Ida v The Queen

[1991] HCATrans 192

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl41 of 1990

B e t w e e n -

ROY IDA

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 6 AUGUST 1991, AT 11.27 AM

Copyright in the High Court of Australia

Ida 1 6/8/91

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

applicant. (instructed by Benjamin & Khoury)

MR R.N. HOWIE, QC:  May it please the Court, I appear with

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

respondent. (instructed by the Solicitor for

Public Prosecutions)

DAWSON J: Yes, Mr Kintominas.

MR KINTOMINAS:  Your Honours, there are four grounds upon

which the applicant contends that he should be

given special leave to appeal.

The first ground is the question of whether

this Court should intervene in a situation where

the Court of Criminal Appeal in discharging its

duty to assess the facts where the complaint to it

is that the verdict was unsafe and unsatisfactory

either gets the facts wrong or in circumstances

where there is considerable and grave doubt as to
whether or not it properly understood the facts at

trial. That is the first point, Your Honours,

whether this Court ought to intervene in those

circumstances.

The second point, Your Honours, is this, and

it is submitted it is a matter of some importance

justifying special leave, is whether the Court of

Criminal Appeal is in error in a situation where it

is asked to assess not the veracity of

identification evidence, but its reliability;

whether the Court of Criminal Appeal is in error

when it reaches a conclusion that the

impressiveness of the identification witness is a

matter which can overcome what would otherwise be

an objectively difficult thing to believe, that is,

whether impressiveness can overcome a problem where

the problem suggested is one of reliability rather

than one of veracity.

The third matter, Your Honours, is whether it

is sufficient in line with the authority laid down

by this Court merely to ask the question, "Is it

reasonably open to the jury to convict?", when the

complaint has been that the verdict was unsafe and unsatisfactory, without applying any further parts

of _~he formulae that this Court has suggested.

The fourth point, Your Honours, which may

attract special leave, is in a situation where

there has been a misdirection at trial which was

not complained of at trial, whether the

consequences of that may be something that ought to

be taken properly into account by the Court of

Criminal Appeal when assessing whether that verdict

is unsafe and unsatisfactory.

Ida 2 6/8/91

Your Honours, if I could come back to the

first point - - -

DAWSON J: Just before you leave the last one, you do

contend that there was a misdirection here, do you,

on the question of identification?

MR KINTOMINAS:  Not on the question of identification,

Your Honours. I contend that there was a

misdirection in another respect which did have some

bearing on the overall position as to whether or

not there was a reasonable doubt or whether the jury should have arrived at the conclusion that there was a reasonable doubt about the accused's

guilt.

Now, in respect of the first matter,

Your Honours, as Your Honours would, no doubt, have

read in my outline of argument, there were a number

of matters in respect of Connelly's identification
of the applicant which the applicant says, if you

take them all cumulatively, would have got to a

situation where the verdict ought to have been

regarded as unsafe and unsatisfactory. The Court

of Criminal Appeal did recount all the matters

excepting the matter of distance, which was a very

critical and important matter, in our submission,

particularly, Your Honours, in this regard, that it

was not only a question of distance but a question of distance having regard to all the other factors
which all combined. That is, Your Honours, if

distance was the only problem the case may not have

been as grave.

Your Honours, the situation, just to recapitulate in a nutshell, was that Mr Connolly

saw a person fleeing away from the scene of the

fire. That person was running towards him. It was

in the early hours of the morning in July.	He had
never seen that person before.	The closest that

person got to him was 60 to 70 metres away. He had

him under observation for only a short period of

time. There was no identification parade held by
the police and Mr Connolly purported to identify

the appellant in November of the same year, having

seen him in the precincts of the coroner's court.

Your Honours, the fact that the fugitive was some 60 to 70 metres away was an important matter

that the court should have had regard to. There is

nothing in the judgment at all which indicates that

that fact was taken into account. There is no

reference in the judgment at all that the closest

that the fugitive got to Mr Connolly was 60

to 70 metres. In fact, Your Honours - - -

Ida 6/8/91

DAWSON J: This was a fact which was, of course, before the

jury?

MR KINTOMINAS:  Yes, Your Honour.

DAWSON J: Yes, but what you are saying is that because the

distance was 60 to 70 metres the appeal court

should have held that the evidence was suffering

from a defect in quality and it was one of those

rare cases where they should have rejected the

jury's assessment of the quality of the evidence

and substituted their own judgment?

MR KINTOMINAS:  Yes, Your Honour.

DAWSON J: That is a difficult argument to sustain, is it

not?

MR KINTOMINAS:  Your Honours, the fact that it may be rare

that it happens would not necessarily mean that it

is a difficult argument to sustain in the

appropriate case and, Your Honours, it would

certainly be our submission that it was appropriate

in this case.

DAWSON J:  The jury saw the identification witness. They

heard the circumstances of the identification.

They were able to assess the reliability of his evidence and they chose apparently to accept it.

MR KINTOMINAS:  Yes, Your Honour.

DAWSON J: And you say, nevertheless, the Court of Criminal

Appeal should have rejected it and said that no

reasonable jury could have accepted that evidence

because of some inherent defect in its quality?

MR KINTOMINAS:  Yes, Your Honour, and Your Honours, that

perhaps may be more of an argument relating to

the -

DAWSON J: The witness was not a congenital liar? He was

not a man who was suffering from some mental

abnormality?

MR KINTOMINAS:  No, Your Honour. Your Honours, the attack

on Mr Connelly's evidence was not that he was a

witness of untruth or that he was a liar, but

merely if you took into account everything that he

had to say that you would still have to come to the

conclusion that what he was saying - well, perhaps

if I could put it this way, Your Honours. Whenever

anyone gives evidence in a court, "I identify

so-and-so as being the person I saw on a previous
occasion", what he is actually saying is, "I

believe that the person I see now is the person I

saw on a previous occasion".

Ida 6/8/91

The fact that he genuinely believes it and may

be able to say that impressively to a jury is a

different and separate question as to whether he is

right.

DAWSON J:  What you are really putting to us is that

evidence of identification at a distance

of 60 to 70 metres of a man who is running at the

time, at night, in a car park which is - lit?

MR KINTOMINAS:  Yes. There were overhead artificial lights.

DAWSON J: Subsequent identification by a person who has

only seen the person on that one occasion is

inherently unreliable to the extent that it cannot

support a verdict.

MR KINTOMINAS: If one takes all the circumstances - - -

DAWSON J: Reasonably support it.

MR KINTOMINAS: - - - in this case into account. There was

also a lapse from July to November between the
occasion of the sighting and the occasion that the

witness first identifies the person that he saw.

There was also, Your Honours, a question of some

minor, but one would say, worrying inconsistencies

between the version that Connolly gave to the
police and the version that he gave at trial, and

indeed, if one has a look at the objective facts,

one problem, Your Honours, was the age of the

applicant. At the time of the offence, the

applicant was aged 19. Connolly, in his statement

to the police, said that the person he saw was in

his late 20's, early 30's; at trial, said

between 20 and 30.

There was also a question, Your Honour, of

there being some streaks in the applicant's hair.

Now, the Chief Justice concluded that in so far as

the applicant's evidence to the jury was concerned,

the jury may have concluded that he was

over-dramatizing the effect of the streaks.

Nevertheless, there were prosecution witnesses who

talked about his hair having a golden-blonde

colour. When Connolly was asked in front of the

jury, "Did the person that he saw running at him

have any streaks in his hair?", he said, "Nothing

that was very prominent, no".

DAWSON J: These were all before the jury, these matters,

were they not?

MR KINTOMINAS: Certainly, Your Honours, but, Your Honours,

the first and initial point that I wanted to make

was that it was the duty of the Court of Criminal

Appeal to look at all the facts and the first

Ida 6/8/91

problem may well be that they did not look at all

the facts. That is, they missed the point that one

of the difficulties was that Connolly was 60

to 70 metres away at the closest to the fleeing

offender, or the person who was assumed to be the

fleeing offender. Now, in its judgment - and I

take Your Honours to page 21 of the appeal

book - the court, in recounting the facts - the

judgment was given by the Chief Justice. Talking

about Connolly, he said:

He heard the explosion that accompanied the

commencement of the fire and he saw a man come

running towards him from the direction of the premises. The man ran past him, got into the

motor car, to which reference has earlier been

made, in which there were apparently three

other people already present, and the car

drove off. This occurred in the month of
July 1987.

Your Honours, the first point is that those facts are wrong. He did not run past him. What the

evidence showed, Your Honours, was that he ran

towards him. He was initially some 120 metres

away. He got to a point where he was about

60 to 70 metres away and then veered off to the

right and got into a car. Only in the sense that

he crossed his line of vision could the statement

that he "ran past him" possibly make sense, but

Your Honours, what is normally understood by the

words "ran past him" is to run alongside or to run

pretty near. If Your Honours take into account

what happened at the conclusion of that paragraph,

which is recounted in paragraph 28 of my outline

which is on page 5 of the appeal book - I

understand, Your Honours that what is related here

is not disputed by the Crown but I do have an

affidavit deposing to the effect that this is what

did occur.

Your Honours will see that the Chief Justice,

after making those remarks about the man running

past him, then said:

The person running away from the scene of the fire was seen by another man but he was some

60 or 70 metres away; see page 71 of the

transcript.

Page 71 of the transcript, Your Honours, related to

the cross-examination of Mr Connolly, where

Mr Connolly pretty well reiterated what he had said

in-chief, that the closest he had got was - well,

he said 60 metres in cross-examination; he had said

60 to 70 metres in examination in-chief.

Ida 6 6/8/91

Your Honours, what did then occur was that

Mr Justice Loveday tapped the Chief Justice on the

shoulder and there was a short conference between

them and the Chief Justice then directed the

shorthand writer to remove the sentence that he had

uttered, that is:

The person running away from the scene of the
fire was seen by another man but he was some

60 or 70 metres away.

He acknowledged that it was only Connolly who had

sighted the offender and no one else. Now,

although, Your Honour, that would appear at first

glance to retract an error, it still leaves some

questions hanging in the air.

The first, Your Honours, is this: that merely

from what the Chief Justice said:

but he was some 60 or 70 metres away -

indicates, at least, an acceptance that

60 to 70 metres away may cause a problem.

Secondly, Your Honours, there is no complete

correction and there is no acknowledgement in the

judgment as it stands of the problem of distance.

The Chief Justice did not go back and say, "Well,

even accepting that Mr Connolly was 60 or 70 metres

away at the closest time, we are still of the view

that the jury was entitled to convict and we cannot

say that they must have had a reasonable doubt in

all the circumstances". There is just no

acknowledgment of that fact per se.	I cannot take
that particular - - -

DAWSON J:  No, well, I think we have the point.

MR KINTOMINAS:  - - - matter any further. As to - if the

Court were to see in it as to whether or not that

Court of Criminal Appeal, or whether that is a	is a matter that ought to be referred back to the
matter that special leave should be granted, I am not sure that I can assist the Court.

On the second question that, in my submission,

merits special leave, Your Honour, is the question

of the situation that the veracity, as I put to

Your Honours before, of Mr Connolly was not really

being questioned. He believed that it was the

applicant that he saw. But the question that

arises, Your Honours, is, what was the proper

approach of the Court of Criminal Appeal to take?

Now, in Chidiac this Court, of course, did say

that proper regard had to be given to·what the jury

Ida 7 6/8/91

could well have made of a witness in terms of his

credibility but, in my submission, there is nothing

in that which is really relevant to this case, and

the reason is that this is not a case where the

veracity of the witness is in issue, unlike Chidiac

where, as I understood Chidiac, there were a couple

of accomplices who were men of bad reputation and

no character and even the trial judge said that the

jury should be careful before they hung a dog on

their evidence, and this Court said in Chidiac,

"Well, nevertheless, what the jury made of the

accomplices was really up to the jury".

Of course, Your Honours did state in that case

that, nevertheless, the Court of Criminal Appeal

ought to review those facts having regard to what

the jury made of the accomplice witnesses, but this

is not a situation where the Court is being asked

to interfere with the jury's assessment of

someone's credit.

DAWSON J: Not credit, but to whether his evidence was

acceptable or whether it suffered from some defect

in its quality.

MR KINTOMINAS: Well, Your Honours, eventually - of course,

this is not the special leave point - - -

DAWSON J: What you are asking us to say is - or what you

are saying that the Court of Criminal Appeal should

have said was - that the jury were bound to reject

the witness's evidence.

MR KINTOMINAS:  They were bound to come to the conclusion

that, although he may well have been honest and
conscientious, that the circumstances in which the

identification took place, having regard to all the

problems that had attended it, that this was the

sort of identification which was not reliable.

DAWSON J: That is right. They were bound to reject it or

at least have a reasonable doubt about it.

MR KINTOMINAS:  Yes, Your Honour.

DAWSON J: And no reasonable jury, therefore, could have

come to the conclusion which this jury did come to.

MR KINTOMINAS:  Yes, Your Honours, and in that regard I

would take on board what - - -

DAWSON J: And, of course, in considering questions such as

that, the Court of Criminal Appeal was bound to

accept any version of the facts which was open to

the jury, a reasonable jury. So really, what you

are saying is, it was not open to a reasonable jury

Ida 6/8/91

to accept this identification, and that is what it

comes down to, is it not?

MR KINTOMINAS:  Yes, Your Honour. I would not resile from

that. That is really what it comes down to.

DAWSON J: It has been said, I think, in Ralph & George that

the cases in which a Court of Criminal Appeal takes

a view of the quality of the evidence which is

different from that of the jury, the cases will be

rare, and examples are where the witness is a

self-confessed liar and obviously is unreliable for

one reason or another or where, as in Morris's

case, he was suffering from a mental disability

which made it probable that his story was not true,

but they are a rare sort of instance. Here, this

man gave evidence that he was able to identify this
man in the circumstances that night. He was not an

inherently unreliable witness. The jury saw and

heard him, or heard the circumstances in which he

made his identification described, and apparently

accepted his evidence.

MR KINTOMINAS: Certainly.

DAWSON J: But you are saying a Court of Criminal Appeal, in

those circumstances, is allowed to come to a

different conclusion.

MR KINTOMINAS:  Yes, Your Honours, and His Honour the

Chief Justice - - -

DAWSON J:  And the jury were directed about the dangers

inherent in identification evidence?

MR KINTOMINAS:  Yes, Your Honour. Your Honour, it is my

submission that this case would fall within that

category of cases that is referred to by the
Chief Justice of this Court in Chidiac v Reg.

Your Honours I have copies of it, if Your Honours

wish.

McHUGH J: It is in the Commonwealth Law Reports now.·
MR KINTOMINAS:	I am sorry, Your Honour, I was unaware of

the fact that it got into the authorized - - -

McHUGH J: ! think it is only in this week's edition.

MR KINTOMINAS:  Your Honours, if I could take you to

page 211 about half-way down the second column, and

I read:

Because experience teaches us that evidence of

identification given by a witness who has a

very limited opportunity to see the accused

person is very often unreliable, an appellate

Ida 9 6/8/91

court is occasionally confronted with the

necessity of setting aside convictions based

upon the apparent acceptance of that evidence

by a jury, in circumstances where there has

been no irregularity in identification

procedures and the jury has been adequately

warned by the trial judge -

if I can pause there, that is exactly what

Your Honour Mr Justice Dawson was putting me only a moment ago - and the case of Reg v Smith is

referred to, so that His Honour the trial judge in

that case:

was able to say that "it seems at least

possible that the jury may not have

apprehended the full extent of the warning".

Now, Your Honours, inevitably that would involve a

reassessment of the evidence by the Court of

Criminal Appeal and, in my submission, it would

involve that court substituting its own opinion as

to whether or not there should be a doubt on the

objective assessment of the facts.

DAWSON J: His Honour the Chief Justice seems to go further

there than others have been prepared to go.

MR KINTOMINAS:  I notice that His Honour Mr Justice McHugh

said - and I take Your Honours to page 219 of the

same judgment, and if I can just perhaps preface

the point that I am about to make by reading

His Honour's preface:

In determining the reaction to the

evidence of the hypothetical reasonable jury,

the Court imputes to that jury the collective

experience of the judicial process. Even if

most juries would have accepted the evidence

relied upon by the prosecution, the Court may

hold that a reasonable jury would not have

accepted it if the experience of the courts

has shown that evidence of the class concerned

is unreliable. Thus, where part or all of the

incriminating evidence against the accused

consists of identification evidence1 the Court

will examine the case in the light of its

knowledge, gained from long experience of

criminal trials, that identification evidence
is a potent source of miscarriages of justice:

see Davies and Cody v The King -

and then, the critical comment:

If, for example, there was no pre-existing

relationship between the identifier and the

accused and the opportunity for identification

Ida 10 6/8/91

was fleeting, it is very likely that, absent

other incriminating evidence, the Court will

set aside the conviction.

Your Honours, this was a case where there was no

pre-existing relationship between the identifier

and the accused and the opportunity for

identification was fleeting, and then you add on

probably what was even a far more telling

circumstance against the Crown in that case,

whereas instead of the jury at least being

comforted by the fact that there may have been a

line up the next morning or the next week, there is an identification three and a half months later and an identification in circumstances where there

would have to be, at least, a lurking suspicion

that there may have been a predisposition to

identify or to expect that the person that you saw

may possibly be in the environs of the court.

McHUGH J: But that is the critical point in this case, is

it not, that you had a situation where

60 or 70 metres away, the witness Connolly sees a

person with shoulder length dark hair; he says he

is in his late 20's, early 30's; he is 5'8"

to 5'10". Then three or four months later he goes

into a toilet and he sees a man and he comes out

and he says, "That's the man that I saw running
away", and it just happens that that man was the

owner of the premises that were burnt down and one

of the three principal suspects in it.

Now, assuming he is honest - and we have to

accept that - it is so striking that why would not

a jury be impressed.with him?

MR KINTOMINAS: Well, Your Honours, first of all, in my

submission, if there is a witness going to court

there is always a danger, quite apart from the more

obvious situation which has been commented upon in

Davies and Cody and Alexander, that if you are

asked to identify somebody in the dock there is

virtually a sign post telling you this is the

person that you have to identify but, Your Honours,

whilst the problem is not as severe as that, in my
submission, the fact that the person is in the

environs or the precincts of the court at all still

suffers to a lessor extent from the same problem
that there is a predisposition in the person who is

in the environs - so there is a predisposition in

the identifier to think, "Well, it could be that

the person I saw will be here today".

McHUGH J: Yes, but what the witness said, "I opened the

door and I sort of walked in and then a face just

sort of hit me that reminded me of someone and then

I sat straight down not knowing and I didn't want

Ida 11 6/8/91

to and that's when I had to be", and then it came

to him who it was.

MR KINTOMINAS: Yes. Well, Your Honours, it means he

believes what he saw and he is reasonably

impressive in telling it but, Your Honours, there

must come a limit and Your Honour's argument, of

course, by extreme analogy does not always settle

the instant case but what about, Your Honours, if

he had been 300 metres away and he attempted to do

it a year and a half later?

McHUGH J: That is right, but was there any evidence led

about at what distance a person with normal

eyesight could identify another person? I just

have something at the back of my mind that you can

identify somebody at 90 yards that you know and I

have some recollection of a stranger that you only

see for a second that 30 yards is the maximum.

MR KINTOMINAS:  There was no evidence led, Your Honours.

The only matter that I have been able to find was

something in Gross' Criminal Investigation, which

had the problem the other way around. That is the

handbook which used to be used by the police force and was a textbook in our criminology ages ago and

I have no idea, but it had the problem the other

way around as if you, the reliability of

identifying somebody that you already knew when you

were at a distance and certainly, and I do not have

the material before me, but certainly it made the
point fairly clearly, that the further you were

away the greater the likelihood that you would

mistake somebody that you already knew and from

memory, certainly 60 to 70 metres, and at night,

tended to fall into a fairly unreliable area as far

as that kind of identification was concerned, in

the opinion of those authors, for what it was

worth.

McHUGH J: Well the thing that troubles me about the case is

that it may be that Mr Connelly, having seen this

person with long, shoulder length, dark hair, is

then called to a coronial inquiry and then he sees

a person at the coronial inquiry who has got

shoulder length, long, dark hair, he automatically

jumps at it, he puts a face to it and reconstructs

it in his mind, but that is a jury question, is it

~t?

MR KINTOMINAS:  It may be a jury question at trial, but it

is a Court of Criminal Appeal question,

Your Honours, when the objection taken to the

evidence is that it is unsafe and unsatisfactory.

That is, in essence what has got to happen is the

Court of Criminal Appeal has got to ask itself, do

we have a reasonable doubt. Now I know,

Ida 12 6/8/91

Your Honours, what was said in Chidiac seems to be

against that; that it is not a case of substituting

your own opinion. That is substituting the Court's

opinion for that of the jury, but, in my

submission, that really ought to hold only where it

is a question of veracity, and not where what is

disputed is the objective assessment of the facts.

I believe it was in Ratten's case that

Chief Justice Barwick made some observation along

the lines that, if the judge has a reasonable

doubt, that is if the appellate judge has a

reasonable doubt, then - - -

DAWSON J: It did make an observation, but I think it no

longer obtains.

MR KINTOMINAS: Yes, well I certainly noticed - - -

McHUGH J: Justice Dawson buried that in Whitehorn's case.

MR KINTOMINAS: Yes, I was about to say that

Mr Justice Dawson did criticize it, but I - - -

McHUGH J: His judgment was approved by other members.

MR KINTOMINAS: But, even Mr Justice Dawson, I noticed, did

say in a later case, I think it is Chiciac's case,

that there are occasions where it will amount to

the same thing. Now, what Mr Justice Dawson meant

by that, I would hope, is that in a case of this

nature, it has to amount to the same thing, because

the Court has to really express its own view in

order to come to the conclusion that the jury ought

to have had a reasonable doubt. It is not a

situation of saying, as it was in Chidiac's, well

we will substitute our opinion, because our long
experience has shown us that accomplices are just

liars anyway. This is just a different kind of

exercise to what the Court of Criminal Appeal was

asked to do in Chidiac's case.

DAWSON J: But you see, really you ought to be comparing

this case with a case like Morris' case.

McHUGH J: Morris and George.

MR KINTOMINAS: Yes.

DAWSON J:  Now, the majority took the view in Morris that,

on any view of it, this man who was suffering from

alcoholic damage to his brain and was likely to

suffer from confabulation, who told a confused

story anyway. You just could not, if you were a

reasonable person, base your verdict - and that is

what it amounts to - on what he said.

Ida 13 6/8/91

MR KINTOMINAS:  Yes.

DAWSON J: Well now, that is not this sort of case. You

have here the distance which one can accept is a

fairly long distance, although the car park was

lit, but you had a witness who is not inherently

unbelievable in any respect, who gives evidence in

striking circumstances and the jury accepts it.

MR KINTOMINAS: Well, Your Honours, there are two

identification cases which may be of some

assistance. The first one is an English case and

that is The Queen v Cooper.

DAWSON J:  And in any event, if I may say so, it raises no

point of special importance.

McHUGH J:  And the English cases proceed on the "lurking

doubt" theory which has been rejected in this

country, do they not?

MR KINTOMINAS:  Yes, Your Honour, although the particular

case that I wish to take Your Honours to, of The

Queen v Cooper -

DAWSON J: But you see, if you take a case, I think it is

Mraz's case, for instance, there the trial judge

invited the jury to stop the case and the jury did

not take that view and went on and convicted him

and there was an application for special leave to

appeal to this Court. It was an identification at

night, in circumstances which were questionable,

but the Court held that there was no point of

special importance there. That was a matter for

the jury.

MR KINTOMINAS: Well, Your Honours, the point of special

importance, and as this Court has said, it is not

the merits alone which constitute the point of

special importance, but the point of special

importance in respect of it is whether the Court of

Criminal Appeal ought to, where it is asked to

objectively review a question which does not

involve veracity - - -

DAWSON J: Well you have made that point; you said it made a

mistake and it does not appear to have gone about

its_ task properly.

MR KINTOMINAS:  Yes, and that is the point - - -

GAUDRON J: But that only gets you half-way, Mr Kintominas.

You have still got to go to the point where a

reasonable jury, properly instructed, must have

entertained a reasonable doubt.

MR KINTOMINAS:  Yes, certainly, Your Honour.

Ida 14 6/8/91

GAUDRON J: And that is your difficulty in this case. It is

evidence which was the subject of a direction and

which you or your predecessors have not persuaded
anybody of its nature inherently unreliable to the

point that no jury could act on it.

MR KINTOMINAS:  I was hoping to do that in this Court,

Your Honour.

GAUDRON J:	We are usually somewhat harder to convince than other forums.
MR KINTOMINAS:	Yes, Your Honours, but Your Honours have the

reputation of being more learned and more reasonable than all that has gone before.

DAWSON J:  we are apprised of the points which you seek to

raise. Are there any other ones which you have not

dealt with, Mr Kintominas?

MR KINTOMINAS:  Yes, Your Honours. As well as briefly

getting on to the last two points that I wish to
put to you, Your Honours, there were two
identification cases, one in New South Wales and

one in England, which I briefly wanted to refer to.

DAWSON J: Yes.

The one in New South Wales is an unreported decision, Reg v Godfrey, April 6, 1990. Now, very

briefly, Your Honours, what the situation was in

Godfrey was that there was a situation where an

armed robber was identified by three persons.	In
essence, the first person who identified him,

identified him in a line-up but said - picked him

out but said, "I think that's him, I'm not
absolutely sure." The other two persons that
identified him: the first person picked him out in
the environs of the court and again said,
originally, "I think that's him but I'm not sure"
and then later became sure but conceded that they had not been sure in the first place. The third

witness was sure that it was him, having identified

him in the precincts of the court. I would add, of
course there was no other evidence other than the
identification evidence at all in that case.

The Court of Criminal Appeal in that case paid regard to the fact that individually weak but

cumulative identification evidence could, of
course, gather a strong case, nevertheless came to the conclusion in that case that a reasonable jury

ought to have a reasonable doubt. There were one

or two other difficulties particularly in respect

of the person who said that he had been sure all

the time, that he had seemed to have made a fairly

Ida 15 6/8/91

sizeable error in the age of the person that he

saw.

McHUGH J: But, you see, you cannot leave out the other

evidence in this case and that was the evidence

that this was an inside job; there was evidence of

motive on your client's part and it was open to the

jury that a fire would relieve the company of its

financial difficulties and there were only three

real suspects. Now, in addition, the car that was

seen near the scene of the fire matched the

description of Galluzzo's car who was connected

with the applicant and there were a number of

people in that car, apparently. The jury could

take all those factors as confirming Connelly's

identification evidence.

MR KINTOMINAS:  Your Honours, in respect to Galluzzo's car -

not that it is a matter of, any great importance,

but the aspect of that was fairly tenuous.

Galluzzo happened to be the ex-husband of his

current de facto and the description was only in

fairly vague terms, that it was a Datsun of some

kind or another. It was not as if there were

number plates identified. There could have been an

enormous amount of cars that fitted that

description.

Whilst it is true to say, Your Honours, that

there were three suspects, nevertheless,

Your Honours, this is not a situation where he was

the only person who had a pretty good motive for

doing what happened. Had he been the only person,

then the jury could have felt extremely

comfortable, perhaps, in seizing motive as

sufficient reinforcement for what might otherwise

be a questionable identification.

McHUGH J: But if it was an inside job, there were five sets

of keys, were there not? Two were accounted for.

MR KINTOMINAS:  Yes.

McHUGH J: And three belonged to the applicant, to Katcho

and Pizzachemi. Well, you are narrowing the field

down, and then you have Connolly identifying this

man even though he was 60 or 70 metres away. Why

could not, in the circumstances, a jury accept

Conholly's evidence, once they took the view that

Connolly was an honest person and was not making it

up or had not been put up to it by somebody else?

MR KINTOMINAS:  Your Honour, if one accepts that the "inside

job" hypothesis is foolproof and probably for the

purpose of this exercise one has to, then it was

either Katcho, or Pizzachemi or Ida, or a friend,

or an uninvolved accomplice of any one of them.

Ida 16 6/8/91

Now, it may have been that only one was involved or

any two of three was involved or all three were

involved but, nevertheless, it is at least

reasonably open that one of them, and in this case

the applicant, may have been an innocent party and,

Your Honours, in my submission, the Crown was under

a duty to bring what evidence it could to assist

the jury to rule the other two out. Now, it is

true that the identification of Connolly - - -

McHUGH J: Well, they did.	They called Connolly.
MR KINTOMINAS:	Yes, Your Honour. But, Your Honours, they

were also under a duty, in my respectful

submission, and bearing in mind that it put

affirmatively to the accused in cross-examination

that his partners were of somewhat similar

appearance to him - I mean, normally, Your Honours,

when one, say, has a line-up at least the Crown

would normally have photographs or whatever of the

other people who were in the line-up so that the

jury is in a position to determine whether that

line-up was fair or whatever.

Now, another matter that could well have

assisted the jury would have been whether or not -

what was the jury to make of the ages and physical appearances of the other two and that was a matter the Crown led no evidence on other than to put it

affirmatively to the accused in cross-examination,

no doubt to try and bolster what happened in the

waiting room in the coroner's court and give it the

virtues of a line-up. But put it to the accused

affirmatively:	"Your partners were with you?---
Yes."	"And they were of somewhat similar

appearance to you?"

McHUGH J: Yes, but Mr Kintominas, we do not sit here as a

court of criminal appeal. This is an application

for special leave to appeal and you have got to
show that there is something special about this

case that requires the grant of leave to appeal against the conviction.

MR KINTOMINAS:  I might test Your Honours' patience further

to briefly go to my other two points. The third

point was that, in my submission, Your Honours, it

is_reasonably open, without referring to a jury

being satisfied or having to be satisfied beyond

reasonable doubt, may not necessarily be the same

question. Your Honours, I make that submissions

for two reasons. The basis of that submission,

Your Honours, is what His Honour the Chief Justice concluded, and that is on page 25 of the

application book in the middle paragraph:

Ida 17 6/8/91

I am unable to conclude that it was not

reasonably open to the jury to reach the conclusion that they ultimately reached.

He did not pose the question in the more formal,

and accepted the way that he was unable to conclude

that they ought to have had a reasonable doubt.

Your Honours may say it is a distinction without a

difference.

DAWSON J: Really you are carried back to the grounds of

appeal that are set out in the statutes: "are they

reasonable or cannot be supported having regard to the evidence", which is translated into unsafe and

unsatisfactory, which really means that a

reasonable jury must have had a reasonable doubt?

MR KINTOMINAS:  Your Honour, that is on the assumption that

something being reasonably open is the same - or

that a verdict which is unreasonable is the same as

a verdict which is unsafe and unsatisfactory.	The
ground of appeal was that it be unsafe and
unsatisfactory.

DAWSON J: Yes.

MR KINTOMINAS:  Now, Your Honours, there have been a couple

of judgments, certainly of this Court, which have

tackled the problem in passing. His Honour the

Chief Justice in Chidiac seemed to say that he did

not think it made much difference.

DAWSON J: What did not make much difference?

MR KINTOMINAS: Unsafe and unsatisfactory or unreasonable.

McHUGH J: But the critical question is miscarriage of

justice.

MR KINTOMINAS:	Yes.
McHUGH J: The expression "unsafe and unsatisfactory" is an

explanation of that term which appears in 6(l)(c)

of the Criminal Appeal Act.

MR KINTOMINAS: Yes, certainly, Your Honours, and that is my

first point. If it was no different to

unreasonable then why have not the courts merely

treated matters of this kind under the unreasonable

hearing in the section?

GAUDRON J: It is a phrase that does not actually appear in

the common criminal appeal provisions. It is used

to cover two concepts: it is used to cover

verdicts where, in the absence of some direction,

the jury may have acted on a wrong view of

evidence, and it is used to cover situations in

Ida 18 6/8/91

which the evidence was such that a jury ought to	have entertained a reasonable doubt. It is used in
two distinct senses. But you are relying on it in the latter sense in this case, the jury ought to
have entertained a reasonable doubt, and that must
be the same as a verdict that is unreasonable or cannot be supported having regard to the evidence?

MR KINTOMINAS:  Yes, Your Honours, in that case it would be

unreasonable. My submission would be that

unreasonable is a harder test and a test that

goes - - -

DAWSON J:  It cannot be supported having regard to the

evidence, that is the formal ground.

MR KINTOMINAS: But, on the other hand, Your Honours - and,

Your Honours, for what it is worth, I am reading

from an appendix to a book about a famous murder

case in the last century. The appendix is written

by Lord Havers, who was Attorney-General and later

Lord Chancellor writing extracurially, and talking about the change that was brought in England, changing the 1907 Act which merely had a relevant ground of unreasonable to the 1968 Act in England

which changed it to unsafe and unsatisfactory.	And
he had this to say:

The first change was designed to remove what

was believed to be an unintended and

artificial restriction placed upon the court,

that the appeal should be allowed if the

verdict of the jury was unreasonable or could

not be supported by the evidence. This was

questioned by F.E. Smith during the debate in

1907 when he suggested that the test should be

whether the verdict was, under all the

circumstances, unsafe or unsatisfactory. This

amendment was treated with scorn by the

Attorney-General who wondered where F.E. Smith

had got the words since he would not have got

them from a lawyer. Sadly Smith, later

Lord Birkenhead, did not live long enough to

see Parliament in 1968 adopt, without

alteration, the words he had earlier

suggested.

NowJ admittedly, Your Honours, there was certainly

another change that the amended English legislation

brought in and it made it clear that the court

could substitute its own opinion. But

nevertheless, Your Honours, one would have taken

the view that certainly F.E. Smith in 1907 and

Lord Havers now, seemed to think that there

certainly is a difference, a difference which

actually matters.

Ida 19 6/8/91

DAWSON J: But we take your point, you say that the verdict

here cannot be supported having regard to the

evidence, that is the point you make?

MR KINTOMINAS: Certainly, Your Honours.

DAWSON J: That is undoubtedly a ground of appeal.

MR KINTOMINAS:  Yes. And the final point, Your Honours,

which I may have covered when we digressed earlier:

the situation was, Your Honours, that the jury

asked why Katcho and Pizzachemi were not called,

and the trial judge told the jury that as it was

open to either party to call them no inference

should be drawn.

And no objection was taken to that at trial,

and the matter was only argued in passing, so to

speak, in the Court of Criminal Appeal.

The Chief Justice asked a question of the learned

senior counsel who was leading me as to which party

should have called the witnesses, and learned

senior counsel replied to the court that it was up

to the Crown to prove its case.

Now, the aspect of it, of course,

Your Honours, is this, that again, quite apart from what Katcho and Pizzachemi had to say, and with

respect to His Honour the trial judge, it was a bit unrealistic for Mr Ida, guilty or innocent, to call

Katcho and Pizzachemi at the trial because, undoubtedly, what Katcho and Pizzachemi would have

said, "It was not us".

Now, apart from that, that of course

displayed, in our submission, coupled with the
other question that the jury asked about the ages
of Katcho and Pizzachemi, an interest in the jury,

in our submission, that they were considering the

possibility of a mistaken identification.	Now,
Your Honours, the situation is this: that where	the Court of Criminal Appeal comes to reconsider
the matter, in our submission, the Court of
Criminal Appeal ought to direct itself correctly as
regards to any law irrespective of whether the jury
received a correct direction or an incorrect direction.

· Now, although the matter was touched upon in

argument, there certainly is nothing in the

judgment, one way or another, of the Chief Justice about that. I cannot take the matter any further. I suppose that whether this be a point or not, it

is a matter of arguing backwards if one is to

accept the final thrust of the appeal for Mr Ida

that the verdict was really unsafe and

unsatisfactory, not supported by the evidence of

Ida 20 6/8/91

the jury must have had a reasonable doubt, and the question is, "Why did the Court of Criminal Appeal

make a mistake? Was it merely because the Court of

Criminal Appeal could not recognize reasonable

doubt when they saw one, or did they make some

error of principle?", and it seems to be more
palatable to suggest that it was the latter, and if

that happened there may not be quite enough in the judgment to decide what was the problem, excepting

that in the circumstances that final matter may

have been what caused the Court of Criminal Appeal

to err. But beyond that I cannot assist

Your Honours any further.

DAWSON J: Thank you, Mr Kintominas. We need not trouble

you Mr Howie.

This case raises no question of special

importance and turns on its own facts.

Notwithstanding the thorough argument of

Mr Kintominas, we are not persuaded that there is

any error in the result arrived at by the Court of

Criminal Appeal. Special leave to appeal will be

refused.

AT 12.22 PM THE MATTER WAS ADJOURNED SINE DIE

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