Finlay v The Queen

[2009] HCATrans 17

[2009] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B66 of 2007

B e t w e e n -

RODNEY STANISLAUS FINLAY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 FEBRUARY 2009, AT 10.34 AM

Copyright in the High Court of Australia

MR T.F. CARMODY, SC:   I appear with my learned friend, MR S. DI CARLO, for the applicant.  (instructed by O’Sullivans Law Firm)

MR M.R. BYRNE:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes, Mr Carmody.

MR CARMODY:   This application, we say, raises an important point of principle and it arises out of legal error in the Court of Appeal when they rejected an argument that a Domican‑type direction was needed in this trial to ensure that the verdict was safe and that no miscarriage of justice was likely to be involved.  The point of principle is as yet unresolved by decision of this Court and a decision is needed to ensure that the proper administration of criminal justice occurs in future cases.

The factual context appears at pages 133 and 135 of the application book.  The statement of principle from Domican appears at application book 115, paragraph 1, and if I can just take your Honours to that briefly.  It is a familiar statement of the High Court in Domican, that:

Whatever the defence and however the case is conducted, where evidence as to identification –

and we make the point there that that is deliberate; it is evidence “as to” identification, not evidence “of” identification:

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

Reliability was disputed here.  There was evidence as to identification and that evidence represented a significant part of the Crown proof ‑ ‑ ‑

HAYNE J:   You say there was evidence as to identification.  There were certainly descriptions given by eyewitnesses of what they recalled about a person they saw in the vicinity of the crime.  Did any witness ever say “The man I saw is the accused”?

MR CARMODY:   No.  They did not specifically say that, but that is not the only definition of identification evidence. The prosecution here had to prove two things.  They had to prove, firstly, that the applicant was one of the would‑be burglars and then, in order to convict him of the shooting, they had to go on to say which one he was.  On the evidence here, that could not safely be done and it could not be done without relying on the identification by description of the witnesses, none of whom really agreed with each other in their descriptions.

The fact that the jury relied on the identification evidence is apparent from the fact that they convicted the son.  The father was found in the vicinity; the son was not.  All that was found of his was his coat with a note in it, and the presence of that was explained in various ways, perhaps not satisfactorily for the jury.  But the case against the applicant here involved description.  We say it does not matter what label you put on it – it was still evidence as to identification, although the witnesses did not take the final step and say “We recognise the accused as the offender”; it was left to the jury to do that. 

BELL J:   Mr Carmody, is not the reason that a Domican warning is necessary because of the peculiar power when the witness takes what you describe as the final step and says, “The man in the dock is the man who I saw” or “The man I identified in the photo identification is the man who committed the offence”?  There was nothing of this character here.  I am at a loss to understand what lies within the peculiar knowledge of the court that would be the subject of the direction that you seek?

MR CARMODY:   Well, the function of description evidence and what we traditionally call “identification evidence” is the same.  The risks are the same.  The fact that somebody does not identify the accused as the offender and says, “That is the man” is not the only form of identification recognised within the law.  For instance, in Festa, your Honour, Justice Hayne identified three strands of identification evidence.  One:  “Yes, that is him”; two, “That looks like him”; three, “I saw him in circumstances where you could infer it is him”.  It is the last one of those that we say this case is about.  The problem here is the links in the chain that a jury may not be aware of that the court is aware of.

HAYNE J:   Can you give us an example of one of those links in this case?  What is it that the court could tell the jury that they did not know, in effect?

MR CARMODY:   That they could not see for themselves.  They could tell the jury this, that they could not convict of him being the shooter unless they found that he was one of the two men.  Now, it is possible – it is plausible, logically open that him being related to the son, obviously – him being where he was found was explicable innocently and that the two men that were chased away from the scene were two men other than him.  Now, the Crown purported to identify him as one of the two men by the description of a number of witnesses, none of whom had any commonality at all.  The two men that were seen had coats on.  The coat that was seen on the shooter, by the woman who had some fleeting acquaintance with the applicant, had a zipper.  That coat was the son’s coat.  That was the one that was found in the canal.  The other coat had big buttons done up on it.

So on the best version of who the shooter was it had to be someone wearing the son’s coat.  Now, there was evidence that the father, the applicant, fitted the son’s coat, but the arms were too long for him and no one mentions that. 

I know Domican uses the words “seductive effect” and it does not really define what that is.  What it means is that there are lots of different categories of evidence that are unreliable.  We know that from past experience; juries do not know that.  This is one of the categories of potentially unreliable evidence that juries, unless they are told that it could be unreliable and how it is unreliable, and how to check to see whether it is reliable or not can fall into error and no one ever knows, hence the Domican ‑ ‑ ‑

HAYNE J:   I am sorry.  Can I just make sure I understand the facts sufficiently?  The applicant was apprehended soon after the shooting, was he?

MR CARMODY:   Yes.

HAYNE J:   In circumstances consistent with his having been in the canal.  Is that right?

MR CARMODY:   Yes.

HAYNE J:   So he is on the scene?

MR CARMODY:   He is on the scene, yes.  He is found in circumstances that would ask for an explanation and he gave one.  Even though he is in the scene he still has to be one of the two people being chased and not only that he has to be the one who shot the victim.  The only way he could do that, the only way you could link him to that was via description.  The Crown sought to say, as part of their proof, that he – no witness did, but the Crown did – that he fitted the description of the shooter.  So that was the link that the prosecutor took that step before any witness.  It still leaves the jury in the same position.

BELL J:   There was an obvious difference in age between the two men.  Though the civilian witnesses gave differing descriptions of the two men, they were consistent in saying that one was older than the other and they were consistent in saying the shooter was the older man.  That might be one way the jury reasoned to the verdicts that they did.

MR CARMODY:   Yes, but they still had to find that that shooter was an older man and he was as old as this man in the dock and we say that the way they did that was he was the only old man found in the area or the only older man found in the area.  Remember, the son was never found until later.  He was not found on the night.  So you had two men being taken away, one older, to some degree than the other.  That older person was either taller or shorter than the other, he either had a beanie on or he was bald, and yet the link is drawn that it had to be the person found near the canal being wet.  We say, in those circumstances, where that line of reasoning is necessary to join the dots you need a Domican‑type direction. 

Identification evidence, with respect, your Honours, is just one example of a form of unreliable evidence.  These evolve over time.  Before Domican in 1985, those directions were not given.  The case that Justice McHugh relies on in Festa v The King, a South Australian case, predated Domican.  It was something similar to this.

Justice Holmes found that the Queensland Court of Appeal decision in Zullo provided some comfort to the applicant and we, with respect, commend the approach taken by the Court of Appeal in Zullo in its treatment of Domican and what it means.  If I can just take you that, please, your Honours.  You will remember Zullo was a manslaughter case that had two trials.  He was first convicted of murder, retried because of error and then convicted of manslaughter.

Two witnesses at the trial testified that the man who did the stabbing had a red shirt on.  One of those witnesses was too drunk to be reliable.  The other had never said on any pre‑trial occasion that he had actually seen the red shirt stab the victim.  So the issue was not whether Zullo had been wearing a red shirt in the vicinity because that was conceded - that he was the only one with a red shirt in the area.  The question was whether the red shirt was the stabber.  That was the unreliability that the Court of Appeal identified in requiring the Domican direction.

It said that it extends beyond the visual identification, and bearing in mind also that Domican itself was really a case of not mistaken or – mistaken or unreliable identification but identification that the defence said was false or fabricated and there were good indicators that it had been, so it really was not a true visual identification case either, of the Turnbull or Alexander type.  The real difficulty in Zullo was whether the eyewitness had actually been an eyewitness, as he said he had been.

The situation here is that we have a number of eyewitnesses.  None of them say the man in the dock was the man on the night but they say enough to allow a jury, invited by the prosecutor, to draw that conclusion.  So the question is, can a jury do that safely and reliably without being given the Domican‑type instruction and we say, no.  We say it is for the reasons explained in Zullo at page 578 by the Court of Appeal because it is one of those cases where you have the two‑stage identification, you have observation of shared characteristics.

Chief Justice Gleeson referred to observation.  He preferred observation to identification or a direct visual identification or circumstantial evidence of identification or description evidence.  He preferred observation evidence and we say this is the same thing.  Labels, as your Honour Justice Hayne said in Festa do not really matter.  It is the effect of the evidence on the jury unaware that they might be being seduced by evidence of description or identification to convict someone when they are not told or guided by the trial judge with the authority of his office how to go about that task safely.

It is a straightforward direction, “Be careful with this sort of evidence because clearly” – why they needed to be careful here was, clearly, everybody saw the same people but they came up with different descriptions and the jury had to use that body of evidence, that body of conflicting description to say the applicant was one of the men running away and not only that, he was the one who did the shooting.

All we know really other than that was that he was found in the vicinity and he was wet and he was the only one – there was not even at that point anyone to compare him with by respect to height or age; he was the only one there.  So you could not say he was the older of the two.  All you could say in this trial was that he was an old man, and that is not how the descriptions went because nobody identified him except by description.

Justice Holmes, if I can go to her treatment of the cases, and we do not really suggest that her Honour made any error except when she came to looking at the reach of Domican‑type directions and whether it included what Justice McHugh called in Festa circumstantial identification evidence of the King type.  She identified three things that his Honour could have done but did not do, and we say, with respect, she was precisely right, that those limitations of the witnesses, their capacity to observe the people, the lighting, all those things were just as relevant to this sort of description evidence as they are in strict identification cases.

The other thing he did not do, with respect, and we say that at least should have been done, was he should have lent the authority of his office to the defence counsel’s submissions about the witnesses in the case, and that is one of the major tenets of Domican.  Do not just say, “This is what defence counsel say”.  Say, “Without deprecating the strength of the Crown case, without deprecating any of this”, but say, “listen to what they say about this because experience has shown that this sort of evidence can be

unreliable and it can be unreliable if you do not assess it very carefully, and this is how you go about assessing it and evaluating it”.  They did not get that benefit, and they did not get any warnings.

Then her Honour finally at paragraph [47] of her reasons but 119 of the record says it is:

sufficient for the judge to point to the defence contentions about the deficiencies in the evidence, while emphasising –

the standard of proof.  She did not think miscarriage had occurred.  So she adopted your Honour Justice Hayne’s test in the Zullo sort of situation from Festa.  That is, where all you have got is, “I saw a man in a red shirt”, that might be at the far end of the spectrum and that might be all you need is some reference to it by the trial judge without lending the authority of it.

But this was not, “I saw a man in a red shirt” case.  This was much more than that, and therefore required a much stronger direction on the point.  We say, your Honours, that there was a miscarriage of justice for that reason or there might have been - he lost the fair chance of acquittal otherwise open to him.  He should be given another opportunity before another jury to defend himself, and the miscarriage of justice is substantial.  They are my submissions, thank you, your Honours.

HAYNE J:   Thank you, Mr Carmody.  We will not trouble you, Mr Byrne.

The applicant seeks special leave to appeal to this Court to argue that the directions given at his trial did not warn the jury that it would be dangerous to convict the applicant without close scrutiny of specific aspects of evidence given by eyewitnesses describing the offender.  The particular aspects of their evidence requiring such scrutiny were not identified in argument, whether in this Court or in the courts below.  Although witnesses gave evidence describing the man they saw at or near the scene of the crime, no witness purported to identify the applicant as the offender.

There was no occasion in this case to give a direction of the kind described in Domican v The Queen (1992) 173 CLR 555 at 561 to 562. We are not persuaded that it is in the interests of justice generally or in this particular case that there be a grant of special leave to appeal. Special leave is refused.

The Court will adjourn to reconstitute.

At 10.54 AM THE MATTER WAS CONCLUDED