MR R. KELEMAN: May it please the Court, I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Yes, Mr Corr.

MR CORR: Yes, your Honours. The Court of Criminal Appeal found that it was fair that a person who appeared to be in their mid‑forties should be identified by comparison to a number of people who appeared to be approximately 30. The rationale for this appears to be that the person was, in fact, approximately 30 and that he should be compared with those people he would expected to look like.

KIRBY J: Do we have the photos? It was conducted by photograph, was it not?

MR CORR: It was, indeed.

KIRBY J: Are they available to the Court?

MR KELEMAN: We have brought the video along and if the Court is minded to, we are happy to make it available to the Court. I do not know whether you have video facilities inside. It is a standard video.

KIRBY J: Somewhere in the bowels of the Court. Is it important for the applicant’s case?

MR CORR: Well, it was accepted by the Court of Criminal Appeal in Justice Grove’s argument at page 88 of the application book. In the third paragraph, he said:

They could be criticized if they asked for an identification to be made of the appellant where he, aged thirty one, was placed in a photographic line‑up, as it were, with men of maturer years, say in the mid forties, which is, to my eye, the appearance that the appellant displays in the photograph.

BRENNAN CJ: What is the question of principle?

MR CORR: The question of principle is whether, when a person is placed in a line‑up or a photographic identification of some sort, whether, if there has been some change in their features either by themselves or naturally occurring, they should be placed with the people they would be expected to look like or those people that they do, in fact, look like. If the logic of ‑ ‑ ‑

BRENNAN CJ: Is this a general question of legal principle or is it just a question of the way in which you fairly conduct a line‑up or similar identification procedure?

MR CORR: Well, I think it goes to the general fairness of identification evidence generally because if the person is sufficiently distinguished from the other persons in the line‑up or the photographic identification becomes that they are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gordon v The Queen

Details

AGLC: Gordon v The Queen [1996] HCATrans 271
Case: [1996] HCATrans 271
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Gordon against the Crown, following his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant and the proper application of the law relating to self-defence in the context of a murder trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellant, specifically statements made by him and a knife found in his possession. Furthermore, the Court had to consider whether the jury directions on the issue of self-defence were adequate and correctly reflected the relevant legal principles.

The Court held that the evidence obtained from the appellant was unlawfully obtained and should have been excluded. Brennan CJ and McHugh J found that the search of the appellant's premises and the subsequent seizure of the knife were conducted without lawful authority, and the statements made by the appellant were tainted by this illegality. Kirby J, while agreeing with the outcome, focused on the broader question of whether the admission of such evidence, even if unlawfully obtained, was in the interests of justice. The Court also found that the directions on self-defence were insufficient, failing to adequately explain the subjective and objective elements required to establish the defence.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders