R v Dickman

[2016] HCATrans 283

[2016] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M249 of 2015

B e t w e e n -

THE QUEEN

Applicant

and

GLYN DAVID DICKMAN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 18 NOVEMBER 2016, AT 9.37 AM

Copyright in the High Court of Australia

MR G.J.C. SILBERT, QC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET for the appellant.  (instructed by the Office of Public Prosecutions)

MS L.J. CHAPMAN, SC:   May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the respondent.  (instructed by Barbaro Thilthorpe Lawyers)

FRENCH CJ:   Thank you.  Yes, Mr Silbert.

MR SILBERT:   If the Court pleases, may I commence by addressing grounds 1, 2 and 3 each of which attack the majority’s finding that the trial judge should have exercised his discretion to exclude the identification evidence based on the photographic array on 23 August 2011, pursuant to section 137 of the Evidence Act.  The Court of Appeal decision was delivered on 23 November 2015.  Prior to the decision of this Court in IMM, which was delivered on 14 April 2016, that decision resolved the conflict between Dupas and Shamouil in favour of Shamouil.  It follows that the Court of Appeal’s approach to the section 137 balancing exercise was based on a false premise to the extent that it factored reliability into its equation and it was clearly wrong based on the IMM decision.  

KIEFEL J:   Mr Silbert, even without IMM, would you say that the Court of Appeal’s approach to the assessment of risk was a correct one? 

MR SILBERT:   No, your Honour, no your Honour.  They certainly were premised on the erroneous premise that when undertaking – at appeal book page 112 to 113:

When undertaking the required balancing exercise, the judge is not required to assume that the reliability of the impugned evidence will be accepted.

GORDON J:   It is more basic than that though, is it not?  Is there not a difficulty, in a sense, that there was a whole lot of other evidence that had to be considered in context?

MR SILBERT:   Absolutely, your Honour, and I was coming to that.  The identification evidence here upon which the Court’s decision rested and upon which a new trial was ordered was, effectively, disavowed by the Crown as part of its case.  The Crown case was a circumstantial case resting on a bundle of evidence and, effectively, the identification evidence, as I say, was - your Honours do not have the final address of the prosecutor but it was disavowed three times, and Justice Whelan actually remarks on that in his decision at – I will take your Honours to it – page 90 of the appeal book, paragraph 23:

As matters transpired in the trial, far from the photoboard identification prejudicial to the applicant, it was used by his senior counsel as a principal component of the defence case.  Counsel for the Crown all but disavowed reliance upon it.

So the answer to both your Honours Justices Kiefel and Gordon, is yes, it is more fundamental than a section 137 balancing exercise.  It was submitted a completely wrong approach that went off the rails in the way that it was treated.  Again, the effect of that, really, was to subvert the jury’s decision.  This Court in Baden‑Clay has re‑affirmed the privacy of the jury.  It really went behind the jury’s decision.  In a situation where even if one was to look at the identification evidence, the directions given by the trial judge in relation to identification were extensive and, it would be submitted, complied with everything said in Domican as to identification evidence in any event.  So the bottom line, effectively, is that it went completely off the rails.

FRENCH CJ:   Is this presented as a visitation case?

MR SILBERT:   It appears to become one, your Honour, yes, yes.

FRENCH CJ:   Because the principle has been settle by IMM.

MR SILBERT:   Yes, yes.  It appears to be a visitation case to the extent that it appears before your Honours as a case where the Court of Appeal sort of misdirected itself completely as to what the issue was and ordered a new trial on the basis of not only a wrongful assessment application of section 137 but any relevant application of 137 because it did not factor into the jury’s – it is submitted that, inevitably, the result would have been the same which, effectively, takes us to ground 4, because the Court then jumped to the conclusion that a substantial miscarriage of justice followed from its erroneous application of section 137, again, without any reasoning, without any explanation.  It is submitted that it is a non‑sequitured.

Even if they were right in relation to what was said in relation to 137, it is submitted that it was a non‑sequitur to their jump to a substantial miscarriage of justice because, as Justice Gordon has said, the identification was but a small part or even almost no part of the Crown case.  There was one further complication your Honours will have noticed and that is that the principal witness made an erroneous identification early on – identified the alternative offender, as run by the defence.

It is submitted that the Crown would have had to have led that as a matter of its fairness, as a matter of prosecutorial obligation before the jury, and had it not, it would have been cross‑examined by the defence in support of the defence case.  So, put simply, the decision here is not only wrong but it is wrong on a number of scores and the applicant’s position is that a new trial ordered on this basis is fundamentally interfering with the proper result which would, inevitably, have followed in any event.

So, to that extent, the Crown used the identification evidence as a shield to meet the defence of an alternative offender to the accused who had mistakenly been identified by the complainant and absent such use the defence would have had a wrong identification before the jury without the Crown having had an opportunity of informing the jury that the identification had been subsequently corrected by the complainant. 

FRENCH CJ:   We might here from Ms Chapman.

MR SILBERT:   If the Court pleases.

FRENCH CJ:   Yes, Ms Chapman.

MS CHAPMAN:   May it please the Court, in my submission – can I just go back to the way that the special leave question has been enunciated – namely, whether reliability is a relevant factor in determining the probative value of evidence under section 137 and the reason set out for that is – for the special leave branch – is to resolve a conflict between intermediate appellate courts as to the construction of probative value.  In my submission, that conflict has been resolved since the filing of this application by the decision in IMM v The Queen. 

What has now been put before the Court is, essentially, two new reasons for the grant of special leave.  The first one appearing in the applicant’s reply at paragraph 2.10 and 2.11 – namely, that now applying IMM, the majority in the Court of Appeal has adopted an incorrect approach to the section 137 assessment in reaching the conclusion to quash the convictions and order of retrial and their submission that, therefore, the application of a Dupas constitutes error.

In my submission, this application for special leave is now made on the basis of asking this Court to make an error correction – namely, asking the Court to judge the factual specific matters in the trial by applying IMM.  In my submission, the error correction is not a basis for a grant of special leave and special leave should only be granted to the Crown in very exceptional circumstances and granted when, for example, cannot allow an error of principle on the part of the Court of Appeal to remain uncorrected when that error may be perpetuated and become a source of further error.

FRENCH CJ:   But the discretion of the Court to grant special leave is not confined to that circumstance, is it, under the Judiciary Act?  

MS CHAPMAN:   No, it is not confined but that is the main, in my submission, basis upon which this Court would intervene on a special leave ‑ ‑ ‑

FRENCH CJ:   Are you saying the Crown is not entitled to call in aid the visitation jurisdiction?

MS CHAPMAN:   Only in very exceptional circumstances and not given that there is no an order for a retrial, yes, I am, that is my submission.  The Crown has not demonstrated very exceptional circumstances particularly given there being an order for a retrial and the trial judge will apply IMM to any section 137 exclusion application, so there is no risk of an error of principle being perpetuated or being the source of a further error.  The place for the consideration of the application of IMM is now in the new trial court.  It is being put that identification was a small part – or no part – of the prosecution case.  In my submission, identification was the issue in this trial.

KIEFEL J:   I think what was put was that the evidence of the photoboard was but one aspect of the identification part of the Crown case.

MS CHAPMAN:   Indeed it was.  But it was, in my submission, led by the Crown and that was over vigorous opposition by the defence that the prosecution did lead that evidence and, indeed, led it for a purpose to – what they said was – rebut the evidence of the wrongful identification of Mr Cooper soon after the assault.

So, in my submission, whilst the Crown in her address endeavoured to indicate to the jury that the Crown did not put much weight on that photoboard identification in 2011, nevertheless it must be remembered they did lead it and they did deliberately do so in order to try and rebut the wrongful identification, and simply because the Crown has indicated in its address that it does not wish to place much reliance on it, does not necessarily mean that the jury did not place reliance on it.

In my submission, there is no concession here that the Court of Appeal outcome was erroneous even if one would apply IMM.  In my submission, it does not necessarily follow that the outcome would be any different.  The Crown does not appear here to be now submitting to this Court that the photoboard evidence was of a high probative value.  The Crown’s position at trial and on appeal was that it was a low or low to moderate probative value.  The Crown does not appear to now be resiling from the prosecutor’s address claiming not to rely upon it.  So, in my submission, under section 137, whether one applies Dupas or one applies IMM, the Crown’s position is that the photoboard has low probative value.

On the other side of the coin – and, of course, I remind the Court that the other side of the coin, namely, the prejudice assessment, is not what is enunciated in the leave question.  But, in any event, on the other side of the coin, my submission is that the prejudice was high.  That was indeed – and that can be assessed by considerations of reliability – XY was not disavowed by the Court in IMM.

KIEFEL J:   Ms Chapman, if one has a look at the factors that the Court of Appeal identified as relevant to the assessment of the risk of unfair prejudice at special leave book pages 114 and 115, commencing from paragraph 104, do you submit that they are proper to an assessment of the risk of prejudice of evidence – that is, the effect that the evidence would have?

MS CHAPMAN:   Yes, because they go to the issue of the risk that the jury will give excessive weight to the evidence.  There are a number of compounding factors which are specific to these facts which go to the risk of prejudice – namely, that particular one I have identified, the risk that the jury will attach too much weight to the evidence.  Those factors include whether you are considering Dupas or IMM – if I can put it this way – the objective factors surrounding the identification and as described in IMM at paragraph 50, assess identification as a weak identification simply because it is unconvincing.

KIEFEL J:   Are not some of the factors identified by the Court of Appeal more relevant to a question of the probative value of the evidence, for instance, the second and third factors?

FRENCH CJ:   And the fifth?

KIEFEL J:   Are they not overlapping the two tests, or confusing them?

MS CHAPMAN:   In my submission, there are factors which are relevant to both sides of the balancing process.  So the fact, for example, the second factor here that there was a delay of almost two years in regard to the identification is a matter to be assessed when determining probative value but also as a relevant matter in determining the risk that the jury might attach too much weight to the evidence.  It is not simply the fact that it was two years when you are determining that risk.  It is the specific compounding of all those matters where the jury may attach too much weight.  In my submission, the fifth point again goes to ‑ ‑ ‑

KIEFEL J:   Would not the risk of prejudice really require the Court of Appeal to consider this evidence in the context of all of the other evidence?

MS CHAPMAN:   In my submission, the risk of prejudice is the prejudice in terms of their attaching too much weight to the identification evidence that occurred on the photoboard in August 2011. 

GORDON J:   Ms Chapman, how can you do that without looking at all of the other evidence that is listed at pages 98 and 99 of the application book?  The photoboard was just one of the pieces of ID evidence relied upon by the Crown?

MS CHAPMAN:   I do not disagree with that, your Honour.  In my submission, that is what is occurring in relation to these five factors that one has to look at those pieces of identification – or wrongful identification – in order to ascertain the risk of the jury attaching too much weight to what was claimed to be a positive identification in August 2011.  In my submission, the Court has not separated and looked at it in isolation.  Indeed, in point number 5 at paragraph 108, what the Court is doing there is saying, in relation to the photoboard identification, what we really have is not a positive identification.  What we have is evidence of resemblance that has been given – namely, that the witness is saying that the photo best resembled his memory of his attacker.

FRENCH CJ:   That is not a question of reliability.  It is just a question of a qualified statement of identification which goes to its probative value, I would have thought.

MS CHAPMAN:   It does, correct.  But, all of those – my point is that all of those matters as well go to – put together the risk of the jury attaching too much weight to that photoboard evidence.  In other words, the jury being able to assess the true weight of that photoboard resemblance evidence in August 2011 against all the other pieces of evidence that were led in the trial.  Indeed, whilst the Crown prosecutor in her address said that she was not relying upon it, the purpose of it was to lead it to rebut the wrongful identification.  In my submission, it was before the jury in order to do that. 

So there was real prejudice, in my submission, in the jury attaching too much weight to this evidence in a sense that it was overcoming the – said to overcome the flaws in the wrongful identification that occurred soon after the assault.  That is why, in my submission, the Court is not falling into error here in looking at these five factors.  It is, indeed, looking at the entire identification picture and saying that because you have this identification in August 2011, there is a risk that it will be given too much weight by the jury because of all these other compounding problems which led up to it.  Those compounding problems include, for example, the third factor which was the displacement effect.  Something else that the jury must factor in when considering the weight of the evidence in August 2011 and the risk that they will not assess all of these factors and give the identification too much weight.

Also, our point as well that prior to the resemblance evidence in August 2011, the witness was told by the police that they believe that the assailant was in the photoboard and that he had made a wrongful identification back in 2011.  So, in my submission, that is precisely what the Court of Appeal is quite properly doing here – is assessing the risk of prejudice in terms of the weight to be given to the photoboard resemblance evidence against all of the other identification evidence that your Honours have directed me to at paragraphs 98 and 99.

Your Honours, yes, I agree that the risk of prejudice cannot be looked at in isolation and, in my submission, the Court of Appeal did not look at it in isolation.  They looked at it in terms of, given all of this evidence, is the jury going to attach too much weight to it and that was the risk that was quite properly addressed. 

In my submission, the Court did give consideration to the effect of judicial directions.  At paragraph 111, which is page 116 of the appeal book, the plurality considered this precise issue quite properly in regard to the risk assessment, whether it could be ameliorated by judicial direction and considered that the:

directions would mitigate any prejudicial effect –

In my submission, this case stands on its own facts.  It has got many factors relating to the complications of how the August 2011 photoboard resemblance evidence came about, hence making the directions difficult and hence, in my submission, the Court of Appeal considering that directions would not ameliorate the prejudice.

There was also, of course, the issue in the mix of the witness having seen a black and white video of a person said to be Mr Dickman and this, in my submission, was a very subtle displacement effect.  The reason why it was subtle was, of course, the video was black and white and the evidence was that he had red hair at the time.  So, again, this is another matter which the Court had in mind when it was considering this side of the coin – that is, the risk of prejudice, is this very subtle issue about the displacement effect.

FRENCH CJ:   Thank you, Ms Chapman.  I think you time is up now.

MS CHAPMAN:   May it please the Court.

FRENCH CJ:   Yes, we will not need to trouble you, Mr Silbert.

MR SILBERT:   If the Court pleases.

FRENCH CJ:   There will be a grant of special leave in this matter.  There is a timetable for submissions which are to be made available for the parties.

MR SILBERT:   Yes, your Honour.

FRENCH CJ:   Thank you.

AT 10.02 AM THE MATTER WAS CONCLUDED