Marks v The Queen

[1998] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S56 of 1997

B e t w e e n -

DAVID ALLAN MARKS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 MAY 1998, AT 9.30 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:  If the Court pleases, I appear for the applicant with my learned friend, MR S.J. ODGERS.  (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE:  If the Court pleases, I appear for the respondent with my learned friend, MR M.C. MARIEN.  (instructed by S.E. O’Connor, Solicitor for the Director of Public Prosecutions (New South Wales))

McHUGH J:   Yes, Mr Game.

MR GAME:   If the Court pleases, in our submission, the probative and prejudiced discretion, which now finds its expression in section 137 of the Evidence Act, took a wrong turning in its determination of its scope and application in a case called Carusi, which was applied in this case.

McHUGH J:   Well, I know that, but it seems to me that your problem lies at the threshold and it is that there was no wrongful exercise of discretion on the part of the judge.  That it was a necessary consequence of accepting Detective Marsh’s evidence, that Mr Schultz could not see the name and although it might have been preferable for the learned judge to express the issue in the way that the Court of Appeal did it, nevertheless, having regard to his findings of fact he addressed the right issue.

MR GAME:   Well, your Honour, I cannot say I was not expecting that to be put to me.  In fact I was having an argument with Mr Odgers about how quickly that would come but we do attempt to have an answer to that rather decisive answer to our special leave application. 

McHUGH J:   I think, for my part, it is quite decisive because, speaking only for myself, I would think that if discretion did miscarry then the Court of Criminal Appeal could not possibly have exercised the discretion itself.  So, from my point of view, that is the vital question.

MR GAME:   Could I have an attempt to talk you out of your answer to the special leave application?  Really, what happened was this:  that the trial judge said, “I do not interpret that answer in the way in which you would like me to interpret it”.  We said to the Court of Criminal Appeal, “Well, that is an illogical finding of fact”.  Justice Hidden accepted that proposition.  That, therefore, left the discretion unexercised because obviously that was a threshold factual issue and then there were the other issues that came into play:  the nature of the prejudice and how the accused found himself having to, in effect, highlight the prejudice to meet his case.  So that brought into play a series of issues that had to be determined but then Justice Hidden, in our submission, correctly said that left in that position the Court of Criminal Appeal obviously could not exercise the discretion.

Now, Justice Smart, as we would understand his judgment, said, “Well, we do not have to determine that question because once there is evidence that the name could not be seen, that is a jury question”, and we say that is erroneous.  So what we say has happened is that our challenge, our threshold challenge to a factual issue, has never been addressed in the Court of Criminal Appeal.  So, we are not bringing to this Court an appeal on a question of fact, we say that our complaint about the question of fact was not addressed in the Court of Criminal Appeal because the Court of Criminal Appeal misunderstood the nature of the discretion.

McHUGH J:   Well, be it so, you still have to address the question of whether or not you have an arguable ground, in this Court, that the trial judge did not address the correct issue.

MR GAME:   We would say that if it is open to find - if it was open for a fact finder to find that the name was visible as at April 1992, and it was certainly visible in December 1992, then we have a factual issue that requires determination.

McHUGH J:   The judge, in effect, found it against you, Mr Game.  That is the problem.  He said that he accepted Detective Marsh’s evidence and Detective Marsh said that no part of the writing on any part of the photographs could be seen on whatever the relevant day of identification was, April, whatever was the date.

MR GAME:   Your Honour, if you are not with me on this, well, there is no point in going on, but what we say about this is that it is because of the illogical approach to the - really, at the beginning of his judgment he was reciting what Detective Marsh said.  Then it was because of a particular view that he took about the answer, the illogical view that he took about the answer, that one can say inferentially he decided the factual issue ‑ ‑ ‑

McHUGH J:   I know, but he saw the witness and on a voir dire and he interpreted the answer.  One does not need much experience of trials to know that the way answers are given can tell a lot as to what a witness really meant.

MR GAME:   Well, can I just say this?  The explanation he gave was that - he said he “could not see it as clear as now”, the reason was because he could not see it at all, which is, we would submit, not an unacceptable explanation.  But, your Honour, it seems the issue is fairly clear.  We say

that we have a good legal issue.  If we cannot get past the factual issue then, really, I do not think there is much point in expounding on what is quite an interesting issue.

McHUGH J:   No.  It certainly is and, at least for my part, I think I would be with you on the point of principle but I think you have this anterior problem.

KIRBY J:   And his Honour speaks for me.

MR GAME:   I gathered that, your Honour.  I was even going to read back to you something from Pfennig, which suggested that you might be with me on the legal issue.

KIRBY J:   You can still be here some time in the future.

MR GAME:   We are workshopping.  Anyway, thank you.

McHUGH J:   Thank you very much, Mr Game.  We do not need to hear you, Mr Blackmore.

The question in this application is whether the Court of Criminal Appeal of New South Wales erred in holding that it could consider for itself the question whether, in the exercise of discretion, evidence of identification from a photograph selected from a number of photographs should be admitted.  All members of the court held that the learned trial judge had erred in the exercise of his discretion. 

The name of the person photographed was at the base of each photo shown to the identifying witness, Mr Schultz, but had been blacked out.  By the time of the applicant’s first trial, however, his name was visible on photograph 7, which was the photograph of the applicant.      One part of the evidence of Detective Marsh, who conducted the identification, was open to the interpretation that the name of the applicant was also visible at the time of the identification.  However, it seems clear that the trial judge in accepting the detective’s evidence, accepted that part of his evidence which stated that no part of the writing on any of the photographs could be seen on the day of the identification.  Moreover, his Honour accepted the evidence of Detective Marsh after noting the ambiguity in his evidence, to which I have referred. 

The learned judge made no express finding that Mr Schultz could not see the name of the applicant, but it is a necessary consequence of accepting Detective Marsh’s evidence, that Mr Schultz could not see the name.       In addition, Mr Schultz swore that he did not see the applicant’s name on the photograph, although he agreed that he was aware from town gossip of the applicant’s name being connected with the offence. 

The judges in the Court of Criminal Appeal thought that the issue on the voir dire was not, “whether the details of the nameplate in photograph 7 could be read on the identifying date”, but whether, “Mr Schultz read or could read the name on the nameplate on photograph 7 on that day”.  No doubt the learned judges were right to state the issue in that way, but the distinction between that formulation and that of the learned trial judge was a distinction without a difference.

In accepting the evidence of Detective Marsh that no part of the name could be seen, the learned judge effectively found that Mr Schultz did not see it.  The trial judge’s discretion, therefore, did not miscarry.  The way that the judge formulated the issue seems to have been in accordance with the way that the matter was litigated by the parties at the trial.  But, however that may be, on the learned judge’s findings there were no grounds for rejecting evidence which was highly probative of the applicant’s guilt.  There was no occasion, therefore, for the Court of Criminal Appeal to determine how the judge must have exercised the discretion, if he had formulated the issue in the manner in which the Court of Criminal Appeal formulated the issue. 

For these reasons, the application for special leave to appeal is dismissed.

AT 9.41 AM THE MATTER WAS CONCLUDED