Polidano v The Queen

[2005] HCATrans 1036

[2005] HCATrans 1036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P6 of 2005

B e t w e e n -

JOHN POLIDANO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 DECEMBER 2005, AT 12.44 PM

Copyright in the High Court of Australia

MR S.B. WATTERS:   If it please your Honours, I appear with MR P.L.R. MEYER for the applicant.  (instructed by Thames Legal) 

MS T.D. SWEENEY, SC:   If it please your Honours, I appear for the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

GLEESON CJ:   Yes, Mr Watters.

MR WATTERS:   Your Honours, this is an application for special leave.  Can I respectfully turn to the applicant’s summary of argument, in particular ground 2.2 concerning ‑ ‑ ‑

GUMMOW J:   Just slow down a minute.  What page of the application book?

MR WATTERS:   My apologies, your Honour.  I was looking at the ‑ ‑ ‑

KIRBY J:   Page 205, is it?

MR WATTERS:   Yes, your Honour.  I was looking at the summary of argument – your Honours, my apologies, it is, yes, page 205 of the application book, ground 2.2 concerning the question of identification.

KIRBY J:   Is this the point on which you are pressing this application?  Is the point concerning the son and his evidence not going to be pressed upon us or ‑ ‑ ‑

MR WATTERS:   I am not seeking to press that point, your Honour.  The points I would seek to press are, firstly, this ground 2.2 and also ground 2.3 concerning the issue of lies but, with respect, primarily I would seek to push ground 2.2.

GLEESON CJ:   Where was the direction?

MR WATTERS:   Your Honours, the direction in the application book is at page 115, paragraph 104 of the decision of the Court of Appeal, the decision of Justice Parker, set out there at points 20 to 30.  Do your Honours have that point?

GLEESON CJ:   We do.

MR WATTERS:   Thank you.  Your Honours, the issue here revolves ‑ ‑ ‑

GUMMOW J:   Just a minute, I have to read it.

MR WATTERS:   My apologies, your Honour.

GUMMOW J:   Yes.

MR WATTERS:   I am obliged.  Your Honours, the issue here revolves around the direction given by the learned trial judge in relation to the evidence given by the witness Quinn, which in particular is set out at page 104 of the application book at paragraph 66.  Your Honours will see at paragraph 66 there is a quote of what Quinn said and, in particular, if I can respectfully draw your Honours to around line 40 where he states:

I saw a man towards the middle of the road and he then proceeded to walk back behind the car.  Just walking.  I thought he was about – he appeared to be about 5 foot 9, but I only took that estimate after I passed the car; dark clothing; what I thought was dark hair, or possibly a beanie.”

There was evidence at trial that the witness Quinn knew both the deceased and the appellant and, of course, with respect, it is to be borne in mind that the witness Quinn was driving past at around midnight in a large articulated semi‑trailer, commonly known as a road train, at speed, and that is the description he gave of the person he saw, bearing in mind that the evidence was that he had known the appellant for a number of years.

If I may respectfully return to the direction that was given at page 115 of the application book, it is also, with respect, to be borne in mind that the defence was one of alibi in that the appellant said he was at home that night with his son and with his de facto partner.

GLEESON CJ:   How tall was the appellant?

MR WATTERS:   The appellant is about 5 foot 10, your Honours, as I understand it.

GLEESON CJ:   Thank you.

MR WATTERS:   Your Honours, in my respectful submission, there are a number of categories of identification evidence.  I am referring to the decision of this honourable Court in the case of Festa that I understand was ‑ ‑ ‑

KIRBY J:   Is that all that the judge said about identification?  Was there any warning about the dangers that can arise in identifying a person from recollection?

MR WATTERS:   Your Honours, the learned trial judge pointed out to the jury that the witness Quinn had not positively identified the appellant but, in my respectful submission, the ‑ ‑ ‑

GLEESON CJ:   I am sorry to interrupt you, Mr Watters, but what exactly was and what exactly is the complaint about this direction?  Was there a complaint at trial about this direction?

MR WATTERS:   Your Honours, there was not a complaint made at trial, no.

GLEESON CJ:   Okay.  So we do not have the benefit of knowing what trial counsel thought the judge should have said differently from what he did say.  What do you say the judge should have said differently from what was said?

MR WATTERS:   Your Honours, in my respectful submission, the evidence falls somewhere between what could be called positive identification and what could be called evidence circumstantial of identification and required a specific warning from the trial judge moulded to the features of the particular case, that they needed to be careful as to how they treated that evidence.  In particular, his Honour the trial judge used the phrase “identify” in his charge to the jury, which my learned friends concede was an unfortunate phrase but, in my respectful submission, it is not simply a question of semantics.

Where the evidence of Quinn was such as to describe the person seen at the scene of the crime in a remote area, contrasted with the fact that the appellant was running a defence of alibi, it was a particularly crucial piece of evidence and required a strong direction from the trial judge as to how the jury were to use it.  His Honour Justice Parker ‑ ‑ ‑

GLEESON CJ:   Is it your submission that although this did not profess to be a positive or detailed identification, the information, if I can use that neutral expression, that Quinn gave about the person he saw was consistent with that person having been the appellant and, therefore, the trial judge should have warned the jury about the danger of acting on that information?

MR WATTERS:   Yes, your Honour, and if I may ‑ ‑ ‑

KIRBY J:   There are a lot of people around who are 5 foot 10 inches high.

MR WATTERS:   Yes, your Honour, and it is of course to be borne in mind that it was the winter months, late at night.  There would also, with respect, be people wearing dark clothing or heavy clothing.  Of course there is also ‑ ‑ ‑

KIRBY J:   There was something about the tyres, was there not?

MR WATTERS:   Yes.

KIRBY J:   The tyres went through the blood in a very short time.

MR WATTERS:   Yes.

KIRBY J:   They calculated that that was only a matter of seconds after the death of the deceased.

MR WATTERS:   Yes, your Honour, and in particular ‑ ‑ ‑

KIRBY J:   Now, is that not a very inculpating piece of evidence?

MR WATTERS:   Your Honour, it is, and, further, with respect, I concede not only that, but the particular type of tyres on the car were matched to the tyres of the car owned by the appellant’s de facto.  Now, of course, that is once again ‑ ‑ ‑

KIRBY J:   That is a proper concession, and it seems to me your argument on the identification point is a little ethereal in this case given (a) that you had that objective element about the tyres and (b) you had the supposed alibi being undone by the son who would not bear it out.  Now, this came before the Court once before and we took steps to see if the matter of the son’s withdrawal of his statement could be considered by the Court of Criminal Appeal of Western Australia, or the Court of Appeal now.  I understand that that petition was not granted by the Executive Government.  Is that correct?

MR WATTERS:   That is correct, your Honour, yes.  An affidavit ‑ ‑ ‑

KIRBY J:   And the point is raised in this Court that we could not receive the evidence under current doctrine and, therefore, that there would be no evidentiary foundation for that matter being pressed in this Court, although it has never to this stage been dealt with in the judicature.

MR WATTERS:   Yes, your Honour, that is correct with respect.  An affidavit was ‑ ‑ ‑

KIRBY J:   Your client understands the situation that has arisen, does he?

MR WATTERS:   He does, your Honour.

KIRBY J:   And he is content that you advance the case without any reference to the withdrawal by his son of his evidence and the son’s admission that he told perjury at the trial?

MR WATTERS:   Your Honour, with the greatest of respect, my understanding of the way the authorities lie is that this forum is not one for receiving what I might call fresh evidence, and that affidavit from the son has, as your Honour has indicated, been referred to the Executive and the Executive have declined to refer the matter back ‑ ‑ ‑

KIRBY J:   But that means that the Director of Public Prosecutions, part of the Executive Government, and the Government of Western Australia, by making that decision, means that the matter is never passed on by the courts.  I have sat in the Court of Criminal Appeal in cases where people have withdrawn their testimony.  It is a very important question.

MR WATTERS:   Your Honour, it is, with respect.  The Attorney‑General, as the head of the Executive for the legal perspective has indicated that the matter would not be referred back to the Court of Appeal based upon the evidence of the son on the basis that the case other than that was strong, to use his words from his letter, against the appellant.  With respect ‑ ‑ ‑

KIRBY J:   As far as I am concerned, it shows once again why in residual cases this Court under the Constitution should receive evidence in appeals, and may do so under the Constitution, however. Is there no way in your submission that the matter could come properly before this Court?

MR WATTERS:   Your Honour, only by way – and I would need to explore the issue of whether the decision of the Executive is reviewable in that sense.  One would need to look at the new Court of Appeal Act that your Honours are aware of in this State, but of course that is an issue that I have raised with my instructing solicitors concerning the issue of the decision of the Executive not to refer the matter back to the Court of Appeal based upon that.

KIRBY J:   It does not look good, as far as I am concerned, because it means the Executive is deciding a matter which quite commonly comes before courts of criminal appeal where vital witnesses withdraw their evidence, and the Court of Appeal of Western Australia is never going to pass on the matter.

GLEESON CJ:   Anyway, you have limited time within which to pursue the arguments you want to pursue and we would not want to stop you pursuing them.

MR WATTERS:   Yes, thank you, your Honours.  Could I just revisit the issue of your Honour Justice Kirby’s point concerning the car.  The issue was, of course, that the appellant was seen to leave his house with a boarder, a person known as Colledge.  Now, Colledge at page 95 of the application book was described as someone being inconsistent in appearance with the appellant, but there was no evidence as far as I am aware, certainly nothing in the application book or before the Court of Appeal, as to what Colledge was wearing, other than a description of him as being:

“really big and mean, he’s 6 foot something, very wide, very big, has black or dark brown hair, people call him Big Frank”.

That is at lines 10 to 15 of the application book.  Now, the reason I raise that is with respect to your Honour Justice Kirby’s point about the fact that here was the appellant’s de facto’s car that was allegedly at the scene.  The issue – and, as Justice Anderson in the Court of Appeal said, a number of questions remain unanswered – is that the appellant and Colledge allegedly left the house at the same time and returned, but on the Crown’s case at some stage the appellant went to the scene on his own.

Now, in my respectful submission, the fact that the appellant’s de facto’s car was there is not such that this Court should follow, for example, the authority of Festa and perhaps rule that although the issue as to identification was incorrect, the evidence against the appellant was so strong that the conviction stands.  In my respectful submission, the evidence against the appellant was entirely circumstantial. 

The description given by the truck driver, Quinn, of the person at the scene at the time was a crucial piece of evidence counterpoised to the alibi defence run by the appellant, bearing in mind that the appellant gave evidence consistent with his defence, as did his de facto.  The son had previously given – and this is certainly matters for the jury – a statement saying that his father was at home.  He then countered that by saying his father had left during the evening.  There was also the evidence of a Ms Turner who said that the appellant had been to her house on that evening.  So there were a number of matters for the jury and, in my respectful submission ‑ ‑ ‑

GLEESON CJ:   Mr Watters, where do we find the trial judge telling the jury the use they can make of that evidence of Mr Quinn?

MR WATTERS:   Your Honour, that is page 104 to 105 of the application book.  That is regarding the evidence of ‑ ‑ ‑

GLEESON CJ:   I was intending to ask you a question about the summing‑up of the judge to the jury.

MR WATTERS:   Yes.  Page 115 of the application book, your Honour.

GLEESON CJ:   Thank you.  I am sorry, I am intending to ask you what the judge told the jury they could make as to the significance of that evidence of Mr Quinn.  What was said by the judge to the jury as to its potential importance?

MR WATTERS:   Your Honour, the ‑ ‑ ‑

GLEESON CJ:   Perhaps you can come back to this in reply if you like.

MR WATTERS:   Yes, thank you, your Honour.  Your Honour, the point I would seek to make is, with respect, as Justice Hayne said in the decision of Festa at paragraph 217 to 219 talking about the issue of identification.  At paragraph 218 his Honour there stated, talking about a person having particular physical characteristics:

The duty of the judge is to draw the jury’s attention in every such case, where the reliability of the evidence is disputed, to how and why the evidence may not be reliable.  The trial judge did not do this sufficiently at the appellant’s trial.

His Honour went on to say at paragraph 219:

the content of the directions must be moulded with due regard to the issues at trial –

and, with respect, as your Honour the Chief Justice stated at paragraph 26, dealing with the ‑ ‑ ‑

GUMMOW J:   We can all read that.  What do you say about the way Justice Parker treated this on page 116, paragraph 107?

MR WATTERS:   In my respectful submission, Justice Parker erred in determining that the evidence was not identification evidence and indicating that that particular type of direction was not required.  In my respectful submission, as I have indicated, the evidence fell somewhere between what could be called positive identification and circumstantial identification evidence and, accordingly, an appropriate direction should have been given.  In the alternative to that, in my respectful submission, bearing in mind what the learned trial judge said, it is incorrect to direct a jury that they may use circumstantial evidence to conclude that the evidence of identification was correct. 

In this case the trial judge invited the jury to decide whether it, the evidence of Quinn, would suffice to identify him.  In my respectful submission, the learned trial judge fell into error there.  Regarding your Honour’s comment as to Justice Parker’s statement at paragraph 107, his Honour was wrong to determine that the evidence was not identification evidence.

Your Honours, may I, bearing in mind the time, turn to ground 2.3, the issue of lies, and respectfully draw your Honours’ attention to page 117 of the application book at paragraph 114 where, around line 35, the jury was directed by the judge as to, in effect, what amounted to two lies.  That is the fact that, first of all, the appellant said he had not been out during the day or night and, secondly, he then admitted that he had been out at night. 

The point I would seek to make, with respect, is that the lies were not sufficiently identified to the jury.  That is that there were two lies, the first lie being with regard to not going out during the day or night and, secondly, admitting in fact that he had been out that day visiting Ms Flinn, were rolled up by the trial judge in that direction to the jury and were not correctly identified in accordance with the principles in the case of Zoneff.  If the Court pleases.

GLEESON CJ:   After we have heard from Ms Sweeney I am going to ask you again to show us the part in the judge’s summing‑up to the jury where he explained to the jury the evidentiary significance, the factual significance, of the evidence of Quinn about which you say they should have been given a warning.

MR WATTERS:   Yes, your Honour, thank you.

GLEESON CJ:   Yes, Ms Sweeney.

MS SWEENEY:   May it please the Court.  Dealing firstly with ground 2.2 the direction on identification, his Honour ‑ ‑ ‑

KIRBY J:   Ms Sweeney, may I just start by asking you, were you present on the last occasion this matter came before this Court?

MS SWEENEY:   No, I was not, I am afraid, your Honour.

KIRBY J:   I recall that the matter came and I was one of the members of the panel and the purpose of the adjournment of the matter was so that the Executive Government could consider the process which we know from Mallard exists in Western Australia of the referral of the withdrawal of the son’s evidence to the Court of Appeal, or the Court of Criminal Appeal, of Western Australia.  Such matters are not uncommon in courts of appeal and they raise a well-established set of principles but, as I understand it, by reason of a decision made by the government, that opportunity of having that issue determined is never going to occur.  Is that correct?

MS SWEENEY:   That certainly is my understanding, your Honour.  I was not aware of your Honour’s recent comments but the matter has, of course, already been considered by the Attorney General ‑ ‑ ‑

KIRBY J:   There were no recent comments; it is just that in Mallard we learned of the procedures in Western Australia under the Code.  Now, would you not accept that the evidence of the son, if withdrawn, would have been quite significant before the jury for the disbelief of the evidence of the father, who is the present applicant?

MS SWEENEY:   Your Honour, in this case, if I can give your Honour a little background.  This was not a situation in which the son gave evidence that the father went out that night and the jury heard that as a neat, clean proposition, if I can put it that way.  The son initially told the police that his father had an alibi.  He then confirmed that account on video.  He was cross‑examined extensively on that being his initial account to the police on two occasions. 

He then gave a statement to the police saying that his father went out that night.  He then, in cross‑examination, was cross-examined about a letter he wrote to a legal aid solicitor retracting his evidence that his father had gone out.  He then at trial gave evidence that his father had indeed gone out.  So it is an unusual situation.  We are not in the classic situation of a recanting witness. This is a witness who has returned to an initial position and the jury were well aware of that initial position and he was extensively cross‑examined on it. 

So, in those circumstances, we would say that the Executive, having made its decision, has applied a threshold test that in order to invite our Court of Appeal to consider this case again by way of a case review there should be some cogency to the fresh evidence put forward and it has not met that test in the Executive’s opinion to, in effect, trouble the Court of Appeal with the further evidence.  It is, in my submission, quite an unusual factual scenario and quite different to the usual position of a witness giving one version at trial and then recanting and that being a new position.

KIRBY J:   Thank you for that explanation.  That settles most of my concerns.  There is the residual concern that the issue is disposed of completely and finally, though originally placed before us, in the Executive Government and not in the judicature but, as you say, this was a rather particular set of facts and therefore might not be an appropriate matter to consider it, insofar as this Court can consider it in the light of current doctrine in Mickleberg.  Anyway, you proceed back to where you were and just deal with the matters that have been argued.

MS SWEENEY:   Thank you, your Honour.  His Honour the learned trial judge directed the jury at only two points in his charge to the jury, and if I could refer your Honours to application book pages 19 and 22.  They are the sum directions.

GLEESON CJ:   Thank you.

MS SWEENEY:   His Honour first canvasses with the jury the evidence given and then at application book page 19 tells the jury that:

The crown points to the fact that the accused’s de facto spouse, Rose, is the owner of a red Holden Vectra sedan motor car whose registration number is 1AGI-807 and suggests that the man seen by Quinn was the accused.  Importantly, however, there is no question of Quinn having recognised that man or having identified him as the accused.  However, he did suggest that the man looked away and he never saw his face.  Furthermore, Quinn did not see any other man there at the time.  There is, no doubt, a very large number of motor cars –

that, in effect, fit that description.  Then at page 22 his Honour again canvasses the evidence of Quinn and summarises it and then says:

Quinn had known the accused for several years before that night.  His evidence does not expressly prove that the man he saw there was the accused but you will consider his description of the man and decide whether it would suffice to identify him.

He then turns to the car, stating:

His description of the car could match the Holden Vectra belonging to Rose Brooks – and I stress, could. 

They are the sole directions given to the jury.  Now, this precise issue did in fact arise at trial.  I think your Honours earlier asked that question.  If I could take your Honours to application book page 41, following his Honour’s charge to the jury the learned defence counsel, Mr Eaton, as he then was, referred to his Honour’s summary of the evidence of Mr Quinn, confirms that his Honour “clearly . . . referred to the fact that Quinn had not identified” the accused but draws his Honour’s attention to the fact that he has used the word “identify” and asks him, having canvassed the difficulties Quinn was under ‑ ‑ ‑

GUMMOW J:   What was the purpose of the evidence of Quinn?

MS SWEENEY:   The purpose of the evidence of Quinn from the prosecution’s point of view – I will go back a little.  The accused was seen out that night at the house of Tracy Chapman and left her house around about 11.30 pm.  Her neighbour over the road also saw the accused that night as being the sole person in the Holden Vectra.  The murder in this case has occurred shortly after midnight.  Steven Polidano had given evidence that the accused had left the house in company with Frank Colledge, the boarder known as “Big Frank”. 

So the prosecution case was that the Vectra itself was at the scene.  We said we established that by the tyre marks and also the broad description of the car.  One person only was seen at the scene of the killing in the vicinity of the car.  That, we said, by reason of the timing, must have been the killer’s car and must have been the killer.

GLEESON CJ:   If the general description given by Mr Quinn was correct, it was not Big Frank.

MS SWEENEY:   That is right, and it was a twofold significance.  Firstly, the prosecution said the tyre marks and the evidence of the blood trail put the killer’s car at the scene.  Mr Quinn described that car he saw as bright red and having a round emblem and registration 1A.  So that was descriptive evidence consistent with the car and the man he saw was descriptive evidence which certainly could have been the accused on that description but could not have been the other person who might have been out in the car that night. 

So, in terms of the timeline, we were accepting that the accused had left his house with another person.  Later that night, at around 11.30, he was now the sole person with the Holden Vectra.  Later that night we said the Holden Vectra was at the crime scene.  One person was seen and that person could have been the accused, on description, and could not have been the other person.  So that was the way in which that evidence was pitched.

GLEESON CJ:   I think that answers the question that I had asked your opponent.

MS SWEENEY:   Yes, your Honour.  Following his Honour’s charge, this discussion between defence counsel and the learned trial judge continued.  Mr Eaton asked – and I am referring at application book, page 42, paragraph 20:

In my submission, that ought to be accompanied with a warning about the circumstances of such an identification, if they were to go down that path.

So, in essence, defence counsel was seeking a warning of the kind contemplated in the case of Domican.  The prosecutor, who, as it happens, was myself, then responded to that submission at application book page 44, in essence, consistent with the point we make now that this is, if it is not a unique case, it is surely a very rare case where the witness who has expressly not identified the accused is a good friend of the accused.

GLEESON CJ:   Well, I suppose there was a negative significance.  If the witness had been able to get a good look at the person, you would have expected him to have known that it was the accused, if it was the accused.

MS SWEENEY:   Precisely the point, and that was the concern that I raised with his Honour at the trial, but if one contemplates in one’s mind the Domican warning along the lines of it is the experience of the court that mistakes in identification do not infrequently occur and then highlight for the jury that the witness was driving a large truck at approximately 80 kilometres at night, the man he saw turned away so that he could not see his face, there are all the reasons for the jury as to why the witness failed to identify the accused whom he has known for years.

KIRBY J:   It is a rather tepid fulfilment of the stringent requirements of Domican though, is it not?  I mean, there are two things that are worrying:  first, the use by the judge of the word “identify”, which was picked up by counsel, and second, the failure, as it were, to explain to the jury that a lot of mistakes can happen in identification.

MS SWEENEY:   Your Honour, I am not suggesting it is an attempt to comply with Domican at all; I am suggesting that this case in its almost unique scenario is a case where a Domican direction would have been greatly to the disadvantage of the accused and that while there is no controversy about the rule in Domican – it is a clear rule – it ought not to be employed to the disadvantage of the accused.  The purpose is to safeguard a fair trial and in this very unusual situation ‑ ‑ ‑

KIRBY J:   Just explain to me how it could be to the disadvantage of an accused to have a judge say that the circumstances were fleeting, the encounter was brief, the person was looking away and in those circumstances any evidence as to identification is – you have to consider whether that is reliable, given that experience teaches that mistakes can occur and often do occur in identification, just a warning of that kind.

MS SWEENEY:   Because, your Honour, we say the irony of this factual situation is that all of those reasons which placed the witness under difficulty in terms of his reliability are all the reasons the jury might then hear as being the reasons he failed to identify his friend, the accused, at the scene.  You see, it is a quite different situation.  Normally, Domican cases and identification cases are dealing with identifications or attempted identifications or decent descriptions given by witnesses who are strangers to the person.  Here we have someone who knew the accused well and due to the various disadvantages he was under as a witness – it being dark, it being a fleeting glance, it being the case that this man did not apparently want to show his face – it may well be that had those circumstances been more fortuitous for the witness he would have identified the accused.  That was the danger in giving a classic warning that would apply in almost every other case where there is descriptive evidence. 

In fact, having heard in effect that submission made in response to defence counsel’s submission, learned defence counsel, if I could take your Honours to application book page 45, having heard that submission, said of that he would be “content” and at application book page 46:

No, I’m content to leave the matter as it is.

GUMMOW J:   Page 46, line 2?

MS SWEENEY:   Yes, that is right, and his Honour endorsed that:

I think that perhaps is the wisest thing to do.

So I am not urging upon your Honours that there was some attempt to tailor a Domican warning.  It was simply an acknowledgment that we were in a very unusual situation factually in this trial and that the Domican warning is there for the interests of the accused to safeguard the fairness of the trial and in this most unusual situation it would have worked against him, we submitted, and his counsel at trial accepted that proposition.

I do accept that the use of the word “identify” by his Honour was unfortunate, but when seen in context his Honour makes it very clear to the jury that this is not in fact an identification.  His Honour ‑ ‑ ‑

KIRBY J:   That is covered too by the concession in reply by trial counsel, one would think.

MS SWEENEY:   Yes.  Importantly, we would say that in the overall context of this case this is not a situation where the learned trial judge should have assumed that the jury might choose to convict on this evidence alone.  They could not possibly have convicted on this evidence alone.  It

was descriptive evidence which certainly assisted the significance of the very compelling tyre mark evidence, but the tyre mark evidence was the lynchpin of the prosecution case and the evidence of Ms Chapman and her neighbour, Mr Turner, who put the accused out in the Vectra that night shortly prior to the killing itself.

GUMMOW J:   This application needs an extension of time.  Is that opposed?

MS SWEENEY:   Certainly not from my point of view, no, your Honour.

GLEESON CJ:   Were you going to go onto lies now?

MS SWEENEY:   I was, your Honour, if the Court is content.

GLEESON CJ:   I do not think we need to hear you on that, thank you.

MS SWEENEY:   In relation to the direction on lies, in ‑ ‑ ‑

GLEESON CJ:   No, we do not need to hear you on that, Ms Sweeney.

MS SWEENEY:   I am sorry, I misheard.

GLEESON CJ:   Thank you, Ms Sweeney.

MS SWEENEY:   Thank you, your Honour.  Those are my submissions then.

GLEESON CJ:   Yes, Mr Watters, I think Ms Sweeney has taken us to the answer to the question I asked you, which is what the judge told the jury about this.

MR WATTERS:   Yes, I am obliged, your Honours.  I apologise for not doing able to do that about the point.  Your Honours, can I deal in reply with a couple of matters.  Firstly, with regard to the issue of the son’s evidence, the son initially gave a statement to police saying, “My father was at home”.  He then, whilst he was in prison, was visited by police and gave another statement to police saying, “My dad wasn’t at home”, and then gave evidence at trial consistent with that second statement.  I simply raise that in ‑ ‑ ‑

KIRBY J:   That is right, but it does appear, at least in the circumstances of this case, that the recantation does not come post‑trial.  It was placed before the jury in the first trial and therefore was in the jury’s mind in the first trial.  The typical case, often happening in sexual cases, is where the recantation comes after the trial and that is a very acute problem for a court of criminal appeal.

MR WATTERS:   Yes, your Honour.  What came, with respect, after the trial was an affidavit from the son perhaps setting out in more detail why there was that change regarding the two prior statements.

KIRBY J:   Yes, I remember reading that affidavit.

MR WATTERS:   Yes.  Your Honours, can I deal, with respect, with the issue regarding the identification direction given by his Honour.  Your Honours, in my respectful submission, the direction that you have been taken to on page 22 of the application book, that is where his Honour simply says – here he is referring to Quinn:

His evidence does not expressly prove that the man he saw there was the accused but you will consider his description of the man and decide whether it would suffice to identify him.

Now, in my respectful submission, that was wholly inadequate when one bears in mind that what it is submitted would have been required and was required was a direction talking about the quality and nature of the actual evidence given, ie, travelling at speed in a large motor vehicle, a large truck, at around midnight on a remote road.  The reason I raise that is that I, with respect, would not be quite so hasty to dismiss the fact the description of the witness, Colledge, who was simply described at application book 95.  No evidence, it appears, was given as to what he was wearing, simply that he was:

really big and mean, he’s 6 foot something –

nothing is said as to what he is –

very wide, very big, has black or dark brown hair, people call him Big Frank”.

Bearing in mind that the witness Quinn knew the appellant and he has gone past at speed, obviously in an elevated position, driving a large road train, in my respectful submission, his Honour should have given a direction to the jury tailored to the circumstances, setting out the nature in which the observation was made by Quinn and how it was made and pointing out the issues with regard to the estimation of height – of course Quinn says that he drew that estimation after passing the car. 

In my respectful submission, in conclusion, your Honours, this case called for a more specific direction as to the issue of identification.  That was crucial given that the defence was one of alibi.  If the Court pleases.

GLEESON CJ:   You have your extension of time, Mr Watters.

In this matter the applicant seeks special leave to appeal, the application being based on arguments concerning a matter relating to identification and a matter relating to directions given on the topic of lies.  We consider that there are insufficient prospects of success of an appeal to warrant a grant of special leave and neither of the matters that the applicant seeks to raise concerning identification and lies persuades us that the interests of justice would require a grant of special leave.  The application is dismissed.

AT 1.26 PM THE MATTER WAS CONCLUDED