Kanaan & Ors v The Queen

[2007] HCATrans 402

[2007] HCATrans 402

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S379 of 2006

B e t w e e n -

MICHAEL KANAAN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S412 of 2006

B e t w e e n -

RABEEH MAWAS

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S161 of 2006

B e t w e e n -

WASSIM EL-ASSAAD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 AUGUST 2007, AT 10.25 AM

Copyright in the High Court of Australia

__________________

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant, Mr Kanaan, with my learned friend, MR H.K. DHANJI.  (instructed by Bannister Kyriacou Nasser)

MR T.A. GAME, SC:   If the Court pleases, I appear with my learned friend, MS S.M. McNAUGHTON, for the applicant, Mr Mawas.  (instructed by Jeffreys & Associates)

MR B.W. WALKER, SC:   May it please the Court, with my learned friend, MR I.A. TODD, I appear for the applicant, Mr El‑Assaad.  (instructed by Maatouks Law Group)

MR L.M.B. LAMPRATI, SC:   If the Court pleases, I appear in each of these matters for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, counsel for the applicants have agreed that I will deal with the matter of Mrs Zahabe, Mr Game will deal with the accomplice evidence and Mr Walker will mop up.

GLEESON CJ:   Yes, thank you.  Mop up what?

MR ODGERS:   We will see.

GLEESON CJ:   That sounds very pessimistic.  Yes, go on.

MR ODGERS:   Mrs Zahabe, as your Honours appreciate, was a witness called by the Crown to testify that neither Mr Kanaan nor Mr Mawas was one of the three shooters.  The Crown did not seek leave under section 38 of the Evidence Act to cross‑examine her but submitted to the jury that there were grave doubts in relation to the reliability of her evidence.  There are essentially two grounds we seek to ventilate relating to the judge’s directions about Mrs Zahabe.  The first relates to the general warnings the judge gave to the jury about witnesses, including Mrs Zahabe, who witnessed the incident.  He referred in general to the need for a great deal of care with such evidence and the long experience of the courts with mistakes by eyewitnesses.

In our submission, those directions were in error to include Mrs Zahabe within the scope of the direction, not because she gave exculpatory evidence but because in truth she did not give identification evidence at all.  We contended before the Court of Criminal Appeal that there was a very significant difference between the evidence she gave and identification evidence.  To use the Crown’s language, the evidence she gave was exclusionary evidence.  We called it negative identification evidence but, with respect, the Crown’s formulation is preferable.  It is evidence that a person who was observed was not someone – not someone – in this case not a person known to the witness, not the accused, not either of the two accused.  This is a very different thing, a very different beast, from identification evidence. 

While identification requires a comparison of all the characteristics observed and a subtle weighing of degrees of similarity, exclusion may be on the basis of only one feature or attribute.  Conditions of observation may have little impact on the reliability of the exclusion, there is no risk of displacement, there are no research studies that have demonstrated the unreliability of such evidence, there are no cases in legal history which have demonstrated the unreliability of such evidence.  We submit that the Court of Criminal Appeal simply failed to address this point at all.  It equated exculpatory evidence and negative identification evidence, not appreciating, we submit, that negative identification evidence or exclusionary evidence is a completely different kind of evidence.

The court referred to a number of decisions of intermediate courts of appeal, to Rose, to Pollitt and to Mule.  Of those three cases, only Mule deals with exclusionary evidence.  Both Pollitt and Rose dealt with identification evidence, positive identification evidence.  It was exculpatory but it was positive identification evidence.  Therefore Rose and Pollitt had no real bearing on the issue that arose before the Court.  And, of course, in Mule the Court of Appeal of Western Australia held that it was wrong, accepted that it was inappropriate to give a Domican warning in respect of exclusionary evidence, but the New South Wales Court of Criminal Appeal determined not to follow Mule, criticising Mule because it had failed to refer to Pollitt but, of course, as I have just explained, Pollitt was not an exclusionary evidence case at all.  So, with respect, the Court of Criminal Appeal failed to appreciate the essence of the issue, criticised Mule on a basis which reflected that confusion and, indeed, we are now in a situation where we have a conflict between an approach taken by the Western Australian Court of Criminal Appeal and the Court of Criminal Appeal of New South Wales. 

We submit that in the circumstances it was a clear error to give the warning to the jury that the judge gave about this evidence.  We submit that the issue was fully raised before the Court of Criminal Appeal, that the respondent has put that it may not have been put to the court but in the bundle of materials we provided to your Honours we have provided the actual written submissions that went to the court and they clearly isolate this point about exclusionary or what we call negative identification evidence and clearly put that there is a world of difference between that and identification evidence in general.

We submit that given the premise upon which a warning under section 165 is based, that is that the courts have special knowledge about the kind of evidence and there is a real risk the jury may attribute more weight to it than it deserves, there is no identifiable reasoning in the court’s decision why exclusionary evidence falls within such a category and, indeed, we submit that on no proper analysis does it.  We submit, therefore, that this is a question of general importance properly raised in this case and should be the subject of a grant of special leave.

The second ground of appeal we seek to ventilate relates to the failure of the trial judge to give any directions to the jury in respect of the breach of the rule of Browne v Dunn by the Crown Prosecutor.  The Court of Criminal Appeal accepted that there was a breach.  The Crown Prosecutor, in substance, invited the jury in his final address to conclude that Mrs Zahabe was not telling the truth.  In his final address defence counsel for Mr Kanaan criticised the Crown for that and criticised him for suggesting that she was untruthful without putting it to her.  The Crown did not stand up and object to that or seek to reply to that, it was just simply left in that state and the trial judge summarised, neutrally, what the Crown had said in his address and what defence counsel had said in his address. 

We contended in the Court of Criminal Appeal that the trial judge erred in failing to give a direction to the jury about the breach of the rule.  In essence, we submitted that this Court in MWJ provided some guidance as to the kind of direction that would be appropriate and, in essence, we say that the direction should have been that the jury should not make a finding of untruthfulness where no such suggestion was made or at least directed the jury that she had been denied the opportunity to show her mettle under cross‑examination.

As to the former direction, the Court of Criminal Appeal said it would not be appropriate to direct the jury that it would be unfair to reject her evidence as untruthful where it had not been challenged because the Crown Prosecutor would be entitled to say that the Crown did not put her forward as a witness of truth.  The proposition may be accepted but it does not support the conclusion.  If a defence witness had testified to something and the Crown Prosecutor had not cross‑examined that witness and then sought to assert that they were untruthful, that would not prevent a trial judge from directing a jury that they should in general abstain from making adverse findings, given non‑compliance with that rule of fairness.

There is no difference, with respect, where the Crown calls a witness, at least in uniform Evidence Act jurisdictions where section 38 gives a very broad opportunity to prosecutors to cross‑examine their own witness where that witness’s evidence is unfavourable, as it plainly was in this case.  The Court of Criminal Appeal held that there was no miscarriage in respect of the second direction about “denied the opportunity to show her mettle under cross‑examination” because of what might have happened if the Crown Prosecutor had sought to cross‑examine her, but we respectfully submit that that is a fundamentally wrong approach for an appellate court.  The question must rather be whether it is reasonably possible that the failure to give the direction may have affected the verdict, not to speculate about what might have happened in the event that the Crown Prosecutor had followed a course that he chose not to take in the trial.

It is accepted that defence counsel, in respect of Mr Kanaan, did not seek a direction of the sort that we contend should have been given.  An affidavit was filed in the Court of Criminal Appeal from that counsel indicating that he was unaware that the rule in Browne v Dunn applied in these circumstances.  True it is, he criticised the Crown Prosecutor in his own address, that was his advocate’s argument, but he testified without cross‑examination that he did not appreciate the legal position relating to the application of the rule in Browne v Dunn in those circumstances.  We submit that therefore to rely on rule 4 and refuse leave to argue such a point is inappropriate.

GLEESON CJ:   May I take you back to your first point for a moment and your reference to Mule, the Western Australia case?

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   I am just looking at page 286 of the application book.  In paragraphs 115 and 116 the Court of Criminal Appeal were applying the Evidence Act (NSW), not the law applicable in Western Australia.

MR ODGERS:   Yes, your Honour.  They said in paragraph 115 “negative identification evidence does not fall within” that section of the Evidence Act that talks about “special need for caution before accepting identification evidence”, but they said it does come within section 165 referring to “evidence of a kind that may be unreliable” and they then said on page 287, lines 19 and 20:

Visual identification evidence, the majority said, remains potentially unreliable no matter what use is made of it.

GLEESON CJ:   In other words, they said there are two, as it were, different problems of identification evidence that under the Evidence Act you need to attend to.

MR ODGERS:   Yes, and a point was made in the submissions for Mr Mawas that there are in fact three different categories of evidence.  There is identification evidence as defined in the Act which is that person is the accused – the accused was the offender.  Then there is positive identification which does not fall within the definition which may be exculpatory.  So that if in Rose a witness said, “I saw the victim” at a particular location and if that was true the accused could not be guilty.  Exculpatory but positive.

GLEESON CJ:   Or a witness might say, “I saw the assailant and it was a huge man, six feet five tall” and you have a five foot six tall accused.

MR ODGERS:   Yes, your Honour, and in Pollitt the witness gave evidence that she saw the offender and it was some person who was not the accused.  So it was a positive identification of someone, not the accused, as the offender.  But, with respect, none of those cases involve exclusionary evidence.  None of them involve an assertion that someone seen somewhere was not someone.  That is the point we seek to make.  The Court of Criminal Appeal does not appreciate, did not in its judgment at least, deal with the proposition that Rose is not a case about exclusionary evidence, Pollitt is not a case about exclusionary evidence.  The only case that anybody referred to which is dealing with exclusionary evidence is Mule.

GLEESON CJ:   Mule did not have the statutory provisions that we have.

MR ODGERS:   No, quite, your Honour, and, of course, but the court to determine whether or not it was - the evidence in this case, it was of a kind that may be unreliable in the sense that – if I can take you to 290 there is a reference on page 290 to the judgment in Fowler and the court said at line 28:

This Court said that a warning may be required where the courts have special knowledge or experience about the kind of evidence which has been given which a jury may not possess or where there is a risk that a jury may attribute more weight to the evidence than it actually deserves –

The court then ruled:

we are satisfied that negative (or exculpatory) identification evidence is “evidence of a kind that may be unreliable” ‑ ‑ ‑

GLEESON CJ:   That is right, is it not?

MR ODGERS:   Of course it is.  Exculpatory positive identification evidence, if it is not defined broadly, may be unreliable and the courts have good reasons for so concluding in their experience, but we submit that that is not the position with exclusionary evidence, that exclusionary evidence is not properly understood as identification evidence at all.

GLEESON CJ:   Then it can never be potentially unreliable.

MR ODGERS:   Any evidence can be potentially unreliable.

GLEESON CJ:   Exactly.

MR ODGERS:   But there is a wealth of authority in New South Wales in respect of section 165 that the opening words of that provision, 165(1), “evidence of a kind that may be unreliable” must be understood to mean evidence about which the courts have special knowledge and experience where there are good reasons to believe that the jury is likely to overestimate the value of the evidence.  That is the well‑established line of authority in New South Wales in respect of that provision.  The point we were making continuously was that you cannot reach that conclusion in respect of exclusionary evidence, properly understood.

GLEESON CJ:   You mean exclusionary evidence cannot be unreliable?

MR ODGERS:   No, it is not evidence where the courts have special knowledge or experience about the kind of evidence which has been given, which a jury may not possess or where there is a risk that a jury may attribute more weight to the evidence than it actually deserves.

GLEESON CJ:   One of the well‑known problems about identification evidence, in the experience of the courts, is that people, even honest people and careful people, can be certain about an identification they have made that turns out to be wrong.  That is just one of the problems.

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   The other problems are too numerous to catalogue, but that can apply to exclusionary evidence, can it not?

MR ODGERS:   With respect, your Honour, we should be very careful about jumping to that conclusion.  We know that there have been injustices in the past where people have been positively identified as someone and we know that that was wrong.  We know that based on our experience.  But, is there any experience of assertions by persons that X was not there where that has been shown to have produced injustice or was plainly wrong?  The difference is very real.

GLEESON CJ:   You are not suggesting, are you, that these warnings are only to be given in cases of evidence favouring the prosecution?

MR ODGERS:   No, not at all.  I am accepting that there is a legitimate basis for an appropriate warning, or at least a direction, about potential unreliability in respect of exculpatory identification evidence but because of the very significant difference between identification evidence and

exclusionary evidence, it is far from obvious that that applies in that context.  Can I just say again, your Honour, when I identify somebody I am comparing a whole lot of characteristics and similarities and I am engaging in a process which requires me to weigh those similarities and differences and come to an overall assessment about whether the person is the same one.  When I exclude somebody, it may be that I see one characteristic, he is a foot taller or he is the wrong race or ‑ ‑ ‑

GLEESON CJ:   One of the dangers of identification of a witness is that it is human nature that people sometimes see what they want to see.  They do not see what they do not want to see.

MR ODGERS:   Yes, your Honour, I do not dispute that, but we do say that there are such manifest and profound differences between identification evidence and exclusionary evidence that it is wrong to simply throw them in the same basket.  Our fallback position, if I might put it this way, your Honour, is that even if you take the view that it falls within evidence that may be unreliable, it must at least be essential to point to the differences between identification evidence and exclusionary evidence.

To point to the fact that it is a very different process, that there is no risk of displacement, that there is no experience the courts can point to to show that there have been injustices as a result, that the conditions of observation may have little impact on exclusionary evidence, all of the factors which we say point to a distinction between those two kinds of evidence also point to the need to, if any kind of direction is to be given about this kind of evidence, qualify it in the way that I have submitted.  Those are my submissions, your Honour.

GLEESON CJ:   Thank you, Mr Odgers.  Yes, Mr Game.

MR GAME:   If the Court pleases, I am going only talk about Mr Rossini and the Laycock brothers.  Your Honours, I will come shortly to what might be described as the regime under the Evidence Act and what we would say is the unsatisfactory jurisprudence about it, but I wanted to commence by saying that the problem that was confronted in this case with Mr Rossini and the Laycock brothers is by no means a new problem in the criminal law and the common law had and continues to have a particular way of dealing with it.  Mr Rossini was probably a principal in the second degree or at least an accessory before the fact.  He had also committed other offences for which he got special ‑ ‑ ‑

GLEESON CJ:   He was indemnified, was he not?

MR GAME:   He was indemnified, yes.  The Laycock brothers were accessories after but they also got indemnities in relation to a drug dealing business.  In addition, there was an accepted possibility of collusion between the Mr Rossini and the Laycock brothers.  In addition, there was very little of what might be described as corroboration in this case, aside from those three witnesses.  At common law you get a warning that it is dangerous, and I am not so concerned about that word, to convict, but you also got a direction that the evidence had to be corroborated and that had two connotations.  One, it had to be truly independent, two, it had to be corroborative in the sense that it implicated the accused.  This was of particular importance because there is much evidence that will support an accomplice that does not bite in the relevant respect and the third aspect is, regardless of all that, if there is a possibility of collusion, Pollitt‑style, you cannot get corroboration from that evidence.

When we come to the Evidence Act, and if the Court could turn to pages 327 and 328 of the application book, I will shortly come to sections 164 and 165.  If you see at page 327 the court at about line 25 has declined to follow two New South Wales cases of Chen and Ngo which support the proposition that in the application of section 165(5) there may be circumstances in which a forewarning should be given.  The court held that they did not agree with that and then at the top of 328 under (4) the court said “the judge is never under a duty to do so.”  Your Honours, we take issue with that.

GLEESON CJ:   That is fastening on dangerous to convict?

MR GAME:   No, not particularly.  We take issue with that in respect of what I am about to come to and what I am about to come to is how the jurisprudence has changed under section 165.  We do take that point but, as it were, we have a following proposition which, as I have put it, it will be my submission, that this has, shall I say, a stronger bite.  When one comes to section 165 one still has the problem with multiple witnesses who are subject to the warning, one still has the problem with the content of the warning and one still has the problem of identifying what independent support is.   As to the content of the warning, the court said at page 312, paragraph 182, in substance, that the court giving such a warning, need “to do no more than put the respective cases” in respect of that subject.  If I come back to page 329 we see at paragraph 221 the ideas of:

“independent support” have a far wider meaning than “corroboration” –

My point is that the words – not my only point but my point here is that the words “independent support” are themselves terms of art and if you are going to use those words you have to explain to the jury in exactly the same way as you did – I do not mean exactly precisely ‑ ‑ ‑

GLEESON CJ:   They use it, no doubt, because there is a lot of cases that say you should avoid using corroboration.

MR GAME:   Yes, your Honour, but what is the idea that lies behind “independent support”?  My submission is (a) “independent” must mean truly independent, logically speaking and (b) “support” must mean evidence that advances the prosecution case in respect of the guilt of the accused.

GLEESON CJ:   Where is the particular passage in the summing‑up to which this complaint is directed?

MR GAME:   It is not the first in time but if your Honours look to pages 78, 79, 80 and 81 then I will have to take you back to an earlier portion.  You will see at page 78, line 32, “The remaining evidence is relied upon by the Crown in fact to support them”.  Then at page 79 his Honour says, “I need to give you my own warning”.  He talks about the “undertakings” that the witnesses have and possibility that they are “accessories after the fact”.  There is two reasons.  Then at page 80 his Honour says at line 14, “You also should look to see to what extent there is any independent support for them”, but at no stage has he told them what that independent support is.  I will come back to the earlier passage shortly. 

Then we come to page 81 in respect of what is described as “cross support” at the bottom of page 80 and it is said at line 24, “the possibility that they have colluded” is referred to, that is to say that the Laycock brothers have colluded with Mr Rossini.  Now, at common law applying Pollitt, regardless of whether or not they were witnesses who had their own reason for a warning, they could not corroborate Mr Rossini if there was a possibility that they had colluded with him.  So we see here the support idea, what is at the heart or what lies behind the support idea has been buried.  We have this idea of independent support yet we do not have the jury being told what independent support is and what evidence might be capable of sustaining that.

GLEESON CJ:   Between pages 83 and 86 we see an exchange between counsel and the judge about the directions the judge has given so far.

MR GAME:   That is correct.

GLEESON CJ:   Where do they complain about this particular problem you are raising?

MR GAME:   They do not, but they do complain about this proposition about the idea that they are absolutely telling – the proposition that they are telling a lie as opposed to it being proven that they are telling a lie and I accept that it is not complained about.  This is at the heart of the case, of course, because Mr Rossini – and may I say, your Honours, it is not as though this is a small ‑ ‑ ‑

GLEESON CJ:   We know the importance of Mr Rossini.  If you look at the bottom of page 81 in the last two lines, the judge lays it right on the line about Mr Rossini.

MR GAME:   Absolutely.  I understand that, your Honour, but what I am saying is that this case is important because what is being approved of here is a level of warning that would never had answered satisfactorily the warnings required for exactly the same problem at the common law and section 165(5) preserves that.  Before coming to that, may I take your Honours back in the summing‑up to pages 44 and 45.  We see at page 44 the Crown case depends on Mr Rossini.  At page 45, “The Crown acknowledges in relation to Mr Rossini and the Laycocks” et cetera, and his Honour is giving them the warning.  He is saying, “subjected to very careful scrutiny” and one of my submissions is that that is not strong enough.

Then at page 47 we come to what is called “Circumstantial evidence” at line 18.  Then, if your Honours go all the way through to page 62 we see that it is accepted that one of the circumstances is said to be “motive” and all of that comes from Mr Rossini.  Then you come to the bottom of page 63 with supporting circumstantial evidence, it would appear.  All of those things on pages 64 and 65 are Rossini or Laycock pieces of evidence.

GLEESON CJ:   What was described as “careful scrutiny” on page 45 becomes “the most careful scrutiny” on page 79.

MR GAME:   Yes, your Honour, I accept that those words are used but what I am saying is that section 165, as soon as you – the idea that going out of the idea of corroboration saves you from these problems is completely mistaken.  We see this in the clearest terms by reading what is at pages 64 and 65, because if he gave proper directions about what was truly independent and what was supportive, very little, if any of that list of circumstances on pages 64 and 65 would answer that description.  The most important circumstance, as it were, is said to be in the whole case, at the bottom of page 65, “that the .45 that was used to shoot Karam came from the unit”, we see at page 114 that the source of that evidence is entirely Mr Rossini’s own evidence. 

So, you have a case – and I have the transcript that will actually show that – the case that is put as the most important piece of evidence, bottom of 114.  I am sorry, I will rephrase that, I did not have it in front of me.  The question is rhetorically put:

how likely was it that any one of them could, or would have got access to a weapon which was kept at the Riley Street apartment?

But that proposition, which is central to the Crown case – we saw that back at the earlier page – that evidence comes entirely from Mr Rossini.  So, if I go back to the Court of Criminal Appeal’s judgment at pages 328 to 329 – and this is clearly intended as an authoritative statement about how the Evidence Act works in these circumstances – we have the contentious proposition at the top of 328, and contrary to Ngo and Chen, that “the judge is never under a duty” to give a full warning.  We have the idea of independent support being, as it were, something more amorphous than corroboration and therefore is an excuse for not identifying what it is in circumstances where you actually do not have it.

So, in my submission, this case sets the guidelines as to how these witnesses are to be dealt with.  What is put in place is far too weak and unsatisfactory to constitute a proper warning whether under section 165 or at common law.  Your Honours, I take it, would appreciate that there is an issue about whether or not an accessory after would have got an accomplice direction, but we see under section 165(1)(d) fairly wide language:

evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events –

That is the accomplice aspect.  Section 165(1)(e) is perhaps analogous to the, as it were, discounting or the indemnities that they got in relation to other offences because that is usually the position of a prison informer.  Now, we come to subsection (5):

This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

It is that subsection which is applied in Chen and Ngo to the effect that there are circumstances such as this where a forewarning has to be given.  We submit that an important question arises in relation to how the criminal trial courts should deal with accomplices, people in the positions of Mr Rossini and the Laycocks.  It is a problem that has had a very longstanding in criminal law.  It has been revisited time and time again by this Court in cases such as Pollitt and, more recently, in Conway and one other case called Jenkins.  But the solution or the way in which it has been settled in this case authoritatively leaves, in our submission, a most unsatisfactory position.

GUMMOW J:   Was there any discussion in the Court of Criminal Appeal judgment of section 165(5)?

MR GAME:   What there is is a discussion beginning at page 322.

GUMMOW J:   Yes.

MR GAME:   Then at page 323, 165(5) is considered.  I am sorry, back at 206 there is a short summary of what was said in Chen which is:

although s 164(3) abolished the universal common law duty to give an accomplice warning, “the power and the duty to ‑ ‑ ‑

GUMMOW J:   Is not what is said at paragraph 207 on 323 the genesis of what is said at the top of page 328?

MR GAME:   Yes, your Honour.  That is the discussion of this issue and that is the adverse ruling that we got in relation to it at the top of page 328.  So, yes, that is the discussion of it.  Chen and Ngo were two serious cases where the court held that there were such circumstances.  That is all I wanted to say on that subject.

GLEESON CJ:   Thank you, Mr Game.  Yes, Mr Walker.

MR WALKER:   Your Honours, the terms of the statute, namely, section 165, might be thought to be such as to have dictated by legislative fiat that there are certain characters which may be summed‑up as unreliability to be attached to the specified kinds – that is the critical word – kinds of evidence, which are then, by statute, described and defined in paragraphs (a) to (g).

GLEESON CJ:   Not exhaustively, though, are they?

MR WALKER:   Not exhaustively.  So those in paragraphs (a) to (g) are described and defined.  They are expressly not exhaustive.  What follows from that is that there is no legislative fiat that allows one to assert of identification evidence not within the statutory definition, and this evidence was not within the statutory definition, but it is that kind, namely, that it may be unreliable.  So, you are shorn of legislative fiat permitting an assertion to that effect.

Identification evidence that is of such a nature as to prevent proper conviction because it raises or maintains a reasonable doubt as to guilt is obviously not such as will have left in legal culture and history many and impressive examples of mistakes causing injustice.  In other words, the lay colloquialism, a case of mistaken identity, is by reason of the culture concerning the onus of proof, conviction and appeal, limitations on appeals, confined to cases where a person not guilty, or not sufficiently shown to be guilty, has been convicted and not to a case where there has been a mistake in relation to a person who could or should have been convicted not been convicted.

That means that the two available sources of what we would respectfully submit could be called a rational kind for making an assertion about evidence having that character “that may be unreliable” were absent in this case.  You do not have the experience of the judges which must be more than their private intuition that the jury is getting it wrong when the jury acquits.  It could only be the experience of the judges because examination on appeal, or on later statutory review of doubts into a conviction have satisfactorily demonstrated that a conviction based upon identification evidence was wrong.  That can be the only way judges can know it and experience and you do not have the statutory fiat.

It follows, in our submission, that it was entirely unsatisfactory and remains lacking any explanation, notwithstanding the case law carefully reviewed by the Court of Criminal Appeal reasons in this case, as to how it can be said that identification evidence which is inconsistent with the accused being the person who committed the offence, so-called negative identification evidence or exclusionary evidence, remains entirely unexplained as to how one would assert, as a judge, ruling under section 165, the opening words of subsection (1), before you come to the examples, how you could possibly say, well, this is of a kind that may be unreliable.

There is one obvious answer as to how you can do it.  You can say in a way which is self‑defeating and reductionist that all evidence may be unreliable, that being a truism.  As my learned friend Mr Odgers has already noted, it has been observed that, as was referred to at application book page 286, paragraph 116, that in seeking to give sensible effect to the words of the statute, section 165, the opening words of subsection (1), one thing to be avoided is to collapse the category into something that does not discriminate at all, let alone as between what is specially available to the knowledge of judges as opposed to the common sense of people who become jurors.

In order to discriminate in that fashion there has to be some source of knowledge, rational, capable of being argued about, because the question in section 165 can and should, on proper occasion, be the subject of adversarial argument between Crown and defence to be decided by a judge giving reasons.  In the ordinary case there can be, if necessary, books having been written about it, a catalogue of famous cases of mistaken identity which led to convictions. 

That has produced, obviously enough, Domican, referred to by this Court in Festa.  That is easy.  And where the Parliament has said, if you fit within these descriptions that will suffice, you are thereby one of these kinds of evidence, there is the second possibility, but how, with respect, can one simply say, well, identification evidence of a kind that the legislature has defined – that is implicating the accused, relevantly, in committing the offence – that is statutorily said to be of such a kind? 

That accords with the preceding and parallel common law experience demonstrated in cases that can actually be named, appellate judgments or inquiries into convictions can actually be looked at and we then say, so the ruling would go, the identification evidence in this case which is not of the character, that either that legislative description or judicial history, we say that is also identification evidence of a kind, the genus cannot be broken up, therefore, it is of a kind that may be unreliable.  In our submission, that is diametrically opposed to the nature of a process of decision‑making which adversarial argument requires and which judicial decision‑making requires; you must be able to marshal material which rationally supports one view or another. 

Here there was neither judicial experience nor legislative fiat to require it.  As Justice Smart said in Rose, again as discussed on pages 285 to 287 of the application book here, there is an essential difference and there is an oddity in construing section 165 so as to observe that identification evidence that is not exclusionary evidence and not negative evidence, that that is required to have the warnings of section 165 potentially applied and to go from there, that is, from the limited class, to reason that the broader class of all identification evidence is in the same case.  That is an illogical, and in our submission, a completely wrong way to read the statutory command. 

To read a command that subset must be dealt with in some way but the class of which it is a subset must also be dealt with in the same way is to try rather than apply legislative requirement.  The answer given is that subsection (5) dissolves everything and, in our submission, it is the extent to which it is said to dissolve everything which is the weakness of that argument which this Court ought to examine.

There is another reason and this is a difference or variation from the approach that your Honours have heard from my learned friend Mr Odgers on this point.  There may well be a difference between evidence sought to be relied upon by the defence and evidence sought to be relied upon by the prosecution in this connection, that is, we would give a different answer to the question the Chief Justice asked my learned friend Mr Odgers today.  That is of critical importance, in our submission, and certainly of such general public importance as to justify this Court considering the issue.

The argument is obviously based upon the location of the onus of proof and the nature of the standard of proof.  Clearly enough, identification evidence within the statutory description, so-called positive identification evidence, that may be unreliable, that being established both legislatively and judicially.  That, clearly enough, has such a quality thereby that may produce in a particular case a critical deficiency in proof beyond reasonable doubt of guilt, the administration of justice being concerned that guilt be adjudged only in the proper fashion, there is the common law and legislative concern to ensure that there is a warning about the use of that evidence.

GLEESON CJ:   Take this example, Mr Walker, which is a very common example.  A terrified elderly person is the victim of a home invasion and gives a description of the invader which is to the effect that he is a huge, powerful male, he is somebody who has terrified her out of her wits.  Then the police arrest somebody and put him up for trial and he is different looking, a much smaller kind of male.  Is not the judge entitled to warn the jury of the potential unreliability of the description of the attacker given by the terrified victim of the home invasion?

MR WALKER:   Your Honour, it may be that in the circumstances of a particular case a direction about the particular evidence such as the lighting in the room, the physical position of the people, the victim laying down in bed, for example, the person appearing to be looming, et cetera, that is, in the particular case the particular evidence may, as subsection (5) makes clear, attract something which called be called a warning.  This is a case about a generic warning that asserts with the authority of the judge that the law knows something about a kind of evidence, a kind of evidence that transcends the particular case and attracts in the case of the specified identification evidence in the statute the compulsory need to consider what I will call a generic warning.

GUMMOW J:   Do we know what was in the mind of those who drafted this section when they used the phrase “of a kind”?

MR WALKER:   The ALRC material does not permit more to be known than has been suggested in the authorities which are, for example, referred to in paragraph 116 at page 286.  However, what is clear from all the material which produced the statutory test was that what was being called in aid was what was believed to be known or understood from actual experience, that is, experience that could be named rather simply intuited.  Those are all cases of wrong conviction on the basis of positive identification evidence.

One suggestion that has been made in the case law, whether it be correct or not, is another reason why the matter is of such importance this Court should consider it, is that in order to attract a description “of a kind that may be unreliable” in the context of a mandatory consideration to be given to a warning the quality in question should be one that in the nature of things will be better understood or perhaps only understood by lawyers as opposed to jurors.  That is a curious and perhaps invidious notion.  It certainly informs the current jurisprudence.

GLEESON CJ:   Yes.  It is the answer that the courts have given to the question, “What do you think you are doing telling jurors?” and the answer, of course, that is traditionally given is, “We have long experience”.

MR WALKER:   Yes, that is right.  The cliché and none the worse for being a cliché, of course, is, “it is the experience of the courts”.  The experience of the courts is not hidden.  It is either there or not and, sadly, as this Court has said many times, Festa is simply a good example, one can multiply examples which constitute the cases of mistaken identity which informed the lay and legal understanding of the dangers of identification evidence, that is, evidence which positively says, “I saw the accused commit the act”.

There is, of course, no such material about the dangers either as to reliability or acting upon exclusionary evidence of this kind.  There is no such experience and for the reasons my learned friend Mr Odgers has put and has been developing in the written submissions to an extent, one cannot say that the capacity to exclude a person as some other person is anything like what might be called the multi‑point similarity exercise that may go awry in saying that it is a named person.  For example, there may be just one obvious facial feature, the absence of which is sufficient to say the height is the same, the colouring is the same but that is not his nose, for example.  A one point exclusion.

The very reason, of course, why it is understood there is danger in positive identification.  Let us say there are 27 distinctive matters that could be seen on the occasion.  Somebody gets 26 of them right but the 27th is wrong, that is a case of mistaken identity.  It does not work in reverse, either logically or as a matter of human experience.  In our submission, when one then considers the onus in standard questions you are left with this proposition which comes back to the language of the statute.  We know the mischief identified by the language of the statute is what to do about something which generically has this possibility of being unreliable.  Unreliable.

The concern with unreliability is not, we respectfully submit, so easily seen as being mutual as between prosecution and defence as the Court of Appeal proceeded to reason in this case.  Evidence that may be unreliable, either generically or in the specific case, I stress, may be unreliable, does not thereby fail to have the capacity to raise and maintain the requisite reasonable doubt which entitles or requires a verdict of acquittal.  Much more will need to be said within the confines of the jury room than that this exclusionary evidence may be, that is, has an un‑excluded possibility of being unreliable.

It is for those reasons that in the context of mandatory consideration to warnings that have this special weight of, as it were, the specialist cast telling the ad hoc tribunal of fact of something specially known should not have been done in this case and for those reasons it is, in our submission, of transcended importance beyond the disposition of particular cases and ought to be examined by this Court.  In Festa both Justices McHugh and Hayne confined their comments to what they call positive identification evidence, totally in accordance with what we have said concerning the nature of what may be known from legal history or from statutory fiat about identification evidence and its generic weakness.  May it please your Honours.

GLEESON CJ:   We do not need to hear you, Mr Lamprati.

We are of the view that there are insufficient prospects of success of appeals in these matters to grant special leave and in each case the application is dismissed.

You needed extensions of time in these?  They have been granted.

AT 11.21 AM THE MATTER WAS CONCLUDED