

them are covered either by credibility or in the

directions at pages 87 - which has already been

referred to, where he went through counsel's

arguments - - -

GAUDRON J: That is a very brief statement at page 87.

MR HOWIE: 

No, but it at least points out to some of those

things and it certainly points out that not only
was counsel arguing about credibility but also

reliability.

GAUDRON J: 

Yes .

MR HOWIE: 

So that both of those issues were being fought

and one would expect counsel to do that. If

counsel were to say, "She is lying but even if you

Domican 27 6/8/91

don't accept she is lying she couldn't know anyway

and that is why she is lying because she would not

have been able to make the identification". But

one has to look - this is a lengthy trial; there

was a summing up of 97 pages.

I mean, it cannot be required for a trial

judge to go through and to develop every factual

consideration. His Honour has gone through and

indicated all of those matters in his general

warnings and what is a general warning is a bit of

an open question. Here, clearly, the general

warnings are normally just bringing your authority

to say that mistakes do happen in identification

cases but he went much further than that. He

identified the four major issues - at page 26 -

which were right and prominent in this question,

that is: previous knowledge, good an opportunity,

long elapse between the event and the circumstances

of the recognition. He fully canvassed those

matters, drawing on the particular evidence at some
stages in this matter where he thought it was

necessary to do so.

But what the Court of Criminal Appeal has

decided is that, notwithstanding that it may not

meet these very high standards that might have been

sought to have been seen in Albert - and, as I say,

Albert was a case where, notwithstanding that there

might have been some deficiencies, the court still

did not interfere and left the conviction because

they were satisfied that, notwithstanding the

deficiencies, at the end of the day the jury was

adequately alerted to the dangers of the

identification evidence.

What the Court of Criminal Appeal did in this

case was to say, "We'll look at it all; was there

a miscarriage of justice by that failure that we

perceive in the strict rules?" - and I emphasize

again that the failure is only one in actually

identifying or lending his weight to certain

factual matters - and said, "Well, are we satisfied

that there has been no miscarriage of justice?".

Now, this was not an unusual step for the

Court of Criminal Appeal to take, even for a bench

very similar to this one. In a case called Bigeni,

which came out just before this matter, the Court

of Criminal Appeal again did exactly that.	It went
through the evidence, at page 372:

The duty of a judge to give warnings

concerning the dangers of visual

identification, where this is in issue in a

criminal trial, is clear. It has been stated

many times in this Court and in other courts.

Domican 28 6/8/91

The warnings to be given must reach an

appropriate degree of specificity by reference
to the evidence in the case. It is not

sufficient that the warnings should have been

brought to the notice of the jury by counsel,

by way of questions or address. It is the

duty of the judge to bring the authority of
his office to the warnings to ensure that they

receive appropriate attention from the jury.

However, there is, in this State, no fixed

formula to be used or rigid checklist which

must be given by a judge whenever an issue of

identification is raised, in default of which

a guilty verdict will be set aside.

He refers to Allen which is the one I was referring

to.

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.

This is the point -

GAUDRON J: Well, that, as a proposition, is one with which

I have very considerable difficulty. What that

seems to me to be saying is, "Let's assume there is

some defect in the trial. None the less we are

entitled to second-guess the jury by having regard

to the other evidence".

MR HOWIE:  No, with great respect, what it means is that, in

the view of the other evidence, was it a

miscarriage of justice that some defect occurred in

the identification warnings?

GAUDRON J: Well, again, I say to you, it is never a

question in these cases, I should not have thought,

whether there is sufficient evidence on which a

jury might convict. Now, that seems to be what is

involved in that proposition that is there written

at the top of page 373.

MR HOWIE: It is interesting. In Reid v Reg, the case that

is-referred to by my learned friend and by the

Court as being the new enunciation of this, the Privy Council decided that notwithstanding that one of the warnings given to the jury was not fully appropriate but because there was other evidence of

some evidence of an admission that in those
circumstances there was no miscarriage of justice,

it took the same stand that this Court was doing in

that matter and in this. That is because the

court, at the end of the day, like any.case where

Domican 29 6/8/91

there has been some warning problem, is to look at

the end of the day as to whether that defect in the

warning has brought about a miscarriage of justice

in its opinion. It does that by looking at the

whole context of the trial.

GAUDRON J:  And that question must be whether or not it has

deprived an accused person of a chance of acquittal

that was reasonably open?

MR HOWIE: Well, this Court has concluded that it has not,

on the basis of this whole case and looking at what

the particular defect is. As I say, it may be that

the defect is so bad, for example that he has not

given any warning at all or that the warning has

been some rote formula which does not really give

them any assistance. But where it is, in this

case, just some matters of detail - - -

GAUDRON J: Yes. If the jury had decided that the

identification evidence was unreliable, could not

be acted upon, then in this case would there not be

a chance of acquittal fairly open to the accused.

MR HOWIE:  But the directions did not deprive them of that.

The directions did not deprive them of coming to a

view that they would not rely upon the

identification evidence. It was brought home to

them, the caution that they would have on it. And

many of the facts, as I say, that were not brought

home to the jury, were - - -

GAUDRON J: That answers the question as to the adequacy or

otherwise of the directions, but on the hypothesis
that they are inadequate, which seems to be the

hypothesis in Bigeni and on which the Court of

Criminal Appeal worked in this case, on the

hypothesis that there is a deficiency, how can you
take the further step that there was no miscarriage

of justice?

MR HOWIE:  Well, we would submit that you can look at the type of the deficiency. How far is it deficient?

In this case, it was not - - -

GAUDRON J: Well, in this case, what the deficiency that is

being put is that there was a failure, you were

deprived of the opportunity, in effect, of the jury

deciding that the identification evidence was

unreliable and it would not act on it.

MR HOWIE: Well, with great respect, we would say the

deficiency does not go that far.

GAUDRON J: That is a different question. It is a different

question whether the deficiency goes that far or

not. That is the question relating to the

Domican 30 6/8/91

directions that should or should not have been

given. But the hypothesis on which the Court of

Criminal Appeal worked, and which is set out in

Bigeni, seems to be that there is a deficiency, but

it can be ignored because of other matters.

MR HOWIE: Well, because, at the end of the day, the court

has got to look at the question - it may be that

the identification evidence is such a small part of

the Crown case, such a very small part of the Crown
case, and the other evidence is so overwhelming or
so important, that the court comes to the
conclusion that there was not, could not be, a

miscarriage of justice, notwithstanding the

identification evidence, or notwithstanding the

warnings given on the identification evidence. And

that is what they decided. They decided this was a

strong case on identification; not just on

Mrs Flannery, but there was a lot of evidence which

corroborated Mrs Flannery's identification.

The motor car that was seen at the scene was

Domican's motor car, or certainly one that looked

like Mr Domican's motor car. He reported his car

stolen shortly after, .and there was evidence about

the improbability of that. There was evidence that

Mr Domican had been seen in the area in an orange motor car, with a number plate which was seen

opposite his house at a later date. The court went

through all of that material and looked at the

question of whether or not there was other material

upon which the jury could have reasonably come to a

view and convicted notwithstanding that there was

some - - -

GAUDRON J: What I am suggesting, that is never the test,

that is never the question.

MR HOWIE: Well, we would submit that the court is - - -

GAUDRON J: That involves second guessing a jury.

MR HOWIE: Well, it involves the question of whether or not

there was a miscarriage of justice in this matter.

But the Court of Criminal Appeal always has to second guess the jury to some degree when coming to

the view of whether or not there has been a

substantial miscarriage of justice.

My friend was just pointing out to me, though,

of course, the difficulty with this type of

approach, that one has to be specific in every

matter, is that you can have numerous witnesses and

have to go through each one, being specific about

it, and what happens if he is deficient in one of

those. Does that mean that because the jury might

have relied upon that single piece of

Domican 31 6/8/91

identification witness and respected none of the

others that there would be a miscarriage of

justice?

We say that this is a function of the Court of

Criminal Appeal, to weigh up all of the evidence,

to weigh up the directions, and come to the view

whether there was a miscarriage of justice if there

was any deficiency, and look at the nature of the

deficiency and how far it goes to the root of the

problem. Thank you.

DAWSON J: Thank you, Mr Howie. Yes, Mr Byrne.

MR BYRNE:  Your Honours, it would be my submission that some

of the materials which my friend has put to you

have indeed exposed what appears to be a divergence

of views between the State courts on the manner in

which this issue should be approached. It would be

my submission that this is an appropriate case for

the grant of special leave for the purpose of

clarifying what is apparently a divergence.

If I might say that, as I have mentioned

before, this Court has never previously dealt with,

in any detail, the question of what directions

should be given to a jury and the standards that

those directions might reach. When one is

confronted with the issue when it arises in trial

courts, there are by now a host of decisions of

State courts and courts in other countries -

DAWSON J:  The effect of which is that the particular

directions which must be given must suit the

circumstances of the particular case, but that any

lurking dangers in the identification evidence

should be brought out.

MR BYRNE:  Yes, Your Honour.

DAWSON J: But what is said, of course, in this case, is

that such dangers as existed did not lurk, they hit

you in the face.

MR BYRNE: Well, Your Honour, I would question that. One

can never be sure exactly, particularly when a case

has run for a long time and where the addresses of

counsel are not recorded.

DAWSON J:	To take an example, if a witness has disguised himself to make recognition more difficult, it is
fairly obvious to a jury that that is something
which they have to take into account, is it not?

MR BYRNE:  Yes, certainly. But there are other aspects of

this case, simply apart from the disguise.

Domican 32 6/8/91

DAWSON J:	Oh, yes.
MR BYRNE:	And whilst my friend has pointed out that it is not every factual consideration that a jury needs
to be addressed on, I would submit that the authorities tend to suggest the opposite where
identification is in issue.  The reason that they
do that is because courts are particularly
concerned about the risk of mistaken
identification.

DAWSON J: There is no doubt about that, but as

Mr Justice Brooking, I think, pointed out, if you

add up all the circumstances which could be

mentioned, they come to some 50 in number, and it

cannot be incumbent upon a trial judge to mention

all 50 in every case.

MR BYRNE:  No, but I would submit that in this case that the

important thing was that the specific weaknesses

were not brought home to the jury.	May it please
Your Honours.

DAWSON J:  Yes. Thank you, Mr Byrne. The application for

an extension of time in which to make this

application is granted ·and special leave to appeal

will be granted. I take it you do not press the

second ground which you have raised?

MR BYRNE:	No, Your Honour.
DAWSON J:	Then it will be confined to the first ground.
MR BYRNE:	May it please Your Honour.

AT 3.58 PM THE MATTER WAS ADJOURNED SINE DIE

Domican 33 6/8/91