Jol v The Queen

[1993] HCATrans 21

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl40 of 1991

B e t w e e n -

GORDON NEVILLE JOL

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Jol 1 11/2/93

AT SYDNEY ON THURSDAY, 11 FEBRUARY 1993, AT 2.20 PM

Copyright in the High Court of Australia

MR M.C. RAMAGE, OC:  May it please the Court, I appear for

the applicant. (instructed by Jeffreys &

Associates)

Your Honours, I have an application to make

which is that this hearing date be vacated and the

matter be adjourned. The reason I do so is that I

believe that there are good grounds to be argued

but they are not properly prepared.	I say that and
I accept responsibility for that.	I received the

brief on Tuesday evening. I have done what I can

to prepare it and, if forced, I will argue to the

best of my ability. But I do not know that I can

satisfy this Court in terms of the administration

of justice throughout Australia on some of the
points without having further opportunity to
research as to the way the law and various cases

have been applied in other States. For instance,

what I have found in respect of the case Veverka,

there have been several references to it in other

jurisdictions and it seems to have been applied in
different ways.

I do not know and I have not been able to establish whether the case of Meredith, which is a

matter which we would seek to argue as to the

correctness of its decision and its application in

this instant case, has in fact been applied in

other jurisdictions or followed in any way. So my

first application, Your Honours, is, even though I

am well aware that the matter has been a long time

coming, that the matter be adjourned.

BRENNAN J:  Do you have anything else to add to that

application?

MR RAMAGE:	No, Your Honours, I do not.
BRENNAN J:	What is your attitude to that application,

Mr Blanch?

MR R.O. BLANCH, OC, appearing with his learned friend,

MR T.R. HOYLE:	My attitude, Your Honour, is that
the matter should proceed if possible.	(instructed
by the Director of Public Prosecutions	(New South
Wales))

BRENNAN J:  Thank you. Mr Ramage, the Court is not disposed

at present to grant your application, but if at the

end of your argument you are able to renew the

application and demonstrate in the light of your

argument that there is something further to be done

or said, then the Court will give it further

consideration.

MR RAMAGE:	As Your Honour pleases.
Jol	11/2/93

DEANE J: If I might add to what Justice Brennan has said,

if at the end of your argument it appeared to us

that your client may be being disadvantaged by the

lack of the ability to take matters further, of

course it would be open to us to say something

about that, which means that your client will not

be disadvantaged by it going on now.

MR RAMAGE:  Well, that is my concern, Your Honour. My

shoulders are big enough and broad enough to accept

criticism, but I would hate to think it reflected

on my client.

Your Honours, this application for special

leave is from the decision of the New South Wales

Court of Criminal Appeal of 8 October 1992, in

which it rejected an appeal brought from a jury

verdict brought in on 10 August 1990, wherein the

applicant was convicted on three counts relating to

the offences of armed robbery, motor vehicle theft

and breaking and entering, all committed on the

same day, that is 14 October 1988, and all in the

same area, the Sydney suburb of Dural.

Your Honour, our respectful submission is,

this case raises the application of the principles

of a case known as Veverka and in particular where

the trial judges are obliged to put the accused

case as a discrete identifiable entity. It further

raises questions as to whether in-court

identifications should be admitted where there has

been photographic identification preceding that.

Further, in our respectful submission, it

raises whether the rejection of evidence in identification cases is only an exercise of

discretion and whether if such is an exercise of
discretion, the exercise of discretion in those

cases is the same and is to be exercised according

to ordinary principles. And finally whether the

case of R v Meredith is or is not correctly decided

and the statement "Identification can be proved by

cumulative testimony" is the law or whether this

Court should follow Burchielli as correctly

describing the law.

I do not seek the Court's leave to argue

grounds 2(a), 3(c), l(g) 4, 5 and 6. Your Honours,

the first ground, ground 2, raises the problem

which bedevils most trials and most judges, and it

is our submission this Court should give direction

which is going to assist the conduct of trials

throughout Australia. In Veverka, which was a

decision of the Court of New South Wales on

21 April 1978 and is reported in (1978) 1 NSWLR,

the court laid down a principle which has been

followed in this State and in other States

Jol 11/2/93

throughout Australia, but has been followed in

different ways, Your Honours, and I briefly say

that, if I read from the headnote of that, the

finding was:

The accused was entitled to have his case

presented to the jury in the summing up as an

identifiable entirety to an extent equal to

that employed in the presentation of the case

for the Crown.

Now, that case has been followed and applied in

various different ways throughout Australia. I

have not listed them all; it has certainly been

applied in the case of Duncan, which was a case in

the Western Australian Court of Criminal Appeal,

where it was interpreted simply to mean that there
was a requirement to put the defence case

adequately to the jury, and that was really in

respect by His Honour Mr Justice Olsson; that was a

case reported at (1991) 56 A Crim R 460, and at

page 477 His Honour Mr Justice Olsson applied that

to the way in which an inference could be drawn.

And it was applied in a case called Shepherd

(No 4), 41 A Crim R 420, and at page 429 it was

suggested that all Veverka meant was that it was a

duty to put a balanced presentation of the defence

case or to present the defence case adequately or

fairly.

It was relied upon in Chicony, which was a

judgment of the New South Wales

Court of Criminal Appeal, and - - -

McHUGH J:  Mr Ramage, this is a very different case, is it

not, from Veverka. With recollection, Veverka was

a case where the trial judge did not even read the

accused's statement from the dock, did he, he just

broke it up, but -

MR RAMAGE: Well, yes, that is quite true, Your Honour.

McHUGH J:  - - - here you had 30 pages of evidence or

30 pages of the summing up was devoted to the

accused's case, including a verbatim reading of his

statement, I think.

MR RAMAGE: Well, Your Honour, I do not mean to be rude when

I differ from that as to putting the accused's

case. When you have a rambling, disconnected and,

in many cases, totally irrelevant statement made by

the accused which occupies many, many pages, the

mere reading of that to the jury may satisfy that

requirement which is generally accepted of reading

the accused's statement, but it will not put the

accused's case, with respect.

Jol 4 11/2/93

BRENNAN J: 

Now the problem is this, is it not, that the

jury must first of all understand what the issues
are for its determination and then it must know

what is the material by reference to which it is to

decide those issues?

MR RAMAGE: 

Yes, Your Honour, I do not cavil with that.

BRENNAN J: Well now, in this case it was found by

Justice Badgery-Parker, page 193:

that the jury would clearly have understood

what were the respective contentions -

MR RAMAGE: Well, Your Honour, His Honour identified the

respective contentions and the contention was

basically - the Crown contended this was the man

that had committed the robberies and the accused

contended he was not there. But to identify that

as the basic contention is, with diffidence I say,

not much better than saying that the accused put in

issue whether he was guilty or innocent.

It was necessary, in my respectful submission,

to go much further than that - and this is probably

more appropriate in the next ground in terms of

what was done in respect of the identification

evidence - it was necessary to identify what the

accused's case was, as to where he was and what his

witnesses said as to where he was, as identifiable

entities which the jury - and that could and should
have been done, probably at the conclusion of the

Crown case, as indeed Mr Justice Badgery-Parker suggested has been the practice in this State, as

the usual practice, to sum up, and maybe even in short form at the end: "The accused says he was here and his witnesses are there", et cetera, in short form.

Mr Justice McHugh rightly says this is a

different case to that of Veverka; every case, with

respect, is different.

When you have a huge

trial judge, as in this case in which, indeed,

rambling, discursive summing up by the learned

Mr Justice Badgery-Parker recognized and criticized

and so does Mr Justice Priestley. Both of them

recognize that there are problems with the summing

up. The accused's case is likely to get lost in

the middle of that and references from time to time
to a course, the accused would say, "So-and-so or

you would remember that", you know, he puts in

issue whether he is the person, is not, with

respect, sufficient. That is my short submission

in response to that proposition, Your Honour.

Jol

11/2/93

BRENNAN J: 

To put your case that way really means that the

jury were not seized of the question of whether or
not he was present at Dural on that occasion.

MR RAMAGE: 

No, Your Honour, I do not put it that way; I say

that they were probably seized of that and they

were probably swamped with the overwhelming mass of

summing up that had been delivered to them, but

they were not seized of the way in which the

accused sort to present his case to establish, in

so far as any onus rested on him, that he was not

there and he was not the man. To say that they

were seized of an issue is not really, with

respect, to put the defence case.

BRENNAN J:  Now what was the defence case? It was that he

was in Brisbane at the time?

MR RAMAGE:	He was in Brisbane at the time.
BRENNAN J:	And here is the pawnbroker to say so.
MR RAMAGE:	Here is the pawnbroker to say so: here is the

accomplice, if she be so described, Kelly Ann, I am

sorry, whatever her name was, who claims to have

been with and had committed the offence with

another person. His case was, in addition to that,

the unlikelihood or the unreliability of the

identification witnesses, and that is really

probably the gravamen of the complaint that is made

by the accused - is that without collecting those

in accordance with the principles, and without

collecting the flaws in that evidence, putting them together and directing the jury in respect of those in accordance with the principles this Court has

laid down in Domican and, I might say with respect,

in accordance with the principles long established

in Kelleher and accepted by the New South Wales

Court of Criminal Appeal in Finn. Without doing those, his case was not put. That is our complaint

in a nutshell, Your Honour.

BRENNAN J:  It depends very much on the terms of the

particular summing up, of course - - -

MR RAMAGE: It does.

BRENNAN J:  - - - and is there any question of law that you

can identify which justifies the grant of special

leave?

MR RAMAGE: Well, Your Honour, on the first point, only as

to what Veverka means. Does it simply mean that

there is an obligation, generally, to put the Crown

case and the defence case in some sort of fair

balanced way or does that in turn mean - and I

started to read some of the references which I have

Jol 6 11/2/93

not collected in full, and I repeat that I have not

collected these in full - as to how it has been

interpreted in other States and is the requirement

which this Court should recognize of putting the

defence case as an entity.

McHUGH J: But that is the principle, is it? That the

defence case has got to be fairly put and when you

have said that you have said it all. It all

depends upon the particular facts of each case.

MR RAMAGE:  Your Honour, if you simply say that it has got

to be fairly put, that, in turn, gives no

assistance and guidance with respect to any trial

judge who is free to take pot luck as to what he

thinks is fair in the circumstances.

McHUGH J: Well no, but this is one of the problems that is

happening in the criminal law: judges sum up in the

High Court first, the Court of Criminal Appeal

second and the jury last. You have really got to

give the trial judges some flexibility in these.

MR RAMAGE:  I do accept that. I am simply submitting that

if you allow them too much flexibility, then you

get the sort of chaos we get in various summing ups

where a process is adopted of just reciting the

evidence as a narrative and really leaving to the

jury to determine what is important and what is

not, including huge masses of material in this case

which were totally irrelevant to the issues that in

the end the jury had to determine. Now, if this

Court, with respect, does not give some assistance and guidance in terms of, as I say, Veverka quite

clearly sets out, the summing up of the accused

case as an entirety, then one can expect the

process, Your Honour Mr Justice McHugh has

described, will go on and on.

BRENNAN J:  I am by no means sure that by laying down some

high-sounding general principle that this Court is

capable of removing chaos.

MR RAMAGE:  No, I do not think you are either, but you can

make a valiant attempt, Your Honours.

Your Honours, could I go back to what we say

that should at least have been put as part of the

defence case? Now, it is conceded that the

applicant was in no position to dispute the

commission of offences. The issue for the jury was

essentially one of identification. That was

referred to on several occasions in lengthy - - -

McHUGH J: Well, there is a bit more to it than

identification. There is the fact that his car,

the car that he had hired under a different name

Jol 11/2/93

had been used; his explanation of how he left it

with Kelly Ann Kennedy to return and how she,

having taken part in the robbery, suddenly

mysteriously arrives up there in Brisbane with him

and the car is abandoned just near where he used to

live and Mrs La Hood, who has known him for several

years, identifies him - - -

MR RAMAGE: Well, with respect, that may be identification,

it may be something else, in a sense of an issue.

McHUGH J: Yes, but it puts him here on Sydney on the

relevant day and then, what is the employees name,

Murray Matthews, he identifies him; there is all

this other evidence.

MR RAMAGE:	Your Honour, I would, of course, concede the case for the prosecution was not limited to
identification alone.  The substantial issue was
identification; that was put by the learned trial
judge, Your Honour, on numerous occasions, and we
do not cavil with his having put that. We make the bland assertion that the case could not have got to
the jury without the identification evidence and
that identification evidence includes the two bank
tellers, Constable Warn and, in particular, another person called Mr Oddie, who is said to have seen
the accused run across the front of his car and
into the night.  Now, all of those were planks in
the prosecution's case and the criticism which I
will really come to in a moment is how the
identification evidence was used and whether or not
a conviction, which relies on such dangerous
identification evidence, and in particular
Mr Oddie's dangerous identification evidence, could be regarded as reliable and whether the Crown could
ever satisfy this Court that the jury did not take
cognizance of inadmissible material in respect of
identification.

Your Honours, could I just go back to my

initial proposition and I will be as quick as I
can.	I have submitted that to merely identify the

issue as identification does not deal with the

accused's case and does not present the applicant's

case, and that, as I have said, includes the

positive assertion it was not him, denials from the

outset when he was accosted by the police, evidence

in the nature of alibi, which, if accepted, made

his presence at the scene impossible, and that was

a separate issue for the jury, of course.

McHUGH J:  Made his presence at the scene impossible, you

mean? Yes.

MR RAMAGE: Rejection of the alibi, of course, did not by

any logical means, mean that that proved the

Jol 11/2/93

reverse; that he was at the scene, but it was

something the jury would take into account no

doubt. That he called positive evidence in support

of alibi, that he called positive evidence from an

accomplice that he was not the person involved and

there were errors and flaws in the identification

evidence called by the prosecution and a failure,

in effect, of any summary by the judge of

weaknesses in the Crown case.

McHUGH J: Well, the big weakness in the evidence of the

actual offender was that she said that she did not know that he lived at the place near where the car

was abandoned and on the other hand he said that

she did.

MR RAMAGE:  She gave equivocal evidence. First of all she

said she did not, then she said she did and then

she was caught out in what seemed to be a

contradiction. No problems with that, Your Honour,

and that was undoubtedly a matter for the jury to

take into account in its determination. But,

Your Honour, I think I have probably made it quite

clear that the proposition that I advance in

Veverka, assistance to courts throughout the land, is - - -

respect of which I say is a matter this

McHUGH J:  Mr Ramage, could I just stop you to say this:

counsel frequently come up to this Court on special
leave applications, particularly on criminal

special leave applications, to say this Court

should give some guidance on these matters, but we
very rarely hear any submissions as to what the

guidance is, and people just sort of say, "Well,

let the High Court work it out".	What is it? What
are the propositions?

MR RAMAGE: Well, the proposition probably goes no further

in which that which Mr Justice Badgery-Parker

identified and then proceeds to, in effect, say,

"It did not happen here. It should have happened

here, but it does not matter.

McHUGH J: Well, on that hypothesis then that has been laid

down as the law for New South Wales, and -

MR RAMAGE: Well, Your Honour, he suggested it as a process,

but he says it does not matter if it does not
happen, in effect. That, with the utmost respect

of the learned judge, is not of any great

assistance; it does not seem to establish the law

in New South Wales.

We would say it requires no more than what

Veverka said, to put the defence case as an

identifiable entity at the end of the prosecution

Jol 11/2/93

case, and if it is not put sufficiently, if the

judge misses out something, then counsel for the

defence in that situation can raise it with the

learned trial judge as to these matters and they

can be canvassed. I have to say that it is quite

plain here that at the conclusion of the judge's

summing up, counsel for the prosecution raised

immediately the fact that - and I will come to

this. This is a separate discrete point - the

judge had not sought to match the directions in

respect of identification or the problems with

identification, with the evidence. Counsel for the

prosecution raised that and was immediately

followed by counsel for the defence. This problem

is implicitly recognized in the judgment of the

Court of Criminal Appeal where they seek by other

ways to overcome that problem.

DEANE J:  But you have really got to identify particular

grounds in the particular case for a miscarriage of

this sort. I mean, in my limited experience in

this field, at the bar I always took the approach the less the trial judge said about the facts the

better, as long as he talked about onus of proof

enough.

MR RAMAGE: That may have been

DEANE J:  It is very rare that one reads the detailed actual

summing up, done in the best possible way, that one

comes away with the feeling the accused would have

been very pleased that the judge was so careful in

summing up the relevant facts.

MR RAMAGE:  Your Honour, curiously - and I have not

extracted it from Your Honour - but what the judge
did not sum up, in respect of when he came to the
questions of identification, were the real problems

that were inherent in a prosecution case.

DEANE J:  I have read the summing up.

MR RAMAGE:	I appreciate that you have read the summing up, and what I am about to embark upon is not going to
assist Your Honour greatly, because it is really
what was in some of the material that was actually
in the trial and it was not referred to. Your Honour, for instance, in the evidence of
Robyn Ann Thompson, her opening gambit as to
opportunities to observe, which appeared at page 9
of the trial - and I have not annexed this into any
affidavit, but it is in the transcript. She said,
ttI was seated at the time the door opened and when
I could not see the customer, or I thought the customer at the time, I got up to start to approach
the counter, as you do as you go up to serve a
person, and he then came up, pulling as I thought,

Jol 10 11/2/93

this black and white horizontal-striped Balaclava
thing over his head." Now, the jury was not told

about that; the jury was simply told that her

opportunities to see were she had two or three

minutes to observe him. Now, the two or three

minutes actually, as becomes clear in her evidence

at bit later, is the situation the two or three

minutes was the two or three minutes after he has

had the Balaclava over his head. Now, it is, of

course, very germane, hugely germane in this case,

that the second witness had some opportunity to

observe him, but very slight. None of them gave

any description of his physiognomy, if I may

describe it:  his nose, his eyes or any of those

things, because patently they could not see it; it

was covered up by a Balaclava.

Now, on the basis of that, one would have

thought, with respect to the learned trial judge

and to the learned Court of Criminal Appeal, that

type of evidence of identification by a photogragh

later was inherently suspect and dangerous and it,

really, with respect to all the learned judges

involved, should have been rejected. Now, it is a

separate and discrete question whether the

rejection of that relies entirely, ·as I started to

say at the outset, on the ordinary exercise of
discretion or some other discretion recognizing the
inherent problems there are in identification
cases.

Now, Your Honours, could I take you to second and, really, the more important grounds which

directly identify what we say was wrong with the

Court of Criminal Appeal decision and the judges

summing up in this case. His Honour

Mr Justice Badgery-Parker indicated and identified

some of the problems and accepted the applicant's
submissions as to the flaws in the way the

prosecution case has been presented. His Honour

said that, "The review of the evidence was not
satisfactory" - and I have dealt with that in

part - "and the jury were not given the measure of
assistance to which they were entitled".	And as I

said, the learned trial judge proposed, at page 31,

a way in which the jury could have got appropriate

assistance.

He, the learned trial judge,

Mr Justice Badgery-Parker, was well aware and says,

"There was a real risk that vital parts of the

evidence of those witnesses were buried in the

narrative rather than highlighted." And that, we

say, is inevitable, if you simply allow this

narrative to proceed and do not have a discrete and

identifiable entity of the accused's case.

Jol 11 11/2/93

Now, when dealing with the question as to

whether there was proper directions as to

identification and whether that was satisfactory in

terms of the accused's case, reference is made to

Finn, 34 A Crim R 425, a decision of the Court of

Criminal Appeal, and the passage from Kelleher, and
His Honour refers to that at page 34 and quotes

page 434, and the necessity to relate the warning effectively to the evidence given in the case and,

as I say, that problem which was identified by both

the Crown prosecutor and the defence counsel was

raised immediately at the conclusion of

His Honour's summing up. So, it was recognized by them and it is something well known and recognized

by the courts. It was essential, we say, that the

jury's attention should be drawn to any weaknesses

in identifications evidence, and that is no more

than Kelleher has always laid down.

Reference was also made for the need for an

appropriate degree of specificity by reference to

the evidence in the case - and again I am referring

back to His Honour Mr Justice Badgery-Parker's

decision - and there is reference also to the need

to draw attention to any specific problems

associated with identification at a particular

trial and a guidance. As I say,

Mr Justice Badgery-Parker gave an example of

guidance at page 30. So, our proposition is that

we cannot be contented that the New South Wales

Court of Criminal Appeal was unaware of the

principles applicable. Other courts had considered

it and I have said that there are numerous

references to the problem and the need to follow Kelleher. For instance, in the case of Harrison,

which is reported September 1987, the Western

Australian Supreme Court Court of Criminal Appeal, set aside the conviction on the basis of Kelleher and the failure to bring to the jury's attention

the weaknesses in the identification evidence.

Now, after identifying the problem, pointing

out all the weaknesses, what the

Court of Criminal Appeal proceeds to do is to find some excuse for the failure to, we say, the judge

adequately and properly presenting the law and

assisting the jury. Now, that excuse, as appears

from the judgment is, "The assumption that the

accused's counsel had made specific reference to

the particular aspects and that the judge's

criteria", where he set out the points that the

jury should look at in determining whether they accepted or rejected a witnesses identification

"was, at least partly referred to, when the trial

judge dealt with with Thompson's evidence", but it

was only partly dealt with and he did not deal with

it in respect of the others.

Jol 12 11/2/93

McHUGH J: In Matthew's evidence?

MR RAMAGE: Sorry, Thompson's evidence.

McHUGH J: Thompson's.

MR RAMAGE:  When he dealt with the first of the bank teller

girls. We say, with respect, Your Honour, that it

is clear that this line of reasoning was rejected

in Domican, that the proposition that you can

excuse an inadequate summing up by the fact that
counsel may have referred to it, or that there may

have been a sort of a slight passing reference

somewhere else, but particularly that you can rely

about what counsel said about it to excuse an

otherwise inadequate summing up.

BRENNAN J:  Mr Ramage, these propositions are, for the

reasons that you have been outlining, quite clearly

established; there is no doubt about what is

required of a trial judge when there is a live and

difficult issue of identification at the heart of

the Crown case. But, one has to consider whether

that is any ground for granting special leave in

this case, and when one considers that if such a

direction were given in the case of, for example,

the bank tellers, then it would be necessary to

make the direction appropriate in the case of

Mrs La Hood and Mr Matthews.

MR RAMAGE:	Yes, Your Honour.
BRENNAN J:	One can see that, in a sense, what the defence

was saved, was a direction which said, "None of

these inhibitions need deter you in accepting the

evidence of these two witnesses."

MR RAMAGE:  I have no problem with that, Your Honour. mean, I do not really think that the defence was, I

with respect, saved anything there. You see, the

issue with Matthews and La Hood was simply, "Was he

day?" That was a totally different issue. They there on that day or were they confused about that	did not give any evidence; they only gave evidence
connecting - with being in Dural on a particular
date. They gave no evidence connecting with the
commission of the actual offence. So that was a
separate issue; it was an issue appropriate for the jury to decide, but for the judge to embark upon a description of the evidence saying that this is the
way the witness described the person who was, one
witness said, 170 centimetres; another one said 182 centimetres; one said black hair; another one
said brown curly hair; another one said he did not
have brown hair at all, but had grey hair. That
was Matthews at one stage.

Jol 13 11/2/93

For the judge to embark upon setting out seriatim, their opportunities to observe, the points that they had which might be consistent with

the accused's description or as they saw him, and
the points which were clearly inconsistent, one

with the other and one with the accused's

description as broadcast at the time. That would

have - with respect to Your Honour, to talk about

La Hood's ability to recognize him when that was

not in dispute would have done - - -

DEANE J:  What was the real forensic dispute about

Ms La Hood's evidence?

MR RAMAGE: Just wrong day, Your Honour.

DEANE J: That was all that was involved, the wrong day?

MR RAMAGE:	Yes.
BRENNAN J:	Was Mr Justice Badgery-Parker wrong in his estimate of the nature of the evidence of
Mrs La Hood, when he said that she saw him on the
day of the robbery in the afternoon and certainly
after the time when the robbery took place, at
page 164?

MR RAMAGE: That is what she said, Your Honour; that was put

in issue as to whether she had seen him there that

day at all.

DEANE J:  The accused suggested some other day.

MR RAMAGE:  Well, let me be fair about this, Your Honour. do not know. I

He simply put that in issue. I do

not think he refers to it in any statement at all,

in that rambling and inconclusive statement.

BRENNAN J:  Does he acknowledge having been in Dural on any

occasion?

MR RAMAGE:  Yes, Your Honour, he had lived there. He had

lived there on another -

BRENNAN J: Yes, of course, but I mean on any occasion in

proximity to the day of the offence?

MR RAMAGE:  Your Honour, I do not believe his statement

acknowledges that, and certainly there was no

confession by him which goes to his being there

that day or the day before even.

DEANE J:  If you put to one side Ms La Hood's evidence and

the evidence of the employee who drove the car and

look at the identification evidence that you are

concerned with, which was all limited evidence of

the witness seeing the accused for the first time,

Jol 14 11/2/93

His Honour's general direction, in the context

where the jury had heard that identification

evidence, really would have gone a very long way as

a matter of fact in overcoming the disadvantages

you point to in that it would have automatically

been applied to those witnesses.

MR RAMAGE: Well, I think, with respect, Your Honour, that -

while I am one who would support the ability of

juries to be sensible and to sit there and absorb masses amounts of verbiage delivered to them from

time to time, my criticism would not be so
trenchant were it not that His Honour's directions

in respect of the matters to take into account,

come at pages - - -

DEANE J:  25 to 28.

MR RAMAGE: Well, I was going to take Your Honour to 14, I

think he commenced. There are some matters that he

identifies at page 14 and then there are some

further materials that Your Honours identified

respect of Robyn Thompson; that is where he relates

it to, Ms Thompson, at page 25. Now, that was,

with respect, a long, long time back. Sorry, the accused did simply say the he was not in the shop

on the fourteenth; that is all he said. That was

in his statement. But, my point about this,

Your Honour, is if the learned trial judge in

effect concluded - I do not think he would have

complied with what this Court has laid down in

Domican or the majority of this Court has laid down

in Domican, but if he had concluded by saying,

"Now, look, come back to the important issue of

identification. I will repeat again, or I tell you

for the first time, these are the matters that you

must carefully consider", probably my criticism

could not be regarded as so trenchant, but the

summing up is so long - - -

DEANE J: But if, after the jury has heard the evidence - if

you look at page 26 to 27 - they are pretty

standard, true enough, but they are so clearly

applicable to the evidence you are directing

attention to: did he know them before? Was

somebody masked, obscured? Could he identify or

she identify a particular feature that brought her

to mind, and so on. It is all, in the context of

this case, fairly good stuff.

MR RAMAGE: It is quite good stuff, I quite agree, except

what we say should have happened is that there

should, at some stage, whether it comes there or

comes later, the seriatim set out:  Robyn Ann

Thompson says, "dark hair shaggy collar length", the other one Ann Brigdon says, "medium length

black hair", and they are consistent. Mr Matthews

Jol 15 11/2/93

originally said, "grey hair" but you might feel

that he changed it to brown hair in this Court.

Thompson says, "178 centimetres"; Brigdon said,

"182 centimetres''; Oddie said "170 centimetres'', I

mean these are all matters to be accounted into
account whether this is the same man they are

describing.

Now that, as I understand it, was basically

what this Court laid down should be done in

Domican. The decision is very well known to

members of this Court and I will not labour the

point.about it. But it was, because this was an

identification case, essential to go through those

passages and relate it to the evidence and, as I

say, relate it to the evidence in terms of what

opportunity the witness had to observe. Now,

Thompson in a passage I just read to you, which is

not mentioned in His Honour's summing up at all, if you accepted that portion of her evidence, then her

opportunity to observe was literally when the
person is in the process of putting on the

balaclava, not the two to three minutes when he has

got the balaclava on, and that was not drawn to the

jury's attention.

Your Honours, because I am endeavouring,

rather than get in to more argument about the

facts, to get to what we say are the problems of

law, we would say, Your Honours, that in so far as

the Court of Criminal Appeal in the judgment of

Mr Justice Badgery-Parker relied on the remarks

citing a case called Bigeni at page 35, that those

remarks are clearly wrong when looked at in the

light of Domican at page 15.

BRENNAN J: Page 35, did you say?

MR RAMAGE:  Your Honour, at page 35

Mr Justice Badgery-Parker cites

DEANE J:  I think it is page 195.

MR RAMAGE:  I am sorry, page 195 of the appeal book, forgive

me, I am relying on page 35 of His Honour's

judgment. He cites with approval a decision of

Bigeni which said:

'The adequacy of the judge's instruction on

identification must be considered in the light

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

weakness of the other evidence linking the

accused to the crime.'

Now, it is our respectful submission that that is

wrong. His Honour goes on to indicate, in our

Jal 16 11/2/93

respectful submission mistakenly, that he was of

the view that the strength of the Crown case

otherwise was a relevant consideration by which to

assess the adequacy of the warning.

Now, we say that all of those propositions

were dealt with in Domican and disposed in a way

which clearly indicates that this decision is
wrong, but it is of importance when one comes

finally to consider this case that though

Mr Justice Badgery-Parker says certain things, he

did not conclude that the accused must inevitably

have been convicted without the identification

evidence and, with respect, that, we say, should be

the test here, as to, among other things, whether

leave is granted.

Now, Your Honours, unless this Court desires

me to, I will not go through a check-list of all
the various discrepancies that exist in the various

witnesses' evidence, but I can assure you there

were significant discrepancies. Perhaps it will be

sufficient if I just draw this Court's attention to

the fact that there were these differences in

height. You have got 178 from one witness, 182

from another witness and 170 from another witness. Now, they were all important. They were important

for this reason: they were important as to the

witnesses' ability to identify the accused out of

court.

They all happily identified the accused in

court when he was sitting down. So, to a certain

extent that identification out of court was

slightly askew because they had only been looking

at photographs, of course, when they identified and

they had not the person in front of them. Now, it

should have been, and would have been, I would with

diffidence say, a matter of concern to the jury

that there were these significant differences in

the heights that the witnesses claimed that the

perpetrator of the offences had.	Not only did the
learned trial judge not refer to those heights at

all, but he endeavoured clearly to minimize or

remove that as a source of concern. In other

words, rather than saying to the jury, "Look, these

are matters you have got to take into account.

They are matters that clearly raise problems with

identification and you have to see whether they can

be reconciled. They may be reconciled because one

was, a girl was sitting down looking up and another

one had, perhaps, an obscured view", et cetera.

What the learned trial judge did was totally

contrary to that and his directions appear at

pages 28 to 31 of his summing up. What he said

there was - he was dealing with Thompson's estimate

Jol 17 11/2/93

of height, "5 foot 9", et cetera - this is at

page 39 of the appeal book, and he said:

I do not know that you will have a great deal

of difficulty in contending with the issue as

to height as it has been raised by counsel

when you have other aspects as I have

indicated to you when you are exercising the

caution that you have to in the

identification.

Now, one would have thought the height of an

accused was an extremely important matter as to

identification. Now, he did not, with respect,

leave well alone, because at page 31, which is 42

of the appeal book, he says - and it concludes in

the first paragraph:

but as I said to you before you may not have a

great deal of difficulty in disposing of that apparent inconsistency in the light of what I

have said to you previously.

And that problem with the inconsistency seemed to

be - I do not know - it was hard to tell what

His Honour was referring to. Was he referring to

the fact that the witness claimed she had got the
height from something a police officer had said to
her, or was it because that the witness claimed - I
mean, that there had been no exercise carried out
in the court where the accused stood up.

Now, I appreciate Your Honours do not want to get into the minutiae of the detail of the

evidence, and I only raise this to indicate how

grossly inadequate was the summing up in respect to
the flaws and the inconsistencies in the defence

case. Another illustration of that is that even

when His Honour went through the evidence, at no

stage did he refer to the accused's statement that

he had tattoos all over him, including his hands,

and the demonstration the accused actually made to

the jury.

Now, that was relevant. The witness has been

asked, and though he had gloves on at the scene it

was alleged that he had not had gloves when he was

talking to Matthews or Mrs So-and-so, and at least one of the tellers conceded that she could see the

difference - the arm between the hand and the
gloves, but no reference was made to the failure of

any witness to identify tattoos and, as I say, it

could have been accompanied by an explanation that,

"You might think that the witness didn't have an

opportunity." So be it. The defence would have

had to live with that. But it is the total failure

Jol 18 11/2/93

to refer to those inconsistencies that is the

gravamen of our complaint.

I repeat again, Your Honour, that both counsel

for the prosecution and defence were aware of this

and raised it immediately.

Now, Your Honours, could I take you to another

discrete portion which is the question of whether

the case of Meredith is good law. Your Honours, it

is submitted that the Court of Criminal Appeal of

New South Wales is in error in ruling, and this

appears in the judgment of

Mr Justice Badgery-Parker at page 17, that is 177

of the appeal book, that:

Evidence in itself inadequate to inculpate an accused may be admitted as being reasonably capable

and it says "to adding" but I am sure it should be

"of adding" -

to other evidence of identification and

thereby supporting it.

And His Honour goes on to say:

Identification can be proved by cumulative testimony.

Now, the authority for this proposition is said to

be an unreported decision of the New South Wales

Court of Criminal Appeal, and that is R v Meredith.

Now, Your Honour, that case is reported on

6 December 1989 and it is a decision of

Judges Grove, Travers and Hope. The judgment was

actually given by Mr Justice Grove, and the remarks

that appear to have been relied upon there by

Mr Justice Badgery-Parker is a statement that

appears as a one-line statement at page 11,

"identification can be proved by cumulative

testimony" .

I am sorry, in anticipation the application

might be rejected, we did fax through a list of

authorities, Your Honour, shortly before and it is

referred to in the original grounds drafted by

Mr Papayanni of counsel.

BRENNAN J: It does not seem as though we have a copy of it.

MR RAMAGE: Could I with diffidence~ Your Honour, hand up an unmarked copy, I am quite happy to hand up a marked copy as well.

BRENNAN J:  And it is page 11, you say?

Jol 19 11/2/93

MR RAMAGE:  Page 11, Your Honour, is where the passage -

could I hand up this marked copy. It is only

underlined, Your Honour.

BRENNAN J:	Would you like a copy back?
MR RAMAGE:	Your Honour, I can make my submission without

it.	My learned friend may need it, that is the
only problem.	The basis for that statement is said

to be the remarks - a decision of R v Turnbull.

Now, Your Honour, I would seek to take this

Court to R v Turnbull, very briefly, and it would

be my submission that when one goes to that case,

and that is reported at 1977 - - -

BRENNAN J:  What is the proposition of law that you say is

wrongly stated in the Court of Criminal Appeal's

judgment?

MR RAMAGE:  Your Honour, that proposition that

identification can be proved by cumulative

testimony.

BRENNAN J: 

I see.

MR RAMAGE: 

That is the bland proposition that is advanced,

and we, with respect, say that you cannot·extract
from the Lord Chief Justice Widgery's remarks in

R v Turnbull that proposition.

McHUGH J:  But surely he must be able to. The critical

issue, or the ultimate issue is, was this the

accused?

MR RAMAGE:  Yes.

McHUGH J: That is the evidence of identification. So you

have a case where a witness says, "That is the

man", and then you may have a great deal of

circumstantial evidence, for example, evidence that

he left his home at a particular time, that he was

seen in the vicinity by somebody else, that he

speaks in a particular way, it is all

circumstantial evidence.

DEANE J: That he had left his fingerprints.

MR RAMAGE:  I am seeking to draw a distinction between

identification evidence, as we know it, and other

general circumstantial evidence which points to

prove that the accused is the person that committed

the offence.

McHUGH J: But it may be non-inculpatory evidence in the

sense that standing by itself the other

circumstantial evidence may prove nothing, it may

Jol 20 11/2/93

be totally innocent, but it may tend to strengthen

your confidence in the identification.

MR RAMAGE:  Yes, Your Honour, I do not cavil with that. I

do not cavil with any of those propositions, I	just
say that you cannot have a cumulative effect.	You
cannot put a series of poor identifications

together and get one good identification. Now, it

becomes particularly relevant in this case because

one of the witnesses, Oddie, says he is certain a

degree of 50 per cent, and there are other problems

with Mr Oddie's evidence that we come to later.

DEANE J: But take an extreme case. Say you have got 100

witnesses and they all say, "I cannot identify the

accused." But one says, "He had green hair"; the

next said, "He had lost an ear"; the next said, "He

had a blind eye"; the next said, "He had a ring

through his nose".

MR RAMAGE:  There obviously comes a point when it would

defy - - -

DEANE J:  And you have the accused satisfying all of

them -

MR RAMAGE:  - - - all coincidence that that unfortunate

being sitting in the dock was not that person.	And
I have no cavilling with that. It is the

proposition as a basic proposition that you can
take witness X, who says, "Look there is nothing,
of an accused, of which there is no extraordinary
feature" and say, "Well, I am 10 per cent sure".

Witness Y says, "I am 10 per cent sure", and you can add all those together and you can get

100 per cent out of 10 witnesses -

McHUGH J: That seems to me really a re-run in another form

of the argument that found some acceptance in and was rejected in Shepherd, namely, that each
chain of the circumstantial evidence has got to be

proved beyond reasonable doubt.

MR RAMAGE:  Your Honour, I am distinguishing this case

because I am saying that there are particular rules

that have developed in respect of identification

cases. The identification cases are recognized of

having peculiar problems attached to them, and they

are not to be regarded as general circumstantial

cases where you add circumstance to circumstance.

Your Honour, I put that you cannot get there

by simply adding a whole lot of unsatisfactory

identifications and get one satisfactory

identification.

Jol 21 11/2/93

McHUGH J: It may be difficult, but a combination of

identifications may be such that, ultimately, you

are persuaded beyond reasonable doubt that the

correct inference is that it was the accused.

MR RAMAGE:  With respect, I would say that it is not a case

where - that evidence, the other general evidence,

cannot bolster or solve the problems with the

identification evidence. It may, by other reasons,

and for other purposes, lead the jury to
satisfaction the accused has committed the offence,

but it cannot correct the problems that may have

arisen along the way with the identification.

Your Honour, if I could say this: if one goes

to Turnbull it is quite clear, and I have not

laboured Domican, but I do not believe I need to

labour Domican to this Court, but Domican quite

clearly said, in 66 ALJ 289:

A trial judge is not absolved from his or her

duty to give general and specific warnings

concerning the danger of convicting on

identification evidence because there is other

evidence, which, if accepted, is sufficient to

convict the accused.

You cannot bolster, you cannot overcome the· problems with identification evidence because there is other evidence because, as I thought that Court

made very clear, the jury may well have convicted

on the identification evidence alone, or one

passage, one witness's - - -

McHUGH J: But what is said in Domican there is not

inconsistent with anything that has been put to you

from the Bench.

MR RAMAGE:  But Your Honour is putting that you can overcome

McHUGH J: Yes, but all that says, "Well even if there is

other", that does not say you cannot take into

account other evidence. It says, "You are still
obliged to give specific directions about the
weakness even though there is other evidence in the

case."

MR RAMAGE: This Court understands that that is the gravamen

of our criticisms we make. But Meredith, taken

literally, means that you can add a series of

unsatisfactory identifications and you can get

there and some way avoid the problems that arise as

Domican - - -

McHUGH J: Satisfactory, that is the whole point.

Jol 22 11/2/93

BRENNAN J:  What do you mean by "unsatisfactory"

identifications.

MR RAMAGE: 

I am just saying a 10 per cent certainty would be unsatisfactory, Your Honours, but I will take

Your Honours in a moment, if I may, to some of the

problems, the more specific problems, in this case.

But before I do that could I say that the authority

which is relied upon in Meredith for the
proposition they advance there can only be the

remarks of Lord Chief Justice Widgery and, with

respect, when you go to the passage in Turnbull, it

is our respectful submission that provides no
support for the proposition, and I make that simply

as a bland statement.  What the Lord Chief Justice

was concerned with there was whether, in certain

circumstances, the judge should withdraw the case

from the jury, and the question was if there was

other evidence should the case be withdrawn from the jury. And he talked about the other support

and being a false alibi.

Now, this proposition as to whether one can

use what might be described as unsatisfactory
evidence, or unreliable evidence, or however one

likes to describe it, identification evidence in

support or to arrive at a conclusion to prop up -

other evidence to prop up or lots of unsatisfactory

evidence to prop up an unsatisfactory

identification is referred to in the case of

Burchielli, (1982) A Crim R 352. Reading from the

joint judgment of the Chief Justice Young and

Judge Mcinerney from page 357, the Court said:

Now it often happens that two pieces of

evidence, each in themselves unconvincing,

will in combination produce a high degree of

persuasion of a particular conclusion.

That is the classic sort of circumstances case.

The reason is often that the coincidence of

the two pieces of evidence would be unlikely

if the ultimate fact or conclusion had not

occurred.

And that is the rationale of circumstantial

evidence cases. The learned judges went on to say:

But this is not true of identification

evidence. Two unsatisfactory identifications

do not support one another in the same way as

two primary facts may lead to the conclusion

of an ultimate fact.

And that, with respect to Your Honour, is the

distinction we would draw from the ordinary

Jol 23 11/2/93

circumstantial evidence situation and the position

of similarity you were positing in the

Chamberlain's case.

McHUGH J:  I appreciate that, but as Justice Brennan put to

you, it is a question of what you mean by

unsatisfactory. Three witnesses say, "I think it

was the accused", the jury might be convinced that

it was the accused although if you only had one

witness they would not be convinced.

MR RAMAGE:  Is Your Honour saying that that would be a

satisfactory basis to admit that evidence that

they - - -

McHUGH J:	I think it is the accused, it is a matter for the jury, the jury may think that there would be too
much of a coincidence for the three of them to be
wrong. It would all depend on the circumstances.
Supposing six of your neighbours said that they
thought they saw you going into your house at a particular time but they were not absolutely
certain of it, somebody might think it would be a remarkable coincidence if the six of them are
wrong.

MR RAMAGE:  Not if I owed them all money. I do take your

point but I am really directing - I thought my

remarks were certainly directed to the proposition

that you cannot get - if you have a degree of

uncertainty in the witness you cannot, by adding

that to a degree of uncertainty in another witness, arrive at any - SO per cent, with respect, I do not
think is sufficient certainty, even if five said

SO per cent certainty.

Your Honour, but could I take you in a

specific instance - - -

BRENNAN J: That proposition, as I understand it, as you are

putting it, is that if three witnesses say, "Look,

I think that was the accused but I am not certain

of it", then the jury cannot find on that evidence

alone that it certainly was the accused.

MR RAMAGE: That is the proposition I am putting.

BRENNAN J: Well, now, that is understandable, but if you

have a case such as the present where you have

witnesses, three of whom say, "Well, I think it

probably was him but I could not be certain", and

others say, "Well, it certainly was him that I saw

that day", and I am going.back again to the La Hood

and Matthews matters, in the light of what was said by the accused in the course of his statement, then it seems to me that the real issue in the case

ceases to be the identification by those three and

Jol 24 11/2/93

starts to take on a different dimension, and the

question is, in the light of all that evidence, is

it then reasonable for the jury to say, "Well,

having regard to all the circumstances it must have

been him" and although they cannot say that it

certainly was, none the less that is something

which goes into the melting pot.

MR RAMAGE:  Your Honour, you encapsulate the complaint we

make about the summing up.

BRENNAN J: Yes.

MR RAMAGE:  That it was essential, before the jury could

accept that evidence, before they could waive that
evidence, that they had to have the pros and cons,

the likelihood, the unlikelihood, the opportunity

to see, the opportunity not to see, the

descriptions where they could compare them.

BRENNAN J: Yes, I understand that.

MR RAMAGE:	But, I mean, that makes the point, before the jury can assess whether Mr Oddie, for instance, is
in any way likely to be a believable witness, and
whether he is the man that supposedly sees the accused running off, before they can assess him and
compare him to someone else's testimony, or compare
the bank tellers' testimony as to what they observed, they have to have all that material encapsulated before them. It is probably
convenient I take you to the ground which says some
of the evidence should not have been admitted.
It is submitted that the evidence of the witness, Mr Oddie, should not have been admitted.
His evidence is referred to in the learned
appellate court judge, Mr Justice Badgery-Parker's
remarks at pages 36 to 38. This is the witness
that said he was at least 50 per cent certain that
was the accused.

McHUGH J: 

Mr Ramage, we said giving judgment in Jamieson's

case, we do not sit here as a general court of
criminal appeal. There has got to be something

special about the case, and the arguments that you
put, powerful arguments to be put before a Court of

Criminal Appeal, but they were rejected by this

particular Court of Criminal Appeal.

MR RAMAGE: 

Your Honour, the argument I put in respect of

Meredith obviously was not, because that was something which, as I understand it, simply arose

in the judgment, was referred to the judgment.

:HUGH J:	Yes .
Jol	11/2/93
MR RAMAGE:	But it was not an argument that was canvassed in

that case.

Your Honour, the problem with, and do not

think I am trying to avoid - I am well aware of the

need to refer it to law, but I would like this

Court to be aware of the problem with Mr Oddie's evidence, that is not only just that he was only

50 per cent certain, not only that His Honour's
directions, the learned trial judge's directions,
to the effect, and this appears at page 36 of his

directions, he apparently had no hesitation in

picking photograph series No. 4, is totally

contrary to the evidence - - -

McHUGH J: Yes, but the Court of Criminal Appeal said that

the admissibility of the Oddie evidence was wrong,

did it not?

MR RAMAGE:  Yes, but then they seek to say, with respect,

"Well, it should not have been admitted, it was
wrong, that evidence was wrongly received,

particularly wrongly received because Oddie was

taken outside and shown a photograph of the accused

immediately before he is asked to make an in-court

identification. But having said all that they

said, "Well, fine, the jury may not have placed a

great deal on Mr Oddie's evidence". Now, with

respect, that is one of the things no one could

know.

BRENNAN J:  We have got to look for a special leave point;

we are not entertaining the appeal, you understand. that?

MR RAMAGE:  Your Honour, I was about to come to it. It is

our submission that there are such recognized

dangers inherent in identification evidence that

this Court should rule that where there has been a

photographic identification out of court that the

Crown should not be permitted to seek and obtain an

identification of the accused in the dock.

Now, it is common practice, I am sure this

Court is now aware of it, for the police to use photo identification followed by in-court

identification. Identification parades, which were

recommended as what should happen in Alexander, are

not followed and again I am now in an embarrassing

position because I do not have the ammunition

except my own knowledge of the law and anecdotal

evidence to put before Your Honours as to the

practice in other States, but certainly in this

State identification parades or line-ups are a

rarity.

Jol 26 11/2/93

McHUGH J:  I have to say it is a long time since I can

remember seeing any case of an identification

parade.

MR RAMAGE: Exactly.

BRENNAN J:  Does that mean the Court of Criminal Appeal is

not familiar with the propositions that emerge from

this Court.

MR RAMAGE: This Court, Your Honour, in Alexander has laid

down procedures in respect of the admission of
photographic evidence, but it has not, to my

knowledge, considered the more important issue

which is the use of in-court identification

following the photographic identification.

Leaving aside the displacement effect, which

we are all familiar with, that the witness cannot
be tested, the witness only sees the accused
sitting there in the witness box, the

identification is made, the witness cannot be tested for height and weight et cetera of the

victim, but the most salient thing is, of course,

the witness comes in here knowing that an accused

person has been charged and in the expectation that

they will find that accused person there .. Now, it

defies common sense and it is a charade - - -

McHUGH J:  Not necessarily. I mean in Jamieson's case the

witness identified the accused, he said it was

similar to him in a photograph and then failed to

identify him in the witness box.

MR RAMAGE: It might happen. Regrettably as defence counsel

it has never happened to me, Your Honour. It could

happen but the chances are it is a charade, that

the chances are the witness is only going to
identify that person that he or she has seen in a
photograph and, of course, in Oddie's case a

photograph which he was shown just outside the

court.

Your Honour, we, with respect, would say this

Court should lay down rules in respect of the
admission, and if need be give more admonishment to

the need for identification parades, particularly

in the opportunities now which exist for the

videotaping of such things.

Your Honour, this may well not be the correct

vehicle for this case, I will accept may not be an

entirely correct vehicle for it, but it was a

classic example of the witnesses being shown

photographs and put in the witness box and in-court

identification. Not only that but, of course,

Thompson was permitted to refer to the fact that

Jol 27 11/2/93

she had made an in-court identification at the

committal and at a previous trial, all of which is

a sort of cumulative effect in terms of her ability

to identify the accused. But, of course, there is

no greater veracity. I mean, if the displacement

effect had occurred from the outset then it

remained, and 50 identifications in court would

make no difference.

Your Honour, the learned appellate court Judge

Badgery-Parker recognized the risk of displacement

effect, at page 19 and page 179 of the appeal book,

but said the remedy was really the exclusion of the

evidence, but gives no good reason why it should

not be the exclusion of the evidence. Your Honour,

our respectful submission is that there should be

some assistance and guidance in terms of saying if

the police deliberately pursue a policy of relying

on identification by photographs, and that

included, of course, no attempt to put Matthews in

the line-up even though he was arrested.

I would even go so far as to say that this

Court should give some guidance as to what the investigation process is. If one witness has

identified an accused positively, does the
investigation process continue until 50 witnesses

have been all shown the photographs, so 50 people

can come along to court and identify the accused as

the person they saw in the photograph. We say,

with respect, that those raise important questions

for determination by this Court.

Another issue is: what are the appropriate guidelines for the exercise - is the rejection of

unsatisfactory evidence - when I say

"unsatisfactory", I say evidence which has little
to no probative value. Is a judge considering the

exercise of his discretion in those circumstances

in an identification case simply to apply the

ordinary principles, or is there some special

principle which recognizes the inherent dangers in

identification cases?

Those, Your Honours, we submit raise important

questions of law which this Court should determine.

I do not want to labour the question of how clearly

it is shown by Mr Oddie's evidence that that

evidence was dangerous and unreliable, but how in

the circumstances it was, nevertheless, admitted

without qualm over objection by the trial judge and

how on appeal, even though it is there and even

though no person could possibly say the jury was

not affected or influenced by that evidence,
nevertheless the Court of Criminal Appeal purports

to put themselves in the mind of the jury and say,

"Well, it may not have affected them."

Jol 28 11/2/93

DEANE J:  The Court of Criminal Appeal said that, after it

emerged that the Crown prosecutor had shown the

photos, no request was made for the exclusion of

the evidence. Is that correct?

MR RAMAGE:  I think that is correct, Your Honour. I cannot

seek to - no rule 4 point was taken in respect of

that, because I think it is conceded by the

prosecution that the defence was not aware of what

was happening, and the damage was done in effect.

DEANE J: When that emerged, though, I would have thought a

number of applications could be made, of which one

was that the jury be directed to disregard it,
which would have been a rather effective direction

in terms of the conduct of the prosecutor.

MR RAMAGE:  It may or may not have been effective; I do not

know. Certainly His Honour could have given such a

direction. What is astonishing in the case is that

when dealing with Oddie's evidence and Oddie's

identification, though he is specifically requested

to by the defence counsel, and in submissions after

His Honour had sent the jury out, His Honour never

tells the jury about this, never says, "Look, this is unsafe" or "This is uncertain. tou might think

this is a bit - the identification in court wasn't

worth very much because we know now he was shown a

photograph outside."

So defence counsel may not have jumped up and

down and screamed as loudly as he could have.

Other counsel may have been more vociferous in

their complaints; I do not know. But certainly

the opportunity was there for the learned trial

judge to rectify it. The arguments in the Court of

Criminal Appeal as to how this evidence may not

have been of any importance really are not, with

respect, of any great substance.

BRENNAN J:  Mr Ramage, do you wish to renew any application

for adjournment?

MR RAMAGE:	Your Honour, I still do not feel that I have been able to successfully, for instance, put before
this Court material as to, for instance, the use or
otherwise of line-up parades and the like in other States and the practice in respect of other States.
I know by anecdotal evidence that there are some
practices in other States where photographic ID and
then in-court identification is frowned upon, but
it is purely anecdotal; I do not have any better
material to put before Your Honours in respect of the proposition I would make that you should give
directions which will assist the conduct of judges
of all such trials in future.  So I do make a
further application, Your Honour.

Jol 29 11/2/93

BRENNAN J:  We need not trouble you, Mr Blanch.

Despite the careful analysis of the summing up

and the judgment of the Court of Criminal Appeal by

Mr Ramage, QC for the applicant, we are not satisfied that the evidence in this case and the conduct of the trial, including what the Court of

Criminal Appeal identified as deficiencies in the

summing up, give rise to any question of general

importance justifying the grant of special leave.

In relation to the application for an

adjournment, it is apparent that this application

for special leave would not be advanced by the
granting of an adjournment. Accordingly, the
application for an adjournment is refused and the
application for special leave to appeal is also

refused.

AT 3.45 PM THE MATTER WAS ADJOURNED SINE DIE

Jol 30 11/2/93